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https://www.courtlistener.com/api/rest/v3/opinions/1608158/ | 662 N.W.2d 195 (2003)
266 Neb. 114
In re INTEREST OF Richard KOCHNER, alleged to be a mentally ill dangerous person.
Richard Kochner, Appellant,
v.
Mental Health Board, Lancaster County, Appellee.
No. S-02-998.
Supreme Court of Nebraska.
June 6, 2003.
*197 Dennis R. Keefe, Lancaster County Public Defender, Dorothy A. Walker, and Matthew G. Graff, Senior Certified Law Student, for appellant.
Gary E. Lacey, Lancaster County Attorney, and Barbara J. Armstead, for appellee.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, McCORMACK, and MILLER-LERMAN, JJ.
CONNOLLY, J.
The Lancaster County Mental Health Board (Board) determined that the appellant, Richard Kochner, is a mentally ill dangerous person under Neb.Rev.Stat. § 83-1001 et seq. (Reissue 1999 & Cum. Supp.2000), of the Nebraska Mental Health Commitment Act (Commitment Act). The Board ordered him committed for inpatient treatment. The district court, sitting as an appellate court under *198 § 83-1043, affirmed the Board's decision, and Kochner appealed. We affirm.
ASSIGNMENTS OF ERROR
Kochner assigns, restated, that the district court erred in concluding that (1) his statutory right to have a hearing within 7 days of being taken into protective custody was not denied; (2) there was sufficient evidence to support the Board's order of commitment; (3) inpatient treatment was the least restrictive treatment alternative available; and (4) the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. (2000) did not require the State to provide the type of community-based program recommended by his expert as an alternative to inpatient treatment.
STANDARD OF REVIEW
The district court reviews the determination of the mental health board de novo on the record. See, § 83-1043; In re Interest of Ely, 220 Neb. 731, 371 N.W.2d 724 (1985). In reviewing a district court's judgment under the Commitment Act, appellate courts will affirm the district court's judgment unless, as a matter of law, the judgment is unsupported by evidence which is clear and convincing. In re Interest of S.B., 263 Neb. 175, 639 N.W.2d 78 (2002).
BACKGROUND
In 1991, Kochner sexually assaulted his 14-year-old daughter. He was convicted of sexual assault on a child as a result of the incident and was sentenced to probation for a period of 2 years.
In May 1999, the State charged Kochner with sexual assault of a child. The State alleged that he had sexually assaulted a girl for whom his wife was babysitting. He pled no contest to the charges, and the court sentenced him to 2 to 5 years' imprisonment.
Kochner, who was serving his sentence at the Omaha Correctional Center, was scheduled to be released on October 4, 2001. On August 14, Mark E. Weilage, Ph.D., a clinical psychologist at the Omaha Correctional Center, sent a letter to the Douglas County Attorney's office recommending that Kochner be referred to the Board for possible postincarceration commitment.
On September 13, 2001, the Douglas County Attorney filed a petition claiming that Kochner was a mentally ill dangerous person and that "mental-health-board-ordered treatment" was the least restrictive means for addressing the issue. The petition also claimed that "the immediate custody of [Kochner] is required to prevent the occurrence of the harm described by section [sic] § 83-1009." The parties agree that the Douglas County Mental Health Board ordered Weilage to take Kochner into protective custody on September 13. But, it is unclear how long Weilage held Kochner in protective custody.
Sometime on or after September 13, 2001, the case was transferred to Lancaster County. On October 1, the Lancaster County Attorney filed an amended petition. The county attorney alleged that "the immediate custody of [Kochner] is required to prevent the occurrence of the harm described by § 83-1009." Apparently on the same day, the Lancaster County Mental Health Board issued a summons on the amended petition and a warrant for Kochner's arrest. The summons set October 11 as the date for the hearing on whether to commit Kochner.
The record does not show the exact date that officials from Lancaster County took Kochner into protective custody. In its brief, the State claims that Kochner "was served with a warrant to appear before the Lancaster County Mental Health Board" *199 on October 3, 2001, but that he was not taken into protective custody until October 4. Brief for appellee at 5. Kochner, however, claims he was taken into protective custody by officials from Lancaster County on October 3.
The Board held a hearing on October 11, 2001. At the hearing, Kochner moved to dismiss the amended petition because the summons failed to set a hearing within 7 days of the time he was taken into protective custody. See § 83-1027. The Board denied the motion to dismiss.
The Board held a hearing on the substantive issues on January 29, 2002. The State presented evidence from Weilage; John Nason; and Mary Paine, Ph.D. Weilage testified that Kochner failed to complete a treatment program for sexual offenders. Nason, a mental health technician with the Lancaster County correctional facility, testified about an incident that occurred in mid-October 2001 in which he had observed Kochner masturbating in the correctional facility's library.
Paine, a clinical psychologist, was the State's expert witness. She diagnosed Kochner as having "[p]edophilia ... non-exclusive, cognitive disorder NOS, ... personality disorder NOS, with prominent anti-social and prominent schizotypal features." When asked if she believed Kochner poses a risk to himself or others, Paine testified to a reasonable degree of psychological certainty that he is "at moderate to high risk with the emphasis being on the high risk of re-offending sexually against minor females."
Paine rejected the contention that because 4 years had passed since the last sexual assault, there was no evidence that Kochner posed an immediate threat. Paine pointed out that Kochner had been imprisoned for much of that period and that he had failed to complete treatment while incarcerated. Paine also stated that Kochner's inappropriate sexual behavior at the Lancaster County correctional facility indicated that he still had poor judgment and a lack of impulse control.
Paine also testified that the least restrictive treatment alternative which would successfully treat Kochner's mental illness was inpatient sex offender treatment at the Lincoln Regional Center.
A. Jocelyn Ritchie, Ph.D., a psychologist specializing in neuropsychology, testified for Kochner. She diagnosed him as having pedophilia and cognitive disorder, as well as personality disorder with antisocial and schizotypal features. She placed Kochner at moderate risk for recidivism. Ritchie also opined as to what was the least restrictive treatment option. She believed that a regimented outpatient treatment program would be successful if Kochner was kept away from children and he lived in a supervised community residence.
The Board determined that Kochner "suffers from pedophilia, opposite sex, nonexclusive; cognitive disorder, NOS; and personality disorder, NOS, with anti-social and schizotypal features." It also concluded that Kochner "presents a substantial risk to other persons within the near future as manifested by recent acts of violence toward other persons." The Board determined that "neither voluntary hospitalization nor other treatment alternatives less restrictive of [Kochner's] liberty are available to prevent the harm described in the petition by reason that [Kochner], in his present mental condition, requires inpatient treatment." Accordingly, the Board ordered Kochner committed for inpatient treatment.
Kochner appealed the Board's decision to the district court. The court affirmed the Board's decision.
*200 ANALYSIS
TIMELINESS OF HEARING
Section 83-1027 provides:
Upon the filing of the petition provided by sections 83-1025 and 83-1026 stating the county attorney's belief that the immediate custody of the subject is not required for the reasons provided by sections 83-1025 and 83-1026, the clerk of the district court shall cause a summons fixing the time and place for a hearing to be prepared and issued to the sheriff for service.... The summons shall fix a time for the hearing within seven days after the subject has been taken into protective custody.
In his first assignment of error, Kochner argues that § 83-1027 requires that a hearing be held within 7 days of the time that the person is taken into protective custody. He claims that his hearing was held more than 7 days after he was taken into protective custody and that thus, the Board should have dismissed the petition. We, however, decline to address the merits of this assignment of error, because the record presented is inadequate to show that Kochner was ever held under the authority of a mental health board for more than 7 consecutive days without a hearing.
The parties' briefs reveal a disagreement over which day Kochner was taken into protective custody. Kochner claims that he was taken into protective custody by Lancaster County on October 3, 2001, 8 days before the initial hearing. In its brief, however, the State claims that the Lancaster County sheriff served Kochner with "a warrant to appear before the Lancaster County Mental Health Board" on October 3, but that Lancaster County did not take Kochner into protective custody until October 4, 7 days before the initial hearing. Brief for appellee at 5. If the State's date is correct, then even if we adopted Kochner's interpretation of § 83-1027, the statute would not have been violated because the hearing would have been held within 7 days of the time that Lancaster County took Kochner into protective custody.
The record does not provide a basis by which we can resolve the dispute over which day Lancaster County took Kochner into protective custody. A summons and an arrest warrant, both issued by the Lancaster County Mental Health Board, appear in the record, but the return is not filled out on either one. The record also contains a form that the Lancaster County Attorney apparently provides to subjects of a pending mental health hearing. The form is dated October 3, 2001, but it is unclear if this date refers to the date that the form was printed, the date Kochner was served with the summons, or the date that Kochner was taken into protective custody by Lancaster County.
We note that to support his contention that he was taken into protective custody on October 3, 2001, Kochner's brief cites only to portions of the oral argument made by his counsel before the Board. Oral argument made by counsel during a hearing before a mental health board is not evidence. See State v. Bassette, 6 Neb.App. 192, 571 N.W.2d 133 (1997). See, also, State v. Trotter, 262 Neb. 443, 632 N.W.2d 325 (2001). Moreover, in a refreshing display of candor, Kochner's counsel conceded at oral argument, before this court, that the record was insufficient to show which day Lancaster County took Kochner into protective custody.
Alternatively, Kochner argues that we should use the date that Kochner was taken into custody under the authority of an order from the Douglas County Mental Health Board. The petition was originally filed in Douglas County, and on September *201 13, 2001, the Douglas County Mental Health Board issued an order directing Weilage to take Kochner into protective custody. Subsequently (the exact date is unclear), a district court judge from Douglas County issued an order authorizing the case to be transferred to the Lancaster County Mental Health Board. The Lancaster County Attorney then filed an amended petition, and the Lancaster County Mental Health Board issued a summons and an arrest warrant. Kochner, as we understand it, suggests that he remained in protective custody under the authority of the September 13 order at the time that the Lancaster County sheriff picked him up and that therefore, we should use September 13 as the trigger date for when a hearing must be held under § 83-1027.
The record, however, is insufficient to show that Kochner was held under the authority of the September 13, 2001, order for more than 7 days without a hearing. The September 13 order states protective custody was to last for a period of up to 7 days "unless you receive further instruction from this Board." Nothing in the record shows that the order was extended beyond 7 days. It is equally plausible that the September 13 custody order simply expired and that Kochner was "released" back to the exclusive custody of the Department of Correctional Services, where he remained until the Lancaster County sheriff took him into protective custody on either October 3 or 4. Thus, on the record before us, we cannot say that Kochner was held in protective custody under the authority of a mental health board for more than 7 consecutive days without receiving a hearing.
It is incumbent upon the appellant to present a record which supports the errors assigned; absent such a record, as a general rule, the decision of the lower courts as to those errors is to be affirmed. State v. Abbink, 260 Neb. 211, 616 N.W.2d 8 (2000). Because we cannot tell from the record whether Kochner was held in protective custody for more than 7 consecutive days without a hearing, we decline to address the merits of his first assignment of error.
SUBSTANTIAL RISK OF HARM
Before a person may be committed for treatment by a mental health board, the board must determine that the person meets the definition of a mentally ill dangerous person as set out in § 83-1009. See In re Interest of Vance, 242 Neb. 109, 493 N.W.2d 620 (1992). To meet the definition of a mentally ill dangerous person, the State must show that the person suffers from a mental illness and that the person presents a substantial risk of harm to others or to himself or herself. See, § 83-1009; In re Interest of Vance, supra. Kochner does not dispute, and the record supports, the Board's conclusion that he suffers from pedophilia and was therefore mentally ill. He does, however, challenge the Board's determination that he presents a substantial risk of harm to others.
The State relied on § 83-1009(1) in attempting to prove that Kochner presented a substantial risk of harm to others. In its pertinent part, § 83-1009(1) provides that a mentally ill dangerous person is any mentally ill person who presents a "substantial risk of serious harm to another person or persons within the near future as manifested by evidence of recent violent acts." (Emphasis supplied.) To meet the recent violent act requirement of § 83-1009, the State relied on the sexual assault that Kochner committed in 1998. Kochner argues that this sexual assault was not recent enough to meet the requirements of § 83-1009. We disagree.
*202 The recent violent act requirement is meant as a safeguard to ensure that the liberty of the subject is not unjustly restrained. See, generally, John Q. La Fond, An Examination of the Purposes of Involuntary Civil Commitment, 30 Buffalo L.Rev. 499 (1981). See, also, Doremus v. Farrell, 407 F.Supp. 509 (D.Neb.1975) (declaring predecessor to current Commitment Act violated due process rights, in part because it did not have recent overt act requirement). We have said:
"To confine a citizen against his will because he is likely to be dangerous in the future, it must be shown that he has actually been dangerous in the recent past and that such danger was manifested by an overt act, attempt or threat to do substantial harm to himself or to another."
In re Interest of Blythman, 208 Neb. 51, 57, 302 N.W.2d 666, 671 (1981), quoting Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974). Thus, "any act that is used as evidence of dangerousness must be sufficiently probative to predict future behavior and the subject's present state of dangerousness." In re Interest of Blythman, 208 Neb. at 59, 302 N.W.2d at 672. "[I]n determining whether an act is sufficiently recent to be probative on the issue of dangerousness, ` "[e]ach case must be decided on the basis of the surrounding facts and circumstances."'" In re Interest of Vance, 242 Neb. at 114, 493 N.W.2d at 624, quoting State v. Hayden, 233 Neb. 211, 444 N.W.2d 317 (1989). Accord In re Interest of Tweedy, 241 Neb. 348, 488 N.W.2d 528 (1992).
In In re Interest of Blythman, supra, the State relied on a sexual assault that the subject had committed 5 years before the hearing before the Lincoln County Mental Health Board. The subject had been incarcerated since the time of the assault. He argued that to allow the assault to meet the recent act requirement would have permitted involuntary civil commitment regardless of how remote in time the acts or threats of violence were. In response, we stated:
The argument is well taken. However, such a result does not necessarily follow if it is kept in mind that any act that is used as evidence of dangerousness must be sufficiently probative to predict future behavior and the subject's present state of dangerousness. It is conceivable that an act more recent than another would be less probative of the subject's future conduct than the earlier act. Considering all of the factors, we cannot say that as a matter of law an act which occurred 5 years ago is too remote to be probative of the subject's present state of dangerousness. This is particularly true since the subject did not have an opportunity to commit a more recent act in the intervening years.
The fact situation in this case is somewhat unique in that the subject's mental illness manifests itself in sexual acts toward young girls. He has not had the opportunity to commit such an act in the past 5 years because he has been incarcerated in the Penal Complex, where he has had no access to prospective victims. We cannot believe that the Legislature intended that by requiring a recent act or threat, a mentally ill person should be given the opportunity to commit a more recent act once a sufficient amount of time has passed since the last act. Judicial action need not be forestalled until another young girl is sexually assaulted, or some other harm takes place.
208 Neb. at 59, 302 N.W.2d at 672. See, also, In re Interest of Vance, 242 Neb. 109, 493 N.W.2d 620 (1992); In re Interest of McDonell, 229 Neb. 496, 427 N.W.2d 779 (1988).
*203 The facts of this case are similar to those in In re Interest of Blythman, supra. Kochner's pedophilia manifests itself in an attraction to young girls. Because he has been incarcerated for 3 years, he has lacked access to prospective victims. Equally important, significant evidence was presented at the hearing showing that Kochner remains a danger because of his illness. He refuses to acknowledge that he suffers from pedophilia, and he continues to claim that he does not remember what happened during the two previous assaults. Because of his unwillingness to acknowledge his illness, he was unable to complete a sex offender specific treatment program while he was incarcerated. He also continues to demonstrate poor impulse control, as evidenced by the October 2001 incident at the Lancaster County correctional facility where he was observed masturbating in the library. The State's expert, Paine, testified that until Kochner acknowledges his illness and receives treatment, he will continue to pose a moderate-to-high risk of committing further sexual assaults on children.
Kochner argues that this case is distinguishable from In re Interest of Blythman, 208 Neb. 51, 302 N.W.2d 666 (1981), because of the time that lapsed between when he committed the 1998 sexual assault and when he was arrested for the assault. The record shows that the sexual assault occurred in either early October or late November 1998. Kochner was apparently first contacted about the assault in December 1998. The record shows that he was arrested for the assault in either March or April 1999 and that the State filed an information in May. He argues that the lapse of 5 to 6 months between the time of the assault and the time he was arrested indicates that the county did not consider him to be an immediate danger. Cf. Hill v. County Board of Mental Health, 203 Neb. 610, 617, 279 N.W.2d 838, 841 (1979) ("act or threat is `recent' within the meaning of section 83-1009 ... if the time interval between it and the hearing of the mental health board is not greater than that which would indicate processing of the complaint was carried on with reasonable diligence under the circumstances existing, having due regard for the rights and welfare of the alleged mentally ill dangerous person").
There is, however, no "definite time-oriented period to determine whether an act is recent. Each case must be decided on the basis of the surrounding facts and circumstances." See In re Interest of Blythman, 208 Neb. at 58, 302 N.W.2d at 671. Here, several relevant factors affect whether the 1998 assault is sufficiently recent to be probative on the issue of dangerousness: (1) Kochner's history of sexual assault, (2) his inability to reoffend while he was incarcerated, (3) his continuing inability to confront his illness, and (4) his lack of impulse control. Given these factors, we cannot say that the district court erred as a matter of law in concluding that the 1998 sexual assault was sufficiently recent to meet the requirements of § 83-1009. Cf. In re Interest of Vance, 242 Neb. 109, 493 N.W.2d 620 (1992).
LESS RESTRICTIVE TREATMENT ALTERNATIVES
Kochner next argues that the Board's order violates the Commitment Act because the State failed to show by clear and convincing evidence that treatment alternatives less restrictive than commitment for inpatient treatment were available. Section 83-1038 provides in part:
The disposition ordered by the mental health board shall represent the alternative which imposes the least restraint upon the liberty of the subject required to successfully treat the particular mental *204 illness and prevent the particular harm which was the basis for the board's finding the person to be a mentally ill dangerous person. The board shall consider all treatment alternatives, including any treatment program or conditions suggested by the subject, the subject's counsel, or any interested person, including outpatient treatment, consultation, chemotherapy or any other program or set of conditions. Full-time inpatient hospitalization or custody shall be considered a treatment alternative of last resort.
To support his claim, Kochner relies upon Ritchie's testimony. She recommended that Kochner be placed in an outpatient program in which he would be "closely supervised and receive services and case management equivalent to intensive supervised parole." The program envisioned by Ritchie would have placed numerous restrictions on Kochner, including:
a. living in a supervised community residence and 100% compliance with all their rules and regulations,
b. 100% attendance and active participation in intensive outpatient individual sex offender treatment....
....
e. random urinalysis for substance abuse and random liver enzyme assays for alcohol use.
f. the appointment of a guardian to manage his affairs including personal and financial decision-making....
....
h. an agreement by [Kochner] and all immediate significant others that he will be required to take steps to actively avoid any and all contact with children....
i. an agreement by [Kochner] that he is never to be alone with children under any circumstances, and that in those circumstances where he cannot avoid being in the presence of particular children ... he is supervised by an awake, informed service provider or other awake, informed person [sic] approved by his clinical team[.]
Ritchie conceded that no program like the one she envisioned existed in Lancaster County, but testified that the county could develop such a program with "a variety of mechanisms and resources available to it."
The Board rejected Ritchie's hypothetical outpatient treatment program and determined that inpatient treatment was the least restrictive treatment alternative available. It noted that it knew of no outpatient treatment program that would have included the physical constraints envisioned by Ritchieparticularly those that required Kochner to stay away from children. It also reasoned that the "close supervision and specially designed sex offender program envisioned by both Dr. Paine and Dr. Ritchie is [sic] virtually impossible in any environment except the Lincoln Regional Center program."
In reaching its decision, the Board relied primarily on Paine's testimony that inpatient treatment was the least restrictive treatment option. Kochner argues that Paine's testimony is insufficient to support the Board's conclusion because the only basis for her opinion was that no current outpatient program in Lancaster County would accept Kochner. This argument, however, mischaracterizes Paine's testimony. She did testify that because Kochner had consistently denied or minimized his previous offenses, she was not aware of any outpatient sex offender program in Omaha or Lincoln which would accept him. But that was not the sole basis for her opinion. Paine also testified that the level of risk presented by Kochner was too high to place him in an outpatient program, even one with the restrictions *205 suggested by Ritchie. Moreover, she pointed out that Kochner lacked "any insight whatsoever in[to] his sexual deviancy" and was "non-disclosing regarding the majority of his sexual thoughts and urges." In Paine's opinion, these two factors meant that Kochner would be unable to identify and report the symptoms of his mental illness in an outpatient regimen and that therefore the greater degree of supervision associated with an inpatient program was warranted. Finally, Paine noted that Kochner also suffers from cognitive disabilities as a result of a head injury he suffered as a teenager and that the inpatient sex offender program at the Lincoln Regional Center was specifically modified to treat such individuals.
Upon its de novo review of the record, the district court agreed with the Board's conclusion that commitment was the least restrictive treatment recommendation. Given Paine's testimony, the district court did not err in reaching this determination.
CONCLUSION
We cannot say, as a matter of law, that the district court's judgment upholding the Board's commitment order was unsupported by clear and convincing evidence. We have reviewed Kochner's remaining assignment of error and find it to be without merit. Accordingly, the determination of the district court is affirmed.
AFFIRMED.
STEPHAN, J., participating on briefs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608180/ | 662 N.W.2d 101 (2003)
256 Mich. App. 165
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Derrick Dewayne McDANIEL, Defendant-Appellant.
Docket No. 235094.
Court of Appeals of Michigan.
Submitted February 5, 2003, at Lansing.
Decided February 21, 2003, at 9:00 a.m.
Approved for Publication April 8, 2003.
Released for Publication May 29, 2003.
*104 Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Stuart J. Dunnings, III, Prosecuting Attorney, Guy L. Sweet, Appeals Division Chief, and Eric M. Matteo, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Deborah W. Keene), for the defendant.
Before: SAWYER, P.J., and JANSEN and DONOFRIO, JJ. *102
*103 SAWYER, P.J.
Following a jury trial, defendant Derrick D. McDaniel was convicted of first-degree retail fraud, M.C.L. § 750.356c, and sentenced as a fourth-offense habitual offender, M.C.L. § 769.12, to four to twenty years' imprisonment. He appeals as of right. We affirm.
Defendant first argues the trial court erred in admitting evidence of his prior larceny convictions because the similarity between the prior convictions and the present conviction was such that the evidence was more prejudicial than probative. We disagree.
Ordinarily, the decision whether a prior conviction that involves a theft component may be used to impeach a defendant is within the trial court's discretion and will not be reversed absent an abuse of that discretion. MRE 609; People v. Allen, 429 Mich. 558, 605-606, 420 N.W.2d 499 (1988), amended and reh. den. sub. nom. People v. Pedrin, 429 Mich. 1216 (1988); People v. Coleman, 210 Mich.App. 1, 6, 532 N.W.2d 885 (1995). "An abuse of discretion occurs `when the result is "so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but [the] defiance [of it]...." "`People v. Hine, 467 Mich. 242, 250, 650 N.W.2d 659 (2002), quoting Dep't of Transportation v. Randolph, 461 Mich. 757, 768, 610 N.W.2d 893 (2000).
A witness's credibility may be impeached with prior convictions, M.C.L. § 600.2159, but only if the convictions satisfy the criteria set forth in MRE 609, which require a determination that "the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court further determines that the probative value of the evidence outweighs the prejudicial effect." MRE 609; People v. Nelson, 234 Mich.App. 454, 460, 594 N.W.2d 114 (1999).
Notwithstanding the lower court's evident familiarity with the MRE 609 analysis, the court committed error by failing to articulate its findings on the record. However, this, without more, does not require reversal where it appears from the record that the court was aware of its discretion and the factors relevant to the exercise of that discretion. People v. Bell, 155 Mich.App. 408, 411, 399 N.W.2d 542 (1986); People v. Eggleston, 148 Mich.App. 494, 502-503, 384 N.W.2d 811 (1986).
Moreover, even if the trial court committed error in failing to articulate its specific MRE 609 analysis, or in admitting the prior convictions, the error was harmless and does not require reversal because defendant has not demonstrated prejudice. People v. Mateo, 453 Mich. 203, 210, 212, 551 N.W.2d 891 (1996); Allen, supra at 612, 420 N.W.2d 499. Whether a preserved *105 nonconstitutional error is harmless depends on the nature of the error and its effect on the reliability of the verdict in light of the weight of the untainted evidence. People v. Whittaker, 465 Mich. 422, 427, 635 N.W.2d 687 (2001). The error is presumed harmless, and the defendant bears the burden of showing that the error resulted in a miscarriage of justice. People v. Carines, 460 Mich. 750, 763-764, 597 N.W.2d 130 (1999); People v. Lukity, 460 Mich. 484, 493-494, 596 N.W.2d 607 (1999).
Here, there was sufficient evidence establishing defendant's guilt independent of the error. It is well settled that circumstantial evidence and the reasonable inferences that arise from the evidence can constitute satisfactory proof of the elements of the crime. Carines, supra at 757, 597 N.W.2d 130. Similarly, it is also well settled that reasonable inferences may be drawn from established facts. People v. Wilson, 107 Mich.App. 470, 474, 309 N.W.2d 584 (1981). Eyewitness and video-surveillance evidence established that defendant: (1) returned to the store without the printer he had purchased, (2) retrieved a second pre-positioned printer from the photo shop counter, (3) verbally informed the courtesy clerk that he wanted a cash refund, (4) filled out a receipt requesting a refund, (5) provided false information on the receipt, and (6) presented the second printer to the courtesy clerk to effect the refund. This overwhelming evidence was sufficient to support defendant's conviction independent of any error in admitting the prior convictions. See People v. Robert Johnson, 167 Mich.App. 168, 174, 421 N.W.2d 617 (1988). Defendant failed to demonstrate error affecting the reliability of the verdict in light of the overwhelming evidence of guilt. Whittaker, supra at 427, 635 N.W.2d 687; People v. Bartlett, 197 Mich.App. 15, 19-20, 494 N.W.2d 776 (1992).
Defendant also argues that evidence at trial supported his request to include a CJI2d 6.4 instruction based on his theory that the instant charges resulted from a misunderstanding between defendant and Meijer employees who thought he was attempting to fraudulently return the second printer for cash. We disagree.
Generally, a trial court is required to instruct the jury on the applicable law and fully and fairly present the case to the jury in an understandable manner. People v. Rodriguez, 463 Mich. 466, 472-473, 620 N.W.2d 13 (2000). Jury instructions are crafted to permit the fact-finder to correctly and intelligently decide the case. People v. Burns, 250 Mich.App. 436, 440, 647 N.W.2d 515 (2002). Thus, they should include not only all the elements of the charged offense, but also material issues, defenses, and theories where supported by the evidence. Id. The trial court is required to give a defendant's requested instruction when the instruction concerns his theory and is supported by the evidence. Rodriguez, supra at 472-473, 620 N.W.2d 13. Even if somewhat imperfect, jury instructions do not create error if they fairly present the issues to be tried and sufficiently protect the defendant's rights. People v. Aldrich, 246 Mich.App. 101, 124, 631 N.W.2d 67 (2001). Where a requested instruction is not given, the defendant bears the burden of establishing that the trial court's failure to give the instruction constituted a miscarriage of justice. MCL 769.26; Rodriguez, supra, at 473-474, 620 N.W.2d 13; Lukity, supra at 493-494, 596 N.W.2d 607.
In the instant case, the instruction was not supported by the evidence and would have led to confusion of the issues. Defendant testified regarding his theory of misunderstanding, which, if believed, *106 would have allowed the jury to acquit regardless of the failure to instruct on CJI2d 6.4. The instructions, as given, adequately reflected the law and allowed the jurors to accurately decide the case by focusing on the requisite proof of intent. They were also instructed that the prosecution must prove that defendant intended to defraud or cheat the store, thus implying that if they believed defendant acted out of a mistake or misunderstanding, that it was not his intent to defraud, he could be acquitted. Defendant's theory was before the court, and the presumption is that the jurors followed the court's instructions. People v. Graves, 458 Mich. 476, 486, 581 N.W.2d 229 (1998). When viewed in their totality, the jury instructions fairly represented the issues to be tried and sufficiently protected the defendant's rights. Aldrich, supra at 124, 631 N.W.2d 67.
Defendant's final argument challenges the scoring of the guidelines on the basis that the trial court misscored offense variable 13 (OV 13) regarding his first-degree retail fraud conviction. Defendant's failure to properly raise this issue in the trial court presents this Court with unpreserved, constitutional error subject to harmless-error analysis; that is, a review for plain error affecting substantial rights. Carines, supra at 764-766, 597 N.W.2d 130; People v. Taylor, 245 Mich.App. 293, 304, 628 N.W.2d 55 (2001). To avoid forfeiture under the plain-error rule, defendant must establish that: (1) error occurred, (2) the error was clear and obvious, and (3) the plain error affected his substantial rights, in that the error affected the outcome of the lower-court proceedings. Id. at 765, 597 N.W.2d 130. "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error `"seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings" independent of the defendant's innocence.'" Id. at 763, 597 N.W.2d 130.
Generally, the offense variable factors of the guidelines' calculations address the circumstances of the crime for which the defendant is sentenced. Defendant was convicted of first-degree retail fraud, a class E felony against property, which requires scoring OV 13, continuing pattern of criminal behavior. MCL 777.16r; MCL 777.22(2); MCL 777.43(1). In scoring OV 13, the court is required to score ten points where "[t]he offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person or property." MCL 777.43(1)(c). At issue is the interpretation of the scoring instructions in subsection 43(2)(a):
For determining the appropriate points under this variable, all crimes within a 5-year period, including the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction.
Defendant asserts, without authority or analysis, that this provision requires the sentencing court to examine the five-year period immediately preceding the offense. The prosecutor, on the other hand, argues that any five-year period may be utilized. We agree with the prosecutor's interpretation.
If the plain and ordinary meaning of the statutory language is clear, judicial construction is normally neither necessary nor permitted. People v. Philabaun, 461 Mich. 255, 261, 602 N.W.2d 371 (1999). Unless defined in the statute, every word or phrase of the statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used. People v. Disimone, 251 Mich.App. 605, 610, 650 N.W.2d 436 (2002).
*107 The statute clearly refers to "a 5-year period." The use of the indefinite article "a" reflects that no particular period is referred to in the statute. Had the Legislature intended the meaning defendant assumes, the statute would refer to "the 5-year period immediately preceding the sentencing offense." Instead, the phrase "including the sentencing offense" modifies "all crimes." That is, the sentencing offense may be counted as one of the three crimes in a five-year period. That does not, however, preclude consideration of a five-year period that does not include the sentencing offense.
In the case at bar, there is a five-year period in which defendant was convicted of a combination of three felonies involving crimes against both persons and property: his conviction for an October 16, 1984, unarmed robbery; his conviction for an August 4, 1988, retail fraud; and his conviction for a March 21, 1989, attempted larceny in a building.
Affirmed.
JANSEN, J., concurred.
DONOFRIO, J. (dissenting).
I concur in part and respectfully dissent in part. I would affirm defendant Derrick D. McDaniel's conviction for the same reasons as the majority; however, I would remand the case to the trial court for resentencing.
Defendant raises a challenge to the scoring of his sentence under the sentencing guidelines. Defendant argues that the trial court misscored offense variable 13 (OV 13) regarding his first-degree retail fraud conviction. First-degree retail fraud is a class E felony against property, requiring scoring of OV 13, continuing pattern of criminal behavior. MCL 777.16r; MCL 777.22(2); MCL 777.43(1). In scoring OV 13, the court is required to score ten points where "[t]he offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person or property." MCL 777.43(c). The statute allows consideration of "all crimes within a 5 year period, including the sentencing offense... regardless of whether the offense resulted in a conviction." MCL 777.43(2)(a).
I believe that defendant was incorrectly scored under subsection M.C.L. § 777.43(c). The majority agrees with the prosecutor's interpretation of the statute and asserts that "[t]he use of the indefinite article `a' reflects that no particular period is referred to in the statute." I disagree. The language at issue states that "all crimes within a 5-year period, including the sentencing offense, shall be counted." MCL 777.43(2)(a) (emphasis added). Because the word "shall" is used, I find it is impossible for any five-year period that does not include the sentencing offense to be considered. Contrary to the majority's interpretation of the statute, my reading of the statutory language clearly precludes consideration of a five-year period that does not include the sentencing offense. Crimes outside the five-year period contemplated are already considered in the prior record variables.
My review of defendant's criminal record does not indicate any three or more felonies occurring within the immediate five-year period; thus, scoring ten points was inappropriate. This scoring error resulted in an elevated guidelines recommendation. MCL 777.21(3)(c); MCL 777.66.
I believe that defendant has established error that resulted in his incarceration beyond the appropriate minimum range under the guidelines, and I would remand for correction of the guidelines scoring error and resentencing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608194/ | 262 Wis.2d 1 (2003)
2003 WI 53
662 N.W.2d 335
Joseph CONWAY, Jr., and the International Association of Firefighters, Local 311, AFL-CIO, Petitioners-Respondents-Petitioners,
v.
BOARD OF the POLICE AND FIRE COMMISSIONERS OF the CITY OF MADISON, Wisconsin, and Fire Chief Debra Amesqua, Respondents-Appellants.
No. 01-0784.
Supreme Court of Wisconsin.
Oral argument February 12, 2003.
Decided June 3, 2003.
*5 For the petitioners-respondents-petitioners there were briefs by Aaron N. Halstead and Shneidman, Hawks & Ehlke, S.C., Madison, and oral argument by Aaron N. Halstead.
For respondent-appellant, Board of Police and Fire Commissioners of the City of Madison, there was a brief by Scott Herrick and Herrick & Kasdorf, LLP, Madison, and oral argument by Scott N. Herrick.
For the respondent-appellant, Fire Chief Debra H. Amesqua, there was a brief by Carolyn S. Hogg, assistant city attorney, and James L. Martin, city attorney, and oral argument by Carolyn S. Hogg.
An amicus curiae brief was filed by Daniel M. Olson, Madison, on behalf of the League of Wisconsin Municipalities.
¶ 1. N. PATRICK CROOKS, J.
Lieutenant Joseph Conway, Jr., and the International Association of Firefighters, Local 311, AFL-CIO (hereinafter collectively referred to as Conway), seek review of a published court of appeals' decision that reversed a circuit court declaratory judgment. The Dane County Circuit *6 Court held that Rule 7.20 of the Board of the Police and Fire Commissioners of the City of Madison (board) was void, declaring that the rule was in excess of the board's statutory authority.
¶ 2. We affirm the decision of the court of appeals and hold that the board had express statutory authority to adopt Rule 7.20. That rule falls within the express statutory authority to promulgate "rules for the administration" of Wis. Stat. § 62.13(5) (1999-2000), in accord with Wis. Stat. § 62.13(5)(g). Rule 7.20 ensures that the ultimate decision-making authority remains with the board.[1]
¶ 3. Accordingly, we agree with the court of appeals that "[r]ule 7.20 provides a rational and efficient means of carrying out the board's duties under § 62.13(5) and does not delegate to the hearing examiner the specific duties vested in the board under that section." Conway v. Bd. of Police and Fire Comm'rs of the City of Madison, 2002 WI App 135, ¶ 22, 256 Wis. 2d 163, 647 N.W.2d 291.
¶ 4. Our holding is consistent with this court's prior decisions leaving the means of carrying out administrative duties in the hands of the agency involved wherever possible. It is also consistent with the legislature's intent that Wis. Stat. §§ 62.01 to 62.26 be liberally construed in favor of the rights, powers, and privileges of cities, as long as compatible with the constitution and general law.
I. BACKGROUND
¶ 5. On December 8, 1999, the board adopted Rule 7.20, which allows the board to "engage a Hearing *7 Examiner to conduct the Initial Hearing and the continuing evidentiary hearings" when disciplinary action is taken against a Madison police officer or firefighter under Wis. Stat. § 62.13(5).
¶ 6. Wisconsin Stat. § 62.13(1) and (2)(a) require cities with populations over 4000 to establish a board of police and fire commissioners. The legislature has granted Wisconsin's cities various powers concerning police and fire departments in accord with Wis. Stat. § 62.13. The mayor of each Wisconsin city with a population of 4000 or more must appoint a board of police and fire commissioners, according to Wis. Stat. § 62.13(1).
¶ 7. Wisconsin Stat. § 62.13(5) outlines the procedural steps for disciplinary action against a subordinate officer of a police or fire department. A subordinate officer may be suspended, reduced in rank, suspended and reduced in rank, or removed for just cause. Wis. Stat. § 62.13(5)(e) and (em). In addition to the specific duties outlined, the legislature granted to boards of police and fire commissioners the broad authority to make rules for the administration of Wis. Stat. § 62.13 under Wis. Stat. § 62.13(5)(g). Wisconsin Stat. § 62.13(5) states:
(5) Disciplinary actions against subordinates.
(a) A subordinate may be suspended as hereinafter provided as a penalty. The subordinate may also be suspended by the commission pending the disposition of charges filed against the subordinate.
(b) Charges may be filed against a subordinate by the chief, by a member of the board, by the board as a body, or by any aggrieved person. Such charges shall be in writing and shall be filed with the president of the board. Pending disposition of such charges, the board or chief may suspend such subordinate.
*8 (c) A subordinate may be suspended for just case, as described in par. (em), by the chief or the board as a penalty. The chief shall file a report of such suspension with the commission immediately upon issuing the suspension. No hearing on such suspension shall be held unless requested by the suspended subordinate. If the subordinate suspended by the chief requests a hearing before the board, the chief shall be required to file charges with the board upon which such suspension was based.
(d) Following the filing of charges in any case, a copy thereof shall be served upon the person charged. The board shall set [the] date for hearing not less than 10 days nor more than 30 days following service of charges. The hearing on the charges shall be public, and both the accused and the complainant may be represented by an attorney and may compel the attendance of witnesses by subpoenas which shall be issued by the president of the board on request and be served as are subpoenas under ch. 885.
(e) If the board determines that the charges are not sustained, the accused, if suspended, shall be immediately reinstated and all lost pay restored. If the board determines that the charges are sustained, the accused, by order of the board, may be suspended or reduced in rank, or suspended and reduced in rank, or removed, as the good of the service may require.
(em) No subordinate may be suspended, reduced in rank, suspended and reduced in rank, or removed by the board under par. (e), based on charges filed by the board, members of the board, an aggrieved person or the chief under par. (b), unless the board determines whether there is just cause, as described in this paragraph, to sustain the charges. In making its determination, the board shall apply the following standards, to the extent applicable: ...
*9 . . . .
(f) Findings and determinations hereunder and orders of suspension, reduction, suspension and reduction, or removal, shall be in writing and, if they follow a hearing, shall be filed within 3 days thereof with the secretary of the board.
(g) Further rules for the administration of this subsection may be made by the board.
(Emphasis added.)
¶ 8. The rule at issue in this case, Madison Police and Fire Commissioners Rule 7.20, provides that: "[t]he Board may engage a Hearing Examiner to conduct the Initial Hearing and the continuing evidentiary hearings." The rule also provides that at the initial hearing,[2] the hearing examiner is charged with the responsibility to rule on procedural motions, make rulings on discovery issues, set a date for the hearing and, where appropriate, dismiss the complaint filed against the subordinate employee. The hearing examiner is charged with the responsibility to hear the case and "prepare a comprehensive report including an evaluation of witness credibility and demeanor for review by the Board and including the recommendations of the Hearing Examiner regarding disposition of the charges."[3]
*10 [1]
¶ 9. This matter commenced when Lieutenant Joseph Conway Jr., a member of the Madison Fire Department and President of the International Association of Firefighters Local 311, and Local 311, filed a motion in the circuit court for judgment on the pleadings. They sought a declaration that the board had neither express nor implied statutory authority to promulgate Rule 7.20. In particular, Conway asserted that because Wis. Stat. § 62.13 does not authorize the use of hearing examiners in a city with a population of more than 4000 persons, Rule 7.20 was in excess of the board's statutory authority.
¶ 10. On January 18, 2001, the circuit court, Judge Moria Krueger presiding, found that the board lacked statutory authority under Wis. Stat. § 62.13(5) to promulgate Rule 7.20, and granted the plaintiffs' motion for judgment on the pleadings. In doing so, the circuit court declared Rule 7.20 void. The court held that § 62.13(5) did not authorize the board to delegate *11 to a hearing examiner the responsibility for conducting the initial hearing and the continued evidentiary hearing, in a case involving the suspension, reduction in rank, or removal of a subordinate police officer or firefighter.
¶ 11. The circuit court noted that the board did not cite to any agencies that utilize hearing examiners when there is no specific statutory authority to do so. Furthermore, the circuit court noted that in Wis. Stat. § 62.13(6m), the legislature provided for the use of a hearing examiner in the case of a city with a population of less than 4000. Consequently, the circuit court reasoned that had the legislature intended to permit the use of a hearing examiner for a city with a population of more than 4000, it could have done so specifically.
¶ 12. The circuit court issued a declaratory judgment declaring that Rule 7.20 was adopted in excess of the board's statutory powers, and that the board had no statutory authority under Wis. Stat. § 62.13(5) to delegate the responsibility for conducting hearings to hearing examiners or other persons not members of the board.
¶ 13. The board appealed, and the court of appeals reversed the circuit court's declaratory judgment. In doing so, the court of appeals found that the board had express statutory authority under Wis. Stat. § 62.13(5)(g) to adopt "a rule permitting a hearing examiner to carry out the tasks delineated in Rule 7.20, including conducting initial and evidentiary hearings and making a report to the board on the examiner's recommendations." Conway, 2002 WI App 135, ¶ 1. The court of appeals considered the legislature's statement of intent in Wis. Stat. § 62.04 was significant. The relevant portion of that statute states:
*12 For the purpose of giving to cities the largest measure of self-government compatible with the constitution and general law, it is hereby declared that ss. 62.01 to 62.26 shall be liberally construed in favor of the rights, powers and privileges of cities to promote the general welfare, peace, good order and prosperity of such cities and the inhabitants thereof.
Wis. Stat. § 62.04 (emphasis added).
¶ 14. Furthermore, the court of appeals did not find Conway's comparison between the tasks of a hearing examiner under Wis. Stat. § 62.13(6m) and Rule 7.20 appropriate, because of the differences in the scope of the hearing examiners' authority. The court of appeals determined that the board was not delegating its duties under Wis. Stat. § 62.13(5) to a hearing examiner by Rule 7.20, because the board, not the hearing examiner, makes the final decision concerning discipline.
¶ 15. The court of appeals concluded that Rule 7.20 came within the board's express authority under Wis. Stat. § 62.13(5)(g) to create further rules for the administration of Wis. Stat. § 62.13(5).
¶ 16. Conway petitioned this court for review of the decision of the court of appeals and asked for reinstatement of the judgment of the circuit court, which held that the board did not have statutory authority to promulgate Rule 7.20. Conway's petition for review was granted on August 23, 2002.
II. ISSUE
¶ 17. This is a case of first impression addressing a board's power to promulgate such administrative rules. The issue presented is whether the board acted within its statutory authority in promulgating a rule, which delegates to private citizens the responsibility for *13 hearing contested cases involving the discipline, including discharge, of firefighters and police officers.
III. STANDARD OF REVIEW
¶ 18. The issue presented involves interpretation of Wis. Stat. §§ 62.01 to 62.26 in order to determine whether Rule 7.20 is a valid exercise of the board's authority. We especially focus on Wis. Stats. §§ 62.04 and 62.13(5).
¶ 19. This court has held that the standard of review applicable in determining whether an administrative rule "exceeds statutory authority" is de novo, although we benefit from the analyses of the circuit court and the court of appeals. Seider v. O'Connell, 2000 WI 76, ¶ 25, 236 Wis. 2d 211, 612 N.W.2d 659. We have also held that "[t]o determine whether an agency has exceeded its statutory authority in promulgating a rule, this court first examines the enabling statute. The enabling statute indicates whether the legislature expressly or impliedly authorized the agency to create the rule." Id., ¶ 70 (citations omitted). An administrative rule exceeds statutory authority if it conflicts with the language of the statute or the statute's legislative intent. Id., ¶ 72.
IV. ARGUMENTS
¶ 20. Conway asks this court to reverse the court of appeals' decision. He argues that the circuit court decision correctly held that Wis. Stat. § 62.13 does not expressly, nor impliedly, authorize the board to adopt a rule providing for hearing examiners.
¶ 21. First, Conway argues that there is no express statutory authority within Wis. Stat. § 62.13(5) for employing a hearing examiner for disciplinary proceedings *14 in cities with populations of 4000 or more. Consequently, Conway contends that, to uphold the court of appeals, this court must construe Wis. Stat. § 62.13 to contain an implied power to delegate board responsibilities. In determining the existence of implied administrative powers, "any reasonable doubt as to the existence of an implied power in an agency must be resolved against the exercise of such authority." Pet'r Br. at 8 (citing Kimberly-Clark Corp. v. Public Serv. Comm'n, 110 Wis. 2d 455, 462, 329 N.W.2d 143 (1983)).
¶ 22. Second, Conway contends that the board's lack of authority to employ hearing examiners becomes apparent when Wis. Stat. § 62.13(5) is compared to other statutes wherein the legislature expressly provides authority for both the promulgation of rules and the use of hearing examiners.[4] Arguing in accord with the decision of the circuit court, Conway emphasizes that the board has not cited any agency rules adopting the use of hearing examiners, unless there is express statutory authority granted by the legislature for such use.
¶ 23. Next, Conway argues that the provision under Wis. Stat. § 62.13(5)(g) to adopt further rules for the administration of Wis. Stat. § 62.13(5) does not *15 include the express or implied power to delegate power to hearing examiners. Conway asserts that if every agency's power to "administer" the statute under its supervision carried the power to engage hearing examiners, then the legislature's separate enactments, specifically permitting particular agencies to hire examiners, would be "surplusage" and run counter to wellestablished rules of statutory construction. Pet'r Br. at 17 (citing Aurora Medical Group v. Dep't of Workforce Dev., Equal Rights Div., 2000 WI 70, ¶ 28 n.18, 236 Wis. 2d 1, 612 N.W.2d 646).
¶ 24. Furthermore, Conway maintains that Rule 7.20 impermissibly delegates to the hearing examiner the duty to make the "just cause" determination or the appropriate disposition.
¶ 25. Finally, Conway argues that the legislature's decision to permit delegation of board obligations to non-commissioners in cities of under 4000 persons excludes, by implication, the possibility that it intended to invest boards in larger cities with such power.
¶ 26. The board disagrees and argues that Rule 7.20 is a valid exercise of the board's authority to create rules for the administration of Wis. Stat. § 62.13(5), relating to disciplinary actions against police officers and firefighters. It maintains that Rule 7.20 is within the scope of the statutory delegation, consistent with Wisconsin case law, and consistent with the purpose of the statute as a whole. Accordingly, the board asks this court to affirm the decision of the court of appeals.
V. ANALYSIS OF WIS. STATS. §§ 62.04 AND 62.13(5)
¶ 27. In this case, both Conway and the board do not dispute that the board is to be treated as an administrative agency. See State ex rel. Smits v. City of DePere, 104 Wis. 2d 26, 37, 310 N.W.2d 607 (1981).
*16 [2]
¶ 28. An administrative agency has only those powers that are expressly conferred or necessarily implied from the statutory provisions under which it operates. Grafft v. DNR, 2000 WI App 187, ¶ 6, 238 Wis. 2d 750, 618 N.W.2d 897, review denied, 2001 WI 1, 239 Wis.2d 774, 621 N.W.2d 630 (2000).
[3, 4]
¶ 29. In order for the board's adoption of Rule 7.20 to be a valid exercise of administrative power, it is necessary that such action: (1) be based upon a proper delegation of power by the legislature, and (2) not constitute an administrative action in excess of that statutorily conferred authority. State Dep't of Admin. v. DILHR, 77 Wis. 2d 126, 133-34, 252 N.W.2d 353 (1997). Thus, in examining whether an agency has exceeded its statutory authority in promulgating a rule, we begin by examining the statute that authorizes the agency to promulgate rules. Seider v. O'Connell, 2000 WI 76, ¶ 70, 236 Wis. 2d 211, 612 N.W.2d 659.
[5-7]
¶ 30. We should first look to the plain language of the statute. State v. Delaney, 2003 WI 9, ¶ 14, 259 Wis. 2d 77, 658 N.W.2d 416; VanCleve v. City of Marinette, 2003 WI 2, ¶ 17, 258 Wis. 2d 80, 655 N.W.2d 113. If the language of the statute is clear and unambiguous, we apply the language to the facts at hand. State v. Polashek, 2002 WI 74, ¶ 18, 253 Wis. 2d 527, 646 N.W.2d 330. In addition, we consider the sections of the statute in relationship to the whole statute and to related sections. State v. Sweat, 208 Wis. 2d 409, 416, 561 N.W.2d 695 (1997). Generally, we construe words and phrases according to common and approved usage, and if necessary, may consult a dictionary. State v. Sample, 215 Wis. 2d 487, 499, 573 N.W.2d 187 (1998); see also *17 Wis. Stat. § 990.01(1). However, such reliance on a dictionary does not mean that the statute is ambiguous. Id.
[8-10]
¶ 31. In deciding whether an administrative agency's rule was promulgated by express authorization from the legislature, we "identify the elements of the enabling statute and match the rule against those elements." Wisconsin Hosp. Ass'n v. Natural Res. Bd., 156 Wis. 2d 688, 706, 457 N.W.2d 879 (Ct. App. 1990). If the rule matches the statutory elements, then the statute expressly authorizes the rule. Id. However, the enabling statute need not spell out every detail of a rule in order to expressly authorize it; if it did, no rule would be necessary. Id. at 705-06. Therefore, whether the exact words used in an administrative rule appear in the statute is neither dispositive nor controlling. Id. at 706.
¶ 32. Next, we examine Wis. Stat. § 62.13(5). As noted previously, the overall purpose of §§ 62.01-26 is found in the language of § 62.04, which states:
For the purpose of giving to cities the largest measure of self-government compatible with the constitution and general law, it is hereby declared that ss. 62.01 to 62.26 shall be liberally construed in favor of the rights, powers and privileges of cities to promote the general welfare, peace, good order and prosperity of such cities and the inhabitants thereof.
Wis. Stat. § 62.04 (emphasis added).
¶ 33. Keeping in mind the legislature's directive that the statute should be liberally construed in favor of the rights, powers and privileges of cities, we turn specifically to Wis. Stat. § 62.13(5)(g), which authorizes the board to make rules for the administration of Wis. Stat. § 62.13(5).
*18 ¶ 34. As listed previously in paragraph 7 of this opinion, and noted by the court of appeals:
The duties specifically vested in the board under Wis. Stat. § 62.13(5) regarding hearings are the following: (1) providing for a public hearing, in which both the accused and the complainant may be represented by an attorney and may compel the attendance of witnesses, § 62.13(5)(d); (2) determining whether there is just cause to sustain the charges applying the standards of § 62.13(5)(em)1-7; (3) determining the appropriate disposition, § 62.13(5)(e); and (4) reducing to writing the findings and determinations and orders of suspension, reduction, suspension and reduction, or removal, § 62.13(5)(f).
Conway v. Bd. of Police and Fire Comm'rs of the City of Madison, 2002 WI App 135, ¶ 12, 256 Wis. 2d 163, 647 N.W.2d 291.
¶ 35. After listing the specific duties of the board, the legislature added: "[f]urther rules for the administration of this subsection may be made by the board." Wis. Stat. § 62.13(5)(g). We must look to see whether Rule 7.20 matches these statutory elements.
¶ 36. Along with the provisions in Wis. Stat. § 62.04, the court of appeals found the broad language of Wis. Stat. § 62.13(5)(g) significant in addressing the board's authority to promulgate Rule 7.20. In its analysis, the court of appeals looked at the word "administration" in Wis. Stat. § 62.13(5)(g) to determine the board's scope of power. Because the word "administration" is not specifically defined in this statutory provision, the court of appeals applied the dictionary definition of the word. See State v. Sample, 215 Wis. 2d 487, 499, 573 N.W.2d 187 (1998). The dictionary defines administration as follows: "[a]dministration is: `5 a: the principles, practices, and rationalized techniques employed *19 in achieving the objectives or aims of an organization.'" Webster's Third New International Dictionary 28 (unabr. 1993).
A. Express Authority
[11]
¶ 37. As noted previously, Conway has argued that Wis. Stat. § 62.13 does not contain statutory language allowing delegation of the board's statutory duties as done in Rule 7.20. For the reasons set forth below, we disagree, and hold that there is express statutory authority supporting the board's power to promulgate Rule 7.20. That rule plainly comes within the board's express authority to promulgate rules for the administration of Wis. Stat. § 62.13(5), and is consistent with the overall purpose of the statutes. The board's authority to enact a rule allowing hearing examiners to conduct evidentiary hearings is grounded in the express authorization in Wis. Stat. § 62.13(5)(g).
¶ 38. Rule 7.20 provides practices and rational techniques employed to aid the board in fulfilling the objective of providing public hearings as required by § 62.13(5). The limited duties of the hearing examiner under Rule 7.20 all relate to administration of the disciplinary proceedings. Specifically, Rule 7.20 assists the board in carrying out its duties under Wis. Stat. § 62.13(5)(d), (e), (em), and (f).
¶ 39. Wisconsin Stat. § 62.13, regulating boards of police and fire commissioners throughout Wisconsin, is a broad generic statute that is meant to be flexible, in order to meet the needs of different cities.
[12]
¶ 40. Wisconsin Stat. § 62.13(5) provides a quasijudicial proceeding with all the elements of "fair play" *20 fundamental to due process in an administrative law setting. Wisconsin Stat. § 62.13(5) broadly outlines the features of the disciplinary process before the board, from complaint filing through findings, determinations, and orders. In addition, the statute as a whole demonstrates a legislative intent to provide due process protections to police officers and firefighters subject to disciplinary proceedings. Efficiency and fairness are the purposes for the disciplinary hearing process. State ex rel. Kaczkowski v. Bd. of Fire & Police Comm'rs, 33 Wis. 2d 488, 148 N.W.2d 44, rehearing denied, 33 Wis. 2d 488, 149 N.W.2d 547 (1967).
[13]
¶ 41. One of the primary purposes for the legislative act providing for the creation of the board was to remove the administration of fire and police departments from city politics and to place it in the hands of impartial and nonpolitical citizen boards. State ex. rel. Pieritz v. Hartwig, 201 Wis. 450, 230 N.W. 42 (1930). None of the elements of due process in quasi-judicial administrative hearings are compromised by the appointment of a hearing examiner for the purposes indicated in Rule 7.20, because the board, not the hearing examiner, makes the final decision and disposition. The board may require further proceedings before the hearing examiner or before the board itself. Due process does not require that evidence be taken before the officer who ultimately decides the matter. Tecumseh Prods. Co. v. Wisconsin Employment Relations Bd., 23 Wis. 2d 118, 126, 126 N.W.2d 520 (1964).
¶ 42. Such a reading of Wis. Stat. § 62.13(5) is consistent with the legislature's statement of intent under Wis. Stat. § 62.04, that the authority of the board under statutes such as Wis. Stat. § 62.13(5) is to be liberally construed.
*21 ¶ 43. As discussed previously, Conway has contended that the board's lack of authority to employ hearing examiners is apparent when Wis. Stat. § 62.13(5) is compared to other statutes.[5] He has argued that the comparison reveals that when the legislature intends to approve of the use of hearing examiners by agencies, it expressly provides authority for both the promulgation of rules and the use of hearing examiners in the relevant legislation.
¶ 44. Conway misstated the holding of the court of appeals when he maintained that:
The court of appeals concluded that implicit in the Board's power to make rules for the purpose of "administering" sec. 62.13 is the power to hire hearing examiners, since such a rule "aid[s] the board in fulfilling the objective of providing public hearings as required by § 62.13(5)" and "assists the board in carrying out its duties under § 62.13(5)(d), (e), (em), and (f)."
Pet'r Br. at 13 (citing 2002 WI App 135, ¶ 13) (emphasis added).
¶ 45. Contrary to Conway's contention, the court of appeals' decision clearly stated that the board had express statutory authority to create Rule 7.20. Conway, 2002 WI App 135, ¶ 15.
¶ 46. We agree with the decision of the court of appeals that the "rule falls squarely within the board's administration of its duties under Wis. Stat. § 62.13(5) and the legislature's express authorization that the board may make rules for that purpose." Conway, 2002 WI App 135, ¶ 15. Since we hold that the board has the express authority to enact Rule 7.20, we need not engage in an analysis of implied authority.
*22 B. Delegation of Authority
[14]
¶ 47. Next, Conway has argued that special qualifications for board appointment prohibit delegation of any of the board's functions to a hearing examiner. The board is composed of an impartial body that operates independently of the city itself. Eau Claire County v. General Teamsters Union Local No. 662, 228 Wis. 2d 640, 650, 599 N.W.2d 423 (Ct. App. 1999), aff'd, 2000 WI 57, 235 Wis. 2d 385, 611 N.W.2d 744. The board is comprised of citizen members who have no direct interest in the outcome of the case, as would a party to the dispute, and appointment of members is designed to prevent the board from operating as an agent of a city official or police or fire chief. Id.
¶ 48. Under Rule 7.20, the board, not the hearing examiner, makes the ultimate decision. Rule 7.20 assists the board in carrying out its duties under Wis. Stat. § 62.13(5)(d), (e), (em), and (f). As such, the hearing examiner is required to provide to the board a comprehensive report, including an evaluation of witness credibility and demeanor, and recommendations for disposition of the matter. In addition, the hearing must be videotaped and a certified transcript prepared. The board may require further proceedings before either the hearing examiner or the board itself.
¶ 49. Conway's argument that the rule permits a hearing examiner to consider procedural motions, the parameters of discovery, and to dismiss the complaint at the initial hearing does not change our holding. The hearing examiner is only able to dismiss the complaint if the complainant fails to appear at the initial hearing. Rule 7.20.
*23 ¶ 50. As noted previously, in administrative proceedings, due process does not require that evidence be taken before the officer who ultimately decides the matter. Tecumseh Prods. Co. v. Wisconsin Employment Relations Bd., 23 Wis. 2d 118, 126, 126 N.W.2d 520 (1964). In a similar vein, we have held that the ability of administrative agencies should not be unnecessarily restricted by the courts. State ex rel. Cities Serv. Oil Co. v. Bd. of Appeals, 21 Wis. 2d 516, 541, 124 N.W.2d 809 (1963). See also Wright v. Indus. Comm., 10 Wis. 2d 653, 103 N.W.2d 531 (1960). Accordingly, our holding in this case is consistent with our precedent emphasizing the importance of providing an administrative agency with the discretion to perform its duties as it sees fit, provided that it is not promulgating rules in excess of statutorily conferred authority. Under Rule 7.20, the board remains the ultimate decision-making authority, and, therefore, has not impermissibly abdicated its duties to a hearing examiner.
C. Comparison of Wis. Stat. § 62.13(5) to Other Statutes
[15]
¶ 51. Finally, Conway has argued that the legislature did not intend to allow cities over 4000 to use hearing examiners. In support of this argument, Conway relied on the case of State v. Deborah J.Z., 228 Wis. 2d 468, 546 N.W.2d 490 (Ct. App. 1999), which held "[i]f a statute contains a given provision, `the omission of such provision from a similar statute concerning a related subject is significant in showing that a different intention existed.'" Pet'r Br. at 20 (citing Deborah J.Z., 228 Wis. 2d 468 at 475-76 (citations omitted)).
¶ 52. Conway has argued that Wis. Stat. § 62.13(6m) contains a clause allowing persons other than the members of a board to "act . . . in place of the *24 board of police and fire commissioners." Pet'r Br. at 20. He has maintained that this clause follows the statutory provisions governing the board in Wis. Stat. § 62.13(1)-(6). Conway has asserted that "[n]owhere in subd. (1)-(6) is there found any language respecting a board's employment of hearing examiners or committees of persons who are not Board members." Pet'r Br. at 20.
¶ 53. We agree with the court of appeals that the statute establishing alternative ways to conduct hearings in cities with a population of less than 4000 (municipalities not required to establish a board of police and fire commissioners) is not persuasive as to whether the board had authority here to enact Rule 7.20.
¶ 54. Conway's argument relying on Deborah J.Z. overlooks the difference between the authority of the hearing examiners under Wis. Stat. § 62.13(6m) and under Rule 7.20. Wisconsin Stat. § 62.13(6m) establishes two alternative ways to conduct hearings in cities that are not required to establish a board of police and fire commissionersa three-member committee or a hearing examiner. Either acts entirely in place of the board under Wis. Stat. § 62.13(5) in all respects. Thus, for example, a hearing examiner under Wis. Stat. § 62.13(6m) has the duty that a board has under Wis. Stat. § 62.13(5) to make the appropriate disposition. It may be reasonable to infer from subsection (6m) that the legislature did not intend that in cities with a board, a hearing examiner could assume all the board's responsibilities under subsection (5). However, this subsection does not indicate that the legislature intended to prohibit the board from delegating to a hearing examiner the tasks the board has identified in Rule 7.20.
*25 ¶ 55. The other statutes listed by Conway are not helpful or persuasive in construing Wis. Stat. § 62.13(5). Wisconsin Stat. § 111.07(5) and Wis. Stat. § 111.70(4)(a) allow the hearing examiner to hear and decide the complaint. As stated above, Rule 7.20 does not purport to delegate to the hearing examiner the authority to make the determination and disposition required under Wis. Stat. § 62.13(5). As noted previously, Wis. Stat. § 62.13, regulating police and fire commissions throughout Wisconsin, is a broad statute that is meant to provide flexibility to meet the needs of different cities and is to be liberally construed. Statutes regulating agencies, like the Department of Workforce Development, are more specific, and are meant to apply the same procedures universally throughout Wisconsin.
¶ 56. Thus, Conway's analogy between cities with populations of less than 4000, which are regulated by Wis. Stat. § 62.13(6m), and cities with populations of 4000 or more, which are regulated by Wis. Stat. § 62.13(1) through (5), is not appropriate. Simply because the legislature has given smaller cities without boards of police and fire commissioners a choice of engaging a hearing examiner for disciplinary proceedings does not mean that the legislature intended that boards in larger cities may not choose to appoint hearing examiners.
¶ 57. Wisconsin Stat. § 62.13(6m) actually shows that the legislature believed that using hearing examiners for disciplinary proceedings was a satisfactory way of complying with Wis. Stat. § 62.13(5), and that such use satisfied the legislature's due process concerns.
¶ 58. Rule 7.20 is based upon a proper delegation of power by the legislature, and does not constitute administrative action in excess of that statutorily conferred authority.
*26 VI. CONCLUSION
¶ 59. In summary, we affirm the decision of the court of appeals. We hold that the City of Madison's Board of Police and Fire Commissioners had the express statutory authority to adopt Rule 7.20, because Rule 7.20 falls within the authority under Wis. Stat. § 62.13(5)(g) to promulgate "rules for the administration" of Wis. Stat. § 62.13(5). Rule 7.20 ensures that the ultimate decision-making authority remains with the board. We are satisfied that Rule 7.20 matches the statutory elements of Wis. Stat. § 62.13(5), and therefore, that the statute expressly authorizes that rule. Our decision is consistent with this court's prior decisions leaving the means of carrying out administrative duties in the hands of the agency involved whenever possible, and with the legislature's intent that Wis. Stat. §§ 62.01 to 62.26, be liberally construed in favor of the rights, powers, and privileges of cities, as long as compatible with the constitution and general law. Our interpretation here is compatible.
By the Court.The decision of the court of appeals is affirmed.
¶ 60. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (dissenting).
I agree with the circuit court that Wis. Stat. § 62.13(5) does not authorize the Board of Police and Fire Commissioners of the City of Madison to promulgate Rule 7.20, delegating to a hearing examiner the responsibility for conducting the initial hearing and the continued evidentiary hearings in a case involving the suspension, reduction in rank, or removal of a subordinate police officer or firefighter.
¶ 61. First, the power to promulgate rules to administer Wis. Stat. § 62.13(5) does not, as the majority asserts, expressly include the power to adopt Rule *27 7.20.[1] The statute simply grants the board the power to make "further rules for the administration of this subsection"[2] and nowhere does it expressly state that these rules may include the delegation of the board's responsibilities to a hearing examiner.
¶ 62. In other statutes, when the legislature intends to permit an administrative agency to delegate its obligation to hear contested cases to a hearing examiner, the legislature not only grants the agency the power to make rules to administer the relevant statute but also expressly grants the agency the power to employ hearing examiners in the relevant legislation.[3] Furthermore, the legislature's decision to permit the delegation of board obligations to non-commissioners in cities of under 4000 persons by express language excludes, by implication, the possibility that it intended to invest boards in larger cities with such power.[4]
¶ 63. Second, it is well-settled that if a rule promulgated by an administrative agency contradicts the language of the statute or the statute's legislative intent, the rule is not reasonable, exceeds the agency's *28 statutory authority, and must be invalidated.[5] The majority opinion announces this rule[6] but then fails to apply it in the present case.
¶ 64. Wisconsin Stat. § 62.13(5)(c) gives police officers and firefighters suspended by the chief the right to request "a hearing before the board"not a hearing before the hearing examiner.[7] Section 62.13(5)(d) then provides that the board must set a date for that requested "hearing" and that the requested "hearing" shall be public.[8] Section 62.13(5)(d) further provides that at the public hearing "both the accused and the complainant may be represented by an attorney and may compel the attendance of witnesses by subpoenas which shall be issued by the president of the board."[9]
¶ 65. The majority reads paragraphs (c) and (d) to vest in the board the mere duty to "provid[e] for a public hearing, in which both the accused and the complainant may be represented by an attorney and may compel the attendance of witnesses."[10] In so doing, the majority ignores the fact that the right granted to subordinates is not just the right to request a public hearing, but the right to request a public hearing "before the board," and that the attendance of witnesses at the hearing is not ominously compelled, but rather compelled by subpoenas issued by the "president of the board." In short, the *29 majority opinion ignores that Rule 7.20 contradicts the language of the statute establishing the presence of the board at the subordinate's hearing and a role for the board in the hearing's procedures.
¶ 66. The majority opinion focuses exclusively on the decision-making authority vested in the board under Wis. Stat. § 62.13(5), paragraphs (e), (em), and (f), when it concludes that Rule 7.20 does not delegate to the hearing examiner any duties vested in the board under Wis. Stat. § 62.13(5). Section 62.13(5), paragraphs (c) and (d), however, make clear that the board's duties are not simply to make ultimate decisions but to participate in the hearing as well.
¶ 67. I also write separately to highlight that today's erroneous decision is the third decision released by this court this term eroding the rights of police officers and firefighters to obtain a just cause hearing before the Board of Police and Fire Commissioners under Wis. Stat. § 62.13(5).[11]
¶ 68. In Kraus v. City of Waukesha Police & Fire Commission, 2003 WI 51, 261 Wis. 2d 485, 662 N.W.2d 294, this court effectively held that Wis. Stat. § 62.13(5)(em) does not protect municipal employees who are promoted subject to successful completion of a period of probation when they are denied that promotion during the period of probation. In City of Madison v. Wisconsin Employment Relations Commission, 2003 WI 52, 261 Wis. 2d 423, 662 N.W.2d 318, this court effectively held that the same statute bars those same municipal employees from collectively bargaining with *30 a municipality under Wis. Stat. § 111.70 to require that a chief's or PFC's decision to deny a promotion be reasonable.
¶ 69. Now, in the present case, where a municipal employee is entitled to a just cause hearing, this court approves the Madison PFC's decision to delegate almost all of its responsibilities to a hearing examiner. Rule 7.20 delegates to a hearing examiner the responsibility for (1) conducting an initial hearing, (2) conducting all continuing evidentiary hearings, (3) ruling on procedural motions, (4) making rulings on discovery issues, (5) setting dates for a hearing, (6) where appropriate, dismissing a complaint filed against a subordinate employee, (7) evaluating witness credibility, and (8) making a preliminary recommendation on disposition of the charges.[12] I think it is fair to say that the likely effect of Rule 7.20 is to transform the board from a decisionmaking body into a reviewing body and eliminate the right of Madison police officers and firefighters to request "a hearing before the board."[13]
¶ 70. As I stated in Kraus, Wis. Stat. § 13.93(2)(d) requires the revisor of statutes to report to the law review committee of the legislature those decisions of this and other courts "in which Wisconsin statutes or session laws are stated to be in conflict, ambiguous, anachronistic, unconstitutional or otherwise in need of revision."[14] I suggest that the just cause provisions of Wis. Stat. § 62.13 are in need of legislative oversight.
¶ 71. For the foregoing reasons, I dissent.
*31 ¶ 72. I am authorized to state that Justices WILLIAM A. BABLITCH and ANN WALSH BRADLEY join this dissent.
NOTES
[1] All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
[2] Rule 7.08 provides guidelines for the initial hearing.
[3] Rule 7.20 specifically states:
a. The Board may engage a Hearing Examiner to conduct the Initial Hearing and the continuing evidentiary hearings.
b. The Hearing Examiner shall conduct and preside at proceedings in conformity with these rules and in consultation with Board counsel. References to the Board in this rule shall be construed to refer to a Hearing Examiner as context requires. c. All evidentiary proceedings conducted by a Hearing Examiners [sic] shall be videotaped and a certified transcript shall be prepared.
d. Promptly following completion of the evidentiary proceedings and receipt of briefs, the Hearing Examiner shall forward the complete record to the Board and shall prepare a comprehensive report including an evaluation of witness credibility and demeanor for review by the Board arid including the recommendations of the Hearing Examiner regarding disposition of the charges. The report of the Hearing Examiner shall be included in the record of the Board proceedings.
e. Promptly following receipt of the Hearing Examiner's report the Board shall convene for deliberations. The Board may require further proceeding before the Hearing Examiner or before the Board. Following the close of any such further proceedings and deliberations the Board shall issue its decision in the matter.
[4] Conway lists the following examples where the legislature expressly allowed administrative agencies to delegate the task of hearing contested cases to other persons: Wis. Stat. § 111.07(5) (relating to unfair labor practices and Wisconsin Employment Relations Commission (WERC)); Wis. Stat. § 111.70(4)(a). Wisconsin Stat. § 111.84(4) (State Employment Labor Relations Act); Wis. Stat. § 111.39(4)(a) (Wisconsin Fair Employment Act); Wis. Stat. § 102.15(3) (Wisconsin Worker's Compensation Act); Wis. Stat. § 102.17(1)(b); Wis. Stat. § 108.14(2m) (Unemployment Insurance Act) and Wis. Stat. § 227.46(1). Pet'r Br. at 10-13 and 15-17.
[5] See supra note 3.
[1] See majority op., ¶¶ 2, 37, 45, 46, 59.
[2] Wis. Stat. § 62.13(5)(g).
[3] See, e.g., Wis. Stat. §§ 111.07(5) (granting the Wisconsin Employment Relations Commission power to make rules to regulate hearings); 111.71(1) (expressly granting WERC the power to employ hearing examiners); 111.375 (granting the Department of Workforce Development the power to make rules necessary to carry out the Fair Employment Act); 111.39(4) (granting the DWD power to employ hearing examiners to assist in effective administration). For more examples, see majority op., ¶ 22 n.4.
[4] See Wis. Stat. § 62.13(6m) (relating to hearings for officers suspended, reduced in rank, or removed in cities of less than 4,000 people).
[5] Seider v. O'Connell, 2000 WI 76, ¶ 73, 236 Wis. 2d 211, 612 N.W.2d 659.
[6] Majority op., ¶ 19 (citing Seider, 236 Wis.2d 211, ¶ 72).
[7] Wis. Stat. § 62.13(5)(c) (emphasis added).
[8] Wis. Stat. § 62.13(5)(d).
[9] Wis. Stat. § 62.13(5)(d) (emphasis added).
[10] Majority op., ¶ 34 (citing Conway v. Bd. of Police and Fire Comm'rs, 2002 WI App 135, ¶ 12, 256 Wis. 2d 163, 647 N.W.2d 291).
[11] See also City of Madison v. WERC, 2003 WI 52, 261 Wis. 2d 423, 662 N.W.2d 318; Kraus v. City of Waukesha Police & Fire Comm'n, 2003 WI 51, 261 Wis. 2d 485, 662 N.W.2d 294.
[12] Majority op., ¶ 8.
[13] Wis. Stat. § 62.13(5)(c).
[14] Wis. Stat. § 13.93(2)(d). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608200/ | 261 Wis.2d 485 (2003)
2003 WI 51
662 N.W.2d 294
Steven E. KRAUS, Plaintiff-Appellant,
v.
CITY OF WAUKESHA POLICE AND FIRE COMMISSION, Defendant-Respondent.
No. 01-1106.
Supreme Court of Wisconsin.
Oral argument September 17, 2002.
Decided May 30, 2003.
*487 For the plaintiff-appellant there were briefs by John F. Fuchs, Paul H. Beard, and Fuchs Snow DeStefanis, S.C., Milwaukee, and oral argument by John F. Fuchs.
For the defendant-respondent there was a brief by Vincent D. Moschella, assistant city attorney, and Curt R. Meitz, city attorney, and oral argument by Curt R. Meitz.
An amicus curiae brief was filed (in the court of appeals) by James R. Korom, Steven B. Rynecki, and *488 von Briesen & Roper, S.C., Milwaukee, on behalf of the Wisconsin Chiefs of Police Association, with oral argument by James R. Korom.
An amicus curiae brief was filed by Scott Herrick and Herrick, Kasdorf, Dymzarov & Twietmeyer, Madison, on behalf of the Board of Police and Fire Commissioners of the City of Madison.
¶ 1. DAVID T. PROSSER, J.
This case is before the court on certification pursuant to Wis. Stat. § (Rule) 809.61 (1999-2000).[1] The appellant, Steven E. Kraus (Kraus), seeks reversal of an order from the Circuit Court for Waukesha County affirming a decision by the City of Waukesha Police and Fire Commission to deny Kraus a hearing under Wis. Stat. § 62.13(5)(em), following his reduction in rank from police sergeant to patrol officer before he completed the one-year probationary period for his promotion.
¶ 2. The issue presented is whether a police officer who is promoted on a probationary basis, but who is thereafter returned to the officer's former rank for failing to successfully complete probation for nondisciplinary reasons, is entitled to a hearing under either Wis. Stat. § 62.13(5)(em) or some other provision of law. In addressing this issue, we must first answer the certified question whether police chiefs and police and fire commissions (PFCs) have the authority to promote officers on a probationary basis.
¶ 3. We hold that police chiefs and PFCs in Wisconsin are authorized to promote subordinates within a department on a probationary basis, provided that the period of probation is reasonable in duration. This power is inherent in the appointment authority granted *489 to police chiefs and PFCs by Wis. Stat. § 62.13(4) and buttressed by PFC rule-making authority in Wis. Stat. § 62.13(6). If, during the probationary period following a promotion, a chief concludes that an officer's performance is inadequate or that some other lawful, nondisciplinary reason militates against the officer serving in the higher rank, the chief and PFC may return that officer to the officer's prior rank without a hearing under § 62.13(5)(em). We also conclude that an officer who is promoted on a probationary basis but returned during the probationary period to his or her prior rank for nondisciplinary reasons, does not possess a constitutionally protected property interest in the higher rank that would require an alternative type of due process hearing.
¶ 4. We therefore affirm the circuit court's decision that the Waukesha PFC proceeded under a correct theory of law when it denied Kraus a § 62.13(5)(em) hearing regarding his reappointment as a patrol officer.
I. BACKGROUND FACTS
¶ 5. Officer Steven E. Kraus joined the City of Waukesha Police Department as a police officer on June 4, 1990. On November 24, 1997, Waukesha Police Chief Leslie Sharrock filed a letter with the City of Waukesha Police and Fire Commission (the PFC) indicating his desire to promote Kraus to the position of sergeant, subject to Kraus successfully completing a one-year probationary period. The PFC thereafter approved Sharrock's recommendation during an open PFC meeting, with Officer Kraus in attendance. The PFC's motion expressly stated that Kraus's promotion, along with that of another officer who was concurrently being *490 promoted to the rank of sergeant, would be subject to successful completion of a one-year probationary period.
¶ 6. About one week before the end of the probationary period, Chief Sharrock informed both Kraus and the PFC by letters that Kraus had failed to successfully complete probation. The Chief stated that Kraus would not become a regular-status police sergeant but instead be reappointed as a patrol officer, subject to the successful completion of a new six-month probationary period.[2] No specific reason was given for Kraus's failure to successfully complete probation, but the letter to Kraus indicated that he was not precluded from seeking promotion in the future.[3]
*491 ¶ 7. On December 3, 1998, Kraus appeared before the PFC to request a "just cause" hearing under Wis. Stat. § 62.13(5)(em).[4] He argued that no authority existed for the Chief and the PFC to promote Kraus on a probationary basis. At Kraus's request, the PFC and the Chief agreed to hold the matter in abeyance until a final decision in Antisdel v. Oak Creek Police & Fire Commission, 2000 WI 35, 234 Wis. 2d 154, 609 N.W.2d 464, which was then pending on appeal.
¶ 8. On May 2, 2000, this court issued its decision in Antisdel, but we expressly declined to answer the specific question raised in Kraus's case. Id., ¶ 26. Twenty days later, Kraus renewed the argument that he was entitled to a Wis. Stat. § 62.13(5)(em) hearing regarding his reduction in rank. The PFC denied Kraus's request and granted the Chief's recommendation to return Kraus to patrol officer status. This conclusion was later memorialized in a written decision issued by the PFC. The PFC's July 6 written decision stated that a hearing was not required because Kraus's failure to satisfy probation was due to performance-based reasons, to which § 62.13(5) is inapplicable.
¶ 9. On June 1, 2000, before the PFC had issued its written decision, Kraus sought a writ of certiorari in the Circuit Court for Waukesha County, J. Mac Davis, Judge, asking the court to order the PFC to give him a due process hearing before returning him to the rank of patrol officer. The circuit court ruled that the PFC *492 proceeded upon a correct theory of law when denying Kraus a § 62.13(5)(em) hearing. The court concurred in the PFC's reasoning and concluded that Kraus was merely a probationary sergeant and that no hearing was necessary because his reduction in rank was for nondisciplinary reasons. Kraus appealed and the court of appeals certified the appeal to this court. We accepted the certification.
II. STANDARD OF REVIEW
[1, 2]
¶ 10. When we review an application for a writ of certiorari, we review the agency's decision (here the PFC's decision), not the decision of the circuit court. See State v. Horn, 226 Wis. 2d 637, 652, 594 N.W.2d 772 (1999). The scope of review is generally limited to whether the agency (1) acted within its jurisdiction; (2) proceeded on a correct theory of law; (3) was arbitrary, oppressive, or unreasonable; or (4) might have reasonably made the order or finding that it made based on the evidence. Antisdel, 234 Wis. 2d 154, ¶ 13 (citing State ex rel. Hennekens v. City of River Falls Police & Fire Comm'n, 124 Wis. 2d 413, 419, 369 N.W.2d 670 (1985)). Because Kraus also appealed to the circuit court under Wis. Stat. § 62.13(5)(i), which calls for a de novo "just cause" determination by the court, we look solely to the first two factors in certiorari reviewnamely, whether the PFC had jurisdiction and whether it acted under a correct theory of law. As in Antisdel, the real issue is whether the PFC proceeded on a correct theory of law when it determined not to apply Wis. Stat. § 62.13(5). Antisdel, 234 Wis. 2d 154, ¶ 13. This is a question we review de novo. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 629, 579 N.W.2d 698 (1998).
*493 III. ANALYSIS
¶ 11. In Wisconsin, newly hired police officers are almost always subject to a one-year probationary period. These probationary officers do not have a property interest in their new positions and are usually subject to discharge during the probationary period without a statement of reasons or a determination of just cause. Kaiser v. Bd. of Police & Fire Comm'rs, 104 Wis. 2d 498, 501, 503, 505-06, 311 N.W.2d 646 (1981).
¶ 12. In practice, police officers are often promoted on a probationary basis as well.[5] However, in Antisdel, this court ruled that when a police officer is promoted subject to probation and then demoted during the probationary period based on disciplinary charges, the officer is entitled to a just cause hearing before the PFC under Wis. Stat. § 62.13(5)(em). Antisdel, 234 Wis. 2d 154, ¶ 25. We concluded that the disciplinary process established in Wis. Stat. § 62.13(5) provides no exception for an officer's probationary status and must be applied, even in the context of probation. Id., ¶ 2.
¶ 13. In the present case, Kraus claims that he, too, is entitled to a "just cause" hearing under Wis. Stat. § 62.13(5)(em) before being returned to his status as a patrol officer, even though his reduction in rank came during the probationary period for promotion. He contends that a § 62.13(5)(em) hearing must be provided before demoting any subordinate officer who has completed the initial probationary period as a new hiree. This protection is required, he argues, regardless of the reason for a subordinate's demotion.
*494 ¶ 14. This precise issue was deferred in Antisdel, when the court said, "We need not, and do not, decide whether we would reach the same decision if the plaintiff were reduced in rank from probationary sergeant to police officer because he failed to meet the level of performance demanded by his superiors or for some other nondisciplinary reason." Id., ¶ 26. We now address this issue.
A. Statutory Authority for Probationary Promotion
¶ 15. As a preliminary matter, we note the question certified to this court: "Does a police chief and a police and fire commission have authority to promote police officers within a department on a probationary basis and, if so, pursuant to what authority?"[6]
¶ 16. Kraus asserts that he was not subject to probation because there is no statute granting either the Chief or the PFC authority to impose a probationary period on newly promoted sergeants. Kraus maintains that, in the absence of express statutory authority for probationary promotion, he attained the permanent rank of sergeant at the moment he was promoted on November 25, 1997.
[3]
¶ 17. We conclude that there is a statutory basis for the PFC to impose probationary periods upon newly promoted officers. Wisconsin Stat. § 62.13(4) grants police chiefs and PFCs broad powers relating to the selection and appointment of subordinates. See Racine Police & Fire Comm'n v. Stanfield, 70 Wis. 2d 395, 402, 234 N.W.2d 307 (1975). The language in subsection (4) *495 and the rule-making authority in Wis. Stat. § 62.13(6) are the source for the Waukesha PFC and Chief Sharrock's shared authority to make promotional appointments on a probationary basis. The fact that Wis. Stat. § 62.13 does not expressly mention probation cannot be interpreted reasonably to mean that the legislature has precluded the use of this common and effective management tool for evaluating candidates. Nowhere has the legislature expressly withdrawn the power of chiefs and PFCs to use probation in promotions.
¶ 18. We note, first, that Wis. Stat. § 62.13(4)(a) grants chiefs of police the authority and duty to "appoint subordinates subject to approval by the board." Wis. Stat. § 62.13(4)(a).[7] The paragraph further provides that such appointments are to be made by promotion from within "when this can be done with advantage." Id. The quoted language anticipates an exercise of judgment: the chief and the PFC are given authority to determine whether qualified officers exist within a department and who among them should be promoted. See Glendale Prof'l Policemen's Ass'n v. City of Glendale, 83 Wis. 2d 90, 102-03, 106-07, 264 N.W.2d 594 (1978). The appointing authorities must be vested with reasonable means to help them exercise sound judgment.
¶ 19. Second, Wis. Stat. § 62.13(6)(a)1. gives the PFC authority to organize fire and police departments and "to prescribe rules and regulations for their control *496 and management." Wisconsin Stat. § 62.13(4)(c) pinpoints PFC authority to classify positions. Together, these provisions authorize the PFC to establish classifications of employees, including probationary employees and probationary promotees.
¶ 20. Third, Wis. Stat. § 62.13(4)(c) grants to the PFC the authority to adopt "rules calculated to secure the best service in the departments" when making appointments. Wisconsin Stat. § 62.13(4)(c) provides:
For the choosing of such list [of candidates for appointment] the board shall adopt, and may repeal or modify, rules calculated to secure the best service in the departments. These rules shall provide for examination of physical and educational qualifications and experience, and may provide such competitive examinations as the board shall determine, and for the classification of positions with special examination for each class. The board shall print and distribute the rules and all changes in them, at city expense.
Wis. Stat. § 62.13(4)(c) (emphasis added).
¶ 21. Even though this paragraph's reference to rules focuses on "the choosing of [a] list" (as opposed to a more discretionary promotion process) as a prelude to appointment, it is broad enough to permit the imposition of a probationary period upon persons who are appointed from the list. Moreover, the paragraph cannot be viewed as stripping PFCs of their power to make rules in connection with other appointments "to secure the best service in the departments." The ultimate objective of any method of appointment is to secure high-quality people to serve the public.
¶ 22. Fourth, both Wis. Stat. § 62.13(4)(c) and (d)[8] address the power to examine candidates for appointment. *497 Paragraph (c) speaks of "the classification of positions with special examination for each class." Paragraph (d) was interpreted in Kaiser, 104 Wis. 2d at 503, to provide "that boards of police shall examine candidates to determine their qualifications."
¶ 23. These paragraphs mention examinations as well as the authority of the PFC to set the scope and nature of the examinations. Probation is a form of examination, and one that is highly effective in the realm of law enforcement. It allows chiefs and PFCs to ascertain whether newly placed subordinates are suited for the positions for which they have been selected.
¶ 24. There is a specific reference to probation for law enforcement officers in another statute. See Wis. Stat. § 165.85(4)(b). This provision prohibits the appointment of a person as a law enforcement officer, except on a temporary or probationary basis, unless the person has already satisfactorily completed a preparatory program of law enforcement training approved by the Law Enforcement Standards Board and been certified by the Board as being qualified to be a law enforcement officer. Id. The principal purpose of this statute appears to be to use probation as a means of enforcing the requirements for law enforcement training. The statute does not require probation for all new law enforcement officers because it does not require probation for fully trained and certified officers.
*498 ¶ 25. At the same time, however, Wis. Stat. § 165.85(4)(c) authorizes the Law Enforcement Standards Board to fix, by rule, "such other minimum qualifications for the employment of law enforcement . . . officers as relate to the competence and reliability of persons to assume and discharge the responsibilities of law enforcement." Using this authority, the Board could establish the completion of a probationary period as a required qualification.
¶ 26. In any event, Wis. Stat. § 165.85(4)(e) pointedly acknowledges that the statute does not preclude any law enforcement agency "from setting recruit training and employment standards which are higher than the minimum standards set by the board." Wis. Stat. § 165.85(4)(e). This language concedes PFC authority to require probation for recruits, even if they are already certified as qualified.
¶ 27. There has long been a question about the source of authority for probation in the hiring of police officers. In Kaiser, this court relied upon Wis. Stat. § 165.85(4)(b), noting that there was no claim that Kaiser had the requisite training or status to be hired as other than a probationary officer. Kaiser, 104 Wis. 2d at 502 n.2. The court also relied upon the provisions of a collective bargaining agreement between the City of Wauwatosa and its nonsupervisory police officers. Id. at 502. There is little doubt that Wis. Stat. § 165.85(4) effectively imposes probation on virtually all new officers in relation to their training and also permits PFCs to require probation to supplement the standards set out in the statute.
¶ 28. Nonetheless, police officer probationary hires predate the enactment of Wis. Stat. § 165.85(4), which took effect in 1970. See § 6, ch. 466, Laws of 1969 *499 (effective March 19, 1970).[9] In addition, Wis. Stat. § 165.85(4) applies only to law enforcement officers, not firefighters. Hence, § 165.85(4) may not be cited as the authority for probationary hires for firefighters, even though firefighters are often subject to probation after being hired.[10] Consequently, there must be some additional source of authority for probationary hires for law enforcement officers and firefighters besides § 165.85(4).
¶ 29. The origin of police and fire commissions dates back more than a century. In 1897 the legislature approved Chapter 247, an act to establish a board of police and fire commissioners in cities of the second and third class. The chapter included the following provisions:
Section 2. After this act goes into effect, no person shall be appointed to any position, either on the police force or in the fire department in any such city except with the approval of the board.
Section 3. As soon as possible after the first members of said board shall enter upon their offices in any city, said board shall prepare and adopt such rules and *500 regulations to govern the selection and appointment of persons to be thereafter employed in either the police or fire department of such city, as in the judgment of said board shall be adapted to secure the best service for the public in each department. Such rules and regulations shall provide for ascertaining, as far as possible, the physical qualifications, the educational qualifications, and habits, and the reputation and standing and experience of all applicants for positions, and they may provide for the competitive examination of all applicants, in such subjects as shall be deemed proper, for the purpose of best determining their qualifications for the positions sought. Such rules and regulations may provide for the classifications of positions in the service and for a special course of inquiry and examination for candidates for each class. All rules and regulations adopted shall be subject to modifications or repeal by the board, at any time.
§§ 2-3, ch. 247, Laws of 1897 (emphasis added).
¶ 30. The language in Section 3 was clearly broad enough to authorize probationary appointments. It was part of Wisconsin law approximately eight years before the legislature required probationary periods for most state employees. See § 9, ch. 363, Laws of 1905.
¶ 31. In 1921 the legislature consolidated, renumbered, and revised the statute relating to PFCs, creating Wis. Stat. § 62.13. See §§ 53-60, ch. 242, Laws of 1921. The revision caused the specific rule-making authority for selection and appointment to become less explicit. Nonetheless, the 1921 revision retained sweeping authority, set out elsewhere in the same statute, "[t]o prescribe rules and regulations for the control and management of said departments." Wis. Stat. § 959-40m (1919); Wis. Stat. § 62.13(6) (1921). Consequently, *501 there is scant evidence that the 1921 legislature intended to narrow the rule-making authority of PFCs.
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¶ 32. We acknowledge that the powers of government agencies are generally limited to those conferred expressly or by fair implication by statute. See GTE N. Inc. v. Pub. Serv. Comm'n, 176 Wis. 2d 559, 564, 500 N.W.2d 284 (1993) (citing Mid-Plains Telephone v. Pub. Serv. Comm'n, 56 Wis. 2d 780, 786, 202 N.W.2d 907 (1973)). We believe, however, that the authority for probationary hires is fairly implied in the appointment power found in Wis. Stat. § 62.13(4) and buttressed by the rule-making authority in Wis. Stat. § 62.13(6). The power to examine and appoint police officers and fire-fighters implies authority to use reasonable tools to facilitate the power for lawful objectives.
¶ 33. Probationary periods have been part of prudent hiring and sound management for many years.[11]*502 We see no reason why appointing authorities may not rely on probationary promotions as well as probationary hires, using the same statutory authority, because both probationary periods are a reasonable means to implement the appointment power "to secure the best service in the departments." See Wis. Stat. § 62.13(4)(c). The practice of promotional probation is consistent with the statement of policy articulated in Wis. Stat. § 165.85(1).[12]
*503 ¶ 34. The authority to use probationary periods as part of the appointment process is not undermined by the absence of specific language regarding probation in Wis. Stat. § 62.13(4). Numerous management tools integrally related to appointment, such as interviews, references, and letters of recommendation, are not expressly enumerated in that statute. These tools are not forbidden simply because they are not enumerated.
¶ 35. We suspect the legislature did not provide explicit statutory authority for probationary periods for law enforcement officers before 1970 because the practice of imposing probation developed naturally without legislation. Public employees, like private sector employees, were employed at will until the legislature began to create statutory protections for them. There was no need to authorize probationary periods before these protections were enacted. Later, probationary periods were used in tandem with employment protections because they made statutory employment protections rational.
¶ 36. Kraus's primary argument against PFC authority to promote on a probationary basis is founded upon an incorrect negative inference that is based upon a misinterpretation of applicable law. Kraus points to the language regarding police officer probation found in Wis. Stat. § 165.85. Under sub-section (4), entitled "Required standards," the legislature has outlined various mandatory training and qualification requirements for newly hired law enforcement personnel in the state. In particular, Wis. Stat. § 165.85(4)(b)1. provides:
No person may be appointed as a law enforcement or tribal law enforcement officer, except on a temporary or probationary basis, unless the person has satisfactorily completed a preparatory program of law enforcement training approved by the board and has been *504 certified by the board as being qualified to be a law enforcement or tribal law enforcement officer. . . . The period of temporary or probationary employment established at the time of initial employment shall not be extended by more than one year for an officer lacking the training qualifications required by the board. The total period during which a person may serve as a law enforcement and tribal law enforcement officer on a temporary or probationary basis without completing a preparatory program of law enforcement training approved by the board shall not exceed 2 years . . . .
Wis. Stat. § 165.85(4)(b)1. (emphasis added).
¶ 37. Kraus contends that, inasmuch as § 165.85(4)(b) requires one year of probation for all newly hired law enforcement officers, the Wisconsin Statutes do not permit probationary status for any officers who are not within one year of having been hired. The use of probation, he argues, is confined to that period.
¶ 38. We disagree. The statute does not require that newly hired law enforcement officers go through a one-year probationary period if they have fully satisfied state training requirements and been properly certified before they are hired. As a result, there is little force to the argument that the legislature insisted on probation for new law enforcement hires and prohibited probation for everyone else. That argument, of course, would exclude probation for firefighters altogether. Even if the gist of the law enforcement training statute were to require probation for all newly appointed law enforcement officers, it would not follow that these are the only circumstances in which probationary appointment is permitted. The statute's silence on the use of probationary periods in other circumstances implies no more *505 than that state law does not require probationary periods for promotional appointments and in certain other contexts.[13]
¶ 39. Public policy strongly supports allowing chiefs of police and PFCs to use probationary promotions. Probationary periods are an effective means of securing quality law enforcement in this state. As we first expressed in Kaiser when analyzing Wis. Stat. § 62.13(4), "There is no doubt that the use of a probationary period is an excellent means of examining candidates and is well-suited to securing the best service available. It enables the board to better evaluate a potential officer's skill and character. Probation is a continuation of the hiring process." Kaiser, 104 Wis. 2d at 504.[14] While the analysis in Kaiser involved newly hired police officers, we view probation as a continuation *506 of the entire appointment process, including promotion, not just the initial hiring process.
¶ 40. Kraus maintains that Kaiser's rationale is inapplicable because a chief has ample opportunity to observe candidates for promotion who have previously worked within the department and to adequately evaluate their skills, performance, and competence based on this observation. Thus, he reasons, it is not necessary, as a matter of public policy, to subject promotees to probation in order to promote in a manner "calculated to secure the best service in the departments."
¶ 41. We find Kraus's depiction of the rigors of selecting qualified individuals to serve in a supervisory capacity in law enforcement too simplistic. Although a lot may be gleaned from an individual's history as a patrol officer, it is difficult to assess with any certainty how the officer's traits and knowledge at the lower rank will translate into the skills needed to perform well as a sergeant. The higher position requires skills, such as leadership and supervision, that may not be manifested during an officer's tenure on patrol duty. "The probationary period is definitely a part of the promotional process and may very well be the only real safeguard a department has against being saddled with officers who are unsuited to fill supervisory roles." Benjamin Shimberg & Robert J. di Grazia, Promotion, in Police Personnel Administration 122 (O. Glenn Stahl & Richard A. Staufenberger eds., 1974).
¶ 42. Some years ago, the superintendent of the Ohio State Highway Patrol observed that, prior to the advent of police schools, field instruction constituted "practically the whole training process." George Mingle, Police Personnel Evaluation and Development, 30 J. Crim. L. & Criminology 277, 277 (1946). He explained *507 that the Highway Patrol had developed a checklist of criteria by which to evaluate officers.[15]
*508 ¶ 43. The superintendent observed that some of the factors, like honesty, loyalty, and courage, "appear to be strictly personal qualities which have a direct bearing on a [person's] value as a police officer." Id. at 283. "Others have to do with some particular skill or ability[]." Id. "The qualities of leadership, organization and direction of work, and discipline, are some which . . . particularly apply to supervisory officers." Id. (emphasis added).
¶ 44. We agree with the description of sergeants supplied by the Waukesha PFC, as stated in its brief before this court:
Sergeants who are promoted from the ranks face a difficult transition. They go from labor to management. They are now asked to assert discipline and control over employees who were recently their equals. They are asked to assign officers to different tasks, some desirable, some not so desirable. They must do performance evaluations for the patrol officers under their command. They must order their former fellows to re-write poorly written reports. They must tell them when, where, and how long they can take lunch breaks. They may order them to increase traffic enforcement activities. They must properly supervise on-scene crime investigations.
*509 ¶ 45. The Waukesha PFC's description is confirmed in a recent text on police supervision, which states:
Many sergeants (due to insecurity, immaturity, poor training, or the inability to cope with criticism) fear the thought of judging their subordinates and use all sorts of excuses to avoid it. They claim that it takes too much time away from their other duties, strains personal relationships, is ignored by management, and is almost always perceived by fellow employees as an unwarranted intrusion in their professional lives. These rationalizations are unacceptable. Sergeants must be prepared to accept responsibility for meaningful performance appraisal.
Harry W. More, et al., Effective Police Supervision 188 (3d ed. 1999).
¶ 46. The evaluation of supervisory personnel may be more difficult than the evaluation of patrol officers. O.W. Wilson (1900-1972), the legendary Dean of the School of Criminology at the University of California, Berkeley, and Superintendent of Police in Chicago, wrote that the complexity in the evaluation of police personnel "derives from the fact that they involve the appraisal of human qualities." O.W. Wilson, Problems in Police Personnel Administration, 43 J. Crim. L. & Criminology 840, 840 (1953). He added:
The need for more than average intelligence in police service stems from the necessity of dealing with extremely complex situations and of matching wits with malefactors, some of whom are extremely intelligent though frequently otherwise deficient. The need for high ethical standards springs from the nature of police work; it involves dealing with many persons who are ethically deficient; it also frequently presents unusual opportunities and temptations that require more *510 than average moral stamina to withstand. The need for emotional stability arises from the grave nature of the responsibilities that are imposed on policemen and the authority that is theirs. The need for a suitable personality grows from the fact that the principal duties of policemen involve dealing with other personsgetting them to conform to regulations and to do what the policeman wants with minimum friction and resentment.
Id. at 841.
¶ 47. These passages underscore the value of probation in evaluating both supervisors and officers and the reasonableness in doing so to effect statutory objectives.
¶ 48. To sum up, pre-employment training and non-supervisory patrol duty do not necessarily predict a person's actual performance in a supervisory capacity. We conclude that Wis. Stat. §§ 62.13(4) and 62.13(6), as well as sound public policy, support probationary promotions in municipal police departments.
B. Due Process Hearings For Reductions In Rank Constitutional Claims
¶ 49. Having concluded that chiefs and PFCs possess authority to promote officers on a probationary basis, we turn to the question whether these officers are entitled to a due process hearing if they are returned to their previous rank, during their probationary period, for nondisciplinary reasons. A law enforcement officer seeking such a hearing must rely on some constitutional protection or statutory right if the hearing is not required by a collective bargaining agreement.
¶ 50. The constitutional basis for a due process hearing for public employees was described in Board of Regents v. Roth, 408 U.S. 564 (1972). The Court explained *511 that the requirements of procedural due process apply to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. Id. at 569. When these protected interests are implicated, the right to some kind of prior hearing is paramount. Id. at 569-70. To determine whether due process arguments apply, we look to the nature of the interest at stake. Id. at 571-72.
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¶ 51. An employee's "liberty" interest may involve the employee's standing in the community. Id. at 573. Where a "person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971). But see Weber v. City of Cedarburg, 129 Wis. 2d 57, 73, 384 N.W.2d 333 (1986) ("Reputation by itself is neither liberty nor property within the meaning of the due process clause of the fourteenth amendment."). In such a case, a due process hearing will accord the employee an opportunity to refute the charge. Roth, 408 U.S. at 573.
¶ 52. In Roth, no charges were leveled against David Roth when his contract as a professor was not renewed. Id. No reason for the employee's non-retention was given. Id. at 568. The Court concluded that Roth had no right to a hearing on the decision not to rehire him, because the government had not made any charge that might damage his standing and association in the community. Id. at 573.
¶ 53. In this regard, Kraus's position is similar to Roth's. Chief Sharrock did not level any charges of misconduct, dishonesty, or immorality against Kraus. The Roth court stated that, "It stretches the concept too far to suggest that a person is deprived of `liberty' when *512 he simply is not rehired in one job but remains as free as before to seek another." Id. at 575. Likewise, a law enforcement officer's "liberty" interest is not implicated if the officer is returned to his former rank, during a probationary period, when the chief merely determines that the officer has not satisfied the chief's requirements for a permanent promotion. Kraus's reduction in rank for nondisciplinary reasons did not impair any "liberty" interest he had, and he was not entitled to a due process hearing on that basis.
¶ 54. The Roth Court also examined Roth's claim that he had been deprived of a property interest. It acknowledged that the Fourteenth Amendment protects a public employee against the deprivation of an acquired property interest without due process safeguards, but it stated: "To have a property interest in a benefit, a person must clearly have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id. at 577.
¶ 55. The Court declared that the existence of a property right is determined by state law. Id. at 577; see also Bishop v. Wood, 426 U.S. 341, 344 (1976); Milwaukee Dist. Council 48 v. Milwaukee County, 2001 WI 65, ¶ 50, 244 Wis. 2d 333, 627 N.W.2d 866. Roth's property interest in his employment was created and defined by the terms of his appointment. Roth, 408 U.S. at 578. His appointment was for one year. Id. It did not provide for contract renewal absent "sufficient cause." In these circumstances, the Court said, Roth "did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment." Id. (emphasis added).
*513 ¶ 56. Kraus's situation is again similar to Roth's. Kraus had no right to a promotion, and when he was promoted to sergeant, his promotion was conditioned upon his successful completion of probation.[16] Kraus had a unilateral expectation that his promotion would be permanent, but he did not have an entitlement to that promotion. He fundamentally misconstrues the scope of the property interest that he obtained by virtue of becoming a permanent police officer.[17] Kraus possesses a property interest only in his continued employment as a patrol officer, not in the rank of sergeant. See Roth, 408 U.S. at 578 (holding that the terms of a public employee's appointment secured no interest in reemployment the following year, that such employee had only an abstract interest in being rehired); Kaiser, 104 Wis. 2d at 505 (holding that a probationary police officer under § 165.85(4)(b) had no more than a unilateral expectation of fulfilling the year and being hired as a permanent officer).
*514 [6]
¶ 57. It is only after an officer completes the probationary period for a position, including a promotion, that a property interest arises in that position. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-41 (1985). Thus, Kraus must look for a statutory right to a hearing because he cannot rely on a constitutional protection on the facts of this case.
C. Due Process Hearing For Reduction In Rank Statutory Claim
¶ 58. Kraus asserts the right to a hearing under Wis. Stat. § 62.13(5). This provision spells out the procedure for "Disciplinary Action Against Subordinates." Wisconsin Stat. § 62.13(5)(em) provides, in part, that "No subordinate may be suspended, reduced in rank, suspended and reduced in rank, or removed by the board under par. (e), based on charges filed . . . unless the board determines whether there is just cause, as described in this paragraph, to sustain the charges." Wis. Stat. § 62.13(5)(em) (emphasis added).
¶ 59. In Antisdel, we analyzed the factors in the statute to determine if probationary sergeant James Antisdel was entitled to § 62.13(5)(em) protections. Tracking the statute's language, we stated, "Wisconsin Stat. § 62.13(5)(em) requires that an employee seeking the procedural protections of that section [1] be a `subordinate' [2] who `is suspended, reduced in rank, . . . or removed . . . [3] based on charges [4] filed . . . by the chief.'" Antisdel, 234 Wis. 2d 154, ¶ 19. We concluded that Antisdel satisfied all the factors.
*515 ¶ 60. Antisdel was on probation, but there was no dispute that he was disciplined.[18] This court determined that an officer who is subjected to "a disciplinary charge" fits within the boundaries of Wis. Stat. § 62.13(5)(em), even if the officer has probationary status. Antisdel, 234 Wis. 2d 154, ¶ 25. This conclusion is consistent with the observation in Larson v. City of Tomah, 193 Wis. 2d 225, 532 N.W.2d 726 (1995), that:
Under sec. 62.13(5), every police officer who is disciplined by a superior in the department is entitled to have the disciplinary action reviewed by the city's police and fire commission. If the commission sustains the disciplinary action, it must make written findings and determinations. Sec. 62.13(5)(f). The aggrieved officer may then appeal from the commissioner's order to the circuit court. Sec. 62.13(5)(i).
Id. at 231-32. It is also consistent with the need to provide an opportunity to vindicate an employee's "liberty" interest, as discussed in Roth. Roth, 408 U.S. at 573.
¶ 61. Kraus contends that he, too, satisfies the factors in Wis. Stat. § 62.13(5)(em) and should have been afforded a "just cause" hearing.
¶ 62. As to the first factor, Kraus was clearly a "subordinate," as that term has come to mean all police officers besides the chief of police. See Kaiser, 104 Wis. 2d at 503; see also Antisdel, 234 Wis. 2d 154, ¶ 20. Second, Kraus was "reduced in rank" as that phrase is *516 understood in the context of § 62.13(5)(em). See Antisdel, 234 Wis. 2d 154, ¶¶ 21-22. In addition, Kraus's demotion was recommended in writing by the Chief. Consequently, if the Chiefs letter constituted a "charge," the fourth factor was met. In short, the applicability of the statute appears to hinge on whether "charges" were filed against Kraus.
¶ 63. Wisconsin Stat. § 62.13(5)(a), (b), (c), (d), (e), (em), (h), (i), and (j) all refer to "charges." The term is not defined, but Kraus contends that it should be interpreted expansively to include all determinations leading to demotion or a negative job action. We disagree.
¶ 64. The term "charges" commonly denotes an accusation of misconduct or of a violation of laws, rules, or policies. The contextually relevant dictionary definition of the term is "a claim of wrongdoing; an accusation." The American Heritage Dictionary of the English Language 322 (3d ed. 1992). Evaluating a person's job performance as unsatisfactory or not up to expectation, or otherwise determining that a person is not fully suited to a supervisory position, is quite different from "charging" a person with some breach of duty or violation of a rule or order.
¶ 65. The statute itself is captioned "Disciplinary Actions Against Subordinates." This title implies a distinction between disciplinary actions and nondisciplinary actions. In Kaiser, we noted that "Kaiser was not disciplined; he was terminated as not suited for service as a police officer." Kaiser, 104 Wis. 2d at 503.[19] We went on to say that Wis. Stat. § 62.13(5) "applies to disciplinary *517 actions." Id. at 502; see also Eastman v. City of Madison, 117 Wis. 2d 106, 115, 342 N.W.2d 764 (Ct. App. 1983) ("Section 62.13(5) on its face only applies to proceedings of a disciplinary nature.").[20]
*518 [7]
¶ 66. The statute speaks of adverse personnel actions that may be taken "as a penalty" when "charges are sustained" against "the accused." Wis. Stat. § 62.13(5)(a), (c), (e). Paragraph (em) then outlines the standards for finding "just cause" to sustain the charges, and it repeatedly refers to whether rules and orders were "violated" by the disciplined subordinate.[21] This language clearly points to proceedings based upon allegations of misconduct or rule violation. Hence, while *519 Kraus argues that the Antisdel decision cannot be cited for the proposition that officers demoted for nondisciplinary reasons are not protected by § 62.13(5), the statute itself can be cited for that proposition.[22]
¶ 67. Quite simply, Kraus was not "charged" with violating any rule. He was returned to his former rank before his probationary period ended for performance reasons. This action was taken because Kraus did not satisfy his chief's expectations for him as a police sergeant. Similar to the officer in Kaiser, Kraus was judged as unsuited for service as a police sergeant. See Kaiser, 104 Wis. 2d at 503 ("Kaiser . . . was terminated as not suited for service as a police officer").
¶ 68. After Antisdel, we cannot interpret every suspension, reduction in rank, or removal as "discipline" without emasculating the concept of probation and *520 making logically inexplicable an officer's removal without hearing on such grounds as a budgetary shortfall. Hearings are required for some negative job actions that are not disciplinary, especially for subordinates who have an established property interest, but these hearings are not governed by Wis. Stat. § 62.13(5)(em).
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¶ 69. In sum, disciplinary charges were not levied against Kraus. Upon recommendation of the Chief, the PFC determined that Kraus's performance was not equal to the performance it expected of its supervisory officers. This largely unstated assessment was not a disciplinary "charge" and thus Kraus's reduction in rank was not a "penalty." Consequently, Wis. Stat. § 62.13(5) did not apply to the PFC's decision, and no "just cause" hearing under Wis. Stat. § 62.13(5)(em) was required.
D. The Waukesha PFC Rule
¶ 70. Even if PFCs have the general authority to promote on a probationary basis, Kraus disputes that the Waukesha PFC sufficiently invoked this authority in its rules.
¶ 71. The Waukesha PCF has promulgated a set of Departmental Rules to govern its actions, including Rule 25, entitled "Appointment and Promotional Procedures."[23] Rule 25 delineates each of the available ranks within the department. Then, under a section headed "General Information," the Rule provides: "1 Probationary periods for each of the above positions, *521 except for `Temporary Assignments,' will be in accordance with current labor contracts and/or as prescribed by the Chief of Police." Police sergeants in Waukesha are not subject to a collective bargaining agreement. Thus, Rule 25 provides that probationary periods for sergeants and other supervisory ranks will be "as prescribed by the Chief of Police."
¶ 72. Kraus maintains that the preceding language from PFC Rule 25 is insufficient to serve as a rule governing probationary promotions. He notes that a separate Departmental Policy on the subject of promotion makes no mention of probationary periods. According to Kraus, this Policy states: "The Chief of Police shall determine the effective date of the promotion and the specific assignment if not previously announced in the vacancy notice. Each promotion shall be contingent upon the candidate(s) successfully passing a physical examination and a drug screen as well as being approved by the Fire and Police Commission."
¶ 73. The Departmental Policy statement that promotions are contingent upon successfully completing a physical exam and drug test is not an exhaustive enumeration of the criteria upon which promotion may be conditioned. It may not and does not supersede the PFC rule. Furthermore, the Policy statement requires that promotions be approved by the PFC, and may be read as incorporating any approved examination requirements outlined in Wis. Stat. § 62.13(4)(c) and (d). Finally, although Rule 25 is not detailed, it unambiguously states that the Chief may prescribe the terms of probation when promotions are made. Consequently, Kraus's contention that the Waukesha PFC rule is inadequate is without merit. The fact that the rule gives very broad discretion to the Chief of Police does not render the rule insufficient.
*522 [9]
¶ 74. We are sensitive to the concern that Rule 25 provides no time limit to the probationary periods set by the Chief. Considering that the authority to promote on a probationary basis is inherent in the appointment power and fairly implied by Wis. Stat. § 62.13(4), rather than expressly provided in the statute, the authority exercised must be reasonable. One factor of reasonableness is the duration of the probationary period. Clearly, a probationary period that extends indefinitely, or for an inordinate length of time, or that may be renewed indefinitely, could effectively restrict an officer from ever achieving the permanent rank of sergeant. Such a practice could take the inherent appointment authority too far. How reasonableness will operate on the margins, we need not and do not decide. We conclude only that a one-year probationary period for an officer who is newly promoted to the rank of sergeant is a reasonable use of the appointment authority in Wis. Stat. § 62.13(4).
¶ 75. In sum, we conclude that Rule 25 of the Waukesha PFC Rules sufficiently invokes the authority granted under Wis. Stat. § 62.13(4) for chiefs of police and PFCs to promote on a probationary basis.
IV. CONCLUSION
¶ 76. Wisconsin Stat. § 62.13(4)(a) and (c) grant Wisconsin police chiefs and police and fire commissions the authority to promote subordinates subject to a probationary period that is reasonable in duration. The authority is buttressed by the broad rule-making authority given to PFCs under Wis. Stat. § 62.13(6). Using this statutory authority, the Waukesha Police and Fire Commission has developed Departmental Rule 25, *523 which grants its police chief the ability to establish probationary periods for supervisory personnel.
¶ 77. We hold that Wis. Stat. § 62.13(5)(em), by its very terms, applies only to disciplinary actions that lead to the suspension, reduction in rank, or removal of police officers. Steven Kraus was not disciplined. In addition, a municipal police officer promoted on a probationary basis has no more than a unilateral expectation of being permanently appointed to that higher rank and, therefore, does not possess a property interest in that position. A chief and PFC may demote a probationary promotee for nondisciplinary reasons without either a hearing under § 62.13(5)(em) or a hearing that satisfies constitutional due process. Therefore, the PFC was not obligated to afford Steven Kraus a just cause hearing when it approved the Chief's determination that Kraus did not successfully complete his probationary period as a newly promoted sergeant.
By the Court. The decision of the circuit court is affirmed.
¶ 78. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (dissenting).
This court releases two decisions today[1] that, read together, hold that when a police officer or firefighter is promoted contingent upon the successful completion of a period of probation, the promotion may be denied for a completely false, irrational, or unsubstantiated reason before the end of the probationary period, even if:
(1) the actual reason for denying the promotion is disciplinary and is subject to the just cause *524 provisions of Wis. Stat. § 62.13(5)(em); and
(2) a collective bargaining agreement negotiated pursuant to Wis. Stat. § 111.70 requires that the denial be reasonable.
¶ 79. In the present case, this court holds that the just cause protections of Wis. Stat. § 62.13(5)(em) apply only to "disciplinary" actions that lead to the reduction in rank of police officers, citing Antisdel v. Oak Creek Police & Fire Commission, 2000 WI 35, 234 Wis. 2d 154, 609 N.W.2d 464, not to "nondisciplinary actions" such as the failure to successfully complete probation due to poor performance. Furthermore, according to the majority opinion, the officer in question, Steven Kraus, was not "disciplined" and thus not entitled to a just cause hearing.[2]
¶ 80. In short, the language of Wis. Stat. § 62.13(5) alone does not resolve whether just cause hearings are available to officers returned to their prior rank for "nondisciplinary" reasons. The statute can be read to support both Kraus's interpretation and the majority opinion's interpretation. Given this ambiguity, I conclude that Kraus's interpretation must prevail. The distinction drawn by the majority between disciplinary and nondisciplinary is illusory. Police chiefs and Police and Fire Commissions can avoid just cause hearings in all cases where a promoted officer is returned to his prior rank before completing a period of probation, as a result of this decision, by simply labeling the reason for the return to prior rank "nondisciplinary." This decision therefore effectively overrules Antisdel.
¶ 81. The majority opinion asserts that the plain language of Wis. Stat. § 62.13(5)(em) compels its conclusion *525 that a police officer who is promoted on a probationary basis and thereafter returned to his former rank for "nondisciplinary" reasons is not entitled to a just cause hearing. According to the majority, the language of § 62.13(5) "clearly"[3] refers only to situations in which an officer's reduction in rank results from a "charge"[4] and the adverse personnel action is a "penalty"[5] for "an accusation of misconduct or of a violation of laws, rules or policies."[6] Therefore, according to the majority opinion, Kraus is not entitled to a just cause hearing: he was returned to his former rank for performance reasons and not "charged" with violating any rule; he was not subject to "charges," no penalty was imposed on the basis of an accusation of misconduct or of a violation of laws, rule or policies; and he was not "disciplined."[7]
¶ 82. I do not agree that the language of § 62.13(5)(em) so clearly affords greater protection to officers who fail to complete their period of probation for "disciplinary" reasons than those officers who do not complete probation for "nondisciplinary" reasons. To my mind, the language of § 62.13(5) can just as easily be read to provide just cause hearings for officers returned to their prior rank for "nondisciplinary" reasons, before completing probation.
¶ 83. The majority opinion rests its position to a large extent on the word "charges" found in the statute. To understand what is meant by "charges," the majority *526 opinion resorts to the dictionary definition of the word and concludes that it refers to a claim of wrongdoing or an accusation.[8]
¶ 84. This definition of the word "charges" does not, however, render the statute inapplicable to Kraus. Here, the police chief made "an accusation" that Kraus "[did] not successfully complete[] the probationary period for regular promotion to the rank of Police Sergeant."[9] Moreover, not successfully completing the probationary period, that is, incompetence, implicates wrongdoing. According to the dictionary, wrongdoing means doing wrong. A person who does not do a job competently is doing something wrong.
¶ 85. In addition, nothing in the language of § 62.13(5)(em) itself limits just cause hearings to accusations of violations of laws, rules, or policies. The section reads:
No subordinate may be suspended, reduced in rank, suspended and reduced in rank, or removed by the board under par. (e), based on charges filed by the board, members of the board, an aggrieved person or the chief under par. (b), unless the board determines whether there is just cause, as described in this paragraph, to sustain the charges.[10]
¶ 86. Finally, the use of words like "charges" and "accused" and "violated" in other paragraphs under Wis. Stat. § 62.13(5) is not necessarily evidence that the statute applies only to allegations of misconduct or rule violations. Wisconsin Stat. § 59.26, which governs the demotion of incompetent deputy sheriffs during probationary *527 periods, proves this point. Section 59.26(8)(b)2, like § 62.13(5), speaks in terms of "the accused" and "charges"[11] even though § 59.26 governs a just cause hearing on both disciplinary issues and issues related to a deputy's inability to competently perform his or her duties.[12] Even when a demotion is based on incompetence, § 59.26 requires that "just cause" be shown to "sustain the charges," and it repeatedly refers to rules and orders being "violated" by the subordinate, just as § 62.13 does.[13]
¶ 87. Thus, there is nothing about the statutes' use of the word "charges" that necessarily prevents Kraus from obtaining a just cause hearing in this case.
¶ 88. Furthermore, there is additional support in the language of Wis. Stat. § 62.13(5)(em) for Kraus's conclusion that no reduction in rank should be imposed unless the board determines there is "just cause" to *528 sustain the chief's accusation that he failed to successfully complete the probationary period. The majority opinion concludes that the phrase "disciplinary actions against subordinates" refers to the grounds for the disciplinary action. It is equally defensible, however, to read the phrase to establish instead the forms of punishment for an officerthat is, the types of disciplinary actions (suspension, demotion, or removal) that might be taken against an officer and the procedure for taking them.
¶ 89. Indeed, courts in Wisconsin have divided over the proper interpretation of this statute. In Kaiser v. Board of Police & Fire Commissioners, 104 Wis. 2d 498, 311 N.W.2d 646 (1981), this court held that § 62.13(5) applies to disciplinary actions, not to decisions to terminate probationary new hires as not suited for service as a police officer.[14] More recently, in Hussey v. Outagamie County, 201 Wis. 2d 14, 548 N.W.2d 848 (Ct. App. 1996), the court of appeals rejected this interpretation as "an inaccurate characterization of the statute. A reading of s. 62.13(5) reveals that among the disciplinary choices are suspension, demotion or removal."[15]
¶ 90. The majority opinion today dismisses the Hussey interpretation in conclusory fashion, stating simply that whether a job action is disciplinary is not determined by the consequences of the action but by *529 whether a "charge" is filed by the chief to impose the "penalty."[16] I cannot agree that this interpretation carries the day.
¶ 91. The first line of Wis. Stat. § 62.13(5)(a) grants permission to suspend a subordinate as a penalty. It says nothing about the grounds for suspension, only that suspension is a permissible form of penalty. The second line adds, "the subordinate may also be suspended by the commission pending the disposition of charges filed against the subordinate."[17] Again, the statute references a procedure for disciplining, not what type of behavior creates the grounds for taking that action.
¶ 92. In addition, Wis. Stat. § 62.13(5m)(c) further supports the Hussey interpretation that "disciplinary" refers to methods of discipline and not reasons for discipline. Subsection (5m)(c) was enacted at the same time as subsection (5)(em) and reads as follows:
[T]he name of a subordinate dismissed for any just cause set forth in this section shall be left on an eligible reemployment list for a period of 2 years after the date of dismissal, except that if the dismissal was for disciplinary reasons the subordinate may not be left on an eligible reemployment list.[18]
The language of § 62.13(5m)(c) suggests that dismissals for "disciplinary reasons" are merely a subset of all just cause dismissals under § 62.13. The implication, therefore, is that § 62.13 addresses the methods for disciplining a police officer, not the grounds for disciplining him *530 or her. Those methods of discipline include the reduction in rank that Kraus was subject to in the present case.
¶ 93. I thus conclude that the language of Wis. Stat. § 62.13(5) is not clear. It can be read to support Kraus's interpretation, providing officers reduced in rank for nondisciplinary reasons with a just cause hearing, as easily as it can be read to support the majority opinion.
¶ 94. None of this means, however, that the outcome of this case is unclear. It is a general maxim of statutory interpretation that when a statute is capable of two different, reasonable constructions, courts should avoid that construction which works an absurd or unreasonable result.[19] The result of the majority opinion's interpretation here is unreasonable, and thus must be avoided, because it eliminates just cause hearings for all police officers reduced in rank during a period of probation despite the conclusion in Antisdel that officers reduced in rank for disciplinary reasons during a period of probation are entitled to just cause hearings under Wis. Stat. § 62.13(5)(em).
¶ 95. That is, the result of the majority opinion is that no police officer who is promoted contingent upon the successful completion of a period of probation will ever receive a just cause hearing under Wis. Stat. § 62.13(5)(em) when that promotion is denied before completion of the period of probation, since police chiefs and PFCs will be able to avoid a just cause hearing by simply labeling the reason for the reduction in rank "nondisciplinary."
*531 ¶ 96. In the present case, for example, the police department informed Kraus and the PFC that Kraus did not successfully complete probation without offering a specific reason for his failure. The court accepts the absence of a reason as a "nondisciplinary" reason without hesitation despite the fact that Kraus asserts his demotion might not have been due to poor job performance.[20] Indeed, Kraus argues in his briefs that he should at a minimum get a hearing to determine whether the negative job action was taken for disciplinary or non-disciplinary reasons. The majority opinion does not even afford him this remedy.
¶ 97. Any line this court might hope to draw between disciplinary reasons and nondisciplinary reasons for reduction in rank is illusory. Any rule violation, of course, is also going to be evidence of poor performance; any penalty imposed for misconduct will provide grounds for concluding that an officer "has not successfully completed the probationary period for regular promotion." The illusion of a discernable distinction is especially deceptive where the court forecloses the possibility of further inquiry into the underlying facts and willingly accepts the chief's stated reason for a reduction in rank at face value.[21]
*532 ¶ 98. The majority opinion itself even acknowledges the difficulty of drawing a line between disciplinary cases and nondisciplinary cases, yet fails to tackle the difficulty it creates.
¶ 99. The majority opinion explains that in Eastman v. City of Madison, 117 Wis. 2d 106, 342 N.W.2d 764 (Ct. App. 1983), the court of appeals held that the decision to remove two municipal employees who violated Madison's residency ordinance was not disciplinary in nature. After noting that the Eastman decision pre-dates the current version of Wis. Stat. § 62.13(5), the majority opinion then concludes ambiguously: "[T]he question of whether non-residency, in violation of a specific rule or ordinance, would today require a § 62.13(5)(em) hearing, is a closer question."[22] The majority opinion provides no guidance for distinguishing between disciplinary reasons and nondisciplinary reasons should the Eastman facts present themselves again.
¶ 100. As Kraus argues, a police chief will now always be expected to argue that a reduction in rank or any other negative job action resulting in the loss of a promotion during a period of probation was due to nondisciplinary reasons. The majority opinion not only denies a just cause hearing to promoted officers reduced in rank for nondisciplinary reasons, it also denies those officers a hearing to determine whether the nondisciplinary *533 reason is a mere pretext for a "disciplinary" reason. Consequently, the court actually holds today that no police officer who is promoted contingent upon the successful completion of a period of probation will ever receive a just cause hearing under § 62.13(5)(em) when that promotion is denied before completion of the period of probation. This court's decision in Antisdel is thus effectively overruled and just cause hearings (and arbitration) for officers reduced in rank during a period of probation have been entirely eliminated.
¶ 101. By the two decisions released today, this court has eliminated the protections extended by the legislature to employees of our municipal police and fire departments who have been promoted contingent upon completion of a period of probation. Wisconsin Stat. § 13.93(2)(d) requires the revisor of statutes to report to the law review committee of the legislature those decisions of this and other courts "in which Wisconsin statutes or session laws are stated to be in conflict, ambiguous, anachronistic, unconstitutional or otherwise in need of revision."[23] I suggest that the just cause provisions of Wis. Stat. § 62.13 are in need of legislative oversight.
¶ 102. For the foregoing reasons, I dissent.
NOTES
[1] All statutory references are to the 1999-2000 version of the Wisconsin Statutes, unless otherwise indicated.
[2] The Waukesha Police and Fire Commission has abandoned the argument that Kraus would be subject to a new probationary period as a police officer. Kraus had an established property interest in his position as a police officer and that interest could not be compromised without a due process hearing. See Arneson v. Jezwinski, 225 Wis. 2d 371, 392-93, 592 N.W.2d 606 (1999).
[3] The November 18, 1998, letter from Chief of Police Leslie A. Sharrock to Sergeant Steven E. Kraus reads in part as follows:
This letter is to inform you that, on November 23, 1998, I will be advising the Police and Fire Commission that you have not successfully completed the probationary period for regular promotion to the rank of Police Sergeant. At the same time, I will inform the Commission of your reappointment as a Patrol Officer effective November 24, 1998. . . . I want you to know that this action does not preclude you from participating in a future promotional process provided you have met the requirements for consideration outlined for the position.
[4] Wisconsin Stat. § 62.13(5)(em) provides, in pertinent part:
No subordinate may be suspended, reduced in rank, suspended and reduced in rank, or removed by the board under par. (e), based on charges filed by the board, members of the board, an aggrieved person or the chief under par. (b), unless the board determines whether there is just cause, as described in this paragraph, to sustain the charges.
[5] See, e.g., City of Madison v. WERC, 2003 WI 52, ¶ 3, 261 Wis. 2d 423, 662 N.W.2d 318; and Antisdel v. Oak Creek Police & Fire Comm'n, 2000 WI 35, ¶ 3, 234 Wis. 2d 154, 609 N.W.2d 464.
[6] We did not address this question in Antisdel because the disciplinary nature of the job action in that dispute was dispositive of the officer's claim.
[7] The full language of Wis. Stat. § 62.13(4)(a) provides: "(a) The chiefs shall appoint subordinates subject to approval by the board. Such appointments shall be made by promotion when this can be done with advantage, otherwise from an eligible list provided by examination and approval by the board and kept on file with the clerk."
[8] Wisconsin Stat. § 62.13(4)(d) provides in relevant part:
The examination, including minimum training and experience requirements, shall be job-related in compliance with appropriate validation standards and shall be subject to the approval of the board and may include tests of manual skill and physical strength. All relevant experience, whether paid or unpaid, shall satisfy experience requirements. The board shall control examinations and may designate and change examiners. . . .
[9] To illustrate, the briefs filed in Eastman v. City of Madison, 117 Wis. 2d 106, 342 N.W.2d 764 (Ct. App. 1983), explain that Gerald Eastman began his employment with the Madison Police Department on June 8, 1964. "On June 8, 1965, his initial probationary period of one year ended and he became a permanent, full-time member of the Police Department." Thus, Eastman was hired by the City of Madison on a probationary basis more than five years before Wis. Stat. § 165.85(4) became law.
[10] The plaintiff's brief in Eastman stated that the firefighter plaintiff in that case, Thomas P. Hanson, commenced his employment with the City of Madison on March 11, 1962. "After successfully completing the one-year probationary period, he . . . became a permanent [employee] of the Fire Department."
[11] As noted, probationary periods have been part of the hiring process for Wisconsin state employees since at least 1905. See Wis. Stat. § 990-9 (Supp. 1906) (the forerunner of Wis. Stat. § 230.28).
In its brief in Kaiser v. Bd. of Police & Fire Comm'rs, 104 Wis. 2d 498, 311 N.W.2d 646 (1981), the City of Wauwatosa cited several management texts discussing the importance of probationary periods for new employees to support its position that "probationary employment is a universally accepted concept that is in effect a condition of the hiring process." These include: Benjamin Werne, Administration of the Labor Contract (1963); O. Glenn Stahl, Public Personnel Administration (1962); Municipal Personnel Administration (International City Manager's Association (1960)).
O.W. Wilson discussed probationary periods in his text on Police Administration (1950), saying:
Probation. Some police administrators fail to recognize probation as an important step in the selection process. While the best testing procedures are highly effective in eliminating the incompetent, the tests have not reached the stage of perfection that precludes the possibility of the appointment of some candidates who are unsuited to police service. The final test must be trial on the job. Full advantage should be taken of the opportunity afforded by the probationary period to eliminate those who demonstrate unfitness in training and on the job. Such elimination is especially important in departments where testing procedures are poor, for it is difficult to remove unqualified officers after they pass the probationary period. A failure to remove incompetent and otherwise unsuited probationers is a mark of weak leadership; a police chief who does not avail himself of this opportunity to complete the selection process cannot complain that he is denied personnel control.
O.W. Wilson, Police Administration 353 (1950).
[12] Section 165.85(1) asserts that the administration of law enforcement is a matter of statewide concern and then proclaims:
The public interest requires that . . . standards [of a proper professional character] be established and that this training and education be made available to persons who seek to become law enforcement, tribal law enforcement, jail or secure detention officers, persons who are serving as these officers in a temporary or probationary capacity and persons already in regular service.
Wis. Stat. § 165.85(1) (emphasis added). Persons already in regular services include officers who are promoted.
[13] This statutory silence may be contrasted with Wis. Stat. §§ 230.28(1)(a) and 230.28(1)(am), which together provide that a state public employee promoted to a supervisory position must serve a one-year probationary period, unless waived after six months. During this probationary period, "dismissal may be made at any time" without cause. Wis. Stat. § 230.28(1)(a), (am).
[14] One commentator recently wrote:
No matter how careful a department has been in selecting its new personnel, there is a continuing need for quality control. Probably the most valuable technique for determining a rookie's suitability for police service is a trial period on the job. Police managers and seasoned first-line supervisors firmly believe (almost as an article of faith) that a probationary period is an essential element in the personnel screening process. It gives them the necessary time to judge the new employee in terms of ability and character. It also allows them to assess the recruit's capacity to cope with the demands of police work and to detect deficiencies that manifest themselves only under actual working conditions.
Harry W. More, et al., Effective Police Supervision 188 (3d ed. 1999).
[15] The checklist included the following 31 factors:
1. Appearance
2. Health and physical condition
3. Conduct and deportment
4. Judgment
5. Interest in the organization and its work
6. Fellowship and association
7. Discipline
8. Initiative and self-reliance
9. Resourcefulness
10. Alertness and observation
11. Loyalty
12. Courage
13. Honesty and honor
14. Leadership
15. Effort
16. Knowledge of the patrol area
17. Knowledge and conformity with policies and procedures
18. Dealing with the public
19. Cooperation with other departments and officials
20. Organization and direction of work
21. Desk duty
22. Ability to make reports
23. Ability as an investigator
24. Scope of activity 25. Operation of motor equipment
26. Maintenance of motor equipment
27. Maintenance of post equipment
28. Maintenance of uniform and personal equipment
29. Preparation and presentation of court cases
30. Use of firearms
31. General efficiency.
George Mingle, Police Personnel Evaluation and Development, 30 J. Crim. L. & Criminology 277, 282-83 (1946).
[16] The record indicates that Kraus was in attendance during the November 24, 1997, meeting at which the PFC approved his promotion subject to the probationary term. Therefore, Kraus knew that his promotion was contingent on his successful completion of the probationary period, which he does not dispute.
[17] Kraus is in error to cite to Schultz v. Baumgart, 738 F.2d 231 (7th Cir. 1984), to support his contention. Schultz dealt with an officer's termination from the police force, not a reduction in rank. Id. at 233. Moreover, the officer involved was not a probationary employee and therefore had long since obtained a property right in the position from which he was terminated. Id. at 234. These distinctions are critical, because there is a precision required in identifying the type of continued employment to which a police officer has a reasonable and non-unilateral expectation.
[18] Antisdel was disciplined for allowing a colleague to use his Oak Creek address so that the colleague's child could enroll in Oak Creek High School without paying the nonresident tuition. Antisdel, 234 Wis. 2d 154, ¶ 5. He was informed of this charge in a memorandum in which he was accused of "unprofessional" conduct and asserted that he violated a specific department policy. Id.
[19] In Hussey v. Outagamie County, 201 Wis. 2d 14, 548 N.W.2d 848 (Ct. App. 1996), the court of appeals appears to have placed a different interpretation on Wis. Stat. § 62.13(5). The court quoted the same sentence from Kaiser, i.e., "Kaiser was not disciplined; he was terminated as not suited for service as a police officer." Then it stated: "This sentence in Kaiser is actually an inaccurate characterization of the statute. A reading of § 62.13(5) reveals that among the disciplinary choices are suspension, demotion or removal. See § 62.13(5)(e)." Id. at 20 (emphasis added).
Whether a job action is "disciplinary" is not determined by the consequences of the action, such as suspension, reduction in rank, or removal. It is determined by whether a "charge" is filed by the chief to impose a penalty.
A job action that is not disciplinary may still require a due process hearing if the affected employee has a protected property interest, but the due process hearing need not conform to the dictates of Wis. Stat. § 62.13(5)(em). Schultz v. Baumgart, 738 F.2d 231, 236 (7th Cir. 1984). We disavow any language in Hussey that implies otherwise.
[20] In Eastman, the plaintiffs were removed as city employees when they violated Madison's residency ordinance. The court stated that the ordinance was not a disciplinary provision. "Appellants were not disciplined. Appellants were ineligible for employment because they did not reside in the city. Section 62.13(5) is inapplicable to terminations which are not disciplinary." Eastman, 117 Wis. 2d at 115.
It must be stressed that the two city employees in Eastman both received an evidentiary hearing, referred to as a predetermination hearing, because they had acquired property interests in their employment. Id. at 110. They never sought certiorari review to test whether the evidence of their non-residency was sufficient. Instead, they sought declaratory relief to order their reinstatement. Id. at 109. Consequently, in deciding that the terminations in Eastman were not disciplinary, the court was not depriving the employees of a due process hearing. It was determining that no hearing was required under Wis. Stat. § 62.13(5). Id. at 115. Because paragraph (em) was added to Wis. Stat. § 62.13(5) in 1993, ten years after Eastman was decided, the question of whether non-residency, in violation of a specific rule or ordinance, would today require a § 62.13(5)(em) hearing, is a closer question. See Wis. Stat. § 62.13(5)(em)2.
[21] According to Wis. Stat. § 62.13(5)(em):
In making its determination [of just cause to sustain the charges], the board shall apply the following standards, to the extent applicable:
1. Whether the subordinate could reasonably be expected to have had knowledge of the probable consequences of the alleged conduct.
2. Whether the rule or order that the subordinate allegedly violated is reasonable.
3. Whether the chief, before filing the charge against the subordinate, made a reasonable effort to discover whether the subordinate did in fact violate a rule or order.
4. Whether the effort described under subd. 3 was fair and objective.
5. Whether the chief discovered substantial evidence that the subordinate violated the rule or order as described in the charges filed against the subordinate.
6. Whether the chief is applying the rule or order fairly and without discrimination against the subordinate. 7. Whether the proposed discipline reasonably relates to the seriousness of the alleged violation and to the subordinate's record of service with the chiefs department.
[22] The legislature is free to require that nondisciplinary bases for negative job actions against employees be reviewed in a hearing before the PFC or some other body. In fact, the legislature has done something close to this in a comparative statute, Wis. Stat. § 59.26(8)(b), which applies to the demotion, suspension, and dismissal of county deputy sheriffs. This statute expressly provides for a hearing on both disciplinary issues and matters related to a deputy's inability to competently perform his or her duties. Notably, § 59.26(8)(b) also directs county law enforcement departments to apply the same standards of just cause outlined in § 62.13(5)(em).
In addition, the fact that the legislature included incompetence in § 59.26(8) suggests that the absence of any reference to nondisciplinary matters in § 62.13(5) means that nondisciplinary matters such as incompetence should not be presumed to fall within the ambit of disciplinary actions in the section.
[23] Waukesha Police Departmental Rule 25 was read verbatim into the record by counsel for Kraus during the May 22, 2000, proceeding before the PFC regarding Kraus's request for a just cause hearing. The veracity of the contents of this rule is undisputed by the parties in this action.
[1] I refer to the present case and City of Madison v. Wisconsin Employment Relations Commission, 2003 WI 52, 261 Wis. 2d 423, 662 N.W.2d 318.
[2] Majority op., ¶ 77.
[3] Id., ¶ 66.
[4] Id., ¶¶ 62-64.
[5] Id., ¶ 66.
[6] Id., ¶ 64.
[7] Id., ¶ 67.
[8] Id., ¶ 64 (quoting American Heritage Dictionary of the English Language 322 (3d ed. 1992)).
[9] Id., ¶ 6 n.3.
[10] Wis. Stat. § 62.13(5)(em).
[11] See, e.g., Wis. Stat. § 59.26(8)(b)2. ("The grievance committee shall immediately notify the accused officer of the filing of the charges and on request furnish the accused officer with a copy of the same."); § 59.26(8)(b)5m. ("No deputy may be suspended, demoted or discharged by the grievance committee under subd. 3 or 5., based on charges filed by the sheriff . . . unless the committee determines whether there is just cause, as described in this subdivision, to sustain the charges."); § 59.26(8)(b)5m.b. (committee determination should be based on consideration of "whether the rule or order that the deputy allegedly violated is reasonable").
[12] The majority opinion concludes that that the absence of similar express language in § 62.13 relating to incompetence of police officers suggests that grounds of incompetence for demoting police officers are not subject to a just cause hearing. While this inference is reasonable and supports the majority opinion's reading of the statute, these other parts of Wis. Stat. § 59.26 contravene the majority opinion's reading of § 62.13(5).
[13] Wis. Stat. § 59.26(8)(b)5m.
[14] Kaiser v. Bd. of Police & Fire Comm'rs, 104 Wis. 2d 498, 503, 311 N.W.2d 646 (1981).
[15] Hussey v. Outagamie County, 201 Wis. 2d 14, 20, 548 N.W.2d 848 (1996).
[16] Majority op., ¶ 65 n.19.
[17] Wis. Stat. § 62.13(5)(a).
[18] Wis. Stat. § 62.13(5m)(c) (emphasis added).
[19] Jadair Inc. v. U.S. Fire Ins. Co., 209 Wis. 2d 187, 195, 562 N.W.2d 401 (1997); Braun v. Wis. Elec. Power Co., 6 Wis. 2d 262, 268, 94 N.W.2d 593 (1959).
[20] Kraus asserts that the police chief characterized the reason for a reduction in rank as nondisciplinary only after the this court's decision in Antisdel v. Oak Creek Police & Fire Commission, 2000 WI 35, 234 Wis. 2d 154, 609 N.W.2d 464, was released.
[21] The same problem arises in the companion case released today, City of Madison v. WERC. The firefighter in WERC argued in his brief that his reduction in rank was the result of a "heated discussion" he had with a superior, the letter from the chief informing him of the reduction in rank is silent on the reason, and the hearing examiner employed to resolve the dispute held that it was an open question as to whether the revocation of his probationary status constituted "appropriate discipline for the violation of a work rule." Although both parties conceded that the reduction in rank was due to nondisciplinary reasons, the facts of City of Madison v. WERC provide an example of the potential for the decision in the present case to be applied with broad strokes to difficult facts.
[22] Majority op., ¶ 65 n.20.
[23] Wis. Stat. § 13.93(2)(d). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1607945/ | 21 So.3d 320 (2009)
Jerry GOZA and Gladys P. Goza
v.
PARISH OF WEST BATON ROUGE, State of Louisiana and ABC Insurance Company.
No. 2008 CA 0086.
Court of Appeal of Louisiana, First Circuit.
May 5, 2009.
Opinion Granting Rehearing for Limited Purpose September 9, 2009.
*325 Michael C. Palmintier, Baton Rouge, LA, for Plaintiffs/Appellees, Jerry and Gladys P. Goza.
James D. "Buddy" Caldwell, Attorney General, John H. Ayres, III, Assistant Attorney General, Baton Rouge, LA, for Defendant/Appellant, Louisiana Department of Transportation and Development.
Before GUIDRY, GAIDRY, and WELCH, JJ.
GUIDRY, J.
The State of Louisiana, through the Department of Transportation and Development (DOTD), appeals a jury verdict and a judgment notwithstanding the verdict (JNOV) rendered in this matter. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On February 11, 1996, Jerry Goza attended a Mardi Gras parade with his wife, Gladys P. Goza, in Addis, Louisiana, where he consumed at least one or two beers. Following the parade, Mr. Goza and his wife went to Marley Marina, a local bar, where they danced and socialized with friends, some of whom had attended the same Mardi Gras parade. Around 7:45 p.m. that night, Mr. Goza, who had previously left the bar in his wife's car, was traveling westbound on Louisiana Highway 989-1 (a state-owned highway commonly known as Choctaw Road) on his way back to Marley Marina, when he traveled off the paved roadway at the juncture where Louisiana Highway 989-1 intersected at a sharp curve with Louisiana Highway 989-2 (commonly known as Ellwood Road). Mr. Goza drove off the roadway into a cane field adjacent to the road where his vehicle eventually ran into a ditch, struck a culvert, and flipped over. Mr. Goza sustained serious injuries, requiring surgery and rehabilitative treatment.
The Gozas filed a petition for damages against the DOTD and the Parish of West Baton Rouge, alleging that the design, construction, and signage of Louisiana Highway 989-1 were defective, but they later filed a motion to dismiss their claims against the Parish of West Baton Rouge. A "Restrictive Judgment of Dismissal" was signed by the trial court on April 3, 1997, dismissing the Parish of West Baton Rouge from the suit.
The remaining defendant, the DOTD, answered the petition generally denying liability for the plaintiffs' claims; however, after a period of extensive discovery and other pre-trial proceedings, the DOTD amended its answer to add a third-party demand against the Parish of West Baton Rouge. In the third-party demand, the DOTD alleged that portions of the location on which the accident occurred were maintained and controlled by the Parish of West Baton Rouge. The West Baton Rouge Parish Council answered the third-party demand to deny the allegations of liability asserted against it.
Thereafter, the West Baton Rouge Parish Council, which observed that it had been wrongfully identified in prior pleadings as the Parish of West Baton Rouge, filed a motion for summary judgment, alleging there was no evidentiary basis on which the West Baton Rouge Parish Council could be held liable. The trial court agreed, and rendered summary judgment in favor of the West Baton Rouge Parish Council, dismissing the DOTD's third-party demand. The DOTD appealed the summary *326 judgment, which judgment was affirmed by this court on review, Goza v. Parish of West Baton Rouge, 05-1040 (La. App. 1st Cir. 5/5/06), 930 So.2d 1243(unpublished opinion), and a subsequent writ application to the supreme court was denied. Goza v. Parish of West Baton Rouge, 06-1221 (La.6/14/06), 929 So.2d 1272.
The matter thus proceeded to trial in October 2006 against the DOTD alone. Following a four-day jury trial, the jury rendered a verdict in favor of the plaintiffs, but allocated only 25 percent fault to the DOTD. The jury awarded Mr. Goza the following amounts:
Loss of enjoyment of life and permanent
disability $100,000.00
Future medical expenses $500,000.00
Past medical expenses $326,001.81
Lost wages, past and future $678,195.00
The jury did not award Mr. Goza any other general damages. The jury awarded Mrs. Goza $100,000.00 for loss of consortium.
In response to the jury's verdict, the DOTD filed a motion for JNOV. The trial court granted the motion in part and amended the jury's verdict to award Mr. Goza $600,000.00 in general damages and to decrease the award of future medical expenses to $150,000.00. In all other respects, the trial court maintained the awards and the fault allocations rendered by the jury. The DOTD appeals the original jury verdict and the JNOV.
ASSIGNMENTS OF ERROR
In this appeal, the DOTD contends that the trial court committed error in admitting uniform motor vehicle accident reports, which it attempted to exclude pursuant to a motion in limine that was denied by the trial court, and in restricting its ability and right to present evidence opposing the accident reports. The DOTD further contends that it was error to apportion any fault to it and to award Mr. Goza future medical expenses.
DISCUSSION
We began our review of this appeal by first considering the DOTD's third assignment of error relative to the trial court's denial of its motion in limine to exclude from evidence the Uniform Motor Vehicle Accident Reports (accident reports) that the plaintiff obtained from the West Baton Rouge Parish Sheriffs Office. Relying on 23 U.S.C. § 409 and Long v. State, Department of Transportation and Development, 04-0485 (La.6/29/05), 916 So.2d 87, the DOTD contends that the trial court erred in allowing the plaintiff to introduce copies of the accident reports at trial.
The federal statute, 23 U.S.C. § 409, was enacted by Congress "to prevent the unauthorized disclosure of information that States compile in good faith to meet the purposes of Federal aid highway programs to eliminate or reduce hazardous roadway conditions." Long, 04-0485 at 10-11, 916 So.2d at 94-95. Accordingly, the statute provides:
Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 148 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in *327 such reports, surveys, schedules, lists, or data.
The definitive pronouncement of the proper scope and application of 23 U.S.C. § 409 is found in the United States Supreme Court's opinion of Pierce County, Washington v. Guillen, 537 U.S. 129, 123 S.Ct. 720, 154 L.Ed.2d 610 (2003). In that case, the United States Supreme Court declared:
§ 409 protects not just the information an agency generates, i.e., compiles, for § 152[[1]] purposes, but also any information that an agency collects from other sources for § 152 purposes. And, it also takes a narrower view of the privilege by making it inapplicable to information compiled or collected for purposes unrelated to § 152 and held by agencies that are not pursuing § 152 objectives. We therefore adopt this interpretation.
Guillen, 537 U.S. at 145-46, 123 S.Ct. at 730-31 (emphasis added).
Evidentiary privileges are in derogation of the search for truth and thus such privileges must be strictly construed. Sevario v. State, Department of Transportation and Development, 98-1302, p. 10 (La.App. 1st Cir.11/10/99), 752 So.2d 221, 229, writ denied, 99-3457 (La.4/7/00), 759 So.2d 760, and writs not considered, 99-3638, 00-0044 (La.4/7/00), 759 So.2d 81, 82.
In Long, the issue before the court was whether the trial court erred in admitting into evidence three letters between the DOTD and the mayor of Boutain that were obtained from the mayor's office. The DOTD argued that the letters should have been held inadmissible pursuant to 23 U.S.C. § 409. Long, 04-0485 at 13, 916 So.2d at 96. The court in Long agreed, finding that the "three letters represent information necessary for the commencement of the upgrade [of the] roadway/railroad crossing, and thus, the letters effectuate the purpose of the federal safety program." Long, 04-0485 at 20, 916 So.2d at 100. The court therefore held that the letters were "protected from discovery and... inadmissible under 23 U.S.C. § 409[,]" even though the letters were in the hands of an agency not charged with the responsibility of developing highway safety construction improvement projects that utilize Federal-aid highway funds. Long, 04-0485 at 20, 916 So.2d at 100.
We find the Long case distinguishable from the matter before us. The court in Long expressly found that the letters in that case "were compiled and collected by the DOTD for purposes related to funding through ... a federal safety program[,]" because each of the letters specifically addressed the commencement of the process of selecting the roadway/railway crossing for improvement. Long, 04-0485 at 19-20, 916 So.2d at 99-100. As discussed hereafter, we hold that there has been no such showing regarding the accident reports at issue.
The Louisiana Supreme Court specifically held in Long that "[t]he privilege afforded to state agencies in § 409 and the documents at issue must not be viewed in a vacuum; rather, inquiry should be directed toward the purpose for which the documents *328 are created." Long, 04-0485 at 20, 916 So.2d at 100. While the DOTD created the accident report form and trains local law enforcement officers to properly complete the form to fulfill its obligations under 23 U.S.C. § 152, the information added to the form by law enforcement is compiled and collected pursuant to their statutory duty to investigate and report accidents. It is that information compiled by law enforcement pursuant to its statutory duty that the DOTD seeks to exclude in this matter.
To support its assertion that the accident reports were "compiled and collected. . . for the purpose of developing any highway safety construction improvement project, which may be implemented utilizing Federal-aid highway funds," the DOTD introduced the testimony of Hadid Shirazi, a traffic engineer and Hazard Elimination Funds coordinator for the DOTD. Mr. Shirazi related how the accident reporting form used by local law enforcement officials to record accident information is a uniform document developed by the DOTD to be used by all law enforcement agencies in the state at all levels of government. Furthermore, Mr. Shirazi testified that federal highway safety funds were and continue to be used to revise the accident reporting form and to train law enforcement officers how to properly complete the form.
Mr. Shirazi's testimony establishes that the forms designed by the DOTD made it more convenient for the agency to glean information from the accident reports, but it does not negate the general duty on the part of law enforcement to investigate and report accidents, as required by statute. See La. R.S. 32:398. To the extent that law enforcement accommodates the DOTD by adopting the uniform accident report forms designed by the DOTD for use in accident investigation, such action alone is insufficient to transform the normal accident investigation duties of local law enforcement agencies into an act of "information compilation and collection for § 152 purposes." As such, we find no merit in the DOTD's argument that the mere completion of the form designed by the DOTD, and completed in accordance with training provided by the DOTD, makes the completion of an accident report by local law enforcement officials an act of compiling or collecting information for § 152 purposes.
As observed by the Court in Guillen:
[T]he text of § 409 evinces no intent to make plaintiffs worse off than they would have been had § 152 funding never existed. Put differently, there is no reason to interpret § 409 as prohibiting the disclosure of information compiled or collected for purposes unrelated to § 152, held by government agencies not involved in administering § 152, if, before § 152 was adopted, plaintiffs would have been free to obtain such information from those very agencies.
Guillen, 537 U.S. at 146, 123 S.Ct. at 731. We therefore conclude that the trial court properly determined that the accident reports in the possession of the West Baton Rouge Parish Sheriffs Office were not "compiled or collected" for purposes of 23 U.S.C. § 152, and thus were not subject to exclusion from evidence on the basis of 23 U.S.C. § 409.
We find, however, that the trial court did err in denying the DOTD's motion in limine on the basis of La. C.E. art. 803. That article provides, in pertinent part:
Art. 803. Hearsay exceptions; availability of declarant immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
. . .
*329 (b) Except as specifically provided otherwise by legislation, the following are excluded from this exception to the hearsay rule:
(i) Investigative reports by police and other law enforcement personnel. [Emphasis added.]
Hence, the accident reports introduced by the plaintiffs at trial are considered hearsay evidence, and therefore should have been considered inadmissible, see La. C.E. art. 802; however, for the following reasons, we find the trial court's error in admitting the accident reports was harmless. See Ross v. Noble, 442 So.2d 1180, 1184 (La.App. 1st Cir.1983).
Generally, when liability is premised on the DOTD's ownership of an allegedly defective thing, a plaintiff may recover damages from the DOTD, a public entity, based on La. C.C. art. 2317, as limited by La. R.S. 9:2800. The portion of La. R.S. 9:2800 pertinent to the DOTD's liability, as the statute provided at the time of Mr. Goza's accident,[2] stated:
B. ... [N]o person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
C. Constructive notice shall mean the existence of facts which infer actual knowledge.
D. A violation of the rules and regulations promulgated by a public entity is not negligence per se.
E. "Public entity" means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions. Public entity also includes housing authorities, as defined in R.S. 40:382(1), and their commissioners and other officers and employees.
Thus, in order to find the DOTD liable, the plaintiffs had to prove (1) the DOTD had custody of the thing that caused the plaintiffs' damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) the DOTD had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time; and (4) the defect was a cause-in-fact of the plaintiffs' injuries. Cormier v. Comeaux, 98-2378, pp. 5-6 (La.7/7/99), 748 So.2d 1123, 1127.
Under La. R.S. 9:2800, constructive notice is defined as the existence of facts which imply actual knowledge, and this definition allows a person to infer actual knowledge on the part of a public entity when the facts demonstrate that the defective condition existed for such a period of time that the defect should have been discovered and repaired. Morris v. State, Department of Transportation, 94-2545, p. 6 (La.App. 1st Cir.10/6/95), 664 So.2d 1192, 1196, writ denied, 95-2982 (La.2/9/96), 667 So.2d 537. While the DOTD cannot be imputed with knowledge of every defect on its roadways and shoulders, neither can the DOTD escape liability by negligently failing to discover that which is easily discoverable. Brown v. *330 Louisiana Indemnity Company, 97-1344, p. 8 (La.3/4/98), 707 So.2d 1240, 1244.
The accident reports were offered by the plaintiffs to establish that the DOTD had constructive notice of the allegedly defective roadway. But there is other evidence in the record by which this element can be established, particularly, the testimony of Larry Straub and Jason Campbell.
At trial, Mr. Straub testified that he had lived less than a mile from the site of the accident from about 1971-72 to around 2002. He testified that over the years he had seen "several accidents in that corner and several people that my grandfather... would have ... come ... wanting to get pulled out of that ditch." For some of the accidents, Mr. Straub testified that "I've seen State Police back there on several different accidents." Mr. Straub also related that despite his familiarity with the area, he had an accident "in that curve" in 1995, and that his wife had wrecked his Trans Am in the same location in 1979.
In February 1995, exactly a year to the month before Mr. Goza's accident, Mr. Campbell testified that he was involved in an accident that was similar to that of Mr. Goza's. Mr. Campbell testified that he was 17 years old at the time and that he was traveling on the unfamiliar road as a result of having missed the turn to his girlfriend's house while driving her home on the night of the accident. He stated that "[t]he cane field had been cut and it was a very deceptive view; it looked like the road kept going. When I got into the curve and noticed that it was a curve I made a hard left turn, at which point the rear of my truck lost control and went into the ditch causing my truck to flip over." The State Police investigated Mr. Campbell's accident.
Thus, the testimony of Mr. Straub and Mr. Campbell not only established a history of car accidents at the same location as Mr. Goza's accident, but Mr. Straub's testimony in particular established that the problem presented by the curve had been in existence for a significant period of time. Therefore, as the foregoing evidence would be sufficient to support a finding of constructive notice, we find that the trial court's erroneous ruling admitting the accident reports was, at most, harmless error. See also La. C.E. art. 103 A; Wright v. Bennett, 04-1944, p. 6 (La.App. 1st Cir.9/28/05), 924 So.2d 178, 183.
The DOTD also made the following complaint about the evidentiary rulings of the trial court in its first assignment of error:
Where, in a road hazard claim against the Louisiana Department of Transportation and Development, the plaintiff is allowed to introduce motor vehicle accident reports spanning a nine year period [1990-1998] five years for which there were no reports, including four year consecutively, [1991-1994] it was legal error for the court to prohibit the defendant from eliciting testimony regarding the four year accident-hiatus, and additionally, legal error to instruct the jury to disregard testimony from the Defendant's expert regarding that same four year period . . .
In like manner the court erred in not allowing defendant to make arguments to the jury to the effect that the lack of reported accidents during that period was probative of the highway's safety.. . .
At trial, the DOTD objected to the trial court's exclusion of the evidence referred to in its first assignment of error, but it did not seek to proffer the evidence that it alleges was improperly excluded. It is well settled that error may not be predicated upon a ruling that excludes evidence *331 unless a substantial right of a party is affected and the substance of the evidence was made known to the court by counsel. La. C.E. art. 103 A(2). In those instances, it is incumbent upon the party who contends his evidence was improperly excluded to make a proffer, and if he fails to do so, he cannot contend such exclusion was erroneous. Hurts v. Woodis, 95-2166, p. 12 (La.App. 1st Cir.6/28/96), 676 So.2d 1166, 1175. The DOTD neglected to proffer the evidence it contends was erroneously excluded. Based on its failure to proffer the evidence, we decline to review this assignment of error.
In its second assignment of error, the DOTD asserts that it was error to apportion it with any fault. As previously stated, the trial jury allocated the DOTD with 25 percent fault in this matter. In assessing the nature of the conduct of the parties, various factors may influence the degree of fault, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Clement v. Frey, 95-1119, p. 8 (La.1/16/96), 666 So.2d 607, 611. In the present matter, the primary conduct of the parties to be compared is the alleged intoxication of Mr. Goza and the alleged defectiveness of the roadway at issue.
INTOXICATION
The first contention of the DOTD under its second assignment of error is that it should not have been assigned any fault because it alleges that the accident was caused solely as a result of Mr. Goza's intoxication. In Petre v. State, Department of Transportation and Development, 01-0876, p. 12 (La.4/3/02), 817 So.2d 1107, 1114, the Louisiana Supreme Court quoted with approval the following reasoning of the appellate court:
While no one would take issue with the fact that [the plaintiffs] unacceptable and illegal actions in driving while intoxicated should be weighed heavily against her in considering the extent of DOTD's duty to her, intoxication alone is not enough to automatically prevent her from recovering for DOTD's fault. It is merely a factor to consider in Louisiana's comparative negligence scheme.
Likewise, in the matter before us, the evidence presented to the jury regarding Mr. Goza's alleged state of being intoxicated was merely a factor to be considered by the jury under our comparative fault scheme, as was the alleged road defect. Moreover, the record reveals that the issue of whether Mr. Goza was legally intoxicated was highly disputed in the proceedings below.
Mrs. Goza testified that during all the time she had known Mr. Goza, she had never seen him drink more than one or two beers and that he never drank hard liquor. She further testified that on the date of the accident, she and Mr. Goza went shopping and had purchased bread, ice and a case of beer that they took with them to a Mardi Gras parade in Addis, Louisiana. While she stated that she did not personally observe Mr. Goza consume any beer that day, she nevertheless assumed that Mr. Goza had consumed two beers on the date of the accident, because when she looked in the vehicle after it was returned to her years later, she found the case of beer that had been purchased still in the vehicle with two cans missing from the case. Other witnesses who saw Mr. Goza at the parade and later at Marley Marina also testified that they did not see *332 Mr. Goza consuming any alcoholic beverages.
Wanzie Everett, a friend of Mr. Goza's who rode on one of the floats in the Mardi Gras parade the Gozas attended on the date of the accident, testified that every year all of the float members for that particular parade would gather at Marley Marina where there would be "food and all that." Mrs. Everett said she danced with Mr. Goza at Marley Marina, and during that time, she did not smell alcohol on his breath nor did he appear to be impaired in any way. She testified that she had never seen Mr. Goza drunk and that on the day of the accident, she "did not see him with any drinks in his hand at all." As Mrs. Everett described, Mr. Goza "seemed perfectly fine," and based on her observation, she would not have had any problem riding in the car with him on the date of the accident.
Anthony Hernandez, a witness who had worked with Mr. Goza prior to the accident, testified that he had seen the Gozas at the Mardi Gras parade on the date of the accident. Mr. Hernandez stated that he was at the parade when the Gozas arrived and upon their arrival, he and his wife crossed the street to greet the Gozas. During the parade, however, Mr. Hernandez stated that he and his wife viewed the parade from the opposite side of the street from the Gozas and he saw Mr. Goza "off and on," or as he explained "pretty much as each float went by." Mr. Hernandez testified that based on what he observed, Mr. Goza just enjoyed the parade and socialized with those present, as "Jerry was a well-known person. You hardly went anywhere with him that somebody didn't know him." Mr. Hernandez stated that at the parade, he did not smell alcohol on Mr. Goza's breath and he did not observe Mr. Goza drinking any beer or liquor, nor did Mr. Goza appear to be intoxicated. Both Mr. Hernandez and another witness, Linda Smith, testified about their knowledge and experience of Mr. Goza acting as the designated driver at various social occasions.
Part of the evidence offered by the DOTD to establish that Mr. Goza was intoxicated at the time of the accident were his certified medical records from the Baton Rouge General Medical Center, the hospital where Mr. Goza was rushed to on the night of the accident. One of the documents included in Mr. Goza's medical records described his blood-alcohol screening results at 9:30 p.m. on February 11, 1996 as 180. Medical experts at trial translated that number to mean 180 milligrams of alcohol per 100 cubic centimeters of blood or a 0.18 blood-alcohol concentration level; however, annotated to that reported number is a footnote that states, in part, "non-medicolegal method used."
The plaintiffs presented an expert in the fields of toxicology, pathology, and general medicine, Dr. Ernest Lykissa, to testify regarding the validity of the blood-alcohol results reported in Mr. Goza's medical records. Dr. Lykissa stated that he reviewed all of Mr. Goza's medical records, Mr. Goza's ambulance records, and the depositions of some witnesses, including the deposition of Dr. Bruce Wilkerson, the attending physician that treated Mr. Goza at the Baton Rouge General Medical Center on the night of the accident, to form his opinion. Based on the evidence reviewed, Dr. Lykissa opined that the blood-alcohol results reported in Mr. Goza's medical records were not valid. Primarily, his opinion was based on the footnote "non-medicolegal method used," which he said indicated that the reading was invalid. Dr. Lykissa further stated that the reason the test results would be considered invalid or inaccurate is because *333 no chain of custody was established for the blood sample tested.
On cross examination, Dr. Lykissa admitted that the test results were accurate for the purpose identifying the presence of alcohol relative to the medical treatment rendered, but he disclaimed the accuracy of the test results for any other purposes, especially in light of the annotation "non-medicolegal method used." He stated as a qualitative[3] test, the results were accurate. He explained that the test results would serve a purpose medically of alerting healthcare professionals, particularly anesthetists, to the presence of alcohol in the patient.
Additionally, Dr. Lykissa opined that the nature of Mr. Goza's injury also affected the accuracy of the test results, because science has shown that post-traumatically, alcohol has a tendency to elevate falsely as opposed to prior to the trauma. As he explained:
Based on Dr. Wilkerson[,] we did [hear] that Mr. Goza's body, during the time that he was trying to save his life, he did by [a] miracle, he was able to tell us that actually he was going through a platonic death; his body was already shutting down. He did say that the muscles were shutting down, the kidneys were shutting down; so the body, what it does marvelously is it makes a decision, it takes priority, it says, wait a minute, I'm bleeding, let me take all the blood out of you guys because I don't need you right now and let me move it over there because that's where I need you. So the body will just drain literally kidney, liver, spleen and take in all the blood into the chest cavity to maintain that blood pressure so necessary to keep the heart pumping. And in doing so[,] it was draining them from all that alcohol, if that was there, and alcohol loves water. And remember, they replaced all his bloodstream with saline. So everything drained out. So we do not have anymore of the, what the so called, you know, compartmentalization of alcohol, where it goes, most of it in the liver, some of it in the kidney, some of it in the brain and so on and so forth. You get it all out in your bloodstream and, therefore, you getting a falsehood. Anything that has been published into making the sciences (inaudible) over and over again that post-traumatic alcohol measurements in the blood are always falsely elevated. And I'm going back on the science that it is.
The DOTD presented the testimony of Dr. Ronald Padgett, accepted by the court as an expert in the areas of medicine and pathology, to dispute Dr. Lykissa's opinion. On cross examination, Dr. Padgett also acknowledged that the lab test of Mr. Goza's blood was done for medical reasons and not for the purposes of a court appearance, but he nevertheless testified that based on his review of Mr. Goza's medical records, there was no reason to discredit the accuracy of the blood-alcohol concentration reported.
It is well settled in Louisiana that the trier of fact is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence. The trier of fact may accept or reject in whole or in part the opinion expressed by an expert. Harris v. State ex rel. Department of Transportation and Development, 07-1566, p. 25 (La.App. 1st Cir.11/10/08), 997 So.2d 849, 866, writ denied, 08-2886 (La.2/6/09), 999 So.2d 785. *334 The manifest error standard of review requires that even where the reviewing court may believe that its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal where the record merely demonstrates conflicting testimony as to the facts at issue, and the fact finder chooses to believe one version, rather than the other. Salvant v. State, 05-2126, p. 17 (La.7/6/06), 935 So.2d 646, 658.
The plaintiffs presented fact and expert witness testimony to discredit DOTD's medical and expert testimony regarding Mr. Goza's alleged intoxication and the affect such alleged intoxication would have on Mr. Goza's ability to drive. Thus, while the record before us establishes that Mr. Goza did consume some alcohol on the date of the accident, the amount of alcohol consumed and his degree of intoxication, if any, is disputed based on the evidence presented. As such, the weight to be given this conflicting evidence was clearly a matter for the jury to decide. Further, the evidence presented establishes that this is not a case where there is uncontroverted evidence of a highly intoxicated driver, and so the evidence presented is not such as to require a finding that Mr. Goza is solely at fault. Cf. Forbes v. Cockerham, 08-0762 (La.1/21/09), 5 So.3d 839.
ROAD DEFECT
The DOTD further contends that the plaintiffs failed to present any evidence to show that Mr. Goza's accident occurred as a result of defects in the roadway. While the DOTD does not contest the jury's determination that the roadway was defective on appeal, it does argue that the plaintiffs failed to present any evidence proving that the defects caused Mr. Goza's accident.
Whether an unreasonably dangerous defect caused the plaintiffs' damages is a finding of fact and an appellate court may not overturn a jury's finding of fact in the absence of manifest error or unless clearly wrong. Shilling v. State ex rel. Department of Transportation and Development, 05-0172, p. 7 (La.App. 1st Cir.12/22/05), 928 So.2d 95, 100, writ denied, 06-0151 (La.4/24/06), 926 So.2d 541. Generally, when more than one cause combines to bring about a plaintiffs harm, the substantial factor test is used to determine whether a particular defendant's conduct is a factor in bringing about plaintiffs harm. Scott v. Pyles, 99-1775, p. 9 (La.App. 1st Cir.10/25/00), 770 So.2d 492, 499, writ denied, 00-3222 (La.1/26/01), 782 So.2d 633.
As a result of the severity of the injuries sustained by Mr. Goza in the accident, he had no memory of the accident or how it occurred. The accident was a single-car accident with no witnesses. At trial, the plaintiffs presented the testimony of John Bates, accepted by the trial court as an expert in civil engineering specializing in traffic accident reconstruction and the evaluation of highway design and maintenance, to establish that the roadway in question contained several defects that caused it to be unreasonably dangerous. The primary defect observed by Mr. Bates was the compound[4] curvature of Louisiana Highway 989-1 at the point where it connects with Louisiana Highway 989-2, making the curve in the road quite sharp.
Mr. Bates testified that the danger presented by the curve under the blanket of night, when Mr. Goza's accident occurred, was increased by the lack of lighting, inadequate *335 signage alerting motorists of the significant curve, an excessive speed limit, and failure to install protective barriers to keep the unwary motorist on the roadway. Mr. Bates formed his opinion based on his personal observation of the accident location, listening to and reading the testimony of various witnesses, and reviewing the seven accident reports offered into evidence,[5] including Mr. Goza's accident report. Based on the evidence considered, Mr. Bates opined that the sharpness of the curve was "exactly what created problems out there for . . . we know seven accident reports." Mr. Bates explained:
A driver entering the curve is going to get a sense about how much he needs to turn the wheel, perhaps adjusting his speed a bit, and it should be that same one all the way around, the same degree of turning your wheel. But in this case, where you have that ever-increasing sharpness of the curve a driver will enter as Mr. Goza did here and feel like he has it mastered, but then as he gets a little bit into the curve, the curve has gotten too sharp for him and now he's going to head into that ditch. If there had been warning of, hey, here's what it's like; . . . if he'd been warned then he could do something about it.
He also stated, "[t]hat's what causes the injury. One has lost the control on the highway due to the sharpness of the curve, but the injury is the result of going down into that deep ditch in essence having a head-on collision with the bottom of the ditch and then rolling over."
Mr. Bates stated that the risks presented by the defects in the roadway were amplified by Mr. Goza's lack of familiarity with the road, which he determined based on the following reasons:
The testimony as I understand it was that two years prior to this accident [Mr. Goza] had been through the curve once, one time going away, one time coming back, that's twice in daylight. Then on the night of the accident he had gone through in daylight; that would be the third time and had come back in daylight, the fourth time. And then at the time of the accident he went through at nighttime. So he had four times in two years that he had been through there. One trip you might say, one round trip two years ago, one round trip at the time of the accident, and the termination of it was the accident that occurred.
Thus, Mr. Bates opined that "the intoxication is not the culprit, it is the design of this roadway being so short of the curve. . . ."
We find this evidence was sufficient to support the jury's finding that the noted defects in the roadway contributed to the accident as Mr. Bates' testimony related *336 those defects to the circumstances of Mr. Goza's accident. We therefore reject the DOTD's assertion that there was no proof of causation. See also Vallien v. State, Department of Transportation and Development, 01-0566, p. 6 (La.App. 3d Cir.3/27/02), 812 So.2d 894, 899, writs denied, 02-1184, 02-1198 (La. 6/14/02), 818 So.2d 785 and 786; Scott, 99-1775 at 9-10, 770 So.2d at 499-500; Farbe v. Casualty Reciprocal Exchange, 99-341, pp. 7-8 (La. App. 3d Cir.10/27/99), 746 So.2d 228, 232-33, rev'd in part on other grounds, 00-0076 (La.7/6/00), 765 So.2d 994.
FAULT COMPARISON
Therefore, having considered the evidence presented regarding the negligent conduct of each party, we can now consider whether the jury erred in its allocation of fault among the parties. In comparing the evidence of Mr. Goza's conduct of having consumed alcohol and operating a vehicle on the date of the accident (although the amount of alcohol consumed and whether Mr. Goza was legally intoxicated is disputed) and the conduct of the DOTD in failing to decrease the speed limit and in failing to provide adequate lighting, signage, and protective barriers for the safety of unwary motorists on a roadway with such a sharp and dangerous curve, we cannot say that the trial jury erred in allocating the DOTD with some fault. The jury clearly weighed the evidence of Mr. Goza's admitted alcohol consumption and disputed intoxication against the DOTD's awareness of the defectiveness of the roadway resulting in accidents similar to that of Mr. Goza's to find that the DOTD bore some liability in this matter. Moreover, as evidence of Mr. Goza's alleged intoxication was highly disputed, coupled with evidence that the defective roadway contributed to Mr. Goza's accident, we find the evidence is not so overwhelming as to mandate a finding that Mr. Goza's negligent conduct of consuming alcohol and operating a vehicle be considered the sole cause of the accident at issue. Cf. Forbes, 08-0762, 5 So.3d 839. Therefore, we reject the DOTD's assertion that the trial jury erred in allocating it with any fault.
In its final assignment of error, the DOTD contests the trial court's ruling on JNOV to reduce rather than vacate the jury's award of future medical expenses. We find no merit in this assignment of error.
Louisiana Code of Civil Procedure article 1811(F) provides that a motion for judgment notwithstanding the verdict may be granted on the issue of liability or on the issue of damages or on both. In this case, the JNOV was granted on the issue of future medical damages. Typically, the standard of review of a JNOV on appeal is a two-prong inquiry. First, we must determine whether the jury verdict is supported by competent evidence and is not wholly unreasonable. To make this determination, we must, after considering all of the evidence in the light most favorable to the party opposing the motion, find that it points so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict on the issue. Second, after determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review. Adams v. Parish of East Baton Rouge, 00-0424, p. 7 (La.App. 1st Cir.11/14/01), 804 So.2d 679, 687, writ denied, 02-0448 (La.4/19/02), 813 So.2d 1090.
In this case, the DOTD, in whose favor the JNOV was granted, does not contest the granting of the JNOV, but rather seeks a determination of whether the award rendered pursuant to the JNOV is manifestly erroneous. Therefore, we will *337 limit our review of this assignment of error to the second prong of the inquiry under the standard of review.[6]
An award of future medical expenses is justified if there is medical testimony that they are indicated and setting out their probable cost. Hanks v. Seale, 04-1485, p. 16 (La.6/17/05), 904 So.2d 662, 672. Nevertheless, when the record establishes that future medical expenses will be necessary and inevitable, courts should not reject the award because the record does not provide the exact value, if the court can determine from the record, past medical expenses, and other evidence a minimum amount that reasonable minds could not disagree would be required. Levy v. Bayou Indus. Maintenance Services, Inc, 03-0037, p. 9 (La.App. 1st Cir.9/26/03), 855 So.2d 968, 975, writs denied, 03-3161, 03-3200 (La.2/6/04), 865 So.2d 724 and 727. In such a case, the court should award all future medical expenses that the medical evidence establishes that the plaintiff, more probable than not, will be required to incur. Hymel v. HMO of Louisiana, Inc., 06-0042, pp. 26-27 (La.App. 1st Cir.11/15/06), 951 So.2d 187, 206, writ denied, 06-2938 (La.2/16/07), 949 So.2d 425. Although future medical expenses must be established with some degree of certainty, they do not have to be established with absolute certainty, as an award for future medical expenses is by nature somewhat speculative. Grayson v. R.B. Ammon and Associates, Inc., 99-2597, p. 35 (La.App. 1st Cir.11/3/00), 778 So.2d 1, 23, writs denied, 00-3270, 00-3311 (La.1/26/01), 782 So.2d 1026, 1027.
In the matter before us, Mr. Goza presented the testimony of three of his treating doctors by video depositions that were played to the jury. Of the testimony presented, only the testimony of Dr. Gray W. Barrow is pertinent to the issue of the award of future medical expenses.[7] Dr. Barrow, a physiatrist or doctor of physical medicine, had been treating Mr. Goza for chronic pain symptoms in his chest, neck, low back and knees for approximately nine years at the time his deposition was taken in 2006. He testified that in the beginning, Mr. Goza's treatment included physical therapy and epidural steroid injections, in addition to strong narcotic pain medications; however, at the time of Dr. Barrow's deposition, the primary treatment regime being used was narcotic pain medications. Dr. Barrow disclosed that Mr. Goza had been on various narcotic pain medications, including Methadone, Vicodin, Lortab, Percocet, MS Contin, and was presently using Oxycontin. As a result of Mr. Goza's continuous need for narcotic pain medications, Dr. Barrow testified that Mr. Goza was seen "at least every three months just to manage his medications and make sure that things are going okay with him." As Dr. Barrow explained,
[W]e treat pain now like we would treat a disease because it's been shown that if you don't adequately treat pain it can *338 affect almost every system in your body and shorten your life span. He certainly has chronic pain. So [Oxycontin is] a strong pain medication, but it's also I think appropriate in his case and has given him an improved quality of life and allowed him to function better.
As for Mr. Goza's long-term prognosis, Dr. Barrow stated that other than just continuing to be seen by a doctor of physical medicine, "if his condition worsens, the only thing I think he may need would possibly be a total knee replacement in the future, but I don't think there's any surgical remedy for his other problems, just medical management, which I've been doing."
Based on Dr. Barrow's testimony, we conclude that the trial court was not clearly wrong in finding that Mr. Goza was entitled to an award of future medical expenses, as Dr. Barrow's testimony clearly indicates that future medical treatment will be required. Although Mr. Goza failed to present any evidence as to the specific cost of such future treatment, as previously stated, it is proper for the trial court to determine future medical expenses on the basis of the record, past medical expenses, and other evidence. Levy, 03-0037 at 9, 855 So.2d at 975. The parties stipulated that Mr. Goza's past medical expenses were $326,001.81. Therefore, we find no error in the trial court's JNOV award of future medical expenses in the amount of $150,000.00.
CONCLUSION
For the foregoing reasons, we affirm the jury's verdict, as amended by the JNOV granted by the trial court. All costs of this appeal in the amount of $5,905.00 are assessed to the State of Louisiana, through the Department of Transportation and Development.
AFFIRMED.
WELCH, J., concurs and dissents with reasons assigned.
WELCH, J., Concurring in Part, Dissenting in Part.
I concur with the majority opinion with respect to the evidentiary rulings and the allocation of fault to DOTD; however, I dissent from that portion of the opinion upholding the trial court's $150,000.00 award for future medical expenses because I find there is no reasonable basis in the record to support that award.
Future medical expenses must be established with some degree of certainty. Grayson v. R.B. Ammon and Associates, Inc., 99-2597, p. 35 (La.App. 1st Cir.11/3/00), 778 So.2d 1, 23, writs denied, XXXX-XXXX, XXXX-XXXX (La.1/26/01), 782 So.2d 1026, 1027. An award for future medical expenses must be supported by medical testimony as to the need for such expenses and their probable cost. Spangler v. Wal-Mart Stores, Inc., 1995-2044, p. 7 (La.App. 1st Cir.5/10/96), 673 So.2d 676, 681. It is true that courts have upheld future medical expense awards in the absence of a precise dollar figure where there was other evidence in the record to support the award. See e.g. Doucet v. Doug Ashy Bldg. Materials, Inc., 95-1159 (La.App. 3d Cir.4/3/96), 671 So.2d 1148 (upholding a future medical award where there was evidence of the cost of past medical treatment in the record). However, such evidence is clearly lacking in this case.
Although the evidence showed that as a result of his pain, Mr. Goza would likely continue to require pain medications and would need to consult with Dr. Barrow four times a year for management of his *339 medications, there is no evidence in the record as to the probable cost of that treatment. Dr. Barrow did not testify as to the probable cost of Mr. Goza's future pain management treatment, nor did he provide any testimony as to the cost of Mr. Goza's past pain management treatment. Moreover, the $326,000.81 past medical expense award does not provide a reasonable basis on which to calculate an amount for future pain management treatment because those expenses were stipulated to by the parties without regard to the particular medical treatment Mr. Goza received. Any monetary award for future medical expenses under the circumstances of this case would require sheer speculation by the fact finder. Because Mr. Goza failed to offer evidence to establish future medical expenses with any degree of certainty, I believe the trial court erred in awarding $150,000.00 in future medical expenses, and for that reason, I would reverse the award for future medical expenses.
Opinion Granting Rehearing for Limited Purpose
GUIDRY, J., on rehearing.
In our original opinion, we stated the DOTD had waived any objections raised in its first assignment of error relative to the trial court's exclusion of evidence based on the DOTD's failure to proffer the evidence that it asserts was erroneously excluded by the trial court. Accordingly, we refused to consider the correctness of those rulings in reviewing the judgment appealed. To the extent that DOTD's first assignment of error addressed excluded evidence that it failed to proffer, such as the testimony of its records custodian, we maintain our ruling. However, in its rehearing application, DOTD urges that in its first assignment it further contested the trial court's admonishment to the jury to disregard certain arguments and testimony that were presented. This rehearing is granted for the limited purpose of addressing this specific argument.
DOTD argues that the trial court erred in disallowing any questions regarding the years-long gaps between the dates of the accident reports offered by the plaintiffs as being suggestive of safety and in instructing the jury to disregard the following testimony from its expert witness, David Hall:
So we had three accidents that occurred in 1990, and then we had a gap of five years, which tells me that something must've been done out there in 1990 because we stopped having accidents before the '95 accident occurred, which
Plaintiffs' counsel immediately objected to the testimony, and initially in response to the objection, counsel for the DOTD stated, "I'm not going to ask him anymore about it. He hasn't proved any of this." (Emphasis added.) The DOTD further pointed out that on cross-examination of the plaintiffs' expert witness, John Bates, the DOTD was allowed to elicit testimony regarding the dates of the accident reports that were erroneously admitted by the trial court, but was prohibited from questioning the witness further about whether an inference could be drawn from the plaintiffs' failure to present accident reports for the years between the dates of those reports that were presented at trial. However, due to the lack of foundational evidence in the record, by proffer or otherwise, to support the testimony that the jury was ordered to disregard or the line of questioning the DOTD attempted to present, the trial court's exclusion of the evidence was proper.
The factual basis for an expert opinion determines the credibility of the testimony. An unsupported opinion can offer no assistance to the fact finder, and should not be admitted as expert testimony. *340 Miramon v. Bradley, 96-1872, p. 6 (La.App. 1st Cir.9/23/97), 701 So.2d 475, 478. The trial court's inquiry must be tied to the specific facts of the particular case. The abuse of discretion standard applies to the trial court's ultimate conclusion as to whether to exclude expert witness testimony and to the trial court's decisions as to how to determine reliability. Ashy v. Trotter, 04-612, pp. 18-19 (La.App. 3d Cir.11/10/04), 888 So.2d 344, 356, writs denied, 05-0180, 05-0347 (La.3/24/05), 896 So.2d 1045, 1047. To ensure reliability, the Daubert standard requires that the expert's opinions be grounded in methods and procedures of science, rather than just subjective belief or unsupported speculation. Devall v. Baton Rouge Fire Department, 07-0156, pp. 3-4 (La.App. 1st Cir.11/2/07), 979 So.2d 500, 502. The reliability of a non-scientist expert's testimony, when it is not formulated on scientific research, is still judged using the Daubert standard. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999).
The specific testimony that the jury was ordered to disregard and potential similar testimony the jury was kept from hearing based on the line of questioning the DOTD was prohibited from asking, while being elicited from expert witnesses, was nonetheless speculative, especially in light of the fact that no evidence was offered definitively proving that no accidents occurred during the intervening time periods of the accident reports that were offered by the plaintiffs; whereas there was actual evidence presented by the plaintiffs (as discussed in our original opinion) that other accidents occurred at the same location that were not represented in the accident reports offered by the plaintiffs. So to the extent that the records shows that the testimony the DOTD tried to present to the jury was unsupported, speculative, and contrary to the testimony of other witnesses based on actual, personal knowledge, the trial court did not err in ordering the jury to disregard the testimony of Mr. Hall or in prohibiting the DOTD from eliciting speculative testimony from the expert witnesses presented at trial.
Therefore, having concluded the trial court's exclusion of the referenced testimony was correct, we adhere to the result reached in our original opinion.
REHEARING GRANTED WITHOUT ORAL ARGUMENT FOR THE LIMITED PURPOSE OF CLARIFYING THIS COURT'S ORIGINAL OPINION.
WELCH, J., concurs without reasons.
NOTES
[1] The "§ 152" referred to is 23 U.S.C. § 152, titled "Hazard elimination program," which provides in pertinent part:
Each State shall conduct and systematically maintain an engineering survey of all public roads to identify hazardous locations, sections, and elements, including roadside obstacles and unmarked or poorly marked roads, which may constitute a danger to motorists, bicyclists, and pedestrians, assign priorities for the correction of such locations, sections, and elements, and establish and implement a schedule of projects for their improvement.
23 U.S.C. § 152(a)(1).
[2] The statute has since been amended by 2003 La. Acts, No. 725, § 1; 2003 La. Acts, No. 1077, § 1, effective July 2, 2003; and 2006 La. Acts, No. 545, § 1.
[3] Qualitative is defined as relating to or based on the quality or character of something, often as opposed to its size or quantity. See Webster's Third New International Dictionary 1858 (Philip Babcock Gove, ed., G. & C. Merriam Company 1968).
[4] Mr. Bates described a compound curve as a curve that has an ever-increasing degree of curvature, meaning that it gets tighter and tighter as one goes around the curve.
[5] Although, as previously discussed, accident reports are considered hearsay and therefore incompetent, inadmissible evidence, Mr. Bates' testimony based on this evidence is nevertheless admissible. Article 703 of the Louisiana Code of Evidence provides "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be ... of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." Comment (d) following the text of the article further provides "[u]nder this Article the facts or data underlying the expert witness' opinion may properly be: ... facts or data not admissible in evidence (because, for example, their source is inadmissible hearsay), if they are of a kind reasonably relied upon by experts in the particular field in arriving at their opinions or inferences." It has been held that accident reports are the kind of data reasonably relied upon by experts in the field of accident reconstruction. See Turner v. Lyons, 03-0186, pp. 4-6 (La.App. 4th Cir.1/28/04), 867 So.2d 13, 17-18, writ denied, 04-0741 (La.5/14/04), 872 So.2d 530.
[6] We should point out that the DOTD is appealing the award of future medical expenses, which is subject to the manifest error standard of review, rather than the amount of future medical expenses, which would be subject to the abuse of discretion standard of review. Hymel v. HMO of Louisiana, Inc., 06-0042, p. 27 (La.App. 1st Cir. 11/15/06), 951 So.2d 187, 206, writ denied, 06-2938 (La.2/16/07), 949 So.2d 425.
[7] The other doctors were Dr. Bruce L. Wilkerson and Dr. Paul M. Dammers. Dr. Wilkerson, a cardiothoracic surgeon, primarily treated Mr. Goza in the initial 40-day period right after the accident when he was hospitalized in the Baton Rouge General Medical Center. Dr. Dammers, a clinical, medical, and neuropsychologist, saw Mr. Goza on isolated occasions in 1996, 2000, and 2004 to evaluate him relative to his brain injury and memory problems. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/672874/ | 27 F.3d 969
40 Fed. R. Evid. Serv. 1302
UNITED STATES of America, Plaintiff-Appellee,v.Jerry A. MOORE, Defendant-Appellant.
No. 93-5767.
United States Court of Appeals,Fourth Circuit.
Argued March 11, 1994.Decided June 22, 1994.
ARGUED: Kenneth Joel Haber, Rockville, MD, for appellant. David Glenn Barger, Asst. U.S. Atty., Alexandria, VA, for appellee. ON BRIEF: Bill W. Bourland, Fairfax, VA, for appellant. Helen F. Fahey, U.S. Atty., Alexandria, VA, John M. Hodgens, Jr., Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, DC, for appellee.
Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Judge WILKINS and Judge MICHAEL joined.
OPINION
LUTTIG, Circuit Judge:
1
Appellant Jerry A. Moore was convicted by a jury of thirteen felony counts arising out of several schemes to obtain real estate loans and other economic opportunities by misrepresenting financial information. He challenges his convictions on numerous grounds. Finding no error below, we affirm.
I.
2
In March 1985, Moore prepared fraudulent income tax returns for Brandt Legg, who was seeking financing to purchase a commercial condominium to house his retail stamp business. Using Legg's actual tax returns as models, Moore drafted false 1982-84 income tax returns for both Legg and his business. After consulting with Legg as to what kinds of figures would be plausible, Moore completed the returns with concocted figures that overstated Legg's actual income by two to three times. He stamped the drafts "secret" and made clean handwritten copies of the returns. Contrary to Moore's instructions to copy the returns over in his own handwriting, Legg instead photocopied the returns, signed the copies, and then submitted them to the United Savings Association (USA) in support of his loan application. Relying on these documents, USA loaned Legg $230,000 to purchase the condominium. Moore, who held an option to buy the condominium and accepted a note in consideration of his option, received a $15,000 commission for brokering the deal.
3
In August 1985, Moore applied for a $76,000 loan from the United Savings Association in order to refinance a residential property that he owned. In support of his application, Moore submitted what purported to be copies of his 1982-84 federal income tax returns. These documents, however, overstated the income declared on his actual tax returns by four to seven times.
4
In late 1985, Moore purchased five commercial condominiums in a strip mall in Woodbridge, Virginia, from the mall's developer, Harry Vredenburg. Vredenburg had offered the units for sale for $800,000 and agreed to sell them to Moore at that price. However, in order to obtain financing for the full purchase price rather than just a percentage thereof, Moore persuaded Vredenburg to inflate the price shown on the sales contract. Although Moore was to pay Vredenburg only $800,000, the amount Vredenburg thereafter reported in his tax returns, the contract which Moore submitted to the United Savings Association and Arlington Bank falsely represented that the price was $1,000,000. Those banks loaned Moore a total of $750,000, seventy-five percent of the price shown on the sales contract. Several days before closing, Moore, having secured loans for only $750,000, offered Vredenburg three undeveloped residential lots to make up the difference. Vredenburg, who testified that he thought the lots were worth about $100,000, agreed. At the closing Vredenburg signed a back-dated declaration provided by Moore that represented that the lots were worth $250,000.
5
Moore bought a sixth condominium in the Woodbridge strip mall from Sean McCarthy in June 1986. Moore and his vendor again agreed to misrepresent the purchase price in order to allow Moore to obtain a larger loan. Although Moore was to pay McCarthy only $163,000, the settlement statement reflected a sales price of $220,000. Community Bank and Trust loaned Moore $176,000 which he used to buy the sixth unit from McCarthy.
6
In November 1988, Moore sold the six condominiums for $1,030,000. The fraudulently obtained loans he had used to buy the condominiums were paid off in full, and Moore received a settlement check for $37,290.90 reflecting his net proceeds from the sale. He deposited this check in a federally insured bank.
7
Moore reported his investment in the condominiums in his 1986, 1987, and 1988 federal income tax returns. In these returns, he falsely overstated the purchase prices of the condominiums and took commensurately inflated depreciation deductions.
8
In September 1990, Moore applied for a renewal of a $25,000 line of credit from the Sailors and Merchants Bank. The copy of his 1989 tax return that he submitted in support of his application showed that in 1989 he had had $116,116 in income. However, his actual 1989 tax return showed that he had had only $16,116 in income. At the same time, Moore also submitted financial statements to the Department of Defense supporting his application to serve as an individual surety for a prospective government contractor. These statements also falsely represented that he had $100,000 in income from Atlantic Investment Associates, Inc., and Atlantic Financial Investment Corporation when in reality, that income had not then been and was never realized.
9
In 1992, after Brandt Legg had implicated Moore in their 1985 bank fraud scheme, Moore, accompanied by counsel, was interviewed by an FBI agent, a postal inspector, and two Assistant United States Attorneys about his involvement in preparing Legg's false income tax returns. When shown the fraudulent tax returns which he had prepared for Brandt Legg, Moore falsely denied having prepared them or any other tax returns or financial statements for Legg. Moore also falsely denied that the handwriting was his.
10
In March 1993, Moore was charged with two counts of conspiracy, 18 U.S.C Sec. 371; five counts of bank fraud, id. Sec. 1344; one count of engaging in a monetary transaction in criminally derived property, id. Sec. 1957; three counts of filing false income tax returns, 26 U.S.C. Sec. 7206(1); and two counts of making false statements, 18 U.S.C. Sec. 1001.
11
Three weeks before his trial was to begin, Moore moved for a continuance on account of his health. The district court denied the motion. On the Friday before his Monday trial was to begin--the same day a new attorney joined as co-counsel--Moore renewed his motion, contending that he was physically and psychologically unable to stand trial and psychologically unable to assist in his defense. At the hearing held on the morning of trial, Moore submitted a letter from his psychiatrist stating the opinion that Moore was suffering anxiety and depression that impaired his ability to assist meaningfully in his own defense, and a letter from his cardiologist briefly describing a heart condition for which cardiac catheterization had been recommended. In the alternative to a continuance, Moore requested the scheduling of an evidentiary hearing at which his psychiatrist would be called to testify. After considering the government's offer of proof, to which the defense acceded, the court found that Moore was able to stand trial, and denied the continuance.
12
The jury convicted Moore on all charges. He was sentenced to five years imprisonment for the crimes committed before the effective date of the Sentencing Guidelines, and to a concurrent thirty-six month sentence for those committed after that date.
II.
13
Moore first contends that the district court erred in refusing to continue his trial on account of his mental and physical condition. A district court's decision to deny a continuance may be disturbed on appeal only for abuse of the broad discretion entrusted to it in such matters. See Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1615-16, 75 L.Ed.2d 610 (1983); United States v. Brown, 821 F.2d 986, 988 (4th Cir.1987). We do not review the court's decision de novo, but instead must determine only whether the court had before it sufficient evidence to support the exercise of its discretion. Id.; United States v. Zannino, 895 F.2d 1, 13 (1st Cir.), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990).
14
More than sufficient evidence supported the court's findings that Moore was capable both of assisting in his own defense and of standing trial. In response to the government's proffered evidence of his ability to assist in his defense, Moore's counsel conceded that Moore had actively participated in readying his defense by contacting and interviewing witnesses, preparing documents, and working closely with his lawyers. Indeed, it was admitted that Moore had met with his lawyers and worked with them into the night on each of the three days before his trial began. J.A. at 115. The only evidence before the court to the contrary was a brief letter from a psychiatrist reporting that Moore was suffering from stress, anxiety, and depression of such proportions that his concentration and attentiveness were impaired and that medication had been prescribed. The psychiatrist's opinion that Moore was unable to participate meaningfully in his defense was, however, completely belied by Moore's admitted efforts in preparing for the trial. While it was no doubt true that Moore, facing trial on serious charges, was anxious and depressed, the court's conclusion that he was nonetheless capable of assisting in his defense and testifying on his own behalf was adequately supported by the evidence in the record. See United States v. Alexander, 869 F.2d 808, 811 (5th Cir.1989) (continuance properly denied where defendant suffered from acute anxiety, but had no disease or defect which would prevent him from testifying or assisting in his defense), cert. denied, 493 U.S. 1069, 110 S.Ct. 1110, 107 L.Ed.2d 1018 (1990).1 This conclusion was borne out by the court's observations during the first day of trial that, notwithstanding a need for frequent urination that ultimately prompted Moore to have himself catheterized, Moore did not appear to be in any acute distress and consulted with his counsel throughout the proceedings. See R. at 256, Vol. 2; id. at 2-3, Vol. 5.
15
There was likewise no evidence that the medical or psychological consequences of proceeding with trial would be out of the ordinary or substantially endanger Moore's life. Although the cardiologist's letter and the statements of his attorney established that Moore suffered from some heart disease, there was no evidence other than the speculation of his psychiatrist that his condition was so serious that the pressures of trial would "pose a substantial danger to [his] life or health." Brown, 821 F.2d at 988. The district court did not abuse its discretion by denying Moore's request for a continuance.2III.
16
Moore also challenges two of the district court's evidentiary rulings. He claims that the court admitted evidence of Moore's 1993 bankruptcy for an improper purpose, see Fed.R.Evid. 404(b); and impermissibly excluded impeachment evidence as unnecessarily cumulative, see Fed.R.Evid. 403, and as hearsay, see Fed.R.Evid. 802. A district court's evidentiary rulings are entitled to substantial deference and will not be reversed absent a clear abuse of discretion. See United States v. Russell, 971 F.2d 1098, 1104 (4th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1013, 122 L.Ed.2d 161 (1993). We will find that discretion to have been abused only when the district court acted "arbitrarily or irrationally." United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.1993).
A.
17
In its opening statement, the defense stated that Moore was an honest man and explained that it would "present some character witnesses about his general reputation and honesty in the community." J.A. at 401. It then called a number of character witnesses who described Moore as honest and trustworthy in his personal and business dealings. E.g., id. at 406 (Frank Vanderhayden); id. at 410 (James C. Love); id. at 448 (Irving A. Dow).3 Over objection, the district court allowed the government to question one of those witnesses, James C. Love, about Moore's 1993 bankruptcy. The government elicited testimony from Love, who had been Moore's attorney and had become one of his creditors, that Moore had declared bankruptcy and defaulted on loans from five or six banks totaling hundreds of thousands of dollars. See id. at 437-38. Moore contends that this evidence of his bankruptcy was inadmissible under Fed.R.Evid. 404(b) as it was probative only of his character.
18
Evidence of a defendant's character, while not generally admissible, may be offered by the government to rebut character evidence introduced by the accused. Fed.R.Evid. 404(a)(1). Here, at defense counsel's prompting, several witnesses testified to Moore's trustworthiness in business, stating, for example, that they would have no hesitation entering into business with him, J.A. at 406, and that they had considered him a trustworthy borrower, id. at 342. Once Moore introduced evidence of his trustworthiness and dependability in business matters, his claim to possession of those traits was open to rebuttal by the government under Rule 404(a)(1), either by direct testimony of reputation, or, as here, by inquiry on cross-examination into relevant instances of conduct, see Fed.R.Evid. 405(a). See, e.g., United States v. Jordan, 722 F.2d 353, 359 (7th Cir.1983); see also Michelson v. United States, 335 U.S. 469, 479, 69 S.Ct. 213, 220, 93 L.Ed. 168 (1948). Given that Moore had "opened the door" by soliciting favorable opinions about his character, the district court properly allowed the government to rebut the offered testimony.
B.
19
Moore also complains that the district court refused to admit into evidence an investigative report, compiled in connection with Legg's bankruptcy, which related the statement of Anthony Bonet. In that report, the bankruptcy examiner wrote:In regards to the tax returns, Bonet stated that Brandt Legg disguised his handwriting in filling out some reports and that he (Bonet) typed some of them as dictated by Brandt Legg.
20
J.A. at 498. On recross-examination, while questioning Legg about having forged documents, defense counsel read the relevant portion of the report to Legg verbatim. See J.A. at 187-88. Legg conceded that the examiner might have written that Bonet had said that Legg had disguised his handwriting, but he specifically denied ever disguising his handwriting other than on the two occasions he had previously admitted. See id. at 188. The district court denied defense counsel's subsequent motion to admit the report on the grounds that it was both hearsay and cumulative.
21
Except for evidence of conviction of a crime as provided in Rule 609, extrinsic evidence of specific instances of conduct may not be used to impeach a witness' credibility. Fed.R.Evid. 608(b); United States v. Bynum, 3 F.3d 769, 772 (4th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1105, 127 L.Ed.2d 416 (1994). "A cross-examiner may inquire into specific incidents of conduct, but does so at the peril of not being able to rebut the witness' denials." Id. Here, seeking to impeach Legg's credibility by suggesting that it was he who had prepared the fraudulent tax returns and that his testimony inculpating Moore was untrue, the defense asked Legg if he had ever disguised his handwriting in filling out tax forms. Legg denied that he ever had. The court's refusal to admit the report into evidence for the purpose of impeaching Legg by extrinsic evidence was wholly proper.
22
Additionally, Bonet's statement, as related by the bankruptcy examiner's report, was inadmissible hearsay. Even assuming that the report itself fell within the public records exception to the hearsay rule, Fed.R.Evid. 803(8), Bonet's statement to the examiner, which was contained in that report, is hearsay and inadmissible unless some exception to the hearsay rule applies. See Fed.R.Evid. 802. Neither of the two exceptions advanced on appeal is applicable. Since the district court specifically found that there were insufficient guarantees of trustworthiness attending Bonet's statement, see J.A. at 419, the catch-all exception, see Fed.R.Evid. 803(24), cannot apply. And, assuming Bonet's statement can be understood to have potentially exposed him to criminal liability, it was not shown that he was unavailable, see Fed.R.Evid. 804(a), as required as a precondition for application of the statement against penal interest exception, see Fed.R.Evid. 804(b)(3). Furthermore, since the relevant portion of the report had already been read verbatim in the presence of the jury and identified as coming from the bankruptcy report, see J.A. at 188, it lay within the discretion of the district court to exclude the report as cumulative. See Fed.R.Evid. 403.
IV.
23
In November 1988, Moore sold the six condominiums he had purchased with the fraudulently obtained funds and, at settlement, received a check for approximately $37,000, which he then deposited in a federally insured bank. He was convicted under 18 U.S.C. Sec. 1957 of engaging in a monetary transaction--the deposit--in property derived from bank fraud.4
A.
24
Moore contends first that his conviction under section 1957 violates the ex post facto clause of the Constitution, U.S. Const. Art I, Sec. 9, cl. 3. Section 1957 was enacted on October 27, 1986, after Moore had obtained the loans and purchased the condominiums, but well before he sold them and deposited his proceeds in the bank. According to Moore, by making criminal the deposit of the money he earned from the sale of the condominiums, section 1957 restricted his ability to sell lawfully the condominiums which he had purchased before the section was enacted, thereby violating the ex post facto clause. We disagree.
25
In order to violate the ex post facto prohibition, a law "must be retrospective, that is it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (footnotes omitted). "A law is retrospective if it 'changes the legal consequences of acts completed before its effective date.' " Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987) (quoting Weaver, 450 U.S. at 31, 101 S.Ct. at 965.). As the Supreme Court recently explained, the ex post facto prohibition is violated only by an application of a statute
26
which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with a crime of any defense available according to law at the time when the act was committed.
27
Collins v. Youngblood, 497 U.S. 37, 42-43, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 68, 70 L.Ed. 216 (1925)).
28
Application of section 1957 to Moore's transaction simply does not meet this standard. The monetary transaction in criminally derived property for which Moore was convicted--the deposit--followed section 1957's effective date by more than two years. Although the property was acquired before section 1957 made subsequent transactions in the property illegal, the criminal acts for which Moore is being punished were committed after that date. Cf. United States v. Porter, 909 F.2d 789, 793 (4th Cir.1990) (ex post facto clause not violated by application of Sentencing Guidelines to conviction for laundering money that had been amassed prior to Guideline's effective date). In short, the transaction for which Moore was convicted was illegal under section 1957 when that transaction was consummated. And, while the enactment of section 1957 prospectively restricted Moore's ability to dispose of the condominiums he had lawfully purchased, it did not retrospectively make having purchased or owned them punishable as crimes. Moore's conviction under section 1957 does not, therefore, violate the ex post facto prohibition.
B.
29
Moore next contends that insufficient evidence supported his conviction under section 1957. Specifically, he argues that the evidence failed to exclude the possibility that the $37,000 was the equity he had previously held in the parcels of land that he had used, along with the fraudulently obtained funds, to buy the condominiums. Those fraudulently obtained funds, he maintains, were repaid in their entirety to the banks at the closing, leaving him only his legitimate equity.
30
Section 1957 prohibits "monetary transaction[s] in criminally derived property." "Monetary transaction" is defined to mean "the deposit, withdrawal, transfer, or exchange ... of funds or a monetary instrument ... by or through a financial institution," see 18 U.S.C. Sec. 1957(f)(1), and "criminally derived property" is defined as "any property constituting, or derived from, proceeds obtained from a criminal offense," see id. Sec. 1957(f)(2). Thus, the government has the burden of proving that the funds or monetary instruments used in a transaction either themselves constitute, or are derived from, the proceeds of specified criminal activity.
31
To satisfy this burden where the funds used in the particular transaction originated from a single source of commingled illegally-acquired and legally-acquired funds or from an asset purchased with such commingled funds, the government is not required to prove that no "untainted" funds were involved, or that the funds used in the transaction were exclusively derived from the specified unlawful activity. See United States v. Johnson, 971 F.2d 562, 570 (10th Cir.1992); cf. United States v. Jackson, 935 F.2d 832, 840 (7th Cir.1991) (18 U.S.C. Sec. 1956 does not require the government to prove origin of funds drawn from bank account containing commingled funds). Money is fungible, and when funds obtained from unlawful activity have been combined with funds from lawful activity into a single asset, the illicitly-acquired funds and the legitimately-acquired funds (or the respective portions of the property purchased with each) cannot be distinguished from each other, see Johnson, 971 F.2d at 570; that is, they cannot be traced to any particular source, absent resort to accepted, but arbitrary, accounting techniques, see United States v. Banco Cafetero Panama, 797 F.2d 1154, 1159-60 (2d Cir.1986) (drug proceeds commingled with legitimate funds are potentially traceable through the "first-in, first-out," pro rata "averaging," and "first-in, last-out" methods). As a consequence, it may be presumed in such circumstances, as the language of section 1957 permits, that the transacted funds, at least up to the full amount originally derived from crime, were the proceeds of the criminal activity or derived from that activity. See Johnson, 971 F.2d at 570; cf. Jackson, 935 F.2d at 840 (section 1956 does not require tracing of origin of funds in bank account containing legitimate and illegitimate monies to determine which funds were used for each transaction); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir.1990) (section 1956 does not require tracing of transacted property to a particular drug sale); United States v. Heath, 970 F.2d 1397, 1403-04 (5th Cir.1992) (government need not trace tainted funds through each interstate transfer from bank account even though the account also contained untainted funds exceeding the amount of individual transfers), cert. denied, --- U.S. ----, 113 S.Ct. 1643, 123 L.Ed.2d 265 (1993). A requirement that the government trace each dollar of the transaction to the criminal, as opposed to the non-criminal activity, would allow individuals effectively to defeat prosecution for money laundering by simply commingling legitimate funds with criminal proceeds. Johnson, 971 F.2d at 570; Jackson, 935 F.2d at 840.5
32
Applying this standard and viewing the evidence in the light most favorable to the government, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982), the evidence was sufficient for the jury to find that the $37,000 which Moore deposited constituted criminally derived property. The evidence showed that Moore purchased the condominiums with $926,000 he had obtained by bank fraud and three legitimate properties estimated to be worth $100,000. The overwhelming bulk of the purchase money for the condominiums, which Moore would otherwise have been unable to acquire, was thus criminally derived. From this, the jury was entitled to conclude, as it did, that when the condominiums were eventually sold, the net proceeds of that sale were in their entirety property derived from or developed out of the proceeds of Moore's bank fraud. Cf. Jackson, 935 F.2d at 840.
V.
33
Moore was also convicted under 18 U.S.C. Sec. 1001 for making a false statement to federal investigators when questioned about his role in preparing Brandt Legg's fraudulent income tax returns. He challenges the sufficiency of the evidence supporting this conviction, arguing that his statement was no more than an exculpatory denial and as such does not fall within section 1001's prohibition.
Section 1001 provides, in pertinent part:
34
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully ... makes any false, fictitious or fraudulent statement or representation ... shall be fined not more than $10,000 or imprisoned not more than five years, or both.
35
Id. As criminal investigations are clearly matters within the jurisdiction of federal law enforcement agencies, see United States v. Rodgers, 466 U.S. 475, 479, 104 S.Ct. 1942, 1946, 80 L.Ed.2d 492 (1984), the broad language of this statute would seem to prohibit making "any" false statement to federal agents investigating a crime. However, concerned by section 1001's expansive sweep and by applications of the statute which, although they do not touch it, see United States v. Steele, 933 F.2d 1313, 1320-21 (6th Cir.) (en banc ), cert. denied, --- U.S. ----, 112 S.Ct. 303, 116 L.Ed.2d 246 (1991); United States v. Rodriguez-Rios, 14 F.3d 1040 (5th Cir.1994) (en banc ); cf. United States v. Dunnigan, --- U.S. ----, ----, 113 S.Ct. 1111, 1117, 122 L.Ed.2d 445 (1993) ("a defendant's right to testify does not include the right to commit perjury"), are "uncomfortably close to the Fifth Amendment," United States v. Lambert, 501 F.2d 943, 946 n. 4 (5th Cir.1974) (en banc ), courts have created an exception to section 1001 for exculpatory answers to questions posed by federal criminal investigators.
36
This circuit has embraced the "exculpatory no" doctrine and excluded from section 1001's ambit denials of guilt made in response to the inquiries of federal officers conducting criminal investigations. United States v. Cogdell, 844 F.2d 179, 183 (4th Cir.1988). In Cogdell we adopted, by a divided panel, the Ninth Circuit's five-factor test which excepts a false statement from section 1001's reach when:
37
(1) it was not made in pursuit of a claim to a privilege or a claim against the government;
38
(2) it was made in response to inquiries initiated by a federal agency or department;
39
(3) it did not pervert the basic functions entrusted by law to the agency;
40
(4) it was made in the context of an investigation rather than of a routine exercise of administrative responsibility; [and]
41
(5) it was made in a situation in which a truthful answer would have incriminated the declarant.
42
Id. (adopting test articulated in United States v. Medina de Perez, 799 F.2d 540, 544 & n. 5 (9th Cir.1986)); see also United States v. Equihua-Juarez, 851 F.2d 1222, 1224 (9th Cir.1988). Since the factors of this test are listed in the conjunctive, failure to satisfy any one of them renders the narrow "exculpatory no" exception inapplicable. United States v. Becker, 855 F.2d 644, 646 (9th Cir.1988).6
43
While the "exculpatory no" doctrine insulates simple denials of guilt from the reach of section 1001, it is clear that under Cogdell 's reasoning, not every attempt at self-exoneration is encompassed by this doctrine. The third prong of our test requires that the false statement "not pervert the basic functions entrusted by law to the agency." Cogdell, 844 F.2d at 183. Although the investigation of crimes is undoubtedly a basic function of federal law enforcement agencies, see Rodgers, 466 U.S. at 479, 104 S.Ct. at 1946, we concluded in Cogdell that a "false denial of guilt does not pervert the investigator's function in the manner the statute was intended to combat." 844 F.2d at 184. A competent investigator, we said, "cannot be overly surprised when a suspected criminal fails to admit guilt" and cannot be expected to abandon his investigation when a suspect makes exculpatory statements. Id. "A false denial of guilt ... is merely one of the ordinary obstacles confronted in a criminal investigation." Id. See also Medina de Perez, 799 F.2d at 546.7 On this reasoning, we held that Cogdell's denial that she committed the crime for which she was under investigation was an "exculpatory no" exempt from section 1001's reach. Cogdell, 844 F.2d at 185. We thereby adopted a limited "exculpatory no" exception for denials of knowledge or participation in criminal conduct.8
44
This narrow exception to section 1001's plain language, however, does not extend to misleading exculpatory stories or affirmative statements other than simple denials of the criminal act that divert the government in its investigation of criminal activity. See also United States v. Bakhtiari, 913 F.2d 1053, 1061-62 (2d Cir.1990) (even if adopted, doctrine would be inapplicable to any statement beyond a simple "no"); United States v. Capo, 791 F.2d 1054, 1069 (2d Cir.1986) (same), vacated in part on other grounds, 817 F.2d 947 (2d Cir.1987) (en banc ); United States v. Duncan, 693 F.2d 971, 976 (9th Cir.1982) (doctrine inapplicable where defendant did not merely say no, but offered affirmative statements), cert. denied, 461 U.S. 961, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983); United States v. Moore, 638 F.2d 1171, 1175-76 (9th Cir.1980) (same); United States v. King, 613 F.2d 670, 674 (7th Cir.1980) ("doctrine is limited to simple negative answers ... without affirmative discursive falsehood"); Paternostro v. United States, 311 F.2d 298, 305 (5th Cir.1962) (doctrine applies to "mere negative responses to questions propounded ... by investigating agent"); United States v. Chevoor, 526 F.2d 178, 184 (1st Cir.1975) ("negative, oral responses to the questioning .... were not statements' within the meaning of 18 U.S.C. Sec. 1001"). Unlike mere denials that one committed a particular act, such statements, particularly ones tending to inculpate others, impair the basic functions of a law enforcement agency by diverting scrutiny and investigative efforts to others. The Ninth Circuit has opined that there is no "meaningful distinction between an exculpatory 'no, I am not guilty,' and a more complete, evasive exculpatory response to a direct question," Medina de Perez, 799 F.2d at 546 n. 9, and has excepted even elaborate exculpatory tales from section 1001's reach, see, e.g., id. at 547; United States v. Myers, 878 F.2d 1142 (9th Cir.1989). However, such an expansive view of the "exculpatory no" exception is, we believe, unwarranted by our precedents.9 And given the thin textual and constitutional foundations of the "exculpatory no" doctrine, see Rodriguez-Rios, 14 F.3d 1040; Steele, 933 F.2d at 1320-21; Cogdell, 844 F.2d at 185-87 (Wilkins, J., dissenting in part); cf. Dunnigan, --- U.S. ----, 113 S.Ct. 1111, we decline to expand this circuit's "exculpatory no" exception beyond the holding of Cogdell; that is, to except more than false denials of guilt from section 1001's coverage.
45
Moore contends that the evidence adduced at trial was insufficient to show that his statement to the investigators was anything other than a "classic exculpatory no." Appellant's Br. at 49.10 The evidence of Moore's statements to the government investigators consisted of the testimony of Postal Inspector Addison and Moore's former attorney, James C. Love. Addison testified that after being shown copies of Brandt Legg's fraudulent individual and corporate tax returns, Moore denied preparing them, J.A. at 194-95, and stated that his handwriting did not appear on the documents, id. at 195. According to Addison, Moore further stated that he had not prepared any tax returns or financial statements for Legg. Id. Love confirmed Addison's testimony, testifying that Moore had admitted that the handwriting on the documents was similar in appearance to his, but then told the investigators that it was not in fact his, R. at 58, Vol. 4, and that he had never prepared the type of corporate income tax form on which it appeared, id. at 59. Viewing the evidence in the light most favorable to the government, Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, and according the government the benefit of all reasonable inferences from that evidence, Tresvant, 677 F.2d at 1021, we conclude that a rational jury could determine, as the jury here did, that Moore's statements to the federal agents were false; that those statements were other than, and went beyond mere, denials of guilt; and that they instead formed an affirmatively misleading story calculated to subvert the government's investigatory efforts.11
46
With Cogdell 's narrow limiting construction of section 1001 in mind, we conclude that Moore's statements, as necessarily found by the jury, do not fall within the "exculpatory no" exception to section 1001. Moore's statements, as established by the evidence adduced at trial, were not direct denials of guilt; that is, they were not negative responses to direct questions of whether Moore had been involved in or had knowledge of the criminal activities then under investigation. Moreover, they were affirmative statements designed to mislead and divert the government's investigation. Moore's statements tended not just to exculpate, but to exculpate by inculpating another, thereby misleading and perverting the investigating agents' basic function. Accordingly, Moore's false statements fell outside the "exculpatory no" exception. We therefore affirm his conviction under section 1001.12
VI.
47
For the reasons stated herein, the district court's judgment on Moore's convictions is affirmed.
48
AFFIRMED.
1
Other courts have upheld denials of continuances in circumstances far more grave than those established here. See, e.g., United States v. Costello, 760 F.2d 1123, 1129 (11th Cir.1985) (refusal to continue sentencing hearing not an abuse of discretion even though defendant, who was acting as his own counsel, had attempted suicide that morning and had been treated with Valium)
2
Moore also contends that the district court erred by denying him an opportunity for an evidentiary hearing. The record shows, however, that on the morning of trial the court entertained argument on the motion and examined all the evidence that Moore submitted. See J.A. at 99-118. We therefore understand Moore's contention to be not that the court erroneously denied him an opportunity to present evidence, but that the court erred by refusing to postpone the trial in order to allow him to present more evidence. Since the evidence before the court fell short of suggesting even a substantial possibility that Moore was unable to assist in his defense or incapable of standing trial, we conclude that the district court did not abuse its discretion. See United States v. Schroeder, 902 F.2d 1469, 1471 (10th Cir.) (district court did not err by refusing to question defendant where defense had failed to proffer evidence of defendant's incompetence), cert. denied, 498 U.S. 867, 111 S.Ct. 181, 112 L.Ed.2d 145 (1990); United States v. Bernstein, 417 F.2d 641, 643 (2d Cir.1969) (court did not abuse its discretion by refusing to hold an evidentiary hearing where the only evidence before the court showed that the defendants were able to stand trial); cf. Latham v. Crofters, Inc., 492 F.2d 913, 915 (4th Cir.1974) (where only evidence before the court suggested a substantial possibility that trial would endanger the defendant's life, court should have afforded defendant an opportunity to offer additional proof)
3
The defense also elicited from several of the government's witnesses favorable testimony concerning Moore's character for honesty and trustworthiness in business. See id. at 274 (Michael Thompson); id. at 309 (A.J. Albanese); id. at 342 (Hugh Patterson)
4
Section 1957(a) prohibits "knowingly engag[ing] ... in a monetary transaction in criminally derived property that is of a value greater than $10,000 and is derived from specified unlawful activity...."
5
The jury was instructed, with the defense's consent, see R. at 168-69, Vol. 4; Def.'s Proposed Jury Instruction No. 22 (as amended), that "[t]he government is not required to trace the property it alleges to be proceeds of specified unlawful activity to a particular underlying offense. It is sufficient if the government proves that the property was the proceeds of specified unlawful activity, generally."
6
Besides our own, only the Eighth Circuit has adopted the Ninth Circuit's five-factor test articulated in Medina de Perez, 799 F.2d at 544 & n. 5. See United States v. Taylor, 907 F.2d 801, 804 (8th Cir.1990). However, four other circuits have adopted the "exculpatory no" doctrine in some form. See United States v. Tabor, 788 F.2d 714, 717-19 (11th Cir.1986); United States v. Fitzgibbon, 619 F.2d 874, 879-80 (10th Cir.1980); United States v. King, 613 F.2d 670, 674-75 (7th Cir.1980); United States v. Chevoor, 526 F.2d 178, 184 (1st Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176 (1976)
The Fifth Circuit, which was the first to accept the "exculpatory no" doctrine, see Paternostro v. United States, 311 F.2d 298, 305 (5th Cir.1962), recently discarded the doctrine as inconsistent with the plain language of section 1001 and unwarranted by Fifth Amendment concerns, see Rodriguez-Rios, 14 F.3d 1040.
7
Some courts have observed that under this reasoning, false denials of guilt may be immaterial and thus outside the scope of section 1001 regardless of the operation of the "exculpatory no" doctrine. See Steele, 933 F.2d at 1321 n. 7; United States v. Alzate-Restreppo, 890 F.2d 1061, 1068 (9th Cir.1989) (Patel, J., and Nelson, J., concurring in judgment)
8
It is plain the substance of Cogdell's statements to the Secret Service agent was simply to deny having committed any criminal act, see id. at 180, although their exact content is unclear
9
Despite our adoption of the Medina de Perez test, our understanding of the "exculpatory no" exception described therein has been relatively constrained. Compare United States v. Holmes, 840 F.2d 246, 249 & n. 4 (4th Cir.) (defendant's use of false name when arrested for illegal gambling did not meet Medina de Perez 's requirements since determination of identity was a routine administrative task and admission of his real name was not incriminating per se, but would only have potentially exposed him to a higher sentence), cert. denied, 488 U.S. 831, 109 S.Ct. 87, 102 L.Ed.2d 63 (1988), with Equihua-Juarez, 851 F.2d at 1225-27 (defendant's use of false name when arrested by the Border Patrol for illegal entry met Medina de Perez 's requirements since determination of identity was an investigative task, admission of his real name would have been incriminating, and use of a false name did not pervert the Border Patrol's law enforcement functions)
10
Moore also contends that the indictment raised the "exculpatory no" defense on its face, and as such failed to charge him with a crime. The indictment averred that when shown three of the fraudulent income tax returns he had prepared for Brandt Legg,
the defendant, JERRY A. MOORE, falsely and fraudulently stated he had not prepared the same and falsely and fraudulently stated that his handwriting did not appear on the same and affirmatively volunteered that he had no role in the preparation of tax returns of financial statements for Brandt H. Legg and, further, that he had no role in any of Legg's financial dealings....
J.A. at 37. For the reasons stated, infra, we find that the indictment charged Moore with affirmative false statements falling outside the "exculpatory no" exception.
11
At the government's request, the jury was accurately instructed on the "exculpatory no" doctrine. See R. at 33-34, Vol. 5
12
Moore raises numerous other assignments of error. Having carefully examined these contentions, we find them to be without merit | 01-03-2023 | 04-16-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1609070/ | 664 So.2d 59 (1995)
Daniel J. THOMAS and Co-op Screw Manufacturing Corp., etc., Appellants,
v.
ALLOY FASTENERS, INC., etc., Appellee.
No. 95-1461.
District Court of Appeal of Florida, Fifth District.
December 8, 1995.
N. James Turner of N. James Turner, P.A., Orlando, for Appellants.
G. Robertson Dilg and Donald H. Gibson of Gray, Harris & Robinson, P.A., Orlando, for Appellee.
PER CURIAM.
Daniel Thomas and Co-op Screw Manufacturing Corp. appeal the order granting Alloy Fasteners, Inc.'s motion for a temporary injunction. For the reasons hereinafter set forth, we affirm as modified.
Appellants argue that an injunction cannot be issued based on the piracy of confidential order edit lists in the absence of evidence that they actually used any of the confidential information. Asserting a complete absence of such evidence, they rely on Lovell Farms, Inc. v. Levy, 641 So.2d 103 (Fla. 3d DCA 1994), to argue that reversal of the injunction is required. In Lovell, the *60 evidence established that the employee had entered into a covenant not to compete governed by paragraph 542.33(2)(a), Florida Statutes (Supp. 1990). This statute precludes a court from entering an injunction
contrary to the public health, safety, or welfare or in any case where the injunction enforces an unreasonable covenant not to compete or where there is no showing of irreparable injury. However, use of specific trade secrets, customer lists, or direct solicitation of existing customers shall be presumed to be an irreparable injury and may be specifically enjoined.
(Emphasis added). In recognition of the statute, the Lovell court held, "Employers now alleging violations of specific trade secrets must be held to their burden to plead and prove the `use' of `specific trade secrets.'" 641 So.2d at 104 (citations omitted). Without establishing that the trade secret was actually used, a former employer cannot obtain an injunction.
Appellee replies that it has not attempted to enforce any noncompete clause none exists but rather it is proceeding pursuant to the Uniform Trade Secrets Act, section 688.003, Florida Statutes (1993), which provides in pertinent part:
(1) Actual or threatened misappropriation may be enjoined.
* * * * * *
(3) In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order.
(Emphasis added). We note that conspicuously absent from this statute is any requirement that the trade secret first be used before its use can be enjoined. Clearly a threatened misappropriation of trade secrets may be enjoined. § 688.003, Fla. Stat. (1993).
The order edit lists taken from Alloy's office by Appellant Daniel J. Thomas contained confidential information not available in the public domain, i.e., the mark-up on the items ordered and the profit margin thereof. The value of the lists lay not so much in the fact that the lists contained the names of customers, as in the fact that they revealed Alloy's pricing and profit structure. This information would obviously be important for a competitor in deciding by how much it could undercut Alloy's prices. Because there is more than sufficient evidence that Thomas misappropriated this confidential information, we affirm the issuance of the injunction.
We agree with Appellants, however, that the trial court did go too far in ordering Appellants not to contact or solicit Alloy's customers. No noncompete clause existed. There was no evidence that Appellants used trade secrets to lure Alloy's customers away from Alloy. Alloy employee Kevin Wilcox testified that customer lists are obtained by "telemarketing, phones, making calls... . You get a list, and start making cold calls, and see what the people need for supplies." There is nothing magical or secret about this method. The names are available from public sources and there was no secret as to the class of likely customers. In the absence of a noncompete contract, Thomas is free to contact old customers. See Mittenzwei v. Industrial Waste Serv., Inc., 618 So.2d 328 (Fla. 3d DCA 1993) (holding that in the absence of a noncompete clause, the former employee was free to contact anyone with whom she had established a relationship while employed by the former employer); Templeton v. Creative Loafing Tampa, Inc., 552 So.2d 288 (Fla. 2d DCA 1989) (holding that former employee could not be enjoined from using his contacts and expertise gained during prior employment where he knew customers on a first name basis, did not need a "secret" list to find them, and no great expertise was needed to gain the information); Keel v. Quality Medical Systems, Inc., 515 So.2d 337 (Fla. 3d DCA 1987) (reversing temporary injunction prohibiting former employee from soliciting the business of his former employer because the customer information was not shown to be confidential or a business or trade secret); Blackstone v. Dade City Osteopathic Clinic, 511 So.2d 1050 (Fla. 2d DCA 1987) (holding that former employee did not take trade secrets when he compiled list of potential clients from his memory, the phone book, and the clients themselves), review denied, 523 So.2d 576 (Fla. 1988). As this court stated in Langford v. Rotech Oxygen & Medical Equipment, *61 Inc., 541 So.2d 1267, 1268 (Fla. 5th DCA 1989), "Competition for business by a competitor is not an actionable interference, even if intentional... . This kind of competition for business is to be expected from former employees who are not bound by a noncompete contract. It is not actionable." Accordingly, that provision in the temporary injunction prohibiting Appellants from contacting or soliciting Alloy's customers is stricken.
AFFIRMED as MODIFIED; REMANDED.
DAUKSCH, GOSHORN and ANTOON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608232/ | 21 So.3d 854 (2009)
Tyrone James TERRY, Appellant,
v.
STATE of Florida, Appellee.
No. 2D07-4813.
District Court of Appeal of Florida, Second District.
September 23, 2009.
James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
Tyrone J. Terry, pro se.
Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
FULMER, Judge.
Tyrone J. Terry appeals his resentencing on count two (simple robbery) of a judgment. In 1996, Terry was sentenced as a habitual offender to twenty years in prison on count two. After serving one year in jail, the remaining nineteen years were suspended and Terry was to serve ten years on probation. He violated his probation and was sentenced on count two to a nonhabitual sentence of nineteen years in prison. He then filed a successful motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), alleging that the nineteen-year sentence imposed on count two was illegal because it exceeded the statutory maximum sentence for a second-degree felony. The trial court resentenced Terry on count two in 2007 to fifteen years, stating "15 years ... [n]ot as a habitual. It's the guidelines, count two."[1]
*855 On appeal, counsel for Terry filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Terry filed a pro se brief raising several claims, most of which are without merit. However, after considering additional briefing pursuant to Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we conclude that Terry is entitled to a new sentencing hearing on count two using a corrected scoresheet.
First, Terry claims that the points for legal restraintwhich were not on the original 1996 scoresheetwere improper. He cites Martinez v. State, 770 So.2d 211 (Fla. 4th DCA 2000), which holds that legal constraint points may only be included on a sentencing scoresheet at the violation of supervision stage if the defendant was under legal constraint at the time of the offense, not at the time of the violation.
The record reflects that Terry was resentenced to a guidelines sentence in 2007 and that the most recent guidelines scoresheet was prepared for use at Terry's violation of probation sentencing. That applicable scoresheet shows that seventeen points for legal constraint were added to that scoresheet after the date of his original sentencing in 1996, and according to Martinez, those points were only appropriate if Terry was under legal constraint at the time of the offense.
Terry also contends that he was never convicted of aggravated assault, which is a conviction listed under prior record on the most recent scoresheet.
Terry properly preserved these scoresheet issues by raising them in a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). See Jackson v. State, 983 So.2d 562, 572 (Fla.2008).
Accordingly, we reverse and remand for a new sentencing hearing with a corrected scoresheet.
Reversed and remanded.
WHATLEY, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.
NOTES
[1] In the 2007 order granting resentencing, the trial court explained that resentencing was necessary because although the court had intended to impose the original suspended habitual sentence after Terry violated his probation, the court actually announced a nonhabitual guidelines sentence of nineteen years. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608009/ | 21 So. 3d 810 (2008)
JOSIE VONAILL JONES
v.
STATE.
No. CR-07-0827.
Court of Criminal Appeals of Alabama.
February 29, 2008.
Decision of the Alabama Court of Criminal Appeals Without Published Opinion Dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/739938/ | 111 F.3d 1447
45 ERC 1126, 27 Envtl. L. Rep. 21,141,97 Cal. Daily Op. Serv. 2847,97 Daily Journal D.A.R. 5029
MARBLED MURRELET, (Brachyramphus marmoratus); NorthernSpotted Owl, (Strix Occidentalis Caurina);Environmental Protection InformationCenter, Plaintiffs-Appellees,v.Bruce BABBITT, Secretary, U.S. Department of Interior, Defendant,andPacific Lumber Company, a Delaware Corporation; ScotiaPacific Holding Company, a Delaware Corporation;Salmon Creek Corporation, a DelawareCorporation, Defendants-Appellants.
No. 96-15617.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Nov. 4, 1996.Decided April 18, 1997.
Jared G. Carter and Frank Shaw Bacik, Rawles, Hinkle, Carter, Behnke & Oglesby, Ukiah, California, for defendants-appellants.
Thomas N. Lippe, Law Offices of Thomas N. Lippe, San Francisco, California, for plaintiffs-appellees.
Appeal from the United States District Court for the Northern District of California, Louis Charles Bechtle, District Judge, Presiding. D.C. No. CV-95-03261-LCB.
Before: NORRIS, KOZINSKI and TASHIMA, Circuit Judges
WILLIAM A. NORRIS, Circuit Judge:
1
In an action filed on behalf of the marbled murrelet and the northern spotted owl under the Endangered Species Act ("ESA") and under the National Environmental Policy Act ("NEPA"), Appellee Environmental Protection Information Center ("EPIC") secured a preliminary injunction enjoining Appellants from conducting logging activities in Humboldt County, California pursuant to eight Timber Harvest Plans ("THPs").
2
The district court granted EPIC's motion for the preliminary injunction because in its view, EPIC had demonstrated (1) the existence of serious questions on the merits as to whether ESA and NEPA had been violated, and (2) a balance of hardships tipping in its favor. Memorandum and Order, filed Apr. 9, 1996, at 39. Because we believe EPIC has failed to demonstrate the existence of serious questions on the merits as to whether ESA and NEPA have been violated, we VACATE the preliminary injunction.
3
Before addressing the merits of the preliminary injunction, we turn briefly to the question whether the district court properly exercised jurisdiction over EPIC's ESA claim.
4
Appellants argue that the district court lacked subject matter jurisdiction over EPIC's ESA claim because EPIC failed to give sixty days notice of intent to sue under § 7 of ESA, as required by § 11(g) of that Act. See 16 U.S.C. § 1540(g)(2)(A)(i). EPIC responds that the requisite sixty day notice of intent to sue was contained in EPIC's March 21, 1995 and April 3, 1995 letters to Appellants, the United States Fish and Wildlife Service ("FWS") and the California Department of Forestry and Fire Protection ("CDF").
5
Because we rule in favor of Appellants on the merits, we need not resolve the fact-specific question whether EPIC's letters gave the required notice of intent to sue.
6
On the merits, we disagree with the district court that EPIC has raised serious questions as to whether FWS engaged in "agency action," as defined in § 7(a)(2) of ESA. Specifically, we disagree with the district court that the FWS concurrence letters were "tantamount to an approval of [Appellants'] THPs under § 919.9(e)." Memorandum and Order, filed Apr. 9, 1996, at 23. Our review of this finding requires a brief review of the statutory landscape.
7
In California, THPs must be approved by CDF. Cal. Pub. Res.Code § 4581. To obtain CDF approval of a THP, plan submitters must proceed in accordance with one of seven alternative procedures for providing information to the Director of CDF. Cal.Code Regs. tit. 14, § 919.9. The information is used by the Director to evaluate whether or not the proposed activity would result in the "take"1 of an individual northern spotted owl. Id.
8
The FWS concurrence letters are at issue because Appellants chose to proceed under § 919.9(e), an option which allows CDF, in making its evaluation, to consider an opinion by FWS that the planned timber operations will not likely result in a take of the owl. See Cal.Code Regs. tit. 14, § 919.9(e).2 The concurrence letters were two such opinions.
9
EPIC argues that the district court was correct that there was a serious question as to whether, in issuing the concurrence letters, FWS engaged in agency action. In its view, CDF delegated its authority to protect endangered species to FWS in Rule 919.9(e), and FWS, in issuing the concurrence letters, accepted that delegation. Appellees' Br. at 19. Thus, according to EPIC, by approving Appellants' Northern Spotted Owl Plan, FWS "enabled [Appellants] to obtain the approval of its THPs by CDF. In essence, [FWS] granted [Appellants] a subsidiary permit necessary for [Appellants] to obtain a permit from CDF." Id.
10
Appellants argue that as a matter of state law, approval of and control over any particular THP rests exclusively with the Director of CDF. See Cal. Pub. Res.Code § 4582.7(e) (providing that the director "shall have the final authority to determine whether a[THP] is in conformance with the [applicable] rules and regulations"); Sierra Club v. State Board of Forestry, 7 Cal.4th 1215, 1220, 32 Cal.Rptr.2d 19, 876 P.2d 505 (1994) (noting that "the [California Board of Forestry] has the ultimate power of approval over a[THP]"). In their view, the state law requirement in § 919.9(e) that Appellants consult with and obtain advice from FWS does not convert that consultation and advice into some kind of "de facto" approval process. Appellants' Br. at 34. The concurrence letters, they argue, "merely set forth FWS' views on how to avoid a violation of [ESA] section 9." Id. at 36.3
11
In Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1074 (9th Cir.1996) ("Murrelet I" ), we decided that the factual evidence presented by EPIC in support of its claim that FWS engaged in "agency action" by providing advice on how the lumber companies could avoid a "take" under § 9 of ESA was insufficient to support the issuance of a preliminary injunction because "nothing in the letter [at issue] justifie[d] an inference that [FWS] has the authority to enforce California's laws or regulations." We said that when an agency lacks the discretion to influence private action, there is no "agency action." Id.
12
In this case, CDF, not FWS, has the discretion to influence the private action at issue. See Cal. Pub. Res.Code § 4582.7(e); Sierra Club v. State Board of Forestry, 7 Cal.4th 1215, 1220, 32 Cal.Rptr.2d 19, 876 P.2d 505 (1994). As FWS stated in its November 20, 1992 concurrence letter, "our concurrence with [Appellants'] Plan does not constitute 'approval' of individual THPs.... [F]inal determinations regarding satisfaction of [section 919.9(e) ] ... remain with the Board and the CDF." Thus, in this case, as in Murrelet I, there is no agency action.
13
Implicit in this decision is our rejection of EPIC's argument that the State of California can somehow "delegate" its authority to influence private action to the federal government. Submission of a letter stating that the proposed management prescription is acceptable to FWS does satisfy Rule 919.9(e)--one of the seven options for providing information to CDF so that the Director of CDF can evaluate whether or not the proposed activity will result in a "take." However, it does so as a matter of state law. While the State of California may choose to credit FWS' opinion on the question whether proposed timber operations will likely result in a take of protected species, it may not, in so doing, force "agency action" onto the federal government.4
14
In sum, there is no evidence of federal discretionary involvement or control over Appellants' THPs. As a result, there is no serious question whether FWS engaged in "agency action" under § 7 of ESA.
15
Because we disagree with the district court's decision that EPIC raised serious questions as to whether FWS engaged in "agency action" under ESA, we necessarily also disagree with the district court's decision that EPIC raised serious questions as to whether FWS engaged in "major federal action" under NEPA. As we said in Murrelet I, "[i]f there is any difference [between 'agency action' and 'major federal action'], case law indicates 'major federal action' is the more exclusive standard." Murrelet I, 83 F.3d at 1074 (citing Sierra Club v. Babbitt, 65 F.3d 1502, 1512 (9th Cir.1995)).
16
The preliminary injunction is VACATED.
1
A "take" occurs when a party "harass[es], harm[s], pursue[s], hunt[s], shoot[s], wound[s], kill[s], trap[s], capture[s], or collect[s], or ... attempt[s] to engage in any such conduct." 16 U.S.C. § 1532(19)
2
Option (e) provides: "If the plan submitter proposes to proceed pursuant to the outcome of a discussion of the proposed THP between the plan submitter and [FWS], the plan submitter shall submit written documentation in the form of a letter ... [stating] that the described or proposed management prescription is acceptable to [FWS]." Cal.Code Regs. tit. 14, § 919.9(e)
3
Section 9 of ESA provides that it is unlawful to "take" any endangered species of fish or wildlife within the United States or the territorial sea of the United States. 16 U.S.C. § 1538(a)(1)(B)
4
EPIC's reliance on Ramsey v. Kantor, 96 F.3d 434, 443 (9th Cir.1996) ("if a federal permit is a prerequisite for a project with adverse impact on the environment, issuance of that permit does constitute major federal action"), is misplaced. Obtaining an FWS concurrence is not a prerequisite to gaining CDF approval of a THP; it is merely one of seven ways to gain CDF approval | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1608429/ | 791 So. 2d 220 (2001)
Eric Shannon MOULDS
v.
Bridget Bushay Fairley BRADLEY.
No. 1999-CA-00994-SCT.
Supreme Court of Mississippi.
August 2, 2001.
*223 Gary L. Roberts, Gautier, for Appellant.
Robert Payne Shepard, Lucedale, for Appellee.
EN BANC.
WALLER, Justice, for the Court:
¶ 1. This appeal involves a father who failed to make court-ordered child support payments and was found guilty of criminal contempt and sentenced to serve thirty days in jail. Bridget Bradley filed a complaint seeking to enforce and modify an earlier child support decree. The complaint was later amended to include the request for the imposition of punitive damages against Eric Shannon Moulds, the father of the couple's child. Although the chancellor refused to award punitive damages, he did find Moulds guilty of criminal contempt, sentencing him to ninety days in the county jail, with sixty days suspended. Finding that the issue of criminal contempt was not properly before the court, we reverse his conviction and sentence. On cross-appeal we affirm the denial of Bridget's claim for an award of punitive damages, but we reverse and remand for the Chancellor to review the award of child support based on the correct amount of Moulds's adjusted gross income.
FACTS AND PROCEEDINGS BELOW
¶ 2. On January 12, 1996, the Chancery Court of George County entered a decree finding Eric Shannon Moulds to be the natural father of Randy Moulds. The decree ordered Moulds, at the time a college student and football player at Mississippi State University, to pay weekly child support in the amount of fifty dollars to Randy's mother, Bridget Bradley. The decree also ordered Moulds to provide medical and dental insurance for Randy when he was financially able to do so. Moulds is also the natural father of three other children by other women, for whom he is currently paying child support.
¶ 3. Following his collegiate playing career, Moulds was drafted by the Buffalo Bills of the National Football League, where he earned an annual salary in excess of $1 million. Despite his improved financial condition, between January 12, 1996, and September 21, 1998, Moulds paid Bradley only $350 in child support and provided no insurance. On September 14, 1998, Bradley filed an amended complaint seeking to enforce the earlier child support decree and to increase the weekly support amounts.[1] On January 7, 1999, Moulds finally paid off his child support arrearage by tendering a check to Bradley in the amount of $7,108.29. On January 11, 1999, Bradley filed a second amended complaint seeking, among other things, an increase in the child support amounts and the imposition of punitive damages for Moulds's past failure to pay child support. At the hearing, held May 11, 1999, the Chancellor raised the possibility of jail time as punishment for Moulds. Bradley had not requested incarceration in her pleadings, and, upon being questioned by the Chancellor, specifically said that she preferred that Moulds be required to pay her punitive damages and not face incarceration. The Chancellor nevertheless found Moulds guilty of wilful, contumacious and criminal contempt and sentenced Moulds to ninety *224 days in the county jail, with sixty days suspended. The Chancellor also found Moulds's increased income was a material change in circumstances and increased Moulds's monthly child support obligation from $200 per month to $1,000 per month.
¶ 4. Moulds filed a timely appeal to this Court from the Chancellor's order finding him guilty of criminal contempt and sentencing him to jail. Bradley cross-appealed, arguing that the amount of child support awarded by the Chancellor inadequate and that the Chancellor erred in not awarding punitive damages against Moulds.
DISCUSSION
Whether Moulds was deprived of due process of law when the chancery court convicted him of criminal contempt and sentenced him to jail for 30 days?[2]
¶ 5. Moulds argues that the Chancellor improperly ordered him incarcerated for criminal contempt without meeting the due process requirements applicable to criminal contempt proceedings. We agree.
¶ 6. The record clearly indicates that the Chancellor found Moulds to be guilty of criminal, rather than civil, contempt. Although a Chancellor has discretion to impose sanctions for both criminal and civil contempt, there is an important distinction between these two forms of contempt. This Court has explained that civil contempt is to coerce action while criminal contempt is to punish for violation of an order of court:
If the purpose of the proceedings is to coerce action or non-action by a party, the order of contempt is characterized as civil. This type contempt proceeding is ordinarily instituted by one of the parties to the litigation who seeks to coerce another party to perform or cease performing an act. The order of contempt is entered by the court for the private benefit of the offended party. Such orders, although imposing a jail sentence, classically provide for termination of the contemnor's sentence upon purging himself of the contempt. The sentence is usually indefinite and not for fixed term. Consequently, it is said that the contemnor `carries the key to his cell in his own pocket.' [citations omitted] On the other hand, a criminal contempt proceeding is maintained solely and simply to vindicate the authority of the court or to punish otherwise for conduct offensive to the public in violation of an order of the court.
Newell v. Hinton, 556 So. 2d 1037, 1044 (Miss.1990); see also Sappington v. Sappington, 245 Miss. 260, 147 So. 2d 494, 498 (1962); Miss.Code Ann. §§ 9-1-17 & 9-5-87 (1991 & Supp.2000).
¶ 7. There are two forms of criminal contempt: direct and constructive. Direct criminal contempt involves words spoken or actions committed in the presence of the court that are calculated to embarrass or prevent the orderly administration of justice. Varvaris v. State, 512 So. 2d 886, 887 (Miss.1987). Punishment for direct contempt may be meted out instantly by the judge in whose presence the offensive conduct was committed, though we have stated that it is wise for a judge faced with personal attacks to wait until the end of the proceedings and have another judge take his place. Purvis v. Purvis, 657 So. 2d 794, 798 (Miss.1995) (citing Mayberry v. Pennsylvania, 400 U.S. *225 455, 463-64, 91 S. Ct. 499, 504, 27 L. Ed. 2d 532 (1971)).
¶ 8. Unlike direct contempt, constructive contempt involves actions which are committed outside the presence of the court. Coleman v. State, 482 So. 2d 221, 222 (Miss.1986); Wood v. State, 227 So. 2d 288 (Miss.1969). Because the alleged contempt (failure to make court-ordered child support payments) occurred outside the presence of the court and Moulds had already paid his obligations, the jail time imposed by the Chancellor was for constructive criminal contempt. In the case of constructive criminal contempt, we have held that defendants must be provided with procedural due process safeguards, including a specification of charges, notice, and a hearing. Purvis, 657 So.2d at 798 (citing Wood, 227 So.2d at 290).
¶ 9. The record clearly supports Moulds's assertion that he was not provided with any notice that he would be tried for criminal contempt at the May 11, 1999, hearing. The contempt sought by Bradley was for the imposition of civil, rather than criminal, sanctions. Bradley's complaint repeatedly states, for example, that "the defendant is in wilful contempt of Court, and this Court should take whatever action is necessary to compel the defendant" to take various actions to comply with the previous orders of the court, including releasing tax returns and providing his address and telephone number. A review of the record indicates that when questioned by the Chancellor about the possibility of Moulds being incarcerated, counsel for Bradley emphatically stated, "I do not think he should go to jail.... Incarceration would be counterproductive for my client.... If he goes to jail that could affect his income.... What we asked for in the complaint, we felt sufficient to get his attention without the need of putting him in jail...." Given the language of the complaint and the above exchange, it is clear that what was sought was the use of civil contempt sanctions to compel, rather than criminal contempt sanctions to punish Moulds.
¶ 10. Without notice of criminal contempt sanctions, Moulds's due process rights were violated. Accordingly, we reverse Moulds's criminal contempt conviction and jail sentence.
CROSS-APPEAL ISSUES
I. Whether the trial court erred in awarding Bradley only $1,000 per month child support where Moulds, had an adjusted gross income of more than $750,000.00.
¶ 11. Bradley argues on cross-appeal that the Chancellor erred in requiring Moulds to pay only $1,000 per month in child support. Bradley argues that the Chancellor miscalculated Moulds's adjusted gross income, and the record supports this assertion. In providing his rationale for increasing Moulds's child-support obligation to $1,000 per month, the Chancellor stated, "This Court has looked at the living expenses of the father which is alleged to be $14,170 a month, which is due out of his adjusted gross income of $32,108.57 a month."
¶ 12. Bradley suggests that the Chancellor arrived at the erroneous conclusion that Moulds's annual adjusted gross income was $ 385,302.84 by deducting taxes from Moulds's adjusted gross income provided in his U.C.C.R. 8.05 disclosure statement. Bradley argues that the Chancellor, in reaching his decision, substantially underestimated Moulds's adjusted gross income by more than $300,000 a year:
That the adjusted gross income of the defendant (Moulds) annually was $385,302.84. In fact, the adjusted gross income was $ 761,435.11. The Chancellor *226 apparently went solely by Moulds' 8.05 statement, without comparing it to Moulds' tax returns. As a result, while the monthly salary was stated as $ 54,166.57 plus 5000 for endorsements, the 1997 tax return attached to the 8.05 showed wages of $1,304,163 which alone equates to a gross monthly salary of $108,680.25. Apparently, Moulds listed his net monthly salary on the 8.05, and then the Chancellor compounded the error by deducting the taxes and allowed withholdings from it, which resulted in the $300,000+ shortage in the finding as to Moulds' income.
It is apparent that the Chancellor incorrectly calculated Moulds's adjusted gross income. Moulds does not argue otherwise in his brief.
¶ 13. However, the Chancellor expressly stated that he was basing his award of $1,000 per month in child support on the needs of the child rather than on the amount of Moulds's salary. In making the required on the record finding for a guidelines departure pursuant to Miss.Code Ann. § 43-19-101 (2000),[3] the Chancellor stated that:
[T]he Court finds that the application of the guidelines in this case are unjust and inappropriate due to the evidence presented as to the needs of the child. Now, we do look at the ability of the father to pay child support, but that is only one factor in reference to the child support. The paramount concern are [sic] the needs of the child. Therefore, the Court finds that the child support should be increased to $1,000/month and this should be retroactive to the filing of the complaint on October 15, 1996.
¶ 14. In child support modification proceedings the Chancellor is accorded substantial discretion and is charged to consider all relevant facts and equities to the end that a decree serving the best interest of the child may be fashioned. This Court's standard of review on appeal is the familiar abuse of discretion standard. Clark v. Myrick, 523 So. 2d 79, 82 (Miss.1988).
¶ 15. In making his ruling, the Chancellor expressly considered and discussed such factors as the child's financial and medical needs, age, cost of schooling, inflationary influences in the community, Moulds's level of income, and the financial condition of Bradley. Even cases in which a parent has extraordinary wealth, the essential purpose of child support remains the support of the child. Miss.Code Ann. § 93-9-7 (1994). However, we are unable to conclude whether an award of $1,000 per month for the support of one child is adequate without the benefit of the Chancellor's analysis using Moulds's correct annual adjusted gross income. The marked disparity between Moulds's income and the amount he is required to pay in child support warrants that this issue be revisited by the Chancellor.
¶ 16. As such, the Chancellor's ruling on the issue of the amount of child support payable by Moulds is reversed and remanded.
II. Whether the trial court erred in dismissing Bradley's claim for punitive damages.
¶ 17. There is no precedent in this State's jurisprudence for the award of punitive damages as a sanction for failing *227 to pay child support. Moreover, Bradley does not cite any authority from other jurisdictions in support of this practice. After a diligent search, we could find only one court awarding punitive damages for criminal contempt, which was deemed a fine, payable to the court, not the opposing party.[4] Accordingly, the Chancellor did not err in denying Bradley's claim for an award of punitive damages.
CONCLUSION
¶ 18. Moulds's conviction for criminal contempt and imposition of jail sentence is reversed. The trial court's judgment is affirmed as to the dismissal of the claim for punitive damages, but reversed and remanded for reconsideration of the child support issue based upon Moulds's correct adjusted annual gross income. Pending the Chancellor's decision on remand of the child support issue, Moulds shall continue to pay Bradley $1,000 per month in child support for the use and benefit of Randy Moulds.
¶ 19. ON DIRECT APPEAL: REVERSED. ON CROSS-APPEAL: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
PITTMAN, C.J., SMITH, MILLS, and COBB, JJ., concur.
EASLEY, J., concurs in result only.
DIAZ, J., concurs with separate written opinion joined by MILLS and EASLEY, JJ. SMITH, WALLER and COBB, JJ., join this opinion in part.
BANKS, P.J., concurs in part and dissents in part with separate written opinion joined by McRAE, P.J.
DIAZ, Justice, concurring:
¶ 20. I agree with the majority that the chancellor correctly denied Bradley's request for punitive damages. I likewise concur with the majority's decision to reverse Moulds's criminal contempt conviction and sentence. While I also agree that the chancellor's award of child support should be remanded for calculation based upon an accurate accounting of Moulds's adjusted gross income, I write separately to address the underlying standards our trial courts utilize when determining what constitutes an adequate award of child support.
¶ 21. Our Legislature has spoken on the issue of child support via Miss.Code Ann. § 43-19-101(1) (2000) wherein enumerated guidelines establish a rebuttable presumption in all judicial or administrative proceedings that one child is entitled to fourteen percent of the father's adjusted gross income.. The guidelines provided in subsection (1) apply unless the judicial or administrative body awarding or modifying the child support award makes a written or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in Miss.Code Ann. § 43-19-103.[5]
*228 ¶ 22. The statute reminds us that the amount of "adjusted gross income" as that term is used in § 43-19-101(1) is calculated by including gross income from all potential sources[6] that may reasonably be expected to be available to the absent parent. Miss.Code Ann. § 43-19-101(3) (2000). Further, when the adjusted gross income of the absent parent is more than $50,000, as is the case here, the court must make a written finding on the record as to whether or not the application of the guidelines established in this section is reasonable. Id.
¶ 23. Moulds's situation is rather unique, comparatively speaking. Most child support cases center on the noncustodial parent's inability, often coupled with an unwillingness, to pay adequate child support. Finally, after lo these many years, Moulds testified that he is ready to accept responsibility for his children and set an example for them by paying all child support currently in arrears. He further testified that he wanted to provide them with opportunities and material possessions that he did not have as a child. I believe this is the hope of every parent for their child. Since Moulds is willing and certainly financially able to offer this support, we must look to the peculiarities of the situation to determine what amount would be reasonable under his circumstances.
¶ 24. What constitutes "reasonable needs" for a child varies with the circumstances of the parties involved. The duty to support a child covers more than the mere necessities of life if the parent can afford to pay more. The majority noted that even in cases in which a parent has extraordinary wealth, the essential purpose is to support the child. I agree. However, this raises the question of "support to what extent?" Often, alimony is awarded to a spouse in a divorce action. Alimony should be reasonable in amount and commensurate with the wife's accustomed standard of living, considering the ability of the husband to pay. Brendel v. Brendel, 566 So. 2d 1269, 1272-73 (Miss. 1990). Among the familiar factors set out for consideration to determine the amount of alimony in Brabham v. Brabham, 226 Miss. 165, 84 So. 2d 147 (1955) are the health of the husband and his earning capacity, the entire sources of income of both parties, the reasonable needs of the child. Brabham, 226 Miss. at 176, 84 So.2d at 153. Additionally, Miss.Code Ann. § 93-5-23 (Supp.2000)[7] provides that each *229 parent must provide support and maintenance relative to their financial ability.
¶ 25. Obviously, there was no marriage in the case sub judice, and Randy's status as an illegitimate child is uncontested. However, the principle remains the same. After an adjudication of paternity, an illegitimate child's legal relationship to the father with regard to financial support is no different than that of a legitimate child born to a marriage that ended in divorce. It flies in the face of good sense to base alimony, in part, on the spouse's ability to pay and not give the same consideration to child support. When child support is given in connection with alimony, the child receives the benefit of living in a style in which the recipient spouse is accustomed in addition to the amount paid specifically for the benefit of the child. By not extending the same consideration to illegitimate children, we effectuate a double standard in which the child suffers through no fault of their own. I believe that when awarding child support, the chancellor should award an amount sufficient to maintain the child in a lifestyle which the non-custodial parent is capable of supporting.
¶ 26. This theory is well founded law in numerous jurisdictions. The standard of living to which a child is entitled should be measured in terms of the standard of living attainable by the income available to the parents rather than by evidence of the manner in which the parents' income is expended and the parents' resulting lifestyle. White v. Marciano, 190 Cal. App. 3d 1026, 235 Cal. Rptr. 779, 782 (1987). Children are not expected to live at a minimal level of comfort while one or more parents enjoy a luxurious lifestyle; they are entitled to a part of the bounty of one parent's good fortune. In re Marriage of Nimmo, 891 P.2d 1002, 1007 (Colo.1995). The trial court should not limit the amount of child support to the child's `shown needs,' because a child is not expected to live at a minimal level of comfort while the non-custodial parent is living a life of luxury. People ex rel. Graham v. Adams, 239 Ill.App.3d 643, 181 Ill. Dec. 541, 608 N.E.2d 614, 616 (1993). The fact that the mother was able to meet the basic needs of the children on less support than she requested does not mean that the children do not have needs that should be addressed by a further increase in child support because the term "need" refers to the general standard of living commensurate with income of parents. Harris v. Harris, 168 Vt. 13, 714 A.2d 626, 633 (1998). When a court is required to exercise discretion in setting a child support obligation, the court must consider the reasonable needs of the child and the obligor's ability to pay. Havens v. Henning, 418 N.W.2d 311, 312 (S.D.1988). See also Galbis v. Nadal, 626 A.2d 26, 31 (D.C.1993)(holding that a child's needs should not be interpreted so narrowly as to deprive child of quality of life enjoyed by non-custodial parent); Bagley v. Bagley, 98 Md.App. 18, 632 A.2d 229, 239 (1993) (holding that children are entitled to every expense reasonable for a child of affluent parent). These cases reflect the same reasoning as is found in Miss.Code Ann. § 43-19-103, which also requires consideration of the total available assets of the obligor.
¶ 27. The majority noted that Moulds's gross monthly salary at the time of trial was approximately $108,600. Since adjudication of this matter, it has been widely reported in the national press that Moulds signed a new six-year contract with the Buffalo Bills totaling just under $60 million, including a $12.5 million signing bonus. Using, for example, a conservative estimate of $40 million over six years will produce a monthly salary of almost *230 $560,000 payable to Moulds. This amount is exclusive of any endorsement contracts, public appearances, and other investments that he may have, all of which should be considered per the language of Miss.Code Ann. § 43-19-101(3) (2000).
¶ 28. On remand, I would allow evidence to be presented concerning changes in the financial conditions of the involved parties to calculate new support payments for Randy. The flexible nature of Moulds's career and our interest in judicial economy warrant that Moulds's present financial condition be considered by the chancellor, thus preventing the need for Bradley to file an immediate petition for modification of child support.
¶ 29. The law presumes that Randy is entitled to child support in the amount of fourteen percent of Moulds's adjusted gross income. Based solely upon those guidelines, Moulds should have been required to pay approximately $8,800 per month under his previous salary. Even if the chancellor finds special circumstances that require departure from the established guidelines, he should not depart downward in a case like this. This fact is made abundantly clear when it was noted at trial that Moulds spent approximately $1500 per month on clothes and $200 per month on child support to Randy, when he chose to pay it. Under the chancellor's findings, the new $1000 threshold is still only approximately one percent of Moulds's previous income. This is unacceptable.
¶ 30. If Moulds is less than forthcoming with the details of his financial affairs, as was the case at trial, I note that it has been held that "where the extraordinarily high earner resists detailed discovery of his or her financial affairs, the trial court may make such assumptions concerning his or her net disposable income, federal income tax filing status, and deductions from gross income as are least beneficial to the extraordinarily high earner." Johnson v. Superior Court, 66 Cal. App. 4th 68, 77 Cal. Rptr. 2d 624, 627 (1998).
¶ 31. As Albright indicates, the polestar consideration is the best interest of the child. Albright v. Albright, 437 So. 2d 1003, 1005 (Miss.1983). I fail to grasp how denying a child the fruits of his father's success can be said to be in the child's best interest.
MILLS and EASLEY, JJ., join this opinion.
SMITH, WALLER and COBB, JJ., join this opinion in part.
BANKS, Presiding Justice, concurring in part and dissenting in part:
¶ 32. I agree with most of what the majority says, but, in my view, a correct assessment of Moulds's adjusted gross makes no difference here, given the fact that it has no bearing on his ability to pay and the chancellor clearly based his award upon the needs of the child. Accordingly, I respectfully dissent from that portion of today's disposition which reverses and remands this case on that issue.
¶ 33. The needs of the child will not change with a correct analysis of "adjusted gross." The chancellor's award was $1,000 per month. Clearly, the error in calculating adjusted gross had no impact upon the chancellor's conclusion concerning the reasonable needs of the child. There was room, within the guidelines, to give a greater amount of support had the chancellor been of the view that the reasonable needs of the child demanded as much.
¶ 34. Justice Diaz's suggestion that child support should be analogized to alimony and adjusted because support comes to one percent of Moulds's income is, in my view, misguided. Child support levels are *231 established, in many instances, where there is no "accustomed" standard of living. Moreover, alimony contains elements of a division of assets after a termination of the marital partnership inappropriate to the parent child relationship. Child support payments are geared to the needs of the child and the parents' obligation to provide for those needs. There is no requirement in law that a parent transfer wealth to a child.
¶ 35. While it is true that reasonable needs of the child of one who is affluent may be more in some instances than the child of one less able to afford the same choices, those differences may not be assumed. For example, a child of an affluent parent who has started a private school and developed a level of comfort there may be deemed to reasonably need to continue. A child with special educational needs may reasonably need additional educational or other expenditures which might be out of reach for a poor but easily within the capability of one who is affluent.
¶ 36. That is not shown to be the case here. The guidelines establish an annual income of $50,000 as the presumptive maximum level for child support at a level of 14% of income for one child and 24% for four children. That would provide child support payment of $567 per month and $1,000 per month for four. For incomes in excess of that $50,000 amount, the court is required to make an explicit finding as to whether the guideline is appropriate.
¶ 37. The chancellor here explicitly calculated the amount that application of the guidelines would produce for four children, $92,472.68 or $ 23,118.17 per child for the four children Moulds is required to support. The chancellor's analysis showed monthly income of $18,000 after deducting for Moulds's living expenses, making even that amount well within Moulds's ability to pay. The court then considered the plaintiff's estimate of the child's needs, $664.29 per month. The court concluded that:
[i]f the Court applied the guidelines, the plaintiff would be awarded the sum of approximately $1900 a month for child support. There has been no testimony which justifies the child support to be $1900 per month. Therefore, the Court finds that the application of the guidelines in this case are unjust and inappropriate due to the fee (sic) presented as to the needs of the child.
¶ 38. The chancellor fully considered the needs of the child and a guideline figure well within that which Moulds could afford given the income figures that the chancellor used. The chancellor found that the guideline figure was excessive. No consideration of a greater income can change that fact. The court set child support in an amount of 50% greater than the plaintiff's estimate of the needs of the child. There is no basis for reversal on this issue. I would affirm the judgment of the chancery court as to child support.
McRAE, P.J., joins this opinion.
NOTES
[1] Bradley originally filed a Complaint for Modification and Contempt on October 18, 1996, on which no action was taken until the Amended Complaint was filed October 15, 1998.
[2] Although Moulds raises a second issue regarding certain remarks and conduct of the Chancellor in determining to incarcerate Moulds, we find his first issue dispositive, and decline to address the second issue.
[3] (4) In cases in which the adjusted gross income as defined in this section is more than Fifty Thousand Dollars ($50,000.00) or less than Five Thousand Dollars ($5,000.00), the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.
[4] See Marriage of Nussbeck, 974 P.2d 493, 498-99 (Colo.1999).
[5] Miss.Code Ann. § 43-19-103 reads in relevant part:
The rebuttable presumption as to the justness or appropriateness of an award or modification of a child support award in this state, based upon the guidelines established by Section 43-19-101, may be overcome by a judicial or administrative body awarding or modifying the child support award by making a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined according to the following criteria: (h) Total available assets of the obligee, obligor and the child.
(i) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.
[6] These potential sources of income include, but are not limited to, the following: wages and salary income; income from self employment; income from commissions; income from investments, including dividends, interest income and income on any trust account or property; annuity and retirement benefits, including an individual retirement account (IRA); any other payments made by any person, private entity, federal or state government or any unit of local government; any income earned from an interest in or from inherited property; any other form of earned income.
[7] Miss.Code Ann. § 93-5-23 reads in pertinent part:
When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage. However, where proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each. (emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608422/ | 791 So. 2d 857 (2001)
Dianne Gove PITTMAN, Appellant
v.
Thomas Franklin PITTMAN, Appellee.
No. 1999-CA-00147-COA.
Court of Appeals of Mississippi.
June 5, 2001.
Rehearing Denied August 7, 2001.
*861 Kay Farese Luckett Turner, Memphis, TN, Attorney for Appellant.
Gary L. Carnathan, Amory, Attorney for Appellee.
Before SOUTHWICK, P.J., IRVING, and MYERS, JJ.
SOUTHWICK, P.J., for the Court:
¶ 1. Diane and Thomas Pittman were divorced by order of the Lee County Chancery Court. Both parties have appealed, raising issues of classification of separate and marital property, the adequacy of alimony and child support, the award of attorney's fees, and certain other matters. We find that several of these issues merit reversal and we reverse and remand for further proceedings.
FACTS
¶ 2. Thomas and Dianne Pittman were married in 1975 while they were students at Emory University. After she completed nursing school, Mrs. Pittman was employed as a nurse while her husband worked on his doctorate at Emory Seminary. Later, the couple moved to Oxford, Mississippi. At first Mr. Pittman was a minister at a local church and Mrs. Pittman continued as a nurse. Mr. Pittman later joined the staff of the Tupelo Daily Journal newspaper as a religion editor and community representative. The couple moved to Tupelo in 1979 because of the job change.
¶ 3. In 1980, Mrs. Pittman's grandmother and the couple purchased a home in which to live together. The grandmother paid half the purchase price while the Pittmans paid the other half. Title to a one half interest in the home was taken in the grandmother's name and the other one half was in the name of the husband and wife. Additional money was spent in renovations with the cost split between the grandmother and the couple. At the grandmother's death in 1990, she left her one half interest solely to Mrs. Pittman.
¶ 4. Mrs. Pittman continued to work until the birth of the couple's first son in 1982. After the birth, she stayed at home to care for their son and for a second son born in 1986. While at home, she cared for the grandmother, children and home as well as worked in the community promoting her husband's career.
¶ 5. Mr. Pittman continued working for the Tupelo Daily Journal and in time moved into a major position at the paper. However, in 1996 the marriage began to unravel, at least in part because of Mr. Pittman's adulterous relationship with one of his co-workers. He moved from the marital home in August 1996 and was given a mandatory leave of absence from the Tupelo Daily Journal in January 1997. He eventually resigned his position. Along with three members of his family, he formed PH Publishing LLC, which purchased another newspaper. He now works for the paper and draws a guaranteed payment per month along with additional expenses paid by the company.
¶ 6. Mr. Pittman filed for divorce in December 1996 citing habitual cruel and inhuman treatment. Mrs. Pittman filed a cross-complaint on the ground of adultery. Mr. Pittman has admitted to the affair and was continuing in it at the time of the trial. After a three-day trial, the chancellor granted Mrs. Pittman a divorce on the ground of adultery. She was awarded custody *862 of the two children and given rehabilitative alimony and child support. The residence was ordered sold and the proceeds divided equally. Mrs. Pittman was granted the household furniture. Additional furniture inherited by Mrs. Pittman was found to be her separate property. The wife's family trust, in which she had only an income interest, was found to be her separate property. Mr. Pittman's pensions and retirement accounts were declared to be his separate property. Both parties appeal on numerous grounds.
DISCUSSION
1. Equitable distribution
¶ 7. Both parties appeal the chancellor's classification and division of their marital and separate property. An appellate court should not reverse a chancellor's ruling unless it is manifestly wrong, clearly erroneous, or an improper legal standard was employed. Arthur v. Arthur, 691 So. 2d 997, 1001 (Miss.1997).
¶ 8. Specific guidelines for the equitable division of marital property have been enunciated. First, the chancellor must identify the property as marital or separate. Hemsley v. Hemsley, 639 So. 2d 909, 914 (Miss.1994). Marital property consists of the assets acquired or accumulated during the course of the marriage. Id. Separate property is that which is acquired before or outside of the marriage. MacDonald v. MacDonald, 698 So. 2d 1079, 1083 (Miss.1997).
a. Equal division of marital home
¶ 9. Mrs. Pittman contends that the chancellor erred in granting Mr. Pittman a one-half interest in the equity of the home. Since she inherited her grandmother's one half interest in the home, Mrs. Pittman contends that one half is her separate property and not subject to equitable division. However, title to property is not relevant in determining whether it is a marital or separate asset. Draper v. Draper, 627 So. 2d 302, 305 (Miss.1993). Whether a spouse has no title at all, or as here, whatever might be the fractional ownership of property, is not conclusive. The possession or proportion of title does not "create any greater property interest for the spouse in whose name it is held, or jointly held. The issue in divorce is which property is `marital property,' subject to equitable distribution, and that determination proceeds absent any presumption based on title." Pearson v. Pearson, 761 So. 2d 157, 163 (Miss.2000).
¶ 10. Therefore, even if legal title in the marital home would be three-quarters in Mrs. Pittman and one-quarter in Mr. Pittman, the chancellor needed to determine whether the house was marital property. Precedents have made it plain that one spouse's contribution of all the funds necessary for the purchase does not guide the court in determining the marital or separate property character. "A spouse who has made a material contribution toward the acquisition of an asset titled in the name of the other may claim an equitable interest in such jointly accumulated property." Draper, 627 So.2d at 305. Under this concept, a wife who stays at home to care for the children or home and does not make direct financial contributions to the marriage still gains an interest in the martial home equivalent to that of a husband. Similarly, we find that a husband who provides for his family by earning the money necessary to pay the expenses can gain an equivalent interest to that of his wife who inherited a substantial interest in the property.
¶ 11. This was the marital home. There is no evidence that Mrs. Pittman used one portion of the home and that it was unavailable to be used by Mr. Pittman. *863 Regardless of whether one spouse purchased the majority of the interest in the home with inherited money or, as here, actually inherited the interest itself, the home is marital property. Perhaps if Mrs. Pittman's grandmother died fairly close to the separation of the spouses, and certainly if she died after the separation, other considerations would arise. But it was appropriate for the chancellor to find this marital home to be marital property.
¶ 12. However, it must be remembered that equitable distribution of marital property does not mean equal distribution. Mississippi is not quite a community property state. However, six years passed after the death of the grandmother and the separation of the parties. During that time Mr. Pittman's income was the principal source of funds for the household. The chancellor found it to be equitable to have the proceeds of the sale of the home divided evenly. We find no error in that exercise of discretion.
b. Bank accounts, life insurance, and retirement/pension plans
¶ 13. Next, Mrs. Pittman contends that the chancellor erred in classifying several checking and saving accounts, three pension or retirement plans, an insurance policy and the interest in PH Publishing, LLC as her husband's separate property.
¶ 14. Retirement and pension plans accumulated during the marriage are marital property subject to equitable division. Godwin v. Godwin, 758 So. 2d 384, 387 (Miss.1999). Therefore, the chancellor erred in finding that the three pension and retirement plans were Mr. Pittman's separate property. They should have been classified as marital property. How they are to be divided is not resolved by that classification. We reverse and remand this issue for equitable division of these marital assets.
¶ 15. Disputed also was the classification as the husband's separate property of two bank accounts that at the time of a financial statement totaled $11,000 and a life insurance policy valued at about $4,000. Mr. Pittman presented evidence that by the time of trial these funds had all been spent on his own living expenses, on mortgage payments on the marital home, on income taxes, and to make his temporary support payments of, at various times, either $1,500 or $3,500 per month. There was proof that the savings account was used to pay 1997 taxes. Mr. Pittman testified that he deposited about $8,750 per month in one of these accounts and had expenses of about the same. For a time the source of at least $5,000 per month of the funds in this account was Mr. Pittman's income from the Tupelo newspaper. It is true that Mr. Pittman made payments during the pendency of the divorce far in excess of what was in those accounts. As to the value of the insurance policy, Mrs. Pittman makes no argument regarding the policy on appeal and thus we will consider only the accounts.
¶ 16. The income earned by a spouse after a separate maintenance order has been found to be separate property. Godwin, 758 So.2d at 386. The significance of the order arises from the fact that legal separation is not recognized in Mississippi. If it were, funds earned thereafter fairly naturally might be considered outside of the marriage. The separate maintenance order in Godwin, an order that remained in effect for seven years, was found to be an equivalent line of division. Id. This Court has distinguished Godwin and found marital assets still to be accumulating when no separate maintenance order is entered. Graham v. Graham, 767 So. 2d 277, 281 (Miss.Ct.App.2000).
*864 ¶ 17. With the Pittmans here, there was a related dividing lineon September 18, 1997, an order was entered requiring temporary support. This is beyond mere physical separation of the parties since a judicial recognition of the separation has been acquired and the procedures of chancery court have been invoked sufficiently to gain a support order. The dissent says that the two kinds of ordersseparate maintenance and temporary supportare distinguishable. Nothing in this opinion says otherwise. Either could be followed by a divorce or by a reconciliation; the dissent's distinctions to the contrary are unconvincing. It is also argued that this elaboration on the Godwin doctrine creates a dilemma for the non-income earning spouse. Seeking support could end the right to share in subsequent increases in the marital estate, while eschewing support could lead to financial struggles. Certainly the latter is true and should be avoided. The existence of the former is not a dilemma but a Godwin "line of demarcation." The divorce itself ends the creation of new marital property. Godwin states that a separate maintenance agreement at least interrupts it as well. What joins the concept of a separate maintenance agreement to that of temporary support is that both are practical recognitions that the spouses are not longer living together as husband and wife and support for separate households must exist. Both are formal but tentative steps to an uncertain destination, perhaps back to a successful marriage or in a different direction to a divorce.
¶ 18. We find that in sufficient relevant ways the temporary support order serves the same purposes as a separate maintenance order and that property accumulated thereafter is separate property.
¶ 19. There is a limit to the Godwin approach:
Assets acquired after an order for separate maintenance should be considered the separate property of the parties, absent a showing of either (1) contribution to the acquisition of the asset by the other spouse as contemplated in our decisions in Ferguson v. Ferguson, 639 So. 2d 921, 928-29 (Miss.1994), and Magee v. Magee, 661 So. 2d 1117, 1123 (Miss.1995) or, (2) acquisition of the asset through the use of marital property.
Godwin, 758 So.2d at 386.
¶ 20. Returning to the accounts with the Godwin line of demarcation in mind, we note that wages or salary earned by a spouse prior to a temporary support or separate maintenance order would be marital property. However, even if the funds in these accounts were initially marital property, the evidence is that they were then used on marital expenses required by the separation. The physical separation began in August 1996; the divorce complaint was filed in December; voluntary payments began in January 1997; but the support order was not entered until September 1997. Only on that last date does the Godwin principle begin to apply.
¶ 21. The account was maintained at an equivalent size because it was replenished each month with Mr. Pittman's salary, but the money in the account at the time of divorce was largely if not entirely separate property. There is no evidence that Mr. Pittman was using what was marital property in the accounts at the time of separation for anything other than the living expenses of them both. The chancellor found no wasteful dissipation of assets by either party and that is not contested on appeal. Had the chancellor classified the accounts as marital property, the effect would be that the separate property then *865 in the accounts, since it was Mr. Pittman's post-support order salary that was then in the account after the initial funds deposited there were spent, would be judicially transformed into marital funds. We find that classifying as separate property the funds then in this checking account and also other accounts that may have been depleted to make marital payments was consistent with the evidence.
¶ 22. To be clear, we are holding only that if marital funds in an account are used for legitimate expenses of both parties during a separation, the person who has been making the disbursements from the account does not, on the facts presented here, then need to provide equivalent amounts of separate funds at the time of the actual divorce as part of a distribution of marital property.
c. Children's educational trusts
¶ 23. Mrs. Pittman also claims that two educational trusts for the children, one with a value of $22,500 and the other valued at $53,000, should have been classified as the children's separate property and not as a marital asset. We find that classifying them as marital property is the better of the imperfect choices, since they are assets that permit the financial needs of the marriage, i.e., the education of children born to the marriage, to be met. However, in evaluating the equity of the division of marital property, the value of these accounts should not be considered equivalent to the dollar value of other marital property. Whichever spouse is assigned this $75,000 marital asset, and here it was the wife who was given the accounts to manage, that dollar figure might at least mentally be excluded from the total value of the assets allocated to that spouse when the chancellor is reviewing the equity of the overall division.
¶ 24. The dissent states that the property should be declared the children's property. That would serve the same purpose as the point made here. Wherever that property is assigned for its management, its value should not be considered as part of the equitable distribution of the marital property to that spouse.
d. Mr. Pittman's five percent interest in new business
¶ 25. The final and significant allegation of error made by Mrs. Pittman on equitable distribution is that her former husband's interest in his new business was classified as separate property. There was evidence that Mr. Pittman did not have to invest financially as did other owners when PH Publishing, LLC was formed. His full-time work on the business was colloquially referred to as "sweat equity" that replaced a capital investment. He worked for a year without pay to gain a five percent interest in the company. Mrs. Pittman alleges that his interest is worth $50,000, and that this should be classified as marital property.
¶ 26. The chancellor found that this was not marital property because Mrs. Pittman had made no contribution to its acquisition. Mr. Pittman began working for the new company in May 1997, several months after the separation but before the September 1997 order for temporary support. Had marital funds been used to buy that interest in the company, then Godwin would hold that the new asset is marital property despite a prior support order. Godwin, 758 So.2d at 386. However, a spouse's income after a court order requiring support is separate property; what that spouse gains in lieu of a cash income would also be separate property. Here, we do not have income but a property interest that is being earned over time in *866 lieu of wages, a share of profits, or other income.
¶ 27. We find it equitable to divide the asset earned as would be divided earned income. For about a third of the time that Mr. Pittman was earning his five percent interest, what he earned would be considered a marital asset. Our understanding of the dissent's view is consistent with this. Whether he is buying the interest with marital funds or earning it through his own labor, the interest being gained is martial property.
¶ 28. It appears that the disagreement with the dissent arises only as to a line of demarcation created by the order for temporary support. It might be argued that Mrs. Pittman would be entitled to have the entire interest considered marital property since the process began before the temporary support order, but we conclude otherwise. However, had Mr. Pittman quit on the day of the support order, apparently no part of the interest would ever have been gained. The marital property nature of the interest did quit on the day of the support order, and thus we find that a fractional allocation is appropriate. This is similar to classifying as a marital asset the percentage of a retirement account that is earned by a spouse during the time period of the marriage. Parker v. Parker, 641 So. 2d 1133, 1138 (Miss.1994).
¶ 29. The chancellor's reliance on the fact that Mrs. Pittman was not contributing to its earning may factually be correct, but this again causes us to turn to Godwin. Until the formality of the court order on temporary support or separate maintenance, the effect of each spouse's earnings remains the same as if the couple were still physically and even happily residing in the marital home, contributing eagerly to each other's needs. We find that Mrs. Pittman is entitled to have some of the interest Mr. Pittman earned in this company be considered a marital asset. Whether it is roughly a third of the five percent, that is, strictly the fraction of the entire year that he worked to earn the interest that starts with his first day on the job and ends with the support order, or whether a different means to calculate the fraction is more equitable for reasons that the parties wish to raise, we leave for consideration on remand.
e. Antique furniture and china, silver and jewelry
¶ 30. Mr. Pittman cross appealed that valuable English and American antique furniture, and certain china, silverware and jewelry inherited by his wife should not have been classified as her separate property. Property accumulated or acquired during the marriage by either party is presumptively a "marital asset" which is subject to equitable division. Hemsley, 639 So.2d at 915. However, among the exceptions are assets inherited by one spouse. Id. at 914. Regardless of the means of acquisition, though, one spouse's separate property that has been utilized for family purposes may lose its separate identity. Johnson v. Johnson, 650 So. 2d 1281, 1286 (Miss.1994). By this use, the separate property may be converted into marital assets, absent an agreement to the contrary. Heigle v. Heigle, 654 So. 2d 895, 897 (Miss.1995).
¶ 31. There was some dispute by the Pittmans regarding whether "commingling" is the proper term for property other than cash in accounts. Quite often, whether funds have been commingled is the issue. E.g., Pearson v. Pearson, 761 So. 2d 157, 164 (Miss.2000); Tillman v. Tillman, 716 So. 2d 1090, 1095 (Miss.1998). Regardless of terminology though, we find that the furniture was transformed into marital property by its placement into the marital abode in the absence of any evidence *867 of exclusive use by Mrs. Pittman. There certainly could be factual questions on the margin of the use of personal property such as thiswas a particular chair or desk only used by the person who inherited it; was some of the property placed in a room or building used only by the spouse who brought the separate property to the marriage? As to one spouse's individual use within the marital abode, though, that may in most circumstances be a matter of who equitably should be assigned that piece as opposed to its not being marital property at all.
¶ 32. Mr. Pittman includes jewelry, china and silver in this claim. The same analysis of use for marital purposes would apply to those items as well. If china and silver was stored and not used, it may well have kept its separate character. If it was used by the couple for entertaining or on other occasions, issues of its becoming marital property arise.
¶ 33. We reverse the finding that the entirety of the inherited property remained Mrs. Pittman's separate property and remand for equitable division. Those proceedings may raise the separateness of individual items of the property, but the presumption is that furniture and other items used by the couple in the marital home have become marital property.
f. Trusts with Mrs. Pittman as income beneficiary
¶ 34. Additionally, Mr. Pittman appeals the classification as separate property of trusts set up by the Mrs. Pittman's grandparents and stocks given her at graduation. The combined value of the trusts at the time of the divorce was about $366,000. The wife is the income beneficiary of the trust, though the income is only $2,560 every three months. Evidence at the trial showed that the wife used the income from the trust as additional financial support for the family. Also, when the couple bought an interest in a vacation home, they borrowed from the trust. However, once the couple separated that property was sold and the trust was reimbursed. The actual trust corpus was not commingled with any marital assets. The trust administrator testified as to the terms of the trust. There was no evidence that Mrs. Pittman can draw upon the corpus other than potentially for a loan; the children are the remainderman though the trust apparently provides that Mrs. Pittman could designate an alternative beneficiary in her will.
¶ 35. We find no error in classifying the trusts as separate property. The income paid to Mrs. Pittman, which is only $850 per month, was included in her financial statement and will be discussed further when we address periodic alimony.
¶ 36. Finally, the stocks inherited and given to the wife by her family were not commingled and were properly classified as separate property.
¶ 37. After remand, the chancellor must classify the property consistently with this opinion. The equitable division that must be made is "based upon a determination of fair market value of the assets, and these valuations should be the initial step before determining division." Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss.1994). No overall value for the marital and separate estates was determined in the initial decree, and that should be corrected on remand.
2. Child support amount and security
¶ 38. Mrs. Pittman argues that the chancellor erred in calculating Mr. Pittman's income for the determination of the amount for child support. The chancellor found that Mr. Pittman's adjusted gross income was $2,540 per month. He was *868 ordered to pay twenty percent of this amount for a total of $569 per month in child support for both minor children including providing medical insurance. Any additional amounts in medical care not covered by the insurance would be split between both parties.
¶ 39. Mrs. Pittman argues that the court should have considered Mr. Pittman's previous salary at the Tupelo Daily Journal instead of his current salary in determining the amount of child support. She cites several cases in which a husband had voluntarily left previous employment to take a job paying less money. In those cases the court found that the children should not suffer and that the court should consider the parent's earning capacity. Selman v. Selman, 722 So. 2d 547, 555 (Miss.1998). In Selman, the Court found that husband's unilateral, voluntary act based on personal preferences does not diminish his responsibility to support his child. Id.
¶ 40. However, there was considerable suggestion in the transcript that Mr. Pittman had little choice except to resign from his previous employment and sign a contract not to compete within a certain geographical area. His voluntary act to have an affair may have been the cause of his departure, but we do not find that to invoke the principles of voluntary reduction in income that we just discussed. After some of the penalty for the affair was exacted, which included the loss both of a job and a marriage, the ex-husband's earning capacity had to be evaluated by the chancellor. We look at that evidence, which as we will discuss includes more than just the dollar amount of his then-current salary, but we do not find controlling what he was making while at the Tupelo paper.
¶ 41. Mr. Pittman and several family members formed a company that purchased a newspaper, where Mr. Pittman now receives a guaranteed payment of $5,375 per month. In addition, he receives several benefits that may be considered income because the company reimburses him or directly pays for some expenses that appear personal in nature. Although this Court does not agree that Mr. Pittman voluntarily chose a lesser paying job, we agree with Mrs. Pittman that his actual income has not accurately been determined. The chancellor must "[d]etermine gross income from all potential sources that may reasonably be expected to be available...." Miss.Code Ann. § 43-19-101(3) (Rev.2000). The chancellor considered only the actual salary. We find that there are substantial additional payments to Mr. Pittman from this closely-held company that replace what otherwise would be personal expenditures by him. Others of the payments are for business purposes and are not allocable as gross income for purposes of applying the guidelines for child support.
¶ 42. In addition, even though we have held that Mr. Pittman's lost income from the Tupelo newspaper is not the basis on which to judge his income, neither do we find that the properly recomputed income from his new position is necessarily the limit of that figure. The new business was just beginning. Assuming that a properly calculated real income for Mr. Pittman is less than what he had previously been making, the chancellor would be justified in evaluating his income capacity with at least some regard for that former employment. Those considerations could lead to a variety of remedies, including providing for periodic re-evaluation of Mr. Pittman's income.
¶ 43. We reverse and remand for a more detailed consideration of the non-salary payments to Mr. Pittman by his employer in order to determine which payments *869 are for normal personal expenses and not properly business expenses. A new estimate of income can be made. His reasonable income capacity may be addressed as well. The passage of time since the original divorce decree may make more easily calculable the income that Mr. Pittman reasonably can expect from his new position.
¶ 44. Mrs. Pittman has also alleged error in the trial court's failure to require Mr. Pittman to maintain a life insurance policy with his children as beneficiaries, to secure the payment of the support. Mr. Pittman presently maintains such a policy voluntarily and argues that a court order is unnecessary. That may well be, but the absence of a court order will leave the matter solely in Mr. Pittman's discretion in the future. Courts can not easily judge commitment and motives, and thus on occasion, orders may be entered to require that which might have been done even without an order. The chancellor should address the issue of life insurance again on remand, but with the primary consideration being what best assures the continuation of child support.
3. Tax exemptions and uncovered medical expenses
¶ 45. Mrs. Pittman argues that she should have been awarded both of the tax exemptions for the two minor children. Each parent was instead given the right to claim one minor child's tax exemption. Mrs. Pittman has custody of both children, but Mr. Pittman provides support for both.
¶ 46. A chancellor has the power to allocate the exemptions in a divorce decree and require the parties to sign the necessary documents to present to the Internal Revenue Service. Nichols v. Tedder, 547 So. 2d 766, 780 (Miss.1989). Equity was achieved by this division of the income tax benefit. We find no error here, nor by the division of the uncovered medical expenses.
4. Periodic Alimony
¶ 47. Mrs. Pittman contends that she should have been awarded long term periodic alimony. Instead, Mr. Pittman was ordered to pay $500 per month for forty-eight months in rehabilitative alimony. When the appellate issue is an alleged inadequacy or denial of alimony, we will reverse only where the decision is seen as so oppressive, unjust or grossly inadequate as to be an abuse of discretion. Monroe v. Monroe, 612 So. 2d 353, 357 (Miss.1992).
¶ 48. In awarding alimony, the following factors must be considered:
(1) The income and expenses of the parties; (2) the health and earning capacities of the parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care; (7) the age of the parties; (8) the standard of living of the parties, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal support order; (10) fault or misconduct; (11) wasteful dissipation of assets by either party; or (12) any other factor deemed by the court to be "just and equitable" in connection with the setting of spousal support.
Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss.1993).
¶ 49. The chancellor explicitly considered each of the factors. We have already found that for one of the factors, the income of the husband, the chancellor erred. Also, Mrs. Pittman's monthly income was erroneously found to be $5,520. *870 This amount included the $2,100 in temporary support that Mrs. Pittman received. That disappeared with the divorce decree. The approximate $850 per month received from the trusts was listed in her financial statement. Mrs. Pittman reported monthly expenses in the amount of $5,593.50 for herself and the two minor children. The chancellor also weighed heavily the two trust funds set up by Mrs. Pittman's family. Mr. Pittman considers that a significant matter as well. So would we if there was evidence that the trusts provided meaningful income to Mrs. Pittman. However, our examination of the testimony is that the trusts are for the couple's children and that Mrs. Pittman receives about $2,000 per quarter from the trusts. Mrs. Pittman was described as the interest income beneficiary without meaningful access to the corpus of the trust. Why a greater amount of income was not earned is unclear, but the amount was not contested at trial. Whatever amount is received should be considered in determining whether periodic alimony is justified, but here there is not nearly sufficient evidence to permit a finding that the trusts eliminate the need for periodic alimony.
¶ 50. Reversal is warranted when the needs of the family cannot be met by the joinder of the alimony with the recipient spouse's earning capacity. Box v. Box, 622 So. 2d 284, 288 (Miss.1993). To the extent of his ability to pay, a former husband is required to support his wife in the manner to which she has become accustomed. Brendel v. Brendel, 566 So. 2d 1269, 1272 (Miss.1990). Though Mrs. Pittman has been a nurse in the past, she had not been employed since their first child was born in 1982. There was no evidence that her re-entry into workforce after this length of time will provide the kind of income necessary to approach that standard of living.
¶ 51. Moreover, Mr. Pittman's income was still reaching its potential after his change of employment. Though we have agreed that his departure from Tupelo should not be analyzed under the voluntary reduction in income caselaw, that former income is a factor in determining that Mr. Pittman is reasonably likely to earn more in the future than he was at the time of the divorce. Even after making allowances for the reduction in Mr. Pittman's present income, we find it manifest error not to have provided some measure of periodic alimony.
¶ 52. We reverse and remand for an appropriate award of periodic alimony.
5. Miscellaneous debts
¶ 53. Joined in Mrs. Pittman's brief with the issue of the sale of the house is that from the equal division of the proceeds of the sale of the house Mrs. Pittman's car loan is to be satisfied. She joins with the argument about tax exemptions an argument that Mr. Pittman should pay all uncovered medical expenses. We make no rulings on those, other than to state that the chancellor on remand should reevaluate those debts based on whatever is done regarding a new equitable distribution of property and the award of periodic alimony.
6. Attorney's Fees
¶ 54. Mrs. Pittman was awarded $4,000 in attorney's fees and the court costs were divided between them. Her attorney had presented evidence of much greater fees. Awarding attorney's fees is in the sound discretion of the chancellor and will be affirmed absent manifest error. Grogan v. Grogan, 641 So. 2d 734, 744 (Miss.1994). Unless the spouse who desires fees can prove an inability to pay, they should be denied. Id.
*871 ¶ 55. If fees are to be awarded, they should be in a sum sufficient to secure a competent attorney. Rees v. Rees, 188 Miss. 256, 194 So. 750 (1940).
The fee depends on ... relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.
McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982).
¶ 56. Since we are reversing on a number of financial issues, we also reverse the amount of the award of attorney's fees. After resolving the other financial matters, the chancellor should again consider whether Mrs. Pittman has an inability to pay and if so, the proper amount of fees under the applicable criteria.
SUMMARY
¶ 57. On remand, there must be a new equitable distribution of the property consistent with our statements regarding various items originally classified as separate property. Mr. Pittman's income must be calculated with due consideration of personal items paid for by P.H. Company, LLC. That will lead to a recomputation of the amount of child support. Periodic alimony must be awarded, considering the proper figures for the incomes of each party. Finally, Mrs. Pittman's entitlement to attorney's fees and their amount should be reconsidered in light of the new distribution.
¶ 58. THE JUDGMENT OF THE CHANCERY COURT OF LEE COUNTY IS AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART. THE COSTS OF THIS APPEAL ARE ASSESSED EQUALLY TO THE PARTIES.
McMILLIN, C.J., BRIDGES, THOMAS, IRVING, MYERS, JJ., CONCUR.
PAYNE, J., CONCURRING IN PART AND DISSENTING IN PART, WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, J.
KING, P.J., JOINS THE MAJORITY OPINION ON ALL ISSUES SAVE THAT OF DECLARING THE CHILDREN'S EDUCATIONAL TRUST TO BE MARITAL PROPERTY, ON THAT ISSUE, HE DISSENTS AND JOINS IN THAT PORTION OF THE DISSENT.
CHANDLER, J., NOT PARTICIPATING.
PAYNE, J., CONCURRING IN PART, DISSENTING IN PART:
¶ 59. I concur with the majority that the chancellor did not abuse his discretion in dividing the marital home equally, and I concur in the majority's decision to reverse and remand for equitable division the issue of the husband's three pension and retirement plans, which the chancellor improperly failed to classify as marital property. I also concur with the majority's resolution on the matters of equitable division of the antique furniture and china, silver, and jewelry, the trusts with Mrs. Pittman as income beneficiary, child support and security, tax exemptions, periodic alimony, and Mrs. Pittman's miscellaneous debts. I dissent, however, to the majority's expansion of the Godwin doctrine concerning separate maintenance, as well as to the majority's classification of the children's education trusts, to findings concerning interest in Mr. Pittman's business *872 and to the decision to reverse the award of attorney's fees to Mrs. Pittman.
¶ 60. First, concerning Godwin, the majority finds "that the temporary support order [serves] the same analytical purposes as a separate maintenance order and that property accumulated thereafter is separate property." I do not read Godwin v. Godwin, 758 So. 2d 384 (Miss.1999), to grant such expansion. In Godwin, the wife filed a complaint for separate maintenance, which the court granted. Godwin, 758 So.2d at (¶ 2). The complaint for divorce came eight years later. In the interim period between the entry of the separate maintenance agreement and the divorce order, the husband's retirement fund increased in value. Concerning equitable distribution, the question arose whether or not the value of the retirement fund should be calculated from the date of the separate maintenance order or from the date of the judgment of divorce. Id. at (¶ 4). The court found:
It is true, of course, that neither the Legislature nor this Court has ever recognized the concept of a "legal separation" in this State's divorce law, and we do not do so in this case. However, an order for separate maintenance is recognized and is viable. Under the circumstances of this case, the order creates a point of demarcation with respect to the parties and their estates.
Assets acquired after an order for separate maintenance should be considered the separate property of the parties, absent a showing of either (1) contribution to the acquisition of the asset by the other spouse as contemplated in our decisions in Ferguson v. Ferguson, 639 So. 2d 921, 928-29 (Miss.1994), and Magee v. Magee, 661 So. 2d 1117, 1123 (Miss.1995) or, (2) acquisition of the asset through the use of marital property.
Id. at (¶¶ 6-7). In the present case, a separate maintenance agreement was not entered, but an order for temporary support was entered. The two concepts are clearly not to be considered one and the same, as the majority seems to conclude. "By definition, `separate maintenance is a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance of her until such time as they may be reconciled to each other.'" Wilbourne v. Wilbourne, 748 So. 2d 184 (¶ 9) (Miss.Ct. App.1999) (citations omitted) (emphasis added). To the contrary, a temporary support order may expressly include alimony, child custody or child support, and is granted in the interim between the separation and the judgment of divorce. See N. SHELTON HAND, JR., MISSISSIPPI DIVORCE, ALIMONY, AND CHILD CUSTODY § 8-3 (5th. ed.2000). So, these two arrangements can easily be distinguished: a temporary support order applies post-separation while the couple awaits the final judgment of divorce, and the separate maintenance arrangement contemplates the couple's reconciliation.
¶ 61. Here, the Pittmans did not seek a separate maintenance order, rather the chancellor issued a temporary judgment concerning what used to be called alimony pendente lite. I do not agree that such order can be seen as parallel to a separate maintenance agreement as to fall under the heading of "line of demarcation." As previously described, with the two concepts having such different definitions, such line was not established, and I see no reason to count assets acquired while litigation is pending as anything other than marital assets. As well, neither this Court nor the supreme court has ruled that temporary support orders should be included under the Godwin rule. Thus, I find the majority's expansion of the doctrine to be improper in this situation.
*873 ¶ 62. Of more serious consequence is the reality that, were we to follow the majority's suggestion to expand Godwin to encompass temporary support orders, the wife would find herself in a "Catch 22" she could either (1) do without a support order until the final divorce in order to entitle herself to equitable distribution of post-separation acquisitions (causing her to "starve" from the outset), or (2) forego equitable distribution to get a temporary support order upon separation, pending the divorce (causing her to "starve" in the end). The majority's attempt to further expand Godwin is unnecessary, is beyond our authority and does not comport with the aforementioned authorities. In accordance with our present law, the date for calculating equitable distribution in a case where a separate maintenance agreement has not been entered is the date of the actual judgment of divorce, regardless of the existence of a temporary support order. Thus, I dissent to this portion of the majority's opinion which elects to expand Godwin to set such date at the entry of a temporary support order, a rule I find not to exist.
¶ 63. Next, concerning the classification of the children's education trusts as marital property, I find that the trusts would better be classified as children's property, with the parents acting as trustees. I arrive at this conclusion by a simple comparison between the purpose of child support payments and the purpose of educational trust funds, which are both treated similarly in caselaw. First, I look to the purpose of child support as described in Professor Hand's book:
The general function of required child support is to allow the child to grow and mature as a total person, and the basis of this obligated support rests upon the presumption that the natural parents will make the best decisions for their offspring as a part of their general care, maintenance, and support.
N. SHELTON HAND, JR., MISSISSIPPI DIVORCE, ALIMONY, AND CHILD CUSTODY § 11-11. Further, this Court has recognized, "[c]hild support is not normally considered the property of the recipient parent, rather that parent is deemed to be receiving the funds in trust for the benefit of the children." Carter v. Carter, 735 So. 2d 1109 (¶ 33) (Miss.Ct.App.1999) (citing Varner v. Varner, 588 So. 2d 428, 432 (Miss. 1991)). Though the parents use the child support funds to "make the best decisions for their offspring as a part of their general care, maintenance, and support," the children are the actual "holders" of the funds, with the parents filling the role as trustees. I compare the purpose and disposal of child support with the purpose for education trust funds for children. The seminal case concerning the duty of a parent to pay college expenses of a child is Pass v. Pass, 238 Miss. 449, 118 So. 2d 769 (1960). In Pass, the Mississippi Supreme Court stated:
[W]here the minor child is worthy of and qualified for a college education and shows an aptitude therefor it is the primary duty of the father, if in reason financially able to do so, to provide funds for the college education of his minor child in the custody of the mother, where the mother and father are divorced and living apart.
Pass, 118 So.2d at 773.[1] If child support is considered to be paid "in trust" for the child, with the child as the actual owner of the funds and the parent assuming a de facto trustee position to use such support *874 to meet the needs of the child, certainly an education trust, set up through payments from a parent and specifically set aside to meet the educational needs of the child, should be treated the same. The majority's election to treat the educational trusts as marital property does not comport with what I have found to be controlling authority. Rather than classifying these funds as marital property, I would find the educational trust funds to be the children's property with the parents merely serving as trustees of the funds. Therefore, I dissent to this portion of the majority's opinion.
¶ 64. Next, concerning the husband's interest in his business, first I would point out what I fear to be a misconstrued statement of law. The majority states: "Had marital funds been used to buy that interest in the company, then Godwin would hold that the new asset is marital property despite a prior support order." I do not believe such a distinction needs to be made. This Court has stated before that, for purposes of equitable distribution, domestic services are equivalent to monetary contributions.[2] The question arises, why then cannot uncompensated work invested in business, which deprives the family of an income from otherwise gainful employment, be calculated as a marital asset? I submit that it can. The majority found that assets acquired from May 1997, when the husband started his business, through September 1997, when the temporary support order was entered, were to be considered marital assets, pursuant to Godwin. The majority further asserts that marital funds were not used to buy the husband's interest in the business. It is true that no cash actually changed hands initially; however, in place of his making a capital investment the husband did contribute a year's worth of full-time "sweat equity" to help get the business off the ground. In foregoing employment elsewhere, which would enable him to bring home a paycheck for the family's use, he deprived his family of further income. Consequently, I submit that a proper valuation of the husband's earning potential is in order as to properly give value to the work the husband did during this time, during which his family saw no tangible "rewards" in the form of monetary substance.
¶ 65. Also, concerning the business, the majority treads on thin ice in making the broad statement, "a spouse's income after a court order requiring support is separate property; what that spouse gains in lieu of a cash income would also be separate property. Here we do not have income but a property interest that is being earned over time in lieu of wages, a share of profits, or other income." As I previously pointed out, I believe that Mr. Pittman's decision to invest his time in the business deprived his family of other income; thus, I would classify any interest gained in lieu of wages to be marital property. Similarly, I take issue with the majority's statement, "It might be argued that Mrs. Pittman would be entitled to have the entire interest considered marital property since the process began before the temporary support order, but we conclude otherwise. Had Mr. Pittman quit on the day of the support order, apparently no part of the *875 interest would ever have been gained." As previously discussed, I would find that both Mr. Pittman's pre-support order earnings and those earnings acquired after the support order are marital assets and would award an equitable share to Mrs. Pittman for these earnings or interest her husband gained.
¶ 66. Finally, I disagree with the majority's decision to reverse and remand on the issue of attorney's fees. I would affirm on this issue as there is an obvious inability to pay on Mrs. Pittman's part, pursuant to the McKee principles. Also, in accordance with the other discrepancies I have found with the majority's opinion, to rule as I have suggested does not create the disparity of estates the majority has created in reversing the chancellor's initial judgment.
¶ 67. For the reasons previously cited, I concur with the majority's finding on those issues not raised in this separate opinion, and dissent to those issues addressed herein.
LEE, J., JOINS THIS SEPARATE WRITTEN OPINION. KING, P.J., JOINS THIS SEPARATE WRITTEN OPINION ON THE ISSUE OF DECLARING THE CHILDREN'S EDUCATIONAL TRUST TO BE MARITAL PROPERTY.
NOTES
[1] The Mississippi Supreme Court has modified Pass in subsequent cases; however, such modifications are not relevant to our discussion here and we do not find it necessary to discuss such subsequent modifications at this time.
[2] "We, today, recognize that marital partners can be equal contributors whether or not they both are at work in the marketplace." Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994).
"We define marital property for the purpose of divorce as being any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor. We assume for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic or otherwise are of equal value." Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441482/ | 2 A.3d 1311 (2010)
IN RE H.D.
No. 09-481.
Supreme Court of Vermont.
May 21, 2010.
Appeal Disposed of Without Published Opinion or Memorandum Decision Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/16158/ | UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30205
Summary Calendar
In the Matter of: GREGORY JAMES CATON,
Debtor.
GREGORY JAMES CATON,
Appellant,
versus
KEVIN TRUDEAU,
Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
October 26, 1998
Before POLITZ, Chief Judge, STEWART and PARKER, Circuit Judges.
POLITZ, Chief Judge:
Gregory James Caton appeals the district court’s affirmance of the
bankruptcy court’s application of collateral estoppel to an Illinois state court
default judgment in its determination that said judgment was nondischargeable
under 11 U.S.C. § 523(a)(6). For the reasons assigned, we affirm.
BACKGROUND
In January 1996, Kevin Trudeau filed a libel suit against Caton in Illinois
state court based on statements Caton made in a book and on an Internet website.
Caton removed the action to federal court, but on Trudeau’s motion, the action was
remanded. Thereafter, Caton failed to respond to Trudeau’s claims and the court
entered a default and noticed an evidentiary hearing. On June 5, 1996, after a
hearing, the court rendered a default judgment against Caton, awarding Trudeau
$5 million in compensatory damages and $5 million in punitive damages.
In November 1996, Caton filed for relief under Chapter 7 of the Bankruptcy
Code. Trudeau filed a complaint therein, seeking to have the Illinois default
judgment declared nondischargeable under section 523(a)(6). Trudeau then moved
for summary judgment, contending that the Illinois judgment for libel per se
established a nondischargeable debt for willful and malicious injury under section
523(a)(6) and further contending that collateral estoppel applied to prevent
relitigation of this issue. Caton responded that collateral estoppel did not apply and
that the claims supporting the Illinois judgment should be litigated in the
bankruptcy court. The bankruptcy court applied collateral estoppel, determined
that the Illinois judgment was nondischargeable under section 523(a)(6), and
granted Trudeau’s summary judgment motion. The district court affirmed; Caton
2
timely appealed.
ANALYSIS
Collateral estoppel applies in bankruptcy dischargeability proceedings, but
the bankruptcy court retains exclusive jurisdiction to determine whether a debt is
dischargeable.1 A bankruptcy court’s decision to give preclusive effect to a state
court judgment is a question of law that we review de novo.2 Because the judgment
in question was entered by an Illinois state court, we apply Illinois rules of
preclusion.3
Under Illinois law collateral estoppel applies when: (1) the issue decided in
the prior adjudication is identical with the one presented in the pending suit; (2) the
party against whom collateral estoppel is asserted was a party or in privity with a
party therein; (3) there was a final judgment on the merits; and (4) the party against
whom collateral estoppel is asserted had a full and fair opportunity to litigate the
issue in the prior suit.4 The existence of these elements is not disputed. Rather,
Caton contends that collateral estoppel does not apply to default judgments and that
1
Grogan v. Garner, 498 U.S. 279 (1991).
2
In re Schwager, 121 F.3d 177 (5th Cir. 1997).
3
In re Pancake, 106 F.3d 1242 (5th Cir. 1997).
4
Talarico v. Dunlap, 685 N.E.2d 325 (Ill. 1997).
3
the state court record presented fails to provide a sufficient basis to support reliance
on the judgment.
The Illinois Supreme Court has not yet determined whether default
judgments are entitled to the same preclusive effect under the doctrine of collateral
estoppel as any other judgment, but it has noted that there is a split of authority on
the issue with some courts giving default judgments limited preclusive effect.5 An
Illinois appellate court, however, recently has held that collateral estoppel may be
applied to a default judgment provided no injustice results from the application.6
This very recent pronouncement forecloses Caton’s contention, and we thus must
conclude that the doctrine of collateral estoppel may be applied to default
judgments under Illinois law.7
For collateral estoppel to apply, a party must have had a full and fair
5
Housing Authority for La Salle County v. YMCA of Ottawa, 461 N.E.2d 959 (Ill.
1984). See also In re Asbury, 195 B.R. 412 (Bankr. E.D. Mo. 1996) (setting forth split of
authority on issue when analyzing Illinois law).
6
Paternity of Rogers, No. 97-353, 1998 WL 381587 (Ill. App. Ct. July 9, 1998). See
also Grisanzio v. Bilka, 511 N.E.2d 762 (Ill. App. Ct. 1987).
7
We note that the majority of the cases relied on by Caton apply federal rules of
collateral estoppel and, thus, are distinguishable. To any extent otherwise, we find the cases
unpersuasive, especially given the recent determination of this issue by an Illinois state court.
See In re Dempster, 182 B.R. 790 (Bankr. N.D. Ill. 1995); In re Dvorak, 118 B.R. 619
(Bankr. N.D. Ill. 1990); In re Martinez, 110 B.R. 353 (Bankr. N.D. Ill. 1990); In re Leigh,
165 B.R. 203 (Bankr. N.D. Ill. 1993); In re Cunningham, 59 B.R. 743 (Bankr. N.D. Ill.
1986).
4
opportunity to litigate the issue in the prior action and there must be no undue
unfairness to the party estopped.8 Caton clearly had a full and fair opportunity to
contest the issue in the state proceeding, and we find no injustice in applying the
doctrine of collateral estoppel in this case. Caton was properly notified of the
proceeding and, in fact, filed a notice of removal therein. After remand, however,
Caton chose not to appear in the proceeding further, even though Trudeau sought
actual and punitive damages in excess of $10 million for libel per se. Under these
circumstances, it cannot be disputed that Caton had an opportunity to litigate.
Caton does not contest that he received notice of the default, as well as the
subsequent evidentiary hearing, and he provides no explanation for his failure to
pursue his legal remedies after the remand.
Caton further contends that the bankruptcy court cannot rely on the Illinois
default judgment because the state record presented is insufficient to support the
judgment. He asserts that the facts supporting the judgment are not discernible
from the record presented and, thus, dischargeability cannot be determined
therefrom. In reviewing the application of collateral estoppel under Texas law, we
have articulated the standard upon which Caton relies; that the record reflect the
finding made and the supporting facts so that the bankruptcy court may determine
8
Rogers, 1998 WL 381587; Talarico, 685 N.E.2d 325.
5
that the pertinent issue was litigated and decided.9 We have never required,
however, that a full state court record be presented.10 We only require that the
record introduced have sufficient detail to allow the use of collateral estoppel.11
Such has been established in the case at bar.
The state record before us contains Trudeau’s complaint wherein he alleges
two counts of libel per se. The complaint details the particular words alleged to be
libelous and incorporates by reference the attached publications in question.
Trudeau also alleges in the complaint that (1) “the statements are false”; (2) the
statements “were made maliciously and intentionally with full knowledge of their
falsity or in complete and reckless disregard of their truth or falsity, for the purpose
of injuring and destroying Trudeau’s personal and professional reputation”; (3) the
statements “impute the commission of a criminal offense to Trudeau, impute the
inability to perform or want of integrity in the discharge of Trudeau’s duties of
employment and prejudice Trudeau in his business and occupation”; and (4) Caton
“acted with actual malice.” Such factual allegations are sufficient to support a
9
Pancake, 106 F.3d 1242; In re King, 103 F.3d 17 (5th Cir. 1997); In re Poston,
735 F.2d 866 (5th Cir. 1984); In re Allman, 735 F.2d 863 (5th Cir. 1984); In re Shuler, 722
F.2d 1253 (5th Cir. 1984).
10
King, 103 F.3d 17; In re Davis, 3 F.3d 113 (5th Cir. 1993).
11
Id.
6
cause of action for libel per se under Illinois law.12
Under Illinois law, by failing to plead Caton admits by default the factual
allegations contained in the complaint.13 The default judgment must rest upon the
allegations of the petition.14 Thus, because the factual allegations are deemed
admitted and the default judgment necessarily rests thereon, we are able to
determine conclusively the issue decided by the court when rendering the default
judgment. The judgment provides that after hearing the case on “prove-up” at
which Trudeau testified, Trudeau is awarded $5 million in compensatory damages
and $5 million in punitive damages.15 Libel being the only cause at issue, and
punitive damages requiring allegations of outrageous conduct or acts perpetrated
by evil motive or with reckless indifference to the rights of others,16 the state court
necessarily determined these issues by rendering the judgment. No additional
record support is required under Illinois law.
12
See Geick v. Kay, 603 N.E.2d 121 (Ill. App. Ct. 1992).
13
People v. $1,124,905 U.S. Currency and One 1988 Chevrolet Astro Van, 685
N.E.2d 1370 (Ill. 1997).
14
See Richards v. Davis, 185 N.E. 586 (Ill. 1933).
15
It is worth noting that this is a sum less than the amount Trudeau sought in his
complaint.
16
See Guice v. Sentinel Technologies, Inc., 689 N.E.2d 355 (Ill. App. Ct. 1997).
7
Having determined that collateral estoppel applies under Illinois law, we turn
to the dischargeability inquiry. Section 523(a)(6) provides that a debt for “willful
or malicious injury” by the debtor is nondischargeable.17 We have defined “willful
and malicious” to mean “without just cause or excuse.”18 “Willful means
intentional and malicious adds the absence of just cause or excuse.”19 There can
be no question, and Caton does not dispute, that a judgment for libel under Illinois
law, and a corresponding award of punitive damages, encompasses intentional
conduct undertaken without just cause or excuse, precluding discharge under
section 523(a)(6). Accordingly, we find no error in the determination by the courts
à quo that the Illinois default judgment had collateral estoppel effect as to section
523(a)(6) dischargeability.
The judgment appealed is AFFIRMED.
17
11 U.S.C. § 523(a)(6).
18
In re Garner, 56 F.3d 677 (5th Cir. 1995).
19
Id. at 681.
8 | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1608016/ | 366 So.2d 157 (1979)
George SLATTERY, Appellant,
v.
WELLS FARGO ARMORED SERVICE CORP., Appellee.
No. 78-1021.
District Court of Appeal of Florida, Third District.
January 16, 1979.
Orr, Nathan & Williams, Miami, for appellant.
Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Miami, for appellee.
Before PEARSON, HENDRY and BARKDULL, JJ.
*158 PER CURIAM.
Appellant/plaintiff, a licensed polygraph operator, appeals from an "order granting summary judgment and summary final judgment" rendered in favor of appellee/defendant Wells Fargo Armored Service Corp., in an action wherein appellant claimed and was denied the following reward offered by appellee:
"$25,000 REWARD"
"Wells Fargo Armored Service Corporation of Florida announces a reward of up to $25,000 for information leading to the arrest and conviction of the person or persons participating in the shooting of a Wells Fargo agent, the subsequent robbery which occurred on Saturday, February 22, 1975 at Miami, Florida, and the recovery of valuables lost as a result of this occurrence."
"Information should be directed to Wells Fargo Armored Service Corporation of Florida, P.O. Box 011028, Miami, Florida 33101, Telephone Number (305) 324-4900. The person or persons to whom the reward or any part thereof should be paid will be determined by the Board of Directors of Wells Fargo Armored Service Corporation of Florida."
Appellant contends that he was entitled to the reward by virtue of his questioning of the perpetrator of the crime during a polygraph examination on an unrelated matter. Such questioning, which occurred on two separate days, eventually resulted in a statement by the perpetrator that he had shot and killed the Wells Fargo guard, which ultimately led to his conviction and sentence for the crime. Appellant argues that, but for his expertise in interrogation and the operation of a polygraph, the authorities would not have linked the perpetrator to the crime. Thus, appellant contends, he is entitled to the reward offered by appellee.
The trial judge, rejecting appellant's argument, entered summary final judgment in favor of appellee on the ground that the offer of reward was never accepted by appellant in that the performance called for by the terms of the offer had not been completed. In particular, the trial judge referred to a stipulation entered into by the parties whereby it was agreed that the stolen property belonging to appellee had not been returned. In that both requirements of the unilateral offer of contract had not been performed (the arrest and conviction of the perpetrator and the return of the stolen property to Wells Fargo) the trial judge determined that appellant had not accepted the offer and thus, no contract had been established. Therefore, the trial judge entered summary final judgment in favor of appellee.
After carefully reviewing the record on appeal, it is our opinion that summary judgment was proper, but not for the reason relied upon by the trial judge. Initially, it must be kept in mind that a reward is contractual in nature, requiring the acceptance of an offer supported by consideration. Sumerel v. Pinder, 83 So.2d 692 (Fla. 1955). The trial judge based his ruling upon the reason that the terms of the offer amounted to dependent covenants, necessitating the performance of each as a prerequisite to an "acceptance." On the other hand, appellant argues that the covenants are independent of each other and acceptance of the offer of reward was completed upon the satisfaction of one covenant (the arrest and conviction of the culprit). Whether or not the conditions of the offer amounted to independent or dependent covenants is a factual question of intent, the resolution of which sub judice, was improper on motion for summary judgment. Duncan Properties, Inc. v. Key Largo Ocean View, Inc., 360 So.2d 471 (Fla. 3d DCA 1978); Mabry Corporation v. Dobry, 141 So.2d 335 (Fla. 2d DCA 1962). As such, the entrance of summary final judgment for the above reason was incorrect, as the record revealed an issue of fact as to the intent of appellee in making its offer of reward.
The record, however, additionally reveals the following facts which do support the entrance of summary judgment. Firstly, while appellant was an independent contractor, *159 during the polygraph interrogation he was employed by either the office of the State Attorney or the Dade County Public Safety Department and was paid for his services on an hourly rate. Further, while so employed, appellant was under a duty to provide his employers with any and all information ascertained by him through interrogation which might be of aid to the State Attorney or Public Safety Department in their capacity as law enforcement agencies.
Secondly, the record demonstrates that through the first day of interrogation, appellant was unaware of the offer of reward. Only on the second day of questioning did appellant have the knowledge that a reward had been offered by appellee. On that second day, the perpetrator of the crime confessed prior to the actual interrogation by appellant.
The law is well settled in this state that before a reward is entitled to be collected, the offeree must have knowledge of the existence of the offer of reward. Sumerel v. Pinder, supra, see generally Annotation, 86 A.L.R.3d 1142, Knowledge of Reward as Condition of Right Thereto (1978). Sub judice, appellant had no knowledge of the reward until the second day of questioning, at which time the perpetrator confessed prior to any interrogation. On this basis alone, summary judgment would have been proper.
We, however, choose to uphold the summary judgment on the ground that appellant was under a pre-existing duty to furnish his employers with all useful information revealed to him through interrogation of the perpetrator. Thus, when appellant "accepted" the offer of reward by furnishing information to the authorities, he was doing no more than he was already bound to do as part of his employment. The performance of a pre-existing duty does not amount to the consideration necessary to support a contract. Brinson v. Herlong, 121 Fla. 505, 164 So. 137 (1935); 7 Fla.Jur. Contracts § 48. As such, no contract was formed.
Further, as a corollary to the above and as a matter of public policy, it is our opinion that to allow appellant to recover a reward for the furnishing of information to the authorities, when he was under a duty to furnish such information as part of his employment, would be tantamount to undermining the integrity and the efforts of those involved in law enforcement. See Davis v. Mathews, 361 F.2d 899 (4th Cir.1966); Chester v. State, 176 So.2d 104 (Fla. 1st DCA 1965); 67 Am.Jur.2d, Reward § 15; American Law Institute, Restatement of the Law of Contracts 2d (Tentative Draft) § 76A.
Accordingly, as no genuine issues of material fact were left unresolved, and as it affirmatively appears that appellee was entitled to judgment as a matter of law, the summary final judgment entered in favor of appellee is hereby affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608117/ | 773 F.Supp. 204 (1991)
GOLDEN STATE TRANSIT CORPORATION, a California corporation, doing business as Yellow Cab of Los Angeles, Plaintiff,
v.
The CITY OF LOS ANGELES, a municipal corporation, Defendant.
No. CV 81-1519 AAH (Tx).
United States District Court, C.D. California.
August 23, 1991.
*205 Zachary D. Fasman, Norman A. Dupont, John P. Carey, Keith F. Millhouse, Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., for Golden State Transit Corp.
Alan I. Rothenberg, Kenneth W. Oder, Brent E. Johnson, Patrick D. Quinlan, Latham & Watkins, Los Angeles, Cal., for City of Los Angeles.
DECISION AND ORDER RE MOTION FOR PRE-JUDGMENT INTEREST AND JUDGMENT
HAUK, Senior District Judge.
This matter came on for hearing before the Court on the issue of prejudgment interest on August 12, 1991, following a jury trial and verdict for Golden State for $4.5 million. The trial followed the issuance of an opinion by the United States Supreme Court, Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989), reversing the Ninth Circuit Court of Appeals in this matter, Golden State Transit Corp. v. City of Los Angeles, 857 F.2d 631 (9th Cir.1988), and remanding the case for further proceedings consistent with the Supreme Court opinion, and pursuant to the filing and spreading by this Court of the mandate of the Ninth Circuit Court of Appeals, 895 F.2d 1281, directing this Court to undertake further proceedings consistent with the Supreme Court opinion.
On the issue of prejudgment interest, this Court having fully considered the points and authorities, proposed findings of fact and conclusions of law, and proposed orders submitted by counsel for the parties; the arguments presented by counsel at the August 12, 1991 hearing; and the supplemental briefs filed during the week following the hearing; and good cause appearing, hereby issues its Decision and Order herein.
*206 I. BACKGROUND AND PROCEDURAL HISTORY[1]
This case arose in 1981 when the Defendant City of Los Angeles (hereinafter "City" or "Defendant") interjected itself into the labor dispute, between Plaintiff Golden State Transit Corporation (hereinafter "Golden State" or "Plaintiff") and its taxicab drivers,[2] by refusing to renew Golden State's taxicab franchise until Golden State settled its labor dispute with its drivers. The City also denied Golden State's application for a rate increase, previously recommended by various subordinate City agencies, and subsequently granted to all of the other taxicab companies. In addition, the City denied Golden State's request to lease taxicabs. Since that time, this case has had a complex, and sometimes tortured, procedural history culminating now in this decision and order by the Court.
Golden State filed this action seeking declaratory and injunctive relief, as well as damages, pursuant to 42 U.S.C. § 1983, on the grounds that the City's action was preempted by the National Labor Relations Act, 29 U.S.C. § 151 et seq. (hereinafter "NLRA"), and violated Golden State's rights to due process of law and equal protection. Golden State later amended the complaint to also allege that the City's action violated Section 1 of the Sherman Act, 15 U.S.C. § 1. On March 30, 1981, this Court, Judge A. Andrew Hauk presiding, granted Golden State's application for a temporary restraining order, and on April 13, 1981, this Court issued a preliminary injunction forbidding the City from terminating Golden State's franchise. See Golden State Transit Corp. v. City of Los Angeles, 520 F.Supp. 191 (C.D.Cal.1981) (Hauk, J.).
The Ninth Circuit Court of Appeals vacated the injunction, holding that neither the federal labor law nor the Equal Protection Clause precluded the City from refusing to renew Golden State's franchise while granting franchises to other taxicab companies. See Golden State Transit Corp. v. City of Los Angeles, 686 F.2d 758 (9th Cir.1982). The Supreme Court denied certiorari. Golden State Transit Corp. v. City of Los Angeles, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 954 (1983).
The case was returned to District Court Judge Cynthia Holcomb Hall.[3] Golden State continued limited operations under the restraining order until April 28, 1983, when Judge Hall, in an unpublished decision, denied Golden State's application for a preliminary injunction. The City then ordered Golden State to cease and desist operation, and Golden State terminated operations.
On April, 28, 1983, Judge Hall also granted partial summary judgment for the City on the Sherman Act cause of action, holding that the City's regulation of the taxicab business was within the "state action" exemption from Sherman Act liability. See Golden State Transit Corp. v. City of Los Angeles, 563 F.Supp. 169 (C.D.Cal.1983) (Hall, J.). The Ninth Circuit affirmed. See Golden State Transit Corp. v. City of Los Angeles, 726 F.2d 1430 (9th Cir.1984).
While Golden State's appeal on the Sherman Act issue was pending, Judge Hall, in another unpublished decision, granted the City summary judgment on Golden State's remaining claims, holding that the City's conduct was not preempted by the NLRA and that Golden State did not allege a sufficient constitutionally protected property interest to give rise to a claim for violation of its due process rights.[4] The Ninth Circuit affirmed on both points. See Golden State Transit Corp. v. City of Los Angeles, 754 F.2d 830 (9th Cir.1985).
The Supreme Court reversed, holding that the City's action was preempted, since the NLRA prevented state and local governments from interfering with the economic weapons of employers or employees. *207 See Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 106 S.Ct. 1395, 89 L.Ed.2d 616 (1986) (Golden State I).
On remand, the case was returned to Judge Hauk, in view of Judge Hall's elevation to the Ninth Circuit Court of Appeals. On September 15, 1986, in an unpublished decision, this Court granted summary judgment for Golden State on the issue of the City's liability, holding that, pursuant to the Supreme Court's decision in Golden State I, the NLRA preempted the City from interfering in Golden State's labor dispute.
On April 23, 1987, this Court held that Golden State was entitled to a mandatory injunction, and the City was required to give Golden State a new four-year franchise. See Golden State Transit Corp. v. City of Los Angeles, 660 F.Supp. 571 (C.D.Cal.1981) (Hauk, J.). In addition, this Court held that Golden State was not entitled to any compensatory damages. The Court found that the City's violation of the Supremacy Clause did not create a right in Golden State that was protected by 42 U.S.C. § 1983 (hereinafter "§ 1983"). Golden State, 660 F.Supp. at 578. The Court also found that the City's violation of the NLRA did not create a cause of action under § 1983, because the NLRA only covered direct violations between management and the union, and even if the NLRA did create a right, Congress had foreclosed a remedy by creating a comprehensive enforcement mechanism. Id. at 579-80. Nevertheless, this Court awarded monetary relief in the form of ancillary damages to support the injunction, in the amount of the salvage value. Id. at 580-81.
However, at the same time that the Court made the above holdings, the Court stayed both the interim judgment and order, and certified both for immediate appeal. Id. at 582. The Ninth Circuit affirmed this decision. See Golden State Transit Corp. v. City of Los Angeles, 857 F.2d 631 (9th Cir.1988).
The Supreme Court reversed and remanded. See Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989) (Golden State II). The Supreme Court reaffirmed the rule that a violation of the Supremacy Clause did not create a cause of action under § 1983. Id. at ___, 110 S.Ct. at 449. However, the Court held that the NLRA did invest in the parties a right not to be interfered with by state or local government. Id. at ___, 110 S.Ct. at 450. Golden State was a beneficiary of the statutory scheme that prevented government interference in the use of economic weapons. Id. Furthermore, Congress did not preclude this action, but created a comprehensive enforcement scheme that protected this right. Id. at ___, 110 S.Ct. at 450-51. Thus, since the City interfered with Golden State's use of economic weapons, Golden State was entitled to maintain a § 1983 action for compensatory damages. Id. at ___, 110 S.Ct. at 452.
Liability already having been determined by this District Court's granting of summary judgment, the case was returned to this Court for a determination of the nature and extent of the compensatory damages to which Golden State was factually and legally entitled. The trial commenced on May 14, 1991. After approximately five weeks of testimony and five days of deliberation, on June 20, 1991, the jury returned a verdict awarding Golden State $4.5 million in compensatory damages, representing the value of Golden State's business in 1981.
The City moved for judgment notwithstanding the verdict and a new trial, or in the alternative, a remittitur. On August 12, 1991, this Court denied both of the City's motions.
Golden State moved for an award of pre-judgment interest.[5] On August 12, 1991, this Court announced its tentative ruling, took the matter under advisement, and the parties filed post-hearing submissions. Thus, the sole issue remaining for resolution *208 by this Court is whether Golden State is entitled to prejudgment interest, and if so, to what extent.[6]
II. MOTION FOR PREJUDGMENT INTEREST
A. Is Prejudgment Interest Available?
Since neither 42 U.S.C. § 1983 nor 42 U.S.C. § 1988 mention the award of prejudgment interest, and there is no general federal statute governing the award of prejudgment interest,[7] this Court must first determine whether it has the power to award prejudgment interest under the appropriate rule of law, and if it does, whether it should award prejudgment interest. This Court notes that the issue of whether prejudgment interest is available under 42 U.S.C. § 1988 appears to be one of first impression for a court within the Ninth Circuit.[8]
1. Choice of Law for Prejudgment Interest
Golden State and the City dispute what law the Court should apply to determine whether prejudgment interest is available under § 1983. In sum, Golden State argues that federal law should apply, and the City argues that state law should apply.
Golden State and the City agree that a three-step analysis is appropriate to determine the rules applicable to civil rights actions, specifically § 1988:[9]
First, courts are to look to the laws of the United States "so far as such laws are suitable to carry [the civil and criminal statutes] into effect." [42 U.S.C. § 1988.] If no suitable federal rule exists, courts undertake the second step by considering application of state "common law, as modified and changed by the constitution and statutes" of the forum State. A third step asserts the predominance of the federal interest: courts are to apply state law only if it is not "inconsistent with the Constitution and laws of the United States."
Burnett v. Grattan, 468 U.S. 42, 47-48, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984) (citations omitted).
Applying the first step, Golden State admits that there is no general federal statute mandating prejudgment interest. However, Golden State contends federal law consists of both statutory and case law. Under federal case law, when a federal statute is silent as to prejudgment interest, the Court should fashion a federal rule which grants or denies prejudgment interest based on the congressional purpose of the particular statute. Rodgers v. United States, 332 U.S. 371, 373, 68 S.Ct. 5, 6-7, 92 L.Ed. 3 (1947). A statute's failure to mention prejudgment interest does not necessarily manifest a congressional intent to bar interest. Id.
In this case, the applicable statute is 42 U.S.C. § 1983. The purpose of a § 1983 damages award is to compensate the plaintiff for injuries caused by the deprivation of constitutional rights. See Carey v. Piphus, 435 U.S. 247, 254, 98 S.Ct. 1042, 1047, 55 L.Ed.2d 252 (1978). Prejudgment interest is an element of compensation, not a penalty. See Western Pacific Fisheries, Inc. v. S.S. President Grant, 730 F.2d *209 1280, 1288 (9th Cir.1984). Therefore, Golden State argues, and this Court concludes, that federal law gives sufficient guidance to determine whether an award of prejudgment interest is appropriate.
The City argues that since federal law is silent as to prejudgment interest, it is "deficient," and therefore, state law governs. In support of its argument, the City cites Robertson v. Wegmann, 436 U.S. 584, 588, 98 S.Ct. 1991, 1994, 56 L.Ed.2d 554 (1978), a § 1983 case in which the Supreme Court did hold federal law to be deficient. However, the statute at issue in Robertson was a state survivorship statute. The Supreme Court noted that the goal of § 1983 was to compensate those injured by a deprivation of rights. However, in that case, the issue was not whether the injured party would be compensated, but whether the right survived his or her death, or abated. There was no federal law on that issue. Under such circumstances, the Supreme Court found federal law to be silent, and state law to be applicable. This Court holds that Robertson is clearly distinguishable, since there is sufficient federal case law which governs the award of prejudgment interest.
Moreover, several courts in other circuits have held that federal law applies to the issue of prejudgment interest. For example, the Third Circuit has held that federal common law must be applied to the issue of prejudgment interest in § 1983 suits to effect uniformity, otherwise the Civil Rights Acts would fail to effect the purpose and ends which Congress intended. See Savarese v. Agriss, 883 F.2d 1194, 1207 (3d Cir.1989).
Similarly, the First Circuit has held that federal law governs prejudgment interest in § 1983 actions, since courts are required to look first to federal law. See Furtado v. Bishop, 604 F.2d 80, 97 (1st Cir.1979), cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980). The First Circuit noted that the Supreme Court had indicated that federal courts should fashion appropriate rules for damages in § 1983 actions, and that it thought that the issue of prejudgment interest was closely allied with that of damages. Id. at 97.[10]
The Eastern District of New York also found that the application of federal law was appropriate for awarding prejudgment interest on a § 1983 claim. See Orshan v. Macchiarola, 629 F.Supp. 1014, 1017 (E.D.N.Y.1986) (finding suitable remedies under federal law, therefore resort to state law was unnecessary).
The City attempts to discredit the cases cited by Golden State, claiming that they do not follow the proper analysis required by § 1988 and Robertson, and thus they incorrectly conclude that federal law governs. This Court is not persuaded by this argument.
The City also cites a Fifth Circuit case in which the court held that state law governs the calculation of prejudgment interest in § 1983 cases. Pressey v. Patterson, 898 F.2d 1018, 1026 (5th Cir.1990). Ironically, there is no discussion at all in Pressey as to why state law applies, as the City claims is required, and the court appears to acknowledge that other circuits have held differently. Id. at 1026 ("[I]n this circuit at least, state law governs the calculation of prejudgment interest.").
Despite the City's contentions, the numerous cases cited by the City hold that federal courts may apply rules of state law to questions as to which Congress has not provided clear guidance,[11] and cases where state law was applied since it was not inconsistent with federal law.[12] However, *210 none of these cases say that the district court must apply state law. In addition, in many cases state law was applied to expand the remedies available to the injured plaintiff, not to limit them.[13]
In sum, this Court finds the City's arguments unpersuasive, and based upon the authorities cited above, and the arguments set forth by Golden State, this Court holds that federal law applies.
2. Application of Federal Law
Golden State contends that it is entitled to an award of prejudgment interest under federal law. Not surprisingly, the City claims Golden State is not entitled to such an award.
Golden State argues that an award of prejudgment interest has become an accepted and ordinary part of compensatory damages under most federal statutes, since it "compensates the injured party for the loss of the use of money he otherwise would have had." Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545, 1550 (9th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1321, 108 L.Ed.2d 496 (1990) (copyright case). Golden State cites various other federal question cases where the Supreme Court has affirmed an award of prejudgment interest to fully compensate the injured party.[14]
There appears to be no Ninth Circuit § 1983 cases ruling on the availability of prejudgment interest. However, under most federal causes of action, the Ninth Circuit has held that prejudgment interest is available, when the underlying statute is silent, where the goal of the statute is to compensate the wronged party.
For example, the Ninth Circuit has affirmed the award of prejudgment interest in a race discrimination case under 42 U.S.C. § 1981. See Satterwhite v. Smith, 744 F.2d 1380, 1381 (9th Cir.1984) (affirming award of prejudgment interest). The Satterwhite case is especially persuasive to this Court since, although not decided under 42 U.S.C. § 1983, it was decided under 42 U.S.C. § 1981, another portion of the Civil Rights Act.
The Ninth Circuit has also held that prejudgment interest is available in an age discrimination suit, brought under the Age Discrimination in Employment Act of 1967 ("ADEA"). See Criswell v. Western Airlines, Inc., 709 F.2d 544, 556-57 (9th Cir. 1983), aff'd, 472 U.S. 400, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985). In affirming an award of such relief, the Ninth Circuit stated that ADEA authorizes courts "to grant such legal or equitable relief as may be appropriate to effectuate the purposes" of the act. Id. The Court further stated that "[p]rejudgment interest is intended to compensate `the loss of use of this money during the period payments [are] withheld from [ADEA plaintiffs].'" (citation omitted). The Ninth Circuit held that the district court properly exercised its equitable powers by awarding prejudgment interest on their back pay awards. Id. at 557. Similar reasoning applies to an award in this case.
Moreover, the Ninth Circuit has held, in a case under the Fair Labor Standards Act ("FLSA"), that it is an abuse of discretion not to include prejudgment interest in back-pay awards. Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir.1986). The Court stated that the reason for awarding prejudgment interest is to make whole the employees who *211 were deprived of their wages unlawfully. Id. An award of prejudgment interest also serves to discourage unlawful employment practices by denying to employers the interest-free use of the money that is being delayed by the judicial process. Id.
Furthermore, the Ninth Circuit has upheld an award of prejudgment interest in several admiralty cases, even where the claim was based on an unliquidated sum. See Vance v. American Hawaii Cruises, Inc., 789 F.2d 790, 794 (9th Cir.1986) (the purpose of prejudgment interest is to make plaintiff whole); Western Pacific Fisheries, Inc. v. S.S. President Grant, 730 F.2d 1280, 1288 (9th Cir.1984). The Ninth Circuit has also held that prejudgment interest is available under the 1909 Copyright Act. See Frank Music Corp. v. Metro-Goldwyn-Mayer Inc., 886 F.2d 1545, 1551 (9th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1321, 108 L.Ed.2d 496 (1990). And the Ninth Circuit has awarded prejudgment interest in a tax case. U.S. v. California State Bd. of Equalization, 650 F.2d 1127, 1132 (9th Cir.1981), aff'd, 456 U.S. 901, 102 S.Ct. 1744, 72 L.Ed.2d 157 (1982).[15] This Court also notes that the Northern District of California has stated that "a presumption favoring the award of prejudgment interest at defendants' cost of funds applies [to federal claims]." In re Oracle Securities Litigation, 132 F.R.D. 538 (N.D.Cal.1990).
On the other hand, the Ninth Circuit has held that prejudgment interest is not available for actions under the Federal Employers' Liability Act ("FELA"). See Wildman v. Burlington Northern Railroad Co., 825 F.2d 1392, 1396 (9th Cir.1987). Although this Court acknowledges such holding, this Court does not find it controlling in this case. In the context of FELA, Congress crafted a then unique scheme of compensation separate from the common law, and Congress' failure to provide expressly for prejudgment interest indicates an intent not to so provide. See Wilson v. Burlington Northern Railroad Co., 803 F.2d 563, 565 (10th Cir.1986), cert. denied, 480 U.S. 946, 107 S.Ct. 1604, 94 L.Ed.2d 790 (1987) (cited in Wildman at 1396.) Congress has not so expressly elaborated with § 1983.
In addition, guided by the principles of full compensation and deterrence, other courts have awarded prejudgment interest in § 1983 cases. See Hall v. Ochs, 817 F.2d 920, 926 (1st Cir.1987) (prejudgment interest awarded successful § 1983 plaintiffs who charged assault and battery, false arrest and imprisonment); Gorelangton v. City of Reno, 638 F.Supp. 1426, 1433 (D.Nev.1986) (prejudgment interest awarded at 12% per annum on § 1983 claims of false arrest and wrongful death); DeLa-Cruz v. Pruitt, 590 F.Supp. 1296, 1309 (N.D.Ind.1984) (prejudgment interest awarded in case because it serves to further the congressional purposes underlying § 1983).
In this case, Golden State argues that prejudgment interest is necessary to make it whole. Although the wrong occurred in 1981, Golden State has been without compensation for 10 years. In addition, Golden State contends that the denial of prejudgment interest would flaunt § 1983's goal of deterrence, since the City would be paying off its 1981 debt with less valuable 1991 dollars. Furthermore, Golden State contends that prejudgment interest would prevent the City from reaping a windfall from its misconduct.
On the other hand, the City contends that even if federal law applies, Golden State is not entitled to prejudgment interest because its claim was for unliquidated damages. The City argues that since § 1983 "creates a species of tort liability," the common law of torts should be applied. Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). The City cites various cases for the proposition that under the common law rule of torts, parties are not entitled to prejudgment interest on unliquidated claims. See Defendant's Opposition p. 10. The City contends that the *212 common law rationale, which denies prejudgment interest on unliquidated claims, applies equally to unliquidated § 1983 claims, since the City could not have readily determined the amount of damages due for earlier settlement.
The City contends that other circuits have followed this common law rule, and this Court acknowledges that some other courts have. See, e.g., Winter v. Cerro Gordo County Conservation Bd., 925 F.2d 1069, 1073 (8th Cir.1991) (under Iowa law, plaintiff could recover prejudgment interest only on ascertainable wages); see also Strandell v. Jackson County, Ill., 634 F.Supp. 824, 834 (S.D.Ill.1986). For example, in Strandell, the Southern District of Illinois found that "there is simply no reason to apply a rule other than the common law tort rule disallowing prejudgment interest on unliquidated claims" to § 1983 claims. However, the City fails to point out that the court in Strandell did acknowledge that common law tort rules are not binding in § 1983 cases, citing Carey 435 U.S. at 258-59, 98 S.Ct. at 1049-50.
Furthermore, while Carey v. Piphus, 435 U.S. 247, 255, 98 S.Ct. 1042, 1047-48, 55 L.Ed.2d 252 (1978), encourages the court to look to the common law of torts in determining damages under § 1983, Carey also states that the court should do so only where there is a tort that closely parallels the interests protected by the federal right that has been violated, and the analogous common law damage principles afford full compensation. See Carey at 258-59, 98 S.Ct. at 1049-50. Where this necessary compensation would be denied due to some deficiency in common law tort analogy, Carey requires courts to tailor "the rules governing compensation ... to the interests protected by the particular right in question." Id. Thus, in this case, if the common law would deny a remedy to Golden State, the common law should be rejected in favor of compensation to plaintiff, as required by Carey.
Moreover, federal law does not require the denial of prejudgment interest just because Golden State's claim was not "liquidated." Federal courts clearly have the latitude to award prejudgment interest in cases arising under the patent, copyright, antitrust laws, and tax laws, where claims are also not liquidated. There is no reason to distinguish those cases from cases under § 1983, such as this one. See, e.g., Gorelangton v. City of Reno, 638 F.Supp. 1426, 1433 (D.Nev.1986) (prejudgment interest awarded on § 1983 claims for unliquidated claims of false arrest and wrongful death).
This Court finds that under federal law, this Court has the power to award plaintiff prejudgment interest, since it is within the Court's discretion. The Ninth Circuit non- § 1983 cases support the availability of such an award. See, e.g., Western Pacific Fisheries v. SS President Grant, 730 F.2d 1280, 1288 (9th Cir.1984) (prejudgment interest is element of compensation, and it is up to court's discretion whether or not to award it); U.S. v. California State Bd. of Equalization, 650 F.2d 1127, 1132 (9th Cir. 1981), aff'd, 456 U.S. 901, 102 S.Ct. 1744, 72 L.Ed.2d 157 (1982) (the award of prejudgment interest in a case under federal law is a matter left to the sound discretion of the trial court).
Furthermore, prejudgment interest has been awarded in many other federal question cases. See Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545, 1550 (9th Cir.1989) (copyright case); Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir.1986) (back-pay award); Western Pacific Fisheries v. SS President Grant, 730 F.2d 1280, 1288 (9th Cir.1984) (admiralty case); Criswell v. Western Airlines, Inc., 709 F.2d 544, 556-57 (9th Cir.1983), aff'd, 472 U.S. 400, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985) (age discrimination suit); U.S. v. California State Board of Equalization, 650 F.2d 1127, 1132 (9th Cir.1981), aff'd, 456 U.S. 901, 102 S.Ct. 1744, 72 L.Ed.2d 157 (1982) (tax case).
In addition, other courts have awarded prejudgment interest in § 1983 cases. See Savarese v. Agriss, 883 F.2d 1194, 1207 (3d Cir.1989); Orshan v. Macchiarola, 629 F.Supp. 1014, 1017 (E.D.N.Y.1986). This Court finds the cases holding otherwise not controlling.
*213 3. Application of State Law
Assuming, arguendo, that the City is correct in its assertion that state law applies, since this court sits in California, California law would apply. See 42 U.S.C. § 1988. Under California law, Golden State contends it is entitled to prejudgment interest; the City claims it is not so entitled.
The City claims that under California law, a successful plaintiff is not entitled to prejudgment interest unless the amount awarded represents a sum certain that vested in the plaintiff on a particular date. Cal.Civ.Code § 3287(a) (1970). Damages are not certain when, as here, "a defendant does not know what amount he owes and cannot ascertain it except by accord or judicial process ..." Levy-Zentner Co. v. Southern Pac. Transp. Co., 74 Cal.App.3d 762, 799, 142 Cal.Rptr. 1, 25 (Cal.Ct.App. 1977). It is undisputed that in this case, the damages were not made certain until resolution by trial.
However, Golden State correctly argues that the California Civil Code has two separate statute sections governing the availability of prejudgment interest. Section 3287 has two subsections, neither of which are applicable. Section 3287(a) covers interest on sum certain damages. Section 3287(b) covers damages for breach of contract for an unliquidated sum.
However, section 3288 covers interest on damages "in actions other than contract," and states that "interest may be given, in the discretion of the jury."[16] "Unlike Civil Code section 3287, which relates to liquidated and contractual claims, section 3288 permits discretionary prejudgment interest for unliquidated tort claims." Greater Westchester Homeowners Ass'n v. City of Los Angeles, 26 Cal.3d 86, 102, 160 Cal. Rptr. 733, 741, 603 P.2d 1329 (Cal.1979), cert. denied, 449 U.S. 820, 101 S.Ct. 77, 66 L.Ed.2d 22 (1980). Furthermore, the policy underlying an award of prejudgment interest under § 3288 is to fully compensate the injured party. See Canavin v. Pacific Southwest Airlines, 148 Cal.App.3d 512, 526, 196 Cal.Rptr. 82, 90 (Cal.Ct.App.1983).
The same discretion given to the jury is granted to the trial judge when acting as the trier of fact. See In re Pago Pago Aircrash of January 30, 1974, 525 F.Supp. 1007, 1012 n. 2 (C.D.Cal 1981). In this case, the parties stipulated that the judge would determine the issue of prejudgment interest. Therefore, under California law, the decision of whether to award prejudgment interest is within the discretion of this Court.
Golden State states that even if under California law it would not be entitled to recover prejudgment interest, the denial of prejudgment interest based on California law would do violence to the federal remedial scheme of compensation under § 1983. It would thus violate § 1988, which allows federal courts to look to state law as a secondary source only "so far as the same is not inconsistent with the Constitution and laws of the United States." 42 U.S.C. § 1988. The Ninth Circuit has stated that "`[t]here is no doubt that the damages awardable under 42 U.S.C. § 1983 are a matter of federal law. California cannot set up a policy subversive of that law." Cornwell v. City of Riverside, 896 F.2d 398, 399 (9th Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 3274, 111 L.Ed.2d 784 (1990). Golden State contends that similarly, since prejudgment interest is an element of damages, California law cannot undermine such an award.
Not surprisingly, the City attempts to argue that state law is not inconsistent with federal law. In Robertson v. Wegmann, 436 U.S. 584, 588, 98 S.Ct. 1991, 1994, 56 L.Ed.2d 554 (1978), the Supreme Court had to resolve the question of whether state survivorship law was inconsistent with federal law raised under § 1988. The Court determined that state law was not inconsistent, and prohibited the cause of action. However, the facts of Robertson are distinguishable and the Court's reasoning in that case leads to the opposite conclusion *214 in this case. In Robertson, state survivorship law caused an abatement of a particular cause of action. The Court noted the goal of § 1983 of compensating those injured by a deprivation of rights. But the plaintiff in that case was merely the executor of the estate; the injured party was deceased. Thus, it was not the injured party who state law failed to compensate, but a third party. Under these circumstances, the Court concluded that state law was not inconsistent with federal law. Id. at 592, 98 S.Ct. at 1996.
Certain statements made in Robertson lead this Court to conclude that state law is inconsistent with federal law in this case. For example, the Supreme Court stated,
[i]n resolving questions of inconsistency between state and federal law raised under § 1988, courts must look not only at particular federal statutes and constitutional provisions, but also at "the policies expressed in them." Of particular importance is whether application of state law "would be inconsistent with the federal policy underlying the cause of action under consideration." (citations omitted).
Id. at 590, 98 S.Ct. at 1995.
As discussed above, analysis of the policies expressed in § 1983 lead this Court to the conclusion that Golden State should be entitled to prejudgment interest to ensure full compensation.
The City further attempts to refute the contention that the application of California law would vitiate the purposes underlying § 1983, by stating that a "state statute cannot be considered inconsistent with federal law merely because the statute causes the plaintiff to lose the litigation." Robertson, 436 U.S. at 593, 98 S.Ct. at 1996-97. The City points out that in Burka v. New York City Transit Authority, 747 F.Supp. 214, 224 (S.D.N.Y.1990), the court denied prejudgment interest in a § 1983 case. The Court reasoned that "[c]aselaw permits prejudgment interest to be subject to judicial discretion because it is not absolutely necessary for meaningful compensation" and "denial of prejudgment interest ... would not interfere with Carey v. Piphus's mandate that plaintiffs receive `meaningful compensation.'" Id. (citations omitted). However, in Burka the court exercised its discretion and denied prejudgment interest. This Court has an equal right to exercise its discretion, and in so doing, find that Golden State is entitled to prejudgment interest.
This Court finds that the issue of whether to award prejudgment interest under state law is up to the Court's discretion. Cal.Civil Code § 3288 states that in actions other than contract actions, the decision is up to the jury's discretion. In this case, the parties have stipulated that the issue would be resolved by the Court. Even if not so stipulated, where the judge acts as a fact-finder, the judge decides the issue. In re Pago Pago Aircrash, 525 F.Supp. 1007, 1012 n. 2 (C.D.Cal.1981). This Court further holds that if California law prohibited such an award, California law would be inconsistent with the purpose of 42 U.S.C. § 1983, and as such, the Court must disregard it. Section 1983 explicitly states that the Court should look to state law only in so far as it is not inconsistent with federal law.
4. Balancing of the Equities
The Ninth Circuit has stated that "whether [prejudgment] interest will be awarded is a question of fairness, lying within the court's sound discretion, to be answered by balancing the equities." Wessel v. Buhler, 437 F.2d 279, 284 (9th Cir. 1971). In determining whether to award prejudgment interest, "a persuasive consideration is the relative equities between the beneficiaries of the obligation and those upon whom it has been imposed." Frank Music Corp. v. Metro-Goldwyn-Mayer Inc., 886 F.2d 1545, 1551 (9th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1321, 108 L.Ed.2d 496 (1990); see also Loeffler v. Frank, 486 U.S. 549, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988).
Golden State argues that prejudgment interest is necessary to compensate it for the loss of the use of the money it otherwise would have had, and that every equitable factor favors awarding it prejudgment interest. First, Golden State recites *215 all of the intentional wrongful acts done by the City which caused its demise, including the City's refusal to renew its operating franchise, the denial of the rate increase, the denial of the request to lease, and the transferring of Golden State's franchise to L.A. Taxi. Golden State contends that the City, as the wrongdoer, should bear the risk of the fluctuation of the time value of money, not Golden State.
Second, Golden State reiterates that the purpose of § 1983 is to compensate the victim. To fully compensate Golden State, it must be compensated for the time it was without its money.
The City contends that "compensatory principles must be tempered by an assessment of the equities." Burka, 747 F.Supp. at 224. The City argues that several factors make the award of prejudgment interest inequitable.
First, the City contends that the purpose of prejudgment interest is to compensate and not to punish. The City argues that increasing Golden State's award from $4.5 million to the $18.9 million requested by Golden State would be a penalty. Since the Court is not awarding Golden State $18.9 million, as detailed below, the point is moot. Furthermore, the Court is well aware of the purposes of § 1983, and any award of prejudgment interest will be made to compensate the plaintiff, not to punish the defendant.
Second, the City contends that Golden State made a bad faith estimate of its damages that precluded settlement, and that under such circumstances courts may deny prejudgment interest. See Callen v. Oulu O/Y, 711 F.Supp. 244, 249 (E.D.Pa.1989), aff'd, 897 F.2d 520, cert. denied, ___ U.S. ___, 111 S.Ct. 58, 112 L.Ed.2d 33 (1990). Although the Court was not a party to the settlement negotiations, the Court finds that based on the evidence adduced at trial, there is no evidence that Golden State proceeded in bad faith. Although the $4.5 million awarded by the jury was below the $13 million requested by Golden State, it was also well above the $600,000+ estimate suggested by the City.
Third, the City contends that since it did not know its actions were unlawful at the time it acted, nor did the Ninth Circuit, it is inequitable to hold it responsible for the length of the litigation. However, the City's scienter or lack thereof is legally irrelevant for awarding prejudgment interest, since the purpose is to compensate plaintiff, not punish defendant. See Lodges 743 and 1746 v. United Aircraft Corp., 534 F.2d 422, 447 (2d Cir.1975).
Fourth, the City contends that the Court should deny prejudgment interest because the jury likely considered interest as part of its award. See Landes Const. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1375 (9th Cir.1987) (denial under such circumstances is appropriate). The City claims that it requested an instruction that the jury should not consider interest, and the Court declined to give such instruction. The Court appropriately declined to give an instruction on interest because the parties stipulated to having the Court decide the issue after the jury's verdict. No mention of interest was made during the jury trial, and the jury had no basis to include any calculation of interest.
Fifth, the City contends that it did not receive a windfall due to the delay since it did not receive any financial benefits. The City claims that since it is a public entity which is required to have a balanced budget, it did not acquire the $4.5 million in 1981, either by taxation or by reducing spending. Therefore, it never received interest nor saved the cost of borrowing the money, as a defendant normally would. Although this argument sounds appealing, since a state may be held liable for prejudgment interest, see Riles v. Bennett, 831 F.2d 875, 877 (9th Cir.1987), cert. denied, 485 U.S. 988, 108 S.Ct. 1291, 99 L.Ed.2d 501 (1988) (state held liable for prejudgment interest to the Department of Education for Title I grant funds wrongfully misspent to fully compensate U.S. for funds wrongfully withheld), there is no reason that a city may not be held liable for prejudgment interest.
Although the Court acknowledges that some of the arguments of both parties *216 have some merit, the Court finds that based on the aforementioned discussion, the equities favor granting Golden State prejudgment interest. This will best ensure that the purpose of § 1983, to compensate the injured plaintiff, is accomplished.
B. What Rate is Appropriate?
Various rates have been suggested by the parties.[17] Some have been provided to the Court for the Court's convenience, while others have been suggested as the appropriate rate by either the City or Golden State.
Treasury Bill Rate:[18]
The Ninth Circuit has stated that the appropriate rate for prejudgment interest is the Treasury bill ("T-bill") rate "unless the trial judge finds, on substantial evidence, that the equities of the particular case require a different rate." Western Pac. Fisheries, 730 F.2d at 1288; Northrop Corp. v. Triad Intern. Marketing, S.A., 842 F.2d 1154, 1155 n. 2 (9th Cir.1988). See also In re Nucorp Energy, Inc., 902 F.2d 729, 734 (9th Cir.1990) (applied 52 week Treasury bill rate to prejudgment interest).
Both Golden State and the City admit that in the Ninth Circuit, the rate for prejudgment interest used in many federal question cases is the 52-week T-bill rate, as prescribed by 28 U.S.C. § 1961 which governs post-judgment interest.
The City contends that, if interest is to be awarded, this riskless rate is appropriate since Golden State has not been required, since 1981, as a practical matter, to bear any risk inherent in the taxicab business. Safe investments carry lower rates. Although Golden State may have invested its $4.5 million in 1981 and received a return greater than the T-Bill rate, it also may have lost its investment since it would have incurred greater risk.
Golden State argues that if the Court determines that the T-bill rate is appropriate, the rate used should be the 52-week Treasury bill rate on the date of the alleged wrong. See Columbia Brick Works, Inc. v. Royal Insurance Co., 768 F.2d 1066 (9th Cir.1985) (proper rate is the 52-week rate on the date of delivery, not the average T-bill rate during the period prior to the judgment. Id., 768 F.2d 1071 at n. 2) (Sneed, J.); Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 1577-78, 108 L.Ed.2d 842 (1990) ("The language of [28 U.S.C. § 1961] directs that a single applicable rate of interest be applied to the judgment."); 28 U.S.C. § 1961 (selecting the 52-week T-bill rate, at the last auction of those bills before judgment was entered).
Golden State contends that the use of a series of Treasury bill rates for over ten years reflects neither the proper maturity period nor the illiquidity of the jury's award in this case. Golden State further contends that while the Ninth Circuit has used the T-bill rate in most federal cases, in civil rights cases the most pertinent statutory rate is the "adjusted prime rate," discussed below.
15% Rate Selected By Mr. Findlay, Plaintiff's Expert:
Golden State contends that "the trial judge [can] find, on substantial evidence, that the equities of the particular case require a different rate [than the T-bill rate]." Western Pacific Fisheries, Inc. v. SS President Grant, 730 F.2d 1280, 1289 (9th Cir.1984). "Substantial evidence" has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Blanton v. Anzalone, 813 F.2d 1574, 1576 (9th Cir. 1987).
Golden State contends that substantial evidence supports a higher rate here. Golden State argues that the use of a *217 short-term T-bill rate does not approximate the rate one would expect to earn on a long-term ten-year investment, such as the one that the City, in suppositions effect, compelled Golden State to make. In addition, Golden State contends that applying such a low rate encourages delay by defendants, including the City. Golden State points out that the Ninth Circuit has stated that "the Treasury rate is the government's cost of borrowing, which is relatively quite low because to the lender the government's obligation is a short-term, low risk investment." In re Camino Real Landscape Maintenance Contractors, Inc., 818 F.2d 1503, 1506 (9th Cir.1987).
Golden State argues that the appropriate rate of interest is 15% compounded annually. In support of this rate, Golden State's expert, M. Chapman Findlay, has prepared an extensive financial analysis. Mr. Findlay derived this rate by first starting with the rate of interest for a 10-year Treasury bond, which was 13.4%. He then added 1.6% to adjust for the lack of liquidity during the ten year time frame, since no interim coupon payments were made to Golden State. He then compounded this 15% annually, to fully compensate Golden State. See Gorenstein Enterprises v. Quality Care-USA, 874 F.2d at 437 (7th Cir.) (affirming annual compounding of interest).
The City argues that the 10-year Treasury bond rate suggested by Golden State is inappropriate because it reflects the market's best guess in 1981 as to the average rate of inflation over the next ten years. However, this rate did not accurately reflect the level of inflation in the 1980's. Thus, the City contends that holders of the 10-year bonds received a windfall since inflation was lower than predicted. Obviously, the City does not agree that 1.6% should be added to the Treasury bond rate.
Golden State claims that the City's characterization of the 10-year Treasury bond rate as a "guess," that is "inherently inaccurate" is without substance, since the rate represents that which a prudent investor, who wanted to avoid the risk that interest rates would fluctuate between the purchase and maturity dates, would have received. Mr. Findlay picked this security because he believed that it most closely approximated Golden State's position, a lump sum payment made ten years later.
Prime Rate:
Although neither party suggested that this Court apply the prime rate, other circuits have used the prime rate instead of the T-bill rate. See Gorenstein Enterprises, Inc. v. Quality Care-USA, Inc., 874 F.2d 431, 437 (7th Cir.1989) (prime rate appropriate for prejudgment interest since it is a readily ascertainable figure which provides a reasonable estimate of the interest rate necessary to compensate plaintiffs for the loss of the use of their money and for the risk of default); Studiengessellschaft Kohle M.B.H. v. Dart Industries, Inc., 666 F.Supp. 674, 698-99 (D.Del.1987), aff'd, 862 F.2d 1564 (Fed.Cir.1988) (award at prime rate compounded quarterly is not abuse of discretion).
The City contends that the prime rate is inappropriate because it reflects a risk of nonpayment by nongovernmental borrowers. The City argues that, after 1981, Golden State did not take any risk.
IRS/Adjusted Prime Rate:[19]
The Ninth Circuit has awarded prejudgment interest at the IRS rate (adjusted prime/90% of prime), compounded quarterly in civil rights cases. See Priest v. Rotary, 634 F.Supp. 571, 585 (N.D.Cal.1986) (applying IRS rate to Title VII claim; 90% of average prime for year in which calendar quarter occurs); E.E.O.C. v. Pacific Press Publishing Ass'n, 482 F.Supp. 1291, 1316, 1319-20 (N.D.Cal.1979), aff'd, 676 F.2d 1272 (9th Cir.1982); Estate of Reynolds v. Dole, No. C-84-70120VW (JSB) (N.D.Cal. Aug. 1, 1990) (1990 WL 112283) (applying IRS rate to claim under § 501 of the Rehabilitation Act); Fadhl v. City of San Francisco, 553 F.Supp. 38, 45 (N.D.Cal.1982) (applying IRS rate to Title VII claim), rev'd and remanded for further findings on damage issues, 741 F.2d 1163, 1166-67 (9th Cir.1984), damage award aff'd after remand, *218 804 F.2d 1097 (9th Cir.1986); Richardson v. Restaurant Marketing Assoc., 527 F.Supp. 690, 698 (N.D.Cal.1981) (using IRS rate; calculated from the end of each calendar quarter, at 90% of the average prime rate for each year).
Golden State argues that these cases, decided under the NLRA and Title VII, are particularly significant because these statutes create the right under which Golden State's cause of action arose. Furthermore, Golden State contends that since the IRS or adjusted prime rate reflects a broad cross-section of the market, it represents a more accurate approximation of actual yields in the market than the T-Bill rate, and would, therefore, better make Golden State whole.
Golden State also notes that the IRS revised the way it calculates interest in 1986.[20] The NLRB adopted this new rate as the appropriate rate for prejudgment interest under the NLRA. New Horizons for the Retarded, Inc., 283 N.L.R.B. 1173, 1173-74 (1987). This approach has been followed recently by the Southern District of New York in a civil rights case. Danna v. New York Telephone Co., 755 F.Supp. 615, 617 n. 3 (S.D.N.Y.1991) (applying IRS underpayment rates through 1990 in Title VII case).
The City contends that the IRS rate reflects the risk of nonpayment by taxpayers. The City again argues that, after 1981, Golden State did not undertake any risk.
Consumer Price Index:
The City argues that in lieu of awarding prejudgment interest, the Court should revise the jury's award using inflation adjusted dollars by applying the Consumer Price Index ("CPI"). The City argues that this would best serve the purpose of compensating the Golden State, without punishing the defendant City.
Golden State argues that no case has ever held that the CPI is an appropriate adjustment for prejudgment interest. Moreover, several courts have rejected its use. See E.E.O.C. v. Pacific Press Publishing Ass'n, 482 F.Supp. 1291, 1319-20 (N.D.Cal.1979) (rejecting CPI index in favor of IRS "adjusted prime" rate); see also Richardson v. Restaurant Marketing Assoc., 527 F.Supp. 690, 698 (N.D.Cal.1981). In addition, Golden State contends that not even the City's own expert, Professor Cornell, opines that the CPI adjustment would be economically correct; he merely states what it is.
This Court Finds The 52-Week Treasury Bill, Adjusted Monthly, To Be Appropriate
This Court finds that the appropriate rate at which to award prejudgment interest is the 52-week Treasury bill rate, as circulated to this Court by the Administrative Office, compounded annually, using an annual average (January to December) of the monthly rates. This rate serves to just and equitably compensate Golden State for the loss of income caused by the City's wrongdoing, without unduly punishing the City. As submitted by Golden State at the Court's request, and verified by the City, applying said rate to the jury's verdict of $4.5 million, for the time frame explained below, leads to an award of $6,415,154 in prejudgment interest, for a total award of $10,915,154 (compensatory damages plus prejudgment interest).
The Court finds the 52-week T-bill rate to be appropriate as a starting point for several reasons. First, it is supported by Ninth Circuit case law. See Western Pacific Fisheries, 730 F.2d 1280, 1288 (9th Cir.1984) (T-bill rate appropriate for prejudgment interest "unless the trial judge finds, on substantial evidence, that the equities of the particular case require a different rate."). Second, it is the rate used *219 for the calculation of postjudgment interest (28 U.S.C. § 1961).
Third this Court rejects the other alternatives suggested by the parties for the following reasons. Although the 10-year Treasury bond rate is idealistically sound, balancing the equities leads the Court to reject the rate since rates were artificially high in 1981. The use of such a rate would constitute a penalty to the City. In addition, although Golden State could have invested in a 10-year Treasury bond, it is unlikely that it would have. The prime rate and its derivatives reflect risk. Golden State undertook no risk since 1981. The Court finds that use of the CPI is inappropriate, since it has been rejected as a rate for prejudgment interest by all of the other courts which have considered it. See, e.g., E.E.O.C. v. Pacific Press Publishing Ass'n, 482 F.Supp. 1291, 1319-20 (N.D.Cal. 1979).
Moreover, this Court finds that granting Golden State prejudgment interest at a constant rate for the entire ten (10) year time period would constitute relief in excess of what is equitable, and would most likely place Golden State in a better position than it would have been in in March 1981, and for the next ten years.
Although under 28 U.S.C. § 1961, the same rate would be applied throughout the applicable time period, this Court only adopts this post-judgment interest rate as a starting point, because it would be inequitable to apply this rate for the entire ten year period. Clearly, in most situations where post-judgment interest is awarded, as well as most situations in which prejudgment interest is awarded, the applicable period is much shorter than ten years.
In addition, the early 1980's marked a period of unusually high interest rates, a situation which has not existed since that time. Surely it would be inequitable to allow Golden State to receive a windfall due to the fortuitous nature of excessively high interest rates at the time of the City's wrongdoing. Although Golden State argues that if it had operated Yellow Cab it might have earned returns of 30% or higher, this Court notes that it also might have invested the money and lost it. Such risk of loss also applies to all of the interest rates which include a premium for risk.
Therefore, this Court finds on substantial evidence that the equities require that when applying the 52-week Treasury bill rate to calculate the interest due, the rate should be adjusted on a monthly basis, to reflect the then prevailing rate. See Western Pacific Fisheries, 730 F.2d at 1288 (sets for standard). In addition, the interest should be compounded annually. See Gorenstein Enterprises v. Quality Care-USA, 874 F.2d at 437 (7th Cir.) (affirming annual compounding of interest). To facilitate this calculation, the Court finds that an annual average (January to December) of the monthly Treasury bill rates should be used for each year.
C. What Time Frame Should be Used for the Calculation of Prejudgment Interest?
1. When Should Prejudgment Interest Start?
Golden State argues that interest on its award should accrue from 1981, when the harm occurred. The Ninth Circuit has approved the calculation for prejudgment interest from the date of the alleged wrongful act. See Columbia Brick Works, Inc. v. Royal Insurance Co., 768 F.2d 1066, 1071 (9th Cir.1985) (interest calculated using the T-bill rate on the date of delivery). Golden State contends that this is the appropriate starting point, since the jury's verdict represents the value of Golden State in 1981.
The City argues that if interest is awarded, it should accrue as of April 1, 1986, the date the Supreme Court established the City's liability. The City contends that this is the appropriate starting point since liability in this case turned on a highly unsettled and novel point of law.
Golden State argues that the City's scienter or lack thereof is legally irrelevant for awarding prejudgment interest, since the purpose of such an award is to compensate plaintiff, not punish defendant. See Lodges 743 and 1746 v. United Aircraft *220 Corp., 534 F.2d 422, 447 (2d Cir.1975) (wrongdoing not a prerequisite for prejudgment interest; the purpose is to compensate). Furthermore, it is debatable whether the City knew that what it was doing was wrong. In any case, the City was on notice of the alleged wrong from the time it was served with the complaint in 1981.
In the alternative, the City argues that interest should not begin to accrue until April, 1983, the date the City's cease and desist order stopped Golden State from operating, since Golden State could have operated prior to this date. This argument previously has been rejected by the Court. Once the City interfered in the labor dispute, the balance of power was altered, and Golden State could not resume normal operations.
This Court finds that the appropriate date to start accruing prejudgment interest is April 1, 1981. Upon the Court's preliminary ruling that interest should start to accrue from the time that the City had notice of its wrong, i.e., the day after it was served with the complaint, the parties stipulated this date to be April 1, 1981.
2. When Should Prejudgment Interest End?
Golden State calculated interest until August 15, 1991, the approximate date of the hearing on prejudgment interest, which was August 12, 1991. The City calculated prejudgment interest until June 30, 1991, the approximate date the jury verdict was entered, which was June 24, 1991. This Court holds that prejudgment interest should be calculated until the entry of judgment on the jury verdict, which occurred on June 24, 1991.
III. CONCLUSION AND ORDER
For the reasons set forth in this Decision, and good cause appearing, it is hereby ordered that an award of damages be entered as follows:
1. That, as set forth in the Judgment On The Verdict entered by the Clerk on June 24, 1991, Plaintiff Golden State Transit Corporation should be awarded compensatory damages in the amount of $4,500,000.
2. That Plaintiff Golden State Transit Corporation should be awarded prejudgment interest in the amount of $6,415,154.
3. That Plaintiff Golden State Transit Corporation, therefore, should be awarded a combined total sum of $10,915,154, representing both the award of compensatory damages and prejudgment interest.
4. That Plaintiff Golden State Transit Corporation is entitled to and should be awarded reasonable attorneys fees, the exact amount of which shall be determined by the Court upon a noticed hearing, to be held after the motion and opposition have been filed, and thereafter a separate order will be entered.
LET JUDGMENT BE ENTERED ACCORDINGLY.
NOTES
[1] For a complete and detailed factual history, see Golden State Transit Corp. v. City of Los Angeles, 660 F.Supp. 571, 572-75 (C.D.Cal.1987).
[2] The drivers were represented by the Teamsters union.
[3] The case was reassigned pursuant to an order creating a calendar for Judge Hall.
[4] Golden State had abandoned its equal protection claim.
[5] The parties agreed in the Pretrial Conference Order to have the Court determine the issue of prejudgment interest after the jury's verdict.
[6] This Court will also determine, at a date not yet set, the amount of the reasonable attorneys' fees to which Golden State is entitled under 42 U.S.C. § 1988.
[7] Although 28 U.S.C. § 1961 does not explicitly mention that it applies only to post-judgment interest, courts have so held. See, e.g., Wildman v. Burlington Northern Railroad Co., 825 F.2d 1392, 1396 (9th Cir.1987).
[8] This Court could not find any published opinions ruling on the issue, nor were any cited by the parties.
[9] In relevant part, 42 U.S.C. § 1988 states:
"The jurisdiction ... [of] the district courts ... for the protection of ... civil rights ... shall be exercised and enforced in conformity with the laws of the United States, in so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against the law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction ... is held, so far as the same is not inconsistent with the Constitution and the laws of the United States, shall be extended to and govern ..."
[10] This Court acknowledges that, in Furtado, although the First Circuit discussed formulating a rule, the court was unclear whether federal common law allowed for prejudgment interest.
[11] See Hess v. Eddy, 689 F.2d 977, 980 (11th Cir.1982), cert. denied, 462 U.S. 1118, 103 S.Ct. 3085, 77 L.Ed.2d 1347 (1983) ("In actions brought pursuant to 42 U.S.C. § 1983, federal courts may indeed apply rules of state law to questions as to which Congress has not provided clear guidance."); Miller v. Apartments and Homes of New Jersey, Inc., 646 F.2d 101, 106 (3rd Cir.1981) (under § 1988 federal courts may adopt state laws in civil rights actions).
[12] Cramer v. Crutchfield, 648 F.2d 943, 945 (4th Cir.1981) ("Because we do not find Virginia's rule on tolling the statute of limitations to be inconsistent with federal law, we follow it.")
[13] See, e.g., Hesselgesser v. Reilly, 440 F.2d 901, 903 (9th Cir.1971). In that case, the Ninth Circuit merely states that the Civil Rights Act authorizes the application, under appropriate circumstances, of state laws pertaining to vicarious liability and liability created by statute. The court found that state statutes making sheriffs liable for the misconduct of their deputies, when applied to civil rights deprivations by the deputies, were not inconsistent with the federal law. Id. Thus, in that case, state law was used to create additional remedies, not remove them when available under federal law. In this case, the City is arguing both that state law is applicable and that state law would not allow Golden State to recover.
[14] See Jacobs v. United States, 290 U.S. 13, 17, 54 S.Ct. 26, 28, 78 L.Ed. 142 (1933) (prejudgment interest awarded under Fifth Amendment for governmental "taking"); General Motors Corp. v. Devex Corp., 461 U.S. 648, 655-56, 103 S.Ct. 2058, 2062-63, 76 L.Ed.2d 211 (1983) (award in patent case proper).
[15] In support of the award, the Court stated that "[t]he award of pre-judgment interest in a case under federal law is a matter left to the sound discretion of the trial court," and such awards "are governed by considerations of fairness, and are awarded when it is necessary to make the wronged party whole." California State Bd. at 1132 (citations omitted).
[16] Golden State distinguishes Rogerson Aircraft Corp. v. Fairchild Industries, 632 F.Supp. 1494, 1506 (C.D.Cal.1986) (Hauk, J.). Although this Court was sitting in diversity, and thus applied state law, it was a contract case.
[17] These rates include the 10-year Treasury Bond Rate (13.4%), the 10-year Treasury Bond Rate adjusted for illiquidity (15%); the T-Bill Rate, 90 day or 52 week; the Prime Rate, the Adjusted Prime Rate (90% Prime); the IRS Adjusted Rate; the IRS Actual Rate; and the CPI (Consumer Price Index).
[18] The Treasury bill rate is the rate at which the government borrows money by daily auctions of Treasury bills. It is risk-free because there is no risk that the government will not pay its debts.
[19] This is the rate charged taxpayers by the IRS on underpayment of taxes.
[20] Through 1986, the IRS rate was based upon the prime rate, as discussed above. However, the Tax Reform Act of 1986 altered the way the IRS calculates interest. Effective January 1, 1987, the IRS rate for the underpayment of tax obligations is the federal short-term interest rate (based upon federal debt instruments bearing a maturity of 3 years or less) plus 3%, as opposed to the prior 90% of prime rate figure. See 26 U.S.C. § 6621 (setting forth prime-based interest rate for years through 1986, and as amended, setting federal debt-based rate for subsequent years). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/211042/ | United States Court of Appeals for the Federal Circuit
05-1104
HARVEY DUMARCE, KENNETH ERVIN DUMARCE,
COLLEEN RENVILLE DUMARCE, PAMELA RENVILLE,
and DENNIS L. DUMARCE, SR.,
Plaintiffs-Appellees,
v.
DIRK KEMPTHORNE, Secretary of the Interior,
DEPARTMENT OF THE INTERIOR,
and UNITED STATES,
Defendants-Appellants.
David P. Graham, Oppenheimer Wolff & Donnelly LLP, of Minneapolis,
Minnesota, filed a petition for rehearing en banc for plaintiffs-appellees. With him on the
petition was David A. Prange.
Kathryn E. Kovacs, Attorney, Appellate Section, Environment & Natural
Resources Division, United States Department of Justice, of Washington, DC, filed a
response to the petition for defendants-appellants. With her on the response was Sue
Ellen Wooldridge, Assistant Attorney General.
Appealed from: United States District Court for the District of South Dakota
Judge Charles B. Kornmann
United States Court of Appeals for the Federal Circuit
2005-1104
HARVEY DUMARCE, KENNETH ERVIN DUMARCE,
COLLEEN RENVILLE DUMARCE, PAMELA RENVILLE,
and DENNIS L. DUMARCE, SR.,
Plaintiffs-Appellees,
v.
DIRK KEMPTHORNE, Secretary of the Interior,
DEPARTMENT OF THE INTERIOR,
and UNITED STATES,
Defendants-Appellants.
ON PETITION FOR REHEARING EN BANC
Before MICHEL, Chief Judge, NEWMAN, MAYER, LOURIE, RADER, SCHALL,
BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges.
ORDER
A petition for rehearing en banc was filed by the Appellees, and a response
thereto was invited by the court and filed by the Appellants. The matter was referred
first as petition for panel rehearing to the panel that heard the appeal, and thereafter the
petition for rehearing en banc and response were referred to the circuit judges who are
authorized to request a poll whether to rehear the appeal en banc. A poll was
requested, taken, and failed.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition for rehearing is denied.
(2) The petition for rehearing en banc is denied.
(3) The mandate of the court will issue on October 11, 2006.
GAJARSA, Circuit Judge, dissents in a separate opinion, in which NEWMAN,
Circuit Judge, joins.
FOR THE COURT
_Oct 4_2006__ _s/Jan Horbaly___
Date Jan Horbaly
Clerk
cc: David P. Graham, Esq.
Kathryn E. Kovacs, Esq.
2005-1104 2
US COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2005-1104
HARVEY DUMARCE, KENNETH ERVIN DUMARCE,
COLLEEN RENVILLE DUMARCE, PAMELA RENVILLE,
and DENNIS L. DUMARCE, SR.,
Plaintiffs-Appellees.
v.
P. LYNN SCARLETT, Acting Secretary of the Interior,
DEPARTMENT OF THE INTERIOR,
and
UNITED STATES,
Defendants-Appellants.
GAJARSA, Circuit Judge, with whom Circuit Judge NEWMAN joins, dissents from the
denial of en banc hearing.
I must dissent from the failure of this court to review this matter en banc. I
believe that the panel's decision reversing the district court's judgment in this case
merits reconsideration en banc in light of the Supreme Court's recent decision in Jones
v. Flowers, 126 S. Ct. 1708 (2006). The due process principles announced in Jones
suggest that the notice provided by the government to the plaintiffs in this case was
constitutionally inadequate. If the notice failed the requirements of due process, it
certainly also violated the government's fiduciary duty to inform DuMarce of all the facts
giving rise to her cause of action. Violation of that fiduciary duty, in turn, requires the
equitable tolling of the statute of limitations. See Menominee Tribe of Indians v. United
States, 726 F.2d 718, 721 (Fed. Cir. 1984).
In Jones, the Supreme Court notes the long-settled principle that notice of a
deprivation "must be such as one desirous of actually informing" the recipient "might
reasonably adopt to accomplish it," and must take "due regard for the practicalities and
peculiarities" of the individual circumstances. Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306, 315 (1950). Jones addresses whether one particular "circumstance
and condition"—knowledge by the state that its initial attempt to provide notice of a
property forfeiture has failed—acts to vary the constitutionally required notice. Jones,
126 S. Ct. at 1714. It holds that such knowledge does increase the notice due,
requiring the government to take enhanced measures to provide notice. Id. at
1718.
Dumarce's case, like Jones's, involves a property forfeiture. The question is
whether the notice provided to DuMarce was constitutionally adequate in light of the
"circumstances and conditions" in which it was delivered. I believe that it was not, and
that the principles of Jones required us to reconsider DuMarce's case en banc.
The government's notice to DuMarce in this case stated simply that "[p]art of [her
father's] land interests in the Sisseton Reservation are subject to Pub. L. 98-513 . . . . In
addition, if the decedent's interest in a parcel of land amounts to less than 2 ½ acres,
then such interest escheats to the Tribe. . . . Therefore, as set forth above, the
decedent's respective interests . . . shall escheat to the United States."
Few lay people would understand the drastic import of the legalism "escheat."
One enterprising enough to consult a common dictionary in 1987 would have found the
2
2005-1104
following unilluminating definition: "1: escheated property 2 a: the reversion of lands in
English feudal law to the lord of the fee when there are no heirs capable of inheriting
under the original grant b: the reversion of property to the crown in England or to the
state in the U.S. when there are no legal heirs." Webster's Ninth New Collegiate
Dictionary at 424 (1985).
Nothing in the notice or in the definition of "escheat" makes clear to the recipient
the critical fact that the federal government will take her land without compensation. It is
the fact of noncompensation that gives rise to DuMarce's takings claim and is therefore
the relevant fact in determining when her cause of action accrued. It is arguable, in my
judgment, whether the government's notice to DuMarce was sufficient under any
"circumstances and conditions." It seems clear to me under the principles of Jones that
such a notice is insufficient where, as here, the relevant "circumstance and condition" is
the fiduciary relationship between the government and the recipient.
In Jones, the Supreme Court emphasizes that the amount and nature of notice
required by due process must take into account "unique information about an intended
recipient regardless of whether a statutory scheme is reasonably calculated to provide
notice in the ordinary case." Jones, 126 S. Ct. at 1716. A fiduciary relationship
between the government and the intended recipient certainly constitutes such "unique
information"—especially in light of other relationships that have been consistently held
to increase the government's notice obligations. Where, for example, the notice
recipient is a ward of the state (such as a prisoner), the government has been held to a
higher standard of notice. See, e.g., Weng v. United States, 137 F.3d 709 (2d Cir.
1998) (holding that where the recipient is a federal prisoner, the government is required
3
2005-1104
to provide him with actual notice of a deprivation); United States v. Woodall, 12 F.3d
791, 794-95 (8th Cir. 1993) (same). It would be a strange result indeed if the
government's role as prison warden increases its duty to provide adequate notice, but
its role as trustee to Native Americans does not.
In short, I believe that the Supreme Court's decision in Jones requires us to
conclude that the notice of forfeiture provided to DuMarce was constitutionally
inadequate in the context of the "practicalities and peculiarities" of her situation—
namely, the government's fiduciary duty to her as trustee. Id. A notice that was even
arguably inadequate as a matter of minimum constitutional requirements could not
possibly satisfy the government's independent fiduciary duty to inform DuMarce of all
the facts giving rise to her cause of action. The government's failure to satisfy its
fiduciary duty renders DuMarce's ignorance of the relevant facts excusable, and acts to
toll the applicable statute of limitations. See Menominee Tribe of Indians, 726 F.2d at
721.
For these reasons, I believe the court should consider this matter en banc.
4
2005-1104 | 01-03-2023 | 03-13-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1607976/ | 366 So. 2d 788 (1978)
BAY MANAGEMENT, INC., a Florida Corporation, Appellant,
v.
BEAU MONDE, INC., a Condominium, a Nonprofit Florida Corporation, Appellee.
No. 77-1706.
District Court of Appeal of Florida, Second District.
December 29, 1978.
Rehearing Denied January 29, 1979.
*790 William S. Jonassen, Indian Rocks Beach, for appellant.
William F. Casler, St. Petersburg Beach, for appellee.
SCHEB, Judge.
Appellant Bay Management challenges a declaratory judgment requiring it to perform certain maintenance services under the terms of a condominium maintenance agreement and a recreational and garage lease between it and appellee Beau Monde. We affirm in part and reverse in part.
After Beau Monde was organized as a condominium in 1972, the developer, on behalf of Beau Monde, entered into a 25-year maintenance agreement and a 99-year recreational and garage lease with Bay Management. In October 1976 the developer turned over control of the condominium association to the unit owners. Thereafter, in an attempt to clearly define its responsibilities, Bay Management delivered two lists of services to the Beau Monde Condominium Association. In the first, it itemized its acknowledged maintenance responsibilities. In the second, it identified certain maintenance services as the sole financial responsibility of the Association.
Beau Monde, unsatisfied with Bay Management's disclaimers in the second list, petitioned the circuit court for a declaratory judgment as to Bay Management's obligations in respect to the services disclaimed.
The trial court determined that the two agreements imposed the obligation on Bay Management to perform the following disputed services:[1]
A. Driveway and Guest Parking:
1. Repaint individual space bumpers and numbers as needed.
2. Repaint lines and traffic markings as needed.
3. Repaint fixture poles as needed.
4. Repair and maintain Beau Monde sign.
B. Grounds:
1. Replace and/or add shrubbery as needed.
2. Install wooden edging throughout grounds as needed.
3. Lay sod as needed.
.....
F. Atrium:
1. Repaint atrium pool as needed.
2. Repair and replace fountain pumps.
3. Repair and maintain fountain.
G. Recreation Room:
.....
2. Provide soft goods for restrooms and shower facilities.
H. Lobby:
1. Repair and rehabilitate front mat.
2. Repair and maintain electronic lock mechanism.
*791 3. Repair building intercom and security system including repair to individual units within apartments.
4. Repair TV surveillance camera.
5. Update building indexes.
I. Corridors:
1. Repaint any wall sections according to need.
2. Replace any damaged carpet.
3. Repair and replace all fire extinguishers.
4. Perform pest control service.
5. Rehabilitate all elevator lobbies.
6. Paint sections of stairwells needing attention.
7. Clean, disinfect, repair and rehabilitate both trash chutes, trash rooms and all trash doors (18).
8. Pick up newspapers left on each floor (20 stops).
9. Repaint storage rooms and laundry facilities as needed.
J. Building Equipment:
1. Maintain and repair fire pumps.
2. Maintain building antenna and amplifier system and wiring of same.
3. Maintain fire alarm system.
K. Miscellaneous Services:
1. Provide weekend cleaning of major public areas.
.....
3. Provide for pest control.
4. Provide and replace all signs throughout the project.
5. Termite bonds.
In construing a contract the court must consider the objects to be accomplished, and to this end should place itself in the position of the parties when the contract was entered into. Florida Power Corp. v. City of Tallahassee, 154 Fla. 638, 18 So. 2d 671 (1944). A corollary to this is that the court should arrive at an interpretation consistent with reason, probability, and the practical aspect of the transaction between the parties. Blackshear Manufacturing Co. v. Fralick, 88 Fla. 589, 102 So. 753 (1925). While the trial court attempted to adhere to these principles in the instant case, it erred in going further and holding that Bay Management was required to perform certain of the maintenance tasks simply because the agreements did not specifically exclude these tasks from its responsibility. In effect, the court held that Bay Management was required to perform all maintenance services unless the agreements specifically said it would not perform these services. When a contract is clear and unambiguous, as the agreements were in this case, the court cannot give it any meaning beyond that expressed. Hamilton Construction Co. v. Board of Public Instruction, 65 So. 2d 729 (Fla. 1953).
We now turn to a review of the agreements themselves to determine if the maintenance tasks in question were the obligation of Bay Management. Article VI of the recreational and garage lease (under which Bay Management was lessor) contained the following provision:
MAINTENANCE OF PREMISES: Lessor has the obligation to maintain the leased premises in good order, condition and repair. Lessee has no obligation whatever to maintain the leased premises or any of the improvements thereon. Lessee agrees to permit no waste, damage or injury to said premises. At the expiration of the Lease created hereunder, Lessee shall surrender the premises in good condition, reasonable wear and tear excepted. Lessee agrees that the building, the electrical system, water systems, fixtures, equipment and all items of personalty within and upon the leased premises, shall be under the control of the Lessor or its agents, and that all operation, upkeep, repairs and replacement of such items shall be done by and at Lessor's expense. Lessor further agrees that it shall provide, at its expense, any and all utility services required or necessary in the operation of the demised premises. The Lessee shall not change the design, color, materials, or appearance of the improvements now or hereafter placed upon the demised premises, any of the furniture, furnishings, fixtures, machinery or equipment contained therein, without the Lessor's prior written approval.
*792 Under this provision Bay Management undertook a comprehensive responsibility for the maintenance of the recreation and garage areas. On the assumption that the parking area referred to is within the confines of the leased premises,[2] we conclude that Bay Management was responsible for repainting the individual space bumpers (A-1) and the fixture poles for the driveway and guest parking area (A-3). The maintenance agreement was much less comprehensive, requiring only specifically enumerated services. It provided that Bay Management would:
3. [M]aintain, service and repair as to ordinary wear and tear caused by usage and the elements, all public walkways and roadways used for ingress and egress to the condominium property.
.....
5. [P]rovide, maintain and care for the lawn and shrubbery service and all onsite walkways on the condominium property; however, the Maintenance Contractor shall not be responsible for any damages caused by any act of God, which shall include, but not be limited to, wind, flooding, hurricane, frost or freezing, etc.
6. [P]rovide service and maintain lighting for the exterior of the condominium building, including the lighting of the hallways and other portions of the common elements.
.....
8. [B]e responsible for complete maintenance of elevators and roofs.
9. [B]e responsible for the complete maintenance of the Lobby Area of the Condominium Parcel together with the maintenance of all furniture and equipment in said Lobby Area.
10. [B]e responsible for ordinary wear and tear of seawalls and shall be responsible for the replacement of or repair of seawalls for any said damage caused by any act of God, which shall include but not be limited to wind, flooding, hurricane, and extraordinary tides.
.....
12. [K]eep the exterior of said condominium building painted and shall furnish the necessary repairs to preserve the exterior appearance of said building against ordinary wear and tear. However, the Maintenance Contractor shall not be responsible for the washing of windows or replacement of same, and shall not be responsible for the maintenance of screens that enclose screen porches. The Maintenance Contractor further agrees to keep the condominium building and the areas included in the common elements, which shall include the parking area therein, "broom swept" and neat and presentable in appearance at all times.
.....
17. [M]aintain, service and repair the water and sewer main lines and all connections therewith that lien within the easements of the above described property.
We think paragraph 3 is sufficiently broad to require Bay Management to repaint the lines and traffic markings as needed (A-2). And while we conclude that paragraph 5 requires that Bay Management replace shrubbery (B-1) and lay sod (B-3), both as needed, we do not think this provision requires it to make new additions as opposed to replacements. Nor would it require Bay Management to assume responsibility for any shrubbery or grass damaged or destroyed by an act of God.
Paragraph 9, we think, is sufficiently comprehensive to require Bay Management to perform lobby maintenance as specified in H. However, maintenance responsibility *793 for the intercom and security system (H-3) does not extend to the repair of individual units within apartments. Further, we conclude that the requirement to update building indexes (H-5) is validly imposed upon Bay Management insofar as any displayed directory, but this would not require maintenance of office files used for business purposes.
We conclude that paragraph 12 of the maintenance agreement requires Bay Management to pick up excess newspapers from the various floors (I-8). Paragraph 9 dictates maintenance of the main elevator lobby only if appurtenant to the main lobby (I-5). No requirement is imposed that Bay Management maintain elevator lobbies generally, since its obligation is only derived from its duty to maintain the main lobby.
In our opinion paragraph 12 of the maintenance agreement does require Bay Management to maintain the exterior of the Beau Monde sign (A-4); however, Bay Management would not be required to maintain any internal mechanism of the sign. As to other signs at the condominium (K-4), Bay Management is required to repair and replace only those signs that were on the exterior of the building at the inception of the agreement in 1972.
Finally, we think the trial judge could have fairly concluded that paragraph 17 of the maintenance agreement was sufficiently broad to impose responsibility on Bay Management for repairing and replacing fountain pumps (F-2), and to repair and maintain the fountain (F-3).
We think the trial court erred in imposing responsibility on Bay Management to perform the remaining disputed items of maintenance. Our careful review indicates that Bay Management did not undertake the responsibility as to items B-2 (wooden edging); F-1 (repaint atrium pool); G-2 (soft goods for bathrooms and showers); I (corridors, except as mentioned in respect to I-5 and I-8); and the items listed in J (building equipment) and K (miscellaneous, except as to K-4).
One final observation: At trial various documents were introduced and counsel presented detailed arguments as to the construction the court should place upon the agreements. Counsel then orally stipulated that the disclaimed services had been previously performed by Bay Management, though no testimony was taken on this or any other issue. Counsel for Beau Monde argues here, as he did before the trial court, that Bay Management's previous course of conduct defined its legal responsibilities under the agreements. He correctly points out that where a contract fails to define with certainty the duties of the parties, and the parties by their conduct have placed a reasonable construction on it, that such construction should be adopted by the court. Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 302 So. 2d 404 (Fla. 1974) (quoting Shouse v. Doane, 39 Fla. 95, 21 So. 807 [1897]). Counsel for Bay Management responds that its expanded services in the past were provided pursuant to a contract with the developer during the promotional and sales period. Thus, Bay Management contends such conduct was not interpretive of the agreements now before us. As noted previously the agreements in question clearly defined Bay Management's maintenance responsibilities. Since no evidence was offered concerning the circumstances under which the disclaimed services were performed, we must reject Beau Monde's argument that the trial judge's conclusions be sustained in their entirety based on past performance by Bay Management.[3]
The trial court's judgment is affirmed, subject to the qualifications mentioned above, as to items A, B-1, B-3, F-2, F-3, H, I-5, I-8, and K-4. The judgment is reversed as to items B-2, F-1, G-2, I-1 *794 through -4, I-6, I-7, I-9, J, K-1, K-3, and K-5.
GRIMES, C.J., and OTT, J., concur.
NOTES
[1] For convenient reference we have numbered the specific items listed under A, B, F, G, H, I, J and K. As the court ruled favorably to Bay Management on certain other items and no cross-appeal was taken, those items are omitted from the list.
[2] Determining whether the recreational and garage lease or the maintenance agreement applies to specific maintenance services has, in some instances, posed a problem to this court. From the condominium documents introduced into evidence it is not completely clear whether the driveway and guest parking area are within the confines of the more comprehensive recreational and garage lease. If they are not within the confines of the lease, then there would be no authority under the maintenance agreement to require Bay Management to perform the services itemized in A-1 and A-3.
[3] In fairness, while the trial court noted in the declaratory judgment that past performance by Bay Management was supportive of its decision, the court went on to say, "[E]ven absent said previous course of conduct of the parties, the Court would have been compelled to have arrived at the same conclusion as set forth above." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608055/ | 791 So. 2d 904 (2001)
Kiniski FRANCIS, Appellant
v.
STATE of Mississippi, Appellee.
No. 1999-KA-01922-COA.
Court of Appeals of Mississippi.
August 7, 2001.
*906 Richard Flood, Ridgeland, for Appellant.
Office of the Attorney General by Dewitt T. Allred III, for Appellee.
Before McMILLIN, C.J., LEE, and IRVING, JJ.
IRVING, J., for the Court:
¶ 1. Kiniski Francis was convicted of armed robbery in the Circuit Court of Madison County. Feeling aggrieved by the verdict, he appeals and assigns error to the trial court in seven issues which we quote verbatim from his brief:
I. THAT THE COURT ERRED WHEN IT OVERRULED DEFENDANT'S OBJECTION WHEN OFFICER EDDIE LEE BROWN STATED HE "KNEW" DEFENDANT.
II. THAT THE COURT ERRED WHEN IT ALLOWED LT. NATHANIEL WALKER TO TESTIFY CONCERNING STATEMENTS DEFENDANT MADE WITHOUT BEING PROPERLY MIRANDIZED.
III. THAT THE COURT ERRED WHEN IT OVERRULED DEFENDANT'S OBJECTION TO ADMITTING THE "GUN" INTO EVIDENCE.
IV. THAT THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR A DIRECTED VERDICT AT THE END OF THE STATE'S CASE-IN-CHIEF.
V. THAT THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR A DIRECTED VERDICT AT THE END OF DEFENDANT'S CASE.
VI. THAT THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S REQUESTED JURY INSTRUCTION D-1.
VII. THAT THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S REQUESTED JURY INSTRUCTION D-12.
We find no reversible error and affirm the judgment of the trial court.
FACTS
¶ 2. Sharon Wilkes came into her family-owned store around 2:00 p.m. She was confronted by Francis who pulled out a pistol, pointed it in her face, and demanded that she give him all the money in the cash register. She testified that she looked closely at Francis because his face was not concealed and that she knew him from the community. Immediately thereafter, Sharon summoned the police and provided the police with a description of Francis. Officers Linda Nichols and Eddie Brown responded to the call. Within an hour after the police arrived, Francis was brought back to the store where Sharon identified him as the person who robbed the store. Lt. Nathaniel Walker arrested Francis, and upon questioning Francis, Francis led the police to the location of the gun used in the robbery.
ANALYSIS OF THE ISSUES PRESENTED
1. Objection to the Testimony of Officer Brown
¶ 3. Francis contends that it was impermissible to allow the testimony of Officer Brown who testified that he knew Francis prior to the day of the robbery. Francis argues that this testimony tended to suggest to the jury that he had committed other crimes. We disagree. Officer Brown did not state how he knew Francis *907 nor did he testify about any past episode with Francis. This assignment of error is utterly without merit.
2. Admission of Francis's Statement
¶ 4. Francis argues that the court erred in admitting his statement because he did not sign the portion of the "Warning of Rights" form indicating that he had read the statement of his rights, that it had been read to him, and that he understood what his rights were. Our review of the form reveals that while Francis did not sign the portion of the "Warning of Rights" form that he complains of, he did in fact, however, sign the waiver portion of the form which reads as follows:
I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me, and no pressure or force of any kind has been used against me. I hereby voluntarily and intentionally waive my rights and I am willing to make a statement and answer questions.
¶ 5. A Miranda waiver does not have to be in writing. Woodward v. State, 533 So. 2d 418, 429 (Miss.1988) (citing North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979)). A statement is admissible as long as the accused has been afforded the protection of the Miranda warning and then knowingly and intelligently waives his rights and freely and voluntarily makes the statement. Moore v. State, 493 So. 2d 1301, 1303 (Miss. 1986) (citing Edwards v. Arizona, 451 U.S. 477, 486 n. 9, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (U.S.Ariz.1981)). Whether or not a Miranda waiver is valid is a question of fact that is to be decided by the trial court based on the totality of the circumstances. Hemmingway v. State, 483 So. 2d 1335, 1336 (Miss.1986) (citing Neal v. State, 451 So. 2d 743 (Miss.1984)). The trial court's decision in this regard will not be set aside unless there is an abuse of discretion. We find none in this instance.
3. Admission of the Gun into Evidence
¶ 6. Francis's attack on the admission of the gun into evidence is twofold. First, he argues that the gun is the fruit of the poisonous tree because it was discovered as a result of his confession which, according to him, was taken illegally for want of a valid waiver. Secondly, Francis argues that it was error to admit the gun into evidence because of the absence of a proper predicate. More specifically, Francis argues that the State failed to prove the chain of custody for admission of the gun.
¶ 7. The trial judge is empowered with the discretion to consider and to decide what evidence is admissible, and "unless this judicial discretion is so abused as to be prejudicial to the accused," then, the ruling of the lower court must be affirmed. Graves v. State, 492 So. 2d 562, 565 (Miss. 1986) (citing Shearer v. State, 423 So. 2d 824, 826 (Miss.1983)).
¶ 8. We have already discussed Francis's contention that his confession was obtained illegally. Therefore, we will not address that matter further. It is sufficient to say that Francis's argument that the gun was fruit of the poisonous tree is totally without merit. Francis's second attack on admission of the gun, which is premised on the fact that Wilkes could not determine whether the gun was a revolver or an automatic, is an unpersuasive argument. The victim, Sharon Wilkes, identified the gun in evidence as identical to the one used in the robbery. Additionally, Lt. Walker also testified that the gun entered into evidence was the one he recovered with the assistance of Francis; therefore, we find no error in the trial court's admission of the gun.
*908 4. The Sufficiency of the Evidence
¶ 9. Francis argues in his fourth, fifth, and sixth assignments of error that the trial court erred when it denied his various motions at different times challenging the legal sufficiency of the evidence. The standard for assessing the legal sufficiency of the evidence on a motion for a directed verdict requires that the judge is to accept as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn, and to disregard evidence favorable to the defendant. McClain v. State, 625 So. 2d 774, 778 (Miss.1993) (citing Wetz v. State, 503 So. 2d 803, 808 (Miss.1987); Hammond v. State, 465 So. 2d 1031, 1035 (Miss.1985)). This Court is only allowed to reverse where one or more elements of the offense have not been proven, and the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty. Id. In our opinion, Sharon Wilkes's testimony established all of the elements of armed robbery and established that Francis was the robber. We find that the court acted correctly in denying Francis's motion for a directed verdict at the conclusion of the State's case, in denying Francis's motion for a directed verdict at the conclusion of the entire case, and in denying Francis's motion for a peremptory jury instruction. Moreover, when Francis put on testimony following the conclusion of the State's case, he waived the right to complain about the refusal of the trial court to grant his motion for a directed verdict at the conclusion of the State's case. Warren v. State, 709 So. 2d 415 (¶ 14) (Miss.1998).
5. Jury Instruction D-12
¶ 10. Francis argues that, because there was only one witness to the robbery, the trial court erred in refusing to grant an identification jury instruction. The standard applicable for reviewing jury instructions is as follows:
In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.
Coleman v. State, 697 So. 2d 777, 782 (Miss. 1997) (citing Collins v. State, 691 So. 2d 918 (Miss.1997)). Applying this standard of review to this case, we find the circuit court acted properly in its decision.
¶ 11. Francis, citing Davis v. State, 568 So. 2d 277 (Miss.1990), and Warren, reasons that it was error not to grant him an identification instruction. In Davis, the trial judge struck a portion of the identification instruction requested by Davis. Davis, 568 So.2d at 280. On appeal, the Mississippi Supreme Court held that, although the stricken portion of the instruction accurately stated the law and could have been granted, the failure to grant the entire instruction was harmless error because the deleted portion simply clarified that portion that was granted, and Davis's guilt was proven "beyond a reasonable doubt by the overwhelming weight of [the] evidence." Id. at 280-281.
¶ 12. In Warren, the trial court refused to allow identification instructions. On appeal, the Mississippi Supreme Court held that the trial court's failure to instruct the jury on the law of identification was reversible error because the case turned on the identification of Warren by a single witness. Warren, 709 So.2d at 421(¶ 28). Here, the distinction is that the identification did not rest solely on the testimony of Wilkes. Francis also disclosed to Lt. Walker where he had hidden the gun used to commit the robbery and led the police to that location. The trial court committed *909 no error in failing to give an identification instruction.
¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF FIFTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE LAST TWENTY-FIVE YEARS SUSPENDED IS AFFIRMED. ALL COSTS ARE ASSESSED TO MADISON COUNTY.
McMILLIN, C.J., KING and SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS and CHANDLER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608057/ | 773 F. Supp. 1476 (1991)
NATIONAL GYPSUM COMPANY, Plaintiff,
v.
DALEMARK INDUSTRIES, INC., and American Ink Jet Corporation, Defendants.
No. 89-1525-C.
United States District Court, D. Kansas.
September 20, 1991.
As Amended October 3, 1991.
*1477 *1478 Joseph R. Colantuono, Polsinelli, White, Vardeman & Shalton, Overland Park, Kan., for plaintiff.
Rex G. Beasley & Susan P. Selvidge, Fleeson, Gooing, Coulson & Kitch, Wichita, Kan., for Dalemark.
Martin W. Bauer, Martin, Pringle, Oliver, Wallace & Swartz, Wichita, Kan., for American Ink Jet.
MEMORANDUM AND ORDER
CROW, District Judge.
The case comes before the court on several motions. Defendant American Ink Jet Corporation ("AIJ") moves to dismiss the plaintiff's action pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. (Dk. 102). Plaintiff National Gypsum Company ("NGC") moves for partial summary judgment against defendants Dalemark Industries, Inc. ("Dalemark") and AIJ pursuant to Fed.R.Civ.P. 56. (Dk. 77). Defendant Dalemark seeks summary judgment pursuant to Fed.R.Civ.P. 56 against the plaintiff NGC. (Dk. 93).
NGC is a manufacturer of gypsum wallboard and has an operating division, Goldbond Building Products ("Goldbond"), in Medicine Lodge, Kansas. Dalemark is a distributor of ink and manufacturer of other related printing products. AIJ is a manufacturer of ink. NGC claims that the printing ink ordered in September of 1987 from Dalemark, manufactured by AIJ, delivered to Goldbond in October of 1987, and used by Goldbond for printing on the face of wallboard was defective as it bled through tape, paint, and joint compound.
Oral argument would not materially assist the court in deciding these motions. The court will address the motions seriatim.
PERSONAL JURISDICTION
Upon a pretrial motion to dismiss for lack of personal jurisdiction, the plaintiff must make a prima facie showing that statutory and due process requirements are satisfied. Behagen v. Amateur Basketball Ass'n of the United States, 744 F.2d 731, 733 (10th Cir.1984), cert. denied, 471 U.S. 1010, 105 S. Ct. 1879, 85 L. Ed. 2d 171 (1985). Affidavits and other documentary evidence may be submitted for the court's *1479 consideration. Thermal Insulation Systems v. Ark-Seal Corp., 508 F. Supp. 434, 437 (D.Kan.1980). Allegations in the complaint are accepted as true unless controverted by the affidavits. Pytlik v. Professional Resources, Ltd., 887 F.2d 1371, 1376 (10th Cir.1989). If the jurisdictional allegations in the complaint are challenged, the plaintiff must then support them with competent proof. Id. When affidavits are conflicting, the factual disputes are resolved in favor of the plaintiff's prima facie case. Behagen, 744 F.2d at 733. Plaintiff is entitled to the benefit of any factual doubts. Ammon v. Kaplow, 468 F. Supp. 1304, 1309 (D.Kan.1979).
In September of 1987, NGC contracted with Dalemark to supply NGC with a single 55 gallon drum of Dale No. 607 ink at its Goldbond plant in Medicine Lodge, Kansas. Dalemark then contracted with AIJ to have the ink manufactured and shipped. On October 1, 1987, AIJ formulated and manufactured a drum of ink, placed Dale No. 607 labels on the drum, and shipped it directly to Medicine Lodge, Kansas. This drum actually contained Dale No. 115 black ink. AIJ officials discovered this labelling mistake and contacted Dalemark and the carrier in an effort to stop this drum of ink from reaching Goldbond. AIJ never contacted NGC or Goldbond regarding this shipping mix-up. On October 5, 1987, AIJ formulated and manufactured a 55 gallon drum of Dale No. 607 ink, placed the correct Dalemark labels on it, and shipped it directly to Medicine Lodge, Kansas. In October of 1987, Goldbond received only one drum of ink marked with Dale No. 607 labels. There appears to be a question of fact as to which drum of ink was received by Goldbond.
Goldbond placed this drum of ink into production on or about October 18, 1987, and began receiving complaints shortly thereafter that the ink was bleeding through the wallboard finishes. In December of 1987, Goldbond received another barrel of ink. The evidence of record shows this barrel was sent directly from Dalemark to Goldbond without plaintiff making an order or request for more ink.
AIJ is a Massachusetts corporation with its sole place of business there. In 1987, AIJ's labor force consisted of three people, including its president. No agent or representative has ever appeared in Kansas on behalf of AIJ. There was no contact between AIJ and NGC about this shipment until the bleeding problem was brought to AIJ's attention in December of 1987. AIJ has not shipped any ink products directly to Kansas other than the single drum of ink which is the subject of this litigation. AIJ has not transacted business in Kansas either directly or by advertisement. AIJ does not advertise any of its products for sale in Kansas. Other than this lawsuit, AIJ has no contacts with Kansas.
To establish personal jurisdiction in a diversity case, the plaintiff must meet the requirements of the forum's long-arm statute and the federal Constitution. Williams v. Bowman Livestock Equipment Co., 927 F.2d 1128, 1131 (10th Cir. 1991). Because K.S.A. 60-308(b), the Kansas long-arm statute, is to be "`liberally construed to assert personal jurisdiction over nonresident defendants to the full extent permitted by the due process clause of'" the federal Constitution, the two inquiries are basically identical. Equifax Services, Inc. v. Hitz, 905 F.2d 1355, 1357 (10th Cir.1990) (quoting Volt Delta Resources, Inc. v. Devine, 241 Kan. 775, 777, 740 P.2d 1089 (1987)). Following the practice endorsed in Equifax Services, Inc., 905 F.2d at 1357-60, the court will proceed directly to the relevant due process analysis. See, e.g., Deines v. Vermeer Mfg. Co., 752 F. Supp. 989, 999 (D.Kan.1990).
Due process is upheld when the nonresident defendant and the forum have such "minimum contacts" that the exercise of personal jurisdiction would "not offend `traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L. Ed. 278 (1940). Due process is to protect a non-resident's liberty interest in not being subject to judgments from forums to which he has no meaningful contacts, *1480 ties or relations. Home-Stake Production v. Talon Petroleum, C.A., 907 F.2d 1012, 1020 (10th Cir.1990). The sufficiency of the contacts is evaluated against a three-prong test:
(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws.
(2) The claim must be one which arises out of or results from the defendant's forum-related activities.
(3) Exercise of jurisdiction must be reasonable.
Taylor v. Phelan, 912 F.2d 429, 432 (10th Cir.1990), cert. denied, ___ U.S. ___, 111 S. Ct. 786, 112 L. Ed. 2d 849 (1991) (quoting Rambo v. American Southern Ins. Co., 839 F.2d 1415, 1419 n. 6 (10th Cir.1988) [quoting Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1287 (9th Cir.1977)]).
The purposeful availment requirement serves two purposes. "[I]t identifies acts that a defendant would reasonably expect to subject her to jurisdiction in the particular forum[, and] it ensures that only the defendant's acts directed at the forum establish jurisdiction." Kennedy v. Freeman, 919 F.2d 126, 128 (10th Cir.1990) (emphasis in original). This requirement effectively prevents a defendant from being haled into a jurisdiction "solely as a result of `random,' `fortuitous,' or `attenuated' contacts or of the `unilateral activity of another party or a third person.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 2183, 85 L. Ed. 2d 528 (1985). The contacts must amount to a "substantial connection." McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S. Ct. 199, 201, 2 L. Ed. 2d 223 (1957). These contacts provide "fair warning" to a defendant that his actions may sustain a foreign forum's exercise of jurisdiction over him. Burger King Corp., 471 U.S. at 472-473, 105 S.Ct. at 2181-2183. Purposeful availment analysis generally demands that the defendant affirmatively act to allow or promote the transaction of business within that forum. Rambo, 839 F.2d at 1420.
Personal jurisdiction may be properly exercised over a nonresident who "`purposefully directs'" his activities toward forum residents." Burger King Corp., 471 U.S. at 473, 105 S.Ct. at 2182. The rationale behind this extension of jurisdiction is also stated in Burger King, as follows:
A State generally has a "manifest interest" in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors.... Moreover, where individuals "purposefully derive benefit" from their interstate activities, ..., it may well be unfair to allow them to escape having to account in other States for consequences that arise proximately from such activities; the Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed. And because "modern transportation and communications have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity," it usually will not be unfair to subject him to the burdens of litigating in another forum for disputes relating to such activity....
471 U.S. at 473-74, 105 S.Ct. at 2182-83. Where a defendant purposefully directs his actions towards a forum or purposefully avails himself of benefits from that forum, he should reasonably anticipate being haled into that forum's court.
Once purposeful minimum contacts with the forum have been found, the court then scrutinizes the contacts under other factors to determine if jurisdiction would be consistent with notions of "fair play and substantial justice." Burger King, 471 U.S. at 476, 105 S.Ct. at 2184 (quoting International Shoe, 326 U.S. at 320, 66 S.Ct. at 160). This reasonableness inquiry consists of several factors, including:
"The burden on the defendant," "the forum state's interest in adjudicating the dispute," "the plaintiff's interest in obtaining *1481 convenient and effective relief," "the interstate judicial system's interest in obtaining the most efficient resolution of controversies," and the "shared interest of the several States in furthering fundamental social policies." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. [286] at 292 [100 S. Ct. 559, 565, 62 L. Ed. 2d 490 (1980)].
Burger King, 471 U.S. at 477, 105 S.Ct. at 2184.
AIJ does not have the minimum contacts with Kansas for this court constitutionally to exercise personal jurisdiction over it. The foreseeability that underlies due process analysis is not that of defendant's product reaching Kansas and causing an injury there, but it is that defendant's "`conduct and connection with the forum state [Kansas] are such that he should reasonably anticipate being haled into court there.'" Burger King, 471 U.S. at 474, 105 S.Ct. at 2183 (quoting World-Wide Volkswagen Corp., 444 U.S. at 297, 100 S.Ct. at 567). It is not reasonable for AIJ to have anticipated that it could be haled into the Kansas courts merely by shipping a single drum of ink to Goldbond pursuant to a contract between AIJ and Dalemark. AIJ was simply carrying out its performance under a contract with Dalemark, a New Jersey corporation with its principal place of business also in New Jersey. The contract called for AIJ to formulate and manufacture ink according to Dalemark specifications, to place Dalemark's labels on the ink, to bill Dalemark for the ink, to accept payment from Dalemark for the ink, and to deliver the ink to Dalemark's customer, Goldbond, which happened to be an operating plant division of NGC located in Kansas. This single contact with Kansas is too attenuated to sustain the exercise of personal jurisdiction.
AIJ did not purposefully direct its business activities towards a Kansas resident nor purposefully availed itself of the benefits of doing business in Kansas. AIJ entered into no contract with Goldbond to manufacture or deliver ink. All negotiations and discussions for Goldbond's purchase of the ink occurred between NGC and Dalemark. Consistent with Dalemark's wishes, AIJ never even communicated with Goldbond prior to shipping the ink. AIJ had no continuing or existing business relationship with Goldbond. There is no evidence that plaintiff knew AIJ would be manufacturing the ink which it was purchasing from Dalemark. Consequently, neither AIJ nor NGC had any reason to contemplate this single transaction through Dalemark would be the foundation for a continuing business relationship.
AIJ shipped the ink to Kansas because plaintiff had ordered the ink from Dalemark. Dalemark, in turn, requested AIJ to manufacture the ink and ship it directly to plaintiff's plant in Kansas. All of AIJ's actions towards Kansas were taken at the direction of someone else. The unilateral activities of another party or a third person are not sufficient contacts with the forum state. Home-Stake Production, 907 F.2d at 1020.
AIJ did not solicit business activities in Kansas. AIJ did not advertise in Kansas. The court has no basis on this record for characterizing AIJ's business activities as those of a nationwide manufacturer who deliberately chose or created an interstate distribution network for marketing its product. See Midwest Elevator Systems, Inc. v. St. Paul Fire & Marine Ins. Co., 508 F. Supp. 578, 584 (D.Kan.1981). Nor are there any facts alleged or presented to show Dalemark was an agent or mere instrumentality of AIJ. See Pytlik, 887 F.2d at 1376. In light of all these circumstances, the court finds that AIJ's single shipment of ink to Dalemark's customer in Kansas is not a substantial connection between AIJ and Kansas. The court grants AIJ's motion to dismiss for lack of personal jurisdiction.
SUMMARY JUDGMENT
NGC moves for summary judgment against both defendants on liability issues. In light of the above ruling on personal jurisdiction, the court will not consider the motion against AIJ. Plaintiff seeks summary *1482 judgment against Dalemark on the following counts: (1) breach of contract; (2) breach of express warranty; (3) breach of implied warranty of merchantability; and (4) breach of implied warranty of fitness for a particular purpose. Dalemark has filed a cross motion for summary judgment arguing it is exempt from liability by the terms of K.S.A. 60-3306, a provision of the Kansas Product Liability Act, K.S.A. 60-3301 3307.
A motion for summary judgment gives the judge an initial opportunity to assess the need for a trial. Without weighing the evidence or determining credibility, the court grants summary judgment when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2511-2512.
An issue of fact is "genuine" if the evidence is significantly probative or more than merely colorable such that a jury could reasonably return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. An issue of fact is "material" if proof of it might affect the outcome of the lawsuit. 477 U.S. at 249, 106 S.Ct. at 2510. Factual inferences are drawn to favor the existence of triable issues, and where reasonable minds could ultimately reach different conclusions, summary judgment is inappropriate. See Riley v. Brown & Root, Inc., 896 F.2d 474, 476-77 (10th Cir.1990).
The movant's initial burden under Fed. R.Civ.P. 56 is to show the absence of evidence to support the nonmoving party's case. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 345 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S. Ct. 1605, 94 L. Ed. 2d 791 (1987). The movant must specify those portions of "`the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits if any,'" which demonstrate the absence of a genuine issue of fact. Windon, 805 F.2d at 345 (quoting Fed.R.Civ.P. 56(c)). It may be sufficient for the movant to establish that the alleged factual issues are without legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987).
The opposing party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts supported by the kinds of evidentiary materials listed in Rule 56(c). Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. The evidence is deemed true and all reasonable inferences are drawn in his favor. Windon, 805 F.2d at 346. More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986).
Most of the facts critical to plaintiff's claims have been controverted by Dalemark's response. For example, Dalemark's response raises genuine issues of material fact over whether the mislabelled drum of ink ever reached Goldbond and whether the ink when it was received at Goldbond was nonconforming or was later altered at Goldbond. The shipping documents sustain a reasonable inference that the mislabelled drum was diverted to Dalemark's warehouse and never reached Goldbond. The infrared analysis conducted on the "bleeding ink" shows the presence of ingredients that are additional to and different from those used by AIJ in formulating and manufacturing the ink for Dalemark. AIJ has admitted that its formulation of Dale No. 607 differed from the Dale No. 607 which Dalemark had sent to plaintiff in the past. AIJ, however, denies that this difference is the reason for the bleeding. In fact, the drum manufactured by AIJ in November for Dalemark did not bleed, and AIJ maintains that it was made with the same formula used in October. Even assuming a duty on the part of Dalemark, by contract or by warranty, express or implied, material facts are controverted *1483 on the question of breach and causation. For this reason, the plaintiff's motion for summary judgment against Dalemark is denied.
Dalemark contends it is exempted from liability by the terms of the retailer exception found in K.S.A. 60-3306, which provides:
A product seller shall not be subject to liability in a product liability claim arising from an alleged defect in a product, if the product seller establishes that:
(a) Such seller had no knowledge of the defect;
(b) Such seller in the performance of any duties the seller performed, or was required to perform, could not have discovered the defect while exercising reasonable care;
(c) The seller was not a manufacturer of the defective product or product component;
(d) The manufacturer of the defective product or product component is subject to service of process either under the laws of the state of Kansas or the domicile of the person making the product liability claim; and
(e) Any judgment against the manufacturer obtained by the person making the product liability claim would be reasonably certain of being satisfied.
Condition (d) obviously is not met by virtue of the court's dismissal of AIJ for lack of personal jurisdiction.[1] Dalemark's motion for summary judgment is denied.
IT IS THEREFORE ORDERED that defendant AIJ's motion to dismiss for lack of personal jurisdiction (Dk. 102) is granted;
IT IS FURTHER ORDERED that plaintiff NGC's motion for partial summary judgment (Dk. 77) is denied;
IT IS FURTHER ORDERED that defendant Dalemark's motion for summary judgment (Dk. 93) is denied.
NOTES
[1] Plaintiff also presents evidence showing that Dalemark held itself out as the manufacturer thereby bringing itself within the statutory definition of "manufacturer," K.S.A. 60-3302(b) and taking itself out of the retail seller exception, K.S.A. 60-3306(c). Dalemark replies with the circular argument that the definition of "seller," K.S.A. 60-3302(a) includes a manufacturer. The terms of K.S.A. 60-3306(c) are clear that it protects only those sellers that are not manufacturers. Dalemark is not entitled to the liability exemption afforded retail sellers in K.S.A. 60-3306. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608047/ | 773 F. Supp. 194 (1991)
DANJAQ, S.A., a corporation, Plaintiff,
v.
MGM/UA COMMUNICATIONS, CO., a corporation; Pathe Communications Co., a corporation, et al., Defendants.
No. CV 90-5498-SVW.
United States District Court, C.D. California.
June 26, 1991.
*195 Howard, King, Kevin S. Marks, Gang, Tyre, Ramer & Brown, Inc., Los Angeles, Cal., for plaintiff.
Terry D. Avchen, Eric N. Landau, John M. Gatti, Christensen, White, Miller, Fink & Jacobs, Los Angeles, Cal., for defendants MGM/UA Comm. Co., Tracinda Corp. and K. Kerkorian.
Arthur Groman, Thomas Lambert, Daniel Romano, Ann Loeb, Mitchell, Silberberg & Knupp, Los Angeles, Cal., for defendants Pathe Comm. Corp. and MGM-Pathe Comm. Co.
ORDER DISMISSING COPYRIGHT ALLEGATIONS FOR FAILURE TO STATE A CLAIM AND DISMISSING REMAINING STATE-LAW CLAIMS FOR LACK OF SUBJECT MATTER JURISDICTION
WILSON, District Judge.
Introduction
In the beginning, harmony prevailed among Bond's assistants. Danjaq, S.A. ("Danjaq") produced Bond films and MGM/UA Communications Co. ("MGM") distributed them. Sixteen Bond films in all, from "Dr. No" to "License to Kill," were produced and distributed under this arrangement, going back 19 years to the 1962 Distribution Agreement between Danjaq and MGM (the "Distribution Agreement"). But perfect harmony cannot last forever, and Pathe Communications Co. ("Pathe") appeared on the scene to prove this saying true.
Pathe made a bid for and in November 1990 acquired MGM to form a new entertainment industry giant MGM-Pathe. In the eleventh hour before the merger, Danjaq, suspecting the derogation of its rights under the Distribution Agreement, appealed to this court, without success, to enter a restraining order against the merger. Danjaq's complaint depicted a Machiavellian scheme by Pathe to finance the merger by peddling Bond films throughout the world at "fire-sale" prices. The alleged wrongs were breach of contract, breach of fiduciary duty, conspiracy to do the same, and copyright infringement.
In the end, it turns out that the copyright allegations do not state a claim and there is no diversity of citizenship between the parties so as to confer jurisdiction upon this court to hear the state-law claims.
Background
Danjaq is incorporated in Switzerland with its principal office in Lausanne. Danjaq's sole director is a Swiss attorney, Mr. Schlaeppi, residing in Lausanne. Mr. Schlaeppi admittedly knows little about the entertainment industry and performs strictly ministerial functions on behalf of Danjaq, and on behalf of fifteen other corporations for whom he serves in a similar capacity of a sole director. Danjaq has one additional employee in Switzerland, Mr. Reynard, who performs the bookkeeping function of monitoring royalty and other payments made to Danjaq's accounts in Switzerland. Danjaq files its income tax returns in Switzerland.
Danjaq's principals, Albert Broccoli and his wife Dana, have been residents of Los Angeles for the past twenty years. Danjaq's general counsel in the United States is Mr. Tyre of Gang, Tyre, Ramer & Brown, a Los Angeles law firm. Danjaq's principal business relationship is with MGM, which finances and distributes Bond films under the Distribution Agreement with Danjaq. Los Angeles is the situs of several meetings each year between the policymaking personnel of Danjaq and MGM. Mr. Broccoli maintains an office in the MGM building in Culver City, California, although the office is formally the headquarters of Warfield Productions, Inc., a separate entity controlled by Mr. Broccoli.
The actual business of filmmaking historically has been carried on by Danjaq through its wholly-owned U.K. subsidiary, Eon Productions, Ltd. ("Eon"), based in Pinewood studios outside of London. The scripts for Bond films are reviewed and plots conceived by Mr. Broccoli in Los Angeles in consultation with his London-based co-producer and stepson, Michael Wilson. Eon is charged with putting ideas on the screen. The production company goes on *196 location anywhere in the world where the dauntless Mr. Bond is needed, and returns to Pinewood studios for final editing. When a film is completed, Eon formally sells the picture to its parent corporation, Danjaq.
Discussion
I. DIVERSITY OF CITIZENSHIP
The plaintiff is a citizen of the world, Swiss in origin, but with a presence in Lausanne, Los Angeles, London and New York. Defendants are all citizens of California. To maintain suit in this court, the plaintiff's principal place of business must be other than California. See 28 U.S.C. § 1332(c).
A. Whether an Alien Corporation is a Citizen of its Principal Place of Business for Purposes of Diversity Jurisdiction?
Prior to 1958, an alien corporation was considered, for purposes of diversity jurisdiction, a citizen solely of the foreign country of its incorporation. See Wright, Miller & Cooper, Federal Practice and Procedure, 2d, § 3628, at 662 (1984). In that year, Congress opted to reduce the caseload of the federal courts by adding Section 1332(c) to the Judicial Code. Id. Section 1332(c) is now a familiar principle of law providing that for purposes of diversity jurisdiction a domestic corporation is deemed a citizen of its state of incorporation and of the state of its principal place of business. 28 U.S.C. § 1332(c). Whether alien corporations, like their domestic counterparts, are subject to the same dual-citizenship rule has been debated in the more than thirty years since the enactment of Section 1332(c). At the outset, it must be noted that the Ninth Circuit has thus far taken no part in that debate.
The first case to consider the issue employed a close literal analysis of § 1332(c), concluding that the statute did not apply to alien corporations because the word "State" used in § 1332(c) is spelled with a capital "S," which Congress uses to designate a state of the United States. See Eisenberg v. Commercial Union Insurance Company, 189 F. Supp. 500, 502 (S.D.N.Y.1960). In the alternative, the Eisenberg court held that, even if § 1332(c) applied to alien corporations, the worldwide principal place of business of the defendant alien corporation lay outside of the United States. See id. In the years following that decision, the trend has been to adopt the alternative holding of Eisenberg, applying § 1332(c) to alien corporations, as arguably more consistent with the intent of Congress to limit diversity jurisdiction. See Continental Motion Pictures v. Allstate Film Co., 590 F. Supp. 67, 70-72 (C.D.Cal.1984) (alternative Eisenberg holding is the "emerging rule"); see also Clifford Corp., N.V. v. Ingber, 713 F. Supp. 575 (S.D.N.Y.1989).
The Fifth Circuit, which was the first court of appeals to address the issue, adopted the alternative holding in Eisenberg, citing congressional intent to limit diversity jurisdiction to out-of-state citizens who are potentially subject to local bias. See Jerguson v. Blue Dot Investment, Inc., 659 F.2d 31 (5th Cir.1981), cert. denied 456 U.S. 946, 102 S. Ct. 2013, 72 L. Ed. 2d 469. Recently, the Eleventh Circuit reached the same result. See Cabalceta v. Standard Fruit Company, 883 F.2d 1553 (11th Cir.1989).
Indeed, the same kind of abuse of diversity jurisdiction practiced by domestic corporations prior to § 1332(c) could be practiced by alien corporations nominally incorporated abroad but maintaining a substantial, if not a dominant, presence in some state of the United States. In the present context, there would no reason to afford the protections of a federal forum to a Swiss corporation if all of its visible public activities were carried on in California. See Industrial Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1094 (9th Cir.1990) ("local contact alleviates problems with local prejudice against outsiders"). This is the evil that Congress intended to eradicate by the enactment of § 1332(c).
Accordingly, § 1332(c) is applicable to alien corporations, such as plaintiff Danjaq, and it remains for the court to locate Danjaq's worldwide principal place of business.
*197 B. Whether Activities of a Subsidiary are Attributed to the Parent Corporation for Purposes of Determining the Parent Corporation's Principal Place of Business?
The question of whether to attribute Eon's activities to Danjaq is of critical importance here, because the most visible and substantial activities of a filmmaker are associated with the films' production. Production requires a large staff, space, and business contacts, all of which tend to forge stable ties between the filmmaker and the community. Historically, Danjaq's production activities have been carried on by its U.K. subsidiary, Eon. Danjaq now contends that its principal place of business, if not Switzerland, must be Great Britain in view of Eon's substantial and longstanding presence there.
It has long been a matter of settled law that a subsidiary corporation maintains its own principal place of business, for purposes of diversity jurisdiction, apart from its parent corporation. See Wright, Miller & Cooper, Federal Practice & Procedure, supra, § 3625. What appears to be less clear is the separate principal place of business of the parent corporation apart from the activities of its subsidiaries.
The only appellate decision directly to address this issue concluded that the separate corporate identities of the parent and subsidiary could not be ignored for the purpose of locating the parent's principal place of business. See de Walker v. Pueblo International, Inc., 569 F.2d 1169 (1st Cir.1978). In de Walker, the defendant corporation operated a chain of supermarkets in Puerto Rico but also owned a New Jersey subsidiary which accounted for 60% of the revenues of the parent corporation on a consolidated basis. Id. at 1171. In addition, the corporation's internal documents referred to the New Jersey subsidiary as a "division." Id. In spite of this uncontestably close relationship between the subsidiary and the parent, the First Circuit, relying on a line of Supreme Court cases relating to personal jurisdiction, concluded that the integrity of the corporate form must be respected in the absence of a formal piercing of the corporate veil. See id., citing Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 335, 45 S. Ct. 250, 251, 69 L. Ed. 634 (1925) (per Brandeis, J.).
To controvert First Circuit's analysis in de Walker, Danjaq cites two district court cases decided soon after the enactment of § 1332(c). See Textron Electronics, Inc. v. Unholtz-Dickie Corp., 193 F. Supp. 456 (D.Conn.1961); Lancer Industries, Inc. v. American Insurance Company, 197 F. Supp. 894 (W.D.La.1961). Both decisions consolidated activities of subsidiary corporations with those of the parent for the purpose of locating the parent's principal place of business. In Textron, the court observed that the phrase "principal place of business" is not new but already appears in the (now-repealed) Bankruptcy Act and that the legislative history of § 1332(c) encouraged the courts to be guided by bankruptcy decisions when construing the identical phrase in § 1332(c). See 193 F.Supp. at 458; see also S.Rep.No. 1830, 85th Cong., 2d Sess. 5 (1958), reprinted in U.S.Code Cong. & Admin.News 1958, at 3102. The Textron court then concluded that "[i]nclusion of a subsidiary's business as a part of the business of the parent corporation ... is no innovation as far as the Bankruptcy Act is concerned." 193 F.Supp. at 459. Each step in the Textron analysis is now worth re-examining.
The old Bankruptcy Act authorized venue for a corporate debtor in the district in which such debtor had its "principal place of business." See 11 U.S.C. § 11, sub. a(1), repealed by Pub.L. 95-598. As a consequence, a whole body of law grew around the construction of the venue provision, with place of operations and location of executive offices emerging as the two principal tests for determining a corporation's bankruptcy venue. See 1 Moore, Moulder, Collier on Bankruptcy, 14th ed., § 2.19, at 214. However, nothing in the congressional record, in the Bankruptcy Act, or cases decided thereunder gives guidance on how to treat the activities of a wholly-owned subsidiary. On this issue, the bankruptcy jurisprudence is even more obscure than the jurisprudence under § 1332(c). Although *198 the Textron court concluded that the consolidation of a subsidiary's activities with those of its parent is "no innovation" under the Bankruptcy Act, it relied for this proposition on a murky lower court ruling made some forty-five years prior to the Textron decision.
In fact, it is an undisputed axiom even in bankruptcy that "ownership of all of the outstanding stock of a corporation is not the equivalent of ownership of the subsidiary's property or assets." 5 King, Collier on Bankruptcy, 15th ed., § 1100.06; see, e.g., In re Beck Industries, Inc., 479 F.2d 410 (2d Cir.1973), cert. denied 414 U.S. 858, 94 S. Ct. 163, 38 L. Ed. 2d 108. Except where it operates as a mere shell or a fraud, a corporation retains a separate legal identity apart from its shareholders, whether they number one or many. This is the rule as much in bankruptcy as in other areas of the law. See, e.g., Stone v. Eacho, 127 F.2d 284 (4th Cir.1942). In light of this well-settled principle, the Textron decision appears to be unfounded insofar as it relies on bankruptcy jurisprudence to attribute activities of a separately incorporated subsidiary to the parent. (The Lancer case, decided in the same year as Textron and relying primarily on it, does not need to be separately addressed.)
Accordingly, since no alter-ego showing has been made here by Danjaq, there is no reason to disregard the separate corporate identity of Eon.[1]See de Walker v. Pueblo International, Inc., supra.
Indeed, the divergence in result between de Walker and Textron is not so surprising, because the Textron court rejected without discussion the relevance of a line of Supreme Court cases which was found to be controlling in de Walker. See Textron Electronics, Inc. v. Unholtz-Dickie Corp., supra, 193 F.Supp. at 459; de Walker v. Pueblo International, Inc., supra, 569 F.2d at 1172-73. In Cudahy Packing, the Supreme Court held that the courts cannot look to the activities of a subsidiary for the purpose of determining whether its parent corporation was "doing business" in a state. See Cannon Manufacturing Co. v. Cudahy Packing Co., supra, 267 U.S. at 335-37, 45 S.Ct. at 250-52. From this the First Circuit concluded that if a parent corporation cannot "do business" in a state by reason of the activities of its subsidiary, a fortiori, it cannot have its "principal place of business" in that state. de Walker v. Pueblo International, supra, 569 F.2d at 1173.
It is a firmly established principle of our jurisprudence, reiterated in Cudahy Packing, that a corporation exists separately even from its sole shareholder, despite such shareholder's ability to direct the activities of the corporation. While the corporate separation between Danjaq and Eon may perhaps be merely formal, it is nonetheless real. See Cannon Manuf. v. Cudahy Packing Co., supra, 267 U.S. at 337, 45 S.Ct. at 251 ("The corporation separation, though perhaps merely formal ... was not pure fiction."). If any doubts existed about the continued vitality of this principle, they have been put to rest by a recent decision of the Supreme Court. See Carden v. Arcoma Associates, 494 U.S. 185, 110 S. Ct. 1015, 108 L. Ed. 2d 157 (1990). In Carden, the Supreme Court noted that the corporation remains the one artificial entity in our law whose citizenship, for jurisdictional purposes, is determined without reference to the identity or character of its owners. Id. 110 S.Ct. at 1017-19.
There is a separate argument favoring the respect for Danjaq's separate identity apart from Eon. It appears beyond doubt that if Eon itself had brought this lawsuit against MGM, Eon would be entitled to a *199 federal forum as a U.K. corporation with its principal place of business in the U.K. The problem with that suit would be that Eon is not a signatory to the Distribution Agreement with MGM, and to bring such a suit Eon would have to vault over additional hurdles, such as establishing a third-party beneficiary claim against MGM. Instead, what Danjaq chose to do is to bring the suit in its own name, thereby eliminating the additional hazard of a third-party beneficiary claim, but also to request a federal forum in the name of Eon. This kind of oblique maneuver cannot be rewarded.
If Eon is not a party to the present action and its rights are not hereby adjudicated, then Eon would not be prejudiced by the unavailability of a federal forum. The fact that Eon is based in London and is an "outsider" in California is of no moment here. A federal forum cannot be invoked in Eon's name if no right of Eon is on the line in this suit.
Accordingly, plaintiff Danjaq's principal place of business will be determined without regard to the activities of its subsidiary Eon. See de Walker v. Pueblo International, Inc., supra, 569 F.2d at 1171.
C. The "Nerve Center" Test.
The courts have developed several not necessarily inconsistent tests for locating a corporation's principal place of business. Where a majority of a corporation's visible public activities is conducted in a single state, that state is designated as the corporation's principal place of business. See Industrial Tectonics, Inc. v. Aero Alloy, supra, 912 F.2d at 1094. Plainly, a corporation cannot be an "outsider" in the state where it carries on a majority of its operations, employs the most people, and interacts most visibly with the public. However, where the activities of a corporation are dispersed among many states or countries, such that no state accounts for a majority of its business, the courts have applied the "nerve center" test to locate the principal place of business of a far-flung enterprise. See Scot Typewriter Corp. v. Underwood Corp., 170 F. Supp. 862 (S.D.N.Y.1959). Typically, the corporation's nerve center is coincident with the situs of its executive headquarters and of its administrative apparatus. See id.
The financier of Danjaq's films and the United States distributor is MGM, located in Los Angeles, but the worldwide distributor of Bond films is UIP, a U.K. company located in London. The owner (together with his wife) and the chief moving force of Danjaq, Mr. Broccoli, resides in Los Angeles, while Michael Wilson, his stepson and co-producer, spends most of his time in London as an officer of Eon. Danjaq's administrative records are in Lausanne; the full-time salesman, Mr. Beck, is in New York; the general counsel, Mr. Tyre, is in Los Angeles; U.S. tax counsel, the law firm of Arnold & Porter, are in Washington; the stage props are in London.
Among the tangible property owned by Danjaq, the chief is the "Albert R. Broccoli/007 stage," the largest film stage in the world, located at Pinewood studios outside of London; some camera equipment is also stored there. The various props from the Bond films, "Jaws'" titanium teeth, the "golden gun," the Aston-Martin cars, when they are not in London, are exhibited worldwide to cheering Bond fans.
What emerges from this account of Danjaq's operations is that no single place claims a majority of its corporate activities, and the application of the nerve center test is therefore appropriate.
The novelty, also the difficulty, of applying the nerve center test to the present case lies in Danjaq's separation of its administrative and executive apparatus. Usually, the two go hand in hand, but not here. See, e.g., Scot Typewriter Corp. v. Underwood, supra, 170 F. Supp. 862. There is no dispute that Danjaq's representatives in Switzerland, Messrs. Schlaeppi and Reynard, make no decisions on behalf of Danjaq, and in general know little about the film industry. Although Mr. Schlaeppi reviews all of Danjaq's contracts for compliance with Swiss law (to the extent that Swiss law bears on Danjaq's contracts), he does not initiate or conduct any negotiations on behalf of Danjaq. Mr. *200 Reynard's role in the operation, as earlier described, is even more modest. He keeps track of payments made to Danjaq's accounts and deposits them in interest-bearing bank accounts only, with no authority to make more imaginative investments.
If put in anatomical terms, Switzerland is Danjaq's stomach reflexively churning the enterprise's profits, but it is hardly a nerve center. The brains of the operation, committing the company to its next assignment or a critical contract, are in Los Angeles. Los Angeles is where Mr. Broccoli reviews the scripts for the next Bond challenge and envisions future plot lines. It is from Los Angeles that the nerve impulse emanates to Lausanne, London, New York and elsewhere, sending the people in motion on the next project. Los Angeles is Danjaq's nerve center, London is the muscle and Lausanne, the stomach. Accordingly, Los Angeles is Danjaq's principal place of business.
Mr. Broccoli has lived in Los Angeles during the last twenty years. He has testified at a hearing that he and his company are well known to the filmmaking community here. Danjaq's crucial discussions with MGM are carried on in Los Angeles several times during the year, and important decisions are made here. In short, Danjaq, whose chief decisionmaker lives and works within a few miles from Hollywood and this courthouse, is hardly an outsider to this forum. Danjaq has not convinced this court that it requires protection from local prejudice that diversity jurisdiction affords to true outsiders.
II. COPYRIGHT CLAIMS
A. Copyright Allegations
Danjaq and MGM are co-owners of copyright to Bond films. Mindful of the well-established proposition that "[o]ne joint owner cannot be liable for copyright infringement to another joint owner, for reason that one cannot infringe his own copyright," Danjaq has asserted a copyright infringement claim only against Pathe and not MGM or other defendants. 1 M. Nimmer & D. Nimmer, Nimmer on Copyright, § 6.10; see also Oddo v. Ries, 743 F.2d 630, 632-633 (9th Cir.1984).
The substance of Danjaq's accusations is that, prior to the merger with MGM, Pathe toured the capitals of Europe offering to license the exhibition of Bond films to every television station along the way at cut-rate prices, thereby diminishing the value of Danjaq's copyright on the world market. Counsel alleges that negotiations were conducted between Pathe and French, Italian, and Spanish telecasters. Only the Spanish deal is alleged to have culminated in a final licensing agreement. In each case, Pathe made its licensing offer contingent upon a successful merger with MGM.[2]
No primary infringement of the Bond copyright, such as a public display or distribution of the films, is alleged in the complaint. Danjaq seeks to impose copyright liability upon Pathe solely for its, as yet unconsummated, "authorization" of public performances of Bond films.
B. Contributory Infringement Before and After 1976
The Copyright Act reserves to the owner of copyright the exclusive rights "to do and to authorize any of the following": the reproduction of the copyrighted work, the preparation of derivative works, the distribution or sale of the copyrighted work, and its display and performance in public. See 17 U.S.C. § 106 (emphasis added). Anyone who violates any of the exclusive rights of the copyright owner is an infringer of copyright, liable to the owner for actual or statutory damages, and, in the discretion of the court, for costs and attorney's fees. See 17 U.S.C. §§ 501-505. Danjaq contends that Pathe infringed its exclusive right "to authorize" the performance of Bond films. Thus, the viability of Danjaq's copyright claim rests on the court's construction of a key word in the statute.
*201 The word "authorize" did not appear in the Copyright Act of 1909 but was added by Congress in 1976. See Peter Starr Prod Co. v. Twin Continental Films, 783 F.2d 1440, 1443 (9th Cir.1986); see generally Nimmer on Copyright, supra, § 12.04(A). The absence of an express statutory mandate, however, did not prevent the courts from imposing, in appropriate circumstances, liability upon contributory infringers of copyright long before the 1976 amendment; examples of contributory infringement before 1976 included the licensing of copyrighted works or authorizing third parties to display publicly copyrighted works without the copyright owner's permission. See, e.g., Northern Music Corp. v. King Record Dist. Co., 105 F. Supp. 393, 400 (S.D.N.Y.1952) (defendant infringed plaintiff's copyright by "authorizing public performances of the infringing musical composition").
The pre-1976 law was stated by the Second Circuit as follows: a party "who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another, may be held liable as a `contributory infringer.'" Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir.1971). Contributory infringement, under this standard, plainly does not lie without primary infringement. This, of course, does not mean that the primary infringer must be a co-defendant in the case; there may be many reasons why a party may not be held accountable for its conduct in court. What is important is that contributory infringement be hinged upon an act of primary infringement, even if the primary infringer for some reason escapes judicial scrutiny. Cf. Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 526, 92 S. Ct. 1700, 1706, 32 L. Ed. 2d 273 (1972) (patent case) ("But it is established that there can be no contributory infringement without the fact or intention of a direct infringement.").
The novel question presented in this case is whether the law has changed since 1976 that is, whether copyright liability may now be imposed upon an authorization that does not in fact culminate in a primary infringement of copyright.
When Congress added the word "authorize" to the Copyright Act of 1976, it may have intended simply to codify the antecedent jurisprudence of contributory infringement, without creating a new and separate basis for copyright liability. The House Report lends some support to this position: "[u]se of the phrase `to authorize' is intended to avoid any questions as to the liability of contributory infringers." H.R.Rep. No. 1476, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code Cong. & Admin. News, 5659, 5674.
In addition, Professor Nimmer in the latest edition of his treatise suggests that in "all but exceptional circumstances, the act of authorization simpliciter is unlikely to damage the copyright owner." See 3 Nimmer on Copyright, supra, at § 12.04(A). For this reason, Professor Nimmer suggests that instances of unconsummated authorization do not merit the invocation of federal court jurisdiction under the Copyright Act. See id.
Although instances are conceivable in which an act of authorization alone may injure the copyright owner, such instances in all likelihood are remediable under the applicable state law without the need to invoke jurisdiction under the Copyright Act. See id. Tort actions in the nature of interference with prospective economic advantage are particularly apt in providing relief to the copyright owner in those exceptional circumstances where he is injured by a naked authorization. See id. n. 85; Cf. Ernst & Ernst v. Carlson, 247 Cal. App. 2d 125, 55 Cal. Rptr. 626 (1966) (defendant enjoined from interfering in plaintiff's relationship with its clients).
Indeed, Professor Nimmer's general proposition is amply borne out by the plaintiff's complaint in this action. Danjaq has not been at a loss to find state-law causes of action against Pathe or MGM. The complaint alleges that Pathe's acts of authorization, made with MGM's permission, amounted to a breach of contract and fiduciary duty by MGM, and a conspiracy by MGM and Pathe to interfere with Danjaq's *202 contractual rights, and a conspiracy to breach fiduciary duty. This list, which may grow longer with discovery, suggests that Danjaq will not be left without some remedy if in fact the value of its Bond copyright had been wrongfully diminished through Pathe's negotiations in Europe.
Thus, there exists substantial authority in the congressional record and in the commentaries for confining the scope of authorization liability under the Copyright Act of 1976 to the bounds of contributory infringement liability, as that concept had developed under the Copyright Act of 1909. If so confined, authorization liability would lie only where direct infringement had in fact occurred, and state law would be entrusted to render complete justice in those rare instances where an unconsummated act of authorization redounds to the copyright owner's loss.
C. Authorization of Extraterritorial or Otherwise Noninfringing Use
The court may reserve for another day the broad question of whether an unconsummated authorization is ever actionable under the Copyright Act. The present case is susceptible to summary resolution on a much narrower ground: Danjaq's copyright allegations fail to state a claim, because Pathe did not authorize an infringing use of Bond films. This is to say that direct infringement did not just fail to materialize in this case but rather was precluded by the very terms of Pathe's alleged authorization.
Section 106 of the Copyright Act does not prohibit every authorization in respect of a copyrighted work but only authorizations of an infringing use of a copyrighted work, such as public display or distribution. In a recent case, for example, copyright owners brought an infringement suit against a hotel for renting videodiscs and providing video equipment to the hotel guests for in-room viewing of copyrighted motion pictures. See Columbia Pictures Ind., Inc. v. Professional Real Estate Inv., 866 F.2d 278 (9th Cir.1989). The plaintiffs contended that hotel rooms were public places and that the hotel, therefore, authorized public performances of copyrighted works. See id. at 280. But the Ninth Circuit disagreed, holding that hotel rooms were not public places under the Copyright Act and affirming, without further discussion, a summary judgment for the defendant hotel. Id. at 282. To be sure, the Ninth Circuit did not hold that the hotel did not authorize the performances of copyrighted works, which the hotel certainly did, but rather that the performances so authorized did not infringe the exclusive rights of copyright owners because such performances were nonpublic. The decision in Columbia Pictures has confirmed the intuitive suspicion that no liability can arise under the Copyright Act from the authorization of a noninfringing use of a copyrighted work.[3]
There are two separate grounds for likening the present case to Columbia Pictures, though the court will rely on only one of them. First, Pathe's conditional licensing offer must have been stated in roughly these terms: "I will allow you to show the film next month, for a fee, provided that in the meantime I acquire copyright to the film from the current owner." Plainly, if the terms of such authorization were faithfully carried out, and the film were actually shown, no primary infringement would occur because the authorizer would become the owner of copyright before the day of the showing. Thus, a conditional license may not, depending on its precise terms, authorize an infringing use of a copyrighted work. The determination of the relevant terms, however, must await a full hearing or even a trial.
The second ground, which easily lends itself to resolution on a motion to dismiss, rests on the undisputed axiom that the *203 United States copyright laws do not operate extraterritorially. See, e.g., American Banana Co. v. United Fruit Co., 213 U.S. 347, 356, 29 S. Ct. 511, 512, 53 L. Ed. 826 (1909) (per Holmes, J.); Filmvideo Releasing Corp. v. Hastings, 668 F.2d 91 (2d Cir.1981); see generally 3 Nimmer on Copyright, supra, at § 17.02. Even a public performance of a copyrighted film overseas does not violate the U.S. Copyright Act. It may, perhaps, violate the copyright protection laws of the country of performance, but not those of the United States. Cf. Robert Stigwood Group v. O'Reilly, 530 F.2d 1096, 1101 (2d Cir.1976) ("The Canadian performances, while they may have been torts in Canada, were not torts here.").
Taking as given that the performance of Bond films on European television would not infringe Danjaq's U.S. copyright, the court must conclude that Pathe's alleged authorization of such performances is not actionable under the U.S. Copyright Act, not any more than was the defendant hotel's authorization of nonpublic performances in Columbia Pictures. The exclusive right of the copyright owner under Section 106 is not to authorize every performance of a motion picture, but only public performances and, because the section is enacted against a general background presumption of non-extraterritoriality, only in the United States. See E.E.O.C. v. Arabian American Oil Co., ___ U.S. ___, 111 S. Ct. 1227, 1230, 113 L. Ed. 2d 274 (1991) (background presumption against extraterritoriality).
It is simply not possible to draw a principled distinction between a private performance of a motion picture in the United States and a public performance overseas. The copyright owner is not vested with the exclusive right either to do or to authorize private or overseas performances. Even as a matter of formal statutory construction, the exemptions from liability for both private and overseas performances arise as negative inferences from the text of Section 106. Private performances of motion pictures are not actionable because the Congress had failed to include such performances among the list of the copyright owner's exclusive rights. In the same manner, overseas performances are not actionable because the Congress has not chosen to enforce the U.S. copyright laws extraterritorially.
To be sure, the complaint alleges that certain negotiations for foreign television rights were conducted in the United States and that such negotiations constituted acts of authorization. These allegations, however, neglect the central lesson of Columbia Pictures that an authorization of a noninfringing activity, such as a private or an overseas performance, is not actionable under the Copyright Act even if the authorization is made in the United States.
Accordingly, the allegations of Danjaq's second amended complaint that Pathe authorized the public performance of Bond films overseas do not state a claim under the U.S. Copyright Act.
The strongest authority cited by Danjaq in contravention of this court's conclusion comes from another Ninth Circuit case decided three years before Columbia Pictures. See Peter Starr Prod. Co. v. Twin Continental Films, Inc., supra. In Peter Starr, the Ninth Circuit held that the district court had subject matter jurisdiction over a claim that the defendant authorized in the United States an overseas exhibition of a copyrighted film. 783 F.2d at 1441-1443. It would be too facile, however, to conclude from this decision that the Ninth Circuit approved the imposition of liability in the circumstances described.
Peter Starr addressed itself entirely to the question of subject matter jurisdiction and not to the sufficiency of the claim. Indeed, the Ninth Circuit only recently held that a copyright claim "arises under" federal law on the basis of a well-pleaded complaint. See Effects Associates, Inc. v. Cohen, 817 F.2d 72, 73 (9th Cir.1987). Hence, the complaint in Peter Starr, alleging authorization within the United States, may have been sufficiently well pleaded so as to arise under the U.S. Copyright Act; the Ninth Circuit has certainly so held. However, in that case the Ninth Circuit was neither presented with nor addressed *204 the question, whether the complaint properly arising under federal law also stated a claim for relief under that law. In view of the Ninth Circuit's subsequent decision in Columbia Pictures and for reasons stated in this opinion, this court concludes that the complaint in Peter Starr and Danjaq's instant complaint, while arising under the U.S. Copyright Act, failed to state a claim for relief under that Act.
Accordingly, Pathe's alleged authorization of noninfringing overseas performances is not actionable under the U.S. Copyright Act. The copyright claim is dismissed under F.R.C.P. 12(b)(6).
IT IS SO ORDERED.
NOTES
[1] The commentaries shed little light on this point. Professor Miller adopts, without discussion or citation to other cases, the questionable holding of Textron. See Wright, Miller & Cooper, Federal Practice & Procedure, supra, at § 3625 (Some of the cases cited in the treatise along with Textron involve the inapposite situations of determining the subsidiary's, not the parent's, principal place of business. See, e.g., Burnside v. Sanders Associates, Inc., 507 F. Supp. 165, 166 (N.D.Tex.1980), cited at § 3625 n. 41.) Professor Moore, in a cryptic footnote, citing Textron, suggests that "the activities of the subsidiaries may also be considered in determining the principal place of business of the parent corporation." Moore's Federal Procedure, at § 3.2 n. 7.
[2] The conditional character of the licensing offer may be important because with the acquisition of MGM, Pathe would also acquire a part ownership interest in the Bond copyright, thereby immunizing itself from infringement liability for any showings of Bond films made after the merger.
[3] The converse of the Columbia Pictures case, involving the same plaintiff but different defendants, arose in the Third Circuit, where a video store rented video cassettes and, if a patron so desired, a small room within the video store equipped with a video player to view the rented tape. See Columbia Pictures Ind., Inc. v. Aveco, Inc., 800 F.2d 59 (3d Cir.1986). In Aveco, the Third Circuit found the video rooms to be public places and imposed liability on the video store for having authorized public performances of copyrighted works. Id. at 61-64. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608110/ | 773 F. Supp. 1117 (1991)
SABENA BELGIAN WORLD AIRLINES, Plaintiff,
v.
UNITED AIRLINES, INC., Defendant.
No. 91 C 789.
United States District Court, N.D. Illinois, E.D.
August 26, 1991.
*1118 Bruce C. Spitzer, Gorham, Metge, Bowman & Hourigan, Thomas L. Hogan, Hogan & Hogan, Ltd., Chicago, Ill., for plaintiff.
Edward J. Leahy, Charles M. Fraenkel, Leahy, Eisenberg & Fraenkel, Ltd., Chicago, Ill., for defendant.
MEMORANDUM OPINION AND ORDER
CONLON, District Judge.
In this diversity action, plaintiff Sabena Belgian World Airlines ("Sabena") sues defendant United Airlines, Inc. ("United") for breach of contract and implied indemnification. Pursuant to Fed.R.Civ.P. 12(b)(6), United moves to dismiss the amended complaint on the grounds that (1) Sabena's claims are time-barred; (2) Sabena's claims are preempted by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 11707; and (3) the amended complaint fails to state a claim for relief. United also moves to strike a portion of Sabena's prayer for relief.
BACKGROUND
On a motion to dismiss, the court accepts as true all the well-pleaded factual allegations in the amended complaint and views those allegations in the light most favorable to the plaintiff. Gillman v. Burlington Northern R. Co., 878 F.2d 1020, 1022 (7th Cir.1989). Sabena is a Belgium corporation with its principal place of business in Brussels, Belgium. Amended Complaint, Count I, ¶ 1. United is a Delaware corporation with its principal place of business in Illinois. Id. ¶ 2. On October 12, 1982, Sabena and United entered into an Airport Ground Services Agreement ("the contract"). Id. ¶ 4. Under the contract, United agreed to act as Sabena's agent in processing and handling all of Sabena's air-freight that was shipped to or passing through New York, New York. Id. ¶¶ 4, 5. Before allowing a person to pick up a shipment, United was required to demand and inspect proper identification and documentation from the claimant. Id. ¶ 8. Sabena agreed to indemnify United for any claim or liability resulting from United's cargo handling services, unless the claim or liability was caused by United's gross negligence or willful misconduct. See Contract ¶ 9, attached as Ex. A to Amended Complaint.
Sabena claims that on three separate occasions in 1984, United received shipments of goods from Sabena and improperly delivered these shipments to unauthorized claimants without demanding the required documentation or identification. Id. ¶¶ 6, 9. As a result, the owners of the three shipments sued Sabena in a German court and obtained a judgment for $171,404.10, an *1119 amount equal to the full value of the three shipments, plus prejudgment interest and litigation costs. Id. ¶¶ 13-14. Having paid this judgment, Sabena seeks reimbursement from United for its alleged gross negligence and willful misconduct in handling the three shipments. Id. ¶¶ 15-17. Count I alleges that United breached the contract by mishandling the shipments. Count II states a claim for implied indemnification.
DISCUSSION
Generally, the federal system of notice pleading does not favor dismissal for failure to state a claim. Gray v. Dane County, 854 F.2d 179, 182 (7th Cir.1988). However, dismissal is proper if it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim that would entitle her to the relief requested. Illinois Health Care Ass'n v. Illinois Dep't of Public Health, 879 F.2d 286, 288 (7th Cir.1989), citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957). The defendant bears the burden of establishing the legal insufficiency of the complaint. Yeksigian v. Nappi, 900 F.2d 101, 104-05 (7th Cir.1990).
I. Warsaw Convention
United asserts that Sabena's claims are barred by the two-year limitation period set forth in Article 29 of the Warsaw Convention, 49 U.S.C.App. § 1502 note. The Warsaw Convention governs "all international transportation of persons, baggage, or goods performed by aircraft for hire." Id., Article 1(1). Article 29(1) of the Warsaw Convention states:
The right to damages shall be extinguished if an action is not brought within 2 years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the transportation stopped.
Sabena filed this action against United on February 6, 1991. The alleged mishandling of cargo occurred in 1984. See Amended Complaint, Count I, ¶ 6. The German court judgment against Sabena was entered on July 29, 1988. Id. ¶¶ 13-16. Using either the date the cargo was allegedly mishandled or the date of the German court judgment as the critical date, the two-year limitation period of the Warsaw Convention would bar Sabena's action against United.
Sabena disputes the applicability of the Warsaw Convention's limitation period to its claims. The parties agree that the terms of the Warsaw Convention apply to ground handling of baggage, as well as actual air transportation. Magnus Electronics, Inc. v. Royal Bank of Canada, 611 F. Supp. 436, 439-40 (N.D.Ill.1985). In addition, it is clear that the Warsaw Convention applies to claims by a passenger or shipper against an agent or employee of an air carrier. Mitchell, Shackleton & Co. v. Air Express Intern'l, 704 F. Supp. 524, 525 (S.D.N.Y.1989), citing Reed v. Wiser, 555 F.2d 1079 (2d Cir.), cert. denied, 434 U.S. 922, 98 S. Ct. 399, 54 L. Ed. 2d 279 (1977); Baker v. Lansdell Protective Agency, Inc., 590 F. Supp. 165 (S.D.N.Y.1984); Julius Young Jewelry Mfg. Co., Inc. v. Delta Air Lines, 67 A.D.2d 148, 414 N.Y.S.2d 528 (1979).
Sabena concedes the validity of these cases, and acknowledges that the Warsaw Convention applied to the original action in the German court in which Sabena was held accountable for the mishandled cargo ("the main action"). However, Sabena contests the applicability of the Warsaw Convention to the present action against United because Sabena is not a passenger or shipper suing to recover for lost or stolen cargo. Instead, Sabena is an air carrier, suing its agent, United, for reimbursement due to United's alleged gross negligence in mishandling cargo belonging to passengers or shippers. Thus, the court must determine whether the Warsaw Convention's two-year limitation period governs actions in which an air carrier sues its ground handler seeking reimbursement for money the air carrier paid to passengers or shippers due to the ground handler's alleged negligence.
This issue was squarely addressed in Mitchell, 704 F.Supp. at 525-28. In Mitchell, the plaintiff used an air carrier to ship *1120 machinery from London, England to Jamaica, New York. Upon its arrival in New York, the machine was damaged while being off-loaded by the air carrier's agent. The plaintiff sued the air carrier and the air carrier filed a third-party action against its agent, the ground handler. As in the present case, the Mitchell court recognized that the Warsaw Convention applied to the main action between the plaintiff and the air carrier. However, after reviewing the relevant case law and the policies underlying the Warsaw Convention's two-year limitation period, the Mitchell court determined that the limitation period did not apply to a carrier's third-party action for indemnity against its non-carrier agent. Id. The Mitchell court explained that in ordinary actions by a passenger or shipper against an air carrier's agent, courts apply the Warsaw Convention's liability limitations "to prevent a plaintiff from circumventing the Convention's liability limit by suing a carrier's agents or servants," instead of the air carrier directly. Id. at 526-27. The Mitchell court noted a second reason for applying the Warsaw Convention to claims against an air carrier's agent: to ensure that the same local substantive and procedural rules apply to claims against carriers and their agents. Id. at 527. As the Mitchell court explained, these two considerations are not compelling in an indemnification action by a carrier against its non-carrier agent:
The plaintiff in the original action, to which the Convention applies, cannot circumvent the Convention to either collect more than its limit or defeat the two-year limitation period.... The Convention's limitation on carrier liability in this indemnity action is the Convention's liability limitation that applies to the main action. By allowing this indemnification action to proceed, this court ensures that the carrier's liability will be appropriately limited, within the liability parameters of the Convention, by its actual fault, if any.
Id. The Mitchell court also cited with approval a decision by the Ontario High Court of Justice rejecting the applicability of the two-year limitation period to an air carrier's third-party indemnity action against another air carrier. Connaught Laboratories Ltd. v. Air Canada, 15 AV. Cas. (CCH) 17,705 (Ontario High Court of Justice 1978). The Connaught court reasoned that "[n]one of the Articles in the [Warsaw Convention's provisions on liability] regulate or purport to regulate claims of carriers one against the other." Thus, the Connaught court concluded that the two-year period of limitations did not apply to claims between air carriers. Id. at 17,708-09.
The sound reasoning of Mitchell and Connaught applies to the present case. Like the air carriers in Mitchell and Connaught, Sabena brings a secondary action against its agent, United, to recover for United's role in the alleged mishandling of cargo belonging to shippers or passengers. While the Warsaw Convention's limitations unquestionably applied to the main action against Sabena, the policies underlying the two-year bar would not be served by applying the limitation period to Sabena's action for reimbursement. Accordingly, Sabena's amended complaint is not barred by the Warsaw Convention's two-year limitation period.
II. The Carmack Amendment
As an alternative theory of dismissal, United contends that Sabena's action is preempted by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 11707. Section 11707(a)(1) authorizes a civil action for actual loss or damage to property caused by a "common carrier" or "freight forwarder." Id.; Travelers Indemnity Co. v. Alliance Shippers, Inc., 654 F. Supp. 840, 841 (N.D.Cal.1986). United attempts to persuade the court that it was acting as a "freight forwarder" in carrying out its contractual duties to Sabena as a cargo handler. The term "freight forwarder" is defined as:
a person holding itself out to the general public ... to provide transportation of property for compensation and in the ordinary course of its business
(A) assembles and consolidates, or provides for assembling and consolidating, *1121 shipments and performs or provides for break-bulk and distribution operations of the shipments;
(B) assumes responsibility for the transportation from the place of receipt to the place of destination; and
(C) uses for any part of the transportation a carrier subject to the jurisdiction of the Interstate Commerce Commission under subchapter I [concerning rail, railwater, express and pipe line carrier transportation], II [concerning motor carrier transportation], or III [concerning water carrier transportation] of chapter 105 of this title.
49 U.S.C. § 10102(9). Each and every definitional element must be present before the court may find that a party is a freight forwarder. Travelers, 654 F.Supp. at 841. Without delving into the intricacies of the definitional requirements, the court observes that United has failed to demonstrate that it satisfies subsection (C) of 49 U.S.C. § 10102(9). There is no indication that United used a carrier subject to the jurisdiction of the Interstate Commerce Commission in performing its contractual duties to Sabena as cargo handler. United implicitly concedes this point by arguing that as a freight forwarder, it need not be subject to the jurisdiction of the Interstate Commerce Commission. See United's Reply at 7.[1] However, section 10102(9) specifically sets forth this requirement. Because United has not shown that it was acting as a freight forwarder, the Carmack Amendment does not preempt Sabena's claims.
III. New York's Statute of Limitations
As a further alternative to its Warsaw Convention and Carmack Amendment arguments, United asserts that Sabena's claims are barred by New York's statute of limitations. The identical argument was addressed and rejected in this court's memorandum opinion and order regarding Sabena's motion for reconsideration. See June 6, 1991 Mem.Op. and Order at 3 n. 1. The court shall not revisit the issue on this motion.
IV. Motion to Dismiss for Failure to State a Claim
United contends that Counts I and II of the amended complaint must be dismissed for failure to state a claim.
A. Count I Breach of Contract
Although Count I clearly alleges a breach of contract claim, United argues that Count I is actually an indemnity claim based on the terms of the contract. Since there is no express provision in the contract that grants Sabena a right of indemnification against United, United argues that Count I fails to state a claim for relief. As with United's argument concerning New York's statute of limitations, the court has previously considered and rejected United's position regarding Count I:
According to United, Sabena may not recover against United because the contract does not set forth a corresponding indemnification obligation on United's part to indemnify Sabena for United's willful misconduct or gross negligence. This argument lacks merit. Count I asserts a cause of action against United for breach of its contractual duties, not for indemnification. Thus, Sabena may recover against United if United's conduct amounted to willful misconduct or gross negligence.
Id. at 5-6 (citation omitted). United's attempt to relitigate this issue is unpersuasive and inappropriate. The motion to dismiss Count I for failure to state a claim is denied.
B. Count II Implied Indemnity
In Count II, Sabena sues United under a theory of implied indemnity arising out of United's alleged willful misconduct and gross negligence in handling baggage as Sabena's agent.
United observes that the Illinois Supreme Court has abolished implied indemnity actions based on "active/passive negligence." Frazer v. A.F. Munsterman, Inc., 123 *1122 Ill.2d 245, 123 Ill. Dec. 473, 479, 527 N.E.2d 1248, 1254 (1988); Allison v. Shell Oil Co., 113 Ill. 2d 26, 99 Ill. Dec. 115, 495 N.E.2d 496 (1986).[2] The term "active/passive negligence" refers to situations where the conduct of one tortfeasor was considered to be the primary, or "active" cause of damage to the plaintiff, and the conduct of the other tortfeasor was considered to be a secondary, or "passive" cause of damage. Frazer, 123 Ill.Dec. at 477, 527 N.E.2d at 1252. Under the doctrine of active/passive negligence, the passively negligent party was permitted to shift the entire burden of the plaintiff's loss to the actively negligent tortfeasor. Id. In Allison, the Illinois Supreme Court determined that this doctrine was no longer appropriate in light of the passage of the Illinois Contribution Among Joint Tortfeasors Act, Ill.Rev.Stat. ch. 70, par. 301 et seq., which adopted a form of pure comparative negligence and provided for a right of contribution among joint tortfeasors. Id., 123 Ill.Dec. at 479, 527 N.E.2d at 1254, citing Allison, 99 Ill.Dec. at 120, 495 N.E.2d at 501.
Although active/passive implied indemnity has been abolished in Illinois, implied indemnity continues to be a viable cause of action where one party has been held vicariously liable for the conduct of another, as in the case of an employer being held for the act of an employee. Frazer, 123 Ill.Dec. at 479, 527 N.E.2d at 1254. See also Diamond v. General Telephone Co., 211 Ill.App.3d 37, 155 Ill. Dec. 652, 659, 569 N.E.2d 1263, 1268 (1991) ("[c]laims for implied indemnification premised on underlying actions regarding ... vicarious liability and express contractual obligations were excepted from Allison's abolition of active-passive indemnity"). According to the Illinois Supreme Court:
"Implied indemnity" is based on principles of restitution: "a contract implied in law arising from the legal obligation of an indemnitee to satisfy liability caused by actions of his indemnitor." [citations]. The fundamental premise for the cause of action is that the indemnitee, although without fault in fact, has been subjected to liability solely because of the legal relationship with the plaintiff or a nondelegable duty arising out of common or statutory law. [citation].
Frazer, 123 Ill.Dec. at 476-77, 527 N.E.2d at 1251-52 (emphasis added). In the present action, Sabena has sufficiently alleged a claim for implied indemnity against its agent, United. The amended complaint alleges that as a result of United's gross negligence or willful misconduct, Sabena was forced to satisfy shippers' claims for the lost cargo. According to the allegations in the amended complaint, United's misconduct was the sole cause of the loss of property. Viewing all reasonable inferences in favor of Sabena, the amended complaint does not indicate that Sabena contributed in any way to the loss of cargo. Under these circumstances, the abolition of active/passive indemnification has no bearing on Sabena's claim for implied indemnity. Sabena has sufficiently alleged a claim against United for implied indemnification based on United's status as Sabena's agent in handling Sabena's cargo.
V. Motion to Strike Request for Litigation Expenses
In Counts I and II, Sabena seeks to recover expenses (including attorneys' fees) that Sabena incurred in defending the main action brought against it in the German court. United contends that it is not liable for Sabena's litigation expenses in defending the main action. Endorsement No. 2(G) of the contract between Sabena and United provides:
[United] will not be responsible for settlement of claims against [Sabena] for damages to, loss, or delay of [Sabena]'s air cargo shipments. [Sabena] shall handle and make final disposition, at its own expense, of all such claims as may be submitted by its customers through [United] on [Sabena]'s form, including, without limitation, any investigation of such claims as may be required.
This provision allocates to Sabena the task of handling and settling all claims for loss *1123 or damage to Sabena's cargo shipments. On its face, Endorsement No. 2(G) absolves United of responsibility for litigation expenses. Accordingly, United's motion to strike Sabena's request for expenses incurred in defending the main action in the German court is granted.
CONCLUSION
United's motion to dismiss the amended complaint is denied. United is directed to answer the amended complaint by September 10, 1991. United's motion to strike Sabena's request to recover German litigation expenses is granted.
NOTES
[1] In both briefs submitted to this court, United failed to number the pages. The court's citation is to the seventh page of United's reply brief.
[2] The parties agree that Illinois law governs the substantive issues in this action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608076/ | 21 So. 3d 803 (2008)
JERRY TOSTON
v.
STATE.
No. CR-07-0095.
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/1608215/ | 791 So. 2d 979 (2000)
Jeremiah JACKSON
v.
STATE.
CR-97-0998.
Court of Criminal Appeals of Alabama.
March 31, 2000.
Rehearing Denied June 2, 2000.
*989 Shirley Trivett Chapin, Tuscaloosa; and Ellen L. Wiesner, Brookfield, Wisconsin, for appellant.
Bill Pryor, atty. gen.; and Jeremy W. Armstrong and James R. Houts, asst. attys. gen., for appellee.
LONG, Presiding Judge.
The appellant, Jeremiah Jackson, was convicted of murder made capital because it was committed during the course of a robbery in the first degree. See § 13A-5-40(a)(2), Ala.Code 1975. The jury, by a vote of 10-2, recommended that Jackson be sentenced to death. The trial court accepted the jury's recommendation and sentenced Jackson to death.
*990 The State's evidence tended to show the following. On April 15, 1996, at approximately 1:45 p.m., Jackson and Alfred Reed, Jackson's codefendant,[1] robbed the Hillview Grocery Store on County Road 24 in Bibb County. Jackson was armed with a 12-gauge shotgun. The clerk and owner of the store, Vicki Carroll, was talking on the telephone with her husband, Jerry Carroll, when Jackson and Reed entered the store. Jerry Carroll testified that while he was talking with his wife, he heard her scream, "Take it. Take it all. Take all of it." (R. 389.) Mr. Carroll immediately asked his wife if she was being robbed, and she said that she was. Mr. Carroll then hung up and telephoned 911 to report the robbery.
Testimony showed that Vicki Carroll was killed during the robbery by a closerange shotgun blast to her forehead. Photographs of the scene showed fragments of Carroll's skull and brain tissue scattered throughout the store. Bloodstains found in the bottom of the empty drawer of the cash register indicated that the shooting occurred after all the cash had been removed from the register. Pellets from a 12-gauge shotgun shell were found in the store. John R. McDuffy, a forensic scientist with the Alabama Department of Forensic Sciences, testified that the splatter of blood and tissue throughout the store and the location of the shotgun pellets indicated that the fatal shot was fired from behind the counter, within a few feet of Carroll.
Larry Sanders, an acquaintance of Jackson's, testified that he was driving home from work at approximately 4:00 p.m. on April 15, 1996, when Jackson and another individual flagged him down. Sanders stated that he gave Jackson and the other individual a ride to Chris Dobyne's house in Brent. Sanders testified that Jackson did not appear intoxicated at the time.
Angela Smith testified that she was living with Chris Dobyne, Alfred Reed, and John Martin in April 1996. On the morning of April 15, 1996, she and Dobyne were at Dobyne's mother's house when Reed and Martin came over. Smith testified that Reed, Martin, and Dobyne went outside and engaged in a conversation, during which she saw Dobyne continually shaking his head in the negative. Reed and Martin then left, she said. Later that day, at approximately 4:00 p.m., according to Smith, Martin arrived at Dobyne's house and stated that a woman had been murdered. Approximately 15 minutes later, Reed and Jackson arrived, and Jackson, Reed, Martin, and Dobyne began talking. According to Smith, Jackson stated that he had killed a woman, that he had "blowed her brains out." (R. 578.) In addition, Smith testified that she heard someone say that he had thrown the gun in the river; she did not identify who made that statement. Smith also stated that Jackson did not appear to be intoxicated or on drugs on April 15. The next afternoon, Jackson again came over to Dobyne's house. This time, Jackson had a newspaper containing an article about the robbery and murder at the Hillview Grocery Store. According to Smith, Jackson stated that "he [had] made [the] news." (R. 578.)
In his statement to police, Jackson admitted shooting Vicki Carroll during the robbery of the Hillview Grocery Store, but he claimed that the shooting was accidental. *991 Jackson told police that at approximately 8:30 a.m. on the day of the murder, Martin and Reed picked him up in Martin's car on Bear Creek Road. The three of them then drove around Bibb County for several hours, drinking beer and smoking marijuana, before Martin came up with the idea of robbing the store. According to Jackson, they then drove to Marion, where Reed retrieved a sawed-off 12-gauge shotgun from under the hood of his car. Reed gave the gun to Jackson. Jackson told police that after they got the gun from Reed's car, they drove by the Hillview Grocery Store five or six times (they even stopped at the store to buy beer at one point) before they robbed it. Jackson said that the last time they drove by the store, there were no cars in sight, so Martin stopped and let Jackson and Reed out of the car. Martin arranged to pick Jackson and Reed up at a cemetery down the road after the robbery. Jackson told police that when he entered the store, the female clerk was talking on the telephone. He then went behind the counter, pulled out the shotgun, and told the clerk, several times, to lie on the floor. Jackson said that he heard the woman say, "Yeah" into the telephone and that he believed she was telling someone she was being robbed. He said that he was "nervous and shaking" and that he then heard a shot; however, he said he did not remember pulling the trigger of the shotgun. According to Jackson, Reed did not take the money from the cash register until after the shot had been fired. Reed and Jackson then fled the scene. Jackson stated that when they got outside the store, he gave the shotgun to Reed and then ran into the woods. When he later met Reed at the cemetery, Reed did not have the shotgun. Jackson said that Reed told him that he had "got rid of the shotgun." Because Martin did not meet them at the cemetery as planned, Jackson and Reed walked to Chris Dobyne's house in Brent. There, Jackson, Reed, Martin, and Dobyne split the money from the robbery. The total amount of money taken from the store was approximately $200.
On appeal, Jackson raises 28 issues, many of which he did not raise by objection in the trial court. Because Jackson was sentenced to death, his failure to object at trial does not bar our review of these issues; however, it does weigh against any claim of prejudice he now makes on appeal. See Dill v. State, 600 So. 2d 343 (Ala.Cr.App.1991), aff'd, 600 So. 2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S. Ct. 1293, 122 L. Ed. 2d 684 (1993); Kuenzel v. State, 577 So. 2d 474 (Ala.Cr.App.1990), aff'd, 577 So. 2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S. Ct. 242, 116 L. Ed. 2d 197 (1991).
Rule 45A, Ala.R.App.P., provides:
"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."
"Plain error" has been defined as error "so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings." Ex parte Womack, 435 So. 2d 766, 769 (Ala.), cert. denied, 464 U.S. 986, 104 S. Ct. 436, 78 L. Ed. 2d 367 (1983), quoting United States v. Chaney, 662 F.2d 1148 1152 (5th Cir. 1981). "To rise to the level of plain error, the claimed error must not only seriously affect a defendant's `substantial rights,' but it must also have an unfair prejudicial impact on the jury's deliberations." Hyde v. State, 778 So. 2d 199, 209 (Ala.Cr.App. *992 1998). This court has recognized that "`the plain error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."'" Burton v. State, 651 So. 2d 641, 645 (Ala.Cr.App.1993), aff'd, 651 So. 2d 659 (Ala.1994), cert. denied, 514 U.S. 1115, 115 S. Ct. 1973, 131 L. Ed. 2d 862 (1995), quoting United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046, 84 L. Ed. 2d 1 (1985) (quoting, in turn, United States v. Frady, 456 U.S. 152, 163, 102 S. Ct. 1584, 1592, 71 L. Ed. 2d 816 (1982)). Accordingly, we now address each of the 28 issues Jackson raises.
I.
Jackson contends that the trial court erred in failing to conduct a competency hearing because, he says, his pretrial mental evaluation "raise[d] serious questions as to [his] competenc[y]" to stand trial. (Issue XIII in Jackson's brief to this court, p. 77.) Because this claim was never presented to the trial court, our review will be under the plain-error rule. See Rule 45A, Ala.R.App.P.
The record reflects that Jackson initially pleaded not guilty by reason of mental disease or defect.[2] Based on Jackson's plea and on the State's motion requesting that Jackson be ordered to submit to a mental evaluation, the trial court ordered a psychological examination to determine whether Jackson was competent to stand trial and also to determine his mental state at the time of the murder. Dr. Vonciel C. Smith, a forensic examiner at the Taylor Hardin Secure Medical Facility, evaluated Jackson on September 24, 1996. In his evaluation report, Dr. Smith made the following findings relevant to Jackson's competency to stand trial:
"[T]he available data is inconsistent with formal thought disorder, major affective disturbance, or severe cognitive impairment. However, the defendant appears to function in the borderline range of intelligence. This intellectual functioning appears to be cultural familial in origin and of long-standing duration. Despite these limited cognitive abilities, Mr. Jackson was able to profit from concrete educational efforts on my part during the formal competency evaluation....
"Jeremiah Jackson was administered the Competency to Stand Trial Assessment Instrument (CAI) as part of the evaluation of his ability to assume the role of a defendant. The CAI is a semistructured interview designed to measure the defendant's knowledge and understanding in 13 areas related to trial competency. Again, while the defendant initially denied knowledge of the relevant parameters, following reinstitution of the interview process, he displayed adequate information in all domains.
"Specifically, Mr. Jackson understood that he was charged with Capital Murder. He accurately stated that his charge was a felony, and that the penalties which could be attached were `life without or death penalty.' At this part of the interview, the defendant went on to display information related to preliminary hearings as well as the use of youthful offender status. Mr. Jackson spontaneously named defense counsel and indicated some difficulty in their relationship. He complained that `me and my attorney don't see eye to eye... he don't come see me ... (but) then get in front of DA and Judge (and) act like he be on my side.' In the abstract, Mr. Jackson stated that defense counsel was `suppose[d] to represent me.' From *993 a further conversation, it appears that Mr. Jackson's concerns relate to inconsistencies between what he would like his attorney to say to him and his attorney's desire to present facts to him as objectively as possible. The defendant stated that the prosecuting attorney was his adversary. He indicated that the role of the judge was to `keep order in court.' Mr. Jackson defined the jury as consisting of 12 individuals who `decide is you guilty or not guilty.' He stated that witnesses were charged with the task of `tell(ing) the truth.' The defendant's difficulties with language somewhat impaired his ability to describe the use of plea bargaining. However, Mr. Jackson understood that `they ain't offered me nothing. They were suppose[d] to do that at my preliminary hearing.'
"Mr. Jackson appears, especially given his presentation today, highly motivated to avoid continued incarceration. He has some difficulty relating to current defense counsel. However, in the abstract, Mr. Jackson understood the appropriate role between a defendant and [his] attorney. In fact, he indicated from time to time the constraints placed on his interaction with me at times represented suggestions received from defense counsel. He understood that there were penalties which could be attached to offering unmanageable behavior at trial. As the defendant was able to maintain appropriate comportment, in the context of this interview, he should be able to maintain behavioral control at trial as well if he so desires. Again, given his language difficulties, the defendant might require somewhat more coaching from defense counsel in order to testify relevantly in his own behalf, than would other defendants. However, again, as previously mentioned, he responded well to concrete educational efforts over the context of today's interview and should be able to profit from the same with defense counsel.
". . . .
"In summary ... Mr. Jackson appears to display some situational distress, but fails to meet the criteria for a diagnosis of major affective disturbance or formal thought disorder. He appears to function in the borderline range of intelligence and this intellectual/cognitive deficiency appears to be cultural familial in origin and somewhat complicated by his minimal participation in the educational process as a younger individual. Despite the aforementioned deficits, Mr. Jackson appears to understand the roles of various members of the court and seems able to operate within it with the assistance of counsel.... Consequently, I recommend the defendant be allowed to proceed with the disposition of the charges against him."
(C. 907-10.) Dr. Smith also found that, at the time of the murder and at the time of his evaluation, Jackson did not suffer from a mental disease or defect that would affect his ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
Rule 11.1, Ala.R.Crim.P., states: "A defendant is mentally incompetent to stand trial or to be sentenced for an offense if that defendant lacks sufficient present ability to assist in his or her defense by consulting with counsel with a reasonable degree of rational understanding of the facts and the legal proceedings against the defendant." Rule 11.6(a), Ala.R.Crim.P., states, in pertinent part:
"After the examinations have been completed and the reports have been submitted to the circuit court, the judge shall review the reports of the psychologists or psychiatrists and, if reasonable *994 grounds exist to doubt the defendant's mental competency, the judge shall set a hearing not more than forty-two (42) days after the date the judge received the report...."
Clearly, "a trial court has an independent duty to inquire into an accused's state of mind when there are reasonable grounds to doubt the accused's competency to stand trial." Ex parte LaFlore, 445 So. 2d 932, 934 (Ala.1983). However, "[i]t is the burden of a defendant who seeks a pretrial competency hearing to show that a reasonable or bona fide doubt as to his competency exists." Woodall v. State, 730 So. 2d 627, 647, (Ala.Cr.App. 1997), aff'd. in relevant part, 730 So. 2d 652 (Ala.1998)(emphasis added). "`The determination of whether a reasonable doubt of sanity exists is a matter within the sound discretion of the trial court and may be raised on appeal only upon a showing of an abuse of discretion.'" Id. See also Tankersley v. State, 724 So. 2d 557, 564 (Ala.Cr. App.1998).
In his brief to this court, Jackson complains that Dr. Smith's report raised what he terms "troublesome issues"such as Jackson's "borderline range of intelligence" and his apparent "language difficulties"and he argues that these issues created a reasonable and bona fide doubt as to his competency. (Jackson's brief to this court, pp. 77-78.) However, we find that Jackson has not met his burden of showing that a reasonable or bona fide doubt existed as to his competency to stand trial. Jackson's apparent "language difficulties" and "borderline intelligence," alone, are not sufficient to establish a reasonable doubt as to his competency. See, e.g., M.D. v. State, 701 So. 2d 58 (Ala.Cr.App. 1997)(low IQ or borderline intelligence alone does not automatically render one incompetent). Dr. Smith stated in his report that Jackson was competent to stand trialthat he understood the proceedings against him; the possible penalties; the roles of his attorney, the prosecutor, the judge, and the jury; and that he was able to assist his lawyers in his defense. See, e.g., Dobyne v. State, 672 So. 2d 1319 (Ala. Cr.App.1994), aff'd, 672 So. 2d 1354 (Ala. 1995), cert. denied, 517 U.S. 1169, 116 S. Ct. 1571, 134 L. Ed. 2d 670 (1996)(trial court did not err in failing to hold competency hearing where forensic examiner's report indicated that defendant was competent to stand trial). "`In the absence of any evidence, the mere allegations by counsel that the defendant is incompetent to stand trial do not establish reasonable grounds to doubt the defendant's sanity and warrant an inquiry into his competency.'" Tankersley, 724 So.2d at 557, quoting Cliff v. State, 518 So. 2d 786, 791 (Ala. Cr.App.1987).
Accordingly, we find no error, and certainly no plain error, as to this claim.
II.
Jackson contends that the trial court erred in denying his motion for a change of venue based on allegedly prejudicial pretrial publicity. (Issue XXIII in Jackson's brief to this court.) Specifically, he argues that the extent of the publicity coupled with "the veniremembers' familiarity with the case" deprived him of his right to a fair trial. (Jackson's brief to this court, pp. 105-06.)
Before trial, Jackson filed a motion for a change of venue, alleging that the newspapers, and television and radio stations in Bibb County had published and broadcast what he says was "extensive and highly prejudicial" material regarding both the murder and his arrest. (C. 987.) No evidentiary hearing was held on the motion and Jackson provided no evidence to support the conclusory allegations made in his motion. Nevertheless, the trial court deferred *995 ruling on the motion until after voir dire examination, stating that a change of venue would be required only "[i]f we can't get a jury." (R. 14.) It does not appear from the record that Jackson renewed his motion after voir dire or that the trial court ever ruled on the motion. Accordingly, we may review this claim only for plain error. See Rule 45A, Ala.R.App.P.
In Ex parte Grayson, 479 So. 2d 76 (Ala.), cert. denied, 474 U.S. 865, 106 S. Ct. 189, 88 L. Ed. 2d 157 (1985), the Alabama Supreme Court stated the following regarding motions for a change of venue:
"Absent a showing of abuse of discretion, a trial court's ruling on a motion for change of venue will not be overturned. Ex parte Magwood, 426 So. 2d 929, 931 (Ala.), cert. denied, 462 U.S. 1124, 103 S. Ct. 3097, 77 L. Ed. 2d 1355 (1983). In order to grant a motion for change of venue, the defendant must prove that there existed actual prejudice against the defendant or that the community was saturated with prejudicial publicity. Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966); Franklin v. State, 424 So. 2d 1353 (Ala.Cr.App.1982). Newspaper articles or widespread publicity, without more, are insufficient to grant a motion for change of venue. Anderson v. State, 362 So. 2d 1296, 1298 (Ala.Cr.App.1978). As the Supreme Court explained in Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961):
"`To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court....'
"The standard of fairness does not require jurors to be totally ignorant of the facts and issues involved. Murphy v. Florida, 421 U.S. 794, 799-800, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975). Thus, `[t]he proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination.' Anderson v. State, 362 So. 2d 1296, 1299 (Ala.Cr.App.1978)."
479 So.2d at 80.
When requesting a change of venue, "[t]he burden of proof is on the defendant to `show to the reasonable satisfaction of the court that a fair and impartial trial and an unbiased verdict cannot be reasonably expected in the county in which the defendant is to be tried.'" Hardy v. State, [Ms. CR-95-0589, March 26, 1999] ___ So.2d ___, ___ (Ala.Cr.App.1999), quoting Rule 10.1(b), Ala.R.Crim.P. Here, Jackson did nothing more than make "bare allegations that there was prejudicial pretrial publicity and that this publicity biased the jurors." Hyde v. State, 778 So. 2d 199, 232 (Ala.Cr.App.1998). See also Henderson v. State, 612 So. 2d 1256, 1258 (Ala.Cr.App. 1992) ("A bare allegation is not sufficient to prove that the defendant was actually prejudiced or that the community was so saturated with prejudicial publicity as to render the trial setting inherently suspect."); Callahan v. State, 557 So. 2d 1292, 1306 (Ala.Cr.App.), aff'd, 557 So. 2d 1311 (Ala.1989), cert. denied, 498 U.S. 881, 111 S. Ct. 216, 112 L. Ed. 2d 176 (1990)("Having produced no evidence, Callahan failed to demonstrate any prejudice, or even that pretrial publicity actually existed, and the trial court properly denied his motion on that ground.").
At trial, Jackson presented no evidence to support his motion for a change *996 of venue: he presented no newspaper articles or other exhibits detailing the alleged publicity surrounding the case. On appeal, Jackson makes no allegation that any prospective juror should have been, but was not, struck because of exposure to pretrial publicity. He contends only that "many of the veniremembers had ... been exposed to pretrial publicity." (Jackson's brief to this court, p. 105.) "`"The relevant question is not whether the community remembered the case, but whether the jurors at [the accused's] trial had such fixed opinions that they could not judge impartially the guilt of the defendant." Patton v. Yount, 467 U.S. 1025, 1035, 104 S. Ct. 2885, 2891, 81 L. Ed. 2d 847 (1984).'" Siebert v. State, 562 So. 2d 586, 589 (Ala.Cr.App. 1989), aff'd, 562 So. 2d 600 (Ala.), cert. denied, 498 U.S. 963, 111 S. Ct. 398, 112 L. Ed. 2d 408 (1990), quoting Fortenberry v. State, 545 So. 2d 129 (Ala.Cr.App.1988), aff'd, 545 So. 2d 145 (Ala.1989), cert. denied, 495 U.S. 911, 110 S. Ct. 1937, 109 L. Ed. 2d 300 (1990). The members of the jury venire in this case were extensively and thoroughly examinedin both group and individual, sequestered settingsregarding their knowledge about the case. While the majority of prospective jurors acknowledged some awareness of the robbery and murder, each prospective juror who indicated such an awareness also indicated that anything he or she had read or heard would not affect his or her ability to remain impartial. There is simply nothing in the record "to suggest that the jurors selected for the trial jury could not render a verdict based solely on the evidence presented at trial." Ex parte Neal, 731 So. 2d 621, 623 (Ala.), cert. denied, 527 U.S. 1027, 119 S. Ct. 2377, 144 L. Ed. 2d 780 (1999).
Accordingly, we find no error, plain or otherwise, in the trial court's denial of Jackson's motion for a change of venue.
III.
Jackson contends that the trial court erred in denying his motion for a continuance. (Issue XXIV in Jackson's brief to this court.) The record does not contain a written motion for a continuance; however, on the first day of trial, the following occurred:
"[Defense cocounsel]: I'm Shirley Chapin and I'm an attorney in Tuscaloosa. I often work with Mr. Bivens [Jackson's lead defense counsel]. I got notification that he requested I be appointed to sit as second chair in Jeremiah Jackson's case. At that time, I contacted my doctor to find out if I was able to do that and still follow my doctor's orders. I'm having surgery two weeks from today and I've been ordered bed rest for quite sometime now. I contacted Mr. Bivens and contacted this court by fax with a copy of a letter from my doctor stating that I was not able to be here. We met with Mr. Bivens in his office and attempted to contact other attorneys to sit as second chair on Friday and were unsuccessful in finding an attorney [who] would agree to sit second chair. Therefore, because of the ruling by the Court and the length of time we've had it, I feel an obligation to be here today. I do not know if I'll be able to stay throughout the trial. I'll do my best and would ask for some consideration if I have to get up and leave.
"[The Court]: Certainly.
"[Chapin]: And I will do my best to make sure it does not interfere in any way with the trial. But I'm here against doctor's orders and [I'm] on some rather serious medication.
"[The Court]: Let the record be real clear now. Mr. Jackson had retained Mr. Tony Burke and several months ago he fired him. Why, I don't know. At that time I appointed two attorneys for *997 him, Andrew Smith and Jim Standridge out of Tuscaloosa, very competent, experienced attorneys who have handled a lot of capital litigation. Approximately a month ago, I'm not sure of the exact date, Mr. Jackson retained Mr. Bivens, who is also very experienced, well qualified attorney in this matter. Mr. Bivens was aware from the beginning that this case was set for trial today. He asked me would I appoint someone to help him. Since the defendant is indigent, I told him I would.
"I don't think there's a constitutional right to a second-chair attorney, but since Mr. Bivens asked for some help, I told him I would let him have that and that's been done. I don't know when you were notified or requested to come in, but one day last week, less than a week ago was when my office got a call regarding your condition and that you wanted a continuance. My statement was, if that's going to prevent you from being an attorney, then I wasn't going to appoint you because the case is not going to be continued. Everybody has known for about six months this case is set for trial today. But anyway, we'll give you whatever consideration you need.
"[Bivens]: We want to make sure that was known to the court. She's going to make every effort to function with maybe a little bit of awkwardness.
"[The Court]: If you need to get up and leave, that's all right.
"[Bivens]: Or she may need to leave early, we want the record to reflect that.
"[Prosecutor]: I need to ask this question. Is there any concern on behalf of the defendant, you, Mr. Bivens, that Mrs. Chapin is not capable of assisting you in this matter because of her medical problems?
"[Bivens]: No. And, Jeremiah, I've talked with him about it. She'll be okay. We just wanted to be clear with the Court that there's expected to be times when she'll ask to leave or have to get up and leave and we didn't want that to impact upon the trial. We're here today ready to go forward with the case."
(R. 11-14.)
On appeal, Jackson contends that the trial court improperly denied Ms. Chapin's request for a continuance because, he says, Mr. Bivens, who was retained approximately one month before trial, did not have adequate time to prepare a defense and because Ms. Chapin was on "heavy medication" and was present against medical advice. As stated above, the record contains no written request for a continuance. The above-quoted exchange suggests that Ms. Chapin orally requested a continuance approximately one week before trial. However, the grounds for that motion are not in the record. Given the substance of the discussion between the court and defense counsel on the first day of trial, we can only assume that Ms. Chapin's request for a continuance was due to her medical condition; the record contains no reference to Mr. Bivens's alleged lack of time to prepare. Accordingly, we may review Jackson's claim that Mr. Bivens did not have adequate time to prepare for trial only for plain error. See Rule 45A, Ala. R.App.P.
Contrary to Jackson's contention, there is no evidence in the record that his lead counsel, Mr. Bivens, was not prepared for trial. Mr. Bivens was retained approximately one month before trial. He stated on the first day of trial that he was "ready to go forward with the case"; and the record reveals that Mr. Bivens zealously defended his client throughout the trial. Burgess v. State, [Ms. CR-93-2054, November 20, 1998] ___ So.2d ___, ___ *998 (Ala.Cr.App.1998)("Counsel's belief that they would have been better prepared with more time is a belief shared by every trial judge and lawyer who has ever been involved in a trial.").
"The trial court has broad discretion in granting a continuance when the basis for the motion is that counsel has not had sufficient time to prepare or to develop his defense. Godfrey v. State, 383 So. 2d 575, 577 (Ala.Cr.App.), cert. denied, 383 So. 2d 579 (Ala.), cert. denied, 449 U.S. 903, 101 S. Ct. 276, 66 L. Ed. 2d 134 (1980), citing Smith v. State, 282 Ala. 268, 210 So. 2d 826 (1968). `A motion for a continuance due to a lack of time for adequate preparation is a matter entirely and exclusively within the sound discretion of the trial court and its ruling will not be reversed on appeal absent a [plain and palpable] showing of abuse.' Reynolds v. State, 539 So. 2d 428, 429 (Ala.Cr.App.1988), cert. denied, 539 So. 2d 428 (1989). Moreover, `the reversal of a conviction because of the refusal of the trial judge to grant a continuance requires "a positive demonstration of abuse of judicial discretion." Clayton v. State, 45 Ala.App. 127, 129, 226 So. 2d 671, 672 (1969).' Beauregard v. State, 372 So. 2d 37, 43 (Ala.Cr.App.), writ denied, 372 So. 2d 44 (Ala.1979)."
Loggins v. State, 771 So. 2d 1070, 1084 (Ala.Cr.App.1999). (Emphasis added in Loggins.) Jackson has failed to show an abuse of discretion.
Moreover, Jackson's claim that he was entitled to a continuance because of Ms. Chapin's medical condition is equally meritless. First, Jackson has failed to show that he was prejudiced by Ms. Chapin's medical condition. Although Ms. Chapin indicated that she was present at Jackson's trial against medical advice, she and Mr. Bivens indicated that she was fully capable of acting as cocounsel and that the matter had been discussed with Jackson prior to trial. Further, even if Ms. Chapin's performance had been compromised by her medical condition, Jackson's lead counsel, Mr. Bivens, was fully competent and prepared to try the case. There is no evidence that Jackson "could not be adequately represented by the remaining attorney." Jenkins v. State, 384 So. 2d 1135, 1139 (Ala.Cr.App.1979), cert. denied, 384 So. 2d 1141 (Ala.1980). See also Adkins v. State, 600 So. 2d 1054, 1061 (Ala.Cr.App.1990), remanded on other grounds, 600 So. 2d 1067 (Ala.1992), aff'd. on return to remand, 639 So. 2d 515 (Ala. Cr.App.1993), aff'd, 662 So. 2d 925 (Ala.), cert. denied, 513 U.S. 851, 115 S. Ct. 151, 130 L. Ed. 2d 90 (1994)(in determining the propriety of a continuance, the trial court should consider whether the defendant has other competent counsel to represent him).
Accordingly, we find no error, and certainly no plain error, in the trial court's denial of Jackson's request for a continuance.
IV.
Jackson contends that the trial court erred in allowing the jury to separate over his objection, in violation of Rule 19.3, Ala.R.Crim.P., which, at the time of Jackson's trial, required the trial court to obtain the consent of both the defense and the prosecution before allowing the jury to separate. (Issue XIV in Jackson's brief to this court.) This issue has been raised and decided adversely to Jackson on numerous occasions. See, e.g., Ex parte Stewart, 730 So. 2d 1246 (Ala.), cert. denied, 528 U.S. 846, 120 S. Ct. 119, 145 L. Ed. 2d 101 (1999); Ex parte Smith, 727 So. 2d 173 (Ala.), cert. denied, 528 U.S. 833, 120 S. Ct. 91, 145 L. Ed. 2d 77 (1999); Minor v. State, 780 So. 2d 707 (Ala.Cr.App.1999); Loggins v. State, 771 So. 2d 1070 (Ala.Cr.App.1999); Drinkard v. State, 777 So. 2d 225 (Ala.Cr. *999 App.1998), rev'd on other grounds, 777 So. 2d 295 (Ala.2000); Hyde v. State, 778 So. 2d 199 (Ala.Cr.App.1998).
In Ex parte Stewart, the Alabama Supreme Court held that § 12-16-9, Ala. Code 1975, as that statute was amended in 1995, and not Rule 19.3, Ala.R.Crim.P., which became effective in 1991, controlled the issue of jury separation.[3] Section 12-16-9, Ala.Code 1975, vests the trial court with the discretion to allow the jury to separate without the consent of the defense or the prosecution. Accordingly, it was within the trial court's discretion to allow the jury to separate without Jackson's consent.
Nevertheless, Jackson contends that even if the trial court did have the authority to allow the jury to separate without his consent, the trial court abused its discretion in so doing. Specifically, he argues that because the press remained in the courtroom throughout the trial and had allegedly contacted defense counsel requesting to speak to the jurors, and because, he says, there had been extensive pretrial publicity about the case, allowing the jury to separate denied him his right to a fair trial by an impartial jury. However, he offers no evidence that any juror was influenced by the alleged publicity or that any juror was contacted by a representative of the press.
In addition, after the jury was sworn, the trial court instructed the jurors as follows:
"As I told you folks yesterday, I do not plan to sequester you, but I will admonish you throughout the trial to avoid any contact with anyone about the case. Any newspaper, television, any other type of media accounts of the case. If anyone should attempt to contact any of you about this case, you need to report it to me immediately so I can deal with it."
(R. 368-69.) The jury was properly instructed on the danger of "outside influences"; jurors are presumed to follow the trial court's oral instructions. Taylor v. State, 666 So. 2d 36, 70 (Ala.Cr.App.1994), aff'd, 666 So. 2d 73 (Ala.1995), cert. denied, 516 U.S. 1120, 116 S. Ct. 928, 133 L. Ed. 2d 856 (1996).
Because we find no indication in the record that the jury was influenced or tainted by outside factors, we simply cannot say that the trial court abused its discretion in denying Jackson's motion to sequester the jury.
V.
Jackson contends that the trial court erroneously instructed the first panel of the jury venire during voir dire examination. (Issues I and II in Jackson's brief to this court.) Because Jackson did not object to the court's allegedly erroneous instructions, we may review this claim only for plain error.[4] See Rule 45A, Ala. R.App.P.
The record reveals that the 108-member venire was divided into two panels for death qualification. During defense counsel's questioning of the first panel of prospective jurors, the following occurred:
*1000 "[Defense counsel]: It is not a lawyer's responsibility or duty to tell you what the law is. But I am going to try to make sure that you understand a fundamental definition. Are there any of you ladies and gentlemen who do not, do not understand that life in prison without parole means exactly what it says? That there is no parole? A person sentenced to live in prison without parole simply never gets out of prison. Is there anybody that has an understanding about that that is different from what I have just stated? There aren't any circumstances which a person receiving life in prison without parole gets out of prison. Is there anybody that understands that any different than the way I have just stated?
"(No response.)
"[Defense counsel]: Are there any of you ladies and gentlemen on the jury [who] believe that the premise I have just stated to you, that life in prison without parole means a person never gets out of prison or are there any of you who simply believe that is not true? Yes, sir?
"[Prospective juror L.P.]: I don't believe it. I believe there has been mishappenings where a person has walked away from life without parole by accident or whatever.
"[Defense counsel]: [L.P.], you're telling the Court that you simply do not believe that is true? You do not believe that life in prison without parole means life in prison without parole. You never get out of prison?
"[Prospective juror L.P.]: That's correct.
"[Defense counsel]: All right. Is it your thinking that there could be a change in the law or something else that would occur that would allow a person sentenced to life in prison without parole to get out?
"[Prospective juror L.P.]: There's a possibility, a mishappening in the judicial system. Overcrowding or they accidentally let the person walk out or something like that.
"[Defense counsel]: Now, is there anyone else that feels the same way? Yes, sir, [G.S.]?
"[Prospective juror G.S.]: I'm of the same opinion as the gentlemen back here that our system does make mistakes, whether intentional or not, could be made. They could at some time release a prisoner that has been sentenced to life without parole.
"[Defense counsel]: Thank you. Yes, sir?
"[Prospective juror J.A.]: Some have been sentenced to life without parole and walks out. I've heard of them.
"[Defense counsel]: So, [J.A.], does that lead you to the logical conclusion that a sentence of life in prison without parole is not appropriate, an unworkable alternative in a capital murder conviction?
"[Prospective juror J.A.]: No, sir, because I know some that were in the penitentiary since 1980 that are still there.
"[Defense counsel]: To you, does life in prison without parole mean life in prison without parole or does it not?
"[Prospective juror J.A.]: Would you ask that question a different way?
"[Defense counsel]: That's the best I can do. To you, when a person is sentenced to live in prison without parole, does that mean to you that they are in prison forever?
"[Prospective juror J.A.]: No, sir.
"[Defense counsel]: It does not?
"[Prospective juror J.A.]: No, sir.
*1001 "[Defense counsel]: Does it follow then that if you're selected on this jury and you do not believe that life in prison without parole means that a person never gets out of prison, that you would then select the death penalty as opposed to life in prison without parole?
"[Prospective juror J.A.]: Could you ask that question differently? I would go by the evidence presented by the prosecutor and defense. Whereas if it's life without parole I would consider his chances and charges and the evidence and if there's no technicality that can be reached that will get him out of prison, he'd stay there for life without parole, I might go along with life without parole.
"[Defense counsel]: But you would have to have evidence that no technicality could come up in the future? No possibility that this individual would accidentally be released?
"[Prospective juror J.A.]: Absolutely.
"[Defense counsel]: Before you could vote for life without parole?
"[Prospective juror J.A.]: That's true.
"[Defense counsel]: Is that correct?
"[Prospective juror J.A.]: Yes, sir.
"[Defense counsel]: You would need pretty much a guarantee to that effect?
"[Prospective juror J.A.]: Pardon me?
"[Defense counsel]: You would need pretty much a guarantee to that effect?
"[Prospective juror J.A.]: Not necessarily a guarantee. A reasonable explanation or reasonable understanding on my part that there's no technicality going to get him out of the penitentiary and he's going to be in there. They have writ writers in the penitentiaries and they have all kinds of loop holes and technicalities. I'll watch the prosecution and the defendant and if there are any technicalities, that's the way I'll vote.
"[Defense counsel]: Are there any members of the jury who, jury panel, who likewise feel that you would have to have some type of evidence or guarantee that life in prison without parole would mean that the individual would never get out of the prison before you would select that as the alternative to the death penalty? Are there any of you that feel the same way? [E.L.N.]?
"[Prospective juror E.L.N.]: I have a question to that. Is that not already a guarantee?
"[The Court]: Let me say this.
"[Prospective juror E.L.N.]: I'm confused here, because, you know, if I'm going to sit on a jury of capital murder and it's not already guaranteed life without parole is exactly life without parole, then I would definitely vote for the death penalty. But I thought that was already guaranteed at the time that if it's life without parole, it's life without parole."
(R. 165-69.) At this point, the trial court interjected and made the following statement, about which Jackson now complains on appeal, regarding the term "life in prison without parole":
"[The Court]: Let me say that's the law right now. There are no guarantees, there are no certainties in life. Anything could happen. We could be invaded by Russians and they could take over, and they would put us in jail if they wanted to. But the law as it is written right now says that's your penalty. The law as it is written means life without parole. And as [L.P.] said, there was a case that happened in Tuscaloosa County where a young man was not serving a life without parole sentence, but was serving some other sentence, and he was released by mistake and went to New York and New York wouldn't send him back. That may be *1002 what [L.P.] was talking about. But what we're talking about is as the law is written now, life without parole means life without parole and if you're sentenced to thatpeople appeal all the time and have their cases overturned. That's not what we're asking about. No matter what his sentence would be, if there's some problem with the trial or some reason for the case to be reversed, that would come down the pike no matter what kind of sentence anybody received. But as much as I can guarantee anything, life without parole means life without parole."
(R. 169-70.)
Jackson contends that the above-quoted "instruction" from the trial court erroneously told the venire that "the appellate courts, and not the jury or the trial court, would ultimately ensure that the guilt and sentencing verdicts were correct," in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985). (Jackson's brief to this court, p. 1.) In addition, he contends that the "instruction" improperly told the venire that a change in law in the future could result in Jackson's being released from prison. As stated above, Jackson did not object to the court's comments. While the lack of an objection does not prevent our review of this issue, it does weigh heavily against any claim of prejudice Jackson now makes on appeal. See, e.g., Bryant v. State, [Ms. CR-98-0023, November 19, 1999] ___ So.2d ___ (Ala.Cr.App.1999); Dill v. State, 600 So. 2d 343 (Ala.Cr.App.1991), aff'd, 600 So. 2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S. Ct. 1293, 122 L. Ed. 2d 684 (1993); Kuenzel v. State, 577 So. 2d 474 (Ala.Cr.App. 1990), aff'd, 577 So. 2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S. Ct. 242, 116 L. Ed. 2d 197 (1991).
In Caldwell, the United States Supreme Court held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." 472 U.S. at 328-29, 105 S.Ct. at 2639. The Court found that "the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role." 472 U.S. at 333, 105 S.Ct. at 2641-42.
Unlike Caldwell, however, we do not believe that the trial court's comments in this case diminished the jury's role or detracted from the jury's responsibility in the proceedings. In Caldwell, the prosecutor, during the sentencing-phase arguments, told the jury that its "decision [was] not the final decision," because "it is automatically reviewable by the Supreme Court." 472 U.S. at 325, 105 S.Ct. at 2637-38. The trial court then exacerbated the error by telling the jury that its decision was "reviewable automatically as the death penalty commands." 472 U.S. at 325, 105 S.Ct. at 2638.
Here, however, the trial court did not tell the prospective jurors that another body would review their factual determination as to Jackson's guilt or sentence; nor did the court tell the jury that its decisions were not the final decisions. Rather, in response to confusion during voir dire regarding the meaning of "life without parole," the trial court merely attempted to explain that term. That explanation was in direct response to one juror's statement (which was in response to Jackson's counsel's question) that he would need some "guarantee" or "evidence" that no "technicalities," "loopholes," or "mistakes" would allow Jackson to be released from prison if he was sentenced to life without parole. The trial court then explained that there *1003 could be no "guarantees" or "certainties" in life. In the same breath, the trial court noted that the Russians could invade or Jackson's case could get overturned on appeal "if there was some problem with the trial," but that such possibilities existed regardless of the sentence imposed. Clearly, the trial court was merely impressing upon the venire that such possibilities were unlikely and should not be considered in determining Jackson's sentence; it was not telling jurors, directly or indirectly, that their decision regarding Jackson's guilt and sentence was not the final decision. Contrary to Jackson's contention, the jurors could not have reasonably interpreted the comments to mean that the responsibility for determining Jackson's guilt and sentence lay elsewhere or that their decision would be reviewed. Thus, the trial court's comments did not violate Caldwell.
Nor do we believe that the comments improperly told the venire that if Jackson was sentenced to life imprisonment without parole a change in law could allow Jackson to be released at some time in the future. Clearly, nowhere in the comments did the trial court mention a change in the law. In fact, the only reference to a change in the law regarding life without parole was made by Jackson's counsel, not the trial court. As stated above, the trial court was merely addressing the concerns expressed by some of the prospective jurors about "technicalities," "loopholes," and "mistakes"; the court in no way stated, suggested, or implied that a "change in the law might negate their verdicts." (Jackson's brief to this court, p. 13.) The trial court specifically stated that "as much as I can guarantee anything, life without parole means life without parole." Further, at the penalty phase, the trial court instructed the jury as follows:
"Before you vote, you should carefully weigh, sift and consider the evidence with all of you realizing that a human life is at stake; you should bring to bear your best judgment which is the sole issue before you; that is, whether or not the defendant should be sentenced to life imprisonment without parole or death.
"Life imprisonment without parole means never. The law of this state is that if you sentence the defendant to life imprisonment without parole, he will never be paroled."
(R. 796.)
While we recognize that "[i]nforming the jury that the legislature may change the definition of life imprisonment without parole in the future is improper," Pressley v. State, 770 So. 2d 115, 125 (Ala.Cr.App. 1999), aff'd, 770 So. 2d 143 (Ala.2000), and that "comments upon the probability or possibility of what might happen under a particular sentence, falling outside the evidence and the law of the case," are improper, Ex parte Rutledge, 482 So. 2d 1262, 1264 (Ala.1984), we do not believe that such improper comments were made here.
Accordingly, we find no error, plain or otherwise, in the trial court's explanation of the term "life without parole."
VI.
Jackson contends that he was denied his right to be present at all stages of the proceedings because he was absent during a portion of the striking of the jury. (Issue VI in Jackson's brief to this court.) Specifically, he maintains that his absence during the first six peremptory strikes, exercised by both the defense and the prosecution, deprived him "of his right to exercise peremptory challenges." (Jackson's brief to this court, p. 42.) Because Jackson did not object to his absence at *1004 trial, we may review this claim only for plain error. See Rule 45A, Ala.R.App.P.
Rule 9.1(a), Ala.R.Crim.P., provides that a "defendant has the right to be present at the arraignment and at every stage of the trial, including the selection of the jury, the giving of additional instructions pursuant to Rule 21, the return of the verdict, and sentencing." At the time of Jackson's trial, a capital defendant could not waive his right to be present. See Rule 9.1(b)(2)(i), Ala.R.Crim.P.[5] However, Alabama courts held "that if a capital defendant is absent from noncritical stages of trial and if his presence would not have benefitted his defense, no error occurs." Burgess v. State, 723 So. 2d 742, 760 (Ala. Cr.App.1997), aff'd, 723 So. 2d 770 (Ala. 1998), cert. denied, 526 U.S. 1052, 119 S. Ct. 1360, 143 L. Ed. 2d 521 (1999), citing Harris v. State, 632 So. 2d 503, 510-12 (Ala.Cr.App.1992), aff'd, 632 So. 2d 543 (Ala.1993), aff'd, 513 U.S. 504, 115 S. Ct. 1031, 130 L. Ed. 2d 1004 (1995).
"`Because the basis of the right to be present at trial is the constitutional mandate [that one be provided] an opportunity to defend oneself, due process requires that the defendant be personally present "to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only."'" Burgess v. State, [Ms. CR-93-2054, November 20, 1998] ___ So.2d ___, ___ (Ala.Cr.App. 1998), quoting Finney v. Zant, 709 F.2d 643, 646 (11th Cir.1983), quoting, in turn, Snyder v. Massachusetts, 291 U.S. 97, 107-8, 54 S. Ct. 330, 78 L. Ed. 674 (1934). In Harris, supra, this court stated:
"`A defendant's right to be present at all stages of a criminal trial derives from the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment. Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 1058, 25 L. Ed. 2d 353 (1970); Hopt v. Utah, 110 U.S. 574, 579, 4 S. Ct. 202, 204, 28 L. Ed. 262 (1884). This right extends to all hearings that are an essential part of the triali.e., to all proceedings at which the defendant's presence "has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 332, 78 L. Ed. 674 (1934). Compare Hopt v. Utah, supra (defendant has right to be present at empaneling of jurors); Bartone v. United States, 375 U.S. 52, 84 S. Ct. 21, 11 L. Ed. 2d 11 (1963)(court cannot impose sentence in absence of defendant); with United States v. Howell, 514 F.2d 710(5th Cir. 1975); cert. denied, 429 U.S. 838, 97 S. Ct. 109, 50 L. Ed. 2d 105 (1976)(no right to be present at in camera conference concerning attempted bribe of juror); United States v. Gradsky, 434 F.2d 880 (5th Cir.1970), cert. denied, 409 U.S. 894, 93 S. Ct. 203, 34 L. Ed. 2d 151 (1972)(right to presence does not extend to evidentiary hearing on suppression motion.)'"
632 So.2d at 511, quoting Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982), cert. denied, 464 U.S. 1002, 104 S. Ct. 508, 78 L. Ed. 2d 697 (1983).
Here, the record reflects that Jackson was absent from the courtroom during the State's first six peremptory strikes and during the defense's first six peremptory strikes. However, Jackson was present during voir dire examination, where he had the opportunity to learn about the members of the jury panel and to assess the potential composition of the jury; he was present during all the challenges for cause; he was present during *1005 the State's nine remaining peremptory strikes and during the defense's nine remaining peremptory strikes; and he was present when the trial court formally announced the members of the jury at the conclusion of the striking process. Although we recognize that jury selection is a critical stage of the trial, we fail to see how Jackson was prejudiced by his absence from the first six peremptory strikes, or how the outcome of the trial might have changed if he had been present during those strikes.
Jackson contends that his presence was necessary because, he says, the State violated Batson by striking the only four black veniremembers. (See Part VII of this opinion.) However, Jackson has failed to show how his presence would have altered the State's strikes, and the record reflects that Jackson was present when his counsel made a Batson motion challenging those strikes.
Jackson also claims that his presence was required so that he could give "input" to his counsel regarding the possible relationships between him and the potential jurors. (A review of voir dire indicates that several veniremembers were friends of Jackson's or of his family.) However, the record does not indicate, and Jackson does not contend, that he was denied an opportunity to consult with his counsel during or after voir dire examination regarding his challenges for cause and peremptory strikes; the record simply indicates that Jackson left the room just prior to the striking of the jury and returned after the first six strikes had been exercised. The record does not indicate the reason for Jackson's departure, and there is no indication that Jackson's absence was anything other than voluntary. Further, Jackson does not contend that his counsel failed to strike any prospective jurors Jackson believes should have been stricken, or that his counsel struck jurors he wanted to remain on the jury. There is simply no indication, or even an allegation, that the striking process would have been different had Jackson been present.
Moreover, neither Jackson nor his counsel objected to Jackson's absence from the first six peremptory strikes; clearly they did not feel that any prejudice resulted from Jackson's absence.
Absent any showing of prejudice, we simply cannot find that Jackson's absence during the first six peremptory strikes was error, plain or otherwise.
VII.
Jackson contends that the State used its peremptory strikes in a racially discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). (Issue VIII in Jackson's brief to this court.)
The record reflects that after the jury was struck, but before it was sworn, Jackson made a Batson motion, alleging that the State had improperly used its first four peremptory strikes to remove the only four black veniremembers on the jury venire (prospective jurors D.C., T.J., A.S., and J.S.). The trial court found that Jackson had made a prima facie case of racial discrimination and requested that the State give its reasons for the strikes. The State then offered several reasons for striking each of the four black veniremembers; the trial court found the State's reasons to be race neutral and denied Jackson's Batson motion.
"The party alleging racially discriminatory use of peremptory challenges bears the burden of establishing a prima facie case of discrimination. Ex parte Branch, 526 So. 2d 609, 622 (Ala.1987). Once a prima facie case has been established, a presumption is created that the *1006 peremptory challenges were used to discriminate against black jurors. Id. at 623. Where the prosecutor is required to explain his peremptory strikes, he or she must offer `"a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tried, and which is nondiscriminatory. However, this showing need not rise to the level of a challenge for cause."` McLeod v. State, 581 So. 2d 1144, 1155 (Ala.Cr.App.1990), quoting Ex parte Branch, 526 So.2d at 623. (Emphasis in Branch; citation omitted.) Once the responding party has articulated a raceneutral reason or explanation for eliminating the challenged jurors, the moving party can offer evidence showing that the reason or explanation is merely a sham or pretext. Ex parte Branch, 526 So.2d at 624. When the trial court has followed this procedure, its determination will be overturned only if that determination is "clearly erroneous." Id. at 625."
Burgess v. State, [Ms. CR-94-0475, December 18, 1998] ___ So.2d ___, ___ (Ala.Cr.App.1998), aff'd. in pertinent part, rev'd on other grounds, [Ms. 1980810, July 21, 2000] ___ So.2d ___ (Ala.2000).
The record reflects that in response to the trial court's request, the prosecutor stated the following regarding his strikes of D.C., T.J., A.S., and J.S.:
"Judge, the allegation of the prima facie case that it's done for some racially discriminatory reason we deny that fact and state that our strikes were based generally on their knowledge, connection, or our position, knowledge, or connection with the defendant or previous records or opposition with reference to capital punishment or a combination thereof.
"We would also like to, well, basically, the first strike we had was [D.C.], a black male who said he knows the defendant. A good friend of his. He told us in voir dire he couldn't serve on the case because of his friendship. Indicated at one point that he was opposed to capital punishment, then said he could do it. He does have a record of arrests including burglary and a recent assault in which he did not reply on his form that he turned in. He admitted on voir dire that he simply did not state that properly. We struck him for those reasons.
"The next strike was 111, [T.J.], a black female. I understand she had a record and had opposition to capital punishment. If my memory serves me correctly, it was some knowledge or connection with the defendant.
"The next one was 201, [A.S.]. a black male, who said he was a friend of the defendant. He talked with him in jail. He came to Court and indicated in voir dire that he couldn't serve on this case and had a relationship that would prevent him from rendering a fair verdict. He said he was generally opposed to the death penalty and indicated that he could consider the evidence and could put this aside and we struck him on those grounds. It appeared to us that he had a change of position.
"Then number 211 was our next strike, [J.S.], a black female. General opposition to capital punishment. Indicated clearly that she has a kinsman who is now locked up and she keeps the kids for her and I understand that kinsman is doing time for murder and she keeps her kids for her. She did not mention this on her form. She was asked about family people and so forth that are in trouble with the law. We struck her on those grounds. I understood she had some knowledge or association with the defendant."
(R. 361-62.)
"The fact that a prospective juror knows the defendant or his family is *1007 a valid race-neutral reason for striking that juror.'" Russell v. State, 739 So. 2d 58, 65 (Ala.Cr.App.1999), quoting Temmis v. State, 665 So. 2d 953, 953 (Ala.Cr.App. 1994). "We have held that strikes based on previous criminal charges, prosecutions, or convictions of the veniremember or a family member of the veniremember are not racially discriminatory as such." Thomas v. State, 611 So. 2d 416, 418 (Ala. Cr.App.), cert. denied, 611 So. 2d 420 (Ala. 1992). See also Douglas v. State, 740 So. 2d 485, 487 (Ala.Cr.App.1999). Moreover, it is well settled that "[a] veniremember's expression of reservations concerning the death penalty may be a valid race-neutral reason for striking a prospective juror." Burton v. State, 651 So. 2d 641, 649 (Ala.Cr.App.1993), aff'd, 651 So. 2d 659 (Ala.1994), cert. denied, 514 U.S. 1115, 115 S. Ct. 1973, 131 L. Ed. 2d 862 (1995). See also Carroll v. State, 599 So. 2d 1253 (Ala.Cr.App.1992), aff'd, 627 So. 2d 874 (Ala.1993), cert. denied, 510 U.S. 1171, 114 S. Ct. 1207, 127 L. Ed. 2d 554 (1994); McGahee v. State, 554 So. 2d 454 (Ala.Cr.App.), aff'd, 554 So. 2d 473 (Ala.1989), cert. denied, 513 U.S. 1189, 115 S. Ct. 1251, 131 L. Ed. 2d 132 (1995).
Here, the State articulated raceneutral reasons for each peremptory strike it exercised against a black prospective juror. Prospective jurors D.C., T.J., and A.S. all indicated during voir dire that they knew Jackson and/or his family. Prospective juror D.C. had been accused of burglary and assault, but failed to respond to this question during general voir dire or on his jury questionnaire; only after he was confronted with the information by the prosecutor during individual sequestered voir dire did D.C. admit to lying on his questionnaire and during general voir dire. Prospective juror J.S. indicated during voir dire that she would prefer not to serve on the jury because she was taking care of her sister's children while her sister was in prison, but she, too, failed to respond on her jury questionnaire about friends and family with convictions or charges. In addition, prospective jurors T.J. and J.S. both indicated a strong opposition to capital punishment. These were sufficiently race-neutral reasons for striking the four black veniremembers.
Jackson contends, however, that "the State's explanation that some of the struck veniremembers had been involved with the law or had family members who had committed crimes is suspect," because, he says, juror L.E., a white female who ultimately sat on Jackson's jury, stated during voir dire that she had a brother who had been charged with a crime and who was currently in a "boys' home" where he was being treated for mental problems and drug abuse. (Jackson's brief to this court, pp. 52-53.) The State's disparate treatment of black and white jurors with the same characteristics, Jackson maintains, raises the inference of discrimination. We disagree.
Although L.E. did indicate that her brother had been in trouble, L.E. did not lie on her questionnaire or during general voir dire about this fact; D.C. and J.S. did. Moreover, L.E. did not indicate that she was opposed to capital punishment as did both T.J. and J.S., nor did L.E. indicate that she knew Jackson as did D.C., T.J., and A.S. Contrary to Jackson's contention, L.E. did not have the same characteristics as the black veniremembers who were struck.[6]
*1008 After the State articulated race-neutral reasons for its strikes, the burden then shifted to Jackson to offer evidence showing that those reasons were merely shams or pretextual. Although Jackson alleged, both at trial and on appeal, that the State's reasons were merely pretextual, he has failed to show this. Thus, the trial court's denial of Jackson's Batson motion was not "clearly erroneous."
VIII.
Jackson contends that the trial court erred in admitting into evidence the statement he made to police because, he says, the statement was involuntary. (Issue XVI in Jackson's brief to this court.) Specifically, he contends that his impaired mental ability and low intellectual functioning prevented him from understanding his Miranda rights and prevented him from making a knowing and voluntary waiver of those rights.
Prior to trial, Jackson filed a motion to suppress his statement to police, alleging that his statement was the result of an illegal arrest; that his statement was coerced; and that he was not properly advised of his Miranda rights. However, he did not contend, as he now contends on appeal, that he was unable to understand his rights because of his alleged mental impairment and low intellectual functioning. The record reflects that the trial court held a hearing on Jackson's motion to suppress on January 16, 1997; however, Jackson failed to include a transcript of that hearing in the record on appeal. "`It is the appellant's duty to provide this court with a complete record on appeal.'" McCray v. State, 629 So. 2d 729, 733 (Ala. Cr.App.1993). Because the sparse record on this issue reflects that the ground Jackson now raises on appeal regarding his statementthat he was unable to understand or voluntarily waive his Miranda rights due to his mental impairment and low intellectual functioningwas never raised in the trial court, we may review his claim only for plain error. See Rule 45A, Ala.R.App.P.
"Confessions and inculpatory statements are presumed to be involuntary and inadmissible. Ex parte Callahan, 471 So. 2d 463 (Ala.1985). For a confession to be properly admitted, the State must prove that `"the defendant was informed of his Miranda rights and that the confession was voluntarily given."` Johnson v. State, 680 So. 2d 1005, 1007 (Ala.Cr.App.1996)(quoting Mann v. State, 581 So. 2d 22, 23 (Ala.Cr.App. 1991)).
"`"In determining whether a confession is voluntary, the trial court's finding of voluntariness need only be supported by a preponderance of the evidence. Seawright v. State, 479 So. 2d 1362 (Ala.Cr.App.1985). The trial court's decision will not be disturbed on appeal unless it is manifestly contrary to the great weight of the evidence."'
"Howard v. State, 678 So. 2d 302, 306 (Ala.Cr.App.1996) (quoting Dixon v. State, 588 So. 2d 903, 907 (Ala.1991))."
"`"`In reviewing the correctness of the trial court's ruling on a motion to suppress, this Court makes all the reasonable inferences and credibility *1009 choices supportive of the decision of the trial court.'" Kennedy v. State, 640 So. 2d 22, 26 (Ala.Cr.App.1993), quoting Bradley v. State, 494 So. 2d 750, 761 (Ala.Cr.App.1985), aff'd, 494 So. 2d 772 (Ala.1986), cert. denied, 480 U.S. 923, 107 S. Ct. 1385, 94 L. Ed. 2d 699 (1987). A trial court's ruling on a motion to suppress will not be disturbed unless it is "palpably contrary to the great weight of the evidence." Parker v. State, 587 So. 2d 1072, 1088 (Ala.Cr.App.1991).'"
"Rutledge v. State, 680 So. 2d 997, 1002 (Ala.Cr.App.1996)."
Maples v. State, 758 So. 2d 1, 41 (Ala.Cr. App.1999), aff'd, 758 So. 2d 81 (Ala.1999). When determining whether a confession is voluntary, a court must consider the totality of the circumstances surrounding the confession. Maples, 758 So.2d at 41.
At trial, Cpl. Kenneth Michael Manlief, a criminal investigator with the Alabama Bureau of Investigation, testified that he took a statement from Jackson on April 26, 1996. Cpl. Manlief testified that before Jackson gave the statement, he read Jackson his Miranda rights, and Jackson indicated that he understood those rights and signed a waiver-of-rights form. Cpl. Manlief stated that he did not coerce Jackson into making a statement, that he did not threaten Jackson, and that he made no promises to Jackson nor did he give Jackson any hope of reward in return for making a statement. Further, Cpl. Manlief stated that when he made his statement Jackson did not appear to be intoxicated or on drugs, nor did he appear to be suffering from any illness or injuries. Doug Vinson, Chief of the Brent Police Department, who was also present when Jackson gave his statement, corroborated Cpl. Manlief's testimony.
On appeal, Jackson contends that his statement should have been suppressed because, he says, he did not understand the Miranda rights that Cpl. Manlief read to him, and he therefore did not knowingly and voluntarily waive those rights. In support of this contention, Jackson relies on expert testimony he presented during the sentencing phase of his trialtestimony that was never presented to the trial court when it considered Jackson's motion to suppress prior to trial and that was never presented during the guilt phase of Jackson's trial. At sentencing, Jackson presented the testimony and a written report of Dr. John Goff, a clinical neuropsychologist who examined Jackson two days before trial. Dr. Goff's report indicated that Jackson's IQ was 72, in the borderline range of intelligence; that Jackson has problems with language and communication; and that Jackson "appear[ed]" not to understand the right to remain silent." (C. 1160-66.) However, Dr. Goff's report also indicated that Jackson was competent to stand trial and that he was not suffering from any "functional psychological disturbance." (C. 1164.)
In Dobyne v. State, 672 So. 2d 1319 (Ala. Cr.App.1994), aff'd, 672 So. 2d 1354 (Ala. 1995), cert. denied, 517 U.S. 1169, 116 S. Ct. 1571, 134 L. Ed. 2d 670 (1996), we stated the following regarding the impact of a low IQ on the voluntariness of a confession:
"Having a low IQ will not render a waiver ineffective unless the individual's IQ is so low that the person attempting to waive his rights absolutely cannot understand his Miranda rights. Arnold v. State, 448 So. 2d 489 (Ala.Cr.App. 1984).
"`We have often held that "the fact that a defendant may suffer from a mental impairment or low intelligence will not, without other evidence, render a confession involuntary." See Colorado v. Connelly, 479 U.S. 157, *1010 107 S. Ct. 515, 520, 93 L. Ed. 2d 473 (1986); Baker v. State, 599 So. 2d 60, 63 (Ala.Cr.App.1991), State v. Austin, supra, Holladay v. State, 549 So. 2d 122 (Ala.Cr.App.1988), aff'd, 549 So. 2d 135 (Ala.1989), cert. denied, 493 U.S. 1012, 110 S. Ct. 575, 107 L. Ed. 2d 569 (1989).'
"Youngblood v. State, 656 So. 2d 385, 387 (Ala.Cr.App.1993).
"`[A] defendant's mental impairment, even if it exists, is merely one factor affecting the validity of his waiver of rights and the voluntariness of his confession. See generally Annot., 8 A.L.R. 4th 16 (1981). "While an accused's intelligence and literacy are important factors to be considered in determining whether he intelligently and voluntarily waived his constitutional rights and made a confession, weak intellect or illiteracy alone will not render a confession inadmissible." Hobbs v. State, 401 So. 2d 276, 282 (Ala.Cr.App.1981).'
"Whittle v. State, 518 So. 2d 793, 796-97 (Ala.Cr.App.1987)."
672 So.2d at 1337.
Although it is undisputed that Jackson's mental abilities were below average, and Dr. Goff's report indicated that Jackson "appear[ed]" not to understand the meaning of the right to remain silent, it is well settled that "`an expert opinion is not conclusive on the trier of fact even if the testimony was uncontroverted. Furthermore, the weight and credibility to be attributed to an expert witness is for the trier of fact.'" State v. Austin, 596 So. 2d 598, 601 (Ala.Cr.App.1991), quoting Clark Lumber Co. v. Thornton, 360 So. 2d 1019, 1021 (Ala.Civ.App.1978). Thus, even if Dr. Goff's report had been presented to the trial court when it ruled on Jackson's motion to suppresswhich it was notthe weight and credibility of the report would have been entirely within the trial court's discretion.
Given the totality of the circumstances, we cannot say that the trial court's denial of Jackson's motion to suppress was palpably contrary to the great weight of the evidence. Accordingly, we find no error, plain or otherwise, as to this claim.
IX.
Jackson contends that the trial court erred in allowing what he terms "irrelevant, highly emotional, and inflammatory" victim-impact evidence to be admitted during the guilt phase of his trial. (Issue XV in Jackson's brief to this court, pp. 83-84.) In addition, he contends that the State's opening and closing arguments at the guilt phasein which, Jackson says, the prosecutor "continually focused the jury's attention... on the character of the victim and the anguish suffered by her family because of her death"improperly "tipped the scales in favor of a capital murder verdict" by "guarantee[ing]" that the jurors would render a verdict based on "sympathy instead of their rational judgment." (Jackson's brief to this court, pp. 81-83.) Jackson did not object to any of the testimony or argument that he now complains of on appeal; thus, we will review his claims only for plain error. See Rule 45A, Ala. R.App.P.
A.
First, Jackson complains about the following evidence elicited through the testimony of the victim's husband, Jerry Carroll: (1) that Mr. Carroll and Vicki Carroll had two sons; (2) the names and ages of the two children; (3) that Vicki Carroll was a "loving" and "sweet" person whom everyone liked; and (4) that Vicki Carroll "was always helping people" in the community by extending store credit to those *1011 who did not have money to pay for groceries.
It is well settled that victimimpact statements "are admissible during the guilt phase of a criminal trial only if the statements are relevant to a material issue of the guilt phase. Testimony that has no probative value on any material question of fact or inquiry is inadmissible." Ex parte Crymes, 630 So. 2d 125, 126 (Ala. 1993), citing Charles W. Gamble, McElroy's Alabama Evidence, § 21.01 (4th ed.1991). However, "when, after considering the record as a whole, the reviewing court is convinced that the jury's verdict was based on the overwhelming evidence of guilt and was not based on any prejudice that might have been engendered by the improper victim-impact testimony, the admission of such testimony is harmless error." Crymes, 630 So.2d at 126. Rule 45, Ala.R.App.P., states:
"No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."
In Ex parte Land, 678 So. 2d 224 (Ala.), cert. denied, 519 U.S. 933, 117 S. Ct. 308, 136 L. Ed. 2d 224 (1996), the Alabama Supreme Court stated:
"Recently, this Court examined the issue of victim impact evidence in Ex parte Rieber, 663 So. 2d 999 (Ala.1995). In Rieber, we acknowledged that testimony regarding a murder victim's children was not relevant to the issue of the accused's guilt or innocence and was, thus, inadmissible during the guilt phase of the trial; we noted, however, that `a judgment of conviction can be upheld if the record conclusively shows that the admission of the victim impact evidence during the guilt phase of the trial did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant.' 663 So.2d at 1005. After thoroughly reviewing the record of this present case, we conclude that the limited testimony regarding Ms. Brown's infant son and the impact of Ms. Brown's death on her family, and the prosecutor's limited references to such evidence, did not operate to deny Land a fair trial or to prejudice his substantial rights. Thus, we find no reversible error as to this issue."
678 So.2d at 236.
Here, as in Land, Mr. Carroll's testimony regarding his wife and their children was irrelevant to any issue in the case and was, thus, inadmissible. However, after reviewing the record as a whole, we find no evidence that the now-challenged testimony affected the outcome of the trial or that it otherwise prejudiced a substantial right of Jackson. See Ex parte Rieber, 663 So. 2d 999 (Ala.), cert. denied, 516 U.S. 995, 116 S. Ct. 531, 133 L. Ed. 2d 437 (1995); Smith v. State, 756 So. 2d 892 (Ala.Cr.App.1997), aff'd, 756 So. 2d 957 (Ala.2000). Accordingly, we find no reversible error regarding this claim.
B.
Jackson also contends that the prosecutor improperly made victim-impact arguments during his opening and closing statements at the guilt phase by referring to the victim and her children and by suggesting what the victim would say if she could testify. Specifically, Jackson *1012 complains about the following comment by the prosecutor during opening statements:
"The case you're going to hear and the facts you're going to be presented with are about death. The kind of death that comes to a young mother of two who's running a neighborhood grocery, who's a happy, caring person, who helps people in their community when they need a little credit or their power bill is due, who's a good wife, working with her husband to make a place for her children."
(R. 370.) Jackson also complains about the following comment during the prosecutor's closing arguments:
"I don't want to sound crass, but if I understand the statement that this man gave [Cpl.] Manlief, they got about $200. I guess the price of the mothers, wives, friends, and store clerks [is] about $40 a pound [sic]. That's what he killed her for. That's the kind of cowardly, evil, malicious thing that these people did on that day and that's how senseless and unnecessary her death is.
"[Jerry Carroll] ... is going to have to live with this and his family the rest of his life. He hasn't seen the two boys deliberately since he put them through this. But this is their mother's day in court, it's the only day she'll get. It's as much her trial as it is Jeremiah Jackson's. She's not going to testify, she's in the grave. That is, most of her is. She can't testify from that stand.
"What were some of the things she said that day? She said, `Take it. Take it all. Are you being robbed? Yes. I'll call 911. Take it.' If she was here to testify, she would be saying, `why did he kill me? I gave him the money. I wasn't resisting, I didn't try to draw a gun, I didn't try to run out, why did he kill me? I want to be with my family, I want to raise my boys, I want to be with my community, I want to watch spring come this year. Why did he do that?' The answer is nothing except she just didn't give up her money quick enough. Store clerks are worth about $40 per pound in West Blocton."
(R. 632-33.)
The standard for reviewing a prosecutor's argument is whether the argument "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144 (1986). "`This court has concluded that the failure to object to improper prosecutorial arguments, [as is the case here,] ... should be weighed as part of our evaluation of the claim on the merits because of its suggestion that the defense did not consider the comments in question to be particularly harmful.'" Kuenzel v. State, 577 So. 2d 474, 489 (Ala. Cr.App.1990), aff'd, 577 So. 2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S. Ct. 242, 116 L. Ed. 2d 197 (1991), quoting Johnson v. Wainwright, 778 F.2d 623, 629 n. 6 (11th Cir.1985), cert. denied, 484 U.S. 872, 108 S. Ct. 201, 98 L. Ed. 2d 152 (1987). Furthermore:
"`In reviewing allegedly improper prosecutorial comments, conduct, and questioning of witnesses, the task of this Court is to consider their impact in the context of the particular trial, and not to view the allegedly improper acts in the abstract. Whitlow v. State, 509 So. 2d 252, 256 (Ala.Cr.App.1987); Wysinger v. State, 448 So. 2d 435, 438 (Ala.Cr.App. 1983); Carpenter v. State, 404 So. 2d 89, 97 (Ala.Cr.App.1980), cert. denied, 404 So. 2d 100 (Ala.1981). Moreover, this court has also held that statements of counsel in argument to the jury must be viewed as delivered in the heat of debate; such statements are usually valued by the jury at their true worth and *1013 are not expected to become factors in the formation of the verdict. Orr v. State, 462 So. 2d 1013, 1016 (Ala.Cr.App. 1984); Sanders v. State, 426 So. 2d 497, 509 (Ala.Cr.App.1982)."
Hutcherson v. State, 727 So. 2d 846, 854-55 (Ala.Cr.App.1997), aff'd, 727 So. 2d 861 (Ala.1998), cert. denied, 527 U.S. 1024, 119 S. Ct. 2371, 144 L. Ed. 2d 775 (1999), quoting Bankhead v. State, 585 So. 2d 97, 106 (Ala. Cr.App.1989), aff'd. in pertinent part, remanded on other grounds, 585 So. 2d 112, 127 (Ala.1991), aff'd. on return to remand, 625 So. 2d 1141 (Ala.Cr.App.1992), rev'd on other grounds, 625 So. 2d 1146 (Ala.1993).
We do not find that the prosecutor's comments, either alone or in conjunction with his other comments, were reversible error. The evidence of Jackson's guiltincluding his own confession to the crimewas compelling. The jury was properly instructed that it should base its verdict solely on the evidence in the case; that the statements and arguments of the attorneys were not to be considered as evidence; and that its verdict could not be based on sympathy, prejudice or emotion. "`The jury is presumed to follow the instructions given by the trial court.'" Frazier v. State, 758 So. 2d 577, 604 (Ala.Cr. App.1999), aff'd, 758 So. 2d 611 (Ala.1999), quoting Hutcherson, supra, at 854. Viewed in the context of the entire trial, we do not believe that the prosecutor's comments during opening or closing arguments about the victim affected the outcome of Jackson's trial or otherwise prejudiced Jackson. Accordingly, we find no reversible error regarding this claim.
X.
Jackson contends that the trial court erroneously "allowed into evidence damaging hearsay testimony that prejudiced his defense." (Issue XX in Jackson's brief to this court, p. 94.) Specifically, Jackson complains about the following testimony by Angela Smith: (1) that on the day of the robbery/murder, she heard Jackson's codefendant John Martin state that a woman had been murdered; and (2) that during a conversation between Jackson, Martin, Reed, and Dobyne, she overheard someoneshe did not identify whostate that the gun used in the robbery/murder had been thrown in the river. Jackson did not object to this testimony at trial; therefore, we review this claim under the plain-error rule. See Rule 45A, Ala.R.App.P.
Even assuming that the testimony of Angela Smith was inadmissible hearsay, as urged by Jackson, we find that its admission was, at most, harmless error. See Rule 45, Ala.R.App.P. In James v. State, 723 So. 2d 776 (Ala.Cr.App.), aff'd, 723 So. 2d 786 (Ala.1998), we stated:
"There are numerous factors which can be considered in assessing harmless error, including `the importance of the [declarant's] testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the [declarant] on material points, ... and the overall strength of the prosecution's case.' Delaware v. Van Arsdall, 475 U.S. [673,] 684, 106 S. Ct. 1431[, 89 L. Ed. 2d 674 (1986)]."
723 So.2d at 782. It is well settled that "testimony that may be inadmissible may be rendered harmless by prior or subsequent lawful testimony to the same effect or from which the same facts can be inferred." White v. State, 650 So. 2d 538, 541 (Ala.Cr.App.1994), overruled on other grounds, Ex parte Rivers, 669 So. 2d 239 (Ala.Cr.App.1995). See also Dawson v. State, 675 So. 2d 897, 900 (Ala.Cr.App. 1995), aff'd, 675 So. 2d 905 (Ala.1996)("The erroneous admission of evidence that is merely cumulative is harmless error."); Thompson v. State, 527 So. 2d 777, 780 *1014 (Ala.Cr.App.1988)("Testimony which may be apparently illegal upon admission may be rendered prejudicially innocuous by subsequent or prior lawful testimony to the same effect or from which the same facts can be inferred.").
Here, Smith's testimony was merely cumulative of other evidence presented at trial,[7] primarily Jackson's own statement to police, and was, therefore, harmless. In his statement to police, Jackson admitted shooting and killing Vicki Carroll during the April 15, 1996, robbery of the Hillview Grocery Store, and Jackson told police that his codefendant Alfred Reed disposed of the gun used in the robbery/murder after they fled the scene. Smith's testimony that she heard Martin state that a woman had been murdered and that she heard someone say that the gun had been thrown into the river was, therefore, merely cumulative of Jackson's statement to police. Accordingly, any error in the admission of Smith's testimony was harmless. See, e.g., Flynn v. State, 745 So. 2d 295 (Ala.Cr.App.), cert. denied, 745 So. 2d 309 (Ala.1999); Roberts v. State, 735 So. 2d 1244 (Ala.Cr.App.1997); Travis v. State, 776 So. 2d 819 (Ala.Cr.App.1997).
XI.
Jackson contends that the trial court erred in limiting his cross-examination of the Chief of the Brent Police Department, Doug Vinson, who was present during Jackson's statement to police, regarding the "routine procedure" of the police department in establishing an informant's understanding of the limits of their cooperation with police. (Issue XVIII in Jackson's brief to this court.) Jackson maintains that the trial court's action "prevented [him] from thoroughly cross-examining a State's witness on a key issue in the case." (Jackson's brief to this court, p. 92.)
Chief Vinson, who was present during Cpl. Manlief's interview with Jackson regarding the robbery/murder at the Hillview Grocery Store, testified that Jackson had worked in cooperation with the police on one occasion in February 1996. Apparently, Jackson had participated in a controlled drug buy set up by police, in which Jackson purchased narcotics from a suspected narcotics dealer. On cross-examination of Chief Vinson, the defense attempted to show that Jackson's statement to police regarding the robbery/murder in April 1996 was not voluntary because Jackson believed that he was still working for the police at that time and that he would be rewarded if he cooperated. During cross-examination of Chief Vinson, the following occurred:
"[Defense counsel]: Is it also routine procedure, whether or not it was specifically done, is it routine procedure to make sure that the person understands that level of cooperation is limited to the drug buy?
"[Prosecutor]: I object, it calls for speculation.
"[Defense counsel]: He can say yes or no.
"[The Court]: Sustained as to the routine."
(R. 541.) Defense counsel then went on to question Chief Vinson about whether he had specifically told Jackson, when Jackson was working with him in February 1996, that his cooperation with police was limited to purchasing narcotics and would not extend to anything else in the future; and whether he had told Jackson, during *1015 the interview in April 1996, that the current situation was not one in which Jackson was working for the police, as had been the case in February 1996.
"A party is entitled to a thorough and sifting cross-examination of the witnesses against him, § 12-21-137, Code of Alabama 1975; however, the trial court is vested with considerable control over the scope of the cross-examination, and its rulings thereon will not be reversed in the absence of a gross abuse of discretion that causes substantial injury to the objecting party. Perry v. Brakefield, 534 So. 2d 602 (Ala.1988)."
McMillian v. State, 594 So. 2d 1253, 1261 (Ala.Cr.App.1991). See also Hagood v. State, 777 So. 2d 162 (Ala.Cr.App.1998), aff'd. in pertinent part, rev'd on other grounds, 777 So. 2d 214 (Ala.1999).
We see no abuse of discretion here. Jackson had the opportunity to elicit testimony from Chief Vinson regarding what Jackson was told about the effect of his cooperation with police, both while he was cooperating in February 1996 and during his interview in April 1996; it was clearly established that neither Chief Vinson nor anyone else specifically spoke with Jackson on either occasion regarding the limits of his cooperation. The "routine" police procedure for informing cooperating witnesses about the extent of their cooperation would not have added anything material to the testimony that was already before the jury. Jackson has simply failed to show how he was prejudiced by the trial court's action in this regard. Accordingly, we find no error as to this claim.
XII.
In a two-paragraph argument in his brief, Jackson contends that the prosecutor used leading questions to elicit testimony from State's witnesses throughout the trial. (Issue XIX in Jackson's brief to this court.) In support of this argument, Jackson cites a series of page numbers in the record; however, he fails to identify the specific questions posed by the prosecutor that he believes were leading nor does he explain how these questions prejudiced him.
"We in no way condone a party's reliance on the mere citing of page numbers from the record, without a discussion of the pertinent facts from those pages and application of the pertinent law to those facts. We consider such reliance an indication of a lack of merit of the contention the party asserts."
Hardy v. State, [Ms. CR-95-0589, March 26, 1999] ___ So.2d ___, ___ (Ala.Cr.App. 1999).
Despite Jackson's meager argument, we have nevertheless reviewed the entire record in this cause, including the page numbers cited by Jacksonwhich reveal no objection by Jackson to any of the prosecutor's questionsand find no error, plain or otherwise, in the State's questioning of its witnesses.
XIII.
Jackson contends that the trial court erred in admitting into evidence, during the guilt phase and the sentencing phase of his trial, what he claims were "inflammatory and highly prejudicial" photographs of the crime scene and of the shotgun wound to the victim. (Issue XVII in Jackson's brief to this court, p. 89.) He maintains that the prosecutor offered the photographs into evidence solely to inflame the jury and that the photographs "undermined the reliability of his conviction and death sentence." (Jackson's brief to this court, p. 89.) Jackson objected to the introduction of the photographs at the sentencing phase of his trial; however, he did not object to their introduction at the guilt phase. Therefore, with regard to the guilt *1016 phase, we review this claim for plain error. See Rule 45A, Ala.R.App.P.
"Photographic evidence is admissible in a criminal prosecution if it tends to prove or disprove some disputed or material issue, to illustrate some relevant fact or evidence, or to corroborate or dispute other evidence in the case. Photographs that tend to shed light on, to strengthen, or to illustrate other testimony presented may be admitted into evidence. Chunn v. State, 339 So. 2d 1100, 1102 (Ala.Cr.App.1976). To be admissible, the photographic material must be a true and accurate representation of the subject that it purports to represent. Mitchell v. State, 450 So. 2d 181, 184 (Ala.Cr.App.1984). The admission of such evidence lies within the sound discretion of the trial court. Fletcher v. State, 291 Ala. 67, 277 So. 2d 882, 883 (1973); Donahoo v. State, 505 So. 2d 1067, 1071 (Ala.Cr.App.1986) (videotape evidence)."
Ex parte Siebert, 555 So. 2d 780, 783-84 (Ala.1989), cert. denied, 497 U.S. 1032, 110 S. Ct. 3297, 111 L. Ed. 2d 806 (1990).
"This court has repeatedly held that autopsy photographs depicting the character and location of wounds on a victim's body are admissible even if they are gruesome, cumulative, or relate to an undisputed matter." Perkins v. State, [Ms. CR-93-1931, November 19, 1999] ___ So.2d ___, ___ (Ala.Cr.App.1999). See also Smith v. State, 756 So. 2d 892 (Ala.Cr. App.1997); Travis v. State, 776 So. 2d 819 (Ala.Cr.App.1997); Scroggins v. State, 727 So. 2d 123 (Ala.Cr.App.1997), rev'd on other grounds, 727 So. 2d 131 (Ala.1998); Boyd v. State, 715 So. 2d 825 (1997), aff'd, 715 So. 2d 852 (Ala.), cert. denied, 525 U.S. 968, 119 S. Ct. 416, 142 L. Ed. 2d 338 (1998); Dabbs v. State, 518 So. 2d 825 (Ala.Cr.App.1987). Further, "[p]hotographs that depict the crime scene are relevant and therefore are admissible." Wilson v. State, 777 So. 2d 856, 929 (Ala.Cr.App.1999). See also Siebert, supra; Samra v. State, 771 So. 2d 1108 (Ala.Cr.App.1999); Maples v. State, 758 So. 2d 1 (Ala.Cr.App.), aff'd, 758 So. 2d 81 (Ala.1999); Aultman v. State, 621 So. 2d 353 (Ala.Cr.App.1992), cert. denied, 510 U.S. 954, 114 S. Ct. 407, 126 L. Ed. 2d 354 (1993); Hill v. State, 516 So. 2d 876 (Ala. Cr.App.1987). We have reviewed the photographs and find no error in their admission during the guilt or sentencing phases of Jackson's trial. See, e.g., Ex parte Bankhead, 585 So. 2d 112 (Ala.1991); Ingram v. State, 779 So. 2d 1225 (Ala.Cr.App. 1999).
XIV.
Jackson contends that the trial court erred in denying his motion for a judgment of acquittal, made at the close of the State's case and at the close of all evidence, because, he says, the evidence was insufficient to sustain his conviction for capital murder. (Issue XXVI in Jackson's brief to this court.) Specifically, Jackson contends that the highest offense he could have been convicted of was felony murder because, he says, he "lacked the specific intent to kill and the ability to form it because of mental retardation and intoxication." (Jackson's brief to this court, p. 111.) We disagree.
"`"In reviewing the sufficiency of the evidence the appellate courts of this State are bound by several well settled rules. It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt and to a moral certainty. Instead, the function of this Court is to determine whether there is legal evidence from which a jury could by fair inference find the defendant guilty. Cumbo v. State, 368 So. 2d 871 (Ala.Cr.App.), cert. denied, 368 So.2d *1017 877 (Ala.1979); Scruggs v. State, 359 So. 2d 836, 842 (Ala.Cr.App.), cert. denied, 359 So. 2d 843 (Ala.1978).
"`"In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State and accord the State all legitimate inferences therefrom. Ellis v. State, 338 So. 2d 428 (Ala.Cr.App.1976); Edson v. State, 53 Ala.App. 460, 301 So. 2d 226 (1974). The evidence must be considered in the light most favorable to the prosecution. Colston v. State, 57 Ala. App. 4, 325 So. 2d 520, cert. denied, 295 Ala. [398], 325 So. 2d 531 [ (1976) ].
"`"Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Bell v. State, 339 So. 2d 96 (Ala. Cr.App.[1976]). A verdict of conviction will not be set aside on the ground of insufficiency of the evidence, unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this Court that it was wrong and unjust. Bridges v. State, 284 Ala. 412, 225 So. 2d 821 (1969); Morton v. State, 338 So. 2d 423 (Ala.Cr.App. 1976).
"`Freeman v. State, 505 So. 2d 1079 (Ala.Cr.App.1986), quoting, Johnson v. State, 378 So. 2d 1164, 1169 (Ala.Cr.App. 1979), writ quashed by Ex parte Johnson, 378 So. 2d 1173 (Ala.1979).'"
Anderson v. State, 542 So. 2d 292, 295-96 (Ala.Cr.App.1987), writ quashed, 542 So. 2d 307 (Ala.), cert. denied, 493 U.S. 836, 110 S. Ct. 116, 107 L. Ed. 2d 77 (1989), quoted in Bankhead v. State, 585 So. 2d 97, 104 (Ala. Cr.App.1989), aff'd. in part, remanded on other grounds, 585 So. 2d 112 (Ala.1991), aff'd. on return to remand, 625 So. 2d 1141 (Ala.Cr.App.1992), rev'd on other grounds, 625 So. 2d 1146 (Ala.1993), and quoted with approval in Pilley v. State, 789 So. 2d 870, 875-76 (Ala.Cr.App.1998), rev'd on other grounds, 789 So. 2d 888 (Ala.2000).
"`"Intent, being a state of mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses in the circumstances as developed by and through the evidence."'" Pilley, 789 So.2d at 876, quoting Hunt v. State, 642 So. 2d 999, 1008 (Ala.Cr.App.1993), aff'd, 642 So. 2d 1060 (Ala.1994). Intent "`"may be inferred from the character of the assault, the use of a deadly weapon and other attendant circumstances."'" Farrior v. State, 728 So. 2d 691, 695 (Ala. Cr.App.1998), quoting Jones v. State, 591 So. 2d 569, 574 (Ala.Cr.App.1991), quoting, in turn, Johnson v. State, 390 So. 2d 1160, 1167 (Ala.Cr.App.), cert. denied, 390 So. 2d 1168 (Ala.1980). See also Scanland v. State, 473 So. 2d 1182, 1185 (Ala.Cr.App.), cert. denied, 474 U.S. 1035, 106 S. Ct. 602, 88 L. Ed. 2d 581 (1985) ("[i]ntent may be inferred from the use of a deadly weapon"). In Davis v. State, 740 So. 2d 1115 (Ala.Cr.App.1998), aff'd, 740 So. 2d 1135 (Ala.1999), we stated:
"[T]he question of a defendant's intent at the time of the commission of a crime is usually a question for the jury. Crowe v. State, 435 So. 2d 1371, 1379 (Ala.Cr.App.1983).
"`In Jones v. State, 591 So. 2d 569, 574 (Ala.Cr.App.1991), this court stated:
"`"`The element of intent, being a state of mind or mental purpose, is usually incapable of direct proof, [and] it may be inferred from the character of the assault, the use of a deadly weapon and other attendant circumstances.' Johnson v. State, 390 So. 2d 1160, 1167 (Ala.Cr.App.), cert. denied, 390 So. 2d 1168 (Ala. *1018 1980). Accord, Fears v. State, 451 So. 2d 385, 387 (Ala.Cr.App.1984); Young v. State, 428 So. 2d 155, 158 (Ala.Cr.App.1982)."
"`Additionally, in Bishop v. State, 482 So. 2d 1322, 1326 (Ala.Cr.App.1985), this court held:
"`"`Intent may be presumed from the act of using a deadly weapon. McArdle v. State, 372 So. 2d 897 (Ala.Cr.App.), cert. denied, 372 So. 2d 902 (Ala.1979), and from the character of the assault, including the nature and amount of force used in the fatal injury. Flint v. State, 370 So. 2d 332 (Ala.Cr.App. 1979).'
"`"Chaney v. State, 417 So. 2d 625, 627 (Ala.Cr.App.1982). `However, this evidence must be sufficient to allow the jury to conclude, by fair inference, that the appellant was shooting at the person (named in the indictment) in particular with the intent to murder him.' Free v. State, 455 So. 2d 137 (Ala.Cr.App. 1984). In Underhill on Criminal Evidence, § 540 (3d ed.1923), we find the following statement regarding proof of intent in an attempted murder charge:
"`"`Thus, as a general rule, the force or violence which was employed must be proven to have been intentional.... The intention to do great bodily harm, to murder or commit any other crime by means of an assault, may be inferred from the circumstances. Circumstantial evidence is usually the only available evidence of intention aside from the declarations of the accused. The intention may be inferred from the force or direction, or from the natural or contemplated result of the violence employed, from the weapon or implement used by the accused, from his threats or prior conduct towards the person assaulted, and generally from the extent and effect of the injury inflicted, or from any deliberate action which is naturally attempted and usually results in danger to the life of another.'"'
"Long v. State, 668 So. 2d 56, 60 (Ala.Cr. App.1995)."
740 So.2d at 1120. See also Hutcherson v. State, 727 So. 2d 846 (Ala.Cr.App.1997), aff'd, 727 So. 2d 861 (Ala.1998), cert. denied, 527 U.S. 1024, 119 S. Ct. 2371, 144 L. Ed. 2d 775 (1999).
Here, there was ample evidence that Jackson intended to kill Vicki Carroll. The following evidence was sufficient to support the jury's conclusion that Jackson had the intent to kill when he shot Carroll in the face from close range: the use of a deadly weapon; the circumstances surrounding the robbery/murder; the extent of the victim's injuries; Jackson's admission to police that he shot and killed Carroll; Jackson's statement that just before he shot Carroll, he believed she was telling someone over the telephone that she was being robbed; evidence that shortly after the murder, Jackson was bragging that he had "blowed her brains out"; and evidence that the day after the murder, Jackson was bragging about the offense having been reported in the local newspaper.
Jackson maintains, however, that he was so intoxicated at the time of the crime that he was unable to form the intent to kill. In Davis, supra, we stated the following regarding an identical argument:
"`The question whether a defendant's intoxication rendered it impossible for the defendant to form a particular mental state is also a question for the jury. See Ex parte Bankhead, *1019 585 So. 2d 112, 121 (Ala.1991). Evidence of intoxication, whether voluntary or involuntary, is admissible when it is relevant to negate an element of the offense charged. § 13A-3-2(a). "Voluntary drunkenness does not excuse crime, yet its excessiveness may produce such a mental condition as to render the intoxicated person incapable of forming a specific intent." Lovett v. State, 491 So. 2d 1034, 1039 (Ala.Cr.App.), cert. denied, 491 So. 2d 1039 (Ala.1986)(quoting State v. Massey, 20 Ala.App. 56, 58, 100 So. 625, 627 (1924)). The degree of intoxication required to establish that a defendant was incapable of forming an intent to kill is a degree so extreme as to render it impossible for the defendant to form the intent to kill. Ex parte Bankhead, 585 So.2d at 121. The law concerning intoxication resulting from drug use is the same as intoxication resulting from alcohol. Hooks v. State, 534 So. 2d 329 (Ala.Cr. App.1987).'
"Williams v. State, 710 So. 2d 1276, 1338 (Ala.Cr.App.1996). To negate the specific intent required for a murder conviction, the degree of the accused's intoxication must amount to insanity.
"`"In an assault and battery case, voluntary intoxication is no defense, unless the degree of intoxication amounts to insanity and renders the accused incapable of forming an intent to injure. Lister v. State, 437 So. 2d 622 (Ala.Cr.App.1983). The same standard is applicable in homicide cases. Crosslin [v. State, 446 So. 2d 675 (Ala.Cr.App.1983)]. Although intoxication in itself does not constitute a mental disease or defect within the meaning of § 13A-3-1, Code of Alabama 1975, intoxication does include a disturbance of mental or physical capacities resulting from the introduction of any substance into the body. § 13A-3-2. The degree of intoxication required to establish that a defendant was incapable of forming an intent to kill is a degree so extreme as to render it impossible for the defendant to form the intent to kill. ..."
"`Ex parte Bankhead, 585 So. 2d 112, 121 (Ala.1991).' Smith v. State, 646 So. 2d 704, 712-13 (Ala.Cr.App.1994)(emphasis added)."
740 So.2d at 1120-21. See also Williams v. State, 710 So. 2d 1276 (Ala.Cr.App.1996), aff'd, 710 So. 2d 1350 (Ala.1997), cert. denied, 524 U.S. 929, 118 S. Ct. 2325, 141 L. Ed. 2d 699 (1998); Crapps v. State, 646 So. 2d 698 (Ala.Cr.App.1994).
Although there was some evidence found in Jackson's statement to police that Jackson had been drinking alcohol and smoking marijuana on the morning of the robbery/murder, this evidence in no way established that Jackson was so intoxicated that he was incapable of forming the intent to kill. Jackson presented no evidence as to how much alcohol he had drunk or how much marijuana he had smoked. In addition, Jackson's "`conduct and demeanor immediately after the crime provided a reasonable inference of sanity.'" Smith v. State, 646 So. 2d 704, 713 (Ala.Cr.App.1994), quoting Cunningham v. State, 426 So. 2d 484, 491 (Ala.Cr.App. 1982). Both Larry Sanders and Angela Smith testified that they saw Jackson approximately two hours after the robbery/murder and that he did not appear intoxicated or under the influence of any drugs. The trial court's instruction on the law of intoxication was proper. Obviously, the jury resolved the conflict in the evidence regarding Jackson's intoxication adversely to Jackson; we will not disturb that finding on appeal.
*1020 Jackson also contends that he was unable to form the intent to kill because of his mental impairment. However, as we stated in Part VIII of this opinion, Jackson presented no evidence of his alleged mental impairment during the guilt phase of his trial. The only evidence regarding his mental abilities was introduced at the sentencing phase of his trial for purposes of mitigation. Jackson cannot expect this court to reverse his conviction merely because he now wishes to change defense strategies and to argue evidence that was never presented during the guilt phase of his trial.
However, we point out that even had Jackson presented the evidence of his mental impairment during the guilt phase of his trial, such evidence in no way demonstrated that he was so mentally impaired as to be unable to form the intent to kill. See, e.g., McCray v. State, 591 So. 2d 108 (Ala.Cr.App.1991). Jackson's own expert, Dr. Goff, stated in his report that Jackson had "the capacity to distinguish right from wrong at the time of the alleged offense" and that there were "no indications for a primary disorder of thought or mood or any other significant functional psychological disturbance" that would affect Jackson's ability to appreciate the criminality of his conduct or to conform his conduct to the law. (C. 1164.) Clearly, Jackson's mental capabilities were not so impaired as to prevent him from forming the intent to kill.
Because there was ample evidence to establish that Jackson had the intent to kill when he shot Vicki Carroll, the trial court did not err in denying Jackson's motion for a judgment of acquittal.
XV.
Jackson contends that the trial court's jury instructions during the guilt phase of his trial were erroneous. (Issues IX and XXII in Jackson's brief to this court.) Jackson never objected to the court's instructions on the grounds he now raises on appeal. Although Jackson's failure to object does not prevent our review of his claims, it does weigh against any claim of prejudice he now alleges on appeal. Thus, we review his claims only for plain error. See Rule 45A, Ala.R.App.P.
A.
First, Jackson contends that the trial court erroneously instructed the jury that it "was not to consider the voluntariness of [his] statement" to police. (Jackson's brief to this court, p. 54.) The trial court gave the following instruction regarding Jackson's statement to police:
"Evidence has been introduced concerning alleged statements made by the defendant, and while I determine the voluntariness of the statements, the jury determines their weight or credibility and you may disregard any alleged statement which you find to be unworthy of belief or which you entertain a reasonable doubt as to the truth of these statements."
(R. 654.)
In addressing an identical issue in Jackson v. State, 674 So. 2d 1318 (Ala.Cr.App. 1993), aff'd. in pertinent part, rev'd on other grounds, 674 So. 2d 1365 (Ala.1994), this court stated:
"In Ex parte Singleton, 465 So. 2d 443, 446 (Ala.1985), the Alabama Supreme Court addressed this issue, stating:
"`It is improper for a trial judge to disclose to the jury that he made a preliminary determination that a confession was voluntary and, therefore, admissible. Clifton v. United States, 371 F.2d 354 (D.C.Cir.1966), cert. denied, 386 U.S. 995, 87 S. Ct. 1312, 18 L. Ed. 2d 341 (1967); United States v. *1021 Inman, 352 F.2d 954 (4th Cir.1965). In the case at hand, however, the trial judge made it clear to the jury that they were to ultimately determine whether the confession was voluntary. We agree, therefore, with the Court of Criminal Appeals that there was no prejudicial error, since the comments of the trial judge "did not imply that the jury should accept and believe appellant's confession based on the trial court's ruling that the statement was voluntary."
"`. . . .
"`Correctly stated, whether a confession was voluntary rests initially with the trial court; once the trial court makes the preliminary determination that the confession was voluntary, it then becomes admissible into evidence. Thereafter, the jury makes a determination of voluntariness as affecting the weight and credibility to be given the confession. Lewis v. State, 295 Ala. 350, 329 So. 2d 599 (1976).'
"(Emphasis original.)
"This court has previously addressed this issue in a similar situation where the trial court orally instructed the jury that, while the trial court determines the voluntariness of a defendant's statement, the jury has the exclusive prerogative of determining the credibility of the evidence or the weight to be accorded the evidence, so that the jury may disregard any of the statement that it considers to be unworthy of belief. Clark v. State, 621 So. 2d 309 (Ala.Cr.App.1992). See also Aultman v. State, 621 So. 2d 353 (Ala.Cr.App.1992) (no prejudicial error occurred where the trial court instructed the jury that it had found the confession to be voluntary, because the court also instructed the jury that it was to determine how much weight, if any, to give the confession). In Clark v. State, 621 So.2d at 325, this court held:
"`In the present case, as in Ex parte Singleton, the trial court's charge, when read as a whole, did not indicate that the jury should believe the appellant's confession because the trial court had determined it to be voluntary; nor did it indicate that the jury had no role in determining its voluntariness. Rather, the trial court's instructions informed the jury of its role in determining what weight should be given the confession.'"
674 So.2d at 1325. Moreover, in Aultman v. State, 621 So. 2d 353 (Ala.Cr.App.1992), cert. denied, 510 U.S. 954, 114 S. Ct. 407, 126 L. Ed. 2d 354 (1993), this court held that a charge identical to the one at issue here was not prejudicial. In so doing, we stated:
"While the trial judge erred by telling the jury that the court determines the voluntariness of the statements, we find the error not to be prejudicial because the judge also instructed the jurors that they were the ultimate decisionmakers as to how much weight, if any, the statement should be afforded."
621 So.2d at 355. See also Smith v. State, 756 So. 2d 892 (Ala.Cr.App.1997); Gaddy v. State, 698 So. 2d 1100 (Ala.Cr.App.1995), aff'd, 698 So. 2d 1150 (Ala.), cert. denied, 522 U.S. 1032, 118 S. Ct. 634, 139 L. Ed. 2d 613 (1997).
Similarly, in giving the charge in the present case, the trial court did not, as Jackson contends, take away the jury's function in determining the voluntariness of Jackson's statement. Although the court instructed the jury that it had initially determined the voluntariness of a statement, the court also instructed the jury that it should determine the weight and credibility of that statement. In addition, the court instructed the jury that it could *1022 disregard any statement by Jackson that it found "to be unworthy of belief" or to which the jury entertained "a reasonable doubt as to the truth" of the statement. The instructions did not misinform the jury of the law and did not adversely affect Jackson's substantial rights. Because the error in the court's instructions was not "`so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings,'" Bush v. State, 523 So. 2d 538, 560 (Ala.Cr.App. 1988), quoting Ex parte Womack, 435 So. 2d 766, 769 (Ala.), cert. denied, 464 U.S. 986, 104 S. Ct. 436, 78 L. Ed. 2d 367 (1983), it did not rise to the level of plain error.
B.
Jackson also contends that the trial court's instructions on lesser included offenses were confusing and misleading and ultimately precluded the jury from returning a verdict for anything less than capital murder. The record reveals that the trial court instructed the jury on the lesser included offenses of felony murder, intentional murder, manslaughter, and robbery. After instructing the jury on all the elements of the charged offense and the lesser included offenses (about which Jackson does not complain), the trial court instructed the jury as follows:
"I'm going to now attempt to summarize briefly what I have told you regarding the charges against the defendant and the lesser included offenses.
"You'll first consider whether the State has proven each and every element of the offense of murder during robbery. If you're convinced beyond a reasonable doubt that the State has proven each and every element of the offense of murder during robbery, then you should return a verdict finding the defendant guilty of murder during robbery, and you would give no consideration to the lesser included offenses.
"If you find that the State has failed to prove beyond a reasonable doubt any one or more of the elements of murder during robbery, then you will consider the lesser included offenses.
"The first lesser included offense is felony murder. If the State has proven beyond a reasonable doubt the offense of felony murder, you will convict the defendant of felony murder.
"If all these elements are not proven beyond a reasonable doubt, then you will consider murder.
"If that's proven beyond a reasonable doubt, you would convict of murder.
"If that is not proven beyond a reasonable doubt, you would consider manslaughter. If the State has proven that beyond a reasonable doubt, you would convict him of manslaughter.
"If they have not proven manslaughter beyond a reasonable doubt, you would consider robbery in the first degree.
"If that's proven beyond a reasonable doubt, you would convict him of that. And, if not, you would not.
"Again, you would start with the most serious offense, murder during robbery. If proven beyond a reasonable doubt you would go no further.
"Only consider the lesser charges if the State has failed to prove all the elements of the more serious charge or charges."
(R. 651-52.)
Jackson contends that the trial court's instructions precluded the jury from finding him guilty of intentional murder and of robbery, as separate offenses and as lesser included offenses of capital murder, or of finding him guilty of manslaughter and of robbery, as separate offenses and as lesser *1023 included offenses of capital murder. In support of this argument, Jackson cites Hallford v. State, 548 So. 2d 526 (Ala.Cr. App.1988), aff'd, 548 So. 2d 547 (Ala.), cert. denied, 493 U.S. 945, 110 S. Ct. 354, 107 L. Ed. 2d 342 (1989), and Connolly v. State, 500 So. 2d 57 (Ala.Cr.App.1985), aff'd, 500 So. 2d 68 (Ala.1986), in which this court held that "robbery committed as a `mere afterthought' and unrelated to the murder will not sustain a conviction" for capital murder. 500 So.2d at 63. He maintains that the facts in his case support the theory that he did not form the intent to rob the Hillview Grocery Store until after he shot and killed Vicki Carroll. Thus, he contends, the jury should have been instructed that if it found that he, in fact, did not form the intent to rob until after the killingi.e., that the robbery was a mere afterthoughtthen it could find him guilty either of intentional murder and robbery or of manslaughter and robbery as separate offenses.
Although we agree that an accused "is not guilty of capital robbery-murder where the intent to rob was formed only after the victim was killed," Connolly, 500 So.2d at 62, we find that in this case, despite Jackson's contention to the contrary, there was no theory of the evidence from which a reasonable jury could have concluded that Jackson did not have the intent to rob at the time of the killing. In his statement, Jackson admitted that he planned the robbery with his codefendants. At trial, Jackson's sole defense was that he did not intend to kill Carroll. Moreover, forensic evidence, introduced by the State showed that the cash had been removed from the cash register before Carroll was shot, indicating not only that Jackson intended to rob the store before he shot Carroll, but that the taking of money was actually completed before the shooting.
Because there was simply no theory of the evidence from which the jury could have possibly concluded that Jackson did not have the intent to rob at the time he shot Vicki Carroll, the above-cited instructions by the trial court were not erroneous. Nor was Jackson entitled to have the trial court specifically instruct the jury that it could return two separate verdicts finding him guilty of either intentional murder and robbery or guilty of manslaughter and robbery. There was no error, plain or otherwise, in the trial court's instructions.
XVI.
Jackson contends that the prosecutor's cross-examination of him during the sentencing phase of his trial was improper. (Issues III and X in Jackson's brief to this court.)
First, Jackson contends that the prosecutor improperly questioned him about the circumstances surrounding the crime and about his involvement in the crime. Specifically, Jackson contends that this questioning was improper because, he says, the circumstances surrounding the crime and his involvement in the crime were "irrelevant to the jury's sentencing task." (Jackson's brief to this court, p. 56.) Because Jackson did not object to the prosecutor's questions on the grounds he now raises on appeal, we may review this claim only for plain error. Rule 45A, Ala. R.App.P.
At the sentencing phase of his trial, Jackson testified on his own behalf. On direct examination, Jackson expressed remorse for Vicki Carroll's death and asked that the jury spare his life. On crossexamination, the prosecutor questioned Jackson about the circumstances surrounding the crime and about the accuracy of the statement he gave the police. Contrary to Jackson's contention on appeal, *1024 the circumstances surrounding the crime are relevant at sentencing. Moreover, Jackson's claimwhich amounts to nothing more than an assertion that he had the right to take the stand, make a speech about being remorseful, beg the jury to spare his life, and then leave without having to answer questions on cross-examinationis simply absurd; he had no such right. By taking the stand to testify on his own behalf, Jackson opened himself to cross-examination about any relevant matter, including the circumstances surrounding the crime. The lack of objection to this line of questioning indicates that Jackson and his counsel were aware of this when Jackson took the stand. There was no error here, plain or otherwise.
Jackson also contends that the prosecutor improperly questioned him about statements that his codefendant Alfred Reed made to police after the crime. The first instance about which Jackson complains is the following:
"[Prosecutor]: You get the money out of the cash register?
"[Jackson]: No, I didn't.
"[Prosecutor]: Who did?
"[Jackson]: Alfred Reed.
"[Prosecutor]: All right. Is that all Alfred Reed had to say about this?
"[Jackson]: I can't recall.
"[Prosecutor]: You can recall?
"[Jackson]: No, sir, I can't.
"[Prosecutor]: Would it refresh your memory if I told you that he said you got the money out?
"[Jackson]: That's a lie."
(R. 732.) Jackson did not object to this questioning. Later, the following occurred:
"[Prosecutor]: Where did you go after you went out the door?
"[Jackson]: In the woods.
"[Prosecutor]: Where did Alfred go?
"[Jackson]: In the woods.
"[Prosecutor]: You stick the gun back in your pants and walk stiff-legged again?
"[Jackson]: I gave it to Alfred Reed.
"[Prosecutor]: Do you know what Alfred Reed had to say about that?
"[Jackson]: I don't know, he just taken it and ran.
"[Prosecutor]: Do you know what Alfred Reed said about the gun?
"[Jackson]: I don't know.
"[Prosecutor]: Would it help you for me to tell you that he said you had the gun when you went out the door?
"[Defense counsel]: Objection.
"[The Court]: Sustained."
(R. 733.) Because Jackson either failed to object, or failed to receive an adverse ruling on his objection, we may review this claim only for plain error. See Rule 45A, Ala.R.App.P.
It is well settled that a nontestifying codefendant's statement to police implicating the accused in the crime is inadmissible against the accused; it does not fall within any recognized exception to the hearsay rule and, absent a showing of reliability, its introduction violates the accused's confrontation rights. See Lee v. Illinois, 476 U.S. 530, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986); Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968); R.L.B. v. State, 647 So. 2d 803 (Ala.Cr.App.1994); Ephraim v. State, 627 So. 2d 1102 (Ala.Cr.App.1993).
However, even assuming that Jackson was denied his right of confrontation by the prosecutor's questions regarding Reed's statement to police, we find that any error was harmless. "A denial of the right to confrontation may, in some circumstances, result in harmless error." James v. State, 723 So. 2d 776, 781 (Ala.Cr. *1025 App.), aff'd, 723 So. 2d 786 (Ala.1998). In Whitehead v. State, 777 So. 2d 781 (Ala.Cr. App.1999), we stated:
"`After finding error, an appellate court may still affirm a conviction or sentence on the ground that the error was harmless, if indeed it was. Chapman [v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]; Sattari v. State, 577 So. 2d 535 (Ala.Cr. App.1990), cert. denied, 577 So. 2d 540 (Ala.1991); A.R.App.P. 45. Moreover, the harmless error rule applies in capital cases. Ex parte Whisenhant, 482 So. 2d 1241 (Ala.1983); Henderson v. State, 583 So. 2d 276 (Ala.Cr.App. 1990), aff'd, 583 So. 2d 305 (Ala.1991), cert. denied, 503 U.S. 908, 112 S. Ct. 1268, 117 L. Ed. 2d 496 (1992); Musgrove v. State, 519 So. 2d 565 (Ala.Cr. App.), aff'd, 519 So. 2d 586 (Ala.1986), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 611 (1988). In order for a constitutional error to be deemed harmless under Chapman, the state must prove beyond a reasonable doubt that the error did not contribute to the verdict and/or sentence.... In order for the error to be deemed harmless under Ala. R.App.P. 45, the state must establish that the error did not or probably did not injuriously affect the appellant's substantial rights.... The purpose of the harmless error rule is to avoid setting aside a conviction or sentence for small errors or defects that have little, if any, likelihood of changing the result of the trial or sentencing. We conclude that the error could not have contributed to the sentence, nor injuriously affected a substantial right of the appellant.'
"Davis v. State, 718 So. 2d 1148, 1164 (Ala.Cr.App.1995); see also Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986) (`[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.'). Further, plain error only arises if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings. See Bush v. State, 695 So. 2d 70, 87 (Ala.Cr.App.1995), aff'd, 695 So. 2d 138 (Ala.), cert. denied, [522] U.S. [969], 118 S. Ct. 418, 139 L. Ed. 2d 320 (1997); Rule 45A, Ala.R.App.P. The United States Supreme Court has recognized that most errors do not automatically render a trial unfair and, thus, can be harmless. See Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). This includes the improper admission of evidence at the sentencing stage of a capital case. See Satterwhite v. Texas, 486 U.S. 249, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988)."
777 So.2d at 847.
We believe that the prosecutor's questions regarding Reed's statement to police were harmless beyond a reasonable doubt. Jackson admitted to police that he planned to rob the Hillview Grocery Store, that he entered the store armed with a sawed-off 12-gauge shotgun, and that he shot Vicki Carroll in the face. The jury found Jackson guilty of a capital crime. There was no question that Jackson was the shooter or that Jackson participated in the planning and execution of the robbery. Although Reed's statement to police was inconsistent with Jackson's statement to police and with Jackson's testimony at trial, we do not believe that the limited questions by the prosecutor regarding Reed's statementquestions that established only that Reed had said that Jackson took the money out of the register, and that Jackson maintained possession of the *1026 shotgun after the robberyaffected the jury's sentencing verdict. Accordingly, any error was harmless.
XVII.
Jackson contends that the prosecutor impermissibly used evidence of prior conduct during the sentencing phase of his trial "to prove and argue that [he] should be put to death." (Issue XI in Jackson's brief to this court, p. 59.) Specifically, Jackson contends: (1) that the prosecutor improperly introduced evidence, through the cross-examination of a character witness for the defense, that Jackson had previously been convicted of a misdemeanor (assault in the third degree) and that he had previously been suspended from school for carrying a gun; and (2) that the prosecutor improperly argued to the jury that this prior conduct negated the statutory mitigating circumstance of "no significant history of prior criminal activity," see § 13A-5-51(1), Ala.Code 1975, and that it should be considered as a nonstatutory aggravating circumstance. Jackson timely objected to the prosecutor's argument and moved for a mistrial. However, Jackson did not object to the testimony regarding his prior conduct; thus, we may review that claim only for plain error. See Rule 45A, Ala.R.App.P.
During the sentencing phase of his trial, Jackson called several character witnesses to testify on his behalf, presumably to establish a nonstatutory mitigating circumstance under § 13A-5-52, Ala.Code 1975 ("In addition to the mitigating circumstances specified in Section 13A-5-51, mitigating circumstances shall include any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant offers as a basis for a sentence of life imprisonment without parole instead of death"). Section 13A-5-45(g), Ala.Code 1975, states:
"The defendant shall be allowed to offer any mitigating circumstance defined in Sections 13A-5-51 and 13A-5-52. When the factual existence of an offered mitigating circumstance is in dispute, the defendant shall have the burden of interjecting the issue, but once it is interjected the state shall have the burden of disproving the factual existence of that circumstance by a preponderance of the evidence."
To rebut Jackson's claim of good character, the State cross-examined one of Jackson's character witnesses regarding Jackson's prior misdemeanor assault conviction and his suspension from school for carrying a gun. This cross-examination was proper both to test the witness's credibility as to his knowledge of Jackson's character and to rebut the mitigating evidence offered by Jackson. See Davis v. State, 740 So. 2d 1115 (Ala.Cr.App.1998), aff'd, 740 So. 2d 1135 (Ala.1999); Knotts v. State, 686 So. 2d 431 (Ala.Cr.App.1995), aff'd, 686 So. 2d 486 (Ala.1996), cert. denied, 520 U.S. 1199, 117 S. Ct. 1559, 137 L. Ed. 2d 706 (1997); Peoples v. State, 510 So. 2d 554 (Ala.Cr.App.1986), aff'd, 510 So. 2d 574 (Ala.), cert. denied, 484 U.S. 933, 108 S. Ct. 307, 98 L. Ed. 2d 266 (1987). Accordingly, we find no error, plain or otherwise, as to this claim.
Jackson also contends that the prosecutor improperly argued to the jury during his rebuttal closing arguments that Jackson's prior conduct negated the statutory mitigating circumstance of "no significant history of prior criminal activity" and that it should be considered as a nonstatutory aggravating circumstance. Specifically, Jackson complains about the following portion of the prosecutor's argument:
"The defense said, `[W]ell, you must not impose the penalty of death because he has no significant criminal record.' Visit with me a minute this defendant.
*1027 "What kind of fellow is he? Well, we know he's been to boot camp, we know he carried a gun to school, we know he has experience in the drug world, we know he's assaulted people, and we know in this case he committed a robbery. That's the sawed-off shotgun. We know that when he went to see Dr. Smith, he apparently lied to her to try to better himself. He worked as a drug snitch, and we know that apparently somewhere along the way in the last few weeks he tried to change his story that he told the officer."
(R. 770-71.)
Defense counsel objected to this argument and moved for a mistrial. The trial court denied the motion for a mistrial, but sustained the objection and immediately gave the following curative instruction to the jury:
"Ladies and gentlemen, I'll explain this to you in my charge later, but this particular mitigating circumstance, that is, the one regarding significant criminal history, for that to be disproved there must be some showing of prior felony convictions. Misdemeanors do not count to disprove a lack of significant prior criminal activity. Assault in the third degree is a misdemeanor."
(R. 773.)
During its oral charge, the court further instructed the jury that "[p]rior criminal activity requires actual prior felony convictions to disprove that mitigating circumstance." (R. 786.) Moreover, the court properly instructed the jury that it should base its verdict solely on the evidence in the case, and that statements and arguments of counsel were not evidence. A jury is presumed to follow the instructions of the trial court. See, e.g., Taylor v. State, 666 So. 2d 36 (Ala.Cr.App.1994), aff'd, 666 So. 2d 73 (Ala.1995), cert. denied, 516 U.S. 1120, 116 S. Ct. 928, 133 L. Ed. 2d 856 (1996). Thus, even assuming the prosecutor's argument to be error, we believe that the trial court's prompt curative instruction, coupled with its final instructions, abrogated any possibility that the jury used Jackson's prior conduct to negate the mitigating circumstance of "no significant history of prior criminal activity," and eradicated any prejudicial effect the argument may have otherwise had on the jury. See, e.g., Ex parte Jefferson, 473 So. 2d 1110 (Ala.1985).
Moreover, we have reviewed the prosecutor's remarksboth in the context of the entire closing argument and in the context of the entire trialand we do not find that any of the comments amounted to argument of nonstatutory aggravation. To the contrary, the comments were proper comments based on the evidence introduced at trial and the inferences to be drawn from the evidence. "Whatever is in evidence at trial is considered subject to legitimate comment by counsel." Freeman v. State, 776 So. 2d 160 (Ala.Cr.App. 1999). See also Frazier v. State, 758 So. 2d 577 (Ala.Cr.App.1999), aff'd, 758 So. 2d 611 (Ala.1999); Burgess v. State, 723 So. 2d 742 (Ala.Cr.App.1997), aff'd, 723 So. 2d 770 (Ala.1998), cert. denied, 526 U.S. 1052, 119 S. Ct. 1360, 143 L. Ed. 2d 521 (1999); Smith v. State, 698 So. 2d 189 (Ala.Cr.App.1996), aff'd, 698 So. 2d 219 (Ala.), cert. denied, 522 U.S. 957, 118 S. Ct. 385, 139 L. Ed. 2d 300 (1997); Jenkins v. State, 627 So. 2d 1034 (Ala.Cr.App.1992), aff'd, 627 So. 2d 1054 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S. Ct. 1388, 128 L. Ed. 2d 63 (1994).
In addition, the jury was properly instructed that it could consider only one aggravating circumstancethat the murder was committed during a robbery. There was no reasonable probability that the jury was misled or misinformed about its responsibility at sentencing and the appropriate factors that it could consider *1028 in aggravation. Thus, we find no error as to this claim.
XVIII.
Jackson contends that the prosecutor made improper remarks during opening and closing statements at both the guilt and sentencing phases of his trial. (Issue XII in Jackson's brief to this court.) Initially, we note the following:
"In reviewing these claims of improper prosecutorial comments, we must evaluate the comments in the context of the entire trial. Duren v. State, 590 So. 2d 360 (Ala.Cr.App.1990), aff'd, 590 So. 2d 369 (Ala.1991). The question becomes `"whether the argument so infected the trial with unfairness as to make the resulting conviction a denial of due process."` Darden v. Wainwright, 477 U.S. [168,] 182, 106 S. Ct. 2464, [91 L. Ed. 2d 144 (1986) ], quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974). Further, we note that a prosecutor, in the closing argument, can state his or her interpretation of the applicable law. Burton v. State, 651 So. 2d 641 (Ala.Cr.App.1993), aff'd, 651 So. 2d 659 (Ala.1994), and can argue that the evidence presented at trial proves the guilt of the accused. Galloway v. State, 484 So. 2d 1199 (Ala. Cr.App.1986). Additionally, we point out that the control of a closing argument is in the broad discretion of the trial court. Thomas v. State, 601 So. 2d 191 (Ala.Cr.App.1992). That court is in the best position to determine if counsel's argument and discussion is legitimate or if it degenerates into impropriety. Thomas, supra."
Smith v. State, 727 So. 2d 147, 169-70 (Ala. Cr.App.1998), aff'd, 727 So. 2d 173 (Ala. 1999).
A.
First, Jackson complains about numerous remarks by the prosecutor during opening and closing statements at the sentencing phase that, according to Jackson, amounted to argument of nonstatutory aggravating circumstances. At trial, Jackson objected to only one of the remarks he now complains of on appeal. As to the remarks that were not objected to, we review his claim for plain error. See Rule 45A, Ala.R.App.P.
After reviewing all of the complained-of comments by the prosecutor, both in the context in which they were made and in the context of the entire trial, we find that they were all within the bounds of legitimate comment by counsel. All of the comments were either proper argument or proper comments on the evidence and inferences to be drawn from that evidence, and did not constitute improper argument of nonstatutory aggravating circumstances. See, e.g., Freeman v. State, 776 So. 2d 160, 185 (Ala.Cr.App.1999)("Whatever is in evidence at trial is considered subject to legitimate comment by counsel."); McWilliams v. State, 640 So. 2d 982, 1001 (Ala.Cr.App. 1991), aff'd. in pertinent part, 640 So. 2d 1015 (Ala.1993) ("deterrence, retribution, and society's right to self-defense" are proper subjects of prosecutorial argument). Accordingly, we find no error, plain or otherwise, as to this claim.
B.
Next, Jackson contends that the prosecutor improperly argued during rebuttal arguments at the sentencing phase that the jury had a "duty" to impose the death penalty. Specifically, Jackson complains about the following:
"We, the people of this country and this state ... decided through our legislature, our elected representatives, the penalty of death is lawful, proper and *1029 necessary punishment so that we can live in an orderly and safe society. It is part of our law, it's a part of our society and it is a tool that you must use in this case. It's not something you do easily or get any enjoyment. It's something you must be strong enough to be able to proceed with. In other words, that we can be a free and lawful and orderly society.
"I believe that the facts in this case have shown you the circumstances that are actually beyond belief that dictate the use of that tool.
"The facts in this case that you are called upon to impose and use the tool, the penalty of death, must be crystal clear, it must not be any doubt, no question at all about who did it, about what they did, and about why they did it. There's no doubt about what he did, and there is no doubt about why he and his buddies did it.
"They went down there for the dollar, the almighty dollar and they took her life for it and there's no dispute about that. There's not even any dispute about the facts. All we ask you is that in the morning when you get up and this is over with and you look yourselves in the mirror, you can say to yourself that I did my duty as imposed upon me by my community and my state."
(R. 769-70.) Jackson objected to this argument, and the trial court sustained the objection. The court then gave the following instruction to the jury:
"Ladies and gentlemen I'll ask you to disregard the last statement made by [the prosecutor]. Your duty is to weigh the aggravating and mitigating circumstances in this case and make a report to the court about that."
(R. 770.)
Although the trial court sustained Jackson's objection to this argument, we believe that the prosecutor's comments were proper both as a reply to defense counsel's closing arguments and as an argument that the death penalty was warranted under the facts in the case.
In his closing argument, defense counsel urged the jury to "follow the dictates of what a prayerful Christian individual should do," (R. 767-68); to "be strong enough" to impose life imprisonment without parole regardless of the pressures from the community, (R. 768); and to not impose the death penalty because "there's a sourness that comes later on when I realize I have not done what a civilized society expects of me." (R. 767.) The above-quoted portions of the prosecutor's argument were clearly a reply-in-kind to defense counsel's argument. "A prosecutor has a right based on fundamental fairness to reply in kind to the argument of defense counsel." DeBruce v. State, 651 So. 2d 599, 609 (Ala.Cr.App.1993), aff'd, 651 So. 2d 624 (Ala.1994). See also, Wilson v. State, 777 So. 2d 856 (Ala.Cr.App.1999); Melson v. State, 775 So. 2d 857 (Ala.Cr. App.1999).
Further, we do not believe that the comments improperly told the jury that it was its duty to impose the death penalty regardless of the evidence. Generally, an exhortation to the jury to "do the right thing," to "do your job," or to "do your duty" is error if it "impl[ies] that, in order to do so, it can only reach a certain verdict, regardless of its duty to weigh the evidence and follow the court's instructions on the law." Arthur v. State, 575 So. 2d 1165, 1185 (Ala.Cr.App.1990), cert. denied, 575 So. 2d 1191 (Ala.1991). However, after reviewing the prosecutor's comments in context of the entire argument and the entire trial, we find that the prosecutor was not asking the jury to ignore the evidence or the court's instructions. See, *1030 e.g., Thomas v. State, 766 So. 2d 860 (Ala. Cr.App.1998); Price v. State, 725 So. 2d 1003 (Ala.Cr.App.1997). Rather, the prosecutor was validly arguing that the facts of the case supported the death penalty. "Of course, a prosecutor seeking a death penalty will argue that ... the defendant should receive the death penalty." Smith v. State, 727 So. 2d 147, 171 (Ala.Cr.App. 1998).
Finally, even assuming the prosecutor's comments were improper, the trial court's prompt instruction to the jury to disregard the comments and its instructions on the jury's duty to weigh the aggravating and mitigating circumstances, cured any possible error.
Accordingly, we find no error as to this claim.
C.
Jackson also contends that the prosecutor, during closing arguments at both the guilt and sentencing phases of his trial, improperly relied on facts not in evidence. Jackson did not object to any of the remarks he now complains about on appeal; therefore, we may review this claim only for plain error. See Rule 45A, Ala. R.App.P.
First, Jackson contends that the prosecutor improperly argued at the guilt phase that Jackson planned the robbery, that Jackson loaded the shotgun before entering the Hillview Grocery Store, and that Jackson threw the shotgun in the river after the murder. All of these comments were legitimate inferences to be drawn from the evidence, and therefore, were proper. In Ballard v. State, 767 So. 2d 1123 (Ala.Cr.App.1999), we stated:
"`The prosecutor's statements are not evidence. Henry v. State, 468 So. 2d 896, 899 (Ala.Cr.App.1984), cert. denied, 468 So. 2d 902 (Ala.1985). Further, prosecutors are to be allowed a wide latitude in their exhortations to the jury. Varner v. State, 418 So. 2d 961 (Ala.Cr.App.1982). "Statements of counsel in argument must be viewed as in the heat of debate and must be valued at their true worth rather than as factors in the formation of the verdict." Orr v. State, 462 So. 2d 1013, 1016 (Ala.Cr.App.1984).'
"Armstrong v. State, 516 So. 2d 806, 809 (Ala.Cr.App.1986).
"`The test of a prosecutor's legitimate argument is that whatever is based on facts and evidence is within the scope of proper comment and argument. Kirkland v. State, 340 So. 2d 1139 (Ala.Cr.App.), cert. denied, 340 So. 2d 1140 (Ala.1977). Statements based on facts admissible in evidence are proper. Henley v. State, 361 So. 2d 1148 (Ala.Cr.App.), cert. denied, 361 So. 2d 1152 (Ala.1978). A prosecutor as well as defense counsel has a right to present his impressions from the evidence. He may argue every legitimate inference from the evidence and may examine, collate, sift, and treat the evidence in his own way. Williams v. State, 377 So. 2d 634 (Ala. Cr.App.1979); McQueen v. State, 355 So. 2d 407 (Ala.Cr.App.1978).'"
"Watson v. State, 398 So. 2d 320, 328 (Ala.Cr.App.1980), writ denied, 398 So. 2d 332 (Ala.1981), cert. denied, 452 U.S. 941, 101 S. Ct. 3085, 69 L. Ed. 2d 955 (1981)."
767 So.2d at 1135.
Second, Jackson contends that the prosecutor improperly stated at the guilt phase that "Mr. Reed and Mr. Martin have their day to come in this matter. And come it will." (R. 631.) According to Jackson, this statement was "completely unsupported by the record" and "indicated to the jury that if [it] did not convict *1031 Jackson it was possible that nobody would be accountable for the victim's death." (Jackson's brief to this court, p. 74.) We disagree.
Contrary to Jackson's contention, the prosecutor's statement in no way suggested that no one would be held accountable if Jackson was acquitted. Rather, the statement assured the jury that Jackson's codefendants would be prosecuted just as Jackson had been. In addition, this statement was a reply-in-kind to defense counsel's repeated argument during his closing arguments that Jackson was not responsible for the murder of Vicki Carroll and that, instead, Reed and Martin were the culpable parties. As stated above, "[a] prosecutor has a right based on fundamental fairness to reply in kind to the argument of defense counsel." DeBruce, supra, at 609.
Third, Jackson contends that the prosecutor improperly argued to jurors at sentencing that Jackson had "deceived" them. In context, the prosecutor's argument was as follows:
"It's time, ladies and gentlemen, for y'all to consider what Jeremiah Jackson's fate is. There are two. One is life without parole, the one he's asking you to give him, it's the one that the man that's trying to persuade you that he's a pitiful guy and can't really function; the man who tried to present himself in a different light to Vonceil Smith, a man whose made his way trying to deceive you, wants you to do."
(R. 752.) These comments were clearly based on the evidence or were legitimate inferences to be drawn from the evidence. Dr. Smith's pretrial mental evaluation of Jackson states, in pertinent part, that Jackson was "initially invasive and highly invested in presenting himself poorly." (C. 906.) Moreover, during his testimony at the sentencing phase, Jackson attempted to persuade the jury, in direct contradiction to his statement to police, that when he entered the store with the shotgun, he did not know that a robbery was about to take place. The prosecutor's interpretation of Dr. Smith's report and Jackson's testimony was a proper subject for comment.
Fourth, Jackson contends that the prosecutor improperly told the jury that the death penalty was a "deterrent" to crime. Contrary to Jackson's contention, "`[a]n argument ... urging the jurors to consider the deterrent effect of the [death] penalty, is not improper.'" Kuenzel v. State, 577 So. 2d 474, 504 (Ala.Cr.App. 1990), aff'd, 577 So. 2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S. Ct. 242, 116 L. Ed. 2d 197 (1991), quoting Brooks v. Kemp, 762 F.2d 1383, 1409 (11th Cir.1985), vacated on other grounds, 478 U.S. 1016, 106 S. Ct. 3325, 92 L. Ed. 2d 732 (1986).
Accordingly, we find no error, much less plain error, as to Jackson's claim that the prosecutor improperly argued facts not in evidence.
D.
Finally, Jackson contends that the prosecutor "improperly compared the defendant's rights to those of the victim" during his closing arguments at the guilt phase. (Jackson's brief to this court, p. 75.) Specifically, Jackson complains about the following comment:
"[Jerry Carroll] ... is going to have to live with this and his family the rest of his life. He hasn't seen the two boys deliberately since he put them through this. But this is their mother's day in court, it's the only day she'll get. It's as much her trial as it is Jeremiah Jackson's. She's not going to testify, she's in the grave. That is, most of her is. She can't testify from that stand."
*1032 (R. 633.) (See also, Part IX of this opinion.) Jackson did not object to this comment by the prosecutor; therefore, we may review this claim only for plain error. See Rule 45A, Ala.R.App.P.
In McNair v. State, 653 So. 2d 320 (Ala. Cr.App.), aff'd, 653 So. 2d 353 (Ala.1994), cert. denied, 513 U.S. 1159, 115 S. Ct. 1121, 130 L. Ed. 2d 1084 (1995), this court addressed similar, although more egregious, comments than those complained about here. In McNair, the prosecutor made numerous comparisons between the victim's rights and those of the defendant's during his closing arguments at the guilt phase of the trial. We held that such comments were improper, but were not reversible error. In so doing, we stated:
"The prosecutor made numerous references to the victim's rights and several times implied that her rights were to be weighed against the appellant's. This was clearly improper. However, we think these references were valued by the jury at their true worth, as having been uttered in the heat of debate and were not expected to become factors in the formation of the verdict. See Duren v. State, 590 So. 2d 360, 364 (Ala.Cr.App. 1990), affirmed, 590 So. 2d 369 (Ala.1991), cert. denied, 503 U.S. 974, 112 S. Ct. 1594, 118 L. Ed. 2d 310 (1992); Bankhead v. State, 585 So. 2d 97, 106 (Ala.Cr.App. 1989), affirmed as to instant issue and remanded on other grounds, 585 So. 2d 112 (Ala.1991)(on rehearing), affirmed on return to remand, 625 So. 2d 1141 (Ala.Cr.App.1992); Harris v. State, 539 So. 2d 1117, 1123 (Ala.Cr.App.1988)."
653 So.2d at 337-38. See also Griffin v. State, 790 So. 2d 267 (Ala.Cr.App.1999); Woods v. State, 789 So. 2d 896 (Ala.Cr.App. 1999); Thomas v. State, 766 So. 2d 860 (Ala.Cr.App.1998); Dobyne v. State, 672 So. 2d 1319 (Ala.Cr.App.1994), aff'd, 672 So. 2d 1354 (Ala.1995), cert. denied, 517 U.S. 1169, 116 S. Ct. 1571, 134 L. Ed. 2d 670 (1996).
Similarly, we believe that the prosecutor's comments here were valued by the jury at their true worth and did not become factors in the formation of the verdict. The jury was properly instructed that arguments of counsel were not evidence. "`The jury is presumed to follow the instructions given by the trial court.'" Frazier v. State, 758 So. 2d 577, 604 (Ala. Cr.App.1999), aff'd, 758 So. 2d 611 (Ala. 1999), quoting Hutcherson v. State, 727 So. 2d 846, 854 (Ala.Cr.App.1997), aff'd, 727 So. 2d 861 (Ala.1998), cert. denied, 527 U.S. 1024, 119 S. Ct. 2371, 144 L. Ed. 2d 775 (1999). Accordingly, we find no error, plain or otherwise, regarding this claim.
XIX.
Jackson contends that the trial court failed to instruct the jury that it was required to vote for life imprisonment without the possibility of parole if it found that the aggravating circumstances and the mitigating circumstances were equal. (Issue XXI in Jackson's brief to this court.) Thus, Jackson concludes, the trial court's instructions were an "inaccurate statement of Alabama law" and "improperly created a presumption of death." (Jackson's brief to this court, pp. 97-100.) Because Jackson did not object to the trial court's instructions in this regard, we may review this claim only for plain error. See Rule 45A, Ala.R.App.P.
The instructions in this case were materially identical to the Alabama Proposed Pattern Jury Instructions for Use in the Sentence Stage of Capital Cases Tried Under Act No. 81-178. "A trial court's following of an accepted pattern jury instruction weighs heavily against any finding of plain error." Price v. State, 725 So. 2d 1003, 1058 (Ala.Cr.App.1997), aff'd, 725 So. 2d 1063 (Ala.1998), cert. denied, 526 *1033 U.S. 1133, 119 S. Ct. 1809, 143 L. Ed. 2d 1012 (1999).
More importantly, however, instructions identical to those about which Jackson complains have repeatedly been upheld under challenges identical to the challenge Jackson brings. See Ex parte Trawick, 698 So. 2d 162 (Ala.1997), cert. denied, 522 U.S. 1000, 118 S. Ct. 568, 139 L. Ed. 2d 408 (1999); Whitehead v. State, 777 So. 2d 781 (Ala.Cr.App.1999); Stewart v. State, 730 So. 2d 1203 (Ala.Cr.App.1996), aff'd, 730 So. 2d 1246 (Ala.), cert. denied, 528 U.S. 846, 120 S. Ct. 119, 145 L. Ed. 2d 101 (1999); Haney v. State, 603 So. 2d 368 (Ala.Cr.App. 1991), aff'd, 603 So. 2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S. Ct. 1297, 122 L. Ed. 2d 687 (1993). Accordingly, we find no error, plain or otherwise, as to this claim.
XX.
Jackson contends that the trial court relied on a cursory presentence report that, he says, was "grossly insufficient," and violated his right to a reliable and individualized sentence. (Issue V in Jackson's brief to this court, p. 35.) Specifically, he contends that although he presented a plethora of evidence about his background and personal history during trial, the presentence investigation report did not contain any of this information and was virtually identical to the youthful offender report that had been completed over a year before his trial. In addition, he complains that the report contained "suspect information," that, he says, shows that "the report was actually recycled from an earlier offense." (Jackson's brief to this court, pp. 36-39.) Jackson did not object to the presentence investigation report at the sentencing hearing; therefore, we may review this claim only for plain error. See Rule 45A, Ala.R.App.P.
In support of his argument, Jackson relies on Guthrie v. State, 689 So. 2d 935 (Ala.Cr.App.1996), aff'd, 689 So. 2d 951 (Ala.), cert. denied, 522 U.S. 848, 118 S. Ct. 135, 139 L. Ed. 2d 84 (1997), in which this court reversed Guthrie's sentence and remanded the case for the trial court "to reconsider Guthrie's sentence with a sufficient presentence report." 689 So.2d at 947. In so doing, we stated:
"This presentence report's cursory and incomplete treatment of Guthrie troubles us, because it may have hamstrung the trial court's consideration of the full mosaic of Guthrie's background and circumstances before determining the proper sentence. As such, this presentence report risked foiling the purpose of § 13A-5-47(b)."
Guthrie, 689 So.2d at 947. "The purpose of the presentence investigation report is to aid the sentencing judge in determining whether the jury's advisory verdict is proper and if not, what the appropriate sentence should be." Ex parte Hart, 612 So. 2d 536, 539 (Ala.1992), cert. denied, 508 U.S. 953, 113 S. Ct. 2450, 124 L. Ed. 2d 666 (1993).
Unlike the court in Guthrie, the trial court in this case had the opportunity to consider the "full mosaic of [Jackson's] background and circumstances" before sentencing him. In Guthrie, we were concerned with the cursory presentence report because Guthrie had not presented any mitigating evidence during the sentencing hearings before the jury or the trial court and specifically instructed his attorney not to argue any mitigation other than the fact that his role in the crime was as an accomplice; because Guthrie's personal and social history contained in the report had been taken from an interview that was conducted at least five years before his sentencing hearing and no attempt had been made to update that information *1034 for purposes of the presentence investigation; and because, although the report indicated that no psychological reports were available, the record showed that Guthrie had been incarcerated at Taylor Hardin Secure Medical Facility in 1988.
Although we agree with Jackson that the presentence report in this case was virtually identical to the youthful offender report prepared over a year before Jackson's trial, and, like the report in Guthrie, indicated that no psychological reports were on file when, in fact, Jackson had been evaluated both at the Taylor Hardin Secure Medical Facility approximately six months before trial and by his own expert only a week before trial, we find that the deficiency in the report in this case does not cause the same problem as the deficiency in Guthrie.
In Guthrie, the court was faced with sentencing Guthrie without any current information on his background. Here, however, Jackson presented extensive mitigating evidence about his background and childhood, at both the sentencing hearing before the jury and before the trial court. In addition, the trial court had before it both Dr. Goff's and Dr. Smith's psychological evaluations containing extensive information about Jackson's life, his schooling, and his mental history. Finally, the trial court indicated in its sentencing order that it had considered this mitigating evidence in reaching its decision. Clearly, the trial court here was not "hamstrung" into determining Jackson's sentence without consideration of "the full mosaic" of Jackson's background and circumstances. See, e.g., Wilson v. State, 777 So. 2d 856 (Ala.Cr.App. 1999). Therefore, we find no error, plain or otherwise, as to this claim.
XXI.
Jackson contends that the trial court improperly treated robbery as both an element of the capital offense and as an aggravating circumstance. (Issue XXV in Jackson's brief to this court.) This practice, known as "double counting" or "overlapping," has repeatedly been upheld. See Ex parte Windsor, 683 So. 2d 1042 (Ala. 1996), cert. denied, 520 U.S. 1171, 117 S. Ct. 1438, 137 L. Ed. 2d 545 (1997); Woods v. State, 789 So. 2d 896 (Ala.Cr.App.1999); Jackson v. State, [Ms. CR-97-2050, May 28, 1999] ___ So.2d ___ (Ala.Cr.App. 1999); Sneed v. State, 783 So. 2d 841 (Ala. Cr.App.1999); Maples v. State, 758 So. 2d 1 (Ala.Cr.App.), aff'd, 758 So. 2d 81 (Ala. 1999); Hardy v. State, [Ms. CR-95-0589, March 26, 1999] ___ So.2d ___ (Ala.Cr. App.1999); Drinkard v. State, 777 So. 2d 225 (Ala.Cr.App.1998), rev'd on other grounds, 777 So. 2d 295 (Ala.2000); Smith v. State, 756 So. 2d 892, 904 (Ala.Cr.App. 1998), aff'd, 756 So. 2d 957 (Ala.2000); Roberts v. State, 735 So. 2d 1244 (Ala.Cr.App. 1997); Price v. State, 725 So. 2d 1003 (Ala. Cr.App.1997), aff'd, 725 So. 2d 1063 (Ala. 1998), cert. denied, 526 U.S. 1133, 119 S. Ct. 1809, 143 L. Ed. 2d 1012 (1999); Williams v. State, 710 So. 2d 1276 (Ala.Cr. App.1996), aff'd, 710 So. 2d 1350 (Ala.1997), cert. denied, 524 U.S. 929, 118 S. Ct. 2325, 141 L. Ed. 2d 699 (1998); Ivery v. State, 686 So. 2d 495 (Ala.Cr.App.1996); Burton v. State, 651 So. 2d 641 (Ala.Cr.App.1993), aff'd, 651 So. 2d 659 (Ala.1994), cert. denied, 514 U.S. 1115, 115 S. Ct. 1973, 131 L. Ed. 2d 862 (1995). Thus, we find no error in the trial court "double counting" robbery as both an element of the offense and as an aggravating circumstance.
XXII.
Jackson contends that the trial court erred in failing to consider evidence presented regarding the existence of statutory and nonstatutory mitigating circumstances. (Issue VII in Jackson's brief to this court.) Because Jackson did not *1035 object to the trial court's alleged failure, we may review this claim only for plain error. See Rule 45A, Ala.R.App.P.
"`A sentencer in a capital case may not refuse to consider or be "precluded from considering" mitigating factors.' Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982)(quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978)). The defendant in a capital case generally must be allowed to present any relevant mitigating evidence regarding the defendant's character or record and any of the circumstances of the offense, and consideration of that evidence is a constitutionally indispensable part of the process of inflicting the penalty of death. California v. Brown, 479 U.S. 538, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987); Ex parte Henderson, 616 So. 2d 348 (Ala. 1992); Haney v. State, 603 So. 2d 368 (Ala.Cr.App.1991), aff'd, 603 So. 2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S. Ct. 1297, 122 L. Ed. 2d 687 (1993); Williams v. State, 710 So. 2d 1276 (Ala. Cr.App., 1996), aff'd, 710 So. 2d 1350 (Ala.1997), cert. denied, 524 U.S. 929, 118 S. Ct. 2325, 141 L. Ed. 2d 699 (1998). Although the trial court is required to consider all mitigating circumstances, the decision whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer. Carroll v. State, 599 So. 2d 1253 (Ala.Cr.App.1992), aff'd, 627 So. 2d 874 (1993), cert. denied, 510 U.S. 1171, 114 S. Ct. 1207, 127 L. Ed. 2d 554 (1994). See also Ex parte Harrell, 470 So. 2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 276 (1985). Moreover, the trial court is not required to specify in its sentencing order each item of proposed nonstatutory mitigating evidence that it considered and found not to be mitigating. Morrison v. State, 500 So. 2d 36 (Ala.Cr.App.1985), aff'd, 500 So. 2d 57 (Ala.1986), cert. denied, 481 U.S. 1007, 107 S. Ct. 1634, 95 L. Ed. 2d 207 (1987); Williams v. State."
Ingram v. State, 779 So. 2d 1225, 1246 (Ala. Cr.App.1999). See also Boyd v. State, 715 So. 2d 825 (Ala.Cr.App.1997), aff'd, 715 So. 2d 852 (Ala.), cert. denied, 525 U.S. 968, 119 S. Ct. 416, 142 L. Ed. 2d 338 (1998); Williams v. State, 710 So. 2d 1276 (Ala.Cr. App.1996), aff'd, 710 So. 2d 1350 (Ala.1997), cert. denied, 524 U.S. 929, 118 S. Ct. 2325, 141 L. Ed. 2d 699 (1998); Bush v. State, 695 So. 2d 70 (Ala.Cr.App.1995), aff'd, 695 So. 2d 138 (Ala.), cert. denied, 522 U.S. 969, 118 S. Ct. 418, 139 L. Ed. 2d 320 (1997).
A.
First, Jackson contends that the trial court failed to consider his good behavior and ability to adjust to prison life as a nonstatutory mitigating circumstance, in contravention of Skipper v. South Carolina, 476 U.S. 1, 5, 106 S. Ct. 1669, 1671, 90 L. Ed. 2d 1 (1986)("evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered as potentially mitigating ... [and] may not be excluded from the sentencer's consideration"). We disagree. In its sentencing order, the trial court stated:
"The defendant argues as a nonstatutory mitigating circumstance that he has shown an ability to adapt to the structured environment of jail or prison and that he has exhibited good behavior while in jail. The evidence supports this nonstatutory mitigating circumstance but it is a weak circumstance. It also shows that the defendant had the ability to conduct himself properly and not engage in criminal conduct. He voluntarily chose that course of conduct."
(C. 1088.) (Emphasis added.)
Contrary to Jackson's contention, the trial court not only considered his ability to adapt to prison life, but found that it *1036 constituted a nonstatutory mitigating circumstance. Merely because the trial court found it to be a "weak" circumstance does not mean the court failed to consider it. A sentencing authority can assign whatever weight it deems appropriate to those mitigating circumstances it finds to exist. Rutledge v. State, 523 So. 2d 1087, 1103 (Ala.Cr.App.1987), rev'd on other grounds, 523 So. 2d 1118 (Ala.1988). Accordingly, we find no error, plain or otherwise, as to this claim.
B.
Second, Jackson contends that the trial court failed to consider his mental and emotional impairment as both statutory and nonstatutory mitigation. Specifically, Jackson contends that because he presented evidence that he was mentally retarded and was "easily led" by other people, the trial court was required to find the statutory mitigating circumstances that he was under the influence of extreme mental or emotional disturbance, see § 13A-5-51(2), Ala.Code 1975; that he was under extreme duress or the substantial domination of another person, see § 13A-5-51(5), Ala. Code 1975; and that he was unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, see § 13A-5-51(6), Ala.Code 1975. In addition, he contends that the trial court failed to consider the evidence of his mental impairment as a nonstatutory mitigating circumstance.
After reviewing the record, we find that the trial court considered all the evidence offered by Jackson in mitigation and did not restrict Jackson in any manner in his presentation of that evidence. Although the trial court did not find the existence of three statutory mitigating circumstances that Jackson claimed were present, the trial court's findings in this regard are fully supported by the record. The trial court's sentencing order states, in pertinent part:
"This Court is required to enter specific findings concerning the existence or nonexistence of each mitigating circumstance enumerated by statute. Mitigating circumstances are enumerated by statute in Section 13A-5-51, Ala.Code 1975. The Court hereby considers the existence or nonexistence of those mitigating circumstances in order as enumerated by the Code.
". . . .
"2. The capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. The defendant contended that this circumstance existed. The evidence showed that he was a special ed student while in school and was classified as EMR. This means he was considered educable mentally retarded. The evidence showed that his IQ level is between 69 and 72 [and] that he would be classified as suffering from mild mental retardation. The defense theory was that Jackson was under the influence of controlled substances and alcoholic beverages at the time of the offense and that he was under the domination of Reed and Martin. The evidence indicated, however, that Jackson knew exactly what he was doing. The only evidence of any drugs or alcohol was presented by Jackson. The only corroborative evidence of use of drugs or alcohol was use which occurred well after the offense occurred. The evidence showed that Jackson carried the gun, used the gun and there was no extreme emotional disturbance. Accordingly, the Court finds that this mitigating circumstance does not exist.
". . . .
"5. The defendant acted under extreme duress or under the substantial *1037 domination of another person. The Court finds that this mitigating circumstance does not exist. To the contrary, the evidence shows that he was not under any duress and certainly was under no domination of another person. He contended that Reed threatened him into committing the crime. However, Jackson had the gun and certainly had the opportunity to leave and could have protected himself against Reed if there was such a threat. Further, the evidence that the two left the store and escaped together indicates that he was not under any substantial domination of any person. They hid out together, hid their clothes together, caught a ride back to Brent together, and went out and celebrated afterwards together. The only evidence suggesting that the defendant acted under any duress or threat was from the defendant's statement. The defendant acted under no duress and under no domination of another person.
"6. The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. The Court finds that this circumstance does not exist. While the evidence showed that the defendant suffered from a low intellectual level there was no evidence to show that he did not appreciate the criminality of his conduct and there was no credible evidence presented to show that he could not conform his conduct to the requirements of law."
(C. 1085-88.) The court also found "little in the defendant's character in general to be a nonstatutory mitigating factor." (C. 1089.)
In Perkins v. State, [Ms. CR-93-1931, November 19, 1999] ___ So.2d ___ (Ala. Cr.App.1999), we stated the following regarding a similar claim:
"However, `[m]erely because an accused proffers evidence of a mitigating circumstance does not require the judge or the jury to find the existence of that fact. Mikenas [v. State, 407 So. 2d 892, 893 (Fla.1981)]; Smith [v. State, 407 So. 2d 894 (Fla.1981) ].' Harrell v. State, 470 So. 2d 1303, 1308 (Ala.Cr.App.1984), aff'd, 470 So. 2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 276 (1985). In Carroll v. State, 599 So. 2d 1253 (Ala.Cr.App.1992), aff'd, 627 So. 2d 874 (Ala.1993), cert. denied, 510 U.S. 1171, 114 S. Ct. 1207, 127 L. Ed. 2d 554 (1994), this court stated:
"`We fully recognize that "[a] factfinder is not bound by expert testimony `even if all of the witnesses are presented by only one side.'" Ellis v. State, 570 So. 2d 744, 752 (Ala.Cr.App. 1990). "In Alabama, opinion testimony of an expert witness is binding upon a jury only when such testimony concerns a subject which is exclusively within the knowledge of experts and the testimony is uncontroverted." Jefferson County v. Sulzby, 468 So. 2d 112, 116 (Ala.1985). "An expert's opinion, however, is not conclusive on the trial court, even though uncontroverted. See Kroger Co. v. Millsap, 280 Ala. 531, 196 So. 2d 380 (1967). Rather, a trial court must look to the entire evidence and its own observations in deciding factual issues." Williams v. City of Northport, 557 So. 2d 1272, 1273 (Ala.Civ.App.1989), cert. denied, [498] U.S. [822], 111 S. Ct. 71, 112 L. Ed. 2d 45 (1990). "Merely because an accused proffers evidence of a mitigating circumstance does not require the judge or the jury to find the existence of that fact." Harrell v. State, 470 So. 2d 1303, 1308 (Ala.Cr. App.1984), affirmed, 470 So. 2d 1309 *1038 (Ala.), cert. denied, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 276 (1985).'"
"599 So.2d at 1272."
___ So.2d at ___.
Here, the evidence supports the trial court's findings.[8] Jackson's own expert, Dr. Goff, found that Jackson was able to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law. Dr. Smith came to the same conclusion. Further, contrary to Jackson's contention, the mere fact that Dr. Goff found that Jackson was easily led and influenced by other people does not mandate the conclusion that Jackson was under extreme emotional disturbance or under duress or under the substantial domination of another person. Thus, the trial court was not required to find these mitigating circumstances.
Moreover, there is nothing to suggest that the trial court did not consider Jackson's mental impairment as nonstatutory mitigation. Although the court did not enumerate each piece of evidence submitted by Jackson regarding his mental impairment in the portion of its order addressing nonstatutory mitigating circumstances, such is not required, and does not mean that the court failed to consider the evidence. Roberts v. State, 735 So. 2d 1244, 1267 (Ala.Cr.App.1997). In Rutledge, supra, we stated:
"`The fact that the sentencing order does not refer to the specific types of nonstatutory "mitigating" evidence petitioner introduced indicates only the trial court's finding the evidence was not mitigating, not that such evidence was not considered.... What one person may view as mitigation, another may not.'"
523 So.2d at 1103-04, quoting Dobbert v. Strickland, 718 F.2d 1518, 1524 (11th Cir. 1983), cert. denied, 468 U.S. 1220, 104 S. Ct. 3591, 82 L. Ed. 2d 887 (1984). Further, in Bush, supra, we stated:
"Thus, the trial court's failure to list and to make findings in its sentencing order as to all of the alleged nonstatutory mitigating circumstances offered by the appellant indicates only that it found the evidence not mentioned to be not mitigating, not that the evidence was not considered."
695 So.2d at 89.
Accordingly, we find no error, plain or otherwise, as to this claim.
XXIII.
Jackson contends that the trial court improperly considered extrajudicial factors from the trials of his codefendants in sentencing him to death which, he says, violated his rights to confrontation, cross-examination, and a reliable and individualized sentencing determination. (Issue IV in Jackson's brief to this court.)
The record reveals that the trial court held a sentencing hearing and sentenced Jackson to death on December 5, 1997, approximately 10 months after the jury returned its February 6, 1997, advisory verdict. In those 10 months between Jackson's sentencing hearings, the trial judge who presided over Jackson's trial also presided over the trial and sentencing of Jackson's codefendant Alfred Reed and accepted a guilty plea from codefendant John Martin.
Jackson identifies three findings of fact regarding the circumstances surrounding *1039 the crime in the trial court's sentencing order in this case, which, he says, "clearly show that the court considered the evidence from Reed's and Martin's case[s] in making [its] sentencing determination" regarding Jackson. (Jackson's brief to this court, p. 33.) Those findings are: (1) the specific route Jackson, Reed, and Martin drove on the morning of the murder, including directions and road names; (2) the fact that "Reed and Jackson made their escape through the woods later removing portions of their clothing and leaving them in the woods" (C. 1084); and (3) that "Martin, upon hearing the [gun]shot, drove off." (C. 1084.) He maintains that the inclusion of these extraneous facts in the sentencing order "undeniably prejudiced [him] by making him appear more culpable for the crime with which he stood convicted." (Jackson's brief to this court, p. 35.)
Although we agree that the above-cited findings in the portion of the trial court's order describing the offense were not based on evidence contained in the record of Jackson's trial, we find the error to be harmless. In Sockwell v. State, 675 So. 2d 4 (Ala.Cr.App.1993), aff'd, 675 So. 2d 38 (Ala.1995), cert. denied, 519 U.S. 838, 117 S. Ct. 115, 136 L. Ed. 2d 67 (1996), we addressed an identical argument and stated:
"While some of the factual matters in the trial court's sentencing order were not based upon evidence contained in the record, we hold that error in the trial court's sentencing order is not so egregious as to require a new sentencing order.
"The purpose of requiring a trial court to issue a sentencing order in a capital case is to allow an appellate court to review a death sentence. See Fortenberry v. State, 545 So. 2d 129, 144 (Ala. Cr.App.1988), aff'd, 545 So. 2d 145 (Ala. 1989). `"As long as the trial judge properly exercises his discretion and the facts indicating the death penalty are `so clear and convincing that virtually no reasonable person could differ,' a harmless error analysis can be used."' Id. (citations omitted). In this case, there was ample evidence and facts adduced from that evidence in this case that the murder was committed for pecuniary gain, justifying the imposition of a death sentence. Therefore, we must determine whether the trial court's referral to nonrecord evidence was harmless error.
"While the trial court refers to some extraneous matters in the sentencing order, it is clear that the trial court considered the statutory and nonstatutory mitigating circumstances in imposing sentence upon the appellant. Additionally, the trial court found only one aggravating circumstancethat the murder was committed for pecuniary gain. The sentencing order reflects that the trial court weighed the mitigating circumstances and the aggravating circumstance and there is no evidence that the trial court failed to consider the mitigating circumstances. The sentencing order does not reflect that the court considered any extraneous matter in imposing sentence against the appellant. Therefore, because the extraneous matters did not affect the trial court's proper weighing of the aggravating and mitigating circumstances, we find that the court's referral to some extraneous matter in its sentencing order was harmless error."
675 So.2d at 30.
Similarly, here, Jackson has failed to show that the inclusion in its order of facts from outside the record affected the trial court's weighing of the aggravating and mitigating circumstances or prejudiced its sentencing determination. Although Jackson contends that these facts made him *1040 more "culpable" in the eyes of the trial court, we fail to see how the names of the roads that Jackson, Reed, and Martin drove on the morning of the murder, or the fact that Martin drove away when he heard the gunshot, in any way impacted on Jackson's "culpability" for the crime. In addition, while Jackson's removal and discarding of portions of his clothing in the woods after the crime may arguably relate to his culpabilityand the trial court cited this fact in its findings regarding the statutory mitigating circumstance that Jackson was acting under extreme duress or under the substantial domination of another personwe do not believe that this single extraneous matter influenced the trial court in making its sentencing determination. The trial court clearly considered all the statutory and nonstatutory mitigating circumstances offered by Jackson, see Part XXII of this opinion; the court found only one aggravating circumstance, that the murder was committed during the course of a robbery in the first degree; and the record reflects that the court properly weighed the mitigating and aggravating circumstances as required by law, see Part XXVI of this opinion.
As there is nothing in the record to suggest that the complained-of extraneous facts adversely affected the trial court's sentencing determination, we find that the inclusion of those facts in the sentencing order was harmless beyond a reasonable doubt.
XXIV.
Jackson contends that Alabama's method of execution constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. (Issue XXVII in Jackson's brief to this court.) In Jackson v. State, [Ms. CR-97-2050, May 28, 1999] ___ So.2d ___ (Ala.Cr.App.1999), this court stated the following regarding this issue:
"The appellant's seventeenth argument is that Alabama's method of execution constitutes cruel and unusual punishment. However, both Alabama courts and the United States Supreme Court have repeatedly held that the death penalty is not per se cruel and unusual punishment and that electrocution as a means of capital punishment does not constitute cruel and unusual punishment. Williams v. State, 627 So. 2d 985 (Ala.Cr.App.1991), aff'd, 627 So. 2d 999 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S. Ct. 1387, 128 L. Ed. 2d 61 (1994); Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972); Boykin v. State, 281 Ala. 659, 207 So. 2d 412 (1968), reversed on other grounds, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)."
___ So.2d at ___. See also Taylor v. State, [Ms. CR-97-2531, February 4, 2000] ___ So.2d ___ (Ala.Cr.App.2000); Williams v. State, [Ms. CR-98-1734, December 10, 1999] ___ So.2d ___ (Ala.Cr.App.1999); Woods v. State, 789 So. 2d 896 (Ala.Cr.App. 1999); Griffin v. State, 790 So. 2d 267 (Ala. Cr.App.1999); Wilson v. State, 777 So. 2d 856 (Ala.Cr.App.1999); Bryant v. State, [Ms. CR-98-0023, November 19, 1999] ___ So.2d ___ (Ala.Cr.App.1999); Minor v. State, 780 So. 2d 707 (Ala.Cr.App.1999); Duncan v. State, [Ms. CR-95-1544, September 17, 1999] ___ So.2d ___ (Ala.Cr. App.1999); Ingram v. State, 779 So. 2d 1225 (Ala.Cr.App.1999); Maples v. State, 758 So. 2d 1 (Ala.Cr.App.), aff'd, 758 So. 2d 81 (Ala.1999); Drinkard v. State, 777 So. 2d 225 (Ala.Cr.App.1998), rev'd on other grounds, 777 So. 2d 295 (Ala.2000); Smith v. State, 756 So. 2d 892, 904 (Ala.Cr.App. *1041 1998), aff'd, 756 So. 2d 957 (Ala.2000); Stewart v. State, 730 So. 2d 1203 (Ala.Cr. App.1996), aff'd, 730 So. 2d 1246 (Ala.), cert. denied, 528 U.S. 846, 120 S. Ct. 119, 145 L. Ed. 2d 101 (1999); Scott v. State, 728 So. 2d 164 (Ala.Cr.App.1997), aff'd, 728 So. 2d 172 (Ala.1998), cert. denied, 528 U.S. 831, 120 S. Ct. 87, 145 L. Ed. 2d 74 (1999); Williams v. State, 627 So. 2d 985 (Ala.Cr. App.1991), aff'd, 627 So. 2d 999 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S. Ct. 1387, 128 L. Ed. 2d 61 (1994). Thus, Jackson's argument is meritless.
XXV.
Finally, Jackson contends that the cumulative effect of all the errors allegedly committed in the trial of his case violated his rights to due process and to a fair trial. (Issue XXVIII in appellant's brief.) We do not agree. The claimed errors to which Jackson refers have been determined to be without merit and we likewise find that the cumulative effect of those alleged errors does not require reversal. "Because no single instance of alleged error constituted reversible error, we will not consider the cumulative effect to be any greater." Burgess v. State, [Ms. CR-94-0475, December 18, 1998] ___ So.2d ___, ___ (Ala.Cr.App.1998), aff'd. in pertinent part, rev'd on other grounds, [Ms. 1980810, July 21, 2000] ___ So.2d ___ (Ala.2000), citing Boyd v. State, 715 So. 2d 825, 851 (Ala.Cr.App.1997), aff'd, 715 So. 2d 852 (Ala.), cert. denied, 525 U.S. 968, 119 S. Ct. 416, 142 L. Ed. 2d 338 (1998). See also Woods v. State, 789 So. 2d 896 (Ala.Cr. App.1999); Griffin v. State, 790 So. 2d 267 (Ala.Cr.App.1999); Bryant v. State, [Ms. CR-98-0023, November 19, 1999] ___ So.2d ___ (Ala.Cr.App.1999); Minor v. State, 780 So. 2d 707 (Ala.Cr.App.1999); Whitehead v. State, 777 So. 2d 781 (Ala.Cr. App.1999); Melson v. State, 775 So. 2d 857 (Ala.Cr.App.1999).
XXVI.
In accordance with Rule 45A, Ala.R.App. P., we have examined the record for any plain error with respect to Jackson's capital-murder conviction and death sentence, whether or not brought to our attention or to the attention of the trial court. We find no plain error or defect in the proceedings, either in the guilt phase or in the sentencing phase of the trial.
We have also reviewed Jackson's sentence in accordance with § 13A-5-53, Ala. Code 1975, which requires that, in addition to reviewing the case for any error involving Jackson's capital-murder conviction, we shall also review the propriety of the death sentence. This review shall include our determination of the following: (1) whether any error adversely affecting the rights of the defendant occurred in the sentence proceedings; (2) whether the trial court's findings concerning the aggravating and mitigating circumstances were supported by the evidence; and (3) whether death is the appropriate sentence in the case. Section 13A-5-53(b) requires that, in determining whether death is the proper sentence, we determine: (1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether an independent weighing by this court of the aggravating and mitigating circumstances indicates that death is the proper sentence; and (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases in which the death penalty was imposed, considering both the crime and the defendant.
After the jury convicted Jackson of the capital offense charged in the indictment, a separate sentencing hearing was held before the jury in accordance with §§ 13A-5-45 and -46, Ala.Code 1975. After hearing evidence concerning aggravating and mitigating circumstances; after being *1042 properly instructed by the trial court as to the applicable law; and after being correctly advised as to its function in reference to the finding of any aggravating and mitigating circumstances, the weighing of those circumstances, if appropriate, and its responsibility in reference to the return of an advisory verdict, the jury recommended a sentence of death by a vote of 10-2.
Thereafter, the trial court held another hearing, in accordance with § 13A-5-47, Ala.Code 1975, to aid it in determining whether it would sentence Jackson to life imprisonment without parole or to death as recommended by the jury. The trial court ordered and received a written presentence investigation report, as required by § 13A-5-47(b). Upon conclusion of the hearing, the trial court entered specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, Ala. Code 1975, each mitigating circumstance enumerated in § 13A-5-51, Ala.Code 1975, and any mitigating circumstance found to exist under § 13A-5-52, Ala.Code 1975, as well as written findings of fact summarizing the offense.
In its findings, the trial court found the existence of one statutory aggravating circumstance: that the murder was committed while Jackson was engaged in the commission of a robbery in the first degree, see § 13A-5-49(4), Ala.Code 1975. The trial court found the existence of two statutory mitigating circumstances: (1) that Jackson had no significant history of prior criminal activity, see § 13A-5-51(1), Ala. Code 1975; and (2) that Jackson was 19 years old at the time of the crime, see § 13A-5-51(7), Ala.Code 1975. In addition, the trial court found the following to constitute nonstatutory mitigation: (1) that Jackson exhibited good behavior while in jail awaiting trial; and (2) that Jackson apologized to the victim's family and his own family during the sentencing hearing. The trial court also noted that it found "little" in Jackson's character to constitute nonstatutory mitigation.
The trial court's sentencing order reflects that after considering all the evidence presented, the arguments of counsel, the presentence report, and the advisory verdict of the jury, and after weighing the aggravating circumstance against the statutory and nonstatutory mitigating circumstances in the case, the trial court found that the aggravating circumstance outweighed the statutory and nonstatutory mitigating circumstances. Accordingly, the trial court sentenced Jackson to death. The trial court's findings concerning the aggravating circumstance and the mitigating circumstances are supported by the evidence.
Jackson was convicted of the offense of murder committed during the course of a robbery in the first degree. This offense is defined by statute as a capital offense. See § 13A-5-40(a)(2), Ala.Code 1975. We take judicial notice that similar crimes have been punished capitally throughout the state. See, e.g., Sneed v. State, 783 So. 2d 841 (Ala.Cr.App.1999); Hardy v. State, [Ms. CR-95-0589, March 26, 1999] ___ So.2d ___ (Ala.Cr.App.1999); McNair v. State, 706 So. 2d 828 (Ala.Cr.App.1997), cert. denied, 523 U.S. 1064, 118 S. Ct. 1396, 140 L. Ed. 2d 654 (1998); Henderson v. State, 583 So. 2d 276 (Ala.Cr.App.1990), aff'd, 583 So. 2d 305 (Ala.1991), cert. denied, 503 U.S. 908, 112 S. Ct. 1268, 117 L. Ed. 2d 496 (1992); Kuenzel v. State, 577 So. 2d 474 (Ala.Cr.App.1990), aff'd, 577 So. 2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S. Ct. 242, 116 L. Ed. 2d 197 (1991). In fact, two thirds of Alabama's death sentences have been imposed on defendants convicted of capital murder arising out of murder-robbery. McNair, supra.
After carefully reviewing the record of the guilt phase and the sentencing *1043 phase of Jackson's trial, we find no evidence that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. We conclude that the findings and conclusions of the trial court are amply supported by the evidence. We have independently weighed the aggravating circumstance against the statutory and nonstatutory mitigating circumstances, and we concur in the trial court's judgment that the aggravating circumstance outweighs the mitigating circumstances, and that death is the appropriate sentence in this case. Considering the crime committed, and Jackson, we find that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases.
Jackson's conviction and sentence of death are affirmed.
AFFIRMED.
McMILLAN, COBB, BASCHAB, and FRY, JJ., concur.
NOTES
[1] Reed was convicted of murder made capital because it was committed during the course of a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975, and was sentenced to life imprisonment without parole. We affirmed Reed's conviction and sentence in an unpublished memorandum issued on March 26, 1999. See Reed v. State, (No. CR-97-1380) 767 So. 2d 412 (Ala.Cr.App.1999)(table).
[2] That plea was withdrawn before the case was submitted to the jury.
[3] Rule 19.3, Ala.R.Crim.P., was subsequently amended, in December 1997, after Jackson's trial, to conform with § 12-16-9, Ala.Code 1975.
[4] Jackson does contend that he objected to the court's instructions after the voir dire examination of the first panel of prospective jurors; however, the record belies this contention. The record reveals that what Jackson characterizes as an objection to the content of the court's instruction was actually an argument in support of Jackson's challenge for cause of one of the prospective jurors, not an objection to the court's instructions.
[5] Rule 9.1, Ala.R.Crim.P., has since been amended to allow a capital defendant to waive his right to be present at all stages of the proceedings except sentencing.
[6] We also note that it is well settled that "`"[a]s long as one reason given by the prosecutor is sufficiently race-neutral, a determination concerning any other reason given need not be made."'" Brown v. State, 705 So. 2d 871, 874 (Ala.Cr.App.1997), quoting Wood v. State, 715 So. 2d 812, 816 (Ala.Cr. App.1996), aff'd, 715 So. 2d 819 (Ala.), cert. denied, 525 U.S. 1042, 119 S. Ct. 594, 142 L. Ed. 2d 536 (1998), quoting in turn, Johnson v. State, 648 So. 2d 629, 632 (Ala.Cr.App. 1994). The State provided sufficiently raceneutral reasons for striking D.C., T.J., and J.S.the three jurors for which the State cited a criminal record as one of its reasons aside from their criminal histories; thus, a determination concerning the criminal histories as a race-neutral reason is, in fact, unnecessary.
[7] Arguably, Smith's testimony was not even incriminating. Nowhere in Smith's testimony is Jackson implicated in the crime.
[8] While the trial court stated that Jackson and Reed "hid their clothes together" after the crimea fact not supported by the evidence introduced at Jackson's trial, see Part XXIII of this opinion, wherein we hold that the inclusion of such extraneous matters was harmless errorthe trial court's finding that Jackson was not acting under duress or under the substantial domination of another person was fully supported by other evidence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441483/ | 3 A.3d 671 (2010)
COM.
v.
ZIMMERMAN.
No. 3 MAL (2010).
Supreme Court of Pennsylvania.
August 11, 2010.
Disposition of Petition for Allowance of Appeal Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1500463/ | 416 F. Supp. 1387 (1976)
Glenn MARTIN et al., Plaintiffs,
v.
PENN LINE SERVICE, INC., Defendant.
Civ. A. No. 75-1001.
United States District Court, W. D. Pennsylvania.
July 20, 1976.
*1388 Robert L. Walker, Meadville, Pa., for plaintiffs.
Joseph F. McDonough, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for defendant.
OPINION
GOURLEY, Senior District Judge:
This is a civil action by four helicopter pilots under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. to recover unpaid overtime compensation and an amount equal to such unpaid compensation as liquidated damages together with reasonable counsel fees.
The plaintiffs, Glenn Martin, Neal K. Varner, Michael M. Kelly, and Paul J. Buksar, all former employees of defendant, assert that during the period from 1972 through 1975 the defendant, Penn Line Service, Inc., willfully and without any basis or justification, failed to pay them overtime compensation.
The defendant denies that it violated any of the provisions of the Act and contends that plaintiffs were employed as salaried professionals to pilot helicopters and to manage a field operation incident thereto. More particularly, defendant alleges that the pilots were employed in a bona fide executive, administrative, or professional capacity, and as such, were not entitled to overtime compensation since they fell within the exemption under Section 213(a)(1) of said Act.[1] The defendant believes that its decision to treat the plaintiffs as being exempt *1389 status was most proper and in conformity with the advice and interpretation issued by the Helicopter Association of America and an opinion letter issued on May 25, 1971 by the Wage and Hour Division.
The plaintiffs' believe that a careful examination of the payroll system used reveals defendant's willful attempt to circumvent the law. A review of the same unquestionably reflects that defendant's method and manner of computing an employee's work time was complex, involved, and most unusual in that the actual hours worked were never fed into the electronic device which issued the payment checks. To fully understand the payroll system employed by the defendant would require a most extensive and detailed explanation. However, it is sufficient for the purposes of this proceeding to know that in 1972 the plaintiffs, after working five week days, were instructed to enter an additional six hours on their time reports if they worked any part of the weekend regardless of the number of extra hours worked. In 1973 the plaintiffs were instructed to add to their time reports if they worked five full days, an additional six hours if they worked on Saturday and six more hours if they worked on Sunday, regardless of the actual hours worked each day. From April, 1974 to December 15, 1974, the plaintiffs were paid strictly on an hourly basis and in 1975 the payroll system again reverted to what it was in 1972.
The law is well settled that the provisions of the Act relating to overtime compensation do not apply to an employee who is employed in a bona fide executive, administrative, or professional capacity. 29 U.S.C.A. § 213. Equally settled is the principle of law that the exemptions contained in the Act are to be narrowly construed against the employer. Shultz v. Louisiana Trailer Sales, 428 F.2d 61 (5th Cir. 1970), cert. den'd 400 U.S. 902, 91 S. Ct. 139, 27 L. Ed. 2d 139.
The question for this court's determination is whether under all the facts and circumstances plaintiffs were employed in an executive, administrative, or professional capacity. Plaintiffs were most experienced and capable pilots who performed such duties as forest fire control, strip mine seeding, powerline patrols, powerline brush spraying, and aerial photography. Since much of their flight time, which averaged between 30-40% of their work time, depended very heavily on the season as well as the weather, plaintiffs would often be required to work irregular, variable, and unusually long hours, sometimes from dawn to darkness. While performing their work on the helicopter, the plaintiffs were provided with a ground crew and crew leader whose duties were to keep the pilots sufficiently supplied with gasoline, oils, and spraying solution and any other needs required.
Often, when inclement weather and conditions made flying impractical, plaintiffs would be assigned menial tasks as common laborers for jobs which required very limited training or understanding. These duties included cleaning and working on their equipment; repairing, maintaining, and servicing trucks used by the ground crew; spraying and cleaning around the facilities where the helicopters were kept; maintaining the supplies and needs of the helicopter; increasing sales efforts with potential customers; and communicating with third persons in an effort to secure settlements from those who claimed to be damaged as a result of the helicopter operations.
It is the considered judgment of the court that plaintiffs were not acting in an executive, administrative, or professional capacity. Each of the plaintiffs' duties were known. Their work assignments as to what they must do, when and where, were all determined by their pilot supervisor. Moreover, no direction was required or needed over the ground crew, who, unquestionably, knew their duties as to what the needs and requirements of the helicopter would be on a given assignment.
It is not the nature of the employer's business which determines whether the employees act in an executive, administrative, *1390 or professional capacity but instead it is determined by the character, type, and extent of the activities and duties performed by said employees. Very simply, in the instant proceeding the evidence reveals that the plaintiffs were merely highly trained technicians who exercised no control, discretion, or administrative functions in the performance of their duties. The court has reviewed the evidence and is unable to find any basis to conclude that the plaintiffs satisfied any of the standards set out in 29 C.F.R. § 541.102.[2]
Nor does the record support any basis to conclude that plaintiffs performed any administrative duties or engaged in the exercise of any discretion or independent judgment. On the contrary, plaintiffs performed their duties through the reliance on their skills and techniques acquired by their training and experience. Without a doubt, plaintiffs' decisions and performances were guided within the context of those skills and training. However, all decisions or judgments which would necessarily involve a major policy change could only be taken after consultation with their superior. See: Reeves v. International Telephone & Telegraph, D.C., 357 F. Supp. 295 (1973).
Although plaintiffs have satisfied the court that they were entitled to be compensated for their overtime while in the employ of the defendant, they have not established that the actions of the defendant were willful and that said defendant knowingly and willfully intended to deprive the employees of rights to which they were entitled. On the contrary, the record reflects that the defendant, in good faith, believed plaintiffs were in the exempt status under the Act.
In view of the above, a right exists on behalf of the plaintiffs to recover their overtime compensation for the period August 11, 1973 through August 11, 1975. Since defendant's actions in the instant proceeding can in no way be viewed as willful, no basis exists for the awarding of liquidated damages. 29 U.S.C.A., § 260; Bable v. T. W. Phillips Gas & Oil Company, 287 F.2d 21 (3rd Cir. 1961); Rau v. Darling's Drug Store, 388 F. Supp. 877 (W.D.Pa.1975). This proceeding was instituted on August 11, 1973, and accordingly, plaintiffs right to recover damages is limited to two years instead of three. The statute of limitations is three years prior to the date an action is instituted for liquidated damages, and two years for general claims. 29 U.S.C.A. § 255.
Plaintiffs are entitled to recover as follows:
Glenn Martin:
August 12, 1973 to Oct. 28, 1973
81 hours at $5.68 per hour × 1.5 $ 690.12
Week ending Nov. 18, 1973
2 hours at $5.77 per hour × 1.5 17.31
Dec. 1974 to April 15, 1975
50 hours at $6.25 per hour × 1.5 468.75
_________
$1,176.18
Neal Varner:
August 12, 1973 to Dec. 31, 1973
49 hours at $4.62 per hour × 1.5 339.57
Jan. 1, 1974 to March 31, 1974
60 hours at $4.62 per hour × 1.5 415.80
April 1, 1974 to Aug. 1974
62 hours at $4.91 per hour × 1.5 456.63
_________
$1,212.00
Paul Buksar:
August 12, 1974 to Dec. 31, 1974
197 hours at $5.20 per hour × 1.5 $1,536.60
Jan. 1, 1974 to March 31, 1974
78 hours at $5.20 per hour × 1.5 608.40
_________
$2,145.00
*1391
Michael Kelly:
August 12, 1973 to Dec. 31, 1973
56 hours at $5.19 per hour × 1.5 $ 435.96
Jan. 1, 1974 to March 31, 1974
72.5 hours at $5.19 per hour × 1.5 564.41
_________
$1,000.37
The defendant has also filed a counterclaim against each of the plaintiffs for alleged wages paid over and above what each of them should have been paid during the period from April 1, 1974 to December 15, 1974. The court can find no basis to sustain the defendant's claim against any of the plaintiffs.
Counsel for the plaintiffs is entitled to reasonable attorney fees.
Findings of fact and conclusions of law have not been separately stated but are included in the body of the foregoing opinion as specifically authorized by Rule 52(a) of the Federal Rules of Civil Procedure.
An appropriate Order is entered.
NOTES
[1] Title 29 U.S.C.A. § 213(a)(1) provides in pertinent part:
"(a) The provisions of sections 206 and 207 of this title shall not apply with respect to
"(1) any employee employed in a bona fide executive, administrative, or professional capacity . . .. (as such terms are defined and delimited from time to time by regulations of the Secretary)"
[2] 29 C.F.R. § 541.102 provides in pertinent part as follows:
"(b) For example, it is generally clear that such work as the following is exempt work when it is performed by an employee in the management of his department or the supervision of the employees under him: Interviewing, selecting, and training of employees; setting and adjusting the rates of pay and hours of work; directing their work; maintaining the production or sales records for use in supervision or control; appraising their productivity and efficiency for the purpose of recommending promotions or other changes in their status; handling their complaints and grievances and disciplining them when necessary; planning the work; determining the techniques to be used; apportioning the work among the workers; determining the type of materials, supplies, machinery or tools to be used or merchandise to be bought, stocked and sold; . ." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608128/ | 662 N.W.2d 60 (2003)
255 Mich. App. 659
Marquis DYER, Plaintiff-Appellant,
v.
Edward P. TRACHTMAN, D.O., Defendant-Appellee.
Docket No. 235114.
Court of Appeals of Michigan.
Submitted January 14, 2003, at Lansing.
Decided March 13, 2003, at 9:05 a.m.
Released for Publication May 15, 2003.
Robert J. Dinges & Associates (by Robert J. Dinges), Detroit, for the plaintiff.
Rutledge, Manion, Rabaut, Terry & Thomas, P.C. (by Paul J. Manion and Amy E. Schlotterer), Detroit, for the defendant.
Before: COOPER, P.J., and BANDSTRA and TALBOT, JJ.
*61 BANDSTRA, J.
Plaintiff appeals as of right the trial court's order granting summary disposition in favor of defendant and denying plaintiff's motion to amend the complaint. We affirm in part, reverse in part, and remand.
Plaintiff alleged that he was injured in the course of an independent medical examination (IME) conducted by defendant for an unrelated civil action. Plaintiff asserted that, before the examination, he told defendant that he had recently had surgery to repair a tear in the superior labrum of his right shoulder and that the surgeon had placed restrictions on the movement of plaintiff's right arm and shoulder, particularly instructing plaintiff to avoid lifting the arm above forty-five degrees. Plaintiff further asserted that during the course of the examination defendant nonetheless forcefully rotated plaintiff's right arm and shoulder ninety degrees, detaching the labrum from the right shoulder and requiring another surgery to repair the damage.
Plaintiff's original complaint alleged professional negligence against defendant. Defendant moved for summary disposition, arguing that there was no physician-patient relationship between plaintiff and defendant associated with the IME. Plaintiff moved to amend the complaint to include a claim of ordinary negligence. The trial court granted defendant's motion, agreeing with defendant that there was no physician-patient relationship and that a claim of professional negligence could not be brought. The trial court further denied plaintiff's motion to amend the complaint, concluding that it would be futile to do so because any claim of negligence against the physician would be a claim of professional negligence requiring a physician-patient relationship.[1]
Although the trial court granted defendant's motion for summary disposition pursuant to MCR 2.116(C)(10), because we find no indication that the trial court reviewed evidence outside the pleadings in ordering summary disposition, we review this matter under MCR 2.116(C)(8), which is the correct rule under these circumstances.[2] A trial court's decision to grant *62 summary disposition pursuant to MCR 2.116(C)(8) is reviewed de novo, to determine "whether the plaintiff has stated a claim upon which relief can be granted." Beaudrie v. Henderson, 465 Mich. 124, 130, 631 N.W.2d 308 (2001).
A physician-patient relationship is a prerequisite for a professional negligence or malpractice cause of action against a physician. Hill v. Kokosky, 186 Mich.App. 300, 302-303, 463 N.W.2d 265 (1990). In an IME context, there is no physician-patient relationship and there can be no liability for professional negligence or medical malpractice. See Rogers v. Horvath, 65 Mich.App. 644, 647, 237 N.W.2d 595 (1975) ("[T]he defendant did not owe plaintiff any duty arising from a physician-patient relationship.... [W]e hold that the physician in such a case does not owe such a duty of care as will subject him to liability for malpractice."). While Rogers is not binding, see MCR 7.215(I)(1), we note that it is consistent with cases from other jurisdictions,[3] we find it persuasive and we adopt its reasoning and result. Accordingly, the trial court appropriately granted defendant's motion for summary disposition of plaintiff's professional negligence cause of action as stated in the original complaint.
However, plaintiff's attempt to allege ordinary negligence against defendant through the amended complaint presents a different question. The trial court denied the motion to file the amended complaint on the grounds of futility, reasoning that an ordinary-negligence claim could not be supported under the facts alleged. Again, this is a question of law we review de novo. Gunsell v. Ryan, 236 Mich.App. 204, 208, 599 N.W.2d 767 (1999). We disagree with the trial court.
In Rogers, supra, the Court stated that its rule against malpractice claims arising from an IME did not necessarily extend to other theories of liability: "This is not to say that a physician who examines a person for reasons other than diagnosis or treatment and for the benefit of some one other than the examinee owes no duty of due care to that person." Rogers, supra at 647, 237 N.W.2d 595. However, as noted earlier, Rogers is not controlling. Further, this bare statement, presented without any citation of authority or further analysis, was dictum not addressing a question presented by the facts before the Court. We thus turn to other case law in determining the issue.
Both parties concede that there is no Michigan precedent addressing the situation presented here, where a plaintiff alleges that a physician conducting an IME caused physical harm to the plaintiff during the examination. In the only reported Michigan cases where a plaintiff alleged damages against an IME physician, the contention was that the physician had failed to appropriately conduct the examination and thus failed to properly diagnose a condition. See id. at 645-646, 237 N.W.2d 595; see also Sexton v. Petz, 170 Mich.App. 561, 565-566, 428 N.W.2d 715 (1988); MacDonald v. Barbarotto, 161 *63 Mich.App. 542, 549-550, 411 N.W.2d 747 (1987).
Turning to precedent from other states, we find support for plaintiff's argument that a claim for negligence is valid under the facts alleged here. In Greenberg v. Perkins, 845 P.2d 530, 532 (Colo., 1993), the plaintiff was required by an IME physician to undergo a series of physical tests with a third party following the IME, and those further tests resulted in back problems and surgery. Reviewing precedents from other jurisdictions, the Colorado Supreme Court recognized the `"general rule' that in the absence of a physician-patient relationship a physician owes no duty to an examinee." Id. at 535. The court nonetheless concluded that "cases from other jurisdictions uniformly recognize that even in the absence of a physician-patient relationship, a physician owes a duty to the person being examined to exercise professional skill so as not to cause harm to that person by negligently performing the examination." Id. at 536. The court adopted that approach, reasoning:
This conclusion is in accord with the principle that a physician's duty is commensurate with the type and degree of responsibility that he assumes. Thus, if a physician undertakes to diagnose, treat, or otherwise care for a person, an action will lie if he performs these functions negligently. So too, if the physician undertakes to examine a person, even if he does so for the sole benefit of a third party, he will owe a duty to the examinee to exercise professional skill in conducting the examination and will be liable for injuries that result from negligent performance of this function. [Id.]
In Ramirez v. Carreras, 10 S.W.3d 757, 760 (Tex.App., 2000), the plaintiff alleged that a doctor injured him while performing an IME related to a worker's compensationclaim. The court reasoned that "[t]he duty not to injure is entirely different in scope and application from the standard of care in medical negligence causes of action." Id. The court recognized that, in the absence of a physician-patient relationship, "the physician cannot be liable for professional negligence because he has no duty to exercise professional care." Id. at 761. Nonetheless, a "duty not to injure" remains, one that "is violated only by an affirmative act which causes injury." Id. at 762.
Thus, when a physician examines a nonpatient for the benefit of a third party, the physician is not required to use professional medical care, and thus may not be held liable for professional negligence, but is required to perform the examination in such a manner so as not to injure the examinee. [Id.]
Greenberg and Ramirez find support, albeit in dicta, in a number of cases from other jurisdictions.[4] We find these precedents to be persuasive. A physician conducting an IME does not enter into a physician-patient relationship with the examinee. Thus, the law does not impose any general duty to examine, diagnose, or treat the examinee in a professional manner, at the risk of liability for malpractice. Nonetheless, the physician does voluntarily accept a much lesser duty to conduct the IME in a manner that will not affirmatively cause physical harm to the examinee during the examination. Accordingly, a physician can be liable if, because of the *64 physician's negligence, the IME results in such harm to the examinee.[5]
In Ramirez, supra at 763-764, the court concluded that the duty not to injure is a "strict duty" that is violated whenever physical harm occurs during an IME. We disagree. Liability cannot be imposed against a physician who does nothing negligent, just because some physical injury occurs during an IME, without any further analysis. The fact-finder must determine what actually occurred during the IME and decide whether physical injury proximately resulted from some negligent act on the part of the physician. The present case is illustrative because it presents many questions regarding what plaintiff told defendant, what defendant did during the IME, whether defendant's actions were negligent,[6] and how defendant's actions related to any injury suffered by plaintiff.
We affirm the trial court's order granting summary disposition against plaintiff's original complaint that alleged professional negligence (medical malpractice). We reverse the order denying plaintiff's motion to file an amended complaint alleging ordinary negligence, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
NOTES
[1] Plaintiff's original and amended complaints both contained liability theories other than professional or ordinary negligence. On appeal, however, plaintiff ignores all but one such theory and, therefore, any claim that the trial court erred in dismissing the original complaint by failing to allow amendment of the complaint to include those theories has been waived. Prince v. MacDonald, 237 Mich.App. 186, 197, 602 N.W.2d 834 (1999). Plaintiff briefly mentions his contention below that defendant was liable under a third-party beneficiary theory, but that argument is not contained within the statement of questions presented as required by MCR 7.212(C)(5). Further, plaintiff presents no authority upon which we could conclude that a third-party contract theory is viable under facts even remotely similar to this case. For both these reasons, we conclude that defendant has waived any argument he might have had regarding the third-party beneficiary theory of liability. See Wilson v. Taylor, 457 Mich. 232, 243, 577 N.W.2d 100 (1998); Caldwell v. Chapman, 240 Mich.App. 124, 132, 610 N.W.2d 264 (2000). Upon remand, therefore, plaintiff is entitled to file an amended complaint alleging only a negligence theory of liability against defendant consistent with the remainder of this opinion.
[2] In granting summary disposition, the trial court essentially found that defendant owed no duty to plaintiff. Whether a defendant owes any duty to a plaintiff to avoid negligent conduct is a question of law for the court to determine. Simko v. Blake, 448 Mich. 648, 655, 532 N.W.2d 842 (1995). "Where no legal duty exists, the plaintiff has failed to state a claim upon which relief can be granted and summary disposition in favor of the defendant is appropriate pursuant to MCR 2.116(C)(8)." Schmidt v. Youngs, 215 Mich.App. 222, 224-225, 544 N.W.2d 743 (1996).See also Energy Reserves, Inc. v. Consumers Power Co., 221 Mich.App. 210, 216, 561 N.W.2d 854 (1997) (where summary disposition is granted under the wrong rule, this Court will review the order under the correct rule).
[3] See, e.g., Martinez v. Lewis, 969 P.2d 213, 219-220 (Colo., 1998); Hafner v. Beck, 185 Ariz. 389, 392, 916 P.2d 1105 (Ariz.App., 1995); Rand v. Miller, 185 W.Va. 705, 706-708, 408 S.E.2d 655 (1991); Felton v. Schaeffer, 229 Cal.App.3d 229, 234-239, 279 Cal.Rptr. 713 (1991); Thomas v. Kenton, 425 So.2d 396, 399-400 (La.App., 1982); Hoover v. Williamson, 236 Md. 250, 253, 203 A.2d 861 (1964).
[4] See, e.g., Hafner, n. 3 supra at 392, 916 P.2d 1105, quoting Johnston v. Sibley, 558 S.W.2d 135, 137-138 (Tex.Civ.App., 1977), and Rand, n. 3 supra at 708, 408 S.E.2d 655, quoting Felton, n. 3 supra at 235, 279 Cal.Rptr. 713.
[5] We do not consider whether the duty recognized here extends to situations where an IME physician's negligence causes injury other than physical harm. See, e.g., Rand, n. 3 supra at 708, 408 S.E.2d 655 (criticizing cases where "the physician was found to have a duty to conduct the examination so as not to injure the plaintiff, physically or otherwise"). (Emphasis in original.)
[6] We recognize that a determination of negligence might require testimony regarding what a reasonable physician would have done during the IME here. However, that testimony would not transform this case into a malpractice action in contravention of Rogers, supra. The question would still be whether defendant negligently caused plaintiff physical harm, in violation of the limited duty attendant an IME. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608170/ | 662 N.W.2d 745 (2003)
AUTO CLUB INSURANCE ASSOCIATION, Plaintiff-Appellant,
v.
Vasel JUNCAJ, Hana Juncaj, Ljena Juncaj, Sonia John, Susan John, a Minor by her Next Friend, and Akhtar John, Defendants-Appellees.
Docket No. 122540, COA No. 231298.
Supreme Court of Michigan.
June 19, 2003.
On order of the Court, the application for leave to appeal the August 6, 2002 judgment of the Court of Appeals is considered, and it is DENIED, there being no majority in favor of granting leave to appeal.
MARILYN J. KELLY, J., concurs, and states as follows:
Because the Court of Appeals did not clearly err in holding that Oade v. Jackson Nat'l Life Ins Co[1] was inapposite to the facts in this case, I agree with the order denying leave. I write in concurrence to point out that neither the trial court nor the Court of Appeals found that defendant made a misrepresentation. Therefore, the issue of materiality was never relevant and is inappropriate in the dissent.
In order to have a material misrepresentation, there must first be a misrepresentation. The dissent assumes that there was a finding of misrepresentation and states that the Court of Appeals erred in distinguishing Oade with regard to materiality. However, an examination of the record reveals that the trial court never found that defendant's conduct actually constituted a misrepresentation.[2]
In granting summary disposition for defendant, the trial court found no evidence of misrepresentation. Both courts noted that plaintiff did not provide evidence that would create a question of fact on the issue. Defendant testified about why the omissions occurred and provided an affidavit from the person with whom he lived at the address listed in the policy. Plaintiff presented nothing to rebut these explanations, but chose instead to argue that defendant's evidence was inherently incredible. Plaintiff's Application, p 18. Therefore, plaintiff did not meet its burden of coming forth in response with actual evidence of its own. McCart v. J Walter Thompson USA, Inc., 437 Mich. 109, 469 N.W.2d 284 (1991).
Moreover, the trial court noted that plaintiff had already processed at least two claims from defendant made from the new, different address. The trial court took note of this and concluded that defendant had not concealed the different address; on the contrary, it found that plaintiff had actually discovered the new address before defendant made this claim. The Court of Appeals recognized this and held that "plaintiff presented no evidence that created a question of fact on this issue." Unpublished opinion per curiam, issued August 6, 2002 (Docket No. 231298, *746 2002 WL 1804030) (emphasis added). To be sure, Oade would compel a holding that the "misrepresentations" were material had they been found to exist. However, the Court of Appeals correctly noted that there never was a finding of misrepresentation here in the first place.[3]
Therefore, as defendant has not been shown to have made any misrepresentations, it follows that defendant made no material misrepresentations.
MARKMAN, J., dissents and states as follows:
I respectfully dissent. In bringing, this action for declaratory judgment, plaintiff has argued that the defendant insured made a material misrepresentation by failing to update his address and by failing to add his teenage daughter, who had begun driving, to this no-fault automobile-insurance policy. The policy specifically required the insured to report all address changes within thirty days and provided that the entire policy would be void if the insured intentionally concealed or misrepresented any material fact or circumstance relating to the insurance. Plaintiff presented evidence that, had the information regarding the change of address and the new driver been reported, the premium for this policy would have been substantially higher. The Court of Appeals, agreeing with the trial court that the insured "did not make a material misrepresentation," unpublished opinion per curiam, issued August 6, 2002 (Docket No. 231298, 2002 WL 1804030), p 3, affirmed the trial court's order denying plaintiff's motion for summary disposition and granting defendants' motion for summary disposition. The court concluded that Oade v. Jackson Nat'l Life Ins. Co., 465 Mich. 244, 632 N.W.2d 126 (2001), did not apply because that case was limited to life-insurance policies.
In Oade, however, this Court relied on Keys v. Pace, 358 Mich. 74, 82, 99 N.W.2d 547 (1959), a case involving auto insurance, to conclude that a fact or representation is "material" if it would have resulted in either "`rejection of the risk or the charging of an increased premium.'" Oade, 465 Mich. at 253-254, 632 N.W.2d 126 (emphasis supplied). Applying the Oade standard to this case, I would conclude that the failure to report the change of address and to add coverage for the new driver amounted to a material misrepresentation. Had these facts been properly reported, the premium under the policy would have been substantially higher. Therefore, I would peremptorily reverse the judgment of the Court of Appeals and remand to that Court for consideration of the trial court's alternative basis for granting summary disposition to defendants.
CORRIGAN, C.J., and TAYLOR, J., join in the dissenting statement of MARKMAN, J.
YOUNG, Jr., J., not participating.
NOTES
[1] 465 Mich. 244, 632 N.W.2d 126 (2001).
[2] In Oade, the Court noted that M.C.L. § 500.2218(2) defined a "representation" as "a statement as to past or present fact, made to the insurer by or by the authority of the applicant for insurance or the prospective insured, at or before the making of the insurance contract as an inducement to the making thereof. "Oade at 251, 632 N.W.2d 126 (emphasis added). Therefore, the finding of a misrepresentation requires something more than just a false representation; there must also be a finding that the representation was made as an inducement.
[3] As an alternative to the statutory definition from Oade, the policy in this case requires a finding of intentional conduct. Condition 20 of defendant's policy provides that the policy is void if "an insured person has intentionally concealed or misrepresented any material fact or circumstance" relating to the insurance. (Emphasis added.) No evidence was presented showing that defendant intended to misrepresent information to plaintiff. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608123/ | 662 N.W.2d 94 (2003)
256 Mich. App. 140
CRANBROOK PROFESSIONAL BUILDING, L.L.C., Plaintiff/Counter-Defendant-Appellee,
v.
William POURCHO, D.D.S., Defendant/Counter-Plaintiff/Third-Party Plaintiff-Appellant.
v.
Glenn Spencer, D.D.S., Third-Party Defendant-Appellee.
Docket No. 234334.
Court of Appeals of Michigan.
Submitted February 6, 2003, at Detroit.
Decided April 1, 2003, at 9:20 a.m.
Released for Publication May 29, 2003.
*95 Conklin, Benham, Ducey, Listman & Chuhran, P.C. (by Martin L. Critchell), Detroit, for Cranbrook Professional Building, L.L.C., and Glenn Spencer.
Butzel Long (by David W. Potts, Jack D. Shumate, and Dana J. Lakritz), Bloomfield Hills, for William Pourcho.
Before: SAAD, P.J., and ZAHRA and SCHUETTE, JJ.
PER CURIAM.
Third-party plaintiff William Pourcho, D.D.S., appeals by leave granted the trial court's order granting a motion for a new trial or amendment of judgment filed by plaintiff Cranbrook Professional Building, L.L.C., and third-party defendant Glenn Spencer, D.D.S. We reverse and remand for entry of judgment in accordance with this opinion.
I. Facts
Pourcho leased office space in Cranbrook, a professional building owned by Spencer. After Pourcho's lease expired, he continued to occupy the space and to negotiate for an extension of the lease. During this time, Pourcho attempted unsuccessfully to sell his practice to another dentist. Cranbrook filed suit against Pourcho, seeking payment of rent for the holdover period. Pourcho filed a countercomplaint against Cranbrook and a third-party complaint against Spencer, alleging tortious interference with a business expectancy and fraud.
A case-evaluation panel rendered an evaluation in favor of Cranbrook in the amount of $30,000 on its claim for holdover rent and of no cause of action on Pourcho's third-party complaint against Spencer. The panel did not address Pourcho's countercomplaint against Cranbrook. A settlement was not reached. Before trial, the court met separately with counsel to determine if the case could be settled. Counsel for Cranbrook and Spencer revealed the case-evaluation results to the court during their meeting. Counsel for Pourcho was not advised of this development. After a jury trial commenced, counsel for Spencer and Cranbrook was observed speaking to a witness subpoenaed by Pourcho. Counsel for Pourcho suggested that the problem could be resolved by trying the case without a jury. Counsel for Cranbrook and *96 Spencer agreed to this proposal, as did the court. The court excused the jury, and the case was tried before the court. The trial court entered judgment awarding Cranbrook $91,729.98 plus costs and fees on its claim for holdover rent and awarded Pourcho $275,000 on his third-party claim against Spencer. The court made no specific finding on Pourcho's countercomplaint against Cranbrook.
Subsequently, the trial court granted a motion filed by Cranbrook and Spencer for a new trial or amendment of judgment, vacated the judgment in its entirety, and granted a new trial. The court maintained that the parties' waiver of a jury was knowing and intelligent and that the court acted as a fair and unbiased trier of fact. Nevertheless, the court concluded that it was bound by MCR 2.403(N)(4) and recent case law to grant the motion on the ground that it had been made aware of the case-evaluation results before trial.
II. Standard of Review
We review de novo a trial court's interpretation and application of a court rule. Grzesick v. Cepela, 237 Mich.App. 554, 559, 603 N.W.2d 809 (1999).
III. Analysis
MCR 2.403(N)(4) provides that the case evaluation must be placed in a sealed envelope, and that in a case tried without a jury "the parties may not reveal the amount of the evaluation until the judge has rendered judgment." In Bennett v. Medical Evaluation Specialists, 244 Mich.App. 227, 624 N.W.2d 492 (2000), another panel of this Court addressed the issue of the proper sanction for violation of MCR 2.403(N)(4). In Bennett, the plaintiff submitted proposed findings of fact and conclusions of law at the conclusion of a bench trial and revealed the case-evaluation results. The defendant moved for a mistrial on the ground that the plaintiff violated MCR 2.403(N)(4). The trial court stated that it would not be influenced by the case evaluation, denied the motion, and entered a judgment in favor of the plaintiff. This Court vacated the judgment and remanded the matter for a new trial before a different judge.
The Bennett Court observed that MCR 2.403(N)(4) is silent with regard to an appropriate sanction and concluded that the appropriate sanction when a party violates MCR 2.403(N)(4) by prematurely revealing the case evaluation is disqualification of the trial judge and retrial before a different judge. The Bennett Court determined that in order to protect the integrity of the case-evaluation process and to ensure the impartiality of the court, a new trial is necessary when a party makes a deliberate effort to influence the court before it renders judgment. Bennett, supra, at 231-233, 624 N.W.2d 492. In a footnote, the Bennett Court stated that it was not required to decide what would be the appropriate sanction under circumstances in which a party determines that a trial may not end in its favor and thus deliberately reveals the case-evaluation results in order to obtain a new trial. Id., at 233, n. 3, 624 N.W.2d 492.
We conclude that Bennett, supra, is distinguishable and thus does not require that the trial court's order vacating the judgment and granting a new trial be affirmed. MCR 7.215(1). Bennett, supra, does not hold that a new trial is required in every case in which a violation of MCR 2.403(N)(4) occurs. Rather, the appropriate sanction depends on the particular facts of the case. Bennett, supra, at 228, 233, n. 3, 624 N.W.2d 492. This case is distinguishable from Bennett, supra, on several grounds. In Bennett, supra, the case-evaluation results were revealed to the trial court after the conclusion of a bench trial. The Bennett Court concluded *97 that the plaintiff's act of revealing the results was a deliberate attempt to influence the trial court's decision. Id., at 228-229, 624 N.W.2d 492.
The essence of the Bennett decision is the prohibition against revealing the results of a case evaluation to a judge in a nonjury trial until judgment has been rendered. Here, the case evaluation was revealed to the court before commencement of trial under the presumption that the case would be tried by a jury. Hence, at the time the case evaluation was revealed to the judge, there was, in fact, no violation of MCR 2.403(N)(4). Here, after the trial had commenced, counsel for Cranbrook and Spencer agreed to a suggestion made by Pourcho's counsel for a nonjury trial because of questionable contact by counsel for Cranbrook and Spencer with a witness called by Pourcho.
Only after the trial court entered an adverse judgment did Cranbrook and Spencer seek a new trial on the basis of MCR 2.403(N)(4) and Bennett, supra. The trial court erred in concluding that it was required by MCR 2.403(N)(4) and Bennett, supra, to grant a new trial given the particular circumstances that led to the revelation of the case-evaluation results. We reverse the trial court's order granting a new trial and remand the matter for entry of judgment in accordance with the trial court's original judgment.
Reversed and remanded. We do not retain jurisdiction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/723741/ | 91 F.3d 296
In re Gloria BONNANZIO, Debtor.NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.,Plaintiff-Appellee,v.Gloria BONNANZIO, Defendant-Appellant.
No. 1262, Docket 95-5030.
United States Court of Appeals,Second Circuit.
Argued March 6, 1996.Decided July 19, 1996.
Caroline Levy, Northport, NY, for Defendant-Appellant.
Lynne A. Bizzarro, Zodda & Bizzarro, Sayville, NY, for Plaintiff-Appellee.
Before: MINER, JACOBS, and CABRANES, Circuit Judges.
JACOBS, Circuit Judge:
1
Debtor Gloria Bonnanzio appeals from a judgment of the United States District Court for the Eastern District of New York (Gleeson, J.), which reversed the bankruptcy court's decision to discharge her debt to National Union Fire Insurance Company ("National Union"). Bonnanzio had participated in a real estate tax shelter, and defaulted on her debt to the limited partnership. National Union had issued a financial guarantee bond to the partnership, paid on the bond, and won a judgment against Bonnanzio. After Bonnanzio sought protection in bankruptcy, National Union challenged the dischargeability of the debt under 11 U.S.C. § 523(a)(2)(B). Following a bench trial, the bankruptcy court (Ryan, J.) found that National Union failed to make two requisite showings under the statute: (1) that Bonnanzio acted with actual or constructive intent to deceive; and (2) that National Union reasonably relied on the (concededly false) financial statement submitted to National Union on Bonnanzio's behalf by her accountant.
2
The district court reversed on both grounds, holding (1) that the bankruptcy court's ruling on the issue of intent to deceive was premised on an error of law, that National Union had succeeded in establishing Bonnanzio's constructive intent to deceive, and that in any event the accountant's intent to deceive should have been imputed to Bonnanzio; and (2) that the bankruptcy court's finding on reliance was clearly erroneous. We conclude that intent to deceive under § 523(a)(2)(B) is an issue of fact that should have been reviewed for clear error, and that the bankruptcy court's finding withstands clear error review. However, we vacate the judgment and remand for possible further fact findings concerning imputed intent, a potentially determinative issue identified by the district court but not considered by the bankruptcy court. Furthermore, while we agree with the district court that the bankruptcy court's determination on reliance was clearly erroneous, the bankruptcy court on remand should determine whether National Union has demonstrated that its reliance was reasonable.
BACKGROUND
3
The following facts are drawn from the trial transcript and are not disputed.
4
In 1983, Bonnanzio was looking for investment advice to help her save money for her six-year-old son's college education. She was then a 29-year-old sales representative for Levi Strauss, divorced and living with her parents. In her one year of college, she had taken an economics course, but no course in investments or higher mathematics. One of her clients recommended an accountant named Arthur Berlin for investment advice.
5
At a meeting in December 1983, Berlin spoke with Bonnanzio for several hours, asked numerous questions about her financial situation and took notes. She told Berlin that she was earning $40,000 to $45,000 per year, and that her only asset was her car. In response to a specific inquiry, Bonnanzio confirmed that her net worth was below $250,000. During this meeting, Berlin suggested that Bonnanzio invest in tax shelters, but he did not explain what a tax shelter was.
6
Berlin told Bonnanzio he wanted to meet with her again soon, but Bonnanzio explained that she would be out of town for the holidays. Berlin took the address and telephone number at which she could be reached over the holidays and sent her information there about a limited partnership called Northgate Plaza Associates ("Northgate"). Bonnanzio did not read the material. After Bonnanzio returned in January 1984, Berlin called her numerous times and left messages. When he finally reached her, Berlin said they needed to meet quickly to discuss Northgate.
7
At the second meeting, early in January, Berlin recommended Northgate as a vehicle for financing her son's education. She asked how the tax shelter worked, but did not understand Berlin's explanation. Berlin told her how much Northgate would cost, but Bonnanzio "didn't understand how [she] could get approved for it based on the fact [she] didn't own anything at the time." She expressed this concern to Berlin, but "[h]e didn't seem to think it was a problem." Also at this meeting, Bonnanzio agreed that Berlin would be her accountant and prepare her 1983 income tax returns.
8
Sometime before January 30, 1984, Berlin told Bonnanzio that she would have to pay $2,600 in order to participate in the Northgate deal. She did not have the money, but Berlin loaned it to her. Presumably in his role as her accountant, Berlin also contacted her employer and raised the number of withholding allowances on her W-4 form by claiming 45 dependents, which resulted in a $300-per-week increase in Bonnanzio's take-home pay. On January 30, 1984, Bonnanzio met Berlin at the Manhattan offices of Rothschild Reserve International, Inc. ("Rothschild"), the broker-dealer handling the Northgate private placement. There, Berlin assured Bonnanzio that her interest in Northgate could be readily sold if her marital or job status changed. Bonnanzio signed her name to blank forms, including a blank credit application. She also signed a promissory note to pay Northgate $73,663 over six years. At trial, Bonnanzio testified that she did not know she was signing a credit application, that she trusted Berlin, and that she did not intend to deceive anyone in connection with Northgate. After the Rothschild meeting, Berlin filled out the signed credit application using false information that vastly exaggerated Bonnanzio's income and assets.
9
On February 8, 1984, Rothschild sent Bonnanzio's documents to National Union for bonding. National Union's role in the private placement was to guarantee payment to the bank that was financing Northgate, in the event that investors defaulted. The bonds that National Union issued to the bank covered groups of investors in bulk.
10
At National Union, Bonnanzio's documents were probably reviewed by an employee named Gina Grossman, who handled Rothschild investors. Grossman did not testify at trial. On March 23, 1984, National Union approved Bonnanzio's application and issued a bond guaranteeing the obligations owed by Bonnanzio (and 21 other investors) to Morsemore Federal Savings and Loan Association ("Morsemore"), the bank to which Northgate negotiated Bonnanzio's promissory note.
11
That same month, Bonnanzio received her first bill from Morsemore, demanding $2,300. Unable to pay, and getting worried, Bonnanzio asked Berlin to extricate her from Northgate. Berlin responded that she would have to pay him $1,800 for him to sell her partnership unit at a discount; later, he offered to sell the unit for $1,000. Bonnanzio accepted neither proposal, possibly because she lacked the funds to extricate herself, and retained the partnership unit.
12
When Bonnanzio defaulted on the promissory note, National Union paid her obligations, and contacted Bonnanzio to collect. She wrote a letter to National Union's counsel dated October 22, 1984, in which she explained that Berlin had persuaded her to participate in Northgate; that she could not afford the investment; and that she wanted to end her involvement in Northgate. In 1985, National Union sued Bonnanzio in New York state court, and, on August 27, 1991, National Union won a judgment for $152,712.80.
13
On May 1, 1992, Bonnanzio filed a petition under Chapter 7 in the United States Bankruptcy Court for the Eastern District of New York, seeking in part to discharge her debt to National Union. Thereafter, National Union began an adversary proceeding seeking to have its judgment excepted from discharge pursuant to 11 U.S.C. § 523(a)(2)(B). The case was tried in October 1994. The bankruptcy court found that National Union had failed to show (1) that Bonnanzio had acted with actual or constructive intent to deceive, or (2) that National Union had reasonably relied on Bonnanzio's credit application. In a decision dated March 18, 1994, the bankruptcy court discharged National Union's debt.
14
National Union appealed to the district court, which heard argument on March 17, 1995. The district court reversed, and Bonnanzio appeals.
DISCUSSION
15
National Union sued Bonnanzio under 11 U.S.C. § 523(a)(2)(B), which provides:
16
A discharge ... does not discharge an individual debtor from any debt--
17
(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by--
18
(B) use of a statement in writing--
19
(i) that is materially false;
20
(ii) respecting the debtor's ... financial condition;
21
(iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and
22
(iv) that the debtor caused to be made or published with intent to deceive[.]
23
A creditor suing under § 523(a)(2)(B) must prove each element by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 659-60, 112 L.Ed.2d 755 (1991); In re Furio, 77 F.3d 622, 624 (2d Cir.1996). "Exceptions to dischargeability are narrowly construed," Furio, 77 F.3d at 624 (internal quotation marks omitted), an approach that implements the " 'fresh start' policy of the Bankruptcy Code," Grogan, 498 U.S. at 286, 111 S.Ct. at 659.
24
The fact findings of the bankruptcy court are reviewed by the district court for clear error, and the conclusions of law are reviewed de novo. See Fed. R. Bankr.P. 8013. Our "review of an appeal from the bankruptcy court to the district court is plenary." Furio, 77 F.3d at 624.A. Intent to Deceive.
25
The bankruptcy court found that Bonnanzio had no actual intent to deceive, and the district court did not disturb that finding. The bankruptcy court further found that, "[c]onsidering the totality of circumstances," Bonnanzio did not have a constructive intent to deceive based on a reckless disregard for the consequences of her actions. In so doing, the bankruptcy court recognized that In re Reisman, 149 B.R. 31 (Bankr.S.D.N.Y.1993), presented similar facts, but distinguished that case on the ground that Reisman was a sophisticated investor and businessperson, and that Bonnanzio emphatically was not. On appeal, the district court (1) was unpersuaded by the bankruptcy court's grounds for distinguishing Reisman; (2) characterized the bankruptcy court's resulting conclusion as an error of law (and thus subject to de novo review); and (3) held that Bonnanzio did act with a reckless disregard for the consequences of her actions. Accordingly, the district court concluded that National Union had sustained its burden of demonstrating a constructive intent to deceive. The district court held further that Berlin's fraudulent intent must be imputed to Bonnanzio under agency principles. On appeal, Bonnanzio challenges both the district court's decision to set aside the bankruptcy court's conclusion that National Union had failed to demonstrate reckless disregard and the district court's agency law analysis.
26
In Reisman, the debtor claimed ignorance of the fact that his accountant prepared and delivered false financial statements in order to induce the creditor bank to extend him credit. Id. at 33. The bankruptcy court found the requisite intent to deceive, because (1) the debtor was on notice that the financial statements might be necessary to secure the loan; (2) bank personnel in fact discussed the statements with him; (3) reckless indifference or disregard for the accuracy of a financial statement amounts to an intent to deceive; and (4) in any case, the debtor accepted the benefits of his accountant's misdeeds, and thus was liable on agency principles. Id. at 38. Although Reisman's sophistication can easily be deduced from the statement of facts, the bankruptcy court in Reisman--as the district court here noted--nowhere cited the debtor's business savvy in support of its finding of an intent to deceive. Nevertheless, we conclude that the district court erred in characterizing the bankruptcy court's analysis of intent to deceive as a conclusion of law premised on a misreading of Reisman, and in reviewing the intent issue de novo. At the hearing, the district court said:
27
I am not persuaded that the distinction relied upon by Judge Ryan is supported by the Reisman decision or by its rationale. For that reason, I don't think it is proper to characterize this aspect of this decision as a finding that he made a clearly erroneous decision as much as it is that he got the law wrong with respect to this part of his decision.
28
We do not agree. The bankruptcy court's distinction of Reisman was used to reinforce the conclusion that Bonnanzio lacked constructive intent to deceive, but that distinction was not the basis for its finding of fact. After a full trial in which the bankruptcy judge had the opportunity to hear Bonnanzio testify, the court specifically found: "Considering the totality of circumstances surrounding the debtor's execution of the credit application, the court finds that no intent to deceive might be constructed because of reckless disregard of the consequences of her acts." There is no doubt that the bankruptcy court applied a proper standard: intent to deceive can be inferred from the totality of circumstances, including reckless disregard. In re Cohn, 54 F.3d 1108, 1118-19 (3d Cir.1995); In re Miller, 39 F.3d 301, 305 (11th Cir.1994); In re Black, 787 F.2d 503, 506 (10th Cir.1986); In re Martin, 761 F.2d 1163, 1167 (6th Cir.1985). We conclude that a bankruptcy court's finding under section 523(a)(2)(B) as to the debtor's intent to deceive is a finding of fact that is reviewed for clear error, and that the bankruptcy court's discussion of Reisman did not alter the nature of that finding. As the district court stated: "I'm mindful ... that [Judge Ryan's] factual findings deserve the deference that's built into the clearly erroneous standard of review...."There is substantial unanimity of view that intent to deceive is an issue of fact. In re Norris, 70 F.3d 27, 29 (5th Cir.1995); Miller, 39 F.3d at 304; In re Liming, 797 F.2d 895, 897 (10th Cir.1986); In re Long, 774 F.2d 875, 877-78 (8th Cir.1985); see In re Shaheen, 111 B.R. 48, 52 (S.D.N.Y.1990) (Leisure, J.); see also In re Sheridan, 57 F.3d 627, 634 (7th Cir.1995) (applying clearly erroneous standard to finding of intent to deceive).
29
Reisman does not affect this analysis. In Sheridan, the bankruptcy court had found that the debtor lacked any intent to deceive, even though the creditor adduced considerable circumstantial evidence that the debtor misapplied borrowed funds. The district court affirmed. On appeal to the Seventh Circuit, the creditor cited numerous cases in which courts had found such intent on similar evidence, and argued that the bankruptcy court therefore erred on the issue of intent as a matter of law. The circuit court held:
30
While these cases would support the bankruptcy court's decision had it inferred an intent to deceive from the circumstantial evidence admitted in this case, they do not compel such a finding and do not require us to reverse the court's holding.... Whether to infer the requisite intent is left to the bankruptcy court that presides over the case. Because that court is in the best position to observe the witnesses and presentment of the evidence, we review its findings only for clear error....
31
57 F.3d at 634; see also Shaheen, 111 B.R. at 53 (where intent is at issue, the debtor's credibility is a substantial factor, and the bankruptcy court's assessment thereof is entitled to great deference); Fed. R. Bankr.P. 8013 ("[D]ue regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses.").
32
In sum, the district court's conclusion that National Union had demonstrated Bonnanzio's reckless disregard for the consequences of her actions--and, concomitantly, a constructive intent to deceive--was based on a failure to accord the bankruptcy court's factual finding the appropriate degree of deference. We conclude that the bankruptcy court's finding in this respect was not clearly erroneous.
33
An alternate ground for the district court's ruling on intent to deceive is that Berlin's fraudulent intent should be imputed to Bonnanzio under general principles of agency. Since the bankruptcy court made no factual findings with regard to this specific issue, the district court's ruling can only stand if it is correct as a matter of law.
34
We observe at the outset that there is conflicting authority regarding whether, under § 523(a)(2)(B), the fraudulent intent of a debtor's agent may be imputed to the debtor without a further finding that the debtor knew or should have known of the fraud. No court of appeals has directly ruled on this issue, but the Third Circuit has observed in dicta that "common law principles of agency law would probably dictate the imputation of an agent's fraud to a principal under a § 523(a)(2)(B)(iv) analysis." Cohn, 54 F.3d at 1119. The Eighth Circuit, construing a closely related provision of the bankruptcy code, has held that "more than the mere existence of an agent-principal relationship is required to charge the agent's fraud to the principal.... If the principal either knew or should have known of the agent's fraud, the agent's fraud will be imputed to the debtor-principal." In re Walker, 726 F.2d 452, 454 (8th Cir.1984) (per curiam) (construing 11 U.S.C. § 523(a)(2)(A)).
35
In cases under § 523(a)(2)(B), some bankruptcy courts have held that an agent's fraud cannot be imputed to the debtor without some showing that the debtor knew or should have known of the fraud. See, e.g., In re Futscher, 58 B.R. 14, 17 (Bankr.S.D.Ohio 1985); In re Anderson, 29 B.R. 184, 190-91 (Bankr.N.D.Iowa 1983). Several other courts, however, have sharply criticized these cases and the Eighth Circuit's decision in Walker as contrary to the legislative history and proper statutory interpretation of § 523. See, e.g., In re Calhoun, 131 B.R. 757, 760-62 (Bankr.D.D.C.1991); BancBoston Mortgage Corp. v. Ledford, 127 B.R. 175, 180-85 (M.D.Tenn.1991), aff'd, 970 F.2d 1556 (6th Cir.1992), cert. denied, 507 U.S. 916, 113 S.Ct. 1272, 122 L.Ed.2d 667 (1993); In re Paolino, 75 B.R. 641, 645-50 (Bankr.E.D.Pa.1987).
36
We need not decide this issue at this time, because a ruling either way would not dispose of this case. The bankruptcy court made no factual findings as to whether Bonnanzio knew or should have known of Berlin's fraud. If we hold that such a showing is necessary to demonstrate an intent to deceive under § 523(a)(2)(B), we would still have to remand so that the bankruptcy court could make that factual determination in the first instance. On the other hand, if we hold that no such showing is necessary, Bonnanzio may still prevail, on the theory that a principal is not charged with an agent's misdeeds if the agent acts in a manner completely adverse to the principal's interest. See In re Maxwell Newspapers, Inc., 151 B.R. 63, 69 (Bankr.S.D.N.Y.1993); see also United States v. 141st Street Corp., 911 F.2d 870, 876 (2d Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1017, 112 L.Ed.2d 1099 (1991); Mallis v. Bankers Trust Co., 717 F.2d 683, 689 n. 10 (2d Cir.1983); Munroe v. Harriman, 85 F.2d 493, 495 (2d Cir.), cert. denied, 299 U.S. 601, 57 S.Ct. 194, 81 L.Ed. 443 (1936).
37
This "adverse interest exception" was argued to the district court, but the court invoked the rule that a principal cannot rely on an agent's adverse interest if the principal knowingly retains a benefit that resulted from the agent's fraud, see Restatement (Second) of Agency § 282 (1958), and held that Berlin's conduct was not entirely adverse to Bonnanzio's interest because she received tax benefits from the tax shelter.
38
We think the issue is more complicated. The bankruptcy court found that Berlin's interest was in closing Bonnanzio's participation in Northgate, so that he could collect a substantial commission on the larger transaction. He was so eager to get this commission that he loaned Bonnanzio the money for the down payment. A finder of fact could conclude: that Bonnanzio's tax shelter was purely incidental to Berlin's real objective, his commission on the placement; that the commission was in fact the only object of Berlin's conduct; and that Bonnanzio's contracting of a $73,663 debt for an investment she did not understand was no benefit to her at all. It is therefore unclear on this record whether Berlin was acting in a manner completely adverse to Bonnanzio's interests. The matter should be resolved by the bankruptcy court in the first instance.
39
The district court emphasized that Bonnanzio cannot rely on the adverse interest exception, because she retained a benefit as a consequence of the fraud. Whether Bonnanzio retained a benefit from Berlin's fraud is, at least in part, a question of fact. The district court and National Union adduce two examples of benefits received by Bonnanzio: (1) an increase in Bonnanzio's withholding allowances that increased her take-home pay and (2) Bonnanzio's 1984 tax deduction. We doubt that the increased allowances can be described as a benefit accruing from the fraud. Berlin, as Bonnanzio's accountant, contacted Bonnanzio's employer and arranged for the lower withholding, but that arrangement did nothing to lower Bonnanzio's eventual tax liability. In fact, if too little were withheld from Bonnanzio's salary, Berlin could have exposed Bonnanzio to liability for tax penalties.
40
Bonnanzio took a tax deduction for tax year 1984 in respect of her Northgate investment. Although this benefit did not flow from National Union, it could be a benefit of the transaction, and, in a tax shelter, may be the chief benefit that ever accrues. On the other hand, the record may support the inference that Bonnanzio received no benefit from Berlin's actions. Berlin's machinations placed upon Bonnanzio a large obligation that she may not have sought or understood. When she received her first statement in March 1984, she immediately tried to exit. She turned to Berlin, as her accountant, to get her out, but he demanded additional money to extricate her from an investment he had told her would be readily marketable. She thus kept her partnership interest, and took a tax deduction for it when she filed her 1984 tax return in 1985, after she dismissed Berlin as her accountant. Whether Bonnanzio received a benefit from Berlin's fraud is unclear on this record, and a determination by the bankruptcy court is required, should that court reach this issue.
41
We further observe that, even if a principal receives a benefit from an agent's fraudulent actions, under agency principles that benefit is only significant if the principal knowingly retains it before a change of position. See Restatement (Second) of Agency § 282(2)(c). We are unaware of any case that has addressed this particular issue of agency law in the bankruptcy context. Generally, a change in position is a change in the principal's circumstances induced by the receipt of the benefit. See Restatement (First) of Restitution § 178 cmt. a (1937) ("The right to restitution from another for a benefit conferred upon him is terminated if circumstances have so changed that it would be inequitable to require him to make restitution."). If, however, before the principal changes position, she has notice of facts indicating that the benefit is not rightfully hers, then a change in position will not preclude restitution. See id. § 178 cmt. b. The object of holding liable a principal who knowingly retains a benefit from the agent's misdeeds--even when the agent acts against the principal's interest--is to facilitate restitution and prevent the unjust enrichment of the principal. See Restatement (Second) of Agency § 282 cmt. h. This rule is equitable, as is bankruptcy law in general. It is unclear, however, that restitution principles govern this case, because Bonnanzio is not holding any asset of National Union that could be subject to a claim for restitution. At any rate, since the bankruptcy court may not reach this complicated agency issue, we do not decide at this time whether a principal who knowingly retains the benefit of an agent's fraud (even if the agent acts in a manner completely adverse to the principal's interest) can have an intent to deceive within the meaning of 11 U.S.C. § 523(a)(2)(B). If the bankruptcy court finds it necessary to reach this issue, it should make that determination in the first instance.
42
In sum, we find that several material factual and legal issues must be resolved before this dispute can be decided. We therefore remand this case to the district court with instructions to remand to the bankruptcy court, so that the parties may have an opportunity to brief these issues more fully, and so that the bankruptcy court may make the necessary determinations in the first instance. See In re McLean Indus., 30 F.3d 385, 388 (2d Cir.1994) (per curiam), cert. denied, --- U.S. ----, 115 S.Ct. 934, 130 L.Ed.2d 880 (1995). In particular, we remand for decisions on the following: (1) whether, under 11 U.S.C. § 523(a)(2)(B), the fraudulent intent of a debtor's agent may be imputed to the debtor without a further finding that the debtor knew or should have known of the fraud; (2) if so, whether Bonnanzio knew or should have known of Berlin's fraudulent actions; (3) in any event, whether Berlin acted in a manner that was completely adverse to Bonnanzio's interest; (4) if so, whether a debtor who knowingly retains the benefit of an agent's fraud before a change in position has the requisite intent to deceive under § 523(a)(2)(B); and (5) if so, whether Bonnanzio did knowingly retain such a benefit and therefore had the requisite intent to deceive.
43
B. Reasonable Reliance.
44
The bankruptcy court found that, in issuing its bond, National Union relied entirely on the value of the partnership unit that was pledged as collateral, and did not rely at all (reasonably or otherwise) on Bonnanzio's financial statement. The district court held that this finding was clearly erroneous, and we agree. Since the bankruptcy court concluded that National Union had failed to demonstrate that it relied on Bonnanzio's financial statement, that court made no specific finding on whether such reliance would have been reasonable. In entering judgment for National Union, the district court implicitly concluded that National Union had demonstrated that its reliance was reasonable. Because the reasonableness of National Union's reliance is a question of fact, it ought to be resolved by the bankruptcy court in the first instance.
45
In concluding that National Union did not rely on Bonnanzio's financial statement, the bankruptcy court cited testimony in the record that
46
it was National Union's general practice (1) to look first at the general partner to make sure that it was a known entity, (2) to look into the general partner's financial stability and record, (3) to do a lesser amount of due diligence when the deal had been brought in through a nationally known broker dealer, and (4) to rely first to a greater extent on the broker dealer who handled these transactions, then to look at the private placement.
47
In addition, the bankruptcy court noted that there was testimony that "usually National Union would conduct an independent review of each investor's documents even when the documents were sent from well known entities such as [Rothschild]." However, the bankruptcy court found that this testimony was contradicted by evidence that National Union relied on the marketability and value of the collateral. We agree with the district court that there is no contradiction between reliance on the credit application and reliance on the marketability of the collateral, and that therefore the evidence of National Union's reliance is uncontroverted. Accordingly, the bankruptcy court clearly erred in concluding that National Union failed to sustain its burden of demonstrating reliance.
48
We turn, then, to the district court's implicit conclusion that National Union's reliance was reasonable. "Once it has been established that a debtor has furnished a lender a materially false financial statement, the reasonableness requirement of § 523(a)(2)(B) 'cannot be said to be a rigorous requirement, but rather is directed at creditors acting in bad faith.' " Woolum, 979 F.2d at 76 (quoting In re Martin, 761 F.2d 1163, 1166 (6th Cir.1985)). Reasonableness is therefore "a low hurdle for the creditor to meet, and is intended as an obstacle only for creditors acting in bad faith." In re Shaheen, 111 B.R. 48, 53 (S.D.N.Y.1990); see also In re Reisman, 149 B.R. 31, 39 (Bankr.S.D.N.Y.1993) (requirement of reasonable reliance was intended to prevent unscrupulous creditors from inducing debtors to submit false statements for later use to challenge discharge); Martin, 761 F.2d at 1166 (citing legislative history); In re Ophaug, 827 F.2d 340, 343 (8th Cir.1987); Lansford, 822 F.2d at 904 ("Having intentionally misled the [creditors] in an area [the debtor] knew was important to them, it is unseemly for [the debtor] now to argue that he should be excused from section 523 because the [creditors] believed him.").
49
Although the reasonableness requirement of § 523(a)(2)(B)(iii) presents a low threshold for National Union to meet, whether National Union has met that threshold is a question of fact. Eight courts of appeals have so held, and we agree. In re Coston, 991 F.2d 257, 260 (5th Cir.1993) (en banc) (per curiam); In re Woolum, 979 F.2d 71, 75-76 (6th Cir.1992), cert. denied, 507 U.S. 1005, 113 S.Ct. 1645, 123 L.Ed.2d 267 (1993); In re Watson, 958 F.2d 977, 978 (10th Cir.1992); In re Collins, 946 F.2d 815, 817 (11th Cir.1991) In re Bonnett, 895 F.2d 1155, 1157 (7th Cir.1989); In re Lansford, 822 F.2d 902, 904 (9th Cir.1987); accord In re Cohn, 54 F.3d 1108, 1118 (3d Cir.1995); In re Menna, 16 F.3d 7, 11 (1st Cir.1994). The reasonableness of reliance requires the fact finder to consider "the totality of the circumstances," and we recognize that the bankruptcy court is "most familiar" with this factual setting and has had the opportunity to judge the credibility of the witnesses. Coston, 991 F.2d at 261-62. Accordingly, whether National Union's reliance was reasonable is a matter for the bankruptcy court to determine on remand.
CONCLUSION
50
For the reasons set forth above, we reverse the judgment of the district court and remand with instructions to remand to the bankruptcy court for further proceedings. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1608378/ | 21 So. 3d 919 (2009)
Eduardo Albert DIAZ, Appellant,
v.
The STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
No. 3D08-2079.
District Court of Appeal of Florida, Third District.
November 18, 2009.
Thomas J. Butler, Miami Beach, for appellant.
*920 Garnett W. Chisenhall, for appellee.
Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
ROTHENBERG, J.
Eduardo Albert Diaz ("Diaz") appeals a final order issued by the Florida Real Estate Appraisal Board ("Board") revoking his license to practice as a state certified residential real estate appraiser in the State of Florida. We reverse and remand for an informal hearing.
After conducting an investigation, the Florida Department of Business and Professional Regulation, Division of Real Estate ("the Division"), which provides the Board with recordkeeping, examination, legal, and investigative services, issued, and on April 23, 2009, served Diaz with a nine-count complaint, alleging he had manipulated sales data inflating the value of a particular parcel of real property. The complaint advised Diaz that he had twenty-one days to file an "Election of Rights" form or other responsive pleading and that the failure to do so would result in the Division's request for an informal hearing and the entry of a final order that could result in the suspension or revocation of Diaz's residential real estate appraiser license. Attached to the complaint was an Explanation of Rights and Election of Rights form.
When Diaz failed to respond to the administrative complaint, the Division requested and was granted an informal hearing pursuant to section 120.57(2), Florida Statutes (2008). On May 21, 2008, the Division sent Diaz a Notice of Hearing informing him that an informal hearing had been scheduled for June 2, 2008, in Orlando, Florida.
In a letter dated May 29, 2008, counsel for Diaz provided an executed Election of Rights form and requested a continuance of the hearing. As scheduled, the Board convened on June 2, 2008, although neither Diaz nor his counsel were present. The Board ultimately denied Diaz's request for a continuance; granted the Division's motion to consider the case by way of an informal hearing; and after conducting the informal hearing, issued a final order revoking Diaz's license.
Diaz's appeal raises two issues: (1) whether the denial of his continuance was an abuse of discretion; and (2) whether the Board properly used an informal administrative hearing procedure to address the allegations raised in the complaint. Because the Division does not object to a remand by this Court for the Board to conduct a new informal hearing to allow Diaz's presence, we address only the second issue raised by Diaz in this appeal.
Section 120.57(1), Florida Statutes (2008), governs formal administrative hearings, and section 120.57(2) governs informal administrative hearings. If a party wants a formal administrative hearing he/ she must timely request one. Rule 28-106.111(2) of the Florida Administrative Code provides that "persons seeking a hearing on an agency decision which does or may determine their substantial interests shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision." "Any person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such matters." Fla. Admin. Code R. 28-106.111(4).
Because Diaz does not dispute that he was served with the administrative complaint on April 23, 2009, and he did not request a formal hearing within twenty-one days as required by rule 28-106.111(2), we conclude that he has waived his right to a formal administrative hearing. See Patz *921 v. Fla. Dep't of Health, 864 So. 2d 79, 79-80 (Fla. 3d DCA 2003) (holding that because Patz did not file an Election of Rights form or otherwise request a formal hearing within the twenty-one day period, he waived his right to an administrative hearing); see also Aleong v. Fla. Dep't. of Bus. & Prof'l Regulation, 963 So. 2d 799, 801-02 (Fla. 4th DCA 2007) (upholding the Board of Veterinary Medicine's order granting the Department of Business and Professional Regulation's Motion for Waiver of Rights filed after Dr. Aleong failed to timely request a hearing to dispute the Department's allegations, relying on Florida Administrative Code Rule 28-106.111(2007)). Although we have concluded that Diaz waived his right to a formal administrative hearing, based on the Division's statement in its answer brief that it has no objection to this Court remanding the case for an informal hearing to allow Diaz to appear in person, we reverse the order under review and remand for an informal hearing.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608425/ | 791 So. 2d 40 (2001)
Jeffrey ROWAN, Appellant,
v.
STATE of Florida, Appellee.
No. 2D01-1821.
District Court of Appeal of Florida, Second District.
June 1, 2001.
Rehearing Denied August 3, 2001.
*41 PER CURIAM.
Jeffrey Rowan appeals the trial court's order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. Rowan's motion challenged his fifteen-year sentence imposed after a violation of probation. Because there is a potentially fundamental error apparent on the face of the record, we reverse and remand for further proceedings.
The limited record before this court reflects that on March 5, 1990, Rowan pleaded no contest to one count of sexual battery with a deadly weapon, which offense occurred on October 22, 1988. Rowan's sentencing scoresheet totaled 333 points, forty of which were assessed for "penetration or slight injury." This point total placed him in a sentencing guidelines cell giving a permitted sentencing range of nine to twelve years. Pursuant to Rowan's negotiated plea agreement with the State, the trial court sentenced him to two years' community control followed by ten years' probation.
In October 1990 the Department of Corrections filed an affidavit of violation of community control alleging that Rowan had failed to remain confined to his approved residence. On January 7, 1991, the trial court found that Rowan had violated his community control. The trial court then modified Rowan's community control *42 pursuant to section 948.03, Florida Statutes (1991), to require two months' county jail as a condition of his community control.
Sometime in 1995 Rowan was charged with violating his probation. The trial court revoked his probation and sentenced him to seven years' prison followed by seven years' probation. On appeal this court reversed, holding that the evidence was insufficient to support a finding of a willful violation of probation. Rowan v. State, 696 So. 2d 842 (Fla. 2d DCA 1997). Therefore, Rowan's original probation was reinstated.
In August 1998 the Department of Corrections filed another affidavit of violation of probation. This affidavit alleged that Rowan had failed to report as required for the last three months and had changed his residence without permission. An amended affidavit was filed in November 1998 adding an allegation that Rowan had committed new offenses. On February 9, 1999, the trial court revoked Rowan's probation and sentenced him to fifteen years' prison with credit for jail time already served. When imposing the fifteen-year sentence, the trial court bumped Rowan's permitted sentencing range one cell pursuant to Florida Rule of Criminal Procedure 3.701(d)(14) for the violation of probation in 1999. This new cell gave a permitted sentencing range of twelve to seventeen years. Thus, the sentence imposed by the trial court was in the middle of the permitted range. On direct appeal, this court affirmed the revocation of probation but remanded to the trial court to give Rowan credit for the prison time he had served on the earlier 1995 revocation of probation. Rowan v. State, 779 So. 2d 417 (Fla. 2d DCA 2000).
In this rule 3.800 motion, Rowan argues for the first time that the assessment of forty points for victim injury on his original scoresheet was error because victim injury points were not properly assessed for penetration at the time of his sentencing. He then argues that if those forty points are deducted, his total score would be 293 points, placing him in a cell giving a permitted sentencing range of seven to nine years. With the one-cell bump for the 1999 violation of probation, his permitted sentencing range would be nine to twelve years. Therefore, he contends that his fifteen-year sentence constitutes an upward departure sentence for which no written reasons were given.
In its response, the State contends that there is no error. The State appears to concede that the victim injury points may not be proper. However, the State contends that the trial court could bump Rowan's permitted sentencing range two cells-one for the 1991 violation of community control and one for the 1999 violation of probationthus placing him in the cell with a permitted sentencing range of twelve to seventeen years. Therefore, the State contends that any error in the assessment of victim injury points was harmless.
In denying Rowan's motion, the trial court held that Rowan could not raise the assessment of victim injury points issue in a rule 3.800 motion because it was a fact-specific issue that had to be addressed on direct appeal. Further, the trial court noted that any error in assessing victim injury points was not apparent from the face of the record and therefore could not be addressed in a rule 3.800 motion. The trial court then found that Rowan was properly bumped one cell for the violation of probation and was properly sentenced. Rowan then filed this timely appeal.
Resolution of this case implicates a procedural anomaly created by this court in response to the supreme court's opinion in Karchesky v. State, 591 So. 2d 930 (Fla. *43 1992). In Karchesky, the supreme court held that under the sentencing guidelines in effect during 1988, victim injury points could not be assessed simply for penetration. Id. at 932. Rather, victim injury points could be assessed only when there was evidence of actual physical injury or trauma. Id. However, the sentencing guidelines scoresheet in use at the time for sex offenders indicated that forty victim injury points should be assessed if there was evidence establishing penetration. Thus, under Karchesky, the sentencing guidelines scoresheet allowing for victim injury points for penetration without actual physical injury contained a fundamental error. Id. at 933; Morris v. State, 605 So. 2d 511, 513 (Fla. 2d DCA 1992).
As a result of the Karchesky opinion, defendants began filing rule 3.800 motions seeking to have the victim injury points removed from their scoresheets on the grounds that their sentences had been improperly enhanced by points for penetration without actual physical injury. See, e.g., Morris, 605 So.2d at 512. The problem in those cases was that often the State had not offered any evidence of actual physical injury because no such evidence appeared to be required at the time the sentences were imposed. In order to avoid penalizing the State for not foreseeing the Karchesky holding, this court created the following procedure:
[T]he question next arises how the trial courts should proceed after remand. Each of the appellants appears to believe he is entitled simply to have the "injury" points deleted and his sentence thereby reduced. We stop short of such a requirement. Nothing in the Karchesky decision suggests that a sex offender, like any other convicted felon, should not be penalized for inflicting physical injury. Accordingly, we believe the trial courts may conduct a de novo sentencing hearing at which time the extent of the actual injury may be debated by the parties.
Morris, 605 So.2d at 514 (footnote omitted). Thus, this court created a very narrow exception to the general rule that evidentiary hearings are not permitted in addressing motions filed pursuant to rule 3.800.
Not long after the Morris decision, this court noted that not all Karchesky motions required an actual evidentiary hearing. In Harrelson v. State, 616 So. 2d 128, 129 (Fla. 2d DCA 1993), this court reversed the denial of Harrelson's Karchesky motion, stating:
After remand the trial court may again deny the motion if, after review of the files and records or an evidentiary hearing, it is established that actual injury occurred in this case. If, on the other hand, no actual injury can be proved, the scoresheet must be corrected and Harrelson resentenced.
(Emphasis added) (citation omitted). Therefore, if the record in the trial court supports the imposition of victim injury points for actual physical injury, the rule 3.800 motion may be denied without an evidentiary hearing provided that the relevant portions of the trial record are attached showing that victim injury points were proper.
In this case, there is nothing in the record before this court to support the imposition of victim injury points. Therefore, we reverse and remand to the trial court for further proceedings. On remand, the trial court should review the trial court record, including the charging documents, information, and plea colloquy, to determine whether there is any factual basis in the record for scoring victim injury points. If so, the trial court may again deny relief and attach those portions of the record showing the support for victim injury *44 points. If not, the trial court should conduct a limited evidentiary hearing to determine whether there was any actual physical injury to the victim. If, after an evidentiary hearing, the State cannot prove actual physical injury to the victim, Rowan must be resentenced under a corrected scoresheet.
Because this case is being remanded for further proceedings, we address the State's argument that Rowan's sentence is proper regardless of the victim injury points because the trial court could have bumped Rowan's permitted sentencing range by two cellsone for his 1991 violation of community control and one for his 1999 violation of probation. Rowan argues that a one-cell bump for his 1991 violation is improper because his community control was not revoked. He points out that rule 3.701(d)(14) allows for a one-cell bump only "after revocation of probation or community control." He contends that because his community control was not revoked but was only modified, the trial court may not impose a one-cell bump for that violation.
Rowan's argument, while facially appealing, ignores the supreme court's decision in Williams v. State, 594 So. 2d 273 (Fla. 1992). In that case, the supreme court held that a defendant's permitted sentencing range may be bumped one cell for each violation of probation when there have been multiple violations. Id. at 275. In defining the phrase "multiple probation violations," the court held that it referred to "successive violations which follow the reinstatement or modification of probation rather than the violation of several conditions of a single probation order." Id. at 274 n. 3. See also Gilmore v. State, 724 So. 2d 647 (Fla. 2d DCA 1999) (adopting and applying this definition of multiple probation violations). Further, the supreme court clearly contemplated that one-cell bumps would be appropriate following modifications of probation because the court noted that to hold otherwise might "discourage judges from giving probationers a second or even a third chance [at probation]." Williams, 594 So.2d at 275. See also Marrs v. State, 770 So. 2d 277, 278 (Fla. 4th DCA 2000) (allowing a one-cell bump for each of three violations of probation, two of which were actually modifications and recommitments to probation). Under the reasoning of Williams, Rowan's 1991 violation of community control may be used to bump his permitted sentencing range one cell.
Reversed and remanded for further proceedings.
PARKER, A.C.J., and WHATLEY and NORTHCUTT, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608418/ | 21 So. 3d 41 (2009)
NOVA SOUTHEASTERN UNIVERSITY OF the HEALTH SCIENCES, INC., d/b/a College of Osteopathic Medicine, Appellants/Cross-appellees,
v.
Keith M. SHARICK, Appellee/Cross-appellant.
Nos. 3D08-2507, 3D08-2705, 3D08-2802.
District Court of Appeal of Florida, Third District.
August 26, 2009.
Rehearing Denied November 9, 2009.
*42 Panza, Maurer & Maynard, Richard A. Beauchamp and Mark A. Emanuele, Fort Lauderdale, for appellant/cross-appellee.
Mandina & Ginsberg; Philip D. Parrish, Miami, for appellee/cross-appellant.
Before RAMIREZ, C.J., and WELLS, and SUAREZ, JJ.
WELLS, Judge.
Nova Southeastern University of the Health Sciences, Inc., d/b/a College of Osteopathic Medicine "(Nova") appeals from the denial of its motions for a directed verdict and a new trial, and from orders awarding prejudgment interest and costs to Keith Sharick, a former student at its College of Osteopathic Medicine. Sharick cross-appeals the order awarding prejudgment interest. For the following reasons, we affirm each of the orders on appeal with the exception of the order on prejudgment interest.
This appeal arises from Sharick's dismissal from Nova's College of Osteopathic Medicine in March 1993, just two months before he was to receive a degree in osteopathic medicine ("a DO degree"). After exhausting the university's appeal process, Sharick brought the instant action, seeking specific performance and damages from Nova.
The first trial in this matter took place in August 1998 and resulted in a jury determination that Sharick's dismissal from the osteopathic medicine program was arbitrary, capricious and/or lacked any discernable rational basis. But, because the trial court only permitted the jury to consider damages with respect to tuition expenses, Sharick was awarded only $45,000 in damages.
In Sharick v. Southeastern University of Health Sciences, Inc., 780 So. 2d 136 (Fla. 3d DCA 2000) ("Sharick I"), this Court concluded that the trial court had erred in refusing to allow Sharick to plead and prove damages stemming from lost earning capacity and ordered a new trial on damages on remand:
In this case, the jury found that the university's decision to dismiss Sharick was arbitrary, capricious, and/or lacking any discernable rational basis. This determination is supported by competent, substantial evidence. Southeastern has not challenged the propriety of the adverse jury verdict on cross-appeal. Therefore, the sole issue presently before the court is the appropriate measure of damages for Sharick's wrongful dismissal less than two months prior to when he expected to graduate and obtain his degree as a doctor of osteopathic medicine (DO).
....
In valuing the loss of this degree within the context of an arbitrary, capricious or bad faith deprivation of such, we conclude that it is appropriate to consider the possibility of lost future earnings....
....
The record in this case establishes that but for Sharick's dismissal from the university, he would have obtained his DO degree some two months thereafter. As the fact of Sharick's damage as the result of Southeastern's breach of contract can be proved with certainty, we reverse and remand for a new trial on damages. Upon retrial, Sharick must be afforded the opportunity to plead and prove damages in the form of the loss of earning *43 capacity that would reasonably have resulted had he received his DO degree.
There is testimony in the present record suggesting that Sharick would have been foreclosed from enrolling or graduating elsewhere based upon the timing and nature of his dismissal from Southeastern. We conclude that this is an appropriate issue for the jury upon retrial. If the jury finds that it is no longer possible for Sharick to obtain a DO degree, then Southeastern would be foreclosed from complaining of the resulting uncertainty in proof of damage caused by its wrongful actions. Furthermore, there is evidence from which a jury could reasonably conclude that but for the wrongful deprivation of this degree, Sharick would have been able to practice in some capacity as a doctor of osteopathy.
....
... Accordingly, the extent or amount of the resulting impairment to Sharick's earning capacity may be determined by a jury based upon reasonable inference. Upon retrial, both parties are free to present evidence as to what impact Sharick's academic and clinical performance may have had upon his ultimate success as an osteopathic physician.
Alternatively, we recognize the potential for mitigation of damages if Sharick fails to establish that it would be impossible for him to obtain a DO degree at another institution. In that event, the appropriate measure of damages would only be the reproduction cost of acquiring the degree elsewhere. This would include a calculation of the present value of his lost income during the time period needed to acquire the degree, coupled with the tuition and associated costs incurred at the new school.
Sharick, 780 So.2d at 138-141 (footnotes omitted) (citations omitted).
The re-trial on damages took place in January 2008. At the conclusion of that trial, the jury was asked to decide whether Sharick could obtain a DO degree from another institution. If Sharick could obtain a DO degree from another institution, the jury was asked to award Sharick an amount equal to the lost income for the time period needed to obtain that degree. If he could not obtain a DO degree elsewhere, the jury was asked to award Sharick an amount that would compensate him for the earnings that he had lost in past and that he would lose in the future.
On February 4, 2008, the jury determined that Sharick could not obtain a DO degree from another institution, awarding him $813,000 for earnings lost in the past and $3.5 million (present value) for earnings that he would lose in the future. Final judgment for these two amounts was entered on August 29, 2008. Although prejudgment interest was denied on the past earnings award through the date of the verdict because the verdict form did not fix the date of Sharick's loss, $269,087 in prejudgment interest nonetheless was awarded on both the past and future lost earning awards from the date of the verdict through the date of the final judgment. In a separate order, $32,118.58 in costs was awarded to Sharick.
Nova timely filed a motion for new trial, alleging numerous errors with respect to evidentiary rulings, the jury instructions, and the jury verdict. This motion, along with Nova's motion for directed verdict, on which the lower court had previously reserved ruling, was denied.
In the school's consolidated appeals, Nova again raises many of the arguments made below regarding evidentiary rulings, the jury instructions and the jury verdict. With the exception of the prejudgment interest award, we find no reversible *44 error. As to the prejudgment interest award, we agree that the court below correctly refused to award prejudgment interest on the loss of past earnings award because the jury failed to fix a date of that loss. See Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 215 (Fla.1985) (finding that prejudgment interest is awardable based on a mathematical computation "[o]nce a verdict has liquidated the damages as of a date certain"); cf. Herrero v. Pearce, 571 So. 2d 96, 97 (Fla. 1st DCA 1990) (where a monetary judgment was entered against a father requiring him to pay back child support, ordering that prejudgment interest be calculated at the statutory rate "from each monthly date of loss when [the father] should have made each payment"); Metro. Dade County v. Bouterse, Perez & Fabregas Architects Planners, Inc., 463 So. 2d 526, 527 (Fla. 3d DCA 1985) (where a party breached a contract calling for progress payments over a period of time, finding that prejudgment interest should be calculated on each progress payment from the date it would have become due). We also agree that no such interest was proper in this case as to the loss of future earnings. See Mission Square, Inc. v. O'Malley's, Inc., 783 So. 2d 1151, 1152 (Fla. 1st DCA 2001) (finding that prejudgment interest is not recoverable where a judgment awards the present value of lost future damages, explaining that "[b]ecause present value actually replaces future losses, and takes into account an interest rate, it would be incongruent to tack onto the present value figure an additional interest rate representing a time prior to the time future losses begin to occur"). Because no prejudgment interest was appropriate in this case, awarding such interest between the date of the verdict and the date of the judgment was error.
Accordingly, that portion of the final judgment awarding prejudgment interest on past and future damages from the date of the verdict to the date of the final judgment is reversed. The remainder of the judgment as well as the cost order are otherwise affirmed.
Affirmed in part, reversed in part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608140/ | 21 So. 3d 1053 (2009)
Jimmie BOBB
v.
DEPARTMENT OF POLICE.
No. 2009-CA-0591.
Court of Appeal of Louisiana, Fourth Circuit.
October 1, 2009.
*1054 Raymond C. Burkart III, Burkart & Associates, L.L.C., Covington, LA, for Plaintiff/Appellant, Jimmie Bobb.
Penya Moses-Fields, City Attorney, Nolan P. Lambert, Chief Deputy City Attorney, Victor L. Papai, Jr., Assistant City Attorney, Shawn Lindsay, Assistant City Attorney, New Orleans, LA, for Defendant/Appellee.
(Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY and Judge EDWIN A. LOMBARD).
JOAN BERNARD ARMSTRONG, Chief Judge.
Lieutenant Jimmie Bobb (Lt. Bobb), an employee of the Department of Police for the City of New Orleans (NOPD), appeals a decision of the Civil Service Commission (Commission), denying his appeal of the discipline imposed by the appointing authority, the NOPD. For the following reasons, we reverse.
The NOPD hired Lt. Bobb on May 25, 1973, and on November 17, 2007, promoted him to his current status.
By letter dated February 13, 2008, the NOPD suspended Lt. Bobb for violation of department defensive driving techniques in *1055 connection with an accident on March 15, 2007. The March 15, 2007 accident occurred as Lt. Bobb drove the wrong way on a one-way street. Lt. Bobb was also ordered to attend an Accident Avoidance Training Course for one day, on his own time. The letter of February 13, 2008 further provided, "you the operator shared a portion or all the responsibility for the accident/incident, in which the operator of the department vehicle has disregarded laws and policies governing traffic laws and/or safe driving practices."
Lt. Bobb appealed the decision of the NOPD to impose discipline as a result of the accident to the Commission. The Commission appointed a hearing officer to take testimony, and a hearing was held on May 6, 2008. At the hearing, the parties stipulated that on March 15, 2007, Lt. Bobb did drive the wrong way on a one-way street and was involved in an accident. The accident resulted in damages to the police vehicle in the amount of $17,826.88 and damages to the other vehicle in the amount of $5,375.00.
Capt. Bryan Weiss, a member of the NOPD's Accident Review Board (ARB), testified that the ARB reviews accident reports, and thereafter decides whether or not discipline should be imposed on the driver involved in the accident. Following a hearing, the ARB determined that Lt. Bobb drove carelessly in violation of 17271 MCS Chapter 154, Section 383, relative to careless operation, and drove against traffic, a violation of 17271 MCS Chapter 154, Section 601. The ARB recommended to the NOPD that Lt. Bobb receive a five-day suspension and attend a driver's training course.
Capt. Weiss based his recommendation on a finding of fault against Lt. Bobb for driving the wrong way on a one-way street. Capt. Weiss recalled that Lt. Bobb stated at the hearing before the ARB that he did not know it was a one-way street. Capt. Weiss testified there were directional signs, but that he would not be able to testify to that himself, and expressed his belief that the officers who investigated the accident would testify before the hearing officer that there were directional signs in place. Capt. Weiss stated that he believed that Lt. Bobb got distracted and was driving at an excessive rate of speed, and was careless both in speeding and going the wrong way on a one-way street. According to Capt. Weiss, Lt. Bobb should have been familiar with the area as he spent more than one tour with the Fifth District, and, being a police officer, he should be familiar with the sign.
Detective Mike Wahl testified that he interviewed the other driver, Wanda Davis, and determined that the vehicles contacted and that the police vehicle rotated and made a second contact with the vehicle driven by Ms. Davis. The police vehicle traveled further and struck a house. Detective Wahl photographed the scene and identified the pictures of Ms. Davis' view as she approached the intersection revealing that Ms. Davis would be able to see the one-way sign as she approached the intersection, indicating that Lesseps was a one-way street. Detective Wahl did not calculate the speed at which Ms. Davis was traveling at the time of the accident.
Detective Wahl stated that he would have issued a citation to Lt. Bobb for going the wrong way on a one-way street if tickets were issued in an accident with a City vehicle, but that he would not have issued a citation for careless operation. Detective Wahl testified he noted on the report that Lt. Bobb was not distracted, and that Lt. Bobb stated he was traveling at a rate of speed of ten to fifteen miles per hour, which is consistent with trying to *1056 sneak up on someone conducting a narcotics transaction.
Lt. Bruce Little testified that he was the passenger in Lt. Bobb's vehicle and was his immediate supervisor on the night of the accident. They received a Code 2 emergency call that indicated that narcotics-related activity was occurring and involved suspects who might possibly be armed. Lt. Little testified that it is the passenger's job to navigate and when an intersection is approached, tell the driver that the intersection is clear. Lt. Bobb and Lt. Little proceeded to the scene, and Lt. Little told Lt. Bobb to turn once they reached the street Lt. Little guessed to be Lesseps Street. Approaching Lesseps Street from N. Robertson Street, there is no sign indicating the name of the street. Lt. Little testified that there were no street signs or traffic control signs at that point, that the area was essentially deserted and unmarked, and that neither he nor Lt. Bobb was aware Lesseps Street was a one-way street until they were at the actual intersection where the accident occurred. According to Lt. Little, Lt. Bobb had been in the Fifth District for only a few months at the time of the accident and it takes several months to become even vaguely familiar with a district. Lt. Little testified, "It was a guess, especially at night, which street you were on, whether you were familiar with the district or not, unless you could recognize a landmark, there was a lot of difficulty of which street is which."
Lt. Little testified that there were cars parked on both sides of Lesseps Street, facing both lake-bound and river-bound. Lt. Little stated he believed Lt. Bobb bore no culpability due to the lack of street signs and the lack of one-way signs, and said that he did not consider his telling Lt. Bobb to turn onto the street he believed to be Lesseps Street a direct order, but Lt. Bobb should respond unless he deemed the instruction to be unsafe or illegal.
Lt. Bobb testified that, at the time of the accident, he had been in the district only a few months and was not familiar with the area, having had no previous tours with the Fifth District. Lt. Bobb revealed that the district is still in disarray, with houses displaced, signs and street lights down, in the aftermath of the levee failures of 2005. Lt. Bobb stated he was learning the district by using a map, when he was in the car by himself, and by following along with what Lt. Little would tell him when they rode in a vehicle together. The map of the district upon which he relied did not indicate whether streets where one- or two-way, and he did not know Lesseps Street was a one-way street because he was not familiar with the district. Lt. Bobb stated that he listened to Lt. Little because he believed that Lt. Little knew the district, and also noted that "[t]here was no lighting. It was dark, but there was no street lighting."
Lt. Bobb admitted that even on one-way streets, it is common for cars to be parked on both sides of the street, facing in either direction, in the Fifth District, and stated that he was focused on driving and finding the suspected narcotics subject. Lt. Bobb contradicted Captain Weiss' testimony that he had told the captain that he had tunnel vision. Lt. Bobb testified he did not have any distractions the night of the accident, "except for it was dark, but there were no distractions, per se."
Lt. Bobb denied that he was speeding, claiming that he was driving at a speed of ten to fifteen miles per hour to insure that the perpetrator does not pass by unnoticed by the police. Lt. Bobb stated the amount of damage resulted from the accident coupled with the vehicle's having struck the house.
*1057 The Commission denied the appeal and upheld the discipline imposed by the NOPD. The Commission determined the officers were "cruising the neighborhood looking for individuals in the area suspected of drug dealing, but they were not in actual pursuit of a suspect." The Commission further determined:
After reviewing the record we cannot agree with Appellant's (Lt. Bobb) arguments. Though Appellant is correct that there was no one-way sign at the corner of North Robertson and Lesseps (when he initially made the wrong turn onto Lesseps) he went four blocks down Lesseps before he had the accident and on the corners of two of those four blocks there were one-way signs which should have alerted Appellant that he was going the wrong way.
The Commission has authority to "hear and decide" disciplinary cases, which includes the authority to modify as well as to reverse or affirm a penalty. La. Const. art. X, § 12; Pope v. New Orleans Police Dept., 04-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So. 2d 1, 4. The Commission has the duty to decide independently from the facts presented whether the appointing authority has good and lawful cause for taking the disciplinary action. Razor v. New Orleans Police Dept., 04-2002, p. 3 (La.App. 4 Cir. 2/15/06), 926 So. 2d 1, 4. The appointing authority is charged with the operation of its department and it is within its discretion to discipline an employee for sufficient cause. The Commission is not charged with such discipline. The authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Pope, supra, 04-1888, at 5-6, 903 So.2d at 4.
The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So. 2d 1093, 1094, citing Marziale v. Dept. of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So. 2d 760, 767. The civil service system protects civil service employees only from firing or other discipline without cause. La. Const. art. X, § 12; Cornelius v. Dept. of Police, 07-1257, pp. 5-6 (La.App. 4 Cir. 3/19/08), 981 So. 2d 720, 724.
The decision of the Commission is subject to review on any question of law or fact upon appeal to this court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const. art. X, § 12; Cure v. Dept. of Police, supra, 07-0166 at p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court should not modify the Commission order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the Commission is "arbitrary and capricious" if there is no rational basis for the action taken by the Commission. Cure, 07-0166, p. 2, 964 So.2d at 1095.
Lt. Bobb argues that the Commission committed legal error by failing to exercise properly its constitutional duty to review independently the facts and circumstances of this case to determine if lawful cause existed to impose discipline. Lt. Bobb's second and third assignments of error also address whether or not the Commission acted arbitrarily and capriciously in determining that cause existed to impose discipline.
*1058 In this instance, the NOPD imposed discipline, finding Lt. Bobb drove carelessly and against traffic. The NOPD further charged in its disciplinary letter that, "the operator shared a portion or all the responsibility for the accident/incident, in which the operator of the department vehicle has disregarded laws and policies governing traffic laws and/or safe driving practices." The NOPD bore the burden of proving these charges.
In support of this assignment of error, Lt. Bobb first points to the Commission's statement that he and Lt. Little were "cruising the neighborhood looking for individuals in the area suspected of drug dealing, but they were not in actual pursuit of a suspect." Lt. Little testified they received a Code 2 call, which is an emergency-type call, and in this instance, the call indicated that narcotics-related activity was occurring and involved suspects that might possibly be armed. We agree that the NOPD presented no evidence that Lt. Bobb and Lt. Little were "cruising the neighborhood." However, the Commission's mischaracterization of the testimony does not bear on whether or not the NOPD proved the charges contained in the disciplinary letter.
Next, Lt. Bobb contends that the Commission ignored the testimony and evidence regarding the lack of signs warning Lt. Bobb that he was traveling in the wrong direction. Lt. Bobb notes the Commission cited transcript pages 74-75, wherein the hearing officer stated:
I want to clear this up for the Commission, because during this break we were able to find out some things, and that is that between Robertson and Marais there are four intersections, okay. That's fact. And whatever could have been testified to before, because we have a report from another supervisor that we know for a fact that there were no directional signs at Robertson and Lesseps and that there are signs, one-way signs, at the other intersections. And my contention here, too, is that if you are going the wrong way you are not going to see them anyway because they are for people going the right way. But the other intersections did have directional signs, but where the appellant (Lt. Bobb) turned there were no signs. And this was very late, very dark, very few street lights, and we've got pictures in the record. This is all for the Commission to determine and look at, okay. But there are four intersections, and the other intersections had some controls for people who were driving the right way.
First, we note that there is no identification of the supervisor who provided this alleged report. Further, the alleged report of the unknown supervisor was not properly and officially introduced into evidence. In City of New Orleans v. Young, 08-0653, 08-0654, pp. 2-3 (La.App. 4 Cir. 11/12/08), 999 So. 2d 49, 50, citing Denoux v. Vessel Management Services, Inc., 07-2143, p. 6 (La.5/21/08), 983 So. 2d 84, 88, this Court noted that "evidence not properly and officially introduced cannot be considered, even if physically placed in the record." In this instance, the report of the unknown supervisor was not placed into the record. Furthermore, the hearing officer's conclusion concerning the evidence and testimony is not evidence properly and officially introduced at trial.
The properly introduced evidence and sworn testimony indicate that the only directional signs were located at the intersection of Lesseps Street and Marais Street. Capt. Weiss twice indicated that the testimony of the investigating officers was required to determine what, if any, directional signs were present on Lesseps Street
*1059 The investigating officer, Detective Wahl, testified that there were no one-way signs at the intersections along Lesseps Street from N. Robertson Street to Marais Street The accident occurred at the intersection of Lesseps Street and Marais Street Lesseps Street runs in a north-south direction and Marais runs in a west-east direction. A one-way sign is located on the western side and the eastern side of Lesseps Street The one-way signs are placed to warn drivers proceeding upon Marais Street that Lesseps Street is a one-way street. Lt. Little also testified that there were no street signs or traffic control signs, and said that neither he nor Lt. Bobb were aware that Lesseps was a one-way street until they were in the actual intersection where the accident occurred.
Additionally, Detective Wahl and Lt. Bobb testified that it was dark at the time of the accident and that there were hardly any functioning lights. The vehicle's lights illuminated what was directly in front of the vehicle. In the event that signs would have been located at intersections prior to Marais Street, those signs would not necessarily have been seen by Lt. Bobb or Lt. Little due to the lack of lighting. Any one-way signs at the intersection were not intended to warn those proceeding upon Lesseps Street that they were on a one-way street. Those signs were directional signs for vehicles approaching Lesseps Street, not those traveling upon Lesseps Street
Also, the Commission concluded Lt. Bobb "drove the police car four blocks the wrong way down Lesseps Street until it collided with a car having the right-of-ways proceeding down Marais Street." (Emphasis supplied in the original.). However, a review of the Fifth District map admitted into evidence reveals that Lt. Bobb could have traveled no more than three blocks when his car collided with the vehicle driven by Ms. Davis. From N. Robertson Street to N. Villere Street is the first block; from N. Villere Street to Urquhart Street is the second block; and from Urquhart Street to Marais Street is the third block.
Furthermore, Capt. Weiss stated Lt. Bobb, being a police officer, should be more familiar with the signs indicating that he might possibly be going up a one-way street the wrong way. The Commission cited no testimony or evidence in the record to support the conclusion that Lt. Bobb should have known that Lesseps Street was a one-way street. Indeed, the evidence and testimony show that there were no directional signs along Lesseps Street until the intersection with Marais Street. There were only a handful of cars and those cars were parked on both sides of the street and were parked facing both directions. The only light was provided by the police car's headlights. Our review of the record reveals no evidence that would have indicated to Lt. Bobb that he was traveling the wrong-way down a one-way street. Capt. Weiss stated Lt. Bobb should have been familiar with the area as he spent more than one tour with the Fifth District. However, that conclusion is contradicted by the testimony of both Lt. Little and Lt. Bobb that Lt. Bobb was, at the time of the accident, in the first few months of his first tour in the Fifth District.
Moreover, Lt. Little and Lt. Bobb testified that Lt. Bobb was traveling at ten to fifteen miles per hour. Detective Wahl, Lt. Little, and Lt. Bobb revealed such a speed is necessary to "sneak up" on a person suspected of conducting a narcotics transaction. Indeed, the NOPD presented no evidence that Lt. Bobb was speeding.
In this instance, the NOPD did not offer credible evidence that Lt. Bobb operated the police vehicle in a careless manner. *1060 Therefore, we find there is no rational basis for the decision of the Commission denying Lt. Bobb's appeal of the careless operation charge. Although Lt. Bobb drove the wrong way down a one-way street, the NOPD did not offer credible evidence that Lt. Bobb disregarded the laws in so doing. The NOPD assigned Lt. Bobb to the Fifth District just a few months prior to the accident. He testified that he was not very familiar with the district. Lt. Little testified it normally takes several months to become vaguely familiar with a district. It should also be noted that Lt. Bobb started his assignment in the Fifth District in the aftermath of the 2005 levee failures, in the course of which the Fifth District received severe and devastating damage. More than two years later, the area still lacked street lights and street and directional signs. Lt. Bobb testified that he attempted to familiarize himself with the district and utilized a map when not with Lt. Little to learn the area covered by the Fifth District. However, the map did not indicate one-way streets. Considering the state of the Fifth District at the time of the incident, it is understandable that Lt. Bobb was not sufficiently familiar with the area to know which streets were one-way. Therefore, we find there is no rational basis for the decision of the Commission denying Lt. Bobb's appeal to the Commission regarding the charge of driving against traffic. Therefore, we are compelled to conclude that the Commission acted arbitrarily and capriciously in denying Lt. Bobb's appeal. Considering this finding, Lt. Bobb's fourth assignment of error is moot.
Accordingly, the decision of the Commission is reversed.
REVERSED AND RENDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608151/ | 791 So. 2d 1179 (2001)
COPACABANA RECORDS, INC., Appellant,
v.
WEA LATINA, INC., Appellee.
No. 3D01-614.
District Court of Appeal of Florida, Third District.
July 25, 2001.
Rehearing Denied August 22, 2001.
*1180 Jeffrey P. Shapiro, Miami, for appellant.
Hunton & Williams, Miami, and Samuel A. Danon, Miami, and Alan R. Poppe, for appellee.
Before JORGENSON, COPE and GREEN, JJ.
PER CURIAM.
Copacabana Records, Inc., appeals an order dismissing its lawsuit against WEA Latina, Inc., without prejudice to refile in New York City pursuant to the forum selection clause of the parties' contract. We affirm.
First, we agree with Judge Postman that the forum selection clause is properly viewed as providing that New York City will be the exclusive forum for disputes between the parties pertaining to the agreement. We conclude that the seemingly contradictory language contained in the third sentence of the forum selection clause must be disregarded. "Where two clauses of an agreement are repugnant and cannot stand together, the first shall be received and the latter rejected." Boden v. Atlantic Federal Savings and Loan Association, 396 So. 2d 827, 829 (Fla. 4th DCA 1981) (citation omitted).[*]
As held in Manrique v. Fabbri, 493 So. 2d 437 (Fla.1986), "forum selection clauses should be enforced in the absence of a showing that enforcement would be unreasonable or unjust." Id. at 439 (footnote omitted). This requires a showing "that trial in the contractual forum will be so gravely difficult and inconvenient that [the party] will for all practical purposes be deprived of [its] day in court." Id. at 439 n. 4 (citation and internal quotation marks omitted). Copacabana has failed to make the required showing.
Copacabana contends that the lawsuit should remain here because it has in this same lawsuit sued another defendant, Caiman Records, claiming that Caiman has tortiously interfered with the contract between Copacabana and WEA Latina. That fact does not override the contractual forum selection clause. Copacabana's suit against Caiman can proceed without WEA Latina.
Affirmed.
NOTES
[*] The forum selection clause states:
THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK AND ITS VALIDITY, CONSTRUCTION, PERFORMANCE AND BREACH SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE WHOLLY PERFORMED THEREIN. COPACABANA AGREES TO SUBMIT TO THE JURISDICTION OF THE FEDERAL OR STATE COURTS LOCATED IN NEW YORK CITY IN ANY ACTION WHICH MAY ARISE OUT OF THIS AGREEMENT AND SAID COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER ALL DISPUTES BETWEEN WEA LATINA AND COPACABANA PERTAINING TO THIS AGREEMENT AND ALL MATTERS RELATED THERETO. NOTHING CONTAINED HEREIN SHALL LIMIT WEA LATINA'S RIGHTS TO INSTITUTE SUIT IN JURISDICTIONS OTHER THAN NEW YORK OR CONSTITUTE A WAIVER OF ANY OTHER REMEDIES AVAILABLE TO WEA LATINA. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608169/ | 791 So. 2d 535 (2001)
HORTICULTURE PLUS, INC., and Florida Retail Federation Self Insurer's Fund, Appellants,
v.
Vincent Michael ASH, Appellee.
No. 1D00-611.
District Court of Appeal of Florida, First District.
July 26, 2001.
*536 H. George Kagan and Elaine L. Thompson, Miller, Kagan, Rodriguez, and Silver, P.A., West Palm Beach, for Appellants.
Vincent A. Lloyd, Lloyd, Hoskins, & Pierce, Ft. Pierce; Lisa D. Harpring, Harpring & Harpring, LLP, Vero Beach, for Appellee.
POLSTON, J.
Employee Vincent Ash died on October 18, 1997, and is survived by his wife, Amy Ash, and his minor daughter. The parties dispute whether Mr. Ash's death was caused by (i) heart disease, or (ii) exposure to the herbicide Diquat Dibromide in combination with the physical exertion necessitated to spray the herbicide. Appellants assert that the Judge of Compensation Claims ("JCC") erred by not appointing an expert medical advisor ("EMA") pursuant to section 440.13(9)(c), Florida Statutes.
Contrary to the JCC's ruling, section 440.13(9)(c), Florida Statutes, provides for the mandatory appointment of an EMA where the issue is one of causation. See Palm Springs General Hospital v. Cabrera, 698 So. 2d 1352, 1355-56 (Fla. 1st DCA 1997) (§ 440.13(9)(c) is mandatory; EMA should have been appointed where there was a dispute over whether the claimant's injuries resulted from his accident at work or due to a preexisting condition).
Because the JCC ruled as a matter of law that section 440.13(9)(c) was not applicable to this case, he did not reach the factual determination as to whether there was disagreement in the opinions of health care providers under the statute. A "physician" is a health care provider, if certified by the Division of Workers' Compensation. See sections 440.13(1)(r), 440.13(1)(i), Fla. Stat. (1997); Pierre v. Handi Van, Inc., 717 So. 2d 1115, 1117 n. 3 (Fla. 1st DCA 1998)(physicians are considered to be health care providers by general definition, citing § 440.13(1)(i)). The JCC did not make any findings as to whether the testifying physicians were certified by the Division of Workers' Compensation.[1] Accordingly, we remand for the JCC to determine *537 whether the conditions required to appoint an EMA are present in this case.
Appellants also argue that the JCC erred by allowing the claimant to introduce the testimony of two independent medical examiners ("IME"). We agree. The JCC overruled Appellants' objection to the use of two IMEs "based on the different medical specialties" of the two physicians. Because the claimant did not make the showing for another IME required by section 440.13(5)(b), Florida Statutes (1997), the JCC's admission of two IME's testimony was in error. See Watkins Engineers and Constructors v. Wise, 698 So. 2d 294, 296 (Fla. 1st DCA 1997) (E/C failed to make showing under § 440.13(5)(b)(1) that second IME was permitted because an aspect of the employee's illness was outside of one physician's field and otherwise within the field of another physician; "[w]e reject the E/C's argument that the statute permits multiple IME's by physicians of different specialties"). We cannot say that the error was harmless. See Crawford & Company v. Baxla, 746 So. 2d 576, 577 (Fla. 1st DCA 1999)(admission of unauthorized physician testimony was erroneous, and although considered harmless in this case, "[i]n the future, such an erroneous admission will, in all likelihood, not be considered harmless and will result in reversal with the attendant inconvenience and expense.").
REVERSED and REMANDED.
ERVIN and KAHN, JJ., concur.
NOTES
[1] Contrary to the Appellants' argument, claimant preserved this issue for appeal by presenting it to the JCC. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608162/ | 791 So. 2d 1135 (2001)
Cleveland PINNOCK and Hezekia Jonathan Patterson, on behalf of themselves, and all other persons similarly situated, Appellants,
v.
SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, Appellee.
No. 4D00-1960.
District Court of Appeal of Florida, Fourth District.
April 11, 2001.
Rehearing Denied June 1, 2001.
David L. Gorman of David L. Gorman, P.A., North Palm Beach, Gregory S. Schell of Florida Legal Services, Inc., Belle Glade, and Edward Tuddenham of Wiseman, *1136 Durst and Owen, and Sarah H. Cleveland, Austin, TX, for appellants.
Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., John McCracken and Margaret L. Cooper of Jones Foster Johnston & Stubbs, West Palm Beach, and Charles Kelso and Michael Towers of Fisher & Phillips, Atlanta, GA, for appellee.
DELL, J.
This case was first before this court as an interlocutory appeal from an order that determined liability in Pinnock's favor. That order was reversed in Sugar Cane Growers Cooperative of Florida, Inc. v. Pinnock, 735 So. 2d 530 (Fla. 4th DCA 1999), rev. denied, 744 So. 2d 456 (Fla.1999)("Pinnock I"). On remand, Pinnock, et al. filed a motion for summary judgment in which they argued that the ten day notice given by Sugar Cane Growers Inc. (the Co-Op) advancing the end of the season's termination was invalid because it was not approved by the appropriate government officials as required by the terms of the employment contract. The Co-Op moved for entry of a final judgment of dismissal arguing that the decision in Pinnock I established the law of the case in favor of the Co-Op. The trial court denied Pinnocks' motion for summary judgment and entered a final judgment for the Co-Op finding that this court's opinion in Pinnock I left no issues for further adjudication. We affirm.
In Pinnock I, Pinnock argued in the alternative that the trial court's ruling on liability should be affirmed because the Co-Op had failed to obtain the required "approval of the appropriate government officials" of its "ten day notice in writing `advancing' the end of the harvest season's termination date." As a result, Pinnock's argument in this appeal that this court did not consider the approval of the ten day notice by the appropriate government officials in Pinnock I is unpersuasive. Pinnock made the argument concerning the lack of "approval by the appropriate government officials" in the answer brief, at oral argument, and, after this court reversed the trial court's ruling in their favor, in the motion for rehearing.[1]
We also reject Pinnock's argument that this court lacked jurisdiction in Pinnock I to consider their argument concerning the "approval" issue because it "was not even considered by the trial judge." As stated above, Pinnock placed the question of approval before this court. Furthermore, we conclude from the briefs, the presentation at oral argument and express language in this court's opinion in Pinnock I that the approval question was necessarily involved and decided. See Rogers v. State ex rel. Bd. of Pub. Instruction, 156 Fla. 161, 23 So. 2d 154 (1945); S/D Enters., Inc. v. Chase Manhattan Bank, 375 So. 2d 1109 (Fla. 3d DCA 1979).
This court stated in Pinnock I:
... [T]o interpret the contract in a way favored by the workers would permit the illegal employment of foreign workers beyond the period of employment in the clearance order for domestic workers. Moreover, allowing the foreign workers to be paid through April 30, 1989, whether or not they were provided with work opportunity, when domestic workers had no such right, is to give preferential treatment to the foreign workers, which is illegal as a matter of law. See 20 C.F.R, § 655.102(a).
*1137 We have construed the contract in accordance with its terms. Our interpretation is based solely upon the language of the contract, the best evidence of the intent of the parties ... The contract is clear and unambiguous. It does not lack mutuality, and it is not illegal. Based upon the terms of the contract, the workers are entitled to pay through the time specified in the end of season termination notice and not through April 30, 1989.
Pinnock I, 735 So.2d at 533 (emphasis added).
Therefore, we agree with the trial court's conclusion that:
It does not matter that the Fourth District did not more explicitly address the Plaintiffs argument. The Fourth District was well aware of the "appropriate government official" issue as it had been thoroughly briefed. In holding that March 16 was the termination date of the contractand that payment through April 30 would be illegal-the Fourth District necessarily rejected Plaintiffs argument that the notice was defective, did not terminate the contract, and that work opportunity was required through April 30. Any issues necessarily involved in the decision are regarded as law of the case and there is a presumption that all facts bearing on the points decided have received due consideration, whether all or none are mentioned in the opinion.
Accordingly, the judgment of the trial court is affirmed.
AFFIRMED.
GUNTHER and SHAHOOD, JJ., concur.
NOTES
[1] Pinnock also filed a petition for writ of mandamus in the supreme court to compel this court to consider the issue of approval by an appropriate government official. The supreme court denied the petition. See Cleveland Pinnock v. Sugar Cane Growers Coop. of Fla., Inc., 744 So. 2d 456 (Fla.1999) (table). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3035785/ | Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-22-2008
Patel v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2685
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Patel v. Atty Gen USA" (2008). 2008 Decisions. Paper 628.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/628
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2685
AMRISHBHAI CHIMANBHAI PATEL;
MAYABEN AMRISHBHAI PATEL,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A73-575-122 & A97-436-283
on May 10, 2007
Immigration Judge: Daniel Meisner
Submitted Under Third Circuit LAR 34.1(a)
June 25, 2008
Before: AMBRO, FISHER and JORDAN, Circuit Judges
(Opinion filed: August 22, 2008)
OPINION
PER CURIAM
Amrishbhai Chimanbhai Patel and his wife, Mayaben Amrishbhai Patel, both
natives and citizens of India, petition for review of the decision of the Board of
Immigration Appeals (BIA) affirming the Immigration Judge’s (“IJ”) order of removal.
For the reasons set forth below, we will deny the petition.
I.
The facts are well known to the parties and will not be repeated at length here. Mr.
Patel arrived in the United States in the early 1990s without a valid entry document and
was placed in removal proceedings upon service of a notice to appear on March 4, 2004.
Patel’s wife, who entered the United States in 1997 without a valid entry document, was
also placed in removal proceedings. Mr. Patel filed an asylum application in 1994. After
obtaining counsel, he withdrew the asylum application and applied for cancellation of
removal pursuant to 8 U.S.C. § 1229b(b). He claimed that he had established continuous
physical presence in the United States for at least ten years, that he was of good moral
character, that he had no criminal record, and that his deportation would constitute
exceptional and extremely unusual hardship on his two minor, American-born children.
Mrs. Patel applied for voluntary departure.
Upon completion of removal proceedings that occurred in 2005 and early 2006, the
IJ pretermitted Mr. Patel’s application for cancellation of removal, denied Mrs. Patel’s
2
request for voluntary departure, and ordered that the couple be removed to India.1 The
Patels appealed to the BIA. In May 2007, the BIA dismissed the appeal, adopting and
affirming the reasoning and conclusions of the IJ.
The Patels petition for review of the BIA’s decision. They argue that the IJ erred
in pretermitting Mr. Patel’s application for cancellation of removal and in denying
voluntary departure for Mrs. Patel without a hearing. They maintain that the IJ unduly
relied on Mr. Patel’s asylum application, his I-765 application, and his G3-35A form
(referred to collectively as the “1994 applications”) in making an adverse credibility
determination against him. They also contend that the IJ should have heard testimony and
considered other evidence demonstrating that Mr. Patel’s removal would cause extreme
hardship on the Patels’ two American-born, minor children.
II.
We have jurisdiction to review a final order of removal. 8 U.S.C. § 1252(a).
Where, as here, the BIA expressly adopts the IJ’s decision and reasoning pursuant to
Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), we review the decisions of both
the IJ and the BIA to determine whether the BIA’s decision to defer to the IJ was
appropriate. Shehu v. Gonzales, 482 F.3d 652, 657 (3d Cir. 2007). We review the factual
findings of the IJ, including adverse credibility findings, for substantial evidence.
1
The IJ also denied voluntary departure for Mr. Patel, although there is nothing in the
record to indicate that Mr. Patel requested it.
3
Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003). We will uphold the findings
if they are “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998)
(internal quotations marks and citation omitted). Moreover, “the BIA’s finding must be
upheld unless the evidence not only supports a contrary conclusion, but compels it.”
Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).
Substantial evidence supports the IJ’s conclusion that Mr. Patel’s testimony was
not credible as to whether he had shown ten years of continuous presence in the United
States.2 The IJ correctly noted that Patel’s 1994 applications, all of which were signed
under penalty of perjury, state that he arrived in the United States on October 16, 1994.
The 1994 applications, however, conflict with Patel’s later application for cancellation of
removal (also signed under penalty of perjury) and his sworn testimony at the hearing,
which state that he entered the country on March 13, 1993.3 Mr. Patel described the 1994
applications as “inaccurate,” attributing the error to the fact that someone else prepared
the applications for him. But the 1994 applications themselves were not co-signed by a
2
In addition to discrepancies in the documentary evidence and testimony pertaining to
Patel’s date of entry, the IJ also pointed to Patel’s mis-representation in his 1994
applications that he was not married. In the cancellation of removal application upon
which he now relies, Patel swore that he was married to his wife, Mayaben, in India in
1991.
3
Patel withdrew his asylum application because it was inaccurate. But it appears that
he did not withdraw or attempt to correct the I-765 application or the G3-35A form, even
though they, too, recorded his date of entry as October 1994.
4
third party preparer.
In deciding that Mr. Patel’s testimony was questionable, the IJ also pointed to the
lack of record evidence corroborating Patel’s assertion that he entered the country on
March 13, 1993. As we have previously acknowledged, the IJ may require corroborating
documentation even where an applicant is credible, and such corroboration is required
“where it is reasonable to expect such proof from a witness and there is no satisfactory
explanation for its absence.” Obale v. Att’y Gen., 453 F.3d 151, 163 (3d Cir. 2006).
Here, the IJ found that Patel had sufficient time (twenty-two months) to provide
corroborating evidence supporting his claim of entry in March 1993, such as a letter from
one of the friends with whom he shared a room in 1993, employment papers, or utility
and phone bills. Mr. Patel offered no excuse for failing to provide such documentation.
The IJ rejected Mr. Patel’s tax returns for tax years 2004, 2005, and 2006, because they
had all been completed in 2005 or 2006, and thus, were not probative of his date of entry.4
Although Patel testified that he was fingerprinted when he entered the country in March
1993, he also testified that he used a different name that he no longer remembered.5
4
It appears that, even if Patel had filed his tax returns at the appropriate time each
year, the evidence tended to show that he arrived in the country in 1994 at the earliest, the
first tax year for which he submitted a return.
5
The IJ also noted that Patel acknowledged that his children received Medicaid from
1998 to 2000 and from 2004 “to the present” in his cancellation of removal application,
but failed to provide any information about his assets in the United States. Moreover, the
IJ observed that Patel completed a labor certification that was filed in 2001, stating that
he was qualified as a chef, yet there was no record evidence that he held such a
qualification. Patel argues that he should have had an opportunity to explain these
5
Without that name, the government could not verify when Patel’s fingerprints were entered
into their database. We conclude that the inconsistencies between the 1994 applications and
Mr. Patel’s sworn testimony, alone, support the IJ’s adverse credibility determination as to
Mr. Patel. Moreover, the lack of any record evidence corroborating Mr. Patel’s asserted
date of entry in March 1993 convinces us that a reasonable adjudicator would not be
compelled to conclude that Mr. Patel’s testimony was credible.
Substantial evidence thus supports the IJ’s decision to pretermit Patel’s application
for cancellation of removal, on the basis that Patel failed to satisfy his burden of showing
continuous physical presence in the United States for ten years prior to the date upon which
he was served with a notice to appear, pursuant to 8 U.S.C. §§ 1229b(b)(1) and 1229b(d).
Because Patel failed to show ten years of continuous physical presence, further testimony
regarding the extreme hardship prong, however compelling it might have been, or on his
good moral character, would not have changed the result.
III.
Mayaben Patel challenges the IJ’s denial of her request for voluntary departure. We
lack jurisdiction over this claim because it does not involve “constitutional claims or
questions of law.” See 8 U.S.C. §§ 1252(a)(2)(B)(i), (a)(2)(D).
Accordingly, we will deny the petition for review filed by Amrishbhai and Mayaben
Patel.
discrepancies. This argument is misplaced, as the discrepancies go to Patel’s good moral
character and are not probative of whether Patel satisfied the continual presence standard
for cancellation of removal.
6 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2345663/ | 223 F. Supp. 2d 856 (2002)
EMERSON ELECTRIC CO., et al., Plaintiffs,
v.
SPARTAN TOOL, LLC, Defendant.
No. 1:00CV350.
United States District Court, N.D. Ohio, Eastern Division.
May 3, 2002.
*857 *858 *859 *860 *861 *862 Albert B. Deaver, Jr., Gregg A. Duffey, Howery, Simon, Arnold & White, Houston, TX, M. Neal Rains, Frantz Ward, Cleveland, OH, for Plaintiffs.
Arthur A. Gasey, Joseph N. Hosteny, III, Vasilios D. Dossas, Niro, Scavone, Haller & Niro, Chicago, IL, Deborah A. Coleman, Hahn, Loeser & Parks, Cleveland, OH, for Defendant.
Memorandum of Opinion and Order
GAUGHAN, District Judge.
INTRODUCTION
This matter is before the Court upon Plaintiffs' Motion for Claim Construction of Claims 29 and 35 of the '588 Patent and of Claims 1 and 22 of the '905 Patent, and Supporting Memorandum (Doc. 93); Plaintiffs' Motion for Claim Construction and for Summary Judgment of Infringement of Claim 24 of the '401 Patent, and Supporting Memorandum (Doc. 95); Spartan's Response and Cross Motion to Plaintiffs' Motion for Summary Judgment of Claim 24 of the '401 Patent (Doc. 103); Plaintiffs' Motion for Partial Summary Judgment of Infringement of Claim 29 of the '588 Patent and of Claim 22 of the '905 Patent, and Supporting Memorandum (Doc. 94); Spartan's Response to Plaintiff's Motion for Summary Judgment of Infringement and Cross Motion as to Claim 29 of the '588 Patent and Claim 22 of the '905 Patent (Doc. 114); Spartan's Motion for Summary Judgment on Non-Infringement (Doc. 96); Spartan's Motion for Summary Judgment on Invalidity (Doc. 108); and Plaintiffs' Motion for Partial Summary Judgment of No Unenforceability and Supporting Memorandum (Doc. 92).
This case arises out of the manufacture and sale by defendant Spartan Tool, LLC of an Original Model 502 Cable Machine and Modified Model 502 Cable Machine (hereafter collectively "Model 502 Cable Machines"). Plaintiffs allege these machines infringe three patents owned by plaintiff Emerson Electric Co. (hereafter "Emerson") and licensed to plaintiff Ridge Tool Company (hereafter "Ridge"). Two of the patents-in-suit describe and claim a drain cleaning apparatus that drives a cleaning cable or snake in and out of drains and pipes to open blockages therein. The third patent-in-suit describes and claims a feed control device to be used with the drain cleaning apparatus to control the feed, i.e., inward and outward movement, of the cleaning cable.
For the following reasons, Plaintiffs' Motion for Claim Construction of Claims 29 and 35 of the '588 Patent and of Claims 1 and 22 of the '905 Patent is GRANTED as set forth below; Plaintiffs' Motion for Claim Construction and for Summary Judgment of Infringement of Claim 24 of the '401 Patent is GRANTED as set forth below; Spartan's Cross Motion for Summary Judgment of Claim 24 of the '401 Patent is GRANTED IN PART and DENIED IN PART; Plaintiffs' Motion for Partial Summary Judgment of Infringement of Claim 29 of the '588 Patent and of Claim 22 of the '905 Patent is GRANTED; Spartan's Cross Motion as to Claim 29 of the '588 Patent and Claim 22 of the '905 Patent is DENIED; Spartan's Motion for *863 Summary Judgment on Non-Infringement is DENIED; Spartan's Motion for Summary Judgment on Invalidity is DENIED; and Plaintiffs' Motion for Partial Summary Judgment of No Unenforceability is GRANTED.
FACTS
Plaintiff Emerson is a Missouri corporation engaged in the manufacture and sale of industrial products, including electric motors, compressors, measuring instruments, power tools and plumbing equipment. (2d Am.Compl. ¶¶ 1, 6). Plaintiff Ridge is an Ohio corporation with its principal place of business in Elyria, Ohio. (2d Am.Compl. ¶ 2). Ridge is a subsidiary of Emerson and manufactures, develops, markets and sells tools to the professional pipeworking and plumbing industry. (2d Am.Compl. ¶ 7).
Defendant is a limited liability company existing under the laws of the State of Delaware. (2d Am. Compl. ¶ 3; Ans. ¶ 3).
Emerson is the owner by assignment of three patents invented by Michael Rutkowski[1] and directed to a method of cleaning pipes:
(1) U.S. Patent No. 6,009,588 entitled "Drain Cleaning Apparatus" (hereafter "'588 Patent");
(2) U.S. Patent No. 6,243,905 entitled "Drain Cleaning Apparatus" (hereafter "'905 Patent"); and
(3) U.S. Patent No. 5,901,401 entitled "Feed Control Device for Plumbing Tools" (hereafter "'401 Patent").
('588 Patent; '905 Patent; '401 Patent). Ridge is the exclusive licensee of all three patents. (2d Am.Compl. ¶¶ 10, 17, 26).
The '588 Patent was issued on January 4, 2000 and discloses an invention described as follows:
The inner end of a snake or drain cleaning cable coiled in a rotatable cable storage drum of drain cleaning apparatus is provided with a torque arm which frictionally engages the outer wall of the drum to restrain sliding of the cable relative thereto during a drain cleaning operation. The drain cleaning apparatus is motor driven, and a cable feed device for axially displacing the cable relative to the storage drum is provided on the outer end of a flexible guide tube detachably mounted on the apparatus to facilitate an operator guiding the outer end of the table [sic] into a drain to be cleaned and advancing or retracting the cable relative to the apparatus without having to physically contact the cable.
('588 Patent Abstract). The invention relates to the art of drain cleaning apparatus and, specifically, "to improvements in connection with transmitting torque to the drain cleaning cable in such apparatus and directing and feeding the cable into a drain or waste line to be cleaned." ('588 Patent col. 1, ll. 4-9). The invention seeks to provide improvements to the art by considerably increasing the torque transmitted from the cable storage drum to the cable over that previously available and providing the operator with a manually operable device for feeding the cable to and from the storage drum, thus precluding him from having to manually pull or push the cable relative to the drum. ('588 Patent col. 1, ll. 51 to col. 2, ll. 2). In addition, the flexibility of the guide tube enables the operator to direct the free end of the cable such that the cable can be fed or retracted *864 without the operator having to touch it. ('588 Patent col. 2, ll. 2-8).
The '905 Patent was issued on June 12, 2001 and is a continuation of the application that issued as the '588 Patent. Thus, the '905 Patent has claims of different scope directed to the same invention covered by the '588 Patent.
The '401 Patent was issued on May 11, 1999 and discloses a feed control device for plumbing tools which is "particularly suited for mounting on a hand held, power driven drain cleaning apparatus" having a drain cleaning cable contained in a rotating drum, such as that covered by the '588 and '905 Patents. ('401 Patent Abstract). When operating such an apparatus, the operator holds the feed control device in one hand and depresses its lever when he desires to move the cable axially in or out of the drum. ('401 Patent col. 3, ll. 35-38, 51-54). Because the lever is biased outward of the housing by a spring, the cable rotates but does not travel axially in or out of the drum when the operator stops applying pressure to the lever. ('401 Patent col. 6, ll. 28-57).
Ridge sells the Model K-40 family of drain cleaners in several configurations. (Rutkowski Aug. 20 Depo. 34). The plain Model K-40 Drain Cleaner has no guide hose or power feed. (Rutkowski Aug. 20 Depo. 34). The Model K-40PF Drain Cleaner has a power feed attached directly to the drain cleaner without a guide tube. (Rutkowski Aug. 20 Depo. 34). The Model K-40GPF Drain Cleaner has a guide tube attached to the drain cleaner and a power feed attached to the end of the guide tube. (Rutkowski Aug. 20 Depo. 34).[2] According to plaintiffs, the K-40GPF is the commercial embodiment of the '588 and '905 Patents, while the power feed used on the K-40PF and K-40GPF is covered by the claims of the '401 Patent.
Defendant sold the Original Model 502 Cable Machine from approximately October or November 1999 until October 19, 2000. (Sloter Depo. 65; Doc. 95 Ex. C). Rockwell Sloter[3] testified that defendant obtained a K-40GPF sometime after a October 16, 1998 product development meeting during which the device was discussed in connection with replacing defendant's Model 81, a drain cleaning device that had been sold by defendant since 1981. (Sloter Depo. 18, 26-27). One of the agenda items for that meeting was to discuss putting a flexible tube or "cable safety guide" over the cable of the Model 81 "like Ridge has" on the K-40GPF. (Sloter Depo. 24-25).
A Memorandum from defendant's November 11, 1998 product development meeting lists reverse engineering the K-40GPF as a future project agenda item. (Sloter Depo. 29; Doc. 104 Ex. M). Sloter testified that the reasons for reverse engineering Ridge's device were to "look at it" and "develop a replacement for" the Model 81. (Sloter Depo. 29-30). According to Sloter, reverse engineering a product includes visually inspecting it, taking it apart, testing it and checking its performance. (Sloter Depo. 30-31). By January 18, 1999, defendant had decided to design a drum and frame for what would become the Model 502 Cable Machines to look *865 similar in appearance to Ridge's K-40 line. (Sloter Depo. 39-40; Doc. 104 Ex. N). As noted above, defendant began selling its Original Model 502 Cable Machine in the fall of 1999.
Plaintiffs filed suit in this matter on February 4, 2000. (Doc. 1). In response to plaintiffs' allegations of infringement, defendant redesigned the Original Model 502 Cable Machine and replaced it with the Modified Model 502 Cable Machine in October 2000. (Doc. 95 Ex. C). Plaintiffs allege that defendant has been and is now infringing all three patents by making, selling and offering for sale the Model 502 Cable Machines. (2d Am.Compl. ¶¶ 11, 19, 27).
The Second Amended Complaint sets forth three causes of action. Count One alleges infringement of the '401 patent. Count Two alleges infringement of the '588 patent. Count Three alleges infringement of the '905 patent.
Defendant asserts eight Counterclaims.[4] Count One seeks a declaratory judgment of non-infringement of the '588 Patent. Count Two seeks a declaratory judgment of non-infringement of the '401 Patent. Count Three seeks a declaratory judgment of invalidity of the '588 Patent. Count Four seeks a declaratory judgment of invalidity of the '401 Patent. Count Six seeks a declaratory judgment of non-infringement of the '905 Patent. Count Seven seeks a declaratory judgment of invalidity of the '905 Patent. Count Eight seeks a declaratory judgment of unenforceability of the '588 Patent. Count Nine seeks a declaratory judgment of unenforceability of the '905 Patent.
STANDARD OF REVIEW
In accordance with Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when there are no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (citing); see also LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.1993). The burden of showing the absence of any such genuine issues of material facts rests with the moving party:
[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrates the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323, 106 S. Ct. 2548. A fact is material only if its resolution might affect the outcome of the lawsuit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
Once the moving party has satisfied its burden of proof, the burden then shifts to the nonmoving party pursuant to Federal Rule of Civil Procedure 56(c), which provides:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
*866 In ruling upon the motion, the court must afford all reasonable inferences and construe the evidence in the light most favorable to the nonmoving party. Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 150 (6th Cir.1995) (citation omitted); see also United States v. Hodges X-Ray, Inc., 759 F.2d 557, 562 (6th Cir.1985). However, summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322, 106 S. Ct. 2548).
DISCUSSION
Plaintiffs move for claim construction of Claims 29 and 35 of the '588 Patent, Claims 1 and 22 of the '905 Patent and Claims 24, 25 and 26 of the '401 Patent. In addition, plaintiffs move for partial summary judgment as to the infringement of Claim 29 of the '588 Patent and Claim 24 of the '401 Patent by the Original Model 502 Cable Machine and Claim 22 of the '905 Patent by the Modified Model 502 Cable Machine. Plaintiffs also move for summary judgment as to the enforceability of the '588 and '905 Patents.
Defendant moves for summary judgment as to the infringement of the '588 and '905 Patents by the Modified Model 502 Cable Machine. In response to two of plaintiffs' motions, defendant filed cross-motions for a finding of non-infringement as to Claim 29 of the '588 Patent and Claim 24 of the '401 Patent. Defendant also moves for summary judgment as to the invalidity of all three patents.
This Court will first address the issue of infringement of the asserted claims, which includes the construction of those claims, and then address the validity and enforceability of the patents-in-suit.[5]
I. Infringement
"Patent infringement occurs when a device (or composition or method), that is literally covered by the claims or is equivalent to the claimed subject matter, is made, used, or sold, without the authorization of the patent holder, during the term of the patent." Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1476 (Fed.Cir.1998). See also 35 U.S.C. § 271. A determination of infringement or non-infringement requires a two-step analysis:
*867 First, the claims of the patent must be construed to determine their scope. Second, a determination must be made as to whether the properly construed claims read on the accused device. The first step of this analysis-claim construction-is a question of law. Accordingly, it falls upon the district court to discern the meaning of the claim language. ... The second step of this analysis-the determination of whether the properly construed claims read on the accused device-is a question of fact. Thus, summary judgment... can only be granted if, after viewing the alleged facts in the light most favorable to the non-movant, there is no genuine issue whether the accused device is encompassed by the claims.
Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1304 (Fed.Cir.1999) (citations omitted). See also Markman v. Westview Instruments, Inc., 517 U.S. 370, 384, 116 S. Ct. 1384, 134 L. Ed. 2d 577 (1996); Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1341 (Fed.Cir.2001); Intermatic Inc. v. Lamson & Sessions Co., 273 F.3d 1355, 1363 (Fed.Cir.2001).
Thus, in order to determine whether defendant's Model 502 Cable Machines infringe the '588, '905 and/or '401 Patents, this Court must construe the claims at issue and, in the absence of a genuine issue of material fact, determine whether those claims read on the Model 502 Cable Machines. See WMS Gaming, Inc. v. Int'l Game Tech., 184 F.3d 1339, 1346 (Fed.Cir. 1999). "An infringement issue is properly decided upon summary judgment when no reasonable jury could find that every limitation recited in the properly construed claim either is or is not found in the accused device either literally or under the doctrine of equivalents." Gart v. Logitech, Inc., 254 F.3d 1334, 1339 (Fed.Cir.2001). See also Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1323 (Fed. Cir.2001) ("Summary judgment is appropriate when it is apparent that only one conclusion as to infringement could be reached by a reasonable jury.").
A. Claim Construction
Proper claim construction requires an understanding of the purposes and functions of the patent document, the statutory requirements for which are set forth in 35 U.S.C. § 112. The first two paragraphs of § 112 provide,
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
As explained by the Supreme Court,
It has long been understood that a patent must describe the exact scope of an invention and its manufacture to "secure to [the patentee] all to which he is entitled, [and] to apprise the public of what is still open to them." Under the modern American system, these objectives are served by two distinct elements of a patent document. First, it contains a specification describing the invention "in such full, clear, concise, and exact terms as to enable any person skilled in the art... to make and use the same." Second, a patent includes one or more "claims," which "particularly poin[t] out and distinctly clai[m] the subject matter which the applicant regards as his invention." ... The claim "define[s] the scope of a patent grant," and functions to forbid *868 not only exact copies of an invention, but products that go to "the heart of an invention but avoids the literal language of the claim by making a noncritical change."
Markman, 517 U.S. at 373-374, 116 S. Ct. 1384 (citations omitted).
Claim interpretation, commonly referred to as claim construction, "is the process of giving proper meaning to the claim language." Abtox, Inc. v. Exitron Corp., 122 F.3d 1019, 1023 (Fed.Cir.1997).
It is well-settled that, in interpreting an asserted claim, the court should look first to the intrinsic evidence of record, i.e., the patent itself, including the claims, the specification and, if in evidence, the prosecution history. Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language.
Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996) (citations omitted).
Intrinsic evidence is comprised of "a hierarchy of analytical tools." Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1344 (Fed.Cir.1998). According to this hierarchy, claim construction must begin with an examination of the language of the claims. Rexnord, 274 F.3d at 1341. See also Mycogen Plant Science v. Monsanto Co., 243 F.3d 1316, 1327 (Fed.Cir. 2001) ("When defining a claim term, we look first to the words of the claim itself."). "The actual words of the claim are the controlling focus." Digital Biometrics, 149 F.3d at 1344. The general rule is that "all terms in a patent claim are to be given their plain, ordinary and accustomed meaning to one of ordinary skill in the relevant art." Rexnord, 274 F.3d at 1342. In addition, each term in a claim "should be construed consistently with its appearance in other places in the same claim or in other claims of the same patent." Id. "Determining the limits of a patent claim requires understanding its terms in the context in which they were used by the inventor, considered by the examiner, and understood in the field of the invention." Toro Co. v. White Consol. Indus., Inc., 199 F.3d 1295, 1299 (Fed.Cir.1999).
However, "if `the term or terms chosen by the patentee so deprive the claim of clarity that there is no means by which the scope of the claim may be ascertained' by one of ordinary skill in the art from the language used, a court must look to the specification and file history to define the ambiguous term." Rexnord, 274 F.3d at 1343 (quoting Johnson Worldwide Assoc., Inc. v. Zebco Corp., 175 F.3d 985 (Fed.Cir.1999)). In addition, as explained by the Federal Circuit,
Once a disputed claim term is identified by the parties and its plain meaning to the ordinarily skilled artisan is ascertained by the court, the next step is to examine the written description and the drawings to confirm that the patentee's use of the disputed terms is consistent with the meaning given to it by the court. This confirmatory step is necessary for several reasons. First, patent law permits the patentee to choose to be his or her own lexicographer by clearly setting forth an explicit definition for a claim term that could differ in scope from that which would be afforded by its ordinary meaning. Second, because a claim construction that would exclude the preferred embodiment "is rarely, if ever, correct and would require highly persuasive evidentiary support," a court mindful of this canon of construction would need to examine the written description and the drawings to determine whether the preferred embodiment falls within the scope of a construed claim.
Furthermore, an examination of the written description and drawings is necessary to determine whether the patentee has disclaimed subject matter or has *869 otherwise limited the scope of the claims.
Rexnord, 274 F.3d at 1342-1343.
"The specification, of which the claims are part, teaches about the problems solved by the claimed invention, the way the claimed invention solves those problems, and the prior art that relates to the invention." Eastman Kodak Co. v. Goodyear Tire & Rubber Co., 114 F.3d 1547, 1554 (Fed.Cir.1997). "The specification contains a written description of the invention which must be clear and complete enough to enable those of ordinary skill in the art to make and use it." Vitronics, 90 F.3d at 1582. Thus, it "is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term." Id. "When the meaning of a term used in a claim is sufficiently clear from its definition in the patent specification, that meaning shall apply." Intermatic, 273 F.3d at 1365. The specification must be considered as a whole, and all portions of the written description must be read, "if possible, in a manner that renders the patent internally consistent." Budde v. Harley-Davidson, Inc., 250 F.3d 1369, 1379-1380 (Fed.Cir. 2001).
However, a patent applicant "is not required to describe in the specification every conceivable and possible future embodiment of his invention." Rexnord, 274 F.3d at 1344. A claim is not rendered invalid "simply because it embraces subject matter that is not specifically illustrated." Wang Lab., Inc. v. Am. Online, Inc., 197 F.3d 1377, 1383 (Fed.Cir.1999). Although the claims are informed by the specifications, "it is the claims that measure the invention." Rexnord, 274 F.3d at 1344. If claims "were to be limited to devices operated precisely as a specification-described embodiment is operated, there would be no need for claims. Nor could an applicant, regardless of the prior art, claim more broadly than that embodiment." SRI Int'l. v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 (Fed. Cir.1985). As the Federal Circuit has repeatedly noted, "Specifications teach. Claims claim." Rexnord, 274 F.3d at 1344 (quoting SRI Int'l, 775 F.2d 1107).
Thus, "it is generally impermissible to limit claim terms by a preferred embodiment or inferences drawn from the description of a preferred embodiment." Bell Atlantic Network Serv., Inc. v. Covad Communications Group, Inc., 262 F.3d 1258, 1273 (Fed.Cir.2001). While at times there is "a fine line between reading a claim in light of the specification, and reading a limitation into the claim from the specification," Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed.Cir.1998), that line must not be crossed. See also Gart, 254 F.3d at 1343 ("[B]road claims supported by the written description should not be limited in their interpretation to a preferred embodiment."); Burke, Inc. v. Bruno Indep. Living Aids, Inc., 183 F.3d 1334, 1341 (Fed. Cir.1999) ("[A]n attribute of the preferred embodiment cannot be read into the claim as a limitation."); Laitram Corp. v. Cambridge Wire Cloth Co., 863 F.2d 855, 865 (Fed.Cir.1988) ("References to a preferred embodiment, such as those often present in a specification, are not claim limitations.").
Whether an invention is fairly claimed more broadly than the "preferred embodiment" in the specification is a question specific to the content of the specification, the context in which the embodiment is described, the prosecution history, and if appropriate the prior art, for claims should be construed, when feasible, to sustain their validity.
Wang, 197 F.3d at 1383.
Finally, the prosecution history should be examined, if in evidence, "since statements *870 made during the prosecution of a patent may affect the scope of the invention." Rexnord, 274 F.3d at 1343. The prosecution history, also referred to as the file wrapper, "contains the complete record of all the proceedings before the Patent and Trademark Office, including any express representations made by the applicant regarding the scope of the claims." Bell Atlantic, 262 F.3d at 1268. An examination of the prosecution history reveals "whether the patentee has relinquished a potential claim construction in an amendment to the claim or in an argument to overcome or distinguish a reference." Id. See Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 452 (Fed.Cir.1985) ("The prosecution history...limits the interpretation of claims so as to exclude any interpretation that may have been disclaimed or disavowed during prosecution in order to obtain claim allowance."). However, "limitations cannot be read into the claims from the...prosecution history." Burke, 183 F.3d at 1340.
A "comprehensive examination of the claims, the specification, and the prosecution history...serves to ensure that all pertinent intrinsic evidence is considered in the proper interpretation of a claim." Rexnord, 274 F.3d at 1343.
[I]f the meaning of the claim limitation is apparent from the intrinsic evidence alone, it is improper to rely on extrinsic evidence other than that used to ascertain the ordinary meaning of the claim limitation. However, in the rare circumstance that the court is unable to determine the meaning of the asserted claims after assessing the intrinsic evidence, it may look to additional evidence that is extrinsic to the complete document record to help resolve any lack of clarity. This additional extrinsic evidence includes such evidence as expert testimony, articles, and inventor testimony. This extrinsic evidence may be used only to assist in the proper understanding of the disputed limitation; it may not be used to vary, contradict, expand, or limit the claim language from how it is defined, even by implication, in the specification or file history.
Bell Atlantic, 262 F.3d at 1268-1269 (citations omitted). "Patents should be interpreted on the basis of their intrinsic record, not on the testimony of such after-the-fact `experts' that played no part in the creation and prosecution of the patent." Bell & Howell Document Mgmt. Prods. Co. v. Altek Sys., 132 F.3d 701, 706 (Fed. Cir.1997).
While extrinsic evidence may be used to enhance the Court's general understanding of the technology at issue, it "cannot be used to contradict the established meaning of the claim language." Gart, 254 F.3d at 1340. See also Pitney Bowes, 182 F.3d at 1308 (stating district court's reliance on "expert testimony and other extrinsic evidence solely to help it understand the underlying technology" is not improper); Bell & Howell, 132 F.3d at 706.
The Federal Circuit has recognized that "the `ordinary and accustomed' meaning of a claim term will often be in dispute, irrespective of the clarity of the terms used." K-2 Corp., 191 F.3d at 1365. See also Senmed, Inc. v. Richard-Allan Med. Indus., Inc., 888 F.2d 815, 819 (Fed.Cir.1989) ("Lawyers may create a `dispute' about any word.").
But a dispute over the ordinary and accustomed meaning does not imply that such a meaning does not exist....[C]laim construction is not philosophy; we need not wring our hands when considering the implications of a metaphysical analysis of claim terms. Instead, we need only recognize that claim construction is firmly anchored in *871 reality by the understanding of those of ordinary skill in the art.
K-2 Corp., 191 F.3d at 1365.
Plaintiffs argue that each word and phrase contained in the asserted claims should be given its ordinary and accustomed meaning in light of the patents' claims, specifications and prosecution histories. Plaintiffs contend that none of the asserted claims contain specially-defined words and resort to extrinsic evidence is unnecessary.
Defendant does not directly address all of the words and phrases at issue in plaintiffs' asserted claims. In fact, defendant does not even mention several of the phrases discussed by plaintiffs.[6] As to these phrases, this Court assumes that defendant accepts plaintiffs' construction.
As to the remaining phrases, defendant's argument essentially rests on its implied contention that the asserted claims must be construed to encompass only the preferred embodiments disclosed in the patents. According to defendant, there are only three words which must be construed to require a finding of non-infringement as a matter of law: "mounted," "supported" and "adjacent." Defendant claims that these three words all have the same meaning, i.e., "directly attached to."[7]
1. The '588 Patent
Plaintiffs move this Court to construe several phrases contained in Claims 29 and 35 of the '588 Patent, each of which is set forth separately below.
a. Claim 29
Claim 29 of the '588 Patent claims,[8]
Drain cleaning apparatus, comprising a frame, a cable drum supported on said frame for rotation about a drum axis, said drum having axially spaced front and rear ends and an opening through said front end, a drain cleaning cable coiled in said drum about said axis and having an end for extending through said opening and into a drain to be cleaned, a drive motor supported on said frame for rotating said drum and cable, said frame including a frame portion outwardly adjacent said opening, a guide tube for receiving said end of said cable, said guide tube having an inner end mounted on said frame portion and an outer end spaced from said frame portion, said guide tube being flexible between said inner and outer ends for directing said outer end toward a drain to be cleaned, and a manually operable cable feed device on said outer end of said guide tube for selectively axially displacing said cable relative to said *872 drum during rotation of said drum and cable about said drum axis.
('588 Patent col. 11, ll. 30-46).
i. "said frame including a frame portion outwardly adjacent said opening"
Plaintiffs argue that the word "outwardly" should be construed as meaning "on the outside" or "externally" such that Claim 29 requires the frame portion to be on the outside of or external to the drum opening.
Defendant argues that the words "outwardly adjacent" require that the frame portion be in front of the drum opening in the direction of the guide tube. According to defendant, the specification defines the opening of the drum to be the orifice at the extreme end of the hub and collar assembly. Because the figures show that the frame extends "in front of" or "outward from" that opening, defendant contends that Claim 29 requires that the frame portion extend "forwardly of" or "in front of" the drum. Defendant argues that plaintiffs have failed to establish that a person skilled in the art would understand another location for the frame portion that would allow the guide tube to be mounted such that it could receive the cable from the drum.
This Court finds that the plain and ordinary meaning of the phrase "said frame including a frame portion outwardly adjacent said opening" requires that the frame portion be next to or in close proximity to and outside of or external to the drum opening. The plain and ordinary meaning of that phrase does not require that the frame portion be both next to and in front of the drum opening. None of the terms at issue are technical, nor have they been assigned a special meaning by the patentee. This Court will not read an additional requirement into the plain language of Claim 29 that the frame portion be in front of the drum opening. While the drawings of the '588 Patent show the frame portion 18a in front of, as well as outside of, the drum opening, the unmodified claim language can not be limited by a preferred embodiment or inferences drawn from its description.
An examination of other portions of the '588 Patent indicate that the patent applicant knew how to modify the word "outwardly" when it intended to do so. For example, Claim 31 provides that the "drive actuating means" is biased "radially outwardly of the passage." ('588 Patent col. 11, ll. 58-59).
The parties have pointed to nothing in the prosecution history which reflects on the construction of this phrase, and the use of extrinsic evidence would be improper. Thus, this Court will construe the phrase according to its plain meaning as set forth above.
ii. "a guide tube for receiving said end of said cable, said guide tube having an inner end mounted on said frame portion"
Plaintiffs argue that the word "mounted" should be construed such that Claim 29 requires that the inner end of the guide tube be directly or indirectly mounted on the frame portion. In addition, according to plaintiffs' proposed construction, the inner guide tube is removable, i.e., it need not be permanently fixed to the frame portion.
Defendant argues that Claim 29 of the '588 Patent requires direct physical contact between the guide tube and the frame. Defendant's argument is based largely on its contention that the mounting bracket is part of the frame. Thus, according to defendant, the '588 Patent "teach[es] the use of a guide tube attached directly to a frame." Defendant claims that the embodiments in the '588 Patent show a direct connection between the *873 guide hose and the frame.[9] Defendant also argues that the prosecution history of the '588 Patent distinguishes prior art which teaches a guide tube attached directly to the drum. Finally, defendant argues that plaintiffs' proposed construction ignores the testimony of the sole inventor. Defendant does not address the issue of the detachability of the guide tube.
This Court finds that the plain and ordinary meaning of the phrase "said guide tube having an inner end mounted on said frame portion" does not require that the inner end of the guide tube be directly and permanently in contact with the frame. Rather, this Court finds that the word "mounted" requires that the inner end of the guide tube be directly or indirectly (and detachably) connected to the frame. If defendant's construction of the phrase were to be accepted, additional limitations would be added to the claim language which are not currently present. There is no requirement in the '588 Patent that the guide tube be in direct contact with the frame portion. To the contrary, the very nature of mounting requires intermediate mounting elements.[10]
In addition, under defendant's interpretation of Claim 29, the preferred embodiment of the '588 Patent would be excluded. Absent compelling evidence, such a construction cannot be accepted. In the specification, the guide tube is connected to the frame through several intermediate parts, including a mounting bracket 124 and a coupling arrangement 202. ('588 Patent col. 7, ll. 66 to col. 8, ll. 5). In addition, the Description of the Preferred Embodiments provides,
In accordance with yet another aspect of the invention, as shown in FIGS. 7 and 8 of the drawing, drain cleaning cable feed device 122 is mounted on the outer end of a flexible guide tube assembly 196 having its inner end detachably connected to adaptor 188 of mounting bracket 124.
('588 Patent col. 7, ll. 36-39) (emphasis added). Thus, in the preferred embodiment, the guide tube is removable and does not directly come in contact with the frame.
Contrary to defendant's argument, nothing in the '588 Patent indicates that mounting bracket 124 is part of the frame. As set forth below, Claim 35 claims "a *874 mounting bracket on said frame portion." ('588 Patent col. 12, ll. 7) (emphasis added). In addition, the specifications and figures clearly indicate that the mounting bracket 124 and the frame portion 18a are separate elements. For example, the Description of the Preferred Embodiments states,
As mentioned above, cable feed device 122 is adapted to be mounted on frame portion 18a by means of a mounting bracket 124. As seen in FIGS. 5 and 6, mounting bracket 124 includes an L-shaped bracket plating having a vertical leg 180 and a horizontal leg 182 extending forwardly from the lower end thereof and secured to the frame portion 18a such as by a pair of bolts 184 extending upwardly through openings therefore in frame portion 18a and into threaded engagement with nuts 185 welded on leg 182 of the bracket plate.
('588 Patent col. 6, ll. 61 to col. 7, ll. 2). See also Engel Indus., Inc. v. Lockformer Co., 96 F.3d 1398, 1405 (Fed.Cir.1996).[11] Because the frame portion and the mounting bracket are not one and the same thing, defendant's arguments regarding the embodiments shown must fail. As noted above, the specification clearly teaches intermediate elements between the inner end of the guide tube and the frame portion.[12]
Defendant argues that plaintiffs distinguished the guide tube configurations in the prior art, which involved a direct connection between the guide tube and the drum, from its guide tube configuration, which involves a direct connection between the guide tube and the frame. Thus, according to defendant, plaintiffs "disavowed what the prior art shows: direct connections between the drum and the guide tube."
An Information Disclosure Statement (hereafter "IDS") filed on July 16, 1998, states,
The patents identified on Form PTO-1449 attached hereto and which patents are discussed below, represent the most relevant prior art presently known to applicant in connection with the subject matter of the above-identified patent application.
* * * * * *
4,570,281 to Boelens discloses a motorized snake drum having a guide tube within the drum and a tubular operating sleeve coupled to the outlet end of the drum.[13]
*875 (Doc. 96 Ex. F). A Supplemental IDS filed on December 13, 1999, lists additional relevant prior art and states,
None of the prior art submitted herewith discloses drain cleaning apparatus including a flexible guide tube for receiving a drain cleaning cable and having an inner end supported on the apparatus frame and a manually operable cable feed device on the outer end of the guide tube.
(Doc. 96 Ex. G).
"An IDS is part of the prosecution history on which the examiner, the courts, and the public are entitled to rely." Ekchian v. Home Depot, Inc., 104 F.3d 1299, 1304 (Fed.Cir.1997). In an IDS, a patent applicant may distinguish "his invention from the submitted prior art as a kind of preemptive strike against a potential rejection." Id. Such distinctions "may affect the scope of the patent ultimately granted." Id. For this reason, "statements made in an IDS can be the basis for a court to interpret the scope of the claims of a granted patent." Id. "[B]y distinguishing the claimed invention over the prior art, an applicant is indicating what the claims do not cover, [and] he is by implication surrendering such protection." Id.[14]
Thus, the IDS and Supplemental IDS are relevant to the construction of Claim 29 of the '588 Patent. However, this Court finds that defendant's argument reads too much into those documents. As noted by plaintiffs, it is the very rare patent that does not recite at least one structure that existed in the prior art. One test for patentability is whether the claimed invention combines old structures in a new way. As noted by the Federal Circuit, efforts to establish that each individual claim limitation "may be found somewhere in the prior art [are] unavailing." Rosemount, Inc. v. Beckman Instruments, Inc., 727 F.2d 1540, 1546 (Fed. Cir.1984). "[A] combination may be patentable whether it be composed of elements all new, partly new, or all old." Id. Nothing in the prosecution history establishes that plaintiffs distinguished the relevant prior art based on the fact that the guide hose was indirectly mounted on the frame. A valid distinction between the Boelens Patent (and other disclosed prior art) and the '588 Patent does not require the disavowment of a guide tube indirectly and detachably mounted on the frame. Thus, the evidence submitted fails to show that plaintiffs disavowed the construction of "mounted" they now seek.[15]Cf. K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1369 (Fed.Cir.1999) (finding patentee disavowed detachable design where "patent would probably not have been (re)issued without the amendments" claiming permanent attachment).
It is important to note that, contrary to defendant's implication, plaintiffs do not ask that Claim 29 be construed to literally cover devices with guide tubes having an *876 inner end mounted on the drum. Plaintiffs merely move this Court for a construction of the word "mounted" such that Claim 29 requires that the inner end of the guide tube be directly or indirectly detachably connected to the frame portion.
Defendant's reliance on the testimony of Rutkowski is misplaced.[16] The use of this extrinsic evidence would be improper because the meaning of the claim limitation is apparent from the intrinsic evidence alone. Inventor testimony may not be used to vary, contradict, expand or limit claim language from how it is defined in the specification or file history.
Thus, this Court will construe the phrase according to its plain meaning as set forth above.
iii. "a manually operable cable feed device on said outer end"
Plaintiffs argue that the words "manually operable" should be construed as meaning "hand operable" as opposed to automatic or non-hand operable. According to plaintiffs, an operator of the '588 Patent is able to hand operate the device for feeding the cable instead of having to push or pull the cable with his hand.
Defendant does not present any argument regarding the construction of this phrase.
This Court finds that the plain and ordinary meaning of the phrase "a manually operable cable feed device" requires a cable feed device which is operated by hand and is not automatic. None of the terms at issue are technical, nor have they been assigned a special meaning by the patentee. In addition, plaintiffs' construction of the phrase is supported by the Summary of the Invention, which states in part,
In accordance with another aspect of the invention, the outer or free end of a drain cleaning cable extends through a flexible guide tube which is provided on its outer end with a manually operable device for feed the cable from and to the storage drum, thus to preclude an operator having to manually pull or push the cable relative to the drum.
('588 Patent col. 1, ll. 64 to col. 2, ll. 2).
The parties have pointed to nothing in the prosecution history which reflects on the construction of this phrase, and the use of extrinsic evidence would be improper. Thus, this Court will construe the phrase according to its plain meaning as set forth above.
*877 iv. "for selectively axially displacing said cable relative to said drum during rotation"
Plaintiffs argue that the words "selectively axially displacing said cable" should be construed as meaning that the operator may select between feeding the cable in or out of the drum or having the cable remain axially stationary or neutral. According to plaintiffs, the phrase indicates that the driving mechanism of the cable feed device is not always engaged.
Defendant does not present any argument regarding the construction of this phrase.
This Court finds that the plain and ordinary meaning of the phrase "for selectively axially displacing said cable relative to said drum during rotation" requires that, while the drum is rotating, the operator be able to feed the cable in or out of the drum or maintain the cable in a stationary position relative to the drum. Of course, the cable continues to turn on its axis while the drum is rotating.
The parties have pointed to nothing in the prosecution history which reflects on the construction of this phrase, and the use of extrinsic evidence would be improper. Thus, this Court will construe the phrase according to its plain meaning as set forth above.
b. Claim 35
Claim 35 of the '588 Patent, which is dependant on Claim 29[17] and adds a limitation, claims,
Drain cleaning apparatus according to claim 29, further including a mounting bracket on said frame portion, said guide tube including a hose of elastomeric material having opposite ends, said inner end of said guide tube comprising coupling means on one of said ends of said hose for connecting said hose to said mounting bracket, and said outer end of said guide tube comprising means on the other end of said hose for connecting said hose to said feed device.
('588 Patent col. 12, ll. 6-13).
Plaintiffs contend, and defendant does not dispute, that the two claim limitations at issue in Claim 35 are presented in means-plus-function format. Thus, according to plaintiffs, the limitations must be interpreted according to 35 U.S.C. § 112 ¶ 6. For each phrase, plaintiffs ask that this Court identify the functions recited in the claim and then the corresponding structures described in the specification that perform those functions.
35 U.S.C. § 112 ¶ 6 provides,
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
A means-plus-function limitation "recites a function to be performed rather than definite structure or materials for performing that function. Such a limitation must be construed `to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.'" Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1307-1308 (Fed.Cir.1998) (citations omitted).
"In construing means-plus-function claim limitations, a court must first define the particular function claimed." Budde, 250 F.3d at 1376. Next, "the court must identify `the corresponding structure, material, or acts described in *878 the specification.'" Id. The scope of the claim limitation cannot be measured "until the structure corresponding to the claimed function in a means-plus-function limitation is identified and considered." Id.
"Determining the claimed function and the corresponding structure for a claim limitation written in means-plus-function format are both matters of claim construction." WMS Gaming, 184 F.3d at 1347.
i. "said inner end of said guide tube comprising coupling means on one of said ends of said hose for connecting said hose to said mounting bracket"
Plaintiffs contend that the recited function in this phrase is "for connecting said hose to said mounting bracket" and the corresponding structure described in the specification is coupling arrangement 202 and all equivalents thereof. Plaintiffs further contend that the words "on one of said ends of said hose" merely provide the location of the coupling means and are not part of the recited function.
Defendant argues that Claim 35 makes clear that the frame can include a mounting bracket. As indicated above, defendant's argument on this point lacks merit. In fact, this Court is hard pressed to imagine how Claim 35 could be read in such a way.
Defendant does not, however, specifically dispute plaintiffs' construction of the function and corresponding structure of the phrase at issue. This Court agrees with plaintiffs' construction of this phrase.
ii. "said outer end of said guide tube comprising means on the other end of said hose for connecting said hose to said feed device"
Plaintiffs contend that the recited function in this phrase is "for connecting said hose to said feed device" and the corresponding structure described in the specification is coupling arrangement 200 and all equivalents thereof. Plaintiffs further contend that the words "on the other end of said hose" merely provide the location of the coupling means and are not part of the recited function.
Defendant does not present any argument regarding the construction of this phrase.
This Court agrees with plaintiffs' construction of this phrase which defendant does not dispute.
2. The '905 Patent
Plaintiffs move this Court to construe several phrases contained in Claims 1 and 22 of the '905 Patent, each of which is set forth separately below. The '905 Patent is a continuation of the '588 Patent and, thus, relies on the same specification.
a. Claim 1
Claim 1 of the '905 Patent claims,
Drain cleaning apparatus comprising a frame, a cable drum supported on said frame for rotation about a drum axis, said drum having axially spaced front and rear ends and an opening through said front end, a drain cleaning cable coiled in said drum about said axis and having an end for extending through said opening and into a drain to be cleaned, drive means on said frame for rotating said drum and cable, a flexible guide tube for receiving said end of said cable, said guide tube having an inner end supported on said frame and an outer end spaced from said inner end, and a manually operable cable feed device on said outer end of said guide tube for selectively axially displacing said cable relative to said drum during rotation *879 of said drum and cable about said drum axis.
('905 Patent col. 9, ll. 2-15).
i. "drive means on said frame for rotating said drum and cable"
Plaintiffs contend that this phrase is presented in means-plus-function format. According to plaintiffs, the recited function is "for rotating said drum and cable" and the corresponding structures described in the specification are a reversible motor 34, a pulley 36, a pulley 40 and an endless belt 42 and all equivalents thereof.
Defendant does not present any argument regarding the construction of this phrase.
This Court agrees with plaintiffs' construction of this phrase which defendant does not dispute.
ii. "said guide tube having an inner end supported on said frame and an outer end spaced from said inner end"
Plaintiffs argue that the word "supported" should be construed such that Claim 1 requires that the frame provide support directly or indirectly for the inner end of the guide tube.
Defendant argues that Claim 1 requires that the guide tube have "some contact with the frame in order to provide support."
This Court finds that the plain and ordinary meaning of the phrase "said guide tube having an inner end supported on said frame portion" does not require that the inner end of the guide tube be directly in contact with the frame. If defendant's construction of the phrase were to be accepted, an additional limitation would be added to the claim language which is not currently present. In addition, as discussed above, defendant's construction excludes the preferred embodiment. Instead, this Court finds that the asserted claim language merely requires that the frame provide direct or indirect support for the inner end of the guide tube.
None of the terms at issue are technical, nor have they been assigned a special meaning by the patentee. Other than the evidence already rejected above, the parties have pointed to nothing in the prosecution history which reflects on the construction of this phrase, and the use of extrinsic evidence would be improper. Thus, this Court will construe the phrase according to its plain meaning as set forth above.
iii. "a manually operable cable feed device...for selectively axially displacing said cable relative to said drum during rotation"
Plaintiffs argue that the same construction of this phrase discussed above with respect to the '588 Patent is applicable to Claim 1 of the '905 Patent.
Defendant does not present any argument regarding the construction of this phrase.
This Court agrees with plaintiffs' construction of this phrase which defendant does not dispute.
b. Claim 22
Claim 22 of the '905 Patent claims,
Drain cleaning apparatus comprising:
a frame;
a cable drum supported by the frame for rotation about a drum axis, the drum having axially spaced front and rear ends and an opening through the front end;
a drain cleaning cable coiled in the drum about the axis and having an end extending through the drum;
a drive motor supported by the frame for rotating the drum and cable;
a guide tube for receiving the end of the cable, the guide tube having a first end *880 [adjacent][18]the drum opening and a second end spaced from the drum opening, the guide tube being flexible between the first and second ends for directing the cable toward a drain to be cleaned; and,
a manually operable cable feed device coupled to the second end of the guide tube for selectively axially displacing the cable relative to the guide tube during rotation of the drum and cable about the drum axis, the cable having an end for extending through the drum opening, into the first end of the guide tube, out of the second end of the guide tube, and into a drain to be cleaned.
('905 Patent col. 11, ll. 10 to col 12, ll. 15).
i. "a guide tube for receiving the end of the cable, the guide tube having a first end [adjacent] the drum opening and a second end spaced from the drum opening"
Plaintiffs argue that the phrase "adjacent the drum opening" should be construed as meaning that the first end of the guide tube is "in close proximity to" or "next to" the drum opening.
Defendant argues that Claim 22 "obviously requires some physical structure to make the guide tube `adjacent the drum opening' i.e., a frame for support."
This Court agrees with plaintiffs that the ordinary and accustomed meaning of the word "adjacent" is "in close proximity to" or "next to." As claimed, the cable has "an end for extending through the drum opening." The claimed purpose of the guide tube is "for receiving the end of the cable." Thus, the drum opening and the guide tube must be in close proximity to or next to each other.
The specification of the '905 Patent supports this conclusion. A comparison of the Drawing Sheets and Description of Preferred Embodiments reveals that when the term "adjacent" is used, the elements discussed are in close proximity to or next to each other. Compare col. 4, ll. 40-41 ("[A]s best seen in Figs. 3 and 4 of the drawing, cable 70 has an inner end 98 disposed adjacent the juncture between outer wall 86 and rear wall 88.") with Figs. 3 and 4 and col. 5, ll. 5-9 ("As will be appreciated from Fig. 3, leg 104 of the torque arm is adjacent outer wall 86 of the cartridge housing and extends from the juncture between outer wall 86 and rear wall 88 to a point adjacent the juncture between the outer wall and front wall 94.") with Fig. 3.
Contrary to defendant's argument, Claim 22 does not obviously require that the frame directly support the guide tube. Claim 22 indicates that the cable drum and drive motor are supported by the frame. However, Claim 22 says nothing about support for the inner end of the guide tube which is adjacent the drum opening.
Other than the evidence already rejected above, the parties have pointed to nothing in the prosecution history which reflects on the construction of this phrase, and the use of extrinsic evidence would be improper. Thus, this Court will construe the phrase according to its plain meaning as set forth above.
ii. "a manually operable cable feed device...for selectively axially displacing the cable relative to the guide tube during rotation of the drum"
Plaintiffs argue that the same construction of this phrase discussed above with respect to the '588 Patent is applicable to Claim 22 of the '905 Patent.
*881 Defendant does not present any argument regarding the construction of this phrase.
This Court agrees with plaintiffs' construction of this phrase which defendant does not dispute.
3. The '401 Patent
Plaintiffs move this Court to construe several phrases contained in Claims 24, 25 and 26 of the '401 Patent, each of which is set forth separately below. Defendant has failed to present argument concerning claim construction with regard to the '401 Patent.
a. Claim 24
Claim 24 of the '401 Patent claims, A feed control device for use with a plumbing tool including an elongate flexible snake having a snake axis, and means for rotating the snake about said axis, comprising: a housing having a housing axis and a passage axially therethrough for receiving said snake, snake driving roll means supported on said housing, radially displaceable drive actuating means removably supported on said housing for displacing said snake against said snake driving roll means, said drive actuating means having a radially outer end, a lever pivotally mounted on said housing for engaging said outer end and radially displacing said drive actuating means against said snake, and said lever and said outer end including means interengaging for said lever to releasably hold said drive actuating means on said housing against removal therefrom.
('401 Patent col 10, ll. 42-56).
i. "a passage axially therethrough"
Plaintiffs argue that the phrase "a passage axially therethrough" should be construed as meaning that "the passage must be through the housing material and not merely on or near the housing, such as would occur with a surface groove." Plaintiffs contend that the ordinary and accustomed meaning of the claim language supports their construction, as does the specification. In addition, plaintiffs point to Figure 1 of the '401 Patent, which shows passage 22 extending axially through housing 12 to receive the snake.
This Court agrees with plaintiffs' construction of this phrase which defendant does not dispute.
ii. "removably supported on said housing"
Plaintiffs argue that the phrase "removably supported on said housing" should be construed to require that the drive actuating means be capable of being readily removed from the housing. Plaintiffs contend that the ordinary and accustomed meaning of the claim language supports their construction, as does the specification. Specifically, plaintiffs compare the '401 Patent's discussion of prior art with its Description of a Preferred Embodiment:
In all of the feed control arrangements heretofore available for use in connection with power driven drain cleaning apparatus, including those specifically referenced above, the control arrangements are structurally complex, difficult to access with respect to cleaning and/or performing maintenance and replacement operations with respect to parts thereof, and require time-consuming adjustments or disassembly operations in connection with the initial feeding of the enlarged auger contoured end of the snake or an auger or blade attachment thereon through the feed device. In this respect, for example, the feed rolls are enclosed in a housing and cannot be accessed for cleaning, maintenance or replacement without at least partial disassembly of the housing, or removal of the rolls, whereby access in any event requires considerable time and effort. *882 In all of the arrangements in which the feed rolls are radially adjustable relative to an opening through the housing which receives the snake, the supporting structures are complex, adjustment is time-consuming and displacement of the rolls radially outwardly of the opening to accommodate withdrawal or insertion of the auger tip of a snake is time-consuming, especially if it is necessary to remove one of the feed rolls.
* * * * * *
Housing 12 is provided inwardly adjacent front end 16 with a radially extending bore 38 having a bore axis 40 and an axially inner end which opens into snake passage 22. A snake drive actuating unit 42 is slidably and removably received in bore 38 and includes a drive actuating roll support member 44 having radially inner and outer ends 46 and 48, respectively, a drive actuating roll 50 mounted on inner end 46, and an operating member 52 mounted on outer end 48.
('401 Patent col 2, ll. 4-24; col 5, ll. 37-45) (emphasis added).
This Court agrees with plaintiffs' construction of this phrase which defendant does not dispute.
iii. "drive actuating means...for displacing said snake"
Plaintiffs contend that the phrase "drive actuating means...for displacing said snake" is presented in means-plus-function format and must be interpreted according to 35 U.S.C. § 112 ¶ 6. According to plaintiffs, the recited function in this phrase is "for displacing said snake against said snake driving roll means" and the corresponding structure described in the specification is the drive actuating unit 42 having a drive actuating roll 50 and a roll supporting member 44 and all equivalents thereof. Plaintiffs further contend that the words "removably supported on said housing" merely provide the location of the drive actuating means and are not part of the recited function.
This Court agrees with plaintiffs' construction of this phrase which defendant does not dispute.
iv. "means interengaging for said lever to releasably hold said drive actuating means on said housing"
Plaintiffs contend that the phrase "means interengaging for said lever to releasably hold said drive actuating means on said housing" is presented in means-plus-function format and must be interpreted according to 35 U.S.C. § 112 ¶ 6. According to plaintiffs, the recited function in this phrase is "to releasably hold said drive actuating means on said housing" and the corresponding structure described in the specification is a latch or finger 88 that frictionally interferes with peripheral edge 65 of operating knob 52 and all equivalents thereof.
This Court agrees with plaintiffs' construction of this phrase which defendant does not dispute.
b. Claim 25
Claim 25 of the '401 Patent claims,
A feed control device for use with a plumbing tool including an elongate flexible snake having a snake axis and means for rotating the snake about said axis, comprising: a housing having a housing axis and a passage axially there-through for receiving said snake, snake driving roll means supported on said housing, radially displaceable drive actuating means removably supported on said housing for displacing said snake against said snake driving roll means, said drive actuating means having a radially outer end, a lever pivotally mounted on said housing for engaging said outer end and radially displacing said drive actuating means against said snake, and said lever and said outer end including means interengaging for said *883 lever to releasably hold said drive actuating means on said housing, said means interengaging to releasably hold said drive actuating means including latch means on said lever frictionally engaging said outer end of said drive actuating means.
('401 Patent col. 10, ll. 57 to col. 11, ll. 6).
Plaintiffs request that the limitations in Claim 25 which are identical to those contained in Claim 24 be construed in the same way. In addition, plaintiffs contend that the phrase "said means interengaging...including latch means on said lever frictionally engaging said outer end of said drive actuating means" is presented in means-plus-function format and must be interpreted according to 35 U.S.C. § 112 ¶ 6. According to plaintiffs, the recited function in this phrase is to "frictionally engag[e] said outer end of said drive actuating means" and the corresponding structure described in the specification is a latch means structure comprised of finger 88 that frictionally interferes with peripheral edge 65 of operating knob 52 and all equivalents thereof. Plaintiffs further contend that the words "on said lever" merely provide the location of the latch means structure and are not part of the recited function.
This Court agrees with plaintiffs' construction of this phrase which defendant does not dispute.
c. Claim 26
Claim 26 of the '401 Patent, which is dependent on Claim 25 and adds a limitation, claims,
A device according to claim 25, further including spring means biasing said drive actuating means radially outwardly of said housing for said outer end to engage against said lever.
('401 Patent col. 11, ll. 7-10).
Plaintiffs contend that the phrase "spring means biasing said drive actuating means radially outwardly of said housing" is not presented in means-plus-function format and should not be interpreted according to 35 U.S.C. § 112 ¶ 6 because the phrase sets forth the structure to preform the biasing function, i.e., the spring. Plaintiffs argue that the phrase "spring means" should be construed to mean simply "spring." Plaintiffs contend that the ordinary and accustomed meaning of the claim language supports their construction, as does the specification. Specifically, plaintiffs cite the portion of the '401 Patent specification which states,
In the position of the feed device shown in FIG. 4, drive actuating roll 50 is out of engagement with snake 24, and spring 68 biases lever 74 counterclockwise about pivot pin 84 so as to engage finger 88 radially inwardly against peripheral edge 62 of the operating knob.
('401 Patent col. 6, ll. 37-41) (emphasis added).
The mere "fact that a particular mechanism...is defined in functional terms is not sufficient to convert a claim element containing that term into a `means for performing a specified function' within the meaning of" 35 U.S.C. § 112 ¶ 6. Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580, 1583 (Fed.Cir.1996). "To invoke this statute, the alleged means-plus-function claim element must not recite a definite structure which performs the described function." Cole v. Kimberly-Clark Corp., 102 F.3d 524, 531 (Fed.Cir.1996).
The "use of the word `means' creates a presumption that § 112, ¶ 6 applies." Personalized Media Communications, LLC v. Int'l Trade Comm'n, 161 F.3d 696, 703 (Fed.Cir.1998). However, this presumption "can be rebutted if the evidence intrinsic to the patent and any relevant extrinsic *884 evidence so warrant. In deciding whether [the] presumption has been rebutted, the focus remains on whether the claim as properly construed recites sufficiently definite structure to avoid the ambit of § 112, ¶ 6." Id. at 704 (citations omitted).
In Cole, the court held that the phrase "perforation means...for tearing" failed "to satisfy the statute because it describes the structure supporting the tearing function (i.e., perforations)." 102 F.3d at 531. Similarly, in Claim 26, the phrase "spring means biasing said drive actuating means" describes the structure supporting the biasing function, i.e., the spring.
This Court agrees with plaintiffs' construction of this phrase which defendant does not dispute.
B. Comparison to Model 502 Cable Machines
In their Motions currently pending before this Court, plaintiffs assert the following literal infringements:
(1) Claim 29 of the '588 Patent by the Original Model 502 Cable Machine;
(2) Claim 22 of the '905 Patent by the Modified Model 502 Cable Machine; and
(3) Claim 24 of the '401 Patent by the Original Model 502 Cable Machine.
In addition, in response to defendant's Motions, plaintiffs also assert that the Modified Model 502 Cable Machine infringes Claim 29 and 35 of the '588 Patent literally and under the doctrine of equivalents and infringes Claims 1, 2, 3, 10 and 22 of the '905 Patent literally.
Defendant cross-moves for a finding of non-infringement of the '401 Patent by the Modified Model 502 Cable Machine. Defendant also separately moves and cross-moves for summary judgment of non-infringement of the '588 and '905 Patents by the Modified Model 502 Cable Machine. Defendant presents no evidence or argument concerning the Original Model 502 Cable Machine,[19] instead stating,
The plaintiffs' motion attempts to focus its infringement analysis (at least with respect to the '588 patent) on a device that is no longer made, used, sold, or offered for sale by Spartan. The plaintiffs' motive is apparently to get this Court to adopt its broader, improper claim construction for the '588 patent by making seemingly reasonable comparisons against the old design. However, once the proper claim construction analysis is made, the record dictates in favor of summary judgment of noninfringement with respect to the only device currently manufactured, used, or sold by Spartan i.e., the so called "modified" 502 design.[20]
*885 According to defendant, the Modified Model 502 Cable Machine does not literally infringe the '588 or '905 Patents, nor does it infringe those patents under the doctrine of equivalents, because that device "does not use a guide hose which is mounted or supported, or adjacent (i.e., directly connected to) the frame," has a guide hose attached to the drum rather than the frame, has "a portion of the drum which extends outward (i.e., in front of) any portion of the frame" and "has structures (a metal guide pin and a hard plastic guide hose collar) which prevent the user from directly attaching the guide hose to the frame of the drain cleaner." In addition, defendant argues that there is no evidence that any user has actually altered the Modified device so as to enable it to operate in an infringing manner.
"Literal infringement requires that every limitation of the patent claim be found in the accused device." Intermatic, 273 F.3d at 1363. Thus, if even a single claim limitation cannot be found in the accused device, the asserted claim is not literally infringed. See Key Mfg. Group, Inc. v. Microdot, Inc., 925 F.2d 1444, 1449 (Fed.Cir.1991).
However, "[a]n accused device that does not literally infringe a claim may still infringe under the doctrine of equivalents if each limitation of the claim is met in the accused device either literally or equivalently." Id. (quoting Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448 (Fed.Cir. 1998)). The doctrine of equivalents is designed to "temper unsparing logic and prevent an infringer from stealing the benefit of an invention" where the accused device does not literally infringe every claim limitation. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S. Ct. 854, 94 L. Ed. 1097 (1950) (quoting Royal Typewriter Co. v. Remington Rand, 168 F.2d 691 (2d Cir.1948)). Thus, "[t]he essence of the doctrine is that one may not practice a fraud on a patent." Graver, 339 U.S. at 608, 70 S. Ct. 854. A "patentee should not be deprived of the benefits of his patent by competitors who appropriate the essence of an invention while barely avoiding the literal language of the claims." London v. Carson Pirie Scott & Co., 946 F.2d 1534, 1538 (Fed.Cir.1991).
In Graver, the Supreme Court set forth "the modern contours" of the doctrine of equivalents:
What constitutes equivalency must be determined against the context of the patent, the prior art, and the particular circumstances of the case. Equivalence, in the patent law, is not the prisoner of a formula and is not an absolute to be considered in a vacuum. It does not require complete identity for every purpose and in every respect. In determining equivalents, things equal to the same thing may not be equal to each other and, by the same token, things for most purposes different may sometimes be equivalents. Consideration must be given to the purpose for which an ingredient is used in a patent, the qualities it has when combined with the other ingredients, and the function which it is intended to perform.
* * * * * *
A finding of equivalence is a determination of fact. Proof can be made in any form: through testimony of experts or others versed in the technology; by documents, including texts and treatises; and, of course, by the disclosures of the prior art. Like any other issue of fact, final determination requires a balancing of credibility, persuasiveness and weight of evidence.
See Warner-Jenkinson Co., Inc. v. Hilton Davis Chemical Co., 520 U.S. 17, 21, 117 S. Ct. 1040, 137 L. Ed. 2d 146 (1997).
"The doctrine of equivalents allows infringement to be found in some cases *886 where the elements of the accused device are substantially equivalent to the corresponding elements of the asserted claim." K-2 Corp., 191 F.3d at 1366.
Although designing or inventing around patents to make new inventions is encouraged, piracy is not. Thus, where an infringer, instead of inventing around a patent by making a substantial change, merely makes an insubstantial change, essentially misappropriating or even "stealing" the patented invention, infringement may lie under the doctrine of equivalents.
London, 946 F.2d at 1538.
"One method for finding infringement under the doctrine of equivalents, with regard to each element not met literally, is to determine whether the accused device performs substantially the same function, in substantially the same way, to achieve substantially the same result, as that of the invention claimed." Telemac, 247 F.3d at 1330. See also Union Paper-Bag Mach. Co. v. Murphy, 97 U.S. 120, 125, 24 L. Ed. 935 (1877) ("[I]f two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape."). However, "[w]here no equivalent element can be identified in the accused device, the district court is not at liberty to altogether ignore limitations of a claim." Telemac, 247 F.3d at 1331.
The doctrine of equivalents is limited in scope and subject to prosecution history estoppel[21] in light of competing interests, i.e., the patentee's burden to distinctly claim the subject matter regarded as the invention and the purpose of the claims to provide notice to competitors. K-2 Corp., 191 F.3d at 1366-1368. The purpose of the doctrine of equivalents is to balance "fairness to inventors lest the patent be unjustly circumvented, against the purpose of patent claims to state clear boundaries of the patent grant, in fair notice of its scope." Multiform, 133 F.3d at 1480.
Each element contained in a patent claim is deemed material to defining the scope of the patented invention, and thus the doctrine of equivalents must be applied to individual elements of the claim, not to the invention as a whole. It is important to ensure that the application of the doctrine, even as to an individual element, is not allowed such broad play as to effectively eliminate that element in its entirety.
Warner-Jenkinson, 520 U.S. at 29, 117 S. Ct. 1040. See also Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1389 (Fed.Cir.1992) (rejecting argument that "accused devices are equivalent overall to the claimed invention").
The "essential inquiry" in a claim of either literal infringement or infringement under doctrine of equivalents is whether "the accused product or process contain[s] elements identical or equivalent to each claimed element of the patent invention." Warner-Jenkinson, 520 U.S. at 40, 117 S. Ct. 1040.
An analysis of the role played by each element in the context of the specific patent claim will thus inform the inquiry as to whether a substitute element matches the function, way, and result of the claimed element, or whether the substitute element plays a role substantially different from the claimed element.
Id. Where the changes made to avoid literal infringement are "colorable only," the *887 accused device infringes under the doctrine of equivalents. Graver, 339 U.S. at 612, 70 S. Ct. 854.
As noted above, whether the accused devices infringe the properly-construed claims literally or under the doctrine of equivalents is a question of fact.
Defendant argues that dependant claims cannot be found to be infringed unless the independent claim upon which they depend is first found to be infringed. Defendant is correct where the basis for finding that the accused product does not infringe an independent claim is that it does not include particular claim limitations or their substantial equivalents. See Wolverine World Wide, Inc. v. Nike, Inc., 38 F.3d 1192, 1199 (Fed.Cir.1994); Wilson Sporting Goods Co. v. David Geoffrey & Assoc., 904 F.2d 677, 686 (Fed.Cir.1990); Wahpeton Canvas Co., Inc. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989). Thus, if this Court determines that asserted Claim 29 of the '588 Patent and Claims 1 and 22 of the '905 Patent are not infringed because the accused devices do not include one or more of the claim limitations, this Court must find that none of the dependent claims are infringed and defendant is entitled to summary judgment.
According to plaintiffs, defendant failed to respond to discovery requests relating to infringement of the '588 and '401 Patents by the Original Model 502 Cable Machine. In addition, plaintiffs correctly point out that defendant's opinion of counsel and expert report discuss only the (non)infringement of the three patents by the Modified Model 502 Cable Machine.
In response to all the asserted claims, defendant argues that an invalid patent cannot be infringed. Defendant asserts that, at the very least, genuine issues of material fact exist as to the validity of the patents-in-suit. Therefore, defendant argues that summary judgment as to their infringement would be improper.
Defendant's argument is entirely without merit. "Though an invalid claim cannot give rise to liability for infringement, whether it is infringed is an entirely separate question capable of determination without regard to its validity." Medtronic, Inc. v. Cardiac Pacemakers, Inc., 721 F.2d 1563, 1583 (Fed.Cir.1983).[22] Plaintiffs concede that defendant cannot be held liable for infringement of an invalid patent. However, a finding of infringement can and should be made independent of the issue of validity.
With respect to the '588 and '905 Patents, defendant urges this Court to revisit the issue of claim construction. After eight pages of pictures and descriptions of the Modified Model 502 Cable Machine, defendant states,
Having set forth the relevant background facts involving the currently accused Spartan device, the Court now needs to go back and perform the analysis that the plaintiff's [sic] motion never did i.e., properly interpreting the claims and then comparing them to the accused device.
(Doc. 114 at 10).
Defendant's method of analysis is seriously flawed. As the Federal Circuit stated in SRI International,
*888 A claim is construed in the light of the claim language, the other claims, the prior art, the prosecution history, and the specification, not in light of the accused device. Contrary to what [defense] counsel wrote the district court, claims are not construed "to cover" or "not to cover" the accused device. That procedure would make infringement a matter of judicial whim. It is only after the claims have been construed without reference to the accused device that the claims, as so construed, are applied to the accused device to determine infringement.
775 F.2d at 1118 (emphasis added). Having construed the asserted claims as set forth above, this Court must now apply those properly-construed claims to the Model 502 Cable Machines to determine if the accused devices infringe as a matter of law.
1. The '588 Patent
a. The Original Model 502 Cable Machine
Plaintiffs seek a determination that the Original Model 502 Cable Machine literally infringes Claim 29 of the '588 Patent. Other than the argument relating to mootness set forth and rejected above, defendant presents no evidence or argument to refute plaintiffs' contention.
With regard to the Original Model 502 Cable Machine, Sloter testified as follows:
Q: Mr. Sloter, does the 502 device utilize a frame?
A: Of course.
* * * * * *
Q: Does the 502 have a cable drum?
A: Yes, it does.
* * * * * *
Q: Does the cable or snake reside inside the drum?
A: Yes, it does.
* * * * * *
Q: The cable drum spins, is that right, rotates?
A: Yes, sir.
Q: So it rotates about a center line?
A: It rotates on this center line, yes.
Q: Okay. And there is an opening on the front of the drum, is that correct?
A: Yes, sir.
* * * * * *
Q: [A] snake is coiled inside the drum and extends through this drum opening?
A: Yes, sir.
Q: In use?
A: In use.
Q: And in use, that cable would be fed into the drain to be cleaned or the pipe that needed to be cleaned?
A: Yes, sir.
Q: Does the Model 502 have a drive motor?
A: Yes, sir.
* * * * * *
Q: And what about this part [of the frame including the mounting bracket] right up here, is this on the exterior of the drum opening?
A: Yes.
* * * * * *
Q: Is this portion of the frame adjacent the drum opening?
A: Define adjacent to me.
Q: Do you have a definition of adjacent we can use?
A: Next to one another. I'm adjacent to her.
Q: Okay. Using your definition, is it adjacent to the drum opening?
A: No, because it's it could be. I guess, it could be conceived as that, yes.
Q: So you could conceive of that frame being adjacent to the drum opening?
A: It would be a stretch, but, yes.
*889 Q: Is the frame that we've been talking about, this area in here, is that near the drum opening?
A: Yes.
* * * * * *
Q: Does the Model 502 use a guide hose?
A: Yes.
* * * * * *
Q: Does the guide hose have an end that will mount on some portion of the frame?
A: The cable the guide hose could mount on the feed or on the bearing support.
Q: Okay. And identify the bearing support for me, please. That's the bearing support?
A: Or I don't know what the official name is. I call it a bearing support.
Q: You don't consider that a part of the frame?
A: It's an independent part.
* * * * * *
Q: Can you tell me why you don't consider that a part of the frame?
A: Well, to me when you talk about part of the frame, you're talking about the frame weldment. And this is something that bolts onto the frame, so it's an accessory that goes with the frame to make it into something else because the basic frame by itself will not support the drum and let it operate.
* * * * * *
Q: Now does the guide hose have an outer end?
A: Yes, sir.
* * * * * *
Q: Flexible between the outer end and the end that's attached here?
A: Yes, sir.
Q: And does the flexibility of the guide hose allow the user to direct the snake into the drain they want to clean?
* * * * * *
A: Yes.
* * * * * *
Q: Can you identify that device for us?
A: This is the original 502 power feed.
Q: Is that a manually operated device?
A: Yes, it is.
Q: [C]an it attach to the outer end of the guide tube?
A: Yes, it can.
* * * * * *
Q: And what is the purpose of that power feed...?
A: To advance the cable into the drain and retract it without reversing the motor.
Q: I believe you were going to show me another location where the power feed could be connected to the 502. And does it serve the same purpose when mounted in that location?
* * * * * *
A: Yes, sir.
(Sloter Depo. 85-103). See also Rutkowski '588 and '905 Decl. ¶ 10 ("Also mounted and supported on the frame is one end of a flexible guide hose."), ¶ 18 and Ex. 1.
Based on the evidence presented, this Court finds that the Original Model 502 Cable Machine literally infringes Claim 29 of the '588 Patent as that claim is properly construed. Every single limitation of Claim 29 can be found in the accused device, including a frame portion next to or in close proximity to and outside of or external to the drum opening and an inner end of a guide tube directly or indirectly detachably connected to the frame.
Therefore, plaintiffs are entitled to summary judgment as to the infringement of *890 Claim 29 of the '588 Patent by the Original Model 502 Cable Machine.
b. The Modified Model 502 Cable Machine
Defendant seeks a determination that the Modified Model 502 Cable Machine does not infringe Claims 29 or 35 of the '588 Patent.
Plaintiffs concede that the Modified Model 502 Cable Machine in the "second configuration"[23] does not literally infringe Claim 29 or 35 of the '588 Patent, but they argue that it infringes those claims under the doctrine of equivalents.
In his expert report, Dr. Salvatore Malguarnera provides a general description of the Modified Model 502 Cable Machine:
The new or modified Spartan Model 502 Machine includes a motor-driven cable drum that normally contains a cleaning cable or "snake." The drum includes a cone-like enclosure and an elongate spindle that extends outwardly of the cone-like enclosure. The front opening of the drum is the front opening of the spindle. The snake moves in and out of the drum through the spindle and its front opening.
The back end of the drum lies mounted for rotation on the frame, as does the front end of the drum the spindle. A front bearing assembly mounted on the front supports the spindle of the drum. The front bearing is reversible, allowing an operator to place it in two different orientations on the frame.
In a first orientation,[24] the drum spindle extends through the bearing assembly and then through the frame portion that supports the bearing assembly. The part of the spindle that extends out of this supporting frame portion supports a dual-race roller bearing used to rotatably mount a flexible guide tube to the spindle. A plastic socket at one end of the flexible tube fits over the dual-race bearing, connecting the tube to the bearing. A cable feed device connected to the other, outer end of the guide tube feeds the snake in and out of the drains.
In a second orientation,[25] the drum spindle extends through the supporting frame portion and then through the bearing assembly. In this arrangement, the flexible guide tube cannot connect with any part of the bearing assembly or the frame. A manually operable feed device can however, connect with the bearing assembly at one end and with the guide tube at the other end. In this arrangement, the cable feed device lies at the front end of the guide tube, not at the outer, free end.
(Doc. 95 Ex. F).
With regard to both claims, defendant argues that the Modified Model 502 Cable Machine cannot be found to infringe the '588 Patent because its drum spindle/bearing combination provides an added safety feature not required by the patent. *891 According to defendant, the use of a rotating roller bearing that spins on a rotating spindle allows the guide tube to remain under the control of the operator if the cable encounters an obstruction and becomes locked, but the drive motor does not stall or slip. Without this added safety feature, defendant claims that the drain cleaner would counter-rotate uncontrollably because of the motor's torque.[26]
Plaintiffs dispute the efficacy of defendant's "hypothetical" safety function. In support of their position, plaintiffs point to the fact that defendant has done no testing to determine if the Modified device generates sufficient torque to knock it over if the cable were to become locked and the motor not stall or a safety device fail.[27] In addition, plaintiffs claim that defendant had no valid reason to develop this added safety function since none of its customers ever complained about the lack of this function.[28]
Even assuming that the added safety feature is bona fide, however, its addition alone could not relieve defendant from liability for infringement. "Modification by mere addition of elements [or] functions, whenever made, cannot negate infringement." Amstar Corp. v. Envirotech Corp., 730 F.2d 1476, 1482 (Fed.Cir. 1984). Merely "[a]dding features to an accused device will not result in noninfringement if all the limitations in the claims, or equivalents thereof, are present in the accused device." Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044, 1057 (Fed.Cir.1988) (reversing finding of non-infringement despite fact that accused device was improved, i.e., designed to be adjustable). The reasoning behind this rule is "the long-established legal principle that non-infringement is shown when an element or step in the claims is missing from the accused product or process, not vice-versa." Amstar, 730 F.2d at 1484.
(1) Claim 29
Defendant argues that the Modified Model 502 Cable Machine in the second configuration does not infringe Claim 29 of the '588 Patent because that claim recites a guide tube mounted on the frame, but the guide tube of the accused device is mounted on the drum. According to defendant, in the second configuration of the Modified device, the flexible guide tube is mounted onto a movable, rotatable bearing located on the spindle portion of the drum. Thus, defendant argues, there can be no literal infringement. In addition, defendant argues that there can be no infringement under the doctrine of equivalents because the structure of the Modified device, with respect to the front bearing assembly, is substantially different from *892 the claimed structure. Defendant also argues that the Modified device achieves a substantially different result in a substantially different way.
Plaintiffs contend that the second configuration of the Modified Model 502 Cable Machine literally meets every limitation of Claim 29 of the '588 Patent with the exception of the requirement that the "guide tube hav[e] an inner end mounted on said frame portion." However, plaintiffs argue that the Modified device, in which the guide tube is attached to a bearing riding on the drum spindle, is equivalent to the claimed structure. According to plaintiffs, this equivalent element of defendant's device performs substantially the same function, in substantially the same way, to achieve substantially the same result, as that of the claimed invention. In addition, plaintiffs argue that, because the drum is mounted on the motor and the motor is mounted on the frame, the guide tube of the Modified Model 502 Cable Machine is indirectly mounted on the frame through the drum.
This Court agrees with plaintiffs that defendant's inclusion of a bearing on the drum spindle for the purpose of connecting the guide tube to the apparatus is an insubstantial and merely colorable change which does not avoid infringement under the doctrine of equivalents.
The function and result of the spindle/bearing connection between the guide hose and the drum are identical to the function and result of the mounting bracket connection between the guide hose and the frame. See Sloter Depo. 135-137 (testifying that bearing serves as mounting point for the guide tube, preventing the guide tube from falling off, allows the cable to feed in and out of the guide hose and allows the cable to move rotationally independent of the guide tube); Krause Depo. 107-110 (testifying that functions of both structures include allowing the relative axial displacement of the cable to the guide tube and allowing the cable to rotate relative to the guide tube). In addition, the way in which that function and result are achieved by the Modified Model 502 Cable Machine is equivalent to the way they are achieved in the asserted claims.
Defendant argues that prosecution history estoppel, also referred to as file wrapper estoppel, bars any application of the doctrine of equivalents for any element about which plaintiffs made arguments to secure the issuance of the '588 Patent.
While this Court generally agrees with defendant's statement of the law, prosecution history estoppel does not bar plaintiffs from invoking the doctrine of equivalents in this case. In Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 234 F.3d 558, 574 (Fed.Cir.2000) (en banc), the court held that "prosecution history estoppel acts as a complete bar to the application of the doctrine of equivalents when an amendment has narrowed the scope of a claim for a reason related to patentability."[29] However, as noted above, defendant has failed to present sufficient evidence that the IDS and Supplemental IDS served to narrow the scope of any of the asserted claims to devices in which the guide tube is directly connected to the frame in order to achieve patentability. *893 Therefore, plaintiffs are not estopped from asserting that the Modified Model 502 Cable Machine infringes Claim 29 of the '588 Patent (or any other claim) under the doctrine of equivalents.
Therefore, this Court finds that the second configuration of the Modified Model 502 Cable Machine infringes Claim 29 of the '588 Patent under the doctrine of equivalents.[30]
(2) Claim 35
Defendant does not present any argument specifically relating to the issue of infringement of Claim 35 by the Modified Model 502 Cable Machine. Instead, defendant merely contends that none of the asserted claims can be read to cover the Modified device because none of the independent claims are infringed.
However, as set forth above, this Court finds that the Modified Model 502 Cable Machine in the second configuration literally infringes Claim 29 of the '588 Patent. In addition, this Court finds that the Modified Model 502 Cable Machine in the second configuration infringes dependant Claim 35. The Modified device has a front bearing support assembly mounted on the frame portion adjacent the drum opening and a flexible guide hose having two ends. The inner end of the guide hose has a plastic socket for connecting the hose to the front bearing support, and the outer end of the guide hose has a power feed collar for connection the hose to the cable feed device. See Malguarnera general description of the Modified Model 502 Cable Machine (Doc. 95 Ex. F); Malguarnera Depo. 141-154.
Therefore, this Court finds that the second configuration of the Modified Model 502 Cable Machine infringes Claim 35 of the '588 Patent under the doctrine of equivalents.
2. The '905 Patent
Plaintiffs seek a determination that the Modified Model 502 Cable Machine literally infringes Claim 22 of the '905 Patent. In response to defendant's Motion, plaintiffs contend that the Modified device also literally infringes Claims 1 and 2 of that patent in the second configuration and Claims 1, 2, 3 and 10 in the third configuration.
Defendant, on the other hand, seeks a determination that the Modified Model 502 Cable Machine does not infringe Claims 1, 2 or 22 of the '905 Patent.
a. Claim 22
With regard to the Modified Model 502 Cable Machine, Malguarnera testified as follows:
Q: Dr. Malguarnera, the Spartan Model 502 that you looked at, the new model, right?
A: Yes.
Q: You consider that to be a drain clean apparatus?
A: Yes, that is what it's I think that is what its title. That is what it's purported to be.
Q: It has a frame?
A: Yes.
Q: And it has cable drum?
A: Yes.
Q: And the cable drum is supported on the frame?
*894 A: Yes.
* * * * * *
Q: And this cable drum rotates about a drum axis, right?
A: Yes.
Q: And this drum has a front end and a rear end that are spaced apart from each other.
A: Yes.
Q: And this drum has an opening through the front end, doesn't it?
A: Yes.
Q: And a drain cleaning cable is coiled in the drum?
A: Yes....It's coiled inside of the drum.
Q: And it's coiled about the drum axis?
A: That is descriptive of generally how it's arranged.
* * * * * *
Q: One end of the drain cleaning cable extends through the opening.
A: Yes.
Q: And in fact it would extend into a drain to be cleaned.
A: Yes.
Q: The 502 has a drive motor that is supported on the frame, right?
A: Yes.
Q: And the drive motor is to rotate the drum and the cable?
A: Yes.
* * * * * *
Q: I'm referring to what Spartan calls its hose guide. That hose guide receives the end of the drain cleaning cable that extends from the cable drum, is that right?
A: Well, the cable the snake goes through the hose guide.
* * * * * *
Q: The hose guide on the model 502 is flexible between its ends, isn't it?
A: Yes, it's a flexible tube.
Q: And that flexibility allows the operator to direct the outer end of the hose guide toward a drain to be cleaned.
A: It makes the hose the hose guide can be moved, it can be twisted, it can be put in any orientation that would make it easiest for the operator to clean the drain.
Q: So he could direct the cable to the drain to be cleaned is one thing he could do.
A: Obviously he needs to do that.
Q: And the new model 502 has a power feed, right?
A: Yes.
Q: And that power feed It's a cable feed device, is that right?
A: It moves the snake in and out.
Q: And the snake is the cable?
A: Yes, it can move the snake in and out.
Q: Is that power feed device manually operable?
A: The man or woman operator would be in control of it.
Q: Do they have to manually operate it?
A: I think the preferred embodiment is to use your hands, but you could use your teeth if you just decided to do that.
Q: Do you understand manually operated to refer only to the use of hands?
A: I would think that it may extend and mean it's under the control of an operator as opposed to being automatically controlled.
* * * * * *
Q: In Spartan's model 502...in one configuration the power feed is on the outer or free end of the hose guide, is that correct?
A: Yes, that is one way it can be set up.
* * * * * *
*895 Q: Does the power feed on the model 502 have...selectability?
A: The power feed allows the operator to advance or retract the cable.
Q: Does it have a neutral condition?
A: I would believe it does, that is one can have the cable rotating....If you mean by neutral position, that the cable can rotate and it doesn't move in or out, yes.
* * * * * *
Q: Can the operator of the 502 cause the snake to advance with the power feed if the drum is not rotating?
* * * * * *
A: I don't believe so.
(Malguarnera Depo. 141-154).[31]
Malguarnera also testified that, in his opinion, the inner end of the hose guide was not adjacent or next to the drum opening because "[i]t goes over the drum opening. It goes over the spindle, and the drum opening is inside the hose guide." (Malguarnera Depo. 154-155). Making reference to a drawing of the Modified Model 502 Cable Machine, Malguarnera continued, "So the guide tube, that is this 48 inch reference...that is not directly next to it, it's not adjacent to the opening. It's got this fitting that is in there between them." (Malguarnera Depo. 158).
When questioned regarding the "adjacent" limitation, Sloter testified,
Q: In this modified 502, is the guide hose adjacent the drum opening?
MR. HOSTENY: That calls for a legal conclusion.
MR. DEAVER: Q: You may answer.
A: Terminology.
Q: How would you describe the location of the guide hose relative to the drum opening?
A: The guide hose support surrounds it.
Q: Is it near it?
A: Near being a distance, yes.
Q: Is it next to it?
A: It's close to it, yes.
Q: Is it adjacent?
A: If that's your terminology, yes.
(Sloter Depo. 144-145).
Thus, it is undisputed that the Modified Model 502 Cable Machine literally infringes every limitation of Claim 22 of the '905 Patent with the possible exception of "the guide tube having a first end [adjacent] the drum opening." This Court has construed this phrase to require that the first end of the guide tube be in close proximity to or next to the drum opening. Malguarnera contends that the guide tube cannot be adjacent the drum opening because it is not directly next to the opening. Sloter, on the other hand, testified that the guide tube is near, close to and adjacent the drum opening.
In describing the Modified Model 502 Cable Machine, defendant states that "the inner end of the guide tube is attached to a rotating roller bearing assembly that is rotatably connected to the spindle portion of the cable drum." At the far end of the spindle portion of the drum is the drum opening.
Plaintiffs argue that Malguarnera's testimony does not preclude summary judgment as to infringement in light of Sloter's testimony and the documentary evidence submitted. Defendant does not directly *896 address this issue, instead continually repeating that any reasonable interpretation of the word adjacent requires that the guide hose be connected to or supported by the frame, not the drum. However, this argument does not create a genuine issue of material fact as to whether the inner end of the guide tube is adjacent the drum opening. As set forth above, Claim 22 does not require any specific connection between the guide tube and the frame; it merely requires that the guide tube be adjacent the drum opening.
In accordance with the construction of the claim language set forth above, this Court finds that the Modified Model 502 Cable Machine in the second configuration literally infringes Claim 22 of the '905 Patent.
b. Claim 1
The majority of the limitations in Claim 1 have already been discussed above and found to be infringed by the Modified Model 502 Patent. The two distinct limitations require a "drive means" and that the inner end of the guide be "supported on" the frame.
This Court has construed the phrase "drive means on said frame for rotating said drum and cable," which is presented in means-plus-function format, to claim a recited function of "rotating said drum and cable" and corresponding structures of a reversible motor 34, a pulley 36, a pulley 40 and an endless belt 42 and all equivalents thereof. It is undisputed that the Modified Model 502 Cable Machine has structures equivalent to those in the asserted claims for rotating the drum and cable, including a drive motor, two pulleys and a belt. See Rutkowski '588 and '905 Decl. ¶ 19.
This Court has determined that the "supported on" limitation does not require that the inner end of the guide tube be directly in contact with the frame. Rather, the claim language merely requires that the frame provide direct or indirect support for the inner end of the guide tube. Malguarnera's testimony establishes that the guide tube is indirectly supported by the frame through the spindle and bearing, despite his hesitation to admit it.[32] Malguarnera testified,
Q: How does the frame support the front of the drum?
A: It's got a bracket that attaches that the spindle the drum spindle goes through.
Q: So the drum spindle goes through a bracket and the bracket is attached to the frame?
A: Yes.
* * * * * *
Q: Now, the bearing that rides on the drum spindle
A: Yes.
Q: that is supported by the drum spindle.
A: Yes.
Q: And the drum spindle is supported by the frame?
A: The drum spindle is supported by the frame the bracket, which attaches to the frame.
Q: So the bearing is ultimately supported by the frame?
A: No, I don't think that would be correct. The bearing is rested and supported by the drum spindle.
* * * * * *
*897 Q: So you're saying that the frame offers absolutely no support to the bearing?
A: It doesn't support the bearing, no. The load from the bearing is transmitted to the spindle, and the spindle load is transmitted to that bracket in the frame.
(Malguarnera Depo. 159-161). In addition, the Infringement/Validity Study of U.S. Patent No. 6,009,588 prepared by Joseph Krause,[33] for defendant states,
The Model 502 Spartan tool drain cleaner uses a motor-driven cable drum with an axial, integral, forwardly-projecting spindle. The drum and attached spindle are both rotatably mounted to a tubular frame by both front and rear sleeve-type bearings.... The front drum spindle shown in Figure 3 is supported by, and rotates within, a bronze sleeve installed in a reversible, front bearing assembly mounted on a support frame.
(Doc. 105 Ex. O at 24).
Therefore, for the reasons set forth above and based on the proper construction of Claim 1, this Court finds that the Modified Model 502 Cable Machine in the second configuration literally infringes Claim 1 of the '905 Patent.
c. Claim 2
Claim 2 of the '905 Patent claims,
Drain cleaning apparatus according to claim 1, wherein said drive means includes a drive motor supported on said frame.
('905 Patent col. 9, ll. 16-18).
Defendant does not present any argument specifically relating to the issue of infringement of Claim 2 by the Modified Model 502 Cable Machine. Instead, defendant merely contends that none of the asserted claims can be read to cover the Modified device because none of the independent claims are infringed.
However, as set forth above, this Court finds that the Modified Model 502 Cable Machine in the second configuration literally infringes Claim 1 of the '905 Patent. In addition, Malguarnera testified that the Modified device "has a drive motor that is supported on the frame." (Malguarnera Depo. 158). Therefore, this Court finds that the Modified Model 502 Cable Machine in the second configuration also literally infringes Claim 2 of the '905 Patent.
d. Claims 3 and 10
For the reasons set forth below, the existence of a third configuration of the Modified Model 502 Cable Machine and defendant's intent as to its use are disputed questions of fact. Therefore, this Court will not address plaintiffs' arguments with regard to Claims 3 and 10 of the '905 Patent, infringement of which is claimed solely by the third configuration.[34]
e. Third Configuration
Plaintiffs contend that the Modified Model 502 Cable Machine in the third configuration literally infringes Claims 1, 2, 3 and 10 of the '905 Patent. Plaintiffs claim that defendant altered the Original Model 502 Cable Machine in an attempt to avoid liability for infringement by, among other things, drilling a hole in the reversible front bearing support and inserting a guide pin. According to plaintiffs, in order the achieve the third configuration, an operator need only remove the easily-removable guide pin using a pair of pliers. Once *898 the pin is removed, the front bearing support is attached with its collar or bearing boss facing away from the drum. The inner end of the guide tube is then attached directly to the bearing boss adjacent the drum opening.[35]
Plaintiffs claim that defendant actively induces its customers to alter the Modified Model 502 Cable Machine to form the third configuration by providing an Owner's Manual which shows the pin removed from the reversible front bearing support. Plaintiffs further claim that defendant designed the Modified device to be easily altered to infringe and the third configuration will be the operators' preferred configuration of use.[36] Thus, plaintiffs argue that defendant is liable for infringement because the Modified device is reasonably capable of satisfying the claimed limitations despite the fact that it is also capable of non-infringing modes of operation. According to plaintiffs, the diameters of the inner end of the guide tube and the bearing boss could be changed to prevent the Modified Model 502 Cable Machine from being altered to infringe, but defendant has failed to do so.
Defendant claims that there is, in actuality, no third configuration of the Modified Model 502 Cable Machine. Defendant argues that it cannot be held liable for infringement simply because consumers could alter the Modified Model 502 Cable Machine to infringe the '588 and '905 Patents by removing a part or cutting a notch in the guide tube's collar. Thus, according to defendant, the device currently used or sold by it cannot, without alteration, infringe. Defendant also points out that the Owner's Manual clearly states that any physical alteration of the Modified Model 502 Cable Machine voids its warranty. Thus, defendant argues it can not be held liable for inducing or encouraging its customers to alter the device so that it infringes.
"A showing that a device is capable of being modified to operate in an infringing manner is not sufficient, by itself, to establish infringement." Tegal Corp. v. Tokyo Electron Co., No. 01-1019, 2002 U.S.App. LEXIS 1992, *11 (Fed.Cir. Feb. 1, 2002) (finding no infringement by product still in development which could be modified to operate at claimed frequency but which was designed to operate at more than twice claimed frequency). See also Telemac, 247 F.3d at 1330 (finding no infringement due to restriction built into software program that prevented product from performing task despite fact that software could be modified to perform task and, therefore, infringe). In addition, "tests of an accused device under unusual conditions are not necessarily relevant to an infringement analysis." Hilgraeve Corp. v. Symantec Corp., 265 F.3d 1336, 1343 (Fed.Cir.2001).
On the other hand, "an accused device may be found to infringe if it is *899 reasonably capable of satisfying the claim limitations, even though it may also be capable of non-infringing modes of operation." Hilgraeve, 265 F.3d at 1343. "The fact that a device may be used in a manner so as not to infringe the patent is not a defense to a claim of infringement against a manufacturer of the device if it is also reasonably capable of a use that infringes the patent." Id. (quoting Huck Mfg. Co. v. Textron, Inc., 187 U.S.P.Q. 388 (E.D.Mich. 1975)). Evidence that the accused device is "presently capable" of meeting the claim limitations establishes infringement. Stryker Corp. v. Davol, Inc., 234 F.3d 1252, 1257 (Fed.Cir.2000).
"The question is not what [an accused device] might have been made to do, but what it was intended to do and did do." Hap Corp. v. Heyman Mfg. Co., 311 F.2d 839, 843 (1st Cir.1962). "The fact that it is possible to alter an accused device so that it is covered by a patent is not enough, by itself, to justify a finding that its manufacture and sale infringes that patent." High Tech Med. Instrumentation, Inc. v. New Image Indus., Inc., 49 F.3d 1551, 1556 (Fed.Cir.1995). However, "if a device is designed to be altered or assembled before operation, the manufacturer may be held liable for infringement if the device, as altered or assembled, infringes a valid patent." Id.
Plaintiffs claim that the Modified Model 502 Cable Machine Owner's Manual shows the guide pin removed from the bearing boss on pages 9, 11, 12, 13 and 23. (Doc. 105 Ex. F). During his deposition, Sloter was shown a copy of a Modified Model 502 Owner's Manual and testified as follows:
Q: [On page 9 which illustrates] the situation when you wanted to use the guide hose and the power feed?
A: Correct.
Q: Or at least the guide hose. Can you see in this figure any indication of a pin?
A: No, I don't.
Q: On page 11, [Bates stamp] 1819, in any of those views do you see that press pin on the front bearing support?
A: I can't see it, no.
Q: On page 12, do you see the guide pin or the press pin shown anywhere?
A: No, it is not depicted in the drawing.
Q: What about on page 13?
A: It does not show it.
Q: On page 19 do you see the guide pin slot depicted for the guide pin?
A: No.
Q: How about on page 20?
A: No.
(Sloter Depo. 148-149). He testified similarly with regard to defendant's most recently-updated Owner's Manual. (Sloter Depo. 152-154).
However, the drawings and pictures are difficult to decipher, and their quality leaves much to be desired. In addition, defendant also refutes the reliability of these illustrations, claiming that the pictures in the Owner's Manual relied on by plaintiffs are not pictures of the Modified Model 502 Cable Machine.
Finally, the testimony of Krause, upon which plaintiffs rely, is equivocal at best. Krause testified,
Q: Do you have any doubt in your mind that Spartan gives an owner manual with their Model 502, Mr. Krause?
* * * * * *
A: I presume I presume they give the people an owner's manual to know how to use it.
Q: And my question is then, the figure on page 12 of Plaintiff's Exhibit 63, that doesn't show the guide pin in the bearing boss
A: Uh-huh.
Q: couldn't that be construed by a customer to allow the attachment of the guide tube to the bearing boss?
*900 A: I suppose it could be construed that way. But if you look at the manufacturing drawings, and you look at the dimensions of the opening and the dimensions of the pin, depending upon the interference of whether or not that pin is in there with an interference fit, for example, might make it virtually impossible for a customer, a plumber to extract that pin.
(Krause Depo. 183-184).
This Court finds that questions of fact remain as to the ability of a customer to alter the Modified Model 502 Cable Machine into the third configuration and as to whether defendant designed the Modified device to be altered or assembled in such a way before operation.
3. The '401 Patent
a. The Original Model 502 Cable Machine
Plaintiffs contend that the Original Model 502 Cable Machine, which includes the Original Feed Control Device, literally infringes Claim 24 of the '401 Patent. Other than the argument relating to mootness set forth and rejected above, defendant presents no evidence or argument to refute plaintiffs' contention.
Plaintiffs submit a Declaration of Rutkowski, which states,
The Original 502 Cable Machine included Spartan's Original Feed Control Device. I operated the Original 502 Cable Machine and the Original Feed Control Device on numerous occasions and am familiar with their operation. The Original Feed Control Device is comprised of the following basic components: a housing which contains an axial passage therethrough. In operation, the snake passes through the axial passage. Two driving rolls are supported on the lower end of the housing. A snake drive actuating unit is located in the upper part of the housing, is placed in a vertical bore in the housing and is removable. The snake drive actuating unit has an outer end which can engage a lever. The lever is pivotally mounted on the housing to engage the outer end of the snake drive actuating unit. The lever is capable of radially displacing the snake drive actuating unit against the snake when the snake is present. The lever includes a slot which contacts the outer end of the snake driving unit. The outer end of the snake driving actuating unit has a pin. The pin can enter the slot in the lever to releasably hold the snake driving actuating unit on the housing. Alternatively, the pin can be removed from the slot which will allow the lever to fully open and allow the snake drive actuating unit to be removed from the housing.
(Rutkowski '401 Decl. ¶ 10).[37] In addition, Rutkowski enumerates, limitation by limitation, how the Original Feed Control Device infringes Claim 24 of the '401 Patent. (Rutkowski '401 Decl. ¶ 14-18). Attached to Rutkowski's declaration is an exhibit which visually corresponds each limitation in Claim 24 of the '401 Patent with an element of the Original Feed Control Device. (Rutkowski '401 Decl. Ex. 1).
Because defendant has failed to present any contrary evidence, plaintiffs are entitled to summary judgment as to the literal infringement of Claim 24 of the '401 Patent by the Original Model 502 Cable Machine.
b. The Modified Feed Control Device
As part of its brief in opposition to Plaintiffs' Motion for Claim Construction *901 and for Summary Judgment of Infringement of Claim 24 of the '401 Patent, defendant cross-moves for summary judgment of non-infringement of the '401 Patent by the Modified Model 502 Cable Machine.
Plaintiffs object to this cross-motion on the grounds that it is untimely. Plaintiffs also object to the cross-motion on the grounds that it is improper since plaintiffs never contended that the Modified Model 502 Cable Machine infringes the '401 Patent.
The dispositive motion deadline was January 15, 2002. Defendant's cross-motion was filed on February 14, 2002. However, in the interest of justice, this Court will consider and grant defendant's cross-motion.[38] Judgment in favor of defendant on this issue does not damage plaintiffs since they have never alleged nor presented evidence that the Modified Model 502 Cable Machine, which includes the Modified Feed Control Device, infringes the '401 Patent. However, defendant did file a counterclaim for "Declaratory Judgment of Non-infringement ('401 Patent)" without limiting the declaration sought to the Original Model 502 Cable Machine.[39] Thus, contrary to plaintiffs' argument, the issue is properly before the Court.
Therefore, defendant is entitled to summary judgment as to the non-infringement of the '401 Patent by the Modified Model 502 Cable Machine.
II. Validity
Defendant moves for summary judgment as to the validity of all three patents in light of 35 U.S.C. §§ 102(b) and 103 and the following prior art: U.S. Patent No. 2,468,490 to DiJoseph (hereafter "DiJoseph Patent"), British Patent No. GB 2,2122,712A (hereafter "British Patent"), U.S. Patent No. 4,395,791 to Irwin (hereafter "Irwin '791 Patent"), U.S. Patent No. 2,600,707 to Turnbaugh (hereafter "Turnbaugh Patent"), U.S. Patent No. 4,686,732 to Irwin (hereafter "Irwin '732 Patent"), U.S. Patent No. 5,031,263 to Babb (hereafter "Babb Patent"), U.S. Patent No. 3,283,353 to Kirk (hereafter "Kirk Patent"), U.S. Patent No. 3,159,861 to Sarcone (hereafter "Sarcone Patent"), U.S. Patent No. 5,640,736 to Salecker (hereafter "Salecker Patent") and U.S. Patent No. 5,235,718 to Grimsley (hereafter "Grimsley Patent").
Specifically, defendant contends that
Claims 29-33 and 35-37 of the '588 Patent are invalid as obvious under § 103;
Claims 1-3, 10, 18[40] and 22 of the '905 Patent are in invalid as anticipated under *902 § 102(b) and as obvious under § 103; and
Claims 24-26, 39 and 41 of the '401 Patent are invalid as anticipated under § 102(b) and as obvious under § 103.
Defendant argues that the Irwin '791 Patent describes a functionally identical feed control device to the one claimed in the '401 Patent and the British Patent describes a functionally identical drain cleaning apparatus to the one claimed in the '905 Patent. In addition, defendant argues that the DiJoseph Patent, in combination with the British Patent and "any one of a number of other prior patents," describes all the asserted claims of the '588 and '905 Patents. According to defendant, the examiners at the U.S. Patent and Trademark Office (hereafter "PTO") did not perform a proper examination of the applications for the patents-in-suit, and those applications should not have been allowed to issue into patents.
Plaintiffs argue that defendant has failed to carry its burden of showing by clear and convincing evidence that prior art identically discloses each and every claim limitation it contends are invalid as anticipated. Plaintiffs also argue that defendant has failed to carry its burden of showing by clear and convincing evidence that combining multiple prior art references is suggested by the prior art and that the combinations actually render the asserted claims obvious to a person having ordinary skill in the art. Plaintiffs specifically contest defendant's version of what the prior art discloses, claiming that genuine issues of material fact exist as to this issue. In addition, plaintiffs argue that genuine issues of material fact exist concerning the commercial success of the claimed inventions, copying of the K-40GPF, industry recognition of the claimed inventions, acquiescence to asserted patents by a competitor and the accurate level of ordinary skill in the art.
35 U.S.C. § 282 provides,
A patent shall be presumed valid. Each claim of a patent (whether in independent, dependent, or multiple dependent form) shall be presumed valid independently of the validity of other claims; dependent or multiple dependent claims shall be presumed valid even though dependent upon an invalid claim.... The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.
This presumption of validity "starts with acceptance of the patent claims as valid and [then] looks to the challenger for proof of the contrary." Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534 (Fed.Cir.1983). The party challenging a patent's validity "not only has the procedural burden of proceeding first and establishing a prima-facie case, but the burden of persuasion on the merits remains with that party until final decision." Id. "The burden is on the party asserting invalidity to prove the invalidity of each claim...with facts supported by clear and convincing evidence." Custom Accessories, Inc. v. Jeffrey-Allan Industries, Inc., 807 F.2d 955, 961 (Fed.Cir. 1986). One reason for the presumed validity of a patent is that "the primary responsibility for sifting out unpatentable material lies in the Patent Office." Graham v. John Deere Co., 383 U.S. 1, 18, 86 S. Ct. 684, 15 L. Ed. 2d 545 (1966). See also Brooktree Corp. v. Advanced Micro Devices, Inc., 977 F.2d 1555, 1574 (Fed.Cir.1992) (stating presumption of validity "is based in part on the expertise of patent examiners presumed to have done their job").
A. Alleged Prior Art
1. The DiJoseph Patent
Defendant contends that the DiJoseph Patent discloses a cantilever-type pipe *903 cleaning device with a frame F, a snake or cable C, a drum for supporting the cable, a motor M for driving the drum and a flexible tube 67 for covering the cable. In addition, defendant contends that the DiJoseph Patent discloses a frame portion 12 outwardly adjacent an opening 54 through which the cable extends out of the drum. Thus, according to defendant, the DiJoseph machine includes every element of the drain cleaning apparatus disclosed in the '588 and '905 Patents except a feed control device at the end of the flexible tube.
2. The British Patent
Defendant contends that a number of prior patents, including the British Patent, describe a cable feed device disposed at the outer end of a guide tube. Specifically, defendant contends that the British Patent discloses a pipe cleaning apparatus which includes a housing or frame 11, a drum 1, a motor 3, a snake or cable 7, a tubular casing 12 covering the cable and a reaction member 9 at the outward end of the casing. Defendant refers to the reaction member as a feed control device. Thus, according to defendant, the British Patent discloses a manually operable cable feed device for use at the outer end of a guide tube which axially displaces a cable relative to a drum during rotation of the cable and drum.
Plaintiffs, on the other hand, contend that the British Patent does not disclose "a flexible guide tube" in the context of a drain cleaning apparatus. In addition, plaintiffs contend that the British Patent does not disclose "a manually operable cable feed device...for selectively axially displacing said cable."
3. The Turnbaugh Patent
Defendant contends that the Turnbaugh Patent also discloses a feed control device at the outward end of a cable. Specifically, defendant contends that, when operating the device disclosed in the Turnbaugh Patent, the operator can grab the snake and move it longitudinally into and out of a drain while it rotates. Thus, according to defendant, the Turnbaugh Patent also discloses a manually operable cable feed device which axially displaces a cable relative to a drum during rotation of the cable and drum.
4. The Grimsley Patent
Defendant contends that the Grimsley Patent discloses a pipe cleaning device with a rotating cable and drive head at the outward end of the cable used to move the cable in and out of a pipe. Thus, according to defendant, the Grimsley Patent also discloses a manually operable cable feed device which axially displaces a cable relative to a drum during rotation of the cable and drum.
5. The Irwin '791 Patent
Defendant contends that the Irwin '791 patent discloses a functionally equivalent feed control device to that disclosed in the '401 Patent. Specifically, defendant contends that the Irwin '791 Patent discloses a cable feeding mechanism that includes a housing 32 and 26 having a passageway for receiving a cable, a second 36 and third 38 feed roller assembly for driving the cable, a first feed roller assembly 34 removably carried by a movable jaw 30 and a handle 66 pivotally mounted on the housing for engaging a free end of the jaw and displacing the first feed roller assembly against the snake. While admitting the device disclosed in the Irwin '791 Patent does not look like the device of the patents-in-suit, defendant argues that fact is irrelevant in the context of the functional features of utility patents. Thus, according to defendant, the Irwin '791 Patent includes all the components disclosed in *904 the patents-in-suit, and those components function in the same manner.
Plaintiffs, on the other hand, contend that the Irwin '791 Patent does not disclose a "housing" and a "passage axially therethrough for receiving said snake."
6. The Irwin '732 Patent
Defendant contends that the Irwin '732 Patent discloses conventional design features widely used in the drain cleaning apparatus field and available to a designer in that field at the time of the alleged invention of the patents-in-suit. Specifically, defendant contends that the Irwin '732 Patent discloses a feed control device which includes a housing 42 with three hollow casings 46a, 46b and 46c that receiver roller assembly 34 for driving a cable. In addition, defendant contends that the Irwin '732 Patent discloses actuating means, including a cam assembly 54, and lever arm 59 moves one of the roller assemblies in and out of contact with the cable.
7. The Babb Patent
Defendant contends that the Babb Patent also discloses conventional design features. Specifically, defendant contends that the Babb Patent discloses a feed control device with springs that bias roller assemblies away from a cable.
8. The Salecker Patent
Defendant contends that the Salecker Patent also discloses conventional design features. Specifically, defendant contends that the Salecker Patent describes a power feed device 32 rotatably mounted by a hub assembly 114 and a bearing 118 to a feed tube 37 which extends from a drum to the feed device. In addition, defendant contends that the Salecker Patent discloses a cable or snake 36 extending from the drum, through the feed tube and feed device.
9. The Kirk Patent
Defendant contends that the Kirk Patent also discloses conventional design features. Specifically, defendant contends that the Kirk Patent discloses a plumber's snake unit with a hose housing made of flexible, plastic material.
10. The Sarcone Patent
Defendant contends that the Sarcone Patent also discloses conventional design features. Specifically, defendant contends that the Sarcone Patent discloses a flexible plastic hose 37.
B. Anticipated 35 U.S.C. § 102(b)
35 U.S.C.A. § 102 provides,
A person shall be entitled to a patent unless
* * * * * *
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.
A claim is invalid as anticipated "only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference." Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1570 (Fed.Cir.1988). In other words,
[A]n invention is anticipated if the same device, including all the claim limitations, is shown in a single prior art reference. Every element of the claimed invention must be literally present, arranged as in the claim. The identical invention must be shown in as complete detail as is contained in the patent claim.
Richardson v. Suzuki Motor Co., Ltd., 868 F.2d 1226, 1236 (Fed.Cir.1989) (citations omitted). In addition to disclosing every *905 element of the challenged claim, the single reference must "enable one skilled in the art to make the anticipating subject matter." PPG Indus., Inc. v. Guardian Indus. Corp., 75 F.3d 1558, 1566 (Fed.Cir. 1996). See also Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1346 (Fed.Cir.2000).
"If it is necessary to reach beyond the boundaries of a single reference to provide missing disclosure of the claimed invention," it is not anticipated under § 102, although it may still be shown to be obvious under § 103. Scripps Clinic & Research Found. v. Genentech, Inc., 927 F.2d 1565, 1578 (Fed.Cir.1991). The question of whether a patent is invalid as anticipated is one of fact that may be decided on summary judgment only if the record reveals no genuine dispute of material facts. Id. at 1577. See also Union Oil Co. of California v. Atl. Richfield Co., 208 F.3d 989, 994-995 (Fed.Cir.2000); Oney v. Ratliff, 182 F.3d 893, 895 (Fed.Cir.1999).
1. The '905 Patent
Defendant contends that the British Patent discloses every feature of Claims 1, 2 and 22 of the '905 Patent.[41] In the event this Court does not find that the British Patent expressly describes a flexible guide tube, defendant contends that these claims are invalid under § 103, as discussed below.
Plaintiffs argue that there is no identity of structure between the British Patent and Claim 1. In addition, plaintiffs argue that the inventions of Claims 1, 2 and 22 are not enabled by the British Patent. Alternatively, plaintiffs argue that there are genuine issues of material fact as to what the British Patent discloses.
This Court finds that defendant has not established by clear and convincing evidence that the British Patent discloses every feature of Claims 1, 2 and 22 of the '905 Patent.
The British Patent discloses a "fixed tubular casing 12," which defendant argues is identical to the flexible guide tube claimed in the '905 Patent. However, the fixed tubular casing 12 is shown only in Fig. 4, which plaintiffs correctly point out is a specific embodiment for descaling or cleaning boiler tubes. See British Patent col. 2, ll. 73-77 ("An application of the method and apparatus of the present invention to the descaling or cleaning of boiler tubes is illustrated in Fig. 4.").[42] Thus, defendants have not established that the British Patent discloses the use of a guide tube with a drain cleaning apparatus as Claim 1 of the '905 Patent requires.
To the contrary, it appears that the disclosed function of the casing is ill suited to the cleaning of drains. The casing "terminat[es] in a flange which abuts the ends of the tube 13 to be descaled, for example, one of an array of tubes in a conventional tubular boiler construction." (British Patent p. 2, ll. 82-85).
In a particular feature of this embodiment the drive shaft 2 of the drum 1 is hollow and is in open communication with the interior of the drum. In this way a vacuum can be applied by an *906 evacuating means, not shown, to extract scales or other debris removed from the boiler tube by the descaling tool 8 via the tubular casing 12. In an alternative arrangement, the casing 12 may be provided with a sideline by means of which the casing can be directly evacuated, rather than through the drum 1.
(British Patent p. 2, ll. 96-106). This Court agrees with plaintiffs that it is hard to envision a situation wherein an operator of a drain cleaning apparatus would want to draw a vacuum to remove the debris associated with clearing a blocked drain.[43]
In addition, there is some dispute as to whether the casing disclosed by the British Patent is flexible or rigid. Plaintiffs argue that "fixed" is the antithesis of flexible. Defendant, on the other hand, argues that the casing must be flexible because it is shown in a bent configuration in Fig. 4. It is, however, not possible to determine from the face of the British Patent whether the casing is disclosed as always in that bent configuration or if it is disclosed as being bendable to that configuration. The fact that the casing is not described as bent in the patent provides some evidence that it is disclosed as being flexible.
When questioned regarding the flexibility of the casing, Malguarnera testified,
Q: What is your understanding of the word fixed in this context?
A: Attached.
* * * * * *
Q: Is this fixed tubular casing disclosed to be flexible?
A: That in the language here it's not described in any detail either way. But I would expect after looking at the way you'd have to use this, even in the application of cleaning boiler tubes, you'd have to have 12 to be some type of flexible casing. I don't think that with say a rigid piece of pipe, you wouldn't be able, once you'd sighted the machine, to clean all the tubes that you wanted to clean.
Q: Why is that?
A: Let's just hypothesize that 12 is a rigid piece of pipe. A boiler tubes There are a lot of boiler tubes in a typical commercial boiler. So you would To reach all the boiler tubes, once you brought the apparatus into proximity of the boiler, the boiler tube banks, you would have to constantly be changing 12. That would be impractical. What you'd want to have is something that would be flexible, that you could bring up to one tube, the tubes that are further away and still use it with tubes that are close to the apparatus. That is why I think it would have to be in a practical sense flexible type tubing.
(Malguarnera Depo. 128-130). However, Malguarnera also admitted that he has never actually cleaned a boiler or even observed someone else do so. (Malguarnera Depo. 13).
Some evidence that the casing in the British Patent is not flexible can be found in the fact that the snake or cable is repeatedly referred to as a "flexible drive shaft," "flexible shaft" or "flexible drain cleaning rod." See, e.g., British Patent p. 1, ll. 5, 12, 31. Presumably, if the casing were also intended to be flexible, the patent would disclose this fact. Thus, Malguarnera's testimony, at best, creates a genuine issue of material fact as to whether the British Patent discloses a flexible guide tube.
*907 The British Patent discloses a "reaction member 9," which is described in a variety of configurations and which defendant argues is identical to the "manually operable cable feed device...for selectively axially displacing said cable" claimed in the '905 Patent. As pointed out by plaintiffs, the British Patent does not discuss the manual operation of the reaction member. Rather, the reaction member is described as "simultaneously" and "continuously" advancing the snake or cable as the drum rotates. In addition, it does not appear possible to selectively engage or disengage the reaction member as required by Claims 1 and 22 of the '905 Patent, as properly construed by this Court. This Court has determined that the asserted claims require that, while the drum is rotating, the operator be able to feed the snake in or out of the drum or maintain the snake in a stationary position. In addition, this Court has determined that Claims 1 and 22 require the feed control device be operable by hand and not automatic.
The British Patent, however, discloses,
Means are provided for driving the drum about said axis and for simultaneously withdrawing the flexible shafting from the drum along said axis as the drum rotates.
A variety of means may be used for withdrawing the shafting from the drum as the drum rotates. In one technique an axially movable clamping member may be used, which is clamped onto the shafting adjacent the drum as the drum rotates, thereby to withdraw the shaft from the drum. In an alternative arrangement, on exiting from the drum the shafting may be fed through a nip formed between a pair of squeeze rolls or wheels one or both of which are positively driven to draw the shafting from the drum as the drum rotates.
In a preferred embodiment, however, ...a reaction member is mounted in a fixed position externally of the drum, said member frictionally engaging the surface of the shafting as it emerges from the drum so that as the shaft rotates about its axis, as a result of the rotation of the drum, the outer lay of wires forming the flexible shaft engage against the reaction member and act as continuous worm or thread to draw the shafting from the drum by frictional engagement with the reaction member.
* * * * * *
In all the embodiments described, the flexible shafting may be retracted into the drum after use simply by reversing the direction of rotation of the drum, and reversing the action of the withdrawing means to feed the shafting back into the drum. In the case of the preferred embodiment, however, simple reversal of the direction of rotation of the drum will act as its own continuous thread or worm to feed itself back into the drum, consequent upon the reversal of the direction of rotation.
(British Patent p. 1, ll. 44-78, 84-96). Further evidence that the British Patent does not disclose a manually operable feed device as required by the '905 Patent is that fact that it states, "Whatever the construction, the reaction member will be held by suitable fixing means, not shown, to prevent rotation of the reaction member with the shaft." (British Patent p. 2, ll. 40-44). It is not revealed how this fixed, continuous reaction member could be manually and selectively operated.
Defendant nonetheless argues that the reaction member is disclosed as manually operable because its elements are described as movable. The British Patent discloses, "In the arrangement shown in Figs. 1 and 2, the reaction member comprises two relatively movable jaws 9a and 9b which are biassed [sic] towards each *908 other by a biassing [sic] means, not shown." (British Patent p. 2, ll. 23-27). However, the patent goes on to disclose the purpose for this relative movability: "The jaws thus resiliently grip the flexible shaft..." (British Patent p. 2, ll. 27-28). The patent does not disclose that the jaws are relatively movable so that they can be manually and selectively engaged.
Thus, neither Claim 1 nor Claim 22 are anticipated by the British Patent. Dependent Claim 2 cannot be invalid as anticipated by the British Patent if each and every element of Claim 1 is not found in the alleged prior art. Therefore, defendant has failed to establish that the British Patent invalidates the '905 Patent under § 102.
2. The '401 Patent
Defendant contends that the Irwin '791 Patent discloses every feature of Claims 24 and 25 of the '401 Patent.
Plaintiffs argue that the Irwin '791 Patent does not anticipate Claim 24 or 25 of the '401 Patent and request that this Court summarily adjudicate the issue in their favor. Alternatively, plaintiffs argue that there are genuine issues of material fact as to what the Irwin '791 Patent discloses.
This Court finds that defendant has not established by clear and convincing evidence that the Irwin '791 Patent discloses every feature of Claims 24 and 25 of the '401 Patent.
The Irwin '791 Patent discloses a "spring feeding mechanism" comprised of "hingeably interconnected jaw members." (Irwin '791 Patent Abstract). According to defendant, the lower jaw 32 and the bracket 26 to which it is attached constitute a housing through which the snake 16 passes. As an initial matter, this Court finds that the figures referred to by defendant simply do not disclose what defendant contends they disclose. The lower jaw and bracket to which it is attached do not house anything. Rather, the snake feeding mechanism as a whole is "affixed to bracket 26 on cart 20 by means of a threaded stud 28." (Irwin '791 Patent col 4, ll. 16-17). Essentially, the bracket connects the lower jaw to a wheeled cart. There is no space between the two elements to house anything, let alone the snake.[44]
Further evidence that the jaw and bracket do not constitute a housing can be found in the fact that the Irwin '791 Patent uses the word "housing" when referring to elements which fully house or encase something. For example, what is referred to as the cable drum in the patents-in-suit is disclosed as a "housing 14 adapted to house a coiled plumber's snake 15....[A] reversible electric motor 18 is used for rotating the housing and the coiled spring or snake encased therein." (Irwin '791 Patent col. 3, ll. 67 to col 4, ll.4) (emphasis added).
In addition, it does not appear that the Irwin '791 Patent discloses "a passage axially therethrough for receiving said snake," as required by Claims 24 and 25 of the '401 Patent, as properly construed by this Court. The Irwin '791 Patent discloses a lower jaw shaped somewhat like a "V." The snake is disclosed as passing over the "notch" in the lower jaw. However, this Court has determined that the asserted claims require that the passage must be through the housing material and not merely on or near the housing, such as would occur with a surface groove.
*909 Defendant now argues that the word "housing" is a broad term that means "a frame, a box, etc. for containing some part" and that the word "passageway" fully includes a V-type notch on the top portion of the lower jaw or any type of frame that contains a snake. These arguments would more appropriately have been brought in response to plaintiffs' Motion for Claim Construction and for Summary Judgment of Infringement of Claim 24 of the '401 Patent.[45] Regardless of when raised, however, the arguments do not support a finding of invalidity. Even accepting defendant's definition of housing, the lower jaw and bracket do not frame, box in or contain the snake. In addition, defendant's proposed construction of "passageway" cannot be accepted. A notch or surface groove is not a passageway. The '401 Patent claims a passageway through a housing, not a notch cut into a lower support element.
Therefore, defendant has failed to establish that the Irwin '791 Patent invalidates the '401 Patent under § 102.
For these reasons, defendant is not entitled to summary judgment as to the invalidity of the '905 and '401 Patents[46]
C. Obvious 35 U.S.C. § 103
35 U.S.C.A. § 103 provides,
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Whether a patent is invalid under § 103 as obvious is a question of law based on several underlying factual inquiries, including,
(1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the prior art and the claimed invention; and (4) extent of any objective indicia of non-obviousness.
Winner Int'l Royalty Corp. v. Wang, 202 F.3d 1340, 1348 (Fed.Cir.2000). See also Graham, 383 U.S. at 17-18, 86 S. Ct. 684.
1. Scope and Content of Prior Art
Defendant claims that the scope and content of the prior art includes the references identified and described above. Plaintiffs do not dispute this claim.
The scope of the prior art is that "reasonably pertinent to the particular problem with which the inventor was involved." Stratoflex, 713 F.2d at 1535 (quoting In re Wood, 599 F.2d 1032 (Cust. & Pat.App.1979)). This Court agrees for the purposes of this Opinion that all of the references set forth above are within the scope of the relevant prior art.
2. Differences Between the Prior Art and the Claims
With regard to differences between the prior art and the asserted claims, the *910 question is whether the claimed inventions, "each as a whole, would have been obvious to one of ordinary skill in the art when they were made, in view of the teachings of the prior art as a whole." Stratoflex, 713 F.2d at 1537.
a. The '905 Patent
Defendant argues that the prior art references described above disclose every feature of Claims 1-3, 10 and 22 of the '905 Patent. As to Claim 1, defendant contends that the DiJoseph Patent discloses all of its elements except the last one, which claims "a manually operable cable feed device on said outer end of said guide tube for selectively axially displacing said cable relative to said drum during rotation of said drum and cable about said drum axis." According to defendant, this last limitation is disclosed by the British Patent. As to the remaining asserted claims of the '588 Patent, defendant contends that the DiJoseph and British Patents invalidate Claims 2, 3 and 22 and the DiJoseph and British Patents, along with either the Kirk or Sarcone Patent, invalidate Claim 10.
b. The '401 Patent
Defendant argues that the prior art references described above disclose every feature of Claims 26, 32, 39 and 41 of the '401 Patent. Defendant contends that the Irwin '791 and Babb Patents invalidate Claim 26, the Irwin '791 and Irwin '732 Patents invalidate Claims 32 and 41 and the Irwin '791, Irwin '732 and Grimsley Patents invalidate Claim 39.
c. The '588 Patent
Defendant argues that the prior art references described above disclose every feature of Claims 29-33 and 35-37 of the '588 Patent. As to Claim 29, defendant contends that the DiJoseph Patent discloses all of its elements except the last one, which claims "a manually operable cable feed device on said outer end of said guide tube for selectively axially displacing said cable relative to said drum during rotation of said drum and cable about said drum axis." According to defendant, this last limitation is disclosed by the British, Grimsley and Turnbaugh Patents. As to the remaining asserted claims of the '588 Patent, defendant contends that the conventional details added to those dependent claims are disclosed in the Irwin '732, Babb, Kirk, Salecker and/or Sarcone Patents.
d. Teaching, Suggestion or Reason
Plaintiffs do not directly challenge defendant's contention that all the elements of each patent are found in the prior art.[47]*911 Rather, plaintiffs argue that defendant has failed to make even a threshold showing of the requisite teaching, suggestion or reason to combine the references it relies upon to show obviousness.
When a determination of obviousness is based on multiple prior art references, as it is in this case, "there must be a showing of some `teaching, suggestion, or reason' to combine the references." Winner, 202 F.3d at 1348. It is a question of fact whether such motivation has been sufficiently established. Id.See also N. Telecom, Inc. v. Datapoint Corp., 908 F.2d 931, 934 (Fed.Cir.1990) ("It is insufficient that the prior art disclosed the components of the patented device, either separately or used in other combinations; there must be some teaching, suggestion, or incentive to make the combination made by the inventor.").
Evidence of a suggestion, teaching, or motivation to combine prior art references may flow, inter alia, from the references themselves, the knowledge of one of ordinary skill in the art, or from the nature of the problem to be solved. Although a reference need not expressly teach that the disclosure contained therein should be combined with another, combinability, in whatever form, must nevertheless be "clear and particular."
Winner, 202 F.3d at 1348 (citations omitted). See also Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1573 (Fed.Cir.1996).
The Federal Circuit has warned against describing a claimed invention as merely "a combination of old elements." Custom Accessories, 807 F.2d at 959. A finding that claims which combine several prior art references are invalid based merely upon the fact that those similar elements exist is "contrary to statute and would defeat the congressional purpose in enacting Title 35." SmithKline Diagnostics, Inc. v. Helena Labs. Corp., 859 F.2d 878, 887 (Fed.Cir.1988). In all cases, the critical inquiry remains whether "there is something in the prior art as a whole to suggest the desirability, and thus the obviousness, of making the combination." Custom Accessories, 807 F.2d at 959 (quoting Fromson v. Advance Offset Plate, Inc., 755 F.2d 1549 (Fed.Cir.1985)).
"Hindsight reconstruction" cannot be used "to pick and choose among isolated disclosures in the prior art to deprecate the claimed invention." Ecolochem, Inc. v. S. California Edison Co., 227 F.3d 1361, 1371 (Fed.Cir.2000) (quoting In re Fine, 837 F.2d 1071 (Fed.Cir.1988)). Rather, "the best defense against hindsight-based obviousness analysis is the rigorous application of the requirement for a showing of a teaching or motivation to combine the prior art references." Id. "Combining prior art references without evidence of such a suggestion, teaching, or motivation simply takes the inventor's disclosure as a blueprint for piecing together the prior art to defeat patentability-the essence of hindsight." Id. (quoting In re Dembiczak, 175 F.3d 994 (Fed.Cir.1999)).
Defendant argues that the prior art itself provides the motivation to combine the teachings of one patent with those of another. The case defendant cites for this proposition, however, is distinguishable from the one at bar.
The plaintiff in Ryko Manufacturing Co. v. Nu-Star, Inc., 950 F.2d 714, 715 (Fed. Cir.1991), alleged infringement of a patent disclosing a combination comprised of an automatic car wash system electronically activated by an electrical numerical keypad device. The defendant asserted the defense of obviousness. Id. at 716. The Federal Circuit stated,
The district court found that the prior art taught one to use an electrical keypad device to send a signal, which, if *912 proper, would activate a powered system by closing a switch to enable electrical current to flow to the system (e.g. an electronic garage door opener). The prior art also taught that automatic car wash systems could be activated by mechanical insertion devices. The principal difference between the prior art and the claimed invention is the use of an electronic keypad device, instead of a mechanical insertion device, for the specific purpose of selectively activating an automatic car wash system. We agree with the district court that the desirability of the claimed combination was suggested by the prior art.
Id. at 719-720 (emphasis added). What defendant missed, however, is that the finding of obviousness was supported by evidence that "many attempts were made" in the art of automatic car washes to solve problems associated with mechanical assertion devices which required that a coin, token, credit card or receipt be inserted. Id. at 715. For example, such devices "required much maintenance because the mechanical hardware could cause problems or the device could become congested with too many inserted articles." Id. In light of the fact that the undisputed facts established "that the level of ordinary skill in the art [was] typified by an engineer of low to medium skill in the technology of powered system activation devices," the court affirmed the finding that "designing and assembling the claimed combination would have been obvious to" such a person. Id. at 720. Thus, it was the desirability of the claimed invention, in combination with the low to medium skill level required, which led the court in Ryko to make a finding of obviousness. See also N. Telecom, 908 F.2d at 934 ("[T]he nature of the problem `which persisted in the art', and the inventor's solution, are factors to be considered in determining whether the invention would have been obvious to a person of ordinary skill in that art.").
No such evidence has been submitted in this case. As set forth above, defendant cannot simply rely on the existence of prior art references to suggest their combination. Defendant must point to some teaching or motivation. Without doing so, defendant cannot meet its burden of establishing by clear and convincing evidence that the patents-in-suit are invalid as obvious. See Ecolochem, 227 F.3d at 1372 ("Broad conclusory statements regarding the teaching of multiple references, standing alone, are not `evidence.'") (quoting Dembiczak, 175 F.3d 994); Gambro Lundia AB v. Baxter Healthcare Corp., 110 F.3d 1573, 1579 (Fed.Cir.1997) ("The absence of such a suggestion to combine is dispositive in an obviousness determination.").[48]
3. The Level of Ordinary Skill in the Art
Defendant argues that the level of ordinary skill in the art at the time of the patents-in-suit is that of a mechanical engineer or one with practical experience in the manufacture of drain cleaning machinery. Defendant presents no evidence in support of this argument.
Plaintiffs claim that genuine questions of material fact exist as to this issue.
*913 "The person of ordinary skill is a hypothetical person who is presumed to be aware of all the pertinent prior art." Custom Accessories, 807 F.2d at 962. Factors probative of the required level of skill in the art include the educational level of the inventor, the educational level of those who work in the relevant industry, the sophistication of technology involved, the types of problems encountered in the art, the prior art solutions to those problems and the rapidity with which innovations are made. Ruiz v. A.B. Chance Co., 234 F.3d 654, 666-667 (Fed.Cir.2000); Ryko, 950 F.2d at 718.
Rutkowski has a Bachelor of Science in mechanical engineering technology and over 15 years of experience in design work. (Rutkowski Nov. 15 Depo. 89-90; Rutkowski Aug. 20 Depo. 6). He testified that two of his co-workers were engineers. (Rutkowski Nov. 15 Depo. 90). However, Rutkowski also opined that the level of skill in the art is a high school graduate with five or six years of experience in drain cleaning manufacturing. (Rutkowski Nov. 15 Depo. 89).
This Court finds that, in light of the evidence submitted, there is a genuine issue of material fact as to the level of ordinary skill in the art.
4. Objective Evidence
Plaintiffs argue that objective evidence of non-obviousness creates a genuine issue of material fact precluding summary judgment. Defendant, on the other hand, argues that plaintiffs' objective evidence should not be afforded any weight.
As noted by the court in Stratoflex,
It is jurisprudentially inappropriate to disregard any relevant evidence on any issue in any case, patent cases included. Thus evidence rising out of the so-called "secondary considerations" must always when present be considered en route to a determination of obviousness. Indeed, evidence of secondary considerations may often be the most probative and cogent evidence in the record. It may often establish that an invention appearing to have been obvious in light of the prior art was not.... Enroute to a conclusion on obviousness, a court must not stop until all pieces of evidence on that issue have been fully considered and each has been given its appropriate weight. Along the way, some pieces will weigh more heavily than others, but decision should be held in abeyance, and doubt maintained, until all the evidence has had its say.
713 F.2d at 1538 (citations omitted). See also Ecolochem, 227 F.3d at 1376 (noting that evidence of secondary considerations guards against the danger "that a patented invention might appear to be obvious given the excellent vision accorded by hindsight"); Truswal Sys. Corp. v. Hydro-Air Eng'g, Inc., 813 F.2d 1207, 1212 (Fed.Cir. 1987) ("That evidence is `secondary' in time does not mean that it is secondary in importance."). Thus, this Court must consider and properly weigh all of the objective, or secondary, evidence submitted by plaintiffs.
Objective evidence of non-obviousness may include commercial success, a long-felt but unresolved need, failure of others to find a solution to the problem at hand, copying, praise of the invention, departure from expert-accepted principles and widespread recognition. See Graham, 383 U.S. at 17-18, 86 S. Ct. 684; Pro-Mold, 75 F.3d at 1572; Custom Accessories, 807 F.2d at 960; Rosemount, 727 F.2d at 1546. It is not enough, however, to present such objective evidence in a vacuum. "A nexus is required between the merits of the claimed invention and the evidence offered, if that evidence is to be given substantial weight enroute to conclusion on the obviousness issue." Stratoflex, 713 F.2d at 1539.
*914 (a) Commercial Success
Eugene Revolinsky[49] and Paul Gress[50] both testified that the original sales expectations for the K-40 product line have been exceeded. (Revolinsky Depo. 202-203; Gress Depo. 165). Timothy Smith[51] testified that approximately 98% of the 350 to 400 K-40 units that have been sold per month from 1999 to the present were K-40GPF units. (Smith Depo. 47). Similarly, Revolinsky testified that the "unit with a guide hose and power feed is by far the most popular unit and the unit that customers choose." (Revolinsky Depo. 90-91). Rutkowski agreed. (Rutkowski Aug. 20 Depo. 84-86).
In addition, plaintiffs argue that defendant's sales numbers also support a finding of commercial success of the claimed inventions. Sales figures for the years 1999-2001 indicate that at least 95% of the total number of Model 502 Cable Machines sold have included a guide hose and power feed. (Doc. 104 Ex. L).
According to plaintiffs, this evidence demonstrates the commercial success of the claimed inventions and weighs in favor of non-obviousness.
Defendant argues that plaintiffs have done no more than present conclusory statements of commercial success without identifying a nexus between any of the alleged real-world events and the patents-in-suit.
Commercial success alone cannot counter a challenge of obviousness unless the patent holder "can show that the commercial success of the product results from the claimed invention." J.T. Eaton & Co. v. Atl. Paste & Glue Co., 106 F.3d 1563, 1571 (Fed.Cir.1997). Thus, the patent holder must present evidence of "a nexus between the merits of the invention and its commercial success" in order "to prove that the commercial success is not ascribable to other irrelevant commercial and economic factors." Ryko, 950 F.2d at 719.
"When a patentee can demonstrate commercial success, usually shown by significant sales in a relevant market, and that the successful product is the invention disclosed and claimed in the patent, it is presumed that the commercial success is due to the patented invention." J.T. Eaton, 106 F.3d at 1571. Such commercial success weighs against a finding of obviousness, as does evidence of the commercial success of allegedly infringing devices if "a sufficient nexus between this commercial success and the patented invention" is shown. Gambro Lundia, 110 F.3d at 1579.
Where evidence of commercial success consists solely of the number of units sold, a finding of non-obviousness is not required. See In re Huang, 100 F.3d 135, 140 (Fed.Cir.1996) (referring to such evidence as "very weak"); Kansas Jack, Inc. v. Kuhn, 719 F.2d 1144, 1151 (Fed.Cir. 1983). However, plaintiffs have presented much more than this. Plaintiffs have presented evidence that the embodiment of the patents-in-suit, i.e., a drain cleaning apparatus with guide hose and power feed attached, is significantly more commercially successful than similar devices without all the features disclosed in the patents-in-suit and is preferred by customers. While precise evidence of sales numbers or market share was not submitted, the record does establish a nexus between commercial *915 success and the merits of the claimed inventions.
(b) Copying
Plaintiffs argue that the fact that defendant reverse engineered the K-40GPF and designed the Original Model 502 Cable Machine to look like the K-40GPF constitutes evidence of copying and weighs in favor of non-obviousness.
Defendant argues that reverse-engineering a device is not the same as copying it. In addition, defendant claims that "by saying that it wanted a machine similar in appearance to plaintiffs' machine, [it] did not in any way mean that it wanted to copy the patents-in-suit," of which it was not even aware.
Whether defendant's explanations of its motivation for reverse engineering the K-40GPF and its desire to develop a device similar in appearance are credible is a question of fact not resolvable at the summary judgment stage. Even assuming that defendant did copy the K-40GPF, however, evidence of copying does not always constitute evidence of non-obviousness. "[A] showing of copying is only equivocal evidence of non-obviousness in the absence of more compelling objective indicia of other secondary considerations." Ecolochem, 227 F.3d at 1380.
In Cable Electric Products, Inc. v. Genmark, Inc., 770 F.2d 1015, 1027 (Fed.Cir. 1985), overruled on other grounds, the court rejected the argument that the defendant's access to the plaintiff's product constituted evidence of non-obviousness, noting that "[a]ccess to, and analysis of, other products in the market is hardly rare, even in the design stages of competing devices." In addition, the court held that "more than the mere fact of copying by an accused infringer is needed to make that action significant to a determination of the obviousness issue." Id. at 1028.
Rather than supporting a conclusion of obviousness, copying could have occurred out of a general lack of concern for patent property, in which case it weighs neither for nor against the non-obviousness of a specific patent. It may have occurred out of contempt for the specific patent in question, only arguably demonstrating obviousness, or for the ability or willingness of the patentee financially or otherwise to enforce the patent right, which would call for deeper inquiry. Even widespread copying could weigh toward opposite conclusions, depending on the attitudes existing toward patent property and the accepted practices in the industry in question. It is simplistic to assert that copying per se should bolster the validity of a patent.
Id.
(c) Recognition as Innovative Product
Plaintiffs argue that the fact that the K-40GPF won an award for innovation weighs in favor of non-obviousness.
Defendant contends that the magazine which granted the award is obscure and the award lacks probative value without an explanation of the number and identity of the people who voted for it.
In January 2000, Ridge received notification from the editor of Plant Engineering magazine[52] congratulating the company on winning the Bronze Award in the Maintenance Products category of the magazine's Product of the Year Awards competition. (Doc. 104 Ex. O). The notification explains that initial entries for the award are screened by a panel of plant *916 engineers and then voted on by readers. (Doc. 104 Ex. O).
An article in the Plant Engineering Product of the Year issue states,
The 47 winners in the 1999 "Product of the Year" contest combine necessity, technology, and simple ideas. These concepts, teamed with innovation, embody the winners in this year's contest. In our November 1999 issue, we presented the 150 finalists in this competition, and asked our readers to select the products that they found to be the most useful and innovative. The Grand Award, pictured below, was the overall choice for best new product of 1999. Gold, Silver, and Bronze winners in each of our 15 product categories are listed on the following pages.
Awards were presented March 13, 2000, at a black-tie reception during the National Plant Engineering Show in Chicago.
(Doc. 104 Ex. P at 59). A photo of the K-40 drain cleaner with guide hose and power feed attached appears as the Bronze Award Winner in the Maintenance Products category, along with Ridge's name and website address. (Doc. 104 Ex. P at 64).
While more information concerning the popularity of Plant Engineering in the relevant field, the number and identity of its readers and the number of readers who voted might increase or decrease the weight to which this evidence is entitled, the evidence as presented nonetheless weighs in favor of a finding of non-obviousness. See Ecolochem, 227 F.3d at 1380 (noting the acclamation a product receives when it is released is "indicia of non-obviousness").
(d) Acquiescence
Prior to filing the instant suit, plaintiffs filed a complaint against General Wire and Spring Co. alleging infringement of the '401 and '588 Patents. Emerson Electric Co, v. General Wire Spring Co., No. 00 CV 156 (N.D.Ohio). The parties in that case resolved their dispute through mediation prior to trial, with General Wire paying damages for infringement and agreeing to an injunction against further infringement.
Plaintiffs argue that the acquiescence to its patent rights by General Wire weighs in favor of non-obviousness.
Defendant claims that, because plaintiffs' settlement with General Wire involved such a small amount of money, one can easily conclude that it was reached merely to avoid the cost of litigation.
"Recognition and acceptance of the patent by competitors who take licenses under it to avail themselves of the merits of the invention is evidence of nonobviousness." Stratoflex, 713 F.2d at 1539. Similarly, recognition and acceptance of a patent by competitors who pay damages and agree to discontinue the manufacture, use, sale and importing of allegedly infringing products is evidence which weighs against a finding of obviousness. (Doc. 104 Ex. Q).
Despite all defendant's arguments to the contrary, plaintiffs have presented sufficient objective evidence to create a genuine issue of material fact as to the obviousness of the '588, '905 and '401 Patents, particularly in light of the conflicting evidence concerning the differences between the prior art and the asserted claims and defendant's failure to present evidence of some teaching, suggestion or reason to combine the references upon which it relies. Therefore, defendant's request for summary judgment as to the validity of the patents-in-suit must be denied.
III. Enforceability
Plaintiffs move for summary judgment that the '588 and '905 Patents are not *917 unenforceable because of inequitable conduct. Defendant argues that the evidence presented establishes a prima facie case of inequitable conduct and, alternatively, that genuine issues of material fact exist as to the materiality of the information plaintiffs withheld from the PTO and the intent with which they did so.
"Applicants for U.S. patents and their representatives before the PTO are subject to a duty of candor, good faith and honesty in their prosecution of patent applications." Union Oil, 208 F.3d at 1001. See also 37 C.F.R. § 1.56. The breach of this duty gives rise to a finding of inequitable conduct which may, in turn, render a patent unenforceable. Union Oil, 208 F.3d at 1001; Elk Corp. of Dallas v. GAF Bldg. Materials Corp., 168 F.3d 28, 30 (Fed.Cir.1999). However, without a showing of inequitable conduct, "a breach of the disclosure duty alone does not render the patent unenforceable." Critikon, Inc. v. Becton Dickinson Vascular Access, Inc., 120 F.3d 1253, 1256 (Fed.Cir.1997). "The courts have consistently rejected the notion of per se forfeiture based on non-fraudulent failure to comply with a rule of practice before the PTO." Seiko Epson Corp. v. Nu-Kote Int'l, Inc., 190 F.3d 1360, 1367 (Fed.Cir.1999).
Thus, a finding of inequitable conduct for the purpose of establishing that a patent is unenforceable requires two steps:
First, the trial court must determine whether the conduct meets a threshold level of materiality. The trial court must then also determine whether the evidence shows a threshold level of intent to mislead the PTO.
PerSeptive Biosystems, Inc. v. Pharmacia Biotech, Inc., 225 F.3d 1315, 1318-1319 (Fed.Cir.2000). See also Brasseler, U.S.A. I, L.P. v. Stryker Sales Corp., 267 F.3d 1370, 1379 (Fed.Cir.2001). Materiality and intent to deceive must both be proven by clear and convincing evidence. Upjohn Co. v. Mova Pharm. Corp., 225 F.3d 1306, 1312 (Fed.Cir.2000). Both the patent holder's intent and the materiality of the conduct are questions of fact. GFI, Inc. v. Franklin Corp., 265 F.3d 1268, 1273 (Fed. Cir.2001). However, the ultimate question of whether the patent holder engaged in inequitable conduct "is entirely equitable in nature, and thus not an issue for a jury to decide." PerSeptive, 225 F.3d at 1318.
Information is material and must be disclosed if there is a substantial likelihood that a reasonable examiner would consider the information important when deciding whether to allow the patent application to issue. PerSeptive, 225 F.3d at 1321. An otherwise material reference need not be provided, however, "if it is merely cumulative to or less material than other references before the examiner." Upjohn, 225 F.3d at 1312. See also GFI, 265 F.3d at 1274.
In addition, the inequitable conduct must be engaged in "with the specific intent to mislead, not merely from carelessness in the performance of a duty." Speedplay, Inc. v. Bebop, Inc., 211 F.3d 1245, 1259 (Fed.Cir.2000). "[M]ere gross negligence is insufficient to justify an inference of an intent to deceive the PTO." Baxter Int'l, Inc. v. McGaw, Inc., 149 F.3d 1321, 1329 (Fed.Cir.1998). See also Kingsdown Med. Consultants, Ltd. v. Hollister Inc., 863 F.2d 867, 876 (Fed.Cir.1988). "Rather, clear and convincing evidence must prove that an applicant had the specific intent to accomplish an act that the applicant ought not to have performed, viz., misleading or deceiving the PTO." Molins PLC v. Textron, Inc., 48 F.3d 1172, 1181 (Fed.Cir.1995).
Direct evidence of an intent to deceive is rarely found. GFI, 265 F.3d at 1274. For this reason, the element of intent is general proven by inferences drawn from facts and circumstances surrounding the patent *918 applicant's overall conduct which permit "a confident judgment that deceit has occurred." Id.See also Elk, 168 F.3d at 32. However, as noted above, materiality and intent are separate required elements. "Intent to deceive can not be inferred solely from the fact that information was not disclosed; there must be a factual basis for a finding of deceptive intent." Hebert v. Lisle Corp., 99 F.3d 1109, 1116 (Fed.Cir. 1996). Therefore, without more, the omission of a material reference cannot establish an intent to deceive. GFI, 265 F.3d at 1274. See also Multiform, 133 F.3d at 1482 ("[I]nference without any probative evidence is insufficient to show culpable intent.").
On the other hand, the "mere denial of intent to mislead (which would defeat every effort to establish inequitable conduct) will not suffice." GFI, 265 F.3d at 1275. This Court "must weigh all the evidence, including evidence of good faith," before making a determination of intent. GFI, 265 F.3d at 1274.
Once the threshold levels of materiality and intent have been established, the trial court is required to weigh materiality and intent. The more material the conduct, the less evidence of intent will be required in order to find that inequitable conduct has occurred. In light of all the circumstances, the court must then determine whether the applicant's conduct is so culpable that the patent should be held unenforceable.
PerSeptive, 225 F.3d at 1318. See also GFI, 265 F.3d at 1273. If such culpable inequitable conduct is found with respect to one claim, the entire patent is unenforceable. Baxter, 149 F.3d at 1332.
Examples of inequitable conduct include affirmative misrepresentations of material fact, the failure to disclose material information and submissions of false material information. PerSeptive, 225 F.3d at 1318.
As noted above, defendant filed counterclaims alleging that both the '588 and '905 Patents are unenforceable. Defendant contends that plaintiffs failed to disclose material prior art to the PTO during prosecution of the '588 and '905 Patents and engaged in other misconduct which supports an inference of their intent to deceive the PTO.
A. Patents Not Disclosed
Defendant contends that plaintiffs engaged in inequitable conduct by failing to disclose the Irwin '791 and Turnbaugh Patents to the PTO during prosecution of the '588 Patent and failed to disclose the Turnbaugh Patent during the prosecution of the '905 Patent. To prevail on its defense of inequitable conduct, defendant must establish by clear and convincing evidence that plaintiffs withheld this information from the PTO, the information was material and plaintiffs acted with the intent to deceive. See GFI, 265 F.3d at 1273.
Inequitable conduct due to failure to disclose material information must be proven by clear and convincing evidence of: (1) prior art that was material; (2) knowledge chargeable to an applicant of that prior art and of its materiality; and (3) failure of the applicant to disclose the art resulting from an intent to mislead the PTO. Such proof of inequitable conduct may be rebutted by a showing that: (a) the prior art was not material; (b) if the prior art was material, a showing that the applicant did not know of that art; (c) if the applicant did know of that art, a showing that the applicant did not know of its materiality; or (d) a showing that the applicant's failure to disclose the art did not result from an intent to mislead the PTO
Elk, 168 F.3d at 30 (citations omitted). See also Hebert, 99 F.3d at 1115 ("An applicant can not be held to have acted *919 inequitably for not providing the examiner with information that was not material and that was not culpably withheld."); Baxter, 149 F.3d at 1329 ("In a case involving an omission of a material reference to the PTO, there must be clear and convincing evidence that the applicant made a deliberate decision to withhold a known material reference.").
As evidence of the materiality of the Irwin '791 and Turnbaugh Patents, defendant points to the fact that the European Patent Office cited both these patents as relevant to the '401 Patent.
After filing the application which issued as the '401 Patent but before that patent was issued, plaintiffs filed an application with the European Patent Office seeking protection for the same device (hereafter "European '401 Application"). The '401 Patent issued on May 11, 1999. On August 3, 1999, the European Patent Office issued a Search Report relative to the European '401 Application. (Doc. 124 Ex. F). That Search Report cites the Turnbaugh Patent as relevant as "technological background" and the Irwin '791 Patent as "particularly relevant if taken alone." (Doc. 124 Ex. F). At the time the Search Report was issued, the '588 Patent application was still pending and the application which issued as the '905 Patent had not yet been filed.
1. The Turnbaugh Patent
The Turnbaugh Patent is entitled "Flexible Rotary Reaming Apparatus." (Turnbaugh Patent at title page). It discloses "a mechanism whereby a rotary snake or the like can be gripped and moved longitudinally while the snake is rotated" during the drain cleaning process. (Turnbaugh Patent col. 1, ll. 3-5). The patent also discloses,
Having in mind the conditions of operation involved and the difficulties encountered, it is a prime object of this invention to provide a chuck for gripping rotary snakes to facilitate the application of manual force or produce longitudinal movement of the snake in either direction while the snake is rotating.
(Turnbaugh Patent col. 1, ll. 28-34). The preferred embodiment of the Turnbaugh Patent has a casing 10 having an axial passage 12 to accommodate a snake S, three bearing elements or rollers 16, 18 and 22, and an extensible presser pin 30 actuated by a handle 32. (Turnbaugh Patent col. 2, ll. 30-58). As disclosed by the patent,
In operation it is customary for snakes S to be rotated with considerable force by mechanical means (not shown), such as geared electric motors or comparable equipment. At the same time that the snake is rotated, it is fed in or pulled out of the conduit [drain] to accomplish a cleaning or reaming of the conduit to remove it after such an operation has been completed. It is with respect to the latter longitudinal movement of the snake while it is rotating that my invention particularly applies.
(Turnbaugh Patent col. 3, ll. 12-22).
Thus, the Turnbaugh Patent discloses a device to be used to feed a cable into and out of a drain to be cleaned. However, it does not disclose a cable feed device at the outer end of a flexible guide tube. Thus, this Court finds that the Turnbaugh Patent is not material to the '588 and '905 Patents, i.e., there is not a substantial likelihood that a reasonable examiner would consider the Turnbaugh Patent important when deciding whether to allow those patent applications to issue.[53]
*920 Even if the Turnbaugh Patent were material to the patents-in-suit, however, plaintiffs did not engage in inequitable conduct by failing to disclose it. Information is cumulative of disclosed references if it "teaches no more than what a reasonable examiner would consider to be taught by the prior art already before the PTO." Regents of the Univ. of California v. Eli Lilly & Co., 119 F.3d 1559, 1575 (Fed.Cir. 1997). At best, the Turnbaugh Patent is merely cumulative to and certainly less material than other references plaintiffs disclosed to the examiner, such as the Irwin '732 and Babb Patents, which both disclose devices for feeding cables for use in conjunction with plumbing tools more similar to those disclosed in the patents-in-suit. See Halliburton Co. v. Schlumberger Tech. Corp., 925 F.2d 1435, 1440-1442 (Fed.Cir.1991) (finding defendant failed to establish inequitable conduct where the references found by the examiner were more closely related to the patent application than the uncited art).
In addition, defendant has presented absolutely no evidence that plaintiffs failed to disclose the Turnbaugh Patent with the intent to deceive the PTO. As noted above, the mere failure to disclose material information of which one is aware does not constitute inequitable conduct. According to defendant, plaintiffs' intent to deceive is evidenced by the fact that they argued "that the prior art did not include the very features taught by the Turnbaugh Patent." The argument referred to by defendant does not support its contention. As set forth above, in the Supplemental IDS submitted by plaintiffs in connection with the '588 Patent, plaintiffs stated,
None of the prior art submitted herewith discloses drain cleaning apparatus including a flexible guide tube for receiving a drain cleaning cable and having an inner end supported on the apparatus frame and a manually operable cable feed device on the outer end of the guide tube.
(Doc. 96 Ex. G). However, the Turnbaugh Patents also fails to disclose a drain cleaning apparatus with a manually operable cable feed device attached to the outer end of a flexible guide tube.
2. The Irwin '791 Patent[54]
The Irwin '791 Patent was discussed at length above. While this Court has found that the Irwin '791 Patent does not disclose every element of the '401 Patent, it is likely that a reasonable examiner would consider the Irwin '791 Patent relevant to the '401 Patent. However, this Court finds that the Irwin '791 Patent is not material to the '588 Patent because it does not disclose a cable feed device at the outer end of a flexible guide tube and is, at best, merely cumulative to other references plaintiffs disclosed to the examiner. In addition, defendant has failed to present evidence that plaintiffs had actual knowledge of its materiality or that plaintiffs failed to disclose it with the intent to deceive the PTO.[55]
*921 B. Other Conduct
According to defendant, plaintiffs made other misrepresentations to the PTO which support an inference of an intent to deceive.
First, defendant argues that plaintiffs engaged in inequitable conduct by initially presenting a description of the claimed invention which required that the inner end of the guide tube be connected to the frame and then slipping Claim 22 of the '905 Patent past the examiner without pointing out that it does not require such a connection. According to defendant, plaintiffs took this action to improve their infringement position against defendant because the Model 502 Cable Machines do not have a guide tube supported on the frame.
This argument has no merit. As an initial matter, it should be noted that a patent examiner is presumed to have done his job thoroughly. There is no evidence to suggest that plaintiffs acted surreptitiously in submitting what would become Claim 22 of the '905 Patent. This Court assumes that the patent examiner examined application claim 65 just as he examined all the other proposed claims. This assumption is supported by the fact that the examiner's initials and notations appear on the Amendment requesting that application claim 65 be added to the '905 Patent, including the correction of a typographical error in the last line of the proposed claim language. (Doc. 92 Ex. E).
In addition, as the Federal Circuit stated in Kingsdown,
[T]here is nothing improper, illegal or inequitable in filing a patent application for the purpose of obtaining a right to exclude a known competitor's product from the market; nor is it in any manner improper to amend or insert claims intended to cover a competitor's product the applicant's attorney has learned about during the prosecution of a patent application. Any such amendment or insertion must comply with all statutes and regulations, of course, but, if it does, its genesis in the marketplace is simply irrelevant and cannot of itself evidence deceitful intent.
863 F.2d at 874. Thus, an inference of deceit cannot be drawn from plaintiffs' attempts to broaden their patent rights or cover defendant's devices.
Second, defendant argues that plaintiffs' mischaracterization of the Boelens Patent constitutes an intentional misrepresentation to the PTO. As noted above, the IDS states,
The patents identified on Form PTO-1449 attached hereto and which patents are discussed below, represent the most relevant prior art presently known to applicant in connection with the subject matter of the above-identified patent application.
* * * * * *
4,570,281 to Boelens discloses a motorized snake drum having a guide tube within the drum and a tubular operating sleeve coupled to the outlet end of the drum.
(Doc. 96 Ex. F). The Boelens Patent discloses a snake guide segment 54 inside the drum 74 "for the purpose of guiding the plumber's snake as it is operated by the apparatus" and an external operating sleeve 82 fitted to the bearing unit 42 of the drum. (Boelens Patent col. 2, ll. 62-65 and col. 3, ll. 40-42). This Court finds that plaintiffs' description of the Boelens Patent does not misrepresent the actual disclosures of the patent.
Even if plaintiffs' description was inaccurate, however, it cannot constitute inequitable conduct. In Akzo N.V. v. U.S. International Trade Commission, 808 F.2d 1471, 1482 (Fed.Cir.1986), the defendant claimed that Du Pont had engaged in *922 inequitable conduct during its arguments to the patent examiner. In particular, Du Pont had attempted to distinguish its process, referred to as the Blades process, from the closest prior art processes. Id. at 1481. The Federal Circuit affirmed the district court's finding that such arguments did not constitute material misrepresentations. Id. at 1482. The court stated,
As [defendant] concedes, the examiner had both the Morgan '645 patent and the Kwolek '542 patents before him throughout the examination process. It was on the basis of these two patents that Du Pont's first three applications were rejected. The mere fact that Du Pont attempted to distinguish the Blades process from the prior art does not constitute a material omission or misrepresentation. The examiner was free to reach his own conclusion regarding the Blades process based on the art in front of him. Nor does Du Pont's affidavit, advocating a particular interpretation of the Morgan '645 and Kwolek '542 patents (albeit favorable to Du Pont's position), show any intent to mislead the PTO. Du Pont's intent was not to mislead, but rather to distinguish prior art from the Blades process and demonstrate to the examiner that the Blades process would not have been obvious in light of Morgan '645 and Kwolek '542.
Id. Similarly, plaintiffs provided the examiner with a copy of the Boelens Patent which he was free to examine himself. No intent to deceive is evidenced by plaintiffs' attempt to distinguish the Boelens Patent from the claimed inventions.
Finally, defendant argues that plaintiffs have demonstrated bad faith in that the testimony of plaintiffs' patent attorneys "was a complete evasion, supporting an inference of an intent to deceive." Defendant cites the deposition testimony of Kent Daniels and Robert Vickers in support of its claim that plaintiffs failed to provide a good faith explanation for the failure to cite the Irwin '791 and Turnbaugh Patents.
After being handed a copy of the Turnbaugh Patent, Daniels testified,
Q: Do you recognize that document?
A: No, I do not.
Q: Never seen it before?
A: I won't say I have never seen it, but I do not recognize it at this time.
(Daniels Depo. 84). Daniels's failure to recall the Turnbaugh Patent is not evidence of an intent to deceive. In addition, defendant leaves out the fact that Daniels also testified that his firm did not file the foreign patent applications which correspond to the patents-in-suit. (Daniels Depo. 11-12, 84).
With regard to a "Request for Reconsideration" filed in connection with the '905 Patent, Daniels testified,
Q: And whose signature well, it is your signature, but who wrote it in there?
A: I don't know.
Q: I'm sorry. Let me rephrase it. It is somebody that tried to mimic your signature?
A: No. It is not an effort to mimic my signature. It just simply is my signature or my name.
Q: Your name?
A: Yes. And I have in the past authorized my secretary to sign something if I had prepared it and I'm not going to be there to sign it.
Q: Is that your secretary's handwriting there?
A: I don't know.
Q: Does it look like hers?
Q: I don't know.
* * * * * *
Q: So that's not your signature on the terminal disclaimer either?
*923 A: No, it is not.
Q: Is there any other marks there that would identify that it is somebody else signing on your behalf?
A: No.
(Daniels Depo. 33-35). Daniels did not attempt to disclaim the contents of the Request for Reconsideration, nor does defendant contend that document contains misrepresentations. This Court simply cannot make a finding of an intent to deceive from the fact that Daniels allows authorized persons to sign his name on certain documents or that he could not state definitively who had signed his name on the Request for Reconsideration.
Finally, with regard to what became Claim 22 of the '905 Patent, Vickers testified,
Q: Now, let me ask you to take a look at that [application] claim 65 again. Did you draft that claim?
A: No.
Q: Who did?
A: I don't know.
Q: Is that your signature on page two of that amendment?
A: Yes.
Q: Okay. So you signed it without drafting this?
A: Yes.
(Vickers Depo. 18). Again, defendant leaves out important relevant facts. Daniels is the attorney at Vickers Daniel & Young who drafted and prosecuted all three patents-in-suit. (Daniels Depo. 59-63). Every other attorney in the firm, with the possible exception of one, helped Daniels with the prosecution of the '905 Patent while he was ill and recovering from surgery. (Daniels Depo. 26, 31, 62-63; Vickers Depo. 36-37). Plaintiffs do not disclaim the contents of application claim 65 and, as set forth above, that claim was thoroughly reviewed by the examiner. Thus, the fact that Vickers could not identify who drafted application claim 65 has no bearing on defendant's claims of inequitable conduct.
In addition, plaintiffs do not bear the burden of presenting evidence of a good faith explanation for the failure to cite the Irwin '791 and Turnbaugh Patents. Rather, defendant must establish by clear and convincing evidence that those patents were material to the prosecution of the '588 and '905 Patents, that plaintiffs were aware of them and their materiality and that plaintiffs purposely chose not to disclose them to the PTO with the intent to deceive. As set forth above, defendant has failed to present any such evidence. See Nordberg, Inc. v. Telsmith, Inc., 82 F.3d 394, 398 (Fed.Cir.1996) ("Furthermore, because [defendant] did not make a threshold showing of intent by [plaintiff] to mislead the PTO, [plaintiff] had no burden to produce evidence of good faith and the court properly declined to balance materiality and intent.").
The Federal Circuit has recognized the recent proliferation of baseless allegations of inequitable conduct:
One who has engaged in inequitable conduct has inflicted damage on the patent examining system, obtaining a statutory period of exclusivity by improper means, and on the public, which must face an unlawfully-granted patent. Loss of one's patent and damage to reputation are justified penalties for such conduct. On the other hand, unjustified accusations of inequitable conduct are offensive and unprofessional. They have been called a "plague" on the patent system. Unjustified accusations may deprive patentees of their earned property rights and impugn fellow professionals. They should be condemned.
Molins, 48 F.3d at 1182 (citation omitted). See also Burlington Indus., Inc. v. Dayco Corp., 849 F.2d 1418, 1422 (Fed.Cir.1988) (noting that baseless charges of inequitable *924 conduct by attorneys against other attorneys "destroy the respect for one another's integrity"). Unfortunately, in this case, defendant's allegations of inequitable conduct fall into the category of unjustified accusations.[56] Plaintiffs have established that no genuine issues of material fact exist by showing that there is absolutely no evidence to support a claim of inequitable conduct. Therefore, plaintiffs are entitled to summary judgment as to the enforceability of the '588 and '905 Patents.
CONCLUSION
As set forth above, this Court finds as follows:
the Original Model 502 Cable Machine literally infringes Claim 29 of the '588 Patent as a matter of law;
the Modified Model 502 Cable Machine in the second configuration does not literally infringe Claim 29 or 35 of the '588 Patent but does infringe those claims under the doctrine of equivalents as a matter of law;
genuine issues of material fact preclude summary judgment as to the existence of the third configuration of the Modified Model 502 Cable Machine and the literal infringement of Claims 29 and 35 of the '588 Patent by that configuration;
the Modified Model 502 Cable Machine in the second configuration literally infringes Claims 1, 2 and 22 of the '905 Patent as a matter of law;
genuine issues of material fact preclude summary judgment as to the existence of the third configuration of the Modified Model 502 Cable Machine and the literal infringement of Claims 1, 2, 3, 10 and 22 of the '905 Patent by that configuration;
the Original Model 502 Cable Machine literally infringes Claim 24 of the '401 Patent as a matter of law;
the Modified Model 502 Cable Machine does not literally infringe Claim 24 of the '401 Patent as a matter of law;
defendant did not bear its burden of proving Claims 1, 2 and 22 of the '905 Patent invalid as anticipated by British Patent;
defendant did not bear its burden of proving Claims 24 and 25 of the '401 Patent invalid as anticipated by Irwin '791 Patent;
defendant did not bear its burden of proving the '588, '905 and '401 Patents invalid as obvious; and
the '588 and '905 Patents are not unenforceable as a matter of law.
For these reasons, Plaintiffs' Motion for Claim Construction of Claims 29 and 35 of the '588 Patent and of Claims 1 and 22 of the '905 Patent is granted as set forth above; Plaintiffs' Motion for Claim Construction and for Summary Judgment of Infringement of Claim 24 of the '401 Patent is granted as set forth above; Spartan's Cross Motion for Summary Judgment of Claim 24 of the '401 Patent is granted in part and denied in part; Plaintiffs' Motion for Partial Summary Judgment of Infringement of Claim 29 of the '588 Patent and of Claim 22 of the '905 Patent is granted; Spartan's Cross Motion as to Claim 29 of the '588 Patent and Claim 22 of the '905 Patent is denied; Spartan's Motion for Summary Judgment on Non-Infringement is denied; Spartan's Motion for Summary Judgment on Invalidity is denied; and Plaintiffs' Motion for *925 Partial Summary Judgment of No Unenforceability is granted.
In addition, this Court hereby sua sponte grants summary judgment in favor of plaintiffs as to infringement under the doctrine of equivalents of Claims 29 and 35 of the '588 Patent by the Modified Model 502 Cable Machine in the second configuration and as to literal infringement of Claims 1 and 2 of the '905 Patent by the Modified Model 502 Cable Machine in the second configuration.
IT IS SO ORDERED.
NOTES
[1] Rutkowski is an engineer and has been employed by Ridge for over 30 years and is currently a Senior Development Engineer. (Rutkowski Invalidity Opp. Decl. ¶ 3; Rutkowski Aug. 20 Depo. 5). Rutkowski was deposed in connection with this litigation as an individual, a corporate representative and Ridge's technical expert. (Rutkowski Invalidity Opp. Decl. ¶ 4)
[2] Ridge also sells a battery-powered device referred to as the K-40B. (Rutkowski Aug. 20 Depo. 34).
[3] Sloter is an employee of defendant. (Sloter Depo. 7). He recently gave up his previous title, Vice President of Manufacturing and Engineering, so that new people could be trained and he could begin the process of retiring. (Sloter Depo. 11-12). Sloter currently works directly for Tom Pranka, defendant's President, and gives manufacturing and engineering advice and direction to defendant's managers of production. (Sloter Depo. 7-8). Sloter was deposed both in his individual capacity and as defendant's representative. (Sloter Depo. 10).
[4] On November 14, 2001, this Court granted defendant's motion to voluntarily dismiss with prejudice Count Five of its Counterclaims, which alleged unfair competition. (Doc. 85).
[5] Plaintiffs have filed three motions relating to claim construction and infringement, requesting that this Court separately (1) construe Claims 29 and 35 of the '588 Patent and Claims 1 and 22 of the '905 Patent; (2) determine whether Claim 29 of the '588 Patent and Claim 22 of the '905 Patent are infringed; and (3) construe Claims 24, 25 and 26 of the '401 Patent and determine if Claim 24 is infringed.
Defendant objects and asserts that plaintiffs have filed separate motions to avoid the page limitations set forth in Local Rule 7.1(g). In addition, defendant argues that claims should not be construed outside the context of a dispositive motion.
Defendant's argument that claim construction is improper in the absence of a dispositive ruling lacks merit. Claim construction is a matter of law which must be decided by this Court at some point during this litigation. The Federal Circuit has recognized the appropriateness of claim construction determinations independent of and prior to an examination of the issue of infringement. See, e.g., Budde v. Harley-Davidson, Inc., 250 F.3d 1369, 1375 (Fed.Cir.2001); Mycogen Plant Science, Inc. v. Monsanto Co., 243 F.3d 1316, 1320-1321 (Fed.Cir.2001). This Court agrees that plaintiffs should not have submitted four piecemeal dispositive motions. However, in light of the fact that plaintiffs would presumably have been granted a page limitation extension if one had been requested and because defendant also filed two piecemeal motions and two cross-motions, this Court will consider the merits of all the pending dispositive motions together.
[6] This is particularly true with regard to the '401 Patent.
[7] On its face, defendant's argument contradicts the well-established rule of claim differentiation, which provides,
There is presumed to be a difference in meaning and scope when different words or phrases are used in separate claims. To the extent that the absence of such difference in meaning and scope would make a claim superfluous, the doctrine of claim differentiation states the presumption that the difference between claims is significant.
Tandon Corp. v. United States Int'l Trade Comm'n, 831 F.2d 1017, 1023 (Fed.Cir.1987). While "the doctrine of claim differentiation is not a hard and fast rule of construction, it does create a presumption that each claim in a patent has a different scope." Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed.Cir.1998).
[8] The specific phrases at issue are italicized in this and each of the following claims. With regard to several phrases, defendant asserts that more of the surrounding language is relevant. For each phrase, the most expansive wording is italicized and discussed.
[9] In connection with this claim, defendant repeatedly argues that, "when the preferred embodiment of a claim limitation is the only embodiment, the claims may be limited to that embodiment." However, the cases cited by defendant in support of this argument are clearly distinguishable from the one currently pending before this Court. In Toro Co. v. White Consolidated Industries, Inc., 199 F.3d 1295, 1301 (Fed.Cir.1999), the court repeated the well-established rule that "the preferred embodiment does not limit broader claims that are supported by the written description." In addition, the court made clear that its holding was consistent with the rule:
[T]he invention is described throughout the specification as it is claimed, whereby the cover "includes" the ring....There is no basis for construing "including" the ring to mean not including the ring.
Id. at 1302 (emphasis added). See also Wang Labs., Inc. v. Am. Online, Inc., 197 F.3d 1377, 1383 (Fed.Cir.1999) (rejecting patentee's claim that other protocols were covered by patent, despite fact that only character-based protocols were described, because "in order to be covered by the claims [the relevant] subject matter must be sufficiently described in the applicant's invention to meet the [statutory] requirements").
[10] This construction of "mounted" is supported by definitions contained in The American Heritage Dictionary of the English Language, 4th Ed. ("To fix securely to a support: mount an engine in a car.") and the Oxford English Dictionary, 2nd Ed. http://oed.com ("Set up or adjusted for use; placed on a stand or support; fitted.").
[11] In Engel Industries, the patent stated, "A second portion 24 is bent rearwardly whereby this portion 24 extends opposite a portion of the duct wall. A return portion 26 is also provided...." 96 F.3d at 1405. The patentee argued that the second portion 24 included the return portion 26. Id. The court rejected this argument, stating, "Since a return portion is `also provided,' they logically cannot be one and the same." Id.
[12] Defendant claims that the deposition testimony of Rutkowski establishes that the mounting bracket is part of the frame. This Court disagrees. When questioned regarding support for the inner guide hose, Rutkowski testified that it was "supported on the mounting bracket of the frame." (Rutkowski Aug. 20 Depo. 118). In light of the patent document and Rutkowski's earlier deposition testimony, this statement is insufficient to show that the mounting bracket and the frame are all of a piece. Earlier, Rutkowski had testified,
Q: Is that bracket part of the frame?
A: It's attached to the frame.
Q: So you don't think it's part of the frame?
A: If you take it off, it's not part of the frame, but as it is now, it's attached to the frame.
Q: Is it part of the frame?
* * * * * *
A: It's a separate bracket that can be attached to the frame.
(Rutkowski Aug. 20 Depo. 71-72).
[13] Defendant focuses specifically on plaintiffs' description of U.S. Patent No. 4,570,281 to Boelens to support its argument.
[14] Defendant does not make entirely clearly when its arguments concerning prosecution history relate to claim construction and when they relate to prosecution history estoppel. "Claim interpretation in view of the prosecution history is a preliminary step in determining literal infringement, while prosecution history estoppel applies as a limitation on the range of equivalents if, after the claims have been properly interpreted, no literal infringement has been found." Southwall Tech., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1578 (Fed. Cir.1995). In either case, however, defendant's arguments are unpersuasive. See discussion infra.
[15] Defendant also claims that plaintiffs distinguished U.S. Patent No. 3,159,861 to Sarcone on the grounds that Sarcone's guide tube was rotationally attached to the drum. However, defendant presents no evidence in support of this argument.
[16] In addition, Rutkowski's deposition does not support the proposition for which defendant offers it. Rutkowski testified,
Q: Take a look at the disclosure of the '588, if you would, please and tell me what if any structure you see for supporting the guide tube on the frame other than the bracket mounting portion of the frame?
MR. DEAVER: You're asking him to look at the figures?
MR. GASEY: Look at whatever he wants to on the patent.
* * * * * *
A: We show the guide hose supported on the frame.
Q: Right. And it's supported on the frame by the bracket that is figure element 124, right? Take a look at, for instance, if you like figure 6 or figure 8 or figure 9.
A: That's correct.
Q: Do you see anything else, any other, any other structure or any other disclosure in the patent that would cause the guide hose to be supported on the frame other than the mounting bracket portion of the frame?
* * * * * *
A: Looks like the bracket does it.
(Rutkowski Aug. 20 Depo. 117-118). This testimony merely establishes that, in the preferred embodiment of the '588 Patent, the guide tube is mounted on the frame via the mounting bracket, a fact which plaintiffs do not dispute and which is fully consistent with this Court's construction of Claim 29.
[17] "[A] a dependent claim includes all the limitations of the claim from which it depends." Wahpeton Canvas Co., Inc. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989).
[18] The parties agree that the U.S. Patent and Trademark Office failed to include the word "adjacent" in Claim 22 of the '905 Patent, despite the fact that the word was included in the patent application.
[19] On March 7, 20 and 31, 2001, plaintiffs brought this omission to defendant's attention, indicating that plaintiffs understood it to be an admission of infringement of the asserted claims of the '401 and '588 Patents by the Original Model 502 Cable Machine. (Doc. 94 Ex. I). Defendant apparently did not respond.
[20] Defendant's implied argument that its decision to modify and discontinue use of the Original Model 502 Cable Machine relieves it of liability with regard to that device has been soundly rejected by the Federal Circuit in Intel Corp. v. United States International Trade Commission, 946 F.2d 821, 830 n. 14 (Fed. Cir.1991), and by the Supreme Court in United States v. Concentrated Phosphate Export Association, 393 U.S. 199, 203, 89 S. Ct. 361, 21 L. Ed. 2d 344 (1968) ("Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave `(t)he defendant...free to return to his old ways.'") (citation omitted). See also Amstar Corp. v. Envirotech Corp., 730 F.2d 1476, 1482 (Fed.Cir.1984) ("That products may have been modified after suit is brought, and may or may not be accused of infringement, does not remove the need for [comparison between the claims and accused device].").
[21] In accordance with the concept of prosecution history estoppel, "the patentee may not use the doctrine [of equivalents] to recover subject matter that has been surrendered." K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1367 (Fed.Cir.1999).
[22] An appellate court need not address the issue of infringement if it affirms a finding of invalidity because a defendant "can incur no liability for `infringement' of invalid claims." Shelcore, Inc. v. Durham Indus., Inc., 745 F.2d 621, 628 (Fed.Cir.1984). See also Richdel, Inc. v. Sunspool Corp., 714 F.2d 1573, 1580 (Fed.Cir.1983). However, a district court must resolve "both the issues of validity and infringement." Shelcore, 745 F.2d at 628. See also Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1540 (Fed.Cir.1983) ("When presented with patent validity and infringement issues, trial courts should ...decide both.").
[23] The parties agree that the "first configuration" of the Modified Model 502 Cable Machine, wherein the power feed device is directly connected to the drum, does not infringe any of plaintiffs' patents. In the "second configuration," the power feed device is connected to the outer end of the guide tube, the inner end of which is connected to the apparatus. The Modified device must be altered in order to obtain the "third configuration" according to instructions which plaintiffs claim defendant includes in the device's shipping materials. See Rutkowski Aug. 20 Depo. 80-81.
[24] The "second configuration" according the parties' arguments.
[25] The "first configuration" when unaltered. This orientation is converted into the "third configuration" when and if altered according to plaintiffs' allegations.
[26] Sloter testified,
Q: What is the purpose of the bearing on the front drum support spindle in this [second] configuration?
A: [I]t's a safety device....[I]f the cable would become entangled as its [sic] coming out of the drain and locked up and the operator for some reason didn't stop the motor, he could turn the machine over if it didn't blow a fuse or stall the motor, and this allows the motor this to turn over, the operator would be here and wouldn't get hurt.
(Sloter Depo. 133).
[27] Sloter confirmed that defendant did not conduct tests to determine whether flipping the Modified Model 502 Cable Machine was possible: "We didn't try to turn it over. We tried to make it as safe as possible. And it's one of the things that we talked about, that the cable could get caught because it could get caught in any machine." (Sloter Depo. 133).
[28] Sloter testified, "I had heard and I don't know whether it was our machine, somebody else's machine, or somebody saying that their cable had got caught in their tube....It ruined the cable and the tube." (Sloter Depo. 133-134).
[29] This Court notes that the IDS and Supplemental IDS do not constitute amendments to the patent application. However, the Federal Circuit has recognized that an IDS can serve the same purpose as an amendment by acting "as a kind of preemptive strike against a potential rejection." Ekchian v. Home Depot, Inc., 104 F.3d 1299, 1304 (Fed.Cir.1997). For that reasons, the court in Ekchian held that "arguments in an IDS can create an estoppel, and thus preclude a finding of infringement under the doctrine of equivalents." Id.
[30] This Court may sua sponte grant summary judgment of infringement in favor of plaintiffs, the non-moving parties, where defendant, the moving party, cannot prove its case on the undisputed facts. See Chiuminatta Concrete Concepts, Inc. v. Cardinal Industries, Inc., 145 F.3d 1303, 1311 (Fed.Cir.1998) citing Cool Fuel, Inc. v. Connett, 685 F.2d 309 (9th Cir.1982).
[31] See also Sloter Depo. 107-111, 118-124, 143-144 (describing Modified Model 502 Cable Machine to include a frame, a rotating drum "eventually" supported on the frame through a bearing, a cable inside the drum which exits through an opening in the drum spindle, a drive motor supported by the frame, a guide tube "eventually" supported on the frame by a bearing and a power feed device).
[32] It is interesting to note that, in an attempt to avoid infringement, defendant contends that plaintiffs' claimed mounting bracket is a part of their frame while defendant's similar bracket is merely attached to its frame.
[33] Joseph Krause was engaged by defendant to render opinions with regard to the devices and patents at issue in this case. (Krause Depo. 12).
[34] Similarly, this Court will not address plaintiffs' arguments that Claims 29 and 35 of the '588 Patent are literally infringed by the third configuration of the Modified Model 502 Cable Machine.
[35] Sloter testified that the purpose of this guide pin, or spring pin is to act as "a guide for the feed and to stop...you from putting the guide tube assembly onto that configuration." (Sloter Depo. 137). Rutkowski testified that he simply removed this pin with a pair of pliers to orient the Modified Model 502 Cable Machine in the third configuration. (Rutkowski Aug. 20 Depo. 80-81).
[36] When asked why a customer would orient the Modified Model 502 Cable Machine in the third configuration, Rutkowski testified,
Because it's easier to mount [the guide tube] on the bracket than it would be [on] a bearing....Plus then you don't have to change the bracket around and lose all your shims to put the power feed on, if you ever wanted to do that. These guys are out to make money. They want, you know, fast and easy changeover. And putting shims in is not an easy thing to do. They're likely to take the pin out once and not have to worry about shims.
(Rutkowski Aug. 20 Depo. 168).
[37] Sloter described the Original Feed Control Device in a consistent manner. (Sloter Depo. 103-106).
[38] Plaintiffs' objection is disingenuous in light of the fact that, in their own briefs in opposition to defendant's motions, plaintiffs repeatedly ask this Court to deny defendant's motion and enter judgment in their favor sua sponte. Although, as noted above, this Court may sua sponte grant summary judgment in favor a non-moving party where the moving party cannot prove its case on the undisputed facts, plaintiffs' request that this Court do so is no different than the requests for judgment made by defendant.
[39] The Count Two of the Counterclaim alleges,
10. An actual controversy exists between Spartan on the one hand and Emerson and Ridge over the alleged infringement of the '401 patent claims.
11. Spartan's Model 502 does not infringe any valid claims of the '401 patent.
(Doc. 77). Plaintiffs admit the allegations contained in paragraph 10 and deny the allegations contained in paragraph 11. (Doc. 78).
[40] In its Motion for Summary Judgment on Invalidity, defendant attacks the validity of Claim 18 of the '905 Patent. However, plaintiffs indicated in their brief in opposition that they do not assert that Claim 18 of the '905 Patent is infringed. Thus, the validity of this claim need not be determined.
[41] Rather than discussing the majority of its disclosure contentions in the body of its brief, defendant merely makes reference to attached claim charts. Defense counsel may want to reconsider this tactic in the future, as it is inconvenient for the Court and appears to be yet another method of circumventing the page limitations set forth in the Local Rules. In addition, such charts do little to aid the Court in its analysis of a party's arguments.
[42] The British Patent is generically titled "Method and apparatus for axially feeding a flexible shaft along a pipe with simultaneous rotation of the shaft" and discloses that the "apparatus may be used for a descaling, deburring or grinding the inside of tubes or pipes by advancing a rotary grinding wheel 8 therethrough, or for clearing blocked drains etc. by advancement of an auger down the drain." (British Patent at title page).
[43] Defendant's technical expert apparently agrees as well. Malguarnera testified,
Q: Is it your opinion that you would use you would want to use a vacuum when cleaning a drain line like in a sink or a tub?
A: I don't think I'd want to do that.
(Malguarnera Depo. 130-131).
[44] If the snake passes "through" anything, it is between the upper 30 and lower 32 portions of the hinge, which constitutes the claimed "unique design" of the Irwin '791 Patent. (Irwin '791 Patent Abstract). However, as pointed out by plaintiffs, this interpretation of the Irwin '791 Patent poses other problems for defendant because the patent cannot then disclose a lever for engaging the outer end of the drive actuating means.
[45] "The first step of an anticipation analysis is claim construction." Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1346 (Fed.Cir.2000).
[46] As discussed below, a genuine issue of material fact exists as to the level of ordinary skill in the art applicable to the patents-in-issue. This dispute provides an additional basis for finding summary judgment improper as to the invalidity of the '905 and '401 Patents as anticipated. See Helifix, 208 F.3d at 1346 (holding trial court should have considered relevant factors in constructing hypothetical person of ordinary skill during § 102 analysis). For this reason, plaintiffs' request for summary judgment sua sponte is also denied.
[47] Plaintiffs apparently support their entire argument on this point with the Declaration of Rutkowski "concerning what the prior art references disclose and do not disclose to a person having ordinary skill in the drain cleaner art." Rutkowski's Declaration, in turn, purports to incorporate interrogatory answers which are not actually attached. Plaintiffs' Second Supplemental Responses to Defendant's First and Second Sets of Interrogatories list numerous references "which may or may not" be relevant and/or prior art. (Doc. 105 Ex. K). However, plaintiffs do not set forth the claimed differences between those references and the patents-in-suit. During his deposition, Rutkowski testified,
Q: The use of a power feed was known before your patents, wasn't it?
A: That's correct.
* * * * * *
Q: Use of a guide hose before your patent was known, right?
A: That's correct.
Q: And the use of a sink-mounted machine was certainly known about [before] your patents, right?
A: That's correct....But not in the manner in which we do it.
(Rutkowski Aug. 20 Depo. 99-100).
[48] Defendant attempts to persuade this Court with the same technique expressly rejected by the Federal Circuit in In re Dembiczak, 175 F.3d 994 (Fed.Cir.1999), abrogated on other grounds. Rather than pointing to specific information in the prior art references that suggests their combination, defendant instead describes in detail the similarities between those references and the claimed invention, noting that one reference or another, in combination, described all of the limitations of the asserted claims. Id. at 1000. This "reference-by-reference, limitation-by-limitation analysis" fails to establish how the prior art references teach or suggest their combination to yield the claimed invention. Id.
[49] Revolinsky has been employed by Ridge for almost 30 years and is currently the Director of Engineering Services and Product Safety. (Revolinsky Depo. 3-4).
[50] Gress is the head of Ridge's product engineering department. (Rutkowski Aug. 20 Depo. 7-8).
[51] Smith is the Manager of Kollmann Programs, a division of Ridge. (Smith Depo. 4).
[52] Plant Engineering magazine is promoted as "The problem solving resource for plant engineers." (Doc. 104 Ex. P at 1).
[53] This Court's conclusion is supported by the fact that the European Patent Office did not consider the Turnbaugh Patent relevant to the European counterpart to the '588 Patent. See Search Report dated March 21, 2000. (Doc. 92 Ex. J).
[54] Plaintiffs object to this Court's consideration of the Irwin '791 Patent on the grounds that defendant failed to timely supplement its discovery responses and provide notice of its intent to rely on that patent to establish unenforceability. In the interests of full consideration of all the relevant evidence, this Court will address defendant's arguments concerning the Irwin '791 Patent.
[55] The Search Report issued by the European Patent Office relative to the European counterpart to the '588 Patent cites the Irwin '791 Patent as "particularly relevant," either taken alone or if combined with another document in the same category. (Doc. 92 Ex. J). At the time plaintiffs received this Search Report, the '588 Patent had already issued, but the '905 Patent was still pending. Plaintiffs disclosed every patent cited by the European Patent Office to the PTO on June 14, 2000 in connection with the prosecution of the '905 Patent.
[56] The arguments and allegations contained in defendant's brief in opposition to plaintiffs' Motion for Summary Judgment as to the enforceability of the '588 and '905 Patents are specious at best. In fact, this Court agrees wholeheartedly with plaintiffs' statement that, "[i]nstead of producing evidence of a genuine issue of fact, Spartan resorts to disparaging reputable attorneys and hiding behind its lack of discovery to imply a sinister intent." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1553527/ | 238 B.R. 661 (1999)
In re E-H FARMS, Debtor.
Bankruptcy No. 98-51181-11.
United States Bankruptcy Court, N.D. Texas, Lubbock Division.
September 9, 1999.
R. Byrn Bass, Jr. Harding, Bass, Fargason, Booth & St. Clair, Lubbock, TX, for debtor.
Robert L. Jones, Crenshaw, Dupree & Milam, Lubbock, TX, for Ag Services.
MEMORANDUM OF OPINION ON PLAN CONFIRMATION
JOHN C. AKARD, Bankruptcy Judge.
E-H Farms, a partnership, seeks confirmation of its Chapter 11 plan. Both partners recently received a discharge in their Chapter 7 cases.[1] The plan contains a *662 provision that its confirmation will not impose any personal liability on the partners. A creditor objected to confirmation asserting that such a provision violates the Bankruptcy Code. The court finds that the plan cannot be confirmed.[2]
FACTS
E-H Farms, a partnership, (Debtor) filed for relief under Chapter 11 of the Bankruptcy Code on October 5, 1998. Dwain Ellerd and Randy Hargrove are the Debtor's sole partners. The partnership is engaged in farming and trucking agricultural products.
Mr. Hargrove and his wife filed for relief under Chapter 7 of the Bankruptcy Code on January 22, 1999. They received a discharge on May 24, 1999 and the case is closed. Mr. Ellerd and his wife filed for relief under Chapter 7 of the Bankruptcy Code on April 14, 1999. They received a discharge on August 30, 1999. Both the Ellerds and the Hargroves listed all of the partnership debts in their personal bankruptcy petitions. No one objected to the discharge or dischargeability of those debts. Therefore, they have no personal liability on them. Both partners claimed their interest in the Debtor as exempt and no objections to the exemptions were filed. Consequently, they remain the sole partners of the Debtor.
The Debtor seeks confirmation of its First Amended Plan of Reorganization (Plan) filed on July 15, 1999. The First Amended Disclosure Statement filed July 15, 1999 valued the Debtor's assets at approximately $1.2M and listed its liabilities at approximately $1.8M. The disclosure statement noted that the Debtor valued the assets at what it considered to be market value, but they would probably bring much less if sold at liquidation. The disclosure statement listed general unsecured claims of approximately $127,000, but stated that when deficiency claims were included, the total would be approximately $590,000. Section II, subsection 10 of the Plan proposes to pay an annual dividend of at least $50,000 pro rata to the unsecured creditors. It states "if Debtor (more specifically its corporate successor in interest as hereinafter set forth) is able to pay more than $50,000.00 based on profits of the business, up to $100,000.00 will be paid."[3] Consequently, the Debtor estimated that over the five-year life of the Plan, the unsecured creditors would receive approximately 50% of their claims.
Two provisions of the Plan are at issue in this case:
ARTICLE IV. Means for Execution of the Plan
After confirmation of the Plan, a new corporation will be created incorporating Debtor's existing business under the name "E-H Farms, Inc.", assuming the name is name is (sic) available, or such other name as "Ellerd-Hargrove Farms, Inc.", if it is not available. Debtor's assets shall be conveyed to the new corporation subject to all liens created by or retained in the Plan. The new corporation shall assume all debt restructured and created in the Plan. Dwain Ellerd and Randy Hargrove (and their spouses) shall have no individual liability therefor having already received, by the time this Plan is confirmed, their discharge therefrom.
. . . .
ARTICLE VII. Non-Recourse Debt
The debt restructured by the Plan and assumed by the new corporation *663 referenced in Article VI(sic) is intended to be non-recourse as to partners Dwain Ellerd and Randy Hargrove (and their spouses). Both the Ellerds and the Hargroves are seeking (and by the time this Plan is confirmed will have received) their discharge from all of their dischargeable debts in their Chapter 7 cases. That includes all of the debts owed by them, jointly and severally, as partners in E-H Farms. It is also intended to include any restructure of that very same debt in this Plan. If this Plan fails, and E-H Farms is unable to make the payments provide (sic) for in this Plan, then the discharge of the Ellerds and the Hargroves in their respective Chapter 7 cases shall be extended to and include the debt of E-H Farms restructured in this Plan and assumed by the new corporation.
Ag Services of America, Inc. and Ag Acceptance Corporation (Ag Services) objected to confirmation on two grounds. The first objection was that the Plan did not adequately describe Ag Services' collateral. The Debtor agreed to correct that deficiency. The second objection is that the Plan impermissibly discharges third parties. Ag Services voted against the Plan, but acknowledged that the treatment of its claim in the Plan is such that the Plan could be confirmed over its objection pursuant to § 1129(b)(2)(A) of the Bankruptcy Code.[4]
Both the Internal Revenue Service and New Holland Credit Company objected to the Plan. The Debtor agreed to modifications which satisfied them and they accepted the Plan. All other secured creditors accepted the Plan and the unsecured class voted overwhelmingly in favor of it.
The Debtor asserts that the Plan is consistent with the discharges which the partners received in their Chapter 7 cases. An agricultural expert testified that a substantial reduction in the amount of property being farmed, profits in the trucking business, and good prospects for this year's crops will result in a successful operation. The Debtor asserts that the Plan offers a much better prospect for repayment to the creditors, both secured and unsecured, than would be achieved through a liquidation.
DISCUSSION
The court first determines whether confirmation of a Chapter 11 plan simply rearranges old debt or creates new obligations. This court previously held that the order confirming a Chapter 11 plan is a new contract binding on both the debtor and the creditors. In re Page, 118 B.R. 456, 460 (Bankr.N.D.Tex.1990). See also § 1141(a). The prior obligations are discharged. § 1141(d)(1)(A).
What is the effect of the new debt created upon confirmation the Plan? The Texas Revised Partnership Act provides that "all partners are liable jointly and severally for all debts and obligations of the partnership unless otherwise agreed by the claimant or provided by law." TEX.REV.CIV.STAT.ANN. art. 6132b-3.03 (Vernon Supp.1999)[5]. Thus all creditors who voted for the Plan and who did not object to confirmation agreed that the partners will have no personal liability on the new debts.[6]
Ag Services objected to the Plan's deletion of the partners' personal liability, pointing to § 524(e) of the Bankruptcy Code which provides that "discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt." In this case a debt is not being *664 discharged; rather, a debt is being created. Thus the facts of this case do not fit the literal language of § 524(e). However, this section expresses the clear intent of Congress that liabilities of third parties should not be discharged without the creditors' consent.
Can Ag Services' objection be overcome? Ag Services voted against the plan. A plan can be confirmed over the objection of a creditor if it meets the requirements of § 1129(b). There are two requirements for plan approval over a creditor's negative vote. First the plan must "not discriminate unfairly" and it must be "fair and equitable" to the creditor. § 1129(b)(1).[7] The "no personal liability" provisions of the Plan apply to all creditors, so there is no discrimination as to Ag Services and Ag Services agrees that its treatment under the Plan is fair and equitable.
Since the claim of Ag Services is fully secured, the Plan must meet the two additional requirements of § 1129(b)(2)(A)(i). First, the creditor must retain its lien. The Plan leaves Ag Service's lien intact. Second, the creditor must receive the allowed amount of its claim with interest. The Plan so provides.
Section 1129(b) does not address third party liability. Ag Services objects because the Plan denies it third party liability (the personal liability of Mr. Ellerd and Mr. Hargrove) to which it is entitled under the Texas statute. The fact that the Plan proposes to convey all partnership assets to a new corporation does not change the circumstances. It is the debt incurred by confirmation of the Plan which is at issue, not the fact that a corporation may subsequently agree to pay that debt.
CONCLUSION
This court must honor the intent of Congress to preserve third party liability as expressed in § 524(e) and the intent of the Texas Legislature that a creditor must agree to release a partner from partnership liabilities as expressed in art. 6132b-3.03. Therefore, confirmation of the Plan must be denied.
ORDER ACCORDINGLY.[8]
NOTES
[1] This case could be referred to as a "Chapter 25" (7+7+11=25). The parties state their research indicates that this is a case of first impression.
[2] This court has jurisdiction of this matter under 28 U.S.C. § 1334(a), 28 U.S.C. § 157(a), and Miscellaneous Rule No. 33 of the Northern District of Texas contained in Order of Reference of Bankruptcy Cases and Proceedings Nunc Pro Tunc dated August 3, 1984. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(1), (b)(2)(L).
[3] Neither the Plan nor the disclosure statement give any indication as to how amounts in excess of $50,000 per year will be calculated.
[4] The Bankruptcy Code is 11 U.S.C. § 101 et seq. References to section numbers are references to sections in the Bankruptcy Code.
[5] The statute contains provisions concerning entering and leaving partners which are not applicable to this case.
[6] Mr. Ellerd and Mr. Hargrove acknowledge that they remain personally obligated on the debt to the Internal Revenue Service.
[7] Ag Services is impaired since it is not being paid according to the terms of its original contract. See § 1124(1).
[8] This Memorandum shall constitute Findings of Fact and Conclusions of Law pursuant to FED.R.BANKR.P. 7052 which is made applicable to Contested Matters by FED. R.BANKR.P. 9014. This Memorandum will be published. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1553500/ | 238 B.R. 156 (1999)
In re Byron Thomas KELLY a/k/a Byron T. Kelly, M.D., Debtor.
Renee Thompson, Plaintiff,
v.
Byron Thomas Kelly a/k/a Byron T. Kelly, M.D., Defendant.
Bankruptcy No. 99-4024-172. Adversary No. 98-51743-172.
United States Bankruptcy Court, E.D. Missouri, Eastern Division.
August 3, 1999.
*157 *158 Robert J. Blackwell, Blackwell & Associates, P.C., O'Fallon, MO, trustee.
Janice Valdez, Timothy M. Bosslet, Kramer & Frank, P.C., St. Louis, MO, for Plaintiff.
Veronica D. Joyner, Williams, Goins, Graham, Joyner & Associates, St. Louis, MO, for Defendant.
MEMORANDUM
JAMES J. BARTA, Chief Judge.
The matter being determined here is the motion of Renee Thompson ("Plaintiff") for summary judgment on her Adversary Complaint against Byron Thomas Kelly ("Debtor"). In her Complaint, the Plaintiff has asked the Court to determine that the debt owed to her that is based upon a non-bankruptcy court judgment, is not dischargeable as being a debt for a willful and malicious injury under 11 U.S.C. § 523(a)(6). The Debtor filed an answer to the Complaint that denied the substantive allegations of the Complaint, and raised several affirmative defenses.
At the pretrial hearing in this matter on April 27, 1999, the Parties' Counsel agreed that the Plaintiff's motion for summary judgment was to be filed not later than May 21, 1999; that the Debtor's response was to be filed not later than June 4, 1999; that the Plaintiff's reply was to be filed not later than June 18, 1999; and that the matter was continued to July 20, 1999 for a continued pretrial hearing and any other requests. The Plaintiff timely filed her motion; however, the Debtor did not file a response. On June 15, 1999, the Plaintiff filed a brief addendum to her motion, reporting that no response had been received from or on behalf of the Debtor. The Plaintiff appeared at the continued pretrial hearing in the Bankruptcy Court on July 20, 1999, and announced that no further pleadings had been received from *159 the Debtor. No other request was presented by or on behalf of the Debtor. The Court announced that the matter would be taken under submission and determined on consideration of the record as a whole.
This is a core proceeding pursuant to Section 157(b)(2)(l) of Title 28 of the United States Code. The Court has jurisdiction over the parties and this matter pursuant to 28 U.S.C. Sections 151, 157 and 1334, and Rule 9.01 of the Local Rules of the United States District Court for the Eastern District of Missouri.
By an Order dated June 18, 1998, the Plaintiff received a judgment against the Debtor and Byron T. Kelly, M.D., P.C., jointly and severely, in the amount of $5,000.00 as actual damages for her pain, suffering and mental anguish, and the additional amount of $35,000.00 in punitive damages. The judgment was entered by the Superior Court of Fulton County, Georgia on the Plaintiff's multi-count Complaint, after the Debtor's answer and counterclaim had been stricken for the Debtor's failure to attend properly-noticed depositions. Plaintiff's Exhibit 8. In its Final Order and Judgment on Damages, the Georgia Court found that during the course of an employment relationship, the Debtor had sexually harassed the Plaintiff, subjected her to lewd and inappropriate behavior, and had committed sexual battery against her. Plaintiff's Exhibit 8. The Georgia Court entered its final order and judgment in the amounts set forth above on June 19, 1998. No appeal was taken. The Debtor filed the voluntary Petition for Relief under Chapter 7 in this case on October 27, 1998. The Plaintiff has requested that the judgment amount be determined to be not dischargeable in this case.
In the Georgia court proceeding, the Plaintiff appeared in person and by Counsel at the hearing on June 17, 1998, and provided testimony and other evidence in support of the allegations in her complaint. In the final order and judgment after the hearing, the Georgia Court found that the allegations in the Plaintiff's complaint were deemed admitted, and that "Defendant Dr. Kelly has committed sexual battery against the plaintiff, having fondled and touched her, which touches were" unsolicited by the Plaintiff. Plaintiff's Exhibit 8, pgs. 1-2.
A movant will prevail on a motion for summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corporation v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). In opposing a Motion for Summary Judgment, the other party may not simply rest upon mere allegations or denials of the pleadings. Id. The motion must be granted if the Court is satisfied that no real factual controversy is present. Lyons v. Board of Education, 523 F.2d 340, 347 (8th Cir.1975).
Section 523(a)(6) of the Bankruptcy Code provides that an individual debtor is not discharged from any debt for willful and malicious injury by the debtor to another entity or to the property of another entity. 11 U.S.C. § 523(a)(6). The Debtor was found liable by the Georgia court for injury to the Plaintiff as the result of sexual harassment and sexual battery actions that are alleged to be intentional torts. The Debtor was also assessed punitive damages by the Georgia court, which, the Plaintiff argues, requires a finding by the court that the Debtor's acts were willful and malicious.
In a federal court, relitigation of issues previously determined in a state court is barred by the doctrine of collateral estoppel. In re Miera, 926 F.2d 741, 743 (8th Cir.1991).
We look to the substantive law of the forum state in applying the collateral estoppel doctrine giving a state court judgment preclusive effect if a court in that state would do so.
*160 In re Scarborough, 171 F.3d 638, 641 (8th Cir.1999); Matter of Holt, 173 B.R. 806, 813 (Bankr.M.D.Ga.1994).
In Georgia, the elements for the application of the doctrine of issue preclusion are:
(1) there must exist an identity of issues between the first and second actions;
(2) the duplicated issue must have been actually and necessarily litigated in the prior court proceeding;
(3) the determination of the issue must have been essential to the prior judgment;
(4) and the party to be estopped must have had a full and fair opportunity to litigate the issue in the course of the earlier proceeding.
Matter of Pope, 209 B.R. 1015, 1017 (Bankr.N.D.Ga.1997).
The Court finds and concludes that the issues of whether the Debtor sexually harassed and sexually battered Plaintiff were actually and necessarily litigated in the state court action, and that the determination of the issues was essential to the prior judgment. The Court must then determine if there is an identity of issues between the Georgia court proceeding and this Adversary Proceeding, and if Debtor had a full and fair opportunity to litigate in the state proceeding.
The first issue is whether sexual harassment and sexual battery are intentional torts that are "willful" and "malicious" acts that are nondischargeable as a matter of law. In the Eighth Circuit, "willful" and "malicious" are separate elements of the Section 523(a)(6) exception to discharge. In re Halverson, 226 B.R. 22, 26 (Bankr.D.Minn.1998). The Supreme Court has clarified the definition of willfulness by stating that "debts arising from recklessly or negligently inflicted injuries do not fall within the compass of Section 523(a)(6)." Kawaauhau v. Geiger, 523 U.S. 57, 118 S. Ct. 974, 977, 140 L. Ed. 2d 90 (1998). "[T]he (a)(6) formulation triggers . . . the category `intentional torts,' as distinguished from negligent or reckless torts." Id. affirming the Eighth Circuit's opinion in In re Geiger, 113 F.3d 848, 852 (8th Cir.1997).
Intentional torts constitute a "legal category" of personal injury that is based on "the consequences of an act rather than the act itself." See Geiger, 113 F.3d at 852, citing Restatement (Second) of Torts § 8A, Comment a, at 15 (1965). An intentional tort requires that the actor "desires to cause consequences of his act, or . . . believes that the consequences are substantially certain to result from [his act]." Id. Debts that are based upon traditional intentional torts such as assault and battery are generally regarded by bankruptcy courts as being nondischargeable. In re Bumann, 147 B.R. 44, 47 (Bankr.D.N.D.1992), citing In re Miera, 104 B.R. 150 (Bankr.D.Minn.1989).
Under Georgia law,
A person commits the offense of sexual battery when he intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.
Ga.Code Ann. § 16-6-22.1(b) (1981).
The Georgia court specifically found that the Debtor had committed sexual battery against the Plaintiff. Plaintiff's Exhibit 8.
The Supreme Court has stated that "[t]he word `willful' in (a)(6) modifies the word `injury,' indicating that nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." Kawaauhau v. Geiger, 523 U.S. 57, 118 S. Ct. 974, 978, 140 L. Ed. 2d 90 (1998). The language in Kawaauhau indicates that the type of conduct justifying denial of a debtor's discharge under Section 523(a)(6) requires the same type of intentional conduct that would give rise to liability for an ordinary intentional tort. In re Chapman, 228 B.R. 899, 907 (Bankr.N.D.Ohio 1998). *161 The Court has determined that the Debtor committed intentional torts against Plaintiff. Therefore, the Court finds and concludes that the Debtor's conduct was willful. In re Halverson, 226 B.R. 22, 29 (Bankr.D.Minn.1998).
In the Eighth Circuit, "malicious," for the purposes of Section 523(a)(6), means that the debtor targeted the creditor to suffer the harm resulting from the debtor's intentional, tortious act. In re Halverson, 226 B.R. at 26. "An injury is malicious when the debtor intended to harm the creditor at least in the sense that the debtor's tortious conduct was certain or almost certain to cause harm." Id., citing In re Waugh, 95 F.3d 706, 711 (8th Cir.1996). A debtor must have intended the injury (willful) and he must also have intended the harm (malicious). Id. at 27.
"Malice, or intent to harm, in a sexual intentional tort is self-evident, either because the tortfeasor knows his conduct is certain or almost certain to cause harm, or because he should know and therefore the intent is inferred as a matter of law." In re Halverson, 226 B.R. at 30, citing In re Miera, supra.
In the Eighth Circuit, malice in the sense intended in Section 523(a)(6) may be evidenced by conduct which is "targeted at the creditor . . ., at least in the sense that the conduct is certain or almost certain to cause . . . harm." In re Miera, 104 B.R. 150, 159 (Bankr.D.Minn. 1989), quoting In re Long, 774 F.2d 875, 881 (8th Cir.1985). "The act, therefore, may by its very nature bespeak the `intent to cause harm that constitutes malice under § 523(a)(6)'." Id. The Georgia court judgment for actual damages therefore is based upon a willful and malicious injury by the Debtor.
The Georgia court also assessed punitive damages against the Debtor. Under Georgia law, "[p]unitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences." Ga.Code Ann. § 51-12-5.1 (1981). "Absent wilful misconduct, malice, fraud, wantonness or oppression, there can be no recovery of punitive damages." Moon v. Georgia Power Company, 127 Ga.App. 524, 194 S.E.2d 348, 351 (1972).
Furthermore, in the Eighth Circuit, where the compensatory and punitive damage awards are based on the same underlying conduct, and the judgment for compensatory damages is nondischargeable because it is based on willful and malicious injury to another, the punitive damages award is likewise nondischargeable.
Finally, the Debtor has argued that he did not have a full and fair opportunity to litigate the Georgia court action. The issue is not whether the party to the prior proceeding offered all of the evidence it proposed to offer, but whether the party had an opportunity to do so. See Buckley v. Buckley, 889 S.W.2d 175, 178 (Mo.Ct. App.1994).
In the matter being considered here, the Debtor filed an answer and counterclaim in the Georgia court litigation (Plaintiff's Exhibit 2). The Debtor/Defendant was represented by two different attorneys and terminated his representation by both of those attorneys (Plaintiff's Exhibit 4). The Debtor filed responses to Plaintiff's interrogatories (Plaintiff's Exhibit 3). The Debtor received notice of each step of the suit, including the attempts to depose the Debtor and the hearing on the Motion for Sanctions. As a result of the Debtor's disregard of the discovery process, his response was stricken by the State Court and all of the Plaintiff's allegations were deemed to be admitted. It was Debtor's decision to refuse to appear for deposition, to refuse to attend *162 court hearings, and to leave the State of Georgia prior to the trial in the state court. The Debtor had ample opportunity to litigate the state court action, chose not to appear at hearings, and chose not to appeal the state court judgment. The Debtor's election to disregard the judicial process does not prevent the Bankruptcy Court from determining that, in fact, the Debtor had a full and fair opportunity to litigate the issues of sexual harassment, sexual battery and emotional distress in the state court proceeding. In re Mironuck, 156 B.R. 33, 35 (Bankr.E.D.Mo. 1993).
The Plaintiff has satisfied the elements necessary for the application of the doctrine of collateral estoppel. Based upon a review of the Georgia court's orders, the transcripts of the hearings before the Georgia court, the pleadings in the Georgia court proceeding, the various exhibits attached to the documents in the Georgia court proceeding, and the record as a whole, the Court has determined that relitigation in the Federal court is barred by the doctrine of collateral estoppel, and that the judgment for actual damages in the amount of $5,000.00 is based upon a willful and malicious injury by the Debtor to the Plaintiff. On consideration of the record as a whole, the Court further finds and concludes that relitigation in the Federal court of the issues concerning punitive damages is barred by the doctrine of collateral estoppel, and that the judgment for punitive damages in the amount of $35,000.00 is based upon the Georgia court's determination that the Debtor's behavior toward the Plaintiff was willful and malicious and resulted in injury to the Plaintiff. The Georgia court determinations are binding upon the Bankruptcy Court in this proceeding.
Therefore, the Court finds and concludes that the pleadings, the testimony, the answers to interrogatories, the admissions on file and the affidavits show that there is no genuine issue as to any material fact, and that the Plaintiff is entitled to a judgment as a matter of law. By a separate order, the debt owed by the Debtor to the Plaintiff is determined to be not dischargeable under Section 523(a)(6) in this Chapter 7 case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608417/ | 662 N.W.2d 221 (2003)
11 Neb. App. 876
In re GUARDIANSHIP OF Michael R. GILMORE, an incapacitated person.
Nebraska Department of Health and Human Services, Appellee,
v.
Aehul Gilmore, Appellant.
No. A-02-154.
Court of Appeals of Nebraska.
May 27, 2003.
*223 Margaret Mark O'Connor, Omaha, for appellant.
Don Stenberg, Attorney General, and Royce N. Harper, Lincoln, for appellee.
IRWIN, Chief Judge, and HANNON and CARLSON, Judges.
HANNON, Judge.
INTRODUCTION
On the petition of the Nebraska Department of Health and Human Services (the Department), the county court removed Aehul Gilmore as guardian of her adult son Michael R. Gilmore and appointed a successor guardian who was without priority under the statute. Aehul appeals, alleging that the Department did not have standing to institute the proceeding; that the court did not follow required procedures in that it did not appoint a visitor, a guardian ad litem, or an attorney for Michael; and that it removed her without proof that she was unfit or had forfeited her right to be guardian. We conclude that the Department had standing; that under the facts in this case, neither a visitor, a guardian ad litem, nor an attorney for Michael was required; and that there were adequate grounds for removing Aehul and appointing a successor. We therefore affirm.
BACKGROUND
To avoid unnecessary repetition, we shall set forth some basic background information here but save discussion on many of the facts for the analysis portion of this opinion.
Michael, Aehul's son who was 19 years old at the time of trial, suffers from autism, is mentally retarded, is basically nonverbal, weighs approximately 400 pounds, and is unable to care for himself. He is supposed to take antiseizure medication three times per day. On June 26, 2001, Aehul and Michael's father were appointed Michael's coguardians. Michael's father died in a traffic accident on July 23.
It appears from the record that Michael lived at home with his parents and his brother, Steven Gilmore, up until June 4, 2001, when he was placed at Envisions Incorporated (Envisions), a corporation providing residential and vocational services. Aehul removed Michael from Envisions on June 13, but wanted to return him on June 15 because Steven had moved out of the family home. Envisions agreed to take Michael back on June 19. On July 18, Michael was admitted to the Beatrice State Developmental Center (BSDC), and he was discharged from BSDC on November *224 14 with a number of recommendations for his care and treatment, the most important being the implementation of a structured schedule for Michael to adhere to on a daily basis. After this discharge, he returned to Envisions. Aehul hoped to remove Michael from Envisions prior to the completion of his treatment and move with him to Kansas.
On September 17, 2001, the Department filed a petition to remove Aehul as guardian and to appoint Robert Gilmore, Michael's uncle, as her successor. At a hearing held on January 2, 2002, a doctor who had cared for Michael for approximately 2 years; Dr. Audrey Courtney, a psychologist at BSDC; Michele Schukar, a service coordinator for the Department; the chief executive officer of Envisions; a social worker for the Papillion-La Vista Public Schools; and Robert, the proposed successor guardian, were called as witnesses for the Department. Aehul and her son Steven were called as witnesses by Aehul.
On January 8, 2002, the court entered an order removing Aehul as Michael's guardian. It found that Michael continued to be incapacitated, that there was clear and convincing evidence that a full guardianship was necessary, that one of Michael's two coguardians had died, and that it was in the best interests of Michael that Aehul be removed as guardian. The court appointed Robert as the sole successor guardian.
STANDARD OF REVIEW
One of the issues presented by this appeal is that of the standing of the Department to bring this action. Standing is a jurisdictional component of a party's case because only a party who has standing may invoke the jurisdiction of a court. Governor's Policy Research Office v. KN Energy, 264 Neb. 924, 652 N.W.2d 865 (2002). A question of jurisdiction is a question of law. Nebraska Dept. of Health & Human Servs. v. Struss, 261 Neb. 435, 623 N.W.2d 308 (2001). Statutory interpretation also presents a question of law. Governor's Policy Research Office v. KN Energy, supra. 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.
Another question presented by this appeal is whether the trial court followed the necessary procedures when it failed to appoint a visitor, a guardian ad litem, or an attorney on behalf of Michael. The appointment of an attorney or a guardian ad litem for a person alleged to be incapacitated is within the court's discretion. Neb.Rev.Stat. § 30-2619 (Cum.Supp.2002). Likewise, the appointment of a visitor is within the court's discretion. Neb.Rev.Stat. §§ 30-2619.01 and 30-2623 (Reissue 1995).
On questions of factin this case, whether the evidence justifies the removal of Aehulan appellate court reviews probate cases for error appearing on the record made in the county court. See, In re Guardianship & Conservatorship of Donley, 262 Neb. 282, 631 N.W.2d 839 (2001); In re Guardianship & Conservatorship of Hartwig, 11 Neb.App. 526, 656 N.W.2d 268 (2003). When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. In re Conservatorship of Anderson, 262 Neb. 51, 628 N.W.2d 233 (2001); In re Guardianship & Conservatorship of Hartwig, supra.
ASSIGNMENTS OF ERROR
Aehul alleges the court erred (1) in permitting the Department to bring the termination *225 action when the Department lacked standing to do so; (2) in removing her as Michael's guardian without appointing a visitor, attorney, or guardian ad litem for Michael; (3) in failing to appoint a visitor, attorney, or guardian ad litem for Michael; (4) in removing her as Michael's guardian and appointing a successor who did not have statutory priority over her; (5) in appointing a successor who did not have statutory priority over Steven, Aehul's other son; and (6) in removing Aehul as guardian without proving that she was unfit to serve as guardian or that she had forfeited her superior right as natural parent.
ANALYSIS
Standing of Department to Bring Action.
Aehul argues that the Department does not have "the authority to meddle in this situation where not only a guardianship, but also a placement had already been set up." Brief for appellant at 15. Section 30-2623(a) provides that "[o]n petition of the ward or any person interested in his welfare, the court may remove a guardian and appoint a successor if in the best interests of the ward." (Emphasis supplied.) The Department contends that it is interested in the health and welfare of Michael and is therefore an appropriate party to petition for the removal of Aehul.
The phrase "interested person" is included in the Nebraska Probate Code, Neb.Rev.Stat. §§ 30-2201 to 30-2902 (Reissue 1995 & Cum.Supp.2002), a multitude of times. Section 30-2209(21) defines an "interested person" thus:
Interested person includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person which may be affected by the proceeding. It also includes persons having priority for appointment as personal representative, and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.
(Emphasis supplied.) The emphasized part of the above definition would appear to give that otherwise narrow definition considerable breadth. However, the phrase "interested person" does not appear in the applicable statute, § 30-2623, and therefore, we do not consider that definition controlling.
Significantly, the phrase in § 30-2623 is "any person interested in his welfare." We find that the phrase "person interested in his [or her] welfare" appears only in those statutes dealing with protected persons. The following statutes from chapter 30 of the Nebraska Revised Statutes use that phrase or a similar expression of the same notion and do not use the phrase "interested person": § 30-2613(1)(d) (powers of guardian), § 30-2616(a) (resignation or removal of guardian), § 30-2645(a) (petitions for orders subsequent to appointment of conservator), and Neb.Rev.Stat. § 30-3514(f) (Cum.Supp.2002) (removal of custodial trustee). Section 30-2619(a), which deals with the procedure for the appointment of a guardian of a protected person, contains both phrases.
We conclude that by using the phrase "any person interested in his welfare," § 30-2623, or the similar expressions of the same notion that are used in the above statutes, the Legislature intended to allow persons who are interested in a protected person, but who do not satisfy the definition of "interested person," to bring matters affecting the welfare of protected persons to the attention of the local *226 probate court. Nebraska statutes have long defined broadly who could bring an action for the appointment of a guardian of an incapacitated person. See Neb.Rev. Stat. §§ 38-201 and 38-404 (Reissue 1960), both of which controlled such matters before the adoption of the Uniform Probate Code in 1974 provided that a petition for the appointment of a guardian of an incapacitated person may be brought by a "relative or friend." See §§ 38-201 and 38-404 (Reissue 1974).
We believe that by such statutes, the Legislature was recognizing that frequently, a person that is in need of a guardian or conservator cannot be protected solely by those meeting the statutory definition of an "interested person." Sometimes, persons in need of a guardian or conservator have no relatives or at least none that care. Sometimes, the relatives of such people are prevented from serving the best interests of the protected person by avarice, greed, self-interest, laziness, or simple stupidity. Frequently, a neighbor, an old friend, the child of an old friend, a member of the clergy, a banker, a lawyer, a doctor, or someone else who has been professionally acquainted with the person needing such help will come forward out of simple charity and bring the matter to the attention of the local probate court. Sometimes, unscrupulous relatives need supervision. It would appear that the above statutes are worded to allow people without a legal interest to bring the matter to the local court's attention. We find nothing wrong with a public agency such as the Department coming forward on such matters, particularly when the Department is quite likely to be supplying financial assistance for the ward. Of course, the county judge, under the applicable standard of review, can make the determination of whether the petitioner is really interested in the welfare of the person subject to the proceedings.
The Department is a legal entity and hence is a "person" under the definition of § 30-2209(32). We conclude that under §§ 30-2616 and 30-2623, the Department can petition for Aehul's removal if there is sufficient evidence to support a finding that the Department is interested in Michael's welfare.
Failure to Appoint Visitor, Attorney, or Guardian Ad Litem
for Michael and Removal of His Guardian
Without Such Appointment.
Aehul next argues that because Michael cannot read or speak, his right to notice of and participation in the proceedings is "meaningless for him without the assistance of a visitor, attorney or guardian ad litem to represent his interests, and his interests alone." Brief for appellant at 1.
Section 30-2619(b), providing for the appointment of an attorney for a person alleged to be incapacitated; § 30-2619.01, providing for the appointment of a visitor for such a person; and § 30-2623(c), providing for the appointment of a visitor before removing a guardian, all provide that the court "may" make such appointment. In this particular case, the issue before the court dealt with Aehul's competency to serve as guardian. Michael was clearly incompetent to protect his own best interests. It is readily apparent to us, and was to the trial judge, that the issues raised were well represented and that the appointment of additional officials would have added nothing to the proceedings but additional expense. We therefore conclude that the trial judge did not abuse his discretion when he did not appoint the additional officials Aehul argues he should have appointed.
*227 Appointment of Robert as Successor Guardian.
Insofar as the removal of Aehul as guardian is concerned, § 30-2623 provides in significant part that "the court may remove a guardian and appoint a successor if in the best interests of the ward." The trial court made the required finding.
Aehul assigns numerous errors with respect to the appointment of Robert as Michael's successor guardian. Specifically, she alleges that the court erred because Robert did not have statutory priority over her, Robert did not have statutory priority over Steven, and the Department failed to prove either that Aehul was unfit to serve as guardian or that she had forfeited her superior right as a natural parent.
The priorities for who may be guardian are set forth in § 30-2627. Subsection (a) provides in part that "[n]othing in this subsection shall prevent the spouse, adult child, parent, or other relative of the person alleged to be incapacitated from being appointed guardian." There does not appear to be a dispute that Robert, Michael's uncle, has little or no priority over either Aehul or Steven, Michael's brother. However, subsection (c) states in part that "[w]hen appointing a guardian, the court shall take into consideration the expressed wishes of the allegedly incapacitated person. The court, acting in the best interest of the incapacitated person, may pass over a person having priority and appoint a person having lower priority or no priority." Thus, the key inquiry that we must make is whether the appointment of Robert, rather than Aehul or Steven, as Michael's guardian was in Michael's best interests.
Several witnesses testified regarding their concerns about Aehul's care of Michael. These witnesses testified as to Aehul's admitted inability to control Michael in her home, especially his eating. Steven was living with Aehul and Michael when Michael was breaking things, overeating, and smearing feces throughout the house. Concern was also raised regarding Aehul's ability to properly administer Michael's medication. Schukar, the service coordinator, and Dr. Courtney both testified that Aehul had said that she felt Michael presented a threat to her life.
Dr. Courtney testified that sometimes, Michael returned to BSDC from visits with Aehul with a bowel movement in his pants, which issue caused concern because while Michael was in treatment, the BSDC staff was not having problems with his having bowel movements in his pants. Dr. Courtney also testified that she felt Michael was capable of learning many more things and that he was making progress in other behaviors.
Schukar testified that in June 2001, Aehul took Michael out of Envisions because she felt like "God was punishing her"; but then Aehul returned Michael to Envisions 2 days later because Steven had moved out of the family home and Aehul was unable to handle Michael by herself. Schukar testified that Aehul told her in August that she wanted to take Michael out of treatment before he completed the program and move to Kansas, where Michael would attend the "Sunflower Program" during the day and live with Aehul at night, but Schukar testified that she learned that the Sunflower Program had no openings and did not foresee having any openings in the future. Schukar further testified that a few days later, Aehul told Schukar that she wanted to take Michael to Kansas and watch him 24 hours a day, 7 days a week. Schukar testified that she was concerned about Aehul's inability to know what is best for Michael's health and safety.
*228 Aehul's testimony reveals that even if the court determined Envisions to be the best environment for Michael, Aehul was not sure whether she would allow him to stay in Envisions, and that she wants to bring him home to care for him herself. Steven testified that he would be willing to take over the guardianship, but that no one had offered that to him. Robert testified that he was concerned about Aehul's ability to care for Michael and that his greatest concern was Michael's welfare.
The evidence shows that Aehul has difficulty properly caring for Michael, that she tends to take actions that are not in Michael's best interests, and that she may not follow orders that the court determines to be in Michael's best interests. The evidence does not show that Steven has taken any action to be appointed the successor guardian or that his appointment as guardian would be in Michael's best interests. In our review of the evidence, we cannot say that the court committed error in finding that Michael's best interests would be served by removing Aehul and appointing Robert as Michael's successor guardian.
CONCLUSION
We conclude that the county court's order removing Aehul as Michael's guardian and appointing Robert as successor guardian conformed to the law, was supported by competent evidence, and was neither arbitrary, capricious, nor unreasonable.
AFFIRMED.
IRWIN, Chief Judge, dissenting.
I respectfully dissent from the conclusion reached by the majority that the Department had standing to bring the present action for removal of Aehul as guardian of her son Michael. There is no authority for concluding that the Legislature intended to attach to the phrase "person interested" ("in the welfare of a ward," § 30-2616(a)) a meaning significantly different from that attached to the phrase "interested person" as defined in § 30-2209(21). Under the statutory definition of "interested person," there is no authority for concluding that the present record establishes the Department to be an "interested person," which establishment is a prerequisite to finding that the Department had standing to bring this action.
There is no dispute that the requirement of standing is fundamental to a court's exercising jurisdiction. Ritchhart v. Daub, 256 Neb. 801, 594 N.W.2d 288 (1999). Only a party who has standing may invoke the jurisdiction of the court. Rice v. Adam, 254 Neb. 219, 575 N.W.2d 399 (1998). To have standing to invoke a tribunal's jurisdiction, one must have some legal or equitable right, title, or interest in the subject of the controversy. Ritchhart v. Daub, supra. Standing requires that a litigant have such a personal stake in the outcome of the controversy as to warrant invocation of a court's jurisdiction and justify the exercise of the court's remedial powers on the litigant's behalf. Id. Finally, for a party to establish standing to bring suit, it is necessary to show that the party is in danger of sustaining direct injury as a result of anticipated action, and it is not sufficient that one has merely a general interest common to all members of the public. Id.
The threshold issue in the present case is whether the Department had standing to bring this action. The record fails to establish that the Department had standing, and, accordingly, the county court's order removing Aehul as Michael's guardian should be reversed and the petition dismissed. None of the grounds for standing asserted by the Department are supported by the record in this case, and *229 there is no authority for the grounds for standing espoused by the majority opinion.
The Department alleged in the petition that this action was being filed pursuant to § 30-2619 and Neb.Rev.Stat. § 83-383(2) (Reissue 1999). Neither of these provisions, however, acts to grant the Department standing to seek the removal of Aehul; both of these sections provide a mechanism for the initial appointment of a guardian and have no application to seeking removal of an already-appointed guardian. Even if § 30-2619 could be invoked to seek the appointment of a new guardian when somebody else is already serving in that role, a finding for which no authority has been discovered, for the Department to have standing under § 30-2619, the Department would have to demonstrate that it is a "person interested in [Michael's] welfare." On appeal, the Department argued that standing to bring the present action was conferred by § 30-2623, which specifically confers upon "the ward or any person interested in his welfare" standing to seek the removal or resignation of an already-appointed guardian. As such, the issue appears to come down to whether the Department is a "person interested" in Michael's welfare.
There is no definition, either in the statutes or in case law, for the term "person interested." There is, however, a definition in § 30-2209(21) for the term "interested person." That definition specifically includes heirs, devisees, children, spouses, creditors, beneficiaries, and others having a property right in or claim against a ward's estate, as well as persons having priority for appointment as personal representative. The record presented to us in this case contains nothing to support a finding that the Department is an "interested person" under this definition of the term, which term is used throughout the Nebraska Probate Code. Significantly, it does appear from the record that the person who was ultimately appointed as Michael's successor guardian may well have satisfied the definition of "interested person" and could have sought Aehul's removal.
The only portion of the definition which could arguably apply to the Department is that "interested person" includes "creditors... and any others having a property right in or claim against ... the estate" of Michael. See § 30-2209(21). The record before us does not indicate that the Department is a creditor or has a property right in or claim against Michael's estate. Specifically, the record before us does not contain any evidence to indicate what portion of Michael's care was actually paid for by the Department, if any; does not contain any evidence to indicate that payment for any of these services made the Department a creditor; and at most indicates that the Department assists families such as Michael's by coordinating services, applying for funding for families, and paying for some of the services received.
The Department argued on appeal that "Michael had been in the care of the Department and Envisions[,] who have posed a growing concern as to [Aehul's] ability to serve as Michael's guardian." Brief for appellee at 6. The record, however, does not indicate that Envisions is operated under or by the Department such that Michael has been "in the care of the Department" and contains no evidence to indicate that Michael's care at the Envisions facility in any way provided the Department with a property right in or claim against Michael's estate.
In addition, the last sentence of the definition of "interested person," that the meaning as it relates to particular persons may vary and must be determined according to the particular proceeding, see § 30-2209(21), does not broaden the scope of *230 who may qualify as an "interested person." Indeed, in a variety of contexts, many other jurisdictions have indicated that this last sentence serves to allow courts to find that the parties who might otherwise qualify as "interested persons" do not qualify in a particular proceeding. See, Estate of Thorne, 704 A.2d 315 (Me.1997) (intervention in probate proceeding); In re Estate of Juppier, 81 S.W.3d 699 (Mo.App.2002) (challenge to appointment of guardian); Taylor v. Taylor, 47 S.W.3d 377 (Mo.App. 2001) (settlement of conservatorship estate); Matter of Walker, 875 S.W.2d 147 (Mo.App.1994) (appointment of guardian and conservator); Estate of Miles v. Miles, 298 Mont. 312, 994 P.2d 1139 (2000) (probate of will). See, also, In re Marital Trust Under Last Will and Testament of Wilfred Wolfson, No. C7-00-131, 2000 WL 978723 (Minn.App. July 18, 2000) (not designated for permanent publication) (petition for appointment of cotrustee and removal of trustee). "The last sentence of the statutory provision does not broaden the definitional reach of `interested person.' " Estate of Thorne, 704 A.2d at 318.
Consistently with this interpretation, other jurisdictions have generally held that to be an "interested person," a litigant must possess a present financial or property interest in the estate of the protected person. See, Estate of Thorne, supra; In re Estate of Juppier, supra; Taylor v. Taylor, supra; Matter of Walker, supra; Estate of Miles v. Miles, supra; In re Marital Trust Under Last Will and Testament of Wilfred Wolfson, supra. "An interested person ... will always possess an interest in the estate itself." Estate of Thorne, 704 A.2d at 318. In fact, in In re Estate of Juppier, supra, the Missouri Court of Appeals held that paternal grandparents were not "interested persons" for the purpose of seeking the removal of their grandchild's guardian, because they lacked a financial interest in the grandchild's estate. To grant standing to someone with a purely sentimental or filial interest in a ward or protected person would be in direct contravention of legislative intent. Matter of Walker, supra.
The record before us fails to include any evidence from which it could be determined that the Department satisfies the statutory definition of "interested person." The majority opinion does not dispute this conclusion, but, rather, concludes that the definition of "interested person" is not controlling because the guardian removal statute, § 30-2623, uses the phrase "person interested" instead of "interested person."
There is no authority for the majority's conclusion that "person interested" should be given some different and vastly broader meaning than the term "interested person." Significantly, neither statute nor case law defines the term "person interested" to suggest that the ordering of the two words should result in a different meaning. Similarly, there is no authority for concluding that the Legislature was recognizing the need to grant the right to seek removal of an established guardian to "a neighbor, an old friend, the child of an old friend, a member of the clergy, a banker, a lawyer, a doctor, or someone else who has been professionally acquainted with the person needing such help." There is no authority for the proposition that such people will frequently come forward "out of simple charity" or for the proposition that "the above statutes are worded to allow people without a legal interest" to invoke the power of the court. Indeed, it is a longstanding and undisputed proposition that people without a legal interest explicitly cannot "bring the matter to the local court's attention." See Ritchhart v. Daub, 256 Neb. 801, 594 N.W.2d 288 (1999). That is the very crux of the jurisdictional requirement of standing.
*231 The problem with a public agency such as the Department "coming forward" on matters such as the present case is that there is no authority for such an agency to invoke the jurisdiction of a court to seek the removal of a guardian such as Aehul. This should be particularly so when the record fails to establish that the agency, like the Department herein, is "quite likely to be supplying financial assistance for the ward," as the majority herein concludes. Although the majority's conclusion that "the county judge, under the applicable standard of review, can make the determination of whether the petitioner is really interested in the welfare of the person subject to the proceedings" is correct, the county judge's determination must be guided by legal rules. The only established legal rules in this situation are those that guide the determination of whether the Department is an "interested person," and under the applicable standard of review, the county court committed reversible error in finding that the Department had standing. As such, I would find that the Department lacked standing and that the county court's order removing Aehul as Michael's guardian should be reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2753003/ | Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 19, 2014
The Court of Appeals hereby passes the following order:
A15I0062. TODD’S PLUMBING, INC. v. PRIMA MUSIC, INC.
Todd’s Plumbing, Inc. seeks interlocutory review of the trial court's denial of
its motion for summary judgment. The trial court entered its order denying summary
judgment on October 3, 2014. The court entered its certificate of immediate review
on October 6, 2014. Todd’s Plumbing, Inc. filed this application for interlocutory
appeal on November 3, 2014. We lack jurisdiction.
Pursuant to OCGA § 5-6-34 (b), an interlocutory application must be filed with
this Court within ten days of the date a timely certificate of immediate review is
entered in the court below. Genter v. State, 218 Ga. App. 311 (460 SE2d 879) (1995).
Here, Todd’s Plumbing, Inc. filed its application 28 days after entry of the certificate
of immediate review. Accordingly, it is untimely and is therefore DISMISSED for
lack of jurisdiction.
Court of Appeals of the State of Georgia
11/19/2014
Clerk’s Office, Atlanta,____________________
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk. | 01-03-2023 | 11-19-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1608291/ | 21 So. 3d 997 (2009)
Cynthia McINTYRE
v.
ROUSE'S ENTERPRISES, LLC.
No. 2009 CA 0083.
Court of Appeal of Louisiana, First Circuit.
September 14, 2009.
*998 Hugh B. Exnicios, Folsom, Louisiana, Michael E. Holoway, Mandeville, Louisiana, for Claimant-Appellant, Cynthia McIntyre.
Carlos E. Lazarus, Jr., Houma, Louisiana, for Defendant-Appellee, Rouse's Enterprises, L.L.C.
Before PARRO, KUHN, and McDONALD, JJ.
KUHN, J.
Claimant-appellant, Cynthia McIntyre, appeals the judgment of the Louisiana Office of Workers' Compensation Administration (OWC) in favor of her former employer, defendant-appellee, Rouse's Enterprise, L.L.C. (Rouse's), dismissing her claims for designation of a physician of her choice, medical benefits, and indemnity benefits. We affirm.
McIntyre avers that OWC erred in: (1) determining that Dr. Paul van Deventer was her choice of physician; (2) failing to conclude that she remains disabled as a result of the December 29, 2004 accident; and (3) finding that Rouse's made a bona fide effort to return her to work.[1]
OWC determined that it was the hospital where McIntyre received emergency treatment after her fall that provided her with a list of three physicians, from which she selected the name of Dr. van Deventer, an orthopedist, for follow up treatment. This finding is duly supported by the evidence, including McIntyre's testimony. OWC's factual findings, duly supported by the evidence, are not manifestly erroneous. See Edwards v. Sawyer Indus. Plastics, Inc., 99-2676, p. 9 (La.6/30/00), 765 So. 2d 328, 332.
McIntyre treated with Dr. van Deventer from January 2005 until August 2005. Although she testified that she was receiving medical treatment from Dr. Rosalind Cropper, McIntyre provided no evidence to support that claim and admitted that she never submitted a request to Rouse's for payment of any medical treatment rendered by Dr. Cropper. McIntyre saw no other health care providers until April 2006 when, by agreement of the parties, she returned to Dr. van Deventer, who released her to sedentary duty opining she had reached maximum medical improvement for her back and right knee. It was not until May 18, 2007, that McIntyre requested treatment from another orthopedist, Dr. John Logan. Because McIntyre was treated by Dr. van Deventer, who was also an orthopedist and to whom she was not specifically directed to by Rouse's, OWC correctly concluded that he is regarded as her choice of treating physician. See La. R.S. 23:1121 B(2)(a).
In addition to releasing McIntyre to sedentary work duty on April 20, 2006, Dr. van Deventer's deposition testimony revealed that McIntyre complained of lower back pain during her first two visits.[2] After *999 reviewing MRI studies undertaken on McIntyre's back on January 17, 2005, Dr. van Deventer noted findings of some disc degeneration and arthritis in the facet joints, mostly at L4-5 and L5-S1 levels, and did not see any evidence of acute pathology, expressly ruling out any disc herniation or acute compression of the spinal cord or nerves. Based on his physical exam and the MRI studies, he opined that she had a lumbar strain. Dr. van Deventer's notes revealed that while she returned to see him in May, June, and August 2005, she voiced no complaints of back pain.
McIntyre sought medical treatment from Dr. Logan, commencing on May 18, 2007. Dr. Logan's review of MRI studies conducted on that day showed diminished disc space height at L4-5 and L5-S1 levels with facet arthropathy at L3-4, L4-5, and L5-S1 level. Based on the history related to him by the patient, Dr. Logan concluded that the condition of McIntyre's back was reasonably, medically related to the December 29, 2004 fall. But Dr. Logan admitted the May 2007 MRI study showed findings that were "reasonably in the same ballpark" as those of the January 2005 study. Moreover, he testified that it was reasonable to suggest that, in light of the MRI findings and McIntyre's arthritic condition, the aggravation of the preexisting condition of her back as a result of the December 29, 2004 accident had resolved itself by May 2005, when Dr. van Deventer's notes do not indicate any express complaints of back pain upon his examinations of McIntyre. Thus, a reasonable factual basis exists to support OWC's conclusion that the complaints of low back pain had resolved by May 2005, and that Dr. Logan's treatment of McIntyre for low back pain in May 2007 was not related to the December 29, 2004 accident. See Edwards, 99-2676 at p. 9, 765 So.2d at 332.
McIntyre maintains that OWC erred in finding that Rouse's made a bona fide effort to return her to work, suggesting that while the employer claimed that sedentary employment was offered to her, the evidence establishes that management actually sent her home when she tried to return to work the first time Dr. van Deventer stated she could perform sedentary job duties. While McIntyre's uncontroverted testimony was that she appeared for work on crutches and was sent home, she indicated that was in 2005. The record establishes that during this time, Rouse's continuously paid her medical and indemnity benefits. After Dr. van Deventer released her to sedentary job duties in April 2006 and Rouse's indicated it had a job for her within those medical restrictions, McIntyre admitted that she never contacted Rouse's to inquire about when she should report to the store to work. Accordingly, there was no manifest error by OWC in finding that before it discontinued payment of benefits, Rouse's made a bona fide offer to return McIntyre to work within her restrictions and she refused it.
For these reasons, we affirm the OWC judgment, dismissing McIntyre's claims, in this memorandum opinion issued in compliance with La. URCA Rule 2-16.1B. Appeal costs are assessed against claimant-appellant, Cynthia McIntyre.
AFFIRMED.
NOTES
[1] Although McIntyre lists numerous assignments of error, only three have been briefed, and consequently the others are considered abandoned. See La. URCA Rule 2-12.4.
[2] The release to sedentary work duty by McIntyre's treating physician supports OWC's finding that her right knee did not give rise to a disability due to a work-related injury on May 18, 2007. when she sought additional medical treatment from Dr. Logan, who deferred his medical assessment of her knee to Dr. van Deventer. Moreover, at the commencement of the hearing. McIntyre's counsel conceded that the aneurysm from which she suffered and that precluded Dr. van Deventer's treatment of her knee until evaluated by a vascular surgeon was not a preexisting condition that had been aggravated by the accident. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608288/ | 791 So. 2d 932 (2000)
Dann BAUGHER and Myra Dasinger
v.
BEAVER CONSTRUCTION COMPANY.
1981020.
Supreme Court of Alabama.
November 22, 2000.
Rehearing Denied February 23, 2001.
Stan Brobston of Brobston & Brobston, P.C., Bessemer, for appellants
*933 John D. Gleissner of Rogers & Associates, Birmingham, for appellee.
JOHNSTONE, Justice.
Beaver Construction Company substantially completed construction of Wildwood Apartments in 1979. Nearly 15 years later, on March 17, 1994, a fire destroyed Wildwood Apartments. At that time, Dann Baugher and Myra Dasinger, tenants of Wildwood Apartments, suffered a loss of property as a result of the fire. On February 14, 1996, Baugher and Dasinger brought a suit to recover damages against Beaver Construction in the Bessemer Division of the Jefferson County Circuit Court. On March 9, 1998, the case was transferred to the Birmingham Division of the Jefferson County Circuit Court. On November 10, 1998, Beaver Construction moved for summary judgment, which the trial court granted on February 12, 1999.
Appealing the summary judgment, Baugher and Dasinger argue that the trial court erroneously grounded the summary judgment on the expiration of the period of limitations imposed by the construction statute of repose, §§ 6-5-220 to -228, Ala. Code 1975. Baugher and Dasinger argue that the statute's limitation for the commencement of a civil action against architects, engineers, and builders, which bars all causes of action that accrue more than 13 years after substantial completion of the improvements entailing their services, is unconstitutional.
We, however, hold § 6-5-220 et seq., Ala.Code 1975, to be constitutional. Moreover, we agree with the trial court in its holding that § 6-5-221(a) barred Baugher and Dasinger from suing Beaver Construction, which completed construction on Wildwood Apartments nearly 15 years before the cause of action accrued in this case. Accordingly, we affirm the summary judgment in favor of Beaver Construction.
Section 6-5-221(a), Ala.Code 1975, reads as follows:
"All civil actions in tort, contract, or otherwise against any architect or engineer performing or furnishing the design, planning, specifications, testing, supervision, administration, or observation of any construction of any improvement on or to real property, or against builders who constructed, or performed or managed the construction of, an improvement on or to real property designed by and constructed under the supervision, administration, or observation of an architect or engineer, or designed by and contracted in accordance with the plans and specifications prepared by an architect or engineer, for the recovery of damages for:
"(i) Any defect or deficiency in the design, planning, specifications, testing, supervision, administration, or observation of the construction of any such improvement, or any defect or deficiency in the construction of any such improvement; or
"(ii) Damage to real or personal property caused by any such defect or deficiency; or
"(iii) Injury to or wrongful death of a person caused by any such defect or deficiency;
"shall be commenced within two years next after a cause of action accrues or arises, and not thereafter. Notwithstanding the foregoing, no relief can be granted on any cause of action which accrues or would have accrued more than thirteen years after the substantial completion of construction of the improvement on or to the real property, and any right of action which accrues or would have accrued more than thirteen years thereafter is barred, except where prior to the expiration of such thirteen-year period, the architect, engineer, *934 or builder had actual knowledge that such defect or deficiency exists and failed to disclose such defect or deficiency to the person with whom the architect, engineer, or builder contracted to perform such service."[1]
(Emphasis added.)
Appropriate Standard of Review
Article I of the Alabama Constitution of 1901 is entitled "Declaration of Rights." Article I, Section 13, states:
"That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial or delay."
Article I, Section 36, of the Alabama Constitution of 1901 further provides:
"That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate."
In reviewing a party's challenge to the constitutionality of a statute on a claim that the statute violates the party's right to a remedy guaranteed by § 13 of the Constitution, this Court has applied both the "vested rights approach" and the "common-law rights approach." See, e.g., Kruszewski v. Liberty Mut. Ins. Co., 653 So. 2d 935 (Ala.1995); Murdock v. Steel Processing Servs., Inc., 581 So. 2d 846 (Ala. 1991); Reed v. Brunson, 527 So. 2d 102 (Ala.1988). We follow this same review process in this case.
I. Vested Rights Approach
Because Baugher and Dasinger's property damages occurred after the effective date of the construction statute of repose, their causes of action had not yet accrued when the statute was enacted. Under the vested rights approach, § 6-5-221(a), Ala.Code 1975, does not violate § 13 because it does not deprive Baugher and Dasinger of a vested right in a cause of action. See Kruszewski and Reed, supra.
II. Common-law Rights Approach
In Reed v. Brunson, 527 So. 2d 102, 115 (Ala.1988), the Court reasoned:
*935 "`Legislation which abolishes or alters a common-law cause of action, then, or its enforcement through legal process, is automatically suspect under § 13. It is not, however, automatically invalid. Grantham [v. Denke, 359 So. 2d 785 (Ala.1978),] itself restates the established rule that such legislation will survive constitutional scrutiny if one of two conditions is satisfied:
"`1. The right is voluntarily relinquished by its possessor in exchange for equivalent benefits or protection, or
"`2. The legislation eradicates or ameliorates a perceived social evil and is thus a valid exercise of the police power.'"
(Quoting Fireman's Fund Am. Ins. Co. v. Coleman, 394 So. 2d 334, 352-54 (Ala. 1981).) (Emphasis added and emphasis omitted.) See also Lankford v. Sullivan, Long & Hagerty, 416 So. 2d 996, 1000 (Ala. 1982).
The construction statute of repose found in § 6-5-220 et seq., Ala.Code 1975, does operate to abrogate certain common-law rights after the expiration of the 13-year period. This Court has previously identified common-law rights of action against architects, engineers, and builders. See, e.g., Watson, Watson, Rutland/Architects, Inc. v. Montgomery County Bd. of Educ., 559 So. 2d 168, 174 (Ala.1990) (holding that an architect could be held liable for failing to inspect reasonably); McFadden v. Ten-T Corp., 529 So. 2d 192, 201 (Ala.1988) (holding that a contractor, a builder, could be held liable for negligently widening and resurfacing a highway and that the contractor was not insulated from liability by the owner's acceptance of the contractor's work); Jackson v. Mannesmann Demag Corp., 435 So. 2d 725 (Ala.1983) (allowing the plaintiff to pursue his claims, grounded in both negligence and the Alabama Extended Manufacturer's Liability Doctrine, against the engineers responsible for the installation of an electric arc furnace); Cochran v. Keeton, 287 Ala. 439, 252 So. 2d 313 (1971) (holding that caveat emptor does not apply to a builder-vendor's sale of a newly constructed house). While the legislation in question does operate to abolish certain common-law causes of action, nonetheless the legislation passes constitutional muster even judged by the common-law rights approach because the legislation "eradicates or ameliorates a perceived social evil and is thus a valid exercise of the police power." Reed, supra.
Reed explains:
"Fireman's Fund [] poses the pertinent question: `Who is to determine if society at large receives a benefit by the deprivation of the common law remedy, the legislature or the courts?' See 394 So.2d at 352-53. All questions of `propriety, wisdom, necessity, utility, and expediency are held exclusively for the legislative bodies, and are matters with which the courts have no concern. This principle is embraced within the simple statement that the only question for the court to decide is one of power, not of expediency or wisdom.' Alabama State Federation of Labor v. McAdory, supra, 246 Ala. at 9-10, 18 So.2d at 815 [(1944)]."
527 So.2d at 116. However, "[i]n this regard, it is not enough for the legislature to merely characterize the problem as a `social evil' and then recite in the enacting clause that the legislation is directed to that evil. There must be a substantial relationship between the act and the eradication of the evil." Lankford, 416 So.2d at 1001.
In § 6-5-225, Ala.Code 1975, the Alabama Legislature expressed its findings and intent in enacting the statute:
*936 "It is the purpose and intent of the Legislature in connection with all actions against architects and engineers, who perform or furnish the design, planning, specifications, testing, supervision, administration, or observation of the construction of an improvement on or to real property, and builders who construct, perform, or manage the construction of an improvement on or to real property designed by and constructed under the supervision, administration or observation of, or in accordance with the plans and specifications prepared by, an architect or engineer, to limit the time for commencement of an action to a period of two years from the date a cause of action accrues and to bar all causes of action and rights of action which accrue more than thirteen years after substantial completion of such improvement. The Legislature finds that this classification distinguishing architects, engineers, and builders is rationally and reasonably related to the legislative regulatory scheme and is valid....
"This article bears a reasonable relationship to the proposed legislative objective of limiting the period of liability for architects and engineers and builders whose professional services or work on improvements to real property generally ends at the time of substantial completion of the improvement. While protecting architects and engineers from exposure to liabilities for injuries and damages occurring long after the completion of their professional architectural and engineering services and builders as defined from exposure to liabilities for injuries and damages occurring long after the completion of their work, this article imposes no unfair burden on the injured party for he or she is still afforded an avenue of legal action to seek redress from those who are more likely to have been responsible for or could have prevented such injury.
". . . .
"It is the further legislative objective to provide for the abolishing of rights of action against architects and engineers and builders which would have accrued after the passage of thirteen years from the substantial completion of the construction of an improvement on or to real property, except rights of action for breach of express warranties, contracts, or indemnities which extend beyond thirteen years. Where causes of action accrue during the thirteen years from completion, an action may be brought within two years of accrual even though this extends beyond the thirteen-year period. This permits all injured parties a period of two years to file suit unless already barred because the cause of action accrues after the passage of thirteen years, which would in certain circumstances permit the filing of an action up to fifteen years after the completion of the improvement (or up to two years after the expiration of written express warranties, contracts, or indemnities).
"The legislative objective of abolishing potential liabilities of architects and engineers and builders after the passage of a sufficient period of time from the completion of their work is rationally and reasonably related to the permissible state objective of removing responsibility from, and preventing suit against these regulated professions and builders which are least likely to be responsible or at fault for defects and deficiencies which cause injury long after their services or work is completed. The Legislature has deemed that, after a lapse of time of more than thirteen years without incident, the burden on the courts to adjudicate, the complexities of proof with the obstacle of faded memories, unavailable witnesses and lost evidence, *937 and even where evidence is available, the opportunity for intervening factors such as acts or omissions of others in inadequate maintenance, improper use, intervening alterations, improvements and services, and other negligence, and such as changes in standards for design and construction and changes in building codes, and the burden on architects and engineers and builders, who have no control over the improvements after their services are completed, to disprove responsibility after acceptance and years of possession by other parties, all weigh more heavily in favor of repose or the abolishing of rights of action against architects and engineers and builders than allowing adjudication of the few, if any, meritorious claims which might have accrued thereafter. The Legislature finds that the burden of tenuous claims upon both the courts and architects and engineers and builders sufficiently vindicates the denial of a right of action after the passage of a period of thirteen years from the substantial completion of the construction of the improvement. (Acts 1994, No. 94-138, p. 183, § 6.)"
(Emphasis added.)
Buildings are unique in that typically they are intended to endure indefinitely if not permanently. Without this statute, architects, builders, and engineers would remain subject to liability until they die or, indeed, for some months after they have died. See 43-2-350(b), Ala.Code 1975. The construction statute of repose bears a substantial relationship to the eradication or amelioration of this potentially perpetual liability as well as the evils specifically found by the Legislature. Therefore, as a valid exercise of police power, as judged by the common-law rights approach, the statute comports with Article I, Section 13 of the Alabama Constitution of 1901.
Furthermore, in the present statute, the Legislature has remedied the defect that caused its precursor to be declared unconstitutional. See Jackson, 435 So.2d at 729. In Jackson, the Court found that the statute did not provide for those plaintiffs whose causes of action accrued close to the expiration of the limitations period. In the present statute, the Legislature has added a "savings clause" to provide parties who are injured near the expiration of the thirteen-year period sufficient time to file their actions.
III. Conclusion
For the above-stated reasons, we find § 6-5-220 et seq., Ala.Code 1975, to be constitutional under both the vested rights approach and the common-law rights approach. We therefore affirm the summary judgment in favor of Beaver Construction Company.
AFFIRMED.
HOOPER, C.J., and MADDOX, HOUSTON, SEE, LYONS, and ENGLAND, JJ., concur.
BROWN, J., concurs in the result.
NOTES
[1] While we have already held that the Legislature has the inherent power to enact a statute of limitations establishing the period within which a claim must be brought, see Sellers v. Edwards, 289 Ala. 2, 265 So. 2d 438 (1972); Plant v. Reid, Inc., 294 Ala. 155, 313 So. 2d 518 (1975), the statute in this case is a statute of repose. Black's Law Dictionary defines "statute of repose":
"A statute that bars a suit a fixed number of years after the defendant acts in some way (as by designing or manufacturing a product), even if this period ends before the plaintiff has suffered any injury. Cf. Statute of Limitations.
"`A statute of repose ... limits the time within which an action may be brought and is not related to the accrual of any cause of action; the injury need not have occurred, much less have been discovered. Unlike an ordinary statute of limitations which begins running upon accrual of the claim, the period contained in a statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted.' 54 C.J.S. Limitations of Actions § 4, at 20-21 (1987)."
Black's Law Dictionary 1423 (7th ed.1999).
Therefore, because the 13-year period begins to run upon the substantial completion of the improvements, rather than upon the injury to the plaintiff's person or property or upon the accrual of the plaintiff's cause of action otherwise, the statute is a statute of repose, rather than a simple statute of limitations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608297/ | 791 So. 2d 149 (2001)
STATE of Louisiana
v.
Tharon L. NARCISSE.
No. 01-KA-49.
Court of Appeal of Louisiana, Fifth Circuit.
June 27, 2001.
*151 Donald A. Sauviac, Jr., Metairie, for Defendant/Appellant, Tharon L. Narcisse.
Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alison Wallis[*], Appellate Counsel, Greg Kennedy, Trial Counsel, Assistant District Attorneys, Gretna, for Plaintiff/Appellee, The State of Louisiana.
Panel composed of THOMAS F. DALEY, MARION F. EDWARDS and SUSAN M. CHEHARDY.
CHEHARDY, Judge.
STATEMENT OF THE CASE
Defendant, Tharon L. Narcisse, was charged by bill of information with simple burglary of an inhabited dwelling, a violation of La. R.S. 14:62.2, being a felon in possession of a firearm (Count 2), a violation of La. R.S. 14:95.1, and possession with intent to distribute marijuana (Count 3), a violation of La. R.S. 40:966(A). Defendant was arraigned and plead not guilty. The bill was later amended to add a second count of being felon in possession of a firearm (Count 4).
Thereafter, defendant filed a motion to suppress the evidence, which was heard by the trial court on May 1, 2000, and denied on May 2, 2000. Defendant subsequently withdrew his not guilty plea and, pursuant to State v. Crosby, 338 So. 2d 584 (La.1976), plead guilty to simple burglary and the remaining three counts as charged, reserving his right to appeal the denial of his motion to suppress. Defendant was sentenced to ten years each on Counts 1, 2 and 3, which were to run concurrently. The trial court did not impose a sentence on Count 4. Defendant now appeals the trial court's denial of his motion to suppress the evidence.
FACTS
On October 13, 1999, at approximately 8:30 a.m., Deputy Michael Burgess responded to a burglary complaint. Damyra Lonzo advised Deputy Burgess that her apartment had just been burglarized by two men. The victim stated that the men were in a brown car around the corner from her apartment. She identified the men as "Boo," later identified as defendant, and "Tom," later identified as Travis Edgerson. The victim rode with Deputy Burgess in his police unit until they spotted the brown car near an apartment complex.
Deputy Joe Ragas arrived as backup. The deputies began knocking on apartment doors. As Deputy Burgess knocked on one apartment door, defendant came out of another apartment several doors down and stated that no one was in the apartment. Deputy Burgess asked defendant if he knew who owned the brown car and defendant indicated that he was the owner. Deputy Burgess asked defendant if he was "Boo" and defendant replied in the affirmative. Deputy Burgess then took defendant into custody.
As he was arresting defendant, Deputy Burgess heard a noise inside defendant's apartment. He looked inside and saw Edgerson running out of the back sliding glass door. Deputy Ragas gave chase and Edgerson was apprehended a short distance away. Thereafter, the victim identified both men as the perpetrators of the burglary.
*152 Prior to leaving defendant's apartment complex, Deputy Ragas conducted a security check of defendant's apartment. During the security check, Deputy Ragas noticed bags of marijuana and a 9mm handgun lying on a bed in plain view in an upstairs bedroom. The narcotics division was called to the scene, and Detective Valley obtained defendant's consent to search the apartment. A subsequent search of defendant's apartment revealed a .22 pistol in a duffle bag found in a closet.
DISCUSSION
On appeal, defendant asserts that he was not arraigned on Count 4 of the amended bill of information, which charged him with a second count of being a felon in possession of a firearm. Defendant claims the arraignment was required.
The record shows that defendant was arraigned on the original bill of information, containing Counts 1, 2 and 3, on November 29, 1999, and that he entered a plea of not guilty. Thereafter, on May 1, 2000, the bill of information was amended to include an additional count, Count 4. The record does not show that defendant was rearraigned on the amended bill.
La.C.Cr.P. art. 555 provides:
Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.
In State v. Hidalgo, 95-319 (La.App. 5 Cir.1/17/96), 668 So. 2d 1188, defendant was arraigned on the original indictment which charged him with one count of first degree murder and two counts of attempted first degree murder. Defendant plead not guilty. Thereafter, the indictment was amended to charge defendant with one count of second degree murder and two counts of attempted second degree murder. Defendant was not rearraigned on the amended indictment. This Court found that because the defendant did not object prior to trial, the error in failing to rearraign him on the amended indictment was waived.
In the matter before us, defendant did not object to the failure of being rearraigned on the amended bill, or on Count 4, prior to entering a guilty plea to Counts 1, 2, 3 and 4. Thus, the error in failing to rearraign defendant was waived.
Defendant next argues that there was no probable cause to arrest him.
A warrantless arrest must be based on probable cause. Probable cause to arrest exists when the facts and circumstances within an officer's knowledge, and of which he has reasonable trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed or is committing a crime. State v. Serrato, 424 So. 2d 214 (La.1982).
In this case, before arresting defendant, Deputy Burgess was informed that a burglary had occurred; that the two perpetrators, one of whom was nicknamed "Boo," had just left the scene in a brown car; that the victim identified the brown car parked in front of a nearby apartment complex; that defendant admitted that he owned the brown car and that he was known as "Boo." These facts justified the police officer's belief that defendant had just committed a crime. Therefore, probable cause existed to arrest defendant.
Defendant next asserts that he did not voluntarily consent to the search of his apartment. He maintains the police *153 coerced his consent by keeping his handcuffs too tight and keeping him in a hot patrol car with no air conditioning. He claims he had no choice but to sign the consent form in order to have the handcuffs loosened. As a result, defendant contends the search was illegal and, thus, any evidence seized during the search should have been suppressed.
There were two searches of defendant's apartment. The first search was conducted after defendant's arrest and after the co-perpetrator was seen fleeing the apartment. The officers testified that this cursory search was a security check conducted for safety purposes. This search revealed bags of marijuana and a 9mm handgun on the bed in the upstairs bedroom. The second search was conducted after defendant signed a consent to search form allowing a full search of his apartment. It was during this search that the .22 pistol was found in a duffle bag in the closet.
Warrantless searches and seizures are unreasonable per se unless justified by one of the specific exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). When the constitutionality of a warrantless search or seizure is at issue on a motion to suppress, the state bears the burden of proving that the search or seizure was justified under one of the exceptions to the warrant requirement. La.C.Cr.P. art. 703(D). Whether evidence was seized in violation of the Fourth Amendment is a determination to be made by the trial judge, whose factual findings are entitled to great weight on appeal. State v. Henderson, 99-471 (La. App. 5 Cir.10/26/99), 746 So. 2d 173, writ denied, 99-3485 (La.5/26/00), 762 So. 2d 1102.
One recognized exception to the search warrant requirement is a security check of the surrounding area immediately after an arrest. State v. Guiden, 399 So. 2d 194 (La.1981), cert. denied, 454 U.S. 1150, 102 S. Ct. 1017, 71 L. Ed. 2d 305 (1982). In recognizing this exception, the Louisiana Supreme Court stated:
The reasonableness of a security check is simple and straightforward. From the standpoint of the individual, the intrusion on his privacy is slight; the search is cursory in nature and is intended to uncover only "persons, not things." Once the security check has been completed and the premises secured, no further search be it extended or limited is permitted until a warrant is obtained. From the standpoint of the public, its interest in a security check is weighty. The delay attendant upon obtaining a warrant could enable accomplices lurking in another room to destroy evidence. More important, the safety of the arresting officer or members of the public may be jeopardized. Weighing the public interest against the modest intrusion on the privacy of the individual ... a security check conducted under the circumstances stated above satisfies the reasonableness requirement of the Fourth Amendment.
Guiden, supra at 199, quoting United States v. Agapito, 620 F.2d 324, 336 (2d Cir.1980), cert. denied, 449 U.S. 834, 101 S. Ct. 107, 66 L. Ed. 2d 40 (1980).
In the present case, the police were investigating a burglary. While arresting one suspect, defendant, Deputy Burgess heard a noise inside the apartment. He looked inside and saw another suspect fleeing through the back sliding glass door. Considering that both suspects were in defendant's apartment before the police arrived, and one fled through the back door, a security check of the apartment to determine if anyone else was inside was certainly justified.
*154 Once inside defendant's apartment, the bags of marijuana and 9mm handgun were noticed in plain view. In order for the plain view exception to the warrant requirement to apply, there must be prior justification for police intrusion into a protected area and it must be immediately apparent, without close inspection, that the item is contraband. Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).
Upon review, we find the requisite elements necessary for the seizure of the contraband were satisfied. The officer's initial intrusion into defendant's apartment was justified under the protective sweep doctrine and the apparent contraband was in plain view. Therefore, the trial court properly denied defendant's motion to suppress the evidence of the marijuana and the 9mm handgun.
With regards to the .22 pistol which was located in the duffle bag in the closet, police may search without a warrant pursuant to consent. When the state relies upon consent to justify a search, the state has the burden of proving that the consent was freely and voluntarily given. Schneckloth v. Bustamonte, supra. Voluntariness of consent is a question of fact to be determined by the trial judge under the totality of the circumstances. The trial judge's factual determination on the voluntariness of the consent is afforded great weight on appeal. When the trial court is presented with conflicting testimony, the credibility of the witnesses is a matter within the sound discretion of the trial court and will not be disturbed on appeal unless clearly contrary to the evidence. State v. Williams, 98-1006 (La.App. 5 Cir.3/30/99), 735 So. 2d 62, writ denied, 99-1077 (La.9/24/99), 747 So. 2d 1118.
At the suppression hearing, defendant testified that he did not sign the consent to search form voluntarily. He stated that his handcuffs were too tight and that the police officer told him he would loosen the cuffs if defendant would sign the paper. Defendant also testified that he was kept in the patrol car for several hours without air conditioning. However, Deputy Burgess testified at the hearing that he witnessed defendant voluntarily sign the consent form and that no coercion was used. He stated that Detective Valley read the entire form to defendant and that defendant initialed each one of the rights. Deputy Burgess also denied that defendant was left in the patrol car without air conditioning.
In denying the motion to suppress, the trial court clearly accepted the police officer's version of the events instead of defendant's version. There is nothing in the record to suggest that the trial court erred in its credibility assessment.
Lastly, defendant asserts that the police had no basis to search his car. However, there was no vehicle search involved in this case. Thus, this assignment of error merits no consideration.
Pursuant to La.C.Cr.P. art. 920, the record was reviewed for errors patent. First, we note that defendant pled guilty to a charge not contained in the bill of information. Specifically, defendant was charged with simple burglary of an inhabited dwelling. However, defendant pled guilty to simple burglary, which is nonresponsive to the charge of simple burglary of an inhabited dwelling. La.C.Cr.P. art. 814A(44.1). A defendant is not prohibited from pleading guilty to a crime nonresponsive to the original indictment. La.C.Cr.P. art. 487. However, the district attorney must amend the original indictment or bill of information to reflect the nonresponsive charge. State v. Cook, 372 So. 2d 1202 (La.1979). In this case, the district attorney failed to amend the bill of information.
*155 This Court, along with the First and Third Circuits, has applied a harmless error test where the district attorney fails to amend the bill of information to formally charge defendant with the nonresponsive crime to which he pleads guilty. State v. Guerrero, 96-851 (La.App. 5 Cir.1/28/97), 688 So. 2d 119; State v. Rito, 96-1444 (La. App. 3 Cir.10/8/97), 700 So. 2d 1169; State v. Barclay, 591 So. 2d 1178 (La.App. 1 Cir. 1991), writ denied, 595 So. 2d 653 (La. 1992).
In State v. Guerrero, supra, defendant was charged with possession with intent to distribute heroin but pled guilty to accessory after the fact to possession with intent to distribute heroin. The district attorney failed to amend the original indictment. However, this Court found that the failure to amend the indictment was harmless error. We reasoned that defendant's plea was acceptable to the district attorney and the transcript and the guilty plea form indicated defendant was fully aware of the charge to which he plead. As such, this Court concluded the plea was not prejudicial to the defendant.
In the matter before us, the transcript clearly demonstrates that defendant was aware that he was pleading guilty to simple burglary, and that the trial court used the definition of simple burglary, as opposed to simple burglary of an inhabited dwelling, when advising defendant of the nature of the charges during the plea colloquy. The guilty plea form also clearly shows that defendant was pleading guilty to La. R.S. 14:62, simple burglary. Because the transcript and the guilty plea form indicate that defendant was fully aware of the charge to which he plead, and defendant plead guilty to a less serious crime than the original crime charged, the plea was not prejudicial to defendant. As such, the failure to amend the bill of information is harmless error.
Second, we note that the trial court failed to sentence defendant on Count 4, despite defendant's guilty plea to Count 4. The trial court must impose a separate sentence for each separate count on which a defendant is convicted. State v. Joseph, 96-187 (La.App. 5 Cir.11/14/96), 685 So. 2d 237, writ granted in part and remanded for resentencing, 96-2998 (La.5/9/97), 693 So. 2d 782.
Third, the minute entry and the commitment are inconsistent with the transcript. In particular, the transcript clearly indicates defendant plead guilty to simple burglary, a violation of La. R.S. 14:62. However, the minute entry and commitment both indicate defendant plead guilty to simple burglary of an inhabited dwelling, a violation of La. R.S. 14:62.2. In addition, the commitment reflects defendant only plead guilty to Counts 1, 2 and 3, where the transcript reveals defendant actually plead guilty to Counts 1, 2, 3 and 4. When there is a discrepancy between the transcript and the minute entry, the transcript will prevail. State v. Lynch, 441 So. 2d 732 (La.1983). As such, we will remand this matter for the trial court to amend the minute entry dated May 2, 2000, and the commitment dated July 18, 2000, to correct the above inaccuracies.
Accordingly, for the foregoing reasons, defendant's conviction of simple burglary and of Counts 2, 3 and 4 are hereby affirmed. Because defendant was not sentenced on Count 4, we vacate defendant's sentence and remand this matter to the trial court for resentencing, and further order the trial court to amend the minute entries as discussed above.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.
NOTES
[*] COUNSEL OF RECORD ON APPEAL | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/739923/ | 111 F.3d 1264
65 USLW 2745, 37 Collier Bankr.Cas.2d 1691,11 Tex.Bankr.Ct.Rep. 186
In the Matter of Josephine M. MENDOZA, also known as JosieMendoza, Debtor.Josephine M. MENDOZA, also known as Josie Mendoza, Appellant,v.TEMPLE-INLAND MORTGAGE CORPORATION, Appellee.
No. 95-40859.
United States Court of Appeals,Fifth Circuit.
May 12, 1997.
James Thomas McMillen, Corpus Christi, TX, for Appellant.
David Lee Rosenberg, William Scott Pesota, Waggner & Pesota, Houston, TX, for Appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before SMITH and PARKER, Circuit Judges, and JUSTICE*, District Judge.
ROBERT M. PARKER, Circuit Judge:
1
The Appellant, Josephine M. Mendoza ("Mendoza"), appeals an order of the bankruptcy court which required her to make post-petition mortgage payments which were in arrears directly to Temple-Inland Mortgage Corporation ("Temple") rather than modifying her Chapter 13 Plan to allow her to make the past due postpetition mortgage payments through the Chapter 13 Trustee, and by including a "drop dead" clause in its order. The district court affirmed. Finding that the bankruptcy court erred, we reverse and remand.
FACTUAL HISTORY
2
Josephine Mendoza filed a voluntary petition for bankruptcy under Chapter 13 of the Bankruptcy Code on October 5, 1994. Among Mendoza's liabilities was a debt of $3,276.94 owed to Temple secured by a mortgage on her home and fixtures (a range and hood). Mendoza's home was worth approximately $45,000. Mendoza's Chapter 13 Plan of Reorganization provided for the payment of the current mortgage, the prepetition arrearage on the mortgage, and the Trustee's fee on a monthly basis to be disbursed by the Trustee. Under Mendoza's Plan, she would pay off Temple completely. On January 9, 1995, the Bankruptcy Court confirmed Mendoza's Plan which provided for thirty-nine (39) monthly Plan payments.
3
Soon after Mendoza filed her petition for bankruptcy, she lost her job, suffered an illness, and thus was unable to make payments for two months (December 1994 and January 1995) under her proposed Plan resulting in a postpetition arrearage on her mortgage. Since then, Mendoza has been able to make her monthly payments as prescribed by the Plan.
4
Within one month of confirmation of Mendoza's Plan, Temple filed a motion for relief from stay under Bankruptcy Code § 362(d)(1) apparently seeking to have Mendoza make payments on the postpetition arrearage directly to Temple rather than through the Trustee.1 On March 7, 1995, Mendoza filed her motion to modify Chapter 13 Plan to include the postpetition arrearage on her home mortgage in the Plan, to extend the number of Plan payments from 39 to 43 monthly payments which would allow her to pay off the arrearage, and to continue to make her Plan payments through the Trustee rather than directly to Temple.
5
On March 20, 1995, the bankruptcy court held a hearing on Temple's motion for relief from stay. During the hearing, the bankruptcy court emphasized that it had no authority to modify Mendoza's Plan to include the postpetition arrearage, but instead indicated that it would grant the relief Temple had requested. On March 29, Mendoza filed a motion to reconsider whether the Plan could be modified to include the payment of the postpetition arrearage. Thereafter, on April 13, the bankruptcy court entered an "Order Conditionally Modifying Stays" requiring Mendoza to make payments on the postpetition arrearage directly to Temple over a six-month period, and included a "drop dead" clause which Temple had requested. The district court affirmed the decision of the bankruptcy court on September 29, 1995. This appeal followed.
6
On appeal, Mendoza asserts that the bankruptcy court abused its discretion by refusing to modify her Chapter 13 Plan to allow her to make the postpetition mortgage payments which were in arrears through the Chapter 13 Trustee and instead requiring her to make the postpetition mortgage payments directly to Temple, and the court further erred by including the "drop dead" clause.
DISCUSSION
7
This Court, acting as a second review court, reviews the bankruptcy court's findings of fact under the clearly erroneous standard, but the bankruptcy court's and district court's conclusions of law are reviewed de novo. In re United States Abatement Corp., 79 F.3d 393, 397 (5th Cir.1996). The bankruptcy court's decision to lift the automatic stay is reviewed for an abuse of discretion. See In re Dixie Broadcasting, Inc., 871 F.2d 1023, 1026 (11th Cir.), cert. denied, 493 U.S. 853, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989).
8
A court may abuse its discretion by erroneously concluding that the law does not afford it the discretion to do something. See Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 535 (5th Cir.1996). Similarly, when a court makes a discretionary decision but erroneously believes that the law limits its discretion in a certain way (i.e., an incorrect understanding of the law), then it abuses its discretion. Thus, where a court's exercise of discretion is premised on an erroneous conclusion of the law, that constitutes an abuse of discretion in that the court failed to understand the full bounds of its discretion.
9
Initially, we consider Mendoza's argument that the district court erred in reviewing the bankruptcy court's order solely for abuse of discretion rather than considering whether its decision was based on a erroneous conclusion of law. Because this Court has not decided the issue of whether modification of a debtor's Chapter 13 plan to include postpetition arrearages is provided for under the Bankruptcy Code, which is a question of law, we find that the district court erred by applying the abuse of discretion standard in its review with respect to this issue.
A. Plan Modification & Direct Payment
10
The issue we first address on appeal raises a question of law: whether the bankruptcy court has the authority to modify a Chapter 13 plan to allow a debtor to include postpetition arrearages with respect to a secured claim on the debtor's home in her Chapter 13 Plan.2 The bankruptcy court refused to modify Mendoza's Chapter 13 Plan to include postpetition arrearages on her home mortgage based on the belief that it did not have the authority to modify her Plan to include postpetition mortgage payments in arrears in a Chapter 13 plan. The bankruptcy court stated that since such arrearage payments were not "provided for" in the Bankruptcy Code, it was without authority to make the requested modification. The bankruptcy court also ordered Mendoza to make direct payment of the postpetition mortgage arrearage and each of her monthly mortgage payments beginning with the May 1995 installment.
11
Mendoza primarily argues that the bankruptcy court erred by concluding that it did not have the capacity to modify a plan of reorganization to provide for the payment of postpetition mortgage payments in arrears, and by requiring her to make direct payments to Temple. Mendoza asserts that there is authority to allow plan modification to include postpetition arrearage in the debtor's Chapter 13 plan. See In re Stafford, 123 B.R. 415 (N.D.Ala.1991). Additionally, Mendoza contends that all payments must be made under a plan of reorganization, based on a narrow reading of § 1326(c), and that the Chapter 13 trustee is charged with disbursing all monies to creditors. Similarly, Mendoza argues that arrearage payments should be distributed by the trustee based on § 1326(c). See, e.g., In re Reid, 179 B.R. 504, 507 (E.D.Tex.1995), aff'd, 77 F.3d 473 (5th Cir.1995) (stating that the general rule requires that debts provided for in a Chapter 13 plan be paid through the trustee).
12
Temple contends that pursuant to Bankruptcy Code section 1322(b)(2), a Chapter 13 plan may modify "the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor's residence...." Temple relies on the "other than" language of § 1322(b)(2) and the United States Supreme Court's decision in Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993) as precluding modification of Mendoza's Plan to include the post-petition arrearages.3
13
However, Nobelman precludes modification of the mortgagee's "rights" which are "reflected in the relevant mortgage instrument[ ]...." Nobelman, 508 U.S. at 329, 113 S.Ct. at 2110 (emphasis added). These rights may include, for example: (1) the right to repayment of the principal in monthly installments over a fixed term at a specified interest rate, (2) the right to retain the lien until the debt is paid off, (3) the right to accelerate the loan upon default and to proceed to foreclosure and recover any resulting deficiency. Id. We find Temple's reliance on Nobelman misplaced under the facts of this case. In the case sub judice, Mendoza is not attempting to modify the "rights" of the mortgagee (Temple), but instead, solely seeks to modify her Chapter 13 Plan to include the post-petition mortgage arrearage while observing the "bargained for" terms of her mortgage. There is a distinction between modifying the rights of a mortgagee where the debtor proposes to pay his mortgage at an interest rate lower than that provided for in the mortgage, and modifying a plan of reorganization to include postpetition mortgage payments which are in arrears. Accordingly, Temple's rights as a mortgagee and its security interest are not considered "modified" under our reading of Nobelman.
14
Although we have not decided the question of whether a bankruptcy court may modify a confirmed plan of reorganization to include postpetition mortgage payments in arrears, we note there is a split of authority as to whether a debtor may cure such defaults through modification.4 Though not controlling, we find the analysis of the Eleventh Circuit's decision in In re Hoggle, 12 F.3d 1008 (11th Cir.1994) to be better reasoned and persuasive in holding that a Chapter 13 Plan may be modified to cure postpetition defaults through a plan of reorganization.
15
In Hoggle, the debtors filed for bankruptcy under Chapter 13 of the Bankruptcy Code and were past due on their mortgage payments. The debtors' plan, pursuant to § 1322(b)(5), included a provision to cure the past due payments. The bankruptcy court confirmed the debtors' plan, after which the debtors failed to make their required payment. The bankruptcy court, in denying the secured creditor's motion to lift stay, modified the debtors' Chapter 13 plan to provide for the cure of the postconfirmation arrearages. The Eleventh Circuit held that the bankruptcy court had the authority to modify a confirmed Chapter 13 plan to allow the debtor to cure by including the postconfirmation arrearages in the debtors' modified Chapter 13 plan. Id. at 1009. The Hoggle court concluded that § 1322(b)(5) expressly authorized a plan of reorganization to provide for the curing of any default with the postconfirmation arrearages to be paid under a modified plan, notwithstanding § 1322(b)(2)'s anti-modification language. Id. at 1010. The court's focus on the plain meaning of § 1322(b)(5), the legislative history and intent, and Chapter 13's overall policy of affording flexible repayment plans, compelled the conclusion that §§ 1322(b)(5) "permits cure of any default whether occurring prior to the filing of the petition or subsequent to confirmation of the plan." Id.
16
Conversely, however, several courts have held that § 1322(b)(5) precludes a debtor from modifying a Chapter 13 plan to include an arrearage. See In re Nicholson, 70 B.R. 398 (Bankr.D.Colo.1987). In Nicholson, the bankruptcy court asserted that § 1322(b)(2) & (5) do not allow a Chapter 13 plan to modify the rights of a creditor holding a claim secured only by a mortgage on the debtor's principal residence except to cure prepetition defaults within a reasonable time." Nicholson, 70 B.R. at 401 (emphasis added). Although the Nicholson court states that § 1322(b)(2) & (5) expressly provide that only prepetition mortgages may be cured in a plan, we find that neither section distinguishes expressly or otherwise between prepetition and postpetition arrearages. Accordingly, we do not follow this constricted reading of § 1322(b)(2) & (5).
17
Thus, turning to the case sub judice, we are compelled to hold, as has our sister circuit, that pursuant to § 1322(b)(5), bankruptcy courts are empowered to modify a debtor's plan to include postpetition arrearages arising from a secured loan, such as a mortgage. Therefore, the bankruptcy court in this case erred as a matter of law by holding that it did not have the authority to modify Mendoza's Plan.
18
We conclude that, under a plain meaning reading of § 1322(b)(5), the legislative intent, and the underlying policy of Chapter 13, these grounds mandate the conclusion that a debtor's plan may be modified to include postpetition mortgage payments in arrears. Moreover, the Bankruptcy Reform Act of 1994 amended § 1322(c) to provide that "a default with respect to ... the debtor's principal residence may be cured ..." and that "the plan may provide for the payment of the claim as modified...." 11 U.S.C. § 1322(c) (emphasis added). Although this new subsection is not effective to the case before the Court as the Act does not apply to cases filed before October 22, 1994, the amendment is illustrative of Congress' intention to provide homeowners with continuing rights to cure defaults and preserve their primary asset. However, to preserve the Bankruptcy Code's balance of protections, we further conclude that the modification must comply with the requirements of § 1322(b)(5) and that the bankruptcy court should inquire whether the proposed modification comports with § 1322(b)(5)'s requirement that such a cure be effected within a reasonable time and simultaneously maintain current payments on any long term secured loan. See Hoggle, 12 F.3d at 1012.
19
Finally, we hold that the bankruptcy court's decision whether to modify a Chapter 13 plan of reorganization is to be reviewed under the abuse of discretion standard. See In re Witkowski, 16 F.3d 739, 746 (7th Cir.1994).
20
Regarding whether the bankruptcy court erred in ordering Mendoza to make her mortgage payments (those in arrears and coming due starting May 1995) directly to Temple instead of through the Trustee, we find Mendoza's argument to be unpersuasive. This court previously held in In re Foster, 670 F.2d 478 (5th Cir.1982) that although § 1326(c) states the general rule that payments are to be made through the trustee, Chapter 13 permits the debtor to act as the disbursing agent and to make payments to a creditor directly. Id. at 486. Further, we determined that "the provisions of Chapter 13 make it clear that the designation of the debtor as [the] disbursing agent is very much a matter left to the considered discretion of the bankruptcy court." Id. Although some courts have drawn a distinction between direct payment of current mortgage payments and arrearage payments, see, e.g., In re Aberegg, 961 F.2d 1307, 1310 n. 3 (7th Cir.1992), we believe that the bankruptcy court is in the better position to ascertain whether or not the debtor is capable of acting as a disbursing agent and make direct payments of either current mortgage payments or arrearage payments. The only limitation is that the bankruptcy court in making this determination "must determine whether the debtor will be able to make those payments and ... comply with the plan." Id. Therefore, we recommend that the bankruptcy court carefully consider its ruling that Mendoza make direct payments to Temple in light of her past problems.
B. Drop-Dead Clauses
21
The bankruptcy court in its April 13, 1995 "Order Conditionally Modifying Stays" included a "drop dead" clause over the objection of Mendoza.5 A "drop dead" clause "allows a creditor to exercise its state law remedies upon default of a debtor under a plan without seeking further permission from the bankruptcy court." In re Kennedy, 177 B.R. 967, 975 (Bankr.S.D.Ala.1995) (emphasis added).
22
Mendoza asserts that the bankruptcy court erred by including the "drop dead" clause in the order since the Bankruptcy Code does not allow a court to impose "drop dead" clauses over the debtor's objection. Temple contends that such provisions are not uncommon where the automatic lifting of the stay is conditioned on the debtor's failure to make timely payments, coupled with notice and an opportunity to cure. Alternatively, Mendoza contends that the bankruptcy court abused its discretion by including the clause on the basis that the clause is inconsistent with the goals of the Bankruptcy Code.
23
Mendoza relies on the language in Kennedy that "if the parties don't agree [to a drop dead provision], both are left to their statutory remedies." Id., 177 B.R. at 975. In addition, the bankruptcy court in Kennedy stated that no section of the Bankruptcy Code requires such relief to be given a secured creditor by a debtor. Id. However, Kennedy involved a secured creditor's objection to confirmation of a proposed Chapter 13 plan where the plan itself did not include a "drop dead" clause in the event of default by the debtors. We find Mendoza's reliance on Kennedy misplaced. We do not consider Mendoza's strict reading of Kennedy as precluding the bankruptcy court from including "drop dead" clauses in its orders, whether by agreement of the parties or sua sponte without the parties' agreement.
24
Moreover, a natural reading of Bankruptcy Code § 362 does not preclude the inclusion of "drop dead" clauses in the bankruptcy court's order to modify the stay. See e.g. United States v. Ron Pair Enter., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) (employing a plain meaning reading of Bankruptcy Code § 506(b)). Because of the equitable nature of bankruptcy in seeking a balance between debtors and creditors, bankruptcy courts should be afforded the latitude to fashion remedies they consider appropriate under the circumstances, including "drop dead" orders, as long as the bankruptcy court follows the Bankruptcy Code's statutory mandate. As a discretionary decision, the bankruptcy court's inclusion of a "drop dead" clause must be reviewed under the abuse of discretion standard. See, e.g., In re Standfield, 152 B.R. 528, 540 (Bankr.N.D.Ill.1993) (citing In re Holtkamp, 669 F.2d 505 (7th Cir.1982)). Based on our review of the record, we conclude that the bankruptcy court did not abuse its discretion by including the "drop dead" clause in its order "Conditionally Modifying Stays." We find Mendoza's other arguments precluding "drop dead" clauses to be without merit.
CONCLUSION
25
Having concluded that the language of § 1322(b)(5) allows for the modification of a Chapter 13 plan of reorganization to include postpetition past due mortgage payments, we reverse and remand to the district court and direct the district court to remand to the bankruptcy court with directions that the bankruptcy court consider the foregoing discussion in its determination of whether to modify Mendoza's Plan to include the postpetition mortgage payments in arrears and whether to order her to make direct payments to Temple.
26
REVERSED AND REMANDED.
27
JUSTICE, District Judge, concurring in part and dissenting in part:
28
I find that it was an abuse of discretion for the bankruptcy court to include a "drop dead" clause in its April 13, 1995, Order Conditionally Modifying Stays, and for this reason only, I respectfully dissent from the majority opinion.
29
As the majority summarizes, Josephine Mendoza's Chapter 13 Plan of Reorganization provided for the payment of the current mortgage on her residence, the pre-petition six-month arrearage on the mortgage, and a trustee's fee. Mendoza, as a result of an illness, was forced to miss work and was eventually dismissed from her job, causing her to miss two of her monthly payments under the Reorganization Plan. Consequently, Temple, the creditor, filed a motion for relief from stay under section 362(d)(1) of the Bankruptcy Code. The bankruptcy court thereupon ordered that Mendoza pay off the post-petition arrearage on her mortgage over a six-month period. The court included a drop-dead clause in its order, which provided that Temple, upon default by Mendoza, could foreclose on her residence after providing her notice without seeking the bankruptcy court's approval.
30
When a debtor files for protection under Chapter 13 of the Bankruptcy Code, section 362(a) provides for an automatic stay of most actions against the debtor's property. The automatic stay provision, a "key component of federal bankruptcy law," In re S.I. Acquisition, Inc., 817 F.2d 1142, 1146 (5th Cir.1987), "is one of the fundamental debtor protections provided by the bankruptcy laws," id. (quoting H.R.Rep. No. 95-595, at 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296). The automatic stay provision precludes any recourse to state law remedies in a Chapter 13 case until the debtor is discharged, which usually occurs when the debtor has completed all payments under her reorganization plan. See 11 U.S.C.A. §§ 362(a), (c)(2). By allowing a creditor to foreclose on the debtor's property without permission from the court, a "drop-dead" clause constitutes a modification and conditioning of a stay.
31
While the inclusion of a drop-dead clause is permitted under the Bankruptcy Code, as a modification of an automatic stay, the following conditions must first be established:
32
(1) for cause, including the lack of adequate protection of an interest in property of such party in interest;
33
(2) with respect to a stay of an act against property under subsection (a) of this section, if--
34
(A) the debtor does not have an equity in such property; and
35
(B) such property is not necessary to an effective reorganization....
36
11 U.S.C.A. § 362(d). Subsection two, which requires that the debtor lack equity in her property, is inapplicable to the case at hand, because Mendoza has equity in her residence. Therefore, the bankruptcy court's decision to include a drop dead clause should be analyzed for abuse of discretion pursuant to the "for cause" exception in § 362(d)(1).
37
The Bankruptcy Act does not specify what constitutes cause to modify a stay, other than "lack of adequate protection of an interest in property of such party in interest." The legislative history, however, provides some guidance:
38
The lack of adequate protection of an interest in property of the party requesting relief from the stay is one cause for relief, but is not the only cause.... [A] desire to permit an action to proceed to completion in another tribunal may provide another cause. Other causes might include the lack of any connection with or interference with the pending bankruptcy case. For example, a divorce or child custody proceeding involving the debtor may bear no relation to the bankruptcy case. In that case, it should not be stayed. A probate proceeding in which the debtor is the executor or administrator of another's estate usually will not be related to the bankruptcy case, and should not be stayed. Generally, proceedings in which the debtor is a fiduciary, or involving postpetition activities of the debtor, need not be stayed because they bear no relationship to the purpose of the automatic stay, which is debtor protection from his creditors. The facts of each request will determine whether relief is appropriate under the circumstances.
39
H.R.Rep. No. 95-595, at 343 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6300 (emphasis added). The vast majority of courts that have construed the "for cause" provision of section 362(d) have found that a debtor's failure to make payments to the creditor, in violation of her reorganization plan, can constitute cause to modify a stay. Yet, failure to make post-petition payments does not ipso facto establish cause for relief. In re Raymond, 99 B.R. 819, 822 (Bankr.S.D.Ohio 1989). Rather, in accordance with the legislative history, before modifying a stay, a court should first weigh the equities by conducting a fact-specific analysis of the circumstances surrounding the default. In re McCollum, 76 B.R. 797, 799 (Bankr.D.Or.1987) ("A postpetition default may, or may not, constitute 'cause' for relief from stay."); In re Davis, 11 B.R. 680, 681 (Bankr.E.D.Pa.1981) ("[W]here debtors' delay in beginning [plan] payments is excusable, that failure alone is not sufficient 'cause' for lifting the stay.").
40
The following factors are relevant in Mendoza's case in determining whether her failure to make payments constitutes cause: (1) the amount of post-arrearage debt, (2) the number of payments missed,1 (3) the reason for the default, (4) whether adequate protection exists to cover the missed payments,2 and (5) the type of property subject to the modification of the stay. Together, these factors support the finding that there was no cause to modify the automatic stay protecting Mendoza's residence.
41
Mendoza's post-arrearage debt was minimal. Her total debt owed to Temple was $3,276.94. As a result of missing two monthly payments, her post-arrearage debt was $684. She missed her payments for only two months, not out of neglect or bad faith, but because she was sick and because, as a result, was terminated from her employment. Her sickness and termination from employment was not something she could predict at the time she entered into her plan of reorganization. Further, more than adequate protection existed to cover her debts. "[I]n determining whether a secured creditor's interest is adequately protected, most courts engage in an analysis of the property's 'equity cushion'--the value of the property after deducting the claim of the creditor seeking relief from the automatic stay and all senior claims." In re Indian Palms Assoc., Ltd., 61 F.3d 197, 207 (3rd Cir.1995). Mendoza's equity in the property--more than $40,000--is substantial, and Mendoza's equity cushion was in excess of one thousand percent. "Case law has almost uniformly held that an equity cushion of 20% or more constitutes adequate protection." In re Kost, 102 B.R. 829, 831 (Bankr.D.Wyo.1989) (citations omitted).3 Finally, the fact that it is Mendoza's residence that is the subject of the drop dead provision weighs in her favor.
42
Balancing the equities through application of the above factors, I find that the imposition of a drop-dead clause is too harsh a remedy given the specific circumstances of Mendoza's case. Mendoza, through no will of her own, was placed in a hard situation at a hard time. The payments missed were slight, and creditor Temple remained adequately protected. The majority appears to be heading in the direction of creating a per se rule that whenever there is a post-petition default, the bankruptcy court may impose a drop dead requirement on the debtor. The protections provided by the automatic stay provision of section 362 should not be so readily eviscerated. Consequently, I find that the bankruptcy court abused its discretion in deciding that it had cause to include a drop dead clause in its Order Conditionally Modifying Stays.
*
District Judge of the Eastern District of Texas, sitting by designation
1
Temple's motion for relief from stay alternatively sought that the stay be terminated as to Mendoza's home in order to allow Temple to foreclose its security interest
2
Under Bankruptcy Code § 1329, the debtor may modify a Chapter 13 plan at any time after it is confirmed, provided that the plan, as modified, conforms to the requirements of §§ 1322(a) and (b), and 1325(a). Thus, because § 1329 states that the requirements of § 1322(b) must be complied with, our analysis focuses on § 1322(b)(5)
3
We note a split of authority, post-Nobelman, regarding modification of a mortgagee's rights where the mortgagee has a security interest not only in the debtor's principal residence, but also in "additional security". Compare, In re Johns, 165 B.R. 405 (E.D.Pa.1994), aff'd, 37 F.3d 1021 (3rd Cir.1994) (Chapter 13 plan could modify residential mortgagee's rights where mortgagee's interest was secured by other collateral including "alterations, additions, improvements, appliances, machinery, furniture and equipment"); In re Hammond, 27 F.3d 52 (3rd Cir.1994) (mortgage that created security interest in debtor's personal property in addition to lien on debtor's principal residence could be bifurcated) with, In re Halperin, 170 B.R. 500 (Bankr.D.Conn.1994) (residential mortgagee's security interest which extended to rents, royalties, oil and gas rights, profit, stock and fixtures did not remove mortgage from protection of § 1322(b)(2)); In re Harris, 167 B.R. 813 (Bankr.D.S.C.1994) (same); In re Hirsch, 166 B.R. 248 (E.D.Pa.1994) (same)
4
Those cases allowing modification include In re Hoggle, 12 F.3d 1008 (11th Cir.1994); In re Davis, 110 B.R. 834 (Bankr.W.D.Tenn.1989); In re Gadlen, 110 B.R. 341 (Bankr.W.D.Tenn.1990); In re Ford, 84 B.R. 40 (Bankr.E.D.Pa.1988); In re McCollum, 76 B.R. 797 (Bankr.D.Or.1987). Those cases disallowing modification include In re Nicholson, 70 B.R. 398 (Bankr.D.Colo.1987)
5
We do not, however, decide today the question of whether a confirmed plan of reorganization can be modified where the plan itself includes a "drop dead" clause. Compare, In re Grogg Farms, Inc., 91 B.R. 482, 484-85 (Bankr.N.D.Ind.1988) (Court will not permit plan to be modified to avoid consequences of a drop dead clause over the objection of the affected creditor) with, In re Mader, 108 B.R. 643, 647-48 (N.D.Ill.1989) (Mere inclusion of a drop dead clause in a plan does not, ipso facto, preclude the possibility of later modification). We leave that question for another day
1
Most courts require a "substantial default in performance" of the terms of a plan before finding cause to lift or modify a stay, examining both the amount of the post-arrearage debt and the number of payments missed. See, e.g., In re Smith, 104 B.R. 695, 700 (Bankr.E.D.Pa.1989) ("The only real issue before the court in a post-confirmation motion for relief from the automatic stay is whether the debtor has substantially complied with the terms of the confirmed plans.") (citing to numerous cases on this issue); In re Durben, 70 B.R. 14, 16 (Bankr.S.D.Ohio 1986) (stay not lifted because no material default); In re Graves, 59 B.R. 928, 929 (Bankr.E.D.Pa.1986) (cause existed where the debtor completely failed to make payments over a period of three years); In re Shahid, 27 B.R. 673, 674-75 (Bankr.S.D.Ohio 1982) (cause existed where debtor accumulated "formidable" arrearage by failing to make any post-confirmation payments); In re Davis, 11 B.R. 680, 682 (Bankr.E.D.Pa.1981) (refusing to lift stay given short period of time during which payments were skipped)
2
In re Morysville Body Works, Inc., 86 B.R. 51, 57 (Bankr.E.D.Pa.1988) (size of equitable cushion is one factor a court must weigh); In re McCollum, 76 B.R. 797, 799 (Bankr.D.Or.1987) ("[W]hen a creditor is adequately protected by a large equity cushion and the debtor could suffer a substantial loss in the event of foreclosure, it does not appear that relief from stay should automatically follow a default in payment.")
3
While the amount of equity in the property is the primary factor that courts look to in an adequate protection analysis, other factors include the following: the value of the collateral, which was considerable in this case, the likelihood that the collateral will depreciate or appreciate over time, whether insurance coverage is inadequate, whether property taxes are being paid, and the prospects for successful reorganization of the debtor's affairs. See, e.g., In re Briggs Transp. Co., 780 F.2d 1339, 1349 (8th Cir.1985); In re Aqua Assoc., 123 B.R. 192, 196-97 (Bankr.E.D.Pa.1991). Given the incomplete state of the record regarding the latter four of these factors, they have not been considered in this analysis | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1608517/ | 656 N.W.2d 805 (2003)
Ron VIRDEN, Appellant,
v.
BETTS AND BEER CONSTRUCTION CO., INC. and Stroh Corporation, Appellees.
No. 01-0596.
Supreme Court of Iowa.
January 23, 2003.
*806 Channing L. Dutton of Lawyer, Lawyer, Dutton & Drake, L.L.P., West Des Moines, for appellant.
Gregory A. Witke and Matthew J. Haindfield of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellee Betts and Beer Construction Co., Inc.
Richard K. Updegraff and Brian P. Rickert of Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C., Des Moines, for appellee Stroh Corporation.
NEUMAN, Justice.
Plaintiff, Ron Virden, worked in the maintenance department of Indianola High School. On the first day of school in 1997, Virden's supervisor asked him to reinstall an angle iron that had fallen from the ceiling of the school's new wrestling room. As Virden was bolting the angle iron into place, he fell from the top of the ten-foot ladder on which he was standing. He sustained severe injuries to his left leg, requiring several surgeries.
Virden sued the contractors, defendants Betts & Beer Construction and Stroh Corporation, who earlier in the year had installed the wrestling room ceiling. Over Virden's objection, the district court granted these defendants summary judgment. It held their negligence, if any, was not the proximate cause of Virden's injuries. Virden appealed and the court of appeals reversed. We granted further review and, now, vacate the court of appeals decision and affirm the judgment of the district court.
I. Scope of Review/Issue on Appeal.
Because this case reaches us on appeal from a summary judgment ruling, our task is to determine whether the record made before the district court demonstrates "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Iowa R. Civ. P. 1.981. We are obliged to "view the evidence in the light *807 most favorable to the plaintiff, giving him the benefit of every legitimate inference the evidence will bear." Walls v. Jacob North Printing Co., 618 N.W.2d 282, 284 (Iowa 2000).
While negligence cases do not ordinarily lend themselves to summary adjudication, see id., summary judgment may be rendered when the material facts fail to show a causal link between the negligence and the injury. See Ruden v. Jenk, 543 N.W.2d 605, 612 (Iowa 1996). Issues of proximate cause, like negligence, are generally for the jury to resolve. Iowa R.App. P. 6.14(6)(j); Hollingsworth v. Schminkey, 553 N.W.2d 591, 597 (Iowa 1996). They may, however, be decided as a matter of law in an exceptional case. Iowa R.App. P. 6.14(6)(j); Hollingsworth, 553 N.W.2d at 597. We have observed that an exceptional case is one in which after construing the evidence in its most favorable light and resolving all doubts in favor of the party seeking to establish proximate cause, the relationship between cause and effect nonetheless is so apparent and so unrelated to defendant's conduct that no reasonable jury could conclude defendant's fault was a proximate cause of plaintiff's injuries.
Johnson v. Junkmann, 395 N.W.2d 862, 865-66 (Iowa 1986). The question is whether this is such an exceptional case. For the reasons that follow, we think that it is.
II. Analysis.
To sustain his tort claim against these defendants, Virden would have to prove that the defendants owed him a duty of care, they breached that duty, their breach was the actual and proximate cause of Virden's injuries, and he suffered damages. Walls, 618 N.W.2d at 285. Virden's petition claimed that defendants' failure to "properly assemble, install and/or inspect the roof system" required Virden to "put himself at risk to re-install the angle iron," leading to his fall from the ladder.
The summary judgment record makes plain that neither Virden nor his employer contacted the defendants about the fallen angle iron before attempting to effect repairs. Virden also concedes that he sought no help in positioning or securing the ladder, even though several pieces of weight-lifting equipment hampered clear access to the repair site. With this record in mind, we turn to the disputed elements of Virden's claim: duty and causation.
A. Duty. Although the defendants argue as a general proposition that they owed no duty of care to Virden, they are unable to defend the district court's ruling on that ground. It is generally held that
a building or construction contractor is liable for injuries to, or the death of, third persons occurring after the completion of his work and its acceptance by the contractee, where the work is reasonably certain to endanger third persons if negligently prepared or constructed.
Thompson v. Burke Eng'g Sales Co., 252 Iowa 146, 155, 106 N.W.2d 351, 356 (1960). This rule rests on fundamental principles:
[T]he law imposes upon every person who undertakes the performance of an act which, it is apparent, if not done carefully will be dangerous to other persons or the property of other persons the duty to exercise his senses and intelligence to avoid injury, and any such person may be held accountable at law for an injury to person or to property which is directly attributable to a breach of such duty.
57A Am.Jur.2d Negligence § 96, at 150 (1989).
*808 The angle iron that fell from the ceiling of the wrestling room was six feet in length and weighed roughly ten pounds. It can hardly be disputed that lack of due care in welding the angle iron in place would put the foreseeable occupants of the room at considerable risk of injury. In other words, the defendants had a duty to Virden, and others using the room, to construct a ceiling that did not fall apart and injure someone. See Thompson, 252 Iowa at 149, 106 N.W.2d at 353 (common experience teaches that ceilings do not fall in the absence of negligence).
Virden did not suffer, however, from being hit by the angle iron or tripping over it once it fell from the ceiling. In his words, he was injured when the ladder he stood on to replace the fallen hardware "suddenly kicked out from under [him] and [he] fell." That brings us to the crux of the case.
B. Causation. Defendants' breach of their duty of care only constitutes actionable negligence if it is "also the proximate cause of the injury." City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 17 (Iowa 2000). There are two components to the proximate-cause inquiry: "(1) the defendant's conduct must have in fact caused the damages; and (2) the policy of the law must require the defendant to be legally responsible for them." Id.; see also Gerst v. Marshall, 549 N.W.2d 810, 815 (Iowa 1996).
With respect to the first component, a plaintiff must at a minimum prove that the damages would not have occurred but for the defendant's negligence. City of Cedar Falls, 617 N.W.2d at 17; Gerst, 549 N.W.2d at 817. Here, viewing the facts in the light most favorable to Virden, we assume that but for the faulty weld in the angle iron he would not have been perched precariously upon a ladder attempting to fix it. So, minimally, the but-for test of causation would survive defendants' motion for summary judgment.
The but-for test is not the end of the inquiry, however. Virden must also tender proof that defendants' negligent welding of the angle iron was a substantial factor in bringing about his injury. City of Cedar Falls, 617 N.W.2d at 17; Scoggins v. Wal-Mart Stores, Inc., 560 N.W.2d 564, 567 (Iowa 1997). See generally Restatement (Second) of Torts § 431 cmt. a (1965) (distinguishing between "substantial cause" and cause "in the so-called philosophic sense, which includes every one of the great number of events without which any happening would not have occurred.") This aspect of the proximate-cause inquiry focuses on the "proximity and forseeablility of the harm flowing from the actor's conduct." City of Cedar Falls, 617 N.W.2d at 17.
We have observed that the line between "what is sufficiently proximate and what is too remote is often a thin one." Hollingsworth, 553 N.W.2d at 597. We recently drew the line this way:
An injury that is the natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury. But an injury which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable and such an act is either the remote cause, or no cause whatever, of the injury.
Scoggins, 560 N.W.2d at 568-69 (quoting Fly v. Cannon, 836 S.W.2d 570, 574 (Tenn. Ct.App.1992) (emphasis added)).
Here, the district court assessed defendants' role in Virden's mishap as remote rather than foreseeable. Its conclusion stemmed from the undisputed fact that the instrumentality causing Virden's injury *809 was a tipping or collapsing ladder, not a defective angle iron. We agree. The Re-statement describes this distinction as the difference between the "negligence problem" and the "cause problem":
[W]here the negligence of the act consists in its recognizable tendency to subject another to a particular hazard, the actor cannot be subject to liability for any harm occurring otherwise than by the other's exposure to that hazard.
Restatement (Second) of Torts § 430 cmt. a (1965) (citing Restatement (Second) of Torts § 281 cmt. e). Applying this concept to the case before us, we observe that the duty to construct a solid ceiling is not to protect repairmen from perching on tall ladders but to prevent collapsing parts of the ceiling from falling on persons below.
To summarize, the unfortunate outcome of Virden's self-help remedy cannot be said to fall naturally within the scope of the probable risk created by the defendants' failure to properly install the ceiling. Because Virden's fall was not a reasonably foreseeable or probable consequence of defendants' negligence, the district court correctly granted judgment in their favor. We therefore vacate the court of appeals' contrary decision and affirm the judgment of the district court.
COURT OF APPEALS DECISION VACATED; DISTRICT COURT JUDGMENT AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608523/ | 656 N.W.2d 567 (2003)
PTL, LLC, Relator,
v.
CHISAGO COUNTY BOARD OF COMMISSIONERS, Respondent.
No. C5-02-1170.
Court of Appeals of Minnesota.
February 18, 2003.
*569 Mark Duea, Geck & Duea, L.L.C., White Bear Lake, MN, for relator.
Paul D. Reuvers, Kafi C. Linville, Iverson Reuvers, L.L.C., Bloomington, MN, for respondent.
Considered and decided by KLAPHAKE, Presiding Judge, MINGE, Judge, and WRIGHT, Judge.
OPINION
WRIGHT, Judge.
By writ of certiorari, relator PTL, LLC appeals from the Chisago County Board of Commissioners' denial of preliminary-plat approval. Relator argues that it is entitled to approval as a matter of right, because its preliminary plat satisfies the requirements of the zoning and subdivision ordinances in all respects. Alternatively, relator argues that (1) the record does not support the board's determination that the proposed development is inefficient, poorly designed, or incompatible with surrounding land uses, and (2) the board improperly relied on after-the-fact rationalizations not connected with the actual basis for denial of preliminary-plat approval. We reverse and remand.
FACTS
Relator PTL, LLC (PTL) is a real-estate development company seeking to develop approximately 70 acres of land located in a district zoned "agricultural" in Chisago County. To that end, PTL submitted an application for preliminary approval of a plat consisting of 14 five-acre lots to be used for residential housing. The county's zoning ordinance permits single-family dwellings in agricultural districts at a maximum density of one dwelling per five-acre lot. Chisago County, Minn., Zoning Ordinance § 5.06(B)(10) (1997). Accordingly, the Fish Lake Township Board and Plat Review Commission recommended approval of PTL's preliminary plat.
In April 2002, PTL presented its preliminary plat before the Chisago County Planning Commission. At the commission's monthly meeting, Environmental Services Director Marion Heemsbergen stated that, although the proposed lots met the dimensional requirements of the Chisago County Zoning Ordinance, the planning commission preferred the "cluster or cove" design required for smaller lots to the "cookie cutter" design proposed by PTL. See id. § 7.18(B) (requiring cluster design for lots smaller than five acres). Heemsbergen expressed concern that because the proposed development was located in the middle of open farmland, it appeared to conflict with the goals and policies of the Chisago County Comprehensive Guide Plan, a "policy guide for managing growth in Chisago County." Chisago County, Minn., Comprehensive Guide Plan, at ii (1995).[1]
In addition to Heemsbergen, neighbors expressed concern that approval of the preliminary plat would result in increased traffic, unsightly lawns, lower property values, the sale of neighboring farms, and the loss of traditionally farmed agricultural *570 land. One neighbor worried that a proposed road would create a dead end at her field and cause problems with trespassers.
In response to these concerns, PTL indicated that the land was sand rather than prime farmland, and that it had saved large trees to build a buffer between the proposed development and neighboring properties. PTL also indicated that because the plat was close to highway 95 and the city of Cambridge, it was compatible with the comprehensive guide plan's goal of providing low-density housing near a major highway that is close to schools and other towns.
The planning commission concluded that, although the preliminary plat met the dimensional requirements of the zoning ordinance, it would result in conflicting land uses and the unnecessary conversion of farmland, in violation of the comprehensive guide plan. Accordingly, it recommended that approval be denied. PTL declined an opportunity to reconfigure its preliminary plat, opting instead to submit it to the Chisago County Board of Commissioners.
In May 2002, PTL presented its preliminary plat to the board. Once again, Heemsbergen stated that, although the preliminary plat "appeared to be perfectly legal, dimensionally speaking," it was poorly designed and incompatible with surrounding land uses. The board asked PTL to consider reconfiguring the proposed plat with a clustering of building sites and "a more aesthetically pleasing road with a curved design." PTL agreed to resubmit its application to the planning commission.
At the planning commission's next meeting, PTL presented a letter from an assistant county surveyor, stating that the preliminary plat met all the requirements of the ordinance. PTL told the commission that its own surveyor and other professional consultants had indicated that the property did not lend itself to a cluster design. PTL also stated that the Fish Lake Township engineer had recommended against the requested curved road. Noting that nothing had changed since the previous meeting, the planning commission recommended denial once again.
In June 2002, the board of commissioners considered PTL's application a second time and asked Heemsbergen to prepare findings supporting its decision to deny it. The board later adopted Heemsbergen's findings and conclusions and denied approval of the preliminary plat by a 3-2 vote, reasoning that the proposed development (1) was incompatible with existing land uses, in violation of section 1.02(I) of the Chisago County Subdivision Ordinance; (2) would negatively impact the surrounding communities; (3) was inefficient and poorly planned, in violation of section 1.02(C) of the subdivision ordinance; and (4) failed to implement the Chisago County Comprehensive Guide Plan, in violation of section 1.02(I) and (J) of the subdivision ordinance. The board also concluded that (1) the proposed plat contained no buffer from the surrounding incompatible uses; (2) the proposed lots did not meet the minimum dimensional requirements; (3) the preliminary plat failed to show the required setback and calculations showing no net increase of run-off leaving the site; and (4) the proposed road would require ongoing maintenance, would create three double-fronted lots, and could negatively impact an existing house.
This appeal followed. At oral argument, the board withdrew the bases for denial relating to the buffer, the minimum dimensional requirements, the setback and run-off calculations, and the proposed road. Accordingly, we consider only reasons relating to the incompatibility between the proposed and existing land uses, the inefficiency *571 of the proposed design, and the preliminary plat's failure to implement the comprehensive guide plan.
ISSUES
I. Was the board of commissioners' decision to deny approval of a preliminary plat based on legally insufficient reasons, where the preliminary plat proposed a permitted land use and complied with the regulatory standards prescribed for that use?
II. Did the comprehensive guide plan provide the board of commissioners with an independent source of authority for denying approval of a preliminary plat that proposed a permitted use and complied with the regulatory standards specified for that use?
ANALYSIS
On a writ of certiorari, our review is limited to determining whether a county board of commissioners had jurisdiction; whether its proceedings were fair and regular; and whether its decision was unreasonable, without evidentiary support, or based on an incorrect theory of law. BECA of Alexandria, L.L.P. v. County of Douglas, 607 N.W.2d 459, 462 (Minn.App. 2000). Because local officials have broad discretion in deciding whether to grant or deny a proposed land use, we give great deference to their land-use decisions and will reverse only in rare instances where the decision lacks a rational basis. Super-America Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 266 (Minn.App.1995), review denied (Minn. Jan. 5, 1996). A decision lacks a rational basis if it is unsupported by substantial evidence in the record, premised on a legally insufficient reason, or based on subjective or unreasonably vague standards. See C.R. Invs., Inc. v. Vill. of Shoreview, 304 N.W.2d 320, 324-25 (Minn.1981); BECA, 607 N.W.2d at 463; Hurrle v. County of Sherburne, 594 N.W.2d 246, 249 (Minn.App.1999); Good Value Homes, Inc. v. City of Eagan, 410 N.W.2d 345, 348 (Minn.App.1987).
I.
PTL first argues that the board of commissioners exceeded its authority by denying its application for approval of a permitted use on the basis that the proposed development was incompatible with existing land uses and not well planned. Alternatively, PTL argues that the board's determination that the proposed development is incompatible with existing land uses and poorly planned lacks evidentiary support. We agree that the board exceeded its authority in denying PTL's application for preliminary-plat approval and that its denial, therefore, was unreasonable.
Under Minnesota law, when an ordinance specifies minimum standards to which subdivisions must conform, local officials lack discretionary authority to deny approval of a preliminary plat that meets those standards. Chanhassen Estates Residents Ass'n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn.1984); Nat'l Capital Corp. v. Vill. of Inver Grove Heights, 301 Minn. 335, 337, 222 N.W.2d 550, 552 (1974); Hay v. Township of Grow, 296 Minn. 1, 5, 206 N.W.2d 19, 22 (1973); Good Value Homes, 410 N.W.2d at 348; Odell v. City of Eagan, 348 N.W.2d 792, 796 (Minn.App.1984); see also Laurie Reynolds, Local Subdivision Regulation: Formulaic Constraints in an Age of Discretion, 24 Ga. L.Rev. 525, 530 & n. 24 (1990) (noting that a majority of states, including Minnesota, adhere to the rule that local governments have no discretion to deny subdivision approval to proposed plats that conform to the specific prerequisites of a subdivision ordinance). Because a "permitted use" is a use that may be lawfully established if it conforms to the *572 specified regulatory standards, a local government reviews an application for a permitted use to determine only whether the proposed use complies with those standards. Chanhassen Estates, 342 N.W.2d at 340; Chase v. City of Minneapolis, 401 N.W.2d 408, 413 (Minn.App.1987).
The Chisago County Zoning Ordinance expressly authorizes single-family dwellings in agricultural districts at a maximum density of one dwelling per five-acre lot. Chisago County, Minn., Zoning Ordinance § 5.06(B)(10) (1997). The ordinance requires a 300-foot-minimum lot width and a minimum buildable area of one acre. Id. § 5.15.
PTL sought approval to subdivide the land into 14 five-acre lots, each with a 300-foot-minimum width and a minimum buildable area of one acre, to be used for single-family dwellings. Because PTL's preliminary plat proposed a permitted use, the board of commissioners' authority was limited to reviewing PTL's application to determine only if the preliminary plat complied with the standards the zoning and subdivision ordinances prescribe for single-family dwellings in an agricultural district. See Chanhassen Estates, 342 N.W.2d at 340; Chase, 401 N.W.2d at 413.
The board of commissioners conceded that the proposed lots "appeared to be perfectly legal, dimensionally speaking." But it denied preliminary-plat approval nonetheless, citing concerns about the proposed development's negative land-use impacts. To support its denial, the board of commissioners relied on sections 1.02(C) and (I) of the Chisago County Subdivision Ordinance. Section 1.02(C) provides that one of the purposes of the subdivision ordinance is to "[e]ncourage well-planned, efficient, and attractive subdivisions." Chisago County, Minn., Subdivision Ordinance § 1.02(C) (1999). Section 1.02(I) lists the protection and promotion of compatible land uses as one of the ordinance's stated purposes. Id. § 1.02(I).
The board exceeded its authority in denying PTL's preliminary-plat approval for two reasons. First, sections 1.02(C) and (I) are merely general statements of purpose; they do not set forth clear and objective standards a developer must meet to obtain subdivision approval. For that reason, they do not provide a legally sufficient basis to reject a subdivision plan. Odell, 348 N.W.2d at 797 (concluding that provision stating that purpose of subdivision ordinance was "to promote an attractive and stable community" was vague and could not serve as independent basis for disapproving preliminary plat).
Regulatory standards must be sufficiently precise to ensure the application of objective standards to all similarly situated property, to adequately inform landowners of the requirements they must satisfy to gain subdivision approval, and to allow a reviewing court to evaluate noncompliance. See Local Subdivision Regulation, supra, 24 Ga. L.Rev. at 536; see also Kaufman v. Planning and Zoning Comm'n of the City of Fairmont, 171 W.Va. 174, 298 S.E.2d 148, 154-55 (1982) (reversing denial of preliminary-plat approval on ground that statute requiring local government to determine whether distribution of traffic and population promoted "harmonious development" lacked specificity necessary to ensure fair administration and put subdividers on notice of requirements they must satisfy to obtain subdivision approval); Goodman v. Bd. of Comm'rs of the Township of South Whitehall, 49 Pa.Cmwlth. 35, 411 A.2d 838, 841 (1980) (holding that subdivision plan could not be rejected on basis of subdivision ordinance statement of purpose declaring that subdivision must be coordinated with existing developments so that "area as a whole may be developed harmoniously"). *573 Like the regulation in Odell, sections 1.02(C) and (I) lack the specificity necessary to serve as the basis for denying preliminary-plat approval. The board of commissioners' denial of approval, therefore, was based on unreasonably vague standards.
Second, when local officials enact ordinances designating a specific use as permitted in a particular district, they determine by implication that the permitted use is consistent with existing land uses. See Chanhassen Estates, 342 N.W.2d at 340. Thus, when the board of commissioners enacted the county's zoning ordinance and designated single-family dwellings as a use permitted in agricultural districts, the board of commissioners implicitly determined that single-family dwellings are consistent with existing land uses, provided they comply with the specific requirements prescribed for that use. That determination is conclusive until the board of commissioners rezones the land in question or amends the zoning ordinance. Id.
To allow the board to deny approval of a preliminary plat that proposes a permitted use and complies with the regulations specified for that use would, in effect, allow the board to arbitrarily amend the zoning ordinance simply by denying applications for subdivision approval. Such a practice would deprive landowners of adequate guidance in the preparation of preliminary plats and would allow capricious actions based on subjective criteria rather than express zoning provisions enacted to guide land-use decisions. See County Builders, Inc. v. Lower Providence Township, 5 Pa. Cmwlth. 1, 287 A.2d 849, 852 (1972) (stating that subdivision ruling that effectively amends zoning ordinance improperly allows local government to "hold in reserve unpublished requirements capable of general application for occasional use"). Thus, we conclude that the board of commissioners' denial of approval lacked a rational basis.
Because, as a matter of law, local officials must approve a preliminary plat that proposes a permitted use and complies with the regulatory standards specified for that use, the board of commissioners exceeded its authority in denying PTL's application for preliminary-plat approval on the basis that the proposed development was inconsistent with existing land uses and not well planned. The decision to deny preliminary-plat approval was based on legally insufficient reasons. To hold otherwise would undermine the legal doctrine that a subdivision plan that complies with applicable regulations must be approved as a matter of right.
II.
PTL also argues that the board of commissioners lacked legal authority to reject its application for preliminary-plat approval of a permissible land use on the basis that the preliminary plat failed to implement the goals and policies of the county's comprehensive guide plan. We agree.
Compatibility with the public's health, safety, and general welfare of the local government's comprehensive land-use plan is an appropriate consideration in approving an application for a conditional use. See Minn.Stat. § 394.22, subd. 7 (2002) (defining conditional use as use that may be allowed on finding that it conforms to county's comprehensive plan); Hubbard Broad., Inc. v. City of Afton, 323 N.W.2d 757, 763 (Minn.1982) (holding that city council's determination that proposed use was inconsistent with comprehensive plan justified denial of special-use permit); Super-America Group, 539 N.W.2d at 267 (holding that incompatibility between proposed use and "definite and objective standards" in city's comprehensive plan *574 justified denial of conditional-use permit), review denied (Minn. Jan. 5, 1996). But cf. Amoco Oil Co. v. City of Minneapolis, 395 N.W.2d 115, 118 (Minn.App.1986) (holding that reliance on comprehensive plan as basis for denying conditional-use permit was improper where zoning ordinance did not list compliance with comprehensive plan as basis for denial).
In contrast, for a permissible use, the law recognizes that
when a city designates a specific use as permissible in a particular zone or district, the city has exercised its discretion and determined that the permitted use is consistent with the public health, safety, and general welfare and consonant with the goals of its comprehensive plan.
Chanhassen Estates, 342 N.W.2d at 340. But the board of commissioners denied PTL's application for approval of a preliminary plat that proposed a permitted use because the proposed use, although permitted, failed to implement the goals and policies of the comprehensive guide plan. In so doing, the board relied on sections 1.02(J) and 1.05 of the Chisago County Subdivision Ordinance. Section 1.02(J) lists the implementation of the comprehensive guide plan as a stated purpose. Chisago County, Minn., Subdivision Ordinance § 1.02(J). Section 1.05 requires that the subdivision of land "not be inconsistent with" the comprehensive guide plan. Id. § 1.05. Thus, whether the board exceeded its authority depends on whether sections 1.02(J) and 1.05 give the comprehensive guide plan regulatory effect.
Under Minnesota law, each county "has the power and authority to prepare and adopt" a comprehensive plan. Minn.Stat. § 394.23 (2002). The plan is to be implemented by official controls, including zoning and subdivision ordinances. See id. §§ .22, subd. 6; .24, subd. 1. The role of the comprehensive plan is different from that of official controls. The comprehensive plan is "the guide for the future development of the county." Id. § .22, subd. 9. It contains "the policies, statements, goals, and interrelated plans for private and public land and water use, transportation, and community facilities." Id. It also contains recommendations for its execution. Id. Official controls, by contrast, "are the means of translating into ordinances all or any part of the general objectives of the comprehensive plan." Id. § .22, subd. 6.
The comprehensive guide plan adopted by the Chisago County Board of Commissioners similarly has an advisory role that is different from that of the official controls embodied in the zoning and subdivision ordinances. The preamble to the comprehensive guide plan defines the plan as a "policy guide" intended to be "general in nature" and to "serve as a growth management tool for the County." Chisago County, Minn., Comprehensive Guide Plan, at ii (1995). The preamble defines zoning and subdivision ordinances as the tools for implementing the goals and policies of the comprehensive guide plan. Id. (providing that "[i]mplementation of the plan will be accomplished through * * * the County's zoning and subdivision ordinances"). The county's subdivision ordinance, in turn, provides that the ordinances are "the means by which the county controls the land use outlined in the Comprehensive Guide Plan." Chisago County, Minn., Subdivision Ordinance, at i.
In denying preliminary-plat approval based on the conclusion that the proposed plat was inconsistent with the comprehensive guide plan, the board of commissioners failed to recognize the uniquely advisory role of the comprehensive guide plan and elevated it to the stature of the zoning and subdivision ordinances, both of which have the force of law. This constituted error for the following reasons.
*575 First, giving the comprehensive guide plan regulatory effect ignores the statute, the subdivision ordinance, and the comprehensive guide plan itself, all of which define the plan as a policy guide to be implemented by official controls. A majority of jurisdictions treat comprehensive plans as advisory, notwithstanding ordinance provisions, such as the one before us, requiring that the subdivision of land be "consistent with" or "in accordance with" a comprehensive plan. Cf. Stuart Meck, The Legislative Requirement that Zoning and Land Use Controls be Consistent with an Independently Adopted Comprehensive Plan: A Model Statute, 3 Wash. U. J.L. & Pol'y 295, 297-306 (2000) (noting that despite the widespread adoption of the "consistently with" or "in accordance with" language in enabling acts, a majority of states treat comprehensive plans as advisory).
Second, elevating the comprehensive guide plan to the level of zoning and subdivision ordinances ignores the stated purpose of the comprehensive guide plan, which is merely to guide the board in setting zoning standards. It is those zoning standards, implicit in the zoning and subdivision ordinances, that govern the board's decision making when reviewing a specific proposal. The zoning provisions at issue here permit the use of agricultural land for single-family dwellings at a maximum density of one dwelling per five-acre lot. See Chisago County, Minn., Zoning Ordinance § 5.06(B)(10). The standards established in the zoning ordinance are conclusive until the board rezones the district or amends the zoning ordinance through proper legislative channels. See Chanhassen Estates, 342 N.W.2d at 340.
Third, even if the comprehensive guide plan had the force of law, its provisions are "intended to be general in nature" and are thus legally insufficient as a basis for denying an application for preliminary-plat approval. See Comprehensive Guide Plan, at ii; C.R. Invs., Inc., 304 N.W.2d at 327-28 (holding that provision in comprehensive plan requiring developer to demonstrate that proposed use "is consistent with the [comprehensive] plan's general intent and purpose" was unreasonably vague, subjective, and did not furnish ground for denial of special-use permit). The comprehensive guide plan in this case provides that the county's agricultural goals are to
[p]rotect long term agriculture as a vital element in the County economy[,][p]revent the unnecessary conversion of prime farmland to non-farm uses[,][and][p]revent incompatible land uses in the agricultural areas.
Chisago County Comprehensive Guide Plan at 28. Like the provisions of the comprehensive plan in C.R. Invs. Inc., the provisions of the Chisago County Comprehensive Guide Plan are unreasonably vague and subjective for the purposes of furnishing a basis for denying approval of PTL's preliminary plat.
Moreover, because the county's zoning and subdivision ordinances implement the comprehensive guide plan, a preliminary plat that conforms with the requirements of zoning and subdivision ordinances conforms, by definition, with the comprehensive guide plan. Chanhassen Estates, 342 N.W.2d at 340. PTL's preliminary plat conforms with the requirements of the zoning and subdivision ordinances. Accordingly, the decision to deny PTL's preliminary plat on the basis that it fails to implement the comprehensive guide plan is premised on a legally insufficient reason.
We are mindful of the demands of land-use management. It is certainly proper for the board of commissioners to consider aesthetics, historical uses of the land, and the public cost of providing services for a given land use. But these considerations *576 must be reflected with sufficient specificity in the land-use ordinances. This decision does not preclude future revision of the zoning and subdivision ordinances to address these considerations.
DECISION
The board of commissioners exceeded its authority in denying PTL's application for preliminary-plat approval on the basis that the proposed development was incompatible with existing land uses, was not well planned, and failed to implement the goals and policies of the comprehensive guide plan. The board's withdrawal, at oral argument, of the additional bases for denial of preliminary-plat approval makes it unnecessary for us to consider PTL's challenge to the board's reliance on those bases. We reverse the board's denial of preliminary-plat approval and remand to the board of commissioners for proceedings not inconsistent with this opinion.
Reversed and remanded.
NOTES
[1] Among other things, the comprehensive guide plan seeks to protect long-term agriculture, to prevent incompatible land uses, and to encourage rural residential housing in areas where support services and market conditions exist. Id. at 28-29. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/739926/ | 111 F.3d 1295
37 Fed.R.Serv.3d 353
Rose Mary GREEN, Personal Representative of the Estate ofMalice Wayne Green, Deceased, Plaintiff-Appellee,Jessie Green, Jr.; Ollie Frye; Kim Nihiser, as Mother andNext Friend of Jacqueline Dennison, a minor; Peggie Wright;First Busey Trust & Investment Company, as guardian of theEstate of Jacqueline Dennison; Shakieta Strawter; LachitaMiller; Edniquech Grubbs; Patricia Green; Treise Green;Sherry Green, Rose Mary Green; and Monica Green, Claimants-Appellees,Ernest L. Jarrett (95-1940); Brunetta Brandy (95-1941),Attorneys, Movants-Appellants,v.Larry NEVERS, et al., Defendants.
Nos. 95-1940, 95-1941.
United States Court of Appeals,Sixth Circuit.
Argued Jan. 27, 1997.Decided April 29, 1997.Rehearing and Suggestion for Rehearing En Banc Denied June 6, 1997.
Rose Mary Green (briefed), Detroit, MI, pro se.
Judith A. McNair, Detroit, MI, for plaintiff-appellee.
Ernest L. Jarrett (argued and briefed), Detroit, MI, for Ernest L. Jarrett.
Justin C. Ravitz, Patrick J. Burkett (argued), Sommers, Schwartz, Silver & Schwartz, Southfield, MI, for Jessie Green, Jr., Ollie Frye, Patricia Green, Treise Green, Sherry Green, Monica Green.
Ralph J. Sorlin, Reosti, James & Sirlin, Detroit, MI, for Nihiser.
Thomas A. Ricca, Detroit, MI, for Peggie Wright.
Joseph W. Phebus (briefed), Phebus, Winkelmann, Wong & Bramfeld, Urbana, IL, for First Busey Trust and Investment Co.
Kenneth N. Hylton, Detroit, MI, for Shakieta Strawter, Lachita Miller.
Saunders V. Dorsey (argued and briefed), Farmington Hills, MI, Jerome P. Barney (argued), Jerome P. Barney & Associates, Detroit, MI, for Edniquech Grubbs.
Donald A. Thigpen, Jr. (briefed), National Bar Ass'n, General Counsel, Washington, DC, amicus curiae National Bar Ass'n.
James W. McGinnis (argued and briefed), Detroit, MI, for Brunetta Brandy.
Before: LIVELY, MERRITT, and DAUGHTREY, Circuit Judges.
LIVELY, Circuit Judge.
1
Malice Green died on November 5, 1992, allegedly as the result of a beating by Detroit police officers. Four days later attorney Brunetta Brandy, now an appellant, filed a wrongful death action in a Michigan state court in the name of Rose Mary Green, widow and personal representative of Malice Green's estate. Within less than one month the City of Detroit offered to settle the case for $5.25 million. Now, more than four years later, two of the many lawyers involved in the case are contesting the amount and division of the district court's attorney fee award. It is time to bring an end to this unseemly spectacle.
I.
2
The caption of the complaint filed in state court showed only Rose Mary Green as the plaintiff. Following removal of the case to federal court, where it was assigned to Judge Gerald Rosen, however, attorney Gerald Thurswell appeared on behalf of Malice Green's oldest daughter, Edniquech Grubbs. Although Thurswell stated that Ms. Grubbs had been appointed co-personal representative with Mrs. Green, he did not file a copy of the order appointing Ms. Grubbs with the document.
3
After an abortive attempt by attorney Brandy to dismiss the action pursuant to FED.R.CIV.P. 41(a)(1)(i), the attorneys then on record as representing the parties, including the defendant City of Detroit, advised the court that they desired to place a settlement agreement on the record. The attorneys also sought to seal the record, but the court denied this request noting the widespread publicity and interest in the case. Disturbed by the fact that the settlement agreement provided for payment of $1.7 million in attorney fees even though very little legal work had been performed, the court directed counsel to file affidavits relating to the amount of work performed by each attorney in the case. To clear the record concerning the attempted dismissal, the parties stipulated to reinstate the case. All of these steps had been taken by December 28, 1992, less than two months after Malice Green's death.
4
Shortly thereafter, attorney Thurswell, who represented several individual claimants as well as Ms. Grubbs as co-personal representative, advised the court that he had been dismissed by several of the claimants and he filed a motion to withdraw as counsel for all of his clients. The court set a hearing on the motion to withdraw for January 11, 1993. During the next week, attorney Justin Ravitz filed an appearance on behalf of Malice Green's parents and three sisters and a later appearance on behalf of Ollie Frye, the decedent's maternal grandmother. Although he did not file a formal notice of appearance until January 14, 1993, attorney Joseph Phebus notified the court at about the same time that he would be representing Kim Nihiser, the mother and next friend of Jacqueline Dennison, a minor child of the decedent.
5
On January 7, 1993, attorney Brandy filed a notice of appearance as co-counsel for Edniquech Grubbs, for whom attorney Thurswell had previously appeared, and a stipulation to dismiss under FED.R.CIV.P. 41(a)(1)(ii) signed by John Quinn, an attorney for the City of Detroit, and Ms. Brandy as "attorney for plaintiff." Judge Rosen met with all counsel on January 11, 1993. At that time, the attorneys advised the court that the proposed settlement had broken down but that the parties wished to pursue further negotiations. When the court inquired about the pending stipulation to dismiss, attorneys Ravitz and Phebus stated that they had not signed, and indeed objected to, the stipulation. On January 14, 1993, attorney Phebus filed a formal objection to the dismissal, contending that dismissal would jeopardize Jacqueline Dennison's rights.
6
On January 15, 1993, attorney Saunders Dorsey filed an appearance on behalf of Edniquech Grubbs, in her representative capacity, and on February 1, attorney Jerome Barney filed an appearance on behalf of Edniquech Grubbs, also in her representative capacity. On that same date the City of Detroit filed a motion to dismiss arguing that it was protected by governmental immunity.
7
The court granted Mr. Thurswell's motion to withdraw as attorney for Edniquech Grubbs and others on March 4, 1993, and issued a notice setting a scheduling conference for March 25, 1993. The notice directed the attorneys to be prepared to discuss several aspects of the case, including the court's subject matter jurisdiction. Prior to the scheduling conference, the court was advised that the parties had reached a final settlement with the city for $5.25 million allocating different amounts to each of the claimants and $1.2 million to the attorneys for the estate. At the scheduling conference, counsel for the estate advised the court of their position that the court no longer had jurisdiction because of the stipulated dismissal and that they intended to proceed in probate court. The court invited briefing on its jurisdiction, and several parties filed briefs addressing the issue. On April 13, the court entered an order finding the stipulation to dismiss ineffective and retaining jurisdiction.
8
After unsuccessful motions by various counsel for reconsideration, to proceed in probate court, and to disqualify the judge, the court entered a consent judgment on July 18, 1994. This document granted judgment in the amount of $5.25 million in favor of the estate and against the City of Detroit only, the individual defendants never having been served. The court conducted a hearing on the distribution of the $5.25 million on October 21, 1994. At that time, the court also heard arguments on several jurisdictional issues. On November 7, 1994, the court issued an opinion denying the various motions to dismiss, clarifying the distribution of settlement proceeds, determining that no valid contingent fee agreement existed, and withholding determination of the issue of attorney fees. At the same time, the court also entered a separate order directing partial payment of the settlement proceeds to the claimants. After the dismissal of an appeal and petition for a writ of mandamus concerning the November 7, 1994 rulings, the court reviewed the affidavits, briefs, and supplemental information submitted by attorneys Brandy, Jarrett, and Dorsey and entered an order setting the amount of attorney fees for each on July 28, 1995.
9
Having previously found that none of the attorneys had binding contingent fee agreements with the Malice Green estate, the court considered the amount of fees they would be entitled to receive from the estate on a quantum meruit basis. Applying the factors listed in Rule 1.5(a) of the Michigan Rules of Professional Conduct, the court awarded fees as follows: Ernest Jarrett, who worked with Attorney Brandy under a "fee sharing agreement," $250,000; Brunetta Brandy, $173,000; Saunders Dorsey, who represented Rose Mary Green individually, $170,000. This order also directed the distribution of the remaining settlement proceeds, which had been escrowed awaiting determination of fees.
II.
10
This court consolidated attorney Brandy and Jarrett's separate appeals. The prolix arguments of the appellants boil down to four issues:
11
(1) Whether the district court had subject matter jurisdiction;
12
(2) Whether the case should have been dismissed pursuant to Rule 41;
13
(3) Whether the district court erred in rejecting the contingent fee agreement and setting the amount of attorney fees;
14
(4) Whether Judge Rosen should have disqualified himself.
15
We discuss these issues in the order listed.
A.
16
The attorney-appellants assert that the district court lacked subject matter jurisdiction over this wrongful death action, contending that the complaint alleged no federal claims against the City of Detroit. Review of the complaint belies the appellants' contention. Count IV of the complaint alleges that the City of Detroit's police department and chief of police "permitted, encouraged, tolerated and ratified a pattern and practice of unjustified, unreasonable, and excessive force by police officers." The complaint further alleges that the City of Detroit "has maintained no system of review or has failed to identify instances of improper use of force or to discipline, more closely supervise, or retrain specific officers who in fact improperly used such force," and that "[t]he foregoing acts, omissions, and systematic deficiencies are policies and customs" of the city. As the district court noted, the allegations in Count IV are sufficient to state a claim for relief under 42 U.S.C. § 1983. See City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Monell v. Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In addition, Count V of the complaint specifically alleges deprivation of federal constitutional rights and incorporates all of the allegations in the previous counts. Thus, the case was properly removed based upon the federal claims appearing on the face of the complaint, which alleged causes of action over which the district court would have had original jurisdiction. The district court also properly exercised supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a) because these claims arose from the same occurrence that formed the basis of the federal claims.B.
17
As noted, on January 7, 1993, attorney Brandy, representing Mrs. Green as personal representative of the Malice Green estate, and attorney Quinn, representing the City of Detroit, filed a "Stipulation to Dismiss Action without Prejudice and without Costs." The stipulation stated that the "[t]he plaintiff and the defendant City of Detroit, the only defendant that has been served, stipulate to entry of the dismissal pursuant to FRCP 41(a)(1)." After substantial briefing, the district court noted that courts addressing Rule 41(a)(1)(ii) motions "have routinely looked to 'parties in interest' beyond those named in the case caption." The court then rejected the argument that the co-personal representatives were the only "parties who have appeared in this case," and found the putative stipulation defective because "all the parties who have appeared in the action" did not sign the stipulation. Alternatively, the court also found that counsel, by their actions, had waived the right to a Rule 41(a) dismissal. The court also stated that it exercised its inherent power to deny dismissal. We need not consider the waiver argument, as we conclude that the district court correctly found that the motion was not signed by all the parties who had appeared in the action and acted well within its inherent power in refusing to permit dismissal under the circumstances of this case.
Rule 41(a)(1) provides, in pertinent part:
18
(a) Voluntary Dismissal: Effect Thereof.
19
(1) By plaintiff; by Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. (emphasis added).
20
At the time the January 7, 1993 stipulation was filed, the following attorneys had entered appearances: Brunetta Brandy, attorney for personal representative Rose Mary Green; Ernest L. Jarrett, co-counsel for personal representative Rose Mary Green; Gerald Thurswell, attorney for Edniquech Grubbs and several claimants; Justin Ravitz, attorney for the decedent's parents, three sisters, and maternal grandmother; John P. Quinn, attorney for the City of Detroit; Brenda Braceful, attorney for the City of Detroit. An additional attorney, John Phebus, had contacted the court regarding his representation of Kim Nihiser, mother and next friend of Jacqueline Dennison, a minor child of the decedent. Mr. Phebus filed a formal notice of appearance on January 14, 1993. Although Ms. Brandy claims to have been the attorney for Edniquech Grubbs at the time the stipulation was filed, Mr. Thurswell's motion to withdraw as counsel had not yet been granted and he was still Ms. Grubbs's counsel of record.
21
Attorneys Brandy and Jarrett contended that because Ms. Brandy represented the estate and Mr. Quinn the city, the stipulation was signed by all the parties. Rejecting this argument, the district court looked beyond the case caption and considered the next of kin who would share in a wrongful death judgment or settlement to be "parties who had appeared in the action" because of their interest in the outcome of the case and inability to assert their claims on their own behalf. Inasmuch as the attorneys representing their interests did not sign the stipulation and because Mr. Thurswell did not sign, the court determined that the stipulation did not effect a Rule 41(a)(1) dismissal. The court rejected the argument that because only a personal representative may bring an action for wrongful death under Michigan law, M.C.L.A. § 600.2922(2), the heirs and next of kin of Malice Green were only "interested persons," not proper parties in the removed action. As stated, we agree with the district court's ruling and reasoning.
22
The appellants also challenge the district court's resort to its inherent power in refusing to give effect to the stipulated dismissal. They contend that Rule 41(a)(1), unlike Rule 41(a)(2), which contemplates the exercise of judicial discretion and requires a court order to effectuate dismissal, operates automatically and allows parties to withdraw an action from federal court for any reason. While a properly stipulated dismissal under Rule 41(a)(1)(ii) is self-executing and does not require judicial approval, Aamot v. Kassel, 1 F.3d 441, 445 (6th Cir.1993); Hinsdale v. Farmers Nat'l Bank & Trust Co., 823 F.2d 993, 995-96 (6th Cir.1987), a court may decline to permit a voluntary dismissal when required to avoid short-circuiting the judicial process, or to safeguard interests of persons entitled to the court's special protection. Thus, a "court, exercising its inherent powers, may look behind it [a settlement] to determine whether there is collusion or other improper conduct giving rise to the dismissal." United States v. Mercedes-Benz of North America, 547 F.Supp. 399, 400 (N.D.Cal.1982). See also Thomsen v. Terrace Navigation Corp., 490 F.2d 88 (2d Cir.1974) (court has inherent power to vacate a voluntary discontinuance where counsel dismissed an action without client's consent); Crawford v. Loving, 84 F.R.D. 80, 87 (E.D.Va.1979) (a construction of Rule 41(a)(1)(ii) depriving "a person under a disability of the protection of the Court is highly unjust" and should not be followed).
23
At least one claimant--Jacqueline Dennison--was a minor and thus under a disability, and her attorney did not sign the stipulation. Even if the attorney had signed the stipulation on behalf of Jacqueline's mother and next friend, the court would have been remiss if it had not made an independent determination that the settlement was in the minor's best interest. Crawford v. Loving is persuasive. That case involved the settlement of a civil rights action brought under 42 U.S.C. § 1983 by a state prisoner against prison officials. The prisoner was legally incompetent and his next friend joined with the defendants in a stipulated dismissal pursuant to Rule 41(a)(1)(ii). In refusing to give effect to the stipulation, the court stated:
24
Logic joins the law in compelling the conclusion that an incompetent person's suit cannot be ended upon settlement followed by the filing of a stipulation of dismissal. It is only when a settlement occurs that the Court's duty to oversee the settlement arises. If that duty could be aborted by the filing of a stipulation, the role of the Court would be effectively avoided. Neither law nor logic sanction such a result.
25
84 F.R.D. at 87.
26
Beyond these considerations is the fact that the Michigan Wrongful Death Act requires a settlement to be approved by the trial court as a safeguard to protect the interests of the claimants. M.C.L.A. § 600.2922(5). The "named" parties should not be permitted to circumvent the approval process by stipulation. The district judge's refusal to give legal effect to the stipulation, when he was aware that at least two attorneys, Phebus and Ravitz, one of whom represented a minor claimant, had voiced objection to the stipulation on behalf of their clients was entirely proper.
27
We conclude that the district court did not abuse its broad discretion and properly exercised its inherent power to determine whether the stipulation of dismissal should be given effect.
C.
28
Attorneys Brandy and Jarrett argue that the district court was bound to award them an attorney fee of one-third of the estate's recovery in accordance with a contingent fee agreement. They rely on the fact that three days after Malice Green's death, Ms. Brandy wrote separate letters to Mrs. Green and Ms. Grubbs outlining the terms of her representation and that each of the addressees signed one of the letters acknowledging and agreeing to the terms. Neither letter specifically referred to the addressee as a personal representative of the estate. Rather, the letters appear to have been addressed to Mrs. Green and to Ms. Grubbs individually and to have been acknowledged and agreed to by them as individuals rather than as personal representatives. Since both addressees would have shared individually in any recovery by the estate as widow and daughter of the decedent, the letter agreements on their face do not bind the estate. The letters refer to a fee computed "on the net sum recovered by you." Nothing in the letters indicates that the estate is to pay Ms. Brandy a fee.
29
Even if the letter to Ms. Grubbs is construed as referring to her as an estate representative, it raises several questions. In the first place, the complaint recites that Rose Mary Green was the duly appointed personal representative of the estate. She is the only plaintiff and only personal representative named in the complaint; there is no mention of Ms. Grubbs. Further, when Ms. Grubbs first surfaced as "co-personal representative," her appearance was entered by Mr. Thurswell, not by Ms. Brandy. If Ms. Grubbs was appointed co-personal representative at the time the complaint was filed, she should have been a plaintiff. If she had not been appointed at that time, the agreement that she signed as co-personal representative was a nullity.
30
Faced with these discrepancies and noting the obvious haste with which attorney Brandy moved, the court naturally proceeded cautiously in dealing with the fee agreement. Further, although the court was aware of only one minor claimant at the time it rejected the contingent fee agreement, before the distribution order was entered two other minor claimants--grandchildren of Malice Green--had appeared. Because Michigan law requires co-personal representatives to act jointly to bind an estate, Action Auto, Inc. v. Anderson, 165 Mich.App. 620, 419 N.W.2d 36 (1988), and the co-personal representatives did not jointly sign any fee agreement, the court found no valid fee agreements between the estate and any lawyer.
31
There are many reasons for upholding the district court's rejection of the contingency fee agreement. In the first place, it is not at all clear that the co-personal representatives acted jointly, a requirement of Michigan law, in attempting to bind the estate to a contingent fee agreement. More compelling, however, is the rule that a contract for contingent fees "should always be subject to the supervision of a court, as to its reasonableness." Krause v. Rhodes, 640 F.2d 214, 219 (6th Cir.), cert. denied, 454 U.S. 836, 102 S.Ct. 140, 70 L.Ed.2d 117 (1981). Courts have broad authority to refuse to enforce contingent fee arrangements that award excessive fees. A fee can be unreasonable and subject to reduction without being so "clearly excessive" as to justify a finding of breach of ethical rules. McKenzie Const., Inc. v. Maynard, 758 F.2d 97, 100 (3rd Cir.1985). Moreover, "[w]hen a court is called on to approve ... [a settlement involving a minor], it must consider and then determine what constitutes fair and reasonable compensation to the attorney regardless of any agreement specifying an amount, whether contingent or otherwise." Dean v. Holiday Inns, Inc., 860 F.2d 670, 673 (6th Cir.1988). Minors' interests are subject to the court's protection. Id.; Centala v. Navrude, 30 Mich.App. 30, 32-33, 186 N.W.2d 35 (1971).
32
The court in Krause v. Rhodes, also an action under 42 U.S.C. § 1983, described the trial court's authority to fix attorney compensation and prescribed a limited standard of review:
33
A federal district judge has broad equity power to supervise the collection of attorneys' fees under contingent fee contracts. As has often been stated,
34
where an attorney recovers a fund in a suit under a contract with a client providing that he shall be compensated only out of the fund he creates, the court having jurisdiction of the subject matter of the suit has power to fix the attorney's compensation and direct its payment out of the fund.
35
Garrett v. McRee, 201 F.2d 250, 253 (10th Cir.1953), quoted in Cappel v. Adams, 434 F.2d 1278, 1279 (5th Cir.1970). Further, "[t]he sum determined to be a reasonable attorney's fee is within the discretion of the district court; before a reviewing court should disturb the holding there should be a clear showing that the trial judge abused his discretion." Cappel v. Adams, supra, at 1280. Thus, an attorney's right to contract for a contingent fee is not completely beyond judicial control.
36
640 F.2d at 218 (footnote omitted). See also United States ex rel. Taxpayers Against Fraud v. General Electric, 41 F.3d 1032, 1047 (6th Cir.1994) ("an attorney's right to contract for a contingent fee is not completely beyond judicial control." (quoting Krause )); Kalyawongsa v. Moffett, 105 F.3d 283, 286 (6th Cir.1997) ("federal district 'judges have broad equity power to supervise the collection of attorneys' fees under contingent fee contracts.' " (quoting Krause )).
37
In its order setting the appellants' fees the district court applied the factors set forth in the Michigan Rules of Professional Conduct and carefully analyzed each factor in light of the information furnished by the appellants. Neither appellant supplied the court with detailed records of the time spent on the case. Ms. Brandy claimed she spent 60% of her time on the case between November 1992 and August 1993. The district court gave her the benefit of that estimate, crediting her with 865 hours. Mr. Jarrett was "confident that [he] devoted hundreds, perhaps as many as 1,000 hours, to the case." The district court credited him with 700 hours. Despite this generous treatment of very sketchy demonstrations of hours expended, the appellants make multiple arguments that the fees awarded are too low. We disagree.
38
The record reflects that the City of Detroit offered the $5.25 million settlement less than three weeks after the filing of the complaint, motivated, at least in part, by the public outcry attendant to the death of Malice Green. The estate achieved a valuable result for Malice Green's survivors, but that value arose more from the notoriety of the case than from the effort of either Mr. Jarrett or Ms. Brandy. Attorney Brandy argues that the district court erred in finding that the case presented no novel or difficult questions of law relating to the City's municipal liability. This contention is patently meritless given a wealth of Supreme Court cases relating to the issue, the frequency with which police brutality suits are brought, and the City of Detroit's quick settlement offer.
39
The appellants have completely failed to demonstrate that the district court abused its discretion either in rejecting the contingent fee agreement or in setting the amount of quantum meruit attorney fees to be paid from the settlement.
D.
40
Several of the attorneys made motions at various stages of the proceedings seeking to have Judge Rosen disqualify himself. They relied on both 28 U.S.C. § 144 and 28 U.S.C. § 455.1
41
Judge Rosen, noting that §§ 144 and 455 are to be read in pari materia, Easley v. University of Michigan Board of Regents, 853 F.2d 1351, 1355 (6th Cir.1988), and that motions brought under both sections are entrusted to the sound discretion of the trial court, In re M. Ibrahim Khan, P.S.C., 751 F.2d 162, 165 (6th Cir.1984), found that he was not required to transfer the motions to another judge and that the motions were wholly without merit. The court observed that disqualification under both § 144 and § 455 must be predicated "upon extrajudicial conduct rather than on judicial conduct," United States v. Story, 716 F.2d 1088, 1091 (6th Cir.1983)(quoting City of Cleveland v. Krupansky, 619 F.2d 576, 578 (6th Cir.), cert. denied, 449 U.S. 834, 101 S.Ct. 106, 66 L.Ed.2d 40 (1980)), and upon "a personal bias 'as distinguished from judicial one,' arising 'out of the judge's background and association' and not from the 'judge's view of the law.' " Id. at 1090 (quoting Oliver v. Michigan State Board of Education, 508 F.2d 178, 180 (6th Cir.1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975)). The court also found one of the motions to be untimely.
42
We agree with the district court's conclusions. There is no evidence of bias in this record. There is evidence of impatience with attorneys whose legal work was at times shoddy, and who spent a great deal of time quarreling among themselves. The court also displayed a natural skepticism when asked to seal the record of a case in which the city offered to pay a large sum of money within a few weeks of the incident giving rise to the lawsuit before conducting any discovery. This skepticism was further aroused by the fact that the proposed settlement, reached at a time when the only legal work by plaintiff's counsel consisted of an unexceptional complaint, provided for an attorney fee of $1.7 million to be paid to Ms. Brandy and her fee-sharing associate, Mr. Jarrett.
43
The conclusory and unsubstantial allegations in the motions to disqualify Judge Rosen required no action other than the response given in the orders denying these motions.
44
The judgment of the district court is AFFIRMED.
1
28 U.S.C. § 144 provides:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such a time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
28 U.S.C. § 455 provides:
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it.... | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1608424/ | 21 So. 3d 552 (2009)
Sidharth SOLANKI, Individually, and as Wrongful Death Beneficiary; Devesha S. Solanki and Avani S. Solanki, Minors by and through their Father and Natural Guardian, Sidharth Solanki, and Neha Solanki, Wrongful Death Beneficiaries of Nilima Solanki, Deceased, and all other Wrongful Death Beneficiaries of Nilima Solanki, Deceased
v.
Melvin Tyrone ERVIN and the Merchants Company.
No. 2008-CA-01083-SCT.
Supreme Court of Mississippi.
August 27, 2009.
*555 Don H. Evans, Harry Merritt McCumber, Christie Evans Ogden, Jackson, attorneys for appellants.
Roy H. Liddell, Ridgeland, Joseph Spencer Young, Jr., attorneys for appellees.
Before GRAVES, P.J., RANDOLPH and PIERCE, JJ.
GRAVES, Presiding Justice, for the Court.
¶ 1. This case arises out of a two-vehicle accident that took place on Interstate 220 in Hinds County, Mississippi, on March 29, 2007. As a result of the accident, one of the drivers died. Her husband and wrongful-death beneficiaries filed suit against the other driver and his employer, alleging negligence. After a trial, the jury found in favor of the defendants. Thereafter, the plaintiffs appealed to this Court.
FACTS
¶ 2. On March 29, 2007, Nilima Solanki was driving southwest[1] on I-220 in Hinds County, Mississippi, when her car, a Toyota Camry, broke down. It is not known exactly what happened to the car, but, ultimately, it stopped in the left lane of I-220, near the yellow line. The portion of I-220 in question did not have a shoulder lane on the left side, although there is a grassy median between the westbound lanes and eastbound lanes of the highway. Melvin Tyrone Ervin (Ervin) was also driving southwest on I-220 on March 29, 2007. He was driving an eighteen-wheeler tractor-trailer to deliver groceries for his employer, The Merchants Company (Merchants). Although Ervin was initially driving in the right lane of I-220, at some point, he moved into the left lane.
¶ 3. The facts regarding the exact chain of events leading up to the collision between Ervin's truck and Nilima Solanki's car are unclear and are disputed by the parties. It is undisputed, however, that Ervin's truck collided with Nilima Solanki's car on March 29, 2007. After the accident, Nilima Solanki's car came to a rest in the right lane of I-220. Ervin's tractor-trailer slid down the highway on its side before coming to rest predominantly in the left lane of the highway. As a result of the accident, Nilima Solanki suffered brain trauma and died in the hospital nine days later. Additional facts will be provided in the analysis below.
¶ 4. On April 10, 2007, Nilima Solanki's husband, Sidharth Solanki (Solanki), and Nilima Solanki's oldest daughter, Neha Solanki[2] (together, the Solankis), filed a complaint in Hinds County Circuit Court against Ervin, Merchants, ten John Doe Person(s), and ten John Doe Entity(ies). The Solankis alleged negligence and sought compensatory and punitive damages. On May 8, 2007, Merchants filed an answer, affirmative defenses, and a counterclaim. On the same day, Ervin filed an answer and affirmative defenses. On May 24, 2007, the Solankis filed an answer and defenses to Merchants' counterclaim.
¶ 5. On January 15, 2008, Merchants and Ervin (together, the Defendants) filed a motion for partial summary judgment, arguing *556 for judgment as a matter of law with regard to the Solankis' claim for punitive damages. On January 24, 2008, Defendants filed a motion for partial summary judgment as to the Solankis' claim of negligent infliction of emotional distress. On the same day, Defendants also filed a motion for partial summary judgment regarding the Solankis' negligence-per-se claim. On January 29, 2008, the Solankis responded to Merchants' motion for partial summary judgment with respect to punitive damages. On February 11, 2008, the Solankis responded to the two remaining partial summary judgment motions. After a hearing on February 15, 2008, the trial court granted partial summary judgment as to the Solankis' claims for punitive damages and negligent infliction of emotional distress, but denied partial summary judgment as to their negligence-per-se claim.
¶ 6. On April 8, 2008, the matter proceeded to trial, at the conclusion of which the jury returned a verdict in favor of Defendants. The verdict of the jury stated: "We, the jury, find for the Defendants, The Merchants Company and Melvin Tyrone Ervin." Accordingly, the trial court entered final judgment in favor of Defendants on April 11, 2008. On April 21, 2008, the Solankis timely filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Defendants filed a response on April 30, 2008. On May 2, 2008, the trial court denied the Solankis' motion. On May 30, 2008, the Solankis timely appealed to this Court.
ANALYSIS
¶ 7. The Solankis raise three issues on appeal, which have been restated and reordered in the analysis below.
I. Whether the Trial Court Properly Denied the Solankis' Motion for Directed Verdict and their Request for a Peremptory Instruction.
¶ 8. This Court reviews a trial court's grant or denial of a motion for directed verdict de novo. See, e.g., Pierce v. Cook, 992 So. 2d 612, 616 (Miss.2008); Pace v. Fin. Sec. Life, 608 So. 2d 1135, 1138 (Miss.1992). A motion for directed verdict tests the legal sufficiency of the plaintiff's evidence. Bankston v. Pass Rd. Tire Ctr., Inc., 611 So. 2d 998, 1003 (Miss.1992). This Court has stated that
[i]n deciding whether a directed verdict... should be granted, the trial judge is to look solely to the testimony on behalf of the party against whom a directed verdict is requested. He will take such testimony as true along with all reasonable inferences which can be drawn from that testimony which is favorable to that party, and, if it could support a verdict for that party, the directed verdict should not be given. If reasonable minds might differ as to this question, it becomes a jury issue.
White v. Thomason, 310 So. 2d 914, 916-17 (Miss.1975) (citing Williams v. Weeks, 268 So. 2d 340 (Miss.1972); Jones v. Phillips, 263 So. 2d 759 (Miss.1972)). This Court has also held that "[i]n considering the evidence and all reasonable inferences, the court must determine whether the evidence is so overwhelmingly against [the nonmovant] that no reasonable juror could have found in her favor." Fox v. Smith, 594 So. 2d 596, 603 (Miss.1992) (citations omitted). "[T]his Court considers `whether the evidence, as applied to the elements of a party's case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.'" Spotlite Skating Rink, Inc. v. Barnes, 988 So. 2d 364, 368 (Miss.2008) (quoting White v. Stewman, 932 So. 2d 27, 32 (Miss.2006)). Accordingly, "[a] directed verdict pursuant to M.R.C.P. 50(a) is not an appropriate means for the disposition of a case so long as questions of fact are raised in the proof *557 at trial." Id. (citing Bank of Shaw v. Posey, 573 So. 2d 1355, 1361 (Miss.1990)).
¶ 9. Mississippi Rule of Civil Procedure 50(a) states that "[a] motion for a directed verdict shall state the specific grounds therefor." Miss. R. Civ. P. 50(a). The Solankis moved for directed verdict on the grounds that the evidence clearly showed that Ervin had changed lanes when it was not safe to do so, that he had changed lanes and had failed to keep a proper lookout, and that he had not kept his truck under reasonable and proper control. The Solankis argued that the trial court should direct the jury to find in their favor because Ervin had been negligent as a matter of law. The trial court denied the motion.
¶ 10. As for the Solankis' claim that the trial court should have granted a peremptory instruction, this Court applies the same standard of review as it applies when reviewing the denial of directed verdict or JNOV:
[T]his Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standards of review, however, are predicated on the fact that the trial judge applied the correct law.
Ala. Great S. R.R. Co. v. Lee, 826 So. 2d 1232, 1235-36 (2002) (quoting Steele v. Inn of Vicksburg, Inc., 697 So. 2d 373, 376 (Miss.1997)).
¶ 11. The Solankis do not identify the specific instruction that they claim the trial court improperly refused. Based on the record, this Court believes that the peremptory instruction at issue may be instruction P-1[3]. Defendants objected to this instruction, and the trial court refused it. However, the trial court also refused instruction P-10[4], stating that the "[o]bjection to P-28 P-9 will be refused because the last sentence[5] is almost peremptory," following which, the Solankis' counsel clarified that the trial court was actually referring to instruction P-10. Therefore, this Court assumes that the Solankis appeal from the trial court's refusal of both instructions P-1 and P-10.
¶ 12. On appeal, the Solankis argue that the trial court erred in denying their motion for directed verdict and in denying their request for a peremptory instruction on the issue of negligence. They rely on their argument regarding the trial court's denial of their motion for JNOV, which will be addressed more fully below, in Section III. Basically, the Solankis claim that Mississippi law regarding the responsibilities of drivers, the discrepancies in the testimony of Ervin and Defendants' expert, William Messerschmidt, and the fact that the jury was given certain jury instructions all indicate that a directed verdict or peremptory instruction should have been *558 granted. The Solankis also cite this Court's decisions in Nobles v. Unruh, 198 So. 2d 245 (Miss.1967), and Cipriani v. Miller, 248 Miss. 672, 160 So. 2d 87 (1964), and maintain that these cases and others "clearly indicate that if the Appellee changes lanes without first ascertaining that the lane change could be safely made, then the Appellants should be entitled to a directed verdict, or, to a peremptory instruction on the issue of liability."
¶ 13. Defendants counter that, based on the evidence presented at trial, questions of fact remained for the jury to decide with respect to negligence. Defendants also rely on their argument regarding JNOV, which will be addressed more fully in Section III. Essentially, Defendants argue that substantial evidence was presented at trial demonstrating that Ervin was not negligent and that the trial court properly denied the Solankis' motion for directed verdict. Defendants also maintain that the Solankis' arguments are misplaced and inapplicable. Defendants contend that Nobles and Cipriani are distinguishable from the facts of this case.
¶ 14. We now review the testimony relevant to the issue of negligence to determine whether there is sufficient evidence demonstrating that Ervin was not negligent, or whether the evidence is so overwhelmingly in favor of the Solankis that the trial court should have granted the Solankis' motion for directed verdict or their request for a peremptory instruction. See, e.g., Bankston, 611 So.2d at 1003; Fox, 594 So.2d at 603; (citations omitted); Lee, 826 So.2d at 1235-36 (citation omitted). The Solankis called Ervin as an adverse witness. Ervin testified that, prior to the accident, he was driving south on I-220. Ervin stated that, while he was on I-220, he moved from the right lane to the left lane to pass a dump truck that was moving slowly in the right lane. Ervin testified that he also noticed cars merging onto I-220 from Medgar Evers Boulevard. After changing lanes, Ervin testified that he noticed that there was traffic ahead of him and that he saw Nilima Solanki's car, but that he did not identify anything as "a danger." Ervin stated that, initially, Nilima Solanki's car appeared to be moving. According to Ervin, once he realized that Nilima Solanki's car was not moving, he tried to move back into the right lane, but was unsuccessful because of the traffic. He also maintained that he applied the brakes at that point. When pressed, Ervin estimated that he may have applied the brakes before the bridge[6] (i.e., north of the bridge), but stated several times that he was unsure of the location at which he first applied the brakes. Ervin testified that he then attempted to avoid colliding with Nilima Solanki's car by going around it on the left side. Ervin stated that, although he tried to avoid hitting her car, ultimately, he could not avoid "swiping her car." He insisted that "I done everything possible that I could to avoid hitting the vehicle by slowing the truck down and even by trying to go around around the vehicle to keep from hitting the vehicle." Ervin testified that if he had "steered harder to the left," his truck would likely have "jackknifed"[7] and caused more damage and put more lives at risk. When asked if he could have attempted to avoid colliding with Nilima Solanki's car by going around it on the right side, Ervin testified that this was not an option, because *559 other cars were there and it would have meant putting additional lives in danger. Ervin testified that he had not been drinking or taking any drugs at the time of the accident, and that he had not been in a hurry or distracted by anything at the time.
¶ 15. The Solankis then called James Hannah to provide expert testimony in the field of accident reconstruction. Hannah testified that he began his investigation of this accident by visiting the scene of the accident about a week after it occurred. He stated that he reviewed photographs taken by the police and also took photographs of his own. Hannah found that, based on the evidence, the accident report, and his own investigation, Ervin had a distance of more than 400 feet in which to avoid the accident. Hannah stated that this was the distance between the top of the bridge[8] and the location of Nilima Solanki's car. Hannah testified that he determined that Ervin could have seen the car from the top of the bridge. According to Hannah, Ervin should have been able to slow down much more than he did over a distance of 400 feet. Hannah estimated that Ervin should have been able to come to a full stop in 263 feet, although he admitted that he did not test Ervin's truck. He also testified that Ervin could have slowed down and waited to move back into the right lane. Hannah testified that, based on Ervin's testimony that he had started applying the brakes north of the bridge, he had already perceived and started responding to Nilima Solanki's car at that point. However, on cross-examination, Hannah admitted that no physical evidence showed that Ervin actually started to apply his brakes north of the bridge. Hannah concluded that Ervin did not do everything that he could have done to avoid the accident, because he had enough space to slow down to a speed at which he could have avoided colliding with Nilima Solanki's car. He concluded that Ervin had not been keeping a proper lookout, that he did not have his vehicle under control, and that he did not respond to the stopped car until he was in the immediate area of the car.
¶ 16. Defendants called Messerschmidt to provide expert testimony, also in the field of accident reconstruction. Messerschmidt testified that he conducted an investigation of the accident and visited the site of the accident in September 2007. He testified that, based on physical evidence, Nilima Solanki's car was in the left southbound lane of I-220 at the time of the accident, approximately 220 feet south of the bridge. Messerschmidt described the topography of the scene of the accident as follows: "as you go south on 220 and you approach Medgar Evers Boulevard, you start up a hill, and at the crest of that hill is the bridge, and then you start gradually down from the crest of the bridge." Messerschmidt testified that, based on the readings from the GPS[9] on Ervin's truck, he had been traveling at sixty-seven miles per hour prior to the accident. When asked what he found with respect to Ervin's attempt to avoid the accident, Messerschmidt stated that the tire marks, the forensic mapping conducted by Richard Davis, and the photographs taken by Officer Maurice Kendrick demonstrated that Ervin had moved his truck six feet to the left and into the grass in the median in an attempt to avoid the accident. He added that, based on peer-reviewed, published *560 research regarding the ability of trucks to be steered in either direction, Ervin "was steering pretty much as hard as he could have steered to go to the left" without "jackknifing."
¶ 17. He stated that the research indicated that a "stopped vehicle would be easily identifiable as an immediate hazard" from 309 feet away. Messerschmidt stated that, because Ervin had been traveling at sixty-seven miles per hour and because Nilima Solanki's car would have been identifiable as a hazard from 309 feet away, Ervin had 3.14 seconds to react. Messerschmidt testified about research addressing the ability of drivers to perceive a stopped car without context. He stated that there had been no context for Ervin to determine that Nilima Solanki's car was not moving. He also testified that Ervin had been dealing with multiple hazards during the period of time directly preceding the accident because he was driving along a highway with traffic in both lanes, in addition to traffic merging onto the highway. Messerschmidt stated that research has shown that multiple hazards and the lack of context to judge the movement (or lack thereof) of a car causes the time required for perception and for response to increase.
¶ 18. He then testified that, based on research he conducted, the median distance at which a person could physically respond to an object is fifty-nine feet from the point of impact with that object. However, he found that Ervin had begun steering to the left ninety-eight feet from Nilima Solanki's car. Thus, Messerschmidt concluded, Ervin had responded faster (in that he responded from a greater distance) than a person whose response distance was in the median range of the research study. He estimated that it would have taken 250 to 310 feet for Ervin's truck to stop if he had fully engaged the brakes. Based on Ervin's speed and the fact that he had to move his truck to attempt to avoid the accident, Messerschmidt stated that it would have taken Ervin 116 feet to have avoided the accident by swerving to avoid hitting Solanski's car. Messerschmidt testified that:
Mr. Ervin took the best method that was available to him. It would take between Mr. Hannah's number of 246 to 350 feet to stop.
It would take 116 feet to change lanes and get out of the way. He tried to change lanes and get out of the way. His right-hand lane is blocked.
The lane is 11 and a half or 11.7 feet wide. His truck is eight feet wide....
So to stay in 4.5 or so feet of lane [i.e., the distance between Nilima Solanki's car and the right lane] and not hit cars on the right is impossible. I mean eight is more than four and a half.
¶ 19. Considering the evidence relevant to the alleged negligence of Ervin and drawing all reasonable inferences in favor of Defendants, this Court cannot say that the evidence is so overwhelmingly in favor of the Solankis that the trial court improperly denied their motion for directed verdict and their request for a peremptory instruction. See, e.g., Bankston, 611 So.2d at 1003; Fox, 594 So.2d at 603 (citations omitted); Lee, 826 So.2d at 1235-36 (citation omitted). Substantial evidence demonstrates that Ervin was not negligent, supporting the jury verdict. See, e.g., Lee, 826 So.2d at 1235-36. Therefore, this Court finds that the trial court properly denied the Solankis' motion for directed verdict and their request for a peremptory instruction on the issue of negligence. Because directed verdicts and peremptory instructions test the legal sufficiency of the evidence, the remainder of the parties' arguments will not be addressed, as they are *561 not relevant to the sufficiency of the evidence.
II. Whether the Trial Court Properly Gave Jury Instructions 20 and 22.
¶ 20. When reviewing a challenge to a jury instruction, this Court asks whether the instruction at issue contains a correct statement of the law and whether the instruction is warranted by the evidence. See, e.g., Church v. Massey, 697 So. 2d 407, 410 (Miss.1997) (citation omitted). "A party has a right to have jury instructions on all material issues presented in the pleadings or evidence." Glorioso v. YMCA, 556 So. 2d 293, 295 (Miss.1989) (citing Barkley v. Miller Transporters, Inc., 450 So. 2d 416 (Miss.1984); Alley v. Praschak Mach. Co., 366 So. 2d 661 (Miss. 1979)). When this Court reviews a claim of trial-court error in granting or denying jury instructions, all of the jury instructions are reviewed as a whole, and no instruction is read in isolation. See, e.g., Richardson v. Norfolk S. Ry. Co., 923 So. 2d 1002, 1010 (Miss.2006) (citations omitted); Burton v. Barnett, 615 So. 2d 580, 583 (Miss.1993) (citations omitted). "Defects in specific instructions do not require reversal `where all instructions taken as a whole fairlyalthough not perfectly announce the applicable primary rules of law.'" Burton, 615 So.2d at 583 (citations omitted).
¶ 21. Furthermore, this Court has held that "when a jury instruction is offered at trial, it is the duty of the opposing party, in order to preserve this point for appeal, to state a contemporaneous objection in specific terms so that the trial court has an opportunity to correct any mistake." Young v. Robinson, 538 So. 2d 781, 783 (Miss.1989) (citations omitted). "[O]n appeal a party may not argue that an instruction was erroneous for a reason other than the reason assigned on objection to the instruction at trial." Id. (citations omitted).
¶ 22. The Solankis contend that the trial court erred in granting jury instructions 20 and 22. Instruction 20 is modeled after Mississippi Code Section 63-3-903, which states, in relevant part:
(1) No person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of any highway outside of a business or residence district when it is practical to stop, park or so leave such vehicle off such part of said highway....
(2) This section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.
Miss.Code Ann. § 63-3-903(1)-(2) (Rev. 2004). Instruction 20 states:
The Court instructs the jury that according to Mississippi law no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of any highway, unless it is impossible to avoid stopping in the roadway.
Therefore, if you find from a preponderance of the evidence in this case that the decedent, Nilima Solanki, allowed her vehicle to stop in a lane of travel on the highway when it was possible or reasonably practicable for her to steer her vehicle onto the shoulder of the highway, then the Court instructs the jury that such acts constitute negligence on behalf of the decedent, and if you find from a preponderance of the evidence that such negligence was the sole proximate cause of the accident, then it is your sworn duty to return a verdict for *562 Melvin Ervin and The Merchants Company.
If you find that such negligence of the decedent Nilima Solanki was a proximate contributing cause of the accident and that the negligence of Melvin Ervin was also a proximate contributing cause of the accident, then it is your sworn duty to decide the amount you would have awarded for her death, if any, and then reduce that amount by the percentage of Nilima Solanki's negligence.
¶ 23. The Solankis' counsel objected to instruction 20 (then instruction D-8) on the grounds that it was "misleading, confusing, and I don't think it's based upon testimony in the court." Defendants argued that the instruction was based on Mississippi Code Section 63-3-903 and that it was applicable to the facts in this case. The trial court granted the instruction, informing the Solankis' counsel that "[y]ou will be completely at liberty to argue that stop, park are affirmative actions and that she's certainly not guilty of affirmatively stopping and parking."
¶ 24. On appeal, the Solankis argue that the evidence demonstrated that it was not reasonably practicable for Nilima Solanki to move her car off I-220. They further assert that Defendants failed to demonstrate "that it was reasonably practical for Decedent Nilima Solanki to pull her motor vehicle off of the highway" after it stalled on I-220 and that it was clear that it was not reasonably practical for her to do so. As if by way of explanation, the Solankis claim in their appellate brief that "[a] man may have figured out how to not get stopped in the roadway but many women, when given mechanical problems, do not know what to do." The Solankis quote testimony regarding Sidharth Solanki's discussion over the phone with Nilima Solanki before the accident, presumably to demonstrate that it was not reasonably practicable for Nilima Solanki to move her car off the highway.
¶ 25. Defendants assert that instruction 20 accurately reflects the law as set out in Section 63-3-903(1)-(2) and that the instruction includes the term "reasonably practicable." Defendants point out that whether it was reasonably practicable for Nilima Solanki to steer her car off the highway is a question of fact for the jury. Defendants also claim that the issue was properly submitted to the jury along with this instruction, which provided proper guidance for the jury. Defendants further contend that the Solankis failed to preserve this issue for appeal by making a general objection to the instruction.
¶ 26. This Court finds that the trial court properly granted instruction 20 because it contains a correct statement of the law and was warranted by the evidence. See Massey, 697 So.2d at 410 (citation omitted). The language in instruction 20 is not identical to that in Section 63-3-903(1). Instruction 20 begins by stating that "no person shall stop, park or leave standing any vehicle ... upon the ... highway, unless it is impossible to avoid stopping in the roadway." (Emphasis added.) Section 63-3-903(1) states, in relevant part, that "[n]o person shall stop, park or leave standing any vehicle ... upon the ... highway ... when it is practical to stop, park or so leave such vehicle off ... said highway." Miss.Code Ann. § 63-3-903(1) (Rev.2004) (emphasis added). Section 63-3-903(2) states, in relevant part that "[t]his section shall not apply to the driver of any vehicle which is disabled while on the ... highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position." Miss.Code Ann. § 63-3-903(2) (emphasis added). Notably, instruction 20 also instructs the jury that, "if you find *563 from a preponderance of the evidence in this case that the decedent, Nilima Solanki, allowed her vehicle to stop in a lane of travel on the highway when it was possible or reasonably practicable for her to steer her vehicle onto the shoulder of the highway, then the Court instructs the jury that such acts constitute negligence on behalf of the decedent." (Emphasis added.) Thus, this Court finds that instruction 20 fairly announces the applicable rule of law in that it includes the term "reasonably practicable" (rather than "practical"), even though it also includes the term "impossible." See Burton, 615 So.2d at 583 (citations omitted).
¶ 27. Contrary to the Solankis' assertion that instruction 20 is not supported by the evidence presented by Defendants, this Court finds that there was an evidentiary basis for instruction 20. Solanki testified about his phone conversation with Nilima Solanki, during which she told him that she had been driving at seventy miles per hour when her car broke down and that her car was stopped by the yellow line on I-220 with the emergency lights activated. Solanki also testified that he did not know why his wife's car was stopped on the highway, as opposed to the median. Hannah admitted that, if Nilima Solanki had been driving at seventy miles per hour when her car stalled, then the car would have rolled a significant distance before coming to a complete stop. Hannah also testified that there was no physical barrier preventing Nilima Solanki's car from being moved off the highway and that he was not certain of the angle at which her car was pointed when it stopped. Messerschmidt testified that the evidence showed that Nilima Solanki's car had rolled to a stop and was positioned parallel to, and to the right of, the yellow line on I-220.
¶ 28. Thus, the testimony regarding the circumstances under which Nilima Solanki found herself prior to the accident established an evidentiary basis for instruction 20. The testimony also created a question of fact as to her ability to move her car off the highway. Both parties recognize that, ordinarily, such a question of fact should be "submitted to the jury on proper instructions." Stong v. Freeman Truck Line, Inc., 456 So. 2d 698, 708 (Miss.1984). Based on the testimony, this question of fact was not "so clear that reasonable minds could not differ." Id. (citations omitted). Whether Defendants failed to demonstrate "that it was reasonably practical for Decedent Nilima Solanki to pull her motor vehicle off of the highway," as the Solankis claim on appeal, was for the jury to determine. Therefore, this Court concludes that the question was properly submitted to the jury, along with instruction 20. Id. (citations omitted). Because we conclude that instruction 20 was a proper reflection of the law and supported by the evidence, the remainder of the parties' arguments will not be addressed.
¶ 29. Instruction 22 states:
You are instructed that Mississippi law provides for comparative negligence, that is, more than one party may be responsible for causing a person's injury or death.
Further, you are instructed that while operating her vehicle, the decedent, Nilima Solanki, had a duty to use reasonable care in the interest of safety of others on the roadway that a person of ordinary intelligence would exercise under the same or similar circumstances. If you find that Nilima Solanki did not exercise such reasonable care by failing to steer her vehicle onto the shoulder of the roadway as her vehicle began to stall and/or by talking on her cell phone instead of exiting the vehicle in order to *564 move to a place of safety after her vehicle stopped, and if you further find that her failure to use reasonable care proximately caused or contributed to the accident or her own death, then it is your sworn duty to decide the amount you would have awarded for such death, if any, and then reduce your verdict by the percentage of Nilima Solanki's own negligence.
Furthermore, should you find that Nilima Solanki's own negligence was the sole proximate cause of the accident, then you shall return a verdict in favor of Melvin Ervin and The Merchants Company.
¶ 30. With respect to instruction 22 (then instruction D-11), the Solankis' counsel objected on the grounds of "confusion, misleading, and not a true statement of the law, and it's not supported by the facts in evidence, and there's no evidence to support the instruction. It's based on pure speculation, conjecture, and no proof of negligence on her part." The trial court granted the instruction.
¶ 31. The Solankis maintain on appeal that instruction 22 is extremely confusing and misleading, in part because "[s]aid [i]nstruction lays blame on Nilima Solanki [as] if she talked on her cell phone instead of exiting, without taking into consideration that a mother would not leave her child in the car and just try saving herself." The Solankis also rely on the fact that the trial judge granted instruction 23 (then instruction P-30)the Solankis' comparative negligence instruction"reluctantly" because he did not believe that there was evidence of Nilima Solanki's negligence. Instruction 23 states:
If you find from a preponderance of the evidence in this case that:
1. Melvin Tyrone Ervin was negligent but also,
2. That Nilima Solanki, Deceased, was negligent;
3. That the negligence of both Melvin Tyrone Ervin and Nilima Solanki, Deceased, were proximate, contributing causes of the accident in this case, and
4. That Nilima Solanki and the Plaintiffs sustained injuries and damages caused by the combined negligence of Melvin Tyrone Ervin and Nilima Solanki, Deceased, then you will, in arriving at your verdict, first determine that sum of money which will fairly and adequately compensate the Plaintiffs, for said injuries and damages, and then reduce this sum in proportion to the causal negligence of Nilima Solanki, Deceased, using the following method....
When this instruction was discussed at the trial level, the trial court stated: "This is [a] comparative negligence statute, and I expected it to come from the defense, but I don't understand what negligence is there of the deceased?" Defendants' counsel then argued for the instruction, stating that there was evidence that Nilima Solanki had an opportunity to steer her car into the shoulder of I-220 and that there was testimony that she had sat in her car for one-and-a-half minutes after her car had stopped. The Solankis' counsel then attempted to withdraw the instruction. The trial judge initially stated that he would not rule on the instruction at that time. However, after hearing further argument from Defendants' counsel, the trial court decided to give the instruction "out of an abundance of precaution."
¶ 32. The Solankis end their argument on appeal by conclusorily stating that:
One can clearly see that the Court did not see any negligence on the part of Nilima Solanki, and for the jury to have assessed her with 100% of the negligence *565 evinces bias or prejudice on the part of the jury, or, shows that they were just confused as to what the law was and as to how they were supposed to rule.
¶ 33. Defendants counter that the Solankis' claim that the jury found Nilima Solanki one hundred percent negligent is incorrect. Defendants also contend that substantial evidence demonstrated Nilima Solanki's negligence. Defendants further argue that the Solankis waived any objection to this instruction because they requested, and were granted, their own comparative-negligence instructioninstruction 23.
¶ 34. Assuming arguendo that the Solankis can appeal this instruction (despite submitting their own comparative-negligence instruction), this Court finds that it contains a correct statement of the law and is warranted by the evidence. See Massey, 697 So.2d at 410 (citation omitted). Mississippi is a comparative-negligence state. See, e.g., Blackmon v. Payne, 510 So. 2d 483, 486 (Miss.1987) (citing Evans v. Journeay, 488 So. 2d 797, 799 (Miss.1986); Bell v. City of Bay St. Louis, 467 So. 2d 657, 664 (Miss.1985); Miss.Code Ann. § 11-7-15 (Rev.2004)). Also, instruction 22 is warranted by the evidence. There was testimony, reviewed above, regarding the location and positioning of Nilima Solanki's car on I-220, which is relevant to the issue of comparative negligence. Don Williams testified that he had observed Nilima Solanki sitting in the driver's seat of her car, with one leg on the highway, on her cell phone for one minute to one-and-a-half minutes. As stated above, Solanki also testified about his phone conversation with Nilima Solanki before the accident, although he stated that they had spoken on the phone for no longer than twenty seconds before the accident. Thus, the testimony provided an evidentiary basis for instruction 22. Therefore, this Court finds that instruction 22 was properly given. See Richardson, 923 So.2d at 1010 (citations omitted). Because we conclude that instruction 22 was a proper reflection of the law and supported by the evidence, the remainder of the parties' arguments will not be addressed.
III. Whether the Trial Court Properly Denied the Solankis' Motion for Judgment Notwithstanding the Verdict.
¶ 35. This Court reviews a trial court's denial of a motion for JNOV de novo. See, e.g., U.S. Fid. & Guar. Co. v. Martin, 998 So. 2d 956, 964 (Miss.2008) (citing Adcock v. Miss. Transp. Comm'n, 981 So. 2d 942, 948 (Miss.2008)). This Court has held that:
In deciding a motion for judgment notwithstanding the verdict, the trial court must consider the evidence in the light most favorable to the non-moving party, giving that party the benefit of all favorable inferences that reasonably may be drawn therefrom. The trial court should consider the evidence offered by the non-moving party and any uncontradicted evidence offered by the moving party. If the evidence thus considered is sufficient to support a verdict in favor of the non-moving party, the motion for j.n.o.v. must be denied.
Corley v. Evans, 835 So. 2d 30, 36 (Miss. 2003) (quoting Goodwin v. Derryberry Co., 553 So. 2d 40, 42 (Miss.1989)). This Court has stated that "[a] motion for JNOV is a challenge to the legal sufficiency of the evidence, and this Court will affirm the denial of a JNOV if there is substantial evidence to support the verdict." Martin, 998 So.2d at 964 (citing Adcock, 981 So.2d at 948); see also Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So. 2d 954, 961 (Miss.1999) (citing *566 Steele v. Inn of Vicksburg, Inc., 697 So. 2d 373, 376 (Miss.1997)). "Substantial evidence" has been defined as "information of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions." Martin, 998 So.2d at 964 (citing Adcock, 981 So.2d at 948-49); see also Smith v. Averill, 722 So. 2d 606, 613 (Miss.1998) (citing Fitzner Pontiac-Buick-Cadillac, Inc. v. Smith, 523 So. 2d 324, 326 (Miss.1988)). In reviewing the trial court's denial of a JNOV, this Court must "consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence." Spotlite Skating Rink, Inc. v. Barnes, 988 So. 2d 364, 368 (Miss.2008) (quoting Steele, 697 So.2d at 376); see also Miss. Transp. Comm'n v. SCI, Inc., 717 So. 2d 332, 338 (Miss.1998) (citing Sperry-New Holland v. Prestage, 617 So. 2d 248, 252 (Miss.1993), superseded by statute on other grounds, Miss.Code Ann. § 11-1-63(f)(ii), as recognized in Wolf v. Stanley Works, 757 So. 2d 316, 321 (Miss.App. 2000)). "If the facts are so overwhelmingly in favor of the appellant that reasonable and fair-minded jurors could not have arrived at a contrary verdict, then this Court must reverse and render." SCI, Inc., 717 So.2d at 338 (citing Prestage, 617 So.2d at 252); see also Kimmins Indus. Serv. Corp., 743 So.2d at 960 (citation omitted). "On the other hand, if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required." SCI, Inc., 717 So.2d at 338 (citing Prestage, 617 So.2d at 252); see also Kimmins Indus. Serv. Corp., 743 So.2d at 960 (citation omitted).
¶ 36. The Solankis argue on appeal that the trial court should have granted their motion for JNOV because the verdict was against the overwhelming weight of the evidence. We note that the Solankis provide the wrong standard for determining whether JNOV should be granted. As stated above, a motion for JNOV challenges the legal sufficiency of the evidencenot the overwhelming weight of the evidence. See, e.g., Martin, 998 So.2d at 964 (citation omitted). The Solankis' argument is divided into three sections.
¶ 37. In section A, the Solankis discuss Mississippi Code Section 63-3-603, which requires drivers to ascertain whether a lane change can be made safely before changing lanes. Miss.Code Ann. § 63-3-603 (Rev.2004). They also mention several cases that cite or apply Section 63-3-603. They next quote the jury instruction given by the trial court stating that drivers may not change lanes until they have ascertained that they can safely do so. The Solankis then perfunctorily state that "[e]ven if we did not have the statute, Appellee Ervin would be guilty of common law negligence, because it is clearly negligent to change lanes at a time when one does not know whether it is safe to do so or not." The Solankis do not include any facts from this case in section A to support their contention that JNOV was improperly denied and make no attempt to demonstrate how the facts in the cases cited are analogous to the facts in this case.
¶ 38. In section B, the Solankis cite White v. Miller, 513 So. 2d 600 (Miss.1987), for the proposition that "rear-enders," that is, drivers of cars that collide with cars in front of them, must have their car under control, keep a proper lookout, and drive at a sufficient speed and at a sufficient distance to prevent a collision if the car in front suddenly stops. They next quote the jury instruction given by the trial court stating that, under Mississippi law, drivers have a duty to exercise ordinary care to *567 keep their vehicles under reasonable control, drive at a reasonable rate of speed, keep a reasonable and proper lookout for other vehicles, and anticipate the presence of other vehicles in order to avoid collisions. The Solankis then conclusorily state that "[a]ppellee Ervin certainly failed in all of the above-mentioned categories." Again, the Solankis include no facts from this case in section B to show that JNOV should have been granted and make no attempt to demonstrate how the facts in the cases cited are analogous to the facts in this case.
¶ 39. Although section C is entitled "Argument applying the facts of the present case to Mississippi Law in showing that the jury verdict was against the overwhelming weight of the evidence in this case," it contains no argument, and, as stated above, cites the wrong standard for a motion for JNOV. The Solankis state that "[a]ppellee Ervin clearly made a lane change at a time when he did not first ascertain that the lane change could be safely made." For support, the Solankis reference the discrepancies in Ervin's deposition and trial testimony and assert that the testimony from Ervin "clearly and unequivocally make[s] him negligent and totally at fault for the subject accident." The Solankis further state that Ervin "would even be totally at fault by his expert's version of when Appellee Ervin changed lanes." The Solankis recount at length what they allege to be three different versions of the facts provided by Ervin, followed by the version provided by Messerschmidt. Then, they argue that three jury instructions should not have been given by the trial court. At the close of the discussion of the three jury instructions, the Solankis state:
One can clearly see that the Court did not see any negligence on the part of Nilima Solanki, and for the jury to have assessed her with 100% of the negligence evinces bias or prejudice on the part of the jury, or, shows that they were just confused as to what the law was and as to how they were supposed to rule. In any event, Appellees' Jury Instruction regarding "parking in a roadway," which was the Court's Jury Instruction No. 22, clearly confused and mislead the Jury.
Also, the Appellants are from India, and the Jury could have been prejudice [sic] for this reason, but there was no basis for a verdict totally for the Appellees under these facts.
¶ 40. Defendants counter that JNOV was properly denied. Like the Solankis, Defendants misstate the proper standard applicable to motions for JNOV. Defendants contend that substantial testimony was presented at trial by Ervin and Messerschmidt that Ervin had kept a reasonable lookout when changing lanes and that he had made his best efforts to avoid colliding with Nilima Solanki's car. Defendants assert that this testimony was sufficient to support the jury verdict. In response to the Solankis' discussion of Section 63-3-603, Defendants argue that the plain language of Section 63-3-603 indicates that it is inapplicable to the facts in this case. Defendants further claim that, even if Section 63-3-603 is applicable, this does not alter the fact that Defendants presented substantial evidence to show that Ervin was not negligent. Likewise, Defendants argue that the Solankis' discussion of the law regarding "rear-enders" does not change the fact that Defendants presented substantial evidence to show that Ervin was not negligent. As for the Solankis' discussion of the alleged three versions of Ervin's testimony and Messerschmidt's testimony, Defendants contend that the Solankis ignore the fact that the jury is responsible for weighing discrepancies in the evidence and for evaluating the *568 credibility of witnesses. Defendants further point out that, when reviewing a trial court's decision regarding JNOV, the evidence is to be viewed in the light most favorable to the appellee, and that all reasonable inferences must be drawn in the appellee's favor. Thus, Defendants argue, the Solankis improperly ask this Court to reevaluate the credibility of Ervin and Messerschmidt. Defendants then discuss the evidence presented at trial demonstrating that Nilima Solanki was negligent.
¶ 41. Based on the testimony presented at trial, which this Court reviewed in Section I, this Court finds that JNOV was properly denied. At trial, Ervin and Messerschmidt testified that Ervin's conduct before the accident was not negligent. Ervin maintained that he did all he could do to avoid an accident. Messerschmidt testified that Ervin had begun steering to avoid an accident ninety-eight feet away from Nilima Solanki's car. He stated that the median distance at which someone could respond to an object is fifty-nine feet from the point of impact with the object. He also testified that it would have taken 250 to 310 feet for the truck to stop and 116 feet for him to avoid an accident. He concluded that Ervin "took the best method that was available to him." The jury heard all the evidence presented. The jury ultimately found that Ervin was not negligent and that Defendants, therefore, were not liable to the Solankis. The jury determines the weight and credibility of witnesses. See, e.g., Nelson v. State, 10 So. 3d 898, 913 (Miss.2009) (citing Moore v. State, 933 So. 2d 910, 922 (Miss.2006)) ("The jury determines the weight and credibility of witness testimony."); Gathright v. State, 380 So. 2d 1276, 1278 (Miss. 1980) ("This Court has in numerous cases, too many to mention, said that when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony."). This Court finds that the testimony of Ervin and Messerschmidt is legally sufficient to support the jury verdict.
¶ 42. The Solankis fail to make a coherent argument as to why the testimony was insufficient to support the verdict and why, therefore, JNOV should have been granted. The issues raised by the Solankis are completely irrelevant to the determination of whether sufficient evidence was presented at trial to support the jury's verdict. The Solankis set out the law regarding changing lanes and the responsibilities of individuals driving cars behind other cars. While this may be relevant to their theory of the case, and while it would have been helpful in trying to convince the jury to find in their favor, this law is irrelevant to the question of whether there is sufficient evidence to support the jury verdict. The Solankis fail to connect the law to the facts of this case in order to illustrate how the testimony of Ervin and Messerschmidt was insufficient to support the verdict. The fact that Mississippi law imposes certain responsibilities on drivers does not, in and of itself, indicate that JNOV should have been granted in this case. Likewise, the fact that this Court has found certain drivers to be negligent in the cases cited by the Solankis does not necessarily mean that JNOV should have been granted in this case. The Solankis' discussion of the three jury instructions also is irrelevant to the question of whether the evidence presented at trial was sufficient to support the jury verdict.
¶ 43. Furthermore, Defendants are correct in arguing that the Solankis improperly ask this Court to reevaluate the weight and credibility of the testimony provided by Ervin and Messerschmidt. The jury heard the testimony presented by Ervin and Messerschmidt. The jury also heard the Solankis' attempts to impeach Ervin *569 with his deposition testimony at trial. As stated above, the jury is responsible for weighing the evidence and determining the credibility of witnesses. See, e.g., Nelson, 10 So.3d at 913 (citation omitted); Gathright v. State, 380 So.2d at 1278. Thus, the jury was entitled to credit the testimony of Ervin and Messerschmidt and not that of Hannah. Moreover, it is well established that, when reviewing trial court decisions regarding JNOV, the evidence is to be considered in the light most favorable to the appellee. See, e.g., Spotlite Skating Rink, Inc., 988 So.2d at 368 (citation omitted).
¶ 44. Lastly, we note that the Solankis are mistaken in claiming that the jury found Nilima Solanki one hundred percent negligent. The jury found that Ervin was not negligent and made no findings as to whether or not Nilima Solanki was negligent. The jury may have concluded that she was negligent, but it also may have found that the Solankis simply failed to meet their burden of proving by a preponderance of the evidence that Ervin was negligent. For the same reason, we do not address Defendants' assertion that Nilima Solanki was negligent, because it is irrelevant to whether sufficient evidence showed that Ervin was not negligent to support the jury verdict in favor of Defendants.
¶ 45. After a de novo review of the record, this Court concludes that the trial court properly denied the Solankis' motion for JNOV. This Court finds that the testimony of Ervin and Messerschmidt constitutes substantial evidence because it is "of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions." See, e.g., Adcock, 981 So.2d at 948-49 (citation omitted). This Court cannot say that "the facts are so overwhelmingly in favor of the appellant that reasonable and fair-minded jurors could not have arrived at a contrary verdict." See e.g., SCI, Inc., 717 So.2d at 338 (citation omitted). Taking the evidence "in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence," this Court concludes that JNOV was properly denied. See, e.g., Spotlite Skating Rink, Inc., 988 So.2d at 368 (citation omitted).
IV. Whether the Trial Court Properly Denied the Solankis' Motion for a New Trial.
¶ 46. This Court reviews a trial court's grant or denial of a motion for a new trial for an abuse of discretion. See, e.g., Pierce v. Cook, 992 So. 2d 612, 620 (Miss.2008); Allstate Ins. Co. v. McGory, 697 So. 2d 1171, 1174 (Miss.1997). This Court has held that "a new trial becomes appropriate when a trial court determines that error within the trial mechanism itself has caused a legally incorrect or unjust verdict to be rendered." White v. Stewman, 932 So. 2d 27, 33 (Miss.2006). This Court further stated in Stewman:
In ordering a new trial, the trial court makes a determination that the jury verdict is in error, and that due to mistakes made in conducting the trial, mistakes made in applying the law, or due to a jury verdict that is against the great weight of the evidence, a new trial is necessary.
Id. at 33. This Court also has held that:
A new trial may be granted in a number of circumstances, such as when the verdict is against the overwhelming weight of the evidence, or when the jury has been confused by faulty jury instructions, or when the jury has departed from its oath and its verdict is a result of bias, passion, and prejudice.
Bobby Kitchens, Inc. v. Miss. Ins. Guar. Ass'n, 560 So. 2d 129, 132 (Miss.1989) (citing *570 Clayton v. Thompson, 475 So. 2d 439, 443 (Miss.1985)). "Throughout the entire history of jury trials, the courts have exercised a supervisory power over them, and have granted new trials whenever convinced, from the evidence, that the jury has been partial or prejudiced, or has not responded to reason upon the evidence produced." Stewman, 932 So.2d at 33.
¶ 47. The Solankis' argument regarding their motion for a new trial is the same as their argument regarding their motion for JNOV, which is summarized above in Section III, and which includes a claim that the jury was confused, biased, or prejudiced. The Solankis do not separately address the trial court's denial of their motion for a new trial on appeal. The argument the Solankis presented to the trial court in their motion for JNOV or, in the alternative, a new trial, includes a section that is similar to the argument they present on appeal. We note that in their motion for JNOV or, in the alternative, a new trial, the Solankis also claim that the trial court should have granted a directed verdict; that the trial court should have granted a peremptory instruction in their favor; that the trial court improperly excluded Hannah's supplemental report, video, and photographs; that the trial court should not have granted jury instructions D-6, D-8, D-11, D-4a, D-7a, and D-2; that the trial court erred in denying the Solankis' motion to designate an expert out of time; that the trial court should have granted jury instruction P-7 and P-3; that the trial court improperly granted partial summary judgment as to the Solankis' negligent-infliction-of-emotional-distress claim; and that the trial court erred in granting partial summary judgment as to punitive damages. For several of these alleged points of error, the Solankis only include a heading and do not include any substantive arguments in support. Moreover, the Solankis fail to demonstrate how these supposed errors resulted in a jury verdict that is against the overwhelming weight of the evidence, unjust, or contrary to the law. Therefore, this Court will not address these additional arguments.
¶ 48. Defendants contend that the trial court properly denied the Solankis' motion for a new trial, arguing that there was no error in the trial that resulted in a legally incorrect or unjust verdict. Defendants assert that there is no indication that the jury was confused by the jury instructions or that they reached a verdict based on bias, passion, or prejudice.
¶ 49. Based on the evidence relevant to the issue of negligence, which this Court reviewed in Section I, this Court cannot find that the trial court abused its discretion in denying the Solankis' motion for a new trial. The Solankis fail to identify an error within the trial mechanism that resulted in a jury verdict that is against the overwhelming weight of the evidence, unjust, or contrary to the law. They also fail to demonstrate how the jury verdict warrants a new trial. Once again, the jury is the sole judge of the credibility of witnesses and the weight of the evidence. See, e.g., Nelson, 10 So.3d at 913 (citation omitted); Gathright, 380 So.2d at 1278. Although the Solankis claim that the jury was confused by the jury instructions, they provide no support for this claim. The Solankis also claim that the jury was biased or prejudiced against them. While claims of prejudice should not cavalierly be dismissed, the record in this case is devoid of any evidence to support the contention that the verdict of the jury in the instant case was the result of bias, passion, and prejudice. This Court recognizes that the Solankis are Indian and that Nilima and Sidharth Solanki immigrated to this country. We note that testimony about the *571 Solankis' country of origin, their immigration to the United States, their life here, and their plans for the future, including returning to India in their retirement, was introduced by their counsel during the direct examination of Sidharth Solanki.[10] However, the Solankis did not identify (and this Court cannot find) anything in the record to indicate that the jury was prejudiced against the Solankis because of their race or national origin.
¶ 50. As stated above, the Solankis set out the law regarding changing lanes and the responsibilities of individuals driving cars behind other cars. This is irrelevant to the question of whether there was an error in the trial mechanism. The Solankis' discussion of the three jury instructions could be relevant to the question of whether there was an error in the trial mechanism that caused a jury verdict that is against the overwhelming weight of the evidence, unjust, or contrary to the law. However, the Solankis fail to explain how the jury instructions caused the jury to reach a verdict that warranted a new trial. Therefore, this Court finds that the trial court properly denied the Solankis' motion for a new trial.
CONCLUSION
¶ 51. This Court concludes that the trial court did not err in denying the Solankis' motion for directed verdict, in giving jury instructions 20 and 22, or in denying the Solankis' motion for judgment notwithstanding the verdict or, in the alternative, a new trial. Therefore, the trial court's denial of directed verdict, giving of jury instructions 20 and 22, and denial of judgment notwithstanding the verdict and a new trial are affirmed.
¶ 52. AFFIRMED.
CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. WALLER, C.J., NOT PARTICIPATING.
Appendix
Instruction P-1
The Court instructs the jury that you shall find for the plaintiffs against the defendants, The Merchants Company and Melvin Tyrone Ervin, with the form of your verdict being as follows:
"We, the jury, find for the plaintiffs and against the defendants, the Merchants Company and Melvin Tyrone Ervin and assess their damages in the sum of $________."
and you will write your verdict upon a separate piece of paper.
Instruction P-10
The Court instructs the jury that Melvin Tyrone Ervin, at the time and place of the accident in question, was an employee of The Merchants Company and that he was working and acting within the course and scope of his employment with The Merchants Company and was acting in furtherance of the company's business and was therefore at all time in question an agent of The Merchants Company, and therefore, The Merchants Company is liable to the Plaintiff for the injuries and death of Nilima Solanki which were established by a preponderance of the evidence to be the proximate result of the negligence, if any, of Melvin Tyrone Ervin.
NOTES
[1] The Solankis' complaint states that she was driving west on I-220. The Solankis' expert, James Hannah, explained that I-220 runs northeast-southwest. However, he stated that people commonly refer to the direction in which Nilima Solanki and Ervin were traveling as south.
[2] Solanki sued in his capacity as an individual, as a wrongful-death beneficiary, and on behalf of his two minor daughters, while Neha Solanki sued in her capacity as a wrongful-death beneficiary.
[3] Instruction P-1 is reproduced in the Appendix.
[4] Instruction P-10 is reproduced in the Appendix.
[5] Instruction P-10 consists of only one sentence, but the trial court appears to be referring to the last clause of the instruction, beginning with the words "therefore, the Merchants Company is liable ..." when referencing the last sentence of the instruction.
[6] Ervin does not state that this is the bridge or overpass on I-220 that passes over Medgar Evers Boulevard. However, based on the testimony and the exhibits, it appears that this is the bridge to which Ervin refers.
[7] The term "jackknife" is not defined in the testimony.
[8] Again, Hannah does not state that this is the bridge or overpass on I-220 that passes over Medgar Evers Boulevard, but context indicates that it is.
[9] Global positioning system.
[10] In addition, plaintiffs' counsel stated during his opening statement that the Solankis were from India. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608435/ | 791 So. 2d 669 (2001)
STATE of Louisiana
v.
Darrell HOLMES, Barry Bowie & William Bailey.
No. 99-KA-0898.
Court of Appeal of Louisiana, Fourth Circuit.
November 8, 2000.
Opinions on Grant of Rehearing June 27, 2001.
*676 Harry F. Connick, District Attorney, Leslie P. Tullier, Assistant District Attorney, New Orleans, LA, Counsel for Plaintiff-Appellee.
Yvonne Chalker, and William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, LA, Counsel for Defendant-Appellant, Barry Bowie & William Bailey.
William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, LA, Counsel for Defendant-Appellant, Barry Bowie (On Rehearing).
James H. Looney, Executive Director, Louisiana Appellate Project, Covington, LA, Counsel for Defendant-Appellant, Darrell Holmes.
Court composed of Judge WILLIAM H. BYRNES, III, Judge STEVEN R. PLOTKIN, Judge MAX N. TOBIAS, Jr.
Opinions on Grant of Rehearing En Banc June 27, 2001.
BYRNES, Judge.
On January 23, 1998, the defendants, Darrell Holmes, Barry Bowie, and William Bailey, were charged by bill of information with possession of cocaine with intent to distribute, a violation of La. R.S. 40:967. Bailey was represented by Benny George. Bowie and Holmes were represented by Keith Lewis, OIDP. They were arraigned January 27, 1998 and pled not guilty. On February 27, 1998, the court found probable cause and denied a motion to suppress evidence. On May 12, 1998, a twelve member jury found the defendants guilty as charged.
Bailey was sentenced on June 1, 1998, to five years at hard labor.
The State filed a multiple bill as to Holmes. Holmes' motion for new trial and motion for post-verdict judgment of acquittal were denied November 13, 1998. He was sentenced that day to thirty years at hard labor without benefit of parole, probation, or suspension of sentence. He filed a motion to reconsider sentence which was denied. The court then found him to be a fourth offender, vacated its original sentence and re-sentenced the defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
On January 5, 1999, Bowie was sentenced to five years at hard labor.
FACTS:
Officer William Gibson received an anonymous tip that crack cocaine was being distributed from 1927 Dumaine. On November 17, 1997, he staked out the address and saw one subject passing money through a window and another one acting as a lookout at the gate. The man at the window was given something by someone with a light skinned hand.[1] Gibson stopped the two men. The lookout alerted the other man who put something in his mouth. Gibson threw that man to the ground, and the man coughed up crack cocaine.
The next day, Gibson applied for a search warrant for the house. He executed it November 21, 1997. Officers broke down the door. On a table was a plastic bag containing thirty-three pieces of cocaine, cash, several cell phones and pagers. Bowie was standing to Gibson's right as he entered. Bailey was seated at the window where the transaction had taken place, and Holmes was seated on a weight bench to Bailey's right. The contraband was within an arm's reach of Bowie and Holmes. A juvenile was also present holding a two year old baby later found to be the child of Holmes. The officers ordered the men to *677 the floor. Bailey tossed a plastic bag under the table, and it was found to contain another thirty-three pieces of cocaine. Bowie was found in possession of $600.00 and a pager. Bailey had $242.00. The police confiscated a telephone bill, a social security card, a municipal court subpoena and a jury card in the name of Holmes. On cross, Gibson explained that he was not the first in the door, and that the defendants had already been handcuffed and were on the floor. He learned the defendants' positions from the officers assisting him.
Sheriff Mark Mornay said he helped execute the warrant. He confirmed Gibson's story as did Officers Arthur Powell and Joe Lainez.
Bowie said he received the money from his father and was going to the address to rent a room. Holmes had told him about the availability of a room, but he had never been there before. He said he possessed no drugs.
Holmes said he was the manager and caretaker of 1927 Dumaine. He admitted to possession of stolen property, theft, and forgery. He said he did not believe in drugs, and possessed none when he was arrested. He said Bailey and Bowie did not sell drugs, and that the policemen were liars.
ERRORS PATENT:
A review of the record for errors patent reveals that Holmes did not waive his right to a twenty-four hour delay between the denial of his motions for new trial and for judgment of acquittal and his sentencing. La.C.Cr.P. art. 873. In State v. Augustine, 555 So. 2d 1331 (La.1990), the Louisiana Supreme Court held that failure to waive the twenty-four hour delay voided the defendant's sentence if the defendant attacks his sentence, even though the defendant fails to specifically allege this failure as an error on appeal. However, the Fourth Circuit, in State v. Collins, 584 So. 2d 356 (La.App. 4 Cir.1991), held that the failure to observe the delay would be deemed harmless error where the defendant did not challenge his sentence on appeal. Therefore, in the present case where no error was raised as to the defendant's sentence, the failure of the trial court to observe the delay period is harmless error.
In addition, La. R.S. 40:967(B)(4)(b) provides that the first five years of a sentence for distribution of cocaine must be served without benefit of parole, probation, or suspension of sentence. Bowie and Bailey were not denied these benefits. However, this court will not correct an error patent favorable to the defendant where not raised by the State or the defense. State v. Fraser, 484 So. 2d 122 (La.1986).
Lastly, Holmes and Bowie were both sentenced after their appeals had been granted. However, this court will not dismiss appeals where a sentence is imposed after defendant's motion for appeal is filed and granted. State v. Martin, 483 So. 2d 1223 (La.App. 4 Cir.1986).
SUFFICIENCY OF EVIDENCE (BAILEY'S AND BOWIE'S ASSIGNMENTS OF ERROR ONE):
To evaluate whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Scott, 97-0028 (La.App. 4 Cir. 3/18/98), 709 So. 2d 339. However, the reviewing court may not disregard this duty simply because the record contains evidence *678 that tends to support each fact necessary to constitute the crime. The reviewing court is not permitted to consider just the evidence most favorable to the prosecution, but it must consider the record as a whole. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. State v. Mussall, 523 So. 2d 1305 (La.1988). "[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence." State v. Scott, 709 So.2d at 343 (quoting State v. Smith, 600 So. 2d 1319, 1324 (La.1992)).
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So. 2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. La. R.S. 15:438 is not a separate test from Jackson v. Virginia, supra, but rather it is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So. 2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So. 2d 817 (La.1987).
In order to prove possession, the State is not obligated to prove actual possession, rather such conviction may be supported by a showing of constructive possession. State v. Trahan, 425 So. 2d 1222 (La.1983); State v. Jackson, 557 So. 2d 1034 (La.App. 4 Cir.1990). The defendant's presence in the area where the drug is found, or the mere fact that the defendant knows the person in actual possession, is insufficient to prove constructive possession. Trahan; Jackson. However, a person may be considered to be in constructive possession if the illegal substance is subject to his dominion and control, or if he willfully and knowingly shares with another person in actual possession of a drug the right to control the drug. Trahan, supra. As this court noted in State v. Reaux, 539 So. 2d 105, 108 (La.App. 4 Cir. 1989):
In determining whether defendant exercised the requisite dominion and control the jury may consider his knowledge that illegal drugs are in the area, his relationship with one found to be in actual possession, his access to the area where drugs were found, his physical proximity to the drugs and the evidence that the area was frequented by drug users.
In State v. Kingsmill, 514 So. 2d 599 (La.App. 4 Cir.1987), cocaine and drug paraphernalia, including a scale, rolling papers, a razor, and numerous plastic bags, were found in an open cardboard box on a seat in a car occupied by the defendant and three other people. This court found sufficient evidence that the occupants of the car exercised dominion and control over the box and thus that they were all in constructive possession. In State v. Maresco, 495 So. 2d 311 (La.App. 4 Cir.1986), writ den. 500 So. 2d 419 (La.1987), this court upheld the defendant's conviction for possession of a large open box of marijuana sitting next to him in the apartment of another, but it also reversed his conviction for possession of other drugs found in a trunk in another room of the apartment.
*679 In State v. Williams, 594 So. 2d 476 (La. App. 4 Cir.1992), the officers executed a search warrant at an apartment in a building. Upon entering, the officers ran through a kitchen and a living room containing no furniture, past an empty bedroom and into a second bedroom containing only a table, a chair and a television. The two defendants were in the second bedroom. On the table the officers observed a small pile of cocaine, several bags of cocaine, various paraphernalia, and $560.00 in small bills. Under the table the officers found a bottle of muriatic acid. One defendant was convicted of possession of cocaine with the intent to distribute and the other defendant was convicted of attempted possession of cocaine with the intent to distribute. This court found the evidence sufficient to support the convictions.
In State v. Brown, 96-2302 (La.App. 4 Cir. 4/9/97), 692 So. 2d 1360, writ denied 97-1166 (La.11/7/97), 703 So. 2d 1263, this court found that the State proved beyond a reasonable doubt that the defendant possessed cocaine. A surveillance was conducted at 2562 Alvar after the New Orleans Police Department received an anonymous tip that there was drug trafficking coming from that apartment. Officers learned from H.A.N.O that the apartment belonged to the defendant. When the officers searched the apartment, they concluded that the rear bedroom belonged to the defendant because of the women's clothes in the closet, receipts in her name, and other documents bearing the defendant's name. Further, the jacket that the defendant was observed wearing during the surveillance was found in the closet in the rear bedroom. Thirty-five pieces of cocaine were found in the jacket pocket. Even though the defendant was not present at the time of the execution of the search warrant, the court concluded that she exercised dominion and control over the drugs that were found in her bedroom closet within her jacket pocket.
To support a conviction for possession of a controlled dangerous substance with intent to distribute, the State must prove that the defendant knowingly and intentionally possessed the contraband and that he did so with the intent to distribute it. La. R.S. 40:967. Specific intent can be inferred from the circumstances of the transaction. State v. Moffett, 572 So. 2d 705 (La.App. 4 Cir.1990). Certain factors are useful in determining whether circumstantial evidence is sufficient to prove the intent to distribute a controlled dangerous substance. These factors include: (1) whether the defendant ever distributed or attempted to distribute the drug; (2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether expert or other testimony established that the amount of drugs found in the defendant's possession is inconsistent with personal use only; and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute. State v. Hearold, 603 So. 2d 731 (La.1992). The presence of large sums of cash is also considered circumstantial evidence of intent. State v. Jordan, 489 So. 2d 994 (La. App. 1 Cir.1986). In the absence of circumstances from which an intent to distribute may be inferred, mere possession of a drug does not amount to evidence of intent to distribute, unless the quantity is so large that no other inference is possible. Hearold, supra.
In Hearold, the Louisiana Supreme Court concluded that there were no circumstances which indicated that the defendant intended to distribute the one-eighth ounce of methamphetamine found in his possession. The Court noted that the drugs were found in one package rather *680 than in several individual packets. In addition, there were no scales, plastic baggies, other drug paraphernalia, weapons or large sum of cash were found in the vehicle.
In State v. Thomas, 543 So. 2d 540 (La. App. 4 Cir.1989), writ denied, 548 So. 2d 1229 (La.1989), this Court held that evidence of defendant's possession of thirty-three baggies of powder cocaine was sufficient to sustain defendant's conviction for possession of cocaine with the intent to distribute.
However, the First Circuit in State v. Fisher, 628 So. 2d 1136 (La.App. 1 Cir. 1993), writs denied 94-0226 (La.5/20/94), 637 So. 2d 474; 94-0321 (La.5/20/94), 637 So. 2d 476, held that evidence of defendant's possession of twenty rocks of crack cocaine was not sufficient to support defendant's conviction for possession of cocaine with the intent to distribute. The cocaine was packaged in one single plastic bag. In modifying defendant's conviction to possession of cocaine, the appellate court noted that there was no evidence of drug paraphernalia or weapons found in the defendant's motel room. The court also discounted the officer's testimony about the quantity of cocaine involved in personal use versus distribution as the officer was not qualified as an expert.
In this case, Bailey and Bowie both allege insufficiency of the evidence. As to Bailey, he was seen in actual possession of the drug when he tossed a bag of cocaine when the officers entered the room. The evidence was therefore sufficient to prove that he was in actual possession of the drug. As to Bowie, he was standing within arm's length of a large amount of cocaine that was openly visible on the table. The pictures of the scene, which were admitted into evidence, show very clearly that the table was a high folding table set up like a desk in a room with little other furniture. The table was surrounded by chairs and was set so close to the window that the person seated behind the table barely had room to turn around to the hole in the window screen through which the drugs were sold. Money and drugs were clearly visible on the table. The evidence was therefore sufficient to support a conviction of possession of cocaine as to both defendants.
Addressing the intent to distribute element, the cocaine on the table amounted to thirty-three rocks. Bailey was in possession of another thirty-three. Both defendants were in possession of large amounts of cash: Bowie $600.00 and Bailey $242.00. Although Bowie testified that the money was to pay rent on a room in the building, a credibility determination is within the discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So. 2d 938, 943 (La.1984). The advertised rental rate for the building was "$55.00 and up" from which the jury could reasonably have doubted the veracity of Bowie's explanation for the possession of a sum of cash as large as $600.00. Moreover, the large number of small bills that made up the $600.00 sum (one $100.00 bill, fourteen $20.00 bills, seven $10.00 bills, seventeen $5.00 bills, and, by implication, sixty-five $1.00 bills) is typical of drug dealings. See State v. Williams, supra.
Additionally, Gibson had witnessed a drug transaction from the house a few days prior. A purchaser was stopped and found to be in possession of cocaine. Although all of the drugs were contained within two bags, there was cash out on the table along with cell phones and pagers. Bowie possessed a pager. The table around which the men stood, as described above, was very clearly set up to serve as a work space for the distribution of drugs. These facts support a finding of possession *681 with intent to distribute for both Bowie and Bailey.
These assignments are without merit.
INEFFECTIVE ASSISTANCE OF COUNSEL (BOWIE'S ASSIGNMENT OF ERROR TWO AND HOLMES'S ASSIGNMENTS OF ERROR ONE AND TWO):
Bowie and Holmes argue that the trial court erred in appointing the same attorney and that they received ineffective assistance of counsel because of conflicting defenses. Specifically, each argues that he could have attempted to show that the cocaine belonged to the other.
A similar claim was raised in a recent case wherein this court reviewed the law on point. State v. Causey, 98-1946 (La. App. 4 Cir. 1/26/00), 752 So. 2d 287. In that case, officers obtained a warrant for a residence. The defendant, Celestine, answered the door. Four men, one of whom was in a wheelchair, were in the front room. Causey went from the back room to the kitchen. The officers found a plate in the back room with rocks of cocaine on it. Marijuana was found in a woman's purse in a dresser drawer in that room. The purse contained belongings of Celestine. Celestine admitted the marijuana was hers and that she shared the room with Causey. Both were found in simple possession of cocaine and marijuana. This court stated:
Representation of more than one defendant by the same attorney does not violate federal or state constitutional rights to adequate legal assistance unless such representation gives rise to a conflict of interest. State v. Kahey, 436 So. 2d 475 (La.1983). When there has been no objection to the multiple representation prior to or during trial, the defendant must show that an actual conflict of interest adversely affected his attorney's performance in order to establish a claim of ineffective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); State v. Lobato, 603 So. 2d 739 (La.1992). That is, the defendant must prove both an actual conflict of interest and prejudice. State v. Montegut, 618 So. 2d 883 (La.App. 4 Cir.), writ denied, 626 So. 2d 1177 (La.1993). An actual conflict exists if the defense attorney owes duties to a party whose interests are adverse to those of the defendant. The interests of the other party and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client.
Appellants argue that if they had been represented by different counsel, counsel for Celestine could have argued that she only resided there, and that it was Causey who was involved in the sale of cocaine hidden from view. As to the cocaine in plain view, she could have argued that Causey had just placed it there, and she did not know about it. Of course, Celestine directed the officers to marijuana in her dresser, so she had no defense to that misdemeanor charge. As to Causey, he could have argued that he was only visiting the residence and did not know anything about the drugs found inside the home.
Causey argues that his counsel could have demanded a separate trial, at which he could have objected to the incriminating hearsay statement of Celestine or compelled her to testify. Causey relies on Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), which held that, where a co defendant's confession was admitted at a joint trial, and the codefendant did not take the stand, the defendant was denied his constitutional right to confront his accuser.
*682 In the instant case, Celestine never confessed to the possession of cocaine, nor did she state that Causey possessed cocaine. Rather, she advised the officers that she had some marijuana in a dresser drawer in the back bedroom which she shared with Causey.
Neither of the appellants complained about the possible conflict which could arise from joint counsel until this appeal. Accordingly, they must now prove that counsel had a conflict, and that they were prejudiced by the conflict. [Emphasis added.]
As noted by the State, the contradictory defenses alleged by appellants on appeal are not plausible. Causey was observed by the officers coming from the room in which there was cocaine in plain view. A bag of cocaine was found outside the window of the bedroom that Causey exited. The bedroom had both male and female clothing in it. No trier of fact could reasonably believe that Causey was unaware of the cocaine in the room, even without Celestine's statement that Causey shared the room with her. Celestine, meanwhile, was tied to the evidence in the room by virtue of the purse in the dresser drawer, which held her identification. Besides the cocaine in plain view, and the bag of cocaine tossed out of the window of Celestine's bedroom, Marco and his handler found additional cocaine in a dresser drawer. Likewise, no trier of fact could reasonably believe that Causey had just put the cocaine there, in three different places, without her knowledge.
[A]ppellants were not prejudiced by their use of the same counsel at trial...
Id., pp. 5-6, 752 So.2d at 291-292.
In State v. Thomas, 99-1658 (La.App. 4 Cir. 12/22/99), 750 So. 2d 1114, this court found no ineffective assistance of counsel where one counsel represented two of three brothers and another counsel represented the third. Neither attorney argued that his client or clients were innocent and the other attorney's guilty. All three brothers had guns in the prosecution for first degree murder; their defense did not involve denying that fact.
In this case, neither of the defendants complained about the possible conflict that could arise from joint counsel until this appeal. Accordingly, they must now prove that counsel had a conflict, and that they were prejudiced by the conflict. Causey, supra. The contradictory defenses alleged by defendants on appeal are not plausible. Both of them took the stand. Bowie said that he had just arrived at the residence when the police arrived, had never been there, knew nothing about the drugs, had never done drugs, and did not see Bailey holding drugs or throwing down drugs the entire time he was there. Holmes said that he had just arrived at the house after picking up his daughter. He was the apartment manager or caretaker. He said he did not believe in drugs and that he did not know if either Bailey or Bowie possessed drugs. Appellate counsel for each of the defendants now argues that if each defendant had separate counsel, each defendant could have established that the other possessed the drugs. However, each defendant testified that he knew nothing about the drugs, and in fact had never seen the drugs. In effect, the defendants argue that since they couldn't persuade the jury to believe one story, they should now be given the chance to try out another, regardless of the fact that to do so they must totally contradict their earlier sworn testimony. The argument implies that the purpose of separate attorneys is to suggest to the defendants a version of events most likely to benefit their case rather than to urge them to either tell the truth or assert their Fifth Amendment *683 right to remain silent. It is one thing to suggest that separate attorneys might adopt a different trial strategy that might be of greater benefit to one or more of the defendants. It is quite another thing, and an unacceptable one at that, to suggest that had defendants had separate attorneys they might have testified differently. In essence, the defendants argue that they lied at trial and that this Court should give them relief for having done so, or that they told the truth at trial, but now want this Court to give them a chance to lie.
There was no conflict between the defenses; the defenses were in fact mutually supportive. Neither man knew to whom the drugs belonged.
This assignment is without merit.
HOLMES'S PRO SE ASSIGNMENTS OF ERROR ONE AND TWO:
Holmes argues that there was not probable cause for the issuance of the warrant, and that the motion to suppress was incorrectly denied.
LSA-C.Cr.P. article 162 provides that a search warrant may be issued "only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant." The Louisiana Supreme Court has held that:
Probable cause exists when the facts and circumstances within the affiant's knowledge, and those of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that evidence or contraband may be found at the place to be searched.
State v. Duncan, 420 So. 2d 1105, 1108 (La.1982). See also State v. Roebuck, 530 So. 2d 1242 (La.App. 4 Cir.1988), writ den. 531 So. 2d 764 (La.1988); State v. Scott, 499 So. 2d 1248 (La.App. 4 Cir.1986). The facts which form the basis for probable cause to issue a search warrant must be contained "within the four corners" of the affidavit. Duncan, supra; Roebuck, supra. A magistrate must be given enough information to make an independent judgment that probable cause exists for the issuance of the warrant. State v. Manso, 449 So. 2d 480 (La.1984), cert. den. Manso v. Louisiana, 469 U.S. 835, 105 S. Ct. 129, 83 L. Ed. 2d 70 (1984); State v. Hernandez, 513 So. 2d 312 (La.App. 4 Cir.1987), writ den. 516 So. 2d 130 (La.1987).
In its review of a magistrate's finding of probable cause, the reviewing court must determine whether the "totality of circumstances" set forth in the affidavit is sufficient to allow the magistrate:
[T]o make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband ... will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclu[ding] that probable cause existed."
Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 537 (1983), (quoting Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736, 4 L. Ed. 2d 697 (1960)); See also Manso, supra; Roebuck, supra.
In this case, Gibson's affidavit states that he received information that cocaine was being sold at 1927 Dumaine by "Darryl", a black male, six feet tall, two hundred pounds, twenty-eight years old. Gibson went to the address, saw money exchanged for an object he recognized to be crack through a hole in the screen, stopped the man holding the cocaine, and found the purchased object to indeed look *684 like cocaine. Gibson could see that a six foot tall, two hundred pound black male appearing to be twenty-eight, was standing inside the house. These facts clearly establish probable cause for the issuance of a warrant. Accordingly, we find no merit in defendant's arguments relative to probable cause.
Within that section of his pro se brief nominally devoted to the issue of probable cause, the defendant also raised the issue of whether the search warrant described the premises to be searched with sufficient particularity. A search warrant must particularly describe the place to be searched. U.S. Constitution, Amendment IV; Louisiana Constitution of 1974, Article I § 5; La.C.Cr.P. Article 162. The description in a search warrant application is sufficient if the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable certainty and with the reasonable probability that the police will not search the wrong premises. State v. Korman, 379 So. 2d 1061 (La.1980); State v. Petta, 354 So. 2d 563 (La.1978); State v. Cobbs, 350 So. 2d 168 (La.1977). A discrepancy between the location described in the warrant and the location searched will generally not invalidate the search warrant. See State v. Korman, supra; State v. Ventry, 439 So. 2d 1144 (La.App. 4 Cir.1983), writ den. 443 So. 2d 589 (La.1983). However, if police officers knowingly search an entirely different premises from that described in the warrant, the evidence seized will be suppressed because the warrant did not particularly describe the place to be searched. State v. Manzella, 392 So. 2d 403 (La.1980).
In State v. Diggs, 98-0964 (La.App. 4 Cir. 6/24/98), 715 So. 2d 692, writ den. 98-2647 (La.12/11/98), 730 So. 2d 462, the officers learned from a tip of drug sales from 2614½ Louisiana Avenue. The officers set up a surveillance of the building and saw various transactions between pedestrians and a man who would appear on the balcony on the right-hand side of the building. The officers obtained a warrant listing that address, and they actually watched a similar transaction just prior to executing the warrant. However, as they executed the warrant, they learned the building was a four-plex, and the apartment from which the deals were being made was really 2214½ Louisiana Avenue. The trial court suppressed the evidence due to the discrepancy of the addresses, but on review this court reversed. This court noted that the affidavit adequately described the building to be searched, including the reference to the upper right hand apartment. In addition, the officer who conducted the surveillance and prepared the warrant was also present when the warrant was executed. Lastly, the officers watched a further transaction involving the apartment just prior to executing the warrant.
Likewise, in State v. Sterling, 99-2598 (La.4/25/00), 759 So. 2d 60, the informant stated "Bam" was selling drugs from 3024 Wall Boulevard. The officers set up a surveillance wherein they saw a man fitting "Bam's" description conducting suspected drug transactions from three different doors of the building: the front door, the lower rear door, and the upper rear door. The officers obtained a warrant to search the residence, but when they executed the warrant, they learned that the address given to them, which was the only one visible on the building, really belonged to an upstairs apartment, which was reached through the front door and the upper door in the rear. Another apartment, located on the lower floor, had access only through the lower rear door, and its address was 3022. When the officers went to the upstairs apartment, they were told that "Bam" lived in the downstairs apartment. The officers then went to the *685 downstairs apartment and searched it. The trial court suppressed evidence based upon the discrepancy in the addresses, and on review this court in an unpublished disposition denied writs. State v. Sterling, 99-1217 (La.App. 4 Cir. 8/2/99), unpub. However, the Supreme Court reversed. The Court noted that there was no question that the officers believed the building contained only one residence and that they intended for the warrant to allow them to search the entire building. The Court stated:
In these circumstances, the validity of the search turns on the manner in which the officers execute the warrant "based on the information available as the search proceeds .... recogniz[ing] the need to allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants."
Sterling, 99-2598 p. 4, 759 So.2d at 62 (citing Maryland v. Garrison, 480 U.S. 79, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987)). The Court noted that the defendant's movements between the upstairs and downstairs apartments reasonably led the officers to believe the building contained only one residence, and it further noted that the officers searched only the downstairs apartment once they learned that the suspect lived there.
In State v. Smith, 397 So. 2d 1326 (La. 1981), a search warrant was issued for a residence located at 1821 Carondelet Street. The warrant application described the residence in greater detail, including a picture window on the right side of the front door and a white column bearing municipal number 1821 to the left of the front door. The warrant application also contained the information that no apartment number was available, and the structure contained both an upstairs and a downstairs apartment. The police executed the search warrant and searched the apartment which had a front door in the location precisely described in the warrant application. The officers later learned that this apartment had a separate municipal address, 1819 Carondelet Street. On appeal, the Supreme Court affirmed the trial court's refusal to suppress the evidence. The court noted:
The object of the particularity requirement is to prevent the search of the wrong premises. As this Court said in State v. Cobbs, supra [350 So. 2d 168 (La.1977) ] at 171:
"* * * If the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable certainty and with the reasonable probability that the police will not search the wrong premises, the description is sufficient. * * *"
Hence, "a minor error in a portion of the description of the premises to be searched does not invalidate the search." State v. Korman, 379 So. 2d 1061, 1063 (La.1980)....
State v. Smith, 397 So.2d at 1328.
The Court in Smith relied on State v. Hysell, 364 So. 2d 1300 (La.1978), in which the search warrant failed to indicate which apartment in a two-apartment building was the object of the search. However, the affidavit in support of the warrant provided a detailed description, specifying that the apartment was on the east side above a beauty salon closest to the street. The court found that the description was sufficient to insure that the police would not search the wrong apartment.
The Smith court distinguished State v. Manzella, 392 So. 2d 403 (La.1980), in which police officers, acting on information from a named informant, obtained a search warrant for 6176 Pontchartrain Boulevard. The application for the warrant described *686 the premises to be searched as a "one-story, brick frame, double residence." While executing the warrant, the officers rang the doorbell at the gate with the mailbox marked 6176. The woman who answered was the defendant's sister. When asked whether it was the residence of Blaise Manzella, she informed the officers that the defendant lived in the other half of the house (6178 Pontchartrain Boulevard). The police then executed the search warrant at 6178 Pontchartrain Boulevard. On review, the Court concluded that the apartment which was searched by the police was not particularly described in the warrant:
In the case before us, unlike Petta [State v. Petta, 354 So. 2d 563 (La.1978) ] and Alexander [State v. Alexander, 337 So. 2d 1111 (La.1976) ], we have a warrant for an actual address. Unlike the warrant in Korman, this warrant is not for the only complex apartment bearing the described number although naming the wrong building of the complex. Indeed, police were informed that defendant Manzella lived in the very apartment they sought to search and their information was erroneous.
The apartment which was searched by the police was not "particularly described" in the warrant. In fact, another apartment, not defendant's, was so particularly described. The description employed would not have prevented the search of the wrong premises; rather, the description would have facilitated [the] search of the wrong premises. That 6176 Pontchartrain was not searched was due to the lucky happenstance that defendant's sister answered the bell at 6176 Pontchartrain Boulevard and informed police that defendant lived at 6178 rather than 6176.
Manzella, 392 So.2d at 405-06.
The holdings of State v. Alexander, 337 So. 2d 1111 (La.1976); State v. Petta, 354 So. 2d 563 (La.1978); State v. Johnson, 534 So. 2d 1322 (La.App. 4 Cir. 1988) writ den. State v. Willis, 540 So. 2d 326 (La. 1989), and State v. Ventry, 439 So. 2d 1144 (La.App. 4 Cir.1983), writ den. 443 So. 2d 589 (La.1983), appear to support the State's argument. In Alexander, the warrant affidavit listed the address to be searched as 243 Pearl Street and described the house as being near a church and belonging to the defendant's father, who was the minister at the church. The actual municipal address, which was not marked on the house, was 245 Pearl Street, which was also the address of the church. The house was located behind and to the side of the church. In addition, there was no indication that any building was numbered 243 Pearl. The Court upheld the search pursuant to the warrant, finding that the description of the location of the house was sufficient to describe the residence which was searched.
Likewise, in Petta, supra, the warrant was issued for 1433 Crete Street and fully described the residence to be searched. However, the residence did not have a municipal address on it, and the actual address of the house was 1435. On review, the Court noted that the house was located next to an alleyway, on the other side of which was 1431 Crete, and that there was no address of 1433 Crete. The Court upheld the search, noting that the description given in the affidavit adequately described the residence which the officers searched.
In Johnson, supra, cited by the State, a search warrant authorized the search of 70001 Bundy Road, Apartment E-15. The location actually searched was 7001 Bundy Road, Apartment E-15. This Court upheld the search, finding "there was very little, if any possibility that the wrong premises would be searched. The typographical error *687 of an additional `O' in the address does not invalidate the warrant." Johnson, 534 So.2d at 1326. In Johnson, the police officer obtained and executed the warrant after personally observing the premises, setting up a surveillance, and verifying that the defendant resided there.
In Ventry, supra, the affidavit listed a pool hall at 1918 St. Andrew Street, and specified that drugs could be found in the "manager's office". The officers executed the warrant and seized evidence from the manager's office. The defendant sought to suppress the evidence seized from the office because it was actually located in the building next to but attached to 1918, and that building was actually 1920 St. Andrew. This court rejected the argument, noting that the manager's office was accessible through the pool hall at 1918 St. Andrew, and the officers had no reason to believe it was actually located in a different building, the front of which in any event did not have an address. This court upheld the search, noting that "the officers did not knowingly search a municipal address not specifically designated in the warrant." Ventry, 439 So.2d at 1146.
In this case, the warrant was executed by the affiant. He observed the transaction, and knew the place that was intended to be searched, i.e., the room on the front of the building containing the first window onto the alley. There is no indication that the warrant was intended for other rooms containing windows on the same alley as the defendant argues. Accordingly, we find no merit in the defendant's contentions regarding the defective nature of the search warrant.
The defendant contends that the affidavit contained intentional misrepresentations and inaccurate statements.
The Louisiana Supreme Court in State v. Rey, 351 So. 2d 489, 491-492 (La. 1977), discussed the approach to be taken when an application for a search warrant contains intentional misrepresentations or inaccurate statements:
Because the invasion of home and privacy cannot be justified by misrepresentations, and in order to insure that the magistrate, and not the affiant, determines probable cause, this court has recognized on numerous occasions the defendant's right to traverse the allegations made by the affiant. [Citations omitted]. We have held that minor inaccuracies in the affidavit may not affect the validity of the search warrant (e.g. State v. Thomas, 329 So. 2d 704 (La. 1976)); State v. Chaffin, 324 So. 2d 369 (La.197[5])[,cert. denied, Chaffin v. Louisiana, 426 U.S. 907, 96 S. Ct. 2228, 48 L. Ed. 2d 832 (1976)].
The Fifth Circuit Court of Appeals was faced with this problem in U.S. v. Thomas, 489 F.2d 664 (5th Cir.1973), cert. denied, 423 U.S. 844, 96 S. Ct. 79, 46 L. Ed. 2d 64 (1975). That court noted that when faced with an affidavit containing inaccurate statements the preferred approach is to excise the inaccurate statements and then examine the residue to determine if it supports a finding of probable cause. If, however, the misrepresentations were intentionally made, a different result is required. Because these distorted statements constitute a fraud upon the courts and represent impermissible overreaching by the government, a warrant based on an affidavit containing intentional misrepresentations must be quashed.
We are in agreement with the approach described by the Fifth Circuit and adopt it as our own.
In this context, "intentional" means a deliberate act designed to deceive the issuing magistrate. State v. Lamartiniere, 362 So. 2d 526 (La.1978).
*688 There is no indication that Gibson made intentional misrepresentations or inaccurate statements in the affidavit supporting the warrant. The trial court, therefore, did not err in finding probable cause.
The defendant repeats some arguments in assignment of error two raised in assignment of error one. He styles the assignment as the trial court having erred in having denied the motion to suppress instead of the trial court having erred in finding probable cause. He argues that there existed inconsistencies in testimony at the motion to suppress, and that he should have been afforded a transcript so that he could have argued the inconsistencies. There were no inconsistencies.[2] There was, however, additional testimony: at the beginning of the hearing December 2, 1997, Gibson testified that he sent a confidential informant into the residence immediately before the warrant was executed, and that the informant made a buy which Gibson confirmed. As such, the additional testimony at the hearing further supported a finding of probable cause. The trial court did not err in denying the motion to suppress.
In connection with his first pro se assignment of error the defendant also complains about the failure of the prosecution to furnish him with the name of the confidential informant. This issue was not raised in the trial court. Moreover, the burden is on the defendant to show exceptional circumstances warranting disclosure of the name of a confidential informant. State v. Davis, 411 So. 2d 434, 436 (La. 1982). The defendant has made no attempt to show any such exceptional circumstances.
These assignments are without merit.
HOLMES'S PRO SE ASSIGNMENT OF ERROR THREE:
The defendant argues that the prosecutor made improper remarks. Specifically, he complains that the trial court asked, "Okay now sir when you don't believe in drugs you are a convicted felon for burglary of a pharmacy?" The defendant responded, "It wasn't a pharmacy." The defendant did not object at that time and may not raise the issue for the first time on appeal. La.C.Cr.P. art. 841. Furthermore, the defendant testified during direct that he did not believe in drugs. Thus, the prosecutor was free to cross-examine him on his drug habits and on his criminal record. La. C.E. art. 404.
The defendant argues the prosecutor knew he was innocent and that he tampered with the evidence and presented false testimony. There is no evidence in the record to support this assertion. The defendant was free to cross-examine, and did fully cross-examine the witnesses. This assignment of error has no merit.
HOLMES'S PRO SE ASSIGNMENT OF ERROR FOUR:
The defendant argues insufficient evidence. The law is set out above.
Gibson received evidence from an informant that "Darryl" was selling drugs from the house. Gibson witnessed a transaction. The seller had a hand the complexion of the defendant's. "Darryl" *689 was described as a 6', two hundred pound, twenty-eight year old black man. Gibson saw a person matching that description inside the house immediately after the transaction was completed and the purchaser was found in possession of cocaine. Cocaine and items commonly used in cocaine transactions were in plain view on a table near to the defendant when the warrant was executed. Documents were found in the defendant's name with the address of the house on them. These facts are clearly sufficient to support the conviction. This assignment of error has no merit.
HOLMES'S PRO SE ASSIGNMENT OF ERROR FIVE:
The defendant argues the trial court erred in denying his motion for a new trial. He argues the trial court should have given reasons why it denied the motion.
The basis of the motion was that the verdict was contrary to the law and the evidence. That issue is reviewed in the above assignment. The trial court was under no obligation to give reasons for its denial of the motion.
This assignment is without merit.
HOLMES'S PRO SE ASSIGNMENT OF ERROR SIX:
The defendant argues ineffective assistance of counsel.
Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So. 2d 729 (La.1984); State v. Johnson, 557 So. 2d 1030 (La.App. 4th Cir.1990); State v. Reed, 483 So. 2d 1278 (La.App. 4th Cir. 1986). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Seiss, 428 So. 2d 444 (La. 1983); State v. Ratcliff, 416 So. 2d 528 (La. 1982); State v. Garland, 482 So. 2d 133 (La.App. 4th Cir.1986); State v. Landry, 499 So. 2d 1320 (La.App. 4th Cir.1986).
The defendant's claim of ineffective assistance of counsel is to be assessed by the two part test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fuller, 454 So. 2d 119 (La.1984). The defendant must show that counsel's performance was deficient and that the deficiency prejudiced the defendant. Counsel's performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment. Strickland, supra at 687, 104 S.Ct. at 2064. Counsel's deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra at 694, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow, 612 So. 2d 191, 199 (La.App. 4th Cir.1992).
This court has recognized that if an alleged error falls "within the ambit of trial strategy" it does not "establish ineffective assistance of counsel." State v. Bienemy, 483 So. 2d 1105 (La.App. 4th Cir. 1986). Moreover, as "opinions may differ on the advisability of ... a tactic, hindsight is not the proper perspective for judging the competence of counsel's trial decisions. Neither may an attorney's level *690 of representation be determined by whether a particular strategy is successful." State v. Brooks, 505 So. 2d 714, 724 (La. 1987), cert. denied, Brooks v. Louisiana, 484 U.S. 947, 108 S. Ct. 337, 98 L. Ed. 2d 363 (1987).
The defendant argues counsel was ineffective because he did not point out inconsistencies in Gibson's testimony and did not point out false statements in the police report or the affidavit supporting the warrant. As discussed above, there were no inconsistencies or false statements. Gibson was effectively cross-examined.
The defendant also argues the conflict of interests issue already raised above.
He argues that counsel did not fully investigate the scene to show that Gibson could not have been telling the truth. The jury viewed photographs of the scene, studied Gibson's demeanor, and had the benefit of extensive cross-examination in making a determination of his credibility. The defendant argues that counsel should have established that there were other rooms for rent in the building, and that it was not clear that the transaction occurred at Holmes's window. The jury heard evidence that the building was a rooming house and witnessed the pictures of the scene. The defendant argues that counsel should have called more witnesses, namely the landlord and workers who were working on the building. The defendant makes no showing that these witnesses would have testified as he alleges they might have, i.e., that there were no drugs on the scene.
He argues the prosecutor made an improper remark in referring to a crime against a pharmacy that did not occur. As set out above, the defendant took the stand. The State was therefore entitled to go into his criminal record, and the defendant was free to admit or deny the record.
The defendant points out that counsel has been disbarred. In re Lewis, 98-2825 (La.1/29/99), 728 So. 2d 846. Counsel was disbarred because he forged checks and co-mingled funds in civil cases he was handling. Those issues did not effect his trial expertise in general nor his representation of the defendant in this case.
This assignment is without merit.
HOLMES' SUPPLEMENTAL ASSIGNMENT OF ERROR
In a supplemental assignment of error, Holmes argues that a court reporter omitted crucial excerpts of transcripts and added others. There is no evidence to support the defendant's assertions; and the court reporters signed all transcripts, attesting to their accuracy.
The defendant again argues inconsistencies in Gibson's testimony. As set out in the original memorandum, there were no inconsistencies; and Gibson was effectively cross-examined.
This assignment is without merit.
For the foregoing reasons, the convictions and sentences of all defendants are affirmed.
CONVICTIONS AND SENTENCES AFFIRMED.
Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge JOAN BERNARD ARMSTRONG, Judge STEVEN R. PLOTKIN, Judge CHARLES R. JONES, Judge MIRIAM G. WALTZER, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, Sr., Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr., Judge DAVID S. GORBATY.
*691 ON APPLICATION FOR REHEARING
BYRNES, Chief Judge.
Defendants Holmes and Bowie applied for rehearing. The arguments they raise in connection with insufficiency of evidence and ineffective assistance of counsel were adequately addressed in the original opinion of this Court.
However, they also raise a new issue non-compliance with La.C.Cr.P. art. 517. When there is joint representation of two or more defendants, La.C.Cr.P. art. 517 requires the judge to "inquire with respect to such joint representation and shall advise each defendant on the record of his right to separate representation." (Emphasis added.)
There is no evidence on or off the record to show that this was ever done. The State was given a chance to supplement the record with any such evidence. The State failed to do so. Moreover, the State does not even contend that the trial court advised the defendants of their right to separate representation.
Accordingly, we find that the trial court failed to comply with the requirements of La.C.Cr.P. art. 517, and that this failure constitutes error. However, the question of whether an error of this type is subject to harmless error analysis appears to be res nova. Accordingly, the question was submitted to the Court for consideration en banc. A majority of the Court voted en banc to treat the matter as harmless error under the facts of this case.
The only case interpreting La.C.Cr.P. art. 517 is State v. Morris, 98-2684 (La. App. 4 Cir. 3/10/99), 729 So. 2d 1141, writ not considered 99-1025 (La.4/30/99, 741 So. 2d 6). The defendants contend that Morris mandates reversal and does not permit a harmless error analysis. Morris does not hold that or imply that. The facts in Morris are very different from those found in the instant case. In Morris this Court did nothing more than find that the trial court did not abuse its discretion in allowing a defendant to withdraw a guilty plea where there was a failure to comply with the requirements of La. C.Cr.P. art. 517. Where this Court adopts an abuse of discretion standard in Morris we necessarily infer that the failure to comply with La.C.Cr.P. art. 517 is not, ipso facto, fatal error. By applying an abuse of discretion standard in Morris, this Court implied that there would be instances in which, in the exercise of the trial court's discretion, a failure to comply with La. C.Cr.P. art. 517 would not result in a favorable outcome for the defendant, which is the same thing as saying that the error could be harmless depending on the facts.
Multiple representation is not per se illegal and does not violate the Sixth Amendment to the United States Constitution unless it gives rise to a conflict of interest. State v. Kahey, 436 So. 2d 475, 484 (La.1983). The jurisprudence has typically viewed conflict claims as a species of ineffectiveness claims. State v. Holder, 99-1747 (La.App. 3 Cir. 10/11/00), 771 So. 2d 780. Where there has been no objection to the multiple representation prior to or during trial, the defendant must establish that an actual conflict of interest adversely affected his counsel's performance in order to establish a claim of ineffective assistance of counsel in violation of the Sixth Amendment. State v. Lobato, 621 So. 2d 103 (La.App. 2 Cir.1993). A reviewing court cannot presume that joint representation and the possibility of a conflict of interest has resulted in ineffective assistance of counsel. Id.; Kahey, supra. Actual conflicts of interest that actually affected counsel's performance must be established by specific instances in the record, and the mere possibility of divided loyalties is insufficient proof of actual *692 conflict. Lobato, supra; United States v. Roth, 860 F.2d 1382 (7 Cir.1988), cert. den. 490 U.S. 1080, 109 S. Ct. 2099, 104 L. Ed. 2d 661 (1989).
Lobato, supra, demonstrates the type of specificity necessary to establish the existence of a conflict prejudicial to the defendant when the issue is raised for the first time on appeal:
Defendant's assertions that he was denied effective assistance of counsel are purely speculative and do not rise to the level of showing an actual conflict of interest. Defendant's allegation that the conflict of interest prevented Mr. Jefferson from calling Phillips as a witness is pure conjecture. There is no indication that Phillips would have waived his Fifth Amendment right against self-incrimination. Rather, from Mr. Jefferson's testimony regarding Phillips's reluctance to testify, such a waiver would appear unlikely. Importantly, Mr. Jefferson stated that Phillips and Lobato gave him the same story. The record does not indicate that Phillips would have testified that Lobato was an innocent dupe to Phillips's drug kingpin. A defendant claiming that a conflict of interest resulted in his counsel's failure to call a witness must do more than point to a witness's failure to testify, the defendant must specifically identify what testimony was denied to the jury and how this adversely affected the defendant. United States v. Abner, 825 F.2d 835 (5 Cir.1987).
By analogy, the suggestions of conflict in the instant case are even more speculative, vague and implausible than those rejected by the court in Lobato. The mere "possibility" of conflict is insufficient to impugn a criminal conviction; the defendant must show that his counsel actively represented conflicting interests. Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).
State v. Morrow, 440 So. 2d 98 (La.1983), cited by the majority, had facts establishing a potential conflict totally distinguishable from the instant case:
At the postconviction hearing, relator testified without contradiction that he told his trial counsel he was waiting for a ride home and did not initially know of the kidnapping. Yet the trial attorney did not present evidence or argument on this point even in the penalty phase, presumably because he could not do so without emphasizing Burge's [ (the jointly represented co-defendant) ] guilt.
The victim and the witness to the incident in the parking lot clearly testified that Burge alone performed the initial abduction. Nevertheless, relator's trial counsel failed to emphasize to the jury, through cross-examination and argument, that relator did not participate in the initial abduction. More importantly, counsel never emphasized relator's lesser overall culpability, not even during the penalty phase when the jury was considering the death penalty for both defendants. The state argues that the facts establishing relator's lesser culpability were before the jury, but that argument underplays the role of advocacy. The importance of emphasizing relator's lesser role is best illustrated by the fact that this court on original appeal mistakenly stated, in reciting the undisputed facts, that "defendants placed a sharp object at the throat of a female shopper as she returned to her car" and "[t]he two then forced the woman into the passenger side of the vehicle and drove her to a deserted area, where she was beaten and raped". (Emphasis supplied.)
Trial counsel also did not follow up on Cantrell's statement at the original trial *693 that relator told him he was waiting "around the side of the building wanting to go home" after they couldn't cash the check.... Neither did the attorney argue that point to the jury. Moreover, Cantrell later testified at the postconviction hearing that Burge told him "not to get mad at [relator] for anything that had happened, because [Burge] had forced [relator] to go with him". Cantrell further testified that he had told relator's attorney that Burge had pulled a knife on relator and forced him to go to the store, but the attorney instructed Cantrell not to mention this. The trial attorney was not asked to confirm or deny the testimony, which therefore stands uncontradicted.
Relator's sister testified at the postconviction hearing that Burge, who had just gotten out of jail, had pulled a knife on relator shortly before they left for the store, but that relator's attorney instructed her not to say this in court. The district attorney also did not question the trial attorney on this point.
Additionally, since relator had no prior record and was clearly the less culpable of the two defendants, there was no compelling reason for him not to testify, except that his testimony would have drawn the jury's attention, directly or indirectly, to Burge's greater culpability. Yet relator's trial counsel never advised him nor discussed with him the potential advantages of taking the stand, presumably because of the difficulty in "serving two masters".
Finally, relator's attorney presented no argument to the jury, even in the penalty phase, which pointed out that relator may have been innocent or at least guilty only of simple kidnapping. Clearly, the conflict of interest deprived relator of a meaningful chance to have the jury consider his lesser culpability as to the aggravated kidnapping charges. The fact that the jury on its own recognized a difference in culpability between a defendant who used a knife to commit rape and one who simply followed the aggressive leader suggests that the jury may have recognized a difference in culpability for the kidnapping, if the pertinent facts had been argued by an attorney solely interested in relator's welfare.
The representation as to the intoxication defense was vigorous and well presented. Nevertheless, there was another plausible defense that could not be presented because of an actual conflict of interest. Significantly, the two defenses were not inconsistent, but were supplemental, since a conflict-free attorney could have argued that relator was so intoxicated that he could not form the specific intent required for aggravated kidnapping (or could not discern right from wrong as to either offense), or alternatively that relator did not plan the kidnapping and did not realize in his dazed condition that a kidnapping had occurred until Burge had already seized the victim and carried her away.
We conclude that the evidence and argument, which relator's attorney was precluded from presenting because of a conflict of interest, might have influenced twelve reasonable jurors, under the overall circumstances of this case, to return a different verdict (such as simple kidnapping, with a five-year maximum sentence). At the very least, relator was entitled to have a jury (rather than an appellate court) make this determination on the basis of evidence and argument forcefully presented by an advocate solely interested in his welfare.
The Official Comments under LSA C.Cr.P. art. 517 acknowledge that it is based upon, although not identical to, F.R.Cr.P. 44(c). Failure to advise the defendants pursuant to Rule 44(c) will not automatically require *694 a reversal of a conviction. See United States v. Holley, 826 F.2d 331 (5 Cir.1987), cert. den. 485 U.S. 960, 108 S. Ct. 1222, 99 L. Ed. 2d 422, citing United States v. Benavidez, 664 F.2d 1255, (5 Cir.1982), cert. den. 457 U.S. 1135, 102 S. Ct. 2963:
Benavidez instructs that the goal of Rule 44(c) is to prevent conflicts that may be associated with joint representation. "The inquiry and advice provided by that rule are not ends in themselves; they are a procedure designed to prevent conflicts of interest." (Citation omitted.) Evaluating the trial court's compliance with Rule 44(c) thus cannot be divorced from a showing that a defendant has been denied his sixth amendment right to effective counsel. "If there is no actual conflict, then the rule's purpose will not be served by reversal of a conviction." Benavidez, 664 F.2d at 1258.
Holley, 826 F.2d at 333. The court in Holley further stated that although it did "not condone the trial court's omission of its duty, ... careful government counsel should ordinarily wish to draw a court's attention to Rule 44(c)." Id. this language confirms that Rule 44(c), and by analogy Article 517, are strictly procedural vehicles to lessen the possibility that after conviction a jointly-represented defendant will assert a claim that his counsel was not conflict-free and thus was ineffective. Failure to have advised the defendant will not automatically result in the success of such a claim, but arguably having advised the defendant will make it less likely that such a claim will be raised.
Accordingly, the failure of the trial court to inquire into the joint representation on the record does not rise to the level of a denial of a constitutional right. Moreover, because no objection was made prior to trial and no motion for separate counsel was made because of counsel's perceived conflict, the violation was waived. LSA-C.Cr.P. art. 841A.
We herewith incorporate by reference the analysis from our original opinion on the issue of joint representation which leads us to conclude that the failure to comply with La.C.Cr.P. art. 517 is harmless.
To recap the key factors in the instant case:
1. A violation of La.C.Cr.P. art. 517 is not reversible error per se. La. C.Cr.P. art. 517 does not create a constitutional right. It is subject to harmless error review.
2. The defendants raised the issue of possible conflict for the first time on this appeal. The burden is on them to prove that a conflict existed and that they were prejudiced as a result.
3. Conflict claims are a species of ineffectiveness claims subject to harmless error review.
In the instant case, as a matter of law and fact, including the testimony of the defendants, the failure to comply with the technical requirements of La.C.Cr.P. art. 517 was harmless.
For the foregoing reasons, the original opinion of this Court is affirmed.
AFFIRMED.
TOBIAS, J., PLOTKIN, J., and GORBATY, J., dissenting with written reasons.
TOBIAS, PLOTKIN, and GORBATY, JJ., dissenting.
The arguments that the defendants, Darrell Holmes and Barry Bowie, raised in connection with insufficiency of evidence and ineffective assistance of counsel were correctly addressed in the original opinion of 8 November 2000.
*695 In the applications for rehearing, the defendants argue that the trial court erred by appointing a single attorney to represent both of them because of the differences in their defenses and past criminal records without following La.C.Cr.P. art. 517. In the original briefs to this Court, the defendants failed to make an argument respecting La. C. Cr. P. art. 517, which became law by Act 889 of 1997. Article 517 provides:
A. Whenever two or more defendants have been jointly charged in a single indictment or have moved to consolidate their indictments for a joint trial, and are represented by the same retained or appointed counsel or by retained or appointed counsel who are associated in the practice of law, the court shall inquire with respect to such joint representation and shall advise each defendant on the record of his right to separate representation.
B. Unless it appears that there is good cause to believe that no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant's right to counsel. [Emphasis supplied.]
The minute entry of 13 February 1998 states that all defendants were present in court on that date and the court appointed Keith Lewis of the OIDP to represent Holmes and Bowie. The transcript of that hearing confirms the minute entry. No motion to sever was ever filed by defense counsel. The remainder of the record before us is silent as to whether either defendant was advised of his La.C.Cr.P. art. 517 rights. The State was given an opportunity to argue that the defendants were advised of their Article 517 rights at that 13 February 1998 hearing or at another time. The State concedes in brief that the defendants were not advised on the record of their right to separate counsel. Accordingly, we conclude that defendants were not advised on the record of that right.
"The members of the Legislature are presumed to know the law, and not to intend to enact legislation that would be manifestly in contravention of constitutional prohibitions, and of no legal force or effect whatever." State ex rel. Varnado v. Louisiana Highway Commission, 147 So. 361, 177 La. 1 (La.1933).
The Legislature added Article 517 to our law in 1997. They obviously had good reasons to add the provision to our statutory scheme.
The official comments to the article indicate that the intent was to mimic F.R.Cr.P. 44(c). Concededly, the language is "almost verbatim" that of Rule 44(c). But Article 517 contains a major difference. Article 517 requires the trial court on the record to advise each of the conjointly accused of his or her right to separate counsel; Rule 44(c) does not require the advice on the record.
The right to counsel is fundamental under both our federal constitution (U.S. Const. Amend. 6) and state constitution (La. Const. Art. I, § 13). When the Louisiana Legislature speaks and states that the trial court judge shall advise on the record a defendant in a criminal case of his right to separate counsel, we take it at its word. We read Article 517A as mandating that the trial court shall at some point during the pre-trial proceedings inquire of counsel whether counsel perceives a problem with the joint representation and shall on the record advise the accused of his right to separate representation. Even if counsel asserts that no problem exists, the language in the statute requires the court to advise the accused of his right to separate counsel and sever the trial of the accused from the co-accused or take such other measure "as may be appropriate to protect each defendant's right to counsel." *696 (The court could obtain an appropriate waiver from the accused.) See Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978); State v. Franklin, 400 So. 2d 616 (La.1981); State v. Marshall, 414 So. 2d 684 (La.1982) cert denied, 459 U.S. 1048, 103 S. Ct. 468, 74 L. Ed. 2d 617 (1982); State v. Edwards, 430 So. 2d 60 (La.1983); State v. Seay, 521 So. 2d 1206 (La.App. 2 Cir. 1988).
In this case, by the joint representation of Bowie and Holmes, defense counsel may have been effectively prohibited from cross-examining one or the other defendant about the totality of the circumstances of the case. A similar problem existed during closing argument because defense counsel may not plausibly have had the ability to argue to the jury that they should acquit one defendant without arguing that the controlled dangerous substance belonged to the other defendant, regardless of what he testified to on the stand. See State v. Morrow, 440 So. 2d 98 (La.1983).
The only case to specifically analyze La. C. Cr. P. art. 517 is State v. Morris, 98-2684 (La.App. 4 Cir. 3/10/99), 729 So. 2d 1141, writ not considered, 99-1025 (La.4/30/99), 741 So. 2d 6, which held that a trial court did not abuse its discretion in allowing a defendant to withdraw a guilty plea when the court failed to comply with La.C.Cr.P. art. 517. The opinion in that case clearly recognizes the importance of the then recently added provision to our law.
In this case, a harmless error analysis prevents a reversal primarily because both Bowie and Holmes took the stand. However, because the issue is raised in the context of ineffective assistance of counsel and not as a mere assignment of error, the defendants will be precluded from raising the issue in an application for post conviction relief. This again demonstrates why arguments of ineffective assistance of counsel should generally be addressed only as a post-conviction relief matter and not on the appeal of the conviction. We therefore conclude that the original opinion in regard to the issue of ineffective assistance of counsel is wrong.
Because the record is totally silent with respect to compliance with Article 517 and because the State concedes that the defendants were not advised on the record of their Article 517 rights, we respectfully dissent from the conclusion reached by the majority.
NOTES
[1] Gibson said on cross examination that Bailey does not have a light skinned hand, but that Holmes had a hand that looked "identical."
[2] These alleged inconsistencies were that Officer Gibson could not have known how the defendants were positioned in the room because he did not enter until they were already handcuffed and on the floor. Officer Gibson made it clear that his description of the position of the defendants was based on information furnished to him by officers who preceded him into the room. There is nothing inconsistent in officer Gibson's testimony. There was no hearsay objection made to Officer Gibson's testimony. This fact was established on cross-examination as set out above. Regardless, the position of the defendants in the room has no bearing on the validity of the search warrant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608457/ | 791 So. 2d 902 (2001)
Antonio ANDREWS a/k/a Tony Berry, Appellant
v.
STATE of Mississippi, Appellee.
No. 2000-CP-01140-COA.
Court of Appeals of Mississippi.
August 7, 2001.
Antonio Andrews, Appellant pro se.
*903 Office of the Attorney General by Deirdre McCrory, for Appellee.
Before KING, P.J., LEE, and CHANDLER, JJ.
KING, P.J., for the Court:
¶ 1. Antonio Andrews perfected this appeal from the denial of post-conviction relief by the Circuit Court of Pontotoc County, Mississippi. Andrews pled guilty to selling cocaine and conspiracy to sell cocaine and was sentenced to serve nineteen years in the custody of the Mississippi Department of Corrections, with five years suspended for both charges. He has asserted that: (1) his guilty plea was not voluntarily given and (2) that he received ineffective assistance of counsel.
FACTS
¶ 2. The Pontotoc County Grand Jury, in separate indictments, charged Antonio Andrews with various drug offenses. The first indictment, entered on January 11, 1997, under the cause number 97-157, charged Andrews with selling cocaine and conspiracy to sell cocaine. Andrews pled guilty to these charges. The court sentenced Andrews to nineteen years with five years suspended, fined him $5,000 with $4,500 suspended and ordered him to pay restitution to various parties on the sale of cocaine charge and nineteen years with five years suspended on the conspiracy to sell charge. The second indictment, entered on December 11, 1997, under cause number 97-158, charged Andrews with selling cocaine. Andrews pled not guilty to this charge, and the matter proceeded to trial on April 14, 1998. After a jury verdict of guilty, the court sentenced Andrews to serve a term of fifteen years, with five years suspended. This sentence was to run concurrently with the sentence from the first indictment.
¶ 3. Andrews appealed his conviction and sentence in cause number 97-158, but later declined to pursue that appeal. He then filed a motion for post-conviction relief. In an order entered June 6, 2000, the court denied Andrews' motion for post-conviction relief finding that he had not exhausted his appellate remedies as required by the Post-Conviction Relief Act. Miss.Code Ann. § 99-39-1 (Rev.2000). However, the trial court noted Andrews had entered guilty pleas in cause number 97-157, and proceeded to apply his motion for post-conviction relief to that cause. Upon review of the plea hearings, the trial court held that Andrews was not entitled to post-conviction relief in cause number 97-157, nor had he established a prima facie case entitling him to an evidentiary hearing. Aggrieved by the trial court's decision, Andrews appealed the denial of post-conviction relief.
ANALYSIS AND ISSUES
I.
Whether the appellant's guilty plea was voluntarily given?
II.
Whether the appellant received the ineffective assistance of counsel?
¶ 4. This Court reviews the denial of post-conviction relief under an abuse of discretion standard. Mitchell v. State, 754 So.2d 519(¶ 7) (Miss.Ct.App.1999). Pursuant to Miss.Code Ann. § 99-39-11 (2000), Andrews was first obligated to plead and offer sufficient proof of facts which would entitle him to an evidentiary hearing. The trial court, relying on the record of the plea hearing, found that Andrews failed to meet the initial threshold. This Court has reviewed that record and cannot say that the trial court abused its discretion.
*904 ¶ 5. The record establishes that Andrews, after being placed under oath, had explained to him by the trial court, and was questioned by the trial court to determine whether he knew and understood, the effects of a guilty plea, and whether he was entering that plea of his own volition. Andrews' answer given, under oath, indicates that he entered his plea voluntarily, knowingly and intelligently. Both this Court and the trial court, in the absence of evidence of sufficient weight and quality, are entitled to rely upon these answers given under oath. Sherrod v. State, 784 So.2d 256(¶ 15) (Miss.Ct.App. 2001) (citing Simpson v. State, 678 So. 2d 712, 716 (Miss.1996)).
¶ 6. The record before this Court does not demonstrate that Andrews presented to the trial court evidence of sufficient weight and gravity to merit either an evidentiary hearing or post-conviction relief.
¶ 7. Accordingly, this Court finds no abuse of discretion by the trial court.
¶ 8. THE JUDGMENT OF THE PONTOTOC COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS ARE ASSESSED TO PONTOTOC COUNTY.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS and CHANDLER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608454/ | 791 So. 2d 32 (2001)
STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner,
v.
Ronald Gayle PORTER, Respondent.
No. 2D00-4680.
District Court of Appeal of Florida, Second District.
May 4, 2001.
Rehearing Denied August 3, 2001.
*33 Enoch J. Whitney, General Counsel, and Richard Simpson, Assistant General Counsel, Miami, for Petitioner.
A.R. Mander, III of Greenfelder, Mander, Hanson, Murphy & Dwyer, Dade City, for Respondent.
NORTHCUTT, Judge.
On Ronald Porter's petition for a writ of certiorari, the circuit court quashed an order of a Department of Highway Safety and Motor Vehicles hearing officer which sustained the suspension of Porter's driver's license. In turn, the Department petitioned us for certiorari review of the circuit court's order. We grant the writ and quash the order.
Pursuant to section 322.2615(1)(a), Florida Statutes (1997), Pasco County Deputy Sheriff John D. Watson suspended Porter's license after Porter refused to take a breath test. Porter then invoked his right to a formal review of the suspension by a Department hearing officer. § 322.2615(1)(b), Fla. Stat. (1997). No witnesses testified at the review hearing. Rather, as permitted by the statute, the hearing officer based his decision on information contained in sundry documents generated by Deputy Watson in regard to the incident. § 322.2615(11), Fla. Stat. (1997). These included the arrest affidavit in which Deputy Watson gave the following version:
The DEF did operate a 1984 GMC Jimmy Pickup Truck [...] on SR 52 WB. Deputy Cox stopped him for going 45 mph in a 35 mph zone and leaving his lane of travel over the right fog line twice. Upon contact I observed a strong odor of alcoholic beverage about him, glassy bloodshot eyes, and was unsteady on his feet. On video he started field sobriety tests then refused to perform them. I advised him it could be used against him. I then placed him under arrest for DUI. After Implied Consent he refused the breath test. He had 4 empty and 8 full Bud Light beers on ice in his truck.
The hearing officer also considered Deputy Watson's sworn DUI Report, which recounted Porter's driving as described above and stated that Porter had been "witnessed and stopped by Deputy Cox." Under "DRIVER CONTACT," Deputy Watson noted that Porter was "slouched down in [his] seat" inside his vehicle. Outside the vehicle he was "unsteady on his feet." In the STATEMENTS section of the report, Deputy Watson quoted Porter as follows: "`I've had 4 beers.' PostMiranda `I know I screwed up. I shouldn't have been driving.'" The documents before the hearing officer indicated that Porter's pickup truck was impounded and towed from the scene of his arrest. The corresponding Vehicle/Vessel Impound Receipt reflected that the truck contained a "cooler with 8 Bud Lights full on ice, and 4 empty (1 partially filled & cold)."
As prescribed by the statute, the hearing officer's task was to determine by a preponderance of the evidence "whether sufficient cause exist[ed] to sustain, amend, or invalidate the suspension[,]" based on the following criteria:
1. Whether the arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances.
*34 2. Whether the person was placed under lawful arrest for a violation of s. 316.193.
3. Whether the person refused to submit to [a breath] test after being requested to do so by a law enforcement officer or correctional officer.
4. Whether the person was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.
§ 322.2615(7)(b), Fla. Stat. (1997). The hearing officer found in the affirmative on all four issues, and determined that there was sufficient cause to sustain the suspension of Porter's driver's license.
At Porter's instance, the circuit court reviewed the hearing officer's order by certiorari. § 322.2615(13), Fla. Stat. (1997). Controlling law dictates that when a party is entitled as a matter of right to seek a circuit court's review of administrative action, the circuit court's inquiry is limited to three issues: (1) whether the agency furnished procedural due process; (2) whether the agency observed the essential requirements of law; and (3) whether the agency's findings and judgment are supported by competent substantial evidence. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523 (Fla.1995); Dep't of Highway Safety & Motor Vehicles v. Haskins, 752 So. 2d 625 (Fla. 2d DCA), review denied, 763 So. 2d 1043 (Fla.2000).
Here, the circuit court took issue with the hearing officer's determination that the "fellow officer rule" gave Deputy Watson probable cause to believe that Porter had been operating his vehicle while under the influence of alcohol. Under the fellow officer rule, one law enforcement officer may develop probable cause to arrest based in part on facts known to another officer. Voorhees v. State, 699 So. 2d 602 (Fla.1997); Johnson v. State, 660 So. 2d 648 (Fla.1995). The rule applies to misdemeanors as well as felonies. B.D.K. v. State, 743 So. 2d 1155 (Fla. 2d DCA 1999); Dep't of Highway Safety & Motor Vehicles v. Leonard, 718 So. 2d 314 (Fla. 5th DCA 1998).
The circuit court disputed the hearing officer's determination in this regard on two bases. First, the court held that the hearing officer's finding simply that Deputy Cox had informed Deputy Watson of the "circumstances surrounding the traffic stop" was insufficient to invoke the fellow officer rule. "`Surrounding circumstance' may well have included [Porter's] speeding and crossing the fog [line] twice," the court wrote, "but it may well not have included these essential facts, which justified the traffic stop. The hearing officer should have included in his finding of facts what the stopping officer said to the arresting officer and not relied upon the vague conclusionary `surrounding circumstances.'"
Second, the court observed that the hearing officer "made no findings as to the issuance of citations for [Porter's] speeding or crossing the fog lane, nor that the stopping officer had a founded suspicion of a DUI when the stopping officer turned over the investigation to the arresting officer." Without such findings, the court wrote, "the hearing officer was wrong in finding that the stopping officer was making or attempting to make an arrest or needed assistance in doing so, this obviating the justification for the `fellow officer rule.'" Accordingly, the court quashed the hearing officer's order and directed the Department to reinstate Porter's driver's license.
In our certiorari review of the circuit court's order, we must determine whether the court afforded procedural due *35 process and applied the correct law. Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000); Haskins, 752 So.2d at 626. We conclude the court failed in the latter regard in several ways. One of them derived from the court's focus on whether the hearing officer's application of the fellow officer rule was supported by his written finding that Deputy Cox had related to Deputy Watson the "circumstances surrounding the traffic stop." In its certiorari review of the suspension the circuit court was not called upon to assess whether the wording of a particular finding supported the result. Rather, as mentioned, the court was required to determine whether the hearing officer's findings and judgment were supported by competent substantial evidence. Given our narrow scope of review, it is beside the point to note that the applicable statute permitted the hearing officer to base his review of the license suspension on the attendant written documents. From these the hearing officer easily inferred that Deputy Cox had observed Porter speeding and crossing the fog line twice while operating his vehicle and that he had passed this information to Deputy Watson, who included it in his reports. If the circuit court had observed the correct scope of review, it could not have found the hearing officer's order deficient in this regard. By basing its decision on matters outside the permissible scope of review, the court applied incorrect law. Skaggs Albertson's v. ABC Liquors, Inc., 363 So. 2d 1082 (Fla.1978); Dep't of Highway Safety & Motor Vehicles v. Favino, 667 So. 2d 305 (Fla. 1st DCA 1995); Haskins, 752 So.2d at 626.
Beyond that, the statute providing for administrative reviews of license suspensions does not even require hearing officers to include findings of fact in their orders. Indeed, the statute declares that Florida's Administrative Procedures Act, which imposes such requirements on administrative orders generally, does not govern proceedings of this type. § 322.2615(12), Fla. Stat. (1997). Thus, when reversing the hearing officer's order based on the supposedly inadequate wording of a particular finding, the circuit court assumed incorrectly that the law required the finding at all.
Finally, the circuit court misstated the fellow officer rule when holding that it could only be applied if Deputy Cox had ticketed Porter for speeding or crossing the fog line, had developed his own founded suspicion that Porter was intoxicated, or had needed assistance in arresting Porter. We have already pointed out that the fellow officer rule was properly invoked simply because Deputy Cox had information, i.e., that Porter had been driving his vehicle, which Deputy Watson put together with his own observations of Porter's inebriated state. This gave Deputy Watson probable cause to believe that Porter had operated his vehicle while intoxicated and, thus, to arrest him for that offense.
We have seen that the circuit court applied incorrect law when quashing the hearing officer's order. Therefore, we grant the Department's petition for writ of certiorari and quash the circuit court's order.
PARKER, A.C.J., and SILBERMAN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608465/ | 773 F. Supp. 469 (1991)
Rodney STICH, Plaintiff,
v.
UNITED STATES of America, et al., Defendants.
Civ. A. No. 91-1432.
United States District Court, District of Columbia.
September 23, 1991.
*470 Rodney Stich, pro se.
William J. Dempster, Asst. U.S. Atty., Washington, D.C., for the U.S.
MEMORANDUM OPINION
SPORKIN, District Judge.
Plaintiff in this case is nothing if not a regular customer of the Federal court system. He is best called a "serial litigator." In the past three years he has filed over thirty pro se actions. Between 1984 and 1987 he filed at least seventeen suits and appeals in Federal court against his ex-wife, her attorneys, and the state and federal judges who had earlier ruled against him. He has been convicted of criminal contempt for violating a 1986 order by United States District Court Judge Milton Swartz. In the past four years, he has filed fifteen cases with this District Court[1] and eight appeals in the court of appeals for this circuit.[2]
Just three months ago, in June of this year, Judge Hogan dismissed with prejudice a complaint that made allegations of a secret scheme to continue the imprisonment of the 52 American hostages in Iran. Two weeks before that case was summarily dismissed by Judge Hogan plaintiff filed a virtually identical complaint. In over fifty rambling pages of often unintelligible claims, plaintiff alleges, "Smoking-gun evidence of the conspiracy defrauding the United States, through a scheme to deplete United States and NATO military supplies to delay the release of the American hostages by Iran." He claims there were "possible/probable" assassinations associated with this plot. He then alleges widespread federal crimes and corruption in the Justice Department and the federal judiciary. He makes claims under a laundry list of federal statutes and constitutional provisions.
Plaintiff has shown an appalling lack of respect for the judicial branch by again bringing what appears to be the identical complaint not once but twice to this same Court. The defendants in this action have moved for a vexatious litigant order. In view of plaintiff's pattern of activity over the past years and especially over the past few months, this Court deems it appropriate to grant defendants' motion.
There is precedent for the entry of such an order in this circuit and in other circuits. The court of appeals for this circuit has affirmed injunctions restricting the ability of pro se plaintiffs to bring cases. See In re Powell, 851 F.2d 427 (D.C.Cir.1985); Martin-Trigona v. United States, 779 F.2d 72 (D.C.Cir.1985); Urban v. United Nations, 768 F.2d 1497 (D.C.Cir.1985). The second circuit explained why such orders are necessary when it wrote, "Federal courts have both the inherent power and the constitutional obligation to protect their jurisdiction from conduct which impairs their ability to carry out Article III functions. In re Martin-Trigona, 737 F.2d 1254, 1261-1 (2d Cir.1984), cert. denied, 474 U.S. 1061, 106 S. Ct. 807, 88 L. Ed. 2d 782 (1986).
In the Martin-Trigona case, another vexatious litigant had plagued the district court of Connecticut and the second circuit with volumes of litigation. In upholding the district court's injunction, the second circuit wrote, "If such power [to protect Article III jurisdiction] did not exist, or if its exercise were somehow dependent upon the actions of another branch of government or upon the entitlement of a private party to injunctive relief, the independence and constitutional role of Article III courts would be endangered." Martin-Trigona, 737 F.2d at 1261.
In Procup v. Strickland, 792 F.2d 1069 (11th Cir.1986), the eleventh circuit echoed these reasons when it held that the district *471 court has authority to restrict a litigant's ability to bring law suits. In that case, the appellant had filed over 175 lawsuits in a single judicial district. This behavior consumed large amounts of court time, for, as the court said, "Every lawsuit filed, no matter how frivolous or repetitious, requires the investment of court time, whether the complaint is reviewed initially by a law clerk, a staff attorney, a magistrate, or the judge." 792 F.2d at 1072.
No matter how plagued the court might feel by the filing of numerous frivolous lawsuits by Mr. Stich, it would not issue an injunction restricting the filing of suits without a carefully reasoned basis for doing so. The court takes note of the opinion in In re Powell, 851 F.2d 427 (D.C.Cir.1988) where the court of appeals found that such injunctions should only be issued in "exigent circumstances" and as an exception and not a regular practice. This Court has found that Mr. Stich's actions are frivolous and constitute outrageous harassment of the named defendants. Mr. Stich has demonstrated that he lacks the ability to discern those matters which genuinely demand judicial attention from those so frivolous or duplicative as to be a hindrance to the court. Mr. Stich has not filed a single lawsuit in the past three years with merit. He has clearly abused the system, and while he cannot be precluded from filing any future suits, he will be required to obtain leave of court before doing so. Accordingly, it is necessary that Mr. Stich obtain leave of court before filing any more suits pro se.
ORDER
Upon consideration of the motion for an all encompassing vexatious litigant order filed on behalf of defendants Thornburgh, United States District Courts, United States Court of Appeals, and the United States and the entire record therein, it is this 20th day of September, 1991, hereby
ORDERED that defendants' motion is granted; and it is
FURTHER ORDERED that both cases be dismissed with prejudice; and it is
FURTHER ORDERED that plaintiff shall seek leave of this Court before filing any new civil action; that he shall certify that any such complaint raises new matters not pending before or decided on the merits by any federal court or if the suit raises issues that have been adjudicated or are otherwise pending, he must explain to the court why he intends to file another duplicative action; and that he shall truthfully so certify any complaint on pain of penalty of contempt of this Court.
APPENDIX A
Cases Filed By Pro Se Plaintiff Rodney Stich in United States District Court for the District of Columbia
Docket No. Case Name
1. 87-2214 Stich v. United States of America
2. 89-0170 Stich v. Kennedy
3. 89-0470 Stich v. Rehnquist
4. 89-1908 Stich v. United States of America
5. 89-2060 Stich v. United States of America
6. 89-2290 Stich v. United States of America
7. 89-2940 Stich v. Lynch
8. 89-2941 Stich v. Rehnquist
9. 89-2973 Stich v. Thornburgh
10. 89-2974 Stich v. United States of America
11. 89-3350 Stich v. Thornburgh
12. 91-1242 Stich v. United States of America
*472
13. 91-1432 Stich v. United States of America
14. 91-2143 Stich v. United States of America
15. 91-2281 Stich v. United States of America
APPENDIX B
Appeals Filed by Pro Se Appellant Rodney Stich in the United States Court of Appeals for the District of Columbia Circuit
Case No. Case Name
1. 87-5262 Stich v. Department of Justice
2. 89-5163 Stich v. Kennedy
3. 90-5045 Stich v. Thornburgh
4. 90-5046 Stich v. Bush
5. 90-5047 Stich v. United States of America
6. 90-5048 Stich v. Rehnquist
7. 90-5049 Stich v. Lynch
8. 91-5234 Stich v. United States of America
NOTES
[1] See Appendix A.
[2] See Appendix B. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608487/ | 21 So. 3d 911 (2009)
Roland JOHNSON, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D08-3247.
District Court of Appeal of Florida, Third District.
November 12, 2009.
Carlos J. Martinez, Public Defender, and Leslie Scalley, Special Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
Before GERSTEN, SHEPHERD, and ROTHENBERG, JJ.
*912 ROTHENBERG, J.
Roland Johnson, who was convicted of aggravated battery with a weapon, carrying a concealed weapon, and resisting an officer with violence, raises two grounds for reversal in this appeal: (1) his conviction for carrying a concealed weapon under section 790.01, Florida Statutes (2007), must be vacated because the "weapon" he possessed was "a common pocketknife," which is excluded from the definition of a weapon in chapter 790, Florida Statutes (2007); and (2) the peremptory challenge of Ms. Brown by the State was unsupported by a race-neutral reason.
The Knife
Section 790.001(13), Florida Statutes (2007), excludes "a common pocketknife" from its definition of a weapon for purposes of section 790.01(1), carrying a concealed weapon. Because the instrument the defendant carried and ultimately stabbed the officer with was not a common pocketknife, we conclude that the trial court correctly submitted the question as to whether it constituted a "weapon" under the statute to the jury.
The record reflects that the instrument in question was a nail clipper, which the defendant had modified and he was carrying in an open position. By the defendant's own admissions, he had modified the blade by sharpening the smooth side "for [his] protection," giving it a distinctive weapon-like characteristic. Therefore, the instrument that the defendant carried in an open position and used to stab the victimthe police officer who was attempting to arrest the defendantdoes not fall within the common pocketknife exclusion. See J.R.P. v. State, 979 So. 2d 1178 (Fla. 3d DCA 2008) (noting that a pocketknife which has a distinctive weapon-like characteristic or is found in the open position does not fall within the common pocketknife exception); Porter v. State, 798 So. 2d 855 (Fla. 5th DCA 2001) (finding that although Porter established that the blade of the knife she carried was under four inches in length, because it was carried in the open position, it did not fall within the common pocketknife exclusion); Walls v. State, 730 So. 2d 294, 295 (Fla. 1st DCA 1999) (holding that "[t]o the extent that L.B. [v. State, 700 So. 2d 370 (Fla. 1997)] establishes a per se rule for the definition of common pocketknife, the rule may be invoked only by a defendant who establishes conclusively that the knife in question has a blade length of four inches or less and that it was carried in the common manner, i.e. in a folded position").
The Peremptory Challenge of Ms. Brown
The defendant contends that the trial court erred by granting the State's peremptory challenge of Delores Brown. When asked to provide a race-neutral and a gender-neutral reason for its peremptory challenge of Ms. Brown, an African American woman, the State explained that it was concerned that Ms. Brown's experience as an investigator for the Broward County School Board might influence her deliberations and that she was not being truthful regarding her criminal history. Ms. Brown stated that as an investigator for the School Board she reviews police reports and employment applications and is responsible for determining whether the applicant is ultimately hired. She agreed that she is a pretty good judge of character and that "just because something is written on a police report doesn't mean that it happened that way." When asked whether she had ever been arrested or accused of a crime, she stated that she had not. However, a criminal history review revealed that a person with her name, address, date of birth, and social security number was charged with petit theft in 1992, which was nolle prossed after completion *913 of a diversion program, and with criminal mischief in 1995, which resulted in a conviction with a withholding of adjudication and a term of probation. When confronted with this discrepancy, Ms. Brown claimed that her purse had been stolen and she was not the person charged in either case.
The trial court's decision to accept or reject an attorney's explanation for his or her peremptory challenge of a juror turns primarily on an assessment of the attorney's credibility, which we must affirm on appeal unless clearly erroneous. Melbourne v. State, 679 So. 2d 759, 764-65 (Fla.1996); Reed v. State, 560 So. 2d 203, 206 (Fla.1990) (holding that trial judges are vested with broad discretion in determining whether peremptory challenges are racially motivated and an appellate court "must necessarily rely on the inherent fairness and color blindness of our trial judges who are on the scene and who themselves get a `feel' for what is going on in the jury selection process").
Based on this record, we find no abuse of discretion in concluding that the State's peremptory challenge of Ms. Brown was supported by genuine race-neutral and a gender-neutral reasons: Ms. Brown may have been too critical of the police officers based upon her work experience and may not have been honest regarding her criminal history.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608475/ | 773 F. Supp. 984 (1991)
SNEDIKER DEVELOPERS LIMITED PARTNERSHIP, Plaintiff,
v.
Margaret E. EVANS, Robert R. Webster, Jr., Florence Webster, Johnson Controls, Inc., a Wisconsin corporation, Hoover Universal, Inc., a Michigan corporation, and NSK Corporation, a Delaware corporation, jointly and severally, Defendants.
No. 89-72979.
United States District Court, E.D. Michigan, S.D.
September 13, 1991.
*985 Joseph Phillips, Ann Arbor, Mich., Jeffrey Haynes, Bloomfield Hills, Mich., for Snediker Developers Ltd. Partnership.
*986 Allyn Kantor, Ann Arbor, Mich., Stanton G. Roesch, Saline, Mich., for Evans, and Robert R. and Florence Webster.
John Dunn, Paul Sorensen, Grand Rapids, Mich., for Johnson and Hoover.
William Schlecte, Ann Arbor, Mich., for NSK.
MEMORANDUM AND ORDER
COHN, District Judge.
"The son shall not bear the iniquity of the father, neither shall the father bear the iniquity of the son: The righteousness of the righteous shall be upon him, and the wickedness of the wicked shall be upon him."
Ezekiel, 18:20.
I.
This is an action to recover the costs of cleaning up hazardous waste under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq. Plaintiff, Snediker Developers Limited Partnership (Snediker), as purchaser, and defendants, Margaret E. Evans (Evans), Robert R. Webster, Jr. (Robert Webster) and Florence Webster (Florence Webster), as sellers, were parties to a land contract for sale of property owned by Evans and the Websters. After the execution of the contract, Snediker discovered that the property had been used as a dumping site for hazardous waste and that it would cost a substantial amount to make it useable. Also named as defendants are the corporate successors to Hoover Ball & Bearing (HB & B), the alleged generator of the hazardous waste on the property, namely: (1) Johnson Controls Corporation (Johnson), (2) Hoover Universal, Inc. (Hoover), and (3) NSK Corporation (NSK).[1] Snediker seeks: (1) to recover the cost of removing the hazardous waste, (2) issuance of an injunction requiring the various defendants to clean up the property, and (3) a declaratory ruling on liability for future "response" costs.[2] The corporate successors have filed cross-claims against the Websters and Evans. The cross-claims seek contribution from the Websters and Evans for the costs of handling the hazardous waste.
Now before the Court is the Websters and Evans' motion for summary judgment as to the corporate successors' cross-claims. Fed.R.Civ.P. 56(c). The Websters and Evans say they should be dismissed from the case because: (1) they are not the "owners" of the property, and (2) they did not own or operate the property at the time of the hazardous waste's disposal. The Court agrees. The Websters and Evans' motion for summary judgment will be granted.
II.
The following facts, as gleaned from deposition testimony, affidavits and documents in the record are not in dispute.
A.
The property is comprised of two adjacent parcels, located south of Ann Arbor. The first parcel (Parcel I) is 75.9 acres and is to the east of the second parcel (Parcel II), which is of 40 acres.
During the 1940s, Robert R. Webster, Sr. and Clara Webster, husband and wife, acquired Parcel I and Parcel II. Upon the death of her husband, Clara Webster became the sole owner of the property. From 1974 to 1983, Clara Webster's son, Robert Webster, had operational control of the leasing and farming of the property. When she died in 1983, Clara Webster bequeathed the property to Robert Webster and her daughter, Evans. Evans was bequeathed Parcel I. Evans and Robert Webster were bequeathed Parcel II. Robert Webster then conveyed his one-half interest in Parcel II to himself and his wife, Florence.
*987 B.
In April 1988, the Websters and Evans sold the property to Snediker on land contact. The sale price was $500,000.00. The preliminary sales agreement provided Snediker with a time period within which to determine the property's suitability for home building. On August 25, 1989, at the expiration of the period, the land contract was executed. Under its terms, possession of the property was transferred to Snediker. The Websters and Evans continued to hold record title.
After the sale, Snediker learned that, during the 1960s, a small area of Parcel I had been used by HB & B as a hazardous waste disposal area.[3] The original dumping of the hazardous waste occurred no later than 1967. Some of the hazardous waste appears to have migrated from the area where it was deposited. However, there is no evidence that any hazardous waste has migrated to Parcel II.
III.
The Websters and Evans seek summary judgment as to the CERCLA claim against them on the ground that they are not "covered person[s]" under 42 U.S.C. § 9607(a). CERCLA imposes liability for clean up of the waste under the circumstances here on four classes of persons: (1) current owners and operators of a facility, 42 U.S.C. § 9607(a)(1), (2) owners or operators of a facility at a time of disposal, 42 U.S.C. § 9607(a)(2), (3) generators of the wastes, 42 U.S.C. § 9607(a)(3), and (4) transporters of the wastes, 42 U.S.C. § 9607(a)(4). The term "facility" means, among other things, "any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located." 42 U.S.C. § 9601(9). It is undisputed that §§ 9607(a)(3), (a)(4) are inapplicable here. Thus, the corporate successors effort to seek contribution hinges on their ability to show that the Websters and Evans: (1) are current owners and operators of a facility, i.e. the property, under § 9607(a)(1), or (2) were owners or operators of the facility at the time the hazardous waste was disposed under § 9607(a)(2). The corporate successors have failed to make this showing as a matter of law.
A.
Section § 9607(a)(1) has been interpreted to impose "strict liability on the current owners of any facility which releases or threatens to release a toxic substance." Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir.1988); see also United States v. Fleet Factors Corp., 901 F.2d 1550, 1554 (11th Cir.1990). The current owners of a facility previously contaminated are not excluded from liability. New York v. Shore Realty Corp., 759 F.2d 1032 (2nd Cir.1985). However, neither the Websters nor Evans are currently owners of a facility within the meaning of § 9607(a)(1). CERCLA's definition of the terms "owner or operator" protects secured creditors who do not participate in the management of a facility. 42 U.S.C. § 9601(20)(A);[4]See also United States v. Fleet Factors Corp., 901 F.2d 1550, 1554 (11th Cir.1990). It is undisputed the Websters and Evans do not participate in the management of the facility. Moreover, as stated in Part II, the Websters and Evans are land contract vendors who retain title to the property merely to protect their security interest in it. See In re Douglas A. Carr, 52 B.R. 250, 251 (E.D.Mich.1985) (under a sale of real estate on land contract, "the vendee obtains the right to possession of the premises, while the vendor retains the deed as security for payment").
The holding of the Court of Appeals for the Ninth Circuit in In re Bergsoe Metal Corp., 910 F.2d 668, 971 (9th Cir.1990), strongly suggests that land contract vendors *988 like the Websters and Evans fall within CERCLA's security interest exception. In Bergsoe, the defendant sold land onto which hazardous waste had been deposited in return for a promissory note and a mortgage on the property. The Ninth Circuit concluded the defendant retained an interest in the property as security. It stated:
That [defendant] holds paper title to the [property] does not, alone, make it an owner of the facility for purposes of CERCLA; under the security interest exception the court must determine why the [defendant] holds such indicia of ownership. Here, there is no doubt that the [defendant] has the deed in the [property] primarily to ensure that Bergsoe would meet its obligation under the leases....
Bergsoe, 910 F.2d at 671. As the result, the Ninth Circuit held the defendant was not an "owner" for the purposes of § 9601(20)(A) and was not liable for cleanup costs under § 9607(a)(1). The Websters and Evans, as land contract vendors, are in a like position. Thus, like the defendant in Bergsoe, they are not owners within the meaning of CERCLA and are not responsible for cleanup costs under § 9607(a)(1).[5]
B.
The corporate successors also say the Websters and Evans were owners of the property at the time of the disposal of the hazardous wastes and thus are liable for cleanup costs under § 9607(a)(2). CERCLA defines the term "disposal" in 42 U.S.C. § 9601(29) by adopting the meaning provided in the Solid Waste Disposal Act, 42 U.S.C. § 6903(3): the "discharge, deposit, injection, dumping, spilling, leaking, or placing of any ... hazardous waste into or onto the land ... so that such hazardous waste or any constituent thereof may enter the environment."
1.
Applying this definition, it is clear the Websters and Evans did not own the property at the time of the hazardous waste's disposal. As stated in Part II, HB & B discharged the hazardous waste onto the property during the 1960s. The Websters and Evans did not inherit the property from Clara Webster until 1983. See Cadillac Fairview/California Inc. v. Dow Chemical Co., 21 E.R.C. 1108, 1113 (C.D.Cal.1985), rev'd on other grounds, 840 F.2d 691 (9th Cir.1988) (defendants, who had been owners of property after Dow Chemical and others had disposed hazardous waste, not liable for cleanup costs under § 9607(a)(2)).
2.
Despite the 16 year interval between HB & B's dumping of the hazardous waste and the Websters and Evans' ownership of the property, the corporate successors say the Websters and Evans were owners of the property at the time of the hazardous waste's disposal, thus incurring cleanup liability under § 9607(a)(2) since the deposited hazardous waste migrated, that is spread, when they owned the property. Their argument is based on the premise that hazardous waste's general movement in migration is a form of disposal, i.e. leaking, under § 6903(3). However, this argument is unpersuasive.
First, several courts have held that the term "disposal" under CERCLA does not encompass the migration of hazardous waste that occurs passively, i.e. without either the owner's affirmative act or negligent omission. See Ecodyne Corp. v. Shah, 718 F. Supp. 1454, 1457 (N.D.Cal. 1989) (under CERCLA, a person does not dispose hazardous waste unless he or she affirmatively does something leading to its introduction into the environment); In re Diamond Reo Trucks, Inc., 115 B.R. 559, 565 (W.D.Mich.1990) ("the mere ownership of the site during a period of time in which migration or leaching may have taken place, without any active disposal activities, *989 does not bring [defendant] within the liability provision of § 9607(a)(2)").
Second, none of the cases on which the corporate successors rely to support their broad definition of disposal, CPC International, Inc. v. Aerojet-General Corp., 759 F. Supp. 1269, 1278 (W.D.Mich.1991); Emhart Industries, Inc. v. Duracell International, Inc., 665 F. Supp. 549 (M.D.Tenn. 1987); United States v. Waste Management, Inc., 734 F.2d 159 (4th Cir.1984), held that the term, under CERCLA, may encompass the general migration of hazardous waste that occurs passively.[6]
Last, assuming that any hazardous waste may migrate long after it has been introduced into the environment, the corporate successor's sweeping interpretation of the term disposal would effectively impose cleanup liability on any owner in a chain of title. The Court is satisfied that if the drafters of CERCLA had intended such a far reaching consequence, they would have said so explicitly.
Thus, the mere migration of hazardous waste, without more, does not constitute disposal within the meaning of § 6903(3). There was no active conduct on the part of the Websters and Evans that resulted in the introduction of hazardous waste into the environment. As a result, the Websters and Evans cannot be said to have disposed hazardous waste into the environment when they owned the property and are not liable for cleanup costs pursuant to § 9607(a)(2).
C.
The corporate successors say Robert Webster is liable, as an operator of a facility, under § 9607(a)(2). This argument also lacks merit. An operator of a facility may not be liable for cleanup costs under § 9607(a)(2) unless there is some nexus between his or her role as operator and the decision to dispose the hazardous waste. CPC International, 731 F.Supp. at 788; BCW Associates, Ltd. v. Occidental Chemical Corp., No. 86-5947 slip op. at 18, 1988 WL 102641 (E.D.Pa. September 30, 1988); United States v. Pacific Hide and Fur Depot, 716 F. Supp. 1341 (D.Idaho 1989). Here, there is simply no nexus between Robert Foster's role as operator and the decision to dispose the hazardous waste. The disposal of the hazardous wasted occurred no later than 1967, and Robert Webster did not deal with the property until 1974, or seven years after the hazardous waste's disposal. He therefore had no involvement with the disposal decisions.[7]
D.
Thus, the Websters and Evans are not liable for the clean up of hazardous waste under CERCLA. They are not current owners and operators within the meaning of § 9607(a)(1). Moreover, there were no owners or operators of the property at the time of the hazardous waste's disposal.[8]
IV.
NSK argues at length the Websters and Evans should be liable for cleanup *990 costs even if they are not covered persons under § 9607(a). It says that, since the Websters and Evans inherited contaminated property, the proceeds derived from its sale to Snediker constitutes a windfall. Thus, NSK says, the Court should invoke its equitable powers to hold that the Websters and Evans must contribute to the costs of the cleanup.
While creative, this argument is unpersuasive. It is true that courts have occasionally invoked what is characterized as equitable power in CERCLA suits to implement narrowly tailored remedies. Sunnen Products Co. v. Chemtech Industries, Inc., 658 F. Supp. 276 (E.D.Mo.1987); Reardon v. United States, 731 F. Supp. 558 (D.Mass. 1990); T & E Industries v. Safety Light Corp., 680 F. Supp. 696 (D.N.J.1988). However, the facts in all of these cases are readily distinguishable from those at issue. For example, in T & E Industries, 680 F.Supp. at 704-05, the Court invoked equitable power to impose a mandatory injunction to compel defendants to comply with their obligations under CERCLA. Thus, in T & E Industries, the Court used equitable power only to effectuate the provisions of CERCLA.
Here, in contrast, NSK is asking the Court to use equitable power to trample the explicit language of § 9607(a). In enacting that section, Congress made an implicit determination that only certain parties are liable for cleaning up hazardous waste. As stated, supra, neither the Websters nor Evans falls within the gamut of § 9607(a). As a result, in holding the Websters and Evans liable for cleanup costs, the Court would necessarily be ignoring Congress' intent in enacting § 9607(a).[9]
Moreover, NSK's argument is based on the wholly untenable assumption that the acquisition of property by inheritance and the proceeds of the sale of such property is not a right outside of any obligation under CERCLA. This is simply untrue. For instance, under 42 U.S.C. § 9601(35)(A)(iii), a person who acquires property by inheritance is entitled to assert the innocent landowner defense provided under 42 U.S.C. § 9607(b)(3).[10]
V.
The Websters and Evans' motion for summary judgment as to the corporate successors' cross claims is GRANTED.
SO ORDERED.
NOTES
[1] Johnson, Hoover and NSK will, hereinafter, be referred to collectively as "the corporate successors."
[2] On July 9, 1991, Snediker and the Websters and Evans entered into a settlement resulting in the mutual dismissal of all claims these parties had against one another.
[3] There is no dispute Robert R. Webster, Sr. was paid by HB & B for his permission to dispose the hazardous waste on the property.
[4] 42 U.S.C. § 9601(20)(A) states in relevant part: (ii) in the case of an onshore facility or an offshore facility, any person owning or operating such facility ... Such term does not include a person, who, without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect his security interest in the vessel or facility.
[5] There apparently is no dispute among the parties that the Websters and Evans' are not owners within the meaning of § 9601(20)(A). The corporate successors have not attempted to rebut the Websters and Evans' argument that land contract vendors, who retain title to property only for security, are not liable for cleanup costs under § 9607(a)(1).
[6] For instance, in CPC International, 759 F.Supp. at 1278, a defendant was found to be an owner or operator of a facility at the time of disposal. However, the court held the defendant liable because it failed to comply with its contractual obligation to operate a groundwater treatment system designed to purge the ground water of hazardous waste. The court found that defendant's breach of the agreement constituted "spilling" or "leaking," both of which are contained within the definition of disposal. See generally CPC International v. Aerojet-General Corp., 731 F. Supp. 783, 789 (W.D.Mich.1989).
In Emhart Industries, 665 F.Supp. at 574, the court held defendant disposed hazardous waste, within the meaning of CERCLA. However, the court also found the defendant, by spilling PCBs in the manufacturing process and dumping them outside its plant was actively engaged in the introduction of hazardous waste into the environment which in turn migrated through ground water.
[7] The corporate successors say the farming activities directed by Robert Webster may have facilitated the spread of hazardous waste. However, this assertion is pure speculation. There is no evidence of record to suggest that Robert Webster's decisions as to farming exacerbated the migration of the hazardous waste.
[8] In light of the Court's determination that the Websters and Evans are not covered persons under § 9607(a), the issue as to whether they are protected by the "innocent owner" defense, 42 U.S.C. § 9607(b)(3), is moot.
[9] What NSK appears to be arguing has echoes of what the Oxford Companion to Law defines as equity of a statute:
The general intent and spirit of a statute rather than the strict letter thereof. It is founded on a theory of the sixteenth and early seventeenth centuries found in St. Germain's Doctor and Student and in Coke, of a special `equity' which controlled statutes by extending them in some cases and restricting them in others. A certain amount of learning grew up around this and some of the Abridgements treat it as an aspect of statute law. In the late seventeenth and eighteenth centuries the theory shrank and has no long since disappeared.
D. Walker, The Oxford Companion to Law 427 (1980).
[10] In arguing that the corporate successors may seek contributions from the Websters and Evans, NSK says: (1) the estate of Robert R. Webster, Sr. and Clara Webster are liable for cleanup costs under § 9607(a)(2) since they undisputedly owned the property at the time of the hazardous waste's disposal, (2) the corporate successors therefore have a viable claim for contributions from the estates of Robert R. Webster, Sr. and Clara Webster, and (3) under Michigan law, pursuant to M.C.L.A. § 700.755, the corporate successors have the right to recover against the heirs or devisees who received real property from the estates of Robert R. Webster, Sr. and Clara Webster. However, NSK's reliance on M.C.L.A. § 700.755 is misplaced. The statute applies only to "creditors" of an estate. NSK has cited no case suggesting that the successor to a corporation that disposes hazardous waste on the property of a party liable under CERCLA is a creditor, within the meaning of M.C.L.A. § 700.755. Moreover, under M.C.L.A. § 700.755, a creditor's claim must be presented against the heirs of an estate within "60 days after the time when it accrues or becomes absolute." At the earliest, the corporate successors did not state a claim against the Websters and Evans until 1989, or nearly six years after they inherited the property. And there has been no attempt to reopen the estates of Robert R. Webster, Sr. or Clara Webster so claims could be presented and adjudicated in accordance with the Michigan Probate Code. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608499/ | 21 So. 3d 755 (2007)
Christopher McCULLOUGH
v.
STATE of Alabama.
CR-06-1311.
Court of Criminal Appeals of Alabama.
November 2, 2007.
Rehearing Denied December 14, 2007.
*756 T. Robin McIntyre, Dadeville, for appellant.
Troy King, atty. gen., and Marc S. Bass, asst. atty. gen., for appellee.
BASCHAB, Presiding Judge.
AFFIRMED BY UNPUBLISHED MEMORANDUM.
McMILLAN, SHAW, and WISE, JJ., concur.
WELCH, J., dissents, with opinion.
WELCH, Judge, dissenting.
Christopher McCullough appealed from his conviction for second-degree burglary, a violation of § 13A-7-6(b), Ala.Code 1975. He argued on appeal, as he did at trial, that there was absolutely no evidence presented to corroborate the testimony of his accomplice, Billy Norris. McCullough presented this argument at trial in a motion to strike the testimony of Billy Norris, his accomplice, because it was not corroborated and in his motion for a judgment of acquittal. These motions were denied by the trial court. Specifically, McCullough contends that he cannot be convicted based solely upon the uncorroborated testimony of his accomplice, Norris. The majority affirms McCullough's conviction, holding that Norris's testimony was corroborated by the testimony of Myrtle Burdell, the victim, and the testimony of Deputy Sheriff Angela Spates. I respectfully dissent.
Eighty-three-year-old Burdell testified that she was awakened at approximately 11:00 p.m. the night of March 8, 2002, when her doorbell rang. Without turning on a lamp, she went into her living room, where she was standing when she heard her back door being kicked open. She screamed, and the two intruders who had entered her house left her house running through the broken doorway. She testified that on the morning of March 8, 2002, she had gone to the "Chicken Stop" fast-food restaurant and "I held the door open for a young man. That could easily have been [McCullough]." (R. 24.) Burdell's opinion was that the intruders must have followed her home from the Chicken Stop. However, her unequivocal testimony was that she was unable to identify McCullough as one of the men who had broken into her home. She stated that the men wore jackets and "[t]hey could have had a ski mask on," but she testified that there was, "[n]o way [she] could identify them." (R. 26.)
Deputy Spates testified that she was dispatched to Burdell's house in response to the burglary. She testified that Burdell's house was on the edge of a golf course and that the back door of Burdell's house had been kicked in.
Billy Norris, the accomplice, testified that he was currently in prison following his conviction based on the incident at Burdell's house on the night of March 8, 2002. He testified as follows. He and McCullough decided to burglarize Burdell's house. Norris said that he was wearing Timberland brand boots, a black shirt, black pants with yellow stitching, and a blue bandana. McCullough was wearing a ski mask. They went to the back door and rang the door bell to see if anyone was home. Believing that no one was home, Norris kicked open the back door, and they both entered the house. Norris said someone said, "get out of my house," and they both ran out of the house and across the golf course to their parked car. Norris further testified that he did not know Burdell and had never seen her before his court appearance on the charge stemming from the incident.
In response to McCullough's motion to strike Norris's testimony, the trial court *757 ruled "that there is such testimony from the victim to corroborate the testimony of the accomplice." (R. 44.) In response to McCullough's motion for a judgment of acquittal, the trial court ruled that "based on the testimony of the victim in this case, specifically her testimony as to the fact that she identified that she could have possibly seen the alleged perpetrator of the crime that day and that he possibly followed her home and then perpetrated the crime" Norris's testimony was sufficiently corroborated. (R. 46.)
Unlike the majority, I do not believe that Norris's testimony was sufficiently corroborated to sustain a conviction for second-degree burglary.
"A conviction for a felony cannot be had on the testimony of an accomplice unless the testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense. Code of Alabama 1975, § 12-21-222. The test for determining the sufficiency of the corroboration is a subtraction process. First, the testimony of the accomplice must be eliminated, and then if, upon examination of all the other evidence, there is sufficient evidence tending to connect the defendant with the commission of the offense, there is sufficient corroboration."
Carden v. State, 612 So. 2d 509, 513 (Ala. Crim.App.1992) (citations omitted).
To prove a prima facie case of second-degree burglary, the State had to present evidence showing that McCullough "unlawfully enter[ed] a lawfully occupied dwelling-house with intent to commit a theft or a felony therein." § 13A-7-6(b), Ala.Code 1975. I do not believe that the State presented any nonaccomplice evidence that connected McCullough to the crime or that corroborated Norris's testimony. In my opinion, the testimony of both Burdell and Deputy Spates merely showed that the offense occurred and the circumstances of the offense. See § 12-21-222, Ala.Code 1975. Moreover, I do not agree with the trial court's finding that Burdell's testimony that McCullough "could have" been the man she held a door open for at the Chicken Stop restaurant and that the man could have followed her home corroborated Norris's testimony. (R. 24.)
"Q. [The prosecutor:] Do you know that young man [referring to McCullough]?
"A. [Burdell:] You know, the day that that happened, I went to the Chicken Stop that morning, and I held the door open for a young man. That could have easily been him.
"Q. Okay.
"A. And they followed me home.
"Q. But you don't know his name?
"A. That morning I think they knew where I lived. No, I can't identify him really."
(R. 24.)
It is clear from the context of Burdell's entire testimony that the above was not meant as an assertion that McCullough was the man at the Chicken Stop nor an assertion that a man from the Chicken Shop did follow her home; it was merely Burdell's hypothesis that the man from the Chicken Shop was responsible for the burglary. Thus, I do not believe this testimony which is merely conjecture can serve as corroboration of accomplice testimony.
Because I do not believe that there was testimony, other than from the accomplice, that connected McCullough to the commission of the offense, I believe the trial court erred by denying McCullough's objection to the lack of corroborating evidence to support Norris's testimony. Therefore, I *758 would reverse McCullough's conviction and render a judgment of acquittal in his favor. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608507/ | 791 So. 2d 38 (2001)
Tracy GIOVO, Appellant,
v.
Jack McDONALD, Penny McDonald, and Brandi McDonald, Appellees.
No. 2D00-2837.
District Court of Appeal of Florida, Second District.
May 30, 2001.
Rehearing Denied July 24, 2001.
*39 Louis K. Rosenbloum, P.A., Pensacola, and Samuel S. Mehring, Jr., of the Law Offices of Samuel S. Mehring, Jr., Tampa, for Appellant.
Keith Carter of Gray, Harris, Robinson, Shackleford, Farrior, P.A., Tampa, for Appellees.
NORTHCUTT, Judge.
In a final summary judgment the circuit court determined that Tracy Giovo's suit for damages arising from an automobile accident was foreclosed by an enforceable settlement agreement. However, the undisputed facts demonstrate that such was not the case.
On August 21, 1998, Giovo was involved in an intersection collision with a car driven by Brandi McDonald with the consent of the car's owners, Jack and Penny McDonald. In the weeks following the accident Giovo's attorney and the McDonalds' insurer, Government Employees Insurance Company, exchanged offers and counteroffers to settle Giovo's negligence claim. GEICO eventually offered to meet all of Giovo's settlement conditions, save her demand to be paid $18 per day from the date of the accident for the loss of use of her vehicle. As to this, GEICO proposed to pay $10 per day from the date of the accident through October 31, 1998, for a total of $720.
Giovo rejected GEICO's proposal, then filed a negligence action against the McDonalds. In their answer, the McDonalds contended the matter had been settled. On cross-motions for summary judgment on the settlement issue, the circuit court held that, indeed, the parties had settled the claim. In its written order the court invoked the principle that an agreement which is complete as to its "essential terms" is enforceable even though the agreement fails to anticipate every contingency or spell out every incidental detail. See Robbie v. City of Miami, 469 So. 2d 1384 (Fla.1985). The court noted that the accident had rendered Giovo's car a total loss. Reasoning that loss-of-use damages are not recoverable in actions involving total losses of property, the court posited that the sum to be paid Giovo for this aspect of her claim was not an essential element of the parties' bargain. Therefore, the parties had reached an enforceable *40 settlement notwithstanding their failure to agree on this issue. The order pointed out that "[i]f the Defendants, within the statute of limitations, breach their contractual promise to pay $107,498.52, Giovo may then bring an action for breach of contract or other cause of action that may arise therefrom." The mentioned figure included GEICO's proposed payment of $720, or $10 per day, for the loss of use of Giovo's car.
On appeal Giovo challenges the circuit court's premise that loss-of-use damages may not be recovered in suits involving total losses of property, and she makes a colorable argument to the contrary. We need not decide this issue, however, for regardless of whether the circuit court's premise was correct, the court was mistaken to rely on it. Parties are free to contract for any terms not prohibited by law or contrary to public policy. Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So. 2d 1000 (Fla. 2d DCA 1995). The circuit court implicitly recognized this when it included payment for loss of use in its description of the parties' enforceable agreement. Therefore, whether a particular aspect of an agreement qualifies as an "essential term" does not hinge on whether a court could grant the same benefit in a lawsuit.
Certainly, what is an "essential term" of a contract differs according to circumstances. But, surely, it must include the terms specified in an offer to make a contract. This is because an acceptance is effective to create a contract only if it is absolute and unconditional, and identical with the terms of the offer. Ribich v. Evergreen Sales & Serv., Inc., 784 So. 2d 1201(Fla. 2d DCA 2001). In other words, an acceptance must contain an assent to the same matters contained in the offer. Lickert v. Pike, 736 So. 2d 724 (Fla. 2d DCA 1999) (citing Mintzberg v. Golestaneh, 390 So. 2d 759 (Fla. 3d DCA 1980)). The party seeking judgment based on a settlement has the burden to prove assent by the opposing party and must establish that there was a meeting of the minds or mutual or reciprocal assent to certain definite propositions. Robbie, 469 So.2d at 1385; Ribich, 784 So. 2d 1201 .
In this case, Giovo's last offer specified that she be paid $18 per day for the loss of the use of her car. GEICO's response, proposing to pay only $10 per day through a date certain, manifestly was not identical to nor did it assent to the definite propositions contained in Giovo's offer. As such, it was a counteroffer which operated as a rejection of Giovo's offer and which Giovo was not obligated to accept. Ribich, 784 So. 2d 1201; Padron v. Plantada, 632 So. 2d 113 (Fla. 3d DCA 1994). Based on the undisputed facts of record the circuit court should have denied the McDonalds' motion for summary judgment on their settlement defense and should have granted Giovo's motion.
Reversed and remanded for further proceedings.
PATTERSON, C.J., and DAVIS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608519/ | 791 So. 2d 1114 (2000)
Robert CASTRO, Appellant,
v.
STATE of Florida, Appellee.
No. 4D99-2849.
District Court of Appeal of Florida, Fourth District.
June 14, 2000.
Opinion Denying Rehearing January 31, 2001.
Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Robert R. Wheeler, Assistant Attorney General, West Palm Beach, for appellee.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant on rehearing.
WARNER, C.J.
Appellant challenges, inter alia, the trial court's decision allowing the jury to hear testimony by the victim of prior similar sexual acts committed by appellant on that same victim. He claims that the self-corroborating testimony was admitted in violation of Heuring v. State, 513 So. 2d 122 (Fla.1987) and Saffor v. State, 660 So. 2d 668 (Fla.1995). Appellant's challenge, however, is not preserved on appeal since his argument on appeal is different from his argument below, which was based on vagueness of the victim's testimony regarding the previous acts. See Tillman v. State, 471 So. 2d 32, 35 (Fla.1985); Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982). We affirm as to all other issues raised.
Affirmed.
STONE and POLEN, JJ., concur.
ON MOTION FOR REHEARING
WARNER, C.J.
On motion for rehearing, appellant claims that his counsel's objection was sufficient to raise the issue below. Appellant admits that the original objection raised was as to the vagueness of the victim's testimony. He then notes his attorney's further objection, which is in fact a request for the normal Williams[1] rule instruction. Specifically, he stated:
*1115 Any time Williams rule is introduced, there is an instruction that the Court gives to the jury so that wewe try to guard against somehow a commingling where Mr. Castro then is convicted on this Williams rule evidence that's just offered for corroboration.
And I cannot see how the Court can separate these instances sufficiently to instruct this jury toto be able to separate.
The court then agreed to give the instruction, which included the admonition that the Williams rule evidence can be used "for the limited purpose of corroborating the testimony of the witness named as victim." Appellant's counsel did not object.
It is not apparent to us that the court was cognizant of the specific objection appellant has raised in this appeal, namely, that the problem with this testimony was that it was self-corroborating. In order to preserve an issue for appeal, counsel must preserve the issue by making a specific objection to the admission of evidence on the same grounds as raised on appeal. See Tillman v. State, 471 So. 2d 32, 35 (Fla.1985). Certainly, appellant's attorney never made that simple objection. The court's ruling relied on Saffor v. State, 660 So. 2d 668 (Fla.1995), for the proposition that similar fact evidence of this type can be used for corroboration. The court also based its ruling on the more traditional Williams rule tests, including "very strikingly similar and unique characteristics of the similar fact evidence. Both constitute a familial situation and both constitute the same child and very similar if not exactly the same types of acts." Thus, the court felt there was a basis independent of corroboration to admit this evidence. Appellant never objected to the self-corroborating nature of the evidence.
Self-corroborating Williams rule evidence has frequently been admitted to show other aspects of the crime such as intent, preparation, plan, relationship between the victim and the offender, and the existence of a lustful state of mind toward the victim. See Kimbrell v. State, 764 So. 2d 893, 893-94 (Fla. 4th DCA 2000), and cases cited therein. Indeed, in Smith v. State, 538 So. 2d 66, 67 (Fla. 1st DCA 1989), the court stated that "[e]vidence that deals only with similar sex acts against the victim in the case being tried is far less subject to objection than evidence of similar acts against other victims." (Emphasis in original). From the evidence presented in this case, the court might have found that the evidence was admissible to show a pattern, i.e., that the incidents all took place when the child's mother was not at home under very similar circumstances. Had the proper objection been made, the state may well have argued to admit the evidence on those grounds, and the court would have fashioned an appropriate instruction regarding its admission. As it was, the court was not asked to rule on the same objection which appellant raises here.
We deny the motion for rehearing.
STONE and POLEN, JJ., concur.
NOTES
[1] Williams v. State, 110 So. 2d 654 (Fla.1959). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608526/ | 21 So. 3d 916 (2009)
Robert Anthony WEST, Appellant,
v.
STATE of Florida, Appellee.
No. 5D08-217.
District Court of Appeal of Florida, Fifth District.
November 13, 2009.
James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. West, Wewahitchka, pro se.
Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.
*917 PER CURIAM.
Robert Anthony West appeals the judgment and sentence adjudicating him guilty in case number 06-6244 of burglary of a dwelling with a battery and a firearm, false imprisonment with a weapon, and battery.[1] The court sentenced West on the burglary charge to ten years in prison with a ten-year firearm minimum mandatory sentence, with credit for time served of one year and 184 days, followed by ten years of probation. The court concurrently sentenced West to one year and 184 days on the false imprisonment count and one year on the battery count, with credit for time served. West asserts that his convictions for burglary with a battery and battery violate double jeopardy. We agree.
The courts have consistently held that convictions for burglary with a battery in violation of section 810.02(2)(a), Florida Statutes (2006), and battery in violation of section 784.03(1)(a), Florida Statutes (2006), violate double jeopardy. Bracey v. State, 985 So. 2d 704, 705 (Fla. 5th DCA 2008); Lewis v. State, 740 So. 2d 82, 82 (Fla. 3d DCA 1999); Lyles v. State, 724 So. 2d 138, 138 (Fla. 1st DCA 1998); Bradley v. State, 540 So. 2d 185, 187 (Fla. 5th DCA 1989); Spradley v. State, 537 So. 2d 1058, 1061 (Fla. 1st DCA 1989). The State even agreed during trial that battery is a lesser included offense of burglary with a battery.[2]
Accordingly, we reverse the battery conviction and sentence in case number 06-6244 and remand this case to the trial court with instructions to vacate that conviction and sentence. Bracey. We affirm West's other convictions and sentences in both case numbers 06-6241 and 06-6244.
AFFIRMED in part; REVERSED in part; and REMANDED.
MONACO, C.J., and SAWAYA and COHEN, JJ., concur.
NOTES
[1] West also appeals his convictions and sentences in case number 06-6241, which was consolidated for trial with case number 06-6244. In case number 06-6241, the jury found West guilty of armed burglary of a dwelling with a firearm, kidnapping, and armed carjacking. The court sentenced him on each count to fifteen years in state prison with a ten-year firearm minimum mandatory, with credit for one year and 184 days, followed by ten years of reporting probation, all to run concurrently, but to run consecutively to the sentence in case number 06-6244. West raises two other issues: the trial court erred in instructing the jury regarding out-of-court statements made by West that were introduced during the trial; and the trial court erred in giving the jury an instruction regarding the carjacking offense that included standard language utilized when a victim is administered a substance that causes the victim to become unconscious. Not only did West fail to object to these alleged errors during the trial, we find them totally without merit and affirm as to each.
[2] We find unavailing the State's argument that there is no double jeopardy violation because West was convicted of a crime it labels "domestic battery." The judgment rendered by the trial court adjudicates West guilty of "battery domestic violence," citing only to the misdemeanor battery statute in section 784.03, Florida Statutes (2007). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608514/ | 791 So. 2d 1088 (2001)
STATE of Florida, Petitioner,
v.
Latundra WILLIAMS, Respondent.
No. SC00-1905.
Supreme Court of Florida.
July 13, 2001.
*1089 Robert A. Butterworth, Attorney General, Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, and Stephen D. Ake, Senior Assistant Attorney General, Tampa, FL, for Petitioner.
Julianne M. Holt, Public Defender, and Jeanine Cohen, Assistant Public Defender, Thirteenth Judicial Circuit, Tampa, FL, for Respondent.
HARDING, J.
We have for review a decision of a district court of appeal on the following question, which the court certified to be of great public importance:
Whether the holding of Genden v. Fuller, 648 So. 2d 1183 (Fla.1994), applies where the state takes no action prior to the expiration of the speedy trial period and then files an information after the period has expired.
Williams v. State, 774 So. 2d 23, 24 (Fla. 2d DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
The Respondent, Latundra Williams, was arrested on October 8, 1999. On May 3, 2000, the State filed an information against Respondent, 206 days after her arrest. On June 26, 2000, Williams filed a motion for discharge asserting a violation of her right to speedy trial. The trial court conducted a hearing, treated the motion as a notice of expiration of speedy trial, and set the case for trial within ten days. Williams reserved her right to challenge the denial of the motion and waived her right to a speedy trial.
Williams petitioned the Second District Court of Appeal for a writ of prohibition seeking review of the trial court's denial of her motion to discharge filed after the speedy trial period expired. Following Genden v. Fuller, 648 So. 2d 1183 (Fla. 1994), the Second District granted the petition by order dated August 1, 2000, quashed the trial court's order, remanded the case for discharge, and certified the above question.
In the instant case, we are presented with the question of whether Florida Rule of Criminal Procedure 3.191 should be construed to allow the State to effectively toll the running of the speedy trial period by allowing it to expire prior to filing of formal charges. For the reasons expressed below, we conclude that it should not.
In State v. Agee, 622 So. 2d 473 (Fla. 1993), we held that the State could not refile charges once it had entered a nolle prosequi and the speedy trial period had run. In Agee, the defendant was charged with attempted second-degree murder, arrested, and extradited to Florida on March *1090 30, 1988. Under rule 3.191, the defendant made a written demand for a speedy trial pursuant to rule 3.191 on July 22, 1988. At that time, the victim was comatose and there were no eyewitnesses. Thirty-three days before expiration of the speedy trial period, the State entered a nolle prosequi. Florida authorities later located two eyewitnesses to the crime and the victim emerged from his coma. By this time, the speedy trial time expired yet the State filed an information charging the defendant with premeditated attempted first-degree murder. The trial court dismissed the charges, ruling that the nolle prosequi provision of rule 3.191 prohibited the State from refiling charges once the it entered a nolle prosequi and the speedy trial time had run. The district court affirmed and concluded that the State was not entitled to the fifteen-day recapture window.
Upon review, this Court approved the decision of the First District Court of Appeal, reasoning that "[t]o allow the State to unilaterally toll the running of the speedy trial period by entering a nol pros would eviscerate the rule-a prosecutor with a weak case could simply enter a nol pros while continuing to develop the case and then refile charges based on the same criminal episode months or even years later, thus effectively denying the accused the right to a speedy trial while the State strengthens its case." Agee, 622 So.2d at 475. This Court held that the speedy trial period continued to run upon entry of a nolle prosequi by the State, and that the State could not refile charges based on the same conduct after that period had expired. Noting that the State was not without options, this Court stated that the State may seek extension of the speedy trial time period with good cause, or postpone arresting a suspect until it has an adequate case. See also Fla. R.Crim. P. 3.191(j).
A year later, in Genden v. Fuller, 648 So. 2d 1183 (Fla.1994), this Court prohibited the State from effectively tolling the running of the speedy trial time period by entering a "no action" prior to filing of formal charges. The defendant in Genden was arrested on November 24, 1992. "After the arrest and before an information was filed, the State voluntarily terminated the prosecution by announcing that it would bring `no action.'" Id. at 1183.[1] Notably, unlike the defendant in Agee, the defendant in Genden was never charged prior to the expiration of the speedy trial time. The State, however, charged the defendant on June 28, 1993, based on the same events that led to his earlier arrest. The defendant was arrested on August 3, 1993, and the State filed an information charging Fuller with grand theft. Two weeks later, the defendant filed for discharge under the speedy trial rule.
Denying the motion, the trial court allowed the fifteen-day recapture window to take effect. The defendant petitioned the Third District Court of Appeal for a writ of prohibition on the authority of this Court's holding in Agee. The district court granted Fuller's petition and certified the following question as being of great public importance:
Whether the holding of State v. Agee applies when the prosecution is terminated by a voluntary dismissal before an indictment or information rather than a "nolle prosse" filed after an information or indictment? *1091 Fuller v. Genden, 630 So. 2d 1150 (Fla. 3d DCA 1993).
This Court answered the certified question in Genden in the affirmative. We held that the speedy trial time begins to run when an accused is taken into custody and continues to run when the State voluntarily terminates prosecution, before formal charges are filed. Our holding prohibited the State from filing charges based on the same conduct after the speedy trial period has expired. See Genden, 648 So.2d at 1185. Genden extended Agee's reasoning to instances where "no action" was entered by the State. This Court reiterated that "the date of the original arrest is the focal point for speedy trial considerations' and `[o]nly in specifically delineated circumstances can the time period be adjusted.'" Id. (quoting Weed v. State, 411 So. 2d 863, 865 (Fla.1982)). We stated that "the fact that charges are not yet filed when a prosecution is terminated by a `no action' is not determinative" because the speedy trial time commences "when the accused is `taken into custody as defined under subdivision (d)' of rule 3.191, rather than when charges are filed." Genden, 648 So.2d at 1184 (citing Fla. R.Crim. P. 3.191(a)). Accord Allen v. State, 275 So. 2d 238, 240 (Fla.1973); Thigpen v. State, 350 So. 2d 1078, 1079 (Fla. 4th DCA 1977).
Refuting any contention that the rule was intended to benefit only those arrestees charged with an offense, we cited subsection (1) of rule 3.191(i), as originally adopted. That subsection provided that the rule "shall be effective and govern the trial dates of all persons taken into custody after 12:01 a.m. on March 1, 1971." Fla. R.Crim. P. 3.191(i)(1)(1971). Furthermore, we recognized Lewis v. State, 357 So. 2d 725 (Fla.1978), which held that "a defendant who was arrested for an offense but released before charges were filed was entitled to discharge where the speedy trial time had expired before the State formally charged the defendant with that offense." Genden, 648 So.2d at 1184. We agreed that "whether the State voluntarily terminates a prosecution before an information is filed ... rather than after the defendant is formally charged, as was done with Agee, `is a distinction without a legally cognizable difference.'" Id. at 1185 (quoting Fuller v. Genden, 630 So.2d at 1150).
In the present case, the Second District Court of Appeal was faced with the question of whether to extend the rule in Genden to a case in which the State took no action until after the speedy trial period expired. Finding Williams and Genden analogous, the district court applied Genden's reasoning and determined that no legally cognizable difference existed between the State announcing a "no action," and inaction by the State until after the speedy trial period expired. See Williams, 774 So.2d at 24. We agree. It follows that the 175 day speedy trial period "began to run when Williams was first taken into custody." Id. As in Genden, the State was not entitled to a recapture period under rule 3.191. Therefore, the district court properly granted Williams the writ of prohibition.
Thus, we hold that the speedy trial time begins to run when an accused is taken into custody and continues to run even if the State does not act until after the expiration of that speedy trial period. The State may not file charges based on the same conduct after the speedy trial period has expired.
Accordingly, we answer the certified question in the affirmative and approve the decision below.
It is so ordered.
*1092 SHAW, ANSTEAD, PARIENTE, and LEWIS, JJ., concur.
WELLS, C.J., dissents with an opinion, in which QUINCE, J., concurs.
WELLS, C.J., dissenting.
The majority's opinion totally ignores what troubled all the members of the Second District Court of Appeal panel. The Second District's opinion states:
Our reliance on [Genden v. Fuller, 648 So. 2d 1183 (Fla.1994),] is not without hesitation. As Justice Wells points out in his persuasive dissent, "[b]y the express language of Florida Rule of Criminal Procedure 3.191, the rule only applies to persons charged with a crime by indictment or information." Id. (Wells, J., dissenting). He also discusses pitfalls in the application of the majority view and suggests that a rule amendment should be proposed.
Nevertheless, we are compelled to follow Genden, which appears to require that we grant Williams' petition.
Williams v. State, 774 So. 2d 23, 24 (Fla. 2d DCA 2000).
In her concurring opinion, Acting Chief Judge Fulmer wrote:
Although I have concurred with the granting of the petition for writ of prohibition, I am not totally convinced that Genden should be applied in a case where the State has taken no action to indicate an intention not to prosecute. There is nothing in Florida Rule of Criminal Procedure 3.191 that precludes an accused, such as Williams, who has been arrested and not formally charged from filing a notice of expiration of speedy trial directed to the case pending on the arrest.1 The filing of such notice should trigger the recapture period provided for in Florida Rule of Criminal Procedure 3.191(p) and allow an opportunity for the State to file an information and proceed with prosecution.
1. Irrespective of the fact that the speedy trial rule provides that it "applies to every person charged with a crime by indictment or information," the court in Genden ..., states that the rule is triggered when a person is "taken into custody" and rejected the contention that "the rule was intended to benefit only those arrestees charged with an offense prior to the expiration of the speedy trial period."
In cases such as Agee and Genden, where the State voluntarily terminates prosecution by either filing a nolle prosequi or announcing a "no action" report, the case pending on the arrest is closed and no case exists within which the accused can invoke the procedural right to speedy trial. Once the State has taken some action to indicate that it does not intend to prosecute, it is appropriate that the State be charged with the continuous running of the clock if it later changes it mind. Where the State has taken no action at all, the accused is on notice that a case is pending and is protected against inordinate delay by the ability to invoke the rights to speedy trial provided by both the rule and the United States Constitution. Having presented my reservations about the position taken in the majority, I nevertheless concur because the discussion in Genden appears to support the issuance of the writ of prohibition. However, the rule as currently written does not contemplate the facts we address in Williams' petition, and to the extent that this court or the supreme court creates fact-based applications of the rule that do not apply to the rule as written, it underscores the need for amendment.
Id. at 25.
As the Second District judges each note and as I stated in Genden, my concern is that rule 3.191 "only applies to persons *1093 charged with a crime by indictment or information." Genden, 648 So.2d at 1185. The majority cannot and does not point to any language in the rule which refutes this fact. The majority's statement that the speedy trial time commences "when the accused is taken into custody" has utterly no basis in the language of the rule. Majority op. at 1091.
This Court's interpretation of the speedy trial rule in Reed v. State, 649 So. 2d 227 (Fla.1995), in Genden, and in State v. Agee, 622 So. 2d 473 (Fla.1993), created a judicial statute of limitation without foundation in the language of the rule. The majority's present decision is simply another expansion of this judicial statute of limitation created without any foundation in the language of the speedy trial rule.
I agree with Judge Fulmer and would hold that Genden does not apply to this case.
QUINCE, J., concurs.
NOTES
[1] This Court noted that "[a] `no action' has been defined as a `dismissal of the pending charges before an information or indictment has been filed.'" Genden, 648 So.2d at 1183 n. 1 (citing Allied Fidelity Insurance Co. v. State, 408 So. 2d 756, 756 n. 1 (Fla. 3d DCA 1982)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608536/ | 773 F. Supp. 577 (1991)
HYOSUNG (AMERICA), INC., Plaintiff,
v.
AMERICAN PRESIDENT LINES, LTD., Defendant.
No. 90 Civ. 6232 (KTD).
United States District Court, S.D. New York.
July 19, 1991.
*578 Arthur J. Teichberg, P.C., New York City, for plaintiff.
Hill, Betts & Nash (Michael J. Ryan, of counsel), New York City, for defendant.
MEMORANDUM & ORDER
KEVIN THOMAS DUFFY, District Judge.
Plaintiff Hyosung (America), Inc. ("Hyosung") commenced this action for recovery of losses occasioned by a misdelivery of goods never traced or recovered which were sent from Busan, Korea to the Dominican Republic on board a vessel owned by defendant American President Lines, Ltd. ("APL"). The parties now cross-move pursuant to Fed.R.Civ.P. 56. Additionally, APL requests the imposition of sanctions be assessed against Hyosung as appropriate for bringing a frivolous action.
STATEMENT OF FACTS
Hyosung is a New York corporation in the business of selling textile goods. Plaintiff's Statement 3(g) ¶ 1. APL, a Delaware corporation, is a common carrier or transporter of goods by water. Plaintiff's Statement 3(g) ¶ 2. On March 13, 1989, Sulea Corporation ("Sulea"), a supplier and shipper, brought certain textile goods to APL so that it could then carry and deliver the goods by sea from Busan Korea to one of Hyonsung's customers, Kukje Corporation ("Kukje"), the intermediate consignee in Santo Domingo. Plaintiff's Statement 3(g) ¶ 3. Upon receipt of the goods, APL issued an order Bill of Lading Contract No. 417878 to Sulea. Plaintiff's Statement 3(g), ¶¶ 3-5. Sulea thereafter negotiated the Bill of Lading to Hyosung which then became the owner of the goods. Plaintiff's Statement 3(g) ¶ 6.
Instead of delivering directly to Kukje, APL released textile goods owned by Hyosung to a third party, Santo Domingo Port Authority, without presentation of the order Bill of Lading in issue. According to Hyosung, when it failed to receive notification indicating that the goods were properly delivered and on April 16, 1989, it requested that APL put a tracer on the shipment of goods. Lee Affid. in Opposition ¶ 6. Sometime thereafter, Hyosung officially notified APL of its claim to the goods on April 26, 1990. Lee Affid. in Opposition ¶ 7.
A second notice of claim was sent to APL on May 23, 1990, to which APL responded by requesting certain additional information from Hyosung. Immediately responding, Hyosung provided the requisite information to APL by letter dated May 31, 1990. No further inquiry or statement ensued and APL never rejected that second claim. On July 24, 1990, after approximately two months had passed and there was no further response or inquiry from APL, Hyosung commenced suit. Lee Affid. ¶¶ 10-12. Two days later, APL informed Hyosung that the shipment was supposedly delivered into the possession of the Santo Domingo Port Authority on April 16, 1989.
DISCUSSION
It is undisputed that Hyosung has been unable to collect the purchase price of the merchandise from Kukje and that the prospects of recovering from that company are remote since numerous judgments and a federal tax lien filed against it are still unsatisfied. Nonetheless, APL refuses to deliver the goods or make payment to Hyosung. It is Hyosung's position that, pursuant to the Harter and Pomerene Acts, APL *579 is absolutely liable for the negligent misdelivery of the textiles in question here.
APL's Bill of Lading contract covering the shipment involved, in pertinent part, states:
2. CLAUSE PARAMOUNT. The receipt, custody, carriage and delivery of the Goods are governed by the provisions of the transportation agreement evidenced hereby and incorporated by this reference, including (i) the terms and conditions of the Carrier's applicable freght tariffs (ii) the terms and conditions stated on the front and back of the Bill of Lading, and (iii) the provisions of the U.S. Carriage of Goods by Sea Act, 1936, ("COGSA")[1] or the Hague Rules of 1921, as amended by the Brussels Convention of 1924, in effect in the country in which a court having jurisdiction adjudicates a dispute arising out of the transportation agreement....
24. The carrier and the Vessel shall be discharged from all liability in contract and in tort in respect of loss, damage, delay, misdelivery or conversion unless suit is brought within one year after delivery of the Goods or the date when the Goods should have been delivered.
APL avers that Hyosung's claim should be striken as time-barred because the terms of the contract should control and it was in excess of one year's time from the purported misdelivery that Hyosung decided to assert its rights and claim entitlement to the losses. I agree. Specifically, the misdelivery was made on or before April 16, 1989 and it was not until April 26, 1990 that Hyosung first gave notice of the claim. Also, it was not until August 31, 1990 that this action was commenced. See 46 U.S.C.App. § 1303(6) (action for misdelivery must be commenced within one year from date goods are delivered.) Although Hyosung purports to have made numerous inquiries as to the whereabouts of the shipment, there is nothing memorialized in the submissions indicating that any notice of claim was made prior to April 16, 1990. Indeed, there is nothing to indicate that such inquiries, even if made on the dates that Hyosung asserts them to have been made, suffice to vitiate the terms of the Bill of Lading or similar provisions which are contained in COGSA.
Furthermore, Hyosung urges that APL's release of the goods to the Port Authority in Santo Domingo, a party not holding the necessary documents or Bill of Lading, constituted an unjustifiable deviation from the contract's provisions and therefore the contract's time limitation periods should be abrogated. I disagree. Although it is axiomatic that after deviation, the shipper has the option to hold to the contract or to regard it as abrogated, misdelivery of cargo is not a deviation that bars resort to COGSA's damage limitations. B.M.A. Industries, Ltd. v. Nigerian Star Line, Ltd., 786 F.2d 90 (2d Cir.1986). "Prior to the enactment of COGSA, courts uniformly refused to characterize misdelivery as a deviation." Id. at 92 (citations omitted). Indeed, "non-delivery is not drastic enough a deviation to oust COGSA's one year limitations period."[2]Id. (citing Hellyer v. Nippon Yesen Kaisya, 130 F. Supp. 209 (S.D.N.Y.1955 (Weinfeld, J.))). As such, Hyosung fails to provide sufficient facts to withstand APL's motion for a summary dismissal.
Moreover, Hyosung asserts that the Bill of Lading, which required APL to place the goods in the custody of a bonded warehouse (for Kukje had not yet paid for the shipment) was breached for the goods were delivered to the Dominican Port Authority. APL, however, claims that it does not have a warehouse, bonded or otherwise, in Santo Domingo. Hanley Affid. Nor could APL accept instructions to place goods into a warehouse because it would be committing *580 itself to requisite warehouse charges without proper authorization. In any event, delivery to the Domincan Port Authority is sufficient to protect Hyosung's interests to have its goods in a bonded warehouse because the Domincan Port Authority undertakes responsibility for the goods once they are in custody. Hyosung thus fails to adduce facts sufficient to show the provisions of the Bill of Lading and COGSA should be avoided.
Lastly, any estoppel argument advanced by Hyosung, that it was lulled into a false sense of security because APL failed to respond to notices of claim, is unpersuasive. There is nothing adduced by Hyosung indicating that APL was less than forthright in this matter. That APL did not respond to Hyosung until it noticed the claim a second time is of no moment in light of the fact that up until that time, Hyosung provided APL with both incorrect voyage and Bill of Lading numbers. Moreover, the applicable Bill of Lading provision reads:
Investigating, negotiating or otherwise dealing with claims by Carrier or its attorneys or representatives shall not be admission of liability and shall not be deemed a waiver of this provision.
Finally, APL's response to Hyosung which requested certain documentation set out the possibility that a time-bar defense would be raised because even its first notice of claim was not submitted until after one year had elapsed since the purported misdelivery.
Therefore, Hyosung's motion for summary judgment is denied; APL's motion is granted and the complaint is dismissed in its entirety. The request for Rule 11 sanctions is denied. There will be no such sanctions assessed against any party to this suit.
SO ORDERED.
NOTES
[1] The Bill of Lading contract incorporates the provisions of COGSA, which provides that suit must be commenced within one year from the date the goods are delivered lest the action be deemed time-barred. 46 U.S.C.App. § 1303(6).
[2] While COGSA does not per se govern in this action (the shipment being from Korea to the Domincan Republic, and not "to or from" a port in the United States), the clause paramount in the Bill of Lading contract covering the transportation of the goods specifically provides that the provisions of COGSA shall apply. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608506/ | 773 F. Supp. 1414 (1991)
Violet J. GUTHRIE, Plaintiff,
v.
HEWLETT-PACKARD COMPANY EMPLOYEE BENEFITS ORGANIZATION, and Hewlett-Packard Company Employee Benefits Organization Income Protection Plan, Defendants.
Civ. A. No. 90-S-2055.
United States District Court, D. Colorado.
October 1, 1991.
*1415 Mark Korb, Ft. Collins, Colo., for plaintiff.
Gregory Kerwin, Denver, Colo., Joseph Busch, III, Newport Beach, Cal., for defendants.
ORDER
SPARR, District Judge.
Plaintiff brought this action under 29 U.S.C. § 1132(a)(1)(B) after the Defendants denied her claim for long-term disability benefits under the Hewlett-Packard Company Employee Benefits Organization Income Protection Plan (the Plan) on December 16, 1988. This matter comes before the court on: (1) Defendants' Motion for Summary Judgment on Plaintiff's First Amended Complaint; and (2) Plaintiff's Counter-Motion for Summary Judgment on her First Amended Complaint. The court has reviewed the motions, responses, and replies, the entire file, the argument by counsel in open court, the applicable law, and is fully advised in the premises.
A. Standard of Review
A denial of benefits challenged under 29 U.S.C. § 1132(a)(1)(B) is to be reviewed de novo unless the benefit plan vests discretion in the plan administrator or claims processor to determine eligibility for benefits or to construe the terms of the plan. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S. Ct. 948, 956, 103 L. Ed. 2d 80 (1989). If the plan fiduciaries are entitled to exercise such discretion, judicial review of the challenged denial of benefits is limited to a determination of whether the decision is arbitrary or capricious. Naugle v. O'Connell, 833 F.2d 1391, 1393 (10th Cir.1987); Peckham v. Bd. of Trustees of the Int'l Bhd. of Painters and Allied Trades Union, 653 F.2d 424, 426 (10th Cir.1981).
The Plan in this case vests discretion in the Claims Administrator to determine Total Disability on the basis of objective medical evidence (Defendants' Exhibit 1(A) p. 7), to administer the review of denied claims (Defendants' Exhibit 1(A) p. 27), and to construe the language of the Plan (Defendants' Exhibit 1(A) p. 28). Despite the Plaintiff's argument that the Claims Administrator serves in a merely ministerial position, the court concludes that the Plan delegates to the Claims Administrator the power to exercise discretionary authority. Therefore, under Firestone, 489 U.S. at 115, 109 S.Ct. at 956, judicial review of the denial of Plaintiff's claim must be upheld unless: (1) arbitrary and capricious, (2) not supported by substantial *1416 evidence, or (3) erroneous on a question of law. Pratt v. Petroleum Prod. Mngmt. Employee Sav. Plan, 920 F.2d 651, 657 (10th Cir.1990).
A decision is neither arbitrary nor capricious if it is based on substantial evidence and is not the result of a mistake of law, Naugle, 833 F.2d at 1393-94, or, in other words, if it is a reasonable interpretation of plan's terms and was made in good faith, Torix v. Ball Corp., 862 F.2d 1428, 1429 (10th Cir.1988), or is rational in light of the plan's provisions. Miller, 925 F.2d at 984.
B. The Motion and the Counter-Motion for Summary Judgment
The standard for ruling on summary judgment motions is set forth in Federal Rule of Civil Procedure 56(c). Fed.R.Civ.P. 56 provides in pertinent part:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegation or denial of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not respond, summary judgment, if appropriate, shall be entered against the adverse party.
Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Metz v. United States, 933 F.2d 802, 804 (10th Cir.1991), petition for cert. filed (Aug. 12, 1991) (No. 91-260); Lucas v. Mountain States Telephone & Telegraph, 909 F.2d 419, 420 (10th Cir. 1990); Martin v. Board of County Com'rs of Pueblo County, 909 F.2d 402, 404 (10th Cir.1990).
The plain language of Rule 56(c) mandates the entry of summary judgment against a party who fails to make a showing that is sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The non-movant must go beyond the pleadings and come forward with specific facts showing a genuine issue for trial. Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); Tillett v. Lujan, 931 F.2d 636, 639 (10th Cir.1991). The mere existence of some alleged factual dispute will not defeat a properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 106 S. Ct. 2505, 2509-11, 91 L. Ed. 2d 202 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510; Clifton v. Craig, 924 F.2d 182, 183 (10th Cir.1991), petition for cert. filed, (April 23, 1991) (No. 91-7864); Merrick v. Northern Natural Gas Co., 911 F.2d 426, 429 (10th Cir.1990). In reviewing a motion for summary judgment, the court must view the evidence and any possible inferences in the light most favorable to the party opposing summary judgment. Merrick, 911 F.2d at 429; McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir.1988).
1. Plaintiff argues that the denial of her claim was arbitrary and capricious for several reasons. First, Plaintiff argues that Defendants were arbitrary and capricious in their initial review of the medical evidence and in their December 16, 1988 determination that Plaintiff was not totally disabled within the terms of the Plan.
Plaintiff applied for benefits for long-term "Total Disability," as defined in the Plan (Defendants' Exhibit 1(A) pp. 6-7):
"Totally Disabled" and "Total Disability" mean that because of injury or sickness:
(i) During the first thirty-nine (39) weeks following the onset of the injury of sickness, the Member is continuously unable to perform each and every duty of his or her Usual Occupation; and
(ii) After the initial thirty-nine (39) week period, the Member is continuously unable to perform any occupation for which he or she is or may become qualified by *1417 reason of his or her education, training or experience.
The determination of "Total Disability" must be made by the Claims Administrator on the basis of "objective medical evidence." Plaintiff contends that the Defendants' interpretation of the term "total disability" was unduly restrictive and contrary to the intent of ERISA.
Plaintiff's application for long-term Total Disability benefits was accompanied by her Attending Physician's Statement of Disability dated October 25, 1988. Dr. Bush indicated that Plaintiff was totally disabled from her present job, but not totally disabled from any other work (Defendants' Exhibit 2(D) p. EQC-38). Based upon this information, the Plan denied Plaintiff's claim for long-term disability benefits, stating that "The medical evidence does not indicate total disability" (Defendants' Exhibit 2(D) p. EQC-32). The Plan noted that it was willing to review any additional evidence the Plaintiff might wish to submit in support of her claim (Defendants' Exhibit 2(D) p. EQC-32). Such additional evidence was required to be submitted in writing within 60 days of receipt of the December 16, 1988 letter (Defendants' Exhibit 2(D) p. EQC-33).
The courts have no authority to decide what benefits employers must confer on their employees these are decisions which are more appropriately influenced by forces in the marketplace and, when appropriate, by federal legislation. Musto v. American General Corp., 861 F.2d 897, 911 (6th Cir.1988), cert. denied, 490 U.S. 1020, 109 S. Ct. 1745, 104 L. Ed. 2d 182 (1989), quoting Moore v. Reynolds Metals Co. Retirement Program, 740 F.2d 454, 458 (6th Cir.1984), cert. denied, 469 U.S. 1109, 105 S. Ct. 786, 83 L. Ed. 2d 780 (1985). When reviewing a denial of benefits under ERISA, the court may consider only the evidence available to the claims administrator at the time the final decision was made. Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 986 (6th Cir.1991); Perry v. Simplicity Engineering, 900 F.2d 963, 966 (6th Cir.1990); Voliva v. Seafarers Pension Plan, 858 F.2d 195, 196 (4th Cir.1988). Under the circumstances of this case, the Plan's interpretation of "Total Disability" was not unduly restrictive or contrary to the intent of ERISA. The statement from Plaintiff's physician indicates that she was able to perform other types of work. In light of the objective medical evidence before the Plan at the time of the decision, the Plan was not arbitrary or capricious in determining that Plaintiff was not entitled to further disability benefits under a fair reading of the Plan. The court cannot conclude that the Plan was arbitrary and capricious in the initial review and December 16, 1988 denial of Plaintiff's claim.
2. Second, Plaintiff argues that the Defendants' December 12, 1989 decision affirming the December 16, 1988 denial was arbitrary and capricious because Defendants did not accept the letter prepared by Plaintiff's counsel and signed by Dr. Bush as "credible, contemporaneous, medical evidence" and because Defendants did not afford her a full and fair review of the initial denial of long-term disability benefits.
Plaintiff submitted two additional documents to the Plan approximately one year after her claim was denied. Although these documents were not submitted within the 60-day review period established by the Plan, the Plan reviewed the documents, concluding that they did not constitute objective medical evidence that would establish that the Plaintiff was entitled to long-term disability benefits.
One of the documents was an "edited" version of the Social Security Administration's May 26, 1989 decision concerning Plaintiff's claim for Social Security disability benefits. Plaintiff has conceded that it was reasonable for the Plan to disregard this document.
The second document was a letter dated November 27, 1989, drafted by Plaintiff's counsel, and signed by Dr. Bush, which stated that Plaintiff "should be deemed to have been disabled for purposes of the long-term disability plan which is offered by your company since the fall of 1988" (Defendants' Exhibit 2(D) pp. EQC-25-26). Plaintiff argues that the Plan was not justified *1418 in concluding that Dr. Bush's November 27, 1989 letter was not "credible, contemporaneous, medical evidence." (See Defendants' Exhibit 2 p. 4).
There is no evidence that Plaintiff submitted to an additional examination by Dr. Bush with regard to the November 27, 1989 letter drafted by Plaintiff's counsel and signed by Dr. Bush. The letter does not explain why the prognosis for the Plaintiff is inconsistent with her previous prognosis in October of 1988. Based upon the nature and timing of the additional letter from Dr. Bush and the Attending Physician Statement that had previously established facts contrary to the Plaintiff's claim, the court concludes that it was not arbitrary and capricious for the Plan to affirm its denial of benefits to the Plaintiff.
3. Finally, Plaintiff argues that the December 16, 1988 denial of benefits (Defendants' Exhibit 2(D) pp. EQC-32-33) failed to comply with the requirements of 29 U.S.C. § 1133 and 29 C.F.R. § 2560.5031(f) that certain information be contained in the written notice. Plaintiff also argues that the December 12, 1989 affirmation of the denial of benefits (Defendants' Exhibit 2(D) p. EQC-23) was not "a full and fair review" pursuant to § 1133.
(a) 29 U.S.C. § 1133 provides:
Claims procedure
In accordance with regulations of the Secretary, every employee benefit plan shall
(1) provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant, and
(2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.
In addition, substantial compliance with 29 C.F.R. § 2560.503(1)(f)(1) through (4) is necessary to meet the requirements of § 1133. Sage v. Automation, Inc. Pension Plan and Trust, 845 F.2d 885, 892-93 (10th Cir.1988). 29 C.F.R. § 2560.503(1)(f) provides:
(f) Content of notice. A plan administrator or, if paragraph (c) of this section is applicable, the insurance company, insurance service, or other similar organization, shall provide to every claimant who is denied a claim for benefits written notice setting forth in a manner calculated to be understood by the claimant:
(1) The specific reason or reasons for the denial;
(2) Specific reference to pertinent plan provisions on which the denial is based;
(3) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and
(4) Appropriate information as to the steps to be taken if the participant or beneficiary wishes to submit his or her claim for review.
In applying the statute and the regulation to the facts of this case, the court concludes that the December 16, 1988 denial letter substantially complied with the requirements of ERISA. The letter specifically stated the reason for the denial, quoted the plan provisions regarding total disability, indicated the Plan's willingness to review any additional evidence Plaintiff wished to submit, and explained the procedure for obtaining additional review within 60 days. (Defendants' Exhibit 2(D) pp. EQC-32-33). See Madden v. ITT Long Term Disability Plan, 914 F.2d 1279, 1286 (9th Cir.1990), cert. denied, ___ U.S. ___, 111 S. Ct. 964, 112 L. Ed. 2d 1051 (1991); Graham v. Federal Express Corp., 725 F. Supp. 429, 436 (W.D.Ark.1989).
In addition, Plaintiff presents no evidence that she was prejudiced by any deficiencies in the notice of denial. When an alleged procedural error has not prejudiced the claimant, reversal is not required. Sage, 845 F.2d at 895.
(b) A full and fair review means "knowing what evidence the decision-maker relied upon, having an opportunity to address the accuracy and reliability of the *1419 evidence, and having the decision-maker consider the evidence presented by both parties prior to reaching and rendering" his or her decision. Sage, 845 F.2d at 893-94, quoting Grossmuller v. Int'l. Union Auto. Aerospace & Agric. Implement Workers of Am., Local 813, 715 F.2d 853, 858 n. 5 (3rd Cir.1983).
Here, the Plaintiff knew what evidence the Plan relied upon. She had an opportunity to address the accuracy of the evidence. In fact, the Plan reviewed the additional evidence that she submitted long after the 60-day deadline had passed. The evidence shows that the Plan considered all the evidence the Plaintiff submitted, even when it was untimely.
The evidence submitted and the applicable law lead the court to the only conclusion that the Plan's denial of Plaintiff's claim was supported by a sufficient amount of evidence and was not arbitrary or capricious. Accordingly, IT IS ORDERED:
1. The Defendants' Motion for Summary Judgment on Plaintiff's First Amended Complaint is GRANTED.
2. Plaintiff's Counter-Motion for Summary Judgment on her First Amended Complaint is DENIED.
3. This civil action is DISMISSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608542/ | 773 F. Supp. 569 (1991)
SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
v.
WELLSHIRE SECURITIES, INC., Ventura Inc., Environmental Landfills, Inc., Robert Edwin Cohen, Carol Catherine Martino, Joseph Jenkins, Jr., Edward David Braverman, Alan Diamond, Paul V. Winters, Jr., Robert Beck and Richard Sands, Defendants.
No. 90 Civ. 1707(KTD).
United States District Court, S.D. New York.
June 26, 1991.
*570 *571 Edwin H. Nordlinger, Deputy Regional Administrator, S.E.C., New York City (Jeffrey Plotkin, Allen Meyer, of counsel), for S.E.C.
Ross & Hardies, New York City (William Pinzler, of counsel), for defendants Ventura, Inc., Robert Beck and Richard Sands.
OPINION
KEVIN THOMAS DUFFY, District Judge:
Plaintiff the Securities and Exchange Commission ("SEC") commenced this action on March 14, 1990 seeking to enjoin violations of federal securities laws as against the captioned defendants. On March 23-26 and 29, 1990, I conducted a preliminary injunction hearing. Among the defendants named were Richard Sands, Robert Beck, and Ventura ("the Ventura defendants"). Injunctive relief was denied as against Sands and Beck, but Ventura, the corporation under their control, was enjoined. Ventura later requested that I reconsider the preliminary injunction as against it. Such reconsideration was denied on September 12, 1990. Some familiarity with my prior decisions is presumed. On February 14, 1991, the SEC moved for a permanent injunction against Ventura, Beck, and Sands under §§ 17(a)(1) of the Securities Act of 1933 ("1933 Act"), 15 U.S.C. § 77q(a), 10(b) of the Securities Act of 1934 ("1934 Act"), 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5. A hearing regarding permanent injunctions was held on April 10, 1991. The following constitutes my findings of fact and conclusions of law.
STATEMENT OF FACTS
Ventura is a Delaware corporation, organized on December 28, 1987, with a principal place of business in Massachusetts. Formed as a blind pool,[1] Ventura was to seek potential business ventures. Consent Pretrial Order ("PTO") ¶ 55.
FELCO was a Massachusetts based, privately held company that primarily engaged *572 in the business of equipment leasing of physical fitness, recreational, office, physical rehabilitation, medical, dental, and security equipment. PTO ¶ 4. FELCO bought the equipment, received financing through banks, and leased it out to users. Eventually, FELCO became unable to obtain asset-based financing. When that occurred, FELCO altered its primary business from leasing equipment for its own portfolio, to lease origination and brokerage of leases which did not require bank financing.
In 1988, FELCO shareholders were approached with the suggestion that FELCO acquire International Bancorporation, Inc. ("IB"). IB was an insurance company that insured other carriers for casualties resulting from maritime losses. It was to have had the ability to insure FELCO's leases.
While FELCO was still a privately held concern, it issued 40 shares of common stock, out of a total pool of 120 shares, for the acquisition of all capital stock of IB. At the time Ventura was seeking to acquire IB, Howard Chiten, a purportedly experienced businessman in the insurance industry, appraised IB favorably to the Ventura defendants. Chiten's valuation of IB was accepted by FELCO's then outside accountants, Schwartz and Katz, in preparing the audited financial statements for the fiscal year ending August 1988. As a result of the acquisition, Chiten became a Ventura shareholder and a member of its Board.
In 1988, Michael Strauss and Edward DiResta approached FELCO shareholders and suggested that FELCO acquire General Consulting Services, Inc. ("GCS"), a development stage entertainment company. PTO ¶ 19. GCS was a corporation controlled by DiResta, who represented that GCS owned certain rights to television series and animated specials featuring Bing Crosby. As reported in an audited financial statement prepared by Schwartz and Katz, GCS's film inventory was valued at $1,150,000.
In late March 1989, Ventura acquired all of the issued and outstanding capital stock of FELCO and FELCO became a wholly owned subsidiary of Ventura. A voting trust comprised of the former FELCO shareholders (including the former owners of GCS and IB) received 1.8 million Ventura shares, which constituted a controlling interest in Ventura. On May 22, 1989, soon after IB became a subsidiary of Ventura, FELCO rescinded the IB transaction. The recision of IB was ratified by Ventura's Board of Directors on July 12, 1989. PTO ¶¶ 66-67.
Shortly after the acquisition of IB and GCS, Sands, FELCO's then Secretary and Director, received a telephone call from a Wellshire[2] broker asking for confirmation of certain information that Wellshire had apparently published in one of its market letters concerning Ventura and FELCO. Specifically, Theodore Feit, an individual who drafted Market Letters for Wellshire, drafted a Market Letter about Ventura ("Feit Draft"). PTO ¶ 74. Sands told the broker that the information was inaccurate and, at his request, a document dated March 10, 1989 and containing the Wellshire Securities masthead was telecopied to him. Sands and Beck, FELCO's then outside director, reviewed the document and Sands ultimately corrected the draft ("FELCO draft"). Sands then circulated the draft to at least Chiten, Beck and Cecil Mathis, Ventura's attorney at the time. The FELCO draft was sent back to Wellshire and incorporated into Wellshire's market letters. Any reference to IB was edited from the market letters before they were disseminated.
Beck served as FELCO's outside director from 1984 through 1989. As of January 1990, Beck was Chairman of the Board of Ventura as well as trustee and beneficiary of the voting trust, which represents a majority of the shares in Ventura. He has since resigned his Board post. In 1984, Sands was FELCO's Vice President, he became FELCO's Secretary and Director in *573 1986, and by 1989 was elevated to the position of President of FELCO. Sands resigned his positions at Ventura in the summer of 1990. Currently, Sands is unemployed.
DISCUSSION
Section 17(a) of the 1933 Act, 15 U.S.C. § 77q(a), section 10(b) of the 1934 Act, and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5, prohibit fraud in the offer or sale, or in connection with the purchase or sale, of securities. To establish liability under the above provisions, the SEC must show by a preponderance of the evidence that in the offer or sale, or in connection with the purchase or sale, of a security, an affirmative misrepresentation was made or there was a failure to disclose material non-public information when there was a duty to do so. Additionally, plaintiff must show scienter on the part of the defendants.
A corporation and its officials have no duty to correct misstatements in the press that are not attributable to them. However, a duty may arise where a defendant corporation "sufficiently entangled itself with the analysts' forecasts to render those predictions attributable to it." Elkind v. Liggett & Myers, Inc., 635 F.2d 156, 163 (2d Cir.1980). The SEC asserts that the Ventura defendants' activity and involvement with the preparation of the FELCO draft satisfied the level of entanglement necessary to attribute to them the statements made by Wellshire in its Market Letters. I disagree.
The Ventura defendants were contacted in order to review the Feit Draft, Wellshire's first draft of its market letter which contained reference to FELCO. Upon making certain corrections, the draft was recirculated to Beck and Sands for further revisions after which Wellshire produced the FELCO draft. The level of involvement of the Ventura defendants did not approach the cooperation necessary to indicate "entanglement." See Elkind v. Liggett & Myers, Inc., 635 F.2d at 163 (despite extensive involvement by the company meetings with analysts and company management at which company officials discussed operations, and reviewed and commented on reports which analysts used in order to prepare and correct errors and misunderstandings statements made by the public relations firm not held attributable to the company.)
The facts of the case at bar indicate less entanglement than in Elkind, where the court was not inclined to find entanglement because the company's general policy was not to involve itself with forecasting. No evidence has been presented as to any meetings between the Ventura defendants and Wellshire in preparing the drafts at bar or Wellshire's Market Letters.
Several weeks after the Feit Draft was returned to Wellshire by Sands, suspicions arose that the subsidiaries were not what their principals purported them to be. As a consequence, certain actions were taken by Beck, Sands and FELCO/Ventura which are not consistent with the SEC's allegations of violations of the securities laws. Suspicions regarding IB were precipitated by the Ventura defendants' doubts that Strauss, who had promoted the acquisition of IB, was not the person he purported to be. FELCO was further concerned about the lack of progress by IB's management in obtaining necessary reinsurance.[3]*574 Based upon these factors, Beck and Sands were appointed to a committee to review IB and value its assets. This committee was directed to provide the Board of Directors of Ventura with a status report as to IB.
Robert Cohen, Wellshire's principal, was kept fully informed by Beck of the Board's suspicions and of the committee's investigation. After the committee was unable to confirm that IB would obtain the necessary reinsurance and that as a consequence the company might not produce sufficient revenue for Ventura, the committee recommended that the IB transaction be rescinded. This information was forwarded to Cohen, who testified at the preliminary injunction hearing that he removed the references to IB based on information he received from Beck.
On May 22, 1989 when the committee recommended the recision of FELCO's acquisition of IB, it based its conclusion on the fact IB could not conduct the business as Chiten and Strauss had represented. It was not until July 1990, however, that the recision was completed and Chiten had resigned from the Board of Directors. Beck immediately informed Cohen of the recision and the resignation. Notably, the SEC has not produced any evidence to refute the prudent actions of the Board which advised Cohen of events at FELCO/Ventura. As a consequence of the recision of the IB transaction, Ventura was required, according to generally accepted accounting principals, to restate its financials as if the acquisition had never occurred. Accordingly, the revised financials eliminated any reference to IB or its assets as appraised. In essence, the SEC seeks to punish the Ventura defendants for actually taking concrete steps to verify the information in the draft.
Indeed, it was Feit, a third-party affiliated only with Wellshire, who was made responsible for drafting the document. That the Ventura defendants actively sought to confirm the information by consulting with knowledgeable individuals, passing along corrections to Wellshire, indicates no more than a willingness to be cooperative. If I were to find that to constitute "entanglement" in furtherance of a fraud, I fear as a consequence a pervasive chilling effect on cooperation and honesty, especially in light of the fact that personal reputations and livelihoods are often that which are at stake. Certainly the personal and professional reputations of both Beck and Sands, which have never before been in question, are at risk here.
As I stated during the hearing, the SEC has much less to lose by a denial of an injunction here than do either Beck or Sands, neither of whom financially benefited from the Wellshire scam. Inasmuch as the SEC has standing to request the relief, notwithstanding that a defendant reaps no actual benefit, that does not mean that an injunction is always warranted. Sands is currently unemployed, but the imposition of being enjoined would mar an otherwise clean work history. In addition, the encumbrance of a permanent injunction against Beck would most seriously affect his ability to earn a livelihood as he has been employed in similar positions with similar entities for his entire professional career. I would have no qualms about removing Beck's privileges in the securities area if his acts were so egregious as to amount to securities law violations. However, after evaluating Beck's testimony from the preliminary injunction hearing, and then later listening to the SEC plead its case before me in the permanent injunction hearing, there seems to be no compelling need to enjoin Beck. His actions, although perhaps careless, are not the kind of acts which threaten his present or future clients. The SEC has failed to convince me that either Beck or Sands are likely to repeat any of the acts alleged here.
Similarly, scienter must be shown on the part of the Ventura defendants. Scienter refers to a mental state embracing intent to deceive, manipulate or defraud. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S. Ct. 1375, 47 L. Ed. 2d 668 (1976), reh'g denied, 425 U.S. 986, 96 S. Ct. 2194, 48 L. Ed. 2d 811 (1976); see Aaron v. SEC, 446 *575 U.S. 680, 691, 100 S. Ct. 1945, 1952, 64 L. Ed. 2d 611 (1980) (SEC required to establish scienter in civil enforcement actions arising under § 10(b) of the 1934 Act, and Rule 10b-5 promulgated thereunder). In order to show scienter, the SEC must demonstrate either that the defendant had actual knowledge of material facts that were omitted or distorted or failed or refused to ascertain and thereafter accurately disclose such facts after having been put on notice as to their possible existence.
The SEC claims that Beck and Sands acted with knowledge of the falsity of statements in the FELCO draft concerning leasing obligations, and failed to act with adequate due diligence to elicit the true facts. While it is true that corporate insiders "have a special responsibility to be meticulous and precise in their representations to shareholders," the amount of diligence due is to ascertain that the information published was truthful and that such diligently obtained information was published in good faith. See SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 861-62 (2d Cir.1968), cert. denied, 394 U.S. 976, 89 S. Ct. 1454, 22 L. Ed. 2d 756 (1969). I believe that Beck and Sands in good faith endorsed the publishing of the information contained in the FELCO draft and were diligent in overseeing the removal of potentially misleading information with regard to the IB recision. Moreover, neither Beck nor Sands knew information at any time relevant to the disclosure, and the SEC has not persuasively refuted the fact that there was no more readily obtainable or meaningful information available to them at the relevant times.
The SEC builds its fraud theory as against Beck and Sands with the benefit of hindsight. Specifically, the SEC criticized the review of the FELCO draft because reliance was placed on Chiten and DiResta, the IB and GCS principals, as to the truth of statements contained within the draft regarding those two subsidiaries. The SEC claims that reliance was misplaced because these individuals were the same individuals who had recently sold IB and GCS to FELCO. Averring this to be a highly irregular business practice, the SEC faults Beck and Sands for blindly trusting and not further questioning the IB and GCS principals regarding the financial worth and forecasts of these companies. The SEC asserts that such practice amounts to a fraud because other more objective sources would have obtained more truthful information, and failure to either report or obtain that information was so reckless as to constitute deceit. See Lanza v. Drexel & Co., 479 F.2d 1277 (2d Cir.1973) (reckless disregard of the truth determined by whether defendants failed or refused to disclose facts after being put on notice of a possible failure to disclose, where facts could have been obtained and revealed without extraordinary effort.) In my estimation, although the actions by Beck and Sands, with the benefit of hindsight, appear ill-advised, they cannot be construed to have been taken with reckless abandon as the SEC argues nor can such actions be construed as showing scienter.
At the time that the FELCO draft was being produced, the only people with accurate information about IB and GCS were the very principals of those companies. The Ventura defendants had no other resource with which to obtain the information that the principals at IB and GCS (who were also the chief operating officers of these entities) were able to produce. Moreover, the principals involved with these subsidiaries supported their claims about the value of their companies by providing evidence of insurance treaties in which IB claimed to have an interest, business plans for future operations (which supported the synergistic nature of the anticipated operations between the subsidiaries and FELCO's leasing business), documentation, copyrights, contracts and agreements showing ownership of properties by GCS, and a published listing of stations that aired certain of the programs owned by GCS. Thus, the reliance by Beck and Sands on Chiten and DiResta was not imprudent, let alone so egregious as to amount to recklessness. See Estate of Detwiler v. Offenbecher, 728 F. Supp. 103, 137 (S.D.N.Y.1989) (in order to prove scienter, *576 the SEC must instead prove that forecasts were disseminated with knowledge of their falsity or that the "method of preparation was so egregious so as to render their dissemination reckless.")
To suggest that the information was readily available elsewhere amounts to no more than Monday morning quarterbacking. Indeed, "fraud by hindsight" does not constitute a violation of the federal securities laws. Levine v. NL Industries, Inc., 720 F. Supp. 305, 308 (S.D.N.Y.1989). Furthermore, finding that greater clairvoyance might have helped the defendants to perceive the future more accurately does not elevate that failure to a fraud. Denny v. Barber, 576 F.2d 465 (2d Cir.1978).
Finally, "[t]he critical question for a district court in deciding whether to issue a permanent injunction in view of past violations is whether there is a reasonable likelihood that the wrong will be repeated." SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082, 1100 (2d Cir.1972). The burden rests with the SEC to establish the likelihood of future violations. SEC v. Electronics Warehouse, Inc., 689 F. Supp. 53, 68 (D.Conn.1988), aff'd, 891 F.2d 457 (2d Cir.1989). The SEC claims that the existence of past violations provides an inference that there will be future violations. In this instance and under the facts proven, I must disagree. Even if I had found Beck's and Sands' activities to be violative of the securities laws, that does not assure injunctive relief shall be granted. See SEC v. Bausch & Lomb, Inc., 565 F.2d 8, 18 (2d Cir.1977) ("[a]lthough a single act in certain circumstances may warrant equitable relief, there is no per se rule requiring the issuance of an injunction upon the showing of a past violation.")
An inference may be drawn as to the likelihood of repeating the wrong in the totality of the circumstances. Id. Because the SEC's sole theory of liability rests with and is predicated on the FELCO draft, I find it difficult to determine that this isolated occurrence is likely to recur. The record before me is devoid of any evidence tending to show that the Ventura defendants asked Wellshire to draft or distribute a summary of FELCO's business. The drafting of the Wellshire Market Letter, containing the FELCO draft was executed by and the brain child of Wellshire. Indeed, it was the Ventura defendants who hastened to communicate to Wellshire the adverse facts regarding the FELCO insurance and entertainment subsidiaries when those facts came to be known to them. This avoided any issuing of financial statements that could have perpetuated mistaken information. Far from demonstrating a propensity towards reckless disregard of the truth, the Ventura defendants took prudent, prompt, and business-like steps to avoid disclosure of misleading information. This conduct is not consistent with a propensity for reckless disregard of the truth and does not constitute acts tending to show a likelihood toward violating securities laws in the future. Neither are Beck and Sands affiliated with Ventura any longer. I am also swayed by the fact that both Beck and Sands have never before been targeted for or embroiled in litigation such as this and their past records are beyond reproach. That they would suffer undue stigma as a result of being enjoined for securities law violations is a hardship too onerous for them to have to bear under the circumstances presented by the SEC at bar.[4]
After careful consideration of the submissions and proceeding minutes, I find that there is no evidence compelling a finding of bad faith on the part of the Ventura defendants. Beck and Sands seemingly acted in good faith on advice of the principals of FELCO's subsidiaries, in consultation with Ventura's auditors and attorney. They are no longer officers or directors of Ventura. The conduct by the Ventura defendants *577 constituted no more than a single, isolated occurrence involving no intentional violation. Thus, there is little likelihood of recurrence at some future time.
For the foregoing reasons, the SEC's application for a permanent injunction as against Beck and Sands is denied and the injunction in place against Ventura is dissolved. This matter would be closed out except for the failure of the SEC to seek permanent injunctions against the other defendants.
SO ORDERED.
NOTES
[1] A blind pool is formed when stocks are offered in a hollow company which company's principals have yet to determine where and in what business or businesses they will either invest or acquire. Investors are induced into buying into a blind pool solely on the strength of the principal's knowledge, investing expertise, and assurances of financial success.
[2] A registered stock broker-dealer and a member of the National Association of Securities Dealers. Wellshire in this action already has been enjoined from violating federal securities laws.
[3] The SEC declined to take Strauss's deposition as the person who introduced FELCO to Ventura, Wellshire, Chiten, and DiResta. At the hearing, the SEC claimed that Strauss's testimony was not credit-worthy because he had been convicted of, and enjoined from repeating, certain securities law violations. As I pointed out at the hearing, it is ridiculous for the SEC to discredit the testimony of one convicted of securities law violations in light of the fact that often cases are built by the SEC on the same type of testimony. Although the SEC was likely not acting with indifference when it failed to take Strauss's deposition, I cannot in good conscience enjoin the Ventura defendants from earning their livelihood on the submissions and record before me. Additionally, the SEC declined to take the deposition of the accountants at Sullivan and Bille, retained by Ventura after it merged with FELCO and became a public company. It was Sullivan and Bille that advised FELCO's accountants, Schwartz and Katz, with regard to the IB recision and GCS's severe asset difficulties. It is important for the Commission to recognize that allegations of grievous wrongdoing, no matter how often repeated, are not a substitute for proof.
[4] [I]n deciding whether to grant injunctive relief, a district court is called upon to assess all those considerations of fairness that have been the traditional concern of equity courts.... Accordingly, the adverse effect of an injunction upon defendants is a factor to be considered by the district court in exercising its discretion.
SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082, 1102 (2d Cir.1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608577/ | 259 Wis. 2d 654 (2002)
2003 WI App 15
656 N.W.2d 475
Neil S. HUBBARD, Plaintiff-Respondent,[]
v.
Shaun MESSER, d/b/a Degree Systems, Defendant-Appellant.
No. 02-1701-FT.
Court of Appeals of Wisconsin.
Submitted on briefs October 18, 2002.
Decided December 3, 2002.
*655 On behalf of the defendant-appellant, the cause was submitted on the briefs of Stephen L. Weld, Christoher R. Bloom, and Weld, Riley, Prenn & Ricci, S.C. of Eau Claire.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Erwin H. Steiner and Steiner & Wright, LLC of Eau Claire.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶ 1. HOOVER, P.J.
Shaun Messer appeals a judgment ordering him to pay a penalty of 70% of the wages he previously owed, but paid, to former employee *656 Neil Hubbard, plus Hubbard's attorney fees.[1] The trial court ruled that the purpose of WIS. STAT. § 109.11 was to penalize employers who failed to timely pay their employees, regardless whether those wages were paid prior to court action. We conclude that the statute imposes a penalty only when, at the time the collection action is commenced in the circuit court, the wages are due to the employee and remain unpaid. Accordingly, we reverse the judgment and remand the case for further proceedings.
Background
¶ 2. The facts are undisputed. Hubbard filed a complaint with the Department of Workforce Development (DWD) for Messer's failure to pay wages. On October 28, 1999, the DWD contacted Messer regarding the wage claim. The DWD concluded that Messer owed Hubbard $4,860 in back pay. On December 8, the DWD revised the amount owed, calculating that Messer owed $2,312.98 and giving him fifteen days to make the payment. On January 7, 2000, Messer had not paid this amount, and the DWD referred the case to the district attorney pursuant to WIS. STAT. § 109.11(1)(c).[2]
¶ 3. On February 21, the district attorney sent a letter to Messer regarding the $2,312.98. The district attorney indicated that Hubbard wanted the payment *657 within ten days or Hubbard would enforce his rights through small claims court. On March 15, Hubbard's private counsel sent a letter to Messer indicating that if payment was not received within two days he would commence suit. On April 10, Messer issued a check to Hubbard for $2,312.98 less required withholding.
¶ 4. On April 27, the DWD issued another letter to Messer regarding a different claim by Hubbard. The DWD determined that Messer owed Hubbard an additional $1,975.28. On June 23, the DWD revised the amount to $1,560.93. On July 31, Messer issued a check for $1,560.93 less withholding. Hubbard cashed both checks.
¶ 5. On September 14, 2001, Hubbard filed an action seeking penalty wages of 100% under WIS. STAT. § 109.11(2)(b), or a total of $3,873.91. Messer filed a motion for summary judgment because all the wages had been paid by the time the action was commenced. Hubbard contended the statute allows penalties for wages not paid when due. The trial court agreed with Hubbard and granted him summary judgment, although the court only awarded 70% damages, or $2,711.74, plus attorney fees of $1,998. Messer appeals.
Discussion
[1, 2]
¶ 6. The sole issue is one of statutory construction, a question of law that we review de novo. Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315 (Ct. App. 1997). If the terms of the statute are unambiguous, we apply them as written without any further inquiry. In re Charles R.P., 223 Wis. 2d 768, 771, 590 N.W.2d 21 (Ct. App. 1998). Here, we must *658 determine the meaning of "wages due and unpaid" in the context of WIS. STAT. § 109.11(2)(b),[3] which states:
In a wage claim action that is commenced after the department has completed its investigation under s. 109.09 (1) and its attempts to settle and compromise the wage claim under sub. (1), a circuit court may order the employer to pay to the employee, in addition to the amount of wages due and unpaid to an employee and in addition to or in lieu of the criminal penalties specified in sub. (3), increased wages of not more than 100% of the amount of those wages due and unpaid. (Emphasis added.)
¶ 7. Messer contends the phrase means wages due to the employee and not yet paid at the time an enforcement or collection action is initiated in the circuit court. Hubbard contends the phrase "refers to the failure to pay wages within the 31 day deadline imposed by [WIS. STAT. §] 109.03(1). . . ." Section 109.03(1) generally requires that employers shall pay wages "as often as monthly."[4] Each payment must comprise "all wages earned by [the] employee to a day not more than 31 days prior to the date of such payment." In other words, on any day when an employee earns a wage payment, the employer must pay for that day's work within thirty-one days. If the employer fails to do so, Hubbard argues that wages become "due and unpaid" as of the thirty-second day. However, we agree with Messer's interpretation.
*659 ¶ 8. WISCONSIN STAT. ch. 109 concerns employees' rights to receive their full wages and receive their wages when due. See Jacobson v. American Tool Cos., 222 Wis. 2d 384, 400-01, 588 N.W.2d 67 (Ct. App. 1998); German v. DOT, 2000 WI 62, ¶ 29, 235 Wis. 2d 576, 612 N.W.2d 50. There are two routes through which employees may resolve wage claimsadministrative review by the DWD or an action in the circuit court. See WIS. STAT. §§ 109.09(1) and 109.03(5).
¶ 9. WISCONSIN STAT. ch. 109 does not require employees to go through the DWD first, WIS. STAT. § 109.03(5),[5] although the administrative remedy is encouraged through the penalty structure. If an action to collect a wage claim is commenced before the DWD has the opportunity to try to compromise and settle it, the circuit court can award as a penalty against the employer and in addition to the outstanding wages no more than 50% of the outstanding wages. WIS. STAT. § 109.11(2)(a). However, if the employee waits until the DWD has attempted to resolve the matter, the court may award up to 100% of the unpaid wages as a penalty. WIS. STAT. § 109.11(2)(b).
[3]
¶ 10. WISCONSIN STAT. § 109.11(2) allows penalties as a percentage of wages "due and unpaid." This phrase is not defined in ch. 109, and neither § 109.11(2)(a) nor (b) specifies any corresponding time frame.[6] Section 109.11(3), however, explains the criminal penalties an *660 employer may face as well as delineates what constitutes a separate offense. In subsection (3), a violation occurs when an employer fails or refuses to pay an employee wages due at the time. We presume the legislature chooses its words carefully and precisely to express its meaning. Ball v. District No. 4, Area Bd., 117 Wis. 2d 529, 539, 345 N.W.2d 389 (1984). If the legislature intended for civil penalties to apply to wages unpaid on their due date, this "at the time" language would have been a prudent addition to the paragraphs of § 109.11(2).
[4]
¶ 11. Even without examining the criminal penalty section of WIS. STAT. § 109.11(3), we are satisfied that under the plain language of § 109.11(2)(b), penalties may only be applied when wages are due and unpaid at the time an enforcement action is commenced in court. Section 109.11(2)(b) unambiguously indicates that for an employee to file a wage claim action, the employee must, at the time suit is commenced, allege entitlement to wages the employer has not yet paid. That is, a claim for penalty wages does not exist independently of a claim for unpaid wages. The court first awards the unpaid wages to which the employee is entitled. Then, the court can award an additional percentage up to 100% of the wages that are due and unpaid.
¶ 12. Hubbard suggests that if we interpret WIS. STAT. § 109.11(2)(b) to allow penalties to apply only if wages are due when suit is filed, then an employer could fail to pay wages when they are due, prolong the nonpayment, and avoid penalties as long as the employer *661 paid before trial. We are unpersuaded. We first note that § 109.11(2)(b) allows penalties to be assessed against the wages due on the day the suit is commenced, not the day of trial. It is evident, however, that the statute's plain language permits the possibility that an employer may with impunity wrongfully delay paying earned wages. Nevertheless, because this court cannot rewrite unambiguous legislation, this concern must be addressed to the legislature.[7]See State v. Hall, 207 Wis. 2d 54, 82, 557 N.W.2d 778 (1997) (where the meaning of a statute is plain, words cannot be read into it or out of it for the purpose of saving one or another possible alternative).
¶ 13. In any event, if we were to accept Hubbard's interpretation, an employer could pay the wages due and consider the matter settled, only to be sued months later by an employee who never previously mentioned a penalty. This scenario is inconsistent with our preference for the finality of settlements. See Eau Claire County v. Employers Ins., 146 Wis. 2d 101, 111, 430 N.W.2d 579 (Ct. App. 1988). Moreover, in cases where wages are withheld, there may legitimate disputes over hours worked, wage rate, or other issues. The DWD's involvement is encouraged because the legislature trusts the DWD will be able to resolve most claims or *662 the employer and employee will be able to settle their dispute without further court action or penalties.[8]
¶ 14. Hubbard also suggests that if we agree with Messer's interpretation of WIS. STAT. § 109.11(2)(b), we undermine the purpose of WIS. STAT. ch. 109ensuring prompt payment of wages. Under our interpretation, once employers receive confirmation that they do owe wagesindeed, some of them may have correctly withheld paymentemployers will want to pay their employees promptly, before the employee can commence suit. Also, our interpretation does not necessarily create a race to the courthouse. Both civil penalty statutes allow penalties not more than a certain percentage. See WIS. STAT. § 109.11(2)(b). The trial court thus has the discretion to not award a penalty. Thus, an employee who takes a DWD decision straight to court without allowing the employer time to even "write the check" will not necessarily be entitled to collect penalty wages when filing an enforcement action.
¶ 15. In this case, we take particular note of the timeline. In Hubbard's first wage claim, the DWD issued its initial decision on October 28, 1999, and gave Messer fifteen days to pay. On November 11, Hubbard did not seek to enforce the DWD's order. On December 8, the DWD issued its revised order, again giving Messer fifteen days to pay the wages due. On December 23, Hubbard did not file suit. On February 21, 2000, the district attorney asked Messer to pay within ten days; otherwise the district attorney had been advised that Hubbard planned to seek a remedy in small claims *663 court. On March 2, Hubbard did not file a small claims case. Instead, he retained a private attorney who sent a letter to Messer on March 15 seeking payment by March 17, threatening suit. Hubbard did not file. On April 10, Messer wrote a check to Hubbard.
¶ 16. In the second wage claim, the DWD issued its revised opinion on June 23, again with a fifteen-day frame for payment. On July 8, no lawsuit was filed. On July 31, a check was issued to Hubbard. Both checks were cashed. Fourteen months later in September 2001 Hubbard filed for penalty wages only.
[5]
¶ 17. Hubbard had ample opportunity to enforce the DWD's rulings and collect penalties. For whatever reason, he chose not to seek the remedies available to him. Once Messer paid the back wages, Hubbard no longer had a wage claim to enforce, and thus no access to court to collect penalties. Hubbard has also failed to show, with legitimate support in WIS. STAT. ch. 109, that the phrase "wages due and unpaid" means anything other than the plain, ordinary meaning we have articulated. On remand, the circuit court will enter summary judgment for Messer, dismissing Hubbard's claims with prejudice.
By the Court.Judgment reversed and cause remanded with directions.
NOTES
[] Petition to review granted 3-13-03.
[1] This is an expedited appeal under WIS. STAT. RULE 809.17. All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
[2] WISCONSIN STAT. § 109.11(1)(c) provides:
If an employer does not agree to compromise and settle a wage claim under this subsection, the department may refer the wage claim to a district attorney under s. 109.09 (1) ... for commencement of an action in circuit court to collect the amount of wages due and unpaid plus increased wages as specified in sub. (2) (b).
[3] Both parties agree that the DWD had completed its investigation, making WIS. STAT. § 109.11(2)(b) the applicable statute, not § 109.11(2)(a). Section 109.11(2)(a) applies only when the DWD has not completed an investigation.
[4] Paragraphs (a) through (d) of WIS. STAT. § 109.03(1) provide exceptions to this requirement, none of which applies here.
[5] WISCONSIN STAT. § 109.03(5) provides in part: "An employee may bring an action against an employer under this subsection without first filing a wage claim with the department under s. 109.09 (1)."
[6] Although the two paragraphs apply at different times and have different maximum penalty percentages, the operative language is the same in both, and our interpretation of WIS. STAT. § 109.11(2)(b) also applies to § 109.11(2)(a).
[7] If the legislature intended the penalty provisions to apply to wages due and unpaid after thirty-one days, it could have authorized the DWD to impose penalty wages for nonpayment. There is no statutory provision that allows the DWD to assess penalty wages in a case like this. The DWD may only order penalty wages if, after the DWD has ordered an audit of the employer's records, another wage claim is filed against the employer for the same error that caused the DWD to order the audit. See WIS. STAT. § 109.11(1)(b). No statute applicable in this case allows the DWD to assess penalty wages.
[8] WISCONSIN STAT. § 109.09(1) instructs the DWD to "investigate and attempt equitably to adjust" the claim between the employer and employee. WISCONSIN STAT. § 109.11(1) advises that the DWD "may compromise and settle that wage claim" for a sum agreed to by the DWD, the employee and the employer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608714/ | 973 F. Supp. 910 (1997)
Richard ZEID and Siom Misrahi, On Behalf of Themselves and All Others Similarly Situated, Plaintiffs,
v.
John A. KIMBERLEY, Frank M. Richardson, Mark A. Rowlinson, and Firefox Communications, Inc., Defendants.
Civil No. 96-20136 SW.
United States District Court, N.D. California.
May 6, 1997.
*911 *912 William S. Lerach, Milberg Weiss Bershad Hynes & Lerach LLP, San Diego, CA, Richard Bemporad, Lowey Dannenberg Bemporad & Selinger, P.C., White Plains, NY, for Richard Zeid.
William S. Lerach, Milberg Weiss Bershad Hynes & Lerach LLP, San Diego, CA, for Siom Misrahi.
Shirli Fabbri Weiss, Gray cary Ware & Freidenrich, San Diego, CA, for John A. Kimberley, Frank M. Richardson, Mark A. Rowlinson, Firefox Comm.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND
SPENCER WILLIAMS, District Judge.
Plaintiffs Richard Zeid and Siom Misrahi, on behalf of themselves and others similarly situated, initiated this class action against John A. Kimberley, Frank M. Richardson, Mark A. Rowlinson and Firefox Communications, Inc. alleging violations of sections 10(b) and 20(a) of the Securities Exchange Act of 1934 ("Securities Act"), 15 U.S.C. § 78j(b) and § 78t(a), and SEC Rule 10(b)(5). Defendants responded by filing a motion to dismiss which this Court granted, with leave to amend, on June 6, 1996.
Plaintiffs then filed a First Amended Complaint ("FAC"). Now, Defendants move to dismiss the FAC pursuant to section 21D(b)(3)(A) of the Securities Act, 15 U.S.C. § 78u-4(b)(3)(A), and Fed. R. Civ. P. 9(b) and 12(b)(6), asserting that Plaintiffs have failed to plead sufficient facts to support their claims for relief. After careful consideration of the materials submitted and arguments of counsel, the Court GRANTS Defendants' motion to dismiss Plaintiffs' First Amended Complaint without leave to amend.
I. BACKGROUND
Defendant Firefox Communications, Inc. (Firefox), an English Corporation, develops, markets and supports software that allows users of local area networks to communicate with users on other networks, including the Internet. Defendants Kimberley, Richardson, and Rowlinson are officers and directors of Firefox. Plaintiffs Richard Zeid and Siom Misrahi are individual investors who purchased Firefox stock between July 20, 1995 and January 2, 1996.
In 1994, Firefox decided to significantly expand its sales and marketing efforts in the United States and United Kingdom. Firefox *913 also decided to conduct a public offering to generate the necessary capital to accomplish the planned expansion. On May 15, 1995, Firefox went public, selling 2.3 million shares at $18 a share. That day, Firefox's stock rose to $29½. The stock reached $30 per share by late May but then declined to $21¾ per share by July 19. On July 20, Firefox released its results for the quarter ended June 30, 1995. Despite positive results, Firefox's stock continued to slide, falling to $17 per share by August 3. From September 1995 to January 2, 1996, Firefox's stock fluctuated between $17½ to $28 5/8 per share. On January 3, 1996, when Firefox announced that it expected a loss for its fourth quarter its stock plummeted from $22 5/8 to 10¼. On January 17, 1996, Firefox and FTP Software Inc. announced plans of a merger that the parties completed in July of 1996.
In February 1996, Plaintiffs initiated this action pursuant to Fed. R. Civ. P. 23(a) and (b)(3), alleging that during the period of July 20, 1995 to January 2, 1996 (the "Class Period"), Defendants conducted a fraudulent scheme and course of business to inflate the value of Firefox's stock. Specifically, the FAC provides that Defendants, through analysts' reports, press releases and financial statements, misrepresented to the investment community that it was enjoying strong demand for its products and a successful expansion of its sales and marketing program in the U.S. Further, Plaintiffs claim that Defendants prematurely recognized revenue and recorded "phony" sales in order to distort Firefox's profits. According to the FAC, Defendants engaged in this fraudulent activity to avoid a potential lawsuit and to assist in arranging and finalizing the sale of Firefox for over $150 million, which would have netted corporate insiders over $50 million.
II. LEGAL STANDARDS
A. Rule 12(b)(6) Standard
A complaint should only be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure where it appears beyond doubt that no set of facts could support plaintiff's claim for relief. Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987), cert. denied, 484 U.S. 944, 108 S. Ct. 330, 98 L. Ed. 2d 358 (1987). A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). In reviewing a motion under Rule 12(b)(6), all allegations of material fact are taken as true and must be construed in the light most favorable to the non-moving party. Durning, 815 F.2d at 1267. However, "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." In re VeriFone Sec. Litig., 11 F.3d 865, 868 (9th Cir.1993).
B. Section 10(b) Claims
Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j, makes it unlawful to use in connection with "the mails or facilities of interstate commerce" any "manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe...." Rule 10b-5 promulgated under section 10(b) provides as follows:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange,
(a) to employ any device, scheme, or artifice to defraud,
(b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of circumstances under which they were made, not misleading, or
(c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.
17 C.F.R. § 240.10b-5 (1993).
The elements of a § 10(b) claim are: 1) a false statement or an omission that rendered another statement misleading; 2) *914 materiality; 3) scienter; 4) loss causation; and 5) damages. In re Apple Computer Sec. Litig., 886 F.2d 1109, 1113 (9th Cir.1989), cert. denied, 496 U.S. 943, 110 S. Ct. 3229, 110 L. Ed. 2d 676 (1990).
C. Pleading Standards
Complaints alleging fraud must meet the heightened pleading standards of Fed. R. Civ. P. 9(b), which requires that "in all averments of fraud or mistake the circumstances constituting fraud or mistake shall be stated with particularity." To satisfy this particularity requirement, a complaint must "state precisely the time, place, and the nature of the misleading statements, misrepresentations, and specific acts of fraud." Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir.1994), cert. denied, ___ U.S. ___, 116 S. Ct. 58, 133 L. Ed. 2d 21 (1995).
Recently, Congress addressed Rule 9(b) and the pleading standards for fraud as applied in the context of securities class action lawsuits. As part of an effort to discourage the filing of abusive lawsuits, Congress established uniform and stringent pleading requirements for private actions filed under the federal securities laws. S.Rep. No. 98, 104th Cong., 1st Sess. 15 (1995) U.S.Code Cong. & Admin.News 1995 pp. 674, 694; H.R. Conf. Rep. No. 369, 104th Cong., 1st Sess. 41 (1995). The Reform Act requires that plaintiffs asserting claims for securities fraud specify each false or misleading statement and why each statement is false or misleading. 15 U.S.C. § 78u-4(b)(1). If an allegation regarding a statement or omission is made on information and belief, the complaint must state with particularity the facts on which the belief is formed. Id. Additionally, with respect to each act or omission, plaintiffs must set forth in the complaint particular facts that give rise to a strong inference that defendant acted with the required state of mind. 15 U.S.C. § 78u-4(b)(2). A complaint that fails to comply with any of these requirements must be dismissed. 15 U.S.C. § 78u-4 (b)(3)(A).
III. DISCUSSION
Defendants contend that the claims asserted in the FAC fail because they consist of mere conclusory allegations which lack the specificity required by the Reform Act. Defendants also argue that Plaintiffs rely heavily on allegations based on information and belief but fail to state with particularity the factual allegations that form the basis for their beliefs.
In response, Plaintiffs contend that the Reform Act and its pleading requirements do not apply to their claims. They also assert that even if the Reform Act applies, they have sufficiently alleged in the FAC each false or misleading statement, why each statement was false or misleading, and facts giving rise to a strong inference that Defendants acted with the required state of mind.
A. Preliminary Matters
Before assessing the sufficiency of the allegations in the FAC, the Court must examine three preliminary matters: (1) whether the Reform Act applies to claims based on preact conduct that are filed after the Reform Act's effective date; (2) whether the requirements of the Reform Act for allegations made on information and belief apply to Plaintiffs' claims; and (3) how to interpret the Reform Act's pleading standard for scienter.
1.) Application of the Reform Act
Plaintiffs argue that the Reform Act does not apply retroactively to conduct occurring before its effective date, December 22, 1995, and thus, it should not apply to their case since most of the allegedly improper conduct committed by Defendants occurred before December 22, 1995. However, Plaintiffs misinterpret the language of the Reform Act, which provides in pertinent part:
The amendments made by this title shall not affect or apply to actions under title I of the Securities Exchange Act of 1934 or title I of the Securities Act of 1933, commenced before and pending on the date of enactment of this act.
Reform Act § 108, Pub.L. No. 104-67, 109 Stat. at 758 (1995).
This language means exactly what it says. The amendments contained in the Reform Act do not apply retroactively to pending actions. Rather, they apply prospectively, to *915 all actions brought under title I of the Securities Exchange Act of 1934 or title I of the Securities Act of 1933, that are commenced after December 22, 1995. Since Plaintiffs filed their action on February 23, 1996, two months after the effective date, the Reform Act applies to their suit.
2.) Allegations Made on Information and Belief
Defendants assert that the FAC contains numerous allegations that are implicitly based on information and belief because, due to the nature of the allegations, they cannot be based on either Plaintiffs' or their counsels' personal knowledge. Further, Defendants contend that the FAC does not comply with the Reform Act because it fails to state with particularity all the facts on which these "beliefs" are formed.
Prior to the Reform Act, courts permitted plaintiffs asserting fraud to make allegations based on information and belief as to matters peculiarly within the defendant's knowledge. Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir.1993). Further, since plaintiffs could not be expected to have knowledge of such matters, courts relaxed the pleading requirements of Rule 9(b) when assessing the sufficiency of these allegations. Id. However, to warrant application of a relaxed standard, plaintiffs were required to state the facts that formed the basis for their allegations made on information and belief. Id.
As part of the pleading requirements established by the Reform Act, Congress codified the rule for pleading on information and belief. The Reform Act provides that "if an allegation regarding the statement is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed." 15 U.S.C. § 78u-4(b)(1). Thus, under the Reform Act, plaintiffs may continue to make allegations based on information and belief so long as the complaint at issue sets forth the facts that form the basis of the allegations.
Here, the FAC does not state that any allegations are based on "information and belief" but rather, it asserts that Plaintiffs obtained the facts through "investigation of counsel." FAC ¶ 123. In other words, even though some of the facts appear to be peculiarly within Defendants' knowledge, Plaintiffs contend that they have, through investigation, acquired sufficient facts to state a claim for fraud without relying on allegations made on information and belief.
As such, Plaintiffs need not state with particularity all facts on which their beliefs are formed. However, since Plaintiffs' allegations are not based on information and belief, they must meet the strict, rather than relaxed, pleading requirements of Rule 9(b) and the Reform Act. Accordingly, Plaintiffs cannot rely on conclusory allegations or tenuous inferences but instead, must allege with particularity: (1) each statement, (2) why each statement is false, and (3) as to each statement, facts giving rise to a strong inference that Defendants acted with scienter.
3.) Pleading Scienter[1]
Scienter is a necessary element of every 10-b(5) claim. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 96 S. Ct. 1375, 1380, 47 L. Ed. 2d 668 (1976). The Supreme Court has defined scienter as "a mental state embracing intent to deceive, manipulate or defraud." Id. at 194 n. 12, 96 S.Ct. at 1381 n. 12.
Prior to enactment of the Reform Act, the Ninth Circuit permitted plaintiffs to aver scienter generally. In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1545-47 (9th Cir.1994). Congress then amended the standard for pleading scienter in all circuits by including a provision in the Reform Act which states: "the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. § 78u-4(b)(2). This "strong inference" language was modeled upon the pleading standard of the Second Circuit. H.R. Conf. Rep. No. 369, 104th Cong., 1st Sess. 41 (1995).
*916 In the Second Circuit, to adequately plead scienter, the facts alleged in a complaint must "give rise to a `strong inference' of fraudulent intent." O'Brien v. National Property Analysts Partners, 936 F.2d 674, 676 (2d Cir.1991). In applying this standard, the Second Circuit recognizes two distinct ways in which a plaintiff may plead scienter without having direct knowledge of the defendant's intent. In re Time Warner Inc. Securities Litigation, 9 F.3d 259, 268-69 (2d Cir.1993). First, the plaintiff can allege facts "establishing a motive to commit fraud and an opportunity to do so." Id. at 269. Second, the plaintiff can allege "facts constituting circumstantial evidence of either reckless or conscious behavior." Id.
Even though the Reform Act makes use of the "strong inference" language, the statute's legislative history creates some uncertainty as to whether Congress intended to adopt all, some or none of the Second Circuit case law interpreting the standard. The Senate Committee on Banking, Housing and Urban Affairs stated in its report on the initial bill, S. 240:
The Committee does not adopt a new and untested pleading standard that would generate additional litigation. Instead, the Committee chose a uniform standard modeled upon the pleading standard of the Second Circuit. Regarded as the most stringent pleading standard, the Second Circuit requires that the plaintiff plead facts giving rise to a "strong inference" of defendant's fraudulent intent. The Committee does not intend to codify the Second Circuit's caselaw interpreting this pleading standard, although courts may find this body of law instructive.
S.Rep. No. 98, 104th Cong., 1st Sess. 15 (1995) U.S.Code Cong. & Admin.News 1995 pp. 674, 694.
While the bill was in the Senate, Senator Arlen Specter tried to clarify the standard by proposing to codify the two-part test used by the Second Circuit. The Senate initially adopted Specter's proposal, but the Conference Committee dropped the amendment from its version of the bill. In its report, the Conference Committee offered a cursory explanation for not codifying the Second Circuit's case law:
Because the Conference Committee intends to strengthen existing pleading requirements, it does not intend to codify the Second Circuit's case law interpreting this pleading standard.
H.R. Conf. Rep. No. 369, 104th Cong., 1st Sess. 41 (1995). In a footnote to the Conference Report, the Committee also stated that language relating to motive, opportunity, or recklessness was intentionally excluded from Reform Act. Id. at n. 23.
The President then vetoed the bill, partially out of concern that Congress intended to raise the pleading standard beyond the Second Circuit standard. H.R.Doc. No. 150, 104th Cong., 1st Sess. 240 (1995). In Congressional hearings following the President's veto, Senator Christopher Dodd, a co-sponsor of the legislation and a member of the Conference Committee, asserted that the President's concern regarding the standard for scienter was unwarranted. 141 Cong. Rec. § 19067-68 (1995). He explained that the Committee eliminated the Specter amendment language because it was "an incomplete and inaccurate codification" of Second Circuit case law. Id. at § 19067. Further, Dodd stated, "[a]s I read the securities litigation conference report, the pleading standard is faithful to the Second Circuit's test." Id. Congress subsequently overrode the President's veto but did not clarify the "strong inference" standard or whether the standard was intended to be higher than the one used by the Second Circuit.
The Reform Act's equivocal legislative history has predictably spawned inconsistent interpretations of the pleading standard for scienter. In fact, two trial courts in this circuit, In re Silicon Graphics, Inc. Sec. Litig., 1996 WL 664639 (N.D.Cal.1996) and Marksman Partners, L.P. v. Chantal Pharmaceutical, 927 F. Supp. 1297 (C.D.Cal.1996), have analyzed the issue and reached different results.
In Silicon Graphics, the court interpreted the Reform Act to eliminate the "motive and opportunity" test and recklessness as a basis for liability. In so doing, the court held that to plead scienter in securities fraud cases, *917 plaintiffs must, as to each allegedly misleading statement, allege specific facts that constitute circumstantial evidence of conscious behavior. 1996 WL 664639 at *6.
In contrast, the Chantal court was unpersuaded by defendants' arguments that Congress eliminated recklessness as a basis for liability and the "motive and opportunity" test. 927 F.Supp. at 1309 n. 9, 1310-12. Accordingly, the court applied the Second Circuit's two-prong inquiry allowing allegations of either "motive and an opportunity" or "conscious behavior or recklessness." Id. at 1310.
Despite the divergent conclusions in Silicon Graphics and Chantal, both cases find support in the statute's legislative history. Silicon Graphics makes use of the language of the Conference Committee Report, while Chantal relies on the report from the Senate Committee on Banking, Housing and Urban Affairs. The fact that these two courts, in well-reasoned opinions, provide different assessments of Congress's intent illustrates the inherent ambiguity of the legislative record. Further, this Court's own review of the Reform Act's legislative course confirms that Congress did not provide any clear answers for interpreting the "strong inference" standard.
Therefore, the answers must be deduced from the text of the statute itself. The fact that Congress modeled the standard after the Second Circuit's, making use of the "strong inference" language, demonstrates some approval of the Second Circuit's case law interpreting the pleading standard for scienter. Additionally, the failure to provide an alternative interpretation militates against completely dispensing with the Second Circuit's well-developed two-part inquiry.
However, because Congress chose not to codify the case law, courts have significant leeway when interpreting the "strong inference" standard. Thus, while the Second Circuit case law provides guidance for interpreting the "strong inference" standard, courts can and should modify, or in some instances, reject, any case law that is inconsistent with the letter or spirit of the Reform Act. Accordingly, application of the Second Circuit's two-part inquiry is appropriate so long as any inconsistencies with the Reform Act are eliminated.
This Court has discovered two such inconsistencies. In applying the "strong inference" standard, the Second Circuit has stated that scienter need not be pled with "great specificity" and that plaintiffs need only provide a "minimal factual basis for their conclusory allegations of scienter." Connecticut Nat. Bank v. Fluor Corp., 808 F.2d 957 (2d Cir.1987). These statements were made in light of the language of Rule 9(b) which provides that "[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally."
In contrast, the Reform Act states that plaintiffs must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. § 78u-4(b)(2) (emphasis added). Further, when Congress adopted the uniform pleading standard it sought to strengthen the requirements of Rule 9(b), which, at the time, was not preventing "abuse of the securities laws by private litigants." H.R. Conf. Rep. No. 369, 104th Cong., 1st Sess. 41 (1995). Thus, it is clear that under the Reform Act, allegations of scienter cannot be averred generally, but rather, they must be made "with particularity" and a "minimal factual basis" will not suffice.
Additionally, the Second Circuit permits plaintiffs to allege facts of either recklessness or conscious behavior for all allegedly misleading statements, whether they are forward-looking or not. In re Time Warner, 9 F.3d at 268-69. Under the Reform Act, circumstantial evidence of recklessness is not sufficient to impose liability for allegations of false or misleading "forwarding-looking statements." Actual knowledge of falsity is required to impose liability for such statements. 15 U.S.C. § 77z-2.[2] Therefore, when a complaint alleges false forward-looking statements, it must set forth specific facts demonstrating that, as to each of these *918 statements, the defendant consciously misled the public.
In sum, to adequately plead scienter under the Reform Act, for each false or misleading statement that is not forward-looking, a plaintiff must allege: (1) specific facts demonstrating that the defendant had a motive and an opportunity to commit fraud; or (2) specific facts constituting circumstantial evidence of conscious behavior or recklessness. As for forwarding-looking statements, a plaintiff must allege specific facts demonstrating either: (1) a motive and an opportunity to defraud; or (2) circumstantial evidence of conscious behavior. Further, allegations of scienter must be based on a substantial factual basis in order to create a "strong inference" that the defendant acted with the required state of mind.
B. The FAC's Allegations of False and Misleading Statements
Now, the Court turns to the allegations asserted in this case. Unfortunately, identifying Plaintiffs' allegations requires an arduous expedition through a rambling, repetitive, and unwieldy pleading. The FAC, which is 104 pages in length, begins with a 25-page "Summary of Action." This long-winded introduction is hardly a "summary" and serves only to repeat, rather than summarize, most of the allegations contained in the body of the pleading and to add a few charts that evidently did not squeeze into the remaining 79 pages.
The FAC also includes a "Background to the Class Period" section that provides Plaintiffs' version of what was going at Firefox and what Firefox insiders knew prior to the Class Period. This section makes broad assumptions without providing factual support and contains several irrelevant allegations, such as a reference to an unrelated securities fraud lawsuit involving Defendant Richardson.
Reaching the core of Plaintiffs' allegations provides little relief to the beleaguered reader. The FAC sets forth Plaintiffs' allegations of false and misleading statements made during the Class Period in an unduly cumbersome, puzzle-like manner. See In re GlenFed, 42 F.3d at 1553-54; Strassman v. Fresh Choice, Inc., 1995 WL 743728, *4 (N.D.Cal.1995). Rather than identifying each misleading statement followed by specific reasons why each statement was false, Plaintiffs organize the FAC by periods of time, lumping together into groups several allegedly misleading statements and following each group with a laundry list of "adverse facts" known to insiders at that time. This method of pleading imposes an unnecessary burden on Defendants and the Court to sort out the alleged misrepresentations and match them with the corresponding "adverse facts." Additionally, this litigation tactic affronts Fed. R. Civ. P. 8, which requires a "short and plain statement of the claim."
However, despite the poor draftsmanship, the Court has foraged through the FAC to find the allegations that form the basis of Plaintiffs' claims. For purposes of analyzing the sufficiency of these claims, Plaintiffs' allegations can be divided into three general categories: (1) false and misleading analyst reports, (2) false and misleading company statements, and (3) false financial statements.
1.) False and Misleading Analyst Reports
Plaintiffs assert that during the Class Period,[3] Firefox insiders gave analysts misleading information to conceal their own misconduct and to inflate the value of Firefox's stock. Specifically, Plaintiffs allege that on July 21, August 3, August 22, September 20, October 24, and December 11 of 1995, Firefox's top executives (Kimberley, Richardson *919 and Rowlinson) communicated with analysts from Robertson Stephens & Co., Cowen & Co., and Montgomery Securities and told them false and deceptive information. FAC ¶¶ 65, 70, 71, 73, 80, 82. According to the FAC, the analysts then transmitted this false and deceptive information to the market in reports issued on July 21, August 4, August 23, September 20, October 25, October 26, October 27 and December 11 of 1995. FAC ¶¶ 65, 70, 71, 73, 80, 82. Further, Plaintiffs allege that before the August 4 and August 23 reports were issued, Richardson and Rowlinson approved the reports after reviewing drafts and assured the analysts that the reports were correct. FAC ¶¶ 70, 71.
The Court finds, as it did in assessing the original complaint, that Plaintiffs' allegations of misleading statements contained in analysts' reports are insufficient to support a claim for securities fraud. As stated in this Court's June 6, 1996 Order, for Defendants to be liable they must have either expressly or impliedly adopted or endorsed the analysts' statements. In re Syntex Corp. Sec. Litig., 95 F.3d 922, 934 (9th Cir.1996). To properly plead adoption, Plaintiffs must allege specific facts showing that: (1) an insider provided misleading information to an analyst, (2) the analyst relied on this information in preparing a report, and (3) the insider somehow endorsed or approved the report prior to or after its publication. In re Syntex Corp. Securities Litigation, 855 F. Supp. 1086, 1097 (N.D.Cal.1994) affirmed, 95 F.3d 922 (9th Cir.1996).
In the FAC, Plaintiffs allege that Richardson and Rowlinson provided misleading information to the analysts and the analysts relied on this information in forming their reports. Plaintiffs further allege that Richardson and Rowlinson reviewed and approved drafts of the August 3 and August 23 reports prior to their release. FAC ¶¶ 70, 71. However, the FAC does not include any allegations of adoption or approval by Defendants in regard to the July 21, September 20, October 25, October 26, October 27 and December 11 analysts' reports. Thus, the statements and forecasts contained in these reports cannot be attributed to Defendants.[4]
The deficiencies in Plaintiffs' claims of misleading analysts' statements are not limited to failure to plead adoption. Several statements in the analysts' reports are inactionable amorphous statements of corporate optimism. Plaintiffs allege that Defendants falsely told analysts that: "After a strong second quarter, the Company has a good start on the third quarter"; "Firefox's U.S. sales team had assembled a large prospect base with which to support growth throughout 1995 and 1996"; and "The third quarter was on track." FAC ¶¶ 70, 71. While projections and general statements of optimism may trigger liability in some cases, In re Apple Computer Sec. Litig., 886 F.2d at 1113, vague or amorphous statements cannot serve as a basis for liability. Raab v. General Physics Corp., 4 F.3d 286, 288-90 (4th Cir. 1993); In re Syntex Corp., 855 F.Supp. at 1095; Strassman, 1995 WL 743728 at *5. Such statements are inactionable because reasonable investors do not consider "soft" statements or loose predictions important in making investment decisions. Raab, 4 F.3d at 289-90.
Here, statements that Firefox had a "good start" and was "on track" for the third quarter and was assembling "a large prospect base" to support growth in 1995 and 1996 are too vague and amorphous to be material. As the court found in Raab, no reasonable investor would rely on such vague statements, "and they are certainly not specific enough to perpetrate fraud on the market." Id. at 290.
Additionally, some of the allegedly false statements asserted in the FAC cannot be found in the analysts' reports. Plaintiffs allege that Defendants conveyed to the market through analysts that Firefox's direct sales team in the U.S. was "functioning well" and things were "going fine with Firefox's business, *920 especially in the U.S." FAC ¶¶ 70, 71. However, these statements do not appear in the reports released to the marketplace. See August 3, 1995 Robertson Stephens Report; August 23, 1995 Cowen Report.[5] As such, the statements, if they were made, never reached the market and therefore, are not actionable.
The FAC also erroneously attributes several opinions of the analysts to the Defendants. For example, Plaintiffs assert that Defendants told analysts that investors' concerns over Firefox were misplaced and that Firefox was increasingly confident it would meet its predicted earnings. FAC ¶¶ 70, 71. The reports, however, clearly provide that the analysts believed investors' concerns were misplaced and that the analysts were more confident about their own estimates and market outlook. Thus, it is improper for Plaintiffs to use these opinions as a basis for liability against Defendants.
Lastly, Plaintiffs fail to state with particularity why each statement was false when made or allege facts demonstrating that the predictions and forecasts in the analysts' reports lacked a reasonable basis. To adequately allege fraud, a plaintiff must set forth an explanation as to why the disputed statements were false or misleading when made. GlenFed, 42 F.3d at 1549. "This can be done most directly by pointing to inconsistent contemporaneous statements or information (such as internal reports) which were made by or available to defendants." Id.
Plaintiffs allege that Firefox insiders knew of and failed to disclose several "adverse facts." FAC ¶ 74. These "adverse facts" include allegations that: Firefox's sales and marketing expansion plan was failing, the sales force was performing very poorly, demand for Firefox's products was weak, Firefox was experiencing difficulties in developing new products, Firefox was shipping untested products, and Firefox was not making progress in the "important" educational market. FAC ¶ 74.
The "adverse facts" listed in the FAC are conclusory in the extreme and do not provide an adequate explanation of why the statements were false when made. None of Plaintiffs' general allegations are supported by references to inconsistent contemporaneous statements or information made by or available to Defendants. Instead, Plaintiffs try to bolster their conclusions with additional unfounded allegations. For example, Plaintiffs assert that Firefox was failing because it was mismanaged, lacked adequate personnel, did not sell "any significant amount" of its NOV*IX product and that it was performing very poorly because its "sales executives were incompetent" and its "sales efforts were in disarray." Plaintiffs do not, however, provide any examples of mismanagement and the only attempt to support their assertions of incompetence is a reference to one salesman who allegedly did not close a sale during his eight month employment with Firefox. FAC ¶ 69. Additionally, Plaintiffs do not quantify the allegedly poor sales or reference any reports or other information to show that Firefox's sales staff was performing badly or was in "disarray."
In fact, the only reference to supporting information is a general allegation that Defendants had access to "internal corporate information." FAC ¶¶ 67, 74. However, without any reference to particular corporate documents or other information, the Court can only conclude that Plaintiffs' allegations are based purely on speculation and conclusions drawn from hindsight.[6]
*921 In sum, Plaintiffs' rely on inactionable statements and conclusory allegations to support their claims of misleading analysts' reports and forecasts. Therefore, the claims fail to meet the pleading requirements of Rule 9(b) and the Reform Act.
2) False and Misleading Company Statements
In the FAC, Plaintiffs allege that on four occasions during the Class Period Firefox executives released false and misleading statements directly to the market. First, Plaintiffs assert that on July 20, 1995, Defendants issued a press release reporting strong second quarter results[7] and stating that the results "reflected increased market acceptance of server-centric solutions." FAC ¶ 65. In alleging fraud based on this statement, Plaintiffs fail to explain why the statement was false when made. Rather than referencing contemporaneous facts, Plaintiffs rely on conclusory allegations that the expansion plan was failing and demand for Firefox's product was weak. FAC ¶ 67(e) & (g). Such broad assertions fail to support the conclusion that, at the time the statement was made, Firefox was not experiencing increased market acceptance of its server-centric solutions.
Second, Plaintiffs allege that on September 20, 1995 at the Montgomery Securities 25th Annual Investment Conference, Firefox executives allegedly told assembled brokers, analysts and institutional investors that Firefox was performing very well, was on track for strong third an fourth quarter earnings, and its competitive position was improving. FAC ¶ 73. These allegations are insufficient for two reasons. Statements that Firefox was "on track" and "its competitive position was improving" are too vague to support a claim for fraud. Additionally, Plaintiffs fail to state with particularity why each statement was false when made.
Third, Plaintiffs allege that Defendants issued a press release on October 24, 1995, reporting strong increases in revenue and earnings due to "continued expansion" and "significantly increased market acceptance." FAC ¶ 80. These allegations are also insufficient. Once again, the FAC is devoid of any reference to any internal documents or other information that would support allegations that Firefox's expansion was failing or demand for its products was weak.
Fourth, Plaintiffs allege that on December 11, 1995, Firefox executives appeared at the 13th Annual Montgomery Technology Conference and told brokers, analysts and institutional investors that: (1) business was strong and demand for NOV*IX was high; (2) Firefox's core business products were selling well, enabling Firefox to increase prices; and (3) Firefox's account receivables would decline to $5-$5.5 million in the fourth quarter. FAC ¶ 82. In regard to the first two statements, Plaintiffs allege that Firefox's business was, in fact, not strong and its products were not selling well. FAC ¶ 83(e). To support these broad assertions, Plaintiffs assert that Firefox's expansion was failing due to mismanagement and inadequate personnel and that Firefox was unable to sell "nearly as much of its NOV*IX product" as necessary to meet its internal budgets, company forecasts or public forecasts. FAC ¶ 83(e).
As previously stated, these general allegations of poor performance do not meet the particularity requirements of Rule 9(b) and the Reform Act. The FAC does not point to or allege facts or documents that would corroborate the assertion that Firefox was failing due to "mismanagement" or "inadequate personnel." Further, the FAC does not identify Firefox's actual sales or any internal or public forecasts to support the assertion that Firefox was falling significantly below projections.
In regard to the prediction of declining accounts receivable, Plaintiffs do not even allege any general "adverse facts," let alone specific contemporaneous facts, to show that the statement was made without a reasonable basis. In fact, according to financial figures in the FAC, Firefox's accounts receivable did decline, eventually falling to $5.7 million for the quarter ending March 31, 1996. FAC ¶ 113.
*922 In conclusion, the FAC's allegations of false and misleading company statements do not meet the requirements of Rule 9(b) and the Reform Act because the FAC does not specify the reason or reasons why any of the company statements were false and misleading when made. As set forth above, Plaintiffs' broad and conclusory allegations of declining sales and product demand, which are not supported by any references to contemporaneous facts, do not provide a sufficient basis to support a claim of fraud on the marketplace.
3.) Fraudulent Financial Statements
In the FAC, Plaintiffs allege that Defendants materially overstated Firefox's revenue and earnings for the second and third quarters of 1995 by improperly recognizing sales and by failing to keep adequate reserves. FAC ¶¶ 93, 94, 96, 97, 98. Plaintiffs contend that Firefox improperly booked sales and recorded revenues for transactions: (1) where the products were delivered much later, (2) where no purchase orders were signed or authorized, (3) where the customers were assured they did not have to pay if the products were not resold, and (4) where resellers signed purchase orders but were assured by Firefox that they could rescind the order later if they wanted to. FAC ¶ 93, 96. According to the FAC, Defendants recorded sales to GBC/Vitek, TechData and Access Graphics after telling these customers that they could return the products if they were unable to resell them. FAC ¶ 93, 96. Plaintiffs also contend that Defendants recorded sales on non-binding purchase orders executed with ISYX, STMS, and "Manny," a product reseller who was a friend of a Firefox employee. FAC ¶¶ 93, 94, 96, 97. Lastly, the FAC includes allegations that Defendants artificially inflated Firefox revenues because they did not adequately reserve for returns and doubtful accounts receivable. FAC ¶¶ 93, 94, 97, 98.
To adequately state a claim for accounting fraud, a plaintiff must plead facts sufficient to support a conclusion that the defendants prepared fraudulent financial statements and that the alleged financial fraud was material. In re Ross Systems Sec. Litig., [Current Tr. Binder] Fed. Sec. L. Rep. (CCH) ¶ 98,363 at 90,498, 1994 WL 583114 (N.D.Cal.1994). Although the complaint need not specify the exact dollar amount of each error, it must identify particular transactions underlying the defendants' alleged accounting deficiencies. In re Wells Fargo Sec. Litig., 12 F.3d 922, 926-27 (9th Cir.1993), cert. denied sub nom., Wells Fargo & Co. v. Greenwald, 513 U.S. 917, 115 S. Ct. 295, 130 L. Ed. 2d 209 (1994); In re Ross Systems Sec. Litig., Fed. Sec. L. Rep. ¶ 98,363 at 90,499.
In their original complaint, Plaintiffs did not identify any transactions where Firefox improperly recorded revenue. The Court pointed out this deficiency in its Order dismissing the original complaint with leave to amend. In the FAC, Plaintiffs provide more particularity as to some of their assertions of premature revenue recognition but fail to do so for others.
Plaintiffs still fail to identify any transactions where Firefox recorded sales well before shipping the products or where Firefox recorded sales without receiving purchase orders. The FAC generally asserts such transactions took place (FAC ¶ 93, 96), but does not specify a single transaction involving delayed shipping or unauthorized delivery. Thus, the allegations of accounting fraud based on these transactions are clearly insufficient.
As for Plaintiffs' other assertions of improper revenue recognition, the FAC identifies customers who were allegedly told they could return the products if they were not resold as well as resellers who allegedly received products with the right to rescind the purchase orders. FAC ¶ 93, 94, 96, 97. The FAC also includes general allegations concerning the amount of "improper" sales. Plaintiffs allege that in the second quarter of 1995, GBC/Vitek and Tech/Data accepted over $750,000 worth of shipments where they "were told" they did not have to pay if they did not resell the products. FAC ¶ 93. Plaintiffs also allege that, during the same quarter, Firefox generated fictitious business orders with "Manny" for $200,000-$300,000 worth of merchandise. FAC ¶ 93. As for the third quarter of 1995, Plaintiffs contend that the transactions with GBC/Vitek, Tech/Data and Access Graphics totaled over $1 *923 million and transactions with GBC/Vitek, Tech/Data, Access Graphics, ISYX, STMS and "Manny" accounted for at least $1.6 million of Firefox's sales. FAC ¶ 96 & 97.
Although these allegations are more specific than those contained in the original complaint, they still do not provide a sufficient basis to support claims of accounting fraud. Simply listing customers and providing general, unsupported estimates of "improper" sales does not meet the particularity requirements of Rule 9(b) and the Reform Act. Rather, Plaintiffs must allege facts regarding the underlying transactions with particularity.
For example, the FAC does not allege who at Firefox told GBC/Vitek, Tech/Data and Access Graphics they could return the products if they were not resold, when transactions occurred, the amount of any particular transaction, or whether any of the products were returned. Additionally, the FAC does not include any specific facts regarding the "non-binding purchase orders" with ISYX and STMS, such as when the products were shipped, the terms of the purchase orders, the amount of the shipments or whether ISYX and STMS paid for the products. Lastly, the allegations regarding "Manny" are clouded by a thick fog of ambiguity. The FAC does not specify who "Manny" is, where he is located, when the shipments were sent to him, what the terms of the orders were, or whether he paid for the merchandise or returned it. Thus, Plaintiffs have not pled with particularity any transactions underlying their allegations of improper revenue recognition.
The remaining claim, that Defendants failed to adequately reserve for returns and doubtful accounts, is necessarily tied to Plaintiffs' allegations of improper revenue recognition and "phony" sales. By itself, the claim does not create a strong inference that Defendants acted with "an intent to deceive, manipulate or defraud." Hochfelder, 425 U.S. at 194 n. 12, 96 S.Ct. at 1381 n. 12. Further, the FAC does not allege facts to support a conclusion that this alleged accounting deficiency, standing alone, was material. Thus, the allegations of inadequate reserves also fail to state a claim for accounting fraud.
C. The FAC's Allegations of Scienter
The Reform Act requires that Plaintiffs state with particularity, for each allegedly misleading statement, "facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. § 78u-4(b)(2). To satisfy this requirement, Plaintiffs must allege either (1) specific facts demonstrating that the defendant had a motive and an opportunity to commit fraud; or (2) specific facts constituting circumstantial evidence of conscious behavior or recklessness if the statement is not forward-looking.
1.) Motive and Opportunity
To satisfy the scienter requirement by this method, Plaintiffs must plead facts demonstrating both a motive and an opportunity to commit fraud. "Motive would entail concrete benefits that could be realized by one or more of the false statements and wrongful nondisclosures alleged." Shields v. Citytrust Bancorp. Inc., 25 F.3d 1124, 1130 (2d Cir.1994). "Opportunity would entail the means and likely prospect of achieving concrete benefits by the means alleged." Id.
In the FAC, Plaintiffs set forth two motives for Defendants' alleged scheme to defraud the market. First, Plaintiffs assert that Defendants engaged in fraudulent conduct in order to avoid being sued for securities fraud. Second, Plaintiffs contend that Defendants inflated the value of Firefox's stock so that they could complete a sale of Firefox at a higher acquisition price.
The first alleged motive is clearly insufficient to support a "strong inference" of scienter. Anytime a company responds to a decline in its stock price it could be alleged that the company insiders were trying to avoid a lawsuit. Such broad allegations that apply to virtually any company are insufficient to sustain a claim under the securities laws. In re Crystal Brands Sec. Litig., 862 F. Supp. 745, 749 (D.Conn.1994). Moreover, the assertion that Defendants were compelled to commit fraud by the fear of being sued for fraud is absurd. It is hard to see how Defendants would benefit from fighting allegations of *924 fraud with fraud or by making fraudulent statements to temporarily reverse a stock decline for the purpose of avoiding a lawsuit.
Plaintiffs' second motive and opportunity theory also fails to establish a sufficient basis for inferring Defendants' fraudulent intent. Plaintiffs' assertion that Defendants inflated the value Firefox's stock to obtain a better acquisition price is inconsistent with the series of events that actually occurred. Firefox and FTP announced a proposed merger, which was not completed until July 1996, after Firefox released information regarding its loss and its stock price declined.
Recognizing this inconsistency, Plaintiffs contend that Defendants attempted but failed to finalize a sale before they were forced by a year-end audit to reveal the 1995 fourth quarter loss. According to the FAC, Firefox executives began negotiations with FTP on September 19, 1995 and indicated to FTP that they were seeking a purchase price of $150 million. FAC ¶ 72. Plaintiffs further assert that discussions continued into October and by October 13, 1995, a draft agreement was exchanged and FTP began its due diligence work. FAC ¶ 77. However, between October 18 and 24, FTP broke off negotiations with Firefox. FAC ¶ 78. Plaintiffs assert that Firefox nevertheless continued to deceive the public in hopes of reopening negotiations and "again frantically attempted to complete its acquisition by FTP" in December of 1995. FAC ¶¶ 78, 84.
These allegations fail to demonstrate that Defendants had the means to accomplish a sale or the "likely prospect of achieving concrete benefits." Shields, 25 F.3d at 1130. First, the sale of Firefox, as with any sale of a business, involves a due diligence process. In alleging their motive and opportunity theory, Plaintiffs fail to explain how a year-end audit would reveal "true" information while the due diligence process would not.
Second, Plaintiffs' allegations do not show even a reasonable probability that a sale could be completed before the end of the quarter. In fact, a transaction of this kind would take several months to complete, as evidenced by the fact that the actual merger took over six months to complete. Further, according to the FAC, negotiations started in late September and ended in October shortly after FTP began its due diligence examination. Thus, by Plaintiffs' own account, the negotiations were never close to completion.
In sum, to establish a strong inference of scienter, Plaintiffs rely on the theory that Defendants "committed fraud, they just weren't very good at it." Thornton v. Micrografx, Inc., 878 F. Supp. 931 (N.D.Tex.1995). However, the alleged facts, construed in the light most favorable to Plaintiffs, do not support even a strained and tenuous inference of scienter.
2.) Conscious Misconduct or Recklessness
As an alternative to demonstrating motive and opportunity, Plaintiffs may allege specific facts constituting circumstantial evidence of conscious behavior or facts showing recklessness for statements that are not forward-looking. If this method is used, the strength of the circumstantial allegations must be correspondingly greater. Beck v. Manufacturers Hanover Trust Co., 820 F.2d 46, 50 (2d Cir.1987), cert. denied, 484 U.S. 1005, 108 S. Ct. 698, 98 L. Ed. 2d 650 (1988). Additionally, in the securities fraud context, "recklessness" is conduct "involving not merely simple, or even inexcusable negligence, but an extreme departure from the standards of ordinary care, and which presents a danger of misleading buyers or sellers that is either known to the defendant or is so obvious that the actor must have been aware of it." Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1569 (9th Cir.1990) (en banc), cert. denied, 499 U.S. 976, 111 S. Ct. 1621, 113 L. Ed. 2d 719 (1991).
As stated previously, Plaintiffs fail to allege contemporaneous facts showing that each allegedly misleading statement was false when made. Thus, there are no specific facts to create an inference that Defendants knew the statements were false. Also, the allegations of knowledge and recklessness included in the FAC are purely conclusory. Plaintiffs contend that Defendants had access to "internal corporate information" without referencing any particular documents drafted by or available to Defendants that would indicate the statements were false or misleading when made. FAC ¶¶ 67, 74. These *925 general allegations of "access" to company documents, which could be asserted against any corporate executive, do not constitute specific facts of recklessness or conscious behavior. See Glickman v. Alexander, 1996 WL 88570, *14 (S.D.N.Y.1996). Thus, the Court finds that the FAC does not meet the Reform Act's requirement that complaints for securities fraud "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. § 78u-4 (b)(2).
IV. CONCLUSION
The FAC, while long on words, is short on substance. As with the original complaint, Plaintiffs do not plead their claims with particularity but rather, they rely on conclusory allegations to support their claims of fraud. Further, in light of Plaintiffs' inability to cure the defects in their pleadings and the lack of any indication that they could cure the deficiencies in the future, the Court concludes that any additional amendment would be futile. Accordingly, the Court DISMISSES PLAINTIFFS' FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND.[8]
IT IS SO ORDERED.
NOTES
[1] In adjudicating Defendants' initial motion to dismiss, this Court applied the Second Circuit's test for pleading scienter, which both parties relied on in their motion papers. Now, in light of the recent cases and swelling debate on the subject, the Court finds it necessary to provide a more detailed discussion regarding the interpretation of the "strong inference" standard.
[2] The Reform Act also provides that joint and several liability may be imposed only on a person who "knowingly committed" a violation of the securities laws. 15 U.S.C. § 78u-4(g)(2).
[3] The FAC also references two analysts' reports that were issued prior to the Class Period, the Robertson Stephens May 31, 1995 report and the Cowen June 2, 1995 report. FAC ¶¶ 56, 57. Plaintiffs assert that these statements were "part of the total mix of information affecting Firefox's stock price on July 20, 1995." FAC ¶ 64. However, the FAC does not rely on these reports as a basis for liability. In setting forth their claims for relief, Plaintiffs seek to recover for false statements disseminated during the Class Period. FAC ¶ 117. Further, in regard to the pre-Class Period reports, Plaintiffs do not allege: (1) when Defendants gave the false information contained in these reports; (2) that the statements were false when made; or (3) that Defendants were aware the statements were false when they were disseminated to the market. Therefore, the allegations regarding these reports are not sufficient to support a claim for fraud.
[4] Since the alleged misstatements in these reports cannot be attributed to Defendants, the remainder of the analysis focuses on the allegedly misleading statements in the August 3 and August 23 reports. The Court notes, however, that the allegations of misleading statements in the July 21, September 20, October 25, October 26, October 27 and December 11 analysts' reports, are plagued by the same defects as those found in the allegations concerning the August 3 and August 23 reports.
[5] Ordinarily, courts are limited to the allegations in the complaint when considering a motion to dismiss. Fed. R. Civ. P. 12(b)(6). However, courts may consider "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994), cert. denied, 512 U.S. 1219, 114 S. Ct. 2704, 129 L. Ed. 2d 832 (1994). Here, the Court reviewed copies of analysts' reports alleged in the FAC submitted by both Plaintiffs and Defendants.
[6] Further, Plaintiffs cannot argue that they should not be required to plead their allegations with particularity on the grounds that they have not had an opportunity to conduct discovery or that the documents are peculiarly within Defendants' knowledge. As set forth in section III A(2) of this Order, because Plaintiffs allegations are not based on information and belief, the Court will not relax the requirements of Rule 9(b).
[7] The allegations of fraudulent financial statements are analyzed below.
[8] Without a cognizable claim under § 10(b), there can be no liability under § 20(a). Therefore, Plaintiffs' § 20(a) claims are also dismissed without leave to amend. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3338695/ | The court is unable to agree with the reasoning and conclusion of plaintiff's brief. There is no ambiguity in the language of the exemption clause. Its purpose seems clear. Suicide is expressly exempted. The reason for this is obvious. In deaths resulting from poisoning or asphyxiation it could be claimed in nearly every case that the deceased had not intended self-destruction. It is apparent from the language of the contract that such deaths were, therefore, deliberately eliminated from the provisions of the policy. For the sake of argument it might be suggested that the term "drowning" had been included with "poisoning" and "asphyxiation." It becomes clear at once that such an accident policy would not be practical. There are too many cases of accidental drowning. Therefore, such an exemption would be unreasonable to include within the terms of an offered policy. Not so "poisoning" and "asphyxiation" which are relatively less frequent as hazards of daily life against which an insured might seek protection. In the court's mind the employment of the unqualified terms of "poisoning" and "asphyxiation" in the clause which had already listed "self-destruction" negatives any idea that circumstances or intent would make the slightest difference.
The language is so clear and unequivocal that judgment must be, and therefore is, entered for the defendant. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1608524/ | 21 So. 3d 815 (2009)
HEIDBREDER
v.
STATE.
No. 1D09-3361.
District Court of Appeal of Florida, First District.
October 27, 2009.
Decision Without Published Opinion Belated Appeal denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608533/ | 791 So. 2d 793 (2001)
Sharlena BLACK, Individually, and as Administratrix of the Estate of Ronnie Black, and Natural Tutrix of the Minors, Rollin James Black and Alexander Alvin Black
v.
GORMAN-RUPP, Mayer-Hammant Equipment, Inc., Sewerage and Water Board of New Orleans, Pepper & Associates, Inc. and ABC Insurance Company.
No. 2000-CA-1223.
Court of Appeal of Louisiana, Fourth Circuit.
July 11, 2001.
J. Nelson Mayer, III, Edmond J. Harris, Valteau, Harris, Koenig & Mayer, New Orleans, for Plaintiff/Appellant.
W. Lee Kohler, Terrence L. Brennan, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, for Defendants/Appellees.
Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr.
McKAY, Judge.
Sharlena Black appeals from the judgment of the trial court granting Pepper & Associates, Inc.'s motion for summary judgment and dismissing with prejudice of the plaintiff's claims against Pepper & Associates, Inc. and CNA Insurance Company.
The matter before this Court arises from a construction project at the Broad Street Manifold Canal.[1] The Sewerage and Water Board is the owner of the site. Gorman-Rupp is the manufacturer of the pump in question. Mayer-Hammant Equipment, Inc. leased the pump to T.L. James Construction Co. (T.L. James), the general contractor of the project. T.L. James employed Ronnie Black as a construction worker. Pepper & Associates, Inc. (Pepper) contracted with the Sewerage and Water Board, as consulting engineers, for the project on October 22, 1986. On December 3, 1991, a malfunction occurred causing water in the excavation site to rise. To avoid the pump being submerged, it was lifted and suspended from a cherry picker. The next morning, after the water had sufficiently subsided, the pump was lowered into the excavation site. *794 Mr. Black was told to remain with the pump to monitor its operation. Later that morning, T.L. James' foreman discovered that the pump had fallen off of the ranger and into the excavation area. Ronnie Black's body was discovered under the pump. The plaintiff filed suit against the Sewerage and Water Board, Pepper, Gorman-Rupp, Mayer-Hammant Equipment, Inc., and T.L. James and their liability insurer, CNA Insurance Co. (CNA), for Ronnie Black's death.
The Sewerage and Water Board was dismissed from this case on summary judgment based on a workers' compensation statutory employee issue. Gorman-Rupp and Mayer-Hammant Equipment, Inc., were also dismissed on summary judgment. Pepper filed three motions for summary judgment. The trial court denied the first two, but the third motion was granted which dismissed Pepper and its liability insurer, CNA.
Pepper's first motion for summary judgment, filed in March of 1994, was based on the premise that Pepper had no responsibility for site safety and that they owed no duty to Mr. Black. The trial court denied this motion on the grounds that it remained undetermined when Pepper became aware of a dangerous situation and failed to warn anyone. The trial court also denied Pepper's second motion for summary judgment, which was filed in July of 1996. Here, Pepper re-urged that it had no duty and no knowledge of the alleged dangerous condition, i.e., the manner in which the pump was placed. The trial court denied this motion finding that a material factual dispute was created by plaintiffs submission of the affidavit of Otis Black, which was later discovered to be falsified. Otis Black later admitted that he was not at the construction site on Washington Avenue and Broad Street on the day his brother was killed, but was at another construction site.
The case lay dormant from 1997 through 1998 due to Pepper's Chapter 13 Reorganization in bankruptcy court. The plaintiff then added Pepper's liability insurer, CNA, as a direct defendant. In June of 1999, Pepper and CNA again reurged the motion for summary judgment, which the trial court granted dismissing Pepper and CNA from the lawsuit with prejudice. The trial court found that Pepper had no duty to warn the decedent because there was no evidence to establish that Pepper knew of the dangerous situation. It is from this judgment that the plaintiff now appeals.
The appellant in its sole assignment of error argues that the trial court erred in granting a summary judgment in favor of Pepper.
The appellate court standard of review of summary judgments is de novo. Smith v. Our Lady of the Lake Hospital, 639 So. 2d 730 (La.1994); Walker v. Kroop, 96-0618 (La.App. 4 Cir. 7/24/96), 678 So. 2d 580.
The appellant argues that Pepper contracted with the Sewerage and Water Board to prepare the plans and specifications for the project and to provide on site supervision to assure that the contractor, T.L. James, followed the plans and specifications. Appellant contends that the plans and specifications give ultimate authority to Pepper to delay, interrupt or even suspend the contractor's work for failure to carry out the provisions of the contract and failure to correct conditions unsafe for the workmen and the general public.
The main issue that derives from appellant's allegations is whether Pepper owed a duty to Ronnie Black, an employee of T.L. James. The allegations include that Pepper was negligent as it failed to properly *795 supervise the work, failed to design a system to safely remove water from the job site, and failed to provide a safe place to work.
Contrarily, Pepper argues that the trial court correctly dismissed them on the motion for summary judgment. They assert that their contract with Sewerage and Water Board was for engineering services to check that the construction work was in compliance with the contractual requirements and that they had no responsibility for the site safety or a duty to Ronnie Black, a T.L. James employee. They further assert that they had no knowledge of the alleged dangerous condition, i.e., the manner in which the pump was placed, which resulted in the death of Ronnie Black. In their argument they claim that the appellant failed to identify any evidence to support its claim that Pepper was negligent or that Pepper's actions or inaction were a cause of Ronnie Black's death. They further argue that no evidence was presented to the trial court proving that Pepper was aware of the alleged dangerous placement of the pump, that Pepper should have warned Ronnie Black of this condition, or that Pepper had a duty to supervise the safety of the site.
Appellee's versions of the facts are as follows. On the morning of the accident, December 4, 1991, the water in the excavation site was high due to overnight rain. T.L. James' crane operator, Randolph Whittington, arrived at the site at 6:00 a.m., and was requested to assist the pumping crew in setting the pump while it was still dark, which required the workers to use flashlights. Randolph Whittington told T.L. James supervisor, Thomas Breland, that the pump looked unsteady. Thomas Breland told Randolph Whittington that he would take care of the pump. Ernie Murry, Pepper's site representative for the project, arrived at the work site at 6:30 a.m. and noticed that there was no work being performed at Washington Avenue and Broad Street. He proceeded to other areas of the site where work was underway. Later that morning, around 9:30 a.m., while making his rounds to check the pumps, the T.L. James' pump foreman discovered that the pump had fallen to the floor of the excavation. He went into the excavation area and found Ronnie Black's body beneath the pump. He immediately called Randolph Whittington to remove the pump. Randolph Whittington noted that the pump appeared not to have been properly secured. A T.L. James employee informed Ernie Murry, that Ronnie Black was dead. There were no eyewitnesses to the accident. Ernie Murry asserts that his role was to observe and record the contractor's progress, to insure that the work conformed to the plans and specifications, and to facilitate the progression of the contractors' pay request.
The only way a legal duty to act can arise from the facts before this Court, is if the contract between the Sewerage and Water Board and T.L. James and the Sewerage and Water Board and Pepper lead to the conclusion that Pepper was responsible for performing those activities that appellant alleges that Pepper failed to perform. After a careful review of the contracts we are of the same opinion as the trial court that Pepper did not have a contractual obligation to supervise construction or site safety. The mere fact that Pepper was involved in the construction process and had contractual duties to the Sewerage and Water Board does not create an all encompassing duty to protect everyone from every risk which could be encountered during the course of the project. To defeat the summary judgment the plaintiff cannot merely allege that Pepper owed a duty to Ronnie Black, but must demonstrate some basis in law for the imposition of this duty. In the absence of *796 such a duty there can be no liability on the part of Pepper.
In Yocum v. City of Minden, 26,424 (La.App. 2 Cir. 1/25/95), 649 So. 2d 129, the court held that, "in determining the duty owed to an employee of a contractor by an engineering firm also involved in the project, the court must consider the express provisions of the contract between the parties." 649 So.2d at 132. Yocum was injured while working in an excavation when two clods of dirt fell on him. He contended that the engineer, Owen & White, had a duty to warn him of the danger presented by the allegedly unsafe slope of the ditch in which he was working. Owen & White's contract required it to inspect the work to insure that the construction conformed to the plans and specifications. The contract precluded Owen & White from advising or instructing the contractor with regard to the construction means, methods or techniques and site safety. The trial court found that the engineer, Owen & White, was not responsible for site safety and therefore, had no duty to protect Yocum from the alleged dangerous condition.
The scenario in Yocum is similar to that in the instant matter. The construction contract placed the responsibility for site safety on T.L. James, not on Pepper. Clearly, absent an express contractual obligation, a design professional such as Pepper has no authority or responsibility to supervise a contractor's methods of performance or to supervise site safety. Pepper cannot be held liable for failing to perform activities, which it had no responsibility or authority to undertake. Pepper's contract clearly does not make it responsible for site safety or for supervision of the contractor's methods of performance or for actual performance of any of the work. Pepper had no contractual obligation to (1) supervise operation of the pump or any of T.L. James methods of performance; (2) design, implement, or supervise a system to remove water form the construction site; or (3) supervise site safety or provide T.L. James' employees with a safe workplace. Therefore, we conclude that the trial court was correct in finding that Pepper did not owe a duty to Ronnie Black and therein correctly granted Pepper's motion for summary judgment.
Accordingly, we find no error in the trial court's granting of the appellee's motion for summary judgment.
AFFIRMED.
NOTES
[1] This construction project involved excavations and rehabilitation of an existing subsurface drainage canal and the construction of a new underground drainage canal adjacent to the existing canal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608537/ | 791 So. 2d 80 (2001)
STATE of Louisiana in the Interest of G.J.L. and M.M.L.
No. 2000-CJ-3278.
Supreme Court of Louisiana.
June 29, 2001.
*82 Leah A. Beard, Counsel for Applicant.
Greta M. Marion, L. Kimberly Morrow, Garett R. Duplechain, Opelousas, Counsel for Respondent.
TRAYLOR, J.[*]
In this proceeding to involuntarily terminate parental rights, we granted a writ of certiorari to determine whether the court of appeal correctly affirmed the trial court's decision not to terminate parental rights and the trial court's finding that to leave the children in their respective foster homes for the time being is in their best interest.
FACTS and PROCEDURAL HISTORY
C.R.B. and R.D.L. are the mother and father of G.J.L., an eleven-year-old boy, and M.M.L., an eight-year-old girl. The children's mother, C.R.B., suffers from a bi-polar disorder and mild mental retardation. Their father, R.D.L., is physically infirm due to a serious heart condition. The State of Louisiana, Department of Social Services, filed a petition to terminate parental rights because the children had been in foster care continuously since 1998 and there was little hope of them ever returning to either of their parent's permanent custody.
G.J.L. and M.M.L. were seven and four, respectively, when they first entered the custody of the State in April 1997. The children were removed from their mother's custody, after the State investigated and validated allegations of sexual abuse of M.M.L. by C.R.B.'s boyfriend and failure to protect on the part of C.R.B. In April 1998, the children were returned to their mother for a 30-day trial placement, which was extended for two additional 30 and 60 day periods. C.R.B., who had since married, regained custody of her son and daughter from the State on August 6, 1998, and was placed under six additional months of supervision. However, on August 21, 1998, the children were again removed from C.R.B.'s custody on the grounds of neglect, due to C.R.B.'s failure to provide adequate food, stable housing, *83 and safe supervision. The father, R.D.L., was unwilling or unable to provide care for the children during any of this time, allegedly because of his heart condition. The children were adjudicated to be in need of care on September 23, 1998, and were subsequently placed in separate foster homes.
The State established case plans to work with the parents towards reunification. R.D.L.'s case plan provided that he maintain contact with the State, advise of any changes in his address or medical status, visit with the children, and work towards having a suitable home for his children to be returned to him. R.D.L. visited regularly with the children for a six-month period in 1999. However, after the visits were changed from a restaurant in Church Point, where R.D.L. lived, to the OCS office in Opelousas, R.D.L. gradually began seeing the children less and less and finally stopped altogether.[1] He has not seen them in over a year. He has never attended a family team conference or a court hearing.
C.R.B.'s case plan required that she acknowledge the abuse to the children and why they were placed in the State's care, that she provide a suitable home and safe environment for the children, that she not associate with the perpetrator of sexual abuse upon her daughter, that she keep all appointments, including those for mental health, that she take her prescribed medication, and that she attend all court hearings and family team conferences. However, C.R.B. failed to establish stable housing, did not attend mental health appointments, did not take her medication properly, continued to associate with known sexual perpetrators, and continued to have serious difficulty managing money. Yet, C.R.B. visits regularly with her children and has attended nearly all court hearings.
The undisputed medical testimony at trial was that C.R.B. has a bi-polar disorder and is mildly mentally retarded with a cognitive dysfunction. Both experts in psychology testified that, in their opinion, C.R.B. could never be the children's primary care-giver because of her mental health condition, but that she could possibly serve as a secondary care-giver. None of the parties argue that reunification of the children with C.R.B. or R.D.L. is likely. However, the parties do not dispute that C.R.B. loves her children and that much of why C.R.B. is unable to properly care for them is through no fault of her own, but is due to her mental disability.
The trial court further found that the evidence indicated that the children love their mother. G.J.L. expressed concern for his mother's welfare and a desire to visit and maintain a relationship with his father as well. While M.M.L. appeared to be less attached to both her parents and her brother and appeared to have no real desire to continue a relationship with her father, she still exhibited concern for her mother's well-being. Additionally, the trial court found that both children are fairly content and well-adjusted in their respective foster homes. In fact, G.J.L.'s foster mother would like to adopt him, although she is not interested in adopting both children. M.M.L.'s foster parents do not wish to adopt her; however, other persons in the community have expressed an interest in adopting M.M.L., although the State has no specific plans for her adoption as of yet.
Taking all of these factual findings into consideration, the trial court concluded *84 that it was in the children's best interest to maintain the status quo for the present time. Thus, the trial court denied the State's petition to terminate parental rights, finding that the parents should not be punished simply because of their respective mental and physical handicaps and that they should be allowed to try and be secondary care-givers to their children. Additionally, the trial court concluded that there was no evidence in the record that future adoption of the children would be in their best interest, and that, as they were happy and content in their foster homes and able to maintain "some semblance of family input in their lives," it was not in their best interests to uproot them again for an uncertain future adoption. Finally, the trial court noted that if C.R.B. and R.D.L. "knowingly and willingly falter" in their roles as secondary care-givers, "this matter can be addressed again and parental rights terminated."
On review, the court of appeal found that the trial judge grappled with the question of whether the children are better off with no parents and the chance to be adopted or with parents who love them but cannot care for them and concluded that the trial judge was "earnestly sincere" in his belief that the children's best interest is not served by the termination of parental rights. The court of appeal pointed to what it considered the "underlying ambivalence" of the family welfare professionals who testified at the hearing and determined that the State had not met its burden of clear and convincing proof that parental rights should be terminated. La. Ch.Code art. 1035. However, both courts recognized that, most likely, neither C.R.B. or R.D.L. will ever be the primary care-giver for these children.
LAW AND DISCUSSION
In Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599 (1982), the United States Supreme Court recognized that natural parents have a fundamental liberty interest in the care, custody, and management of their child and that the natural parents' interest does not "evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." The Court went on to acknowledge that, while the State has an "urgent interest" in a child's welfare and in providing the child with a permanent home, as long as there is reason to believe that a positive, nurturing parent-child relationship exists, the State's interest must favor preservation over severance of natural familial bonds. Id. at 766, 102 S.Ct. at 1401 (quoting Lassiter v. Department of Soc. Servs., 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981)). Thus, the Court found that parents who are faced with the possibility of forced dissolution of their parental rights must be provided with fundamentally fair procedures in order to ensure that children's legal bonds are not erroneously severed from fit parents. Id. at 753-54, 102 S.Ct. at 1395.
In order to adequately protect the parents' rights in termination proceedings, the Santosky Court held that the clear and convincing evidence standard of proof strikes a fair balance between the natural parents' rights and the State's concerns for the child's welfare and placement in a permanent home. 455 U.S. at 769, 102 S.Ct. at 1403. The Court found that "such a standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process."[2]Id. Therefore, the *85 State's interest in finding a child an alternative permanent home arises only when there is clear and convincing evidence that the natural parents cannot or will not provide a normal family home for the child. Id. at 767, 102 S.Ct. at 1402.
This court recently discussed the special concerns involved in cases of involuntary termination of parental rights in State in the Interest of C.J.K. and K.K., 00-2375, 00-2504 (La.11/28/00), 774 So. 2d 107, and State in the Interest of J.A., 99-2905 (La.1/12/00), 752 So. 2d 806, where we also explained that, in termination proceedings, courts must carefully balance the two private interests of the child and the parents. While the parents have a natural, fundamental liberty interest in the continuing companionship, care, custody and management of their children, Lassiter, supra, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. Lehman v. Lycoming County Children's Servs. Agency, 458 U.S. 502, 102 S. Ct. 3231, 73 L. Ed. 2d 928 (1982). In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. See, e.g., State in the Interest of C.J.K. and K.K., 774 So.2d at 113 (quoting State in the Interest of J.A., 752 So.2d at 811); State in the Interest of S.M., 98 0922, p. 15 (La.10/20/98), 719 So. 2d 445, 452. As we stated in State in the Interest of J.A.:
The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven.
752 So.2d at 811 (citations omitted).
This court has always recognized, however, that great care and caution must be exercised in these proceedings, because the permanent termination of the legal relationship existing between children and their biological parents is one of the most severe and drastic actions the State can take against its citizens. State in the Interest of J.A., 752 So.2d at 811. Parents have a natural, fundamental liberty interest in the continuing companionship, care, custody and management of their children, which warrants great deference and vigilant protection under the law. Id. Thus, we recognize that the potential loss to parents is grievous, "perhaps more so than the loss of personal freedom caused by incarceration." Id. Because due process requires that a fundamentally fair procedure be followed when the State seeks to terminate the parent-child legal relationship, actions to terminate must be scrutinized very carefully. Id.
*86 Title X of the Louisiana Children's Code governs the involuntary termination of parental rights. Article 1015 provides the specific statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. In order to terminate rights, the court must find that the State has established at least one of those statutory grounds by clear and convincing evidence. State in the Interest of J.A., 752 So.2d at 811 (citing La. Child. Code art. 1035(A); Santosky v. Kramer, supra). Further, even upon finding that the State has met its evidentiary burden, a court still should not terminate parental rights unless it determines that to do so is in the child's best interest. La. Child. Code art. 1039; State in the Interest of C.J.K. and K.K., 774 So.2d at 113; State in Interest of ML & PL, 95-0045, p. 4 (La.9/5/95), 660 So. 2d 830, 832.
Statutory Ground for Terminating C.R.B.'s and R.D.L.'s Rights
In the present case, only the State has discussed in any detail whether it met its burden of proving one of the statutory grounds for termination of parental rights by clear and convincing evidence. See La. Child. Code arts. 1015 and 1035. Presumably, this is because no party or court has disputed that the children will not be returned to either of their parents' permanent custody. We agree with the State that it sustained its burden of proving by clear and convincing evidence the ground for termination found under La. Child.Code art. 1015(5), which provides:
Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.
Both the children in this case have been continuously in foster care since the fall of 1998. Neither parent substantially complied with his or her respective case plan. R.D.L. did not maintain the required contact with OCS and stopped all visitation with the children after six months. Additionally, R.D.L. stipulated that he would never be able to take care of the children due to his heart condition. C.R.B. missed meetings, including mental health appointments, did not take her medication as required, continued to maintain contact with a known child molester, and never fully acknowledged the reasons her children were taken into State custody. The trial court found that there was no reasonable expectation of significant improvement in C.R.B.'s mental condition or conduct in the near future, which finding is clearly supported by the expert testimony of Dr. Buxton and Dr. Bergeron.[3]
Dr. Buxton, an expert in clinical psychology, testified that C.R.B.'s inability to *87 act as a primary care-giver was due to a combination of factorsher mental disability, her cognitive limitations, her lack of education, and her dependent personality. He testified that, while there was no question that she loved her children, she was unable to provide a stable home for them and that the children would be at risk for neglect and abuse if returned to her care. Dr. Bergeron, an expert in family clinical pychology, similarly testified that C.R.B. was unable to function as a primary care-giver to the children because of her mild mental retardation and her bi-polar disorder. Both experts agreed that C.R.B. might be able to give some kind of limited secondary care to the children and that C.R.B.'s inability to act as a primary care-giver was through no fault of her own.
Thus, the State satisfied its burden of proving at least one ground for termination of parental rights by clear and convincing evidence, as there was no dispute that either parent would regain custody or be able to provide a stable home for the children. However, as discussed above, in order to terminate parental rights, the trial court is not only required to determine whether the State has proved a statutory ground for termination by clear and convincing evidence, but also to decide whether termination of parental rights is in the child's best interest. See La. Child. Code art. 1037(A); State in the Interest of C.J.K. and K.K., supra; State in Interest of ML & PL, supra.
Trial Court's Determination that Termination is not in the Children's Best Interest
In the instant case, the trial court determined that it was in the children's best interest not to terminate the parental rights of either parent and to maintain the status quo, leaving the children indefinitely in their respective foster homes. The trial court's determination was based on its findings that the children appear to be well-adjusted in their foster homes, that they presently are not in danger, that they appear to love their natural parents and their foster parents, that the parents should not be punished because of their respective disabilities, and that it was better for the children to maintain some semblance of family input in their lives through visitation with their parents and with each other than to face uncertain future adoption and the possibility of complete separation not only from their parents but from each other.
A. Termination of R.D.L.'s Parental Rights
It is well-settled that an appellate court cannot set aside a trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So. 2d 840 (La.1989); Arceneaux v. Domingue, 365 So. 2d 1330 (La.1978). First, we address the trial court's findings with respect to the children's father, R.D.L. The trial court determined that both of the children's parents "are sincere, caring and good people who simply have respective mental and physical handicaps," and that "[a]s long as they are willing to try and be secondary care givers to their children, they should be allowed to do so." The trial court's only specific finding with respect to the children's feelings about their father was that G.J.L. wants to visit and maintain a relationship with his father, which finding is supported by the testimony of Michael Levinstone, the children's social worker.[4] The only other *88 testimony regarding the children's attachment to their father was Mr. Levinstone's statement that the children are "still connected" and "have a psychological attachment" to both their parents. Therefore, the court did not believe it was in the children's best interest to terminate either parent's rights. We disagree with this finding.
However, after reviewing the record, we find that the trial judge's determination that it was not in the children's best interest to terminate R.D.L.'s parental rights was clearly wrong and not reasonably supported by the evidence. In fact, the State was the only party that presented evidence at the termination hearing regarding R.D.L. The State demonstrated that R.D.L. no longer had any interaction with the children, that he had failed to visit them for over a year, that he did not substantially comply with his case plan, and that he was either unable or unwilling to care for the children because of his physical impairment. The State also pointed out that R.D.L. has never attended a family team conference or any court hearings regarding his children. R.D.L.'s attorney did nothing to rebut any of this evidence or explain R.D.L.'s conduct.
Furthermore, while the record contains a statement from R.D.L.'s doctor that his heart condition would prevent him from being the children's primary care-giver, at oral arguments before this court, R.D.L.'s attorney stated that he understood that R.D.L. and his present wife maintain a home together in which R.D.L.'s other children live. Again, when questioned by this court, R.D.L.'s attorney could offer no explanation as to how R.D.L.'s physical condition has prevented him from maintaining contact with the children or visiting with them in accordance with his case plan.
In addition, the State presented evidence regarding M.M.L.'s lack of a desire to see her father due to some alleged inappropriate behavior he exhibited towards her through the testimony of M.M.L.'s therapist, Michael Levinstone, and through the OCS case worker, Debra Faye Johnson. While the court of appeal made the factual finding that G.J.L. and M.M.L. love both their parents, it additionally noted that M.M.L. has at times expressed no desire to continue a relationship with her father.
Finally, at oral arguments before this court, it was not even clear that R.D.L. truly contests having his parental rights terminated; rather, his attorney suggested that R.D.L. would not simply give up his rights "as a matter of principle." In conclusion, we agree with the State that, while it is clear that G.J.L. may want a relationship with his father, the record makes just as clear that R.D.L. cares little for his children and has made little or no effort to *89 comply with any portion of his case plan. Based on these facts, it was clearly wrong for the lower courts not to terminate R.D.L.'s parental rights. The State not only met its burden of proving by clear and convincing evidence the statutory ground for terminating R.D.L.'s parental rights, but also demonstrated that it was in M.M.L.'s and G.J.L.'s best interest to do so. The totality of the evidence concerning R.D.L.'s conduct and lack of concern for his children does not reasonably support the trial court's determination not to terminate R.D.L.'s rights. Therefore, the court of appeal erred in affirming the trial court's decision with respect to R.D.L. Accordingly, we reverse that holding and order that R.D.L.'s parental rights be terminated as to both G.J.L. and M.M.L.
B. Termination of C.R.B.'s Parental Rights
The State sought termination of C.R.B.'s parental rights under La.Ch.Code art 1015(5). However, unlike R.D.L., C.R.B. strongly contest having her parental rights terminated. The evidence presented at trial clearly establishes that C.R.B. loves her children and the evidence is unequivocal that she is unable to care for her children as a result of her mental illness. This court recognizes that parents have a fundamental liberty interest to share a relationship with their children; however, such a right is not absolute especially when the parents' behavior could jeopardize the health or safety of the child. See e.g. Wisconsin v. Yoder, 406 U.S. 205, 233-34, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1971); State in Interest of J.A., supra.
Testimony of various witnesses indicate that the children require and would function more effectively in a stable environment. The evidence also establishes that the children have been continuously subjected to the erratic behavior and exhibition of poor judgement by their mother. Dr. Alfred Buxton, Ph.D. examined C.R.B on two separate occasions. First in 1993 and a second time in 1997. After the 1993 examination, Dr. Buxton concluded that C.R.B. had a dependent personality and also a dysthymic disorder.[5] He determined that C.R.B. would require ongoing mental health intervention and noted that if the children remained in her care she would require supervision and the children would need in-home services. While Dr. Buxton could not testify as to the length of mental care required by C.R.B., he explained that the care would be long-term. Subsequently, in 1997, Dr. Buxton again had the occasion to examine C.R.B. Dr. Buxton testified that his impressions of C.R.B. changed. He dropped the dysthymic disorder and characterized C.R.B's condition as a bi-polar disorder. He believed that the mood disorder was more than dysthymia, and that her condition was moving towards one of the major affective disorders. Dr. Buxton testified that C.R.B.'s bad judgments and failure to make decisions for herself and her children could prove to be detrimental to the children's welfare. He pointed out that at the age of seven G.J.L. was responsible for making extremely complex and mature decisions. He stated that C.R.B.'s cognitive limitations, through no fault of her own, precluded her from making the necessary judgments which parents are required to make to insure the well being of their children. Dr. Buxton conclusively opined, based on his evaluation of C.R.B, that C.R.B. could function only as a secondary care-giver to her children. In other *90 words, he believed that C.R.B. would need another competent primary care-giver present if she was going to have the children on a permanent basis.
Testimony was also elicited from Michael Levinstone, a board certified social worker and therapist. Mr. Levinstone testified that he has worked closely with the children for the past two years. He testified that C.R.B. possesses parenting deficiencies which he believes are directly related to her mental disabilities as well as prior sexual abuse and rejection issues which C.R.B. faced with her own mother. As to G.J.L., Mr. Levinstone stated that G.J.L. loves his mother very much and has taken on the role as her protector and cares very much for her well being. He pointed out that this protective role which G.J.L. has taken on has often created problems in C.R.B.'s household with her husband as G.J.L. often believes and behaves as though he is the father of the household. Mr. Levinstone testified that G.J.L. misses his mother but enjoys the bonds which he has established with his foster parents and his foster parents' extended family. In fact, Mr. Levinstone stated that G.J.L. indicated that he wanted to be adopted by his foster parents or one of their daughters if he could not return to his mother's care.
Mr. Levinstone seemed very concerned about M.M.L. He testified that she was very withdrawn while in C.R.B.'s home and stated that during his home visits he would notice how withdrawn M.M.L. appeared. He attributed her behavior to a host of factors including the allegations of physical and sexual abuse.[6] Mr. Levinstone stated that M.M.L. would comment about missing her mother during the first year while she was in foster care but became more distant towards returning to her mother and was not committed to continuing contact with her brother, G.J.L. Mr. Levinstone often focused his visits with M.M.L. on the sexual abuse and feelings of anger that M.M.L. had towards her mother. He believed that M.M.L. felt as though her mother should have protected her and exhibited feelings of anger when her mother refused to believe the allegations.[7] Mr. Levinstone stated that M.M.L. is happy with her foster parents and often talks about being adopted. While Mr. Levinstone believed it would be ideal for the children to be placed in an adoptive home together, he recognized that placement together was probably not feasible.
Dr. Ed Bergeron also testified. Dr. Bergeron evaluated C.R.B. in response to a request by the Office of Community Service. Specifically, Dr. Bergeron assessed C.R.B.'s psychological functioning as it relates to her parenting abilities. Based on the test performed, Dr. Bergeron concluded that C.R.B. is relatively limited on an intellectual level. As for her parenting abilities, C.R.B. was diagnosed as being at a high risk to engage in abusive behavior and/or more likely to provide an environment conducive for abuse and neglect. In addition, C.R.B.'s parenting profile indicated that she could not deal effectively with daily stress and was not able to meet the *91 daily requirements and demands of being a parent. Dr. Bergeron, after conducting all of the assessments, determined that it would be "very, very difficult" for C.R.B. to successfully parent her children.
At the conclusion of the hearing, the trial court recognized that C.R.B. will never be able to be a primary care giver to her children and refused to terminate C.R.B.'s parental rights on the basis that it is not in the best interest of the children to do so. The court decided that it is best to leave the children in their respective foster homes; continued to allow the children visitation and determined that he could revisit the situation at a later date. Moreover, the court was of the opinion that the best scenario was to allow the children to be adopted by the same parents. After careful review of the record, we believe the trial court erred in refusing to terminate C.R.B.'s parental rights.
As stated above, the best interest of the children is paramount. The experts and the lower courts all agree that C.R.B. can never provide a stable home for her children. While this court is cognizant that C.R.B.'s inability to care for her children is due to her mental illness and is of no fault of her own, we must examine very closely the needs of the children. As we stated in In Re: Interest of J.A., we are not creating a bright line rule that mental illness in and of itself should serve as a sole basis for terminating parental rights, but is it important to consider the parent's mental state as it relates to the parent's ability to care for their children. M.M.L. and G.J.L. are at a tender age, they require stability and should be afforded the ability to enjoy being children. The children have undergone emotional challenges while within the care of their mother. M.M.L. has been sexually assaulted and G.J.L. believes that he is responsible for the care of his mother. Clearly, the problems which these children have faced would challenge any well adjusted adult. As Dr. Bergeron testified, children are resilient and can overcome many disadvantages. However, in order to overcome such adversities, the children should be placed in a stable living environment which is free from turmoil. The record establishes that both children are doing well in their respective foster home and there is a strong likelihood that G.J.L. will be adopted by his foster parent. Although no specific request for adopting M.M.L. is in place, the expert testimony established that it would be in the best interest for both children to be in a position to be adopted. Therefore, based on the testimony and evidence, we find that the best interest of the children requires that the court terminate C.R.B's parental rights as to both M.M.L. and G.J.L.
CONCLUSION
Based on the facts and evidence presented to this court, we conclude that it is in the best interest of the children to terminate the parental rights of C.R.B. and R.D.L. The State has satisfied its burden under La. Child. Code art. 1015(5) and this court finds it is in the best interest of the children to terminate C.R.B. and R.D.L.'s parental rights. Accordingly, we reverse the judgment of the court of appeal and remand the matter to the trial court for further expedited proceedings consistent with this opinion.
DECREE
JUDGMENT OF THE COURT OF APPEAL IS REVERSED; CASE REMANDED TO THE TRIAL COURT FOR EXPEDITIOUS TREATMENT.
KIMBALL, J., concurring in part and dissenting in part.
While I agree with the majority's decision today in as far as the termination of *92 R.D.L.'s parental rights are concerned, I respectfully dissent from the court's holding that the trial court committed manifest error by not terminating C.R.B.'s parental rights.
The lower courts were presented with a very difficult question with respect to C.R.B., because, unlike R.D.L., she strongly contests having her parental rights terminated, clearly loves her children, and is able to play some role, even if limited, in their lives. The trial court carefully considered the situation, the testimony of the experts and C.R.B., and the children's feelings before making its determination not to terminate C.R.B.'s parental rights. As the court of appeal noted, the trial judge clearly struggled with the question of termination in light of C.R.B.'s mental disability and her ability to participate in her children's life, even if not as a primary care-giver. He thoughtfully and cautiously weighed all of the evidence, including his ex parte interview of G.J.L. and M.M.L., before making the factual finding that it was not in the children's best interest to terminate C.R.B.'s rights.
It is well-settled that a reviewing court must accord great deference to the factual findings of the trial court and cannot set aside those findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So. 2d 840 (La.1989); Arceneaux v. Domingue, 365 So. 2d 1330 (La.1978); Canter v. Koehring Co., 283 So. 2d 716, 724 (La. 1973). This well-settled principle of review is based not only on the trial court's better capacity to evaluate witnesses and detect variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said, but also on the proper allocation of trial and appellate functions between the respective courts. Rosell, 549 So.2d at 844 (citing Canter, 283 So.2d at 724; Virgil v. American Guarantee & Liability Ins. Co., 507 So. 2d 825, 826 (La.1987); Boulos v. Morrison, 503 So. 2d 1, 3 (La.1987); Williams v. Keystone General Contractors, Inc., 488 So. 2d 999, 1001 (La.1986); Johnson v. Insurance Co. of North America, 454 So. 2d 1113, 1117 (La.1984); Berry v. Livingston Roofing Co., 403 So. 2d 1247, 1249 (La.1981); Crump v. Hartford Accident & Indemnity Co., 367 So. 2d 300, 301 (La.1979)).
It is essential that this court accord the proper degree of deference to a trial judge's factual determinations in cases involving the sensitive questions of child custody and termination of parental rights, because of the integral role the trial judge plays in those proceedings. In the instant case, the trial judge not only directly participated in the fact-finding process, but had the distinct advantage of personally observing and questioning both of the children and their mother before making his conclusions, whereas this court could only review the cold record on appeal. Upon its review of the record, I believe that the majority of this court failed to properly defer to the trial court's factual determinations. The trial judge's denial of the state's petition was based on his findings that C.R.B. loves her children, that her inability to act as a primary care-giver to them is through no fault of her own, that the children are concerned for their mother's welfare, that the children are well-adjusted in their foster homes, and that they would benefit by maintaining a relationship with their mother. In my view, these factual findings are not manifestly erroneous based on the evidence presented at the termination hearing.
No one at the hearing, nor any court, has disputed that C.R.B. loves her children. While Mr. Levinstone, the children's social worker, testified that in his opinion, adoption was probably the best *93 option for these children, he also stated that the children, G.J.L. in particular, love and worry about their mother and that contact with her could be beneficial for the children, especially G.J.L. Moreover, on cross-examination, when C.R.B.'s attorney asked Mr. Levinstone specifically whether it was in the children's best interest to terminate C.R.B.'s rights and leave the children in "limbo" waiting on a possible adoption, he stated he could not give her an answer at that time.
Similarly, Dr. Buxton would not directly answer the question of whether it was his opinion that it would be in the children's best interest to terminate parental rights. When the trial court posed that question, Dr. Buxton explained that he "carefully avoid[s] saying terminate parental rights," because he does not believe that to be his role. Later during the hearing, he told the trial court that he did not know what would be in these children's best interest given the circumstances. Dr. Buxton further testified that it "could be good" for the children to maintain contact with their mother and that such contact is usually favorable. He additionally suggested that it might be satisfactory for the children to stay in a good, stable foster home with care-givers to whom they were already attached, if it could be assured that they would stay in that home for a long time. Finally, Dr. Buxton noted that the children would suffer trauma if the bonds, attachments, and "what little bit of stability" they had developed with their foster families were taken away.
Dr. Bergeron likewise refused to testify specifically that it was in the children's best interest to terminate their parents' rights. However, he opined that "the children need to move on, one way or another," and that the best thing for them was to be placed in a permanent living arrangement, which regular foster care placement could not accomplish. His conclusion was that, generally, the children would suffer more greatly by the risk of leaving them in foster care homes with the possibility of being removed at any time than by uprooting them again for placement in new adoptive homes. However, he agreed with Dr. Buxton that maintaining contact with their mother "could work" if the children could be placed permanently with a committed foster family and could still visit with their mother. He also agreed with Dr. Buxton that the children would suffer a series of traumatic events if C.R.B.'s rights were terminated, they were taken out of the foster homes where they had been placed for three years, and they were placed with new adoptive families. He concluded that, unfortunately, "when you get to the point [the children] are at right now, it's almost impossible to talk about what's in the best interest," although he opined that "trauma now might be beneficial in the long run."
Based on the experts' testimony, which the court of appeal understandably found to be somewhat ambivalent, I believe the trial court's determination that it was not in the children's best interest to terminate C.R.B.'s parental rights is adequately supported by the record. The trial court considered the expert testimony that continued contact with their mother might be beneficial to the children, that C.R.B. loves her children and through no fault of her own is prevented from acting as their primary care-giver, that the children care for their mother and are concerned about her well-being, and that the children are content and doing well in their respective foster homes. The trial court reasonably concluded that C.R.B. is a "sincere, caring and good [person]," who simply has a mental disability, and that she and the children should not be punished for that by severing all familial bonds between them. Additionally, upon interviewing the children, *94 the trial court found that, "despite their tender ages," the children were very bright and keenly aware of their mother's and their own situations.
In light of this evidence, I do not believe it can properly be said that the trial court was manifestly erroneous in finding that the state had not demonstrated that terminating C.R.B.'s parental rights and breaking the fundamental tie between the children and their natural mother is in the children's best interest. Even if this court might have weighed the facts and decided the issue differently in the first instance, I believe the court should affirm the trial court's finding that it is not in the children's best interest to terminate C.R.B.'s parental rights, because that finding is reasonably supported by the evidence presented at the termination hearing. See Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099, p. 8 (La.7/5/94), 639 So. 2d 216, 221.
However, I recognize that the trial judge's determination to maintain the status quo and leave the children in what he, himself, called a temporary situation was not an appropriate resolution to the proceedings in light of Louisiana and federal law and policies requiring that children in foster care be moved into permanent placement, preferably with an adoptive family, if at all possible. See Adoption and Safe Families Act of 1997, Pub.L. No. 105-89, 111 Stat. 2115 (codified in 42 U.S.C. § 671, et seq.; 42 U.S.C. § 1305, et seq.); La. Child. Code art. 701, et seq. However, Article 702(C) and (D)(5) clearly recognize that, in some instances, courts may have to consider other alternative permanent living arrangements for children in need of care, when the trial court determines that to do so is in the children's best interest. Article 702(C) allows that a trial court may determine that a child adjudicated to be in need of care should remain permanently in foster care with a specific foster family. Subsection D of Article 702 outlines the priorities of permanent placement a trial court is to consider and provides that in some cases the most appropriate plan for a child in need of care may be placement with a legal guardian or placement in the least restrictive, most family-like alternative permanent living arrangement.
However, while the trial court committed legal error by failing to determine a permanency plan for G.J.L. and M.M.L., that error does not in any way implicate the trial court's factual findings with respect to whether it is in the children's best interest to terminate C.R.B.'s parental rights. Therefore, in my opinion, the proper resolution would be to affirm the trial court's denial of the state's petition to terminate C.R.B.'s parental rights, but to remand the case to the trial court so that it may consider the most appropriate permanent plan of placement for the children in light of federal and state law. Accordingly, I respectfully dissent in part from the majority's decision, because the trial court's determination that it was not in the children's best interest to terminate C.R.B.'s parental rights is not manifestly erroneous in light of the evidence presented at the hearing. Conversely, I agree with the majority that the record does not reasonably support the trial court's determination not to terminate R.D.L.'s rights.
NOTES
[*] Retired Judge Philip C. Ciaccio, assigned as Associate Justice Pro Tempore, sitting for Associate Justice Harry T. Lemmon.
[1] The agency changed the location of the visitation after M.M.L. complained that her father exhibited inappropriate behavior towards her, such as excessive hugging and kissing, which made her uncomfortable.
[2] However, the Court additionally held that, while the clear and convincing standard is the minimum requirement that will satisfy due process principles, the determination of the precise burden, equal to or greater than that standard, is a question of state law. Santosky, 455 U.S. at 769-70, 102 S.Ct. at 1403.
[3] As we noted in State in the Interest of J.A., 752 So.2d at 814, a finding that a parent suffers from a mental illness, standing alone, is insufficient grounds to warrant termination of parental rights. Rather, to terminate parental rights because of a mental disability, the condition must be related to the parenting ability. Id. Therefore, termination is only proper if the evidence is clear and convincing that there is no reasonable expectation of significant improvement in the parent's condition in the near future, one of the statutory grounds for termination has been met, and the court determines that termination is in the best interest of the child. Id. (citing La. Child. Code art. 1015(5)).
[4] At the hearing, Michael Levinstone, the children's social worker, Dr. Bergeron, a psychologist who had evaluated M.M.L. once, and, Debra Faye Johnson, the foster care worker, testified as to the children's feelings concerning their parents and their respective situations in foster care. Additionally, the trial judge interviewed the children in chambers in the presence of the attorneys; however, that interview was not placed on the record. We note that as a general rule, any in camera interviews of a minor must be conducted with a court reporter present and a record made of the questioning and answers. See, e.g., Nail v. Clavier, 99-588 (La.App. 3 Cir. 11/10/99), 745 So. 2d 1221, 1225; In re Custody of Landry, 95-0141 (La.App. 1 Cir. 10/6/95), 662 So. 2d 169, 173; Osborne v. McCoy, 485 So. 2d 150 (La.App. 2 Cir.1986), writ denied, 488 So. 2d 1027 (La.1986); Watermeier v. Watermeier, 462 So. 2d 1272 (La.App. 5 Cir.1985), writ denied, 464 So. 2d 301 (La.1985). However, the failure to transcribe the trial judge's interview of the children in the present case does not constitute reversible error as the trial judge's factual findings regarding the children's feelings and preferences are supported by other evidence in the record, namely the testimony of Mr. Levinstone.
[5] Dysthymic disorder is defined as a disorder with a chronic depressed mood; it is a very mild form of depression.
[6] According to the record, there were allegations that M.M.L. was physically abused by G.J.L. Mr. Levinstone testified that G.J.L. would often yell at M.M.L. during his home visits and stated that M.M.L. recounted an incident when G.J.L. touched her inappropriately. Additional evidence existed that M.M.L. was the victim of sexual misconduct by C.R.B.'s husband's brother.
[7] Mr. Levinstone testified regarding a visit between C.R.B. and M.M.L. when C.R.B. mentioned the name of M.M.L.'s sexual abuser and stated that he said to tell her "hello." Mr. Levinstone recalls that M.M.L. became furious and he noticed a definite change in behavior during the visit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1553536/ | 238 B.R. 845 (1999)
In re Dianne Mannion WEPSIC, Debtor.
Dianne Mannion Wepsic, Plaintiff,
v.
Jackie Josephson, Defendant.
Bankruptcy No. 97-15509-H13. Adversary No. 98-90181-H13.
United States Bankruptcy Court, S.D. California, San Diego Division.
August 26, 1999.
*846 *847 Deborah L. Raymond, Solana Beach, CA, for debtor/plaintiff.
Matthew H. Powell, San Diego, CA, for defendant.
AMENDED MEMORANDUM DECISION
JOHN H. HARGROVE, Bankruptcy Judge.
At issue is debtor Diane Mannion Wepsic's ("Wepsic") request for her costs and attorney fees pursuant to 15 U.S.C. § 1640(a).
This Court has jurisdiction to determine this matter pursuant to 28 U.S.C. §§ 1334 and 157(b)(1) and General Order No. 312-D of the United States District Court for the Southern District of California. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B) and (K).
FACTS
The facts set forth in this Court's September 1, 1998, Memorandum Decision are incorporated herein. This Court granted partial summary judgment in favor of Wepsic and found that creditor Jackie Josephson ("Josephson") violated the Truth in Lending Act ("TILA"). As the prevailing party, Wepsic is entitled to her costs and reasonable attorney fees as determined by this Court. Wepsic seeks costs *848 in the amount of $217.27 and attorney fees in the amount of $51,473.02.
On March 23, 1999, this Court held a hearing and took the matter under submission.
DISCUSSION
15 U.S.C. § 1640(a)(3) provides that in a case of a successful action to enforce a right of rescission, the plaintiff is entitled to "the costs of the action, together with a reasonable attorney's fee as determined by the court." This Court must base its calculation of a reasonable attorney's fee in a TILA case on factors established in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Semar v. Platte Valley Fed.Sav. & Loan Assoc., 791 F.2d 699 706 (9th Cir. 1986) (citation omitted); Martinez v. Idaho First Nat'l Bank, 755 F.2d 1376, 1378 (9th Cir.1985) ("The failure to follow these guidelines constitutes an abuse of discretion").
The factors set forth in Johnson are the time and labor required, the novelty and difficulty of the questions involved, the skill requisite to perform the legal service properly, the preclusion of other employment by the attorney due to acceptance of the case, the customary fee, whether the fee is fixed or contingent, time limitations imposed by the client or the circumstances, the amount involved and the results obtained, the experience, reputation, and ability of the attorneys, the "undesirability" of the case, the nature and length of the professional relationship with the client, and awards in similar cases.
Wepsic's attorneys billed a combined 263.10 hours on this case. Deborah Raymond ("Raymond") billed 87 hours at $195.00 per hour for a total of $16,916.25. Louis G. Bruno ("Bruno") billed a total of 176.10 hours at $195.00 per hour for a total of $34,339.50.
"The starting point for an award of attorneys' fees is to multiply the number of hours reasonably spent on the case by a reasonable hourly rate." In re Auto Parts Club, Inc., 224 B.R. 445 (Bankr. S.D.Cal.1998) (citations omitted). The Court finds that the $195.00 rate charged by Wepsic's attorneys is indicative of the prevailing market rate in the community and is therefore reasonable. The Court finds, however, that the number of hours billed were duplicative, excessive and unnecessary.
A review of the record in this case, as well as the attorney time sheets and the supporting pleadings, leads the Court to conclude that this was a relatively straight-forward TILA case including issues on the finance charge, the APR, the number of payments, and the faulty notice of rescission. With the exception of the latter, the other issues revolve around simple calculations, some of which are routinely performed by a computer program. Thus, it does not appear to the Court that two attorneys were needed to litigate this case. To the extent the fees of Wepsic's attorneys were duplicative, the Court will award only one fee. The Court also declines to award attorney's fees for the time Wepsic's attorneys spent conferring with each other, or reviewing each other's work. See Daggett v. Kimmelman, 811 F.2d 793 (3rd Cir.1987).
Mr. Bruno was associated into this case because of his "expertise" in the TILA area. However, the Court concludes that an excessive amount of time was spent researching and drafting the pleadings in this matter. Compensation for significant amounts of time which are billed for general education is generally not reasonable. In re Maruko, 160 B.R. 633 (Bankr.S.D.Cal.1993).
In addition, both attorneys billed for matters unrelated to the TILA violations. Both attorneys also charged their regular hourly rates for attending relief from stay matters, the continued confirmation hearing, and the refinancing of Wepsic's property. These fees are contrary to the United States Trustee Guidelines in Chapter 13 *849 cases which allow a flat rate of $325.00 for opposition to relief from stay, $250.00 for stipulated orders re refinancing of real property, and $75.00 for appearances at post-confirmation hearings, and the attorneys have failed to demonstrate why either should receive in excess of the presumptive or Guideline fee.
The Court finds the fees excessive given that this case ended with the summary judgment motion. There were a total of seven hearings in this case, with only two being substantive (i.e., argument for the motion on summary judgment and argument for attorney fees). The Court also finds the amount of time involved is disproportionate to the results obtained. The Court's reasoning for disallowing some of the fees is set forth below:
A. Duplicative Time Entries:
The Court finds the following entries duplicative and not requiring the work of two attorneys.
1. Court Appearances: Both Raymond and Bruno appeared at the 6/12/98; 7/22/98; and 10/28/98 court hearings. Raymond billed 3.3 hours; 1.5 hours and 1.0 hours respectively for a total of 5.8 hours at $195.00 per hour ($1,131.00). In addition to billing for her appearances, Raymond billed 1.4 hours on 7/21/98 preparing for oral argument (presumably for the hearing on July 22, 1998). All Raymond's time is disallowed. Bruno also billed 2.75 hours on 6/12/98 for his appearance and meeting with counsel after the appearance. Because the entry is lumped,[1] the Court deducts one hour from Bruno's time. The amount of $1,599.00 (8.2 hours × $195.00) is disallowed.
2. Counsel Conferences: Bruno billed 3.75 hours on 6/3/98; 3.5 hours on 6/18/98; and 3.92 hours on 8/13/98 for a total of 11.17 hours at $195.00 per hour ($2,178.15). These conferences with co-counsel Raymond are duplicative and the amount of $2,178.15 is disallowed.
3. Research and Drafting: Raymond billed 1.2 hours on 6/18/98; 1.1 hours on 6/22/98[2]; .3 hours on 6/26; 3.3 hours on 7/1/98; 2.5 hours on 7/2/98; 2.8 hours on 7/17/98; 2.5 hours on 7/19/98; 2.3 hours on 7/20/98; and 2.0 hours on 8/13/98 for a total of 18.0 hours at $195.00 per hour ($3,510.00). Raymond spent much of this time either duplicating the research efforts of Bruno or redrafting his work. The amount of $3,510.00 is disallowed.
B. Excessive Time Entries.
1. Complaint: The time for drafting the complaint in this matter is excessive. Bruno billed 2.5 hours on 4/2/98; 1.0 hours on 4/3/98; 3.5 hours on 4/4/98 and on that same date billed 3.0 hours for "value added fee for prior work" for a total of ten hours. In addition, Raymond billed 1.4 hours on 4/7/98 and 4.0 hours on 4/9/98 for a total of 5.4 hours. In total, 15.4 hours at $195.00 an hour ($3,003.00) was billed for drafting the complaint. As noted above, the issues in this matter were relatively straightforward. Moreover, the Court fails to comprehend how value added fees for prior work on other cases were necessary for the drafting of a complaint in this case. The Court finds that two hours for drafting the complaint in this matter is reasonable. The amount of $2,613.00 is disallowed.
2. Drafting of Stipulated Facts: Bruno billed 6.5 hours on 6/19/98; 1.5 hours on 6/23/98; 4.5 hours on 6/24/98; and 2.5 hours on 6/25/98 for a total of 15 hours at $195.00 ($2,925.00) for drafting the stipulated facts in this case. The Court finds this amount excessive given *850 the simplicity of the case. The Court finds that two hours for drafting the stipulated facts in this matter is reasonable. The amount of $2,535.00 is disallowed.
3. Research and Drafting Supplemental Brief: Bruno billed 1.0 hours on 7/23/98 and 1.0 hours on 7/27/98 to research two cases specifically cited by this Court and to be addressed in the supplemental brief. In addition, Bruno billed 4.33 hours on 7/24/98 for research; 7.0 hours on 7/29/98; 4.0 hours on 7/30/98; and 1.0 hours on 8/11/98. Raymond billed 4.4 hours on 7/30/98 and .4 hours on 8/4/98. A total of 23.13 hours at $195.00 an hour ($4,510.35) was billed for the supplemental brief. The Court finds this amount excessive given the Court's directive to brief the applicability of two cases to the instant matter. Raymond's work appears duplicative as well. The Court finds that five hours for research and drafting the supplemental brief is reasonable. The amount of $3,535.35 is disallowed.
4. Drafting of Summary Judgment Motion: Bruno billed 2.5 hours on 6/8/98; 4.0 hours on 6/13/98; 4.5 hours on 6/15/98; 1.5 hours on 6/16/98; and 2.5 hours on 6/17/98 for a total of 15 hours at $195.00 per hour ($2,925.00). The Court finds this amount excessive given the simplicity of the issues and in light of the fact that Jackie Josephson had adequately framed the issues in her prior filed motion for summary judgment. The Court finds that eight hours for drafting the summary judgment motion is reasonable. The amount of $1,365.00 is disallowed.
5. Drafting Order Shortening Time. Raymond billed 1.2 hours on 6/24/98 at $195.00 per hour ($234.00) for drafting an order shortening time. The Court finds the amount billed excessive. The Court finds that .3 hours is reasonable. The amount of $175.50 is disallowed.
6. Research on Separate Statement of Undisputed Facts. Bruno billed 1.33 hours on 6/24/98 for researching whether a separate statement of undisputed facts applied in federal procedure. The Court finds this amount excessive and unnecessary. The amount of $259.35 is disallowed.
7. Preparing and Filing Certificate of Compliance: Raymond billed .7 hours on 6/5/98 for preparing a two page certificate of compliance (and evidently filing it with the Court). The Court finds this amount excessive and unnecessary. The Court finds .3 hours reasonable. The amount of $78.00 is disallowed.
8. Research and Drafting of Rescission Notice. Bruno billed 8.0 hours on 3/18/98 plus 3.0 hours for value added. Raymond billed .9 hours on 3/19/98 and 3.7 hours on 3/22/98. Raymond billed another 1.2 hours on 3/23/98 for drafting the points and authorities regarding the same. The Court finds that a total of 16.8 hours at $195.00 per hour ($3,276.00) for this task excessive. As Josephson's attorney pointed out, the precise contents of the notice of rescission are defined in the Truth in Lending laws. The Court finds that three hours is a reasonable time. The amount of $2,691.00 is disallowed.
C. Unrelated Time Entries.
Both Bruno and Raymond have billed for drafting, researching, and making appearances regarding Josephson's motion for relief from stay. The Court finds that Josephson's motion for relief from stay is unrelated to the TILA. Josephson moved for relief from stay because Wepsic was not making payments under the plan. Moreover, there was billing for matters related to the confirmation hearing and refinancing. Besides being unrelated, both Raymond and Bruno billed at their hourly rates for these matters which is contrary to the United States Trustee Guidelines for chapter 13 cases. The total time billed for these matters is disallowed.
1. Relief From Stay: Raymond billed .3 hours on 4/3/98; .2 hours on 4/6/98; .3 *851 hours on 4/8/98; .1 hours on 5/6/98; .5 hours on 5/13/98; 1.0 hours on 5/19/98; .8 hours on 6/1/98; 4.0 hours on 11/23/98; 4.7 hours on 11/28/98; 2.2 hours on 11/29/98; .6 hours on 11/30/98 and 1.5 hours on 12/15/98 for a total of 16.2 hours at $195.00 per hour ($3,159.00). Bruno billed 3 hours on 11/27/98; 1.5 hours on 11/30/98; 1.5 hours on 12/14/98; and 2.33 hours on 12/15/98 for a total of 8.33 hours at $195 per hour ($1,624.35). The amount of $4,783.35 is disallowed.
2. Work on Refinance. Bruno billed 3.5 hours on 12/18/98 for drafting and filing an order to facilitate a refinance of Wepsic's house. This work is unrelated to the TILA violations and the amount billed is in contravention of the United States Trustee Guidelines. The amount of $682.50 is disallowed.
3. Confirmation Hearing. Raymond billed .7 hours on 4/1/98 for attending the continued confirmation hearing in Wepsic's underlying chapter 13 case. In addition, Bruno billed 3.0 hours on 3/31/98 for preparation and 6.0 hours on 4/1/98 for his appearance at the continued confirmation hearing. The Court notes that a confirmation hearing in a chapter 13 case lasts no more than a few minutes. Therefore, Bruno's time also appears excessive. Moreover, the Court finds these billings unrelated to the TILA and in excess of the United States Trustee Guidelines. The amount of $1,891.50 is disallowed.
D. Secretarial and Travel Entries:
1. Travel Entries: Raymond billed 1.0 hour for travel time for her initial meeting with Bruno on 3/18/98. Although the Court allowed the time billed for the initial meeting, the Court disallows Raymond's travel time in the amount of $195.00. In addition, Bruno billed 1.5 hours on 7/1/98 for travel time spent delivering documents to counsel. The amount of $292.50 is disallowed.
2. Secretarial: Raymond billed .5 hours on 4/10/98 for preparation of the service of the complaint. Even though she billed for this task at one-half of her hourly rate, the Court finds that the task is secretarial in nature and therefore part of her general overhead. The amount of $48.75 is disallowed.
E. The Amount Involved and the Results Achieved.
"`[T]he most critical factor' in determining the reasonableness of a fee award `is the degree of success obtained.'" Carroll v. Wolpoff & Abramson, 53 F.3d 626, 630 (4th Cir.1995) (citations omitted). Wepsic's attorneys were not totally successful in enforcing her right to rescission. It is apparent that Wepsic's sole purpose behind the filing of this adversary proceeding was to use the rescission remedy to wipe out Josephson's secured claim in her chapter 13 bankruptcy despite the fact that Wepsic had the inability to fulfill her part of the rescission remedy. The Court rejected this all or nothing approach as set forth in its September 1998 opinion and conditioned Wepsic's right to rescind on her ability to return the appropriate portion of the loan proceeds to Josephson. Seven months have elapsed since this Court issued its Memorandum Decision and Wepsic still has not consummated the refinancing of her home. Thus, Wepsic still can not exercise her rescission remedy.
The Court questions what benefit Wepsic has received for over $51,000 in fees. At most, Wepsic is entitled to recover the finance charge and other charges. As far as this Court is aware, Josephson held six months of interest only payments in escrow. The interest only payments were around $892.00 per month. Wepsic made no other payments on the loan prior to bankruptcy. Although Wepsic has made some post-petition payments, she is more than $9,600.00 behind in her plan payments. In addition, the "other charges" that Wepsic may be entitled to equal approximately $6,200.00.
*852 In addition to recovering a sum which is substantially lower than the fees in this case, Debtor continues to incur attorney fees and other costs associated with her refinance of her property during this bankruptcy. In sum, the Court finds that even after disallowing a significant portion of the fees as set forth above, the amount involved still greatly outweighs the results obtained. The fees are further reduced by 50%.
CONCLUSION
In sum, the Court finds that Wepsic is entitled to costs in the sum of $217.27 and attorney fees in the amount of $11,520.04 ($51,473.02-$28,432.95 (disallowed fees) = $23,040.07 ÷ 2 (cost-benefit reduction)). This Memorandum Decision constitutes findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052. Josephson is directed to file with this Court an order in conformance with this Memorandum Decision within ten (10) days from the date of entry hereof.
NOTES
[1] A number of the time entries of both Raymond and Bruno were lumped. Therefore, it was impossible for the Court to determine in most cases how much time was legitimately spent on each task. In many instances, the Court disallows the entire amount that is lumped.
[2] The Court allows .2 on this date for another task. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1553539/ | 238 B.R. 94 (1999)
In re Donald McCALLA and Carol McCalla, Debtors.
Donald McCalla and Carol McCalla, Objectors,
v.
Nationsbanc Mortgage Corporation, Claimant/Respondent.
Bankruptcy No. 5-97-03886.
United States Bankruptcy Court, M.D. Pennsylvania, Wilkes-Barre Division.
May 18, 1999.
*95 Philip W. Stock, Stroudsburg, PA, for Debtors.
Leslie J. Carson, Jr., Philadelphia, PA, for Nationsbanc.
Charles DeHart, III, Hummelstown, PA, trustee.
OPINION
JOHN J. THOMAS, Bankruptcy Judge.
The Debtors, Donald and Carol McCalla, have filed an Objection to a Proof of Claim filed by Nationsbanc Mortgage Corporation. They have alleged that a certain item of the Proof of Claim, i.e., the escrow shortage of $4,590.31, is incorrect. They have requested that the Proof of Claim be disallowed and that the arrearage set forth in Debtors' Chapter 13 Plan, in the amount of $9,095.29, serve as the appropriate amount to be addressed by the Chapter 13 Plan. The Debtors advance that there was no objection to this Plan and it has been confirmed as of August 13, 1998.
A proof of claim is prima facie evidence of the validity and amount of a claim. Federal Rule of Bankruptcy Procedure 3001(f). Furthermore, it is the burden of the objector to come forward with evidence sufficient to rebut the presumption of validity. 9 Lawrence P. King, Collier on Bankruptcy ¶ 3001.10[2] at 3001-25 (15th ed. rev.1996). The Debtors' evidence on this issue has come up short and, as the Court noted at the time of the hearing, they have not successfully rebutted that portion of the claim evidencing the escrow shortage.
The Debtors further intimated that the Bank's proof of claim should be reduced by virtue of the smaller sum being provided it under the confirmed plan. Fortunately, I have heretofore addressed this issue in an earlier opinion.
The Debtors' reliance on the fact that the proof of claim exceeds the allowance in the plan as cause to reduce the claim is misplaced. While an unsecured creditor must file a claim to be paid under the plan pursuant to Federal Rule of Bankruptcy Procedure 3002(a), the amount of the payment is limited to "[t]he provisions of a confirmed plan [which] bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan." (Emphasis ours.) 11 U.S.C.A. § 1327(a).
In re LaForgia, Case No. 5-95-00036, 1998 WL 59480, at *3 (Bankr.M.D.Pa. Jan. 21, 1998)
With regard to mortgage claims, chapter 13 plans are typically utilized to either pay off the entire balance of the mortgage under modified terms pursuant to § 1322(b)(2), typically known as a cramdown, or cure an existing default under § 1322(b)(5). For a discussion of the distinction between the two, the reader's attention is directed to In re Chappell, 984 F.2d 775 (7th Cir.1993). The plan before me obviously attempted a cure. Cure plans do not "permanently deprive" a *96 claimant of their entitlements under the mortgage instrument. Rather, confirmation of the plan remedies it's default status as of the completion of the plan. In re Brown, 121 B.R. 768, 771 (Bankr.S.D.Ohio 1990). "When a default on a mortgage or other long term debt is cured under section 1322(b)(5), the full amount of the creditor's claim is not paid during the chapter 13 cases. Rather, the debtor preserves the benefit of a longer payment schedule which extends beyond the due date of the last payment under the plan, and the creditor is protected by the exception to discharge for long term debts on which defaults are cured." Collier at ¶ 1322.09[4] (1998). Cure of the default will not otherwise alter the creditor's rights under the mortgage document. To further support this conclusion, the parties need only look to 11 U.S.C. § 1328(a)(1) which specifies that the chapter 13 discharge does not reach "those debts which the debtor wishes to continue treating as long-term debts." In re Smith, 8 B.R. 543, 547 (Bankr.D.Utah 1981).
For these reasons, the objection to the claim of Nationsbanc Mortgage Corporation, formerly known as Banker's Trust Company, is, therefore, overruled and the claim is allowed.
By way of further comment, however, at the time of the hearing, the Court's attention was diverted to the fact that the Debtors' Plan committed itself to pay the sum of $9,095.29 and stated "[t]his amount will satisfy the entire arrearage in connection with the mortgage with Banker's Trust Company [predecessor of Nationsbanc Mortgage Corporation]. . . ." (Chapter 13 Plan filed 1/9/98 (Doc. # 2).) The Court mused as to whether confirmation of the Plan with this language would bar Nationsbanc from demanding a larger arrearage. I note that, typically speaking, the language of the plan is interpreted strictly against the drafter of the plan, the debtor. In re Duplechain, 111 B.R. 576, 580 (Bankr.W.D.La.1990), In re Arrow Air, Inc., 101 B.R. 332 (S.D.Fla.1989), In re Wickersheim, 107 B.R. 177 (Bankr. E.D.Wis.1989), In re Wilkins, 71 B.R. 665, 669 (Bankr.N.D.Ohio 1987). While this issue is interesting, the Court will resist the temptation to determine whether Nationsbanc is now bound to accept the Plan payment in full satisfaction of their Proof of Claim. Such an adjudication would be no more than an advisory opinion deciding no actual controversy between the parties. Coffin v. Malvern, 90 F.3d 851, 853 (3rd Cir.1996).
The only issue before the Court is whether the Nationsbanc claim should be allowed. As indicated earlier, it is my conclusion that it should be. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608566/ | 21 So. 3d 813 (2009)
WRIGHT
v.
STATE.
No. SC09-1916.
Supreme Court of Florida.
October 15, 2009.
Decision Without Published Opinion Review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608556/ | 21 So. 3d 900 (2009)
Trevor PAYNE, Appellant,
v.
STATE of Florida, Appellee.
No. 5D09-865.
District Court of Appeal of Florida, Fifth District.
November 6, 2009.
Brian N. Onek, of Onek and Mawn, P.A., Melbourne, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
We reverse the trial court's summary denial of Appellant's first, third, fifth, and *901 eighth claims in the instant rule 3.850 proceeding as the trial court has failed to conclusively refute the allegations raised therein. We find that these four claims must be resolved in an evidentiary hearing.
In his first claim, Appellant alleged that defense counsel was ineffective for failing to call Matthew Thomas as a witness at Appellant's jury trial. According to Appellant, Thomas would have testified, inter alia, that while incarcerated with Appellant's co-defendant, Keith Holloway, at the Brevard County Detention Center, Holloway informed Thomas that he (Holloway) shot the victim and that Appellant was neither in the vehicle at the time of the shooting nor otherwise involved in the events that culminated in the death of the victim.
In claim five, Appellant raised a claim of newly discovered evidence, alleging that co-defendant Keith Holloway was now willing to testify on behalf of Appellant that Appellant was neither at the scene of the shooting nor otherwise involved.[1] Furthermore, Appellant alleged that Holloway would testify that he (Holloway) was the actual shooter and that he was accompanied at the scene by Reginald Patterson and Allen Patterson. Finally, Holloway would testify that after fleeing from the scene in Reginald Patterson's purple Crown Victoria, the three men would later switch cars and flee in Ashley Barks' vehicle.
In claim three, Appellant alleged that defense counsel was ineffective for failing to call Ashley Barks as a witness at Appellant's trial. According to Appellant, Barks was the girlfriend of Allen Patterson at the time of the crime and would testify that, in its immediate aftermath, she was awakened by Allen Patterson at her home and told by Allen that he needed to borrow her car to take Reginald Patterson and Keith Holloway home. Barks would further testify that Appellant was not present during this conversation and that she would later be told by Allen Patterson that he (Allen Patterson) was involved in the offenses.
The trial court denied Appellant's first claim, finding that any testimony regarding the statements made by co-defendant Keith Holloway while in jail would be merely cumulative to the same testimony actually offered by co-defendant Reginald Patterson at Appellant's trial. As for the potential testimony of Holloway himself (claim five), the trial court again concluded that any such testimony would be merely cumulative of the trial testimony of co-defendant Reginald Patterson. Finally, with respect to the testimony of Ashley Barks, the trial court concluded that her testimony would not have affirmatively demonstrated that Appellant was not otherwise involved in the offense.
We conclude that these claims, as well as Appellant's eighth claim (cumulative error), should be reversed and remanded for an evidentiary hearing. It is apparent from the instant record that Appellant's defense at trial was premised on a mistaken identity between himself and Allen Patterson. Although Appellant did not take the witness stand himself, he did present the testimony of his girlfriend, who testified that Appellant was at her house, where he spent the night, during the time when the instant crimes occurred. In addition, Appellant also offered the testimony of another co-defendant, Reginald Patterson, who testified that Appellant was not involved in the shooting nor present at the scene of the crime, but that Allen Patterson was.
*902 Because the record appears to support the conclusion that the instant case boiled down to a credibility contest between the testimony of witnesses from the State and the defense, we are not convinced that the trial court's conclusion that the apparently cumulative nature of the testimony of potential witnesses Matthew Thomas and Keith Holloway is sufficient to conclusively refute claims one and five. Cf. Peter v. State, 844 So. 2d 699, 699 (Fla. 4th DCA 2003) ("[T]he testimony of a witness should not be excluded as cumulative if doing so reduces the case to a credibility contest between the victim and the defendant."). Nor are we persuaded by the trial court's summary conclusion as to claim three that Ashley Barks' testimony that Appellant was not present when she spoke to Reginald, Keith, and Allen in the immediate aftermath of the offenses would be irrelevant.
Instead, we believe these claims should be entertained at an evidentiary hearing where the trial court will have an opportunity to evaluate the credibility of these potential witnesses and determine whether there exists a reasonable probability that Appellant's trial might have resulted in a different outcome had this testimony been offered.
We affirm the trial court's summary denial of Appellant's remaining claims.
AFFIRMED in part; REVERSED in part; and REMANDED.
SAWAYA, LAWSON, and COHEN, JJ., concur.
NOTES
[1] According to Appellant, at the time of Appellant's trial, co-defendant Keith Holloway had not been tried and was asserting his Fifth Amendment privilege. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608558/ | 21 So. 3d 669 (2009)
Robert ELLIS, Jr., Appellant,
v.
STATE of Mississippi, Appellee.
No. 2007-KA-02178-COA.
Court of Appeals of Mississippi.
April 21, 2009.
Rehearing Denied September 8, 2009.
Certiorari Denied November 12, 2009.
*670 Leslie S. Lee, Jackson, attorney for appellant.
Office of the Attorney General by John R. Henry, attorney for appellee.
Before LEE, P.J., IRVING and ISHEE, JJ.
IRVING, J., for the Court.
¶ 1. Robert Ellis Jr. was convicted by the Lowndes County Circuit Court of possession of less than 0.1 gram of cocaine and sentenced as a habitual offender to eight years in the custody of the Mississippi Department of Corrections without the possibility of probation or parole. Aggrieved, Ellis appeals and asserts: (1) that the trial court erred in failing to suppress evidence in violation of his due process rights and Fourth Amendment rights, (2) that the trial court erred in allowing hearsay testimony of several witnesses, and (3) that evidence was admitted without the establishment of a proper foundation.
*671 ¶ 2. Finding no reversible error, we affirm.
FACTS
¶ 3. On May 4, 2006, Officer Ryan Woods, a Columbus, Mississippi police officer, called over the radio for assistance in apprehending a fleeing suspect. Officers Kelvin Lee, Wade Beard, and Oscar Lewis responded to the call. By the time the officers made it to the scene, Officer Woods had already detained the suspect, Ellis.
¶ 4. One of the officers noticed that Ellis had a plastic bag containing a white substance in his mouth and that Ellis began chewing it. Having worked in narcotics, the officers determined that it was highly probable that the bag in Ellis's mouth contained some type of narcotic that he was trying to dispose of. As Ellis continued to chew on the bag, the officers noticed that a white substance appeared on the outer corner of his mouth, indicating to the officers that the bag was open and that the white substance, suspected of being cocaine, was getting into Ellis's mouth. The officers' suspicion was later confirmed by the crime lab, which determined that the white substance was cocaine.
¶ 5. In the attempt to prevent Ellis from ingesting "too much" of the cocaine, the officers used several methods to get him to spit the bag out. First, the officers tried pinching Ellis's nose to prevent him from breathing. Second, the officers tried pressing Ellis's cheeks and jaws. Third, the officers informed Ellis that he was in imminent danger, hoping that Ellis would be concerned for his health and would spit the bag out. When none of these methods worked, the officers used a Taser on Ellis.[1] After the first use of the Taser, Ellis partially released the bag; however, when the officers released the Taser's trigger, Ellis retracted the bag. At that point, the officers called for medical assistance. While they were waiting, they used the Taser on Ellis four additional times in one last attempt to get him to disgorge the bag of cocaine.
¶ 6. At trial, all of the officers testified that they were attempting to save Ellis's life, as they were all aware that the ingestion of too much cocaine can be fatal. Also, at trial, the State offered a video recording of the incident. The video showed the officers constantly telling Ellis to spit the bag out and explaining that if he did not, he would die. The video also revealed that, as time passed, Ellis's condition worsened until, by the end of the recording, he could barely stand on his own.
¶ 7. The ambulance driver testified that when she and her partner arrived at the scene, Ellis was having difficulty breathing, "as if he was choking on something." The driver also testified that Ellis's skin was clammy, his color was abnormal, he was sweating, and he had a rapid heartbeat. The driver further testified that Ellis's symptoms were consistent with the first stages of a drug overdose. According to the driver, they placed Ellis on a stretcher and put him in the back of the ambulance. Officer Woods and the driver's *672 partner[2] rode in the back of the ambulance with Ellis.
¶ 8. Shortly after the ambulance left for the hospital, the driver was asked by her partner to pull over. She did so and went to the back of the ambulance. When she opened the back door, she saw her partner using forceps to remove the bag from Ellis's mouth. The driver testified that her partner had determined that the bag was blocking Ellis's airway. The driver gave Officer Woods a biohazard bag to be utilized in preserving the bag that was removed from Ellis's mouth. However, she testified that she did not see Officer Woods place the bag of cocaine in the biohazard bag, because she immediately returned to the driver's seat and continued the drive to the hospital.
¶ 9. Officer Woods was unable to testify at trial because he had been called to active duty in Iraq. Therefore, there was no testimony as to what he did with the bag after it was given to him by the ambulance driver. However, Officer Brad Ray, a former narcotics officer with the Columbus Police Department, testified that he removed a bag bearing Officer Woods's badge number, initials, and Ellis's case number from the evidence vault and sent it to the crime lab for testing.[3] Officer Ray further testified that it was departmental procedure to have the case number, complaint number, and the date of the incident on items that were placed in the evidence vault. Upon being shown the bag that was removed from the evidence vault by Officer Ray, all of the officers testified that it was, in fact, the bag that Ellis had in his mouth on the day of the incident. Also, the ambulance driver testified that the bag that was shown to her at trial appeared to have been the bag that her partner pulled from Ellis's mouth while they were transporting him to the hospital.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶ 10. First, Ellis contends that the bag of cocaine that was removed from his mouth was removed in violation of his Fourth Amendment and due process rights and that the trial court erred in failing to suppress it. Ellis relies here, as he did in the trial court, on the "shocks the conscience" standard established in Rochin v. California, 342 U.S. 165, 172, 72 S. Ct. 205, 96 L. Ed. 183 (1952) and argues that it should have been the standard used by the trial court. In Rochin, officers illegally broke into a defendant's room and attempted to retrieve pills from the defendant's mouth. Id. at 166, 72 S. Ct. 205. After they failed in their attempt, they handcuffed him and transported him to a hospital where the pills, containing morphine, were removed by a doctor who pumped his stomach without his consent. Id. The defendant was convicted by a California superior court of illegally possessing morphine. Id. The pills that were removed from his stomach were the primary evidence offered against him. Id. The defendant appealed, and the District Court of Appeal affirmed. Id. The Supreme Court of California denied certiorari. Id. at 167, 72 S. Ct. 205. Following a denial of review by the California Supreme Court, the United States Supreme Court granted certiorari and suppressed the evidence, holding that the method utilized by law enforcement to obtain the evidence "shocks the conscience." Id. at 172, 72 S. Ct. 205. However, the Supreme Court clarified that it was all of the actions taken by the police to obtain the evidence that "shocked the conscience." Id. Specifically, the Court *673 held that taken together, the "[i]llegally breaking into the privacy of the [defendant], the struggle to open his mouth and remove what was there, and the forcible extraction of his stomach's contents" amounted to a shocking of the conscience. Id.
¶ 11. As we explain below, Ellis's reliance on Rochin is misplaced. He does not consider the totality of the circumstances surrounding the incident. Rather, he bases his argument solely on the method used to obtain the evidence.
¶ 12. The standard of review concerning a trial judge's ruling on a motion to suppress evidence is well established:
When reviewing a trial court's ruling on the admission of evidence, [an appellate court] must assess whether there was substantial credible evidence to support the trial court's findings. The admission of the evidence lies within the discretion of the trial court and will be reversed only if that discretion is abused.
McLendon v. State, 945 So. 2d 372, 379(¶ 14) (Miss.2006) (quoting Culp v. State, 933 So. 2d 264, 274(¶ 26) (Miss.2005)).
¶ 13. Here, the trial court, in determining whether to grant or deny Ellis's motion to suppress, reviewed the video recording. The trial judge found that the recording proved that the officers' primary objective was to save Ellis's life. Accordingly, the trial judge held that the facts in this case are distinguishable from those in Rochin. He noted that in Rochin, the police officers' sole purpose for having Rochin's stomach pumped was to preserve evidence. The trial judge further pointed out that in this case, Officer Woods did not retrieve the evidence bag from Ellis's mouth, nor did he request the EMT to retrieve it; rather, the EMT retrieved it on his own volition.
¶ 14. We agree with the trial judge's analysis of Rochin and find, as did the trial judge, that nothing about the officer's action in this case "shocks the conscience." Indeed, the action of the officers can only be described as admirable. Their quick decision to call for medical assistance may very well be the reason that Ellis is able to prosecute this appeal. This contention of error is without merit.
¶ 15. Next, Ellis contends that the trial court erred in allowing the officers to testify that Officer Woods informed them that he needed their assistance because Ellis was fleeing and would not stop for him. Ellis contends that this testimony was hearsay and was highly prejudicial.
¶ 16. While Ellis argues that the officers' testimonies about his fleeing the scene left a bad impression on the jurors, we find that this specific testimony was simply offered to give the complete story of the incident and was not hearsay, as it was not offered to prove the truthfulness of the assertions. The testimonies arose as a result of the officers being questioned regarding the basis for their involvement in the case. More importantly though, the reason behind the initial stop has no bearing on the elements of the crime. Therefore, this contention of error is also without merit.
¶ 17. Lastly, Ellis contends that the bag of cocaine was improperly admitted because the necessary chain of custody was not established. He argues that a break in the chain of custody occurred in the handling of the bag of cocaine after it was removed from his mouth. This argument is based on two facts: neither Officer Woods nor the EMT that was attending to Ellis in the back of the ambulance testified at trial, and the driver of the ambulance, who was the only other person that saw the bag of cocaine after it was removed, testified that she did not see what Officer Woods did with it.
*674 ¶ 18. With respect to the burden of proof that must be shouldered by the proponent of the admissibility of evidence subject to a chain-of-custody challenge, the Mississippi Supreme Court has stated:
[T]he proponent must satisfy the trial court that there is no reasonable inference of material tampering with or (deliberate or accidental) substitution of evidence. If there is a reasonable inference of tampering or substitution, the proponent's proof is insufficient "to support a finding that the matter in question is what its proponent claims." This is so because, in such a case, a fair-minded jury may not reasonably have found the fact beyond a reasonable doubt.
Butler v. State, 592 So. 2d 983, 985 (Miss. 1991) (internal citations omitted). An appellate court disregards chain-of-custody objections when there has been "properly predicated, direct identification testimony." Id. at 985-86. In other words, a chain-of-custody issue exists only when "no witness makes a positive permissible identification of the object that it is what its proponent claims." Id. at 985.
¶ 19. In our case there was no direct testimony establishing the transfer of the bag of cocaine from Officer Woods to the evidence vault of the police department. However, all of the officers and the ambulance driver identified the bag shown to them at trial as the bag that was removed from Ellis's mouth. Officer Ray testified that he retrieved a bag from the evidence vault that bore Officer Woods's initials, badge number, and Ellis's case number and that this form of labeling was normal department procedure. Officer Ray took the bag to the crime lab for testing, and the crime lab identified the substance in the bag as cocaine.
¶ 20. Even though Officer Woods was not available to testify, there is little doubt that the State proved that the bag of cocaine which was removed from Ellis's mouth was in fact the same bag of cocaine that was removed from the evidence vault by Officer Ray and tested by the crime lab. Therefore, the State's proof was sufficient for the trial judge to find that there was no reasonable inference of tampering or substitution. Any break in the chain of custody goes to the weight of the evidence, not its admissibility. Fisher v. State, 481 So. 2d 203, 225 (Miss.1985). This contention of error is also without merit.
¶ 21. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF LESS THAN 0.1 GRAM OF COCAINE AND SENTENCE AS A HABITUAL OFFENDER OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PROBATION OR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
NOTES
[1] According to the officers, they used the Taser without the cartridge which contains probes that break the skin. The officers explained that the probes override all muscle control and incapacitate the suspect. When the Taser is used without the probes, the pain level is reduced to that of an electric shock, similar to the shock that emits from a cattle prod. The officers further explained that this type of use is less painful than using the Taser with the probes attached, as the pain lasts only as long as the Taser is firing and is in contact with the suspect.
[2] The driver's partner did not testify at trial.
[3] A forensic scientist at the crime lab confirmed that the bag contained cocaine. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3035791/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: MARY DEROCHE; In re: ERIC
DEROCHE,
Debtors,
No. 04-15258
MARY DEROCHE; ERIC DEROCHE, D.C. No.
CV-03-00463-EHC
Appellants,
OPINION
v.
ARIZONA INDUSTRIAL COMMISSION,
Appellee.
Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Argued and Submitted
October 17, 2005—San Francisco, California
Filed January 17, 2006
Before: Stephen Reinhardt and Sidney R. Thomas,
Circuit Judges, and Jane A. Restani,* Chief Judge,
Court of International Trade.
Opinion by Judge Thomas
*The Honorable Jane A. Restani, Judge, United States Court of Interna-
tional Trade, sitting by designation.
747
IN RE: DEROCHE 749
COUNSEL
Allan D. NewDelman, Esq., Roberta J. Sunkin, Esq., Allan D.
NewDelman, P.C., Phoenix, Arizona, for the appellant.
James S. Samuelson, Assistant Attorney General, Terry God-
dard, Attorney General, Phoenix, Arizona, for the appellee.
OPINION
THOMAS, Circuit Judge:
This case presents the question of whether Chapter 7 debt-
ors may recover, pursuant to state statute, attorneys’ fees
750 IN RE: DEROCHE
incurred in bankruptcy discharge litigation. We conclude that
attorneys’ fees are not available for litigating federal bank-
ruptcy issues, and we affirm the decision of the district court.
I
Eric and Mary DeRoche (collectively “DeRoche”) filed a
joint Chapter 7 bankruptcy petition on November 28, 1994, in
the District of Arizona. On December 30, 1994, the Arizona
Industrial Commission (“the Commission”) filed what it
termed a priority proof of claim, to which DeRoche promptly
objected. The Commission sought to recover sums paid to an
injured DeRoche employee from the state’s Special Fund,
which provides workers compensation benefits to workers
who are not covered by workers compensation insurance
when they are injured. The amount of the Commission’s
claim, initially only $22,421.52, has increased as the injured
worker has continued to receive benefits.
On March 17, 1995, the bankruptcy court discharged
DeRoche’s debts, except for the pending dispute with the
Commission. For the next seven years, the parties litigated
various issues related to whether or not the Commission’s
claim was also subject to discharge. The parties first disputed
whether the Commission’s claim qualified as an “excise tax”
— and thus potentially a priority, nondischargeable claim —
within the meaning of 11 U.S.C. § 507(a)(8)(E). In the end,
the bankruptcy court found that the claim was an excise tax
based on Camilli v. Industrial Commission of Arizona, 94
F.3d 1330 (9th Cir. 1996), issued while the DeRoche dispute
was pending. The bankruptcy court next inquired what “trans-
action” had triggered the tax. To qualify as a priority excise
tax, a tax must be based on “a transaction occurring during the
three years immediately preceding the date of the filing of the
petition.” 11 U.S.C. § 507(a)(8)(E)(ii). The Commission’s
claim did not depend on a single event easily identifiable as
the relevant “transaction”, but could arguably be linked to the
continuing series of benefit payments, the injury itself, or
IN RE: DEROCHE 751
even the injured worker’s application for benefits. Eventually,
after the dispute reached this Court, we held that the transac-
tion date was the date of injury, more than three years before
the bankruptcy petition. DeRoche v. Ariz. Indus. Comm’n (In
re DeRoche), 287 F.3d 751 (9th Cir. 2002). Thus, the Com-
mission’s claim had no priority status, and was subject to dis-
charge. Ultimately, on remand, the bankruptcy court entered
an order sustaining DeRoche’s objection to the Commission’s
proof of claim and finding that the claim was a general claim
subject to the general discharge order entered seven years
before.
On August 7, 2002, DeRoche filed an application for over
$30,000 in attorney’s fees incurred opposing the Commis-
sion’s priority claim. The bankruptcy court denied the appli-
cation, after holding hearings on November 14, 2002, and
January 22, 2003. After DeRoche filed a Notice of Appeal
and Referral to the Bankruptcy Appellate Panel on February
5, 2003, the Commission elected to have the appeal heard by
the District Court. The District Court denied the appeal on
January 30, 2004, without argument, and DeRoche timely
filed this appeal.
II
“It is the general rule in the United States that in the
absence of legislation providing otherwise, litigants must pay
their own attorney’s fees.” Christiansburg Garment Co. v.
EEOC, 434 U.S. 412, 415 (1978). “Congress has provided
only limited exceptions to this rule ‘under selected statutes
granting or protecting various federal rights.’ ” Id. (quoting
Alyeska Pipeline Co. v. Wilderness Soc’y., 421 U.S. 240, 260
(1975)). Thus, the Supreme Court has observed that “it would
be inappropriate for the Judiciary, without legislative guid-
ance, to reallocate the burdens of litigation.” Alyeska Pipeline
Co., 421 U.S. at 247.
[1] Consistent with this philosophy, we have held that,
absent bad faith or harassment, attorney’s fees are not recov-
752 IN RE: DEROCHE
erable in bankruptcy for litigating issues “peculiar to federal
bankruptcy law.” Fobian v. Western Farm Credit Bank (In re
Fobian), 951 F.2d 1149, 1153 (9th Cir. 1991). The Bank-
ruptcy Code does contain some fee provisions. See, e.g.,
Lamie v. United States, 540 U.S. 526, 529 (2004) (discussing
the statutory limitation on awards of professional fees). How-
ever, it does not contain any provisions that create a general
right for the prevailing party to be awarded attorney’s fees in
federal bankruptcy litigation. Thus, we have held that “[t]here
is no general right to recover attorney’s fees under the Bank-
ruptcy Code.” Renfrew v. Draper (In re Renfrew), 232 F.3d
688, 693 (9th Cir. 2000).
[2] One of the exceptions to the general rule is proceedings
based on a contract enforceable under state law or statute.
Fobian, 951 F.2d at 1153. As we have explained, “a prevail-
ing party in a bankruptcy proceeding may be entitled to an
award of attorney fees in accordance with applicable state law
if state law governs the substantive issues raised in the pro-
ceedings.” Ford v. Baroff (In re Baroff), 105 F.3d 439, 441
(9th Cir. 1997). Thus, in Christison v. Norm Ross Co. (In re
Eastview Estates II), 713 F.2d 443, 451 (9th Cir. 1983), we
awarded fees because the substantive legal question — the
legitimacy of the claim — was governed by California law,
which also authorized collection of attorney fees pursuant to
the contract at issue. However, we consistently have refused
to award fees when the substantive legal question was gov-
erned by federal bankruptcy law, rather than “basic contract
enforcement questions,” even when the underlying contract
contains an attorney fee provision enforceable under state
law. Fobian, 951 F.2d at 1153; see also Johnson v. Righetti
(In re Johnson), 756 F.2d 738, 740 (9th Cir. 1985) (denying
fees based on state contract provisions when the bankruptcy
proceeding “was predicated solely upon a federal statute and
California state law was not applied to any of the substantive
issues involved.”); Renfrew, 232 F.3d at 694 (“[I]f a divorce
decree provides for the payment of attorney’s fees, and state
law issues are litigated in the bankruptcy proceedings, attor-
IN RE: DEROCHE 753
ney’s fees are available, but only to the extent that they were
incurred litigating the state law issues.”).
III
[3] Given that background, we turn to the case at hand. In
this case, DeRoche properly concedes that the bankruptcy liti-
gation here addressed only issues of federal law, namely
whether or not the Commission’s claim was entitled to prior-
ity under federal bankruptcy law. A close review of the record
indicates that there were no substantive state law questions
involved in the litigation; only substantive federal law was at
issue.
With that finding, application of our clear and consistent
case law would seem to end the matter. However, DeRoche
contends that our precedent barring attorney’s fees does not
apply, because DeRoche seeks fees under an Arizona statute,
A.R.S. § 12-348, rather than a contract.1 DeRoche argues that
1
The statute provides in relevant part as follows:
§ 12-348. Award of fees and other expenses against the
state or a city, town or county; reduction or denial of award;
application; basis for amount of award; source of award; def-
initions
A. In addition to any costs which are awarded as prescribed
by statute, a court shall award fees and other expenses to any
party other than this state or a city, town or county which prevails
by an adjudication on the merits in any of the following:
1. A civil action brought by the state or a city, town or
county against the party.
2. A court proceeding to review a state agency decision pur-
suant to chapter 7, article 6 of this title or any other statute autho-
rizing judicial review of agency decisions.
3. A proceeding pursuant to § 41-1034.
4. A special action proceeding brought by the party to chal-
lenge an action by the state against the party.
754 IN RE: DEROCHE
because the statute protects individual citizens against unwar-
ranted litigation pursued by the state, it represents an impor-
tant state public policy that deserves more respect than
private-party contract arrangements for fee payments.
[4] The district court and bankruptcy court correctly
rejected this argument. As we have discussed, it is the sub-
stantive nature of the bankruptcy proceeding that controls.
Here, the Commission was seeking to vindicate what it
5. An appeal by the state to a court of law from a decision
of the personnel board under title 41, chapter 4, article 6.
6. A civil action brought by the party to challenge the seizure
and sale of personal property by the state or a city, town or
county.
B. In addition to any costs which are awarded as prescribed
by statute, a court may award fees and other expenses to any
party, other than this state or a city, town or county, which pre-
vails by an adjudication on the merits in an action brought by the
party against this state or a city, town or county challenging:
1. The assessment or collection of taxes or in an action
brought by this state or a city, town or county against the party
to enforce the assessment or collection of taxes.
2. The adequacy or regularity of notice of delinquent taxes.
3. The regularity of sales of property for delinquent taxes.
C. The court in its discretion may deny the award provided
for in this section or may reduce the award if it finds that any of
the following applies:
1. During the course of the proceeding the prevailing party
unduly and unreasonably protracted the final resolution of the
matter.
2. The reason that the party other than the state or a city,
town or county has prevailed is an intervening change in the
applicable law.
3. The prevailing party refused an offer of civil settlement
which was at least as favorable to the party as the relief ulti-
mately granted.
IN RE: DEROCHE 755
thought was its substantive federal bankruptcy right, and all
of the legal fees incurred by both sides were accrued in either
pursuit or defense of that action. State law does not, and can-
not, create a new federal right of attorney fee recovery in this
context.
We considered a similar issue in Johnson. In Johnson, the
debtor sought fees not under the parties’ contractual fee
agreement, which provided only that the creditor could
recover its fees, but under a California statute that equalized
the effect of such one-sided fee agreements by allowing either
party to recover fees if it prevailed in a subsequent lawsuit.
Despite this statutory expression of state public policy, we
found that “[w]hen, as here, federal and not state law gov-
erned the substantive issues involved in the [creditors’]
motion, the bankruptcy court should not have awarded attor-
ney’s fees pursuant to a state statute.” Johnson, 756 F.2d at
741.
[5] The character of the particular state statute is irrelevant
to this analysis. Our clear rule is that no fees are available
under state law for litigation of substantive federal bankruptcy
issues in bankruptcy court. There is no principled distinction
to be drawn from this rule for sui generis treatment of fee
claims based on fee-shifting statutes directed at state govern-
ments.
For these reasons, we affirm the judgment of the district
court.
AFFIRMED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2860563/ | <HTML>
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG><CENTER>NO. 03-9<A NAME="1">6</A>-00<A NAME="2">619</A>-CV</CENTER>
</STRONG>
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG></STRONG><CENTER><A NAME="3">Judi Bender Scruggs</A>, Appellant</CENTER>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER><A NAME="4">Texas Commerce Bank National Association, Administrator with Will Attached of the Estate</CENTER>
of Claude R. Scruggs, Deceased, and R. Al Leach</A>, Appellee</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><HR SIZE="3">
</STRONG></P>
<SPAN STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE COUNTY COURT OF<A NAME="5"></A> COMAL COUNTY<A NAME="6"></A></CENTER>
</STRONG></SPAN>
<P><SPAN STYLE="font-size: 11pt"><STRONG><CENTER>NO. 88-PC-8498<A NAME="7"></A>, HONORABLE C. W. DUNCAN, JR.<A NAME="8"></A>, JUDGE PRESIDING </STRONG></SPAN><STRONG></CENTER>
</STRONG></P>
<P><STRONG><HR SIZE="3">
</STRONG></P>
<STRONG>PER CURIAM</STRONG>
<BR WP="BR1"><BR WP="BR2">
<P> The parties have filed a joint motion to dismiss the appeal because they have compromised
and settled all claims and disputes between them. Tex. R. App. P. 42.1(a)(1). We grant the motion. </P>
<P> The appeal is dismissed. We also dismiss the motion for extension of time to file the record.</P>
<BR WP="BR1"><BR WP="BR2">
<P>Before Chief Justice Carroll, Justices Jones and Kidd</P>
<P>Dismissed on Joint Motion</P>
<P>Filed: November 6, 1997</P>
<P>Do Not Publish</P>
</BODY>
</HTML> | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4204277/ | FILED
NOT FOR PUBLICATION
SEP 18 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10370
Plaintiff-Appellee, D.C. No.
3:12-cr-00803-CRB-1
v.
CARLOS MICHAEL MARTINEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted September 14, 2017**
San Francisco, California
Before: KOZINSKI and FRIEDLAND, Circuit Judges, and ARTERTON,***
District Judge.
*
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 Honorable Janet Bond Arterton, United States District Judge for
the District of Connecticut, sitting by designation.
page 2
“To be entitled to a Franks hearing . . . , [Martinez] must first make a
substantial preliminary showing that the affidavit contained a misleading omission
and that the omission resulted from a deliberate or reckless disregard of the truth.
Second, he must demonstrate that had there been no omission, the affidavit would
have been insufficient to establish probable cause.” United States v. Kyllo, 37
F.3d 526, 529 (9th Cir. 1994). Martinez failed to show that Officer Ichige’s
omission—that the IP address was dynamically assigned—was misleading or done
in deliberate or reckless disregard of the truth. Moreover, had the affidavit
included this fact, it would have still supported probable cause in light of the
information that had been obtained from the internet service provider. The district
court committed no error in denying Martinez a Franks hearing.
AFFIRMED | 01-03-2023 | 09-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/3036077/ | FILED
NOT FOR PUBLICATION APR 06 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SARAH BABCOCK, AKA John Babcock, No. 09-35445
Plaintiff - Appellant, D.C. No. 2:07-cv-05073-FVS
v.
MEMORANDUM *
HAROLD CLARKE; RUBEN CEDENO;
JEFFREY A. UTTECHT; STEPHEN
SINCLAIR; S. FLEENOR; C. STERLIN;
and HAL SNIVELY, all individually and
in their official capacities,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, District Judge, Presiding
Submitted February 2, 2010 **
San Francisco, California
Before: HUG, SKOPIL and BEEZER, Circuit Judges.
*
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).
Ms. Sarah J. Babcock a/k/a John D. Babcock appeals from the district
court’s grant of summary judgment in favor of the defendants.
We review the district court’s grant of summary judgment de novo. Diruzza
v. County of Tehama, 323 F.3d 1147, 1152 (9th Cir. 2003). We have jurisdiction
under 28 U.S.C. § 1291. We affirm.
The facts of this case are known to the parties. We do not repeat them.
I
Babcock cannot succeed on his Religious Land Use and Institutionalized
Persons Act claim because he cannot establish that the prison’s requirements
substantially burden the exercise of his religion. See Warsoldier v. Woodford, 418
F.3d 989, 994 (9th Cir. 2005). A burden on the exercise of religion is substantial if
it substantially pressures an inmate “to modify his behavior and to violate his
[sincerely held religious] beliefs.” Shakur v. Schriro, 514 F.3d 878, 888 (9th Cir.
2008). Babcock fails to show how the requirement that he use his committed name
in conjunction with his legal name on correspondence and that he be referred to by
his committed name by prison staff constitutes a substantial burden on the exercise
of his religion.
II
2
Babcock also fails to make a valid Free Exercise Clause claim because
“allowing an inmate to use both his religious and committed names ‘is a reasonable
middle ground between absolute recognition of the plaintiff’s [religious name] and
the prison interests of order, security and administrative efficiency.” See Malik v.
Brown, 16 F.3d 330, 334 (9th Cir. 1994). Babcock points to no particular religious
observance that requires him to go by the name “Ms. Sarah.” Nor does he point to
any religion or religious belief that mandated his name change. Nor does he
demonstrate how the practice of his religion has been burdened by the requirement
that he use his committed name in prison communications.
Furthermore, even if Babcock’s name change were rooted in a sincerely held
religious belief, “allowing an inmate to use both his religious and committed
names ‘is a reasonable middle ground between absolute recognition of the
plaintiff’s [religious name] and the prison interests of order, security and
administrative efficiency.” Id. at 334.
III
Babcock’s claim that prison staff retaliated against him for exercising his
First Amendment rights must also fail because he cannot establish that the
defendants retaliated against him for exercising a protected right or that the
defendants’ actions served no legitimate penological purpose. See Barnett v.
3
Centoni, 31 F.3d 813, 816 (9th Cir. 1994). Babcock’s multiple warnings and
eventual infraction served the legitimate penological purpose of maintaining safety
and order in the prison. See Malik, 16 F.3d at 334.
IV
Babcock’s Equal Protection Clause claim fails because he cannot
demonstrate intentional discrimination—prison staff made efforts to deliver his
mail even when it was addressed to his legal name, as it did with regard to the
other prisoners. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
V
Babcock’s claim that forcing him to use his committed name is cruel and
unusual punishment in violation of the Eighth Amendment because it amounts to a
death threat also fails. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987)
(holding that threats alone do not violate the Eighth Amendment).
VI
Babcock’s remaining claims lack merit.
AFFIRMED.
4 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2441549/ | 3 A.3d 670 (2010)
COM.
v.
GRAHAM.
No. 742 MAL (2009).
Supreme Court of Pennsylvania.
August 4, 2010.
Disposition of Petition for Allowance of Appeal Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608753/ | 21 So. 3d 816 (2009)
MOHORN
v.
STATE, DEPT. OF CHILDREN AND FAMILIES.
No. 1D09-1841.
District Court of Appeal of Florida, First District.
November 3, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608785/ | 664 So. 2d 426 (1995)
Desmond L. KELLY
v.
Darrell W. SNEED, et al.
No. 95-C-2350.
Supreme Court of Louisiana.
December 8, 1995.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608804/ | 664 So. 2d 917 (1995)
Edwin H. KEWISH
v.
ALABAMA HOME BUILDERS SELF INSURERS FUND, et al.
AV93000618.
Court of Civil Appeals of Alabama.
March 3, 1995.
Rehearing Denied April 7, 1995.
Certiorari Denied June 30, 1995.
*919 Robert W. Lee, Jr. of Lee & Sullivan, P.C., Birmingham, for appellant.
Tom Burgess and Thomas S. Hale of London, Yancey, Elliott & Burgess, Birmingham, for appellees.
Alabama Supreme Court 1941048.
THIGPEN, Judge.
This is a workmen's compensation case.
In August 1992, Alabama Home Builders Self Insurers Fund, et al. (Fund), filed a complaint for declaratory judgment, seeking a declaration of its obligations in relation to an injury claimed by Edwin H. Kewish. The Fund is the insurance provider for Vulcan Plumbing & Heating Company, Inc. (Vulcan). The Fund alleged that Kewish was an employee of Vulcan, and that he gave notice of an on-the-job injury on or about July 20, 1992. The Fund asserted that a controversy existed regarding whether Kewish's injuries were sustained while acting in the line and scope of his employment. Kewish answered, denying that a controversy existed and counterclaiming for workmen's compensation benefits by alleging that he was injured on July 20, 1992, while engaged in the line and scope of his employment.
Following ore tenus proceedings, the trial court made these findings:
"[E]ven taking the evidence in the light most favorable to Mr. Kewish, the Court finds that the Defendant, Edwin H. Kewish, had deviated from the course of his employment at the time of the accident which caused his injuries. The accident occurred at a location which was neither going to nor coming from an area in which Mr. Kewish had reason to be in the course of his employment nor was it an area in which he might have been taking a short cut from one location to another."
Before denying any benefits to Kewish, the trial court concluded that the injuries sustained by Kewish "did not arise out of and were not sustained in the course of his employment." Kewish appeals from the judgment denying benefits on his workmen's compensation claim.
The only issue on appeal is whether the trial court erred in determining that Kewish's injuries did not arise out of, and were not sustained in, the course of his employment with Vulcan.
*920 The record on appeal includes numerous and massive trial exhibits, including detailed maps, surveys, large still photographs, and video footage of the accident scene, together with significant testimony regarding or in connection with these exhibits. The record discloses that the witnesses often physically indicated to the trial court specific points on these exhibits. It is difficult for an appellate court reviewing the record to ascertain the exact points the witnesses indicated to the trial court, which had the benefit of observing firsthand all of these exhibits and hearing the related testimony.
Kewish is a quadriplegic as a result of the accident. His testimony at the trial was by deposition. Although Kewish was the president of Vulcan, his role within the company was that of an on-site supervisor. Because the Fund asserts that Kewish was present at the site of the injury for personal reasons, some background regarding a dispute between Kewish and the Jefferson County Commission (County) concerning Kewish's property is necessary to understand the controversy in this case.
In 1989, Kewish had a disagreement with the County concerning its proposed sewer line extension. A substantial part of the sewer line would extend directly across Kewish's property near where a dam and pond, the accident site, are located. Kewish refused to sell the property to the County for the sewer line because he disagreed with the proposed route, contending that it would interfere with his plans to build a dam to replace the existing one, a lake, and a residential development on his property. Although the County initiated condemnation proceedings, the parties reached an agreement regarding a major change in the proposed route to accommodate Kewish's plan regarding the lake, the dam, and future development. The sewer line, however, still extended over a portion of Kewish's property.
The County accepted bids for the sewer line project, including an unsuccessful bid from Vulcan. In the process of preparing its bid package, Vulcan dug some "test holes" along the right-of-way of the proposed sewer line site. By way of a letter dated June 12, 1992, the County notified Vulcan that it was not qualified to bid. On July 20, 1992, the successful bidder, Ellard Contracting Company (Ellard) notified Vulcan that it would be entering Kewish's property to commence work on the project. Kewish testified that after receiving this call, and without any request from Ellard, he went to the project site to assure that any test holes dug by Vulcan had been properly filled and were safe to protect Vulcan from any potential liability. He testified that this was a normal procedure in accordance with his job duties. The Fund contends that Kewish's purposes for going to the site were strictly personal; i.e., to protect his interest in his own property surrounding the sewer line project.
Test holes were located on the sewer line easement owned by the County, and approximately 150 feet from the center line of the sewer line easement were Kewish's concrete dam and pond. Kewish testified that he and his wife owned the property on which the dam and pond were located, the property on the other side of the dam, and the property where the test holes were located. Record exhibits indicate that the dam was approximately 80 feet long, 10 feet high, and less than 2 feet wide. One could reach the dam from the sewer line easement only after walking over 130 feet through a wooded area to an embankment where the dam began.
Kewish testified that after inspecting some of the test holes on the project site, he walked through the wooded area to where the dam began and then walked across the dam and down into the dry pond bed. According to Kewish, he returned to the dam and as he stepped onto the dam to cross back over, his foot slipped and he fell. Kewish stated that he did not lose consciousness after his fall, and he admitted that he often searched for arrowheads near test sites. Kewish testified that he did not recall the last time he had been to the dam before his fall, and that he did not believe there were test holes on the other side of the dam. Kewish said he could not recall why he went across the dam or what he did when he got there. The following is Kewish's explanation regarding the location of his accident and the events immediately proceeding it, when questioned *921 by Horace O'Neal, who represented the Fund and Vulcan:
"Q [O'Neal]: But you cannot tell me why you crossed the dam and went about ten feet and turned around and came back across?
"A [Kewish]: No, sir.
"Q [O'Neal]: Or started coming back across?
"A [Kewish]: No, sir, I can't. The only thing I can say is, you know, the dam wasthe pond was dry.
". . . .
"A [Kewish]: It had been drained down, that's the first time I had seen it dry in several years, I'll say. Normally water is running over the dam and you can't walk on it because it's slick. And it was dry the dam was dry and there wasn't any water running over it and I just walked across it and looked, you know, looked at the dry damI mean the dry pond. And then when I came back, I guess my feet were wet and when I stepped on that thing, I may have had mud on my feet because I did get down into the drain section of the lake."
Kewish's nephew, Darrell Bell, found Kewish after his fall. Bell testified that Kewish was conscious, appeared coherent, and appeared to comprehend the seriousness of his accident. Bell testified that he made conversation with Kewish in an effort to keep him calm and awake until help arrived. He testified that Kewish was making random statements, including stating that he was there looking for arrowheads.
James Ellard, the vice president of Ellard, testified that there was no need to dig test holes for this project, that the only test hole he saw was filled, and that test holes posed no risk to his workers because they would be using heavy equipment to move several tons of earth. He also testified that, as a courtesy, his company notified Kewish that Ellard would be entering the property to begin the job. He further testified that Ellard had no plans to perform work on the site where Kewish was injured, and that Ellard had no reason to go near the dam during the construction of the sewer line or the preparation of the project site.
Billy Conn, a Vulcan employee, testified regarding the digging of eight test holes, and he indicated their location on an exhibit. Conn testified that to get to the dam, one must walk through the wooded area, and that performing work around the test holes did not require going down around the dam.
The testimony regarding Kewish's purpose in going to the job site was conflicting. There was testimony that an employee told Kewish to check the holes because Kewish had indicated to that employee that he did not know whether the holes had been filled. Kewish testified that he knew the holes had been filled but was concerned that sinking may have occurred. Kewish further testified that he went to check the holes as part of his normal job duties, to protect Vulcan from liability. Other testimony was that Ellard planned no work in the area of Kewish's injury and that even if tests holes were on the site, they posed no problems or risks in the project. Kewish's wife testified that Kewish had told her he was going to check the holes and "walk the line," a term which she said Kewish himself used; however, she did not indicate what that term meant. Kewish's neighbor testified that Kewish had told her that he had talked to the head of the construction job and that they had come to an agreement about putting a plastic barrier around the work site, and that he was going to the area to oversee that work.
Several reasonable conclusions could be reached from the conflicting testimony regarding Kewish's purpose in going to the site where he was injured. One reasonable view is that Kewish may have gone to the project site merely to check on his own property before any work was begun. Another reasonable conclusion is that Kewish's purpose in going to the project site may have been twofold, i.e., a business purpose and a personal purpose. Another reasonable conclusion is that although Kewish's purpose may have begun as a business purpose, he deviated from the business purpose to carry out a personal objective.
Our review in a workmen's compensation case is a two-step process. This court *922 must initially "look to see if there is any legal evidence to support the trial court's findings. If such evidence is found, then [we determine] whether any reasonable view of that evidence supports the trial court's judgment." Ex parte Eastwood Foods, Inc., 575 So. 2d 91, 93 (Ala.1991). Further, if the trial court's judgment is supported by one reasonable view of the evidence, it must be affirmed, "even if another, perhaps better reasoned, view of the evidence might have dictated a different outcome." Ex parte Veazey, 637 So. 2d 1348, 1349 (Ala.1993).[1]
Workmen's compensation laws are intended to serve a beneficent purpose and should be liberally construed in favor of the injured employee to accomplish this purpose. See Cement Products Co. v. Martin, 397 So. 2d 149 (Ala.Civ.App.1981). The recovery of benefits requires that the employee's injuries be caused by an accident (1) arising out of and (2) in the course of employment. Ala. Code 1975, § 25-5-31. The phrases "arising out of and "in the course of" are not synonymous, and both must be satisfied to bring an injury within the act. Wooten v. Roden, 260 Ala. 606, 71 So. 2d 802 (1954). Cases construing these terms should be decided upon their own facts and circumstances, and not by reference to some formula. Moesch v. Baldwin County Electric Membership Corp., 479 So. 2d 1271 (Ala.Civ.App.1985). Generally, the phrase "in the course of" refers to the time, place, and circumstances under which the accident took place. Massey v. United States Steel Corp., 264 Ala. 227, 86 So. 2d 375 (1955); Gold Kist, Inc. v. Jones, 537 So. 2d 39 (Ala.Civ.App.1988); Moesch, supra. The phrase "aris[ing] out of employment involves a causal relationship between the employment and the injury; that is, the job performance was the cause and source of the injury. Massey, supra; Gold Kist, supra. Accordingly, an employee's injury arises in the course of employment "when it occurs within the period of [the employee's] employment, at a place where [the employee] may reasonably be and while [the employee] is reasonably fulfilling the duties of [the employee's] employment or engaged in doing something incident to it." Massey, 264 Ala. at 230; 86 So.2d at 378; see also Moesch, supra. "The rational mind must be able to trace the resulting injury back to a proximate cause set in motion by the employment and not some other agency." Moesch at 1272.
The evidence regarding Kewish's purpose for being at the project site was conflicting. While the Fund contends that Kewish was at the site for strictly personal reasons, Kewish contends that his purpose for going to the site was to check the test holes, which was part of his employment. It is not the province of this court to resolve conflicting ore tenus evidence.
Assuming, arguendo, that Kewish's only purpose in going to the project site was directly related to his employment, the issue then becomes whether Kewish deviated from his employment or that business purpose. When an employee deliberately and substantially steps outside of his employment, this conduct constitutes a substantial deviation from his employment. McKnight v. Consolidated Concrete Co., 279 Ala. 430, 186 So. 2d 144 (1966). If an employee is injured while substantially deviating from his employment, the employee's injury is not a compensable injury because the injury does not arise out of and in the course of his employment. McKnight, supra. It is necessary to determine whether the employee's activity so deviated from his business purpose that he went beyond his course of employment by leaving his business purpose to carry out a personal purpose or objective. See Worthington v. Moore Electric Co., 563 So. 2d 617 (Ala.Civ. App.1990).
The trial court specifically found that Kewish "had deviated from the course of [his] employment," finding that the accident occurred at a location where Kewish had no reason to be in the course of his employment. The trial court further found that the accident did not occur in "an area [in] which he might have been taking a short-cut from one *923 location to other." Careful and thorough review of the record reveals evidence supporting the trial court's finding in this regard, and at least one reasonable review of that evidence supports the trial court's judgment. Veazey, supra.
Kewish's own testimony indicates that when he crossed the dam he was not fulfilling the duties of his employment, he was not engaging in something incidental to his employment, and there was no business or employment purpose intended. Even if one accepts Kewish's argument that he was performing his job, by his own testimony, it appears that he departed from that purpose when he walked through the wooded area to the dam where he was injured. The record discloses no reason for Kewish to be at the dam in the course of his employment.
Kewish also urges this court to apply the dual purpose or dual capacity doctrine to this case. This argument was also considered and rejected by the trial court. This doctrine applies where the employee is acting with a dual purpose; i.e., the employee's actions involve "`the performance of a service for the employer which would have necessitated a trip by someone if the employee had been unable to perform that service in connection with his personal journey.'" American Automobile Insurance Co. v. Hinote, 498 So. 2d 848, 850 (Ala.Civ.App.1986) (citation omitted). If the employer derives a benefit from the employee's actions while acting in a dual capacity, an injury to the employee during the performance of such acts may be found to have arisen out of and in the course of his employment, and thus, be compensable. Hinote, supra. This doctrine is generally applied in cases involving an employee's travel to and from the place of his employment. Regardless, that doctrine is inapplicable here. There is nothing in the record to indicate that Kewish's employer would receive any benefit from Kewish's crossing the dam, and nothing in the record indicates that the employer would have sent someone else across the dam if Kewish had not gone. The evidence is clear that crossing the dam was simply not related to Kewish's employment.
This court recognizes that Kewish has suffered a serious personal tragedy; nevertheless, there is legal evidence supporting the trial court's findings and judgment, and there is a lack of evidence to support Kewish's position. A reasonable view of that evidence requires that the judgment of the trial court be affirmed. Veazey, supra, and Eastwood, supra.
AFFIRMED.
YATES and CRAWLEY, JJ., concur.
ROBERTSON, P.J., and MONROE, J., dissent.
MONROE, Judge, dissenting.
I would reverse the trial court's judgment; therefore, I respectfully dissent.
I believe that the evidence before us shows that the dual purpose or dual capacity doctrine applies to Kewish's trip to the test site as a whole. The doctrine applies when the employee has performed a service for his employer that someone else would have had to perform if the employee had not been able to do it in connection with his personal errand. See American Automobile Insurance Co. v. Hinote, 498 So. 2d 848 (Ala.Civ.App. 1986). If the employee is injured while acting in this dual capacity, the injury may be found to have arisen out of the course of the employment and to be compensable, as long as the employer derived a benefit from the employee's actions. Id. The testimony in this case shows that if Kewish was not at the site solely for his employer's business, he was there at least for a dual purpose. His employer benefited from Kewish's inspecting of the test holes, and testimony indicated that this inspecting was a job that someone had to perform for the employer.
That brings us to the problem of Kewish's exact location when the injury occurred. Kewish's injury would not be compensable if he was injured while substantially deviating from his employment. See McKnight v. Consolidated Concrete Co., 279 Ala. 430, 186 So. 2d 144 (1966). However, the record gives no indication that Kewish deviated so much as to make his accident uncompensable. "It is well settled that work-connected activity goes beyond the direct services performed *924 for the employer and includes at least some ministration to the personal comfort and human wants of the employee." Gold Kist, Inc. v. Jones, 537 So. 2d 39 (Ala.Civ.App.1988).
"Such acts which are necessary to the life, comfort, and convenience of the employee while at work, though strictly personal to himself, and not acts of service are incidental to the service. Therefore, an injury sustained in the performance thereof is deemed to have arisen out of the employment."
Id. (Citation omitted.)
As Kewish correctly argues in his brief to this court, walking slightly away from the premises on a construction site to glance into a dry pond bed is the type of momentary, incidental satisfaction of a human curiosity that would fall within the Gold Kist "personal comfort" doctrine. Such a slight deviation from the course of employment as Kewish made when he looked into the dry pond bed, does not affect compensability. See 1 Arthur Larson, Workmen's Compensation for Occupational Injuries and Death, § 19.63 (1993).
The trial court did not correctly apply the law to the facts. In its judgment, the trial court found that Kewish "had deviated from the course of his employment at the time of the accident which caused his injuries." A mere finding that Kewish had deviated from his employment should not preclude his recovery of workmen's compensation. To preclude recovery, the trial court would have to have found that Kewish substantially deviated from his employment. A slight deviation from employment would not have affected Kewish's recovery.
Finally, the testimony indicated that even if Kewish deviated from his job duties to look into the dry pond bed, he had resumed his duties by the time he was injured. Kewish had stepped back up onto the dam when he slipped. The record reveals that Kewish needed to cross the dam to inspect other test sites.
I believe the only reasonable view of the evidence in this case is that Kewish was entitled to compensation. Therefore, I believe the trial court erred in holding that Kewish was not entitled to compensation. I would reverse.
ROBERTSON, P.J., concurs.
NOTES
[1] The burden of proof and the standard of review of this case are governed by the Workmen's Compensation Act, as it read before the amendments effective August 1, 1992. See Whitsett v. BAMSI, Inc., 652 So. 2d 287 (Ala.Civ.App.1994). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609037/ | 664 So.2d 320 (1995)
Henry Ellis PELT, P.E., Appellant,
v.
STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
No. 93-3372.
District Court of Appeal of Florida, First District.
December 11, 1995.
Henry Ellis Pelt, pro se.
*321 Thornton J. Williams & Marianne A. Trussel of Department of Transportation, Tallahassee, for appellee.
WENTWORTH, Senior Judge.
This is an appeal of a Public Employees Relations Commission order adopting findings of a hearing officer and concluding that the appellee Florida Department of Transportation (DOT) properly imposed a five-day suspension on its employee Henry Ellis Pelt, appellant.
Pelt was suspended for violation of DOT Rule 14-17.012(4)(a)20, Florida Administrative Code, prohibiting "the use ... or the possession of an unauthorized weapon or firearm on Department property or on the job site." The order finds no dispute as to the fact that Pelt possessed a handgun while traveling on DOT business with a railroad crossing inspection team in a rural wooded area. During a break, Pelt positioned an old television set against a nearby tree, removed a handgun from the agency vehicle, walked a short distance from the car, fired at the television set four or five times to test his new gun, and replaced it under the car seat.
Pelt was aware of the above cited agency rule and never asked for clarification, but said he believed he was allowed to carry a firearm at work because he had obtained a license under Section 790.06, Florida Statutes, which license stated:
This license authorizes you to carry a concealed weapon or firearm for lawful self-defense... . It does not authorize the use of such weapon or firearm. Lawful use is regulated by other provisions of Florida law.
Pelt has been a DOT employee for 29 years and at the time in question held a position as Professional Engineer Administrator in Tallahassee. His former supervisor, five years earlier, knew Pelt obtained his weapons permit during a period of time he worked in other areas. His present supervisor was not aware of the permit, and no supervisor ever knew that Pelt carried a firearm at work or discussed or authorized him to arm himself. A fellow employee on the inspection team led by Pelt did know that Pelt carried a gun. The only employees DOT had authorized to carry weapons were sworn law enforcement officers who served as weight inspectors.
Pelt argued that Section 790.33, Florida Statutes, preempts DOT from regulating the possession and use of firearms by employees, and that the agency rule should be construed to apply only to possession or use of firearms not authorized under Section 790.33. We are persuaded by the reasoning of the hearing officer herein as follows:
Section 790.33 is directed toward local governments' regulation of the conduct of its citizenry, not to an employer's regulation of the conduct of its employees. Sound policy reasons exist for allowing an employer, be it public or private, to regulate the conduct of its employees as it relates to the possession and use of firearms. These relate to the safety of its employees and others who may be injured by the weapons, and the exposure of an employer to liability for the actions of its employees. State agencies commonly regulate employee conduct in this area. See, e.g., Fla. Admin. Code Rule 4E-1.006(4)(v) prohibiting employees of the Department of Insurance from possessing unauthorized firearms while on duty; Rule 17.130-800 prohibiting employees of the Department of Environmental Regulation (now Department of Environmental Protection) from possessing or use of unauthorized firearms; and Rule 33-4.002(27) prohibiting employees of the Department of Corrections from the unauthorized possession of firearms while on duty. Indeed, the Commission has affirmed an agency's application of its rules of conduct in this area to discipline employees. See Davis v. Department of Corrections, 4 FCSR ¶ 159 (1989), and Incardona v. Department of Corrections, 3 FCSR ¶ 013 (1988).
....
... The Agency does not recognize Pelt's license as the requisite authorization to possess or use a firearm while on Agency, business... . [I]n a similar case wherein an employee was in possession of a firearm that had not been authorized by his employer, the Commission affirmed the discipline of that employee notwithstanding his State license to carry a concealed weapon. Davis v. Department of Corrections, 4 FSCR ¶ 159 (1989).
AFFIRMED.
*322 DAVIS, J., concurs.
ZEHMER, C.J., dissents with opinion.
ZEHMER, Chief Judge (dissenting).
Pelt was suspended from work as a disciplinary penalty for violating the provisions of rule 14-17.012(4)(a)20 in the manner described in the majority opinion. The events occurred on February 9, 1993. He has contended throughout this proceeding that he did not know or realize that the conduct with which he was charged constituted a violation of the Department's rule because the rule in question did not explicitly prohibit this conduct. I agree with Pelt that the rule forming the basis for the charge of misconduct is too ambiguous to sustain the appealed order and thus do not concur in affirmance of the order imposing discipline.
The rule does not indicate what kind of authorization is required,[1] or from whom authorization must be obtained, for Pelt to carry a weapon or firearm on the job.[2] Nor does the rule specify the nature of prohibited use of such firearm.[3] For this reason, the Department found it necessary to introduce evidence of the Department's policy regarding the meaning and enforcement of this rule and, further, argued that, if Pelt had merely inquired about that policy, he would have known that his conduct on the occasion under consideration was prohibited.
The Department's position begs the question, which is, Did the rule itself give Pelt adequate warning that his longstanding practice of carrying a weapon with him to work and his shooting at some debris on that day in February 1993 was prohibited conduct? Indeed, after this matter was commenced, the Department, effective October 18, 1994, substantially amended rule 14-17.012 to make it more explicit in many ways. Not only does the amended rule now set forth in detail definitions of proscribed conduct, section 14-17.012(4)(a)20 contains the following added provision:
An "unauthorized weapon" is any weapon for which the possessor thereof has not *323 previously obtained from the Secretary or his designee written authorization for its possession; during the employee's work hours; or on Department property; or on the job site at anytime.
This amendment cures the deficiency I find with the previous rule.
I do not agree that a disciplinary penalty may be imposed for violation of a rule whose meaning must be explained by evidence defining department policy for enforcement of the rule when that policy has not itself been made the explicit subject of the rule after compliance with the rule-making process. This is not a case questioning the agency's authority to regulate or prohibit firearms on the job; it involves only the sufficiency of the rule language to give Pelt adequate notice that his conduct was prohibited. While I do not suggest that the conduct here involved should be permitted or condoned, the Department may easily accomplish its objective by adopting a properly drafted rule, as it now has, that adequately notifies employees that any possession and use of a firearm on the job is prohibited and thus stands on its own without the need for explanatory testimony or further inquiry of the Department by the affected employees. The Department should not be permitted to impose discipline upon an employee, who acted in good faith without knowledge that he had engaged in prohibited conduct, based on the agency's after-the-fact explanation of the meaning of the rule. For these reasons, I dissent.
NOTES
[1] As of the date of the occurrence of this episode rule 14-17.012(4)20 referred only to "Use, Threatening Use or Possession of Unauthorized Weapon or Firearm." No further definition was contained in the rule. While section (4) of the rule set forth conduct standards and disciplinary action ranges, it provided that, "Definitions of these Conduct Standards are contained in Department Procedure 250-012-010-a." The definitions contained in sub-paragraph 20 of this publication were received in evidence without objection by Pelt and formed the basis for charging Pelt in this case.
[2] Pelt had obtained a permit to carry a concealed weapon from the secretary of state's office while working for the Department in dangerous areas. The hearing officer found that:
1. Henry E. Pelt has been employed by the Agency for twenty-nine years, and presently holds the supervisory position of Professional Engineer Administrator in Tallahassee. He has no disciplinary record. Pelt has held a license from the Department of State, Division of Licensing, to carry a concealed weapon, for many years... .
2. Pelt obtained the permit because he has been assigned to remote areas he considered to be dangerous. His supervisor at that time, John Cross, knew he had a permit to carry a concealed weapon. Pelt's present manager, Fred Wise, has supervised Pelt for approximately five years. Wise was not aware of Pelt's permit prior to the incident at issue. Neither supervisor ever knew that Pelt carried a firearm at work, discussed with Pelt his right to carry a firearm while at work, or authorized Pelt to arm himself. From conversations he had had with Pelt, Safety Coordinating Engineer Basil McKnight knew that he carried a gun.
[3] The hearing officer made the following findings of fact:
6. Pelt has had extensive training in the use of firearms and he was careful in its handling. He did not fire in the direction of the other team members. Clark [a member of the team] was surprised when he turned and saw Pelt firing. None of the team members, however, felt threatened. Clark believed that Pelt's actions were inappropriate. McNichols [a team member] described the conduct as crass. However, no one placed much importance upon it at the time it happened. It had no effect upon McNichols' working relationship with Pelt or the Agency, or upon Pelt's working relationship with other members of the team.
....
8. Pelt later admitted to Wise that the handgun was his and that he had a license to carry a concealed weapon. Pelt was aware of the Agency's rule regulating the possession and use of firearms, but believed that his State-issued permit allowed him to carry a firearm at work. He has never asked his supervisors for clarification of the rule, nor has he received any instruction in the area. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609059/ | 973 F.Supp. 270 (1997)
The COCA-COLA BOTTLING COMPANY OF NEW YORK, INC., Plaintiff
v.
LOCAL UNION 1035, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Defendant.
Civil No. 3:96CV1917 (PCD).
United States District Court, D. Connecticut.
August 26, 1997.
*271 Jon S. Berk, Gordon, Muir & Foley, Hartford, CT, Henry A. Platt, Ira Michael Shepard, Anessa Abrams, Schmeltzer, Aptaker & Shepard, Washington, DC, for Plaintiff.
Burton S. Rosenberg, Town Attorney's Office, Hamden, CT, for Defendant.
RULING ON PENDING MOTIONS
DORSEY, Chief Judge.
Plaintiff ("Coca-Cola") seeks to vacate two arbitration awards pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq. Defendant Local Union 1035, (the "Union") counterclaims to confirm the awards. Coca-Cola moves for judgment on the pleadings. The Union moves for summary judgment on its counterclaim. For the reasons which follow, both awards are affirmed.
I. BACKGROUND FACTS
Victor M. Almonte ("Almonte") and Thomas Fiasconaro ("Fiasconaro") were general laborers at Coca-Cola's East Hartford, Connecticut warehouse. On August 18, 1995, Almonte and Fiasconaro engaged in an altercation on the job. During Coca-Cola's investigation of the incident, written statements were obtained from Almonte, Fiasconaro and witnesses. Almonte stated that Fiasconaro grabbed him, that he merely pushed Fiasconaro away, and that Fiasconaro came after Almonte with a pallet board. Almonte did not mention that he had grabbed a roll of shrink wrap or that he threw a punch at Fiasconaro. In subsequent meetings with the Warehouse Manager and the Union Business agent, Almonte and Fiasconaro denied that there was a fight or physical contact between them, claiming it was only a verbal argument. Concluding that Almonte and Fiasconaro were involved in a physical fight, that they were both dishonest when they denied that there was any physical contact, and that Almonte falsified his written statement by indicating that Fiasconaro choked him and he merely pushed him away, the Company terminated Almonte and Fiasconaro for fighting, dishonesty and falsification of records.[1]
*272 The Union grieved both discharges pursuant to the controlling collective bargaining agreement ("CBA"). The Almonte arbitrator concluded that Coca-Cola did not have just cause to terminate Almonte's employment and ordered him reinstated without back pay or benefits. The Fiasconaro arbitrator found that Coca-Cola did not have just cause to discharge Fiasconaro, but that it did have just cause for a lesser penalty. The arbitrator ordered him reinstated with no break in seniority, but without back pay or other benefits.
Coca-Cola, in this action, seeks to vacate the arbitrators' awards[2] which the Union seeks to affirm. For the reasons which follow, the awards are affirmed.
II. DISCUSSION
A. Standard of Review
Review of a labor arbitration award is limited. "[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision." United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 371, 98 L.Ed.2d 286 (1987). The arbitrator's construction was bargained for; and so far as the arbitrator construed the contract, courts may not overrule because their interpretation of the contract differs. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424 (1960). An award is legitimate as long as it "draws its essence from the collective bargaining agreement." Id. at 597, 80 S.Ct. at 1361.
An arbitrator is not granted limitless power. Leed Architectural Products, Inc. v. United Steelworkers of America Local 6674, 916 F.2d 63, 65 (2d Cir.1990). An arbitrator's power is limited to the contractual powers conferred by the CBA. Id.
This standard applies to substantive findings and remedies. An arbitrator "may not impose a remedy which directly contradicts the express language of the collective bargaining agreement." Bruno's, Inc. v. United Food and Commercial Workers Int'l Union, Local 1657, 858 F.2d 1529, 1531 (11th Cir. 1988). The arbitrator's informed judgment is used in fashioning remedies, but does not permit the dispensing of "his own brand of industrial justice." Enterprise Wheel & Car, 363 U.S. at 593, 80 S.Ct. at 1358.
B. Analysis
The Union claims that neither arbitrator's findings exceeded their contractual authority. Article IX.A of the CBA provides for final and binding arbitration of unresolved grievances:
The decision of the impartial arbitrator ... shall be final and binding on all parties. The arbitrator shall have no power to add to, modify or delete any provision of this agreement and his decision shall be limited to the intent and purpose of the articles contained in this Agreement.
The CBA contains three provisions relating to the termination of employment.
*273 Article VII.A., Section 1. The right to discharge employees, with just cause, shall continue to be at the discretion of the Employer. In all cases involving discharge or suspension of an employee, the Company agrees to notify the employee in writing, stating the reasons therefore. Such written notice shall be given to the Steward and a copy mailed to the Local Union office within one (1) working day from the time of discharge or suspension.
(emphasis added).
Article VII.A., Section 3. In respect to discharge, the Employer agrees to give at least one (1) warning notice of infraction of rules or of specific complaint, in writing, with copy to the employee, Steward and Local Union office, except when discharge [is] for the following reasons:
(1) dishonesty; ...
(8) falsification of any Company record....
Article XIX.A. Management Rights. The Union and the Employees agree that the right to operate and manage the business and the affairs of the Company, the right to select and direct the working forces, and the right to control and direct the use of its equipment, facilities and properties are vested exclusively in the Company. These rights include, without being limited to, the right ... to ... discipline, discharge ... employees ...; provided, however, that none of these rights shall be exercised by the Company contrary to any specific provision of this Agreement ...
(emphasis added).
The Union argues that Article VII.A., Section 1 requires "just cause" for all discharges and must be read in conjunction with Article VII.A., Section 3, i.e., that Coca-Cola may not terminate an employee for any of the enumerated offenses unless it has just cause to do so. It asserts that this is the interpretation of the CBA of both arbitrators and as the arbitrators interpreted the CBA in the awards, they did not exceed the scope of their authority.
Coca-Cola contends that the just cause required for terminations includes the enumerated offenses as defined and limited by Article VII.A., Section 3. The Almonte arbitrator found that Almonte was dishonest and falsified his written statement, and the Fiasconaro arbitrator found that Fiasconaro was engaged in a fight and was dishonest. Therefore, Coca-Cola claims that the arbitrators found that the employees had committed acts that constituted just cause for termination. Thus Coca-Cola argues that having made these findings, the arbitrators' actions are not drawn from the contract.
Coca-Cola simply urges a different contract interpretation than that made by the arbitrators. Even if there were serious doubts as to the interpretations, they would not be within the court's scope of review.
1. Almonte Award
The Almonte arbitrator concluded:
Almonte's dishonesty or `falsification' of his written statement is not just cause for discharge, however. The provisions of Article VII, when read in context, pertain to employee conduct in the course of performing the employee's job not to conduct in the course of an investigation into unrelated allegations of rule violations. Although the Company is correct that dishonesty encompasses lying as well as theft, Article VII, Section 3(1) appears targeted to lying, theft or other dishonesty in performing one's job.
Even assuming the provisions on dishonesty and falsification apply to conduct in the course of a Company investigation, in the past the Employer has only terminated employees under these provisions for stealing Company products. Almonte's dishonesty was not as serious as the theft of company products and does not warrant the same consequence.
(Almonte Award at 16) (emphasis added). Implicit in this finding is that a "just cause" requirement must be read into Article VII.A, Section 3(1), i.e., that just cause exists only when the dishonesty or falsification takes place in the employee's course of performing his job.[3]
*274 Super Tire Engineering Co. v. Teamsters Local Union No. 676, 721 F.2d 121 (3d Cir.1983), cert. denied, 469 U.S. 817, 105 S.Ct. 83, 83 L.Ed.2d 31 (1984), is similar to the present case. In Super Tire, the employee was dismissed for drinking alcoholic beverages during working hours. Id. at 122. Like the present case, the CBA provided that no employee could be discharged without just cause. Id. It also listed seven causes for immediate dismissal, including "proven drinking during working hours." Id. The arbitrator held that the causes tor immediate dismissal had to be read in pari materia with the "just cause" requirement. Id. at 123. He concluded that there was no just cause for dismissing the employee because he had not been specifically warned that he would be immediately discharged for such conduct. Id. Taking into account his lengthy work history, the lack of a specific warning, and a prior infraction, the arbitrator lessened the punishment from discharge to four months' suspension without pay. Id. The district court vacated the award. The Third Circuit noted that there was no language in the collective bargaining agreement which foreclosed an inference that the "just cause" and "immediate dismissal" clauses should be read in pari materia. Id. at 124.[4] It noted that "[b]ecause the arbitrator held the specific dismissal provision subject to an overall just cause provision, he then was free to determine whether there was just cause for dismissal, applying his expertise and the law of the shop." Id. at 125. Therefore it was held that the arbitrator's award did draw its essence from the contract and was sustained. Here, once the arbitrator determined that the "just cause" provision modified the "immediate dismissal" provision, the arbitrator was free to determine whether there was just cause for the dismissal.
Accordingly, it cannot be said that the arbitrator's award does not draw its essence from the agreement and the Almonte award is affirmed.
2. Fiasconaro Award
Likewise, the Fiasconaro award implicitly reads a "just cause" requirement into Article VII.A., Section 3(1). The arbitrator reviewed all the facts and circumstances surrounding the altercation and Fiasconaro's subsequent dishonesty. In regards to the fighting, the arbitrator found that Fiasconaro was not the aggressor, and that "his failure to back away from an angry co-worker is not in itself sufficient cause for discharge." (Fiasconaro Award at 8.) As to the dishonesty, the arbitrator found "[t]he grievant's ostensible recantation of his truthful written statement was so transparent and lacking in guile that it cannot be regarded as a serious effort to deceive the employer." (Id. at 9.) The arbitrator accordingly found that Coca-Cola lacked just cause to discharge Fiasconaro. (Id.) The arbitrator implicitly concluded that the "just cause" requirement had to be read in conjunction with Coca-Cola's right to discharge for dishonesty and fighting.
Moreover, the Fiasconaro arbitrator had the authority to modify Coca-Cola's penalty on Fiasconaro. The arbitrator ruled that Coca-Cola had just cause to impose a lesser penalty than discharge and ordered a *275 lesser penalty, reinstatement with no break in seniority, but without back pay or other benefits. Coca-Cola's Article XIX.A right to discipline and discharge cannot be exercised contrary to any specific provision of the agreement. Article VIIA, Section 5 provides that "[s]hould it be proven that an injustice has been done in discharging an employee ... the arbitrator may order the employee reinstated in his last position without an award of pay for time lost." Therefore, the arbitrator's modification of the penalty is not outside of the scope of the CBA.
Coca-Cola points to authority which it claims support its position that the arbitrator in the Fiasconaro award went beyond the scope of her authority. In Hill v. Staten Island Zoological Society, Inc., 1996 WL 527332 (S.D.N.Y. Sept.16, 1996), the arbitrator modified a discharge into a thirty-day suspension for an employee who had been terminated for dishonesty, as the arbitrator found no just cause for termination. Hill, 1996 WL 527332 at *2. As in this case, the CBA provided that management had the exclusive right to discipline or discharge. Id. The court concluded that, as the Zoo had the exclusive right to discipline its employees, the arbitrator exceeded his scope of authority under the collective bargaining agreement. Id. at *3. The court concluded that the modification did not "draw its essence" from the agreement "because the [a]greement does not contemplate either explicitly or implicitly that the arbitrator would be granted such leeway in her decision making" However, in the present case, Article VII.A., Section 5 arguably authorizes such leeway. Therefore, Hill does not support Coca-Cola's assertion.
Coca-Cola's reference to Bruce Hardwood Floors v. UBC, Southern Council of Industrial Workers, Local Union No. 2713, 103 F.3d 449 (5th Cir.1997) is unavailing. There, an employee was discharged pursuant to a CBA for fabricating a story as to her need for time off. Bruce Hardwood, 103 F.3d at 450. The arbitrator held that the employer should have applied progressive discipline, rather than immediate discharge. Id. at 451. The district court enforced the award. Id. at 451. On appeal, the arbitrator was found to have gone beyond the CBA because "immoral conduct," which included lying, was grounds for immediate discharge. Id. at 452. However, in Bruce Hardwood, there is no mention of a "just cause" provision in the CBA. Thus, once the employee was found to have committed an enumerated offense, no further analysis by the arbitrator was permitted.
Coca-Cola also points to Bruce Hardwood for the proposition that the Fiasconaro arbitrator exceeded her authority by modifying the penalty. In Bruce Hardwood, the arbitrator had reduced the discharge to a ten-day suspension. Bruce Hardwood, 103 F.3d at 451. Like Hill, however, there is no mention made by the court of a clause which specifically grants authority to the arbitrator to modify a discharge or suspension, as there is in the instant case.
Accordingly, the Fiasconaro arbitrator did not exceed his authority in either reading the "just cause" provision in conjunction with the "immediate dismissal" provision, nor in modifying the punishment imposed. The Fiasconaro award is affirmed.
III. CONCLUSION
Accordingly, the Union's motion for summary judgment (docs. 29 and 33[5]) is granted. Coca-Cola's motion for judgment on the pleadings (doc. 27) is denied.
SO ORDERED.
NOTES
[1] The arbitrator in the Almonte arbitration found that Coca-Cola did not terminate Almonte for fighting, but rather only for dishonesty and falsification of records. (Almonte Award, September 6, 1996, at 14.) The arbitrator in Fiasconaro, interpreting the same discharge notice, found that the discharge was for the three stated reasons. (Fiasconaro Award, November 1, 1996, at 8 n. 2.) The conflict is immaterial, as Coca-Cola does not challenge the Almonte arbitrator's factual findings. Furthermore, Coca-Cola dropped the claim that Fiasconaro had falsified company records, after determining that Almonte, but not Fiasconaro, had submitted a false written statement.
[2] Coca-Cola's motion for judgment on the pleadings was untimely. A motion for judgment on the pleadings is to be filed at the close of the pleadings. See Fed.R.Civ.P. 12(c). The Union has not yet filed an answer to the complaint, and thus the pleadings cannot be considered closed. Where defendant fails to answer, a motion for default judgment under Fed.R.Civ.P. 55 is proper, rather than a motion for judgment on the pleadings. Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1367 (2d ed. 1990). Were the motion for judgment on the pleadings the only dispositive motion on file, it would be denied without prejudice as improper. However, the motion for summary judgment on the Union's counterclaim is fully briefed and addresses the same issues as the motion for judgment on the pleadings. Because the motion for summary judgment is granted and the arbitration awards are affirmed, the motion for judgment on the pleadings will be treated as moot and denied.
[3] The arbitrator's conclusion that Article VII, Section 3(1) was targeted to lying, theft or dishonesty in the performance of one's job may also be read to adopt a narrow interpretation of the term "dishonesty" rather than applying the just cause provision to the enumerated offense. If that were the case, it cannot be said that, in the context of the agreement, this is not a reasonable interpretation of the term.
[4] Coca-Cola asserts that in the present case, the language in Article IX.A, which states that an arbitrator may not "add to, modify or delete" provisions of the agreement, prevents the arbitrator from reading the "just cause" clause as modifying the "immediate dismissal" provisions. The Second Circuit has noted that such a "zipper clause" is a "pragmatic restatement" of the standard of review previously stated in Section II.A. of this ruling. Leed Architectural Products, 916 F.2d at 66. It does not prevent interpretation of the contract.
Coca-Cola also argues that management's exclusive right to discipline and discharge prevents the arbitrator from reviewing its doing so. However, the CBA provides that this right cannot be exercised in violation of any specific provision of the agreement. The "just cause" provision may be read in conjunction with that right, therefore, permitting the management such an exclusive right subject to the discharge being for just cause. See Eberhard Foods, Inc. v. Handy, 868 F.2d 890, 892 (6th Cir.1989) (agreement providing both that employer had sole discretion to discharge and that employee could not be discharged without just cause did not preclude arbitrator review of employer-imposed sanction).
[5] The motion for summary judgment is mistakenly docketed twice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608777/ | 21 So. 3d 955 (2009)
PARISH of IBERVILLE SALES TAX DEPARTMENT
v.
CITY of ST. GABRIEL, Louisiana.
No. 2008 CA 1780.
Court of Appeal of Louisiana, First Circuit.
July 22, 2009.
Russell Stutes, Jr., Lake Charles, LA, for Plaintiff/Appellee, Parish of Iberville Sales Tax Dept.
*956 L. Phillip Canova, Jr., Plaquemine, LA, for Defendant/Appellant, City of St. Gabriel.
Before CARTER, WHIPPLE, PARRO, KUHN, GUIDRY, PETTIGREW, DOWNING, GAIDRY, McDONALD, McCLENDON, HUGHES, and WELCH, JJ.
HUGHES, J.
In this litigation addressing the validity of a municipal sales tax ordinance, the district court issued a permanent injunction against a city, enjoining the collection of the tax. For the reasons that follow, we reverse the district court judgment and dissolve the permanent injunction.
FACTS AND PROCEDURAL HISTORY
On April 18, 1996 the mayor and aldermen of the City of St. Gabriel passed a resolution calling for a special election to be held July 20, 1996 to authorize the city to collect a 1 % sales and use tax. The tax was approved in a special election held on July 20, 1996 and thereafter became St. Gabriel Ordinance 1996-10. The city's right to collect this tax was challenged in a suit brought by several local chemical companies, and in due course, the district court upheld the tax. On review by this court in Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, 98-0935 (La.App. 1 Cir. 4/1/99), 740 So. 2d 147,[1]writ granted, 99-1223 (La.5/28/99), 743 So. 2d 676 (application for certiorari dismissed by the parties on October 13, 1999), this court held that the tax imposed by Ordinance 1996-10 exceeded the then maximum limit of 4 % for sales and use taxes, as set forth in LSA-R.S. 33:2721.6(A)(2), and was therefore unlawful.[2]
Thereafter, in a settlement agreement, the parties agreed that the city would collect only that portion of the tax authorized by Ordinance 1996-10 that did not exceed the 4 % statutory limit, which portion was 1/3 %. Accordingly, on November 18, 1999, the city passed Ordinance 1999-3 to "roll back" the 1 % sales and use tax levied by Ordinance 1996-10 to the rate of 1/3 %.
Effective July 1, 1999, the legislature amended LSA-R.S. 33:2721.6(A)(2) in 1999 La. Acts, No. 679, § 1, to increase the statutory maximum rate of sales and use taxes set forth therein from 4 % to 5 %. Thereafter, in 2006, the Parish of Iberville passed an additional 1 % sales and use tax, which was approved by the voters. This tax was specified as being implemented in 1/3 % increments, with 1/3 % levied beginning January 1, 2007, another 1/3 % levied beginning January 1, 2008, and the full 1 % levied beginning January 1, 2009. This tax was further designated to be allocated between the parish and municipal governments of Iberville Parish as follows: Iberville Parish, 52.4541 %; City of Plaquemine, 23.6507 %; City of St. Gabriel, 8.3903 %; Town of White Castle, 6.5153 %; Village of Maringouin, 4.2253 %; Village of Rosedale, 2.5211 %; and Village of Grosse Tete, 2.2432 %.
On November 15, 2007, St. Gabriel adopted Ordinance 2007-0001-1155, "rescinding" Ordinance 1999-3, ratifying all provisions of Ordinance 1996-10, and declaring that Ordinance 1996-10 "remain[s] in full force and effect as of its date." Ordinance 2007-0001-1155 was further declared *957 to become effective immediately upon the signature of the mayor. St. Gabriel Mayor George L. Grace, Sr. signed the ordinance on the same date, and in December of 2007 he requested the Iberville Parish sales tax collector to begin collecting the full 1 % sales and use tax levied by Ordinance 1996-10.
On December 13, 2007, the instant suit was filed by the Parish of Iberville Sales Tax Department ("Iberville Sales Tax Department") seeking to enjoin St. Gabriel's collection attempts. The city responded by filing a petition for nullity of judgment,[3] contending the decision rendered by this appellate court in Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, supra, should be vacated and set aside.
Following a hearing on the issue of injunctive relief, the district court ordered, adjudged, and decreed that a permanent injunction issue, restraining, enjoining, and prohibiting the City of St. Gabriel from requesting or demanding that the Iberville Sales Tax Department collect the tax levied by Ordinance 1996-10, and ordering that the Iberville Sales Tax Department continue to collect the tax in accordance with Ordinance 1999-3. St. Gabriel has appealed this judgment, asserting the following assignments of error: (1) St. Gabriel is authorized by the constitution and applicable statutes to impose the tax as per Ordinance 1996-10 and it was error for the district court to grant an injunction in favor of the Iberville Sales Tax Department; (2) the St. Gabriel tax does not exceed any constitutional or statutory cap or limitation as a matter of law, and it was error for the district court to imply that the St. Gabriel tax has done so; and (3) Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, supra, was incorrect as a matter of law and should have been recognized as not binding on the district court.
DISCUSSION
Local governing authorities in this state are empowered to levy and collect sales and use taxes by Louisiana Constitution, Article VI, Section 29, which provides, in pertinent part:
(A) Sales Tax Authorized. Except as otherwise authorized in a home rule charter as provided for in Section 4 of this Article, the governing authority of any local governmental subdivision[[4]] or school board may levy and collect a tax upon the sale at retail, the use, the lease or rental, the consumption, and the storage for use or consumption, of tangible personal property and on sales of services as defined by law, if approved by a majority of the electors voting thereon in an election held for that purpose. The rate thereof, when combined with the rate of all other sales and use taxes, exclusive of state sales and use taxes, levied and collected within any local governmental subdivision, shall not exceed three percent.
(B) Additional Sales Tax Authorized. However, the legislature, by general or by local or special law, may authorize the imposition of additional sales and use taxes by local governmental subdivisions or school boards, if approved by a majority of the electors voting thereon in an election held for that purpose.
A sales and use tax within the contemplation of LSA-Const. art. VI, § 29(A) is self-executing by the local governmental taxing authority, although the *958 constitution caps that authority at 3 %. See Circle Food Stores, Inc. v. City of New Orleans, 620 So. 2d 281, 283 (La. 1993). Any local governmental sales and use taxes that exceed 3 % are invalid and unconstitutional unless authorized by the legislature and approved by the voters as required by LSA-Const. art. VI, § 29(B). See Reed v. City of New Orleans, 593 So. 2d 368, 371 (La.1992).
Additional sales and use taxes authorized by the legislature under LSA-Const. art. VI, § 29(B) include those at issue herein: LSA-R.S. 33:2711, granting taxing power to municipalities, and LSA-R.S. 33:2721.6, granting taxing power to the governing authority of any parish or any school board. At the time Ordinance 1996-10 was enacted, these statutes provided in pertinent part as follows:
§ 2711. Tax authorized; rate
A. Any incorporated municipality[[5]] of the state is hereby authorized to levy and collect a sales and use tax not in excess of two and one-half percent as hereinafter set forth:
(1) One and one-half percent as authorized by Act No. 722 of the 1974 Regular Session of the Louisiana Legislature; and
(2) Except in those municipalities in the parishes of Concordia, Catahoula, LaSalle, Caldwell, Franklin, and Tensas, an additional one percent sales and use tax, authorized by Article VI, Section 29(B) of the Constitution of Louisiana, which one percent sales and use tax shall be in addition to all other sales and use taxes which any incorporated municipality is authorized to levy as of the effective date of this Act.
However, the ordinance imposing the tax shall be adopted by the governing authority of the incorporated municipality only after the question of the imposition of the tax has been submitted to the qualified electors of the incorporated municipality at an election conducted in accordance with the general election laws of the state of Louisiana, and a majority of those voting in the election shall have voted in favor of the proposition to impose such additional sales and use tax.
* * *
§ 2721.6. Additional sales and use tax authorized
A. (1) In addition to any other authority granted by a home rule charter or otherwise, the governing authority of any parish or school board may levy and collect an additional tax upon the sale at retail, the use, the lease or rental, the consumption, and the storage for use or consumption of tangible personal property and on sales of services as defined by law if approved by a majority of electors voting therein in an election held for that purpose.
(2) The rate thereof, when combined with the rate of all other sales and use taxes, exclusive of state sales and use taxes and law enforcement district sales and use taxes levied and collected within any parish or municipality, shall not exceed four percent. Any parish or school board levying or presently authorized to levy an additional sales and use tax which exceeds the four percent level described above shall not be authorized by this Section to levy an additional sales tax.
*959 B. In accordance with the provisions of Section 29(B) of Article VI of the Constitution of Louisiana, the additional sales and use tax may exceed the limitation found in Section 29(A) of Article VI of the Constitution of Louisiana by the amount authorized herein.
(Emphasis added.)
In Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, the sole issue before this court was whether LSA-R.S. 33:2721.6(A)(2)'s statutory limit on the total rate of all sales and use taxes "collected within any parish or municipality" limited the amount of sales and use taxes collectable by the City of St. Gabriel; the court held that it did. Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, 98-0935 at p. 5, 740 So.2d at 150. A dissent to the majority opinion was authored by Chief Judge Carter, stating:
LSA-R.S. 33:2721.6 limits the authority of parish government bodies and school boards, but not municipalities. The provision of Section A(2) "within any parish or municipality, shall not exceed four percent," in my opinion, is not a limit on municipalities, but is only a limit on a parish governing body or school board. This is former demonstrated by the following language of the statute which provides, "Any parish or school board levying or presently authorized to levy an additional sales and use tax which exceeds the four percent level described above shall not be authorized by this Section to levy an additional sales tax." Clearly, municipalities are not prevented from exceeding the four percent level.
(Emphasis added.)
After careful re-examination of this issue in connection with the instant appeal, we believe the majority opinion rendered in Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace was incorrect, and we agree with the rationale expressed in the dissenting opinion.
Municipalities are authorized by LSA-R.S. 33:2711 to impose sales and use taxes not to exceed 2 ½ %, in addition to those allowed by LSA-Const. art. VI, § 29(A). While LSA-Const. art. VI, § 29(A) authorized sales and use taxes are limited to 3 % "when combined with the rate of all other sales and use taxes, exclusive of state sales and use taxes, levied and collected within any local governmental subdivision," LSA-R.S. 33:2711 sales and use taxes are only limited by the express language of the statute from being "in excess of two and one-half percent." However, no limitation with respect to "combined" sales and use taxes vis-a-vis other local governmental entities is contained within LSA-R.S. 33:2711. Although Paragraph(C) of LSA-R.S. 33:2711 sanctions intergovernmental agreements between a municipality, school boards, parishes, municipalities, and special taxing districts to provide for the "collection, sharing, and levy of, and exemptions from, any taxes authorized" by LSA-R.S. 33:2711, there is no statement in the statute requiring that the 2 ½ % sales and use taxes that can be levied by municipalities be less than a certain combined total that takes into account taxes levied by all other local taxing entities.[6]
*960 This is in distinct contrast with the limitations imposed on parishes and school boards by LSA-R.S. 33:2721.6, which authorizes the collection of sales and use taxes, in addition to those authorized by Article VI, § 29(A), by the "governing authority of any parish or school board." The amount of sales and use taxes a parish or school board can levy is limited by Paragraph (A)(2) of LSA-R.S. 33:2721.6 to no more than 4 % "when combined with the rate of all other sales and use taxes, exclusive of state sales and use taxes and law enforcement district sales and use taxes levied and collected within any parish or municipality." Although Paragraph (A)(2) references municipalities, it does so only in delineating the limitation on parish or school board taxes. The limitation in Paragraph (A)(2) is expressly directed to the tax authorized in Paragraph (A)(1), which applies only to a parish or school board.
Clearly, LSA-R.S. 33:2711 contains no similar limitation. The 2 ½ % maximum tax limit contained in LSA-R.S. 33:2711 is available entirely to a municipality without reference to sales and use taxes imposed by other local governmental entities. There are no ambiguities in this language, and it should be applied as written.
We acknowledge 1998 Senate Resolution No. 42 and 1998 House Resolution No. 58, which stated that "R.S. 33:2721.6 is the latest expression of the legislature" and further expressed the intent that in enacting LSA-R.S. 33:2711(A)(2) the rate of the sales and use tax authorized by Section 2711(A)(2) "when combined with the rate of all other sales and use taxes, exclusive of state and law enforcement district sales and use taxes, levied and collected within any parish or municipality shall not exceed four percent unless authorized by special legislative enactment."
In evaluating the interpretative significance of the 1998 resolutions, we agree with the analysis employed by Judge (now Justice) Weimer in his Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace concurrence, wherein he emphasized the concept of separation of powers and the vesting of that power in three branches of government: the executive branch, which enforces the law; the legislative branch, which enacts the law; and the judicial branch, which interprets the law. Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, 740 So.2d at 151-53 (citing LSA-Const. art. V, § 1 and LaBauve v. Louisiana Wildlife and Fisheries Commission, 289 So. 2d 150, 151 (La.1974)). Noting the admission of counsel that the 1998 resolutions were enacted at the request of the plaintiffs and that plaintiffs' counsel's firm consulted with those who prepared the resolutions, the concurrence opined that the simple resolutions, which by definition do not have the effect of law, were enacted at the request of those attempting to influence pending litigation and should not be considered. The concurrence went on to add that to consider these resolutions would offend the constitutional concept of separation of powers and would be unfair to all parties to this litigation. Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, 740 So.2d at 153 (citing State Licensing Board of Contractors v. State Civil Service Commission, 110 So. 2d 847 (La.App. 1 Cir. 1959), affirmed, 240 La. 331, 123 So. 2d 76 (1960) (holding that a legislative resolution was unconstitutional as an encroachment upon the constitutional power of the judiciary to construe and interpret existing legislation, and stating that it was not within the constitutional province of the legislature to construe earlier enactments involved in litigation)). Accordingly, we do not find the 1998 legislative resolutions persuasive in this case, in light of the plain language of the statutes at issue.
*961 Further, we reject the Iberville Sales Tax Department's contention that Ordinance 2007-0001-1155 constitutes a new tax that requires approval by the voters. Ordinance 2007-0001-1155 merely rescinded a prior ordinance, Ordinance 1999-3, which had "rolled back" or stated the City's intent at that time not to collect the full amount of the tax authorized by Ordinance 1996-10. The 2007 ordinance further ratified or stated the city's approval of the previously enacted and voter-approved Ordinance 1996-10, declared the city's revised intention to begin collecting the full tax authorized by Ordinance 1996-10, and further stated the city's opinion that the 1996 tax remained in full force and effect. After this court's 1999 ruling that the 1996 tax exceeded the allowable maximum amount, and while the matter was under consideration by the supreme court, the city decided to forgo collecting the entire amount of tax authorized by Ordinance 1996-10, and the writ of certiorari was dismissed. In 2007, the city reconsidered the decision to forgo collecting the full tax authorized by Ordinance 1996-10 and announced via Ordinance 2007-0001-1155 its decision to fully implement Ordinance 1996-10. Ordinance 1996-10 was voted on by the people and never repealed; a portion of the tax authorized thereunder has been collected continuously over the years. Therefore, the 2007 ordinance contained no new tax, but merely stated the city's change in policy from abstaining from collecting all of the tax authorized by the 1996 ordinance to a new course of action; i.e., to begin collecting all of the tax authorized by the voters as stated in Ordinance 1996-10. The City of St. Gabriel has imposed no new tax, rather, it has begun to collect the whole of the 1996 tax.
Thus, we hold herein that, pursuant to LSA-R.S. 33:2711, incorporated municipalities are authorized to levy and collect sales and use taxes not in excess of 2 ½ % upon satisfying the procedural requirements of that statute, without reference to the limitations imposed on parishes and school boards by LSA-R.S. 33:2721.6(A)(2), and we overrule this court's earlier opinion to the contrary as stated in Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace. Therefore, we conclude that the district court erred in finding that St. Gabriel was not entitled to collection of the tax levied by Ordinance 1996-10 and in enjoining the city's attempts to have the tax collected.
CONCLUSION
For the reasons assigned herein, the judgment of the district court, in favor of the Parish of Iberville Sales Tax Department, is reversed and the permanent injunction is hereby dissolved.[7] All costs *962 of this appeal, in the amount of $1,025.01, are to be borne by plaintiff, Parish of Iberville Sales Tax Department.
JUDGMENT REVERSED; PERMANENT INJUNCTION DISSOLVED.
KUHN, J., concurs in the result.
PARRO, J., concurs.
McDONALD, J., dissents and assigns reasons.
McCLENDON, J., concurs without reasons.
McDONALD, J., dissenting:
While I agree with the analysis reached by the majority, I must respectfully disagree with the conclusion and result. I must dissent in the recommendation that the judgment be vacated and the case be remanded.
This is not the normal situation in which the court sits en banc to reconsider a legal principle or point of law that has previously been ruled upon by a prior panel of this court.[1] In this instance, we sit en banc to reconsider a prior ruling by a panel of this court in this exact case. I agree with the majority that the dissenting opinion was *963 correct in Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, 98-0935 (La.App. 1 Cir. 4/1/99), 740 So. 2d 147, writ granted, (La.5/28/99), 743 So. 2d 676 (appeal dismissed by the parties on 10/13/99). In that case the issue was whether the limit on the amount of sales tax collected within any parish or municipality (LSA-R.S. 33:2721.6(A)(2)) limits the amount of sales and use tax that could be approved and collected by the City of St. Gabriel. A prior panel of this court found that it did. In the present suit we are not called upon to interpret this statute in the context of some tax in another parish or municipality. We are again asked to review this same tax imposed by the City of St. Gabriel. The previous decision of this court is a final judgment. While it was appealed, the appeal was dismissed by the parties. This was approximately ten years ago. It is certainly not appealable now. The present appeal amounts to a collateral attack on the prior judgment. Such an attack is only sanctioned in a suit to annul a prior judgment. This principle is discussed in Jones v. State, Div. of Admin., 2009 WL 1272396, *3 (La.App. 1 Cir., 2009):
The supreme court has instructed that "No principle of law has received greater and more frequent sanction, or is more deeply imbedded in our jurisprudence, than that which forbids a collateral attack on a judgment or order of a competent tribunal, not void on its face ab ignition (sic)." Allen v. Commercial National Bank in Shreveport, 243 La. 840, 848, 147 So. 2d 865, 868 (La.1962). A collateral attack is defined as an attempt to impeach a decree in a proceeding not instituted for the express purpose of annulling it. Lowman v. Merrick, 06-0921 (La.App. 1 Cir. 3/23/07), 960 So. 2d 84, 90.
The present suit is not such an action. St. Gabriel's recourse should be a suit to nullify the prior judgment if they have a valid claim to do so.
I am also concerned that the decision of this court has now enacted the tax at issue. I believe that the trial court was correct that we must abide by the original Ciba-Geigy decision. That decision found that the 1996 municipal tax was unlawful at the time of the election because it exceeded the maximum tax limit provided in LSA-R.S. 33:2721.6. The ordinance adopted on November 15, 2007, by the St. Gabriel City Council, attempts to revive this same tax. I believe this is impermissible and the voters must have the opportunity to approve or disapprove this tax again. Since they approved it in 1996 there may have been other tax elections which may have been approved. In voting on these tax issues the voters may have been influenced by the fact that this 1996 tax had been found to be invalid and only a portion of it was enacted. Thus, I feel it is the electorate who has the right to decide whether this tax should be imposed, not this court.
For these reasons I respectfully dissent in the conclusion reached by this court and the decision to remand. I would affirm the decision of the trial court.
NOTES
[1] This appeal was decided by a five-judge panel of this court, with two of the five judges dissenting from the majority opinion.
[2] The 1996 tax had imposed a 1 % sales and use tax in addition to the 3 2/3 % in sales and use taxes already being collected by local governmental entities, which would have resulted in total local sales and use taxes of 4 2/3 %.
[3] The record presented on appeal does not reflect that any action was taken by the district court on this petition.
[4] "Local governmental subdivision" means any parish or municipality. LSA-Const. art. VI, § 44(1).
[5] "Municipality" includes any incorporated city, town, or village. LSA-R.S. 33:101(2)(a). See also LSA-Const. art. VI, § 44(3).
[6] Louisiana Revised Statute 33:2711(C) provides in full:
Notwithstanding any other statutory provisions to the contrary, including but not limited to provisions providing for equal collection and levy of sales taxes and in order to prevent the duplicate collection of sales taxes in areas annexed into a municipality, school boards, parishes, municipalities, and special taxing districts may enter into intergovernmental agreements providing for the collection, sharing, and levy of, and exemptions from, any taxes authorized by this Section.
[7] While this court may notice both res judicata and the failure to state a cause of action on its own motion pursuant to LSA-C.C.P. art. 927, we refrain from doing so in the instant case as the record is not sufficiently complete to warrant an ex proprio motion on either issue. We note that the doctrine of res judicata, as stated in LSA-R.S. 13:4231, precludes relitigation of a matter previously adjudicated "between the same parties." The previous case before this court, Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, which we overrule herein, named as plaintiffs: Ciba-Geigy Corporation; Union Texas Products Corporation; Zeneca, Inc.; the Iberville Group, L.L.C.; Pioneer Chlor Alkali Company, Inc.; ICI Americas, Inc.; Air Products and Chemicals, Inc.; Arcadian Fertilizer, L.P.; and Fina Oil and Chemical Company. This earlier case named as defendants: the town of St. Gabriel, through its mayor, George L. Grace; the Parish of Iberville, through its police jury president, Aldrich "Tudy" Dupree; and the School Board of the Parish of Iberville, through its superintendent, Charles P. Bujol. In this court's earlier opinion in the appeal of that case, it was noted that the district court sustained Iberville Parish's and the School Board's exceptions of no cause of action and prescription and dismissed these defendants with prejudice. Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace, 98-0935 at p. 2 n. 7, 740 So.2d at 148 n. 7. Thus, it would not appear that the plaintiff in the present suit, the Parish of Iberville Sales Tax Department, was a party actually litigating the merits of the former suit, which would trigger the conclusive effect of the res judicata doctrine. Although the Iberville Sales Tax Department's attorney stated at the hearing on its petition for injunctive relief, held by the district court in the instant matter, that in the prior suit the parish was dismissed "from the suit early on," no documentary evidence on the issue appears in the record. We further take note of LSA-R.S. 18:1294 and 18:1405(E), which provide that a person in interest seeking to contest the legality of an election authorizing a tax must file suit within sixty days after promulgation of the results of the election, after which time, one who has not filed suit is foreclosed from bringing suit; this time period is peremptive and once expired, the cause of action no longer exists. See Guillory v. Avoyelles Ry. Co., 104 La. 11, 15-17, 28 So. 899, 901 (1900). See also Town of Church Point v. Acadia Parish Police Jury, 2003-890, pp. 2-4 (La.App. 3 Cir. 7/14/03), 849 So. 2d 87, 89-90, writ not considered. 2003-2102 (La.7/29/03), 849 So. 2d 534; Small v. Desselle, 520 So. 2d 1167, 1168 (La.App. 3 Cir.1987). While Iberville Parish was originally named in Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace as a defendant (and later dismissed as a party altogether), it does not appear that the parish in any way contested the validity of Ordinance 1996-10 while a party to that suit. The failure to timely challenge a matter approved by election constitutes an acquiescence in the outcome of the election. See James v. Arkansas Southern Ry. Co., 110 La. 145, 156, 34 So. 337, 341 (1903); Guillory v. Avoyelles Ry. Co., 104 La. at 16-17, 28 So. at 901. Again, the record on appeal in the instant case does not contain any documentation with respect to whether the Parish of Iberville Sales Tax Department instituted any suit contesting the validity of the validity of Ordinance 1966-10, as approved by the electorate within the sixty-day statutory timeframe, though inferences are to the contrary. Therefore, we conclude that an ex proprio disposition on either a res judicata basis or the failure to state a cause of action would be inappropriate herein. Further, it should be noted that we express no opinion herein as to the continued applicability of this court's prior opinion in Ciba-Geigy Corp. v. Town of St. Gabriel ex rel. Grace as it applies to the original nine plaintiffs therein.
[1] First Circuit Court of Appeal Internal Rule 2.1d En-Banc sittings
2.1d(1) Overruling prior decision
An en banc sitting shall be convened when a proposed action, to be made in the exercise of this Court's appellate or supervisory jurisdiction, suggests the overruling of a prior First Circuit published or unpublished decision on a point of law and it is the opinion of the Conference that an en banc sitting is warranted ... | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608840/ | 973 F. Supp. 1358 (1997)
Linda BARNETT, Plaintiff,
v.
SYLACAUGA AUTOPLEX, et al., Defendants.
No. CV 97-PT-1216-E.
United States District Court, N.D. Alabama, Eastern Division.
August 5, 1997.
*1359 *1360 W. Braxton Schell, Jr., Joe R. Whatley, Jr. & R. Jackson Drake, Cooper Mitch Crawford Kuykendall & Whatley, Birmingham, AL, Garve Ivey, Jr., King Ivey & Warren, Jasper, AL, Barry A. Ragsdale, King Ivey & Junkin, Birmingham, AL, for Plaintiff.
Joe L. Leak, Starnes & Atchison, Birmingham, AL, C. Lee Reeves & Wilson F. Green, Sirote & Permutt, Birmingham, AL, for Defendants.
Memorandum Opinion
PROPST, Senior District Judge.
This cause comes on to be heard on plaintiff's motion for remand filed on May 20, 1997. In her motion, the plaintiff argues that exercise of jurisdiction over the instant case is improper because (1) Chrysler Financial Corporation's removal of her case was premised upon diversity of citizenship and, therefore, came outside of the one-year time limitation on removal stated in 28 U.S.C. § 1446(b) and (2) no complete diversity of citizenship under 28 U.S.C. § 1332(a) exists between the plaintiff (and the prospective class she represents) and one of the defendants, Sylacauga Autoplex, Inc. ("Autoplex"), because both are citizens of Alabama.
The plaintiff, Linda Barnett, commenced the present action on June 22, 1995, in the Circuit Court of Talladega County, Alabama, on her own behalf and on behalf of a putative class of individuals who entered into retail installment contracts with Autoplex. These contracts were allegedly assigned to the other defendant, Chrysler Financial Corporation ("Chrysler Financial"). In her initial complaint, the plaintiff averred that, with respect to her, the defendants committed fraud, suppression and breach of contract, and argued that agents of Autoplex made fraudulent representations to the plaintiff and other class members who had financed their automobiles through Autoplex, and sought an unspecified amount in punitive and compensatory damages.
On April 17, 1997, the plaintiff amended her complaint to expand the class represented by her not only to include any individual who had entered into retail installment contracts through Autoplex, but any individual *1361 in Alabama who had financed the purchase of a vehicle through Chrysler Credit Corporation (which presently operates as Chrysler Financial). On May 16, 1997, in response to the plaintiff's amendment, Chrysler Financial filed a notice of removal. Chrysler Financial contends that for the putative class members recently added to the suit, Autoplex is fraudulently joined. Chrysler Financial argues that, for this reason, diversity exists among the new class members and the sole properly joined defendant, Chrysler Financial. Therefore, as to the new class members, Chrysler Financial argues that diversity jurisdiction exists under 28 U.S.C. § 1332, permitting removal. As to the representative plaintiff and remaining putative class members, Chrysler Financial holds no preference as to whether they should also be brought before this court on exercise of supplemental jurisdiction under 28 U.S.C. § 1367 or left to state court without the expanded class. See Arnold v. Ford Motor Co., CV 95-PT-0073-M (N.D.Ala. May 2, 1995) and McGrew v. Superior Oldsmobile-Buick, Inc., 96-PT-3104-E (N.D.Ala. February 19, 1995).
Section 1446(b) of Title 28 limits the time for removal of actions based upon diversity of citizenship to one year from the commencement of the action in state court. The statute states:
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. (Emphasis added).
The instant action was not initially removable when filed in the state court. However, the plaintiff amended her complaint to include class allegations arguably supporting diversity jurisdiction twenty-three months after the action was initially filed. Chrysler Financial filed its notice of removal within a month after that amendment.
The plaintiff argues that because her amended complaint was made twenty-three months after the action was initially filed, Chrysler Financial's basis for removal was born outside of the one-year removal limitation period for diversity actions. Therefore, the removal, she contends, is barred. Chrysler Financial offers two reasons why the limitation should not prevent removal of the instant case. First, Chrysler Financial argues that the action was commenced as to the new putative class members when the amended pleading was filed and, therefore, the one-year removal period as to those putative class members began to run on the filing of the amended complaint. Second, Chrysler Financial avers that, even if the commencement of the action occurred when the original complaint was filed, the plaintiff's bad-faith amendment outside of the one-year filing period equitably estops the plaintiff from asserting the one-year procedural bar.
When a plaintiff files in state court a civil action over which the federal district courts would have original jurisdiction based on diversity of citizenship, the defendant or defendants may remove the action to federal court, 28 U.S.C. § 1441(a), provided that no defendant "is a citizen of the State in which such action is brought," § 1441(b). In a case not originally removable, a defendant who receives a pleading or other paper indicating the post-commencement satisfaction of federal jurisdictional requirements for example, by reason of the dismissal of a nondiverse party may remove the case to federal court within 30 days of receiving such information. § 1446(b). No case, however, may be removed from state to federal court based on diversity of citizenship *1362 "more than 1 year after commencement of the action." Ibid.
Caterpillar, Inc. v. Lewis, ___ U.S. ___, ___-___, 117 S. Ct. 467, 472-73, 136 L. Ed. 2d 437 (1996) (emphasis added). The Supreme Court's language in Caterpillar is absolute, allowing no exclusions. Expressions of Congressional intent are equally unrelenting:
Subsection (b)(2) amends 28 U.S.C. § 1446(b) to establish a one-year limit on removal based on diversity jurisdiction as a means of reducing the opportunity for removal after substantial progress has been made in state court. The result is a modest curtailment in access to diversity jurisdiction. The amendment addresses problems that arise from a change of parties as an action progresses toward trial in state court. The elimination of parties may create for the first time a party alignment that supports diversity jurisdiction. Under section 1446(b), removal is possible whenever this event occurs, so long as the change of parties was voluntary as to the plaintiff. Settlement with a diversity-destroying defendant on the eve of trial, for example, may permit the remaining defendants to remove. Removal late in the proceedings may result in substantial delay and disruption.
H.R.Rep. No. 100-889 at 72, 1988 U.S.C.C.A.N. 5982, 6032-33 (emphasis added). The Eleventh Circuit Court of Appeals commented upon the one-year removal limitation in Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 n. 12 (11th Cir.1994), observing that:
[t]he Commentary to the 1988 Revisions of 28 U.S.C. § 1446(b) shows that congress knew when it passed the one year bar on removal that some plaintiffs would attempt to defeat diversity by fraudulently (and temporarily) joining a non-diverse party. In that case, as long as there is some possibility that a non-diverse joined party could be liable in the action, there is no federal jurisdiction. But, under section 1446(b), if, after one year, the plaintiff dismisses the non-diverse defendant, the defendant cannot remove. So, a plaintiff could defeat jurisdiction by joining a non-diverse party and dismissing him after the deadline. Congress has recognized and accepted that, in some circumstances, plaintiff can and will intentionally avoid federal jurisdiction.
In Singh v. Daimler-Benz AG, 9 F.3d 303, 309 (3d Cir.1993), the Third Circuit Court of Appeals stated:
The 1988 Act also contained several provisions relating to procedure in removal of cases from state to federal court, but even those will not necessarily reduce diversity cases in a significant measure. The Act imposed an absolute one year time limit to remove a case from state to federal court on the basis of diversity of citizenship, see § 1016(b)(2)(B), 102 Stat. at 4669 (codified at 28 U.S.C. § 1446(b)), thereby changing the prior procedure permitting a case to be removed after the claims against defendants whose presence destroyed complete diversity were dismissed or dropped. While acknowledging that this provision would produce "a modest curtailment in access to diversity jurisdiction," the House Report emphasized instead that the change would prevent "removal after substantial progress has been made in state court." H.R.Rep. No. 889, supra at 72, reprinted in 1988 U.S.C.C.A.N. at 6032.
Finally, in an en banc sitting,[1] the District Court of the Northern District of Alabama noted that "Congress intended [the one-year limitation] to be strictly enforced." Greer v. Skilcraft, 704 F. Supp. 1570, 1577 n. 6 (N.D.Ala.1989) (en banc). Generally, therefore, an attempt to gain access to the federal courts in a diversity action one year after the filing of a suit (or after service of process in the suit is effectuated) is blocked.
Because the one-year limitation on removal begins to run on the "commencement of the action," Greer v. Skilcraft, 704 F.Supp. at 1582-83 (N.D.Ala.1989), much litigation has materialized around the issue of when an action is commenced. See generally, Id.; Zumas v. Owens-Corning Fiberglas Corp., 907 F. Supp. 131, 132 (D.Md.1995); Perez v. General Packer Inc., 790 F. Supp. 1464, 1469 (C.D.Cal.1992); Saunders v. Wire Rope Corp., 777 F. Supp. 1281, 1283 (E.D.Va. *1363 1991); Santiago v. Barre Nat., Inc., 795 F. Supp. 508, 510 (D.Mass.1992); and Rezendes v. Dow Corning Corp., 717 F. Supp. 1435, 1437 (E.D.Cal.1989). Chrysler Financial proposes the somewhat novel theory that the present action commenced for the new putative class members upon the plaintiff's amendment of her complaint. The plaintiff contends that Judge Pointer's order in Nalls v. United Companies Lending Corp., CV 96-P-1295-S (N.D.Ala. Aug. 6, 1996), addressed Chrysler Financial's theory and found it wanting. However, Judge Pointer's succinct order in Nalls is silent on whether Chrysler Financial's argument was ever raised or considered.
When an action has been "commenced" is a question of state law. Zumas v. Owens-Corning Fiberglas Corp., 907 F.Supp. at 132; O'Brien v. Powerforce, Inc., 939 F. Supp. 774, 777 (D.Hawai'i 1996). See also, Greer v. Skilcraft, 704 F.Supp. at 1583. Rule 3 of the Alabama Rules of Civil Procedure states that a "civil action is commenced by the filing of a complaint with the court." However, for a party added in a suit by a later amended complaint, commencement of the action as among the new party and the original parties may come at the time the complaint is amended. See Corbitt v. Mangum, 523 So. 2d 348, 350-51 (Ala.1988). This is most clearly seen when a new party is added to litigation outside of the statute of limitations. Under Alabama law, the statute of limitations for a particular action determines the time period within which an action must be "commenced" before the right to pursue the action is extinguished. See Ala. Code of 1975 §§ 6-2-1, et seq. (setting limitations periods on commencement of actions). However, under Alabama law, when a plaintiff attempts to join a new party to a suit by amended complaint outside of the statute of limitations period, the action against the new party will often be barred by the statute of limitations. Were it the case that the action, as related to the new party, always commenced at the time of the initial complaint, then no statute of limitations problem would arise with respect to that party. Instead, the filing of the amended complaint transforms a new party's cause of action into genuine action, commencing it before the court at the time of amendment. McDowell v. Henderson Mining Co., 276 Ala. 202, 160 So. 2d 486, 488 (1963). Therefore, an amended complaint adding a new party will often commence the action for that party. In cases in which the statute of limitations is relevant, the amendment will occur outside of the limitations period and commencement will come too late.
Alabama law has, however, developed a mechanism by which an occasional party who is added to a suit outside of the statute of limitations period will not be dismissed for failing to commence the action within the limitations period. Under Rule 15(c) of the Alabama Rules of Civil Procedure, if the addition of a new party relates back to the filing of the original suit, the action is commenced for a new party at the time the original plaintiff initially filed her complaint. Cummins Engine Co. v. Invictus Motor Freight, Inc., 641 So. 2d 761, 764 (Ala. 1994).[2]
Alabama law has developed a number of rules governing when an action is commenced, usually in cases involving the statute of limitations. Because Alabama law on commencement of actions governs when an action is commenced under § 1446(b), the court will therefore apply the rules governing the commencement of actions (especially with respect to new parties) to decide if an action has commenced for purposes of one-year limitations period for removal in diversity actions. On the one hand, if an amended complaint relates back to the filing of the initial complaint, the one year bar for removal of actions will have begun to run from the initial *1364 filing, not the later amendment. On the other, if an amended complaint does not relate back, the one-year limitation for the defendant's removal of a new action will accrue from the time of the filing of the amended complaint.
Rule 15(c) of the Alabama Rules of Civil Procedure provides when an amendment will relate back to the date of the filing of the complaint:
An amendment of a pleading relates back to the date of the original pleading when ...
(3) the amendment ... changes the party or the naming of the party against whom a claim is asserted if [the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading] and, within the applicable period of limitations or one hundred twenty (120) days of the commencement of the action, whichever comes later, the party to be brought in by amendment (A) has received notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party ...
In Bank of Red Bay v. King, 482 So. 2d 274, 279-80 (Ala.1985), the Alabama Supreme Court adopted the test stated in Manning v. Zapata, 350 So. 2d 1045 (Ala.Civ.App.1977), which addressed whether and when a complaint amended to add new plaintiffs would relate back:
In Manning v. Zapata, 350 So. 2d 1045 (Ala.Civ.App.1977), the Court of Civil Appeals followed Board of Water and Sewer Commissioners of City of Mobile v. McDonald, [] 56 Ala.App. 426, 322 So. 2d 717, cert. denied, 295 Ala. 392, 322 So. 2d 722 (1975), in concluding that Rule 15(c) can be applied by analogy to amendments changing plaintiffs. That court explained:
"The applicability of Rule 15(c) to amendments seeking to add new plaintiffs is put in its proper perspective in 6 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE, § 1501, at 523-24:
"`Although Rule 15(c) does not expressly apply to a new pleading adding or dropping plaintiffs, the Advisory Committee Note to the 1966 amendment of the rule indicates that the problem of relation back generally is easier to resolve in this context than when it is presented by a change in defendants and that the approach adopted in Rule 15(c) toward amendments affecting defendants extends by analogy to amendments changing plaintiffs. As long as defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action against him, his ability to protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense. This seems particularly sound inasmuch as the court will require the scope of the amended pleading to stay within the ambit of the conduct, transaction or occurrence set forth in the original pleading. [Emphasis in original.]
"`The courts seem to concentrate on the notice and identity of interest factors as they do in the case of amendments changing defendants. Thus, any amendment substituting a new plaintiff has been held to relate back if the added plaintiff is the real party in interest....'
"We further note that it has been held that an amendment adding a new party does relate back when the old and new parties have such an identity of interest so that such relation back would not be prejudicial. Williams v. United States, 405 F.2d 234 (5th Cir.1968); 3 MOORE'S FEDERAL PRACTICE, 2d ed., at 1043-45; 6 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE, at 524. [Emphasis added.]
"The standard which courts use in determining if an identity of interest exists, so as to allow relation back, is set out in 3 MOORE'S FEDERAL PRACTICE, footnote 11, at 1044-45:
*1365 "`Courts articulating the "identity of interest" standard generally require a substantial relationship between the old and new parties with regard to the litigation, as well as a sufficiently analogous legal position within the lawsuit to preclude the assertion of a new cause of action. Many of these cases involve substituting or adding related corporations....'"
350 So.2d at 1047. The court in Manning went on to hold that, in a subrogation suit, an amendment, which substituted the insurer (Standard Fire Insurance Company) who actually paid the insured's claim for the insurer who initiated the proceedings (All Risk Insurance Company), related back. That court reasoned that because (1) there was the requisite "identity of interest," (2) the claim arose out of the same conduct, transaction, or occurrence as set forth in the original complaint. and (3) the defendant was given notice when the initial complaint was filed, the defendant was, therefore, not prejudiced by the amendment and it should relate back.
See also, English v. State, 585 So. 2d 910, 911-12 (Ala.1991) (emphasis added).
In the instant case, an identity of interest exists between the old and new parties to the litigation. The added putative class members share the same interest as the old class members in interpretation of Chrysler Financial's financing arrangements. Both old and new putative class members seek a determination of whether Chrysler Financial created documents which represented that they were being charged a finance charge and which hid the existence of a percentage earned on the finance charge by auto dealers who financed through Chrysler Financial. Finally, the new putative class members share the same legal position as the original putative class members that is, that Chrysler Financial fraudulently misrepresented the content of its finance agreements.
Chrysler Financial was not prejudiced by the amendment. Chrysler's defense to the claims of the new class members will be the same as that raised against the prior class members and will not require any substantial alteration.
The third requirement is that the claims of the new class members arise "out of the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." An action will not arise out of the same "conduct, transaction or occurrence" if it grows out of different events than those events that are stated in the original complaint. McClendon v. City of Boaz, 395 So. 2d 21, 26 (Ala.1981). The determination of whether different events are involved depends on whether "[t]he acts that form the basis of the [added actions] were distinctly different, both in time as well as in regard to conduct, from the acts that formed the basis of [the original action filed by the original plaintiff(s)]." Malcolm v. King, 686 So. 2d 231, 236 (Ala.1996) (emphasis added).
The events creating each new putative class member's claim is disparate in space and time from the events which give rise to each other class member's claim. The conduct on the part of defendant Chrysler Financial is, however, not different for each member of the putative class. Both the original class and the new class premise their claims on the same fraudulent conduct in which Chrysler Financial allegedly engaged the promulgation of fraudulent financing agreements. Therefore, the extension of the plaintiff's putative class through amendment relates back to the time of the filing of the initial complaint. Chrysler Financial's attempts to remove the action on the basis that the amended complaint commenced an action afresh for the new putative class members falter. Because the amendment relates back to the time of the filing of the initial complaint in state court, the one-year limitation on removal began to run at the time of the original filing.
Chrysler Financial suggests as a basis for permitting removal of the entire class that the plaintiff's amendment expanding her putative class was made in bad faith and that she is therefore estopped from asserting the one-year limitation. This argument is not novel and has been presented with varying degrees of success in the district courts. See Kinabrew v. Emco-Wheaton, Inc., 936 F. Supp. 351, 352 n.1 & 2 (M.D.La.1996) (listing the positions of various district courts on *1366 the issue of waiver and estoppel with regards to the one-year time limit on the removal of diversity cases). The Eleventh Circuit Court of Appeals has held that the one-year bar on removal is a procedural bar, not a jurisdictional limitation. Wilson v. General Motors Corp., 888 F.2d 779, 781 (11th Cir.1989). Because it is merely a procedural limitation, the bar can be waived for example, when a plaintiff fails to file a motion for remand within the thirty day time period required by 28 U.S.C. § 1447(c). See Id. at 781 n. 1. A plaintiff can also be estopped from raising the one-year bar based upon equitable considerations. For example, a plaintiff who makes no bona fide effort to serve a complaint upon the defendant until the one year period has run will be estopped from asserting that the commencement of the action occurred upon the filing of the complaint. Greer v. Skilcraft, 704 F.Supp. at 1583.
Chrysler Financial argues that the addition of the putative class members outside of the one-year limitations period is in bad faith and that the present plaintiff, like the plaintiff in Greer, should be estopped from presenting the one-year limitation as a bar to removal. In support of its position, Chrysler Financial cites to Morrison v. National Benefit Life Ins. Co., 889 F. Supp. 945 (S.D.Miss. 1995). In Morrison, the plaintiff amended his complaint seven days after the running of the limitation on removal to increase the damages he sought from $49,000.00 to $2,000,000.00. Id. at 946-47. The district court found that the plaintiff concealed the damages he actually sought beyond the limitations period with the intent that the defendant rely upon the limited damages and not attempt to remove the case. Id. at 950. Because of the limitation, the defendant detrimentally relied upon the falsely represented damages and did not exercise his right of removal within the one-year period. Id. Applying principles of equitable estoppel existing under Mississippi law, the district court estopped the plaintiff from raising the one-year limitation on removal as a bar to the defendant's attempt to remove the case. Id.
The plaintiff contends that the present case is more akin to a situation in which a plaintiff amends her complaint to raise the amount in controversy sufficient to permit removal after the one-year limitation period has passed or in which a plaintiff fraudulently joins non-diverse defendants and removes them from the suit after the one-year bar has run. According to the plaintiff, Congress, in amending § 1446(b), took both situations into account and stated that the consequent reduction in diversity jurisdiction was unfortunate but permissible. The plaintiff states that these are both examples of bad faith pleading, but which nonetheless do not estop the plaintiff from raising the one-year limitation. See Burns v. Windsor Ins. Co., 31 F.3d at 1097 n. 12. The court agrees with the plaintiff's account of § 1446(b)'s history, but does not agree that it compels the result that the plaintiff desires.
The key to whether a plaintiff will be estopped from raising the one-year limitation on removal is whether the defendant should have been on notice that the plaintiff would take action subsequent to the one-year limitations period that would bring the case within the diversity jurisdiction of the federal courts. See Morrison v. National Benefit Life Ins. Co., 889 F.Supp. at 950; Kinabrew v. Emco-Wheaton, Inc., 936 F.Supp. at 353; Leslie v. BancTec Serv. Corp., 928 F. Supp. 341, 346 (S.D.New York 1996); Kite v. Richard Wolf Medical Instruments Corp., 761 F. Supp. 597, 600 (S.D.Ind.1989).[3] This is so whether or not the defendant could actually remove the case at the time he had notice. Russaw v. Voyager Life Ins. Co., 921 F. Supp. 723, 725 (M.D.Ala.1996). A defendant who should have been on notice could have attempted to remove, if there was a basis for removal. If no basis for removal existed, the defendant could have filed a motion for more definite statement under Rule 12(e) of the Alabama Rules of Civil Procedure on the basis that the plaintiff has fraudulently joined certain parties to the suit or pled beneath the amount she actually seeks (or any other facts that would provide the federal courts with jurisdiction). If an order requiring the plaintiff to amend the complaint *1367 in accordance with the defendant's request issues, the defendant can remove once the complaint is amended and removal is clearly proper. Or, if the plaintiff does not amend the complaint to bring it within the diversity jurisdiction of the court, the defendant may raise judicial estoppel when the plaintiff attempts to amend her complaint in the future in such a way as would have brought her claims within a federal court's jurisdiction if bad faith exists.
Notice exists when the possibility of removal can be inferred from the face of the complaint, as is the case when the plaintiff pleads a claim which of necessity would require the plaintiff to receive more that $75,000.00 in damages, or when facts outside the complaint would alert a reasonable defendant that something is amiss, as is often the case with joinder that is fraudulent due to a clear factual impossibility.[4]
In Morrison, the defendant was "ignorant of the actual damages sought, since its only source of information on this point was Plaintiff's averments." Morrison v. Nat'l Benefit Life Ins. Co., 889 F.Supp. at 950. Further, in that case, the plaintiff unequivocally denied in response to interrogatories by the defendant that he sought more than $49,000.00 in damages. Therefore, the defendant had no reason to suspect that the plaintiff would raise the amount of damages stated to $2,000,000.00 and attempt to remove or seek a motion for more definite statement under the Mississippi Rules of Civil Procedure. Id.
Similarly, during the year after the filing of the plaintiff's complaint, Chrysler Financial was without notice that the plaintiff would, in the future, increase the scope of her class claims. The original complaint gives no hint of claims being brought by a putative class of all individuals who financed auto purchases through Chrysler Financial. In addition, Chrysler Financial does not know of any discovery in which the plaintiff has engaged that would potentially change her position.
Chrysler Financial not only must demonstrate that it had no notice of the future change in the plaintiff's position, but also must demonstrate that the plaintiff changed her position in bad faith. Greer v. Skilcraft, 704 F.Supp. at 1583. In the present case, the plaintiff's claims are in bad faith if, by her actions, she attempted to disguise the existence of the removability of the case until the one-year limitation had run. See Morrison, 889 F.Supp. at 950. Bad faith can generally be inferred from amendment outside of the statutory bar. See Kinabrew v. Emco-Wheaton, 936 F.Supp. at 353. The plaintiff has provided no justification to negate the inference.
Finally, the history of § 1446(b) indicates that the one-year limitation on removal is meant to avoid "substantial delay" in the resolution of cases and to prevent "removal after substantial progress has been made in state court." House Rep. No. 100-889 at 72, 1988 U.S.C.C.A.N. at 6032-33. If proceedings in state court have made significant progress toward trial or if substantial delay would result in removal of the action to federal court, removal should not be available to the defendant, regardless of the plaintiff's actions. There would be no substantial delay in the resolution of the present action if removal were permitted, nor would have the proceedings made substantial progress toward trial. Little, if any, discovery has been completed. No significant activity has occurred in the case since its filing. The new class has not been certified by the state court and no difficulties in revisiting class issues will therefore arise from removal. Therefore, the plaintiff is estopped from raising the one-year limitation as a bar to removal of the present action by Chrysler Financial.
The plaintiff asserts that even if the one-year limitation on removal in diversity cases does not prohibit Chrysler Financial's removal of the present action, there is no diversity of citizenship to support this court's jurisdiction because the plaintiff and putative class are not diverse from defendant Autoplex. Chrysler Financial argues that, with respect to many of the statewide class members who have claims against Chrysler Financial, joinder of Autoplex is fraudulent and Autoplex should be dismissed as a defendant for the putative class members who can only *1368 assert claims against Chrysler Financial. If Autoplex is dismissed for those putative class members, contends Chrysler Financial, complete diversity will exist between those class members and it, allowing this court to exercise jurisdiction over the claims of those class members.
In Arnold v. Ford Motor Co., CV 95-PT-0073-M (N.D.Ala. May 2, 1995), and later, in McGrew v. Superior Oldsmobile-Buick, Inc., 96-PT-3104-E (N.D.Ala. February 19, 1995), this court held that "joinder of a defendant non-diverse from the named parties but against whom a significant number of the class members could state no claim was fraudulent ..." McGrew, 96-PT-3104-E at 2. In the present case, most of the claims against Chrysler Financial were not based upon financial agreements issued by Autoplex, but were issued at other automobile sales companies. For those putative class members who did not enter into a finance agreement at Autoplex, "there is no possibility the plaintiff can establish any cause of action against" Autoplex. Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir.1989). For a substantial number of the class members, the suit against Autoplex is fraudulent.
Because the newly added members to the plaintiff's putative class have no claim against Autoplex, their claims were properly removed to this court. This court must also determine whether it may exercise supplemental jurisdiction over the named plaintiff and the remaining putative class members, for whom Autoplex was not fraudulently joined. The court first notes that the one year time limitation on removal stated in § 1446(b) would not bar removal of the remaining claims more than one year after commencement of the action, because § 1446(b), by its language, only bars removal based upon diversity jurisdiction, not removal premised upon supplemental jurisdiction.
As this court stated in McGrew, exercise of supplemental jurisdiction is proper over claims that "form part of the same [Article III] case or controversy" as those claims over which it has original jurisdiction. 28 U.S.C. § 1367(a); McGrew, CV 96-PT-3104-E at 5. Class claims, even those against the same defendant and articulating the same legal theory for recovery, may not be part of the same Article III case or controversy. Id. Whether the claims of the class members share common questions of law or fact is not the test for whether those claims form part of the same case or controversy. Id.
What is meant by the terms "same case or controversy" has varied from circuit to circuit. The Sixth Circuit Court of Appeals stated that a state claim is part of the same case or controversy as a federal claim if it arises out of the same transaction or occurrence as the federal claim. Saglioccolo v. Eagle Ins. Co., 112 F.3d 226, 233 (6th Cir. 1997). In Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1298-99 (7th Cir.1995), the Seventh Circuit Court of Appeals rejected the "same transaction or occurrence" test for determining when supplemental jurisdiction may be exercised over a claim. Instead, the Seventh Circuit Court of Appeals interpreted the terms "same case or controversy" to implicate an extremely broad grant of jurisdictional power under the Constitution of the United States:
Section 1367 grew out of a recommendation by the Federal Courts Study Committee ("the Committee") that Congress codify the supplemental jurisdiction of the federal courts. The Committee viewed the Supreme Court's decision in Finley v. United States, 490 U.S. 545, 109 S. Ct. 2003, 104 L. Ed. 2d 593 (1989), which limited the federal courts' supplemental jurisdiction over pendent party claims, as undermining supplemental jurisdiction generally. Federal Courts Study Committee, Working Papers and Subcommittee Reports 552-56 (July 1, 1990). Although the Committee recognized that limiting supplemental jurisdiction would reduce the caseload of the federal courts, such a reduction, in its opinion, would be undesirable because it would force a litigant to choose from undesirable alternatives. The litigant could bring his entire case in state court, assuming that the state's joinder rules permitted the federal claim to be heard; but this course could deprive the federal forum of the opportunity to hear important questions of federal law. Alternatively, the litigant could split his case between the state and federal courts, thereby *1369 wasting resources with dual litigation and creating complex questions of issue preclusion. Id. at 556-58, 109 S.Ct. at 2010-2012. The Committee therefore recommended that Congress expressly authorize the federal courts to exercise supplemental jurisdiction. Id. at 559, 109 S.Ct. at 2012.
The statutory language proposed by the Committee would have authorized supplemental jurisdiction over any claim arising out of the same "transaction or occurrence" as a claim within federal jurisdiction. Report of the Federal Courts Study Committee 47 (April 2, 1990). This language was contained in the original House version of the bill. The final version, significantly, rejected the "transaction or occurrence" standard for determining the scope of supplemental jurisdiction. Rather, the enacted statute authorizes supplemental jurisdiction coextensive with the "case or controversy" requirement of Article III.
Unlike the situation with respect to the district courts' diversity jurisdiction, there is no gap, in the case of supplemental jurisdiction, between constitutional limitations and the statutory authorization. The statute's language clearly authorizes the district courts to exercise jurisdiction to the full extent of Article III's "case or controversy" requirement. Brazinski, 6 F.3d at 1181. The legislative history of § 1367 confirms that Congress intended to authorize the full constitutional limit of supplemental jurisdiction. This court has previously recognized that, through § 1367, Congress has made the two coextensive. In Brazinski, we wrote:
The statute extends the jurisdiction of the federal district court to all claims sufficiently related to the claim on which its original jurisdiction is based to be part of the same case or controversy within the meaning of Article III of the Constitution. If a claim is close enough to the federal (or other) claim that confers federal jurisdiction to be part of the same case, there is no constitutional bar to the assumption of federal jurisdiction over the claim, because Article III confers federal jurisdiction over cases or controversies rather than over claims; and the new statute goes to the constitutional limit.
Id. Although the statute grants the full extent of Article III's jurisdiction to the district courts, it does not attempt to define explicitly the outer limits of that constitutional limitation on jurisdiction. In Ammerman v. Sween, 54 F.3d 423 (7th Cir.1995), we described this limitation in these terms:
[J]udicial power to hear both state and federal claims exists where the federal claim has sufficient substance to confer subject matter jurisdiction on the court, and the state and federal claims derive from a common nucleus of operative facts. A loose factual connection between the claims is generally sufficient.
Id. at 424 (citations omitted).
Id. The Third Circuit Court of Appeals adopted a narrower definition of "same case or controversy" in HB General Corp. v. Manchester Partners, L.P., 95 F.3d 1185, 1198 (3d Cir.1996), requiring the claims over which the court has original jurisdiction and the other claims to "share significant factual elements."
Unlike the Third, Sixth and Seventh Circuit Courts of Appeals, the First Circuit Court of Appeals has chosen not to modify the test of "same case or controversy" set out in United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966), that the claims of pendant parties will be part of the same case or controversy only if they grow out of a common nucleus of operative fact. Penobscot Indian Nation v. Key Bank of Maine, 112 F.3d 538, 563-64 (1st Cir.1997). The Eleventh Circuit Court of Appeals described the relationship between § 1367 and Gibbs in Palmer v. Hospital Authority of Randolph County, 22 F.3d 1559, 1563 (11th Cir.1994):
Section 1367 codifies the concepts previously known as pendent and ancillary jurisdiction. Prior to this statute, the primary source of guidance for the exercise of pendent claim jurisdiction was United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). Gibbs divided the analysis into two sections: the power of a federal court to exercise pendent *1370 claim jurisdiction, and its discretion not to do so despite having the power. Id. at 725-26, 86 S.Ct. at 1138-39.
Section 1367 retains the same dichotomy, though its scope is somewhat different than the Gibbs tests. Under section 1367(a), unless section 1367(b) or (c) applies, the district court "shall have" supplemental jurisdiction over both additional claims and additional parties when those claims "are so related to claims in the action within [the] original jurisdiction [of the court] that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a).
The Eleventh Circuit has subsequently concluded that a claim over which the court does not have original jurisdiction is part of the "same case or controversy" as claims over which the court does have original jurisdiction when "the claims arise from the same facts, or involve similar occurrences, witnesses or evidence." Hudson v. Delta Air Lines, Inc., 90 F.3d 451, 455 (11th Cir.1996).
As in McGrew, the claims of the various putative class members and the named plaintiff are only joined together for purposes of litigation convenience, not because they share any factual contiguity or sameness. The events leading to each putative class member's claim are entirely discrete and evidence relating to the financing of each putative class member's automobile will be different. The sole similar occurrence, and the one around which substantial legal debate will be centered, is a singular knowledge by Chrysler Financial that its financing agreements were fraudulent. However, the issue of knowledge of fraud alone will not make the events giving rise to each putative class member's claim sufficiently similar to be of the same case or controversy as the claims of the putative class members over which this court has original jurisdiction.
Although a common question of law is shared[,] ... this does not transform the factually independent events into a single case or controversy under Article III. If it were otherwise, a plaintiff or set of plaintiffs could define the contours of an Article III case or controversy by careful formulation of a common question of law or fact. McGrew, CV 96-PT-3104-E at 5. Since the claims by the named plaintiff and class of claimants she purports to represent against both defendants are being REMANDED, it would be inappropriate for the named plaintiff to represent both putative classes. Plaintiff's counsel is given thirty (30) days to substitute a class representative for the class remaining here. That substituted representative should not be a member of the putative class whose claims are being remanded.
NOTES
[1] In which this judge participated.
[2] Chrysler Financial, in a supplemental letter addressed to this court, argues that "relation back" is not proper under Federal Rule of Civil Procedure 15(c). However, with respect to the present action, Alabama law is decisive on the issue of "relation back," not federal law. In addition, the two cases cited by Chrysler Financial, Summit Office Park, Inc. v. United States Steel Corp., 639 F.2d 1278 (5th Cir. Unit A 1981) and In re Syntex Corp. Securities Litigation, 855 F. Supp. 1086 (N.D.Cal.1994), are not dispositive of the issue. In both Summit and Syntex, the added plaintiffs shared no identity of interest with the original plaintiffs. This is not the case here. All couch their claims on the same legal theory and, unlike the original plaintiffs in Summit, the putative members of original plaintiff class in this case have viable claims.
[3] Because § 1446(b) is a federal statute, any equitable exclusions to the statute are to be developed under federal, not state, law. Therefore, Alabama law on equitable estoppel is inapposite to the determination to estop the plaintiff from asserting the one-year bar.
[4] Or when the defendant determines, during discovery, that the plaintiff will later be required to amend her complaint to obtain the relief she seeks. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608870/ | 664 So. 2d 294 (1995)
Barbara BOYD, As Personal Representative of the Estate of Ila Eskridge and Sheila Turner, Petitioner,
v.
PHEO, INC. d/b/a Pheo Medical Center and d/b/a Lake Forest Medical Center, Pheo Med, Limited Partnership, d/b/a Lake Forest Medical Center, Winter Haven Homes, Inc., as General Partner of Pheo Med, Limited Partnership, and Care Centers Management Group, Inc., Respondents.
No. 95-3693.
District Court of Appeal of Florida, First District.
November 21, 1995.
Rehearing Denied January 4, 1996.
*295 Kevin A. McLean of McLean & Schecht, Tampa, for petitioner.
R. Douglas Vaughn of Saalsfield, Catlin & Coulson, Jacksonville, for respondents Pheo Med, Limited Partnership and Winter Haven Homes, Inc.
Joseph L. Amos, Jr., of Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickson, Orlando, for respondent Care Centers Management Group, Inc.
PER CURIAM.
Barbara Boyd, the personal representative of the estate of Ila Eskridge, seeks certiorari review of an order prohibiting her counsel from engaging in ex parte communications with any of respondents' employees who personally participated in the care of Eskridge. We decline to exercise our certiorari jurisdiction to review this order, but write to explicate our reasons for this decision.
Petitioner is the plaintiff in an action against respondents, the owner and operator of the nursing home in which Eskridge formerly resided. After being advised that petitioner's counsel intended to make ex parte contact with current and former employees of the nursing home, respondents moved for a protective order, arguing that Rule 4-4.2 of the Rules Regulating the Florida Bar prohibited such contact, and relying on the decision in Barfuss v. Diversicare Corp. of America, 656 So. 2d 486 (Fla. 2d DCA 1995) in support of this conclusion. Petitioner opposed this motion, arguing that Reynoso v. Greynolds Park Manor, Inc., 659 So. 2d 1156 (Fla. 3d DCA 1995) allowed ex parte contact with former employees of a party under circumstances such as this. The trial court thereafter entered its order partially granting the motion for protective order, finding that Rule 4-4.2 precluded ex parte contact with present and former employees who directly participated in the care of the decedent, but that the rule did not preclude ex parte contact with former employees who did not directly participate in such care. Petitioner now asks that this court quash the trial court's order and align itself with the position of the Third District Court of Appeal in Reynoso.
As petitioner correctly states, both the Barfuss and Reynoso courts invoked certiorari jurisdiction to review interlocutory orders such as the one at issue here, and reached conflicting conclusions regarding the propriety of such orders. Petitioner argues that such review is likewise warranted in this circumstance, but without addressing the merits of the trial court's order, we are compelled to conclude that the exercise of this court's certiorari jurisdiction is not warranted. Certiorari is an extraordinary remedy, the entitlement to which is dependent upon a showing that the order for which review is sought departs from the essential requirements of law, resulting in a material injury for which there is no adequate remedy by appeal. Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987). We conclude in this instance that petitioner has failed to demonstrate the likelihood of irreparable harm arising from the trial court's order. As evidenced by decisions such as Esman v. Board of Regents, 425 So. 2d 156 (Fla. 1st DCA 1983), this court has adhered to the view that orders having the effect of denying discovery are almost invariably not reviewable by certiorari because of the absence of irreparable harm. Petitioner nonetheless relies on decisions of other district courts of appeal to suggest that because the trial court's order has the effect of denying essential discovery and there would be no practical way to determine after judgment what the testimony would have been and how it would have affected the result, irreparable harm has been demonstrated. See, e.g., Ruiz v. Steiner, 599 So. 2d 196 (Fla. 3d DCA 1992) and cases cited therein.
However, the order in this case does not prevent petitioner from engaging in discovery. Rather, it merely precludes her use of investigative techniques less formal than those called for in the rules governing discovery. Nothing in the order precludes petitioner from utilizing common discovery techniques to identify respondents' current and former employees (as it appears she has *296 already done), and petitioner is not precluded from then deposing any witnesses she so identifies. In this regard, we reject petitioner's assertion that certiorari review is warranted because the trial court's order lessens her ability to prepare her case and increases the cost of litigation. Cf., Continental Equities, Inc. v. Jacksonville Transportation Authority, 558 So. 2d 154 (Fla. 1st DCA 1990) (the burden and expense of an allegedly unnecessary trial is not irreparable harm for purposes of certiorari analysis).
Finally, we acknowledge that this court has recently granted certiorari relief in a factual circumstance somewhat similar to this case. In Alachua General Hospital v. Stewart, 649 So. 2d 357 (Fla. 1st DCA 1995), the defendant hospital requested authorization to conduct ex parte interviews with certain physicians who had allegedly acted as its agents in rendering medical care to the plaintiff's ward. On legal grounds distinct from those at issue here, the trial court denied this request, but this court granted certiorari review and quashed the trial court's order. However, under the facts of that case, the trial court's order effectively precluded the defendant from privately discussing the case with individuals whose actions were allegedly by the plaintiff to be a basis for imposing vicarious liability on the hospital. For purposes of determining whether irreparable harm has been caused so as to warrant certiorari review, such a situation is obviously distinguishable from a situation in which the trial court precludes a plaintiff from conducting ex parte communications with former employees of the defendant, but does not preclude the plaintiff from engaging in formal discovery involving those same individuals.
For the foregoing reasons, we conclude that petitioner has failed to demonstrate that the trial court's order results in irreparable harm, and the petition for writ of certiorari is therefore DENIED.
JOANOS, MICKLE and VAN NORTWICK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608892/ | 21 So. 3d 112 (2009)
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant,
v.
EDUARDO J. GARRIDO, D.C., P.A., a/a/o Joseph Alarcon, Appellee.
No. 3D08-2745.
District Court of Appeal of Florida, Third District.
October 28, 2009.
Michael J. Neimand, Miami, for appellant.
Panter, Panter, Sampedro and Christian Carrazana, Miami, for appellee.
Marlene Reiss, Miami, for Floridians for Fair Insurance, Inc., as amicus curiae.
Before COPE, WELLS, and CORTIÑAS, JJ.
CORTIÑAS, J.
United Automobile Insurance Company ("United") appeals the county court's summary judgment in favor of Eduardo Garrido, ("Dr. Garrido"). The county court certified the following question as one of great public importance:
WHETHER EXPERT TESTIMONY BASED ON A PHYSICIAN'S REPORT THAT WAS NOT FIRST OBTAINED BY THE INSURER BEFORE PIP BENEFITS WERE *113 WITHDRAWN OR DENIED IN VIOLATION OF THE STATUTORY PREDICATE UNDER § 627.736(7)(A), FLA. STAT. (2003) IS ADMISSIBLE TO SUPPORT AN INSURER'S LEGAL DEFENSE ON MEDICAL NECESSITY AND RELATEDNESS IN AN ACTION FOR PIP BENEFITS?
See Fla. R.App. P. 9.160.
In this evolving area of the law, two recent decisions from this Court persuade us to rephrase the certified question as follows:
IN AN ACTION FOR PIP BENEFITS, DOES SECTION 627.736(7)(a), FLORIDA STATUTES (2003) PROHIBIT THE ADMISSION OF EXPERT TESTIMONY THAT IS BASED ON A PHYSICIAN'S REPORT NOT FIRST OBTAINED BEFORE PIP BENEFITS WERE DENIED?
We answer the rephrased certified question in the negative and reverse.
As a result of a car accident injury, Ana Perez De Alarcon ("Alarcon") sought chiropractic treatment from Dr. Garrido, a licensed chiropractor. According to the terms of Alarcon's insurance policy, United would reimburse eighty percent of the reasonable amount of a covered loss, including chiropractic treatment.[1] On March 24, 2006, Alarcon began chiropractic treatment. Three weeks later, United required Alarcon to submit to an independent medical examination ("IME") conducted by Dr. Marfisi, a licensed chiropractor and Dr. Gaston, a medical doctor. On April 21, 2006, United notified Alarcon that it was suspending benefits for chiropractic services rendered after April 13, 2006. However, United did not address pre-IME services. Notwithstanding the denial letter, Dr. Garrido billed United for a total of $4,090.00, which covered Alarcon's chiropractic treatment during the period of March 24, 2006 through May 26, 2006. United did not pay. Pursuant to section 627.736(10), Dr. Garrido then sent United a pre-suit letter demanding full payment of the billed amount. United did not respond.
On September 18, 2006, Dr. Garrido sued United in county court, seeking payment for the treatment he provided to Alarcon. On April 8, 2008, Dr. Garrido moved for summary judgment, alleging that there were no genuine issues of material fact. Accompanying United's memorandum in opposition to summary judgment was a peer review report stating that none of Alarcon's treatment was reasonable, related, or necessary ("RRN"). The peer review report was prepared on September 16, 2008 by Dr. Merrit, a licensed chiropractor.
At the hearing on Dr. Garrido's motion for summary judgment, the court first addressed whether Dr. Merrit's report was admissible to support United's claim that Alarcon's treatment was not RRN. The trial determined that Dr. Merrit's report, as one not first obtained prior to denying payment, and therefore in violation of section 627.736(7)(a), was inadmissible to disprove RRN. Having so concluded, and left without any other evidence to contradict Dr. Garrido's claim that the treatment was RRN, the court granted summary judgment in favor of Dr. Garrido.
In United Automobile Insurance Co. v. Millennium Diagnostic Imaging Center, Inc., 12 So. 3d 242, 246-47 (Fla. 3d DCA 2009), we held that an insurer may at any time challenge whether treatment is RRN, *114 and is permitted to rely on a report obtained pursuant to section 627.736(7)(a) even when the report is obtained more than thirty days after the claim was submitted. Building on this conclusion, we explained in United Automobile Insurance Co. v. Sante Fe Medical Center, 21 So. 3d 60, 2009 WL 3188957 (Fla. 3d DCA 2009), that an insurer's obligation, pursuant to section 627.736(7)(a), to first obtain a medical report, applied only to withdrawal as opposed to denial of payment to a treating physician. Here, United denied payment. Accordingly, the "first obtained" language of section 627.736(7)(a) is not controlling and the court erred in finding otherwise. We reverse on this issue and affirm on all other issues on appeal.
Affirmed in part, reversed in part, and remanded.
NOTES
[1] Per the terms of the policy, United also agreed to reimburse a resident relative of the insured. In this case, Ms. Alarcon's resident relative was Joseph Alarcon, who assigned his right of reimbursement to Dr. Garrido. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608866/ | 664 So. 2d 976 (1995)
MARTIN COUNTY, Appellant,
v.
Melvyn R. YUSEM, individually and as trustee, Appellee.
No. 93-3025.
District Court of Appeal of Florida, Fourth District.
August 30, 1995.
Order on Rehearing and Certification November 22, 1995.
Noreen S. Dreyer, County Attorney, and Gary K. Oldehoff, Assistant County Attorney, Stuart, for appellant.
Thomas E. Warner and Tim B. Wright of Warner, Fox, Seeley, Dungey & Sweet, Stuart, for appellee.
Sherry A. Spiers, Tallahassee, for amicus curiae-Department of Community Affairs.
KLEIN, Judge.
This case presents the issue of whether Martin County was making a legislative or quasi-judicial decision when it denied the appellee/landowner's request to amend the county's future land use map to allow more residential units on his property. We conclude that the county action was quasi-judicial.
The landowner's property consists of 54 acres which is part of a 900 acre tract classified in Martin County's Comprehensive Land Use Plan as a Primary Urban Services District (PUSD). Although a PUSD allows up to 2 units per acre under the comprehensive plan, the future land use map permits only 1 unit per 2 acres on this 900 acres. In 1990 the landowner filed an application seeking an amendment to the future land use map so as to allow 2 units per acre on his 54 acres, the maximum allowable under the PUSD category. If the landowner had been granted that change, he would then have requested a planned unit development (PUD) with 60 units. The PUD would not have required an amendment of the comprehensive plan.
After the county denied the amendment, the landowner sought relief in the circuit court, the details of which will be discussed *977 later. Applying a strict judicial scrutiny standard of review, the circuit court concluded that the county improperly denied the landowner's requested amendment, and the county has appealed. The county argues that the trial court erred in using the strict scrutiny standard, and that we should reverse and remand so that the trial court can determine the propriety of the county's decision under the fairly debatable standard of review. The essence of the county's argument is that because a change in the density on these 54 acres could eventually affect the density of the remaining acres in the tract, the change is a legislative decision under Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993) (Snyder II). We do not agree.
In Snyder II, the Florida Supreme Court held that "Comprehensive rezonings affecting a large portion of the public are legislative in nature," but that:
[R]ezoning actions which have an impact on a limited number of persons or property owners, on identifiable parties and interests, where the decision is contingent on a fact or facts arrived at from distinct alternatives presented at a hearing, and where the decision can be functionally viewed as policy application, rather than policy setting, are in the nature of ... quasi-judicial action... .
Snyder, 627 So.2d at 474 (quoting Snyder v. Board of County Commissioners of Brevard County, 595 So. 2d 65, 78 (Fla. 5th DCA 1991) (Snyder I)).
Our supreme court also stated in Snyder II that it is "the character of the hearing" which determines whether board action is legislative (policy making) or quasi-judicial (policy application). Id. at 474, citing Coral Reef Nurseries, Inc. v. Babcock Co., 410 So. 2d 648, 652-53 (Fla. 3d DCA 1982), in which the third district explained how a quasi-judicial hearing differs from one which is legislative:
[I]t is the character of the administrative hearing leading to the action of the administrative body that determines the label to be attached to the action. .. . The procedural due process which is afforded to the interested parties in a hearing on an application for rezoning ... contains the safeguards of due notice, a fair opportunity to be heard in person and through counsel, the right to present evidence, and the right to cross-examine adverse witnesses; and it is the existence of these safeguards which makes the hearing quasi-judicial in character and distinguishes it from one which is purely legislative.
Applying Snyder II to these facts, we conclude that amending the future land use map to increase the density on this 54 acres will have a limited impact on the public, and that the action taken by the county in regard to this amendment would therefore be quasi-judicial. The board hearing "essentially addressed the change in the land use designation for a particular piece of property." Florida Inst. of Technology v. Martin County, 641 So. 2d 898, 900 (Fla. 4th DCA 1994).
This case is distinguishable from Section 28 Partnership, Ltd. v. Martin County, 642 So. 2d 609, 612 (Fla. 4th DCA 1994), review denied, 654 So. 2d 920 (Fla. 1995), in which the amendment to the comprehensive plan involved the development of 638 acres which were bordered on 2 sides by Jonathan Dickinson State Park and the Loxahatchee River Preserve Area. The decision as to how that square mile would be developed was legislative because of "the pristine nature of the land in the park and around the river, the size of the park, and the use of it by the public." and the fact that the amendment would have created a new category of property which could be developed by using facilities from an adjacent county.
Although we have relied primarily on Snyder II to arrive at our conclusion that the county action was quasi-judicial, two cases which were being litigated in the fifth district during the period of time in which Snyder was working its way through the fifth district to the supreme court are worthy of discussion.
In City of Melbourne v. Puma, 630 So. 2d 1097 (Fla. 1994), the Florida Supreme Court did not write an opinion; however, the action which it took is of interest. According to Thomas G. Pelham, in Quasi-Judicial Rezonings, Journal of Land Use & Environmental *978 Law, Vol. 9, Number 2 (Spring 1994) of Florida State University, pages 282-83, the trial court in Puma, shortly after the fifth district decided Snyder I, held that a rezoning from low density residential to commercial, which required an amendment to the comprehensive plan's future land use map, was quasi-judicial. The fifth district affirmed, City of Melbourne v. Puma, 616 So. 2d 190 (5th DCA 1993), merely citing Snyder I and another of its decisions. The Florida Supreme Court then accepted jurisdiction, City of Melbourne v. Puma, 624 So. 2d 264 (Fla. 1994), but after rendering its opinion in Snyder II, remanded Puma, stating that the conflict which had prompted it to take jurisdiction of Puma had been resolved by Snyder II. The supreme court's resolution of Puma is consistent with our conclusion that amendments to comprehensive plans are not necessarily legislative.
In Battaglia Properties, Ltd. v. Florida Land and Water Adjudicatory Commission, 629 So. 2d 161 (Fla. 5th DCA 1993), the landowner sought an amendment to the Orange County Comprehensive Plan to change 120 acres of low-density, single family residential property, to multi-family, office and commercial property. Although Judge Sharp wrote the "majority" opinion in Battaglia, she was the only member of the panel who believed that the amendment was a legislative decision. Judge Goshorn, concurring, and Judge Cowart, dissenting, both agreed that the amendment was not legislative under Snyder I. Battaglia was issued 6 days before Snyder II was issued by the Florida Supreme Court, and, although the fifth district had an opportunity on rehearing to consider Snyder II, it adhered to its original opinion.
Our conclusion that the amendment sought in the present case was quasi-judicial leaves the landowner with a jurisdictional problem. The proper method for reviewing a quasi-judicial decision by the county under these circumstances is by common law certiorari. Snyder II, 627 So.2d at 475; G.W. Dev. Corp. v. Village of North Palm Beach, 317 So. 2d 828 (Fla. 4th DCA 1975). In the present case the landowner timely filed a petition for certiorari. The county, however, moved to dismiss the petition on the ground that certiorari was not the proper method to review the decision of the county and the landowner voluntarily dismissed it, only pursuing his subsequently filed complaint for declaratory and injunctive relief. Our conclusion that the county action was quasi-judicial, which is reviewable only by common law certiorari, means that the circuit court had no jurisdiction.[1]
In Snyder II our supreme court said:
[I]n the posture of this case, we are reluctant to preclude the Snyders from any avenue of relief. Because of the possibility that conditions have changed during the extended lapse of time since their original application was filed, we believe that justice would be best served by permitting them to file a new application for rezoning of the property. The application will be without prejudice of the result reached by this decision and will allow the process to begin anew according to the procedure outlined in our opinion.
Id. at 476.
In light of the manner in which this area of the law was evolving when the landowner filed and dismissed his petition for common law certiorari in early 1991, we conclude that justice would best be served in the present case if the landowner were permitted to file a new application for amendment. We reverse the judgment because the trial court had no jurisdiction, but without prejudice to the landowner's starting anew.
GLICKSTEIN, J., concurs.
PARIENTE, J., dissents with opinion.
PARIENTE, Judge, dissenting:
In my opinion, we should be extremely cautious before labeling a decision by a county not to amend its properly adopted comprehensive *979 land use plan as a quasi-judicial action subject to review by the courts under the standard of strict judicial scrutiny rather than the deferential "fairly debatable" standard applicable to legislative actions. By focusing on the fact that the amendment involved only 54 acres, the majority opinion ignores the potential implication of any amendment on the remaining 900-acre tract and on the policies already embodied in the County's comprehensive land use plan, including its future land use map which is the subject of the amendment.
The majority decision also fails to address the important distinction between the process involved in obtaining an amendment to a comprehensive land use plan and a rezoning application. It ignores the fact that the Department of Community Affairs, the agency responsible for review of all amendments to land use plans statewide, did not approve the amendment because it concluded that the amendment was not consistent with the general policies and objectives of the County's overall comprehensive plan for growth management. As Judge Stone suggests in his concurrence in Section 28 Partnership, Ltd. v. Martin County, 642 So. 2d 609, 613 (Fla. 4th DCA 1994), review denied, 654 So. 2d 920 (Fla. 1995), generally "there is no reason to treat a commission decision rejecting a proposed modification of a previously adopted land use plan as any less legislative in nature than the decision initially adopting the plan." But that is exactly what has occurred here. If the landowner had challenged the County's initial action in adopting the future land use map, the County's action would have been evaluated under the highly deferential standard of judicial review. Yet the rejection of the amendment to the properly adopted plan is considered by the majority as quasi-judicial and thus subject to strict judicial scrutiny.
I find it difficult not to focus on the different nature of the process involved, and hence the character of the hearings, when governmental entities render decisions on amendments to comprehensive plans as part of their overall land use planning policies. In Machado v. Musgrove, 519 So. 2d 629, 631-32 (Fla. 3d DCA 1987), review denied, 529 So. 2d 694 (Fla. 1988), the third district explained the essential difference between planning and zoning functions:
A local comprehensive land use plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality. The plan is likened to a constitution for all future development within the governmental boundary.
Zoning, on the other hand, is the means by which the comprehensive plan is implemented and involves the exercise of discretionary powers within limits imposed by the plan. It is said that a zoning action not in accordance with a comprehensive plan is ultra vires.
(Citations omitted). See also Gardens Country Club, Inc. v. Palm Beach County, 590 So. 2d 488 (Fla. 4th DCA 1991).
I am not as certain as the majority that the supreme court intended its landmark decision in Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993), to apply equally to comprehensive land use plan amendments as well as to zoning petitions.[2] The decision in Snyder came as a logical extension of statewide reforms in the area of planning and zoning. As the supreme court explained, historically, local governments exercised zoning power subject *980 only to constitutional limitations of the "highly deferential standard of judicial review." Id. at 472. The result of this judicial laissez-faire approach, according to Snyder, was that "[i]nhibited only by the loose judicial scrutiny afforded by the fairly debatable rule, local zoning systems developed in a markedly inconsistent manner." Id. The supreme court pointed to the early work of Richard Babcock which "deplored the effect of "neighborhoodism" and rank political influence on the local decision making process." Id. at 472-73. Proponents of zoning reform advocated that local land use regulation be "consistent with a legally binding comprehensive plan which would serve long range goals, counteract local pressures for preferential treatment and provide courts with a meaningful standard of review." Id. at 473.
The supreme court then noted that Florida became one of the leaders of this national reform with its adoption in 1975 of the Local Government Comprehensive Planning Act, which law was "substantially strengthened in 1985 by the Growth Management Act." As the supreme court pointed out:
Pursuant to the Growth Management Act, each county and municipality is required to prepare a comprehensive plan for approval by the Department of Community Affairs. The adopted local plan must include `principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental and fiscal development' of the local government's jurisdictional area.
Snyder, 627 So.2d at 473.
It is in this context that the supreme court enunciated a new principle for judicial review of a government's zoning decision: a landowner seeking to rezone property would first have the burden of proving that the proposal is consistent with the comprehensive plan and complies with all procedural requirements of the zoning ordinance after which the burden shifts to the government to demonstrate that maintaining the existing zoning classification accomplishes a legitimate public purpose. Id. at 476. This standard makes sense when applied to zoning petitions which are consistent with the comprehensive plan and its future land use map. In zoning cases, the governmental entity is involved at the local level in the application of the policies of the comprehensive land use plan to the zoning petition before it.
In contrast, when amending a comprehensive land use plan, a governmental entity must follow procedures mandated by uniform state guidelines pursuant to the Growth Management Act which are similar to the process for adoption of the comprehensive plan. See generally § 163.3184, Fla. Stat. (1993). The Act provides that the amendment of an adopted comprehensive plan proceeds in two stages transmittal and adoption. At the transmittal stage, the local government considers whether a proposed amendment should be submitted to the state planning agency, the Department of Community Affairs (DCA), for its review to determine whether the change is consistent with the statewide growth management plan. § 163.3184(3), Fla. Stat. (1993).
If the local government decides that a proposed amendment should be transmitted to the DCA, the process will then proceed to the adoption stage. At this second stage, following receipt of a report from the DCA, including its recommendations, objections and comments, the local county government decides whether it should adopt the amendment to its comprehensive plan. §§ 163.3184(9)-(10) and 163.3187. The failure of the governmental entity to comply with these procedures and the recommendations of the DCA may result in adverse consequences to the local government including potential loss of funding for roads, bridges, or water and sewer systems and lack of eligibility for certain grants. § 163.3184(11).
In this case, the County, in considering the amendment, was required to make a determination as to whether:
The proposed land conversion is a logical and timely extension of a more intense land use designation in a nearby area, considering existing and anticipated land use development patterns, consistency with goals and objectives of the Comprehensive Growth Management Plan, availability of supportive services, including improved roads, recreation amenities, adequate school capacity, satisfactory allocations of *981 water and wastewater facilities and other needed supportive facilities.
Martin County Comprehensive Growth Management Plan, Policy M.1.a.(2).
Thus, in contrast to the rezonings at issue in Snyder, the review of the proposed amendment here required the County to engage in policy reformulation of its comprehensive plan and to determine whether it now desired to retreat from the policies embodied in its future land use map for the orderly development of the County's future growth. The county was required to evaluate the likely impact such amendment would have on the county's provision of local services, capital expenditures, and its overall plan for the managed growth and future development of the surrounding area. The decision whether to allow the proposed amendment to the land use plan to proceed to the DCA for its review and then whether to adopt the amendment involved considerations well beyond landowner's 54 acres.
When a governmental entity is considering an amendment to its previously adopted land use plan, a process strictly regulated by the Growth Management Act, there is a strong suggestion that the governmental entity is engaged in policy formulation or reformulation. The process which is followed for amendment, consisting of transmittal and adoption similar to the process for adoption of the plan, is more akin to a legislative process. In this case, in addition to the County's extended analysis of the likely effect of proposed amendments on the existing capital facilities, infrastructure and planned growth, there is mandatory involvement of the DCA, public input and public hearings.
Commentator Thomas G. Pelham, whose law review article has been referenced by the majority in this case, as well as in Section 28, agrees that comprehensive plan amendments should be treated as legislative acts for both logical and practical reasons. Logically, he argues:
[A]mendments to a legislatively adopted statement of general policy are legislative acts because comprehensive plans are policy-setting documents of general applicability. Even if the comprehensive plan amendment consists of an amendment to the comprehensive plan's future land use map which is applicable only to a single tract of land, the amendment should be deemed legislative. The future land use map alone does not determine or control the uses which can be made of a particular piece of land. Rather, the comprehensive plan as a whole, consists of legislative policies that must be applied to determine what uses can be made of a specific tract of land.
Pelham, supra at 300.
Pelham also discusses the practical implications of applying the Snyder decision to plan amendments:
From a practical perspective, characterizing a comprehensive plan amendment as a quasi-judicial act that is subject to Snyder's procedural mandates would be duplicative of the Growth Management Act, which already provides for quasi-judicial hearings in plan amendment proceedings. In adopting comprehensive plan amendments, local government must apply the general standards established by statute and administrative rule. After the Department of Community Affairs determines whether local government has complied with these legislative requirements, the local government, an affected citizen, or the Department itself can request an administrative hearing pursuant to the Administrative Procedure Act. Requiring local governments to conduct quasi-judicial proceedings on plan amendments at the local level will not serve the interest of local government, landowners, or affected citizens. On the contrary, it will unnecessarily burden an already complicated, timeconsuming and expensive process.
Id. at 307.
In addition to the logical and practical reasons to hold that actions on plan amendments should be generally considered legislative, there may be substantial benefit to the litigants and our system of justice in adopting this general principle. As it stands now, the determination of whether a particular land use amendment is legislative or quasi-judicial requires a fact-intensive inquiry on a case by case basis. This is the third occasion *982 in which our court has grappled with this issue. See also Section 28, Florida Inst. of Technology, Inc. v. Martin County, 641 So. 2d 898 (Fla. 4th DCA 1994), review denied, 651 So. 2d 1195 (Fla. 1995).[3] The outcome of the determination in turn not only affects the standard of review the trial court will employ, but may also determine the trial court's jurisdiction to consider the matter. Thus, where the outcome is in doubt, a careful litigant may file both an original action and a certiorari action and do so within 30 days to provide protection if the ultimate determination is that the action is quasi-judicial. See also Grace v. Town of Palm Beach, 656 So. 2d 945 (Fla. 4th DCA 1995)
As in Section 28, I would find here that the county was involved in policy formulation, a legislative function. Accordingly, the trial court was required to review the County's action in a trial de novo under the deferential fairly debatable standard.
ON MOTIONS FOR REHEARING AND CERTIFICATION
KLEIN, Judge.
The landowner's motion for rehearing calls to our attention something that we overlooked, which is that his complaint alleged that the comprehensive plan itself was unconstitutional as applied to his property, and that these claims were separate and apart from his claims directed to the denial of the change he requested. Although the county argues that these claims are no longer viable, we conclude, in light of the confusion about the nature of the proceedings leading up to this appeal, that we should remand so that the trial court can consider these claims.
We also grant the county's motion to certify a question of great public importance, although we decline to use the county's suggested wording:
CAN A REZONING DECISION WHICH HAS LIMITED IMPACT UNDER SNYDER, BUT DOES REQUIRE AN AMENDMENT OF THE COMPREHENSIVE LAND USE PLAN, STILL BE A QUASI-JUDICIAL DECISION SUBJECT TO STRICT SCRUTINY REVIEW?
GLICKSTEIN, J., concurs.
PARIENTE, J., concurs specially with opinion.
PARIENTE, Judge, concurring specially.
I adhere to my original dissent, but concur in the change in the majority opinion pursuant to the landowner's motion for rehearing. I also concur in the majority's certified question because of the confusion which exists as to whether amendments to comprehensive land use plans are subject to the same analysis as rezoning applications as set forth in Board of County Commissioners v. Snyder, 627 So. 2d 469 (Fla. 1993).
NOTES
[1] There is a 30-day jurisdictional deadline for filing a petition for certiorari. Fla.R.App.P. 9.100(c). The complaint was not filed within 30 days of the county's denial of the amendment. Accordingly, the complaint could not have been treated as a petition for certiorari under the authority of Florida Rule of Appellate Procedure 9.040(c), which provides that "if a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought... ."
[2] The majority suggests that the supreme court's per curiam opinion in City of Melbourne v. Puma, 630 So. 2d 1097 (Fla. 1994), is supportive of this conclusion. In Puma the supreme court simply remanded the case, which involved a plan amendment, "for further consideration consistent with our opinion in Snyder." In his law review article referenced in the majority's opinion, Thomas G. Pelham refers to the supreme court's directive in Snyder as "puzzling and confusing because Snyder dealt with rezoning actions and Puma deals with comprehensive plan amendments." See Thomas G. Pelham, Quasi-Judicial Rezonings: A Commentary on the Snyder Decision and the Consistency Requirement, 9 J. Land Use & Envtl. L. 243, 299-300 (1994). He questions whether perhaps the supreme court was suggesting that local plan amendments as modifications to policy making documents should be legislative acts or was indicating that plan amendments should be categorized as either quasi-judicial or legislative based upon the number of persons or property owners affected. Pelham argues persuasively that plan amendments should be treated as legislative actions for a number of logical and practical reasons.
[3] The landowner cites to Florida Institute of Technology, Inc. v. Martin County, 641 So. 2d 898 (Fla. 4th DCA 1994), review denied, 651 So. 2d 1195 (Fla. 1995), as authority for the proposition that an amendment to a land use plan is policy application subject to strict judicial scrutiny. However in Florida Institute of Technology, the board of county commissioners had previously approved an application made by a prior owner to change the land use designation on a particular property and granted the requested amendment to the county's growth plan. The landowner, however, never commenced construction. When FIT reacquired the property through foreclosure, it applied for an extension of the PUD timetable agreement to proceed with the plan as already approved by the county. Under those specific facts, we found the subsequent determination by the county to involve the application of the policy decision that had already been made in approving the original application. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608881/ | 664 So. 2d 1383 (1995)
Leslie B. DUPLANTIS Individually and as Natural Tutrix of the Minor Child, Jacob Ryan Duplantis
v.
Belve P. DANOS, Allstate Insurance Company and Louisiana Department of Transportation and Development (Office of Highways).
No. 95 CA 0545.
Court of Appeal of Louisiana, First Circuit.
December 15, 1995.
*1385 Danny J. Lirette, Houma, for Plaintiff-Appellee-Second Appellant Leslie B. Duplantis.
Randall L. Bethancourt, Houma, for Defendants Belve Danos and Allstate Insurance Company.
Barry G. Toups, Baton Rouge, for Defendant-First Appellant-Appellee State of Louisiana, Department of Transportation and Development.
Before CARTER and PITCHER, JJ., and CRAIN, J. Pro Tem.[1]
PITCHER, Judge.
In this wrongful death action, defendant, the State of Louisiana, through the Department of Transportation and Development (DOTD), appeals from a judgment of the trial court in favor of plaintiff, Leslie Duplantis. Plaintiff answered the appeal. We amend and affirm.
FACTS AND PROCEDURAL HISTORY
On February 2, 1993, at approximately 6:45 a.m., in Houma, Louisiana, Belve Danos (Mr. Danos) was involved in an accident with David Duplantis (Mr. Duplantis) which resulted in the death of Mr. Duplantis.
According to the testimony of the investigating officer, Trooper Leland Falcon, Mr. Danos, driving a 1979 Ford pickup truck, was travelling west on Prospect Avenue (LA 3087), when he attempted to make a left turn onto Coteau Road (LA 660).[2] At the time of the accident, the intersection was directed by flashing beaconsyellow for vehicles travelling on Prospect Avenue and red for vehicles proceeding on Coteau Road. In attempting to make the left turn onto Coteau Road, Mr. Danos stopped his vehicle in the neutral area of the intersection before proceeding across the eastbound lanes of Prospect Avenue onto Coteau Road. While stopped in the neutral area, a white vehicle travelling in the opposite direction on Prospect Avenue was also attempting to make a left turn onto Coteau Road. The white vehicle stopped in the inside lane of Prospect Avenue. As both vehicles were stopped at the intersection, the driver of the white vehicle made a waving gesture to Mr. Danos, who then proceeded forward across Prospect Avenue and was struck by a vehicle driven by Mr. Duplantis, who was travelling east on Prospect Avenue in the outside lane.
Plaintiff, individually and as natural tutrix of the minor child, Jacob Duplantis, filed suit against Mr. Danos, Allstate Insurance Co., and DOTD. Plaintiff settled her portion of the case with Danos and Allstate.
After trial held on October 18, 1994, the court found DOTD to be 30% at fault, Mr. Danos to be 60% at fault, and the driver of the unidentified white vehicle to be 10% at fault. Additionally, the trial court found that DOTD was solidarily liable with the driver of the unidentified white vehicle, and DOTD was cast to pay 40% of the total judgment.
Plaintiff was awarded $605,585.00 for her damages and $175,000.00 for damages as natural tutrix for Jacob. With DOTD given 60% "credit" (for the percentage of fault attributable to the released Mr. Danos), the *1386 judgment against DOTD amounted to $242,274.00[3] for plaintiff, individually, and $70,000.00 for plaintiff as tutrix of Jacob.
DOTD has appealed, alleging the following assignments of error for our review:
1.
The trial court erred in not finding Belve P. Danos solely responsible for the accident in question.
2.
The trial court erred in finding negligence on the part of DOTD.
3.
The trial court erred in finding that DOTD was solidarily liable with the driver of the unknown white car.
Plaintiff filed an answer to this appeal, and alleged the following assignments of error:
1.
The trial court committed manifest error in only assessing 30% fault to DOTD, and in assessing 60% fault to Belve Danos.
2.
The trial court committed manifest error in only awarding the sum of $350,000.00 for loss of support.[4]
FAULT OF THE PARTIES
(DOTD'S ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO)
DOTD
DOTD contends that the trial court erred in finding it liable to plaintiff under a theory of negligence.[5]
Under a theory of negligence, liability hinges on whether the defendant has breached his duty to the plaintiff. Briggs v. Hartford Ins. Co., 532 So. 2d 1154 (La.1988). DOTD's duty to travelers is to keep the state's highways in a reasonably safe condition. LeBlanc v. State, 419 So. 2d 853 (La. 1982); Sinitiere v. Lavergne, 391 So. 2d 821 (La.1980). Whether DOTD breached its duty, that is, whether the roadway at the scene of the accident was in an unreasonably dangerous condition, will depend on the facts and circumstances of each case. Hunter v. Department of Transportation and Development, 620 So. 2d 1149, 1151 (La.1993).
For an appellate court to reverse a trial court's factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So. 2d 880, 882 (La.1993); Mart v. Hill, 505 So. 2d 1120, 1127 (La.1987). Thus, the reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882.
The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable *1387 evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Moreover, where two permissible views of the evidence exist, the factfinder's choice between them cannot be clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882-83.
Plaintiff alleged that the intersection where the accident occurred was unreasonably dangerous because there was no traffic signal and because there were no left turn lanes.
Prospect Avenue is a four lane divided highway which runs in a north-south direction and is posted with a 50 mile per hour speed limit. Prospect Avenue extends from LA 24, at Bayou Terrebonne, northward to its intersection with LA 316, and carries traffic from the outskirts of the Houma area towards New Orleans, as well as commuter and industrial traffic in the area. Prospect Avenue crosses the Intercoastal Waterway Bridge just south of the intersection in question. Prospect Avenue has a 22 foot wide grass median, and on the date this accident occurred, had a yellow caution light for the traffic travelling on Prospect Avenue.
Coteau Road is a two lane undivided rural collector route which runs in an east-west direction and serves as a bypass on the north side of the Houma urbanized area. It serves several industrial areas of principal traffic generation and connects feeder routes into Houma, including Prospect Avenue, US 90, and the LA 24 Couplet System. Coteau Road is posted with a 45 mile per hour speed limit. On the date of the accident, there was a flashing red beacon for the traffic travelling on Coteau Road.
At trial, plaintiff presented the testimony of Stephen Strenvth, who was the District Traffic Operations Engineer in District 2 for DOTD. Mr. Strenvth also produced records maintained by DOTD on this particular intersection. Mr. Strenvth testified that the Prospect Avenue bridge and its extension were opened in 1980. Mr. Strenvth testified that the original plans did not include left lane construction at this intersection and believed that there was no data present to justify a left turn lane at the time the intersection was designed. It was the opinion of Mr. Strenvth that, when there are significant turning volumes, left turn lanes should be provided.
Mr. Strenvth testified that studies, normally referred to as traffic warrants, are undertaken at particular intersections based upon a system which identifies abnormal accident locations, or upon request from the public, elected officials, etc.
The DOTD records produced by Mr. Strenvth indicated that the Terrebonne Parish Police Jury requested an investigation into the feasibility of installing a traffic light at the intersection of Coteau Road and Prospect Avenue on July 15, 1983. The request by the Terrebonne Parish Police Jury noted that the items contributing to the dangerousness of the intersection were the ever-increasing number of motorists in the area, and the small, inadequate turning lanes on Prospect Avenue.[6]
In response to this request, DOTD issued a report dated February 23, 1984, which stated that it had performed several engineering studies, and, based upon the results of these studies, DOTD concluded that none of the traffic signal warrants were met.[7] DOTD's report further stated that engineering observations of the intersection and test runs through the location confirmed the study results, namely that congestion and delay were minimal and that the intersection geometrics were conducive to safe traffic flow for the motoring public. The report recommended that the request for signalization be denied. Mr. Strenvth observed that *1388 the only reference to turning lanes in this report was the mention of "intersection geometrics."
On February 11, 1988, the Terrebonne Parish Police Jury adopted a resolution again requesting that a traffic light be installed at this intersection. The Resolution referred to numerous traffic accidents and noted that "due to the good condition of the Coteau Road many motorists travel on this roadway and are unaware of the upcoming intersection with Prospect Street."
DOTD again denied the Police Jury's request for a traffic signal at this intersection. The letter from DOTD to the Police Jury indicated that DOTD's report advised that a traffic signal survey was taken at this intersection. This survey revealed that traffic volumes, accident data, and other conditions failed to demonstrate a need for traffic signal control at that time.
Mr. Strenvth stated that, among other things, the survey revealed that only one accident had occurred at this intersection from July 1, 1986, through July 1, 1987. The survey also established that traffic flowed well because over 80% of the major side street vehicles were turning right, and the installation of a traffic signal would not have an appreciable effect on the operation of right turns. The survey also noted that speeds were reasonably close to the posted speed limit.
DOTD records also contained a traffic signal warrant analysis dated December 12, 1990, but Mr. Strenvth was unable to ascertain at whose request this analysis was done. However, the report recommended that a fully actuated isolated signal be placed at this intersection. Mr. Strenvth also observed that the report contained information indicating that the placement of a left turn lane in the northbound direction (the lane in which the unidentified white car was located) would not result in a loss of efficiency at the intersection. There was no evidence that a field review was done at this time.
There were several requests made for a traffic signal to be placed at this intersection in DOTD's records, including several letters from various federal and state elected officials. DOTD records also contained a petition dated October 9, 1992, submitted by Peggy Guidroz, that was signed by approximately 700 people.
Mr. Strenvth testified that, as a result of these requests, he wrote a report based upon his re-evaluation of the data collected in 1990 and a field review of the traffic conditions. This report, dated January 11, 1993, recommended that a three phase, fully actuated traffic signal be installed at this intersection. The report also recommended that the signal light include a protected left turn phase operating in the protected-permitted mode for south approach left turns at the intersection, due to the heavy left turn volumes. The report further recommended that left turn lanes be constructed on the north and south approaches to the intersection, at which time a left turn indication can also be added for the north approach.
Mr. Strenvth testified that although the 1990 data was used, the field review was the significant factor in making the decision to install the signal. Mr. Strenvth observed that, during a field review, they would look for factors that may explain the occurrence of accidents, congestion, etc. According to Mr. Strenvth's report, the field review conducted in 1990 indicated the following:
during peak hours of traffic operations ... vehicles on LA 660 [Coteau Road] experienced excessive delay during peak hours even though most of these vehicles turned right at the intersection from the west approach. Vehicles crossing and turning also had difficulty due to the width of the main highway as well as heavy traffic volumes on Prospect Avenue. The heavy left turning volume from the Prospect south approach into LA 660 experienced moderate delays in making their maneuvers but also caused substantial delay during periods of heaviest volumes of the through traffic on the south approach of Prospect Avenue.
Mr. Strenvth testified that political pressure was a major factor in the decision to *1389 install a traffic signal at this intersection, although he noted that the data from the warrant analysis performed in 1990 would support this decision. Although Mr. Strenvth testified that the normal delay time in installing a traffic signal was about three to four years, the traffic signal was installed at this intersection on March 18, 1992, approximately three months after his recommendation and one month after the accident. Mr. Strenvth also noted that the recommended turning lanes had not yet been installed at this intersection.
Emmett Robichaux testified that he lived near the intersection and travelled through the intersection several times a day. Mr. Robichaux testified that he complained to DOTD about the intersection because of the many accidents which occurred there. Mr. Robichaux noted that it seemed like traffic coming off of the bridge had no inclination to stop or slow down, even when trying to make a left turn onto Coteau Road. Mr. Robichaux stated that it seemed like people took undue chances because it was difficult to traverse the intersection. Mr. Robichaux also stated that, after the traffic signal was installed, the problems got worse, apparently because people were ignoring the signal.
Trooper Falcon investigated the accident in question. Trooper Falcon stated that Mr. Danos told him that a driver of a white vehicle approaching from the Prospect Avenue bridge was attempting to make a left turn and had signalled him to go. Mr. Danos did not tell Trooper Falcon that there were any obstructions to his vision.
Peggy Guidroz lived near this intersection and travelled through it often. Ms. Guidroz testified that she drew up a petition for submittal to DOTD about the dangerousness of this intersection after her daughter had been in an accident there in April of 1992.
James R. Clary, Sr., was called by plaintiff as an expert in traffic engineering. Mr. Clary testified that he could find nothing which would prevent the construction of turning lanes at this intersection. Mr. Clary also testified that turning lanes would give the left turning motorist a better angle to view oncoming traffic before making a left turn. Mr. Clary thought that, with the introduction of left turn lanes, Danos would have been able to see oncoming traffic. Mr. Clary also stated that the addition of a traffic signal would have reduced the likelihood of the occurrence of this accident to "almost nothing" because people would have been turning in a protected mode.
David Blaschke testified for DOTD as an expert in highway design and traffic engineering. Mr. Blaschke found no requirement for left turn lanes at this intersection. Mr. Blashchke testified that left turn lanes are helpful when volumes become more frequent and the occurrence of rear end collisions increases. Mr. Blaschke did not think that the presence of a left turn lane would have changed the outcome of this accident because the drivers would have just been shifted over to other lanes. Mr. Blaschke also looked at the 1990 warrant analysis and stated that the warrants supported the installation of a traffic signal, but also noted that the installation of signalization was almost always discretionary. Mr. Blaschke did not believe that left turn lanes were necessary. Mr. Blaschke stated that left turn lanes are warranted based upon the frequency of rear end collisions, and he had seen no indication of these types of collisions at this intersection.
Based upon the evidence before us, we find no manifest error in the trial court's finding that this intersection was unreasonably dangerous. Thus, the finding of fault on the part of DOTD is correct.
MR. DANOS
DOTD also contends that Mr. Danos was at fault in making his left turn under the circumstances.
A left turn is generally a dangerous maneuver which must not be undertaken until the turning motorist ascertains that the turn can be made in safety. Kaplan v. Insured Lloyds Insurance Company, 479 So.2d *1390 961, 964 (La.App. 3rd Cir.1985); Agency Rent-A-Car, Inc. v. Hamm, 401 So. 2d 1259 (La.App. 1st Cir.1981). A high degree of care is required of a left-turning motorist. A left-turning motorist involved in an accident is burdened with a presumption of liability, and the motorist must show that he is free of negligence. Kaplan v. Insured Lloyds Insurance Company, 479 So.2d at 964; Bennett v. United States Fidelity & Guaranty Company, 373 So. 2d 1362, 1365 (La.App. 1st Cir.), writ denied, 376 So. 2d 1269 (La.1979).
In the present case, Mr. Danos failed to exercise the high degree of care which the law requires of a left-turning motorist. Mr. Danos testified that he pulled into the median in order to make his left turn onto Coteau Road. Mr. Danos stated that, while he was in the median, an unidentified white vehicle, travelling in the opposite direction on Prospect Avenue, stopped in the inside lane of Prospect Avenue. Mr. Danos also stated that there was another vehicle behind the white car. Mr. Danos testified that the presence of these two vehicles, along with signs located on the median, made it difficult for him to see any oncoming traffic in the outside lane of traffic. Mr. Danos stated that the driver of the white car looked into her rearview mirror, and her side mirror, and then flagged him to proceed. Mr. Danos stated that he then proceeded slowly across Prospect Avenue and was hit by Duplantis' vehicle. Mr. Danos testified that he never saw the Duplantis vehicle before the collision occurred.
Trooper Ralph Mitchell took photographs of the accident scene on the date the accident occurred, which illustrated that there were no signs that could have blocked Mr. Danos' vision in the median. Trooper Mitchell also looked at the tires on Mr. Danos' truck and observed that his truck would have sat higher than the vehicles around it.
Andrea Matherne was travelling on Coteau Road and had stopped at the intersection shortly before the accident occurred. Ms. Matherne testified that she observed both the Danos vehicle and the unidentified white vehicle. Ms. Matherne also testified that she saw the driver of the white vehicle wave to Mr. Danos to proceed, and then he just took off.
Based upon this evidence, Mr. Danos' actions were a breach of his duty as a motorist. Thus, the trial court did not err in finding Mr. Danos to be at fault.
QUANTIFICATION OF FAULT
(DOTD'S ASSIGNMENT OF ERROR NUMBER THREE PLAINTIFF'S ASSIGNMENT OF ERROR NUMBER ONE)
Through Assignment of Error Number Three, DOTD contends that the trial court erred in finding it to be solidarily liable with the unidentified driver of the white vehicle. Plaintiff contends that the trial court erred in its assessment of fault. Specifically, plaintiff argues that the assessment of fault to DOTD should be increased to 50%.
We initially note that the trial court erred in assessing 10% fault to the unidentified driver of the white vehicle. In Cavalier v. Cain's Hydrostatic Testing, Inc., 94-1496, p. 10 (La. 6/30/95); 657 So. 2d 975, 982, the Louisiana Supreme Court concluded that the quantification of fault of a person that no party sees fit to join in the suit as a defendant or a third party defendant is not required unless there is a compelling reason, such as in the case of a settling tortfeasor or a non-party whose negligence is imputable to a party.[8]
Because the trial court erred in assigning fault to the unknown driver of the white car, that percentage of fault must be disregarded. Cavalier v. Cain's Hydrostatic Testing, Inc., 657 So.2d at 984; Guidry v. Frank Guidry Oil Co., 579 So. 2d 947, 954 (La.1991). Therefore, this court must first determine if the *1391 degrees of fault assessed to the two remaining tortfeasors, Danos and DOTD, are correct. This court must then apportion the total fault between Danos and DOTD using a ratio approach. See Guidry v. Frank Guidry Oil Co., 579 So.2d at 954, and the authorities cited therein.
It is well settled that the allocation of comparative negligence is a factual matter within the sound discretion of the trial court, and such determination will not be disturbed on appeal in the absence of manifest error. Daigle v. Legendre, 619 So. 2d 836, 839-840 (La.App. 1st Cir.), writ denied, 625 So. 2d 1040 (La.1993).
The Louisiana Supreme Court, in Watson v. State Farm Fire and Casualty Insurance Co., 469 So. 2d 967, 974 (La.1985), set forth the guidelines for apportioning fault under the doctrine of comparative negligence. The court, quoting § 2(b) of the Uniform Comparative Fault Act, stated the following:
In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.
In assessing the nature of the conduct of the parties, the court listed various factors which may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson v. State Farm Fire and Casualty and Insurance Co., 469 So.2d at 974.
The conduct of Danos, in blindly proceeding to make a left turn across this intersection, was clearly the result of inadvertence on his part. On the other hand, DOTD's negligence involved an awareness of the danger presented by the intersection.
After considering the evidence and the Watson factors, we conclude that the trial court's apportionment of 30% fault to DOTD and 60% fault to Danos was not manifestly erroneous. Therefore, using the ratio approach, the 10% of fault erroneously assessed to the unidentified driver of the white vehicle is to be reassessed as follows: 6.67% to Danos and 3.33% to DOTD.
DAMAGESLOSS OF SUPPORT
(PLAINTIFF'S ASSIGNMENT OF ERROR NUMBER TWO)
Plaintiff complains that the trial court erred in only awarding the sum of $350,000.00 for loss of support.
The elements of damage for a wrongful death action include loss of love and affection, loss of services, loss of support, medical expenses, and funeral expenses. Cannon v. Cavalier Corp., 572 So. 2d 299, 307 (La.App. 2nd Cir.1990).
In this case, plaintiff submitted the report of Dr. Randolph Rice, who estimated the loss of support to the Duplantis family to be $429,645.00. In reaching this estimate, Dr. Rice calculated that David Duplantis had a work-life expectancy of 35.25 years. Dr. Rice also calculated David Duplantis' average annual earnings to be $19,620.17. Dr. Rice concluded that Mr. Duplantis' past wage losses were $33,489.00 (representing what he might have earned from the date of his death until the date of trial). In determining Mr. Duplantis' future earning capacity, Dr. Rice applied an average annual rate of growth of 5.5%, beginning with his base income. Dr. Rice then applied a discount rate of 7.25% and calculated the discounted/present value of Mr. Duplantis' future earning capacity to be $520,506.00. Dr. Rice then deducted an average number representing Mr. Duplantis' personal consumption expenditures and concluded that the total loss of support (past and future) equalled $429,645.00.
DOTD submitted a report prepared by Dan Cliffe, a certified public accountant. *1392 Mr. Cliffe determined as of October 17, 1994, Mr. Duplantis had a work-life expectancy of 34.66 years. Mr. Cliffe estimated Mr. Duplantis' annual income rate to be $19,230.17. Mr. Cliffe stated that the rate of annual income would increase steadily at either 2% or 5%, depending upon several factors. Mr. Cliffe also used a pretax discount rate of 7.60%, based on the returns currently available in risk-free investments. Mr. Cliffe also estimated the consumption of family income by Mr. Duplantis to be between 31% and 35%. Mr. Cliffe gave a range of figures to be considered, depending upon the occurrence of certain conditions. Mr. Cliffe stated that the midpoint ranges could be taken as the best estimates. The midpoint range for future loss of support, based on pretax income and regular worklife for spouse and children to age 21, was $244,995.29, and the past loss of support was $22,659.99. The midpoint range for future loss of support, based on aftertax income and regular worklife for spouse and children to age 21, was $219,014.96, and the past loss of support was $19,673.09.
After a review of the evidence, we cannot say that the trial court abused its discretion in its award of $350,000.00 for loss of support. This assignment of error is without merit.
CONCLUSION
For the foregoing reasons, the judgment of the trial court, finding the unidentified white vehicle to be 10% at fault, is reversed. The judgment of the trial court is amended as follows:
IT IS ORDERED, ADJUDGED AND DECREED that the defendant, State of Louisiana, through the Department of Transportation and Development, is hereby found to be 33.33% at fault, and that Belve Danos is hereby found to be 66.67% at fault.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant, State of Louisiana, through the Department of Transportation and Development, is hereby given a credit of 66.67% of the damages suffered by plaintiff in accord with Articles 2324 and 1803 of the Louisiana Civil Code.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Leslie B. Duplantis, individually, and against the defendant, State of Louisiana, through the Department of Transportation and Development, in the sum of TWO HUNDRED ONE THOUSAND, EIGHT HUNDRED FOURTY ONE AND 48/100 ($201,841.48) DOLLARS, together with legal interest thereon from date of judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Leslie B. Duplantis, as the Natural Tutrix of the Minor Child, Jacob Ryan Duplantis, and against the defendant, State of Louisiana, through the Department of Transportation and Development, in the sum of FIFTY EIGHT THOUSAND, THREE HUNDRED TWENTY SEVEN AND 50/100 ($58,327.50) DOLLARS, together with legal interest thereon from date of judicial demand until paid.
In all other respects, the judgment of the trial court is affirmed. Costs of this appeal, in the amount of $2,058.00, are to be divided equally between plaintiff and DOTD.
REVERSED IN PART; AND, AS AMENDED, AFFIRMED IN PART.
NOTES
[1] Judge Hillary Crain, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.
[2] We note that the records from DOTD on this intersection indicate that Prospect Avenue runs in a north-south direction.
[3] Although the judgment reflects that the amount of damages attributable to DOTD after the credit was $242,274.00, it appears that there was an error in the mathematical calculation; forty (40) percent of $605,585.00 is $242,234.00.
[4] The record indicates that plaintiff also filed a motion and order for a devolutive appeal.
[5] Although plaintiff alleged that DOTD was liable under both negligence and strict liability theories, the trial court found that DOTD was not strictly liable to plaintiff. No party has questioned this finding on appeal.
[6] DOTD records also revealed a request for a traffic light at this intersection from several citizens in 1983.
[7] The studies conducted included (1) a 24-hour recorder count; (2) a peak hour turning movement count; (3) a spot speed study; and (4) a 12-month collision diagram.
[8] In reaching this conclusion, the Louisiana Supreme Court expressly overruled its holding in Gauthier v. O'Brien, 618 So. 2d 825 (La.1993), that quantification of employer fault either is suggested by LSA-C.C.P. art. 1812 C or is made mandatory by LSA-C.C. art. 2324 B. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608853/ | 664 So. 2d 94 (1995)
STATE of Louisiana
v.
Silas JOHNSON.
No. 94-K-1379.
Supreme Court of Louisiana.
November 27, 1995.
Rehearing Denied January 12, 1996.
*96 Richard P. Ieoyoub, Attorney General, Robert "Rick" Bryant, District Attorney, Paul Peter Reggie, and Patricia Head Minaldi, for Applicant.
Ronald F. Ware, for Respondent.
WATSON, Justice.[1]
A jury convicted the defendant, Silas Johnson, of attempted second degree murder, in violation of LSA-R.S. 14:30.1 and 14:27, and aggravated burglary, in violation of LSA-R.S. 14:60. The trial court sentenced Johnson to concurrent sentences of 50 years at hard labor for attempted second degree murder and 30 years at hard labor for aggravated burglary.
The issue is whether a harmless error analysis applies to review of the trial court's erroneous admission of other crimes evidence. We find this type of error to be a "trial error" under the standards enunciated in Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991), as acknowledged by this Court in State v. Cage, 583 So. 2d 1125 (La.1991), cert. denied, 502 U.S. 874, 112 S. Ct. 211, 116 L. Ed. 2d 170 (1991). Louisiana courts must evaluate the prejudicial effect of such errors under the harmless error principles established in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) and Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993). See La.C.Cr.P. art. 921.
FACTS
The following evidence was adduced at trial. The defendant, Silas Johnson, was married for fifteen years to Grace Johnson. After several separations, the couple divorced on October 28, 1991. Shortly after the divorce, Grace Johnson became engaged to David Corsey. Grace Johnson worked at night. Corsey often came to town on Friday and stayed the weekend at her Westlake, Louisiana, trailer babysitting her three children, Dwana Wilson, Crystal Johnson and Dwayne Johnson.
Grace Johnson testified that after the divorce, the defendant entered her trailer without her permission on two occasions. On Thursday, December 12, 1991, Grace Johnson told the defendant he could not do so anymore. Although the conversation was initially cordial, it turned into an argument during which the defendant told Grace Johnson "ain't no son-of-a-bitch gonna take my kids and my old lady away from me."
On Friday, December 13, 1991, Corsey went to stay at Grace Johnson's trailer with her three children and his two children. Sometime between 10 and 10:30 p.m., before Grace Johnson left for work, she and Corsey saw and heard Silas Johnson's car drive by the trailer. Grace Johnson testified she saw the car back up quickly and leave after the driver could see Corsey's car parked outside the trailer. Grace Johnson warned Corsey to be careful.
Corsey went to sleep in the front bedroom at about 10:30 p.m. Dwana stayed up watching television until midnight or 12:30 a.m. Sixteen-year-old Dwana had told her step-father, the defendant, that she would be out that evening but her plans changed. After locking the doors, Dwana fell asleep on the living room couch. Corsey woke up in pain and realized he was being stabbed. Dwana was awakened by Corsey's screams. She went to that room and turned on the light. She saw her stepfather, Silas Johnson, leaning *97 over Corsey, shoving down on him. Corsey recognized Silas Johnson when the light came on and saw the defendant stab him again in the stomach. Dwana pulled the defendant off Corsey and shoved him through the trailer and out the front door. One of the kitchen knives was later found on the bedroom floor.
After checking on Corsey, Dwana ran to the landlord's trailer to call the police and an ambulance. When she did so, she saw the defendant running to his car. He turned back and looked at Dwana, then continued to his car and drove away. Dwana told the police that Silas Johnson stabbed Corsey.
Corsey was stabbed fifteen times: once in the stomach, four times in the right chest, once in the back, four times in the right forearm, and five times in the right upper arm. The doctor who performed 12 hours of surgery testified Corsey's wounds were life-threatening; he would have died if he had not received prompt medical attention.
At the emergency room prior to surgery, Corsey named Silas Johnson as his attacker. Later, while he was recovering, Corsey picked the defendant's picture out of a photo line-up. Dwana Wilson also picked the defendant's picture out of a photo line-up.
Silas Johnson was arrested and initially charged with attempted first degree murder and aggravated burglary. The murder charge was later reduced to attempted second degree murder. At trial, the state relied on the testimony of Dwana and Corsey to prove the defendant was the attacker. The taped emergency telephone call, in which Dwana identified Silas Johnson as Corsey's attacker, was played for the jury. The state also presented the testimony of Grace Johnson's sister, who related that the defendant threatened both Grace Johnson and David Corsey at the time of his divorce.
In order to refute this evidence, the defendant took the stand. He denied that he stabbed Corsey and testified that at the time of the stabbing he was asleep in his mother's mobile home in Pitkin, Louisiana, approximately 80 miles from Grace Johnson's home in Westlake. The defendant's mother corroborated his alibi.
During cross-examination by the state, the defendant admitted having several prior misdemeanor convictions, including driving while intoxicated, simple battery, criminal damage to property, simple drunkenness, disturbing the peace and resisting an officer. He also acknowledged pleading guilty in 1973 to one count of simple burglary in Allen Parish, Docket No. CR-1192-73. He denied any other convictions for burglary.
After this denial, the state presented a certified copy of court minutes from the 33rd Judicial District Court, Allen Parish, dated September 21, 1973. This document showed the defendant had been charged with six counts of simple burglary and that he had pleaded guilty to five of the charges in Docket Nos. CR-1192-73, CR-1195-73, CR-1197-73, CR-1198-73 and CR-1200-73. The document showed the defendant pleaded not guilty to the charge in Docket No. CR-1201-73.[2]
In spite of this evidence, the defendant steadfastly maintained he had only one prior simple burglary conviction. The state offered the September 21, 1973, court minutes into evidence, along with certified copies of the six bills of information corresponding to the charges reflected in the minutes. Defense counsel did not object to introduction of the court minutes since he believed the entries were admissible under La.C.E. art. 609.1,[3] but did object to introduction of the bills of information.
*98 After the trial court took the matter under advisement, it sustained defense counsel's objection, finding that although the bills of information were within the scope of Article 609.1, they were inadmissible because their prejudicial impact outweighed their probative value. La.C.E. art. 609.1(C)(3). The state filed an emergency writ to the Louisiana Third Circuit Court of Appeal, which reversed the trial court's ruling and allowed introduction of the bills of information into evidence. State v. Johnson, 92-1312 (La.App. 3d Cir., 11/5/92).[4]
Thereafter, the state questioned the defendant extensively about these documents. The prosecutrix asked the defendant to compare the bills of information on each of the six simple burglary charges with the disposition in the court minutes. The prosecutrix mistakenly challenged the defendant to deny that the official court record showed him pleading guilty to each of the six simple burglary charges. The minutes clearly show the defendant pleaded not guilty to Docket No. CR-1201-73. Throughout, the defendant did not waiver, but maintained he pleaded guilty to only one simple burglary charge pursuant to a plea bargain which called for a single conviction and a suspended sentence of three years at hard labor.
After being convicted as charged and sentenced, the defendant appealed claiming the trial court erred in admitting the bills of information into evidence and in imposing an excessive sentence. The court of appeal reversed the conviction and sentence. State v. Johnson, 93-711 (La.App. 3d Cir., 2/2/94); 631 So. 2d 658.
First, the court of appeal recognized the minutes showed the defendant pleaded not guilty to the offense charged in Docket No. CR-1201-73; this was not evidence of a prior conviction. Thus, the admission in evidence of the minute entry and corresponding bill of information for that charge constituted inadmissible other crimes evidence beyond the scope of La.C.E. art. 609.1.
Second, the court of appeal examined a set of court minutes dated October 12, 1973, attached to the Presentence Investigation Report which had not been introduced or discussed at trial or sentencing. These October 12, 1973, minutes revealed that on that date, the district court accepted Johnson's guilty plea in CR-1192-73 and sentenced him to a three-year suspended sentence. The other five simple burglary charges were nolle prosequied by the state; Nos. CR-1195-73, CR-1197-73, CR-1198-73, CR-1200-73 and CR-1201-73.[5] The defendant was, therefore, telling the truth when he maintained at trial that he had one prior simple burglary conviction.
The court of appeal concluded, that with the exception of the charge to which the defendant admitted he pleaded guilty, Docket No. CR-1192-73, all other evidence concerning the simple burglary charges was not evidence of prior convictions and was erroneously admitted. The court of appeal held the introduction of the evidence was prejudicial to the substantial rights of the defendant and reversed the convictions and sentences, reasoning:
[g]enerally, evidence of extraneous offenses is inadmissible due to the prejudicial effect upon the accused's constitutional presumption of innocence. State v. Vernon, 385 So. 2d 200 (La.1980); State v. *99 Prieur, 277 So. 2d 126 (La.1973). The supreme court, in State v. Brown, 428 So. 2d 438, 443 (La.1983), noted as to other crimes evidence that, "... the effect on a jury of inadmissible other crimes evidence cannot be determined, and that such evidence is per se prejudicial and a substantial violation of a statutory right."
State v. Johnson, p. 6-7; 631 So.2d at 662.
The state's writ was granted to determine whether harmless error analysis applies when other crimes evidence is improperly admitted. 94-1379 (La. 10/28/94), 644 So. 2d 378.
LAW AND DISCUSSION
Other Crimes Evidence
Evidence of other crimes is generally inadmissible in the guilt phase of a criminal trial unless the probative value of the evidence outweighs its prejudicial effect and unless other safeguards are met. State v. Code, 627 So. 2d 1373 (La.1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1870, 128 L. Ed. 2d 491 (1994); State v. Bourque, 622 So. 2d 198 (La.1993); State v. Silguero, 608 So. 2d 627 (La.1992). This general rule ensures that a defendant who has committed other crimes will not be convicted of a present offense simply because he is perceived as a "bad person," irrespective of the evidence of his guilt or innocence. A conviction should be based on guilt and not on character. Bourque, 622 So.2d at 233; State v. Hamilton, 478 So. 2d 123 (La.1985), cert. denied, 478 U.S. 1022, 106 S. Ct. 3339, 92 L. Ed. 2d 743 (1986). One important safeguard is advance notice that such other crimes evidence will be offered. This prevents surprise and allows a defendant an opportunity to prepare a meaningful defense. Bourque, 622 So.2d at 233; Hamilton, 478 So.2d at 129; State v. Prieur, 277 So. 2d 126 (La.1973).
There are statutory and jurisprudential exceptions to this exclusionary rule. Code, 627 So.2d at 1381; Silguero, 608 So.2d at 629. In this case, the state relied upon La.C.E. art. 609.1, which allows impeachment of a witness in a criminal case by evidence of prior convictions. If a defendant chooses to testify, this provision authorizes credibility testing with evidence of prior criminal convictions. See State v. Tassin, 536 So. 2d 402 (La.1988), cert. denied, 493 U.S. 874, 110 S. Ct. 205, 107 L. Ed. 2d 159 (1989); State v. Neslo, 433 So. 2d 73 (La.1983) (both decided under former LSA-R.S. 15:495[6]). Evidence regarding previous arrests, indictments, prosecutions or other criminal proceedings not resulting in convictions is prohibited.
Although Johnson pleaded guilty to five simple burglary charges on September 21, 1973, those charges were later nolle prosequied by the state on October 12, 1973, pursuant to a plea bargain. The state argues without authority that once the defendant entered a guilty plea, the convictions could not be nolle prosequied. The state may nolle prosequi a case after the verdict has been rendered and before sentencing with the trial court's permission. See State v. Hoyal, 516 So. 2d 146 (La.App. 5th Cir.1987) [citing State ex rel. Bier v. Moise, 48 La.Ann. 144, 18 So. 956 (1895); State ex rel. Bier v. Klock, 48 La.Ann. 140, 18 So. 942 (1895); and State ex rel. Butler v. Moise, 48 La.Ann. 109, 18 So. 943 (1895)]; State v. Knight, 526 So. 2d 452 (La.App. 5 Cir.1988). See also State v. Perry, 116 La. 231, 40 So. 686 (1906).
Johnson's only conviction for simple burglary was the one charge to which he pleaded guilty. Both the bills of information and the court minutes regarding all other simple burglary charges were not evidence of prior convictions. They were beyond the scope of La.C.E. art. 609.1 and their erroneous admission in evidence constituted inadmissible other crimes evidence.
*100 Harmless Error Analysis
The question is whether a harmless error analysis may be used to review a conviction where inadmissible other crimes evidence is disclosed to the jury. The Louisiana harmless error rule was first codified in 1928 with the enactment of former LSA-R.S. 15:557.[7] This rule limited reversals to cases where the error complained of probably had a substantial effect upon the outcome of the trial. Paul M. Hebert, The Problem of Reversible Error in Louisiana, 6 Tul.L.Rev. 169, 199-200 (1932); Dale E. Bennett, The 1966 Code of Criminal Procedure, 27 La.Law Rev. 175, 230 (1967). See also, La.C.Cr.P. art. 921, Official Revision Comment (c).
In 1966, LSA-R.S. 15:557 was amended and reenacted as La.C.Cr.P. art. 921.[8] Article 921 now provides:
A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.
The history of Louisiana's harmless error rule makes clear that there has been one common directive: appellate courts should not reverse convictions for errors unless the accused's substantial rights have been violated. This comports with the general theory that "appeals in criminal cases are not granted merely to test the correctness of the trial court's ruling, but only to rectify injuries caused thereby." State v. Saia, 212 La. 868, 876, 33 So. 2d 665, 668 (1947), citing State v. Cullens, 168 La. 976, 123 So. 645, 648 (1929).
This Court adopted the federal test for harmless error announced in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), as a practical guide for determining whether substantial rights of the accused have been violated. See State v. Gibson, 391 So. 2d 421 (La.1980). Chapman tests whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." 386 U.S. at 24; 87 S.Ct. at 828. An error did not "contribute" to the verdict when the erroneous trial feature is unimportant in relation to everything else the jury considered on the issue. Yates v. Evatt, 500 U.S. 391, 403, 111 S. Ct. 1884, 1893, 114 L. Ed. 2d 432 (1991), overruled as to standard of review for erroneous jury instructions in Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991).
Chapman was refined in Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993). The Sullivan inquiry "is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Id., 508 U.S. at ___, 113 S.Ct. at 2081. This Court adopted the Sullivan refinement of Chapman. See State v. Code, 627 So.2d at 1384; State v. Bourque, 622 So.2d at 241 fn. 20.
In Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991), a five-person majority of the United States Supreme Court distinguished between "trial errors," which may be reviewed for harmless error, and "structural errors," which defy analysis by harmless error standards.
Trial error occurs during the presentation of the case to the trier of fact and may be quantitatively assessed in the context of the other evidence to determine whether its admission at trial is harmless beyond a *101 reasonable doubt. A structural error is one which affects the framework within which the trial proceeds. Id., 499 U.S. at 307-311, 111 S.Ct. at 1264-1265. Structural defects include the complete denial of counsel, see Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); adjudication by a biased judge, see Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927); exclusion of members of defendant's race from a grand jury, see Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986); the right to self-representation at trial, see McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984); the right to a public trial, see Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984); and the right to a jury verdict of guilt beyond a reasonable doubt, see Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993). This Court has acknowledged the distinction between trial error and structural error. See State v. Cage, 583 So. 2d 1125 (La.1991), cert. denied, 502 U.S. 874, 112 S. Ct. 211, 116 L. Ed. 2d 170 (1991).
Analysis of the foregoing principles shows that the erroneous introduction of other crimes' evidence is a trial error, i.e., an error which occurs during the case's presentation to the trier of fact, which may be quantitatively assessed in the context of the other evidence. As such, it may be reviewed for harmless error. This conclusion is not barred by consideration of La.C.Cr.P. art. 770, which in pertinent part provides:
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
* * * * * *
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
* * * * * *
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.
This Court has previously held that violation of this rule is per se prejudicial and a substantial denial of the defendant's statutory rights, reasoning that the effect on a jury of evidence of inadmissible other crimes evidence cannot be determined. See State v. Brown, 428 So. 2d 438 (La.1983). This is so even where a defendant fails to move for a mistrial, as required, as long as an objection is entered. See State v. Duke, 362 So. 2d 559 (La.1978); State v. Hamilton, 356 So. 2d 1360 (La.1978).
We reject this per se rule as it impacts appellate review. Although Article 770 is couched in mandatory terms, this is a rule for trial procedure. Its operation depends upon motion by the defendant. The defendant may even waive its mandatory mistrial effect by requesting an admonition only. We find instead that the mandatory language of LSA-C.Cr.P. art. 921 provides the proper scope for appellate review; i.e., a judgment or ruling shall not be reversed due to error unless the error affects substantial rights of the accused.[9]
The per se rule was not consistently applied. Our holding is in accord with other cases utilizing a harmless error analysis. State v. Connor, 403 So. 2d 678, 680 (La.1981), held improper questioning about defendant's prior arrests "could not have had any effect on the jury's decision." State v. Neslo, 433 So. 2d 73 (La.1983), held both improper questioning of the defendant as to the nature of a prior charge and erroneous introduction of a certified copy of his prior conviction which showed his probationary status to be harmless. State v. Tassin, 536 So. 2d 402 (La. 1988), cert. denied, 493 U.S. 874, 110 S. Ct. 205, 107 L. Ed. 2d 159 (1989), held erroneous admission of the defendant's conviction record which showed probation and plea bargain conditions were not unduly prejudicial in light of the evidence of guilt.
*102 Based on the foregoing, we hold that the introduction of inadmissible other crimes evidence results in a trial error subject to harmless error analysis. Insofar as State v. Brown, supra, and other cases have held the admission of inadmissible other crimes evidence is per se prejudicial and not subject to harmless error review, they are overruled.
The Court must now decide whether the error was harmless in this case; i.e., whether the verdict actually rendered was surely unattributable to the error. Sullivan, 508 U.S. at ___, 113 S.Ct. at 2081. The state presented the testimony of two eyewitnesses. Corsey saw Johnson when Dwana turned on the light; he saw Johnson stab him in the stomach. Dwana also saw her stepfather when she turned on the light. She had another opportunity to identify him outside the trailer when he turned to look at her. Johnson was well-known to both witnesses; misidentification under these circumstances is unlikely.
The jury also heard testimony about prior threats Johnson made toward both Corsey and Grace Johnson. The defendant was familiar with Grace Johnson's trailer and knew how to enter it. Testimony established Johnson thought both Grace Johnson and Dwana would be absent that evening, leaving Corsey with only the younger children.
The jury heard testimony that the defendant had a long history of criminal activity. The defendant admitted to an extensive list of prior convictions, including multiple DWI convictions. During questioning often solicited by defense counsel, testimony was adduced as to Johnson's serving time in jail. The defendant admitted to one prior conviction for simple burglary.
With this background, it is clear that the erroneous admission of inadmissible evidence showing Johnson previously charged with five counts of simple burglary was harmless error.
CONCLUSION
The erroneous admission of other crimes evidence is a trial error subject to harmless error analysis on appeal. The facts show that, in this case, the error was harmless and the court of appeal erred in reversing the conviction on this issue. The only other issue raised in his appeal, excessive sentence, is without merit.
JUDGMENT OF COURT OF APPEAL REVERSED; RELATOR'S CONVICTION AND SENTENCE ARE AFFIRMED.
CALOGERO, C.J., dissents and will assign reasons.
VICTORY, J., dissents in part and concurs in part with reasons.
VICTORY, Justice, concurring in part and dissenting in part.
I am in general agreement with the majority's conclusion that the introduction of inadmissible other crimes evidence results in a trial error which is subject to the harmless error analysis.
However, I cannot agree that the error in this case was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). The weight of the evidence against a defendant does not, in any way, lessen his Constitutional right to a fair trial. The defendant's alibi defense hinged upon his credibility. The state acknowledged the importance of the defendant's credibility in its argument before the trial court on the issue of admissibility of the September 1973 minutes and corresponding bills of information:
MRS. MINALDI: And just for the record, Your Honor, of course the State's position is that this is being introduced on the issue of credibility. Mr. Johnson's credibility is crucial to this proceeding, and the fact that he has denied the fact that he had these burglaries is crucial to his credibility, and that is why the State is seeking writs and asking for a stay of the proceedings during the seeking of emergency writs. (Emphasis added.)
The state's complete destruction of his credibility, and thus his alibi defense, through the use of certified court documents showing five felony burglary convictions that did not exist, in my view prevented the defendant from having a fair trial. By the time the case was submitted for decision, the jury *103 had been erroneously led to believe that the defendant, who was on trial for attempted second degree murder and aggravated burglary, had been previously convicted of five burglaries, had lied about the convictions under oath, and had been caught lying about them in the jury's presence. In fact, the defendant was telling the truth about these nonexistent convictions, but the jury never knew it. Any chance that the jury had of properly weighing the defendant's credibility, and thus his alibi, was destroyed by the prejudice created by this inadmissible evidence.
As the majority points out, prior to today's decision, we have held relatively minor infractions in the area of inadmissible other crimes evidence to be harmless. State v. Connor, 403 So. 2d 678 (La.1981); State v. Neslo, 433 So. 2d 73 (La.1983); State v. Tassin, 536 So. 2d 402 (La.1988), cert. denied, 493 U.S. 874, 110 S. Ct. 205, 107 L. Ed. 2d 159 (1989). This case is totally distinguishable. Introducing evidence of five prior felony convictions that do not exist, and then impeaching the defendant with certified court documents when he truthfully denies their existence can not be considered "minor," and should not be deemed to be harmless error.
I also take issue with the majority's finding that the provisions of La.Code Crim.P. art. 770 are not pertinent because the defendant did not move for a mistrial. What the majority fails to consider is that this defendant was precluded from making such a motion because neither his lawyer, nor the trial court were aware that the state's evidence of the five simple burglary convictions was simply erroneous. Although the defendant asked the state to provide a copy of his prior criminal record pre-trial, the record shows the state failed to advise the defendant of the five felony convictions at issue. The first time that defense counsel became aware of the convictions was during the trial. Relying on the certified court records, defense counsel had no reason to suspect that the convictions were subsequently nolle prosequied, and had no basis for objecting to the admissibility of the September 1973 minutes. Because of the exceptional circumstances presented, this Court should excuse defense counsel's failure to move for a mistrial. Cf. State v. Green, 493 So. 2d 588 (La.1986); State v. Williamson, 389 So. 2d 1328 (La. 1980).
For the reasons stated, I agree with the Louisiana Third Circuit Court of Appeal that the defendant is entitled to a new trial.
NOTES
[1] This case was argued before a panel consisting of Chief Justice Calogero and Justices Marcus, Dennis, Watson, Lemmon, Johnson and Victory, with Justice Kimball not on panel. Justice Dennis has taken office on the United States Court of Appeal for the Fifth Circuit and is no longer a member of this Court. By order dated October 9, 1995, this case was resubmitted on the briefs already filed and the oral arguments already recorded before a panel consisting of Chief Justice Calogero and Justices Marcus, Watson, Lemmon, Kimball, Johnson and Victory.
[2] The court minutes also showed the defendant was charged with simple burglary in CR-1203-73 and CR-1205-73. The defendant pleaded not guilty to both of those charges. There are no corresponding bills of information in the record for these charges.
[3] La.C.E. art. 609.1 provides in pertinent part:
Art. 609.1 Attacking credibility by evidence of conviction of crime in criminal cases
A. General Criminal rule. In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to limitations set forth below.
B. Convictions. Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.
C. Details of convictions. Ordinarily, only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible. However, details of the offense may become admissible to show the true nature of the offense:
(1) When the witness has denied the conviction or denied recollection thereof;
(2) When the witness has testified to exculpatory facts or circumstances surrounding the conviction; or
(3) When the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury.
[4] The court of appeal granted writs and made its ruling peremptory with the following language: "We reverse, vacate and set aside the ruling of the trial court finding the trial court erred in not admitting the bills of information into evidence." One judge dissented, finding no error in the trial court's ruling.
[5] The charges in CR-1203-73 were also nolle prosequied, however, that charge is not at issue here.
[6] Former LSA-R.S. 15:495 provided:
Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.
[7] Former LSA-R.S. 15:557 provided:
No judgment shall be set aside, or a new trial granted by any appellate court of this state, in any criminal case, on the grounds of misdirection of the jury or the improper admission or rejection of evidence, or as to error of any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.
[8] The 1966 version of LSA-C.Cr.P. art. 921 provided:
A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.
[9] Prejudice to the substantial rights of the defendant was found in these cases upholding the per se rule. See Duke, 362 So.2d at 561; Hamilton, 356 So.2d at 1363. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1608900/ | 664 So. 2d 66 (1995)
Mercedes DE SOTO, Appellant,
v.
GUARDIANSHIP OF Antonio DE SOTO and Guardianship of Martha De Soto, Appellees.
No. 95-922.
District Court of Appeal of Florida, Third District.
December 13, 1995.
*67 Tew & Beasley and Joseph A. DeMaria, Humberto H. Ocariz, and Sheri B. Ross, Miami, for appellant.
J. James Donnellan, III, Miami, for appellees.
Before SCHWARTZ, C.J., and NESBITT and JORGENSON, JJ.
PER CURIAM.
Mercedes De Soto appeals from a final order of the probate court directing payment to her of funds held in trust. The Guardianships of Antonio De Soto and Martha De Soto cross-appeal. For the following reasons, we reverse.
Mercedes De Soto is the sister of Antonio De Soto who is married to Martha De Soto. The three have lived together for most of the past fifty years. All moved to the United States from Cuba more than thirty years ago. Around that time, several joint bank accounts were opened in the United States, each bearing all three names Mercedes, Antonio, and Martha De Soto. Mercedes and Antonio both contributed funds to the joint accounts; Martha contributed nothing. The evidence suggests that Antonio, who owned photography studios in which Mercedes sometimes worked, contributed a greater amount than his sister. Beyond these bare facts, there is little competent evidence of the depositors' intent regarding the funds.
In September 1993, Antonio's son, Antonio, Jr., obtained the power of attorney from his father and transferred the funds, then totalling $324,000, from the joint accounts and into an account with his father named as trustee and Antonio, Jr., as sole beneficiary. The son was subsequently appointed plenary guardian for his father and partial guardian for his mother, Martha. After this, in September 1994, Mercedes filed a petition in probate court seeking recovery of one-half the $324,000. After conducting a trial, the probate court awarded Mercedes $60,000 of the funds.
Mercedes claims she is entitled to one-half the $324,000 because she and Antonio contributed to the accounts but Martha contributed nothing. The guardianships counter that Mercedes should not have received anything because she contributed little to the accounts as indicated by the great disparity of interest income claimed on Mercedes and Antonio's tax returns.
Funds contributed to a joint bank account by one of the owners of the account are presumed to be a gift to the other owners of the account absent clear and convincing evidence to the contrary. Hagopian v. Zimmer, 653 So. 2d 474 (Fla. 3d DCA 1995). Further, the interests of all joint owners in the funds survive their transfer from the account by one of the owners. In re Guardianship of Medley, 573 So. 2d 892 (Fla. 2d DCA 1990). Neither party presented evidence sufficient to overcome the presumption that each party owns an equal share of the funds. Thus, Mercedes was entitled to a one-third share of the funds or $108,000. The parties' remaining points on appeal lack merit.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/799607/ | 11-757-cr
United States v. Mason
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 10th day of May, two thousand twelve.
PRESENT: GUIDO CALABRESI,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
Appellee,
v. No. 11-757-cr
BRUCE H. MASON,
Defendant,
JUDY MARTINO MASON,
Claimant-Appellant.*
----------------------------------------------------------------------
FOR APPELLANT: Judy Martino Mason, pro se, Glen Allen, Virginia.
FOR APPELLEE: Kevin P. Dooley, Paula Ryan Conan, Assistant United States
Attorneys, for Richard S. Hartunian, United States Attorney for
the Northern District of New York, Syracuse, New York.
*
The Clerk of Court is directed to amend the official caption as shown above.
1
Appeal from an order of the United States District Court for the Northern District of
New York (Thomas J. McAvoy, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order entered on December 28, 2010, is AFFIRMED.
Judy Martino Mason appeals pro se from the denial of her Fed. R. Civ. P. 60(b)
motion seeking relief from an earlier denial of a Fed. R. Crim. P. 41(g) motion for return of
seized property. We assume the parties’ familiarity with the facts and the record of prior
proceedings, which we reference only as necessary to explain our decision to affirm.
We review the denial of a Rule 60(b) motion for abuse of discretion, see Transaero,
Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir. 1998), which we will only
identify where the decision rests on legal error or clearly erroneous factual finding, or falls
outside the range of permissible decisions, see RJE Corp. v. Northville Indus. Corp., 329
F.3d 310, 316 (2d Cir. 2003). We identify no such abuse here.
Fed. R. Civ. P. 60(b)(3) states that a “court may relieve a party . . . from a final
judgment, order, or proceeding for . . . fraud . . . , misrepresentation, or misconduct by an
opposing party.” Such relief “cannot be granted absent clear and convincing evidence of
material misrepresentations and cannot serve as an attempt to relitigate the merits” of the
underlying decision. Fleming v. N.Y. Univ., 865 F.2d 478, 484 (2d Cir. 1989). Here, the
district court found that Mason did not carry this burden with respect to the government’s
representation that a seized fire alarm panel is no longer in its possession. The government’s
statement that it discarded the alarm panel because it suffered “smoke and heat damage” and
2
was “filthy,” App. 255, is not so inconsistent with Mason’s evidence indicating that the
alarm panel was not burned and that the alarm’s memory “would not have been damaged by
what little heat or fire impinged on” it, App. 54, as to demonstrate fraud or material
misrepresentation clearly and convincingly. Nor is such an inference compelled by evidence
that the government denied a defense witness’s pretrial requests to examine the alarm panel.
Although Mason failed to carry her burden of proof under Rule 60(b)(3), there is no
question that her reasons for seeking relief from judgment fell within that specific clause,
precluding her from seeking relief alternatively under Rule 60(b)(6). See United States v.
Int’l Bhd. of Teamsters, 247 F.3d 370, 391–92 (2d Cir. 2001). Thus, the district court also
acted within its discretion in denying Mason Rule 60(b)(6) relief.
We have considered Mason’s remaining arguments and conclude that they are without
merit. Accordingly, the district court’s order is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
3 | 01-03-2023 | 05-10-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1609281/ | 664 So.2d 1060 (1995)
John LUTZ, Appellant,
v.
STATE of Florida, Appellee.
No. 95-0409.
District Court of Appeal of Florida, Fourth District.
November 29, 1995.
Rehearing Denied January 8, 1996.
Richard L. Jorandby, Public Defender, and Mallorye G. Cunningham, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and William A. Spillias, Assistant Attorney General, West Palm Beach, for appellee.
GUNTHER, Chief Judge.
Appellant, John Lutz, defendant below (Defendant), appeals a final judgment of guilt and adult sentence for burglary of a structure and third degree grand theft. Because a recent amendment to section 39.059(7), Florida Statutes (1993), which deleted the requirement of contemporaneous written findings for adult sentencing became effective prior to Defendant's sentencing, we affirm.
Defendant was seventeen at the time he committed the crime. However, after considering the criteria of former section 39.059(7), the trial court sentenced Defendant as an adult. On January 24, 1995, four days after oral sentencing, the trial court filed a written order nunc pro tunc January 20, 1995, imposing adult sanctions which listed the criteria of former section 39.059(7).
Previously, section 39.059(7)(d) provided that "[a]ny decision to impose adult sanctions shall be in writing and in conformity with each of the above criteria. The court shall render a specific finding of fact and the reasons for the decision to impose adult sanctions." The Florida Supreme Court has held that the trial court is required to reduce the oral findings of fact and articulated reasons to writing without substantive change on the same date. Troutman v. State, 630 So.2d 528, 532 (Fla. 1993). In Troutman, because the written findings were issued three days after sentencing and the findings and reasons were merely conclusory, the supreme court found that the trial court made inadequate findings. Id; see also Coronado v. State, *1061 654 So.2d 1267 (Fla. 2d DCA 1995) (sentence remanded because adequate written findings issued eleven days after oral sentence nunc pro tunc to the sentencing date could not avoid the contemporaneous requirement of Troutman).
Effective October 1, 1994, the amended section 39.059(7)(d), Florida Statutes (Supp. 1994), now provides:
(d) Any decision to impose adult sanctions must be in writing, but is presumed appropriate, and the court is not required to set forth specific findings or enumerate the criteria in this subsection as any basis for its decision to impose adult sanctions.
Ch. 94-209, § 51, at 834-35, Laws of Fla. This amendment legislatively overruled Troutman's strict compliance requirement of contemporaneous written findings. See Sales v. State, 652 So.2d 513, 514 n. 1 (Fla. 4th DCA 1995).
In Shaw v. State, 645 So.2d 68, 69 (Fla. 4th DCA 1994), this court reversed the appellant's adult sentence entered before the effective date, and remanded for the trial court to make specific written findings. There, we noted that the amended statute was inapplicable to sentences in the appeal "pipeline" rendered prior to the effective date of the amendment. Id. at 69-70.
Here, however, even though Defendant committed his offense prior to the amendment's effective date, his sentencing occurred after the effective date of the amendment. Thus, the amended statute should have applied retroactively to Defendant at his sentencing hearing. See Thomas v. State, 662 So.2d 1334 (Fla. 1st DCA 1995). (rejecting appellant's claim that court erred in failing to set forth findings of suitability for adult sanctions; applying procedural amendment retroactively to appellant sentenced after effective date did not constitute ex post facto violation because appellant's punishment would not be affected).
In the instant case, because Defendant's sentencing occurred after the effective date of the amendment to section 39.059(7)(d), no error occurred at Defendant's sentencing when the trial court failed to make the contemporaneous written findings formerly required by section 39.059(7), Florida Statutes (1993), and Troutman.
We find that the restitution issue has been waived. See Sims v. State, 637 So.2d 21, 23 (Fla. 4th DCA 1994). Accordingly, we affirm Defendant's conviction.
AFFIRMED.
DELL and STEVENSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609077/ | 21 So.3d 798 (2008)
MARIO JAVADES McBRIDE
v.
STATE.
No. CR-06-1437.
Court of Criminal Appeals of Alabama.
March 28, 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/740030/ | 112 F.3d 429
30 Bankr.Ct.Dec. 953, 97 Cal. Daily Op. Serv. 3104,97 Daily Journal D.A.R. 5439,97 Daily Journal D.A.R. 5695
In re HOTEL SIERRA VISTA LIMITED PARTNERSHIP, an Arizonalimited partnership, Debtor.CHEQUERS INVESTMENT ASSOCIATES, a Texas General Partnership,Plaintiff-Appellant,v.HOTEL SIERRA VISTA LIMITED PARTNERSHIP, an Arizona limitedpartnership, Defendant-Appellee.
No. 95-17381.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted March 12, 1997.Decided April 29, 1997.
Samuel Stricklin, Sheinfeld, Maley and Kay, Dallas, TX, for plaintiff-appellant.
Jeffrey H. Greenberg, Greenberg Felker, Altfeld Greenberg & Battaile, Tucson, AZ, for defendant-appellee.
Appeal from the United States District Court for the District of Arizona, John M. Roll, District Judge, Presiding. D.C. No. CV-95-00152-JMR.
Before ALARCON, BEEZER and O'SCANNLAIN, Circuit Judges.
BEEZER, Circuit Judge:
1
Chequers Investment Associates ("Chequers") appeals the district court's affirmance of a bankruptcy court order confirming Hotel Sierra Vista Limited Partnership's ("HSVLP") Chapter 11 plan for reorganization. Chequers asserts the district court erred in affirming: 1) the bankruptcy court's conclusion that Chequers liens on hotel room revenues did not survive HSVLP's Chapter 11 petition because Chequers failed to meet its burden for establishing its right to those revenues; and 2) the bankruptcy court's order confirming HSVLP's plan because the plan does not treat Chequers fairly and equitably. We have jurisdiction pursuant to 28 U.S.C. § 158(b), and we reverse.
2
* HSVLP built a 151-room hotel in Sierra Vista, Arizona, that opened for business in 1986 as a Ramada Inn franchise. Additional hotel facilities include a lounge, a restaurant, a ballroom, banquet rooms and meeting rooms.
3
HSVLP financed the hotel's construction by borrowing a total of $6,196,000 in two secured loans from City Federal Savings and Loan ("City Federal"). HSVLP defaulted on its loans in 1990.
4
The Resolution Trust Corporation ("RTC") became City Federal's successor when City Federal became insolvent in 1991. The RTC subsequently sold a $130,000,000 pool of loans, a portion of which were City Federal's loans to HSVLP, to Chequers, a Texas-based investment group. Chequers demanded payment in full from HSVLP and commenced foreclosure proceedings. HSVLP sought Chapter 11 protection in June 1993.
5
In August 1993, Chequers moved to sequester the hotel's post-petition room revenues. Chequers maintained that these revenues were "cash collateral" within the meaning of 11 U.S.C. § 363(a). The bankruptcy court heard Chequers's motion in September 1993, but explicitly deferred deciding whether the room revenues were cash collateral.1 The court ordered HSVLP to sequester the room revenues and meet its operating expenses from those funds.
6
Objecting to some expenditures made by the hotel, Chequers moved for an order governing HSVLP's use of post-petition hotel room revenues in December 1993. At the close of a January 1994 hearing, the bankruptcy court again deferred deciding whether the room revenues were cash collateral.2
7
Chequers moved a third time for an order in February 1994. The bankruptcy court deferred ruling on the legal question at a March hearing.
8
HSVLP filed its initial plan of reorganization in October 1993. HSVLP amended its plan seven times between November 1993 and the June 1994 confirmation hearing. At the time of its initial filing, HSVLP's principal assets were the hotel itself, whose value the parties estimated and stipulated to be $2,200,000, together with $625,844 evidencing accumulated pre-petition revenues. Between the time HSVLP filed its petition and the December 1994 plan confirmation, the hotel received an additional $812,425 in net revenues.
9
After HSVLP proposed its plan, Chequers elected to secure its entire claim pursuant to 11 U.S.C. § 1111(b). Chequers voted to reject HSVLP's plan. The bankruptcy court confirmed the plan over Chequers's objections by using the "cramdown" alternative of 11 U.S.C. § 1129(b).
10
In its order confirming the plan, the bankruptcy court concluded that the post-petition room revenues were cash collateral. The bankruptcy court nevertheless denied Chequers a secured interest in the post-petition hotel revenues. The bankruptcy court determined that Chequers had not met the burden of proving the "extent" of its interest as required by 11 U.S.C. § 363(o)(2).
11
Chequers appealed the bankruptcy court's order confirming the plan to the district court. The district court affirmed.
II
12
We review de novo the district court's decision on an appeal from the bankruptcy court. In re Sternberg, 85 F.3d 1400, 1404 (9th Cir.1996). Conclusions of law made by the bankruptcy court are reviewed de novo. In re Alsberg, 68 F.3d 312, 314 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1568, 134 L.Ed.2d 667 (1996). The bankruptcy court's findings of fact are reviewed for clear error. Id.
III
13
Sometimes yesterday's confusion resolves itself into today's easily-applied rule of law. Between the June 1994 confirmation hearing and the bankruptcy court's December 1994 order, Congress amended the statutory definition of cash collateral to clarify that the term "rents" included hotel room revenues.3 On this basis, the bankruptcy court concluded that the hotel's post-petition room revenues were cash collateral. This development places us in an unusual position, however, one where we must assess the actions undertaken by the parties and the bankruptcy court in this case in light of yesterday's confusion.
14
After its Chapter 11 filing and through the time of the bankruptcy court's order confirming its plan, HSVLP deposited all revenues received from the hotel, including those attributable to room occupancy, in a single money market account. Chequers contends that HSVLP's trustee violated 11 U.S.C. § 363(c)(4) by so doing. That section provides that "... the trustee shall segregate and account for any cash collateral in the trustee's possession, custody, or control." 11 U.S.C. § 363(c)(4).
15
Because of the then uncertain status of room revenues, the bankruptcy court deferred deciding the legal question or ordering HSVLP to follow the restrictions imposed by § 363(c)(4). Instead, the bankruptcy court required HSVLP to sequester the hotel's revenues and meet its operating expenses using those funds. The bankruptcy court determined ultimately that Chequers's secured interest in post-petition room revenues did not survive post-petition because Chequers failed to meet its burden of proving the "extent" of its interest in those revenues. See 11 U.S.C. § 363(o)(2).
16
Past uncertainty aside, Chequers asserts that HSVLP's commingling of room revenues with other revenues in and of itself constitutes reversible error. Because of HSVLP's commingling, Chequers contends that, as a matter of equity, we should shift the burden of proof under § 363(o)(2) and require HSVLP to prove the amount of revenues that are free of Chequers's claim. Chequers relies on our opinion in Freightliner Market Development Corp. v. Silver Wheel Freightlines, Inc., 823 F.2d 362 (9th Cir.1987) for this proposition. We reject application of Freightliner in this matter.
17
In Freightliner, we considered a debtor's use of cash collateral in violation of 11 U.S.C. § 363(c)(2) in the context of a creditor's request for relief from an automatic stay under 11 U.S.C. § 362(g). Id. at 368. The burdens of proof in § 362(g) share a parallel organization with those in § 363(o).4
18
The bankruptcy court in Freightliner concluded that the debtor violated § 363(c)(2) because the trustee "used cash collateral derived from collection of accounts receivable purportedly covered by [the creditor's] security interest without a court order or [the creditor's] consent."5 Freightliner, 823 F.2d at 367. The bankruptcy court found that the trustee's use of cash collateral "prevented the creditor from tracing the proceeds of [the creditor's] collateral or establishing the level of [the creditor's] receivables collateral at the time of the filing of the bankruptcy proceeding." Id. at 367-68.
19
Because of the trustee's violation of § 363(c)(2), the bankruptcy court awarded the creditor an interest in all of the debtor's pre-petition and post-petition accounts receivable. Id. at 368. The bankruptcy court then shifted the burden to the debtor to prove that cash collateral was not being used after entry of its order prohibiting such use. Id. The statutory violation was not solely the cause of the burden shift. Rather,
20
[t]he basis for the shift was the [bankruptcy] court's view that [the] debtor improperly used cash collateral in violation of § 363(c)(2). The [bankruptcy] court concluded that the burden of proof on the issue of tracing the accounts receivable was most fairly placed on the Trustee because his predecessor's (debtor's) breach of duty resulted in the inability to trace the proceeds derived therefrom.
21
Id.
22
We do not adopt the equitable remedy of shifting the burden under § 363(o)(2) for two reasons. First, because of the unsettled nature of the law on the question whether hotel room revenues constituted "rents" within the meaning of § 363(a), the bankruptcy court declined to enter a cash collateral order. To maintain the status quo, HSVLP complied with all the bankruptcy court ordered it to do, namely to sequester its revenues and meet operating expenses out of post-petition revenues. Second, nothing in the record suggests that HSVLP's failure to segregate and account resulted in the inability of either party to establish the validity and extent of its interest in the sequestered funds.
23
The creditor in Freightliner faced losing its security interest in post-petition revenues because the debtor's actions denied the creditor the ability to meet his burden. Nothing in the record in this case suggests that HSVLP's actions prevented Chequers from proving the extent of its interest. Chequers's argument can be summarized in this manner: because HSVLP failed to undertake efforts, as a precautionary measure owing to the duty imposed by § 363(c)(4), to segregate and account for revenues that ultimately were determined to be cash collateral, we should shift the burden of proof under § 363(o)(2) and remand this case. This we decline to do.
IV
24
Our refusal to shift the burden does not end our inquiry, however. The bankruptcy court found that Chequers had failed to meet its burden of proving the "extent" of its interest under § 363(o)(2). Chequers argues that it met its burden. We agree.
25
We review the bankruptcy court's finding for clear error. In re Lazar, 83 F.3d 306, 308 (9th Cir.1996). A party seeking to prove the "extent" of its interest under § 363(o)(2) must do two things. First, as a preliminary matter, the party must prove that it holds a perfected security interest in post-petition revenues to which its liens still rightly attach. See In re Days California Riverside Limited Partnership, 27 F.3d 374, 377 (9th Cir.1994) ("Days California "). Second, a party must prove the amount of money to which its liens attach. See 11 U.S.C. § 363(o)(2). Our decision in Days California provides the formula for determining the amount of revenues to which liens may survive post-petition. In Days California, we stated that
26
Hotel methods of accounting will permit the identification of the revenues generated by the rooms and those generated by services. Determination of the net revenues will require allocation of direct and indirect expenses in proportion to each category of revenue.
27
Id. at 377. Thus, proving the extent of one's interest involves submitting evidence that enables the bankruptcy court to determine the sum to which the party asserting the security interest is entitled. See id.
28
Our opinion in Days California was filed the same day that the confirmation hearing took place in this case. Thus, the bankruptcy court and the parties could not and did not have knowledge of the formula we announced that day. The trustee's financial reports, which were considered by the bankruptcy court, clearly identified gross room revenues. The trustee's reports were insufficient, however, for the bankruptcy court to precisely determine which indirect expenses of hotel operations should be allocated to and subtracted from gross room revenues. The bankruptcy court, which was aware of our decision in Days California when it issued its decision in December 1994, did not rely on the formula we enunciated in Days California when it found that Chequers failed to meet its burden.
29
Equity demands in these unusual circumstances that we review Chequers's evidentiary efforts without regard to the Days California formula. The question, then, is whether Chequers proved the "extent" of its interest within the meaning of § 363(o)(2). We hold the bankruptcy court's finding was clearly erroneous. Chequers submitted documents proving its unquestioned entitlement to sequestered room revenues at the confirmation hearing.
30
Documentary evidence introduced at the confirmation hearing with respect to the extent of Chequers's post-petition security interest included both a copy of a valid security instrument and accounting statements reflecting post-petition gross room revenues. Because of the unusual timing of events in this case, neither the parties nor the bankruptcy court attempted to apply the Days California formula to the hotel's revenues and expenses. Equity requires that the court and the parties have the opportunity to allocate direct and indirect expenses to each category of revenues listed on the trustee's reports. See Days California, 27 F.3d at 377. This will result in a net diminution of gross room revenues to which Chequers's liens attach after petition, but will be consistent with effectuating the burden structure of 11 U.S.C. § 363(o)(2) and our decision in Days California.
V
31
Days California requires Chequers to prove the exact amount of its interest in HSVLP's post-petition room revenues through application of the Days California formula. A new hearing in this case shall be conducted to apply that formula. We remand this case to the district court for proceedings consistent with this opinion. Further, we grant the district court leave to amend HSVLP's plan of reorganization as necessary so that the plan may take into account Chequers's lien on hotel room revenues.
32
REVERSED AND REMANDED.
1
The transcript of the September hearing reads in relevant part:
THE COURT: Well, let me ask you this question: Do you think it would make any sense to treat this cash as cash collateral for now, defer this issue, let the debtors file their plan. I mean, the creditor votes for it--
MR. GREENBERG [Counsel for HSVLP]: Well, Your Honor, I think there's a lot in your suggestion that I can agree to. I think I can agree to sequester the money. I won't agree that it's cash collateral.
THE COURT: I'm not--I'm saying treat it as if it were cash collateral.
MR. GREENBERG: Sequester the money. Meet the hotel's--
THE COURT: Meet the operating expenses.
MR. GREENBERG:--operating expenses. File all monthly reports. The money's not going anywhere, and I'm sure Mr. Battaile [Counsel for Chequers] knows that it's all accounted for ... So if Mr. Battaile will agree to that disposition of deferring this until later, I'm certainly willing to sit down.
THE COURT: Okay, What do you think, Mr. Battaile?
MR. BATTAILE: Judge, I'll agree to that position at this time. As long as that money doesn't go anywhere--
THE COURT: So ordered.
MR. BATTAILE:--I'm comfortable deferring it.
2
At the time of these hearings in the bankruptcy court, the state of the law on the question of whether hotel room revenues are "rents" within the meaning of § 363(a) can only be described as incoherent
HSVLP relied upon the Bankruptcy Appellate Panel's ("BAP") decision in In re Northview Corp., 130 B.R. 543, 548 (9th Cir. BAP 1991), which held that post-petition room revenues were not "rents" within the meaning of 11 U.S.C. § 363(a). The BAP noted that the "weight of authority" held that hotel room revenues were not "rents." Id. at 546 n. 4. Two bankruptcy decisions in the district of Arizona followed Northview. See In re Thunderbird Inn, Inc. 151 B.R. 224, 226-27 (Bankr.D.Ariz.1993); In re General Associated Investors Limited Partnership, 150 B.R. 756, 759-62 (Bankr.D.Ariz.1993).
Chequers relied on another bankruptcy decision for the district of Arizona that refused to follow Northview. See In re Everett Home Town Limited Partnership, 146 B.R. 453, 456 (Bankr.D.Ariz.1992). In addition, Chequers pointed to a bankruptcy decision in the Northern District of California that declined to follow Northview. See In re S.F. Drake Hotel Associates, 131 B.R. 156, 158-61 (Bankr.N.D.Cal.1991). Although it acknowledged its decision was against the weight of authority, the district court for the Northern District of California later affirmed the bankruptcy court's decision. See In re S.F. Drake Hotel Associates, 147 B.R. 538, 539-40 (N.D.Cal.1992).
The parties disagreed sharply over the precedential weight of BAP decisions on the bankruptcy courts that compose our circuit. See Bank of Maui v. Estate Analysis, Inc., 904 F.2d 470, 472 (9th Cir.1990) (expressing uncertainty over "the authoritative effect of a BAP decision").
The transcript of the January hearing reads in relevant part:
THE COURT: ... With respect to the cash collateral or the property denominated as cash collateral and in dispute, what I'd like to do with that fund is not rule on whether it is or is not cash collateral at this time, but I would ask the debtor to use that money only for necessary and ordinary operating expenses.
If there are problems that the parties can't resolve, bring that back before me on a specific dispute and I'll resolve it
...
MR. GREENBERG [Counsel to HSVLP]: I have no problem with that, Your Honor.
THE COURT: So that'll be my order.
MR. GREENBERG: That was ordered by [another bankruptcy judge] back in September. And so I have no problem with that.
THE COURT: And then we'll decide what to do with these funds when we get to confirmation.
MR. GREENBERG: Does that mean that the Court is not going to rule on the issue of whether or not this is cash collateral until we get to confirmation?
THE COURT: That's correct. I want to read these cases
... If I'm able to rule after reading the cases, I'll do it.
3
11 U.S.C. § 363(a), as amended, provides:
In this section, "cash collateral" means cash, negotiable instruments, documents of title, securities, deposit accounts, or other cash equivalents whenever acquired in which the estate and an entity other than the estate have an interest and includes the proceeds, products, offspring, rents, or profits of property and the fees, charges, accounts or other payments for the use or occupancy of rooms and other public facilities in hotels, motels, or other lodging properties subject to a security interest as provided in section 552(b) of this title, whether existing before or after the commencement of a case under this title.
4
Section 362(g) provides:
In any hearing under subsection (d) or (e) of this section concerning relief form the stay of any act under subsection (a) of this section--
(1) The party requesting such relief has the burden of proof on the issue of the debtor's equity in property; and
(2) The party opposing such relief has the burden of proof on all other issues.
Section 363(o) provides:
In any hearing under this section--
(1) the trustee has the burden of proof on the issue of adequate protection; and
(2) the entity asserting an interest in property has the burden of proof on the issue of the validity, priority, or extent of such interest.
5
Section 363(c)(2) provides:
(2) The trustee may not use, sell, or lease cash collateral under paragraph (1) of this subsection unless--
(A) each entity that has an interest in such cash collateral consents; or
(B) the court, after notice and a hearing, authorizes such use, sale or lease in accordance with the provisions of this section. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2305777/ | 980 A.2d 605 (2009)
COM.
v.
DICKSON.
No. 157 EAL (2009).
Supreme Court of Pennsylvania.
September 15, 2009.
Disposition of petition for allowance of appeal Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2720294/ | Filed 8/22/14 P. v. Deo CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sutter)
----
THE PEOPLE, C074334
Plaintiff and Respondent, (Super. Ct. No. CRF130699)
v.
RAJINDER SINGH DEO,
Defendant and Appellant.
A jury found defendant Rajinder Singh Deo guilty of inflicting corporal injury on
his spouse. (Pen. Code, § 273.5.)1
At sentencing, the trial court sentenced defendant to prison but stayed execution of
his sentence, placed him on five years’ formal probation, and (as relevant to this appeal)
ordered defendant to pay (among other fines and fees) “a $70 court operations and
conviction assessment.”
1 Undesignated statutory references are to the Penal Code.
1
On appeal, defendant contends the $70 “court operation and assessment” must be
reduced to $40, the maximum allowed by section 1465.8, subdivision (a)(1). The People
respond that the trial court did not err; rather, its imposition of “a $70 court operations
and conviction assessment” represented a $40 court operations assessment fee (§ 1465.8,
subd. (a)(1)) plus a $30 conviction assessment (Gov. Code, § 70373).
Our review of the record suggests the People are correct. The probation officer’s
report recommends, in relevant part, that defendant be ordered to pay “a $40 Court
Operations Assessment Fee pursuant to Section 1465.8(a)(1) of the Penal Code, [and] a
$30 Conviction Fee pursuant to Section 70373 of the Government Code.” The court
appears simply to have consolidated these two fees when it imposed them.
However, confusion was created by the fact that neither the court’s oral imposition
of judgment, the minute order of sentencing, nor the judgment and order granting
probation separately lists the fees imposed and states the statutory bases therefor, as is
required. (People v. High (2004) 119 Cal.App.4th 1192, 1200 (High).) “Although we
recognize that a detailed recitation of all the fees, fines and penalties on the record may
be tedious, California law does not authorize shortcuts. All fines and fees must be set
forth in the abstract of judgment. [Citations.] The abstract of judgment form used here,
Judicial Council form CR-290 . . . provides a number of lines for ‘other’ financial
obligations in addition to those delineated with statutory references on the preprinted
form. If the abstract does not specify the amount of each fine, the Department of
Corrections cannot fulfill its statutory duty to collect and forward deductions from
prisoner wages to the appropriate agency. [Citation.] At a minimum, the inclusion of all
fines and fees in the abstract may assist state and local agencies in their collection efforts.
[Citation.]” (Ibid.)
In this case, unlike in High, execution of sentence was suspended and the trial
court did not generate an abstract of judgment. However, this court has held that a
probation order must also state the amounts and statutory bases of fines and fees
2
imposed. (People v. Eddards (2008) 162 Cal.App.4th 712, 718.) Therefore, we remand
and direct the trial court to correct both the minute order and the judgment and order
granting probation by separately listing the fees imposed, and the statutory bases therefor.
(Ibid.)
DISPOSITION
The matter is remanded to the superior court, which is directed to amend both the
minute order and the judgment and order granting probation to separately state the
penalty assessments imposed by the trial court along with the statutory basis for each
assessment imposed. As modified, the judgment is affirmed. The clerk of the superior
court is directed to forward a certified copy of the amended judgment and order granting
probation to the Department of Corrections and Rehabilitation.
RAYE , P. J.
We concur:
NICHOLSON , J.
ROBIE , J.
3 | 01-03-2023 | 08-22-2014 |
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