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286 S.W.2d 34 (1956)
The GRAPETTE COMPANY, a corporation, Plaintiff-Respondent,
v.
GRAPETTE BOTTLING COMPANY, a corporation, J. M. Johnston and Nelle J. Johnston, Defendants-Appellants.
No. 7383.
Springfield Court of Appeals. Missouri.
January 11, 1956.
*35 Neale, Newman, Bradshaw, Freeman & Neale, F. B. Freeman, Donald J. Hoy, Springfield, for defendants-appellants.
Warren M. Turner, Louren G. Davidson, Howard C. Potter, Springfield, for plaintiff-respondent.
STONE, Judge.
In this jury-waived action at law, defendants appeal from a judgment of $5,753.58 entered on a note dated December 9, 1950. Admitting execution and delivery of the note, defendants complain because the trial court refused to credit on the note $2,503.32 held by plaintiff in a so-called "point of purchase advertising account" (hereinafter sometimes referred to as the advertising account).
By a written "Bottlers License Agreement" dated July 1, 1947 (hereinafter referred to as the license agreement), plaintiff herein, The Grapette Company, an Arkansas corporation with its principal place of business in Camden, Arkansas, licensed one of the defendants herein, Grapette Bottling Company, a Missouri corporation with its principal place of business in Springfield (hereinafter sometimes referred to as the defendant company), to bottle and distribute within a described territory a beverage under plaintiff's trade name of "Grapette." In the license agreement, plaintiff agreed, among other things, "to furnish units of Grapette at a price of $273 f. o. b. shipping point * * * said unit to consist of 60 gallons Grapette syrup (and) 200 gross Grapette crowns" and also "to furnish advertising in adequate amounts to thoroughly service the territory, as determined by Licensor (plaintiff)," while defendant company agreed, among other things, to "manufacture" Grapette by mixing "Grapette syrup with dextrose, pure cane or bottler's beet sugar and water" in accordance with a stated formula.
The uncontradicted testimony of plaintiff's district manager and advertising director (called as defendants' witnesses) was that, whenever defendant company bought a "unit of Grapette," it was charged "with the whole price" of $273, and that, of the $273 paid by defendant company for each such "unit," plaintiff voluntarily set aside a portion (the exact amount thus set aside *36 having been changed by plaintiff from time to time) in a so-called "point of purchase advertising account" which was "set up for the territory to advertise the product." Plaintiff made payments from the advertising account for such items as calendars, book matches, motel carriers, menu boards and freight, and on certain occasions the advertising account was charged with "a pro rata share" of other expenditures by plaintiff such as those for national advertising. On April 25, 1949, $493.96 was paid on defendant company's "syrup account" (for "units of Grapette") by a charge in that amount against the advertising account; but, on the same date, defendant J. M. Johnston, president of defendant company, wrote plaintiff "that I will not in the future ask that any credit be given me on my syrup account and charged to my advertising account" and "that the advertising department of The Grapette Company will in the future, without interference from me, handle my advertising account." Under examination by his own counsel, defendant J. M. Johnston agreed that the note, on which plaintiff sues, reflected a "settling up" of then existing obligations; and, the record clearly shows that, from and after December 9, 1950, the date of execution of the note, no payment on defendant company's "syrup account" or on the note was made by charge against the advertising account. Although "various things," such as the cost of trade-marked bottles or cases, occasionally had been charged against similar "point of purchase advertising accounts" set up for other territories, the witnesses produced by defendants stated emphatically that plaintiff determined and controlled not only what portion of the "unit" sale price of $273 would be set aside in each such advertising account but also what items would be paid therefrom.
Defendants' primary contention on this appeal is that "the trial court erred in finding as a fact that a contractual relationship (under the license agreement) still existed between the parties." It is by no means clear that the trial court's refusal to credit the balance in the advertising account on the note was predicated solely upon any such "finding." For, in the same informal and voluntary remarks, the court had pointed out that the $2,503.32 "accumulated in the advertising account is ear-marked for a certain purpose, and there isn't any agreement that that fund, * * * or any part of it, is to be used in the payment of indebtedness"; and, in similar vein, the court had stated pointedly during the trial that "the plaintiff has a contract in black and white, by which the defendants agree to pay so much money" and "so far there isn't any showing, at all, as to any agreement binding on the plaintiff company that whatever was in that point of purchase advertising account belongs to (defendants)."
However, assuming that (as defendants say) "the basis of the trial court's ruling * * * was the finding * * * that there was still a contractual relationship between the parties," there was no request for a finding of facts in the instant case; and, even if the court's voluntary comments were treated as "a brief opinion containing a statement of the grounds for its decision" [Section 510.310(2), RSMo 1949, V.A.M.S.], they would neither be binding on us nor affect the character of our appellate review, which must be upon both the law and the evidence as in actions of an equitable nature. Fort Osage Drainage District of Jackson County v. Jackson County, Mo., 275 S.W.2d 326, 328(2); Faire v. Burke, 363 Mo. 562, 252 S.W.2d 289, 290(1); Pudiwitr v. Soloman, Mo. App., 224 S.W.2d 562, 567(2, 3).
Furthermore, defendants are in no position to urge on appeal that such "finding" was erroneous as "clearly in conflict with certain judicial admissions of the plaintiff," for no such allegation of error was presented to or expressly decided by the trial court. Section 512.160(1), RSMo 1949, V.A.M.S.; Supreme Court Rule 3.23. In their motion for new trial, defendants elected to aver with particularity that "the judgment should be amended to allow defendants *37 credit for * * * $2,503.32 * * * for the reason that the plaintiffs (sic) did and have served notice of cancellation of their franchise with defendants so that the legal relationship and cause for the existence of said (advertising) account has ceased to exist"a "reason" utterly devoid of support in the record. The fundamental and time-honored principle of appellate procedure that a trial court must be afforded an opportunity to review and correct its own errors before the aid of an appellate court may be invoked [State ex rel. Morton v. Cave, 359 Mo. 72, 220 S.W. 2d 45, 49(4); Banner Iron Works v. Ray R. Rosemond Co., Mo., 107 S.W.2d 1068, 1070(4); Olson v. Olson, Mo.App., 184 S.W.2d 768, 772(3); Fruit Supply Co. v. Chicago, B. & Q. R. Co., Mo.App., 119 S.W.2d 1010, 1011(4); Tucker v. Burford, Mo.App., 95 S.W.2d 866, 867(5)] forbids our consideration of the alleged error in the "finding * * * that a contractual relationship still existed between the parties," here urged for a reason radically different from, and wholly unrelated to, that specifically averred in the motion for new trial. Noble v. Missouri Ins. Co., Mo. App., 204 S.W.2d 446, 450(12); Anth v. Lehman, Mo.App., 144 S.W.2d 190, 192(2). Consult also Nickels v. Witschner, Mo., 270 S.W.2d 848, 849(2); Block v. Rackers, Mo., 256 S.W.2d 760, 763(3); Romandel v. Kansas City Public Service Co., Mo., 254 S.W.2d 585, 594-595(24, 25); Sterrett v. Metropolitan St. Ry. Co., 225 Mo. 99, 123 S.W. 877, 879(1); Polster v. O'Hanlon, Mo.App., 267 S.W.2d 381, 385(4); Mitchell v. Russell, Mo.App., 170 S.W.2d 137, 138 (2).
Nevertheless considering defendants' contentions to determine whether "manifest injustice or miscarriage of justice has resulted" from "(p)lain errors affecting substantial rights" [Supreme Court Rule 3.27], we note that the "judicial admissions of the plaintiff," with which the court's "finding * * * that a contractual relationship still existed between the parties" is said to be "clearly in conflict," were in the second count of plaintiff's amended petition, in which appointment of a receiver for defendant company originally was sought. However, the transcript on appeal contains a stipulation that this second count was dismissed by plaintiff and that trial was had on the first count, an action in conventional form to recover on a promissory note. Upon its dismissal, the second count became an abandoned pleading and dropped out of the case; and, not having been offered in evidence, the abandoned second count is not now appropriately before this court and may not be considered by us. Cf. Weir v. Brune, Mo., 256 S.W. 2d 810, 811(2); Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, 597(3); Von Eime v. Fuchs, 320 Mo. 746, 8 S.W.2d 824, 826(4); State ex rel. Fechtling v. Rose, 239 Mo.App. 178, 189 S.W.2d 425, 428(3).
As mystifying and meaningless to us as to defendants is the linguistic mumbo jumbo of their lay witnesses, plaintiff's district manager and advertising director, who, steadfastly asserting plaintiff's complete and continuing control over the advertising account, nevertheless said that plaintiff did not claim the advertising account as its money but that such account, "set up like a trust fund," "belongs to the territory." However, we are not here concerned with interpretation or reconciliation of the puzzling and paradoxical answers of plaintiff's employees (called as defendants' witnesses); and, the legal frailty of defendants' position is indicated by the fact that neither their brief nor the oral argument of their counsel has disclosed the theory on which they seek credit for the advertising fund. Frankly conceding that their claim is not bottomed on any writing, defendants assert in their brief that their "rights * * * can be sustained on any number of theories," "the most apparent" of which "would be that there was a simple debtor-creditor relation between the parties, the money being paid in advance by the defendant (company), conditioned on the furnishing of advertising and other services by the plaintiff." But, although plaintiff undertook "to furnish advertising in adequate amounts to thoroughly service *38 the territory, as determined by Licensor (plaintiff)," this was no part of each "unit of Grapette" defined as consisting of 60 gallons of Grapette syrup and 200 gross of Grapette crowns, for which defendant company was required by the license agreement to pay unconditionally "$273 f. o. b. shipping point, net, no discount." On the record before us we are unable to perceive how or why a debtor-creditor relationship should arise with respect to whatever portion of the sale price of $273 per "unit" plaintiff, after receipt thereof, might have set aside voluntarily in an advertising account to implement performance of its contractual obligation to furnish advertising; and, we are strengthened in our conclusion that no such debtor-creditor relationship actually arose by the fact that defendants' counsel readily agreed in oral argument that defendant company would have had no right to have demanded that payment for additional "units of Grapette" be made by charges against the advertising account.
The only other theory mentioned by defendants is that the loose references to the advertising account as being "like a trust fund" lead "to the legal conclusion by way of analogy that since the `trust' had become `dry,' the equitable title of the defendant company became a legal one." However, defendants' counsel studiously avoid open reliance on "the trust fund theory," perhaps because of the fact that such theory, being an affirmative defense in this suit on a note, i. e., a defense resting on facts not necessary to support plaintiff's case [cf. Grauf v. City of Salem, Mo. App., 283 S.W.2d 14, 18, and cases there cited], would not be available to defendants since it was not pleaded in their answer. Section 509.090, RSMo 1949, V.A.M.S. Consult Farley v. Farley, Mo.App., 181 S.W.2d 671, 673-674(3, 5); Frank v. Myers, 232 Mo.App. 681, 109 S.W.2d 54, 57(3); Sevier v. Harmon, Mo.App., 261 S.W. 348(2); Tuepker v. Sovereign Camp, W.O.W., Mo.App., 226 S.W. 1002, 1007(8). As under prior codes [cf. Conrad v. Diehl, 344 Mo. 811, 129 S.W.2d 870, 872(2); Kleinlein v. Foskin, 321 Mo. 887, 13 S.W. 2d 648, 654(4); Christian v. Connecticut Mut. Life Ins. Co., 143 Mo. 460, 45 S.W. 268, 270(6); Currier v. Lowe, 32 Mo. 203; Morrison v. Painter, Mo.App., 170 S.W.2d 965, 971(14)], "the pleadings continue to be of the greatest utility in defining the issues of a case" tried under our present code. Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25, 28; Hilderbrand v. Anderson, Mo.App., 270 S.W.2d 406, 409. Consult also Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229, 230(2); Williams v. City of Illmo, Mo.App., 279 S.W.2d 196, 201; Smith v. Githens, Mo.App., 271 S.W. 2d 374, 381(23). We conclude that defendants are not entitled, under any theory suggested by them, to credit on the note in suit for the amount of the advertising account.
Defendants' only other complaint on appeal, i. e., that "the court erred in refusing to admit evidence of the course of conduct of the parties relative to the advertising fund," relates to refusal of defendants' offer to prove by Mrs. Sherman Reid, who had been employed by defendant company from 1941 to the Spring of 1947, that "the company would actually draw checks against this advertising account and just deliver the checks to her, which would be * * * put in their general bank account for operating expenses." But, we think that such evidence could not have been germane or relevant to any issue properly presented upon trial. For, Mrs. Reid's employment was during a period prior to July 1, 1947, when defendant company bottled Grapette under a different license agreement (not, however, offered in evidence), and her employment terminated not only more than three and one-half years prior to December 9, 1950, the date of execution of the note in suit, but also prior to execution of the license agreement dated July 1, 1947. And, defendant J. M. Johnston testified that the $2,503.32 in the advertising account, for which defendants seek credit on the note in suit, "represents * * * the credit we had built up, about, since the time of that note."
*39 Defendants assert the admissibility of the proffered testimony of Mrs. Reid as indicative of the intention of the parties and as reflecting their "practical interpretation" of the license agreement dated July 1, 1947. The construction of a contract as evidenced by the acts or declarations of the parties may be considered by the courts "where the language of the contract is ambiguous, or there is a reasonable doubt as to its meaning, but not where it is plain and unambiguous." Scotten v. Metropolitan Life Ins. Co., 336 Mo. 724, 81 S.W.2d 313, 315(4); Howard v. Aetna Life Ins. Co., 350 Mo. 17, 164 S.W.2d 360, 366(3); State ex rel. Northwestern Mut. Life Ins. Co. v. Bland, 354 Mo. 391, 189 S.W.2d 542, 549(21), 161 A.L.R. 423. See also Campbell v. Webb, 356 Mo. 466, 202 S.W.2d 35, 39(4); Meissner v. Standard Ry. Equipment Co., 211 Mo. 112, 109 S.W. 730, 736 (13, 14); Ward v. Kurn, 234 Mo.App. 241, 132 S.W.2d 245, 253(7); Southern Surety Co. v. Goltra, Mo.App., 9 S.W.2d 661, 663 (6); Laughlin v. City of Joplin, 161 Mo. App. 161, 142 S.W. 786, 788(2). "When the language of a contract is plain, there can be no construction because there is nothing to construe." Mickelberry's Food Products Co. v. Haeussermann, Mo., 247 S.W.2d 731, 738(5), and cases there cited. With no suggestion in the instant case that the language of either the note in suit or the license agreement is ambiguous, i. e., that either instrument is reasonably susceptible of different constructions [J. E. Blank, Inc., v. Lennox Land Co., 351 Mo. 932, 174 S.W.2d 862, 868(8); Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262, 267 (3); State ex rel. National Life Ins. Co. v. Allen, 301 Mo. 631, 256 S.W. 737, 739 (3); Webb-Kunze Const. Co. v. Gilsonite Const. Co., 281 Mo. 629, 220 S.W. 857, 860], there obviously is no basis for invocation or application of the doctrine of contemporaneous construction as evidenced by conduct of the parties.
Furthermore, whatever the course of conduct of the parties might have been prior to execution of the license agreement dated July 1, 1947, evidence thereof would have been inadmissible in the case at bar for the additional reason that, absent any allegation of fraud, accident or mistake, all antecedent or simultaneous understandings between the parties were merged in the license agreement, a written contract apparently full and complete. Phoenix Mut. Life Ins. Co. v. Goessling, Mo.App., 121 S.W.2d 182, 185(3); Shaffner v. Moore Shoe Co., Mo.App., 35 S.W.2d 935, 937(2); Harrington v. F. W. Brockman Commission Co., 107 Mo.App. 418, 81 S.W. 629, 630(2). Certainly, the license agreement did not, on its face, show that it was incomplete [Koons v. St. Louis Car Co., 203 Mo. 227, 101 S.W. 49, 57(2); Edwards v. Sittner, Mo.App., 213 S.W.2d 652, 656(6)], and we cannot say that it was incomplete simply because it was silent as to the advertising account, which, as we have noted, was created voluntarily by plaintiff from its own funds. Consult Poe v. Illinois Cent. R. Co., 339 Mo. 1025, 99 S.W.2d 82, 89(6, 7); Sol Abrahams & Son Const. Co. v. Osterholm, Mo.App., 136 S.W.2d 86, 92(2). We are satisfied that the trial court did not err in refusing defendants' offer to prove by Mrs. Reid a course of conduct between the parties prior to termination of her employment in the Spring of 1947.
The judgment should be and is affirmed.
McDOWELL, P. J., and RUARK, J., concur.
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486 S.W.2d 302 (1972)
Jack E. CALHOUN, Appellant,
v.
The STATE of Texas, Appellee.
No. 46115.
Court of Criminal Appeals of Texas.
November 1, 1972.
Monroe K. Walter, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Tom Henderson, Asst. Dist. *303 Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
This is an appeal from an order revoking probation.
The appellant was placed on probation on October 29, 1969 after he was found guilty by a jury and assessed a two year punishment for unlawful possession of marihuana with a recommendation that probation be granted. Among the probationary conditions imposed was the requirement that he "[c]ommit no offense against the laws of this or any other State or the United States."
On March 12, 1971, the State filed a second amended motion to revoke probation alleging the appellant had violated the above stated probationary condition in that on or about January 20, 1971, he committed the misdemeanor offense of unlawfully carrying on or about his person a pistol.
Following a hearing on such motion on May 28, 1971, the court revoked probation and sentence was imposed and notice of appeal given.
In his sole contention, appellant alleges the court erred in admitting into evidence a pistol.
Houston Police Officer Alcorn testified that on January 20, 1971, he and Officer Williams were conducting a surveillance at an apartment complex at South Harbor and 75th Street as a result of information that narcotics were being sold out of one of the apartments. After arriving about 8:30 p. m., the officers determined that Apartment No. 2 fit the description given. As they were standing on the parking lot of the apartment complex, the appellant and a woman companion came out of such apartment and began walking towards the position of the officers. The appellant "seemed to recognize" the officers and put his hand in his pocket. At this time, the officers shined a flashlight on him and Alcorn saw him drop a pistol out of his pocket. The officers then walked over to him and Officer Williams picked up the pistol. Alcorn identified State's Exhibit No. 1 as the pistol that had been recovered as well as six shells taken therefrom. After taking the officer on voir dire examination and establishing that he had not seen the appellant commit any offense until he dropped the pistol, the appellant objected to the introduction of the pistol on the basis of an illegal arrest. The objection was overruled.
Officer Williams corroborated Officer Alcorn's testimony.
Testifying in his own behalf, appellant claimed that on the date in question he was knocked down; thrown across a car and handcuffed, and a pistol was put to his head by the two officers. He denied having the pistol in his possession.
We find no error in the admission of the pistol. The testimony clearly reflects that the arrest was not made until after the pistol had been dropped and recovered. Further, the subsequent arrest was legal and the pistol was not recovered as a result of a search incident to an arrest. The appellant had dropped the pistol to the ground in plain view of the officers and it was not obtained as a result of a search. Jimenez v. State, 421 S.W.2d 910 (Tex.Cr.App.1968); Ortega v. State, 414 S.W.2d 465 (Tex.Cr.App.1967); Parson v. State, 432 S.W.2d 89 (Tex.Cr.App.1968); Dansby v. State, 450 S.W.2d 338 (Tex.Cr. App.1970); Miller v. State, 458 S.W.2d 680 (Tex.Cr.App.1970); Buse v. State, 435 S.W.2d 530 (Tex.Cr.App.1969). See also Lewis v. State, 439 S.W.2d 351 (Tex.Cr. App.1969). Cf. Walker v. Beto, 437 F.2d 1018 (5th Cir. 1971) and Marshall v. United States, 422 F.2d 185 (5th Cir. 1970).
In a probation revocation hearing, the trial judge is the trier of the facts and *304 sole judge of the credibility of the witnesses and the weight to be given to their testimony. He may accept or reject any part of a witness's testimony. He is not required to believe a probationer's defense. Maddox v. State, 466 S.W.2d 755 (Tex.Cr. App.1971).
The court did not abuse its discretion in revoking probation.
The judgment is affirmed.
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103 N.J. 335 (1986)
511 A.2d 124
VAN WINKLE & LIGGETT, PLAINTIFF-RESPONDENT, AND LATORRACA REALTY CORP., PLAINTIFF,
v.
G.B.R. FABRICS, INC., DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued April 28, 1986.
Decided July 14, 1986.
*336 Joseph B. Fiorenzo argued the cause for appellant (Greenstone & Sokol, attorneys).
Gene N. Schiffman argued the cause for respondent (Schiffman & Berger, attorneys; Richard G. Berger, on the brief).
The opinion of the Court was delivered by STEIN, J.
In this case the trial court awarded a judgment for a brokerage commission in a real estate transaction that was never consummated. The Appellate Division affirmed in an unreported opinion. We granted certification, 102 N.J. 333 (1985), to consider the result in the context of our holding in Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528 (1967), that "absent default *337 by the owner, the contract of sale must be performed by the buyer before liability for commission is imposed upon the owner." Id. at 551. We now reverse because the parties' inability to complete the sales transaction was not caused by the seller's default or wrongful conduct.
I
Appellant, G.B.R. Fabrics, Inc. (GBR), a textile manufacturer, was the owner of a parcel of real estate located in Rutherford, New Jersey. Because the lot was part of a collateral package provided by GBR as security for a $946,000 flood-disaster loan issued by the Small Business Administration (SBA) in 1979, the property was encumbered by a mortgage held by the SBA.
In February 1979, John Scott, a broker employed by respondent Van Winkle & Liggett (Van Winkle), contacted George Rubin, the principal shareholder of GBR, concerning the listing of GBR's property for sale through Van Winkle. Scott and the president of Van Winkle met with Rubin and his accountant to consider a proposed exclusive-listing agreement. The parties discussed a sales price of $300,000 to $350,000, as well as GBR's willingness to take back a purchase money mortgage. Because GBR had previously entered into an option agreement for the sale of the land that would not expire until June 1979, Van Winkle took no steps to market the property at that time.
In September 1979, at the request of Joseph Baker, another Van Winkle employee, Rubin agreed to sign a non-exclusive listing agreement with Van Winkle. The agreement was a pre-printed form used by Van Winkle and provided that Van Winkle would receive a commission of 6% of the gross sales price, payable when title passed, if Van Winkle was "instrumental in effecting a sale or lease" of the property. Van Winkle posted a sign on the GBR lot indicating that it was for sale. During the next ten months, it exerted what one respondent's witness characterized as its "usual efforts" to attempt to sell the property.
*338 In May 1980, Scott was informed by Latorraca Realty Corp. (LRC) that a partnership known as Columns Enterprises (Columns) was interested in purchasing the property. After brief negotiations, the parties agreed on a purchase price of $325,000, with GBR taking back a short-term mortgage for approximately 90% of the purchase price. On June 3, 1980, Scott and the president of Van Winkle hand-delivered Columns' proposed form of contract to GBR. Although the issue was vigorously contested at trial, the trial court found, and the Appellate Division agreed, that it was on this date that Van Winkle first learned from Rubin of the existence of the SBA mortgage. Following the meeting, Scott immediately sent Rubin a letter confirming the discussion and indicating that both he and Daniel Van Winkle were "very surprised" to learn of the existence of the SBA lien. Nevertheless, Van Winkle continued to use its best efforts to consummate the sale of the lot.
On June 9, 1980, GBR informed Van Winkle that it preferred an all-cash transaction at a price of $315,000. Through Van Winkle, Columns orally accepted the new proposal that same day. Scott confirmed the offer and acceptance in a letter to GBR that stated that the "offer and acceptance is subject to contracts being prepared and approved by both buyer and seller's attorney[s]." The letter also indicated, like the listing agreement, that "[a] commission of 6% will be paid * * * upon closing of title."
Thereafter, the contract negotiations were handled by GBR's attorney, Samuel Bornstein, and Columns' attorney, James Harrison. Harrison prepared a revised contract, which Scott, Rubin, and Bornstein reviewed on June 13, 1980. In addition to other proposed changes, Bornstein inserted the following paragraph with respect to release of the SBA mortgage:
This Contract is expressly conditioned upon the Small Business Administration releasing a mortgage interest which it holds in the premises to secure an indebtedness incurred by the Seller. The parties hereto understand that it is not within the power of the Seller to require that the said interest be released; however, the Seller will use its best efforts to secure such release. In the event that the said release cannot be obtained upon terms which are satisfactory to *339 the Seller, in its sole discretion, by July 7, 1980, the Seller may void this Agreement and thereafter shall have no further obligation to the Purchaser other than the return of the deposit moneys in the sum of $31,500.00, forthwith.
Scott delivered to Harrison the revised contract signed by GBR.
At trial, Scott insisted that Bornstein did not explain any of the other "legal" aspects of the proposed contract changes to him. Bornstein, on the other hand, testified that each change was explained to Scott.[1] The trial court found that neither Scott nor anyone connected with Van Winkle played a role in either negotiating or determining the final provisions of the sales contract.
Before it received a signed copy of the revised contract from Columns,[2] GBR tried to obtain the release of the SBA mortgage. On June 13, 1980, Bornstein telephoned William Smyth, an SBA loan officer, to explain the sales contract and the proposed collateral substitution. According to Bornstein's testimony, Smyth "thought it was a good idea" and told him to contact Howard Epstein of the SBA who could advise him how the substitution could be effectuated. In a letter dated June 20, 1980, Bornstein apprised the SBA of the GBR-Columns contract and proposed the following collateral substitution:
We [GBR] propose to sell the property for the stated consideration and to place the proceeds in a tax-free investment portfolio. The only investment purchases made for that portfolio would be in such tax-free instruments as would meet with the approval of the S.B.A. This portfolio would be subject to the same lien as was the real property. Since the instruments would likely include bearer certificates, we would propose that this law office act as escrow agent of the physical certificates. No liquidation of an instrument in the portfolio nor any trade could be accomplished without the proper prior approval of the S.B.A. Any additional documentation necessary to confirm this arrangement *340 would be executed by the borrowers, the S.B.A. and the escrow agent before the contract to sell the property was signed.
* * * * * * * *
We believe that the sale of the real property would benefit both the S.B.A. and the borrowers. The borrowers would be free of some of the ownership costs and the S.B.A. would have a more liquid security. [Emphasis added.]
The SBA rejected the proposed collateral substitution in a letter written by Smyth, determining that
[t]he purpose of this reduced rate loan was to fulfill a need resulting from a natural disaster and the real estate collateral was required as the business collateral was inadequate to secure the loan. Therefore, if this property is sold, we would release our lien for the net proceeds applied to the loan unless there is a compelling business reason. As proposed, it would appear that this Agency's low interest disaster funds may [not] be used for investment.
According to Bornstein's testimony, he responded to the SBA rejection with several telephone calls to Epstein. On July 16, 1980, he also sent a letter to Ronald Langell, the acting chief portfolio manager of the SBA, which read in part as follows:
[Mr. Smyth's] letter indicated that the S.B.A. would not approve [the collateral substitution] because the purchase of such securities should not be encouraged with low interest disaster loans. We respectfully submit that our request has been misconstrued. The borrowers do not request that you release your lien so that we may make investments with loan proceeds. G.B.R. Fabrics, Inc., owned the property long before the loss. The premises were purchased long ago for investment and are not in any way connected with the business operations which were rehabilitated with the proceeds of the disaster loan money.
The proposal is simply to effect a substitution of collateral nothing more. Now you have a $946,000 mortgage on certain real property; after the transaction you would have a $946,000 mortgage on the securities substituted for the real property. No securities would be purchased without your approval as to their rating. You would also have the right to approve the escrow designee.
The borrowers would be benefited from the substitution since they believe the purchase price to be somewhat in excess of the worth of the real property. The S.B.A. would be benefited because the substituted collateral is undoubtedly more marketable than the real property. [Emphasis added.]
Despite Bornstein's efforts, the SBA, by letter dated July 22, again rejected GBR's request. Bornstein promptly informed Harrison of the SBA denial and indicated that the proposed sale could not be consummated. Bornstein and Harrison agreed that Harrison could try to obtain SBA approval. Harrison's efforts also proved futile. Accordingly, GBR terminated the *341 agreement pursuant to the contingency in the contract. Harrison returned the escrow funds to his client.
Without further communication among the parties, Van Winkle and LRC instituted suit against GBR demanding payment of the 6% commission, which amounted to $18,900.[3] GBR filed an answer and a counterclaim, alleging malicious prosecution, breach of fiduciary duty, and fraud.
The trial court, sitting without a jury, found that GBR had a duty to disclose the existence of the SBA mortgage when it initially agreed to list the property, but concluded that Van Winkle had waived any rights resulting from the nondisclosure. In its oral opinion, the court held, however, that GBR's request to the SBA to substitute collateral was unreasonable:
The tax free return to defendant GBR, would greatly exceed the tax deductible interest it paid to the SBA. The SBA loans are not designed or intended to be investment vehicles for a borrower. They're designed to alleviate disasters that occur.
* * * * * * * *
For the SBA to have approved a release on the terms requested would have been an abuse of the disaster loan policy of the federal government and this court finds that the SBA did the proper thing in refusing that request.
The court observed that although the seller had the right to insert such a contingency in the contract of sale as it related to the prospective purchaser, the seller owed the broker a duty not to unreasonably prevent the sale from closing. Relying on Ellsworth Dobbs, Inc. v. Johnson, supra, 50 N.J. 528, the court determined that Van Winkle had produced a ready, willing, and able purchaser and that the only reason the transaction was not consummated was that GBR had insisted on unreasonable conditions for the release of the SBA mortgage.
The trial court rejected GBR's argument that Van Winkle, by consenting to the SBA contingency clause in the contract, made its listing agreement subject to fulfillment of the contingency *342 clause. The court observed that Van Winkle was not a party to the contract of sale, and that GBR had never requested Van Winkle to amend the listing agreement to incorporate the SBA-mortgage-release contingency. Judgment was entered in the amount of the $18,900 commission, plus interest of approximately $4,700.
The Appellate Division affirmed the judgment, observing that the trial court's decision "that [appellant] unreasonably exercised the `sole discretion' vested in it under the contract of sale and that it fell short of its `best efforts' to secure the release of [the] * * * mortgage" was supported by sufficient credible evidence in the record, citing Rova Farms Resort Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). The Appellate Division also agreed with the trial court's conclusion that Van Winkle had waived its rights flowing from GBR's failure to disclose the SBA mortgage.
II
Prior to Ellsworth Dobbs, supra, 50 N.J. 528, the common-law rule was that in the absence of an express agreement to the contrary, a real estate broker earned its commission by producing a willing and able purchaser who entered into a contract of sale. Id. at 543; see, e.g., Blau v. Friedman, 26 N.J. 397, 401 (1958); Hedden v. Folio, 62 N.J. Super. 470, 474 (App.Div. 1960); Beckmann, Inc. v. (Zinke's) Rainbow's End, Inc., 40 N.J. Super. 193, 196 (App.Div.), certif. denied, 22 N.J. 219 (1956); Alexander Summer Co. v. Weil, 16 N.J. Super. 94, 98 (App.Div. 1957); Hinds v. Henry, 36 N.J.L. 328, 332 (Sup.Ct. 1873). Any perceived ambiguity in the language of a listing agreement, such as a provision that the commission would be "paid on closing" or "payable when title passes," was often construed as controlling the time of the payment of the commission and not as a condition precedent to the broker's right to receive the commission. See, e.g., Steinberg v. Mindlin, 96 N.J.L. 206, 208-09 (E. & A. 1921); Hedden v. Folio, supra, 62 N.J. Super. at *343 474 (citing J.R. Tucker, Inc. v. Mahaffey, 6 N.J. Misc. 17 (Sup. Ct. 1928), and Winter v. Toldt, 32 N.J. Super. 443 (App.Div. 1954)); Klipper v. Schlossberg, 96 N.J.L. 397, 401 (Sup.Ct. 1921). But see, e.g., Lippincott v. Content, 123 N.J.L. 277, 279 (E. & A. 1939); Leschziner v. Bauman, 83 N.J.L. 743, 744-46 (E. & A. 1912); Hatch v. Dayton, 130 N.J.L. 425, 427 (Sup.Ct. 1943); Morse v. Conley, 83 N.J.L. 416, 418 (Sup.Ct. 1912).[4] Even if title did not close because the buyer was financially unable to perform, the broker would still be entitled to a commission. Hedden v. Folio, supra, 62 N.J. Super. at 474; Winter v. Toldt, supra, 32 N.J. Super. at 447; Richard v. Falleti, 13 N.J. Super. 534, 536 (App.Div. 1951).
In rejecting this rule, we were mindful of the fact that when an owner lists his property with a broker, the owner invariably expects that the money for a brokerage commission will be paid out of the proceeds of sale. Ellsworth Dobbs, Inc. v. Johnson, supra, 50 N.J. at 547. We noted that the owner's expectation is reasonable and consistent with the broker's expectation as to the kind of purchaser his engagement requires him to tender to the owner. Id. A seller seeks a buyer who is able to close, not merely one who is able to sign a contract, and the risk of a financially incapable purchaser should be borne by the broker. Accordingly, we held that a seller's liability for the commission will arise only if the sale is consummated, unless the title "does not pass because of the owner's improper or frustrating conduct." Id. at 548.
When a broker is engaged by an owner of property to find a purchaser for it, the broker earns his commission when (a) he produces a purchaser ready, willing and able to buy on the terms fixed by the owner, (b) the purchaser enters into a binding contract with the owner to do so, and (c) the purchaser completes the transaction by closing the title in accordance with the provisions of the contract. If the contract is not consummated because of lack of financial ability of the buyer to perform or because of any other default of his, * * * *344 there is no right to commission against the seller. On the other hand, if the failure of completion of the contract results from the wrongful act or interference of the seller, the broker's claim is valid and must be paid. In short, in the absence of default by the seller, the broker's right to commission against the seller comes into existence only when his buyer performs in accordance with the contract of sale.
* * * The basic law governing the owner-broker relationship is declared to be that absent default by the owner, the contract of sale must be performed by the buyer before liability for commission is imposed upon the owner. [Id. at 551 (emphasis added).]
Appellant argues that the lower courts in this case have misapplied the standard for imposing liability on a seller for a brokerage commission in an aborted real estate transaction. Although Ellsworth Dobbs does not elaborate on the concept of seller default, inasmuch as the purchaser was the defaulting party, other decisions make it clear that a seller does not become liable for a commission merely because its conduct is a contributing factor in the breakdown of the sales transaction.[5]
For example, if a seller is unable to convey clear title, the seller is the defaulting party as a matter of law. See Conklin v. Davi, 76 N.J. 468 (1978); La Salle v. La Pointe, 14 N.J. 476 (1954). Nevertheless, this type of default does not necessarily result in liability to the broker where title does not pass. See, e.g., Blau v. Friedman, supra, 26 N.J. at 402-04 (seller who has acted in good faith and with reasonable belief that legal power to convey existed had not engaged in willful conduct that prevented consummation of sale; therefore, seller not necessarily liable to broker for sales commission); Lippincott v. Content, supra, 123 N.J.L. at 279 (broker could not recover commission where seller not successful in action to quiet title of land to be conveyed); Murray Apfelbaum, Inc. v. Topf, 104 N.J.L. 343, 346-47 (E. & A. 1928) (defect in title "does not per se determine the right of broker to be paid a commission * * * unless it is made to appear that the vendor, when he entered into the contract with the real estate broker fraudulently *345 concealed the fact of the existence of the restrictions on the property, or by some other willful act prevented the title from passing and the sale from being consummated.") (emphasis added); Alexander Summer Co. v. Weil, supra, 16 N.J. Super. at 99 (proof of title defect or failure of owner to disclose defect to broker does not constitute willful or fraudulent acts, or purely capricious refusal to act, so as to create liability of owner to broker); cf. Century 21-Candid Realty v. Cliett, 203 N.J. Super. 78, 80-81 (Law Div. 1985) (seller has right to cancel real estate contract for any reason or no reason pursuant to attorney's advice and in reliance upon attorney review clause without subjecting himself to commission liability).
A court has also applied the "fraudulent-willful" terminology in a situation in which the seller has innocently misrepresented the quantity of land to be conveyed. Gottlieb v. Connoly, 5 N.J. Misc. 372 (Sup.Ct. 1927). In that case, the seller and the prospective purchaser entered into a contract for the sale of property for $7,000. In the contract, the amount of land was recited as "seven acres more or less." The seller agreed to pay the broker a $600 commission. When a subsequent survey revealed that the land contained actually fewer than five acres, the prospective purchaser refused to accept the deed but released the seller from his contractual obligations. The court denied the broker's action to recover a commission, finding that "the misunderstanding as to the amount of the land was a mistake in fact and not induced by fraud." Id. at 374. As in the title-defect cases, the duty of the seller was restricted to an avoidance of intentional wrongdoing.
These decisions suggest that "liability should not be imposed on the seller when he acts in good faith and his inability to perform is not related to any wrongful act or misconduct on his part." Rothman Realty Corp. v. Bereck, 73 N.J. 590, 601-02 (1977). In contrast, where a seller's default is attributable to wrongful conduct, he has been held liable for the broker's commission. See, e.g., Blau v. Friedman, supra, 26 N.J. at 401 (presence of contingency clause "will not prevent recovery by *346 broker if the sale is defeated by the seller's own willful conduct."); Mathis v. Yarak, 71 N.J. Super. 234, 238 (App.Div. 1961) (vendor liable to broker for commission where vendor breached sales contract by arbitrarily refusing to sign F.H.A. form for purchaser, and sales contract contemplated purchaser's obtaining F.H.A. mortgage); Bruni v. Posluszny, 56 N.J. Super. 525, 531 (App.Div. 1959) ("The right to a commission * * * cannot be defeated if the occurrence of the contingency is willfully prevented by the misrepresentation or conduct of the broker's principal."); Beckmann v. (Zinke's) Rainbow's End, supra, 40 N.J. Super. at 200 (broker's commission cannot be defeated by "misrepresentations, or capricious acts of the principal which alone occasioned a rescission of the contract of sale.") (citations omitted); Marschalk v. Weber, 11 N.J. Super. 16, 25 (App.Div. 1950) (vendor cannot unjustly escape broker liability by means of his own "malfeasance or purely capricious refusal to perform his agreement."); Keifhaber v. Yannelli, 9 N.J. Super. 139, 141-42 (App.Div. 1950) (vendor liable for broker's commission where sale not consummated because vendor failed to even attempt to remove tenants from first floor apartment of building that was subject to transaction, despite the fact that contract warranted such a vacancy); Hinds v. Henry, supra, 36 N.J.L. at 332 (seller cannot defeat broker's right to compensation "by a refusal, without sufficient reason to fulfill the agreement.").
Where the seller's conduct can be characterized as "wrongful," "fraudulent," "willful," or "capricious," the relief granted to the broker is equitable in nature and based on the principle of estoppel: "One who actively prevents the occurrence of a condition cannot rely on the non-occurrence of that condition to avoid liability." Note, "Ellsworth Dobbs, Inc. v. Johnson: A Reexamination of the Broker-Buyer-Seller Relationship in New Jersey," 23 Rutgers L.Rev. 83, 90 (1968); see Beckmann v. (Zinke's) Rainbow's End, supra, 40 N.J. Super. at 199-200; Keifhaber v. Yannelli, supra, 9 N.J. Super. at 142; cf. Rothman *347 Realty Corp. v. Bereck, supra, 73 N.J. at 602-03 (buyer cannot defraud or cheat broker out of commission).
III
Our analysis of the record compels the conclusion that the failure to consummate the sales transaction in this case was not the result of any wrongful conduct on the part of GBR. Initially, we focus on GBR's conduct in the context of the sales contract. Ordinarily, there is no reason to elevate the rights of the broker to a level higher than that of the parties to the contract of sale.[6] As we noted in Harris v. Perl, 41 N.J. 455, 462 (1964), "[t]he economic facts and expectations of fair men with respect to real estate brokerage are clear enough. The role of the broker is to bring buyer and seller together at terms agreeable to both, and * * * the broker expects to earn a commission from the seller if he succeeds." Accordingly, even if the failure to close title is attributable to the seller's acts or omissions, the broker's commission claim will generally be denied if the seller has not breached the contract of sale.[7]
In this case the contract of sale conditioned the transaction on the SBA's release of its mortgage lien "upon terms which are satisfactory to the Seller, in its sole discretion, by *348 July 7, 1980," and imposed on GBR the duty to use its best efforts to secure that release. There has been no claim by the purchaser that GBR breached the contract of sale in this regard. The record sustains GBR's contention that it employed substantial efforts to gain the release of the SBA mortgage.
Since GBR did not breach its contract with the buyer, respondent's claim rests on its contention that the terms proposed by GBR for the substitution of collateral, although authorized by the contract, were nevertheless unreasonable and inconsistent with GBR's duty to the broker. We find this contention utterly unsupported by the record. GBR proposed to substitute tax exempt securities, purchased from the proceeds of the sale, for the property securing the SBA loan.[8] Since GBR had not acquired the property with the loan proceeds, the SBA's and the trial court's concern that the low interest loan funds were being used to buy tax exempt securities is without foundation. It is also significant that the proposed collateral was equivalent in value to the real estate and was substantially more liquid. Moreover, the proposal to the SBA would preclude any purchases or sales of the securities without SBA approval.
*349 We find nothing about this proposal to be unreasonable or capricious, or so lacking in good faith as to constitute a breach either of the contract or of the seller's duty to its broker. The fact that the SBA found the proposal unacceptable is irrelevant. The seller's duty in this case was to put forth reasonable terms for the release of the SBA lien and use its best efforts to obtain the SBA's consent. It would be difficult to conceive of a proposal for the release of the SBA lien that would violate GBR's duty to its broker without simultaneously constituting a breach of its contractual duty to the buyer. In our view, the proposal rejected by the SBA was consistent with the seller's obligation to both the buyer and the broker.
We hold that absent bad faith or special circumstances, the threshold standard for imposing liability on a seller for a brokerage commission in an aborted real estate transaction is a finding that the seller committed a breach of the sales contract. As indicated, not every contractual breach by a seller will result in liability for the commission. The seller's breach may be innocent or unavoidable and therefore not qualitatively sufficient to justify liability for the brokerage commission. See discussion, supra, at 345-347. But the contract of sale must be the benchmark for the seller's liability, since it defines the terms of the transaction the consummation of which entitles the broker to payment. In this case the seller's conduct was totally consistent with its obligations under the contract of sale.
For the reasons stated, the judgment of the Appellate Division is reversed.[9]
For reversal Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN 7.
For affirmance None.
NOTES
[1] Bornstein also appended a rider that indicated that LRC was the sole broker to receive a commission from the sale. According to Scott's testimony, after Rubin pointed out the discrepancy in the commission arrangement, Bornstein inserted a clause indicating that Van Winkle and LRC would share equally in the commission.
[2] The contract was not executed by Columns until July 22, 1980.
[3] The complaint of LRC was dismissed by the trial court. That dismissal is not involved in this appeal.
[4] The rationale of the early decisions as to a broker's right to a commission is discussed in Note, "Ellsworth Dobbs, Inc. v. Johnson: A Reexamination of the Broker-Buyer-Seller Relationship in New Jersey," 23 Rutgers L.Rev. 83, 87-88 (1968).
[5] Because these cases examine seller default in the context of the passing of title being considered a condition precedent to the payment of a brokerage commission, their principles are relevant to the issue before us.
[6] See discussion in Note, "Ellsworth Dobbs, Inc. v. Johnson," supra note 4, at 91-92 and n. 61.
[7] See, e.g., Ellsworth Dobbs, supra, 50 N.J. at 551 ("[I]n the absence of default by the seller, the broker's right to commission against the seller comes into existence only when his buyer performs in accordance with the contract of sale."); Houston v. Siebert, 129 N.J.L. 468, 472 (E. & A. 1943) ("The law is firmly settled in this state that a real estate broker earns his commission when he secures a buyer on the seller's terms, either as originally propounded or as settled by agreement between the seller and buyer.") (quoting Dickinson v. Walters, 100 N.J.L. 62, 65 (Sup.Ct. 1924)); Joseph Hilton & Assocs., Inc. v. Evans, 201 N.J. Super. 156, 167-68 (App.Div. 1985) (compilation of cases expressing proposition that broker is entitled to commission not only on terms of listing agreement, but on other terms agreed upon by the buyer and seller); Fry v. Doyle, 167 N.J. Super. 486, 495 (App.Div.) (a broker "does not lose his commission, assuming the transaction is ultimately consummated, where he procures for the owner a purchaser ready, willing and able to comply on terms other than or different from those originally specified, but which are satisfactory to the owner.") (citing Beckmann v. (Zinke's) Rainbow's End, Inc., supra, 40 N.J. Super. at 196), certif. denied, 81 N.J. 287 (1979); Brenner and Co. v. Perl, 72 N.J. Super. 160, 165 (App.Div. 1962) ("A realty broker only earns his commission when, pursuant to a written agreement, he produces a buyer, able and willing to purchase on terms satisfactory to the owner.") (citations omitted); Mack v. Revicki, 47 N.J. Super. 185, 192 (App.Div. 1957) ("It has long been the rule that a broker earns his commission when by written agreement he produces a buyer, able and willing to purchase on terms satisfactory to the owner.") (citations omitted); Alexander Summer Co. v. Weil, supra, 16 N.J. Super. at 98 ("[A] real estate broker * * * earns his commission when he procures for the owner a purchaser able and willing to comply with the terms specified in the authority thus conferred, or with other or different terms which, however, are satisfactory to the owner."); Kiefhaber v. Yannelli, supra, 9 N.J. Super. at 142 (vendor liable for commission where vendor fails to perform under contract of sale); Schwenn v. S. Goldberg & Co., Inc., 88 N.J. Super. 113, 119-20 (Law Div. 1965) (vendor-broker commission liability principles apply only in cases where the buyer and seller have agreed on terms of sale acceptable to both), aff'd on opinion below, 91 N.J. Super. 346 (App.Div.), certif. denied, 48 N.J. 111 (1966).
[8] Bornstein testified that during the negotiations for closing the SBA loan, SBA representatives indicated that if GBR's payment record was satisfactory, the SBA would consider in the future the release of part of the collateral or substitution of collateral.
[9] In view of our disposition, we need not address the questions concerning the alleged breach of fiduciary duty by Van Winkle or GBR's alleged waiver of its rights resulting from that breach.
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2394468/
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937 A.2d 699 (2008)
105 Conn.App. 149
Corey BROOKS
v.
COMMISSIONER OF CORRECTION.
No. 27944.
Appellate Court of Connecticut.
Argued September 11, 2007.
Decided January 1, 2008.
*700 Jo Anne Sulik, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Tiffany M. Lockshier, assistant state's attorney, for the appellant (respondent).
Annacarina Del Mastro, senior assistant public defender, for the appellee (petitioner).
BISHOP, GRUENDEL and CRETELLA, Js.
GRUENDEL, J.
The respondent, the commissioner of correction, appeals from the judgment of the habeas court granting relief to the petitioner, Corey Brooks, on count two of his habeas petition and ordering the petitioner resentenced to a lesser term of years on his violation of probation and other charges. The respondent claims that (1) the court's finding that the state violated its plea agreement with the petitioner is not supported by the evidence, (2) the court acted improperly when it ordered specific performance of the original plea agreement and (3) the court lacked jurisdiction to impose a criminal sentence. We affirm in part and reverse in part the judgment of the habeas court.
The following facts and procedural history are relevant to the respondent's appeal. On January 20, 2000, while on probation, the petitioner was arrested for possession of narcotics within 1500 feet of a school or housing project. While that charge was pending, the petitioner again was arrested for possession of narcotics and also for possession of a stolen credit card. On June 29, 2000, the petitioner appeared before the trial court regarding his charges. On that day, he pleaded guilty to the charge of violation of probation. He returned to court on September 7, 2000, and was sentenced for violation of probation to a term of six years incarceration. On October 12, 2000, the petitioner again appeared before the court to resolve the charges of possession of narcotics and possession of a stolen credit card. He pleaded guilty to one count of possession of narcotics in exchange for a four year sentence to run consecutively to the six year sentence he previously had received for the violation of probation charge. The remaining charges were nolled. He did not file a direct appeal from either judgment.
On March 1, 2004, the petitioner filed a petition for a writ of habeas corpus, alleging that the prosecutor's office had "reneged" on a plea agreement it had entered into with him for a total sentence of eight years and that his counsel had failed to represent him adequately. The relief he sought was to have his sentence reduced from ten years to eight years or, in the alternative, to be allowed to withdraw his guilty pleas. The petitioner then filed an amended petition, restating the facts pertinent to his claim of ineffective assistance of trial counsel and added a second count alleging that the state breached the plea agreement it had entered into with him. *701 On June 29, 2006, the habeas trial was heard. At the close of testimony, the petitioner withdrew his ineffective assistance of counsel claim, leaving only the claim of the state's breach of agreement for the court to decide. The court found in favor of the petitioner that there had been a global settlement agreement between the petitioner and the state for an eight year sentence on all of the charges pending against him when he agreed to plead guilty to the violation of probation. The court ordered specific performance of the plea agreement and, as such, further ordered that the six year sentence on the mittimus dated September 7, 2000, pertaining to the violation of probation charge, be changed to four years so that the eight year sentence contemplated by the global agreement could be effectuated. This appeal followed. Additional facts will be set forth as necessary.
I
The respondent first argues that there was evidence that would tend to show that (1) the state did not enter into a plea agreement with the petitioner, and, therefore, the state could not have breached any such agreement and (2) if there was such an agreement, it was implicitly rejected by the trial court, and, therefore, the habeas court should not have ordered specific performance. The respondent's argument, however, is premised on an inaccurate standard of review.
"It is axiomatic that it is not the function of this court to find facts." Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 96 Conn.App. 326, 335, 901 A.2d 49 (2006). As such, we will not engage in a rebalancing of the evidence to determine whether the evidence would have supported a different outcome. "The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Hill v. Commissioner of Correction, 103 Conn.App. 641, 646, 932 A.2d 413, cert. denied, 284 Conn. 925, 933 A.2d 726 (2007). "[T]his court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous. . . ." (Internal quotation marks omitted.) Id., at 645-46, 932 A.2d 413. On the basis of our review in the present case, we conclude that there was sufficient evidence provided to the court in the form of transcripts and testimony from which the court found that, in fact, there was an agreement between the state and the petitioner and that the petitioner was entitled to receive the benefit of that agreement. We cannot, therefore, conclude that the court's findings of fact were clearly erroneous.
The following additional facts are relevant to this issue. During the habeas proceeding, the court was presented with several transcripts of the petitioner's previous dealings with the trial court, as well as the petitioner's testimony. Neither the state's attorney nor the petitioner's previous defense attorney testified. The court was presented with a transcript from June 29, 2000, in which the state's attorney represented to the trial court that all of the petitioner's pending files would be resolved within an eight year settlement. He stated: "What is contemplated here with the new arrest that he has is that he is going to get every bit of the eight years when we sentence him. Counsel provided me with some information that he wants me to confirm. I indicated that I would do that. [An attorney in the state's attorney's] office indicated to [the petitioner's counsel] that he would sentence his client to eight years. So, we are going to continue it for [the petitioner] to get his eight years. And on the continuance, if you could canvass *702 him today, he will plead guilty to the pending files, get eight years on everything, and he'll be sentenced." (Emphasis added.)
The court proceeded to canvass the petitioner on the charge of violation of probation, and he entered a guilty plea on the basis of the understanding that he would receive a sentence of eight years on all of his pending files. The petitioner did not enter pleas on the other charges because the state's attorney indicated to the court that he had to confirm some information first. The respondent argues that the plea agreement was contingent on the information's being confirmed, and, as such, there could not have been an agreement until such time as it was confirmed. The petitioner explained through his testimony, however, that he had a deal with the state for an eight year sentence on all of his then pending files. He further explained that the agreement contemplated a reduction in the eight year sentence if some information that he had given to the federal Drug Enforcement Administration (DEA) was confirmed. The state's attorney did not testify at the habeas proceeding. The court, therefore, was free to accept or reject the petitioner's uncontested testimony that he had a firm deal for an eight year sentence and that it could have been reduced had the information he provided been helpful to the DEA.
The petitioner returned to the trial court on September 7, 2000, with the expectation that the plea agreement that had been represented to the court on June 29, 2000, would be effectuated, namely, that he would plead guilty to the remaining files and receive an eight year sentence for all charged offenses. The September 7, 2000 transcript tells a different story. After the state's attorney described the events that led to the petitioner's arrest on the pending files, he requested that the petitioner receive a sentence of eight years on the violation of probation charge. Regarding the other pending files, the state's attorney requested a new date and suggested going to trial on them because they could not be resolved. The petitioner's attorney requested that the petitioner receive a four year sentence for violation of probation and requested another pretrial on the pending files, suggesting that "tempers" might have been the problem with the resolution of the other files.
The petitioner explained through his testimony that, prior to the proceedings on September 7, 2000, he was meeting with his attorney about securing a better offer than the eight year offer. At that point, the state's attorney walked in on the conversation and then left the room. The petitioner's attorney spoke with the state's attorney and reported back to the petitioner that the state's attorney would no longer honor the agreement for the eight year sentence on all pending files because the state's attorney "felt like [the petitioner] insulted his intelligence by saying that [he] couldn't take the eight. . . ." The petitioner asked his attorney what his options were and asked if he could take his plea back. The petitioner explained that his attorney instructed him that it was too late to take his plea back because he had already been canvassed on it. When the parties appeared before the court, the state's attorney argued that the petitioner should receive eight years on the violation of probation charge and the petitioner's attorney argued that the petitioner should receive four years on the charge. The court ultimately sentenced the petitioner to six years on the violation of probation charge but continued the case with the understanding that the petitioner would plead guilty to and be sentenced on the remaining files.
*703 The respondent argues that "[o]bviously, the state withdrew from the `agreement' when the petitioner failed to enter a guilty plea by September 7, 2000, and moved for a speedy trial." The court was free, however, to accept the petitioner's uncontested testimony that he failed to enter guilty pleas on the remaining charges and moved for a speedy trial because the state refused to honor the plea agreement after overhearing a conversation between the petitioner and his defense attorney.
The petitioner's case was continued to September 26, 2000, for the petitioner to enter his pleas to the remaining files. On that day, however, the court refused to accept the petitioner's pleas because it was "convinced that [the petitioner] [did not] know what [he was] doing." The petitioner explained that the court refused to accept his pleas because he was upset. He further explained that he was upset because his attorney "wasn't going after [the state's attorney] because he didn't give [him] that original eight year deal."
The case eventually was continued to October 12, 2000. By that point, the petitioner had begun serving his sentence for violation of probation, the state continued to refuse to honor the plea agreement, and the petitioner was confronted with either taking a four year plea agreement on one of the narcotics charges or risking going to trial on all of his remaining charges. The petitioner testified that although he continued to insist on the eight year sentence and instructed his attorney to attempt to effectuate it, his attorney had indicated to him that it was "too late" to withdraw his plea or to enforce the agreement. The petitioner explained that he trusted the representation of his attorney and "didn't really . . . push the issue" because he "felt that [it] was a done matter." On advice of counsel, therefore, and facing a trial on the pending charges, the petitioner pleaded guilty to one of the narcotics charges and accepted a four year sentence, which was consecutive to the six years to which he had already been sentenced. The remaining charges were nolled.
The respondent argues that the petitioner's request for and acceptance of a four year sentence on the narcotics charge on October 12, 2000, was "simply a situation in which two parties `renegotiated' the terms of their `contract' when the petitioner failed to meet his obligations." The record reveals, however, that by October 12, 2000, the global agreement for an eight year sentence on all pending files would not be honored. Facing a trial on his remaining charges, the petitioner accepted an offer under which he would plead guilty to one of his narcotics charges and receive a four year sentence to run consecutively to the six year sentence he had already received. The petitioner, therefore, did not simply renegotiate the original plea agreement. Rather, as the court found, he entered into a new agreement with the state to resolve his remaining charges.
Finally, the respondent's contention that the court implicitly rejected the plea agreement because it ultimately sentenced the petitioner to a term of years greater than eight, is unpersuasive. The respondent argues that when a trial court imposes a sentence greater than that agreed to in the plea agreement, the trial court implicitly rejects that plea agreement. See Miller v. Commissioner of Correction, 29 Conn.App. 773, 780, 617 A.2d 933 (1992). In Miller, after the state's attorney advised the court of the plea agreement it had reached with the defendant, the court canvassed the defendant and advised the defendant that he would have a right to withdraw his plea if the court imposed a sentence greater than that to which the parties had agreed. Id., at 774, 617 A.2d 933. When the defendant returned to *704 court, the court did in fact sentence him to a term greater than that stated in the plea agreement but did not advise the defendant that he could withdraw his plea. Id., at 774-75, 617 A.2d 933. This court held that the defendant in Miller should have had the right to withdraw his plea, in accordance with Practice Book § 39-10, because the court effectively had rejected his plea by sentencing him to a term of years greater than that agreed on in the plea agreement.[1]Miller v. Commissioner of Correction, supra, at 780-81, 617 A.2d 933.
In contrast, the record in the present case reflects that on June 29, 2000, after the state's attorney presented the plea agreement to the court, the court canvassed the petitioner and accepted his plea to the charge of violation of probation. The petitioner returned to the court on September 7, 2000, for sentencing and received a sentence of six years on the violation of probation charge, a term of years less than the agreed on sentence. As the habeas court pointed out, this sentence was not a "clear abrogation" of the plea agreement. Further, by the time the petitioner returned to court on October 12, 2000, his circumstances had changed drastically. By this point, the petitioner had begun serving his sentence for violation of probation, the state's attorney had refused to honor the plea agreement and the petitioner was confronted with either taking an additional sentence of four years or going to trial on his remaining charges. The record reflects, therefore, that the court's sentencing of the petitioner to four years on October 12, 2000, which made the petitioner's total sentence ten years, was not an implicit rejection of the June 29, 2000 plea agreement but, rather, it was the court's acceptance of a separate and distinct plea agreement struck between the state and the petitioner after the state had refused to honor the original plea agreement.[2] The habeas court concluded that "[the petitioner] voluntarily gave up the constitutional right to contest the violation of probation in exchange for a total eight year sentence. He did not get the benefit of that; he is entitled to that." On the basis of all the evidence presented to the court, we cannot conclude that the court's findings were clearly erroneous.
II
The respondent's second claim is that the court improperly granted specific performance of the plea agreement. The respondent argues that it is the unique function of the trial court, not the habeas court, to weigh the equities and to decide whether the petitioner should be afforded the opportunity to withdraw his plea or to receive specific performance of the plea agreement. We conclude that under the *705 facts and circumstances of this case, it was proper for the habeas court to order specific performance of the plea agreement.
"[T]he writ of habeas corpus holds an honored position in our jurisprudence . . . [as] a bulwark against convictions that violate fundamental fairness." (Internal quotation marks omitted.) Gaines v. Manson, 194 Conn. 510, 516, 481 A.2d 1084 (1984). Pursuant to General Statutes § 52-470(a), the court hearing any habeas petition "shall . . . dispose of the case as law and justice require." In accordance with § 52-470, "the [habeas] trial court, much like a court of equity, has considerable discretion to frame a remedy, so long as that remedy is commensurate with the scope of the constitutional violations which have been established." (Emphasis added.) Gaines v. Manson, supra, at 528, 481 A.2d 1084. In the present case, the petitioner gave up his constitutional right to be tried before a jury and to have the state prove every element of the offense when he entered a guilty plea in reliance on a plea agreement. The question remains as to what type of remedy is appropriate when a finding of guilt is made on the basis of a plea agreement, which ultimately is not honored.
We have held that "[w]hen a guilty plea is induced by promises arising out of a plea bargaining arrangement, fairness requires that such promises be fulfilled by the state. . . . The same concept of fairness ordinarily impels the court, in its discretion, either to accord specific performance of the agreement or to permit the opportunity to withdraw the guilty plea." (Internal quotation marks omitted.) Miller v. Commissioner of Correction, supra, 29 Conn.App. at 778, 617 A.2d 933. "One alternative may do justice in one case, and the other in a different case. In choosing a remedy, however, a court ought to accord a defendant's preference considerable, if not controlling, weight inasmuch as the fundamental rights flouted by [the state's] breach of a plea bargain are those of the defendant, not of the [s]tate." (Internal quotation marks omitted.) State v. Rivers, 283 Conn. 713, 732-33, 931 A.2d 185 (2007); see also United States v. Kummer, 89 F.3d 1536, 1543 (11th Cir. 1996) ("[t]his court has said that when the government . . . does not follow a plea agreement the court should order specific performance or afford the defendant an opportunity to withdraw the plea; and specific performance is preferred"), cited with approval in State v. Rivers, supra, at 733, 931 A.2d 185.
"[T]he primary purpose of a decree of specific performance, which is always an equitable remedy, is to place an injured [party] in a position that replicates, as nearly as possible, that which [he or she] would have enjoyed but for the [other party's] unexcused breach." (Internal quotation marks omitted.) Id. In the present case, the petitioner requested that his plea agreement be specifically performed, and the habeas court granted the relief requested. The question presented is whether the habeas court acted properly in granting such relief. Although "[g]enerally, the determination of what equity requires in a particular case is within the discretion of the trial court;" id., at 734, 931 A.2d 185; our Supreme Court has found that under appropriate circumstances, the provision of the habeas corpus statute that provides that the court shall dispose of the case, "as law and justice require," allows the habeas court to grant specific performance of a petitioner's plea agreement. See Medley v. Commissioner of Correction, 235 Conn. 413, 417 n. 5, 667 A.2d 549 (1995); General Statutes § 52-470.
In the present case, the respondent failed to provide the habeas court with any evidence of equitable considerations. Because *706 there were no equitable considerations presented, there was no reason for the habeas court to remand the case to the trial court, except for resentencing in accord with the agreement, after it found that there was in fact an agreement entered into between the petitioner and the respondent and that the petitioner was entitled to the benefit of that agreement. In so concluding, we also follow our Supreme Court's most recent pronouncement in this area, that "[b]ecause the state has failed to raise any factual issues that would affect the equitable determination in the present case . . . we reject the state's contention that a determination of the propriety of granting specific performance requires a factual weighing of the equities by the trial court." State v. Rivers, supra, 283 Conn. at 734, 931 A.2d 185. We conclude, therefore, that the habeas court acted properly in granting a judgment of specific performance when it found that a plea agreement had been entered into and that the petitioner had not received the benefit of the agreement, where the respondent failed to provide evidence of any factual issues that would affect an equitable determination of the propriety of granting specific performance.
III
The respondent finally claims that the court lacked jurisdiction to resentence the petitioner. The court stated in its decision that "the relief the court is going to order is on the mittimus dated September 7, 2000 . . . in order to effect the agreement between the petitioner and the state, the sentence on that violation of probation should have been four years, with the four year consecutive sentence that was adjudged on [October] 12. . . . Consequently, the relief . . . is ordered effective." We conclude that although the habeas court had the authority to order the relief, it lacked the ability to effectuate the relief. It was necessary for the habeas court to issue a writ of habeas corpus directing the trial court to vacate the original sentences and to resentence the petitioner in accordance with the original plea agreement. See Orcutt v. Commissioner of Correction, 284 Conn. 724, 743-44, ___ A.2d ___ (2007) (concluding that habeas court should have directed trial court to resentence petitioner in accordance with the habeas court's determination that petitioner should have been sentenced in accordance with plea agreement); Medley v. Commissioner of Correction, supra, 235 Conn. at 417, 667 A.2d 549 (case remanded to habeas court with direction to render judgment granting that part of petition seeking specific performance of plea agreement and to order trial court to resentence petitioner accordingly.)
The judgment is affirmed in part and reversed in part and the case is remanded to the habeas court with direction to issue a writ of habeas corpus directing the trial court to vacate the original sentences and to resentence the petitioner in accordance with the original plea agreement.
In this opinion the other judges concurred.
NOTES
[1] Practice Book § 39-10 provides: "If the judicial authority rejects the plea agreement, it shall inform the parties of this fact; advise the defendant personally in open court or, on a showing of good cause, in camera that the judicial authority is not bound by the plea agreement; afford the defendant the opportunity then to withdraw the plea, if given; and advise the defendant that if he or she persists in a guilty plea or plea of nolo contendere, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement."
[2] The respondent argues that the separate plea agreement entered into between the petitioner and the state's attorney on October 12, 2000, is also evidence that there was never a firm agreement on June 29, 2000, for an eight year sentence on all pending files. This argument fails to consider that there was sufficient evidence before the court to find that the state's attorney had entered into such an agreement on June 29, 2000, and had breached that agreement prior to October 12, 2000, making it necessary for the petitioner to secure a new agreement.
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541 A.2d 160 (1988)
CITY OF PORTLAND, et al.
v.
FISHERMAN'S WHARF ASSOCIATES II.
Supreme Judicial Court of Maine.
Argued March 17, 1988.
Decided April 27, 1988.
*161 David A. Lourie (orally), Portland, for City of Portland.
R. John Wuesthoff, Maxine Paul Pouravelis (orally), Portland, for Working Waterfront Coalition.
William Stokes (orally), Asst. Atty. Gen., Augusta, for IntervenorDept. of Atty. Gen.
Orlando E. Delogu, pro se.
F. Paul Frinsko (orally), Catherine O'Connor, Bernstein, Shur, Sawyer & Nelson, Portland, for defendant.
Before McKUSICK, C.J., and NICHOLS, ROBERTS, GLASSMAN, SCOLNIK and CLIFFORD, JJ.
SCOLNIK, Justice.
The City of Portland, the Attorney General and the Working Waterfront Coalition appeal from a judgment of the Superior Court (Cumberland County), declaring that an initiated ordinance cannot be retroactively applied to a development application that the defendant, Fisherman's Wharf Associates II, filed while the initiated ordinance was pending. The defendant cross-appeals that portion of the judgment that dismissed a number of its counterclaims as moot. We vacate the judgment.
I.
On December 22, 1986, the text of a proposed amendment to the City of Portland's zoning ordinance was filed with the Portland City Clerk together with an originating petition requesting its submission to the voters for adoption. The proposed amendment essentially sought to limit the development of the Portland waterfront to marine related uses. A provision of the amendment, or initiated ordinance, expressly stated that, if enacted, its provisions "shall be applicable to all pending procedings [sic], applications and petitions commenced after December 22, 1986, which is the date of filing this initiative in the City Clerk's office of the City of Portland."
On February 11, 1987, the defendant, Fisherman's Wharf Associates II ("FWA II"), a Maine general partnership, filed an application for a permit to develop property located on Commercial Street in Portland known as "Fisherman's Wharf." FWA II's predecessor in title, Fisherman's Wharf Associates, had entered into a purchase and sale agreement for the property with Harris Realty Co. on November 21, 1986 and had closed on the purchase on December 29, 1986. FWA II acquired title to the property from Fisherman's Wharf Associates on February 19, 1987. The parties have stipulated that both Fisherman's Wharf Associates and FWA II knew of the contents of the proposed initiated ordinance and its retroactive provisions prior to acquiring title to the property.
On February 26, 1987, the period for obtaining signatures on the originating initiative petition closed, and on March 2, 1987, the City Clerk certified that a sufficient number of signatures had been obtained to place the initiated ordinance on the ballot of the May 5, 1987 city-wide election. The City of Portland accepted FWA II's Application for permit approval and initiated the review and approval process with the knowledge that if the requisite number of signatures were obtained, the initiated ordinance would be voted on in the May 5th election, and that the initiated ordinance, by its terms, would apply to applications filed after December 22, 1986. *162 The project, as filed and as considered by the City, met the land use requirements of Portland's City Code then in force. It did not, however, meet the requirements of the initiated ordinance.
On April 28, 1987, the Planning Board for the City of Portland granted final approval of FWA II's application for site plan and other approvals subject to certain conditions. On May 5, 1987, the citizens of the City of Portland voted in favor of the initiated ordinance, and on May 7, 1987, the initiated ordinance was declared passed. On June 4, 1987, the building permit for the project was approved and signed by the city building authority, but was not delivered to FWA II pending a determination of the duties of the appropriate city officials.
In a complaint filed on June 4, 1987, the City of Portland, its Director of Planning and Urban Development, and its City Manager sought a declaration of their duties with regard to the issuance of permits to FWA II as well as their right to enforce the initiated ordinance against FWA II. FWA II answered and counterclaimed, asserting that the provisions of 1 M.R.S.A. § 302 (1979) prohibited the application of the initiated ordinance to its project and requesting the court to order the City and its agencies to issue and deliver the building permit (Counts I & II). FWA II also sought to invalidate the initiated ordinance on other grounds, alleging that it violated the Maine Constitution, state statutes, the Comprehensive Plan for the City of Portland, and the Portland Land Use Code (Count III); that it constituted a deprivation of property without due process of law in violation of the Maine and United States Constitutions (Count IV); that it constituted a taking of property without just compensation (Count V); and that it constituted a violation of FWA II's civil rights within the meaning of 42 U.S.C. § 1983 (Count VI).
On July 21, 1987, FWA II filed a motion for preliminary injunction and on August 7, 1987, the City of Portland moved for summary judgment. During this time, the "Working Waterfront Coalition"[1] intervened, and the Attorney General filed a notice of intervention pursuant to 14 M.R. S.A. § 5963 (1980). A hearing on the motions for injunctive relief and summary judgment was held on September 3, 1987.
In an order dated September 10, 1987, the Superior Court ruled that the initiated ordinance did not apply to the pending application filed by FWA II, and that FWA II was entitled to the issuance of the building permit and to the occupancy of the premises when constructed in conformity with the approved plans. Accordingly, as to Counts I and II of FWA II's counterclaim, the court ordered the City of Portland and its agents to issue the building permit as requested. The court dismissed the remaining counts of the counterclaim as moot in light of its ruling on Counts I and II. The City of Portland, the city officials, and the intervenors appeal the judgment, and FWA II appeals that portion of the order dismissing Counts III through VI of its counterclaim as moot.
II.
The novel issue raised by this appeal is whether an ordinance's provision of retroactivity should be given effect in light of 1 M.R.S.A. § 302 (1979), which states in pertinent part:
Actions and proceedings pending at the time of the passage or repeal of an Act or ordinance are not affected thereby. For the purposes of this section, a proceeding shall include but not be limited to petitions or applications for licenses or permits required by law at the time of their filing.
The City of Portland, supported by the *163 Attorney General[2] and the Working Waterfront Coalition,[3] essentially argues that section 302 is a rule of construction, the effect of which can be avoided by the contrary intent embodied in a municipal ordinance. FWA II contends that section 302 is a rule of law that prevents municipalities from retroactively applying newly enacted ordinances to prior pending applications. In its decision, the Superior Court agreed with FWA II stating that the plain meaning of section 302 and the policy considerations found in applicable case law support a conclusion that the provisions of the Portland Zoning Ordinance in effect when FWA II's application was filed and reviewed by City agencies, should govern consideration of the application. We agree with the arguments advanced by the City and its supporters and find the Superior Court's decision to be in error.
We have previously stated that 1 M.R.S. A. § 302 is a "standing rule of statutory construction." Bank of Maine v. Weisberger, 477 A.2d 741, 746 (Me.1984). This characterization is firmly grounded in section 302's legislative history, which originated with Chapter 109 of the Public Laws of 1870 entitled: "An act to establish certain rules for the construction of statutes." The act provided in part:
In the construction of all statutes hereafter enacted the following rules shall be observed, unless such construction would be repugnant to the express terms of the same statute. . . .
. . . .
Third. Actions pending at the time of the passage or repeal of the act, shall not be affected thereby.
P.L. 1870, ch. 109 (emphasis added). This act indicates the Legislature's intent that statutes be given prospective application absent express statutory intent to the contrary. Although the statute went through changes in its codification[4] and in its statutory development in the century since its enactment,[5] there is nothing in the applicable legislative history to indicate that 1 M.R.S.A. § 302 was intended to be anything other than a general rule of statutory construction.
The Legislature has repeatedly overridden section 302's preference for prospectivity with a clear statement of contrary intent. See e.g. 23 M.R.S.A. § 156 (Supp. 1987) ("Notwithstanding Title 1, section 302, this section shall apply to all actions and proceedings pending on the effective *164 date of this Act."); P.L.1985, c. 599, § 4 (making 14 M.R.S.A. § 8102(2-A)(Supp.1987) retroactive to January 31, 1977). We have also recognized the Legislature's authority to make statutes operate retroactively. See Coates v. Maine Employment Security Comm., 406 A.2d 94, 97 (Me.1979). However, FWA II contends and the Superior Court concluded that even though section 302 became applicable to municipal ordinances in 1973, (P.L. 1973, ch. 146), municipalities do not possess the same authority as the Legislature to override section 302's preference for prospectivity with a statement of contrary intent. This argument lacks merit.
In implementing Home Rule powers, the Legislature enacted 30 M.R.S.A. § 1917, which provides, in relevant part, as follows:
Any municipality may, by the adoption, amendment or repeal of ordinances or bylaws, exercise any power or function which the Legislature has power to confer upon it, which is not denied either expressly or by clear implication, and exercise any power or function granted to the municipality by the Constitution, general law or charter.
30 M.R.S.A. § 1917 (1978). The Legislature clearly has the power to confer upon municipalities the authority to apply municipal ordinances retroactively, and is deemed to have done so by virtue of 30 M.R.S.A. § 1917, absent any express or clearly implied legislative prohibition. We determine that as a rule of construction, section 302 does not expressly or impliedly prohibit municipalities from applying ordinances retroactively. We are also unable to discern the existence of such a legislative prohibition in any other statute. We therefore conclude that since section 302 does not distinguish between statutes and ordinances, it should be applied to retroactivity clauses in municipal ordinances in the same manner that it is applicable to like clauses in the Legislature's enactment of statutes namely that if either a statute or an ordinance contains a provision of retroactivity, section 302's rule of prospectivity is negated. Consequently, in the instant case, the retroactivity clause of the initiated ordinance is operative and therefore FWA II, having filed its application after the effective date of December 22, 1986, is bound by the provisions of the initiated ordinance.
We reject FWA II's additional argument that it relied on existing regulations and municipal approvals to such a degree that it established "vested rights" in its project, and should be allowed to construct and occupy its premises pursuant to the approval it received. Under the criteria we set forth in Thomas v. Zoning Board of Appeals of the City of Bangor, 381 A.2d 643 (Me.1978), FWA II has not demonstrated any acquired vested rights that would overcome the application of the initiated ordinance. Neither FWA II's application for, nor the City's issuance of, a building permit provide FWA II with any vested rights. Moreover, no vested rights were acquired as a consequence of the expenses incurred by FWA II in satisfying application requirements. Finally, considering FWA II's knowledge of the contents of the proposed ordinance and its retroactive provisions prior to acquiring title to the property in question, and the lack of any evidence of bad faith or discriminatory treatment by the City or initiated ordinance proponents, FWA II has failed to establish any vested rights based on equitable grounds. See Id. at 647.
In conclusion, we hold that the retroactive provision of the initiated ordinance is valid and controlling, and that FWA II acquired no vested rights in its project. Accordingly, we vacate the judgment. Because the Superior Court failed to reach the merits of Counts III through VI of FWA II's counterclaim by dismissing them as moot in light of its ruling, we remand those counts for further consideration by the trial court.
The entry is:
Judgment vacated.
Remanded for further proceedings consistent with the opinion herein.
All concurring.
NOTES
[1] The Working Waterfront Coalition's complaint identifies it as a "coalition of several organizations joined to secure the waterfront of the City of Portland for marine-related uses and to stop further residential and non-marine related development on the waterfront." Other parties joining in the Working Waterfront Coalition's complaint were Keep the Port in Portland, Portland West Neighborhood Organization, Inc., Maine Lobsterman's Association, Casco Bay Island Development Association, and several individuals.
[2] FWA II challenges the Attorney General's participation in this appeal claiming that 14 M.R.S. A. § 5963 (1980) entitles the Attorney General "to be heard" only on the constitutionality of the initiated ordinance and not the applicability of 1 M.R.S.A. § 302 (1979) to the ordinance. Since FWA II did not object below to the Attorney General's intervention or argument of the § 302 issue, it cannot raise this issue for the first time on appeal. Poire v. Manchester, 506 A.2d 1160, 1163-64 (Me.1986). Moreover, there is nothing in the language of section 5963 that limits the issues on which the Attorney General may be heard once a party claims that an ordinance or statute is unconstitutional.
[3] In its order granting the Coalition's intervention under M.R.Civ.P. 24(b), the Superior Court expressly reserved the questions whether the Coalition meets the criterion for intervention as a matter of right under M.R.Civ.P. 24(a), or whether it has standing to sue. Although FWA II questions whether the Coalition has standing in this litigation, it states in its brief that it waives this issue for purposes of this appeal.
[4] When P.L.1870, ch. 109 was codified in 1871, the two paragraphs set forth in the text supra p. 6 were separated. The statement concerning "actions pending" was placed in a section very similar to section 302 as it appears today, and language similar to the introductory paragraph of P.L.1870, ch. 109, appears in another section that specifically refers to rules of construction:
Sec. 3.... Actions pending at the time of the passage or repeal of an act, shall not be affected thereby.
Sec. 4. The following rules are to be observed in the construction of statutes, unless such construction is inconsistent with the plain meaning of the enactment.
R.S.1871, ch. 1, §§ 3, 4.
[5] The statutory history of 1 M.R.S.A. § 302 (1979) is as follows:
P.L.1870, ch. 109
R.S.1871, ch. 1, § 3
R.S.1883, ch. 1, § 5
R.S.1903, ch. 1, § 5
R.S.1916, ch. 1, § 5
R.S.1930, ch. 1, § 5
R.S.1944, ch. 9, § 20
R.S.1954, ch. 10, § 21
P.L.1967, ch. 10
P.L.1973, ch. 146
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116 Pa. Commw. 55 (1988)
541 A.2d 51
Chatham Racquet Club, a/k/a Downtown Racquet Club 1000, Appellant
v.
Commonwealth of Pennsylvania, by Attorney General LeRoy S. Zimmerman, Appellee.
No. 39 T.D. 1987.
Commonwealth Court of Pennsylvania.
Argued March 24, 1988.
May 9, 1988.
*56 Argued March 24, 1988, before Judges MacPHAIL, COLINS and McGINLEY, sitting as a panel of three.
James R. Cooney, with him, Mitchell A. Kaufman and Maurice A. Nernberg, Jr., Nernberg & Laffey, for appellant.
*57 Douglas P. Yauger, Deputy Attorney General, with him, Caren L. Mariani, Office of Attorney General, Bureau of Consumer Protection, for appellee.
OPINION BY JUDGE MacPHAIL, May 9, 1988:
Before us for disposition is an appeal by the Chatham Racquet Club (Club) from an order of the Court of Common Pleas of Allegheny County which granted a preliminary injunction sought by the Office of Attorney General pursuant to Section 4 of the Unfair Trade Practices and Consumer Protection Law, Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §201-4 (Act).
The facts are not in dispute. The Downtown Racquet and Athletic Club was in bankruptcy. A new ownership group purchased the facility's assets through the bankruptcy court proceedings. The purchase was "subject to" the membership contracts of the Downtown Racquet and Athletic Club. Subsequent to its purchase of the membership contracts, the Club began to charge patrons with current memberships a monthly service fee which varied in amount. Despite this fee charge, the trial court found that the Club offered its members no commensurate increase in services. Club members complained and the Attorney General then took legal action under the provisions of Section 4 of the Act. That Section permits the Attorney General to seek an injunction when he has reason to believe that any person is or is about to violate any substantive provision of the Act.
The Attorney General brought his complaint in equity alleging that the increase in current members' fees constituted fraudulent conduct which creates a likelihood of confusion or misunderstanding. Such conduct is prohibited by Section 2 of the Act, 73 P.S. §201-2 (defining, inter alia, unfair methods of competition and unfair or deceptive acts or practices).
*58 The trial court found as fact that the Club's action in increasing fees did engender "a chaotic situation fraught with confusion." It did not specifically find, however, that the Club had an intent to defraud anyone or that it had acted in bad faith. The court then granted a preliminary injunction and its order directed the following:
A. That Defendant is enjoined from barring any member with a valid contract with prior owners, purchased by current owners, from using any facility at 1000 Colwell Street, Pittsburgh, Pa., provided that all disputed monthly charges incurred after August, 1986 until final disposition of this case are paid into an escrow account more fully described below.
B. That the Office of Attorney General, Bureau of Consumer Protection, as escrow agent, shall establish an interest-bearing account into which members' disputed monthly charges shall be deposited. Defendant shall have access to the account for auditing purposes. Within a reasonable time after the tenth day of each month prior to final disposition of this case, the Office of Attorney General shall present to Defendant a list of all members who have paid their charges into escrow pursuant to paragraph A above. This account is in no manner to be considered an asset of Defendant until final disposition of this case.
C. That Defendant shall prepare and deliver to the Office of Attorney General, Bureau of Consumer Protection, a full and complete list of members affected by this Order, including an itemized accounting of monthly dues, charges and credits. Defendant bears all responsibility for billing and collection.
The Club petitioned for reconsideration, which was denied. Hence, the present appeal.
*59 Where the appeal is one from the grant or denial of a preliminary injunction, we do not inquire into the merits of the controversy, but merely examine the record to ascertain whether there existed any reasonable basis for the trial court's action. Mazzie v. Commonwealth, 495 Pa. 128, 432 A.2d 985 (1981). We will reverse the lower court's determination only if it is plain that no grounds exist to support the decree or that a rule of law relied upon was palpably erroneous or misapplied. Id.
In the instant case, the Club asserts only one error. It contends that the actions complained of do not fall within the ambit of the Act and, hence, that the Attorney General lacked authority to bring this action and the trial court was, accordingly, without jurisdiction to decide it. Specifically, the Club contends that the Act prohibits unfair or deceptive trade practices and that the conduct of which it is accused does not, as a matter of law, constitute such a practice.
The legislature's intent in passing the Act was to protect citizens from unfair or deceptive practices. Thus, the Act's goal is to benefit the public at large by eradicating unfair or deceptive business practices. Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974). To this end, Section 2 of the Act contains a list of sixteen specific prohibited activities which are therein defined as unfair methods of competition or deceptive acts or practices. It also contains in Section 2(4)(xvii) a "catchall provision" which instructs that "[e]ngaging in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding" constitutes an unfair method of competition or an unfair deceptive act or practice. 73 P.S. §201-2(4)(xvii). It is this provision which forms the basis for the Attorney General's lawsuit.
Our State Supreme Court has indicated that the catchall provision in Section 2 of the Act is designed to *60 cover generally all unfair and deceptive acts or practices in the conduct of trade or commerce. Monumental Properties. Additionally, the Act's goal is to place consumers on more equal footing with sellers. Id. Further, the Act is to be liberally construed to effectuate its intent. Id. These general precepts led the Monumental Properties Court to conclude that leasing of rental property was within the purview of the Act's protections although it was not specifically mentioned therein.
Similarly, the conduct here is not expressly disallowed by the Act. The complaint, however, did allege that Club members were being billed additional sums subsequent to their payment in full of their dues, that the Club's purchase had been "subject to the memberships," and, consequently, that the increase in fees was violative of Section 2 of the Act. The trial court concluded that the imposition of additional fees had occurred and that such action created "a chaotic situation, fraught with confusion and misunderstanding." Further, the trial court opined that in buying the assets "subject to" the memberships the Club was obligated to honor the contracts entered into between the members and the Downtown Racquet and Athletic Club.
Nowhere, however, did the trial court find or hold that the Club's actions were fraudulent. It is only when the confusion and misunderstanding created by the actor is fraudulent that the provisions of the Act may be activated. See Commonwealth v. National Apartment Leasing Co., 102 Pa. Commw. 623, 519 A.2d 1050 (1986). Our review of the trial judge's comments during the course of the hearing indicate that he was not convinced that the Club had done any intentional wrong but rather that there was a valid reason for a bona fide difference of opinion in interpreting what was intended in the purchase agreement by the words "subject to" existing memberships. In our judgment *61 such circumstances fall short of fraud or fraudulent conduct.
Inasmuch as the Attorney General's complaint avers that the Club's actions do violate the Act, we agree with the trial court that it has jurisdiction to determine whether or not the Attorney General can prove such a violation. We do not, however, believe that those allegations, without some finding by the trial court from evidence produced that the Attorney General has proven fraudulent conduct, are sufficient to warrant the entry of a preliminary injunction. One of the requirements the Attorney General has to meet to obtain a preliminary injunction is a showing that his right to relief is clear. Township of South Fayette v. Commonwealth, 477 Pa. 574, 385 A.2d 344 (1978). As we have indicated, unless the Attorney General can prove fraudulent conduct on the part of the Club, the Attorney General's right to relief under the Act is barred. We, therefore, conclude that the Attorney General's right to relief here is not clear.
We, accordingly, must vacate the preliminary injunction and remand the case for a trial on the merits of the Attorney General's request for a permanent injunction.
ORDER
The order of the Court of Common Pleas of Allegheny County dated January 6, 1986, is reversed and the preliminary injunction is vacated. The case is remanded to the trial court for trial.
Jurisdiction relinquished.
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511 A.2d 961 (1986)
Ronald E. STEVENSON
v.
Mercedes STEVENSON.
No. 83-550-Appeal.
Supreme Court of Rhode Island.
June 26, 1986.
*962 Judith S. Calcagni, Cranston, for plaintiff.
Lawrence P. McCarthy/Gerald C. DeMaria (Higgins Cavanagh & Cooney), Peter S. Haydon (Lipsey & Skolnik, Esquires, Ltd.), Providence, for defendant.
OPINION
SHEA, Justice.
This is an appeal from a divorce decree entered in the Family Court in which the trial justice granted the husband's petition and the wife's cross-petition for absolute divorce based upon irreconcilable differences that had caused the irremediable breakdown of the marriage.[1] The husband appeals from the court's assignment of property and from the award of alimony and counsel fees to the wife. We affirm in part and reverse in part.
Ronald and Mercedes Stevenson were married on August 14, 1963, and have been separated since July 11, 1982. There are three children of the marriage, two of whom were minors at the time of the court's decision.
Ronald was employed by the city of Cranston as a police officer throughout the course of this approximately nineteen-year-long marriage. In addition, Ronald also worked at several other part-time jobs at various times during the marriage. Mercedes worked primarily as a homemaker, but at times she was employed outside of the home on a part-time basis. She testified that although she had wanted to work longer hours, Ronald had objected because he felt she should be home to greet the children when they returned from school.
Without repeating the extensive testimony presented about the timing and causes of the demise of this marriage, we shall briefly relate the grievances underlying the parties' petitions. Ronald testified to a number of problems in the marriage, some of which he felt were caused by Mercedes and members of her family who evidently visited frequently and at times moved in with the Stevensons for several months at a time. He also believed that she was too lenient with the children and that she was a poor housekeeper. Mercedes testified that Ronald not only had consented to having her sister move in with them temporarily but had also asked her to do so. Mercedes stated that she was unaware of the sexual problems that Ronald had testified about except to the extent that she would reject his advances when he occasionally drank too much alcohol, and she testified that she suspected that he was having an affair with another woman.
*963 After reviewing the evidence presented over the course of several days of hearing, the trial justice stated that he found Mercedes's testimony to be very credible and that he found "nothing wrong with the manner in which she conducted her home, her household or took care of the children * * *. In fact, I see nothing in the record to indicate any fault on her part." On the other hand, the trial justice determined that Ronald's occasional drunkenness and his relationship with another woman (regardless of whether it was platonic) were the causes of the marital discord.
On the question of the equitable distribution of the marital property, the trial justice found that there were two assets of substantial value. The first was the marital domicile located in Cranston, Rhode Island, which the trial justice found to be worth $45,000 and upon which there was an outstanding mortgage of approximately $5,000. The second asset was Ronald's pension fund that he had acquired in his service as a police officer employed by the city of Cranston. The pension itself had been admitted into evidence, and Mercedes had called Gerald Boulet, an actuary consultant, to testify about the present value of the pension. Boulet testified that he calculated that value to be $133,232.21. The trial justice rejected this testimony and found that the fund would "yield [husband] half his earnings at a certain age, plus a percentage increase for the years he works." The trial justice assigned the pension to Ronald, stating that it had been taken into consideration as a marital asset for the purposes of equitable distribution. The trial justice then assigned the marital domicile to Mercedes along with the household furnishings, with the exception of a couch and some tools that Ronald had requested. The trial justice also ordered Ronald to continue to pay the mortgage payments and taxes on the property until that obligation is satisfied, and he specified that these payments were to be considered alimony. Thereafter Mercedes would be responsible for the taxes and upkeep of the property. Ronald was ordered to pay to Mercedes $40 per week as additional alimony and $40 per week for the support of each of the two minor children. The trial justice also ordered Ronald to pay Mercedes's counsel fees.
On appeal, Ronald first objects to the trial justice's assignment of property. Ronald contends that the trial justice's finding that Mercedes was without fault is against the weight of the evidence. He next alleges that the trial justice erred in considering the pension fund to be a marital asset subject to equitable distribution because this fund is protected from assignment and attachment by state law and a Cranston city ordinance. Ronald argues that the trial justice erred in limiting his cross-examination of the actuary consultant who had been called to testify about the value of the pension and that there was not enough evidence upon which the trial justice could reasonably have ascertained its value. Asserting that if pensions are to be considered marital property subject to distribution, Ronald contends that only the total amount of his contributions to the fund during the course of the marriage should be deemed available for equitable distribution. Finally, Ronald asserts that the trial justice erred in awarding alimony and counsel fees to the wife without first assessing the reasonable needs of the parties and their relative abilities to pay.
Our equitable-distribution statute, G.L. 1956 (1981 Reenactment) § 15-5-16.1, as amended by P.L. 1982, ch. 403, § 1, sets forth guidelines that the trial justice must consider before equitably distributing the marital property. They are "(1) the length of the marriage; (2) the conduct of the parties during the marriage; (3) the contribution of each of the parties in the acquisition, preservation, or appreciation in value of their respective estates; and (4) the contribution of either party as a homemaker." D'Agostino v. D'Agostino, 463 A.2d 200, 201 (R.I. 1983); see also Sattari v. Sattari, 503 A.2d 125 (R.I. 1986). The "guidelines require that consideration be given to the nature and quality of the marital assets as *964 well as to each spouse's contribution to the value of the marital property." Wordell v. Wordell, 470 A.2d 665, 667 (R.I. 1984). The trial justice is vested with wide discretion to divide the marital property justly and fairly between the parties. Id. Unless it is shown that the trial justice misconceived relevant evidence or was clearly wrong, this court will not disturb the trial justice's findings, Sattari v. Sattari, 503 A.2d 125 (R.I. 1986), and Casey v. Casey, 494 A.2d 80 (R.I. 1985), because as an "appellate tribunal, it is not our function to arrive at de novo findings and conclusions of fact based on the evidence presented at trial." Id. at 82.
We pause to observe again that the concept of equitable distribution is the product of a transformation in the way that the law has traditionally viewed marriage and treated its dissolution. The courts now recognize that marriage is, among other things, an economic partnership between two people striving to make a better life for themselves. Upon divorce, § 15-5-16.1 provides the factors that enable the court to recognize on a practical level the existence of that partnership, consider each spouse's relative efforts to foster it, and to divide fairly the assets of that joint enterprise. Rather than reduce the marriage to a mere accounting of dollars and cents, however, equitable distribution takes into consideration all of the tangible and intangible contributions each party has made over the course of the marriage. To that end, § 15-5-16.1 requires that financial and domestic contributions be placed in the balance, and we have acknowledged that fairness requires that the "essential supportive role played by a spouse who is not employed outside the home" be recognized as entitling that spouse to a "share of the family assets." Wordell, 470 A.2d at 667. Equitable distribution of marital property is intended to be no less than what its title suggests a division of property that is equitable to both parties.
Our reading of the record reveals that the trial justice thoroughly examined the evidence relating to each of the statutory factors and that he did so in a well-reasoned manner. We conclude that there was ample evidence to support the trial justice's rulings on credibility and upon which he could base his conclusions relating to fault. Therefore, we find no error in the trial justice's preliminary findings of fact.
There were two major marital assets, the marital domicile and the pension. Ronald's assertion seems to be that because police officers' pensions are protected from attachment or assignment by G.L. 1956 (1985 Reenactment) § 9-26-5,[2] this pension must be treated as separate rather than marital property. It is not clear whether Ronald suggests that all pensions must be held to be separate property. In any event, because this appears to be the first time that this question has been raised before this court, it is appropriate to explore the issue.
Although not cited by the parties, some precedent exists in this state for viewing pensions as marital property subject to equitable distribution. See Casey v. Casey, 494 A.2d 80 (R.I. 1985) (where husband was awarded a portion of a vested pension fund at his former place of employment under the terms of the division of marital assets); Whited v. Whited, 478 A.2d 567 (R.I. 1984) (where fact that defendant was not awarded an interest in plaintiff's boats, medical equipment, or small pension was not an abuse of trial justice's discretion). The propriety of the inclusion of the pensions as marital property, however, was not challenged in those cases.
The law in other equitable-distribution and community-property jurisdictions and the scholarly literature exploring this issue reveals nearly unanimous support for the proposition that pension funds are marital *965 property. See, e.g., Johnson v. Johnson, 131 Ariz. 38, 638 P.2d 705 (1981); Van Loan v. Van Loan, 116 Ariz. 272, 569 P.2d 214 (1977); In re Marriage of Brown, 15 Cal.3d 838, 126 Cal. Rptr. 633, 544 P.2d 561 (1976); Kuchta v. Kuchta, 636 S.W.2d 663 (Mo. 1982); Kullbom v. Kullbom, 209 Neb. 145, 306 N.W.2d 844 (1981); Kikkert v. Kikkert, 88 N.J. 4, 438 A.2d 317 (1981); Kruger v. Kruger, 73 N.J. 464, 375 A.2d 659 (1977). Troyan, Pension Evaluation and Equitable Distribution 10 Fam.L. Rptr. (BNA) 3001 (Nov. 22, 1983). (For a general overview of this issue, see Annot. 94 A.L.R.3d 176 (1979) and cases there cited.) The majority of authorities have rejected arguments that a pension fund is a mere expectancy or gratuity, especially in cases such as this, where the pension fund is contributory and fully vested.[3] Rather, the consensus is that a pension represents delayed compensation for work performed over the course of the marriage; as such it is a "chose in action" or an enforceable contract right and therefore a form of property. One treatise explains the rationale in the weight of authority as follows:
"To the extent earned during the marriage, the benefits represent compensation for marital effort and are substitutes for current earnings which would have increased the marital standard of living or would have been converted into other assets divisible at dissolution. Subjecting the benefits to division is just, because in most cases the retirement benefits constitute the most valuable asset the couple has acquired and they both have relied upon their pension payments for security in their older years." 3 Rutkin, Family Law and Practice § 37.07 [1] at 37-81 (1985).
We find this reasoning compelling. We believe that a pension is reasonably analogous in form to a forced savings account whose funds will become available to the parties upon retirement. Consequently, we find that the trial justice correctly considered Ronald's interest in the pension fund to be marital property.[4]
Ronald contends, however, that § 9-26-5 precludes his pension from inclusion as a marital asset upon dissolution. Section 9-26-5 provides in pertinent part that
"[n]o interest of any person in any pension fund or in any pension derivable therefrom, for the benefit of policemen or firemen * * * to which fund such city or town contributes in any way, shall be subject to trustee process or liable to attachment on any writ, original, mesne, or judicial, or be taken on execution or any process, legal or equitable; and no assignment of any such interest shall be valid."
We find this argument unpersuasive. The trial justice's disposition of the fund in his decree in no way altered Ronald's rights in this pension because Mercedes was granted no interest in it. The trial justice simply placed the pension on the scale along with the other marital assets when he weighed and divided them. This decision does not in any sense constitute an assignment within the meaning of § 9-26-5, and we conclude that the trial justice's determination on this point was correct. See In Re Marriage of Pope, 37 Colo. App. 237, 544 P.2d 639 (1975) (factually similar case in which court construed the public employees' pension fund anti-assignment provision as not prohibiting trial justice's consideration of husband's pension as marital property without assigning it to the wife because this treatment *966 was not an "assignment"). Because the trial justice did not assign Mercedes any interest in this pension, we need not decide whether § 9-26-5 would preclude division of a police officer's pension upon dissolution of the marriage.
Ronald next attacks the trial justice's determination of the value of his interest in the pension, alleging as a subsidiary issue that his cross-examination of the actuary consultant was impermissibly curtailed by the trial justice. He alleges that he was not permitted to cross-examine Boulet about the unassignability of the pension under state law, the source of the funding of the plan, and the amount of Ronald's contribution to the plan. This information, Ronald contends, was necessary in order for the trial justice to make an accurate finding about the value of the pension. We have said that the scope of cross-examination is a matter addressed to the sound discretion of the trial justice and that the admission or exclusion of testimony constitutes reversible error only when the trial justice determines a disputed right on the basis of evidence that was erroneously admitted during the trial. Whited v. Whited, 478 A.2d 567 (R.I. 1984). We do not believe this to have been the case during this trial. Ronald attempted to ask Boulet about whether he was aware of a state law precluding the attachment and assignment of police officers' pensions. The trial justice correctly determined that this was an irrelevant line of inquiry because the statute had been brought to the court's attention. This was properly a subject for legal argument to the court and not cross-examination of an actuary consultant. When the trial justice asked counsel to explain why she was pursuing this line of inquiry, she replied that she had nothing further to ask of the witness. If there were additional matters such as the source of funding or Ronald's contributions to the fund that counsel wanted to present, she should have made that clear to the trial justice at that time. We note that the trial justice chose to reject all of Boulet's testimony relating to the value of the pension. He based his findings upon his own reading of the plan which had been introduced into evidence. In those cases where it is necessary, we would expect to see matters relevant to the present value of the pension at the time of the marriage's dissolution more fully explored. In this case, however, the plan itself specifies the sources of its funding and the formula through which a retiree's benefits will be calculated. The amount of money that retirees receive is based upon their age and length of service in the department, and it represents a fixed percentage of their rate of pay at the date of retirement.[5] At the time of trial Ronald had served for twenty-one years in the police department, and his interest in the pension is not subject to divestment by death or discharge. Therefore, the trial justice had sufficient evidence before him to make a determination on the pension's value insofar as the requirements of this case are concerned, and we shall not disturb that finding.
*967 Ronald's last argument regarding the pension is that only the total amount of his contributions to the fund over the course of the marriage may be counted as marital property. His argument loses much of its persuasive force when one considers the nature and the quality of his interest in this pension. As we have already noted, Ronald's interest is fully vested. Were his interest subject to divestment, leaving him nothing more than a return of his actual contributions to the fund, we might well be more responsive to his contention. We believe, however, that limiting its value to that amount in these circumstances would flatly ignore the quality of his interest. Ronald's interest is now much more valuable than the sum of his actual contributions to the fund. Therefore, we conclude that it would be inequitable to view it as worth less than what its present value was at the time of the dissolution of the marriage.
We turn now to the alimony and counsel-fees awards. Both awards require the trial justice to evaluate the evidence in view of the factors set forth in § 15-5-16. They are "[1] the length of the marriage; [2] the conduct of the parties during the marriage; [3] the health, age, station, occupation, amount and source of income, vocational skills and employability of the parties; and [4] the state and the liabilities and needs of each of the parties." Section 15-5-16. Alimony is intended to be a rehabilitative tool that is based upon need and that will allow the recipient to become self-sufficient. Casey v. Casey, 494 A.2d 80 (R.I. 1985); D'Agostino v. D'Agostino, 463 A.2d 200 (R.I. 1983). The award should be payable for a relatively short and definite period that is reasonably calculated to allow the recipient to become financially independent. Casey, 494 A.2d at 83. Therefore, so-called open-ended alimony awards that are not terminable when the recipient achieves the position of self-support are improper. Id.
In this case, we believe that the trial justice's award of alimony should have been supported by an explanation of its duration and its purpose. Because the alimony award was open ended and no assessment of the parties' needs was made and, furthermore, because Mercedes was employed and earning $135 per week at the time of trial, we remand the issues of alimony and counsel fees[6] for reconsideration in light of our discussion and the factors contained in § 15-5-16.
For these reasons, the plaintiff's appeal is denied in part and sustained in part. The papers of this case are remanded to the Family Court for reconsideration of the alimony and counsel-fees awards in light of this opinion.
NOTES
[1] All references to the trial justice in this opinion are to the justice who presided at the trial. The final decree was granted by a different Family Court justice.
[2] He also asserts that his police pension is similarly protected by Cranston City Code ch. 24, § 24-26 (1970).
[3] Although we need not so find on the facts of this case, we note that California in one of the leading cases on the topic has gone as far as to hold that an unvested, noncontributory pension plan is subject to division upon dissolution of the marriage. In re Marriage of Brown, 15 Cal.3d 838, 126 Cal. Rptr. 633, 544 P.2d 561 (1976).
[4] Of course, we are aware that every marital estate is unique and that all pensions are not alike. Consequently, the nature and quality of the pension, like all other marital assets, must be evaluated in the light of the factors set forth in G.L. 1956 (1981 Reenactment) § 15-5-16.1, as amended by P.L. 1982, ch. 403, § 1, in order that an equitable division may be achieved.
[5] Cranston City Code ch. 24, § 24-23 provides in pertinent part:
"Method of placing officers or members on pension list Generally.
(a) Any officer or member of the permanent police department who has been in active service in such department for twenty years or more may apply in writing to the city council to be placed on the pension list, and the city council shall thereupon place such officer or member so applying on the pension list and such officer or member so retired shall then become entitled to the following benefits to be paid from the police pension fund:
(1) If such officer or member so retired has attained the age of fifty-five years, he shall be paid annually for the remainder of his life in equal monthly installments, a sum equal to fifty-five per cent of his annual salary, except as noted below.
(2) If such officer or member so retired has not attained the age of fifty-five years, he shall be paid annually until his fifty-fifth birthday in equal monthly installments a sum equal to one-half of his annual salary; and upon attaining his fifty-fifth birthday, for the remainder of his life, in equal monthly installments a sum equal to fifty-five per cent of his annual salary, except as noted below."
[6] It is now well established that before awarding counsel fees, the trial justice must determine that the party seeking the award is without funds or property available to pay the fees and that the spouse who will be charged with payment of the fees has the financial ability to satisfy the obligation. Sattari v. Sattari, 503 A.2d 125 (R.I. 1986); Casey v. Casey, 494 A.2d 80 (R.I. 1985); Tarro v. Tarro, 485 A.2d 558 (R.I. 1984); Paradiso v. Paradiso, 122 R.I. 1, 404 A.2d 60 (1979).
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511 A.2d 1056 (1986)
William H. NORTON
v.
C.P. BLOUIN, INC., and Transportation Insurance Company, et al.
Supreme Judicial Court of Maine.
Argued May 6, 1986.
Decided June 25, 1986.
*1057 McTeague, Higbee, Libner, Reitman, MacAdam & Case, G. William Higbee, (orally), Brunswick, for plaintiff.
Hunt, Thompson & Bowie, James P. Bowie (orally), Portland, for C.P. Blouin.
Robinson, Kriger & McCallum, Frederick H. Greene, III (orally), Portland, for American Mut.
Norman & Hanson, William LaCasse (orally), Portland, for Bath Iron Works.
Richardson, Tyler & Troubh, Eve Cimmet, Portland, for New England Insulation.
Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN, and SCOLNIK, JJ.
WATHEN, Justice.
The employee, William H. Norton, appeals from a decision of the Appellate Division of the Workers' Compensation Commission, reversing an award granted against the employer, C.P. Blouin, Inc. In awarding compensation, the single commissioner applied 39 M.R.S.A. § 194-B (Supp. 1985-1986) to Norton's claim for an asbestos-related disease. The Appellate Division found his claim to be controlled and barred by the provisions of 39 M.R.S.A. § 194-A (1978), a predecessor statute in effect at the time Norton became incapacitated. We conclude that section 194-B controls the claim and thus, we affirm the award granted by the single commissioner.
I.
Mr. Norton, a sheetmetal worker, was exposed to asbestos during much of his working life while employed by a number of different employers. He was employed by Bath Iron Works Corporation on three occasions between 1937 and 1957. He was twice employed by New England Insulation, Inc., between 1980 and 1983. On three occasions between 1981 and 1983 he worked for C.P. Blouin, Inc. It is alleged that each employment involved exposure to asbestos. Norton became incapacitated on March 23, 1983 from a combination of obstructive lung disease, caused by emphysema *1058 and smoking, and restrictive lung disease caused by asbestos exposure. During 1983-1984 he filed four petitions for award-occupational disease against the three employers and four insurance carriers. The petitions were consolidated for hearing and decision. The commissioner granted the petition against C.P. Blouin, Inc. and Transportation Insurance Company after deciding that section 194-B governed Norton's claim. Because section 194-B(4) imposes liability only on the employer responsible for the last injurious exposure, who in this case the commissioner found to be Blouin, all other petitions were denied. The Appellate Division reversed and we granted the employee's petition for appellate review.
II.
The principal question on appeal is whether section 194-B governs this case. The law became effective on September 23, 1983, after the petition was filed against Blouin but prior to hearing. Section 194-B states in relevant part:
§ 194-B. Special provisions for asbestos-related diseases
1. Definition. As used in this section, the term "asbestos-related disease" means a disease caused by exposure to asbestos.
2. Scope. This section applies only to asbestos-related diseases caused or contributed to by a last injurious exposure to asbestos which occurred on or after November 30, 1967. Except as otherwise provided in this section, all provisions of this chapter shall apply to these diseases.
3. Aggravation of condition. Section 185 shall not apply to asbestos-related diseases.
4. Last employer liable; notice. Notwithstanding section 186, the only employer and insurance carrier liable shall be the last employer in whose employment the employee was last injuriously exposed to asbestos, and the insurance carrier, if any, on the risk when the employee was last so exposed under that employer. Notice of incapacity under section 187 shall include the name of that employer and the date when employment with that employer ceased.
5. Disability or death under inadequate prior law. In cases of asbestos-related disease resulting in incapacity or death prior to October 1, 1983, lateness in giving notice or filing a petition shall not be a bar to compensability, as provided in this section, unless the employer can show that his rights were substantially prejudiced by that failure. This subsection is repealed January 1, 1985.
6. Compensation limit. The 3-year limit provided in section 189 shall not apply to asbestos-related diseases.
Nothing in this section shall be construed to require retroactive payments of compensation for periods of incapacity which occurred prior to October 1, 1983, or retroactive payments of death benefits for periods of time prior to October 1, 1983. Compensation for claims permitted under this section shall be payable only for periods of incapacity occurring after October 1, 1983.
....
8. Compensation benefits. Compensation under this section shall be paid as follows.
A. If an employee is determined to be entitled to compensation for periods of total incapacity occurring on or after October 1, 1983, or if a dependent of an employee is determined to be entitled to full death benefits for periods occurring on or after October 1, 1983, and the employee became incapacitated or died on or after November 30, 1967, and before January 1, 1972, then the weekly compensation paid shall be equal to 2/3 of the average weekly wage in the State, as computed by the Bureau of Employment Security, that exists on the date the worker files his claim for compensation.
....
B. If an employee is determined to be entitled to compensation for periods of *1059 total or partial incapacity occurring on or after October 1, 1983, or if a dependent of an employee is determined to be entitled to full or partial death benefits for periods occurring on or after October 1, 1983, and the employee became incapacitated or died on or after January 1, 1972, and before October 1, 1983, then the initial weekly compensation paid shall be equal to the compensation that would have been paid had compensation payments begun at the time the employee became incapacitated or died and that compensation had been adjusted annually as provided in former sections 54, 55 and 58, whichever section is applicable....
....
9. Section not applicable. This section shall not apply to an asbestos-related disease of any worker who at the time of the last injurious exposure to asbestos was covered by the Longshoremen's and Harbor Workers' Compensation Act of March 4, 1927, c. 509, United States Code, Title 33, Section 901, or the Federal Employees Compensation Act, United States Code, Title 5, Section 8101. A worker shall be considered to be covered by one of those acts if, at the time of his last injurious exposure to asbestos, he was an employee, as therein defined, and was employed in employment which is subject to either of those acts.
The enactment of section 194-B coincided with the repeal of section 194-A, P.L. 1983, ch. 428, §§ 1-2, and implements the following changes in prior law. First, the repeal of section 194-A removed a presumption against the existence of disability due to asbestosis if the employee had not been exposed to asbestos for a period of two out of the preceding 15 years.[1] Second, section 194-B(4) changed the assignment of liability in multiple employer situations from the last employer responsible for an injurious exposure exceeding 60 days to the last employer responsible for any injurious exposure.[2] Third, section 194-B(3) removed from asbestos cases the requirement that incapacity be apportioned between work-related and non-work-related disease and compensation reduced accordingly.[3] Fourth, section 194-B(5) relaxed the notice requirements of the Workers' Compensation Act, making late notice inconsequential absent a showing by the employer that it suffered substantial prejudice.[4] Finally, *1060 section 194-B(6) makes the 3-year statute of limitations set forth in 39 M.R.S.A. § 189 (1978) inapplicable to asbestos related diseases.
In reaching contradictory results the single commissioner and the Appellate Division employed differing analytic approached on the question of retrospective application. The commissioner viewed the case as presenting an initial question whether section 194-B is procedural or substantive. If procedural, the statute applies to all pending cases and such application is, by definition, prospective rather than retrospective. See Dobson v. Quinn Freight Lines, Inc., 415 A.2d 814, 816 (Me.1980). The single commissioner found section 194-B to be procedural and did not analyze legislative intent or constitutional limitations on retrospective legislation.
The Appellate Division rejected the definitional analysis of Dobson and viewed the question strictly as one of legislative intent and constitutional limitation, citing Langley v. Home Indemnity Co., 272 A.2d 740 (Me.1971) for the proposition that mere labels should not determine the question of retrospective application. The Division panel found no clear expression of legislative intent to support an application of section 194-B to claims involving the onset of incapacity prior to that section's effective date.
We acknowledge that the opinions of this Court, written over a period of years, admit of divergent analytic approaches on the question of retroactive application of statutes.[5] In the present case, however, we consider two questions to be dispositive. *1061 First, did the Legislature intend that section 194-B apply where the onset of incapacity occurred prior to the effective date of the statute; and, second, whether such an application is permissible under the Contract Clause of the Maine Constitution?[6] We answer both questions in the affirmative.
The harmful results of exposure to asbestos are not immediate. Frequently, a number of years pass between injurious exposure and the diagnosis of disease. In enacting section 194-B, the Legislature sought to remove the barriers that existed under the prior law and effectively precluded recovery for any disease process involving a lengthy latency period. The statute expressly addresses two classes of claims; those in which the onset of incapacity or death occurs after October 1, 1983, and those in which the onset of incapacity or death occurred on or after November 30, 1967 but before October 1, 1983. With regard to the latter class of claims, subsection 5 relaxes the notice provision and subsection 8 designates the level of compensation payments for incapacity occurring after October 1, 1983, dependent upon whether incapacity began between 1967 and 1972 or between 1972 and 1983. The express language of the statute clearly reveals the Legislature's intent that the substantive provisions of section 194-B apply retroactively to cases involving the onset of incapacity before the effective date of the statute. Although the statute provides compensation only for that period of incapacity occurring after October 1, 1983, the Legislature explicitly mandated that the statute would apply where incapacity arose "under inadequate prior law." 39 M.R.S.A. § 194-B(5).
Blouin argues that even if section 194-B was intended to have retroactive effect, the Legislature is constitutionally prohibited from changing "the obligations of an employer after the employment relationship has ended." Blouin does not contend that the statute violates the due process requirements of the Maine or United States Constitution,[7] but rather argues that, if applied retroactively, it would impermissibly impair contractual rights in violation of Me. Const. art. I, § 11.
The constitutional argument advanced by the employer is premised upon two early Maine cases. In 1919, this Court upheld the constitutionality of the adjudicative jurisdiction *1062 of the Workers' Compensation Commission, stating that "[t]he Maine Workmen's Compensation Act is elective. No employer or employee is bound to submit to it without his assent, actively or passively manifested." Mailman's Case, 118 Me. 172, 175, 106 A. 606, 607 (1919). Two years later Gauthier's Case, 120 Me. 73, 113 A. 28 (1921), held that benefits under a law enacted in 1919 could not be awarded for an injury occurring in 1918. Citing Mailman's Case, this Court stated:
Our Workmen's Compensation Law is elective. Rights and obligations under it are contractual.
Upon the happening of an industrial accident the right to receive compensation becomes vested, and the obligation to pay is fixed. To change such vested rights and fixed obligations by statute would clearly be to impair the obligation of contracts.
Id. at 76, 113 A. at 30 (citation omitted).[8]
Blouin's argument ignores the fact that the Workers' Compensation Act is no longer elective, and thus, coverage under the Act is no longer a matter of contract. A 1973 amendment to the Act makes its provisions mandatory for all private employers. P.L. 1973, ch. 746 (currently codified at 39 M.R.S.A. §§ 2, 4, 21, 23, 24, 28, 104-A (1978)). At least as of 1973, the active or passive assent referred to in Mailman was no longer required, and the employer's obligation became one of general law rather than contract.[9] With this development, any claim of impairment of contract rights disappears. See Bureau of Labor Standards v. Fort Halifax Packing Co., 510 A.2d 1054, 1062 (Me.1986).
We conclude that the Legislature intended that section 194-B apply to the facts of this case and reject Blouin's constitutional claim that vested contract rights have been violated.
III.
Blouin challenges a number of the findings made by the commissioner in applying section 194-B. There is sufficient evidence in the record to support the finding that Norton was exposed to asbestos while in Blouin's employ. Further the record supports the finding that he has lung disease caused by asbestos and that such disease contributes to his current incapacity. Noting that the medical witnesses were unable to pinpoint any particular period of occupational exposure as causing Norton's incapacity, Blouin asserts that any exposure while in its employ has not been shown to be the legal cause of the injury.
Initially, Blouin seeks to transplant the requirement of legal causation, which applies to work-related injuries, see Bryant v. Masters Machine Co., 444 A.2d 329 (Me. 1982), into the Occupational Disease Law. Section 182 of the Occupational Disease Law states that incapacity "resulting from an occupational disease, shall be treated as the happening of a personal injury arising out of and in the course of the employment" within the meaning of the Workers' Compensation Act. Section 183 defines occupational disease as "a disease which is due to causes and conditions which are characteristic of a particular trade, occupation, process or employment and which arises out of and in the course of employment." Section 186 states: "Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease ... shall be liable therefor." Finally, section 194-B applies to "asbestos-related diseases caused or contributed to by a last injurious exposure to asbestos" occurring after November *1063 30, 1967. (emphasis added). To the extent applicable in the present context, legal cause is made out by the existence of an occupational disease, that is, one arising from risks or conditions peculiar to the workplace. The assignment of liability to the last injurious exposure reflects a legislative choice to allocate the burden of incapacity resulting from occupational disease. Given the latent nature of asbestosis, it is possible that in many cases, the last exposure, standing alone, may not be causing incapacity at the time of hearing. Nevertheless, the Legislature has chosen to place liability on the employer responsible for the "last injurious exposure."
Finally, Blouin argues that Norton's exposure while in its employ has not been shown to be injurious. We construe that phrase "injurious exposure", to mean exposure to the same work-related hazards responsible for the employee's disease. Such a construction does not render superfluous the word "injurious." The exposure is injurious in the sense that it contributes to the disease process resulting from the cumulative effect of all exposures. On this record we affirm the commissioner's finding of injurious exposure.
The remaining issues raised on appeal require no discussion.
The entry is:
Decision of the Appellate Division vacated.
Judgment of the single commissioner affirmed.
It is ordered that the employer pay to the employee $550 for his counsel fees plus his reasonable out-of-pocket expenses for this appeal.
All concurring.
NOTES
[1] Section 194-A stated:
In the absence of evidence in favor of the claim, disability or death from asbestosis shall be presumed not to be due to the nature of any occupation, unless during the 15 years immediately preceding the date of disability the employee has been exposed to the inhalation of asbestos dust over a period of not less than 2 years. If the employee shall have been employed by the same employer during the whole of such 2-year period, his right to compensation against such employer shall not be affected by the fact that he had been employed during any part of such period outside of this State.
[2] The 60 day requirement derived from 39 M.R. S.A. § 186 (1978), which states in relevant part:
The only employer and insurance carrier liable shall be the last employer in whose employment the employee was last injuriously exposed to the hazards of the disease during a period of 60 days or more, and the insurance carrier, if any, on the risk when the employee was last so exposed, under such employer.
[3] The provision for apportionment and reduction of compensation appears in 39 M.R.S.A. § 185 (1978), which states:
Where an occupational disease is aggravated by any other disease or infirmity, not itself compensable, or the death or incapacity from any other cause, not itself compensable is aggravated, prolonged, accelerated or in anywise contributed to by an occupational disease, the compensation payable shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the incapacity or death as such occupational disease, as a causative factor, bears to all the causes of such incapacity or death, such reduction in compensation to be effected by reducing the number of weekly or monthly payments or the amounts of such payments, as under the circumstances of the particular case may be for the best interest of the claimant or claimants.
[4] The general notice provision is found in 39 M.R.S.A. § 63 (1978). Prior to the enactment of section 194-B, that notice provision applied to occupational diseases by virtue of section 186.
[5] We have previously held that when a statute is purely procedural or remedial in nature, application of that statute to matters pending at the time of its enactment, even though the events giving rise to the proceedings occurred prior to the statute's effective date, constitutes a prospective rather than a retroactive application. Merrill v. Eastland Woolen Mills, Inc., 430 A.2d 557, 560-61 (Me.1981); Dobson v. Quinn Freight Lines, Inc., 415 A.2d 814, 816 (Me.1980). When a statute effects a substantive change, its application remains prospective if it governs operative events that occurred after its effective date, even though the entire state of affairs includes events pre-dating the statute's enactment. Director of Bureau of Labor Standards v. Fort Halifax Packing Co., 510 A.2d 1054, 1063 (Me. 1986), Adams v. Buffalo Forge Co., 443 A.2d 932, 943-44 (Me.1982). A substantive statute, however, will not be applied to operative events arising before its effective date unless accompanied by a clear expression of legislative intent favoring such a retroactive application. Terry v. St. Regis Paper Co., 459 A.2d 1106, 1108-09 (Me.1983); Coates v. Maine Employment Security Commission, 406 A.2d 94, 96-97 (Me.1979). If the Legislature intends a retroactive application, the statute must be so applied unless the Legislature is prohibited from regulating conduct in the intended manner, and such a limitation upon the Legislature's power can only arise from the United States Constitution or the Maine Constitution.
The confusion in this area stems from statements in our prior cases that are inconsistent with the principles set forth above. First, an early decision required a clear expression of legislative intent favoring retroactive application in a case in which the Court had already determined the statutory change to be procedural. Miller v. Fallon, 134 Me. 145, 147-48, 183 A. 416, 417 (1936). Second, on occasion we have stated that retroactive application of a statute is unconstitutional if it "impairs vested rights or imposes liabilities," without identifying the source of the asserted constitutional prohibition. Merrill v. Eastland Woolen Mills, Inc., 430 A.2d at 560 n. 7; Miller v. Fallon, 134 Me. at 147, 183 A. at 417. Finally, the confusion has been aggravated because the test set forth for identifying an unconstitutional retroactive application has mirrored the standard articulated for determining whether a statute is procedural or substantive. Compare Merrill v. Eastland Woolen Mills, Inc., 430 A.2d at 560 n. 7 (retroactive legislation unconstitutional if it "impairs vested rights or imposes liabilities") with Dobson v. Quinn Freight Lines, Inc., 415 A.2d at 816 (legislation procedural because it "does not revive an extinguished right or deprive anyone of vested rights).
We reaffirm that the application of a procedural statute to pending matters is not a retroactive application. If the statute effects a substantive change, that is, if it determines the legal significance of operative events occurring prior to its effective date by impairing rights or creating liabilities, the statute will govern matters arising before its effective date only if legislative intent favoring such a retroactive application is clearly expressed or necessarily implied. If the Legislature intends for a statute to apply retroactively, however, the statute will be so applied unless a specific provision of the state or federal constitution is demonstrated to prohibit such action by the Legislature.
[6] The single commissioner's conclusion that section 194-B affects only procedural changes in the law cannot be sustained. At minimum, section 194-B(3) increases Blouin's liability over what it would have been under prior law. That provision precludes any reduction in Norton's compensation for incapacity attributable to smoking and emphysema. See 39 M.R.S.A. § 185.
[7] It is clear that no federal due process violation occurs simply because a statute creates liability based on events pre-dating its enactment. In Usery v. Turner Elkorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), the Supreme Court reviewed a statute creating employer liability to sufferers of black lung disease who had left employment prior to the passage of the statute. In ruling the statute valid, the Court stated:
[O]ur cases are clear that legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations. This is true even though the effect of the legislation is to impose a new duty or liability based on past acts.
Id. at 16, 96 S.Ct. at 2892 (citations omitted). The Court went on to state that although the justifications for prospective legislation may not always suffice to support retroactive legislation, retroactive application is permitted so long as a rational and non-arbitrary basis exists for making the statute retrospective. Id. at 17-19, 96 S.Ct. at 2893-2894. In Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984), the Court reaffirmed that retroactive legislation need only address a legitimate legislative purpose by rational means to comport with the requirements of due process, explicitly rejecting a contention that retroactive legislation requires stricter scrutiny than is afforded by the rational relation test. Id. 104 S.Ct. at 2718, 2720.
Because Blouin raises no due process challenge, state or federal, we have no occasion to determine whether the Due Process Clause contained in the Maine Constitution limits retroactive legislation to any greater degree than does its federal counterpart.
[8] In Reggep v. Lunder Shoe Products Co., 241 A.2d 802 (Me.1968), we cited Gauthier for the proposition that benefit levels are vested at the time of injury and we then proceeded to interpret the statute.
[9] Because Norton's employment with Blouin occurred only after 1973, we have no occasion to consider whether an impairment of contract claim could be successfully asserted in the context of employment between 1967 and 1973.
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211 N.J. Super. 488 (1986)
511 A.2d 1287
SAINT BARNABAS MEDICAL CENTER, PLAINTIFF,
v.
COUNTY OF ESSEX AND JESSE WILLIAMS, DEFENDANTS.
Superior Court of New Jersey, Law Division Essex County.
Decided January 24, 1986.
*489 Michael Pesce for plaintiff (Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, attorneys; Barry H. Ostrowsky of counsel; Michael Pesce and Todd Brower on the brief).
Oliver W. Cato for defendant County of Essex (David H. Ben-Asher, Essex County Counsel, attorney).
VILLANUEVA, J.S.C.
This is a complaint by a private, nonprofit hospital, for all hospital charges incurred, against a county and the prisoner it brought to the hospital for treatment of life-threatening injuries.
*490 The issue is whether a county can relieve itself of further responsibility for hospital charges for the prisoner it brought to the hospital by having his custodial sentence suspended.
The court holds that once a county undertakes its obligation to provide medical services to its prisoner at an outside medical facility, it cannot escape further responsibility by having its prisoner's sentence suspended.
Defendant Jesse Williams (hereinafter "Williams") was sentenced to a fifteen-day jail sentence by the Newark municipal court on July 13, 1982 and was a county prisoner from then until July 19, 1982.
On July 16, 1982, while an inmate at the Essex County jail annex, Caldwell, Williams set himself on fire. As a result of this incident, county caused Williams, accompanied by county personnel, to be transported to plaintiff Saint Barnabas Medical Center (hereinafter "St. Barnabas"), because of the existence of its burn unit, where he remained a patient until September 2, 1982.
Since St. Barnabas was not the hospital to which county brought inmates on a routine basis, there existed no express agreement between St. Barnabas and county concerning the payment for medical services rendered to any inmates. However, the admission/discharge record noted:
Patient from Essex Cty. Jail Caldwell, N.J. Phone 226-7777 Ext. 213 For Information about Patient.
On July 19, 1982, Elizabeth Neff, the supervisor of accounts in the business office of the jail annex, received a call from Ray Grimm of St. Barnabas seeking to confirm that Williams was a county inmate and that the hospital bill should be sent to the jail annex. While Neff initially confirmed this advice, she called back later that day to indicate that the custodial sentence of Williams had been suspended and that the jail would pay the medical charges incurred only through July 19, 1982, the date his sentence was suspended.
Neff confirmed this oral advice by letter to Grimm dated July 23, 1982:
*491 As per our conversation earlier this week, I am enclosing a copy of the court order suspending the custodial sentence of Jessie Williams. As of July 19, 1982, we are no longer responsible for him. We will, however, pay for services incurred from Friday, July 16th until Monday, July 19th.
Grimm responded by letter dated August 10, 1982:
I received your letter, dated July 23, 1982, enclosing a copy of the court order suspending the custodial sentence of Jessie Williams.
Please be advised that the Medical Center considers Essex County Jail responsible for the total cost of the care for Mr. Williams, since he was brought in under your custody and the Medical Center was never made aware of any suspension or probable suspension by the county until after admission.
Thereafter, Williams remained as a patient through September 2, 1982, incurring charges totaling $53,725.59.
On September 22, 1982, St. Barnabas sent a bill for these services to both Williams and county. Neither has made any payments against this bill. County acknowledges, however, its liability to pay for services rendered through July 19, 1982, but has not done so because it never received a "shortened bill." There is no private insurance available to satisfy this bill.
St. Barnabas brought this law suit against Williams and Peter Shapiro, County Executive of Essex County, Board of Chosen Freeholders of the County of Essex and Thomas J. D'Alessio, Sheriff of Essex County.
At the hearing, plaintiff was permitted by consent to amend the complaint to delete all public officials and substitute for them the County of Essex (hereinafter "county").
County has moved for summary judgment dismissing the complaint against county and all its officials. St. Barnabas has filed a cross-motion for summary judgment against county for the full amount of its bill.
The complaint was never served on Williams, despite the fact that Williams has a law suit for damages pending against county in Monmouth County, obviously with the wrong venue. R. 4:3-2. Therefore, the complaint will be dismissed without prejudice against him.
The county contends that it is not responsible for hospital charges for a prisoner after his sentence is suspended because:
*492 (a) Although county has a duty to provide necessary medical care to prisoners, it does not have to provide such care for non-prisoners;
(b) county is not liable because there was no contract with St. Barnabas;
(c) No enforceable contract is binding upon county without the approval of the county executive and the county board of chosen freeholders;
(d) Any alleged apparent authority of a county employee did not and cannot bind the county;
(e) The doctrine of equitable estoppel does not apply against county under these facts.
The county's contentions, however, beg the real question, which is whether, during treatment at a private hospital for life-threatening injuries to a prisoner taken there by a penal institution, the public entity governing that institution can be relieved of its responsibility to pay for such treatment by having the prisoner's sentence suspended.
The pertinent regulations provide:
In a county panel (sic) institution ... medical services include all measures needed to keep the inmate population in good health. While confined in such institutions prisoners are wards of the county .. . N.J.A.C. 10:34-3.1(a).
... They have a right to ... proper medical care.... Finally, the procedures of the jail must insure the health and welfare of the prisoners. N.J.A.C. 10:34-3.25.
In the case of those seriously ill, the physician may recommend the removal of the prisoner to a civilian hospital, under proper custodial arrangement. [N.J.A.C. 10:34-3.7(a)6.]
County contends that it requested the court to modify the prisoner's sentence to time served because of the small amount of time that remained to be served (12 days), the fact that his injuries did not make him an escape risk or a danger to society or the hospital in particular, and because of the high cost of providing a 24-hour guard for the prisoner. Such modification is permissible. R. 3:21-10(a), -10(b)(2); N.J.A.C. 10:34-3.7(a)7.
County contends that once a prisoner's sentence has been completed, whether by a full term being served, being commuted *493 by the Governor or being vacated or shortened by a court, the jail has no duty to provide him medical care because the jail would be acting in contravention of the language and intent of the regulations which govern it. The county contends further that the only way the jail could be obligated to provide care to an ex-prisoner is by an express contract to do so or by order of a court pursuant to a court action.
In Revere v. Massachusetts General Hospital, 463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983), the issue was which entity (the government, the hospital or the prisoner) should pay for the medical care of a suspect shot prior to an arrest and transported to a hospital for emergency care. The case was decided on constitutional grounds. The Court stated that the municipality's duty to obtain the necessary medical care did not include the additional duty of compensating the private hospital which provided the care.
... As long as the governmental entity ensures that the medical care needed is in fact provided, the Constitution does not dictate how the cost of that care should be allocated as between the entity and the provider of the care. That is a matter of state law. [463 U.S. at 245, 103 S.Ct. at 2983].
The Court noted that:
It is not even certain that mandating government reimbursement of hospitals that treat injured persons in police custody would have the effect of increasing the availability or quality of care. Although such a requirement would serve to eliminate any reluctance on the part of private hospitals to provide treatment, it also might encourage police to take injured detainees to public hospitals, rather than private ones, regardless of their relative distances or ability to furnish particular services. [463 U.S. at 246, 103 S.Ct. at 2984].
In the instant case, the prisoner was taken to St. Barnabas, rather than to the University of Medicine and Dentistry where the prisoner was a registered clinic patient and where the county generally sends prisoners for outside medical care, because of its certification as a burn-specialty unit.
Once the county took its prisoner to the hospital for life-threatening injuries, the hospital had the right to rely on the credit of the county. Whether county could have limited its responsibility when the prisoner was admitted need not be *494 discussed because the county did not attempt to do so at the time of admittance.
Once St. Barnabas undertook treatment of the prisoner in its special-burn unit, it could not have transferred that responsibility without the consent of its patient (prisoner until July 19). It had no choice but continue the treatment originally requested by the county.
Even in the absence of county's admission of limited liability, the law would impose such liability in any event. N.J.A.C. 10A:31-3.15 (concerning the medical, dental and health care of inmates of county correctional facilities) provides that during period of confinement the inmate is a ward of the county and it is responsible for all of the inmates' health needs. In addition, each correctional facility must provide 24-hour emergency medical care and have a written plan which shall include arrangements for removing inmates to one or more designated hospital emergency rooms or other appropriate health facilities. N.J.A.C. 10A:31-3.15(b)(16).
Regulations promulgated by the County of Essex establish a Department of Health and Rehabilitation with a Division of Community Health Services whose function it is, inter alia, to "promote or provide medical and health services for inmates of prisons or jails maintained and operated by the County." Essex County Code, § 9.2.5(a)(vi). See also Medical Center Hospital, Inc. v. Coleman, 462 So.2d 588 (Fla.Ct.App. 1985), where the court held that a county sheriff was responsible for the medical bills incurred by a prisoner in his custody, pursuant to an administrative regulation which, like this one, obligated the county sheriff to furnish medical care for his prisoners.
Thus, by county's own admission, it is undisputed that there was an understanding between plaintiff St. Barnabas and county for the county to pay for the medical services rendered to Williams. The only issue in this case is not whether such an agreement existed, but the scope thereof, (i.e., could it be unilaterally terminated by county by getting Williams' custodial sentence subsequently suspended?).
*495 County's reliance upon Cooper Medical Ctr. v. Johnson, 204 N.J. Super. 79 (Law Div. 1985) is misplaced. In Cooper the issue was whether there was any liability on the part of a municipality for the medical expenses of a burglary suspect shot by the municipal police. The township first-aid squad, summoned by police, transported suspect to a hospital for treatment. The admission form prepared by the hospital indicated that suspect was admitted as an emergency, non-custodial patient. In this case, the admission form indicated that patient came from the Essex County Jail, Caldwell and that he was brought by personnel from the jail who had him in custodial status. In addition, county has repeatedly acknowledged financial responsibility for Williams at the time he was admitted to plaintiff's facility.
County admits that there was an oral agreement between it and plaintiff St. Barnabas for payment for the care of Williams upon his admission to the hospital on July 16, 1982. However, defendant county contends that its obligation to pay for this care terminated upon the suspension of the remainder of Williams' sentence by the Newark municipal court on July 19, 1982.
County seeks now to impose a condition to its admitted agreement with plaintiff which was not communicated to plaintiff, except after the fact. Such a position is contrary to the principle that essential terms and conditions of a contractual arrangement between parties must be communicated in order to be enforceable.
As stated in Cohn v. Fisher, 118 N.J. Super. 286 (Law Div. 1972):
Under the objective theory of mutual assent followed in all jurisdictions, a contracting party is bound by the apparent intention he outwardly manifests to the other contracting party. To the extent that his real, secret intention differs therefrom, it is entirely immaterial. See Looman Realty Corp. v. Broad St. Nat. Bank of Trenton, 74 N.J. Super. 71 (App.Div. 1962); Leitner v. Braen, 51 N.J. Super. 31 (App.Div. 1958). [at 291-292]
This is precisely the situation here. Even assuming that county intended that its monetary responsibility for Williams would *496 end upon the termination of his custodial sentence, this intention was never communicated to St. Barnabas until after Williams was admitted and was receiving care.
Therefore, county is estopped from denying financial responsibility for the medical expenses incurred by Williams after the suspension of his sentence on July 19, 1982.
In the case of Summer Cottagers' Ass'n of Cape May v. City of Cape May, 19 N.J. 493 (1955), the Supreme Court held that the essential principle of the policy of estoppel is designed to preclude one from "taking a course of action that would work injustice and wrong to one who with good reason and in good faith has relied upon such conduct." Id. at 503-504.
The elements of equitable estoppel are:
The alleged conduct was done, or representation was made, intentionally or under such circumstances that it was both natural and probable that it would induce action. Further, the conduct must be relied on, and the relying party must act so as to change his or her position to his or her detriment. [Miller v. Miller, 97 N.J. 154, 163 (1984)]
These elements are fully satisfied here, and county is now estopped from imposing a condition to its agreement which was not communicated to plaintiff when the agreement was made.
County asserts that equitable estoppel does not apply because the county is not bound by the unauthorized acts of its subordinate employees which are not later ratified. However, this argument misses the mark because county has admitted and ratified an agreement between it and plaintiff to pay for the care rendered to Williams. Again, the only issue is whether that responsibility terminated upon the subsequent suspension of Williams' sentence.
It is true that generally acts of officials which are within their apparent authority but in excess of their actual authority will not bind the government which they represent unless ratified by it. State v. Erie Railroad Co., 23 N.J. Misc. 203, 42 A.2d 759 (Sup.Ct. 1945).
The county admits that it had a duty to provide or obtain such treatment. N.J.A.C. 10:34-31a, -3.25 and -3.7(a)6. However, *497 it contends it could unilaterally terminate its duty to pay for such treatment simply by having the prisoner's sentence suspended.
County's obligation to pay for the medical care rendered to Williams arose at the time that he initially set himself on fire and endured until the termination of the continuous care necessitated as a result thereof. At the time of the original incident Williams was admittedly a ward of the county, and the county was responsible for his medical care. The subsequent suspension of his sentence did not terminate the county's responsibility when he was, at that time, still receiving medical care necessitated by the original incident.
This view is in accord with the law generally regarding health insurance coverage for medical expenses incurred after the expiration of coverage arising out of an injury that occurred during the policy term. The rule in that context is that, absent ambiguous policy language to the contrary, the carrier is obligated to pay for expenses incurred as a result of an accident which occurs during the policy period, even if the expenses are incurred after its expiration. See Annotation, "Insurer's liability under accident policy which terminated after accidental injury but prior to completion of medical treatment, hospitalization and the like," 75 A.L.R.2d 876 (1959).
The New Jersey Administrative Code lends further support for this view. N.J.A.C. 10:34-3.7, which prescribes general rules governing medical services for county correctional facilities, provides in pertinent part:
6. In the case of those seriously ill, the physician may recommend the removal of the prisoner to a civilian hospital, under proper custodial arrangement.
7. The court has the power to modify the sentence of a prisoner who is seriously ill and to remove him to a suitable institution where proper treatment may be administered. [N.J.A.C. 10:34-3.7(a).]
Thus, these regulations contemplate exactly what occurred here. (The removal of a prisoner to an outside facility for proper care and the modification of his sentence.). However, there is no suggestion in these regulations that his sentence *498 modification in any way affects the responsibility of county to provide and pay for continued medical care.
County also contends that there was no contract among the Essex County government, St. Barnabas and Williams to provide Williams with medical care after his custodial sentence ended. The jail annex is part of the Department of Public Safety, one of the eight departments of the Essex County government organized under the jurisdiction of the county executive. The departments and their various subparts or divisions do not have legal authority to bind the county in contract without obtaining the approval of the county executive and, in most instances, the board of chosen freeholders.
However, the county employees have the authority and duty to comply with law, regardless of any express agreement formally executed and approved by the proper board and executive. In this case, it means that county had a duty to provide medical treatment for its prisoner for an incident that occurred while he was a prisoner and not just for the first four days of his 49-day stay at the hospital.
Motion of county for summary judgment is denied. Cross motion of plaintiff for summary judgment against defendant county for $53,725.59 without interest is granted.
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68 Md. App. 342 (1986)
511 A.2d 578
FORD MOTOR LAND DEVELOPMENT CORPORATION
v.
COMPTROLLER OF THE TREASURY.
No. 1497, September Term, 1985.
Court of Special Appeals of Maryland.
July 11, 1986.
Certiorari Denied November 5, 1986.
Shale D. Stiller and Jerome D. Carr (Robert M. Ercole and Frank, Bernstein, Conaway & Goldman, on brief), Baltimore, for appellant.
John K. Barry, Asst. Atty. Gen., Annapolis (Stephen H. Sachs, Atty. Gen., Baltimore, and Gerald Langbaum, Asst. Atty. Gen., Annapolis, on brief), for appellee.
Argued before GARRITY and ROBERT M. BELL, JJ., and JAMES S. GETTY, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.
ROBERT M. BELL, Judge.
In these two appeals, consolidated in one record, from judgments entered by the Circuit Court for Baltimore City, Ford Motor Land Development Corporation, appellant, seeks to overturn two actions taken by the Comptroller of the Treasury, appellee, and affirmed by both the Tax Court and the circuit court: his assessment of additional income tax against appellant and his denial of appellant's claimed refund of taxes already paid. Ford's attack is double barrelled:
1. Because it had no federal taxable income in 1978, was Ford Land without taxable "net income" in 1978 in Maryland pursuant to [Art. 81,] Section 288(b)?;
2. If this Court determines that Ford Land had "net income" in 1978, ... whether Ford Land may offset the gain realized on the sale of the Maryland project by a net operating loss carry forward deduction arising from its losses in prior years (1973-1977) allocable to the Maryland Project.
Finding merit in appellant's first contention, we will reverse. It is, therefore, unnecessary to consider appellant's second contention.
Appellant, a Delaware corporation, organized in 1970 to engage in real estate development and related activities, is a wholly owned subsidiary of Ford Motor Company, with principal offices in Michigan. From the year of its organization until 1973, appellant pursued its activities exclusively in Michigan.
In 1973, appellant acquired its first and only parcel of Maryland real property, a little more than .7 acres of undeveloped land in Montgomery County. It constructed on that parcel a commercial office building which, until its sale in 1978, it owned, operated and managed. In 1978, appellant sold the building and the land for $11.3 million dollars, realizing a net capital gain of $2,976,054.00. With the sale, appellant terminated all of its Maryland activities.
From the beginning, appellant suffered substantial losses from its Maryland real estate operation. These losses were reflected in its 1974-1978 Maryland Income Tax returns,[1] which, although appellant was clearly engaged in real estate leasing and development, requiring allocations of its income, were prepared on the apportionment basis. Its losses between 1974 and 1977, computed on that basis, totaled $1,378,260.00.
When appellant filed its 1978 Maryland Corporation income tax return, still using the apportionment method of accounting, it paid a tax of $94,658, plus $4,250.00 interest. Appellant determined that its operating loss for 1978 was $245,543.00. This figure was added to the losses incurred in prior years, and the total was deducted from the capital gain. To arrive at the tax paid, the tax rate of seven percent, see § 288(b) and (c), was applied against the resulting figure.
The Comptroller conducted a desk audit and, by "notice of corporation tax audit change", increased appellant's tax and interest liability by $74,950.55.[2] Appellant appealed the assessment to the Tax Court.
Appellant then filed an amended 1978 Maryland Corporation income tax return, in which it requested a refund of the full tax and interest previously paid. In that amended return, computed on the allocation basis, appellant showed accumulated losses in the amount of $3,297,397.36 for the years 1973 through 1978. These losses included a stipulated 1978 operating loss of $435,352. Since the losses exceeded the amount of the capital gain, appellant contended that no tax was due. The Comptroller disagreed and denied the requested refund. Appellant again appealed to the tax court.
The Tax Court affirmed both the Comptroller's assessment of additional tax and his denial of appellant's requested refund of taxes and interest paid. Responding to appellant's argument, "Because it had no federal taxable income for 1978, it had no "net income" allocable to, or taxable, in, Maryland", the court explained:
Unfortunately for the Petitioner, however, the nature of the State tax system demands that several modifications or adjustments from the federal taxable income be made. An adjustment to what is shown on the federal return may be necessary for Maryland purposes, for example, where the taxpayer filed a consolidated return for affiliated corporations for federal purposes, which type of return is not permitted under Maryland law. Art. 81, § 295. Comptroller v. Atlantic Supply, 294 Md. 213 [448 A.2d 955] (1982). This adjustment could require the corporation to file a pro forma federal return for the separate corporation. Another adjustment is when an adjustment is necessary to produce a final figure of income tax is taxable by Maryland because the corporation conducts its business in a number of states. [sic] Such federal taxable income must be subjected to either the apportionment formula of Section 316(c) or the complete inclusions or exclusions by allocation of Section 316(a) or (b) relating to rental income or capital gains that might be allocated entirely to or outside of Maryland. The last type of adjustment results from the addition and subtraction modifications of Section 280 A(b) and (c) which alter the normal federal rules and results for particular types of income. All three of these adjustments exist in the instant case.
The Tax Court thus found that the capital gain was Maryland net income, taxable by Maryland, and further, that the Maryland Tax system does not establish an operating loss deduction or account separate from that permitted by federal law, which only creates an entity deduction.
Appellant fared no better in the circuit court, which affirmed the Tax Court decision.
Our task is to determine the meaning of the term, "net income", and, given its relationship to the federal concept of "taxable income", the effect of that term, as used in the Maryland tax law. Our task, is therefore, one of statutory construction. In approaching this task, we seek to ascertain and effectuate the legislative intention. Jones v. State, 304 Md. 216, 220, 498 A.2d 622 (1985); In re Arnold M., 298 Md. 515, 520, 471 A.2d 313 (1984); Celanese Corp. v. Comptroller, 60 Md. App. 392, 397, 483 A.2d 359 (1984). "Where the language [of the statute] is clear and free from doubt the Court has no power to evade it by forced and unreasonable construction" State Tax Comm. v. C & P Tel. Co., 193 Md. 222, 231, 66 A.2d 477 (1949). Thus, where "there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the General Assembly". City of Baltimore v. Hackley, 300 Md. 277, 283, 477 A.2d 1174 (1984). Furthermore, the statute must be construed considering the context in which the words are used and viewing all pertinent parts, provisions, and sections so as to assure a construction consistent with the entire statute. Comptroller v. Mandel Re-election Com., 280 Md. 575, 579, 374 A.2d 1130 (1977). And, if there is no clear indication to the contrary, a statute must be read so that no part of it is "rendered surplusage, superfluous, meaningless or nugatory." Bd. of Educ., Garrett Co. v. Lendo, 295 Md. 55, 63, 453 A.2d 1185 (1982); Baltimore Building and Construction Trades Council v. Barnes, 290 Md. 9, 15, 427 A.2d 979 (1981). On the other hand, we "shun a construction of the statute which will lead to absurd consequences". Erwin and Shafer, Inc. v. Pabst Brewing Co., 304 Md. 302, 311, 498 A.2d 1188 (1985), or "a proposed statutory interpretation if its consequences are inconsistent with common sense". Blandon v. State, 304 Md. 316, 319, 498 A.2d 1195 (1985).
With these principles in mind, we set forth those portions of the Maryland tax law which are necessary to the fulfillment of our task. Article 81, § 280A(a) provides, in pertinent part:
The net income of a corporation shall be the taxable income of such taxpayer as defined in the laws of the United States as amended from time to time and for the corresponding taxable period....
Sections (b) and (c) provide for adjustments, e.g., additions to or subtractions from the federal taxable income of the corporation. None of those adjustments is applicable to this case.
The tax on corporate income is imposed by § 288, which, in 1978, provided:
(b) Basic tax on corporations. There is hereby annually levied and imposed for 1968 and subsequent years, a tax on the net income of every corporation (domestic or foreign) at the rate of six and one quarter percent (6 1/4%) of such portion thereof as is allocable to this State under the provisions of § 316 hereof. (emphasis added)[3]
Section 316, Allocation of Corporate Income, provided:
The net income of a corporation (domestic or foreign) shall be allocated in the following manner:
(a) Income from real estate or tangible property.
Income from ground rents, rents and royalties and other income from real estate or tangible personal property permanently located in this State (less related expenses) shall be allocated to this State; and such income from real estate or tangible personal property permanently located outside this State (less related expenses), shall be allocated outside this State.
(b) Capital gains and losses.
1. Capital gains and losses from sales of real property located in this State are allocable to this State. 2. Capital gains and losses from sales of tangible personal property are allocable to this State if: (A) the property had a situs in this State at the time of the sale; or, (B) the taxpayer's commercial domicile is in this State and the taxpayer is not taxable in the State in which the property had a situs. 3. Capital gains and losses from sales of intangible personal property are allocable to this State if the taxpayer's commercial domicile is in this State.
(c) Business income.
The remaining net income hereinafter referred to as business income, shall be allocated to this State if the trade or business of the corporation is carried on wholly in this State, but if the trade or business of the corporation is carried on partly within and partly without this State so much of the business income of the corporation as is derived from or reasonably attributable to the trade or business of the corporation carried on within this State, shall be allocated to this State and any balance of the business income shall be allocated outside this State. The portion of the business income derived from or reasonably attributable to the trade or business carried on within this State may be determined by a separate accounting where practicable, but never in the case of a unitary business; however, where separate accounting is neither allowable nor practicable the portion of the business income of the corporation allowable to this State shall be determined in accordance with a three-factor formula of property, payroll and sales, in which each factor shall be given equal weight and in which the property factor shall include rented as well as owned property and tangible personal property having a permanent situs within this State and used in the trade or business shall be included as well as real property. The Comptroller of the Treasury shall have the right, in those cases where circumstances warrant, to alter any of the above rules as to the use of the separate accounting method or the formula method, the weight to be given the various factors in the formula, the manner of valuation of rented property included in the property factor and the determination of the extent to which tangible personal property is permanently located within the State.[4] (emphasis added)
Appellant's argument is that, unless the corporation has federal taxable income, it cannot have Maryland net income. Appellant reasons that § 280A defines the base, which may be adjusted upward or downward, § 280A(b) and (c), upon which Maryland corporate income taxes are payable; §§ 288(b) and (c) prescribe the rate to be applied to that base and directs that it shall be applied against the portion of the base allocable to Maryland; and § 316 prescribes the methods by which the taxable base is allocated between Maryland and the rest of the world. This scheme, it concludes, makes clear that § 316 is merely an allocation mechanism, not one for adjusting the taxable base. In a sense, then, appellant argues that federal taxable income is not only a base for the computation of Maryland net income, but also a ceiling on Maryland tax.
The Comptroller, characterizing appellant's argument as "pure linguistic analysis" and "mechanistic linguistics", urges that we reject appellant's position because "it is not directly ordained by statute [and] ... is totally dependent upon a particular interpretation of `net income' ..." (emphasis in the original). He argues:
While Ford maintains that this inclusion of the phrase "taxable income" means positive taxable income for the corporation as a whole, this is not in fact the case. No such intent can be found from the statutory scheme taken as a whole; instead, that statutory scheme, with its required allocations between Maryland and foreign income, mandates that the phrase "taxable income" means that figure which results from those separate portions of "taxable income" that, when combined together, yield the income or loss shown on the taxpayer's federal return for that year. In a case such as this, where some of the component parts (or "portions") do produce "taxable income" (clearly a capital gain is taxable income), and some produce a taxable loss, the position of the Comptroller allows all three statutes (§ 316, § 280A(a) and § 288) to work in harness together, according to their basic principles: operating income is apportioned (producing no tax if the amount taxable as operating income is not income but a loss); the allocated Maryland share of any such apportioned loss reduces situs allocated taxable income; non-Maryland allocated losses (whether from situs gains or apportioned operations) do not offset income earned in Maryland; and mechanistic linguistics are not used to read into the taxation scheme an artificial ceiling not expressly imposed by the legislature.
The effect of the Comptroller's position is to construe § 316, in this case, particularly subsection (b) as an adjustment to, rather than allocation device for, a corporation's "taxable income".
When the rules of statutory construction are applied to the relevant statutes, we find appellant's "pure linguistic analysis" and "mechanistic linguistics" to be, not only persuasive, but compelling. The plain meaning of the taxing scheme is clear: since "net income" for corporate tax purposes is federal "taxable income", § 280A, and the tax is imposed only on the net income of a corporation, § 288(b) and (c), but only to the extent "of such portion [of net income] as is allocable to this State," § 288(b) and (c), and § 316 prescribes the method of allocating the "net income of a corporation," "net income" is a prerequisite to State taxation. Furthermore, although never explicitly stated in any case[5], the cases which have considered this State's system of taxation support the proposition.
Katzenberg v. Comptroller, 263 Md. 189, 282 A.2d 465 (1971) and Marco Assoc. v. Comptroller, 265 Md. 669, 291 A.2d 489 (1972) provide a detailed analysis of the structure and operation of the Maryland corporate income tax system, including its interrelationship with the federal system. In Katzenberg, the Court of Appeals recognized the scope of the legislative prerogative to tax in this area:
It is undoubtedly true that the General Assembly, had it seen fit, to do so, could have imposed a tax on a taxpayer's gross income, without considering the source from which it came, whether it be earnings, investment income or profits realized from sale of capital assets, and without granting exemptions, allowing deductions or permitting any other adjustments. If it could validly do this, and we think it could, there is no reason to doubt that it could select some other figure, objectively arrived at, upon which the tax could be based.... (citation omitted)
Id. 263 Md. at 205, 282 A.2d 465. See Marco, 265 Md. at 677, 291 A.2d 489. The Court went on to explain how the legislature had chosen to exercise its discretion:
Chapter 142 of the laws of 1967 completely restructured Maryland's income tax law, by adopting as a base for State income tax purposes ... the taxable income of a corporate taxpayer (§ 280 A), as determined under the Internal Revenue Code, to and from which certain amounts, as specified by the Act, are to be added or deducted. On the resulting figure, § 288 of the Act imposes a ... non graduated tax for corporations....
Id., 263 Md. at 192, 282 A.2d 465. Thus,
[T]he whole thrust of the Maryland Act is to impose a tax on the amount determined under the Internal Revenue Code as the ... taxable income of a corporation. This is a formula or yardstick objectively derived which initially takes no account of the source, nature or composition of the funds; it is simply a figure developed by the federal return.
Id. 263 Md. at 204-205, 282 A.2d 465. Marco, 265 Md. at 674, 291 A.2d 489. Having adopted a system "inextricably keyed" to the definition of taxable income under federal law, Comptroller v. Chesapeake Corp. 54 Md. App. 208, 213, 458 A.2d 459 (1983), "because gains and losses are reflected in the ... taxable income of a corporation developed for federal tax purposes, to which the Maryland tax is applied," Katzenberg, 263 Md. at 192, 282 A.2d 465, capital gains and losses are within the ambit of the State income tax. But, as Marco makes clear, "the Act does not purport to be a tax on capital gains as such ..., but is rather a tax liability derived from the concept of income developed for federal income tax purposes." Id., 265 Md. at 675, 291 A.2d 489. See also Comptroller v. Chesapeake Corporation, supra, 54 Md. App. at 214, 458 A.2d 459 ("[A]n item appearing in a corporation's federal return as `taxable income' must be similarly reflected as `net income' in the corporation's Maryland return.").
We interpret Katzenberg and Marco, consistent with our view, to mean that the essential, initial determination which must be made before a corporation may be subjected to Maryland tax is whether that corporation has federal taxable income. The recent case of Celanese Corporation v. Comptroller, supra, buttresses this conclusion. There, we were concerned with the proper treatment, under Maryland tax law, of a portion of a depreciation recapture, treated, for federal income tax purposes, as ordinary income, i.e., "should that portion of the profit attributable to the recapture of depreciation be allocated for State taxation to the State of Texas under Maryland Code ..., Art. 81, § 316(a), as contended by Celanese [the appellant], or should it be subject to apportionment under subsection (c) of that same section, as decided by the trial court in affirming the Maryland Tax Court?" Id. 60 Md. App. at 394, 483 A.2d 359. In explaining our conclusion that it should be apportioned, we said:
While Celanese was depreciating its Deer Park, Texas plant prior to its sale in 1974, it had permissibly reduced its federal taxable income to the extent of the depreciation claimed. This reduction in federal taxable income resulted in lower corporate taxes paid by the appellant in Maryland during the period of time when such depreciation took place, since the amount of the appellant's net federal taxable income subject to apportionment in Maryland under § 316(c) was reduced proportionately. It is inconceivable that the Legislature intended to permit the corporate taxpayer to reduce its tax liability to Maryland by apportionment of the depreciation deduction and at the same time to deny Maryland the right to benefit along with other states when the depreciation was recaptured for purposes of determining the federal taxable income on which this state computed its state income tax. (emphasis supplied)
Id., 60 Md. App. at 399, 483 A.2d 359.
We find further support for this conclusion in the federal definition of taxable income: "`taxable income' means gross income minus the deductions allowed by this chapter." 26 U.S.C. § 63(a). See Home Mut. Ins. Co. v. C.I.R., 639 F.2d 333, 350 (7th Cir., En Banc Opinion on Rehearing) cert. denied 451 U.S. 1017, 101 S.Ct. 3005, 69 L.Ed.2d 388 (1980) ("Taxable income is simply that portion of taxpayer's gross income that Congress has chosen to tax."). We think it obvious that the resulting figure must be a positive number.
Notwithstanding that they are not from courts of last resort, we find the out-of-state cases cited by appellant to be persuasive. In Commonwealth v. Columbia Steel and Shafting Company, 83 D. & C. 326 (Pa.Orph.Ct.Dau.Cty., 1951), the court found that a foreign corporation doing business both within and without Pennsylvania, which reported an $83,000 loss on its federal income tax return, owed no Pennsylvania income tax despite its having sold Pennsylvania capital assets in Pennsylvania for a profit. The Pennsylvania statute taxed "net income ... as returned to and ascertained by the Federal Government." The Act also contained provisions, similar to Maryland's, for allocating or apportioning the net income of the corporate taxpayer. The court ruled:
Here we find that net income as defined in clause 1 is to be allocated and apportioned. Net income in clause 1 is the "net income as returned to and ascertained by the Federal Government." It is agreed that the net income of defendant as returned to and ascertained by the Federal Government in the present case was a loss of $83,407.01, or, if you please, a negative number. We are unable to comprehend how a net loss can be construed as net income. The tax is levied on each dollar of net income, not on each dollar of the net loss. If we be correct in this hypothesis, there is no net income as defined in clause 1 to be allocated and apportioned under clause 2, in which event no tax is due for the period involved. We base our decision on this construction. (emphasis in original)
Id., 83 D and C at 329. A similar result was reached in Decision of State Tax Board, Docket Nos. 258, 258-A, State Tax Reporter [1 Del.] (CCH) Par. 200-047 (1962), aff'd sub nom, State Commissioner v. Atlantic Aviation Corp., State Tax Reporter [1 Del.] (CCH) Par. 200-149 (Del.Sup. Ct., New Castle County, 1966.) We are not persuaded that the fact that the statute in that case defined taxable income, as "the portion of the entire net income of a corporation which is allocated and apportioned to this State ..." detracts, in any way, from the logic of the conclusion reached or its applicability to the case sub judice.
In summary, we reject the Comptroller's contention that § 316(b) allows taxation of the capital gain realized by appellant from the sale of property in Maryland even though appellant had no net income as defined by § 280A. In our view, as we have explained above, § 316 becomes operative only if there is net income, in which event that net income is to be allocated or apportioned pursuant to its terms.
JUDGMENTS REVERSED.
CASE REMANDED TO CIRCUIT COURT FOR BALTIMORE CITY FOR FURTHER REMAND TO THE MARYLAND TAX COURT, FOR ENTRY OF AN ORDER CONSISTENT WITH THIS OPINION.
COSTS TO BE PAID BY COMPTROLLER.
NOTES
[1] Appellant did not file a Maryland income tax return for 1973. Although it had gross income in that year, it had no taxable income.
[2] The original notice requested an amount of $102,202.14, composed of $92,217.77 increased tax and $9,984.37 increased interest. The final figure was noted in a subsequent notice.
[3] Section 288(c) provided that an additional tax of 0.75% be imposed on all corporations for Transportation Trust Fund. The tax, as in subsection (b), is imposed upon "such portion [of the net income] as is allocable to this State under the provisions of § 316 hereof...."
[4] By Chapter 294 Laws of Maryland 1984, applicable to all taxable years beginning after December 31, 1983, §§ (a) and (b) were repealed. The repeal does not, however, affect this case.
[5] The Maryland Tax Court has recently taken this position in American Satallite Corporation v. Comptroller, (Income Tax No. 2061, April 16, 1986), a case in which the corporation, despite having realized a long term capital gain as a result of the sale of intangible personal property, sustained a loss for federal income tax purposes when it applied net operating loss carry forwards against its income. Responding to the Comptroller's argument that § 316 permits taxation of the capital gain even though the corporation had no net income, the court held:
As Section 288(b) indicates, Section 316 only comes into play when a corporation has net income as defined under Section 280 A. It is not a separate basis for imposing tax. Our conclusion is supported by the introductory language of Section 316 which states that "The net income of a corporation (domestic or foreign) shall be allocated in the following manner...." Thus, Section 316 prescribes the way in which corporate net income shall be allocated for tax purposes between Maryland and the rest of the world. The statute presupposes the existence of net income and if there is none it does not apply.
The court distinguished its decision in the case sub judice, thusly:
Ford dealt with a taxapayer whose Maryland operations were unprofitable but whose out-of-State operations were profitable.... The taxpayer attempted to report only its unprofitable Maryland operations and thus avoid payment of tax. In essence, the corporation was attempting to circumvent Section 280 A and jump right into Section 316.
The Comptroller has appealed the decision to the Circuit Court for Baltimore City.
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486 S.W.2d 327 (1972)
Richard Jay ROSS, Appellant,
v.
The STATE of Texas, Appellee.
No. 46156.
Court of Criminal Appeals of Texas.
November 1, 1972.
*328 Fred Time, Dallas, for appellant.
Henry Wade, Dist. Atty., and Jerome L. Croston, Jr., Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
OPINION
MORRISON, Judge.
This is an appeal from an order revoking probation.
Appellant was convicted for the possession of marihuana on September 29, 1970, assessed a five (5) year sentence, and placed on probation. One of the terms of his probation was a provision that he not violate the laws of this or any other state or the Federal government. On November 11, 1971, the State filed a motion to revoke alleging appellant possessed marihuana in violation of the terms of his probation.
Appellant's first contention is that the record does not show that he was informed of the conditions of his probation. At the hearing on the motion to revoke appellant acknowledged that he had been given a copy of the conditions of his probation on the day probation was granted and a copy of the terms of probation agreed to by appellant on that day is a part of the record in this case. Smith v. State, Tex. Cr.App., 422 S.W.2d 440.
Appellant's first contention is overruled.
His second contention is that the evidence upon which the State relied for revocation was unconstitutionally obtained. Officer Duell testified that at 1:30 a. m. on the night in question he observed an automobile pull out from a shopping center with a defective muffler, that he stopped the same, and asked the appellant, who was the driver, for his driver's license. At this time Officer Ivy arrived and testified that he observed a tire tool lying on the backseat and asked the appellant and his companion to get out of the automobile. Ivy also stated that appellant and his juvenile companion, Peter Railsback, appeared lethargic and smelled of marihuana. There was also a strong odor of marihuana in the automobile. In the search of the appellant's person a smoking pipe was found in his coat pocket. An examination of the pipe revealed burnt and unburnt marihuana particles. A search of the automobile revealed another tire tool on the front floorboard and two cigarette butts, shown to contain marihuana, in the dash ashtray.
The officers had sufficient probable cause. Adair v. State, Tex.Cr.App., 482 S.W.2d 247.
Appellant's contention is overruled.
Appellant's third contention is that the evidence is insufficient to show that appellant knew that the substance found in the pipe and in the cigarette butts was contraband. We call attention to appellant's primary conviction together with the smell emanating from within the automobile which was identified as marihuana by the arresting officers.
This contention is overruled.
Contention four is that the trial court erred in failing to determine whether or not the witness Railsback asserted his claim of privilege against self-incrimination in good faith. Appellant called the witness and he declined to testify on the grounds that to do so might incriminate him. This was done upon the advice of his attorney, the Honorable Phil Burleson who was representing the witness and who was present at the trial. Nothing further was required of the court.
Contention four is overruled.
Contention five is that the court erred in failing to grant the witness Railsback immunity at the behest of appellant's counsel. The court could not have granted such immunity without the joinder of the *329 State. Wallace v. State, 145 Tex.Cr.R. 625, 170 S.W.2d 762. No effort was made to enlist the aid of the State. No error is shown.
Finding the evidence sufficient to support this conviction and no reversible error the judgment is affirmed.
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486 S.W.2d 377 (1972)
Lionel A. WHITE, Appellant,
v.
The STATE of Texas, Appellee.
No. 45030.
Court of Criminal Appeals of Texas.
November 8, 1972.
*378 John R. Green, of Fuhrhop & Green, Dickinson, for appellant.
Jules Damiani, Jr., Dist. Atty., M. Bruce Fort, Asst. Dist. Atty., Galveston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
OPINION
ROBERTS, Judge.
The offense is possession of heroin. Two prior convictions for felonies less than capital were alleged for enhancement. The punishment was assessed at life under Article 63, Vernon's Ann.P.C.
Appellant cites seven grounds of error.
The record reflects that on October 27, 1967, officers, armed with a search warrant, went to appellant's apartment where they found Judith Ann Guillory, who had been living with appellant for about a year. Appellant was not there when the police officers arrived. After making a brief search of appellant's apartment, the officers heard footsteps coming up the stairway. As appellant approached the door of the communal bathroom located across the hall from his apartment, the officers identified themselves. At that point, appellant began running. The officers pursued him, and they observed appellant make a throwing motion just before he was apprehended. One of the officers subsequently found two capsules in a gutter adjacent to the stairs. The capsules were later identified by a chemist as containing heroin.
In his first four grounds of error, appellant challenges the legality of the search warrant. However, this Court was faced with this very same search warrant in a companion case, White v. State, 451 S.W. 2d 497 (Tex.Cr.App.1970), and the Court, at page 499, found that the affidavit contained sufficient facts for the magistrate to conclude that probable cause existed. Admittedly, the Court did eventually grant appellant's motion for rehearing and the judgment of the trial court was reversed. However, that portion of Judge Douglas' *379 opinion which addressed itself to the legality of the search warrant was left undisturbed on the motion for rehearing. A reasonable interpretation of the final decision is that the reversal was based solely on the testimony of Judy Guillory. This Court having previously decided the legality of the search warrant, appellant's first four grounds of error are overruled.
Appellant next urges reversible error because Judy Guillory was allowed to testify as to what the evidence was the officers retrieved. She testified that after appellant was apprehended, the police officers found "two caps of heroin." Appellant contends it was error to permit a lay witness to so testify. However, a chemist for the Bureau of Narcotics and Dangerous Drugs later testified, without objection, that these same two capsules did, in fact, contain heroin. Judy Guillory should not have been allowed to testify as to what the capsules contained. However, the error does not call for a reversal, since the same facts were proven by other testimony to which no objection was made. See East v. State, 420 S.W.2d 414 (Tex.Cr.App. 1967); Autry v. State, 159 Tex.Cr.R. 419, 264 S.W.2d 735 (Tex.Cr.App.1954); Merx v. State, 450 S.W.2d 658 (Tex.Cr.App. 1970).
In his sixth ground of error, appellant contends the court erred in allowing Judy Guillory to testify as to why she gave the appellant $14. When questioned by the State, witness Guillory testified as follows:
"A He [appellant] asked me did I have any money, and I told himyes and I gave him $14.00.
* * * * * *
"Q And why did you give him $14.00 in money?
"A To buy two caps of
"MR. GREEN:
Your Honor, we object to that. That's being speculative, unless there was something said by the Defendantwhat he wanted the money for. This is crucial to the case, Your Honor, for them to come out with a speculative answerwhy they did something has no connection with what this man did.
"COURT:
Objection overruled. Please read the question to the witness(The following is read:
`Q. And why did you give him $14.00 in money?')
"A To buy two caps of heroin.
"MR. FORT:
And what did he do, if anything, when you gave him the $14.00 to buy two caps of heroin?
"COURT:
And that's while he was in your presence.
"MR. FORT:
Yes, sir.
"A He got dressed and left."
Appellant contends that such testimony was conclusionary and resulted in an inference that appellant was to go buy heroin with the money given to him. If that inference arose, it is only because the record supports such a deduction. Judy Guillory was testifying as to her intent in giving appellant the $14.00. The intent with which a person does an act is known to him, and he is a competent witness to testify as to such fact. See 23 Tex.Jur.2d, § 153; McKinney v. State, 149 Tex.Cr.R. 46, 191 S.W.2d 27, 30 (Tex.Cr.App.1946). Appellant's contention is overruled.
Appellant's final ground of error again concerns the search warrant. He alleges that there is nothing in the record to show that James McKenna, the person who issued the search warrant, was a duly authorized magistrate. The allegation is without merit. The affidavit in support of *380 the search warrant is in the record and clearly reflects the signature of James L. McKenna, followed by "Justice of the Peace, Precinct No. 1, Court B, Galveston County, Texas." No objection by appellant is found in either the motion to suppress or at the trial proceedings. Also, when one of the police officers testified that he took the search warrant to "Judge McKenna" to be signed, no objection was made. The record reflects no error.
The judgment is affirmed.
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767 F.Supp. 975 (1991)
Robert Anthony MURRAY, Petitioner,
v.
Paul DELO, Respondent.
No. 90-0370C(3).
United States District Court, E.D. Missouri, E.D.
April 8, 1991.
*976 *977 Charles M. Shaw, Clayton, Mo., for petitioner.
Jared R. Cone and Ronald L. Jurgeson, Asst. Attys. Gen., Jefferson City, Mo., for respondent.
ORDER
HUNGATE, District Judge.
This matter is before the Court after a hearing on the merits of some of the claims presented to this Court in petitioner's second amended petition for writ of habeas corpus.
On December 12, 1986, petitioner was convicted of two counts of murder in the first degree in the 1985 deaths of Jeffrey Jackson and Craig Stewart. The jury recommended the death penalty on both counts, and petitioner was sentenced accordingly. On direct appeal, the Missouri Supreme Court affirmed the convictions and sentence. State v. Murray, 744 S.W.2d 762 (Mo. banc), cert. denied, 488 U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150 (1988). Thereafter, petitioner filed in state court a motion to set aside or vacate judgment and sentence pursuant to Mo.S.Ct.R. 29.15, which was denied after an evidentiary hearing. The Supreme Court of Missouri affirmed that ruling. Murray v. State, 775 S.W.2d 89 (Mo. banc 1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990).
On March 1, 1990, petitioner filed in this Court his original pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner's appointed counsel subsequently *978 filed amendments to the original petition, as well as a second amended petition.
On January 9, 1991, this Court entered an order stating in part that "the ineffectiveness of counsel in petitioner's post-conviction proceedings may not constitute `cause' to overcome a procedural bar." As pointed out to the Court by the parties, this statement is in contrast with the prevailing law in the Eighth Circuit, as stated in Simmons v. Lockhart, 915 F.2d 372 (8th Cir.1990). Simmons states that ineffective assistance of post-conviction counsel can be "cause" for purposes of lifting a procedural bar. Id. at 376. The Court is compelled to follow this precedent and will vacate its January 9, 1991, order only to the extent that it states that ineffective assistance of post-conviction counsel cannot constitute cause to overcome a procedural bar. Nonetheless, as discussed below, even if petitioner could establish cause by demonstrating that his post-conviction counsel was ineffective in failing to raise the claims in petitioner's allegations numbered 14, 16, 19, and 21-28, the Court finds that petitioner cannot demonstrate actual prejudice by this failure as required under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Accordingly, the Court still finds that petitioner's grounds 14, 16, 19, and 21-28 are procedurally barred.
In allegation 14, petitioner alleges that the court erred in submitting Missouri Approved Instruction Criminal 2d ("MAI-CR2d") 13.44 which impermissibly limited the jurors' consideration of mitigating evidence contrary to Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Furthermore, petitioner asserts that the submission of MAI-CR2d 13.46 did not cure this defect. See McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 1231, 108 L.Ed.2d 369 (1990).
The relevant instructions submitted to the jury read as follows:
Instruction No. 11
As to Count I, if you decide that one or more sufficient aggravating circumstances exist to warrant the imposition of death, as submitted in Instruction No. 14, you must then determine whether one or more mitigating circumstances exist which outweigh the aggravating circumstance or circumstances so found to exist. In deciding that question, you may consider all of the evidence relating to the murder of Jeffrey Jackson.
You may also consider:
1. Whether the defendant has no significant history of prior criminal activity.
2. Whether the defendant was an accomplice in the murder of Jeffrey Jackson and whether his participation was relatively minor.
3. Whether the defendant acted under extreme duress or under substantial domination of another person.
You may also consider any circumstances which you find from the evidence in mitigation of punishment.
If you unanimously find that one or more mitigating circumstances exist sufficient to outweigh the aggravating circumstances found by you to exist, then, on Count I you must return a verdict fixing defendant's punishment at imprisonment for life by the Division of Corrections without eligibility for probation or parole.
Instruction No. 12
As to Count I, you are not compelled to fix death as the punishment even if you do not find the existence of one or more mitigating circumstances sufficient to outweigh all the aggravating circumstance or all the circumstances which you find to exist. You must consider all the circumstances in deciding whether to assess and declare the punishment at death. Whether that is to be your final decision rests with you.
Mills requires that a juror not be precluded from considering any mitigating evidence in determining the appropriate sentence to be imposed. 486 U.S. at 384, 108 S.Ct. at 1870.
The Court finds that the instructions submitted in this case are distinguishable from those in Mills and McKoy and do not run afoul of the constitutional principles set *979 forth therein. Specifically, the jurors in petitioner's case were not submitted a verdict form requiring a designation of each mitigating circumstance found unanimously by the jury. Cf. Mills, 486 U.S. at 387, 108 S.Ct. at 1871-72; McKoy, 110 S.Ct. at 1230. Thus, petitioner cannot demonstrate that post-conviction counsel's failure to raise this claim resulted in actual prejudice.
Petitioner's allegation 16 states that the trial court was without jurisdiction to consider petitioner's criminal case because the indictment does not comply with Missouri's statutory language regarding capital murder. Petitioner states that the language of the indictment more closely resembled the statutory language for murder first-degree.
Petitioner was tried and convicted of murder in the first-degree, not capital murder. Thus, as admitted by petitioner, the language of the indictment was sufficient for this charge. Therefore, petitioner has not demonstrated actual prejudice from post-conviction counsel's failure to raise this claim.
In allegation 19, petitioner alleges that he received ineffective assistance of counsel because trial counsel failed to object to the state's questioning of Officer Robert Planthold about statements made to him by Claudia Hennings.
This issue, framed as one of trial court error, was presented to the Missouri Supreme Court on direct appeal. The Missouri Supreme Court held that the testimony was relevant and admissible under Missouri law. State v. Murray, 744 S.W.2d at 772-73. Thus, petitioner has failed to show how counsel's failure to raise this issue at the post-conviction proceeding resulted in actual prejudice.
In allegation 21, petitioner states that trial counsel was ineffective in failing to take measures to prohibit evidence which had not been furnished through discovery. Specifically, petitioner asserts that counsel failed to ensure that notes and memoranda prepared by investigating officers that the state claimed had been destroyed were not introduced into evidence.
Once again, the Court finds that petitioner has not demonstrated actual prejudice from his post-conviction counsel's failure to raise this claim. Petitioner has not alleged that the notes were not destroyed or that the notes contained any exculpatory information that would have been beneficial to the petitioner. Nor has petitioner demonstrated any bad faith on the part of law enforcement officers in destroying their notes. See Sargent v. Armontrout, 841 F.2d 220, 224-25 (8th Cir.1988).
As allegation 22, petitioner alleges that defense counsel failed to object to the testimony of the state's witness, Claudia Hennings, that the two victims of the homicide were taken into a back room and "tortured." Petitioner states that this testimony calls for speculation and was inflammatory and highly prejudicial.
The Court finds that this statement certainly was within the province of the witness. As stated by the Missouri Supreme Court:
There is sufficient evidence in this case for a jury to believe that both physical and psychological torture was inflicted upon the murder victims. Evidence that Jackson and Stewart were bound and gagged and then beaten before being killed was unchallenged, as was evidence that the defendant and his accomplices stabbed knives into the floor directly beside the men. There is evidence that the murder victims, as well as Hennings and Nutall, were subjected to prolonged terror....
State v. Murray, 744 S.W.2d at 776. Accordingly, petitioner has not demonstrated actual prejudice with respect to this claim.
In allegation 23, petitioner alleges that trial counsel failed to object to the testimony of Christopher Jay Hyman, a paramedic who responded to the scene of the murder. According to petitioner, Hyman testified about the nature of the wounds to the victims without a proper evidentiary foundation or qualification.
As noted by the respondent, petitioner has not asserted that the evidence itself *980 was inadmissible or that a proper foundation or qualification could not have been made.
This Court does not find that actual prejudice resulted from failing to raise this claim during post-conviction proceedings.
In petitioner's second amended petition, two claims are labeled ground 24. With respect to the first one, petitioner alleges that he was denied a fair trial because of the state's questioning of witness Hyman as to the emotional state of Gladys Nutall. Petitioner asserts that this testimony called for speculation on the part of Hyman and served to bolster the testimony of Gladys Nutall.
The trial transcript reveals the following discourse between Hyman and the prosecutor:
Q. Okay. What did you observe when you got there?
A. We hadas I recall, there were three people to be considered. There were two with gun shot wounds lying on the floor, tied up; and one had his mouth gagged. One had his face and a lot of clothing around it. The one my partner worked on, I believe, actually had a gag tied around. And there was a woman who was fairly upset back in one of the rooms, not the same room as the two gun shot victims.
Q. All right. Do you recall whether or not that woman wasor was she ever identified to you?
A. I think that we were told later, but I don't recall off hand, and I don't think I can identify her.
Q. Would you say she was upset? How would you characterize, having had medical training, having hadhow would you characterize her?
MS. GILBERT: Objection, Your Honor, calls for speculation and that it's irrelevant.
THE COURT: Sustained to the use of the word "characterize."
Q. (Mr. Worzycki) What did you observe about her that night?
A. It's hard to actually define a term like distressed but, you know, ifwhen something very frightening happens, you have a person is frightened, and I don't know that I could say panicky. It's been quite some time, but it seems to me just moderate state of distress. That's not a very specific term.
Q. At the time that you saw this lady, was she crying?
A. I don't recall.
Q. All right. Was she able to talk coherently to you?
A. I think so.
Q. Okay. Did she appear to you to be extremely nervous?
MS. GILBERT: Objection, Your Honor. He is leading his witness.
THE COURT: Sustained.
Q. (Mr. Worzycki) What else can you tell us about her condition?
A. As I recall, I don't believe she had any real medical problems, any severe cuts or bruises or anything, and she did not wish to be treated.
Hyman merely was describing the circumstances at the residence when he arrived. The petitioner has not demonstrated Hyman's testimony bolstered the testimony of Nutall or prejudiced the defendant in any other way. Thus, post-conviction counsel's failure to raise this claim did not result in actual prejudice to the petitioner.
As his second ground 24, petitioner asserts that the state misstated the law in the penalty phase of voir dire by instructing the jury that their duty was to weigh the mitigating and aggravating circumstances of the case and balance the two.
As stated above, this Court finds that the jury was properly instructed on the penalty phase of the case. Moreover, control of the voir dire is in the sound discretion of the trial court. See State v. Murray, 744 S.W.2d at 770. Thus, petitioner has not demonstrated actual prejudice by failing to raise this claim in the state courts.
With respect to ground 25, petitioner states that the trial court erred in failing to strike for cause juror number 78, Mary Donnelly, who stated that after finding the defendant guilty of cool, deliberate, and *981 premeditated murder, death was the only punishment she would consider.
Venireperson Donnelly did not serve on the final jury which convicted petitioner. Thus, the only possible impact of the alleged error on petitioner was that he had to use one of his peremptory challenges to remove her. The loss of a peremptory challenge does not constitute a violation of the constitutional right to a fair trial. Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988). Thus, petitioner cannot demonstrate actual prejudice relating to this claim.
Petitioner's allegation 26 challenges the sufficiency of the indictment. Petitioner alleges that the indictment on its face does not conform to the statutory language under which the defendant was charged.
Again, the Court finds petitioner cannot demonstrate actual prejudice for failing to raise this claim in state court. The indictment used to charge the petitioner substantially tracks the format approved by the Missouri Supreme Court and, therefore, was proper. Mo.S.Ct.R. 23.01(e).
In ground 27, petitioner states that defense counsel failed to object to remarks made by the prosecutor which inferred that this case was other than a "normal murder situation," which prejudiced the petitioner and inflamed the jury.
Although petitioner does not point the Court to the actual portion of the prosecutor's argument to which he objects, the Court notes that there was substantial evidence in this case against the petitioner. It is appropriate for counsel in his or her argument to assist the jury in analyzing and applying the evidence. The Court does not find that there was actual prejudice sufficient to overcome a procedural bar where the evidence in the case supported any inference by counsel that this case was not a normal murder situation.
In ground 28, petitioner asserts that the state personalized closing argument, and petitioner's trial counsel failed to object to these remarks which were highly prejudicial and inflammatory. Again, the Court finds that petitioner cannot demonstrate actual prejudice resulted from post-conviction counsel's failure to raise this claim.
Moreover, the Court finds there was overwhelming evidence in the case against the petitioner. Thus, the burden of demonstrating actual prejudice is a difficult one which petitioner has not met.
Accordingly, the Court finds that petitioner is procedurally barred from asserting grounds 14, 16, 19, and 21-28. This Court previously found petitioner's ground 2 also was procedurally barred.
The Court will now consider the merits of petitioner's remaining claims. In particular, petitioner alleges that trial counsel was ineffective in (1) failing to present available mitigating evidence; (2) not moving to strike the venire panel and not ascertaining the extent of potential poisoning of the jury after the trial court received information that a venireperson had communicated inflammatory and prejudicial information concerning the petitioner's guilt; and (3) failing to object to the aggravating circumstance instruction concerning depravity of the mind, read by the trial court to the jury.
In addition, petitioner alleges that the trial court erred in (1) failing to remove for cause twelve venirepersons and sustaining the state's motion for cause with respect to two venirepersons; (2) failing to suppress unconstitutionally obtained evidence; (3) excluding petitioner's family members from the courtroom during trial; (4) failing to exclude photographs depicting the bodies of the victims; (5) permitting the state to introduce into evidence a police officer's testimony about statements made by witnesses who also testified at trial; (6) defining reasonable doubt for the jury as "doubt based upon reason and common sense," and defining burden of proof as "proof that leaves you firmly convinced of defendant's guilt;" (7) permitting the state to make an opening statement during the penalty phase of the trial where the state did not present any evidence; and (8) denying defendant's request for a jury instruction on conventional second-degree murder.
*982 In construing the constitutional requirement for effective assistance of counsel, the "benchmark ... must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The Court determines whether counsel's performance was deficient and, if so, whether the deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. at 2064. In analyzing counsel's performance, the Court must determine whether, under all the circumstances, the "identified acts or omissions were outside the range of professionally competent assistance." Id. at 690, 104 S.Ct. at 2066. This review is highly deferential for there is a strong presumption that counsel's conduct "falls within the wide range of reasonable professional assistance; that is, the petitioner must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689, 104 S.Ct. at 2065. With respect to the duty to investigate, the Supreme Court stated:
[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
Id. at 691, 104 S.Ct. at 2066.
A deficient performance alone is insufficient to find counsel was ineffective. The Court must also find prejudice resulted from such performance. To establish the prejudice element, petitioner must show
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.... When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.
Id. at 694, 695, 104 S.Ct. at 2068, 2069. In making this determination, the Court "must consider the totality of the evidence before the judge or jury." Id. at 695, 104 S.Ct. at 2069.
Petitioner alleges that his trial counsel was ineffective because she failed to present available mitigating evidence at the sentencing phase of petitioner's trial. Specifically, trial counsel did not call petitioner's wife and children to testify.
The Supreme Court of Missouri considered this claim and stated:
When investigating the possibility of having Ms. Woods [petitioner's wife] testify, either as an alibi witness during the guilt phase of the trial or as a witness during the penalty stage, [petitioner's] counsel learned that persons Ms. Woods contended could corroborate [petitioner's] alibi admitted to counsel's investigator that [petitioner] had previously contacted them and conceded his involvement in the crimes.3
* * * * * *
3 When counsel informed [petitioner] about the information she had received, [petitioner] said he would "clear it up." Counsel is not ineffective for failing to present perjured testimony. Allen v. State, 518 S.W.2d 170 (Mo.App. 1974).
Counsel testified at the motion hearing that she decided as a matter of trial strategy not to endorse or call Ms. Woods as a witness because of her concern the state would then be able to locate those other persons and their extremely damaging testimony.
* * * * * *
Counsel stated that she did not consider attempting to have [petitioner's] children testify during the penalty stage; however, assuming arguendo that this amounted to a breach of counsel's professional duty, [petitioner] failed to establish any prejudice from the alleged deficiency. [Petitioner's] children were nine, seven, and six years old at the time of the hearing, and testified that they loved their father and wanted him to *983 come home. The motion court, after observing the children testify at the hearing, found them incompetent as witnesses under § 491.060, RSMo 1986, and pointed out they would have been less competent at the time of trial, when they would have been between the ages of four and six.
Murray v. State, 775 S.W.2d at 91-92.
The above factual findings underlying counsel's performance by the state court are entitled to a presumption of correctness in the related federal habeas proceeding. 28 U.S.C. § 2254(d); Patton v. Yount, 467 U.S. 1025, 1036-38, 104 S.Ct. 2885, 2891-92, 81 L.Ed.2d 847 (1984). While such a presumption attaches to any facts underlying an ineffective assistance of counsel claim, it does not apply to the state court's ultimate conclusion about whether or not petitioner's counsel rendered effective assistance. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070. Petitioner does not contend any circumstance precludes the application of the presumption of correctness, and this Court finds the state courts' findings supported by the record. Upon careful consideration of the record, the Court finds reasonable trial counsel's conduct in not calling petitioner's wife and children to testify. Trial counsel decided as a matter of strategy not to have petitioner's wife testify due to concerns about perjury and credibility. Additionally, trial counsel did not err in not calling the petitioner's young children to testify as the record suggests that the testimony would have been used merely to gain sympathy. As the Supreme Court of Missouri noted, "sympathy is not a proper factor for the jury to consider in reaching its decision as to punishment." State v. Clemmons, 753 S.W.2d 901, 910 (Mo. banc), cert. denied, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). Since the Court has not found petitioner's trial counsel's performance deficient with respect to this claim, the Court need not and will not address the prejudice prong of the Strickland test for constitutionally ineffective assistance of counsel.
Petitioner next alleges that trial counsel was ineffective in not moving to strike the venire panel and not ascertaining the extent of potential poisoning of the sentencing jury after the court received information that a venireperson had communicated inflammatory and prejudicial information concerning petitioner's guilt.[1]
The record reveals that venireperson Farroll reported that, following the first day of the sentencing jury selection, another venireperson, later identified as Van Buren, made statements to Farroll about petitioner's guilt and the length of penalty to be imposed. Farroll reported the incident the following day and was questioned out of the presence of the other venirepersons. The Supreme Court of Missouri found that:
[Petitioner's] counsel actively participated in the questioning and astutely asked whether any other jurors were present when the comments were made. Venireman Farroll responded:
No. By the time he [Van Buren] mentioned this, his opinion and his experiences, we were on the sidewalk far down the building, and we were the only two walking together to the garage at that point and rode up the elevator together to the same level. To the best of my knowledge[,] there would have been no one else within hearing.
Venireman Farroll also stated that the comments did not have an impact on her, although after further reflection, she would not be able to impose the death penalty, and the court sustained the state's motion to strike her for cause. At this point, [petitioner's] counsel continued to pursue the matter by alertly requesting "since we don't know who this other person is that [Farroll] not be *984 excused from the panel, and go through the rest of the voir dire, so she can point out to us who that person is." Prior to the initial jury instructions and opening statements, a record was made indicating defense counsel had investigated the incident further and venireman Farroll was able to identify venireman Van Buren, who had already been struck for cause, as the man who had made the comments to her.
Murray v. State, 775 S.W.2d at 90. Again, the factual findings of the Supreme Court of Missouri are entitled to the presumption of correctness established in 28 U.S.C. § 2254(d), and petitioner does not contend any circumstance precludes the application of the presumption of correctness. The Court finds the state court's findings are supported by the record. Petitioner's trial counsel actively pursued the matter and Farroll indicated that she alone heard Van Buren's comments. Thus, there is no indication that the venire panel was "poisoned" or biased against petitioner. Since the Court has not found trial counsel's performance deficient with respect to this claim, the Court need not address the prejudice prong of the Strickland test.
Petitioner also alleges that trial counsel was ineffective in not objecting to the trial court submitting to the jury the aggravating circumstance that the murders were outrageously or wantonly violent and that they involved torture or depravity of mind. Specifically, petitioner contends that this aggravating circumstance is overbroad and vague and permits the death penalty to be imposed in an arbitrary and capricious manner.[2]
With respect to this matter, the appellate court stated:
[T]he Court finds substantial evidence to support the jury's finding of the existence of the three statutory aggravating circumstances which were submitted with respect to each murder. The evidence that Jackson and Stewart were both taken into the kitchen by the [petitioner] and his accomplices shortly before their lifeless bodies were found there leaves no doubt that each of the murders was committed while the killer was engaged in the commission of another unlawful homicide. The jury was justified in finding that the murders were committed while the [petitioner] was engaged in the perpetration or in the attempt to perpetrate a robbery because there was evidence that the [petitioner] and his accomplices took Jackson's and Stewart's wallets and Hennings' and Nutall's purses; that the assailants ransacked the apartment while asking for money and guns; that the assailants, after asking if Tracy Adams had any guns or money with him, waited three hours for him to arrive; and that the assailants, while beating Jackson and Stewart immediately before killing them, told them "this ain't enough."
State v. Murray, 744 S.W.2d at 775.
Moreover, in affirming the circuit court's denial of petitioner's post-conviction motion, the Supreme Court of Missouri found that:
The record indicates that counsel raised a general written objection to the instruction and objected orally during trial; however, assuming arguendo that counsel's objections were insufficient, we find no prejudice from the alleged inadequacy of counsel. On direct appeal we found sufficient evidence to support the instruction, noting that the victims were shot execution-style after being held hostage for approximately three hours, during which time they were bound, gagged, and beaten. [Petitioner] and his accomplices stabbed knives into the floor directly beside the victims, and, while the victims were helplessly bound, sexually assaulted two women who had also been with the victims in the house when the intruders arrived. Thus the evidence indicated that the victims were subjected to serious physical and emotional abuse *985 and that [petitioner's] actions were in callous disregard for the sanctity of human life, State v. Griffin, 756 S.W.2d 475, 489-90 (Mo. banc 1988), and under these circumstances the depravity of mind instruction is not unconstitutionally vague. Jones v. State, 767 S.W.2d 41, 45 (Mo. banc 1989).
Murray v. State, 775 S.W.2d at 92; see also Mercer v. Armontrout, 864 F.2d 1429, 1435 (8th Cir.1988) (stating that a similar instruction did not undermine the accuracy of the sentencing determination). Even if the instruction was in error, the jury found two additional aggravating circumstances, apart from the alleged erroneous one.
Upon careful consideration of the record, the Court finds that trial counsel was not ineffective in failing to object to the challenged aggravating circumstance presented to the jury. The record reflects sufficient evidence for the jury to believe that the victims suffered both physical and psychological torture. Thus, the aggravating circumstance referring to depravity of mind was properly submitted in this case. See Smith v. Armontrout, 888 F.2d 530, 538-39 (8th Cir.1989). Again, since the Court finds trial counsel's performance was not deficient, the Court will not address the prejudice prong of the Strickland test.
Petitioner's next two claims allege that the trial court erred in failing to remove for cause twelve venirepersons, and in sustaining the state's motion to strike for cause two venirepersons. Specifically, petitioner alleges that the trial court failed to strike for cause venirepersons Carolyn Artega, number 32; Lillian Nicolai, number 252; Victoria Alsup, number 25; David Fisher, number 142; Elizabeth Formenti, number 153; Elbert White, number 389; Norma Munsell, number 231; Eve Ebert, number 88; Roselta Brown, number 330; Robert Bianco, number 46; Frank Landish, number 200; and Richard Pelleguini, number 277. Petitioner contends that the above-mentioned venirepersons indicated that they would impose the death penalty if the state proved petitioner guilty of murder first-degree, with the state having to prove aggravating circumstances. Petitioner also asserts that venirepersons Lee Evans, number 112, and Sam Allen, number 128, were wrongly struck for cause when they indicated that, despite the fact that they could impose the death penalty, they did not think it appropriate under all the circumstances.
The standard for determining when a prospective juror may be excluded for cause is "whether the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.'" Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985) (citing Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)). This standard does not require that a juror's bias be proved with "unmistakable clarity." Id. Despite an ambiguous record, "there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.... [D]eference must be paid to the trial judge who sees and hears the juror." Id. at 425-26, 105 S.Ct. at 853. Retention of a single juror in violation of this standard requires a reversal of the imposition of the death penalty. Davis v. Georgia, 429 U.S. 122, 123, 97 S.Ct. 399, 400, 50 L.Ed.2d 339 (1976). The qualifications of a prospective juror are determined based on the entire voir dire examination. State v. Smith, 649 S.W.2d 417, 425-26 (Mo. banc), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983).
Initially, the record reflects that venireperson Bianco was stricken for cause at petitioner's request. Moreover, venirepersons Nicolai, Formenti, Landish, and Pelleguini did not serve on the jury and were not removed by a peremptory challenge of the petitioner. Thus, any error by the trial court could not have impacted petitioner.
With respect to venireperson Ebert, the trial transcript reveals the following discourse between Ms. Ebert and the prosecuting attorney:
Mr. Worzycki: Okay. How do you feel about the death penalty?
*986 Juror No. 88: I think it's necessary for certain crimes.
Mr. Worzycki: ... [C]an you consider giving him life with no parole, and also can you consider giving him the death penalty?
Juror No. 88: Yes.
Mr. Worzycki: Okay. By considering it, can you, with the other eleven jurors, sign a verdict either of life with no parole or death?
Juror No. 88: Yes.
Mr. Worzycki: Okay. Thank you.
When pressed by defense counsel on her feeling about the death penalty, Ms. Ebert stated she thought a juror should consider both options. Based on this record, the Supreme Court of Missouri found that venireperson Ebert "unequivocally stated that [she] could consider both death and life sentences." State v. Murray, 744 S.W.2d at 768-69.
With respect to venirepersons Artega, Alsup, Fisher, White, Munsell, and Brown, the Supreme Court of Missouri found the following:
All the other ... challenged venirepersons initially stated that they could consider the full range of punishment. Under examination by defense counsel, however, each of the eleven at least arguably retreated from their earlier stand. Some of these venirepersons directly stated to defense counsel that they could consider only the death penalty. In the case of one of these eleven venirepersons, the defense counsel, seeking to resolve the inconsistency in the responses, reiterated that the jury would be instructed that the penalty for first-degree murder was either death or life imprisonment. After being reminded of the law the jury was required to follow, this venireperson stated that she would be able to consider both alternative punishments. In the cases of the other ten venirepersons at issue here, the court, recognizing that their answers were inconsistent, and that they were becoming confused, broke into the questioning and explained as impartially as possible the duty the jurors would have to follow the court's instructions and to consider both the alternative punishments provided for first-degree murder. The court then asked the venirepersons if they could follow the instructions in this case and consider both alternative punishments. Each of the ten venirepersons said he or she could.
State v. Murray, 744 S.W.2d at 769. The record supports this factual determination.
Based on the entire voir dire examination, the Court finds that the trial court did not err in failing to remove the above-named venirepersons.
Venirepersons Evans and Allen were struck for cause. The Supreme Court of Missouri found that, although Evans and Allen initially were equivocal about whether they could consider both life and death sentences, each finally answered that he could not consider the death penalty. Id. at 768. The Supreme Court determined that the trial court was warranted in relying on the venirepersons' final answers. Id. This Court agrees and finds that the exclusion of Allen and Evans for cause was permissible because each indicated an inability to follow the law.
Next, in ground 4 of his petition, petitioner alleges that the trial court failed to suppress unconstitutionally obtained evidence. This ground was presented in state court as a fourth amendment claim and will be addressed on that basis.
A state prisoner may not be granted federal habeas corpus relief on a claim that evidence presented at trial was obtained in violation of the fourth amendment where the state has provided the prisoner with a full and fair hearing on the claim. Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976). The state provided petitioner an opportunity to litigate his fourth amendment claim. The petitioner filed a motion to suppress which was denied after a hearing. Accordingly, petitioner's fourth ground for habeas relief will be denied.
In ground 5, petitioner alleges that the trial court erred in excluding members of petitioner's family, even though they were not witnesses at petitioner's trial. *987 Petitioner asserts that this erroneous exclusion created an impression in the minds of the jurors that petitioner had been abandoned by his family or was dangerous.
The exclusion of witnesses in Missouri courts is a matter within the sound discretion of the trial judge. State v. Daegele, 302 S.W.2d 20, 24 (Mo.1957). The Court notes that members of petitioner's family were endorsed as witnesses for the penalty phase of the trial and testified at that phase. Thus, the Court finds that the trial judge's exercise of discretion in excluding petitioner's family members did not render petitioner's trial fundamentally unfair.
In both grounds 6 and 20, petitioner alleges that the trial court erred in failing to exclude photographs depicting the bodies of the murder victims. Petitioner contends that these photographs inflamed the passions of the jury and caused petitioner to be convicted on an improper basis. Additionally, petitioner contends that the probative value of the photographs was greatly outweighed by their prejudicial effect.
Petitioner must demonstrate that the court's error in allowing the photographs was of such significance that the trial was fatally infected. See Redding v. Minnesota, 881 F.2d 575, 579 (8th Cir. 1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1158, 107 L.Ed.2d 1061 (1990). Photographs generally are admissible if relevant to a material issue in the case. State v. Daugherty, 631 S.W.2d 637, 641 (Mo.1982).
The photographs admitted were relevant as to the issue of deliberation which the state was required to prove under the crimes charged in the indictment. The autopsy photographs also reveal the extent of the victims' wounds and were described by oral testimony. Thus, these photographs had substantial probative value and aided the jury in analyzing the evidence. Accordingly, the Court finds that the photographs did not fatally infect petitioner's trial.
Petitioner's next contention is that the trial court improperly permitted the state to bolster statements made by witnesses Claudia Hennings and Gladys Nutall. Officer Planthold testified as to statements made by Hennings. Nutall was allowed to testify that she was certain that petitioner had raped her.
Again, petitioner must demonstrate that the trial court's alleged error fatally infected his trial. Redding, 881 F.2d at 579.
Officer Planthold testified that Hennings told him that Hennings' friend had been raped, the location of the crime scene, and the names and descriptions of two of the assailants, including petitioner. This testimony was offered to explain the officer's actions in reporting to the scene of the crime. The officer did not testify as to details of the crime related to him by Hennings. The Court finds no error in allowing this testimony by Officer Planthold. Similarly, the Court does not find it improper to allow Nutall to testify as to her certainty of the identification of petitioner. Thus, the testimony of Officer Planthold did not fatally infect petitioner's trial.
Petitioner next objects to the definition of "reasonable doubt" and the explanation of the government's burden of proof given to the jury. The instruction given to the jury defining "reasonable doubt" is from MAI-CR2d 2.20 and reads in pertinent part as follows:
A reasonable doubt is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. The law does not require proof that overcomes every possible doubt. If, after your consideration of all the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you will find him guilty. If you are not so convinced, you must give him the benefit of the doubt and find him not guilty.
Petitioner contends that this instruction fails to impart upon the jurors the full gravity of their duty. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Specifically, petitioner objects to *988 the language "firmly convinced" and "doubt based upon reason and common sense" contained in the instruction.
The Court notes that a similar instruction, using the language "firmly convinced," has been approved by the federal courts. See United States v. Hunt, 794 F.2d 1095, 1100-01 (5th Cir.1986). In addition, this Court regularly uses an instruction defining "reasonable doubt" as "doubt based on reason and common sense." See E. Devitt & C. Blackmar, Federal Jury Practice and Instructions, § 11.14 (2d ed. 1977). Accordingly, the Court concludes that the trial court stated the law accurately and petitioner's trial was not made fundamentally unfair.
Next, petitioner argues that the trial court improperly permitted the state to make an opening statement during the penalty phase of the trial when the state presented no evidence at this stage of the trial.
The trial court has broad discretion regarding the scope and manner of opening statements. Due to the bifurcated nature of the murder trial, the state had already presented evidence to the jury during the guilt phase of the trial. The prosecutor's opening statement during the penalty phase merely summarized for the jury the evidence it had already heard and how that evidence related to the penalty phase. To adopt the argument advanced by petitioner would result in much unnecessary repetition of testimony by the state's witnesses. The Court fails to see how allowing the state an opening argument at this stage of the trial rendered petitioner's trial fundamentally unfair.
Finally, petitioner contends that the trial court erred in refusing his request for a jury instruction on conventional second-degree murder. Petitioner alleges that this instruction was supported by the evidence and should have been given as a lesser included offense. The jury was instructed on felony murder. However, petitioner alleges that the evidence in the case did not compel an inference of deliberation and that a second-degree murder instruction also should have been given.
The trier of fact in a capital murder case must be allowed to consider lesser included offenses supported by the evidence. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Respondent contends that a conventional second-degree murder instruction was not supported by the evidence.
With respect to this issue, the Supreme Court of Missouri found as follows:
In this case, the evidence was that after the [petitioner] and two accomplices robbed Jackson, Stewart, Claudia Hennings, and Gladys Nutall, they bound and gagged Jackson and Stewart, placed them on their knees, and then beat the two men while demanding more. Knives were repeatedly stabbed into the floor near the men to further frighten them. Then, after Hennings escaped out the window, Nutall saw the defendant hold Stewart up and shoot him in the back. When police arrived on the scene Jackson and Stewart were found dead of bullet wounds caused by bullets fired from the same weapon. At trial, the [petitioner's] only defense was that it was not him but rather one of his accomplices that shot the men. He did not try to prove that the murders did not take place or that they took place in a manner different from that testified to by Hennings and Nutall. He did not even deny his presence at the apartment. He tried only to throw doubt on the accuracy of Nutall's identification of him as the killer.
The [petitioner] contends that this evidence supports the submission of a second degree murder instruction because it permits a jury to find that the [petitioner] and his accomplices reacted to Hennings' escape with panic and shot Jackson and Stewart in reflex rather than after deliberation. There is no evidence to support this theory and it is belied by Nutall's testimony that the [petitioner] held Stewart up before shooting him in the back. Such testimony is consistent only with the killer holding Stewart steady while deliberately aiming his weapon for a death shot. Also, the evidence *989 that Jackson and Stewart had two bullet wounds each in their upper torsos is consistent with deliberately aimed shots and inconsistent with the conjecture and speculation that the shots were fired in panic. Further, there would have been no reason for the defendant and his accomplices to kill the victims in reflex to Hennings' escape. The victims were bound. They could have made no move to take advantage of the confusion caused by the escape by either attempting to escape themselves or to turn on their assailants.
State v. Murray, 744 S.W.2d at 773-74. This Court agrees with the Supreme Court's determination and finds that petitioner was not entitled to a second-degree murder instruction because it was not supported by the evidence.
In sum, after careful review, the Court finds that petitioner is not entitled to habeas corpus relief on any of his claims. Accordingly,
IT IS HEREBY ORDERED that petitioner's petition for writ of habeas corpus is denied.
IT IS HEREBY FURTHER ORDERED that any motions or requests for a hearing, to the extent they remain pending before this Court, are denied as moot.
IT IS HEREBY FURTHER ORDERED that petitioner's execution is stayed until sixty days from the date of this order.
NOTES
[1] Petitioner presents this claim in his federal habeas action as one of trial court error. However, this claim regarding the potential poisoning of the jury was presented to the state courts as an ineffective assistance of counsel claim. Accordingly, the Court will consider the claim only on the ineffective assistance of counsel basis. See Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct. 276, 277-78, 74 L.Ed.2d 3 (1982). Petitioner also orally argued this claim to the Court at the hearing.
[2] Once again, this claim is presented to this Court as a claim of trial court error, but was presented to the state courts as an ineffective assistance of counsel claim, and will be considered by this Court as an ineffectiveness claim. See Anderson v. Harless, 459 U.S. at 6-7, 103 S.Ct. at 277-78.
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486 S.W.2d 217 (1972)
STATE of Missouri, Respondent,
v.
Andrew Michael PETRECHKO, Appellant.
No. 57251.
Supreme Court of Missouri, Division No. 2.
November 13, 1972.
John C. Danforth, Atty. Gen., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, for respondent.
James L. McMullin, Hill & McMullin, Kansas City, for appellant; John Cosgrove, Kansas City, of counsel.
STOCKARD, Commissioner.
Andrew Michael Petrechko was found guilty by a jury of assault with intent to rape and he has appealed. The notice of appeal was filed prior to January 1, 1972. Appellate jurisdiction is in this court.
*218 Appellant first contends that the evidence was insufficient to authorize a finding of the required intent.
A jury reasonably could find that on the evening of March 9, 1970, appellant approached Barbara Mattox as she alighted from her automobile, obstructed her path, and told her to get into his automobile. When she was slow in complying, appellant told her to get into his automobile or he would shoot her, and she saw a gun in his hand. He pushed Miss Mattox toward his automobile and opened the door, but she kicked it closed and told appellant she would not get in the automobile. The two then started fighting, and appellant pushed Miss Mattox to the ground and fell on top of her, and kept telling her to get in his automobile. While appellant held Miss Mattox on the ground he repeatedly called her a bitch, and at one time he told her that if she did not get in the automobile "we'll just do it right [here]." Miss Mattox testified that she "told him that he couldn't rape me and he said, `why' and just kind of froze and I told him." When Miss Mattox rolled over on her stomach, appellant struck her on the back of her head with the butt of his gun. She then pretended that she had been knocked out, and when appellant lifted her to her feet she attempted to break away. A fight again occurred, and appellant again knocked her to the ground. When Miss Mattox screamed appellant struck her twice on the head with his gun. He told her that the only way she could get him to stop hitting her was to get in his automobile, and he hit her hard enough that she was scared. She then agreed to get in the automobile, and she intended to get out and run when he walked around to the driver's side. However, he held onto her and climbed over her to the driver's seat. Appellant then drove away while holding Miss Mattox by the neck and across her mouth. He stopped behind a closed gasoline service station and pulled Miss Mattox down in the seat. An employee of the service station was there working on an automobile, and appellant realized that he had been seen. Miss Mattox then asked appellant to let her go, and she told him that because of the blood from her head she could not see. She was allowed to leave the automobile, and appellant drove away.
Appellant denied the assault, and stated that at the time of the attack he was with a friend.
In determining the sufficiency of the evidence to support a conviction, it is our duty to view the evidence in the light most favorable to the State, to accept all substantial evidence and all legitimate inferences fairly deductible therefrom which tend to support the verdict, and to reject contrary and contradictory evidence. State v. Selle, Mo., 367 S.W.2d 522.
"It is the unusual situation when there is direct evidence of the intent of a person charged with [an assault]. Intent may and generally must be established by circumstantial evidence, for as a rule it is not susceptible of direct proof." State v. Chevlin, Mo., 284 S.W.2d 563, 566. When we consider the evidence in this case, we find that it was sufficient to submit to the jury the issue of whether appellant committed the assault with an intent to rape. Appellant stopped Miss Mattox and directed that she enter his automobile. When she refused he made a vicious assault on her, knocked her to the ground, and told her that if she did not enter the automobile "we'll just do it right [here]." Appellant necessarily had some intent in making the assault, and when all the evidence and the reasonable inferences are considered, a finding that the assault was made with an intent to rape is clearly authorized. See State v. Selle, supra.
Appellant cites State v. Osborne, Mo., 246 S.W. 878; State v. Williams, 324 Mo. 179, 22 S.W.2d 649; State v. Fleming, Mo., 177 S.W. 299; and State v. Brown, Mo., 217 S.W.2d 546. In the Osborne case the defendant was found guilty of a common assault. The substance of the holding *219 in each of the other cases is that in a prosecution for assault with intention to rape there must be sufficient proof of an intention to have sexual relations despite any and all resistance. Each case must be ruled on its particular facts, and we need not review the facts of those cases. In this case, appellant attacked Miss Mattox with unusual savagery and struck her repeatedly with his gun after knocking her to the ground. He insisted that she leave with him in his automobile, and expressed his intent to ravish. The evidence need not establish the intent as a matter of law; it is sufficient that it authorizes such a finding by a jury. The fact that appellant realized that he had been seen by the person in the service station, and for that reason terminated his attack to prevent identification or capture, does not result in the evidence being insufficient to authorize a finding of the requisite intent.
Appellant's next contention is that the in-court identification of appellant by Miss Mattox was tainted by the lineup identification.
Miss Mattox gave a description to the police of the person who assaulted her. Several days later she attended a lineup but was unable to identify anyone. She testified that appellant was not in that lineup, and there is no evidence to the contrary. Six days later she viewed a second lineup and identified appellant as her attacker. Prior to trial appellant made a motion to suppress all evidence of identification. After a hearing the trial court overruled the motion, and found that "any in-court identification has not been tainted by any line-up identification." When Miss Mattox made an in-court identification of appellant, no objection was made.
Appellant admits that he signed a waiver consenting to the lineup without the presence of counsel, but he argues that he did so while he could have a lawyer present at the lineup, he was also told that "we have no way of giving you a lawyer but you can call one by phone for legal advice." Appellant asserts that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, requires that he be advised that "if he is indigent a lawyer will be appointed to represent him."
The requirements of the Miranda decision has not been extended to include the advice necessary to be given to a suspect prior to a lineup, and we decline to so extend it. Also, the lineup in this case was held before appellant was charged by indictment or information, and the presence of counsel was not required. Therefore, no advice concerning the right to presence of counsel was required. State v. Walters, Mo., 457 S.W.2d 817; Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.
The judgment is affirmed.
HOUSER, C., concurs.
PER CURIAM:
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
MORGAN, P.J., and HENLEY and DONNELLY, JJ., concur.
O'LEARY, Special Judge, not participating.
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486 S.W.2d 437 (1972)
STATE of Missouri, Respondent,
v.
Charles Wayne VERMILLION, Appellant.
No. 55618.
Supreme Court of Missouri, Division No. 1.
November 13, 1972.
*438 John C. Dan forth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.
Robert G. Duncan, Pierce, Duncan, Hill & Russell, Kansas City, for appellant.
BARDGETT, Judge.
On a prior appeal this cause was "reversed and remanded for the conduct of a hearing on the question of the applicability of the Second Offender Act and for a resentencing *439 of the defendant or the granting of a new trial on all issues, depending upon the court's finding on such hearing." See State v. Vermillion, Mo., 446 S.W.2d 788.
The occasion for the remand was the failure of the trial court to enter its finding that would make the Second Offender Act, § 556.280, V.A.M.S., applicable. The reason that the sentence was set aside was because, in this case, the circuit judge did not have the power to assess punishment unless the Second Offender Act was applicable. If the Act is not applicable then the defendant is entitled to have the issue of punishment submitted to the jury.
On remand the hearing ordered by this court was conducted and the same judge who presided over the trial found that the Second Offender Act was applicable and sentenced appellant to fifty yearsthe same sentence as was originally imposed. This court has jurisdiction of this appeal from a felony conviction under Art. V, § 3, Mo.Const., V.A.M.S., where the notice of appeal was filed prior to January 1, 1972.
Immediately after the first witness was sworn, the appellant, through his attorney, stated that he was applying to the court to have the court disqualify himself as being prejudiced in this case. The court observed that the hearing was part of the same trial and that he was required to make a specific finding as to the alleged prior conviction. The judge said that if he thought he could disqualify himself he would do so, but he did not believe he could do so because the hearing was part of the same trial. Defendant asked the judge if the judge thought he was prejudiced and the judge replied that he thought not.
The hearing proceeded with the court again hearing evidence as to the alleged prior conviction. The court specifically found that appellant had been convicted of robbery first degree on January 25, 1965; that appellant was sentenced to five years imprisonment; that appellant was received and imprisoned in the Missouri Department of Corrections; that appellant's sentence was thereafter commuted and he was released on December 21, 1967, and concluded that the Second Offender Act was applicable. The judge then resentenced appellant to the same term he had previously imposed, to wit, fifty years imprisonment. The instant offense of robbery first degree was committed January 4, 1968, about two weeks after appellant was released from the penitentiary on December 21, 1967.
Point one on this appeal challenged the sufficiency of the evidence as to the prior conviction on the ground that the certified transcript of Serial Record from the Department of Corrections, state's exhibit 4, which was utilized in part to support the applicability of the Second Offender Act, contained names other than appellant's and it could not be determined whether the exhibit referred to appellant or someone else. Subsequently it came to the attention of appellant's attorney on this appeal, who did not represent appellant in the trial court, that exhibit 4 referred only to Charles Wayne Vermillion. Exhibit 4 has been filed in this court and it refers only to Charles Wayne Vermillion. Appellant has abandoned this point.
Appellant's second point is that the trial court erred in failing to disqualify himself and in holding that appellant's disqualification request was untimely.
Criminal Rule 30.12, V.A.M.R., provides in part that a judge shall be deemed incompetent and disqualified to try a criminal case when he is interested or prejudiced; that he may disqualify of his own initiative; and he shall be disqualified if an affidavit be filed stating that a party cannot have a fair and impartial trial by reason of interest or prejudice of the judge. Such affidavit must be filed at a prescribed time prior to swearing a jury, and only one such affidavit may be filed *440 by the same party in the same case and shall be made as to only one of the judges of the court involved.
A number of criminal causes have been remanded where the trial court did not make the specific findings necessary to support the applicability of the Second Offender Act. Sec. 556.280, RSMo 1969, V.A.M.S. Cf. State v. Hill, Mo., 371 S.W.2d 278; State v. Garrett, Mo., 416 S.W.2d 116; State v. Dixon, Mo., 434 S.W.2d 564; State v. Holmes, Mo., 434 S.W.2d 555.
Subsequently the court en banc reconsidered the procedure employed in the above-cited cases and concluded that where the evidence clearly establishes the elements of the Second Offender Act's applicability and where the court's order recites a finding of a previous felony conviction and that under the evidence the Second Offender Act is applicable, this court will not remand for the entry of other specific findings. State v. Blackwell, Mo.Banc, 459 S.W.2d 268.
Thus, whether or not State v. Vermillion, Mo., 446 S.W.2d 788, would have been remanded had it been decided after State v. Blackwell, supra, is problematical at best. In any event, State v. Blackwell makes it clear that the determination of the applicability of the Second Offender Act is not a proceeding separate from the trial of the case itself but constitutes an integral part of the original trial. Therefore, the findings entered by the court on remand in this case constituted a part of the original trial.
That part of Criminal Rule 30.12, V.A.M.R., which requires a judge to disqualify himself upon an affidavit being filed in which it is alleged that a party cannot have a fair and impartial trial by reason of the interest or prejudice of the judge has no application to the hearing involved in this case. The mere filing of the affidavit in proper time before trial requires that the judge disqualify himself even though the judge is, in fact, neither interested nor prejudiced in any way at all. State ex rel. McNary v. Jones, Mo.App., 472 S.W.2d 637. That procedure was available to the appellant prior to the beginning of his trial but not after the trial began and is not available with respect to hearings occurring after the trial begins which hearings constitute part of the trial itself, such as the instant hearing.
Smith v. Smith, Mo.App., 435 S.W.2d 684, and State v. Tyler, Mo., 440 S.W.2d 470, are not applicable. Smith was a motion to modify a divorce decree, and Tyler was a motion under S.Ct. Rule 27.26. A motion to modify a divorce decree and a proceeding under Rule 27.26 are original proceedings and are independent of the original divorce action and of the original criminal cause and are not integral parts of the divorce trial nor the criminal trial.
In this case the "trial" began June 24, 1968, when the jury panel was sworn for voir dire examination. It was at that point in time that both parties lost the right to require the automatic disqualification of the judge merely upon the affidavit of interest or prejudice. Criminal Rule 30.12, V.A.M.R.
When appellant requested the court to disqualify, the court said, inter alia, "I don't think that I can disqualify myself. It's during the same trial. I think that I have to make a finding, a specific finding as to the prior convictions or conviction, and once having done that, to make a resentencing. That is what it was sent back for. I don't know how anybody else could do it. If I thought I could do it, I would disqualify myself. I don't think I can. This is part of the same trial. It is merely on an evidentiary point. Yes, if I found the evidence insufficient of prior convictions I certainly could give a new trial. If I found it sufficient I would not give a new trial, because the trial in this case has already been had. It's merely a matter of the resentencing."
At another point appellant asked the judge if he, the judge, thought he was *441 prejudiced against appellant, and the judge said that he did not think so. The judge's remark that he would disqualify himself if he thought he could do so had reference to appellant's position that the judge must disqualify himself upon the mere allegation of prejudice and did not indicate in any way that the judge was, in fact, prejudiced. The trial judge was correct in his ruling. After the trial begins the trial judge should not disqualify himself in the absence of actual prejudice. In this case there was no showing of actual prejudice. Of course the defendant is entitled to a fair and impartial judge and jury, and his right thereto was not violated in this case.
Appellant's third point is that the sentence of fifty years subjected him to cruel and unusual punishment and, therefore, violated his rights under Amend. 8, U.S.Const., and Art. I, § 21, Mo.Const. 1945. The new sentence imposed, following remand and after this court's direction relating to findings concerning the Second Offender Act had been complied with, was the same sentence imposed originally. Full credit for all time served under the original sentencing was allowed. The sentence was within the statutory range of punishment for robbery in the first degree. Sec. 560.135, RSMo 1969, V.A.M.S.
Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793, and Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630, relied on by appellant, are not in point. Those cases declared invalid the punishment provisions of certain statutes as, inter alia, in violation of Amend. 8, U. S.Const. Here, as in State v. Johnson, Mo., 457 S.W.2d 795, the appellant is not urging that the statute under which he was sentenced in itself provides for cruel and unusual punishment but contends that the fifty-year sentence imposed is excessive and, as excessive, constitutes cruel and unusual punishment. In Johnson this court said, loc.cit. 798: "The United States Supreme Court held later in Blockburger v. United States (1932), 284 U.S. 299, 52 S. Ct. 180, 76 L.Ed. 306, that the apparent severity of a sentence within the limits prescribed by statute does not warrant an appellate court to interfere with it. This Court has followed the ruling in Blockburger, supra, to be the law of the State of Missouri."
Other cases cited by appellant have been considered; however, since the Missouri law on the subject is clear, they are of no assistance to the appellant. The point is overruled.
The judgment is affirmed.
HOLMAN, P.J., concurs.
SEILER, J., concurs in result in separate concurring opinion filed.
SEILER, Judge (concurring in result).
I concur in the result reached in this case because I must agree that under the decisions of this court, the claim that the sentence of fifty years is expressive is futile, simply because the sentence imposed is within the statutory limits. Perhaps the sentence is not excessive in this particular case because this was defendant's second armed robbery, and, in addition to that, he had been convicted of auto theft, assault, transportation of a stolen automobile in interstate commerce, and statutory rape.
However, I wish to add that in view of the inordinate disparity in sentences which we see in cases on appeal, I doubt the soundness of the rule which gives the trial judge absolute discretion in these matters with no review whatever as to the length of sentence so long as it is within the statutory range. It has been said "that in no other area of our law does one man exercise such unrestricted power. No other country in the free world permits this condition to exist."[1]
*442 The subject is discussed in President's Commission on Law Enforcement and the Administration of Justice, Task Force Report: The Courts 23-24 (1967):
"The problem of disparity arises from the imposition of unequal sentences for the same offense, or offenses of comparable seriousness, without any reasonable basis. The existence of unjustified disparity has been amply demonstrated by many studies. It is a pervasive problem in almost all jurisdictions. In the Federal system, for example, the average length of prison sentences for narcotics violations in 1965 was 83 months in the 10th Circuit, but only 44 months in the 3rd Circuit. During 1962 the average sentence for forgery ranged from a high of 68 months in the Northern District of Mississippi to a low of 7 months in the Southern District of Mississippi the highest average sentence for auto theft was 47 months in the Southern District of Iowa, and the lowest was 14 months in the Northern District of New York.
"Disparity among judges sitting in the same court is illustrated by the findings of a recent study in the Detroit Recorder's Court. Over a 20-month period in which the sample cases were about equally distributed among the 10 judges, 1 judge imposed prison terms upon 75 to 90 percent of the defendants whom he sentenced while another judge imposed prison sentences in about 35 percent of the cases. One judge consistently imposed prison sentences twice as long as those of the most lenient judge. The study also showed that judges who imposed the most severe sentences for certain crimes also exhibited the most liberal sentencing policy for other offenses.
". . .
"Unwarranted sentencing disparity is contrary to the principle of even-handed administration of the criminal law. As Attorney General Robert H. Jackson stated: `It is obviously repugnant to one's sense of justice that the judgment meted out to an offender should be dependent in large part on a purely fortuitous circumstances; namely, the personality of the particular judge before whom the case happens to come for disposition.' Unjustified disparity adversely affects correctional administration. Prisoners compare the sentences, and a prisoner who is given cause to believe that he is the victim of a judge's prejudices often is a hostile inmate, resistant to correctional treatment as well as discipline."
In the Standards Relating to Appellate Review of Sentences, adopted by the American Bar Association, judicial review of sentences is held to be sound, desirable and practical. The Standards provide, in part, as follows:
"PART I. GENERAL PRINCIPLES
"1.1 Principle of review.
(a) In principle, judicial review should be available for all sentences imposed in cases where provision is made for review of the conviction. This is specifically meant to include
(i) review of a sentence imposed after a guilty plea equivalent, if the case is one which review of a conviction would be available had the case gone to trial;
(ii) review of a sentence imposed by a trial judge, a trial jury, or the two in combination; . . .
*443 ". . .
"1.2 Purposes of review.
The general objectives of sentence review are:
(i) to correct the sentence which is excessive in length, having regard to the nature of the offense, the character of the offender, and the protection of the public interest;
(ii) to facilitate the rehabilitation of the offender by affording him an opportunity to assert grievances he may have regarding his sentence;
(iii) to promote respect for law by correcting abuses of the sentencing power and by increasing the fairness of the sentencing process; and
(iv) to promote the development and application of criteria for sentencing which are both rational and just.
"PART II. AVAILABILITY OF REVIEW
"2.1 Reviewing court.
In general, each court which is empowered to review the conviction should also be empowered to review the disposition following conviction. . .'
The Missouri rule that we will not review sentences is judge made law and as such is subject to revision by the court. It seems to me that in a proper case, we should exercise the power which I believe we have to reduce a sentence, and we should not consider ourselves powerless to act merely because the sentence imposed is within the statutory range.[2]
NOTES
[1] The Missouri law does not provide that all sentences shall be assessed by the trial judge. However, when we consider the large number of guilty pleas, the large number of cases tried under the second offender act, and the procedure approved in State v. Brown, (Mo.Sup. banc) 443 S.W.2d 805, by which the jury is permitted to turn the sentencing responsibility over to the trial judge, we see in actual practice that most sentences are fixed by the trial judge and very few are set by the jury.
[2] In the case before us, the trial judge gave 50 years for first degree robbery. At the same handdown this opinion is being released, I note there are nine other first degree robbery cases. The sentences imposed range from six to 99 years. In the last bound volume of Southwestern Second Series, Missouri cases only, 477-479 S.W.2d, the sentences in first degree robbery cases vary from five years to life. Time does not permit further research into Missouri sentences, but there can be no doubt that sentencing policies at the trial level vary widely.
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486 S.W.2d 430 (1972)
George Wesley GOODLOE, Movant-Appellant,
v.
STATE of Missouri, Respondent.
No. 56948.
Supreme Court of Missouri, Division No. 1.
October 9, 1972.
Motion to Transfer Denied November 13, 1972.
*431 Edward P. Speiser, Richard E. Martin, St. Joseph, for movant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
Motion to Transfer to Court En Banc Denied November 13, 1972.
JOHN M. CAVE, Special Judge.
Appellant, on his plea of guilty to a reduced charge of murder in the second degree, received a sentence of 15 years in the Department of Corrections. Thereafter, he filed a motion to set aside the judgment and sentence therein under Supreme Court Rule 27.26, V.A.M.R. The trial court, after an evidentiary hearing, denied relief. We affirm.
The appeal having been lodged in this court prior to January 1, 1972, the effective date of new Article V of the Constitution, we have jurisdiction pursuant to then Art. V, § 3, of the Constitution of Missouri, V.A.M.S.
Movant was charged with murder in the first degree and was represented by three court-appointed competent counsel, who consulted with him often and conducted an exhaustive investigation of the case. On May 22, 1970, movant appeared in court with his attorneys and, after amendment of the information to reduce the charge to murder in the second degree, entered his plea of guilty thereto. Movant was advised by the court that he had the right to jury trial and the right to have all witnesses appear in person to testify; but that on a plea of guilty there would be no jury trial, there would be no appearance by the witnesses, and that the court would assess what it felt to be an appropriate sentence. Movant acknowledged that he understood and that he wanted to plead guilty. The court found that his plea was voluntary and that the statement of facts as given by movant showed him to be guilty of murder in the second degree.
On November 30, 1970, this motion was filed to set aside judgment, and sentence on two grounds: a) that movant was mentally incompetent to plead guilty, did not understand the consequences of his plea, incarceration from arrest to sentence (268 days) caused "mental duress" and strain on his mental capacities, and through fear of receiving more time if he didn't plead guilty he did enter a plea of guilty through mental coercion, all of which rendered his plea involuntary; and b) that the information was insufficient to charge murder in the second degree. At the evidentiary hearing on this motion, an additional ground was added by amendment: c) that no allocution was granted.
In support of his contention that his plea of guilty was involuntary, movant testified that at the time of his plea he was 31 years of age, with a tenth-grade education, no criminal record, no jail experience, no knowledge of parole procedure, one of his appointed counsel told him if he went to trial he would get life but that the prosecutor would recommend 15 years if he would plead guilty (to a reduced charge), and that another of his appointed counsel told him that since he had no prior criminal record he would make parole the first time he came up.
As a witness for the State, Mr. Maurice Pope, one of movant's court-appointed counsel, testified to the exhaustive and diligent preparation of movant's case, that no promise of an early parole was made, that movant was told of the possibility of a life sentence because the nature of the charge required either life or death in the event of conviction, and that in his judgment as an experienced trial lawyer the probability of conviction was great.
After the hearing on movant's motion, the court found in substance that movant's only contention was that his plea was invlountary *432 because he believed that he would spend less time in the penitentiary on a plea of guilty to murder in the second degree than if he stood trial for murder in the first degree, and that he had subsequently changed his mind; that he relied on his attorneys' advice, and that such advice was sound; that his attorneys did not promise a parole the first time he "came up" but merely expressed an opinion; that movant did understand the consequences of his plea of guilty in that there would be no jury trial and that he would be imprisoned; that the information was sufficient to charge murder in the second degree; and that movant was not entitled to allocution.
With commendable candor, counsel acknowledge that the information is sufficient to charge murder in the second degree and that on a plea of guilty allocution is not required.
The burden in this case is upon movant to establish his grounds for relief by a preponderance of the evidence. Rule 27.26(f), V.A.M.R. The trial court is the trier of fact and is in a better position to judge the credibility of witnesses and the weight of the evidence. Due deference will therefore be given the findings of fact of the trial court and its judgment will not be disturbed unless it is a clear and convincing abuse of discretion. Peterson v. State, Mo., 444 S.W.2d 673; Drew v. State, Mo., 436 S.W.2d 727. The evidence at the hearing on the motion and at the time of the plea of guilty is more than ample to support the judgment of the trial court herein with reference to the findings of fact.
Any statement relative to the possibility of a life sentence in the event of conviction cannot be considered as duress or coercion because such would be a true recital concerning the range of punishment. Vaughn v. State, Mo., 443 S.W. 2d 632. The findings of the trial court, supported by ample evidence, are that no promise was made by counsel for movant, and that any statements relative to the possibility of a life sentence or to a parole were an expression of opinion only. It was the failure of the record in State v. Rose, Mo., 440 S.W.2d 441, to provide a clear finding as to a promise, or lack of a promise, by defendant's counsel that caused the case to be reversed and remanded for the making of such a finding. There is no evidence in this case, as there was in State v. Hovis, 353 Mo. 602, 183 S.W.2d 147, of any statement or conduct on the part of the prosecuting attorney which might have misled movant herein to enter an involuntary plea of guilty, and certainly no evidence of duress or coercion by the State. Neither was there a failure of the trial court herein to make an affirmative finding, based upon the evidence, that movant's plea was in fact voluntary. The defect in State v. Smith, Mo., 421 S.W.2d 501, which required reversal was not present in this case. Finally, a plea of guilty to escape a greater penalty than might be assessed in a jury trial is not involuntary. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; Moore v. State, Mo., 461 S.W.2d 881; Fleck v. State, Mo., 443 S. W.2d 100. The conclusions of law of the trial court are therefore not only supported by, but are compelled by, proper authority.
The judgment is affirmed.
HOLMAN, P.J., and SEILER, J., concur.
BARDGETT, J., not sitting.
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486 S.W.2d 219 (1972)
Victor Arture COLBERT, Movant-Appellant,
v.
STATE of Missouri, Respondent.
No. 57001.
Supreme Court of Missouri, Division No. 2.
November 13, 1972.
*220 Patrick Horner, Auxvasse, for movant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
DONNELLY, Judge.
Appellant was charged in the Circuit Court of Callaway County, Missouri, with armed robbery, burglary and stealing.
On November 11, 1969, appellant entered pleas of guilty, and on February 16, 1970, was sentenced to twenty years on the robbery charge, five years on the burglary charge, and five years on the stealing charge, with said sentences to run concurrently.
On October 14, 1970, appellant filed in the Circuit Court of Callaway County, Missouri, his motion to vacate under V.A.M.R. 27.25 and 27.26, amended the motion on April 8, 1971, and an evidentiary hearing was held on April 8, 1971. The motion to vacate was denied and an appeal to this Court followed.
The appeal having been taken to this Court prior to January 1, 1972, the effective date of new Article V of the Constitution, we have jurisdiction pursuant to then Art. V, § 3 of the Missouri Constitution, V.A.M.S.
The essence of appellant's petition for relief is that, for various reasons stated in his motion, he should be permitted to withdraw the pleas of guilty entered and accepted on November 11, 1969. This case, because of the record made by the trial court on said date (Cf. Flood v. State, Mo.Sup., 476 S.W. 2d 529, 535, 536; United States v. Cody, 8th Cir., 438 F.2d 287), presents this Court with an opportunity to eliminate from post-conviction judicial process in Missouri much unnecessary and time-consuming activity.
In State of Missouri v. Turley, 8th Cir., 443 F.2d 1313, at 1318 (cert. den., 404 U.S. 965, 92 S.Ct. 336, 30 L.Ed.2d 284), the United States Court of Appeals, Eighth Circuit, said:
"This Court has recently considered the duties of a Federal District Court Judge under Fed.R.Crim.P. Rule 11 when accepting a guilty plea. See United States v. Rawlins, 440 F.2d 1043 (8th Cir. 1971); United States v. Woosley, 440 F.2d 1280 (8th Cir. 1971); United States v. Cody, 438 F.2d 287 (8th Cir. 1971). Rule 11 is, of course, not applicable in state proceedings. Nevertheless, once it has been established *221 that a state court has, at the time of accepting a guilty plea, elicited sufficient information from the parties so that the propriety of accepting the plea is established in a manner analogous to the dictates of Rule 11, and an adequate record is made thereof, the occasion for setting aside a guilty plea should seldom arise. United States v. Rawlins, supra. The ascertaining of such information and the recording thereof are not exercises in futility. United States v. Woosley, supra.
"It is worthy of note here that a minority of the Justices of the Supreme Court have indicated that in that minority's estimation, the Supreme Court has in effect fastened upon the states, as a matter of federal constitutional law, the requirements of Rule 11, Fed.R.Crim.P. See Mr. Justice Harlan, whom Mr. Justice Black joins, dissenting in Boykin v. Alabama, 395 U.S. 238, 245, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). It appears from the majority opinion in Boykin that an on the record examination conducted by the trial court accepting a guilty plea which includes, inter alia, an attempt by that Court to satisfy itself that the defendant understands the nature of the charges, his right to trial by jury, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences is sufficient to insulate the plea from subsequent attack in collateral proceedings."
We have reviewed the record made on November 11, 1969, and believe it is sufficient to show the pleas were "made voluntarily with understanding of the nature of * * * [each] charge" (V.A.M.R. 25.04); that the evidentiary hearing, held April 8, 1971, was not required by V.A.M.R. 27.26(e) because said record of November 11, 1969, conclusively shows that appellant is entitled to no relief; and that the record of November 11, 1969, is sufficient to insulate the convictions from subsequent attack in federal habeas corpus proceedings. (Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.)
The judgment is affirmed.
All of the Judges concur.
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486 S.W.2d 111 (1972)
TEXAS ELECTRIC SERVICE COMPANY, Appellant,
v.
Oliver P. BOYCE et ux., Appellees.
No. 6270.
Court of Civil Appeals of Texas, El Paso.
September 20, 1972.
Turpin, Smith, Dyer, Harman & Osborn, Max N. Osborn, Midland, Cantey, Hanger, Gooch, Cravens & Munn, Jack C. Wessler, Fort Worth, for appellant.
Jones, Milstead, Burgess & Moore, Guilford L. Jones, Big Spring, for appellees.
OPINION
RAMSEY, Chief Justice.
This is a condemnation case. Texas Electric Service Company, Condemnor-Plaintiff, appealed the decision of the Commissioners in condemnation proceedings against Oliver P. Boyce, et ux., Condemnees-Defendants. Plaintiff perfects this appeal from a jury verdict for Defendants *112 in the amount of $8,281.00. We reverse and remand.
Plaintiff sought an easement for an electrical transmission line across Defendants' farm. The easement required a right-of-way consisting of 18.83 acres out of a 320 acre farm.
Plaintiff presents five points of error. The first point complains of the failure of the Court to excuse a prospective juror, A. H. Tate. During the voir dire examination of the jury panel, Plaintiff's counsel asked whether or not anyone on the panel had a fixed opinion or a belief that there is damage to the remainder of the land because of the construction of the line. Mr. Tate answered that he did. Defendants' attorney then asked Mr. Tate whether or not he could put the opinion aside, go into the jury box with an open mind, listen to the testimony and render his verdict on the basis of the testimony heard in the trial. Mr. Tate stated that he could do so. On further interrogation by Plaintiff's attorney, Mr. Tate still answered that he had an opinion as to damage of the remainder. When asked whether or not evidence would be required to remove that opinion, Mr. Tate responded, "It sure will." Defendants' attorney then explained to the juror that the burden of proof was on the Defendants to prove the damage, and upon their failure to so prove it, he should return a verdict for the Plaintiff. This, the juror stated he would do. Plaintiff moved the Court to discharge Mr. Tate for cause, which motion was denied and Mr. Tate was sworn as a juror. In the trial of the case, Defendants' value witnesses all testified to damage to the remainder and Plaintiff's value witnesses all testified that there would be no diminution in value to the remainder. Thus, a direct conflict in opinion testimony was presented in the trial relating to resulting damage to the remainder.
Article 2134, Vernon's Ann.Tex. Civ.St., provides, in part, a disqualification for a juror, as follows:
"4. Any person who has a bias or prejudice in favor of or against either of the parties."
Judicial interpretation of this provision has construed its meaning to include not only the parties, but also the subject matter of the litigation. Rhoades v. El Paso & S. W. Ry. Co. et al., 248 S.W. 1064 (Tex. Comm'n App., opinion adopted); Compton et al. v. Henrie, 364 S.W.2d 179 (Tex.Sup. 1963); Flowers v. Flowers, 397 S.W.2d 121 (n. w. h.). Compton et al. v. Henrie, supra, defines and distinguishes bias and prejudice as follows:
"Bias, in its usual meaning, is an inclination toward one side of an issue rather than to the other, but to disqualify, it must appear that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality. Prejudice is more easily defined for it means prejudgment, and consequently embraces bias; the converse is not true. The establishment of such a state of mind would disqualify Fugate from serving on this jury as a matter of law. It is only where there are grounds for disqualification other than those provided for in the statute that the discretionary powers of the trial judge may be exercised, for a disqualification under Article 2134 does not involve a matter of discretion, but a matter of law."
An analogous situation appears in State v. Burke et al., 434 S.W.2d 240 (n. w. h.). There, the Court held:
"When the 5 jurors stated they believed the remainder automatically damaged by the taking, they prejudged the case, and were disqualified as a matter of law."
We can only conclude that Mr. Tate, by his candid reply as to his fixed opinion, thus disqualified himself as a matter of law. The sequence of events here, however, go beyond those in State v. Burke et al., supra. Defendants' attorney very thoroughly and capably, interrogated Mr. Tate as to his ability to put *113 his opinion aside, based his verdict solely on the proceedings in Court, and to place the burden of proof on the Defendants. These questions were answered by Mr. Tate to the effect that he could and would do so. This line of interrogation, though generally used, has been held of no avail in qualifying the juror, once the statutory disqualification is apparent. Flowers v. Flowers, supra; Lumbermen's Insurance Corporation v. Goodman, 304 S.W.2d 139 (writ ref'd n. r. e.); Kansas City Life Ins. Co. v. Elmore, 226 S.W. 709 (n. w. h.); Texas Cent. R. Co. v. Blanton, 36 Tex. Civ.App. 307, 81 S.W. 537 (n. w. h.).
We can only conclude that the Court erred in refusing Plaintiff's motion to excuse Mr. Tate from the jury panel.
Since the case is to be remanded, we will discuss other points of error assigned even though they are not necessary in the disposition of this appeal. Plaintiff assigns as error the special issues submitted as not containing the wording "considered as severed land" as the issue is worded in State v. Carpenter et al., 126 Tex. 604, 89 S.W.2d 194 (Tex.Comm'n App. 1936). The Carpenter case has long been regarded a proper guide for the framing of issues in partial taking cases. The ultimate results to be achieved in the submission of the issues are the avoidance of duplicitous damages and clarity of the exact issues involved to prevent confusion of the jury. In reviewing this record, the attorneys have been so articulate in framing their questions of the witnesses that it does not appear that there was any confusion in the jury's verdict. Recognizing State v. Carpenter et al., supra, as an acceptable and the most followed authority, yet we do not deem it exclusive though the suggested issue contained in it would be appropriate for submission in this case.
Plaintiff also assigns as error the refusal of the trial Judge to disqualify. The basis for filing a motion requesting the Judge to disqualify was due to the fact that the Judge is a landowner in Martin County and also a condemnee in another proceeding affected by the same transmission line and had attended Commissioners' hearings in other condemnation proceedings involving the same line. Plaintiff, in its point of error, does not complain of any specific act or ruling of the trial Judge which would be indicative of a bias or prejudice against the Plaintiff or would indicate an unfairness directed toward it.
The judiciary should and must be particularly sensitive to a motion on disqualification. A reviewing Court must scrutinize a record closely when this matter is presented. This, we have done here, and fail to find any act or ruling of the trial Judge indicative of a disqualifying interest in the proceedings.
Article V, Sec. 11, Constitution of the State of Texas, Vernon's Ann.St. and Article 15, V.A.T.C.S., provide that no judge shall sit in any case wherein he may be interested. Our Courts have construed "interest" as affecting a judge's qualification to be a pecuniary or personal right or privilege to be derived or acquired dependent upon the result of the case. McInnes v. Wallace, 44 S.W. 537 (n. w. h.). Aldridge v. State, 170 Tex.Cr.R. 502, 342 S. W.2d 104, in discussing interest that disqualifies a judge, states that it does not include every bias, prejudice or partiality which he may entertain with reference to the case, and a judge who is interested in the question to be decided, but who has no direct and immediate interest in the judgment to be pronounced, is not disqualified. Ferguson v. Chapman, 94 S.W.2d 593 (writ dism'd w. o. j.) holds that the provisions of the Constitution and statute are inclusive and exclusive, that is, they enumerate only instances in which interest, not pecuniary, will disqualify the judge. A review of the cases decided by the Courts of this State reveal some contradictory holdings in applying the term interest for purposes of disqualification. See 10 A.L.R.2d 1313; Lindsley v. Lindsley et al., 152 S.W.2d 415 (reversed on other grounds, 139 Tex. 512, *114 163 S.W.2d 633). A majority of the decisions require a pecuniary interest in the litigation, that is direct, real and certain, and not merely incidental, remote, contingent or possible. See 33 Tex.Jur.2d, Sec. 34, pp. 400-401; Wagner et al. v. State et al., 217 S.W.2d 463 (writ ref'd n. r. e.); Stockwell v. Glaspey et al., 160 S.W. 1151 (writ ref'd); Moody et al. v. City of University Park et al., 278 S.W.2d 912 (writ ref'd n. r. e.). The only issue to be decided in the trial Court was the damages to the land by reason of the condemnation. We do not perceive that the County Judge being in litigation with the Plaintiff in another similar proceeding involving his own land is in a position of obtaining any pecuniary benefit from this proceeding, and therefore not disqualified under the record presented.
We hold that Plaintiff's Point of Error Number One should be sustained, and therefore reverse the judgment and remand the cause.
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144 B.R. 209 (1992)
In re Peter A. JOHNSON, Debtor.
Cathy R. COE, Plaintiff,
v.
Peter A. JOHNSON, Defendant.
Bankruptcy No. 89-1125, Adv. No. 91-149.
United States Bankruptcy Court, D. New Hampshire.
July 24, 1992.
*210 Edwinna C. Vanderzanden, McNeill, Taylor & Dolan, Dover, N.H., for plaintiff.
Kenneth E. Churbuck, Nashua, N.H., for defendant, debtor.
Dennis Bezanson, South Portland, Me., Chapter 7 Trustee.
MEMORANDUM OPINION
JAMES E. YACOS, Bankruptcy Judge.
This adversary proceeding came on for hearing before the Court on March 6, 1992 regarding the parties' cross-motions for summary judgment on plaintiff's complaint for a determination of the dischargeability of certain debts and obligations owing by the defendant-debtor and relating to a certain divorce proceeding that culminated in a decree of divorce entered by the Hillsborough County Superior Court, State of New Hampshire, on February 10, 1988.[1] The precise issue before the Court is whether a debt obligation imposed by the Divorce Decree was or was not in the nature of a "maintenance" or "support" obligation rendered non-dischargeable by virtue of section 523(a)(5) of the Bankruptcy Code. For the reasons set forth below, I find that the obligation is in the nature of "maintenance" or "support" and that it is therefore non-dischargeable.
FACTS
The defendant-debtor, Peter A. Johnson, and the plaintiff, Cathy R. Coe, were married in December of 1976. There are no children born of this marriage. During the course of the marriage, the parties jointly acquired title to four parcels of real estate: (1) A marital home in Hollis, New Hampshire; (2) & (3) A ski lodge and abutting acreage of approximately 50 acres in Dixville Notch and Colebrook, New Hampshire (hereinafter referred to as the "Notch House" and the "McLean property", respectively); and (4) A summer home in Edgartown, Massachusetts.
The parties separated for the first time in July of 1985, attempted a reconciliation in April of 1986, and separated again in April of 1987. During the original separation, in August of 1985, Peter Johnson filed a decree for divorce in the Hillsborough County Superior Court, State of New Hampshire. Johnson v. Coe, Docket No. M-85-1157. An answer and cross-libel was filed on behalf of Cathy Coe.
On September 26, 1985, after a hearing, the marital master recommended temporary orders setting forth the debt obligations that were to be carried by each party pending the entry of a final decree of divorce. The temporary orders provided, inter alia, that Peter Johnson would pay the mortgages, liens, encumbrances, and all other necessary expenses on the parties' real estate holdings. Johnson v. Coe, Docket No. M-85-1157, Temporary Orders at ¶ 3 (Sept. 26, 1985) (Exhibit A to Plaintiff's Motion for Summary Judgment). The master also recommended that Peter Johnson would make the car payments and maintain Cathy Coe's health insurance, and that Cathy Coe would be solely responsible for her gasoline, food, clothing and horse expenses. Id. at ¶ s 4, 6, 8. The master's recommendations were approved by the state court and a decree was entered in accordance therewith. Id., page 2 (Oct. 8, 1985).
*211 During the parties' reconciliation in 1986, Peter Johnson transferred his interest in the Edgartown property to Cathy Coe[2], and Cathy Coe agreed to increase the mortgages on the marital residence in Hollis, New Hampshire. See Johnson v. Coe, Docket No. M-85-1157, Divorce Decree, pp. 2-3 (May 31, 1988) (Marital Master Dal-Pra, Judge Dalianis) (Exhibit A to Defendant's Motion for Summary Judgment; Exhibit B to Plaintiff's Motion for Summary Judgment)). The funds derived from the refinancing of the marital home in Hollis were applied to Peter Johnson's acquisition of other real estate in the Coos County area of New Hampshire, such real estate being owned solely by Peter Johnson, owned jointly by Peter Johnson and his son, or owned by corporations wholly controlled by Peter Johnson. Id., pp. 5-8. In addition, Peter Johnson applied $30,000 from the refinancing towards his own living expenses that he had incurred prior to the reconciliation. Id., p. 7.
The parties were divorced by Order of the Hillsborough County Superior Court on February 10, 1988. The Divorce Decree was summarily affirmed by the New Hampshire Supreme Court on May 11, 1988, and became final on May 31, 1988. The Divorce Decree expressly provided that "Each party is employed full time and capable of supporting himself/herself. Therefore, no alimony obligation shall be imposed upon either party." Johnson v. Coe, Docket No. M-85-1157, Divorce Decree, p. 9, ¶ 2 (May 31, 1988). The marital master noted that "The major problem for disposition at the final hearing was division of property." Id., p. 1. However, within this context the marital master proceeded to consider the financial circumstances of each party to the divorce, as well as the contributions by each party to the procurement of the various property holdings. A support affidavit was filed by Peter Johnson at the time of the divorce hearing, in accordance with New Hampshire practice. The affidavit indicated that Peter Johnson earned a gross income of $11,400 per month, and that Cathy Coe earned a net income of $2,500 per month. Johnson v. Coe, Docket No. M-85-1157, Support Affidavit, p. 4 (December 15, 1987) (Exhibit C to Plaintiff's Motion for Summary Judgment).
The Divorce Decree made the following rulings that are pertinent to this bankruptcy case:
The jointly owned family residence located at 11 Toddy Brook Road, Hollis, is awarded to Cathy, free and clear of any right, title, or interest on the part of Peter. Within 30 days of the effective date of this order, Peter shall execute whatever documents are necessary to transfer his interest in said real estate to Cathy.[3]
I also find that it would be fair and equitable to reduce the encumbrance on the Hollis Property to a level which fairly reflects the state of the mortgage at the time of the refinance (approximately $70,000).[4]
With respect to the mortgage and note encumbering the Hollis, New Hampshire property, Peter shall assume $160,000.00 of the encumbrance. To do this, he shall take whatever steps are necessary to remove that amount from the encumbrance with respect to the Hollis, New Hampshire property. He shall refinance the Notch House or the McLane [sic] land, or sell either one or the other, in order to accomplish this purpose. This shall be accomplished on or before August 1, 1988. Until that time, Peter shall be responsible to pay to Cathy the sum of $1,500.00 monthly, to be applied against *212 the monthly mortgage on the Hollis property. It is the intent of this provision to return the amount of the encumbrance relative to the Hollis property to that level of March, 1986, just prior to the refinancing.[5]
As an adjunct of the divorce proceeding, Cathy Coe sought an attachment of Peter Johnson's interest in the "Notch House" and the "McLean property" in the amount of $160,000, and filed motions for enforcement and contempt with the Hillsborough County Superior Court, due to Peter Johnson's failure to make timely payments in accordance with the temporary orders and, subsequently, with the Divorce Decree. These actions were taken by Cathy Coe in April of 1988. The state court (Judge Goode) held a two-day hearing on the pending motions. Then, ruling from the bench, the state court deferred ruling on the petition to attach, ordered Peter Johnson to immediately comply with the mandates of the Divorce Decree, and required Peter Johnson to pay $11,463.69 for the arrearages. See Johnson v. Coe, Docket No. M-85-1157, Transcript of Proceedings before Judge Goode, p. 36 (July 26, 1988) (Exhibit B to Plaintiff's Complaint). The arrearages of approximately $11,400 were paid by Peter Johnson to Cathy Coe within 30 days of the state court's ruling.
On November 13, 1989, Peter Johnson filed for relief under Chapter 13 of the Bankruptcy Code. The bankruptcy case was converted to a proceeding under Chapter 11 of the Bankruptcy Code on January 24, 1990. The case was converted again, to a proceeding under Chapter 7 of the Bankruptcy Code on November 14, 1990.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The issue before this Court is whether the $1,500 monthly payment that Peter Johnson was ordered to pay Cathy Coe is "maintenance" or "support", such that it is not a dischargeable debt under the Bankruptcy Code. The Bankruptcy Code provides in pertinent part that:
A discharge under . . . this title does not discharge an individual debtor from any debt. . . . to a . . . former spouse . . . for alimony to, maintenance for, or support of such spouse . . . in connection with a . . . divorce decree.
11 U.S.C. § 523(a)(5). This provision means that any support or maintenance payments are not dischargeable debts, and Peter Johnson would still have to pay them to Cathy Coe. However, any property settlement made in the context of a divorce is dischargeable under the Bankruptcy Code, and therein lies the crux of the parties' present contentions.
The debtor argues that his obligations to Cathy Coe were in the nature of property settlements, and are therefore dischargeable in his bankruptcy case. In support of this position, Peter Johnson focuses on the pronouncement in the Divorce Decree that no alimony would be awarded. Peter Johnson claims that the monthly payments awarded by the divorce court were part of a property division or settlement between the parties.
Cathy Coe argues that, notwithstanding the divorce court's explicit language to the effect that there would be no alimony awarded, the obligations imposed by the divorce court upon Peter Johnson were in the nature of maintenance or support, and accordingly such obligations are not dischargeable under the Bankruptcy Code. Cathy Coe contends that it is clear that the state court intended for Peter Johnson to pay spousal support or maintenance until he completed the required refinancing transactions in compliance with the property awards given to Cathy Coe.
Cathy Coe asks this Court to resolve the support/property settlement issue by reading the two state court orders the temporary orders and the Divorce Decree as an integrated whole. She argues that although the state court awarded no alimony, when the temporary and final orders are read together they show "an integrated judicial intent to provide both inspiration and impetus for final resolution of property *213 settlements and continuing support for the obligee spouse until such time as the properties awarded to her were sufficiently unencumbered for her to support them with her own earnings." Plaintiff's Motion for Summary Judgment, p. 5 (Jan. 3, 1992).
Cathy Coe also reports that in October of 1988 Peter Johnson borrowed $275,000 from Walter R. Margerison. (See Motion for Relief filed by Walter Margerison in this bankruptcy case on July 20, 1990.) To secure his obligation on the promissory note, Peter Johnson granted a blanket mortgage to Mr. Margerison on eleven properties, including the Edgartown and Hollis properties that had been awarded to Cathy Coe by the Divorce Decree in May of 1988. When Peter Johnson filed bankruptcy in November of 1989, he listed the debt to Walter Margerison as $317,052.39. Cathy Coe argues that if this Court finds the debt to her to be dischargeable, then fraud will have been successfully wrought, because Peter Johnson further encumbered the property awarded to Cathy Coe, rather than reducing the debt as required by the state court, and obtained cash for his own purposes by doing same, without paying any of it to Cathy Coe.
With regard to the request to consider the two orders as an integrated whole, I ruled during the hearing on this matter, incorporated herein by reference, and reiterated at this point, that once the final Divorce Decree was issued, the temporary orders were no longer controlling. Nevertheless, the continuity of the state court's intent with respect to the payment of the Hollis mortgage is relevant. In the temporary orders, the state court required Peter Johnson to pay all of the monthly mortgage on the Hollis property. In the final Divorce Decree, the state court required the Hollis property to be transferred in its entirety to Cathy Coe less $160,000 of the mortgage encumbering same within one month of the decree, and that Peter Johnson pay $1,500 to Cathy Coe until he complied with the transfer of property and reduction of the encumbrances thereon.
The significance of the $1,500 figure that the state court denominated for Peter Johnson to pay Cathy Coe is evidenced by the following facts. The monthly mortgage on the Hollis property at the time of the divorce was approximately $2,300. See Transcript of Hearing on Petition to Attach, p. 20 (June 28, 1988). Cathy Coe's monthly income at that time was $2,500. See Support Affidavit of Peter Johnson (Dec. 15, 1987). If the Hollis property had remained at a mortgage level of $70,000, the monthly mortgage payment would have been approximately $680. See Mortgage Tabulation (Exhibit A to Plaintiff's Supplemental Memorandum of Law). The difference between the monthly mortgage payment of $2,300, on a mortgage balance of approximately $220,000, and the monthly mortgage payment of $680, on a mortgage balance of approximately $70,000, is $1,620, which is approximately the amount of the contribution mandated from Peter Johnson. This is no coincidence. The state court apparently did its math and determined that, because Cathy Coe would have only had to pay approximately $680 per month to keep a roof over her head had the mortgage balance remained at $70,000, and because the mortgage balance was increased to $220,000 solely for the benefit of Peter Johnson[6], that until Peter Johnson reduced the balance of the encumbrance on the Hollis property to a level sustainable by monthly payments of $680, i.e. $70,000, he would have to make monthly payments on the mortgage to make up the difference *214 between $680 and the total monthly mortgage payment, i.e. $1,500.
Additionally, Judge Goode's finding in July of 1988, two months after the entry of the Divorce Decree, that Peter Johnson was approximately $11,400 in arrears on his obligations to Cathy Coe evidences a continuing intent by the state court that Peter Johnson pay some form of monetary support or maintenance to Cathy Coe. The July 1988 order constitutes a recognition by the state court that the intent of the provision in the Divorce Decree was to provide continuing maintenance or support to Cathy Coe until the earlier of two triggering events: either the payment in full of $160,000 to Cathy Coe by Peter Johnson, or Peter Johnson's reduction of the debt obligation on the Hollis property to a level of $70,000 by selling or refinancing the properties that were awarded to him.
In determining whether an obligation is dischargeable as a property settlement or whether it is non-dischargeable as spousal support or maintenance, this Court is not bound by a state court's characterization of a particular award in a Divorce Decree. In re Ploski, 44 B.R. 911, 913 (Bankr.D.N.H.1984), citing 3 Collier on Bankruptcy § 523.15(1), p. 523-117 (15th Ed.1991). Unfortunately, as is often the case, the possibility of a future bankruptcy was not considered at the time of the divorce and the state court therefore did not indicate whether the $1,500/$160,000 payment was or was not in the nature of maintenance or support.
In deciding the nature of obligations set forth in a divorce decree, I am guided by the analysis provided by the Sixth Circuit Court of Appeals in In re Calhoun, 715 F.2d 1103 (6th Cir.1983). The Court stated:
[T]he initial inquiry must be to ascertain whether the state court or the parties to the divorce intended to create an obligation to provide support through the assumption of the joint debts. If they did not, the inquiry ends there. . . . In making this determination the bankruptcy court may consider any relevant evidence including those factors utilized by state courts to make a factual determination of intent to create support.
In re Calhoun, 715 F.2d 1103, 1109 (6th Cir.1983) (emphasis in original). The Court summarized some of the factors considered by state courts:
[T]he nature of the obligations assumed (provision of daily necessities indicates support); the structure and language of the parties' agreement or the court's decree; whether other lump sum or periodic payments were also provided; length of the marriage; the existence of children from the marriage; relative earning powers of the parties; age, health and work skills of the parties; the adequacy of support absent the debt assumption; and evidence of negotiation or other understandings as to the intended purpose of the assumption.
Id. at 1108, n. 7.[7] The Court then continued with the second part of its analysis:
This finding of intent does not, however, control the ultimate issue of whether the assumption of joint debts was actually in the nature of support for purposes of federal bankruptcy. If the bankruptcy court finds, as a threshold matter, that assumption of the debts was intended as support it must next inquire whether such assumption has the effect of providing the support necessary to ensure that the daily needs of the former spouse and any children of the marriage are satisfied. The distribution or existence of other property, for example, may make the continuing assumption of joint debts unnecessary for support, as might drastic changes in the former spouse's capabilities for self-support. Substance must prevail over form.
Id. at 1109.
Applying the Calhoun analysis to this case, particularly the factors that the *215 state court might have considered, I note the following:
1. Peter Johnson's monthly income was approximately four times greater than Cathy Coe's monthly income at the time of the divorce decree.
2. The $1,500 monthly payment was tied directly to a debt, the Hollis property mortgage, but it was not related to any property as such, and it was intended to be finite in amount and to shift the burden of the debt only until the property settlement was completed.
3. There are no children from the marriage, the marriage lasted more than ten years, and all of the properties were acquired during the marriage.
4. No portion of the refinanced debt incurred during the parties' brief reconciliation in 1986, which is the mortgages encumbering the Hollis property, was incurred for the benefit of Cathy Coe. Rather, it was used exclusively to benefit Peter Johnson: approximately $200,000 was used to purchase or disencumber properties in northern New Hampshire, in which Cathy Coe has no property interest subsequent to the divorce, and $30,000 of the refinanced debt was used directly for the living expenses of Peter Johnson.
5. The divorce decree reflects an intent by the state court that it be financially possible for Cathy Coe to remain in the marital home until the property settlements were final and the debt obligation on the Hollis property was reduced to a level that she could afford.
6. The obligation was subject to contempt proceedings: The two-day hearing before Superior Court Judge Goode in July of 1988 concerned post-divorce motions to enforce the provisions of the divorce decree. Although the court did not enter an order of contempt, it did direct Peter Johnson to cure arrearages on his obligations under the divorce decree.
A review of the Divorce Decree provides further indicia of the state divorce court's intent with regard to the $1,500 monthly payment. The Divorce Decree is ten pages long, and is almost entirely devoted to an analysis of the relative contributions of the parties to the acquisition and maintenance of the marital estate. The Divorce Decree also focuses extensively on the degree of refinancing that occurred on the Hollis property (the marital home), and who benefitted from such refinancing. The divorce court attempted to make an equitable division of the marital estate, and to do so it needed to determine the dates of the financial obligations that attached to each property, and the use of the monies derived from any refinancings. The divorce court finally concluded that it would be equitable to give Cathy Coe the Hollis property, among other assets, and that the Hollis property should be returned to her in the financial condition that it was in prior to the parties' reconciliation in 1986, when Peter Johnson refinanced the property, primarily if not solely for his benefit.
The financial debt and income level for Cathy Coe before, during, and after her reconciliation with Peter Johnson in 1986 illustrate that she could not pay the mortgage on the Hollis property at the time of the parties' divorce in 1988 without monetary contribution from Peter Johnson. The mortgage payment amounts and obligations on the Hollis property are as follows:
After the parties' separation in 1985, and before their reconciliation in 1986: Peter was paying the mortgage and encumbrances, which average $2,300 per month. See Temporary Orders, ¶ 3 (Sept 26, 1985); Transcript of Hearing on Petition to Attach, p. 20 (June 28, 1988).
At time of parties' reconciliation in 1986: The total mortgage debt encumbering the Hollis property was $70,000 (See Divorce Decree, p. 8 (May 31, 1988)); the refinancing of Hollis property in April 1986 in the amount of $230,000, increasing the total mortgage debt to $300,000 (See Divorce Decree, p. 7).
*216 At time of parties' divorce in 1988: Total mortgage encumbering Hollis property is $220,000, and monthly mortgage payment is $2,300 (Plaintiff's Supplemental Memorandum of Law, p. 2, ¶ 4 (March 6, 1992)); Peter Johnson required to assume $160,000 of the encumbrance on the Hollis property by August 1, 1988, in order to return the mortgage level to where it was prior to the 1986 refinancing, and to pay Cathy Coe $1,500 per month until he has assumed $160,000 worth of the encumbrance on the property. (See Divorce Decree, p. 10, ¶ 6). The $1,500 was intended by the divorce court "to be applied against the monthly mortgage on the Hollis property." Id.
The parties' incomes at the time of their divorce in 1988 were $11,400 per month for Peter Johnson, and $2,500 per month for Cathy Coe, according to data set forth in Peter Johnson's "Support Affidavit" dated December 15, 1987. Cathy Coe claims that, had Peter Johnson complied with the state divorce court's order, and reduced the mortgage encumbrance to $70,000, the monthly mortgage payment would have been approximately $680.00, assuming an annual interest rate of 10.1 percent. (See Plaintiff's Supplemental Memorandum of Law, p. 2, ¶ 6 (March 6, 1992)).
The above monetary data clearly indicates that, but for Peter Johnson's payment of $1,500 per month on the Hollis mortgage until it is paid down to the $70,000 level, Cathy Coe would need to expend her entire monthly income just to keep a roof over her head. Obviously, if Cathy Coe did pay the entire monthly mortgage payment, she would have no money with which to pay for other necessities of life, such as food, electricity, water, and heat. Cathy Coe had no realistic ability to pay the mortgage on the Hollis property without Peter Johnson's contribution of $1,500 per month, until and unless the mortgage debt was reduced. Even assuming, arguendo, that Cathy Coe derived additional monthly income of $500 from rent on the Edgartown property, she would at best have surplus cash of $500 after the mortgage payment with which to purchase food and other essentials. The $500 would not have been sufficient. Because the $1,500 monthly payment by Peter Johnson, when added to Cathy Coe's payment, would make the mortgage on the Hollis property affordable to Cathy Coe, thereby allowing her to retain housing a necessity of life I find such payment to be in the nature of "maintenance" or "support" for Cathy Coe.
I find that this maintenance or support obligation imposed by the final Divorce Decree with regard to the Hollis property was for Peter to pay $1,500 monthly towards Cathy's living expense requirements until the contemplated paydown of the mortgage on the Hollis property, the marital home, to the $70,000 level. This was the amount of the mortgage immediately prior to the brief reconciliation of the parties in 1986. I further find that during the parties' reconciliation in 1986, Peter Johnson convinced Cathy Coe to allow the Hollis property to be mortgaged up to approximately $225,000 so that he could use the money to acquire unencumbered property in northern New Hampshire.
CONCLUSION
Based on the foregoing law and evidence, including essentially the entire record of the divorce proceedings in the state court, and considering the circumstances of the parties, this Court concludes that the payments that the divorce court ordered Peter Johnson to Cathy Coe were for her maintenance or support pending his reduction of the mortgage encumbrance on her residence.
Accordingly, I conclude that the state court Divorce Decree with regard to these parties was, in effect, awarding maintenance or support payments by Peter Johnson to Cathy Coe until the mortgage on the Hollis property was paid down to $70,000. Therefore, despite the state court finding that no "alimony" as such would be awarded in this divorce, I find that the award of $1500 a month is in fact a spousal "maintenance" or "support" award and, consequently, non-dischargeable in Peter Johnson's bankruptcy case pursuant to section 523(a)(5) of the Bankruptcy Code.
*217 In addition, because Peter Johnson essentially blocked the paydown of the mortgage on the Hollis property by mortgaging his other properties, his obligation to pay $1500 per month to Cathy Coe is deemed to continue until and unless he pays down the Hollis mortgage by $148,536.31, which is the original obligation of $160,000 less the $11,463.69 that he has already paid.
This determination means, as a matter of New Hampshire law (RSA 458:32), that the parties may go back to the state court and seek any modification of the spousal maintenance or support award that may be appropriate, taking into consideration the debtor's income and liability situation following his bankruptcy discharge. The restraint imposed by the automatic stay is hereby lifted to the extent necessary for the parties to return to the state court for modification proceedings, should either party so choose. In re Nowac, 78 B.R. 638, 639-640 (Bankr.N.H.1987).
NOTES
[1] By Order dated October 31, 1991, this Court dismissed Counts 1 and 2 of the Complaint. Accordingly, only the referenced issue, regarding discharge pursuant to section 523(a)(5) of the Bankruptcy Code, remains for determination by the Court.
[2] In 1988, the Edgartown property had a fair market value of approximately $150,000, and an outstanding mortgage encumbrance of approximately $40,000. Johnson v. Coe, Docket No. M-85-1157, Divorce Decree, p. 6 (May 31, 1988). The mortgage payment on the property was $495.49 per month, Johnson v. Coe, Docket No. M-85-1157, Transcript of Hearing on Petition to Attach, p. 20 (July 26, 1988), and the property usually was rented for approximately $500 per month during the non-summer seasons. Id., p. 24.
[3] Johnson v. Coe, Docket No. M-85-1157, Divorce Decree, p. 9, ¶ 4 (May 31, 1988) (Marital Master DalPra, Judge Dalianis).
[4] Id., p. 8.
[5] Id., p. 10, ¶ 6.
[6] As noted previously in this Memorandum Opinion, supra p. 211, the funds derived from the refinancing of the Hollis property during the parties' reconciliation in 1986 were applied to Peter Johnson's acquisition and/or disencumbering of real estate in northern New Hampshire, in which Cathy Coe had no property interest subsequent to the divorce. See also Divorce Decree, pp. 7-8 ("In April 1986, a mortgage on the Hollis property was taken out in the amount of $230,000. . . . The end result of this refinance is that the Notch House, in which Peter resides, is unencumbered.") and Support Affidavit of Peter Johnson, p. 5 (Dec. 15, 1987) (Lists manner of ownership of northern New Hampshire properties, indicating no ownership interest by Cathy Coe. Also lists encumbrances on the parties' residences as follows: Encumbrances on Notch House: "None"; Encumbrances on Hollis property: "$225,000".)
[7] This Court has previously considered those factors that state courts may use to determine whether or not maintenance or support is necessary. See In re Ploski, 44 B.R. 911, 913 (Bankr. D.N.H.1984), citing Benz v. Nelson, 16 B.R. 658, 660-661 (Bankr.M.D.Tenn.1981). The Benz factors are similar, if not identical, to those set forth in the discussion of state court considerations in the Calhoun case.
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767 F.Supp. 49 (1991)
Eva DAPELO, Plaintiff,
v.
BANCO NACIONAL DE MEXICO a/k/a Banamex, Patrick Sabino, John Beauchemin and Mary Buono, Defendants.
No. 91 Civ. 0093 (JSM).
United States District Court, S.D. New York.
June 20, 1991.
*50 MEMORANDUM OPINION AND ORDER
MARTIN, District Judge:
Plaintiff brings this action for age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., sex discrimination under Title VII of the Civil Rights Act of 1964, both age and sex discrimination under the New York's Human Rights Law, Exec.Law § 296 et seq., for retaliation under these statutes, and for common law slander, libel and harassment.
Basically, plaintiff, a former officer in defendant Banco Nacional De Mexico's ("Banamex's") accounting department, alleges that she was passed over for a promotion to the position of manager due to her age and sex. Plaintiff also alleges that Banamex retaliated against her after she filed an EEOC charge. As part of the retaliation, plaintiff contends that after the individual defendants became aware of plaintiff's EEOC claim, they drafted employee evaluations which contained false statements which defamed plaintiff's reputation.
Plaintiff demands reinstatement, lost earnings and compensatory and punitive damages. Included within the damages sought are those allegedly resulting from the emotional and physical injuries plaintiff suffered due to defendants' conduct.
The matter is now before the Court on defendants motion, pursuant to Fed.R. Civ.P. 12(b)(1) and (6), to dismiss all of plaintiff's state law claims.[1] For the reasons discussed below, defendants' Rule 12(b)(1) motion is granted.
DISCUSSION
Having considered the relevant factors and in light of the different remedies sought by plaintiff in her state law and federal claims and the effect such remedies would have on the trial process, the Court declines to exercise pendent jurisdiction of plaintiff's state law claims.
Since plaintiff's state and federal claims arise out of a common nucleus of operative facts, the Court has the power to hear both plaintiff's federal and state claims. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Nevertheless, it is an open question whether the Court should exercise its discretion and retain jurisdiction over plaintiff's pendent state causes of action. The district courts in this Circuit are split on this issue. Cf. e.g., Patel v. Lutheran Medical Center, Inc., 753 F.Supp. 1070, 1075 (E.D.N.Y.1990); Martel v. Dean Witter Reynolds, Inc., 738 F.Supp. 53, 57 (E.D.N.Y.1990); Kaczor v. Buffalo, 657 F.Supp. 441 (W.D.N.Y.1987); with Realmuto v. Yellow Freight System, Inc., 712 F.Supp. 287 (E.D.N.Y.1989); Burger v. Health Ins. Plan, 684 F.Supp. 46 (S.D.N.Y. 1988); Giuffre v. Metropolitan Life Ins. Co., 129 F.R.D. 71 (S.D.N.Y.1989); Deutsch v. Carl Zeiss, Inc., 529 F.Supp. 215, 219 (S.D.N.Y.1981). Further complicating matters in the present case is the addition of state law claimshere libel, slander and harassmentnot arising under the Human Rights Law. See Patel, supra, 753 F.Supp. at 1078 (exercising pendent jurisdiction with respect to Human Rights Law claim but not over tortious interference with contract claim).
Defendants argue that because plaintiff's state claims seek compensatory and punitive damages for her alleged emotional and physical injuries while plaintiff's recovery *51 under ADEA and Title VII is limited to reinstatement and back pay, the exercise of pendent jurisdiction would inject additional issues that will cause jury confusion and prejudice the defendants. Plaintiff responds that the exercise of pendent jurisdiction will further the policy of judicial economy and will prevent duplicative litigation. These arguments are premised upon factors articulated by the Supreme Court in Gibbs, supra, 383 U.S. at 726-28, 86 S.Ct. at 1139-40.
After consideration of the factors listed above, the Court, for the following reasons, declines to exercise pendent jurisdiction over the plaintiff's state law claims. First, the Court notes the different remedies plaintiff's claims afford. Specifically, while neither ADEA nor Title VII allows for the recovery of either compensatory or punitive damages, see Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143 (2d Cir.1984) (ADEA); Carrero v. New York City Housing Authority, 890 F.2d 569, 581 (2d Cir.1989),[2] New York State's Human Rights Law and plaintiff's common law claims do so. See Batavia Lodge No. 196, etc. v. New York State Div. of Human Rights, 35 N.Y.2d 143, 359 N.Y.S.2d 25, 316 N.E.2d 318 (1974) (Human Rights Law). Moreover, the compensatory and punitive damages plaintiff seeks also include those damages resulting from the physical and emotional injuries plaintiff contends she suffered as a result of defendants' conduct. As a result, the exercise of pendent jurisdiction would inject into a discrimination case questions that are irrelevant to the federal claims, including the plaintiff's mental state and physical condition as well as the state of plaintiff's reputation. Permitting such evidence to be introduced would, thus, unduly complicate a relatively straightforward employment discrimination claim. See Realmuto, supra, 712 F.Supp. at 287; Burger, supra, 684 F.Supp. at 50.
Moreover, as Judge Conboy recognized in Burger,
[a]s the plaintiff has demanded a jury trial, to which she is entitled under the ADEA, both the pendent claims and the claim under the ADEA would be for the jury. Placing plaintiff's state law claims, some of which involve questions of plaintiff's mental state and defendant's malice that are irrelevant to an ADEA claim, before the jury could lead to jury confusion on the damages issue.
Id. at 50. The Court agrees that such proof could prejudice the jury in plaintiff's favor and could confuse the jury on the damage issues.
In addition, there exists a serious question of state law as to whether plaintiff has an existing cause of action premised upon New York's Human Rights Law. Specifically, defendants contend that plaintiff's claims based upon the Human Rights Law must be dismissed because plaintiff, prior to the commencement of this action, elected to have such claims pursued administratively.
Defendants' argument is premised upon Executive Law § 297(9), which provides that:
Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of competent jurisdiction ... unless such person filed a complaint with the State Division of Human Rights hereunder or with any local commission on human rights.
This election of remedies provision, thus, allows an aggrieved individual to seek relief from either the State Division of Human Rights ("SDHR") or any court of competent jurisdiction but not both. As a result, both the New York State courts and the federal courts have dismissed claims where the plaintiff had previously selected to pursue a claim administratively with the SDHR by filing a claim with that agency. See Hunnewell v. Manufacturers Hanover Trust Co., 628 F.Supp. 759 (S.D.N.Y. 1986); Klotsche v. New York, 621 F.Supp. 1113 (S.D.N.Y.1985); Koster v. Chase Manhattan *52 Bank, N.A., 609 F.Supp. 1191 (S.D. N.Y.1985); Emil v. Dewey, 49 N.Y.2d 968, 428 N.Y.S.2d 887, 406 N.E.2d 744 (1980).
In the present case, the plaintiff did not directly file a claim with the SDHR. Instead, as required before one can seek relief under ADEA in federal court, plaintiff first filed a claim of discrimination with the EEOC. The EEOC, in turn, referred the claim to the SDHR. This was necessitated by the fact that no charge may be filed with the EEOC if a state or local agency exists to deal with such claims until 60 days after proceedings have been commenced under state and local law. To avoid confusion, the EEOC has instituted a policy of automatically referring a charge filed with it to the appropriate state or local agency and then holding the EEOC charge in suspense for 60 days.
Since a charge filed with the EEOC is also automatically filed with a state or local agency for initial review, a question has arisen in New York as to whether the referral of a claim by the EEOC to the SDHR constitutes an election of remedies under § 297(9). This question was answered in the affirmative by the First Department of New York's Appellate Division in Scott v. Carter-Wallace, Inc., 147 A.D.2d 33, 541 N.Y.S.2d 780 (1st Dep't), app. dism., 75 N.Y.2d 764, 551 N.Y.S.2d 903, 551 N.E.2d 104 (1989).[3]
However, while holding that the automatic referral to the SDHR of an administrative complaint filed with the EEOC constitutes an election of remedies under § 297(9) and thus precludes the individual from subsequently commencing a judicial action in state court under state law, the Carter-Wallace court did not address the issue present in the instant case; namely the application of the election of remedies doctrine by a federal court. Indeed, the Carter-Wallace court expressly stated that "[W]hat effect this ruling might have on a federal court's decision to exercise pendent jurisdiction over a Human Rights Law claim we cannot say." 541 N.Y.S.2d at 783.
Relying on Scott, defendants argue that because New York bars a plaintiff who has filed a charge with the EEOC from suing under the Human Rights Law in state court, a federal court sitting in New York should also bar such a plaintiff from suing under the Human Rights Law in federal court.
On the other hand, plaintiff relies on a number of decisions in this district which have held that Carter-Wallace does not bar a plaintiff whose administrative claim was referred by the EEOC to the SDHR from pursuing state law discrimination claims in federal, as opposed to state, court. Sangeniti v. Mutual of America, 1990 WL 204190 (S.D.N.Y. Dec. 10, 1990) (Mukasey, J.); Long v. AT & T Information Systems, Inc., 733 F.Supp. 188, 198 (S.D.N.Y.1990) (Conner, J.); Tasaka v. DDB Needham Worldwide, Inc., 729 F.Supp. 1014, 1016-17 (S.D.N.Y.1990) (Stanton, J.); Williams v. J. C. Penney Co., 1990 WL 170481 (S.D.N.Y.1990) (Edelstein, J.); Olsen v. Citibank, N.A., 52 Fair Empl.Prac.Cas. (BNA) 1571, 53 Empl.Prac. Dec. ¶ 39,829, 1990 WL 41709 (S.D.N.Y. April 6, 1990) (Lowe, J.); Giuntoli v. Garvin Guybutler, Corp., 726 F.Supp. 494, 502 (S.D.N.Y.1989) (Ward, J.).
In Carter-Wallace, New York's highest court never addressed the merits of the *53 issue since plaintiff's request for permission to appeal the First Department's decision was denied on the ground that plaintiff had waived any right to seek such an appeal.
As one court recently recognized, a federal district court "need not mechanically apply [the Carter-Wallace] outcome to the instant facts" since "`[d]ecisions rendered by lower intermediate courts are not controlling on federal courts construing state law when, as here, the state's highest court has not ruled on the issue.'" Olsen v. Citibank, supra, at p. 2, quoting, Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782-83, 18 L.Ed.2d 886 (1967). See also Calvin Klein Ltd. v. Trylon Trucking Corp., 892 F.2d 191, 195 (2d Cir.1989) ("Absent a rule of decision formulated by the New York Court of Appeals, we are not bound by the opinions issued by the state's lower courts"), citing, Plummer v. Lederle Labs., 819 F.2d 349, 355 (2d Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 232, 98 L.Ed.2d 191 (1987).
Generally, where the state's highest court has not addressed the relevant issue, a federal district court's function is to sit as a state court and attempt to determine how the New York Court of Appeals would decide the merits of the issue. In re Joint Eastern & Southern Dist. New York Asbestos Litigation, 897 F.2d 626, 636 (2d Cir.1990).
Were this Court to decide the issue as an original matter, it would be reluctant to follow those cases which have concluded that a state cause of action under the Human Rights Law may exist in federal court even though the plaintiff would have no cause of action in state court. The statute provides that "an aggrieved party shall have a cause of action in any court ... unless such person filed a complaint with the State Division of Human Rights." § 297(9) (emphasis added). If, as Carter-Wallace holds, it makes no difference under the statute "whether [the] filing was made by the grievant himself or the EEOC for him" (541 N.Y.S.2d at 783), the plaintiff has "no cause of action." Thus, it is hard to rationalize the holding of Carter-Wallace with its statement, "What effect this ruling might have on a federal court's decision to exercise pendent jurisdiction over a Human Rights Law claim we cannot say." 541 N.Y.S.2d at 783. The issue is not one of pendent jurisdiction; the issue is whether a state cause of action exists.
The Supreme Court in United Mine Workers v. Gibbs, supra, listed, as one of the factors that a district court should consider in determining whether to exercise pendent jurisdiction, whether the state claims present unsettled issues of state law such that comity would counsel leaving the decision to the state courts. Id. at 726-27, 86 S.Ct. at 1138-40.[4]
In light of the confusion created by Scott v. Carter-Wallace, it appears appropriate to allow plaintiff to pursue the Human Rights Law claim in the state courts and hopefully obtain a resolution by the New York Court of Appeals which will know that at least one federal court is prepared to hold that if a state cause of action does not exist in the state courts, it does not exist at all. See Fay v. South Colonie Central School District, 802 F.2d 21, 34 (2d Cir.1986); Independent Bankers Ass'n v. Marine Midland Bank, N.A., 757 F.2d 453, 463-65 (2d Cir.1985), cert. denied, 476 U.S. 1186, 106 S.Ct. 2926, 91 L.Ed.2d 554 (1986).
Standing alone, this unsettled issue of state law may not have necessarily prevented the Court from exercising pendent jurisdiction. However, the Court finds dismissal of plaintiff's state law claims appropriate when this unsettled state law issue is coupled with the fact that the remedies plaintiff seeks under her state law claims would, as previously discussed, complicate a relatively straight forward employment discrimination case and lead to possible jury confusion and prejudice to the defendants.
*54 Accordingly, the Court declines to exercise its discretion to retain pendent jurisdiction over all of plaintiff's state law claims. Given this decision, the Court need not address defendants' Rule 12(b)(6) attack on the sufficiency of plaintiff's slander, libel and harassment claims.
CONCLUSION
Defendants' Rule 12(b)(1) motion to dismiss plaintiff's state law claims is granted. As the Court directed at oral argument held before the undersigned on June 14, 1991, the parties are ORDERED to complete discovery on plaintiff's remaining claims by September 30, 1991. A Joint Pre-Trial Order shall be submitted by the parties on or before October 31, 1991. Following the Court's review of the Pre-Trial Order, a final Pre-Trial Conference will be scheduled.
SO ORDERED.
NOTES
[1] Specifically, defendants move to dismiss plaintiff's second and fourth claims asserting age and sex discrimination under New York's Human Rights Law, the seventh and eighth claims seeking to hold defendant Banamex liable under the Human Rights Law for retaliation, plaintiff's tenth and eleventh claims asserting that Banamex, Beauchemin and Sabino slandered and libeled her and the twelfth claim asserting that Banamex and Buono harassed plaintiff in retaliation for filing the EEOC charge.
Defendants do not move to dismiss plaintiff's first and third claims, which respectively allege age discrimination under ADEA and sex discrimination under Title VII for defendant Banamex's failure to promote her, plaintiff's fifth and six claims asserting that she was retaliated against for filing an EEOC charge and plaintiff's ninth claim alleging that the corporate defendant violated ADEA by replacing plaintiff with a younger female.
[2] The ADEA, however, does provide for liquidated damages that are punitive in nature. See 29 U.S.C. § 626(b).
[3] The Scott court reasoned as follows:
to distinguish between grievants on the basis of which agency they happen to file with would be to put a grievant who, desirous of pursuing his Title VII remedies and astute to the literal requirements of that statute, deliberately files with the State Division in a worse position than an unastute grievant who, oblivious to the availability of judicial relief in any forum but desirous of vindicating his right not to be discriminated against, by chance files with the EEOC through sheer luck. The astute grievant, like the unastute one who has the bad luck of filing with the State Division, would be barred from having his Human Rights Law claim heard in both Federal and State court, whereas the unastute grievant who files with the EEOC would not only likely have his Human Rights Law claim heard in Federal Court as pendent to this Title VII claim, but could, should matters not go well for him in the State Division withdraw from that agency and commence an alternative proceeding in State Court.
541 N.Y.S.2d at 782.
[4] The factors listed by the Supreme Court in Gibbs were recently codified at 28 U.S.C. § 1367(c), which includes in subsection (1) a provision permitting a Court to decline to exercise jurisdiction if the "claim raises a novel or complex issue of State law."
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144 B.R. 864 (1992)
In re Donal Ewing RADER & Penny Lou Rader, Debtors.
Bankruptcy No. 92-41356-2.
United States Bankruptcy Court, W.D. Missouri.
September 15, 1992.
*865 Larry G. Chipman, Independence, Mo., for debtors.
Richard F. Haitbrink, Mission Woods, Kan., for Snap-On Tools Corp.
Kendall R. Garten, Blue Springs, Mo., for Blue Springs Ford Sales, Inc.
MEMORANDUM OPINION
FRANK W. KOGER, Chief Judge.
This matter comes before the Court on Debtors' motion to avoid the execution lien of Blue Springs Ford on Mr. Rader's tools. The Court filed a summary order on August 3, 1992, advising the parties that Debtors' motion was granted. This opinion sets out the Court's reasons and authority for that action.
FACTS
The lien in question was an execution lien effected by Blue Springs Ford when it seized Mr. Rader's mechanic tools prior to Debtors filing their bankruptcy petition. In July of 1991, Blue Springs Ford obtained a judgment against Mr. Rader in the amount of $6,647.28. Pursuant to that judgment, Blue Springs Ford seized Mr. Rader's tools. Debtors have claimed the tools as exempt property and applied Mr. Rader's tools-of-the-trade exemption, Mo. Rev.Stat. § 513.430(4), his head-of-the-family exemption, Mo.Rev.Stat. § 513.440, and his wildcard exemption, Mo.Rev.Stat. § 513.430(3). In addition, Debtors have applied a portion of Mrs. Rader's wildcard exemption to the tools. Debtors asked the Court to avoid the lien of Blue Springs Ford pursuant to § 522(f) to the extent that the lien impairs exemptions to which Debtors would otherwise be entitled.
Also appearing in the matter was Snap-On Tools who claimed a competing interest in the tools pursuant to its purchase money security agreements. Snap-On introduced into evidence three purchase-money security agreements dated October 10, 1988, March 30, 1989, and December 10, 1990. These security interests, were not perfected by filing.
DISCUSSION
The first issue to be settled is the valuation of the tools which Blue Springs Ford seized and in which Snap-On claims a security interest. Evidence as to valuation was given by Debtors, Blue Springs Ford, and Snap-On. Predictably, Debtors' valuation was considerably lower than that of the other parties. Considering the valuations given by all three parties, the Court finds that the value of the seized tools is $8,104.50. This represents a 10% reduction from the $9,005 valuation given by Blue Springs Ford. That figure was the most credible because the witness testified that his figures represented the value of the tools at auction as opposed to Debtors' "garage sale" valuation and Snap-On's "retail price." Nonetheless, the Court finds that figure to be somewhat high and accordingly, has chosen a slightly reduced figure.
The second issue that the Court will deal with is the question of the validity and priority of Blue Springs Ford's execution lien. Debtors and Snap-On claim that Blue Springs Ford does not have a valid execution lien because they had prior actual knowledge of the lien of Snap-On. Such argument not only blurs the distinction between the validity of a lien and the priority *866 of a lien, but it also evidences a misunderstanding of lien priorities under the UCC.
Execution and levy creates a lien on personal property that arises at the time of the execution. The lien is valid notwithstanding any prior knowledge of a security interest held by another party. However, the execution lien creditor does take subject to other properly perfected security interests. So, other security interests will not invalidate a proper execution lien, but they may make it irrelevant if the property is sufficiently encumbered with prior interests.
The existence of prior security interests becomes important as to the question of lien priority. On that topic, Mo.Rev.Stat. § 400.9-301 governs. Pursuant to that section, an unperfected security interest is subordinate to the interest of a lien creditor who becomes a lien creditor before the security interest is perfected. Mo.Rev. Stat. § 400.9-301(1)(b). Knowledge of the prior interest is not relevant to priority under the UCC.
Furthermore, Mr. Rader's rather vague testimony that, several months before Blue Springs Ford executed on his tools, he had mentioned to a representative of Blue Springs Ford that the tools were not paid for does not convince the Court that Blue Springs Ford did, in fact, have actual knowledge of prior security interests.
The question then arises whether Snap-On possesses a properly perfected security interest in Debtor's tools. The Court finds that Snap-On's security interest is unperfected. There is no dispute about the fact that Snap-On did not perfect its interest by filing a UCC-1; Snap-On's counsel stated in the hearing that no UCC-1 was filed. The question, then, is whether they are perfected in the absence of filing. Mo.Rev.Stat. § 400.9-302(1)(d) provides that a purchase money security interest in consumer goods is perfected without filing. But Mo.Rev.Stat. § 400.9-109 defines "consumer goods" as goods which are "used or bought for use primarily for personal, family, or household purposes." Mr. Rader's tools, however, were used in his business. They are not consumer goods and so Snap-On's interest is not perfected under that section. Nor does Snap-On's security interest meet any other criteria for perfection without filing. Therefore, the Court finds that Snap-On's purchase money security interest is unperfected and that the execution lien of Blue Springs Ford takes priority over Snap-On's unperfected purchase money security interest.
In the hearing, Debtors' counsel also raised the issue of whether Blue Springs Ford's lien was avoidable as a preferential transfer under § 547 of the Code. The Court will not address that issue for two reasons. Debtors' motion did not plead an action for lien avoidance under § 547, so the issue was never properly brought before the court. Further, as a general rule, it is the trustee who must bring actions to avoid transfers under § 547[1] and Trustee has not done so in this case.
Finally, the Court finds that Blue Springs Ford's lien is avoidable by Debtors to the extent that the lien impairs their exemptions in the tools. Section 522(f) allows the debtor to avoid the fixing of a judicial lien to the extent that such lien impairs an exemption to which the debtor is entitled under § 522(b). Blue Springs Ford's lien is a judicial lien as that term is used in the statute and the lien does impair exemptions to which Debtors are entitled under § 522(b) and Mo.Rev.Stat. §§ 513.430 & 513.440. Debtors have claimed Mr. Rader's tools of the trade exemption of $2000.00 under Mo.Rev.Stat. § 513.430(4); his wildcard exemption of $400.00 under § 513.430(3); and his head-of-the-family exemption of $1350.00 under § 513.440. In addition, Mrs. Rader applied $213.00 of her wildcard exemption under § 513.430(3) to *867 the tools. The Court, therefore, finds that under § 522(f) the lien of Blue Springs Ford is avoidable to the extent of Debtors' claimed exemption of $3963.00.
The foregoing Memorandum Opinion constitutes Findings of Fact and Conclusions of Law as required under Rule 7052, Rules of Bankruptcy.
SO ORDERED.
NOTES
[1] The Court recognizes that § 522(h) empowers debtors to bring such actions where a transfer is avoidable under § 547 and the trustee has failed to act. However, the relief under § 522(h) is limited to avoiding the transfer to the extent that the debtor could have exempted the property. Given the fact that the Court will grant Debtor relief under § 522(g) to the extent of his claimed exemptions, relief under § 522(h) would be redundant.
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286 S.W.2d 49 (1955)
Anthony ANELLO and Josephine Anello, Plaintiffs-Appellants,
v.
KANSAS CITY, Missouri, a Municipal Corporation, Defendant-Respondent.
No. 22320.
Kansas City Court of Appeals. Missouri.
December 5, 1955.
*50 Clay C. Rogers, James W. Benjamin, Robert L. Shirkey, Kansas City, for plaintiffs-appellants.
David M. Proctor, City Counselor, Kansas City, James H. Coonce, Kansas City, Asst. City Counselor for defendant-respondent.
SPERRY, Commissioner.
Plaintiffs, Mr. and Mrs. Anello, sued defendant City for damages accruing to their store building located at 4118 Prospect, Kansas City, Missouri. They alleged that the damages were caused by a break in defendant's water and sewer lines. They had a verdict and judgment in the sum of $5,000, but the court, on motion, set aside the judgment and entered judgment for defendant. The court also entered an order to the effect that, if the latter judgment should be reversed on appeal, then a new trial should be granted on the ground that the court erred in submitting the case on the theory of res ipsa loquitur. Plaintiffs have appealed.
Plaintiffs acquired a plot of real estate located on the west side of Prospect, in Kansas City, in 1945. During the year 1946 they constructed thereon a one story building, of masonry. The building is 40 feet square and was designed for and used as a retail store.
The evidence is to the effect that, some 40 years prior to plaintiffs' acquisition of the real estate, defendant raised the grade of Prospect at this point, and paved it. It was also shown that defendant had, in 1913, constructed a main storm and sanitary sewer running from the east, under Prospect, thence in a northwesterly direction, in which direction the sewage flowed. This is a double line of two 24 inch pipes, and it is connected to the west end of an old stone culvert which extends across Prospect, from east to west, the west end thereof being almost directly beneath the west curb line of Prospect, near the north line of plaintiffs' building, and about 28 feet beneath the surface of the sidewalk. The culvert is about 4 feet square and there was a catch basin, located some 30 feet north, connected therewith by a tile sewer line. The northeast corner of plaintiffs' building extends over the sewer line.
The lot upon which plaintiffs' building was constructed, originally "fell off," or sloped steeply, from the property line toward the west. Long prior to its purchase by plaintiffs the front part of the lot had been filled with dirt, concrete, and other materials, to a depth of 12 or 15 feet and level with the sidewalk. Plaintiffs' building was constructed on this "fill." The foundation extends down about 8 feet and rests on a reinforced concrete footing, 4 feet in width. About 500 pounds of weight, per square foot, rests on the footing.
Prior to the events complained of, plaintiffs' building was in good condition. There were no cracks in the masonry of the walks, or in the floor. On September 15, 1947, plaintiffs heard a loud noise, sounding like an explosion, in front of their building. They went outside to ascertain the cause, and found that the sidewalk had caved in and that there was a cavity extending from about the door, at the center, to the north end of the building, and from the curbing to the building. It was more than 5 or 6 feet deep. A utility pole near the north end of the building had toppled, and the water meter had fallen in. Defendant was notified and its agents immediately inspected the situation. A few days thereafter, a *51 large crack appeared in the floor, near the center, running east and west the length of the building, and also up the walls. Thereafter, defendant filled the hole and replaced the sidewalk. Its agents were, at that time, shown the cracks in plaintiffs' building.
About a year later a woman, passing over the sidewalk in front of the store, caught her heel in a hole. Plaintiffs inspected the sidewalk and found that there was a cavity under it, similar to that occurring and existing in 1947, and at the same location. Again defendant was notified. It filled the hole and repaired the sidewalk.
In May, 1952, defendant's water meter man came into the store and told plaintiffs that the meter in front of the building had disappeared. Investigation disclosed that there was a cavity under the sidewalk, where the cavities had previously appeared. This cavity was about of the same size and character as that of 1947. The cracks in plaintiffs' building have been caulked and repaired, from time to time, but have persistently grown wider, the doors have become out of line, and other smaller cracks have become visible.
Plaintiffs offered the testimony of Mr. Rush, foreman of defendant's sewer repair crew. He stated that he supervised the repairs made on the occasion of the last cave-in; that there was a cavity, several feet in width, length, and depth, in front of plaintiffs' building, under the sidewalk, and extending under the street; that the repair crew dug down, at this point, a distance of 28 feet; that, as they excavated, they removed the tile leading down from the catch basin; that, eventually, they found that some rocks had fallen from "that old stone culvert that goes under Prospect Avenue where the pipe is hooked onto it," "right around the catch basin line" where it hooked into the sewer; that that was where the dirt was washing away, causing the cave-in; that he turned the fire hose on in the hole while the digging was going on to find out where the dirt went; that the water ran out through the sewer hole as fast as it went in from the fire hose; that, after the repairs were completed, the culvert was in fair condition "for an old loose stone culvert"; that no sewer pipe was replaced the repairs being made with concrete.
Other workmen gave similar testimony. Some said that the rock appeared to have broken off near the lip of the culvert, but no direct evidence was offered as to what may have caused the rock to break nor as to when that event occurred. One workman stated that the pipe line leading from the catch basin to the stone culvert was also broken. There was testimony to the effect that the culvert was under the surface of the street at the time the street grade was raised, in 1904, and that, when defendant's sewer was constructed, it was connected to the culvert at the point mentioned.
There was substantial evidence, from an engineer, offered by plaintiffs, from which it may be inferred that the damage to the building was caused by a washing away of the dirt near the building, through the sewer, thereby weakening its support and causing it to settle unevenly, resulting in its "splitting." There was also evidence, on behalf of defendant, to the effect that the settling of the building was caused from a settling of the filled land upon which the building rests; but plaintiffs' expert witness stated that the settling, which caused the damage, was not due to the "fill." We must assume that the settling was due to the carrying away of the soil, through and by reason of the hole in the sewer, thereby weakening the foundation supports and permitting the foundation to settle unevenly. We must consider the facts in their aspect most favorable to plaintiffs. Hannan v. Kansas City, 187 Mo. App. 315, 173 S.W. 703, 704.
Plaintiffs pleaded that the original damage was caused by the 1947 collapse. Their expert witness gave it as his opinion that the damage occurred at that time, and was then complete; that, while the cracks then appearing had widened, nevertheless, the breakage and damage occurred in 1947. Defendant's expert testimony was to the same effect.
*52 Plaintiffs pleaded facts which, if proved, established a case under the doctrine res ipsa loquitur. The pleading was not attacked. The question before us is whether the evidence made a case on that theory.
The definition of that doctrine, as declared in Scott v. The London & St. Katherine Docks Company, 159 Eng.Rep. 665, (1865) is universally accepted, to-wit:
"There must be reasonable evidence of negligence.
"But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."
Our Supreme Court declared, in McCloskey v. Koplar, 329 Mo. 527, 533, 46 S.W. 2d 557, 559, 92 A.L.R. 641; the following three conditions as necessary to exist before the doctrine may be applied, to-wit:
"(a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care;
"(b) The instrumentalities involved were under the management and control of the defendant;
"(c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence."
Shain, Res Ispa Loquitur, Presumption and Burden of Proof, page 5, states that the "thing" which speaks is the unusual factor within the causal chain, which connects the injury to the plaintiff with the act or omission of the defendant; and that it speaks at the trial of the case, when:
"(a) The `thing' is part of a causal chain which connects the injury to the plaintiff to the act or omission of the defendant; and
"(b) The `thing' is within the exclusive control of the defendant; and
"(c) The `thing' does not ordinarily occur if the one having the exclusive control of the `thing' uses proper care in exercising that control."
The evidence here discloses, and the jury has found, that the open break in defendant's sewer line is the "thing" that caused plaintiffs' injury. The sewer lines were the property of and were within the exclusive control of defendant. McQuillen on Municipal Corporation, 3rd Ed., Page 33; Donahoe v. City of Kansas City, 136 Mo. 657, 667, 38 S.W. 571. A negligent breach of defendant's duty to maintain its sewers in a reasonably safe condition is actionable. Hannan v. Kansas City, supra, 187 Mo.App. 315, 173 S.W. 703, 705.
To make a "res" case it must also appear that the defects in the sewers causing plaintiffs' injury were such as to permit an inference that defendant was negligent in some manner. The jury could have inferred that defendant was negligent in adopting a "loose" stone culvert as a part of its sewer system; or that it was negligent in some manner in failing to inspect and maintain same in reasonably good repair, knowing of the nature of its construction; that defendant should have anticipated some such breakage or failure after 34 years of use; or that, since the breakage could have occurred months before the cave-in occurred in 1947, defendant was negligent, in not discovering and repairing same before plaintiffs' property was injured thereby.
In Russell v. St. Louis & S. F. R. Co., Mo.App., 245 S.W. 590, 591, it was said:
"The doctrine of res ipsa loquitur is a rule of evidence and applies only when the facts are such that the court can and will take judicial notice that, unless negligence had been present in some form, the injury would not have occurred, * * *." (Italics ours.)
Under the facts in evidence here we will take judicial notice that, absent negligence *53 in some form, the injury herein would not have occurred. Whether such negligence was in the fact that the City adopted and used, as a part of its sewer system, an "old loose stone culvert" some 34 years prior to the occurrence; or whether it be in the fact that the breakage occurred in some way and the sewer remained in such broken condition for months or years, in disrepair (when it was defendant's duty to exercise reasonable care to maintain it in a reasonably safe condition); or whether it was broken through some negligence on the part of defendant's agents, we cannot say. From the facts in evidence, however, it appears that the sewer remained open for months, perhaps years, prior to the collapse of the earth in front of plaintiffs' building, in 1947.
The burden of going forward with evidence tending to explain the matter, rested on defendant. It offered no evidence on that subject and, therefore, the jury was justified in inferring that the injury was due to some negligence on the part of defendant. McCloskey v. Koplar, supra, 329 Mo. 535, 46 S.W.2d 557.
Defendant contends that no submissible case was made by plaintiffs because there is no evidence that defendant had notice of the defect in time, thereafter, to have remedied same. This being a res ipsa loquitur case no notice was required. McCloskey v. Koplar, supra, 329 Mo. 536, 46 S.W.2d 557.
Defendant also contends that the defect was a latent one, for which it is not liable. This contention is one that should have been directed to the jury. Defendant offered no evidence on the point. But if it had done so, nevertheless, the court must have submitted the case, because a prima facie case was made under the res doctrine. McCloskey v. Koplar, supra; Lober v. Kansas City, Mo.Sup., 74 S.W.2d 815, 823.
Defendant contends that the res ipsa loquitur doctrine applies to but two classes of cases, of which the present case is not one. Defendant's contention may not be sustained under the present state of the law. The doctrine has been applied to a wide variety of cases including falling objects, food and beverages, electricity, machinery, common carriers, private automobiles and aeroplanes, mal-practice, escaping water and gas, fires, etc. Shain-Res Ipsa Loquitur, supra, Table of Contents. It would be difficult to enumerate all of the situations to which the doctrine is applicable, since the field has been greatly broadened in recent times.
It is urged that where there are two or more causes that might have produced the injury, for one but not for all of which, defendant is liable, no case is made. It is good law; but where, as here, the jury, upon substantial evidence and proper instructions has found the cause to be one for which defendant is liable, that rule has no application.
It is also contended that plaintiffs are not entitled to the benefit of the "res" rule because they proved the specific cause of the injury. That contention must be denied because plaintiffs offered no evidence as to how or when the sewers became defective. They merely showed the existence of the defects and, by inference, that same had existed for a long period of time.
The judgment should be reversed and the cause remanded with directions that the original judgment, in favor of plaintiffs, in the amount of $5,000 be reinstated.
BOUR, C., concurs.
PER CURIAM.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded with directions that the original judgment, in favor of plaintiffs, in the amount of $5,000, be reinstated.
All concur.
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732 N.W.2d 915 (2007)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Randy MUSGROVE, Defendant-Appellant.
Docket No. 133512. COA No. 271386.
Supreme Court of Michigan.
June 26, 2007.
On order of the Court, the application for leave to appeal the January 31, 2007 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of *916 establishing entitlement to relief under MCR 6.508(D).
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373 Pa. Super. 341 (1988)
541 A.2d 347
COMMONWEALTH of Pennsylvania
v.
Roland MARKUM, John O'Brien, Howard Walton, Susan Silcox Kathy Long, Ellen Jones, and Anne Marie Breen, Appellants.
COMMONWEALTH of Pennsylvania
v.
Henry TENAGLIO and Joseph Wall, Appellants.
COMMONWEALTH of Pennsylvania
v.
Walter GIES, Appellant.
Supreme Court of Pennsylvania.
Argued June 25, 1987.
Filed May 2, 1988.
*342 Samuel C. Stretton, West Chester, for appellants.
*343 Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.
CIRILLO, President Judge:
Appellants take this appeal from a judgment of sentence of one day to three months imprisonment imposed by the Honorable John J. Poserina of the Court of Common Pleas of Philadelphia County following their conviction for defiant trespass.[1] We affirm.
On August 10, 1985, as part of an anti-abortion demonstration, appellants pushed their way into the Northeast Women's Center on Roosevelt Boulevard in Philadelphia, and occupied several rooms there. Once inside, they damaged two aspirator machines and other medical instruments, threw equipment out of a third floor window, and placed "pro-life" stickers on the doors, walls, and ceilings. Appellants refused to leave, even after several requests by the Center's staff, and were ultimately removed when police arrived and carried them from the scene.
Appellants appeared for trial before the Honorable Mitchell S. Lipschutz of the Philadelphia Municipal Court, and were found guilty. All appellants except Tenaglio and Wall proceeded to a de novo trial before Judge Poserina.
During a hearing on a motion in limine, appellants made an offer of proof in support of their claim that they be allowed to present a defense of justification. Following the submission of briefs and argument on March 24, 1986, Judge Poserina ruled that justification did not lie. Judge Poserina certified the question of justification for interlocutory appeal, but this court denied appellants' petition and remanded the case for trial.
On September 30, 1986, the jury returned guilty verdicts as to all appellants. On October 20, 1986, Judge Poserina *344 found the remaining appellants, Tenaglio and Wall, guilty after they stipulated to the testimony presented at the jury trial of their co-defendants.
Following sentencing, the appellants were immediately paroled on the condition that they each perform fifty hours of community service, not to be served in any pro-life agencies, and refrain from trespassing on medical facilities that perform abortions. Post-trial motions were filed and denied and this timely appeal followed.
Appellants raise one issue on appeal: whether the trial judge erred in not allowing appellants to present the defense of justification to the jury.
In Pennsylvania, the defense of justification is grounded in statute. 18 Pa.C.S. §§ 501-10. This legislation has several provisions. However, it must be noted that appellants failed to specify which justification provision they deemed applicable to their case. In Commonwealth v. Capitolo, 508 Pa. 372, 381-382, 498 A.2d 806, 810-811 (1985), our supreme court held that a litigant must specify which section of the justification statute their claim is based upon. In Capitolo, the appellants proceeded under § 503; therefore, the court held that any claim under § 510 was waived. Here, where appellants only nebulously claimed justification, without specifically invoking either §§ 503 or 510, their claim may have been waived altogether. However, inasmuch as appellants asserted the defense at trial, in post trial motions, and again on appeal, we will consider the issue to be properly preserved and presented.
Section 503 states:
(a) General rule. Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if:
(1) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;
*345 (2) neither this title nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
(3) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
(b) Choice of evils. When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
Section 510 states:
Conduct involving the appropriation, seizure or destruction of, damage to, intrusion or interference with property is justifiable under circumstances which would establish a defense of privilege in a civil action based thereon, unless:
(1) this title or the law defining the offense deals with the specific situation involved; or
(2) a legislative purpose to exclude the justification claimed otherwise plainly appears.
The Pennsylvania Supreme Court, in Commonwealth v. Capitolo, 508 Pa. 372, 498 A.2d 806 (1985), and Commonwealth v. Berrigan, 509 Pa. 118, 501 A.2d 226 (1985), addressed the applicability of the justification provisions of §§ 503 and 510, respectively.
In Capitolo, Patricia Capitolo and four others crept under a fence enclosing the Shippingsport Nuclear Power Plant. Once through, they sat down about ten to twelve feet inside of the fence and held hands. They were placed under arrest after refusing requests of plant representatives that they leave the premises. The five sought to present a justification defense under § 503, the general justification provision of the statute, but were refused by the trial judge because they would not have been able to prove that their trespass was justified. They were subsequently convicted *346 of trespass in the Court of Common Pleas of Beaver County.
On appeal, a majority of this court reversed the decision of the trial court, concluding that appellants' offer of proof met the requirements of § 503 and that they should have been able to present to the jury evidence in support of the defense.
Our supreme court reversed and reinstated the convictions, holding that the defense of justification is available only when the appellee is able to make an offer of proof which establishes:
(1) that the actor was faced with a clear and imminent harm, not one which is debatable or speculative;
(2) that the actor could reasonably expect that the actor's actions would be effective in avoiding this greater harm;
(3) there was no legal alternative which will be effective in abating the harm; and
(4) the Legislature had not acted to preclude the defense by a clear and deliberate choice regarding the matter at issue.
Capitolo, 508 Pa. at 378, 498 A.2d at 809 (emphasis ours). The court went even further in stating that
it is essential that the offer meet a minimum standard as to each element of the defense so that if a jury finds it to be true, it would support the affirmative defense here that of necessity. . . . Where the proferred evidence supporting one element of the defense is insufficient to sustain the defense, even if believed, the trial court has the right to deny use of the defense and not burden the jury with testimony supporting other elements of the defense.
Id.
After applying these basic principles to the facts of the trespass action, the court concluded that the danger at the nuclear plant was not imminent and that the appellees "could not establish that their criminal conduct was necessary to avoid harm or evil to themselves or others." Id.
*347 In Berrigan, the Berrigan brothers and six others entered the General Electric plant in King of Prussia, Pennsylvania, where they damaged hydrogen bomb missile components and poured human blood on the premises. Property damage exceeded $28,000. The eight involved were charged and convicted of burglary, criminal mischief, and criminal conspiracy. An offer of proof was made under § 510, (the property crimes provision of the justification statute) to present the defense of justification. The trial judge permitted them to offer their own testimony in support of the defense, but refused to permit them to present expert testimony.
On appeal, this court held that appellants should have been able to present the defense, and present expert testimony in support of the defense.
Once again, our supreme court reversed. By applying §§ 196 and 262 of the Restatement of Torts Second to 18 Pa.C.S. § 510, the court concluded that the Restatement imposes upon § 510 the requirements that the actor reasonably believe that the act in question was necessary to avoid an imminent and public disaster. Berrigan, 509 Pa. at 123-124, 501 A.2d at 229. The court then reiterated the four-part test used in Capitolo and determined that the trial court had properly ruled that the offer of proof was insufficient to establish that the nuclear holocaust that appellees sought to avert was a clear and imminent public disaster.
The court in Berrigan went even further, however, and held additionally that the defense of justification was not available "in situations where the conduct some perceive to engender public disaster has been specifically approved of by legislation making it legal conduct . . ." Id.
Abortion has been specifically approved by the Pennsylvania Legislature in the Abortion Control Act, which was adopted in January of 1983. 18 Pa.C.S. §§ 3201-3220. Were it not protected by such legislation, the justification defense would continue to remain unavailable because a woman's right to abortion is protected by the Constitution *348 of the United States. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). The Berrigan mandate that a justification defense may not be raised if the asserted "harm" is legal is not dependent upon whether such conduct has been made legal through legislative choice or judicial fiat. We live in a society of laws and no individual is entitled to raise himself above the law. We are each bound by the law no matter its source. Were we free to pick and choose which laws we wished to obey, the result would be a society of strife and chaos. Therefore, even if the legislature had not made a clear choice regarding abortion, the justification defense would be unavailable because abortion is lawful by virtue of the United States Constitution. Certainly, justification may not be asserted as a grounds for interference with a person's right to free speech even though that right has not been legislatively approved. Free speech has been constitutionally approved, as has a woman's right to abortion. Democracy allows the citizenry to protest laws of which they disapprove. But they must nonetheless obey such laws or face the legal consequences. To allow the defense of justification to those who willingly and intentionally break the law would encourage criminality cloaked in the guise of conscience.
As the Capitolo-Berrigan test makes clear, there must be a threat of an imminent and public disaster. Appellants' offer of proof was insufficient as a matter of law to satisfy this four-part test. The use of justification as a defense could be precluded on this ground alone, regardless of the fact that abortion is legally sanctioned.
Appellants wish to produce testimony to establish that life begins at conception. They wish to show scientifically that a fetus as young as eight weeks of age has measurable brain-wave activity. Because Pennsylvania's Determination of Death Act, 35 Pa.C.S. §§ 10201-10203, provides that death occurs when all brain activity ceases, appellants assert that their evidence would demonstrate that abortion is the taking of a human life, and hence, a "public disaster." They also claim that the disaster was imminent, not speculative, *349 and that their actions were effective in averting the disaster. Finally, they assert that there was no legal alternative for their actions.
Appellants' first argument, that abortion constitutes a public disaster, fails. As we have noted, pre-viability abortion is lawful by virtue of state statute and federal constitutional law. The United States Supreme Court, from Roe through its progeny, has consistently held that the state's interest in protecting fetal life does not become compelling, and cannot infringe on a woman's right to choose abortion, until the fetus is viable. Roe at 163-164, 93 S. Ct. at 732. Appellants do not suggest that viability and conception are simultaneous occurrences. We find that a legally sanctioned activity cannot be termed a public disaster.
Appellants' second argument, that the disaster was imminent and that their actions were effective in averting it, similarly must fail. It is unreasonable for appellants to believe that their brief occupation of one center would effectively put an end to the practice of abortion. Appellants' occupation of the Women's Center did not stop its operation. Legal abortions continued to be performed in the Center and were available in other medical facilities throughout Pennsylvania.
Appellants' third contention, that there was no legal alternative to their actions, is misguided. As Judge Poserina noted, "[t]here are obviously numerous means in a democratic society to express a point of view or to attempt to prevent a perceived harm without resorting to criminal behavior." Appellants were free to peacefully demonstrate outside of the center in an effort to prevent the harm that they perceived from occurring.
Finally, appellants' offer of proof was insufficient to show that no legislative purpose exists to exclude the justification defense, nor could they, because Pennsylvania law is to the contrary. The Abortion Control Act specifically provides that "[i]n every relevant civil and criminal proceeding in which it is possible to do so without violating *350 the Federal Constitution, the common and statutory law of Pennsylvania shall be construed to extend to the unborn the equal protection of the laws. . . ." 18 Pa.C.S. § 3202(c) (emphasis ours). Clearly, to permit private citizens the right to prevent women from exercising their right to abortion would be a violation of both state statute and federal constitutional law.
As in Berrigan, appellants in the instant case were trying to halt legal conduct. It has been suggested that the justification defense might lie where appellants can show that the conduct which they attempted to halt was illegal. However, even if illegal conduct could be proven, and appellants' offer of proof contained no allegations that the Northeast Women's Center was engaging in other than legal abortions, the Capitolo-Berrigan test would prohibit the use of the defense if there were other legal alternatives for abating the harm. Because the Pennsylvania Abortion Control Act specifically proscribes post-viability abortion (with narrow exceptions), any public disaster that such abortions present can be adequately controlled by law enforcement personnel. See 18 Pa.C.S. § 3201(a). Therefore, any claim of justification under § 510 will fail according to the supreme court mandate in Berrigan. Appellants cannot use unlawful means in an effort to stop lawful behavior, no matter how morally reprehensible they feel that behavior to be. "[T]respassing on private property . . . is not legally justified by philosophical disagreement. [The justification defense] does not condone . . . ad hoc self help which forebodes legal chaos." Capitolo, 508 Pa. at 381, 498 A.2d at 810.
The appellants are actually requesting that this court countenance civil disobedience, which is defined as:
A form of lawbreaking employed to demonstrate the injustice or unfairness of a particular law and indulged in deliberately to focus attention on the allegedly undesirable law.
Black's Law Dictionary 223 (1st ed. 1979).
Though, our nation has a long and proud history of civil disobedience, appellants are not in that tradition. From the *351 Boston Tea Party to the abolitionists to conscientious objectors to the sit-ins of Martin Luther King, civil disobedience has often stirred our nation's collective conscience and spurred us to change or repeal unjust laws. Often, juries refused to convict good men of conscience whose love of justice had motivated them to violate the law. On some occasions, a jury would convict but the judge in recognition of the righteousness of the underlying cause would suspend sentence or issue a nominal find. Abortion demonstrators argue that they are in this tradition and should be treated accordingly. They overlook the key distinction between their actions and the behavior of those cited above.
The true conscientious objector refuses to obey the very law which he claims is unjust. Rosa Parks refused to sit in the back of the bus and "draft dodgers" refused to register for the draft. When prosecuted, they challenged the wisdom, morality and constitutionality of the law in question.[2] They did not employ their objections to that law as an excuse to engage in general or targeted violence. But that is what the demonstrators in this case have done. On this appeal, the demonstrators challenge the applicability of our criminal trespass laws to their activities. But they do not assert that those laws are unconstitutional or unjust. Rather they believe that because they disagree with the practice of abortion they are entitled to deface and occupy property belonging to other persons. How sad that their sense of justice and outrage is so narrowly focused.
Judge Poserina correctly determined that the justification defense would not lie. The action sought to be prevented by appellants was lawful, and as such, could not be prevented by unlawful conduct. Furthermore, appellants' offer of proof was insufficient to satisfy the four-part Capitolo-Berrigan test for determining when the defense of justification *352 will lie. For these reasons, we affirm the judgment of sentence.
McEWEN, J., concurs and dissents.
TAMILIA, J., dissents.
McEWEN, Judge, concurring and dissenting:
Since the rulings of both the United States Supreme Court, in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and the Pennsylvania Supreme Court, in Commonwealth v. Berrigan, 509 Pa. 118, 501 A.2d 226 (1985), preclude the presentation by appellants of the defense of justification, I am compelled to join in the ruling of my distinguished colleague, President Judge Vincent A. Cirillo, the author of the lead opinion affirming the judgment of sentence. I write, nonetheless, so as to express the view that appellants have surmounted three of the four obstacles to presentation of the defense a view which is, of course, measurably different from the conclusion of the lead opinion that appellants failed to meet any of the four requirements.
While the defense of justification has a number of synonyms,[1] it is "`often expressed in terms of choice of evils: When the pressure of circumstances presents one with a choice of evils, the law prefers that he avoid the greater evil by bringing about the lesser evil.'" State v. Olsen, 99 Wis. 2d 572, 576, 299 N.W.2d 632, 634 (1980) quoting LaFave & Scott, Criminal Law § 50, at 382 (1972). "Determination of the issues of competing values and, therefore, the availability of the defense of necessity is precluded, however, *353 when there has been a deliberate legislative choice as to the values at issue." State v. Warshow, 138 Vt. 22, 27, 410 A.2d 1000, 1003 (1979) (Hill, J., concurring).
The U.S. Supreme Court, in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), held that the constitutional right of privacy of a mother is paramount to the right to life of her unborn child during the first trimester of pregnancy. Thus, this nation's highest court balanced the competing interest of the mother in terminating her pregnancy against the right to life of the infant, and held that the right of the mother to terminate her pregnancy during the first trimester is paramount to the right to life of the infant. Our state legislature, in response to Roe v. Wade, supra, enacted the Pennsylvania Abortion Control Act, 18 Pa.C.S. §§ 3201-3220, which authorizes first trimester abortions such as those scheduled for August 10, 1985, at the Northeast Women's Center. The appellants have not asserted that any of the pregnancies scheduled for abortion were beyond the first trimester. See: 18 Pa.C.S. § 3209.
The Pennsylvania Supreme Court directly addressed the protestors' reliance upon the defense of justification and decreed in Berrigan that "the defense of justification will lie only where the actor offers evidence that will demonstrate:
(1) that the actor was faced with a public disaster that was clear and imminent, not debatable or speculative;
(2) that the actor could reasonably expect that the actions taken would be effective in avoiding the immediate public disaster;
(3) that there is no legal alternative which will be effective in abating the immediate public disaster;
(4) that no legislative purpose exists to exclude the justification from the particular situation faced by the actor."
Id. 509 Pa. at 124, 501 A.2d at 229.
Thus, an accused who wishes to present evidence in support of the defense of justification must make an offer of proof as to each one of the four specific elements of the defense, namely, efficacy, imminency, lack of legal alternative, *354 and absence of a legislative purpose to exclude the defense. It follows, of course, that the trial court is obliged to preclude any effort to rely upon the defense even if but one of the four elements cannot be demonstrated.
The disaster which appellants sought to prevent was the abortions that would be completed in a very brief time after the women entered the building. While it is to be conceded that a certain number of the women entering the building sought but information, a significant number of women were entering the clinic to effect an abortion. The danger perceived by appellants was, therefore, clear and imminent. Further, were appellants able to prevent the women from entering into the building, their action would have been quite effective in thwarting the immediate disaster appellants perceived as awaiting the women and their unborn children in the clinic. And, of course, appellants had no legal alternative available. Therefore, I conclude that appellants complied with three of the conditions precedent to presentation of the defense of justification.
It is the fourth and final element that impedes the presentation of the defense of justification by the appellants. The fourth condition prescribed by the Pennsylvania Supreme Court in Commonwealth v. Berrigan, supra, 509 Pa. at 124, 501 A.2d at 229, required appellants to establish that "no legislative purpose exists to exclude the justification from the particular situation faced by the actor." The Pennsylvania Abortion Control Act, 18 Pa.C.S. §§ 3201 et seq., enacted as a consequence of the Roe v. Wade decision of the United States Supreme Court, evinced the intention of the Pennsylvania Legislature to exclude the defense of justification in the situation confronting appellants. Thus, the appellants here did not in fact, could not establish the absence of a legislative purpose to exclude the defense of justification.
My eminent colleague, Judge Patrick R. Tamilia, provides an insightful rationale based upon his view that "the Supreme Court, in fixing viability at a point supported by medical knowledge as it existed at that time [1973], . . . has *355 left open the question of when the state may intervene, to be dependent upon medical evidence as to viability. . . ." I differ with that interpretation and, in support of my view, note that those who abhor the ruling do so because, contrary to the dissent, the United States Supreme Court held in firm and certain fashion that the right of the mother to terminate her pregnancy during the first trimester is paramount to the right to life of that infant. On the other hand, the rationale of Judge Tamilia is no less a plea and one in which I fervently join, namely, that the United States Supreme Court, in response to accepted medical knowledge, enhanced by the technological improvements occurring during the fifteen years since the evidence was assembled for presentation to the Court in Roe v. Wade, proceed in urgent fashion to reject as outmoded the evidence of viability relied upon in Roe v. Wade.
Nonetheless, I am constrained to concur in the affirmance of the judgment of sentence.
TAMILIA, Judge, dissenting:
I follow and support the reasoning of the majority in its analysis of the justification defense to the point where it holds that justification defense in abortion is precluded by legislative and constitutional protection. Abortion Control Act, 18 Pa.C.S. §§ 3201-3220. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). Abortion is constitutionally protected but it is a qualified protection. Roe, supra. The significant distinction between this case and Commonwealth v. Capitola, 508 Pa. 372, 498 A.2d 806 (1985) and Commonwealth v. Berrigan, 509 Pa. 118, 501 A.2d 226 (1985) is that there was no imminent danger in constructing atomic warheads. Abortion stands on an entirely different footing. I believe the defense is available in two respects despite statutory and constitutional limitations. First, if the clinic was processing abortions beyond the time of viability, as established by Roe, the right to protect the life of a fetus in those circumstances would exist within the present legislative and constitutional parameters. *356 While the appellants would base their defense on proof that life begins at conception and that there are measurable brain waves in a fetus as young as eight weeks of age, the Supreme Court in Roe, having established the right to intervene by the state only at the point of viability, their argument as to life beginning as determined by brain wave activity is irrelevant. However, the Supreme Court, in fixing viability at a point supported by medical knowledge as it existed at that time, in my opinion has left open the question of when the state may intervene, to be dependent on medical evidence as to viability at the time at issue. Roe v. Wade was promulgated in 1973. In the intervening years, enormous strides have been made in sustaining life of fetuses outside the womb, who, at the time of Roe, were considered nonviable. In Akron v. Akron Ctr. for Reproductive Health, 462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687 (1983), the majority summarized the holding in Roe and subsequent abortion decisions as follows:
First, a State has an "important and legitimate interest in protecting the potentiality of human life." [Roe] [410 U.S.] at 162, 35 L. Ed. 2d 147, 93 S. Ct. 705 [at 731]. Although the interest exists "throughout the course of the woman's pregnancy," Beal v. Doe, 432 U.S. 438, 446, 53 L. Ed. 2d 464, 97 S. Ct. 2366 [2371] (1977), it becomes compelling only at viability, the point at which the fetus "has the capability of meaningful life outside the mother's womb," Roe, supra, at 163, 35 L. Ed. 2d 147, 93 S. Ct. 705 [at 732]. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 63-65, 49 L. Ed. 2d 788, 96 S. Ct. 2831 [2838-39] (1976). At viability this interest in protecting the potential life of the unborn child is so important that the State may proscribe abortions altogether, "except when it is necessary to preserve the life or health of the mother." Roe, 410 US, at 164, 35 L. Ed. 2d 147, 93 S. Ct. 705 [at 732].
Id. at 428, 76 L. Ed. 2d 702, 103 S.Ct. at 2492.
The dissent, authored by Justice O'Connor, joined by Justices White and Rehnquist, carried the concept of flexibility *357 as to viability beyond that discussed in the majority. The dissent stated:
Just as improvements in medical technology inevitably will move forward the point at which the State may regulate for reasons of maternal health, different technological improvements will move backward the point of viability at which the State may proscribe abortions except when necessary to preserve the life and health of the mother.
In 1973, viability before 28 weeks was considered unusual. The 14th edition of L. Hellman & J. Pritchard, Williams Obstetrics (1971), on which the Court relied in Roe for its understanding of viability, stated, at 493, that "[a]ttainment of a [fetal] weight of 1,000 g [or a fetal age of approximately 28 weeks gestation] is . . . widely used as the criterion of viability." However, recent studies have demonstrated increasingly earlier fetal viability. It is certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant future. Indeed, the Court has explicitly acknowledged that Roe left the point of viability "flexible for anticipated advancements in medical skill." Colautti v. Franklin, 439 U.S. 379, 387, 58 L. Ed. 2d 596, 99 S. Ct. 675 [681] (1979). "[W]e recognized in Roe that viability was a matter of medical judgment, skill, and technical ability, and we preserved the flexibility of the term." Danforth, supra, [428 U.S.] at 64, 49 L. Ed. 2d 788, 96 S. Ct. 2831 [at 2838].
The Roe framework, then, is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception. Moreover, it is clear that the trimester approach violates the fundamental aspiration of judicial decisionmaking [sic] through the application of neutral principles "sufficiently absolute to give them roots *358 throughout the community and continuity over significant periods of time. . . ." A. Cox, The Role of the Supreme Court in American Government 114 (1976). The Roe framework is inherently tied to the state of medical technology that exists whenever particular litigation ensues. Although legislatures are better suited to make the necessary factual judgments in this area, the Court's framework forces legislatures, as a matter of constitutional law, to speculate about what constitutes "accepted medical practice" at any given time. Without the necessary expertise or ability, courts must then pretend to act as science review boards and examine those legislative judgments.
Id. at 456-58, 76 L. Ed. 2d at 720-21, 103 S.Ct. at 2506-07.
The significance of these holdings is that Roe was considered in 1973. Akron was argued in 1982, and we now have the case sub judice under consideration in 1988. In the 15 intervening years it is acknowledged that viability has been reduced to below 24 weeks, as opposed to 28 weeks under Roe. While there is no break in the underlying position that viability of the fetus determines when the state interest may be invoked on its behalf, as opposed to conception, the standards applied in Roe are no longer applicable for that determination.
This is the point at which I depart from the majority. Even assuming that a defense of justification based upon conception as put forth by appellant is fruitless because of holdings of Roe and legislative enactments such as the Abortion Control Act, that defense may still be available to late-term abortions as to viability. Since the majority wisely ignored waiver for failure to specify the justification defense under either sections 503 or 510, we may consider that defense as it applies to the entire spectrum of fetal life where viability is implicated. As Justice O'Connor stated in her Akron dissent, "It is certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant future. Indeed the Court has explicitly acknowledged that Roe left the point of *359 viability `flexible for anticipated advancements in medical skills'." Citations omitted. Id. at 457, 76 L. Ed. 2d at 720-21, 103 S.Ct. at 2507.
If viability has significantly been advanced and abortion services continue to apply the 1973 Roe standards, then a state interest in protecting fetal life is likely implicated in some cases. Fetal life is, therefore, protected in those instances and the defense of justification would be available to persons attempting to protect or save a fetus capable of surviving under the advanced medical standards. Unquestionably, clinics and hospitals can and do establish standards and controls to assure that no abortions are performed except in cases in which the fetus could not be viable under advanced medical technology. This may not, however, be presumed in the face of an offer of proof on the defense of justification.
This case, therefore, cannot be decided on the law promulgated under Capitola and Berrigan, supra. There, the danger to life was not imminent and there were no specific individuals who could be identified as being in danger nor could the actions of the protesters be effective in avoiding the greater harm.
In this case, the appellants conceivably could have produced evidence that viability had significantly advanced from the 28 weeks' criterion of Roe, that a viable fetus, who would survive under the advanced medical technology available, would be terminated and that the actions of the appellants would be effective in avoiding the greater harm as the fetus in that class would have been aborted before legal action would be taken. It is also clear that no legal alternative would have been effective in abating the harm. Thus the denial of the right to pursue the justification defense precluded the appellants from attempting to establish the proof of viability and the inherent right to protect life under the circumstances of this case.
It is acknowledged that this will be a difficult task and the proof may not be forthcoming, despite the offer. However, by rejecting the offer out of hand as to proof of *360 conception, appellants were also precluded from pursuing proof of earlier viability than recognized by the clinic under Roe.
It must be left for another day and to a higher court to pass on the right to intervene under the justification defense as it relates to conception. As of now, this Court, as an intermediate appellate court, is powerless to do so.
I would vacate the judgment of sentence and grant a new trial to permit the appellants the opportunity to invoke the justification defense in respect to the viability standard utilized by the clinic and the likelihood that viable fetuses might be aborted.
NOTES
[1] These appeals were consolidated by orders dated December 29, 1986, and January 27, 1987.
[2] Of course, some civil disobedience such as the Boston Tea Party or the work of the abolitionists calls into question the very moral authority of the government. Obviously, this is not what the appellants intended as on this appeal they seek the protection of a statutory defense promulgated by our government.
[1] The general defense of justification is usually thought of as the statutory designation of what had traditionally been termed in the common law as the defense of necessity. It might be said that the term "justification" is somewhat more apt than "necessity"; the latter is somewhat misleading since the term "necessity" reflects the notion that the act of the accused was inevitable and unavoidable rather than the voluntary choice of the actor. The defense of justification is also frequently described by the process of its application, such as "choice of evils", "competing harms", "compulsion", "balancing of harms", "balancing of evils", "balancing of competing values", and "confession and avoidance".
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373 Pa. Super. 429 (1988)
541 A.2d 391
Della SHULTZ, Appellant,
v.
NATIONWIDE INSURANCE COMPANY and State Farm Insurance Company, Appellees.
Supreme Court of Pennsylvania.
Submitted January 26, 1988.
Filed May 9, 1988.
*430 David J. Flower, Assistant District Attorney, Somerset, for appellant.
R. Thomas Strayer, Johnstown, for Nationwide, appellee.
Margaret A. O'Malley, Johnstown, for State Farm, appellee.
Before BROSKY, WIEAND and DEL SOLE, JJ.
WIEAND, Judge:
On January 17, 1985, a vehicle owned and operated by Della Shultz ran out of gas and was stopped in the southbound lane of Route 117 in Fayette County. Robert Geary, a passing motorist, observed Shultz's predicament, stopped his vehicle, and parked it, facing north, behind Shultz's vehicle in order to provide assistance. After gasoline had been obtained and while it was being poured into the tank of the Shultz vehicle, a vehicle operated by Mary Speelman struck the front of the Geary vehicle, pushing it backward into Della Shultz and pinning her between the rear of her vehicle and the rear of the Geary vehicle. As a result, Shultz was seriously injured.
On the date of the accident, the Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., had been repealed and replaced, effective October 1, 1984, by the Motor Vehicle Financial Responsibility Law of February 12, 1984, P.L. 26, No. 11, § 8(a).[1] The Motor Vehicle Financial Responsibility *431 Law, however, only "applie[d] to insurance policies issued or renewed on or after the effective date of [the] act." Section 9 of the Act of February 12, 1984, P.L. 26, No. 11.[2]
The Shultz vehicle was uninsured. The vehicle operated by Mary Speelman was insured by State Farm Insurance Company (State Farm) pursuant to a policy of insurance which had been issued under the Motor Vehicle Financial Responsibility Law of 1984. The vehicle owned by Robert Geary was insured by Nationwide Insurance Company (Nationwide) pursuant to a policy of insurance which had been issued under the No-fault law of 1974. It had not been renewed or reissued following repeal of the No-fault law and prior to the accident.
Shultz commenced an action for declaratory judgment against Nationwide seeking to determine Nationwide's liability for medical expenses and work loss benefits under the No-fault Act. Nationwide caused State Farm to be joined as an additional defendant. Subsequently, both insurance companies filed motions for summary judgment. State Farm's motion was granted because Shultz's claim against it was barred by the Motor Vehicle Financial Responsibility Law which, at 75 Pa.C.S. § 1714, provides as follows:
An owner of a currently registered motor vehicle who does not have financial responsibility . . . cannot recover first party benefits.
Nationwide's motion for summary judgment was also granted. On appeal, Shultz does not challenge the trial court's entry of summary judgment in favor of State Farm. She argues only that the summary judgment in favor of Nationwide was error.
In reviewing the summary judgment entered in favor of Nationwide, we need not determine whether an uninsured motorist who, following enactment of the Motor Vehicle Financial Responsibility Law, is involved in an accident with a vehicle insured under a policy of insurance still containing no-fault provisions is barred from recovering basic loss benefits from the insured vehicle's insurance carrier by the *432 provisions of the Motor Vehicle Financial Responsibility Law. Even if we determined that a claim by an uninsured motorist was not barred, appellant nonetheless would not be entitled to recover medical expenses and work loss benefits against Nationwide in this case. Section 204(a) of the No-fault Act provided as follows:
(a) . . . The security for the payment of basic loss benefits applicable to an injury to:
(1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee's employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim;
(2) an insured is the security under which the victim or deceased victim is insured;
(3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such vehicle;
(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause unreasonable risk of injury; and
(5) any other individual is the applicable assigned claims plan.
This section "in effect create[d] a hierarchy among potential sources of security" which were responsible for payment of basic loss benefits. "[T]he pertinence of each subsection must be considered seriatim that is, the applicability of each preceding subsection must be excluded before the next may be considered." Tyler v. Insurance Company of *433 North America, 311 Pa.Super. 25, 29-30, 457 A.2d 95, 97 (1983).
In the instant case, subsections (1) and (2) were clearly inapplicable. Appellant was not an employee and was not an insured under any policy of insurance at the time of the accident. Before proceeding further, it must be determined whether appellant was either the driver or occupant of her vehicle or a pedestrian or bystander at the time of the accident. If she were the driver or occupant of her vehicle, subsection (3) would require that she look to the security covering her vehicle and subsection (4) would have no application. Only if she were not an occupant of her vehicle, i.e., a pedestrian or bystander, could the security for the Geary vehicle become applicable and possibly require that Nationwide pay no-fault benefits. See: Hayes v. Erie Insurance Exchange, 261 Pa.Super. 171, 395 A.2d 1370 (1978).
In Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), the Supreme Court, in defining the term "occupying" found in an insurance policy, held that a person will be deemed an occupant of a motor vehicle if the following criteria are satisfied:
(1) there is a causal relation or connection between the injury and the use of the insured vehicle;
(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it;
(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and
(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.
Id., 504 Pa. at 336, 473 A.2d at 1009. Appellant, although conceding that elements (1), (2), and (4) were present, argues that she was not vehicle oriented but highway oriented at the time of the accident. We disagree. Appellant was engaged in refueling her vehicle by pouring gasoline into the tank. Because she was engaged in a transaction essential to its use, it is beyond serious dispute that she was *434 vehicle oriented. A similar result was reached by Gafni, J. in Porter v. CNA Ins. Co., 14 Phila. 276 (1986). Any other conclusion would be wholly unrealistic.
Appellant also argues that because subsection (3) of Section 204(a) of the No-fault Act can have no application, her vehicle having been uninsured, subsection (4) must be applicable and requires that Nationwide pay basic loss benefits. A similar argument was made and rejected in Schimmelbusch v. Royal-Globe Ins. Co., 247 Pa.Super. 28, 371 A.2d 1021 (1977). The Court said, "subparagraph (4) should be interpreted as written, and to apply to an uninsured claimant who was not an occupant of a car; namely, a pedestrian or bystander." Id., 247 Pa.Superior Ct. at 34, 371 A.2d at 1024.
Appellant in the instant case was not a pedestrian or bystander, but the driver and occupant of an uninsured vehicle which had been involved in an accident. As such, she was not entitled to recover from Nationwide Insurance Company. Therefore, the trial court properly entered judgment in favor of Nationwide Insurance Company.
Judgment affirmed.
NOTES
[1] See 75 Pa.C.S. § 1701 et seq.
[2] See Comment to 75 Pa.C.S. § 1701.
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115 Pa. Commw. 462 (1988)
541 A.2d 811
Nemacolin, Inc., Petitioner
v.
Commonwealth of Pennsylvania, Department of Environmental Resources, Respondent.
No. 1157 C.D. 1987.
Commonwealth Court of Pennsylvania.
Argued March 22, 1988.
April 26, 1988.
Argued March 22, 1988, before Judges CRAIG, DOYLE and PALLADINO, sitting as a panel of three.
*463 Peter U. Hook, for petitioner.
Katherine S. Dunlop, Assistant Counsel, for respondent.
OPINION BY JUDGE CRAIG, April 26, 1988:
Nemacolin, Inc. (Nemacolin) appeals from an order of the Environmental Hearing Board (board) granting the request for summary judgment of the Department of Environmental Resources (DER) and denying Nemacolin's appeal from a DER order directing that a swimming pool operated by Nemacolin be closed and drained and remain so until such time as Nemacolin secured a permit from DER to operate the pool.
The issues presented are (1) whether Nemacolin is precluded from arguing in this enforcement proceeding appeal that the statutory permit requirement does not apply to this pool by virtue of Nemacolin's failure to appeal DER's initial denial of the permit; (2) if Nemacolin is not so precluded, whether the statutory exclusion of condominium swimming pools from the definition of "public bathing place," except with respect to certain enumerated concerns, exempts such pools from the general permit requirement; (3) if it does, whether the design of the structure of a pool falls under DER's express *464 statutory authority to regulate "safety equipment" at condominium swimming pools, and (4) if the "safety equipment" exception does not apply, whether DER has the authority to disapprove the design of the structure and to stop the operation of this pool under a general mandate to abate nuisances.
History
The material facts are not in dispute.[1] In the summer of 1985 Nemacolin built a swimming pool on land in Fayette County commonly known as Nemacolin Woodlands. Nemacolin operated and maintained the pool on behalf of the Maples Condominium and the Laurel Pond Condominium for the exclusive use of residents of the condominiums and their guests. The pool is twenty-six feet wide and fifty feet long, with no diving board.
On July 29, 1985, after the pool was built, Nemacolin filed an application with DER for a Bathing Place Permit under the Public Bathing Law, Act of June 23, 1931, P.L. 899, as amended, 35 P.S. §§672-680d. DER denied the application, on September 20, 1985, because the pool's design included a slope that began at a point less than six feet from the water surface, a so-called "hopper bottom," in violation of section 2.6.5.1 of DER's Bathing Place Manual.[2] Nemacolin did not appeal *465 that denial. Nemacolin did, however, continue to operate the pool.
On August 22, 1986, DER entered the order referred to above requiring the closing and draining of the pool, and Nemacolin appealed that order to the board. The board affirmed in its order of April 28, 1987, granting summary judgment in favor of DER on the basis of its conclusions (1) that the legislature, even after a 1979 amendment, intended the permit requirement of section 5 of the Public Bathing Law, 35 P.S. §676, to continue to apply to condominium swimming pools because of DER's continued power to regulate broad areas of their operation, and (2) that the "hopper bottom" design of the structure of this pool falls within the scope of DER's continued power to regulate "safety equipment" at condominium pools under section 2(1) of the law, 35 P.S. §673(1). Nemacolin has appealed that decision.
Preclusion
DER contends that the principle of finality of administrative decisions precludes a party who has not appealed from an initial order of an administrative agency from later challenging collaterally in an enforcement proceeding the factual or legal basis for that initial order. In support of this proposition DER cites Commonwealth v. Derry Township, 466 Pa. 31, 351 A.2d 606 (1976) and Department of Environmental Resources v. *466 Wheeling-Pittsburgh Steel Corporation, 22 Pa. Commw. 280, 348 A.2d 765 (1975), aff'd and remanded, 473 Pa. 432, 375 A.2d 320, cert. denied, 434 U.S. 969 (1977).
These cases do indeed stand for the quoted proposition; however, that proposition does not apply to the present circumstances. Although the permit denial involved in the present case was an appealable adjudication, it was not an "order" to Nemacolin within meaning of the Derry Township line of cases. Unlike the orders involved in Derry Township, Wheeling-Pittsburgh Steel and other cases applying this principle, the permit denial involved here did not order Nemacolin to do or to refrain from doing anything. The denial did not alter the status quo in any manner; it did not create any new obligation or burden that was binding upon Nemacolin. Therefore, Nemacolin was not "aggrieved" by the permit denial. See Wheeling-Pittsburgh Steel, 22 Pa. Commonwealth Ct. at 284, 348 A.2d at 767. Consequently, the duty to appeal or forever forego any challenge to the factual or legal basis for the administrative action was not triggered.
Rather, Nemacolin's position was the same after the denial of the permit as it was before. Nemacolin remained under a general obligation not to operate this pool without a permit if a permit were required. That general obligation is what DER is attempting to enforce in this proceeding, not any particular duty on Nemacolin's part arising from the unappealed permit denial. Therefore, Nemacolin is not precluded, because of its failure to appeal from the permit denial, from arguing here that the permit requirement does not apply to this pool.[3]
*467 Permit Requirement
Section 5(a) of the Public Bathing Law, 35 P.S. §676(a), provides as follows regarding the need for permits:
It shall be unlawful for any person or persons, club, firm, corporation, partnership, institution, association, municipality or county to construct, add to or modify, or to operate, or continue to operate, any public bath house, bathing, swimming place or swimming pool, natatorium, or any structure intended to be used for bathing or swimming purposes, indoors or outdoors, without having first obtained a permit to do so or being in possession of an unrevoked permit.
Before 1979, section 2(1) of the Public Bathing Law, 35 P.S. §673(1) defined "public bathing place" in very broad terms:
A public bathing place shall mean any place open to the public for amateur and professional swimming or recreative bathing, whether or not a fee is charged for admission or for the use of said place, or any part thereof.
Section 2(1), was amended by the Act of July 12, 1979, P.L. 93, adding the following language:
Except with respect to the regulation of water supply and content, hygiene and plumbing and electrical facilities, and safety equipment, a public bathing place shall not include a swimming pool owned and operated for the exclusive use and enjoyment of residents of a condominium or *468 cooperative or their personal guests. (Emphasis added.)[4]
Both parties to this dispute acknowledge that the language of the amendment is ambiguous. Because of that ambiguity, the Statutory Construction Act permits the interpreting body to consider, among other things, "[t]he contemporaneous legislative history [of the statute]," 1 Pa. C. S. §1921(c)(7), for the purpose of ascertaining the intent of the legislature. The Environmental Hearing Board stated in its opinion that it was particularly persuaded in this case by DER's argument that the comments of one member on the floor of the House of Representatives to the effect that the only change the bill would accomplish would be to exempt condominium pool owners from the requirement of having a lifeguard on duty demonstrated an intent by the legislature to maintain regulation by DER over condominium pools in all other respects. However, the board erred in relying on those comments, because the Supreme Court has held that "what is said on the floor of the House or the Senate should not be relied upon in formulating legislative intent." Commonwealth v. Alcoa Properties, Inc., 440 Pa. 42, 46 n.1, 269 A.2d 748, 749 n.1 (1970), and this court has recognized that floor debates do not constitute legislative history for purposes of statutory interpretation. Crawl v. Pennsylvania *469 Housing Finance Agency, 98 Pa. Commw. 431, 437 n.7, 511 A.2d 924, 927 n.7 (1986).
In our view, a statutory amendment that removes entire categories from the definition of the subject matter covered by the statute must have been intended by the legislature to accomplish more than minor tinkering with the applicability of a single regulation. We cannot accept the thesis that the legislature, having expressly removed condominium pools from the definition of "public bathing place," then, through exceptions, intended to restore all previous aspects of regulation except with relation to lifeguards. To do so, rather than simply to say that condominium pools are exempt from the lifeguard regulation, would be a roundabout approach to legislating, to say the least.[5]
Rather, such a fundamental change in the definition of "public bathing place" appears to reflect a legislative policy decision to treat pools maintained and operated for the exclusive use of condominium residents and their guests more like private residential pools than like facilities open to the public. What we are construing is, after all, the Public Bathing Law,[6] and the particular section with which we are concerned seeks to differentiate between "public" bathing places and all others, which are presumably "private." Despite the failure of section 5(a), 35 P.S. §676(a), to employ "public bathing place" as a specific description of the scope of the permit requirement, DER does not rely on that subsection for a contention that permits must be obtained for all swimming pools or bathing places.
*470 Accordingly, the general provisions of the Public Bathing Law, including the permit requirement of section 5, no longer apply to condominium pools; they now are out of the "public bathing place" category and, although still regulated, are regulated as private bathing places. Not even DER contends that a private homeowner must obtain a permit from DER before he may install a pool in his back yard.
Although we recognize that, as DER illustrates in its brief, the permitting process is a fundamental tool by means of which many administrative agencies exercise their regulatory powers, this tool is not an exclusive or indispensable means for enforcing regulations. Many agencies, including DER, exercise substantive regulatory authority over a great many matters without using the permitting process.[7] As these proceedings illustrate, DER is not without resources to attempt to enforce its regulations in the absence of a permit. Therefore, the permit requirement is not a necessary element of DER's express power to regulate some aspects of condominium pool operation.
*471 "Safety Equipment" Exception
Having concluded that the general permit provisions of the Public Bathing Law do not apply to this condominium pool, we must now consider whether DER's expressly reserved power to regulate "safety equipment" at such pools under the 1979 amendment applies to the design of the structure of the pool. The 1979 amendment lists the matters relating to the operation of condominium pools over which DER maintains regulatory authority: water supply and content, hygiene and plumbing and electrical facilities, and safety equipment. DER argues forcefully that the structure of a pool is the most basic piece of safety equipment involved in the pool's operation.
Nevertheless, we believe that the interpretation that DER recommends is too broad. Because "water supply and content" and "hygiene and plumbing and electrical facilities" also relate significantly to the safety of a pool, these too would be classified as "safety equipment" under DER's interpretation. However, the legislature, in drafting the 1879 amendment, listed these other matters separately and equally. If "safety equipment" includes everything touching on the safe operation of a pool, then the separate listing of other matters that DER may continue to regulate is redundant and therefore mere surplusage. Of course, the legislature is presumed to have intended to avoid mere surplusage in the words, sentences and provisions of its laws, and the courts must construe a statute, if possible, so as to give effect to every word. Habecker v. Nationwide Insurance Company, 299 Pa. Super. 463, 445 A.2d 1222 (1982).
The term "safety equipment" plainly refers to personalty. Black's Law Dictionary 482 (5th Ed. 1979) defines "equipment" with reference to "furnishings" or *472 "articles." Pool structures, and necessarily the designs inherent in those structures, are normally real estate.
Hence, as a matter of statutory construction, the term "safety equipment" in section 2(1) of the Public Bathing Law does not include the design of the structure of the pool. If the legislators had intended the design of the structure to be among the enumerated matters subject to DER regulation, they readily could have said so. Therefore, the condominium pool involved here need not comply with DER's specifications regarding the design of the structure of a pool at a public bathing place.
Authority for Closure Under the Administrative Code
DER's final argument is based on section 1917-A of the Administrative Code of 1929, Act of April 9, 1929, as amended, 71 P.S. §510-17, which provides in part as follows:
The Department of Environmental Resources shall have the power and its duty shall be:
(1) To protect the people of this Commonwealth from unsanitary conditions and other nuisances, including any condition which is declared to be a nuisance by any law administered by the department;
. . .
(3) To order such nuisances including those detrimental to the public health to be abated and removed . . . .
Because we held above that this pool is not subject to the permit requirement of section 5 of the Public Bathing Law, we reject DER's argument that the pool is "declared to be a nuisance" under section 12, 35 P.S. §680c, because it was built and operated without the permit required by section 5, and therefore is subject to abatement under section 1917-A.
*473 DER also contends that this pool constitutes a public nuisance apart from the provisions of the Public Bathing Law, because the Environmental Hearing Board found that the pool had an inherently dangerous design feature. In point of fact, the board did not make such a finding, but rather based its holding that this pool was a nuisance on its conclusion that, under the Public Bathing Law, this pool was required to have a permit, and it did not have one. In other words, the board's holding was based entirely on its construction of the Public Bathing Law, and we have construed that law differently above.
However, even if the board had made the finding claimed by DER, we would reject DER's argument, which amounts to an assertion that any unsafe condition of anything in the Commonwealth is a "nuisance" within the meaning of section 1917-A, which DER has the authority to abate. We find nothing in section 1917-A to indicate that the legislature intended such an aggrandizement of DER's powers. If the pool at issue here is not within the scope of DER's statutory authority to regulate public bathing places, then it is not within the scope of some undelimited power of DER to abate nuisances generally.
Conclusion
Based on the foregoing, we conclude that the swimming pool operated by Nemacolin, Inc. for the exclusive use and enjoyment of the residents of the Maples Condominium and the Laurel Pond Condominium and their guests is not subject to the requirement of section 5 of the Public Bathing Law that pools which are public bathing places must obtain a permit from DER before they may operate. In addition, we conclude that the design of the structure of this pool is not within the scope of the enumerated aspects of condominium pool operation *474 that DER has power to regulate under section 2(1) of the law. Therefore, the Environmental Hearing Board committed error of law when it granted summary judgment in favor of DER in Nemacolin's appeal of the closure order DER issued against this pool. Accordingly, we reverse the board's decision.
ORDER
NOW, April 26, 1988, the order of the Environmental Hearing Board, at EHB Docket No. 86-546-R, dated April 28, 1987, granting summary judgment in favor of the Department of Environmental Resources against Nemacolin, Inc., is reversed.
NOTES
[1] As the board noted in its opinion, Nemacolin admitted all of the material facts relating to the construction of the swimming pool and to the earlier denial of its application for a permit in its answer to DER's motion for summary judgment or to limit issues. Nemacolin does not contend here that the board's disposing of this matter on summary judgment was inappropriate under these circumstances. See e.g., Summerhill Borough v. Department of Environmental Resources, 34 Pa. Commw. 574, 383 A.2d 1320 (1978).
[2] DER's revelant regulation provides: "The Department's pamphlet, `Bathing Place Manual,' Bureau of Sanitary Engineering Publication No. 16, may be used as a guide for determining compliance with the provisions of §§193.11-193.17 of this Title (relating to permits)." 25 Pa. Code §193.14.
Section 2.6.5.1 of the Bathing Place Manual states: "Walls of pools should be vertical for a minimum depth of at least six feet below the water level, but the walls may have a slope of not more than one horizontal to five vertical. Below this point the wall may be curved with a radius equal to the difference between the depth and six feet."
[3] DER also asserts that Nemacolin could have raised the claims it makes here in the application proceeding. However, that assertion is not correct, because Nemacolin could not consistently both ask DER for a permit and at the same time contend that no permit was required. Such a request would amount to asking the agency to perform an ultra vires act.
[4] Section 2(1) was amended to its current form in 1984 by a modification of the sentence added in 1979, as follows:
Except with respect to the regulation of water supply and content, hygiene and plumbing and electrical facilities, and safety equipment, a public bathing place shall not include a swimming pool, lake or pond owned, operated and maintained for the exclusive use and enjoyment of residents of a condominium or cooperative or members of a propertyowners association or the personal guests of such residents or members.
Act of July 9, 1984, P.L. 662.
[5] We do not dispute DER's assertion that, under the Statutory Construction Act, the construction of a statute by those charged with its administration and execution should not be disregarded unless clearly erroneous, 1 Pa. C. S. §1921(c)(8). In this case, however, we believe that DER's interpretation is clearly erroneous.
[6] Section 1, 35 P.S. §672, adopts that label as the official title. The title of a statute may be considered in the construction thereof. Fedor v. Borough of Dormont, 487 Pa. 249, 409 A.2d 334 (1979).
[7] For example, 25 Pa. Code §123.41, relating to limitations on visible emissions into the atmosphere, provides that no person shall cause, suffer or permit the emission into the outdoor atmosphere of visible air contaminants in such a manner that the opacity of the emission is either 20% or more for a period or periods aggregating more than three minutes in any one hour or 60% or more at any time. All sources of visible emissions in the Commonwealth must comply with these limitations, unless they are otherwise exempted. However, not every person contemplating an activity that will result in a visible emission, operating a home fireplace or backyard barbecue, for example, need first apply for a permit from DER. DER has the authority to enforce the regulation against such activities should they violate it, but that authority operates outside the permitting process.
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541 A.2d 1291 (1988)
STATE of Maine
v.
Sandra LAWRENCE.
Supreme Judicial Court of Maine.
Argued March 16, 1988.
Decided May 19, 1988.
*1292 R. Christopher Almy, Dist. Atty., Philip C. Worden (orally), Asst. Dist. Atty., Bangor, for plaintiff.
J. Hilary Billings (orally), Bangor, for defendant.
Before McKUSICK, C.J., and NICHOLS, WATHEN, GLASSMAN, SCOLNIK and CLIFFORD, JJ.
NICHOLS, Justice.
The Defendant, Sandra Lawrence, appeals from her conviction in the Superior Court (Penobscot County) on five counts of gross sexual misconduct and fifteen counts of unlawful sexual contact. The Defendant argues inter alia that the Superior Court erred by admitting evidence devoid of scientific reliability to the effect that four of the alleged victims exhibited behavior patterns symptomatic of sexual abuse.
An indictment returned in May, 1986, charged the Defendant with sexually abusing four children on numerous occasions between 1981 and 1985. At trial four months later each of these children testified to incidents of sexual abuse by the Defendant. The allegations that involved two of the children were substantiated by a pediatrician's testimony. As to the similar charges involving the two other children, two therapists took the witness stand and each declared that both children exhibited behavior patterns symptomatic of sexual abuse. The first therapist stated that the third child displayed noncompliant, inattentive, regressive and hyperactive behavior. She then posited that such traits are "across-the-board behaviors for [sexual abuse] victims." In a very similar vein the second therapist declared that the anxiety, fearfulness, guilt, introversion and depression that she observed in the fourth child were indications of sexual abuse. Each therapist was of the opinion that each child was a victim of sexual abuse. The Defendant now challenges the admission into evidence of the testimony of these therapists' without proof of their scientific reliability and acceptance by the scientific community.
The error the Defendant now claims was unpreserved at trial, but we find it to be an obvious error. Therefore, we sustain her challenge and vacate the convictions to which the therapists' testimony related.
This issue is governed by our recent decision in State v. Black, 537 A.2d 1154, 1157 (Me.1988). There we concluded that the trial court should not have permitted the proffered expert to testify that the alleged victim of sexual abuse displayed identifying characteristics in order to show that the child was in fact abused. "Whether described in terms of `indicators,' `syndromes,' `patterns,' or `clinical features' the objective of such evidence is to establish on the basis of present conduct that in the past someone has been subjected to a specific trauma. We conclude that the present record fails to demonstrate the scientific reliability of such evidence."
Based upon the record now before us, we draw a like conclusion. In order to be admissible the proffered expert testimony must be demonstrated to have sufficient reliability to satisfy the evidentiary requirements of relevance and helpfulness, and of avoidance of unfair prejudice to the defendant or confusion of the factfinder. Id. at 1156 (citing State v. Philbrick, 436 A.2d 844, 861 (Me.1981) (emphasis in original)); M.R.Evid. 403, 702. A significant factor in determining relevance and helpfulness is whether the scientific matters involved in the testimony have been generally accepted or conform to a generally accepted scientific theory. State v. Philbrick, *1293 436 A.2d at 861. There is a complete absence of evidence on the scientific reliability of the therapists' analytical techniques in this case. Because their testimony was the only means of bolstering the children's testimony that they were abused, we cannot say that the Defendant was not prejudiced by the admission. The convictions of abuse of the two children that were bolstered by the testimony of the two therapists must therefore be vacated.
The convictions of abuse of the other two children are, however, affirmed. The jury was properly instructed to consider each offense separately and independently. Absent a showing to the contrary, the jury is presumed to have followed the court's instructions. State v. Trafton, 425 A.2d 1320, 1324 (Me.1981). The Defendant has made no contrary showing here.
Because some of the sentences on the judgments of conviction we have affirmed are consecutive to sentences imposed on judgments of convictions we have vacated, we vacate the sentences on the affirmed convictions and remand those judgments to the Superior Court for resentencing.
We find no merit in the remaining issues raised by the Defendant.
The entry is:
Judgments of conviction on Counts I, II, X, XII, XIV, XVI, XVIII, XX, XXI, XXIII and XXIV vacated.
Judgments of conviction on Counts IV, V, IX, XI, XIII, XV, XVII, XIX and XXII affirmed, but the sentences thereon vacated as necessary.
Remanded for further proceedings consistent with the opinion herein.
All concurring.
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541 A.2d 551 (1988)
GUY J. JOHNSON TRANSPORTATION COMPANY, Employer Below, Appellant,
v.
Gene DUNKLE, Employee Below, Appellee.
Supreme Court of Delaware.
Submitted: February 11, 1988.
Decided: May 5, 1988.
Rehearing Denied: May 31, 1988.
Robert B. Walls, Jr., Wilmington, for appellant.
Joseph J. Rhoades of Young, Conaway, Stargatt & Taylor, Wilmington, for appellee.
*552 Before CHRISTIE, C.J., and WALSH and HOLLAND, JJ.
WALSH, Justice:
In this appeal from a Superior Court affirmance of a decision of the Industrial Accident Board (the "Board"), we are confronted with an issue of first impression: whether an employer has a right to a credit against an award of medical expenses for payments made to an injured worker through employer-provided medical insurance. We conclude that, under the circumstances of this case, the Board erred in refusing to permit such an offset. Accordingly, we reverse the decision of the Superior Court.
I
The issue presented on this appeal arose out of a claim for workmen's compensation filed with the Board by Gene Dunkle in October, 1985. Dunkle sought total disability benefits and medical expenses arising out of a work-related heart attack. Although the employer, Guy J. Johnson Transportation Company, initially disputed causation, it has appealed only that portion of the Board's decision which awarded Dunkle $26,403.80 in claimed medical expenses and related counsel fees. At the hearing before the Board, Dunkle offered as an exhibit in support of his claim for medical expenses a list of hospital and physician charges totalling $26,403.80. When counsel for the employer attempted to inquire into whether these claimed expenses had been paid, and by whom, the Board sustained the objection by Dunkle's counsel that the source of payment of the claimed medical expenses was irrelevant.
After the close of the hearing before the Board, but prior to the issuance of the Board's decision, the employer requested a reopening of the proceeding to present evidence that the medical expenses claimed by Dunkle had been paid on behalf of the employer, by its insurance carrier, Travelers Insurance Company, under a policy of medical insurance the premiums for which were paid solely by the employer. In rejecting this "offer of proof" the Board ruled:
These expenses were furnished as evidence to the Board by the claimant in case the Board found that the claimant because the claimant believes they are compensable under Section 2322(a). (sic) As such they were admissable, (sic) whether or not the claimant in this case has or does not have subrogation rights as espoused by the employer, is irrelevant to this hearing. In a case where the Board finds a compensable industrial accident, the employer is primarily liable for the claimant's medical expenses and evidence of what the claimant's medical expenses were is both relevant and admissable. (sic)
On appeal, the Superior Court affirmed the Board's rejection of the employer's offer of proof concluding that since the Workmen's Compensation Act did not expressly permit an offset for payments by the employer's medical insurance carrier, no such credit was permitted to reduce the employer's clear statutory duty to "furnish reasonable surgical, medical ... and hospital services" under 19 Del.C. § 2322(a).
II
It has long been recognized that the underlying purpose of workmen's compensation legislation is to provide a mechanism, free of the restrictions attendant upon traditional tort recovery, for replacing both lost earnings and earning ability caused by work-related injury. Kofron v. Amoco Chemicals Corp., Del.Supr., 441 A.2d 226 (1982). Of equal importance in the fixing of compensation is the need to assure that the expense of medical care and treatment does not fall upon the injured employee. The Delaware Workmen's Compensation Act (the "Act") authorizes benefits for both loss of earning ability, 19 Del.C. §§ 2324-2325, and permanent impairment of bodily function. 19 Del.C. § 2326. The Act also addresses the need to safeguard the employee from the expense of medical care by shifting that responsibility to the employer. Thus, 19 Del.C. § 2322(a) provides:
*553 (a) During the period of disability the employer shall furnish reasonable surgical, medical, dental, optometric, chiropractic and hospital services, medicine and supplies ... as and when needed....
The employer may discharge its statutory duties under the Act either directly as a self-insurer or indirectly through the securing of insurance. 19 Del.C. § 2372(a). With respect to its obligation to furnish medical care, the employer could presumably furnish such care directly and at its own expense. Employer initiated care is not only permitted under the Act but is entirely consistent with the Act's emphasis on prompt compensation. See 19 Del.C. § 2362.
While the Act contemplates full compensation, it is not intended to permit more than one recovery for a single loss. Thus, the amount of compensation benefits may be reduced or offset by the receipt of unemployment insurance benefits. Brooks v. Chrysler Corp., Del.Super., 405 A.2d 141 (1979).[1]
We do not accept the contention that there may be no offset of claimed benefits in the absence of express legislative authority permitting subrogation. The issue is not one of subrogation between insurers. In order for an employee to claim medical expenses incident to an award of compensation benefits he must present evidence that (a) he has incurred medical expenses, (b) such expenses are attributable to a work-related injury and (c) the employer has not paid such expenses as required by 19 Del.C. § 2322. The issue of subrogation emerges only if, in fact, those expenses have been paid by a third party who may, in turn, look to the employer or its workmen's compensation carrier for reimbursement. The question of offset emerges only after the employee has demonstrated entitlement to payment for medical care which the employer did "furnish" as directed by section 2322. No statutory authority is required to deny recovery for losses which did not, in fact, occur or expenses not, in fact, sustained. To hold otherwise would permit a double recovery or a windfall to the employee. Cf. Workmen's Comp. App. Bd. v. Olivetti Corp. of Amer., 26 Pa.Cmwlth. 464, 364 A.2d 735 (1976).
We are not persuaded by Dunkle's argument that permitting the reduction sought by the employer in this case will offend the "collateral source" rule, i.e., a person deemed legally responsible to another cannot claim the benefit of the ability of the injured party to recovery from a third party expenses related to that injury. Yarrington v. Thornburg, Del.Supr., 205 A.2d 1 (1964).
In Yarrington, this Court recognized that the collateral source rule was "firmly embedded in our law" but used the occasion to demonstrate a significant limitation on its applicability.
The collateral source doctrine is predicated upon the theory that a tortfeasor has no interest in, and therefore no right to benefit from, monies received by the injured person from sources unconnected with the defendant. The doctrine, however, does permit the tortfeasor to obtain the advantage of payments made by himself or from a fund created by him; in such an instance the payments come, not from a collateral source, but from the defendant himself. Cf. Chielinsky v. Hoopes & Townsend Co., 1 Marv. 273, 15 Del. 273, 40 A. 1127. Obviously, in the present case, the fund of $5000 was directly created by Thornburg. His purchase of the insurance and payment of premiums were the sole cause for the existence of the fund and we are unable to perceive any valid reason why he should not receive credit for the fund thus created by him.
Yarrington, 205 A.2d at 2-3.
While the holding in Yarrington arose in a tort context, its pertinence to the *554 law of workmen's compensation under the facts of this case is clear. The medical expenses claimed by Dunkle were paid prior to the hearing before the Board through medical insurance supplied by the employer at no cost to the employee.[2] By providing these medical insurance benefits the employer has discharged its statutory duty and as such, there was no authority for the Board to enter an award in the amount claimed. In refusing to receive evidence from the employer to that effect the Board erred as a matter of law.
III
Subsumed in the question of Dunkle's entitlement to recover medical expenses is the issue of the Board's allowance of a separate attorney's fee to Dunkle for recovery of medical expenses. The employer contends that since there was no actual recovery of disputed medical expenses in this case, there was no entitlement to counsel fees. We find this position also to have merit.
The award of a "reasonable attorney's fee" under 19 Del.C. § 2127 is required whenever there has been benefit to the employee by reason of the compensation proceeding. Coen v. Ambrose-Augusterfer Corp., Del.Supr., 463 A.2d 265 (1983). Although it is not necessary that the benefit be a monetary one, Willingham v. Kral Music, Inc., Del.Supr., 505 A.2d 34 (1985); aff'd, Del.Supr., 508 A.2d 72 (1986), the award must confer upon the employee an advantage or right, vis-a-vis his employer, which did not exist prior to the filing of the petition for compensation. Here, according to the proffer attempted by the employer, at the time Dunkle filed his petition for compensation, on October 15, 1985, the employer had already paid all but $2,064 of the claimed medical expenses. The employer claims that the unpaid balance was the result of oversight and discovered only during briefing and expresses a willingness to pay this amount. Since it clearly appears that the employee's compensation petition produced no benefit beyond the payment of the unpaid balance of medical expenses, any award of counsel fees must be limited to that benefit.
* * *
The decision of the Superior Court which affirmed the award of medical expenses and counsel fees is REVERSED and the matter is REMANDED to the Industrial Accident Board for further proceedings consistent with this opinion.
NOTES
[1] In Neuberger v. City of Wilmington, Del.Super., 453 A.2d 804 (1982), it was suggested that a reduction in workmen's compensation benefits could not be effected in the absence of a legislative directive. To the extent that this view is incompatible with our holding in this case, i.e., if the employee has not sustained an initial wage loss or incurred medical expenses because of employer-supplied benefits there is no compensable loss under the Act, such a holding is disapproved.
[2] The employer concedes that $2,064.00 of the total $26,403.80 claimed in medical expenses were unpaid at the time of the hearing before the Board. The Board was authorized to award this amount in the form of a direction to the employer to pay and this sum would be subject to the award of counsel fees.
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436 A.2d 369 (1981)
Barbara WOODS, Petitioner,
v.
DISTRICT OF COLUMBIA NURSES' EXAMINING BOARD, Respondent.
Nos. 80-240, 80-886.
District of Columbia Court of Appeals.
Argued April 7, 1981.
Decided October 9, 1981.
*370 Robert I. Berlow, Washington, D. C., Neighborhood Legal Services Program, for petitioner.
Edward E. Schwab, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D. C., were on the brief, for respondent.
Before NEWMAN, Chief Judge, and KERN and FERREN, Associate Judges.
NEWMAN, Chief Judge:
Petitioner seeks review of a decision of the District of Columbia Nurses' Examining Board revoking her license as a Registered Nurse (R.N.) (No. 80-240). She contends that this decision, which was based on conduct occurring in Maryland, and for which her Maryland R.N. license was revoked, deprived her of due process. She further asserts that the Board's subsequent denial of her application for reinstatement was constitutionally flawed (No. 80-886). We agree with petitioner's contentions concerning the reinstatement proceedings and thus we need not resolve the other issues presented by this appeal. We reverse and remand to the Board.
I
Petitioner was a Registered Nurse licensed to practice in both Maryland and the District of Columbia. She was employed as a night shift supervising nurse at the Wildwood Health Care Center, a 180-bed nursing home facility in Bethesda, Maryland. In early 1977, her coworkers began to complain about her performance. One nurse reported that a patient had not received her insulin for several days, although petitioner *371 had made entries in the patient's records indicating that insulin had been administered. Petitioner was also frequently observed sleeping while on duty, and another nurse reported that petitioner had failed to check a patient who had allegedly fallen. Petitioner received increasing pressure to resign. On February 28, 1977, the Administrator of Wildwood formally requested her resignation. When she refused, she was dismissed on March 15. Subsequently, the Maryland Board of Examiners of Nursing began proceedings to revoke her license.
The Maryland Board originally set a hearing for November 29, 1977, but then rescheduled it for February 28, 1978, at 9:00 a. m., for the sole convenience of the Board. On the morning of February 28, the Board telephoned petitioner's attorney and informed him that the hearing would be postponed again, until 2:00 that afternoon. The Board knew, however, that petitioner's counsel had a prior court commitment that would prevent him from representing her at the 2:00 hearing. Consequently she was forced to appear pro se at the Maryland hearing, because the Board refused to reschedule the hearing a third time in order to permit her attorney to attend.
In her testimony before the Maryland Board, petitioner denied most of the specific charges against her, attributing her difficulties at Wildwood to institutional crises,[1] interpersonal tensions, and a lack of communication. On March 28, 1978, the Maryland Board issued its findings and conclusions. The Board found petitioner guilty on certain of the charges and revoked her license.
In April, 1978, the District of Columbia Nurses' Examining Board received a copy of the Maryland revocation order and findings. On May 3, the Board voted to initiate disciplinary action. The Corporation Counsel's office prepared a letter of charges dated September 13, 1978, based upon petitioner's conduct in Maryland. The letter stated that the Board was proposing suspension or revocation of her license pursuant to D.C.Code 1978 Supp., § 2-407, for misconduct or professional incapacitation. It also stated that she was entitled to a hearing if requested within twenty days, and that she had the right to be represented by counsel and to present all relevant evidence. Petitioner did not receive this letter of charges, but she did receive a second copy, mailed November 8, 1978. She requested a hearing by letter dated November 25, in which she also informed the Board that the Maryland decision was being appealed.
A hearing date was set for February 14, 1979. Notice of this hearing, dated December 15, 1978, was served on petitioner's sixteen-year-old daughter on January 19, 1979. The notice also informed petitioner that the Board would issue subpoenas for any witnesses that she desired. Accordingly, petitioner wrote to the Board on February 8 and listed the names and addresses of seven witnesses that she requested to be summoned to the hearing.
The February 14 hearing was postponed until March 22, 1979. Petitioner was informed of the new date by telephone on February 27. She was also advised that for each witness she must submit a witness fee of $30 plus transportation costs by March 6. On March 4, petitioner mailed the witness fees for two of her witnesses: Barbara Lowell, the former Director of Nursing of Wildwood, and Theresa Kollapallil, a former employee of Wildwood who was familiar with the incident in which the patient had allegedly fallen. Subpoenas were issued for both these witnesses on March 15, but neither witness appeared. Ms. Lowell's *372 attorney telephoned the Board the day before the hearing and stated that the witness had "no desire to attend the hearing." Ms. Kollapallil did not receive her subpoena until several hours after the hearing was over. No further efforts were made to secure the presence of these or any other witnesses. Petitioner appeared pro se at the District of Columbia hearing.[2]
On May 25, 1979, two months after the hearing, the Board issued its findings and conclusions. Petitioner did not receive actual notice of the Board's decision, however until five months later, on October 27, 1979. She requested reconsideration of the Board's decision on October 29 by telephone. The same day, she filed a petition for review in this court (No. 79-1087).
Meanwhile, Ms. Woods had petitioned for reinstatement in Maryland. After a hearing on October 23, 1979, the Maryland Board granted her petition on November 9, based on her recent satisfactory employment performance as a psychiatric nurse at the Washington Hospital Center in the District of Columbia. She was placed on probation for one year.
On January 28, 1980, this court remanded petitioner's case (No. 79-1087) to the Board, because the Board's order of May 25, 1979 had failed to advise the petitioner of her right to appeal and of the time limit for such appeal. Petitioner then filed with the Board a Motion for Stay of Order of Revocation and for Temporary Reinstatement, based on the fact that her license had since been reinstated in Maryland. On February 6, 1980, the Board denied the motion and voted to uphold its previous decision. The Board reissued its May 25 findings and conclusions on March 4, 1980, with an additional sentence at the end describing the appeal procedure. Ms. Woods filed a timely petition for review in this court (No. 80-240.)
On June 30, 1980, petitioner and her attorney attended an informal meeting with the Board president, an Assistant Corporation Counsel, and the Board's staff nurse specialist. The Board informed petitioner that in order to obtain a new license she should simply file a new application along with the filing fee. Accordingly, on July 9, 1980, she applied for reinstatement. The Board denied her application without a hearing, by letter dated July 31, 1980. Petitioner timely sought review, (No. 80-886), and this case was subsequently consolidated with No. 80-240.
II
A. Right to a Hearing
The regulations governing occupational and professional licensing boards specifically deny the right to a hearing, with respect to all applicants for reinstatement following a revocation. 5 DD DCRR § 20.1. Petitioner asserts that she is entitled to a hearing under the District of Columbia Administrative Procedure Act (DCAPA), as well as the due process clause of the Constitution. We agree.
The right to practice one's chosen profession is a liberty interest for purposes of the due process clause; some kind of hearing must be afforded before an individual can be denied the right to practice his or her profession.[3]See Willner v. Committee on Character and Fitness, 373 U.S. 96, 102-03, 83 S. Ct. 1175, 1179-1180, 10 L. Ed. 2d 224 (1963); Greene v. McElroy, 360 U.S. 474, 492, 79 S. Ct. 1400, 1411, 3 L. Ed. 2d 1377 (1959); Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S. Ct. 752, 755-756, 1 L. Ed. 2d 796 (1957); Meyer v. Nebraska, 262 U.S. 390, 399-400, 43 S. Ct. 625, 626-627, 67 L. Ed. 1042 (1923); Dent v. West Virginia, 129 U.S. 114, 121-23, 9 S. Ct. 231, 233, 32 L. Ed. 623 (1889); Shaw v. Hospital Authority, 507 F.2d 625, 628 (5th Cir. 1975); cf. Barry v. Barchi, 443 U.S. 55, 64, 99 S. Ct. 2642, 2649, 61 L. Ed. 2d 365 (1979) (property interest in horse trainer's license entitled holder to a prompt postsuspension hearing). *373 Denial of petitioner's application for reinstatement effectively precluded her from practicing her profession in the District of Columbia just as much as did the initial revocation of her license. Thus, the due process clause of the fifth amendment guarantees petitioner a right to a hearing on her application for reinstatement.
Petitioner's application also falls within the definition of a "contested case" under the DCAPA, D.C.Code 1978 Supp., § 1-1502(8), because a hearing is required by the Constitution, and because the Board's action was "concerned basically with weighing particular information and arriving at a decision directed at the rights of specific parties." Schneider v. District of Columbia Zoning Commission, D.C.App., 383 A.2d 324, 326 (1978) (quoting Chevy Chase Citizens Association v. District of Columbia Council, D.C.App., 327 A.2d 310, 313 (1974)). Accordingly, petitioner is entitled to the specific procedural safeguards guaranteed by the DCAPA for contested cases. D.C.Code 1978 Supp., § 1-1509. Since the Board's regulations deprived petitioner of these procedural rights, the summary denial of her application cannot stand.
B. Vagueness
Petitioner also contends that the regulations governing the reinstatement process are void for vagueness. We agree.
The Council of the District of Columbia has broad authority to regulate business and professional licenses, and to promulgate regulations implementing these licensing powers. See D.C.Code 1978 Supp., § 47-2344; D.C.Code 1973, § 47-2345(a). See generally Proctor v. Hackers' Board, D.C.App., 268 A.2d 267, 296 (1970); Savage v. District of Columbia, D.C.App., 54 A.2d 562, 564-65 (1947). Pursuant to its licensing authority, the Council in 1972 issued a set of regulations, 5 DD DCRR §§ 1.1-60.4, applicable to twenty-one occupational and professional licensing boards, including the Nurses' Examining Board, id. § 1.1(b). These regulations in turn delegate to the various licensing boards the power to revoke or suspend licenses for any reason permitted by law or regulation governing the profession.[4]Id. § 1.2. In addition, the boards are authorized to reinstate licenses, in accordance with the following provision:
60.5 Reconsideration or Reinstatement
A person whose application for a license or renewal of a license has been denied or whose license has been cancelled, suspended, or revoked by the Board may, by filing a new application accompanied by the proper fee, request the Board to reconsider the matter. Upon showing of cause satisfactory to it, the Board may issue the license or renewal of license for which application has been made. [5 DD DCRR § 60.4 (emphasis added).][5]
Unduly vague regulations and statutes are constitutionally inadequate for two reasons. First, they deprive the individual of notice as to what conduct will be considered proscribed or required, or otherwise relevant to the agency's decision. Second, vague standards encourage arbitrary and *374 possibly discriminatory decisions. Specific standards or guidelines operate to protect individuals against the injustice that might otherwise result from the arbitrary exercise of unbridled administrative discretion. See generally Papachristou v. City of Jacksonville, 405 U.S. 156, 162-64, 92 S. Ct. 839, 843-844, 31 L. Ed. 2d 110 (1972); 1 K. Davis, Administrative Law Treatise §§ 3:9, 3:15 (2d ed. 1978); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960). This court has recognized "the danger of arbitrary administrative action based upon unarticulated and unannounced standards...." Miller v. District of Columbia Board of Appeals and Review, D.C.App., 294 A.2d 365, 369 (1972). "Unless there are some standards relating the prior conduct of an applicant to the particular ... activity for which [s]he seeks a license, the power to deny a license inevitably becomes an arbitrary, and therefore, unlawful exercise of judgment by one official...." Id. (footnote omitted; emphasis in original). See also Lewis v. District of Columbia Commission on Licensure to Practice the Healing Art, D.C.App., 385 A.2d 1148, 1152-53 (1978); Proctor v. Hackers' Board, supra at 270; White v. Roughton, 530 F.2d 750, 754 (7th Cir. 1976); Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968); Harnett v. Board of Zoning, Subdivision and Building Appeals, 350 F. Supp. 1159, 1161 (D.V.I. 1972); Pennsylvania State Board of Pharmacy v. Cohen, 448 Pa. 189, 198-201, 292 A.2d 277, 282-83 (1972). We hold that the regulation governing the Board's reinstatement decisions suffers from these defects and is therefore void for vagueness.
The test for determining unconstitutional vagueness is whether the language of the regulation is so vague, with respect to what conduct is either proscribed or required, that persons of common intelligence must necessarily guess at its meaning. See Papachristou v. City of Jacksonville, supra 405 U.S. at 162-63, 92 S.Ct. at 843-844; Lewis v. District of Columbia Commission on Licensure to Practice the Healing Art, supra at 1153. It is difficult to imagine a regulation that would require more guesswork on the part of an applicant. Section 60.4 contains no clues as to what grounds the Board might consider "satisfactory" or what criteria might be relevant to the Board's decision. The Board is apparently free to decide what is satisfactory on a purely subjective, ad hoc basis. And even if "satisfactory" cause is shown, there is nothing in the reinstatement regulation that requires the Board to reissue a license; the regulation merely states that the Board "may" issue the license if it chooses to do so. This language virtually invites arbitrary decisionmaking. See Proctor v. Hackers' Board, supra at 269-70 (Board may not suspend or revoke licenses "for any ... reason [the Board] may deem sufficient.")
In the Lewis case, supra, the Commission on Licensure to Practice the Healing Art had suspended Dr. Lewis' license on the ground that he had engaged in "misconduct" by failing to provide adequate supervision of employees administering acupuncture. This court held that the Commission had deprived Dr. Lewis of due process in suspending his license, because it failed to promulgate standards defining the term "misconduct," and thus provided no notice of what conduct was prohibited. Id. at 1151-53. See also Pennsylvania State Board of Pharmacy v. Cohen, 448 Pa. at 198-201, 292 A.2d at 282-83 (revocation or suspension of pharmacist's license on ground not specifically listed in statute held an impermissibly vague application of statute). Similarly, the Board's failure here to prescribe any criteria for reinstatement decisions is fatal to its attempt to deny petitioner's reinstatement.
Another defect inherent in § 60.4 is that it confuses the concepts of "reconsideration," which is essentially backward-looking, and "reinstatement," which is essentially forward-looking. Reconsideration posits that the original decision (here, revocation) may have been erroneous. Reinstatement, on the other hand, assumes that the Board's original sanction was properly imposed, but recognizes that, subsequent to the conduct for which she was disciplined, the applicant has rehabilitated herself professionally. *375 See, e. g., Miller v. District of Columbia Board of Appeals and Review, supra at 370.
The confusion engendered by § 60.4 and its failure to distinguish between these two concepts is readily apparent upon examining the Board's decision in this case. Petitioner applied for reinstatement, yet the Board treated her application as one for reconsideration, denying her petition on the ground that, because of the "nature of the charges" leading to revocation, the Board's "original decision to revoke, rather than to suspend, [her] license was appropriate." Petitioner contends that the Board acted improperly in looking to its original decision. Rather, she claims, the Board should have looked to events that occurred after the conduct for which her license was revoked, such as her satisfactory employment performance and her subsequent reinstatement in Maryland. We agree.[6]See id. (Board's conclusion that vendor's license applicant is not now rehabilitated cannot be supported by finding that he was convicted for narcotics possession two years earlier; Board must consider evidence of conduct subsequent to conviction). The Board's failure to consider factors that should have been relevant serves to emphasize and illustrate the problem created when an agency is left without guidance as to its decisionmaking.
In sum, the Board's denial of petitioner's application for reinstatement runs afoul of the due process clause on two grounds. First, petitioner was deprived of her constitutional right to a hearing on her application. But even a hearing would not cure the defects in the Board's decision, for we hold that § 60.4 of the Occupational and Professional Licensing Regulations is so vague as to deprive petitioner of due process because she was denied fair notice of the Board's criteria governing reinstatement. Without articulated standards to guide the Board's discretion, any hearing would be meaningless; petitioner would have no notice of what she would be required to prove. See White v. Roughton, supra at 754. Until such regulations are adopted, clearly setting forth the criteria upon which the Board will base its reinstatement decisions,[7] any decision by the Board is inherently arbitrary, and thus the Board has no grounds upon which it may validly deny petitioner's application.[8]
Reversed and remanded for proceedings not inconsistent with this opinion.
KERN, Associate Judge, dissenting:
I think we should decide the petition for review in No. 8-240 and that we should remand the record in No. 80-886, given the uncertain nature of the agency action we are asked there to review and the restraint always to be exercised by a reviewing court to avoid deciding cases on the basis of application of the Constitution if alternative grounds for decision existas is the case here.
The petition for review in this court in No. 80-240, which the majority disdains to decide, challenges the correctness of the respondent Board's revocation of petitioner's license as a registered nurse in the District of Columbia. I believe we have an obligation to the parties (and the community) to decide this particular petition.[1] Upon review of the record of proceedings before the Board I am satisfied that its notice to petitioner was sufficient, the conduct of its hearing was proper and its conclusion to revoke her license upon the basis of the revocation of her license by Maryland, after hearing her version of the underlying incidents, *376 was supported by substantial evidence and not flawed by an error of law.[2] Accordingly, I would deny the petition in No. 80-240.
The petition for review in No. 80-886 challenges a ruling by the Board on July 31, 1980, the meaning of which is not at all clear. The record is sparse, to say the least. It consists of a standard form of Application for Registration as a nurse, prepared, but not completely, and executed on July 9th by petitioner; a one-page Processing Check List that is incomplete; and, a two-paragraph letter by the Board to petitioner under date of July 31, 1980.
Petitioner asserts as the keystone to her argument in No. 80-886 that the Board's July 31st letter constitutes an order of denial of an application by her for reinstatement of her license, but candidly and correctly acknowledges "the statute under which the Nurses' Examining Board operated.... makes no provision for reinstatement or relicensing after revocation." (Pet. for Review, p. 2.)[3]
Moreover, the Application submitted by petitioner in July 1980 to the Board omits any reference at all to an event occurring subsequent to the Board's 1979 decision to revoke her license and upon which she now lays great stress in her brief: a probationary reinstatement by Maryland. Instead, petitioner attached to this form Application for Registration the transcript and record of the prior revocation proceeding. In sum, petitioner by the attachment to her Application appears to have been asking the Board to reexamine its 1979 revocation decision rather than to address post-decision developments.
In its letter of July 31st, the Board states, among others, that it "considered the nature of the charges upon which the Board revoked your license .... It is the unanimous decision of the Board that its original decision to revoke, rather than to suspend, your licensure was appropriate." This suggests that the Board reconsidered on July 31st its earlier decision to revoke petitioner's license rather than merely to suspend and concluded, upon the basis of the gravity of the petitioner's misconduct, viz., mistreatment of patients, to reaffirm its decision of revocation. While the Board's letter also does refer to petitioner's "application for relicensure," that application is not so denominated and refers only to the Board's prior hearing which led to the revocation of her license.[4]
In short, the record before us in No. 80-886 leaves unclear the following:
Whether petitioner was seeking by her Application of July 9, 1980 (more than one year after the Board's finding of misconduct on her part and conclusion to revoke her license) to have the Board reconsider its earlier revocation, the proceedings of which she attached to that application, or whether petitioner, one year having passed and her license having been restored on condition in Maryland, was seeking anew to be licensed by the Board; and,
Whether the Board treated her Application as seeking reconsideration and was standing by its original decision to revoke, or whether the Board was treating her Application as an application for relicensure and was denying it out of hand without a hearing, which would be clearly improper.
How the above questions are answered determines the appropriate scope of review by this court. Accordingly, I would remand No. 80-886 to the Board for further consideration appropriate to the changed circumstances.[5]*377 Miller v. District of Columbia Board of Appeals and Review, D.C.App., 294 A.2d 365 (1972).
I dissent.
NOTES
[1] Wildwood had changed directors three times during the year preceding the Maryland hearing. In early 1977, when Ms. Woods was dismissed, Wildwood was under investigation by the Immigration and Naturalization Service. This investigation led to the arrest of 25 employees as illegal aliens. See Washington Post, May 5, 1978, at C9, col. 4. In May, 1978, Wildwood was threatened with closure by Montgomery County officials, as a result of unsanitary conditions, inadequate staffing, and a failure to keep records of medication administered to patients. See id., Aug. 10, 1978, at C1, col. 6; id., May 11, 1978, at B1, col. 2; id., May 5, 1978, at C1, col. 2.
[2] Petitioner does not contend, nor do we conclude, that her appearance pro se at the District of Columbia hearing was anything less than completely voluntary.
[3] We note that initial license applicants and renewal applicants are accorded a hearing before denial. 5 DD DCRR § 20.1(a)-(c), (h).
[4] This provision is drawn from the statutory grant of authority to the Mayor to suspend or revoke licenses "when, in his judgment, such is deemed desirable in the interest of public decency or the protection of lives, limbs, health, comfort, and quiet of the citizens of the District of Columbia, or for any other reason he may deem sufficient," D.C.Code 1973, § 47-2345(a), including failure of the licensee to comply with the laws or regulations applicable to the licensed profession, id. § 47-2345(b). In this instance, the laws governing the profession are found in D.C.Code 1973 & 1978 Supp., §§ 2-401 to -410, by which the Nurses' Examining Board is authorized to suspend or revoke Registered Nurse licenses on grounds of misconduct or professional incapacitation, as was charged here. Id. § 2-407. The Council does have the power to articulate more specific grounds for suspension or revocation, as this is inherent in its power to enact licensing regulations. See Proctor v. Hackers' Board, supra at 269 n.8.
[5] The Board's power to reinstate licenses is derived specifically from D.C.Code 1973, § 2-406, which states in part, "The by-laws adopted by the Nurses' Examining Board shall define the conditions upon which the registration of a nurse may be restored." (Emphasis added.) By failing to define those conditions, the Board has failed to carry out the mandate of the statute.
[6] At any rate, the Board's treatment of petitioner's application as one for reconsideration makes no sense, as she had three and one-half months earlier petitioned this court for review of the Board's original decision. Moreover, she had already applied for reconsideration, and the Board had denied that request four months earlier.
[7] We express no opinion as to the vagueness of the regulations governing the revocation or suspension of licenses.
[8] Our decision, of course, applies to all occupational and professional licensing boards covered by Title 5 DD.
[1] Petitioner devotes 30 pages of her brief to this petition.
[2] I reject petitioner's contention that the Maryland proceeding of revocation was deficient and hence its findings were unavailable for use by the Board. See Nasem v. Brown, 193 U.S. App.D.C. 416, 421, 595 F.2d 801, 806 (1979). Contrary to petitioner's assertions, the record in my view reflects a full and fair hearing in Maryland and a "final" order by the Maryland Board.
[3] When read in context, D.C.Code 1973, § 2-406, upon which the majority relies (At 373, note 5), for the authority of the Board to reinstate licenses that have been revoked is not applicable to the situation here since petitioner had not allowed her registration to expire and therefore was not seeking to have it restored after expiration.
[4] Petitioner in her Petition for Review refers to informal advice she received from the Board "to file a new application," but this is not a matter of record.
[5] It is now more than two years since the Board determined to revoke petitioner's license and she has resumed nursing at least on a probationary basis.
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286 S.W.2d 617 (1955)
Charles William AKERS
v.
J.B. SEDBERRY, Inc., et al.
William Gambill WHITSITT
v.
J.B. SEDBERRY, Inc., et al.
Court of Appeals of Tennessee. Middle Section, at Nashville.
September 9, 1955.
Certiorari denied February 3, 1956.
*618 Harry Phillips, of Nashville, and Dave A. Alexander, of Franklin, for J.B. Sedberry, Inc., and Mrs. M.B. Sedberry, plaintiffs in error.
Roy A. Miles, and John J. Hooker, both of Nashville, for Charles William Akers and William Gambill Whitsitt, defendants in error.
Certiorari denied by Supreme Court February 3, 1956.
FELTS, Judge.
These two consolidated causes are before us upon a writ of error sued out by J.B. Sedberry, Inc., and Mrs. M.B. Sedberry, defendants below, to review a decree of the Chancery Court, awarding a recovery against them in favor of each of the complainants, Charles William Akers and William Gambill Whitsitt, for damages for breach of a contract of employment.
The principal question presented is whether complainants resigned their employment, or were wrongfully discharged by defendants; and if there was a breach of contract for which complainants are entitled to recover, there are some further questions as to the measure or extent of the recovery.
J.B. Sedberry, Inc., was a Tennessee corporation with its principal place of business at Franklin, Tennessee. Mrs. M.B. Sedberry owned practically all of its stock and was its president and in active charge of its affairs. It was engaged in the business of distributing "Jay Bee" hammer mills, which were manufactured for it under contract by Jay Bee Manufacturing Company, a Texas Corporation, whose plant was in Tyler, Texas, and whose capital stock was owned principally by L.M. Glasgow and B.G. Byars.
On July 1, 1947, J.B. Sedberry, Inc., by written contract, employed complainant Akers as Chief Engineer for a term of five years at a salary of $12,000 per year, payable $1,000 per month, plus 1% of its net profits for the first year, 2% the second, 3% the third, 4% the fourth, and 5% the fifth year. His duties were to carry on research for his employer, and to see that the Jay Bee Manufacturing Company, Tyler, Texas, manufactured the mills and parts according to proper specifications. Mrs. M.B. Sedberry guaranteed the employer's performance of this contract.
On August 1, 1947, J.B. Sedberry, Inc., by written contract, employed complainant Whitsitt as Assistant Chief Engineer for a term of five years at a salary of $7,200 per year, payable $600 per month, plus 1% of the corporation's net profits for the first year, 2% for the second, 3% for the third, 4% for the fourth, and 5% for the fifth year. His duties were to assist in the *619 work done by the Chief Engineer. Mrs. M.B. Sedberry guaranteed the employer's performance of the contract.
Under Mrs. Sedberry's instructions, Akers and Whitsitt moved to Tyler, Texas, began performing their contract duties in the plant of the Jay Bee Manufacturing Company, continued working there, and were paid under the contracts until October 1, 1950, when they ceased work, under circumstances hereafter stated.
In 1947, when these employment contracts were made, Mrs. Sedberry owned no stock in the Jay Bee Manufacturing Company. In 1948 she purchased the shares of stock in this company which were owned by the Glasgow interests, and in 1949 she purchased the 750 shares owned by her brother, B.G. Byars, and gave him her note therefor in the sum of $157,333.93, pledging the 750 shares with him as collateral to her note.
Glasgow had been general manager of the Jay Bee Manufacturing Company, but when he sold his stock, he was succeeded by A.M. Sorenson as manager. There soon developed considerable friction between Sorenson and complainants Akers and Whitsitt. The Jay Bee Manufacturing Company owed large sums to the Tyler State Bank & Trust Co.; and the bank's officers, fearing the company might fail under Sorenson's management, began talking to Akers and Whitsitt about the company's financial difficulties.
One of the bank's vice-presidents, J. Harold Stringer, made a trip to Franklin to see Mrs. Sedberry about the company's indebtedness to the bank. He told her that they could not get along with Sorenson and did not agree with the way he was managing the company's affairs. Mrs. Sedberry asked Stringer as soon as he got back to Tyler to see Akers and Whitsitt and discuss with them plans for the refinancing and the operation of the company; and thereafter the bank's officers had a number of conferences with Akers and Whitsitt about these matters.
While these matters were pending, Akers and Whitsitt flew to Nashville and went to Franklin to talk with Mrs. Sedberry about them. They had a conference with her at her office on Friday, September 29, 1950, lasting from 9:30 a.m. until 4:30 p.m. As they had come unannounced, and unknown to Sorenson, they felt Mrs. Sedberry might mistrust them; and at the outset, to show their good faith, they offered to resign, but she did not accept their offer. Instead, she proceeded with them in discussing the operation and refinancing of the business.
Testifying about this conference, Akers said that, at the very beginning, to show their good faith, he told Mrs. Sedberry that they would offer their resignations on a ninety-day notice, provided they were paid according to the contract for that period; that she pushed the offers aside "would not accept them", but went into a full discussion of the business; that nothing was thereafter said about the offers to resign; and that they spent the whole day discussing the business, Akers making notes of things she instructed him to do when he got back to Texas.
Whitsitt testified that at the beginning of the meeting Akers stated the position for both of them, and told Mrs. Sedberry, as evidence of their good faith, "we would resign with ninety-days notice if she paid us the monies that she owed us to that date, and on the other hand, if she did not accept that resignation, we would carry forth the rest of our business." He said that she did not accept the offer, but proceeded with the business, and nothing further was said about resigning.
Mrs. Sedberry testified that Akers and Whitsitt came in and "offered their resignations"; that they said they could not work with Sorenson and did not believe the bank would go along with him; and that "they said if it would be of any help to the organization they would be glad to tender their resignation and pay them what was due them." She further said that she "did not accept the resignation", that she "felt it necessary to contact Mr. Sorenson *620 and give consideration to the resignation offer." But she said nothing to complainants about taking the offer under consideration.
On cross-examination she said that in the offer to resign "no mention was made of any ninety-day notice". Asked what response she made to the offer she said, "I treated it rather casually because I had to give it some thought and had to contact Mr. Sorenson." She further said she excused herself from the conference with complainants, went to another room, tried to telephone Sorenson in Tyler, Texas, but was unable to locate him.
She then resumed the conference, nothing further was said about the offers to resign, nothing was said by her to indicate that she thought the offers were left open or held under consideration by her. But the discussion proceeded as if the offers had not been made. She discussed with complainants future plans for refinancing and operating the business, giving them instructions, and Akers making notes of them.
Following the conference, complainants, upon Mrs. Sedberry's request, flew back to Texas to proceed to carry out her instructions. On the way back, and while in Nashville, Friday evening, Akers telephoned her in Franklin to tell her that he had just learned that the bank had sued both the companies and process had been served that day. On the next morning, September 30, Akers had a conference with the bank officials about the refinancing of the company, the results of which he reported to Mrs. Sedberry by long-distance telephone conversation that day.
On Monday, October 2, 1950, Mrs. Sedberry sent to complainants similar telegrams, signed by "J.B. Sedberry, Inc., by M.B. Sedberry, President", stating that their resignations were accepted, effective immediately. We quote the telegram to Akers, omitting the formal parts:
"Account present unsettled conditions which you so fully are aware we accept your kind offer of resignation effective immediately. Please discontinue as of today with everyone employed in Sedberry, Inc., Engineering Department, discontinuing all expenses in this department writing."
While this said she was "writing", she did not write. Akers wrote her, but held up sending his letter, at the request of her brother, Mr. Byars, who was one of the officers of the bank in Tyler, Texas. Akers later rewrote practically the same letter and mailed it to her on October 16, 1950. Whitsitt also sent her a similar letter on the same day.
In his letter, Akers said that he was amazed to get her telegram, and called her attention to the fact that no offer to resign by him was open or outstanding when she sent the telegram; that while he had made a conditional offer to resign at their conference on September 29, she had immediately rejected the offer, and had discussed plans for the business and had instructed him and Whitsitt as to things she wanted them to do in the business on their return to Tyler.
This letter further stated that Akers was expecting to be paid according to the terms of his contract until he could find other employment that would pay him as much income as that provided in his contract, and that if he had to accept a position with less income, he would expect to be paid the difference, or whatever losses he suffered by her breach of the contract. Whitsitt's letter contained a similar statement of his position.
On November 10, 1950, Mrs. Sedberry wrote a letter addressed to both Akers and Whitsitt in which she said that "no one deplored the action taken more than the writer", but she did not recede from her position as expressed in the telegram. She stated her contention that the offers to resign had been without condition; and though she also said she would like to make an amicable settlement, no settlement was made.
As it takes two to make a contract, it takes two to unmake it. It cannot be *621 changed or ended by one alone, but only by mutual assent of both parties. A contract of employment for a fixed period may be terminated by the employee's offer to resign, provided such offer is duly accepted by the employer. Gentry Co. v. Margolius, 110 Tenn. 669, 674, 75 S.W. 959; Balderacchi v. Ruth, 36 Tenn. App. 421, 424, 256 S.W.2d 390, 391.
An employee's tender of his resignation, being a mere offer is, of course, not binding until it has been accepted by the employer. Such offer must be accepted according to its terms and within the time fixed. The matter is governed by the same rules as govern the formation of contracts. Nesbit v. Giblin, 96 Neb. 369, 148 N.W. 138, L.R.A. 1915D, 477, Ann. Cas. 1916A, 1008; 1 Labatt's Master & Servant (2d ed.) Section 181; Note, Ann. Cas. 1916A, 1011, 1012.
An offer may be terminated in a number of ways, as, for example, where it is rejected by the offeree, or where it is not accepted by him within the time fixed, or, if no time is fixed, within a reasonable time. An offer terminated in either of these ways ceases to exist and cannot thereafter be accepted. 1 Williston on Contracts (1936), Secs. 50A, 51, 53, 54; 1 Corbin on Contracts (1950), Secs. 35, 36; 1 Rest., Contracts, Secs. 35, 40.
The question what is a reasonable time, where no time is fixed, is a question of fact, depending on the nature of the contract proposed, the usages of business and other circumstances of the case. Ordinarily, an offer made by one to another in a face to face conversation is deemed to continue only to the close of their conversation, and cannot be accepted thereafter.
The rule is illustrated by Restatement of Contracts, Section 40, illustration 2, as follows,
"2. While A and B are engaged in conversation, A makes B an offer to which B then makes no reply, but a few hours later meeting A again, B states that he accepts the offer. There is no contract unless the offer or the surrounding circumstances indicate that the offer is intended to continue beyond the immediate conversation."
In Mactier's Adm'rs v. Frith, 1830, 6 Wend. N.Y., 103, 114, 21 Am. Dec. 262, 268, the rule was stated as follows:
"Although the will of the party making the offer may precede that of the party accepting, yet it must continue down to the time of the acceptance. Where parties are together chaffering about an article of merchandise and one expresses a present willingness to accept of certain terms, that willingness is supposed to continue, unless it is revoked, to the close of their interview and negotiation on the same subject, and if during this time the other party says he will take the article on the terms proposed, the bargain is thereby closed. Pothier Traite du Contrat de Vente, p. 1, sec. 2, art. 3, no. 31."
Professor Williston says:
"A reasonable time for the acceptance of most offers made in conversation will not extend beyond the time of the conversation unless special words or circumstances indicate an intention on the part of the offeror that it shall do so." Williston on Contracts (1938), Section 54.
Professor Corbin says:
"When two negotiating parties are in each other's presence, and one makes an offer to the other without indicating any time for acceptance, the inference that will ordinarily be drawn by the other party is that an answer is expected at once. * * * If, when the first reply is not an acceptance, the offeror turns away in silence, the proper inference is that the offer is no longer open to acceptance." 1 Corbin on Contracts (1950), Section 36, p. 111.
The only offer by Akers and Whitsitt to resign was the offer made by them in their conversation with Mrs. Sedberry. They made that offer at the outset, and on *622 the evidence it seems clear that they expected an answer at once. Certainly, there is nothing in the evidence to show that they intended the offer to continue beyond that conversation; and on the above authorities, we think the offer did not continue beyond that meeting.
Indeed, it did not last that long, in our opinion, but was terminated by Mrs. Sedberry's rejection of it very early in that meeting. While she did not expressly reject it, and while she may have intended, as she says, to take the offer under consideration, she did not disclose such an intent to complainants; but, by her conduct, led them to believe she rejected the offer, brushed it aside, and proceeded with the discussion as if it had not been made.
"An offer is rejected when the offeror is justified in inferring from the words or conduct of the offeree that the offeree intends not to accept the offer or to take it under further advisement (Rest. Contracts sec. 36)." 1 Williston on Contracts, Section 51.
So, we agree with the Trial Judge that when defendants sent the telegrams, undertaking to accept offers of complainants to resign, there was no such offer in existence; and that this attempt of defendants to terminate their contract was unlawful and constituted a breach for which they are liable to complainants. Nesbit v. Giblin, supra; Brady v. Oliver, 125 Tenn. 595, 147 S.W. 1135, 41 L.R.A., N.S., 60, Ann. Cas. 1913C, 376; Church of Christ Home For Aged, Inc. v. Nashville Trust Co., 184 Tenn. 629, 642, 202 S.W. (2d) 178, 183; Lazarov v. Nunnally, 188 Tenn. 145, 149, 217 S.W. (2d) 11.
The measure of recovery by each complainant is the salary and the percentages of the profits fixed in his contract during the unexpired part of the term of employment, less what he might, by due diligence, earn in some other employment. Godson v. MacFadden, 162 Tenn. 528, 531, 39 S.W. (2d) 287.
The Chancellor allowed Akers a recovery of $17,927.75, and Whitsitt a recovery of $4,200 (the salary of each less what he earned), and allowed each of them a recovery of 4% of J.B. Sedberry, Inc.'s net profits, before taxes, from October 1, 1950, to June 30, 1951, and 5% of such profits from June 30, 1951, to the expiration date of their respective contracts; but the amount of such profits not appearing in the proof, the Chancellor referred this matter to a Special Master for proof and a report.
Defendants contend that if complainants are entitled to a recovery for breach of contract, the Chancellor erred in allowing them the contract percentages of the profits of J.B. Sedberry, Inc., without taking into account the losses of the Jay Bee Manufacturing Company of Tyler, Texas. It is urged that J.B. Sedberry, Inc. was the parent and Jay Bee Manufacturing Company the subsidiary, and that any loss of the subsidiary was really a loss of the parent and should be deducted in ascertaining the profits of the parent.
We cannot follow this argument. The contracts themselves fixed the rule for measuring the recovery. Black v. Love & Amos Coal Co., 30 Tenn. App. 377, 383, 206 S.W. (2d) 432. They must be read as of the time they were made. At that time J.B. Sedberry, Inc. owned no interest in the other corporation. The parties could not then have contemplated any such deduction as that now claimed. Nor could they have foreseen any parent and subsidiary relation such as is alleged to have later arisen between the two corporations.
Moreover, we find no satisfactory proof of any such relation. It is true Mrs. Sedberry said she acquired the Jay Bee Manufacturing Company's stock bought the shares of Glasgow in 1948 and the shares of Byars in 1949, and transferred all of them to J.B. Sedberry, Inc. But her cross-examination, when asked if she had not pledged that 750 shares to Byars, she said, "Yes sir, but there was new stock issued. The old stock was you see, there was a new capital structure set up I just simply would have to get the record."
*623 There was, however, no proof as to what this new capital structure was, or whether any of the capital stock of the Jay Bee Manufacturing Company was owned by J.B. Sedberry, Inc. during the period in question. Nor was there any proof that J.B. Sedberry, Inc., as parent corporation, dominated or controlled the Jay Bee Manufacturing Company of Tyler, Texas, as its subsidiary.
Finally, defendants contend that if complainants are entitled to any recovery at all, such recovery should have been limited to the ninety-day period from and after October 2, 1950, because complainants themselves admitted that they had offered to resign upon ninety days notice with pay for that period.
The answer to this contention is that their offer to resign on ninety days notice was not accepted, but had terminated, and there was no offer in existence when Mrs. Sedberry undertook to accept their offers of resignation. Such attempt by defendants to terminate their contract was unlawful and was a breach for which they become liable for the measure of recovery as above stated.
Complainants assign error insisting that the Chancellor should have allowed them interest on the amounts of the recoveries from the several dates of their maturity. There is no merit in this assignment. The claims for damages under the contracts were not "liquidated and settled accounts" and did not draw interest under the statute, Code, Sec. 7305. Nor did the Chancellor abuse his discretion in disallowing interest. Tennessee Fertilizer Co. v. International Agr. Corp., 146 Tenn. 451, 473, 243 S.W. 81; Third Nat. Bank v. American Equitable Ins. Co. of N.Y., 27 Tenn. App. 249, 277, 178 S.W. (2d) 915, and cases there cited.
All of the assignments of error are overruled and the decree of the Chancellor is affirmed. Decrees will be entered here for complainants for the amount of the decrees below with interest. The costs are adjudged against defendants and the sureties on their cost bond. The causes are remanded to the Chancery Court for further proceedings not inconsistent with this opinion.
HICKERSON and SHRIVER, JJ., concur.
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510 Pa. 574 (1986)
511 A.2d 167
Patrisha McNEILL, Appellant,
v.
COMMONWEALTH of Pennsylvania, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellee.
Supreme Court of Pennsylvania.
Argued January 23, 1986.
Decided June 6, 1986.
*575 Terry L. Fromson, Philadelphia, for appellant.
*576 Richard F. Faux, Charles G. Hasson, Harrisburg, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
OPINION OF THE COURT
LARSEN, Justice.
The issue presented by this appeal is whether the Unemployment Compensation Board of Review (Board), appellee herein, erred in remanding this case for a second hearing before a referee, per the request of the employer, where the employer did not attend the first hearing and did not explain its absence or show other cause for the second hearing.
On June 13, 1983, appellant, Patrisha McNeill, was discharged from her position as a cashier at a Rite Aid drug store. On July 3, 1983, appellant applied for unemployment compensation benefits. The application was mailed to appellant's employer and, in response, the employer claimed that appellant had been discharged because she had failed to properly notify the employer of her absence from work during the week preceding her discharge. On August 9, 1983, the Office of Employment Security denied appellant's application on the ground of willful misconduct.
Appellant appealed and, after a hearing at which the employer did not appear, the referee issued a decision on September 7, 1983 reversing the determination of the Office of Employment Security, and awarding benefits to appellant. On September 13, 1983, appellant's employer wrote the following letter to the Board:
To whom it may concern,
We do not agree with the decision rendered by the referee on appeal # 83-1-D-647. The claimant Patrisha McNeill, (address omitted), should not be eligible for unemployment. The claimant was terminated for willful misconduct and the statement in fact-finding # 3 was *577 totally false. We wish to appeal and have a further hearing. Please notify (name and address omitted) when further appeal will be heard.
Letter dated September 13, 1983, Original Record at Item 9.
The Board thereupon allowed further appeal and issued a Board Hearing Order remanding the case for a second hearing before the referee "for the purpose of establishing additional testimony regarding the merits of the case."[1] Board Hearing Order dated October 18, 1983, Original Record at Item 11. Both parties appeared at that hearing and presented testimony. Thereafter, on December 2, 1983, based on the evidence presented at the second hearing, the Board issued an order reversing the referee's decision of September 7, 1983.
On appeal, the Commonwealth Court affirmed. We granted appellant's petition for allowance of appeal.
Appellant contends that the Board erred in remanding the case for a second hearing. Appellant maintains that a party may receive a rehearing only upon a showing of proper cause for its failure to attend the first hearing.
The standard of review by which both we and the Commonwealth Court are governed in this case is set forth in section 704 of the Code of Administrative Procedure, which provides, in pertinent part:
[A reviewing] court shall affirm the adjudication [of a Commonwealth agency] unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter A of Chapter 5 (relating to practice and procedure of Commonwealth agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary *578 to support its adjudication is not supported by substantial evidence.
2 Pa.C.S.A. § 704 (emphasis added).
Further, all requests for an additional hearing by a party who did not attend a scheduled hearing are governed by the Board's rule of procedure 101.24. That rule provides, in pertinent part:
§ 101.24. Reopening of hearing.
(a) If any party who did not attend a scheduled hearing subsequently gives written notice, which is received by the tribunal prior to the release of a decision, and it is determined by the tribunal that his failure to attend the hearing was for reasons which constitute "proper cause," the case shall be reopened. Any and all requests for reopening, whether made to the referee or the Board, shall be in writing; shall give the reasons believed to constitute "proper cause" for not appearing; and they shall be delivered or mailed preferably to the tribunal at the address shown on the notice of hearing or to the Unemployment Compensation Board of Review,. . ., or to the local employment office where the appeal was filed.
(b) A request for reopening which is received by the referee before his decision has been mailed to the parties shall be decided by the referee before whom the case is pending. . . .
(c) A request for reopening the hearing which is not received before the decision was mailed, but is received or postmarked on or before the 15th day after the decision of the referee was mailed to the parties shall constitute a request for further appeal to the Board and a reopening of the hearing, and the Board will rule upon such request. . . .
34 Pa. Code § 101.24 (emphasis added).
Thus, under this rule, the moving party must set forth the reasons for failing to appear at a hearing and the Board must make an independent determination that the reasons set forth constitute proper cause. There are sound *579 policy reasons which support this rule. The legislature created unemployment compensation in order to provide relief from the burden of "economic insecurity due to unemployment," 43 P.S. § 752, which it found to be "a serious menace to the health, morals, and welfare of the people of the Commonwealth." Id. The Board's rules of procedure were formulated with this purpose in mind and thus were designed to provide for the quickest possible disposition of claims.
Rule 101.24 is essential in this scheme. If a party fails to appear at a scheduled hearing, that party must show good cause for that failure before the Board will delay the final disposition of the case by remanding for additional hearings. Were it otherwise, there would be no incentive to appear at the initial hearing.
In the instant case, the employer's request for further hearing, although timely and in writing, did not "give the reasons believed to constitute proper cause for not appearing" at the first hearing. Consequently, the Board was unable to, and in fact did not, determine whether "[the employer's] failure to attend the hearing was for reasons which constitute proper cause."[2] Therefore, under rule 101.24, the Board's remand of the case was "not in accordance with law." 2 Pa.C.S.A. § 704.
Accordingly, the order of the Commonwealth Court is reversed and the decision of the referee granting unemployment compensation benefits to appellant is reinstated.
*580 McDERMOTT, J., did not participate in the consideration or decision of this case.
HUTCHINSON, J., filed a dissenting opinion.
HUTCHINSON, Justice, dissenting.
I dissent.
Although Commonwealth Court impermissibly engaged in fact finding[1] in order to reach its conclusion that the Board's remand to the Referee to take additional evidence was correct, I am convinced that its mandate affirming the Board on this point is correct on other grounds. For the reasons which follow, I would affirm on that other ground.
The majority opinion clearly sets forth the relevant facts. On September 13, 1983, the employer wrote the following letter to the Board:
To whom it may concern,
We do not agree with the decision rendered by the referee on appeal # 83-1-D-647. The claimant Patrisha McNeill, . . . should not be eligible for unemployment. The claimant was terminated for willful misconduct and the statement in fact-finding # 3 was totally false. We wish to appeal and have a further hearing. Please notify [our representative] . . . when further appeal will be heard.
Original Record at Item No. 9.
To my mind, the salient portion of that letter is the statement that the employer wishes to appeal and requests *581 notification of when such further appeal will be heard. My brethren have been misled, by the court below, into mischaracterizing this as a request to reopen a hearing. Were it so, the provisions of 34 Pa. Code § 101.24[2] would control.
I would hold, to the contrary, that the Board properly treated the employer's letter as an appeal and request for a remand hearing.[3] The Board then acted pursuant to Section 504 of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 824 (Supp.1985), and 34 Pa.Code §§ 101.101 and 101.104. Section 504 provides in pertinent part that, "The board . . . in cases where a further appeal is allowed by the board from the decision of a referee, may affirm, modify or reverse the determination . . . on the basis of the evidence previously submitted in the case, or direct the taking of additional evidence." 43 P.S. § 824 (Supp. *582 1985) (emphasis added). Likewise, 34 Pa. Code § 101.104(c), provides, inter alia:
The Board will review the previously established record and determine whether there is any need for an additional hearing. . . . [T]he Board, in its discretion, may direct the taking of additional evidence, if in the opinion of the Board, the previously established record is not sufficiently complete and adequate to enable the Board to render an appropriate decision.
In the present case, the Board exercised its discretion by ordering a remand hearing. In light of the employer's allegation that the referee's third finding of fact was false, I would hold that the Board did not abuse its discretion when it chose to permit the employer to introduce its evidence, even though the employer did not explain its absence from the original hearing before the referee.
I completely agree with the salutary purposes which the majority ascribes to the creation of the unemployment compensation fund. I cannot condone the employer's unexplained failure to attend the original hearing before the referee. Nonetheless, the Board has been granted discretion to determine whether it needs additional information in order to fulfill its responsibility of seeing that the facts are correctly determined. When the employer alleges that a claimant has obtained compensation by means of false testimony, I believe the Board has the power under Section 504 of the Law to investigate the allegation and remand for the additional evidence needed to determine the credibility of that allegation.
The central issue in the present case was whether appellant properly notified her employer regarding her absence from work on June 6-8, 1983. There is substantial evidence on the record, as developed after the remand, to support the Board's finding that she did not do so and that she was, therefore, discharged for willful misconduct pursuant to Section 402(e) of the Law, 43 P.S. § 802(e), and should be denied benefits. Negron v. Unemployment Compensation *583 Board of Review, 85 Pa. Commw. 137, 481 A.2d 699 (1984).
NOTES
[1] The order directed the referee to "serve as the Board's Hearing Officer," and, after transcription of the testimony was presented, to return the record to the Board "for its consideration and such further action as may be deemed appropriate."
[2] In affirming the decision of the Board, the Commonwealth Court stated that the record showed that the employer had not received notice of the first hearing and that that lack of notice constituted proper cause for the Board's remand. There is nothing in the record, however, to support the Commonwealth Court's statement. On the contrary, the record shows that the employer received the notice of appellant's application for benefits, and the notice of the referee's decision, both of which had been mailed to the employer at the same address as the notice of hearing. Furthermore, and even more importantly, the record shows that the employer never claimed that it had not received notice of the first hearing.
[1] Commonwealth Court stated:
Our review of the record reveals that the Office of Employment Security mailed its Notice of Hearing to the employer at the incorrect address. As a result, the employer failed to attend the initial hearing. At that time, the referee did not have sufficient evidence before him to evaluate the employer's position. The employer's not receiving the Notice of Hearing constitutes proper cause for the Board's grant of a further hearing. See 34 Pa. Code § 101.24(a) and Effort Foundry, Inc. v. Unemployment Compensation Board of Review, 52 Pa. Commw. 356, 415 A.2d 1263 (1980).
Commonwealth Court slip op. at 2 n. 2 (No. 3664 C.D. 1983, filed January 24, 1985). The conclusion that the employer failed to attend the original hearing before the referee because it did not receive notice, is not supported by the record.
[2] This regulation, found in the subchapter entitled "Provisions Governing Hearings Before the Department or Referee," details the requirements which must be met by a party who wishes to reopen a hearing.
[3] The record contains the following order by the Board, dated October 18, 1983:
Whereas, in connection with the above captioned claim(s) an application for further appeal has been filed from the above indicated Referee's decision; and Whereas, a review of the record discloses that a hearing is deemed proper, the case is remanded, for the following reasons and purposes, to the Referee, who will serve as the Board's Hearing Officer:
. . . .
To schedule a hearing for the purpose of establishing additional testimony regarding the merits of the case so that the Board, having allowed the further appeal, will have for its consideration complete information regarding all matters at issue.
Original record at Item No. 11.
The referee clearly understood the purpose of the remand hearing, as evidenced by his statement to the parties:
I, as Referee in this hearing shall take no part in any Decision which is to be made but will merely act as a Hearing Officer for the Board of Review, who will make the further Determination in the matter. The purpose of this hearing is to establish additional testimony regarding the merits of the case so that the Board having allowed the further appeal will have for its consideration complete information regarding all matters at issue.
N.T. November 1, 1983, at 2 (Original Record at Item No. 13).
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286 S.W.2d 664 (1956)
CITY OF DALLAS, Appellant,
v.
Joe PATTI, Appellee.
No. 15091.
Court of Civil Appeals of Texas, Dallas.
January 20, 1956.
Rehearing Denied February 17, 1956.
*665 H. P. Kucera, City Attorney; and Ted P. MacMaster and Fred W. Bankhead, Asst. City Attys., Dallas, for appellant.
McKool & Bader, Dallas, for appellee.
DIXON, Chief Justice.
This is an appeal from a temporary injunction in favor of appellee restraining appellant City of Dallas from "trespassing, entering upon, erecting or constructing any additional improvements, using and/or depriving the plaintiff of the use, benefit and enjoyment of any and upon any of the real property west of the present curb line on Foreman Street in Dallas, Texas, which is two feet inside the northeast property line of Lot 6, Block 1, City Block No. 1849 * * *." The lot in question is owned by appellee, Joe Patti.
The suit, instituted by appellee, is primarily an action for possession by appellee as alleged owner of a strip of land approximately 6.5 feet wide and 126.5 feet long, of which appellee alleges the City has dispossessed him. In addition to his request for a temporary injunction appellee prayed that possession of the premises be restored to him, and that he be granted a permanent injunction restraining the City as set out above.
Appellant City first answered appellee's application for a temporary injunction asserting that in this kind of a lawsuit a temporary injunction is not proper. Then answering to the merits, appellant pled a general denial, expressly denied that it has dispossessed appellee from property owned by appellee, and in the alternative pled a prescriptive right to the use and possession of the area for street purposes, pled that the City was in peaceful possession of the premises at the time suit was filed, had paved and built a curb on part of it before suit was filed, that either appellee or his predecessor in title had paid the paving assessmentwhich facts together with other facts amounted to a dedication of the disputed strip for street purposes, or an estoppel against appellee to deny a dedication.
The trial court heard evidence before granting the temporary injunction. In its order the court found that the City had constructed a concrete curb two feet inside Lot 6, owned by appellee; found also that the City was contending that it had a right of possession to three feet inside the property line of Lot 6; and found further that the City "has not acquired any right, title, interest or use in and to the three feet claimed by the defendant," and that by constructing the curb, appellant City had "deprived the plaintiff of the use, benefit and enjoyment of his said property." The temporary injunction restrained appellant City from trespassing, etc., as to any of the disputed land west of the curb.
Appellant's fourth, fifth, sixth, seventh, eighth, ninth and tenth points assert in substance that the trial court erred in granting the temporary injunction because it had the effect of accomplishing the whole purpose of the suit, because it transferred a peaceable but disputed possession of real property, because this is or ought to be an action in trespass to try title in which a temporary injunction is not proper, and because appellee has full, adequate and complete legal remedies.
We sustain the above named points. Appellant for some time had been in peaceable possession of the property. The temporary injunction should not have been granted because it disturbed the status quo and its effect, together with the findings of the court, was to grant appellee all the relief he might have obtained in a trial on the merits. James v. E. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959 (opinion adopted); Welsh v. Carter, Tex. Civ.App., 30 S.W.2d 354; 24 Tex.Jur. 140-141. Ordinarily temporary injunction is not a proper remedy in a trial of a right of possession of land. Under the circumstances of the case now before us, in which each of the disputants claims a right of possession, a suit in trespass to try title is proper and affords a full, complete and adequate legal remedy. City and County of Dallas Levee Imp. Dist. v. Carroll, 263 S.W.2d 307 (Ref. n. r. e.); Morgan v. Brannon, *666 Tex.Civ.App., 95 S.W.2d 509; Morgan v. Smart, Tex.Civ.App., 88 S.W.2d 769; Allen & Yarbrough v. Texas & P. R. Co., Tex.Civ.App., 7 S.W.2d 1102; Hill v. Brown, Tex.Com.App., 237 S.W. 252; Stokes v. Riley, 29 Tex. Civ. App. 373, 68 S.W. 703; 41-A Tex.Jur. 532.
Appellant has presented other points but as the above holdings are decisive of the whole appeal we see no need to discuss the other points.
The judgment of the trial court is reversed and judgment is here rendered denying appellee a temporary injunction.
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286 S.W.2d 285 (1956)
Dr. Oscar E. HUBBARD et ux., Appellants,
v.
HARRIS COUNTY FLOOD CONTROL DISTRICT, Appellee.
No. 12916.
Court of Civil Appeals of Texas. Galveston.
January 12, 1956.
Rehearing Denied February 2, 1956.
*286 Morris Bogdanow and Al L. Crystal, Houston, for appellants.
Burke Holman, County Atty. of Harris County, Madison Rayburn, Asst. County Atty., and James R. Gough, Sp. Asst. County Atty., Houston, for appellee.
GANNON, Justice.
Appeal by defendants in a condemnation suit. The parties will be referred to as in the trial court.
The case was tried solely on the issue of damages. There was a stipulation between the parties that the proceedings, including the condemnor's right to take and use an easement over defendants' land, were in all things regular and in accordance with law, and that value should be fixed as of June 17, 1954. It was also stipulated that "plaintiffs" duly and timely filed objection to the commissioners' award. We construe the word "plaintiffs" as used in that portion of the stipulation to mean defendants, Oscar E. Hubbard and wife, Alice, since apparently no objection was made to the commissioners' award of $9,949.70 by the plaintiff District, which paid that amount into court and presumably went into possession.
The petition seeks and the judgment awards an easement and right of way for the construction of flood control and drainage works across defendants' tract of land comprising 0.365 acre. The tract is located within the City of Houston at 1503 Wyndale Drive. It is bounded on the north by Bray's Bayou, is irregular in shape and generally speaking is in the Shamrock Hotel, Prudential Building and Medical Center area. The lot is approximately 230 feet in frontage on Wyndale and runs back north to the Bayou with an average depth of approximately 55 feet. Though stipulated to contain 15,405 square feet, the tract is treated by the parties as containing 15,899 square feet. According to defendants' witness, Holland, it is located in "a little, forgotten area that the City grew up around." Testimony on valuation of the land is widely variant, ranging from a low of 30 cents to a high of $3.25 to $3.50 per square foot. The only improvement is a wooden shack valued by the witnesses from a low of $1,344 to a high of $3,000. Both *287 of these values come from plaintiff's witnesses. The jury returned a verdict fixing the value of the land and improvements at $6,355.60. Plaintiff's witnesses strongly contend that the location of the tract on the Bayou, considered together with its size and shape, limit its usefulness to a point where the value of the land is hardly comparable to various other tracts in the vicinity, plaintiff assertingin this connection that the tract's location on the Bayou subjects it to erosion, and that because of its location and shape the cost of foundations for any suitable improvements would be disproportionately high and costly in relation to the cost of the improvements themselves.
Defendants bring the case to us on 20 points of error. Three of these, being points 15, 16 and 17, are not briefed and are, therefore, abandoned.
By their first point appellants cliam that the witness Gallagher was permitted to testify over their objection to the effect "That the taking of the defendants' property in condemnation was a necessity due to high waters, overflows and erosion at various portions of Bray's Bayou," saying that such testimony was prejudicial and calculated to cause the jury to base its verdict "upon the gain to plaintiff and not the loss to defendants." Not only have we carefully considered the statement made by defendants under this point, but we have read the testimony of the witness Gallagher in its entirety. We wholly fail to find therein any testimony that could possibly be construed as stating that the taking of the property in condemnation was a necessity, as claimed by defendants. The witness did testify that the property was located on the banks of Bray's Bayou and that it was subject to erosion which would necessitate relatively high cost for foudations should the property be improved. This testimony bore directly on the question of value. The witness' training and experience as a civil engineer rendered him competent to give it and the evidence was unquestionably relevant. We see no merit in this point.
Defendants' points 2, 3, 4, 5, 6, 8, 9 and 10, being eight in number, are grouped for statement and discussion. It is true that some of the points are similar, certainly overlapping, and frequently duplicitous, sometimes identical in part, but others are not germane to any in the group. We, therefore, break them down for discussion, treating together only those, or parts of same, which we consider germane to each other.
By their second, third, fifth, sixth and tenth points appellants raise the competency of the witness, W. E. Thompson, to testify as an expert. These points are largely argumentative, apparently taking the position that Thompson was not qualified as an expert, because he first saw the property some months after the agreed valuation date, to wit, on February 5, 1955, and because he did not testify there was no fluctuation in prices between June 17, 1954, the valuation date, and February 5, 1955. It is further claimed that the value of the property was not within the scope of this witness' knowledge, personal or otherwise, apparently because he neither bought, sold, leased, nor owned any comparable real estate in the area involved and because he had no information direct from the owners of property who had made sales in the area.
In Housing Authority of City of Galveston v. Henderson, Tex.Civ.App., 1954, 267 S.W.2d 843, we held that the statement of a valuation witness that he knows the market value of property is alone sufficient prima facie to warrant the trial court in holding the witness qualified and that any contradictory evidence would serve at most to weaken the prima facie showing.
Not only did the witness Thompson testify that he knew the value of the property as of the date in issue, June 17, 1954, but it appeared that he was a real estate broker and by profession a land appraiser, having been in the real estate mortgage and land trading business over fifty years, sixteen years of which he had been located in Houston. He regularly did appraisal work and had devoted himself for several years immediately before testifying mostly to appraising *288 for banks, individuals and institutions. The witness did testify he had not seen the particular tract in controversy before February 5, 1955, but that in accordance with the usage of his profession of appraiser he could reliably value the land as of June 17, 1954, assuming no material change in condition, which was established. The witness had investigated other property in the general area in 1954 and was generally familiar with values there as of June 17, 1954. On the basis of the witness' training, experience, observation and general familiarity with the area and taking into consideration various sales therein, he valued the subject property at $10,000.00, allocating $7,000.00 to the land and $3,000.00 to the building. The witness unreservedly testified that recent trends in the area had been upward but considered this piece of land of limited "usability." In this witness' opinion a cheap apartment building was the highest and best use for the land, taking into consideration other improvements in the general area. In estimating its value the witness took into consideration various other sales in the area, including a tract across the street of seven and a fraction acres, which the witness said was better located and which had recently sold for approximately $10,000 an acre. The witness had previously appraised land in the area in 1954. He testified he was about as familiar with values there as anybody "because my job has been to watch every sale made for 15 years."
It is apparent that the witness testified to a valuation as of June 17, 1954, not February 5, 1955. It is equally apparent to us that legally he was a competent witness to express himself on values as of June 17, 1954. It is not necessary that an expert on values should have personally either owned, leased or sold property in the area under inquiry.
We overrule these points.
By their fourth point appellants say it was error for the court to permit Mr. Thompson to testify as to values because he "did not take into consideration any comparable land in the area, he having merely limited himself to land south of Bray's Bayou and leaving out of consideration land north of the Bayou." On its face the point begs an issue which was sharply contested in the evidence. All of plaintiff's Witnesses on values drew a clear and marked distinction between land north of the Bayou on paved through thoroughfares upon which were located such structures as the Shamrock Hotel, the Prudential Building and Park Towers Apartments, and land south of the Bayou such as defendants' land which one of defendants' witnesses described as "a little forgotten area that the City grew up around." At best defendants' complaint goes properly only to the weight of the testimony. The point is overruled.
By their fifth point defendants complain of the court permitting Thompson to testify as to values not only on the basis of his incompetency as an appraiser, which we have already discussed, but "Because the values placed thereon by him were exceedingly lower than any comparable land in the area." In fact Thompson placed a higher value on the land and improvements than at least one other witness for the District, who was lower than Thompson by almost $4,000. At any rate, the complaint goes to the weight rather than the competency of the testimony. Defendants also say under this point that the testimony should not have been admitted because the witness took into consideration the prices paid in condemnation. We know of no principle of law under which an expert witness on land values must exclude from consideration prices voluntarily paid and received in the course of condemnation proceedings. The point is overruled.
By their eighth point defendants complain of the admission of testimony by the witness Pounds as to the relatively low price at which John F. Grant sold property in the area in 1950 because the time was too remote in the light of booming prices thereafter. If there is anything in the statement under the eight points, with which this point is grouped, referring to the complained-of testimony of the witness, Horace E. Pounds, we have not located it. The point is, therefore, *289 abandoned. However, it is actually somewhat related to the seventh point and we will discuss it under that point.
By their ninth point defendants complain that the testimony of the valuation witness, Weldon Hornsey, was incompetent (a) "because he neither owned, sold, bought, leased or appraised any comparable land in the area" and (b) "he wholly failed to take into consideration the value of said land for its highest and best use." As to (a), Mr. Hornsey was shown to be, by business and profession, a real estate man engaged in that business, actively for nine years, familiar with real estate conditions generally and particularly with the southwest section of the City of Houston, dealing frequently with property in the particular area under inquiry. He was a member of the National Association of Real Estate Boards, Texas Real Estate Association, Past President of the Pasadena Real Estate Board, Chairman of the Educational Committee of the Texas Real Estate Association, and of the National Association for two years. Real estate appraisals were a regular part of his business, He had taken occasion to make an analysis and survey of the subject area with the intention of making an appraisal of the subject tract and he testified that he was competent and able to appraise and place a value of the property as of June 17, 1954. He was legally competent to testify on values, as ruled by the trial court. Whether in arriving at his appraisal he took into consideration the value of the land for its highest and best use was, of course for the jury as triers of the facts. The point is overruled.
Under their seventh point defendants complain of the admitting in evidence of testimony by the witness Pounds in respect to the price defendants paid for their property on November 18, 1949, assigning" that the low price paid at that remote date was irrelevant and incompetent on the question of value on June 17, 1954, and highly prejudicial. As we have noted above, by their eighth point they complain of the admission of testimony concerning the sale by John F. Grant in March, 1950, of 1.03 acres of land claimed to be at a relatively low price.
Before further discussing these points, we quote 3A Tex.Jur., Title "Appeal and Error," Sec. 166, page 213, as follows:
"Section 166. Time of Objection. An objection to the admission of evidence, to be available in an appellate court, must have been timely made. That is to say, the objection must have been made when the evidence was offered, and not after it had been introduced. Indeed the `practice of permitting a question to be answered without objection, and, if perchance the answer be unfavorable, to then object to both question and answer, is not proper or fair practice.' Accordingly, if questions asked a witness are so framed as to apprise counsel of the nature of the answer attempted to be elicited, an objection comes too late when not made until the witness has fully testified. But if the incompetency does not appear until after testimony has been given, the proper practice is to move to have the evidence excluded in order that the point may be raised on appeal."
and the same volume and title, Section 164, page 209, where it is said "Even though an objection to testimony as improper is made, permitting the same testimony by subsequent witnesses without further objection may render the objection unavailing on appellate review."
See also Henderson v. Jimmerson, Tex.Civ. App.1950, 234 S.W.2d 710, 719, where it is said, "The rule is well established that error in admitting testimony is harmless if other evidence of the same facts are admitted and without complaint."
The proceedings to which we are referred under this point of error reflect that the witness Pounds testified that defendant, Dr. Hubbard, had advised him that the deed records properly reflected the price paid by Dr. Hubbard on November 18, 1949, for a larger tract of which the subject *290 tract was a part. The following then occurred:
"Q. Will you describe that larger tract in relation to the smaller one we are talking about?
* * * * * *
"A. John F. Grant sold to Oscar E. Hubbard, tract of land containing 0.788 acre November 18, 1949, recorded December 7, 1950 in volume 2012 page 2, the land located in the R. W. Rowe Survey abstract 645.
"Q. What is the consideration shown? A. $2500.00.
"Q. What is the total acreage in that deed? A. 0.788 acre.
"Mr. Crystal: May we have our objection, being too remote as to valuation?
"The Court: Overruled.
"Q. Has any of that land subsequently been sold by Doctor Hubbard? A. Yes, sir.
"Q. Will you state the facts about that? A. Doctor Hubbard sold a little more than half of the acreage that he bought 0.788 acre and he sold to Paul R. Cook 0.413 acrethat was a little more than half of what he purchased, and the consideration for that was $1,000.00."
It will be noted that the objection to the testimony did not come at the time the witness stated the consideration shown by the deed nor, in fact until after the witness had answered a later question in response to which he gave the total acreage conveyed by the deed. It will also be noted that counsel did not move to instruct the jury to disregard the testimony but only asked to have his objection to the testimony as being too remote on valuation, which objection the court overruled. Whether as coming too late the record does not reflect. We are not referred to similar testimony later given by the witness Hornsey but note from our own study of the statement of facts that while the witness Hornsey was on the stand he testified without objection or complaint by defendants to the Hubbard sale to Cook in 1949 and to the price which Hubbard had paid for the larger tract. This witness also testified without objection to the Grant sale in 1950, being of property adjoining that of Dr. Hubbard, totalling 1.03 acres, at $3,900 per acre.
We are inclined to agree with defendants because of very rapid increases in valuations and prices paid intervening between 1949-1950 and the valuation date at issue, that this testimony, had it been properly objected to, should not have been admitted but we are clear that under the authorities the point was waived by defendants for failure to make timely objection, for failure to move to instruct the jury not to consider the testimony and because they suffered other testimony of similar, not to say identical import, to be admitted without objection or complaint. Nor are we able to say on the whole record that the coming in of this testimony, even though not objected to, prejudicially affected the rights of defendants since the evidence given by all witnesses for the condemnor clearly reveals that these transactions in 1949 and 1950 were given but scant weight in arriving at their own estimates of value. Furthermore, no witness denied the rapid and large increases in valuations in the area generally between 1949-1950 and the valuation date at issue. We find no reversible error under either of these points.
Under points 11, 12, 13, 14, 18 and 19 appellants complain of the verdict as wholly inadequate and as contrary to the overwhelming weight and preponderance of the evidence. We overrule these points. It is true that defendants introduced evidence which would have justified a finding of a value of in excess of $3 per square foot for the land involved. None of these witnesses were shown to be any more competent than, if as competent as, witnesses for the condemnor, who valued the land at much lower figures. The jury verdict is for considerably less than the value placed on the land and improvements by the condemnor's *291 witness Thompson but it is more than that placed on the same land and improvements by the condemnor's witness Hornsey. When we look at the whole record and consider the irregular dimensions of the tract, the fact that it is not only quite shallow in depth but subject to erosion, that unlike certain other lands in the area improvements would have to be supported by especially costly foundations and perhaps revetments, and to the further fact that the jury's verdict reflects a value of approximately $13,700 on an acreage basis for defendants' land, which compares favorably with the approximately $10,000 per acre price paid for better situated and located land directly across from the subject tract, we do not feel warranted in rejecting the jury's verdict which has ample and somewhat convincing proof in condemnor's testimony. Under our system it is solely the function of the jury to resolve conflicts in evidence such as those of which defendants complain and we have no authority to usurp that function. These points are overruled.
By their last and twentieth point defendants complain of the refusal of the trial court to grant them a new trial on the grounds of newly discovered evidence, it being claimed that defendants, subsequent to the trial, unearthed for the first time the fact that the District did not propose to use all of the land for its own purposes but that it was to be devoted in part to a public highway.
It would appear from the record that defendants were in possession, during the course of the trial, of the very information upon which they rely as a basis for newly discovered evidence. However, wholly apart from the question of diligence their proof on this point which we have carefully considered is altogether inadequate. Its length and breadth is that defendants called to the stand the witness Coats, Chief Right of Way Agent for the condemnor. He was handed a map with which the witness testified he was familiar, as well as with "this drainage situation." The witness was then asked if the map showed Dr. Hubbard's property. He said it did. He was later asked if the map showed a proposed widening of Wyndale Road to include a part of the subject property. The witness said it did. The map was then offered in evidence for the purpose of a bill, which appellants have not troubled to make any part of the statement of facts. There is no proof of when, where or by whom the map was made or that it truly reflected the purpose of the Flood Control District in instituting the condemnation proceedings.
No other or further proof on the question of newly discovered evidence was offered by them. Defendants wholly failed to make an adequate showing for a new trial on the basis on newly discovered evidence. The point is overruled.
Affirmed.
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767 F. Supp. 1460 (1991)
DOMINION INVESTMENTS, An Indiana General Partnership, Plaintiff,
v.
Edward T. YASECHKO, Quadland Corporation, Ejjy Corporation, and Tewell Corporation, Defendants.
Civ. No. F 90-82.
United States District Court, N.D. Indiana, Fort Wayne Division.
June 26, 1991.
*1461 *1462 Gary J. Rickner, Thomas M. Niezer, Barrett & McNagny, Fort Wayne, Ind., for plaintiff.
T. Russell Strunk, Jr., Thomas M. Gallmeyer, Hawk Haynie & Gallmeyer, Fort Wayne, Ind., for defendants.
MEMORANDUM DECISION AND ORDER
WILLIAM C. LEE, District Judge.
This matter is before the court for a decision on the merits following a bench trial. The following Findings of Fact and Conclusions of Law are entered pursuant to Federal Rule of Civil Procedure 52(a), after having examined the entire record and after having determined the credibility of witnesses.
Findings of Fact
On February 21, 1989, after several weeks of negotiations, an Agreement to Purchase was entered into between Dominion Investments[1], as buyer, and 30/69 Corporation and Wealtha Meek, as sellers, for the purchase of the parcel of land located in Fort Wayne, Indiana, comprising Fortmeyer's Truck Stop, Meek Mack Truck Dealership and the surrounding properties. This property included the real estate which is the subject of this litigation. This Agreement to Purchase specifically recited that it was subject to a lease currently outstanding with Fortmeyers, Inc., the tenants at the truck stop. This lease had a termination option which would allow notice of termination to be given not earlier than August 10, 1989, with a provision that 75 days occupancy would be given after the notice of the termination. By virtue of this clause, Dominion would not be able to obtain possession of the real estate prior to October 25, 1989. This Agreement to Purchase specifically recited that closing was to take place on May 15, 1989.
After the above Agreement to Purchase was executed, Edward T. Yasechko, through realtor Stephen Wesner, expressed an interest in purchasing the Fortmeyer's property. Yasechko, a resident of Ohio, owns a forty percent interest in a family *1463 corporation, Quadland Corporation. The remaining sixty percent of Quadland's stock is divided equally among his four children. Edward T. Yasechko is also the Assistant Secretary of Quadland Corporation and is the dominating force in all major decisions of the corporation, such as buying real estate. Edward T. Yasechko is also President of Tewell Corporation, another family corporation which operates Yasechko's truck stops, and owns ninety percent of Tewell's stock. Edward J. Yasechko, the son of Edward T. Yasechko, is President of Quadland Corporation and is also an officer of Tewell Corporation in which he owns a ten percent interest. Edward J. Yasechko is also the majority shareholder of defendant EJJY Corporation.
On March 8, 1989, Chris Jones and Don Steininger as sellers, and Edward T. Yasechko, as buyer, entered into an Agreement to Purchase Real Estate (Purchase Agreement) for the sale of the Fortmeyer's property, commonly known as 3039 Goshen Road, Fort Wayne, Indiana. Stephen Wesner, the listing agent for the real estate, prepared the Purchase Agreement and accepted Yasechko's earnest money of $14,800.00.
The Purchase Agreement entered into by Edward T. Yasechko and Chris Jones and Don Steininger on March 8, 1989 contained the following relevant provisions (underlined portions denote hand or typewritten provisions; all other words are preprinted):
6.01. Seller shall deliver possession of the real estate to Buyer at closing subject to tenants rights.
* * * * * *
10.01. At the time Buyer's offer is made and as part of it, Buyer has deposited the sum of $14,800.00 as earnest money.
* * * * * *
11.01. The closing date shall be on or before May 15, 1989, subject to the provisions of Subsection 17.01.
* * * * * *
Section 12. OTHER PROVISIONS: Buyer indemnify Seller on EPA issues. Buyer to mound and plant common property lines. Buyer to grant a 50' easement for ingress/egress to the property to north and west as per the survey. Bldgs A & C to be torn down in a 12 month period. Bldg B to be torn down within six mo. after AGA Fleet Products lease expiration.
* * * * * *
17.01. Closing shall be held on the later of: (a) the date stated in Subsection 11.01; or (b) the date all conditions imposed by this agreement are satisfied [for example, title requirements are met, financing is available (if applicable), and surveying is completed]. The time and place of closing shall be agreed by the parties in good faith. Either party may, for convenience or accommodations of a closing agent or a lender, extend the closing date for not more than fifteen (15) days provided that the extension does not cause the Commitment to expire....
* * * * * *
17.05. If this transaction is not closed for failure of title to meet legal requirements, or for failure of Seller to convey by Deed as required, or to execute and deliver a contract, or other document as required, in each case as of the time of closing, buyer may terminate this Agreement (all earnest money to be returned without delay), and also pursue appropriate remedies available under Subsection 19.03.
* * * * * *
19.02. If Buyer breaches any of his obligations in this Agreement, Seller shall be entitled to recover, in addition to any remedies available under this Agreement, all reasonable costs and expenses, including attorney fees, incurred by Seller in enforcing Buyer's obligation.
* * * * * *
22.02. Time is of the essence of this Agreement.
Section 6.01 of the Purchase Agreement initially recited that possession would be given by October 31, 1989. However, at Edward T. Yasechko's suggestion, Wesner *1464 changed it to provide that Seller would deliver possession "at closing subject to tenant's rights." Wesner represented to Yasechko that Fortmeyers had the right to occupy the premises until October 25, 1989, but that Wesner would attempt to negotiate an early termination of that lease.
In the section of the Purchase Agreement entitled "Conditional Acceptance by Seller [Counteroffer]," the following provision was stated:
The Seller accepts the offer made by Buyer, SUBJECT, HOWEVER, TO THE FOLLOWING PROVISIONS: Buyer's acknowledging that Seller has fully executed Agreement to Purchase Real Estate and this transaction is contingent upon said purchase being completed. Purchase price to be $1,525,000.00.
Under the section entitled "Buyer's Acceptance of Seller's Counteroffer" was the following provision:
Buyer accepts and agrees to the provisions set forth above and Seller's counteroffer except purchase price of $1,500,000.00.
At the bottom of the Purchase Agreement was typed the following provision:
Seller's accept Buyer's purchase price of 1,500,000.00.
On May 8, 1989, Attorney Robert York, Edward J. Yasechko and Edward T. Yasechko were present at a meeting in Fort Wayne with the partners of Dominion Investments, Chris Jones and Donald Steininger, to discuss the closing to be held on May 15, 1989. At that meeting, Dominion presented York with original drafts of the following documents referenced in the "Other Provisions" of Section 12 of the Purchase Agreement:
a. Grant of Easement;
b. Easement Improvement Agreement;
c. Agreement regarding destruction of improvements on the Real Estate and rental payments therefrom;
d. Indemnity and Hold Harmless Agreement;
e. Waiver of Building Lien Violation;
f. Bill of Sale and Agreement to Indemnify.
However, much of the meeting was devoted to discussion of the possibility of the early termination of the lease agreement with the tenant on the Fortmeyer's property. At no time during this meeting did Robert York, Edward J. Yasechko, or Edward T. Yasechko indicate an unwillingness to execute the above-described documents.
Unable to get Jones and Steininger to agree to a modification of Section 6.01 of the Purchase Agreement, which concerned the subject of the tenant's rights, at the May 8, 1989 meeting, Edward T. Yasechko decided he did not want to close on the subject real estate in accordance with the terms of the Purchase Agreement. In fact, Yasechko had been displeased with the terms of the Purchase Agreement practically since the date he signed it. Yasechko's displeasure is evidenced by the fact that in mid-March 1989, when Chris Jones visited Yasechko's North Baltimore, Ohio truck stop, York introduced himself to Jones and informed Jones that he was going to "undo" the March 8, 1989 Purchase Agreement. At the time Jones did not give much thought to York's remark, which was made during a cocktail party. Even after the May 8 meeting, Yasechko and York, on behalf of Quadland, continued to negotiate over the terms of the instruments to be given pursuant to Section 12 with Jones and Steininger and did not inform them of Yasechko's intention to withdraw from the deal.
As part of the scheme to "undo" the Purchase Agreement, York advised Yasechko that if Quadland, as opposed to Yasechko, took title to the real estate, Yasechko could avoid the obligations imposed under the Purchase Agreement. York advised Yasechko that the Purchase Agreement lapsed on May 15, 1989 if the deal was not closed on that date, and if the closing date was not extended for any of the reasons set forth in Section 17.01. Thus, in a letter dated May 10, 1989, York advised Steininger that Quadland, rather than Yasechko, would be taking title to the real estate. On this same date York sent a letter to Kathy Hanley of Three Rivers Title requesting that she provide "information to Quadland Corporation, the assignee *1465 of the interest of Edward T. Yasechko as Purchaser in the Agreement to Purchase 10.19 acres from Chris Jones and Don Steininger." However, Dominion was not informed of the motive underlying Yasechko's desire to have Quadland take title to the real estate.
On May 10, 1989, Robert York, on behalf of Quadland Corporation, faxed a letter to Don Steininger which requested various documents, such as copies of all the proposed deeds, to be sent to York that day and also documents to be provided no later than Friday, May 12, 1989, such as the surveyor's certificate and affidavits from the selling parties. In that letter York also stated: "I am enclosing your proposed Indemnity and Hold Harmless Agreement to be executed by Quadland showing necessary additions and deletions.... Your full and prompt compliance with the requests stated herein is necessary to insure the closing of this transaction on May 15, 1989." Despite these statements, which clearly indicated that Quadland was a party to the March 8, 1989 Purchase Agreement, York and Quadland had no intention of signing any of the documents related to the provisions of Section 12 of the Purchase Agreement. Furthermore, such intention was never communicated to Dominion. Instead, York made corrections on the Indemnity and Hold Harmless Agreement and returned it to Steininger which gave the appearance that Quadland would be bound by the Purchase Agreement. On May 13, 1989, two days prior to the closing date set out in the Purchase Agreement, Dominion's conversations with Robert York confirmed that representatives of Quadland would be in Fort Wayne on May 15, 1989 for the closing.
On Monday, May 15, 1989, Robert York, acting as Quadland's attorney, and representatives of Quadland (Edward J. Yasechko, President, Larry Dietz, Controller, and Steve Lucack, Operations Manager) came to Fort Wayne to close on the Purchase Agreement signed by Edward T. Yasechko, and by their appearance acknowledged that Quadland did not want to be accused of breach of the Purchase Agreement. However, it became apparent early on that there were too many "loose ends" and that the closing would not take place on May 15th. These loose ends resulted from the complexity of the transaction as two sellers, Wealtha Meeks and 30/69 Corporation, were to convey a large block of property to Dominion, and then Dominion was to convey a portion of the total acreage to Quadland. Specifically, there were a number of questions that remained unresolved between Wealtha Meeks and 30/69 Corporation, from whom Dominion was to purchase the property. The sellers would not convey the property until they resolved these issues between themselves. There were also unresolved issues between Dominion and Quadland such as the exact description and ownership of the portion of the property subject to the right-of-way of an adjacent street. Mr. York wanted the conveyance to include only the property up to the right-of-way as opposed to the conveyance including the property up to the center of the street. Establishing the boundaries of the right-of-way was a difficult problem for the surveyor. These substantial survey problems were worked out on May 16th and May 17th and the documents relating to it were documents which both parties were interested in seeing generated.
Everyone left the closing office on May 15th with the understanding that all the parties were working toward a closing later that week but no specific date was set at that time. Later everyone agreed to be available on Friday, May 19th to close both of the real estate transactions. Dominion was led to believe that the Quadland representatives would return on May 19th, when the title company and the parties were ready to conclude the closing, and that the representatives would sign Dominion's documents at that time.
On Wednesday, May 17, 1989, Don Steininger faxed all of the Section 12 Documents to Quadland for its final approval and signature. On Friday, May 19, 1989, the title company had finished preparing for the closing, the survey had been completed, and all of the parties involved in the two real estate transactions that were to be simultaneously closed, except for Quadland, *1466 were present and prepared to close on the transactions as scheduled. Quadland, however, did not come to Fort Wayne as it had represented. Chris Jones contacted Quadland by phone and informed it that all the parties in the simultaneous closing were present and prepared to close except for Quadland. Jones stated that if Quadland did not close on that date, Dominion would retain the earnest money and sell the property to another buyer. Jones informed Quadland that it had until 1:30 p.m. that day to tender the purchase price or Dominion would consider the contract in default. York knew that the closing was to be a simultaneous closing and that Dominion would have to receive title to the property from third parties before it could convey the title to Quadland. In order to get title from the third parties, Dominion needed the purchase money from Quadland. Because Quadland had given the appearance by its statements and actions that it would be bound by the Purchase Agreement, Dominion came to the closing assuming it would have Quadland's money to pass on as part of Dominion's purchase money for the real estate from the third parties. Therefore Dominion did not arrange for alternate financing and went to the closing with no way to purchase the real estate from the third parties except with Quadland's money. The court finds that the conduct of Quadland's representatives evidences that they intentionally did not come to Fort Wayne on the closing date because they believed that Dominion could not close, would be in default under its purchase agreement with the third parties, and Quadland would have the opportunity to purchase the real estate directly from the third parties at a lower price and without the Section 12 obligations.
At 1:00 p.m. on May 19th, Robert York, on behalf of Quadland, telephoned the offices of Mr. Michael Mustard, the attorney for Wealtha Meek, and spoke with Ernest Evans, the representative for Three Rivers Title, the company which would be issuing the title insurance policy on the real estate Dominion was to convey to Quadland. York informed Evans that Quadland was faxing closing instructions to Mr. Mustard's office and would be releasing the purchase money to an escrow account Quadland had at Lincoln National Bank. The balance of the purchase price of $1,500,000.00 was transferred on that day from Quadland Corporation to Dominion Investments. Also on that day, a warranty deed was conveyed to Quadland Corporation by Dominion Investments, which document accurately sets forth the legal description of the Goshen Road real estate.
Although Chris Jones and Don Steininger had entered into the Purchase Agreement in their individual capacities, their partnership, Dominion Investments, conveyed the property. Similarly, Edward T. Yasechko's corporation, Quadland, accepted conveyance of the property as Quadland owns all the real estate that Yasechko has developed. This act of having the entities, rather than the principals, close on real estate transactions and convey or accept conveyance of property is a common practice in the Fort Wayne/Allen County community. The parties have stipulated that no assignment or written document of any form exists whereby Edward T. Yasechko granted to Quadland Corporation his rights and liabilities in the Agreement to Purchase Real Estate of March 8, 1989. However, as Ernie Evans of Three Rivers Title testified, the transfer of rights and obligations from principal to entity is rarely documented by a written assignment and is merely a "technical inconvenience" to the closing agent.
Throughout the four weeks following the May 19th closing, Steininger made several phone calls to Robert York at Quadland and left messages requesting that the documents relating to Section 12 of the Purchase Agreement be executed. Although it is clear that Quadland never intended to execute the documents, neither York nor any representative of Quadland responded to Steininger's messages to inform him of Quadland's position. On July 6, 1989, Steininger telephoned Edward J. Yasechko, President of Quadland, and talked with him about the outstanding documents in the real estate transaction. Yasechko indicated that he did not perceive that there *1467 was a problem even though he knew at that time that Quadland did not intend to sign the documents.
Finally, on August 16, 1989 Steininger sent a letter to Robert York detailing the documents which needed to be completed pursuant to the closing of May 19, 1989 and informed York that Dominion was considering filing a lawsuit. Dominion did not receive a response to Steininger's letter and thus Dominion filed a lawsuit against Quadland in Allen Superior Court on August 23, 1989, requesting a court order directing Quadland to execute the documents necessary to give effect to the March 8, 1989 Purchase Agreement.
In January 1990, Edward T. Yasechko indicated that he wished to discuss purchasing additional land from Dominion and that he was willing to discuss the lawsuit. However, Yasechko stated that he never negotiated with anyone who had a lawsuit outstanding against him. Consequently, Dominion proposed to Quadland that it would dismiss the lawsuit if Quadland would propose a date at which it would come to Fort Wayne to negotiate in good faith. Quadland accepted this proposal and represented that it would come to Fort Wayne on Friday, January 26, 1990, for this purpose. On January 23, 1990, Dominion dismissed its state court suit without prejudice.
On Friday, January 26, 1990, Edward T. Yasechko came to Fort Wayne and met with Steininger, Jones, and Stephen Wesner to discuss the purchase of additional real estate from Dominion, a purchase price for the additional property, and the fact that if the additional property was purchased, the documents regarding the easement which had never been signed by Quadland would no longer be an issue. Yasechko represented that he would have the property appraised and make Dominion an offer. After this meeting, many phone calls were exchanged between Wesner and Yasechko. However, no progress was made on either the execution of the documents or on the sale of additional real estate.
On May 21, 1990, Dominion Investments filed the present lawsuit against Edward T. Yasechko[2] and Quadland Corporation. In Count IV of their complaint plaintiffs allege that "Yasechko and Quadland have failed to provide Dominion with adequate consideration pursuant to the terms of the Sale Agreement for the sale of the Real Estate and Dominion seeks rescission of the Real Estate transaction." Essentially, plaintiff is claiming that the defendants' failure to comply with the terms of the Agreement has deprived the plaintiff of a substantial portion of the consideration for which it bargained for.
Following the closing on May 19, 1989 Quadland Corporation deeded a portion of the acreage to EJJY Corporation and Tewell Corporation who were named as additional defendants/counterclaimants in this case shortly before the case was tried. The defendants have made improvements to the parcel of real estate including the construction of a convenience store on the portion of land deeded to Tewell. This convenience store has a projected annual net profit of approximately $200,000.00. Dominion has not tendered to the defendants the sale price of the real estate or the cost of the defendants' improvements to the real estate.
Prior to the filing of this lawsuit Quadland Corporation negotiated to sell a small portion of the subject real estate to McDonalds Corporation. Three Rivers Title Company performed the title work on the transaction and issued a title insurance commitment before this suit was filed. However, this commitment was amended several times and during the course of amending the commitment Three Rivers Title discovered the pendency of this lawsuit and made an exception to the title insurance.
On July 27, 1990, Dominion filed a Lis Pendens Notice concerning the real estate in question with the Clerk of the Circuit *1468 and Superior Courts of Allen County. Three Rivers Title became aware of the lis pendens notice and required the release of the notice before insuring the title. McDonalds Corporation would not close until the title was insured and thus the sale to McDonalds Corporation was delayed. However, pursuant to stipulation of the parties and consent by the court, a certain 1.92 acre parcel of real estate was released from both the lis pendens notice and this lawsuit to permit defendants to convey marketable title to McDonald's Corporation, which occurred through a real estate closing on October 24, 1990.
Conclusions of Law
This court has jurisdiction founded upon diversity of citizenship and an amount in controversy pursuant to 28 U.S.C. § 1332.
In this case, plaintiff, Dominion Investments, seeks specific performance, compensatory damages, and punitive damages. The basis for Dominion's claims is the premise that the March 8, 1989 Purchase Agreement represents a valid and enforceable contract against the defendants, Edward T. Yasechko and Quadland. Dominion alleges that, as a result of their failure to execute the Section 12 documents, Yasechko and Quadland have breached their obligation as buyer under the terms and conditions of the Purchase Agreement. In their counter-claim, defendants allege that the plaintiff's action of filing this complaint has slandered the title to the real estate owned by Quadland Corporation, Tewell Corporation, and EJJY Corporation. Plaintiff denies that slander of title has occurred and submits that any difficulties the defendants have had in providing marketable title to the 9.84 acres is solely a result of the defendants' own conduct in failing to comply with the terms and conditions of the Purchase Agreement.
Dominion argues that two theories support its contention that the Purchase Agreement is an enforceable contract. First, Dominion claims that Quadland ratified Edward T. Yasechko's contract with Chris Jones and Don Steininger; second, Dominion claims that Yasechko assigned the contract to Quadland under the doctrine of equitable assignment.
Ratification is a question of fact and is defined as adoption of that which was done for and in the name of another without authority. Beneficial Mortgage Co. v. Powers, 550 N.E.2d 793, 796 (Ind. App.1990); Guaranty Bldg. and Loan Co. v. Wiley, 100 Ind.App. 438, 196 N.E. 153, 154 (1935). A ratification does not occur unless it appears that the act was performed for and on behalf of another, and not on account of the actor himself. Beneficial Mortgage, 550 N.E.2d at 796; Bryan v. Pommert, 110 Ind.App. 61, 37 N.E.2d 720 (1941). One may ratify another's unauthorized acts through silence and acceptance of the benefits attaching to such acts. Wright v. State, 266 Ind. 327, 363 N.E.2d 1221 (1977).
In this case, Quadland ratified Edward T. Yasechko's act of entering into the Purchase Agreement with Chris Jones and Don Steininger. First, it is clear from the evidence that Yasechko was acting for and on behalf of Quadland when he entered into the purchase agreement. Quadland owns the real estate on all truck stops in which Yasechko is involved. Also, Edward T. Yasechko and his son, Edward J., are the only shareholders of Tewell Corporation, which is the operating entity of the truck stops, and Edward T. owns 90% of Tewell's stock. Further, Edward T. is clearly the dominating force in all major decisions affecting the "family corporations", such as purchasing real estate.
Next, Quadland Corporation's own acts evidence that it ratified the act of Edward T. Yasechko, of entering into the Purchase Agreement with Chris Jones and Donald Steininger. Quadland appeared in Fort Wayne on May 8, 1990 and prior to closing by its attorney, Robert York, and its president, Edward J. Yasechko, together with Edward T. Yasechko, to negotiate over the form of the Section 12 documents relating to the Purchase Agreement. Quadland returned a corrected version of the Indemnity and Hold Harmless Agreement by cover letter prepared by Quadland's attorney, Robert York, dated May 10, 1990 with the *1469 statement that the document was "to be executed by Quadland". Quadland asked for Don Steininger's full and prompt compliance with the request, sent by its attorney, Robert York, in his May 10, 1990, letter, in order to "insure closing of the transaction on May 15, 1989," in accordance with the Purchase Agreement. Quadland failed to communicate at any time prior to May 15, 1990, or at any time thereafter prior to the filing of suit, that Quadland did not intend to be bound by the provisions of the Purchase Agreement.
It is a common practice in the Fort Wayne/Allen County community for the principals of a corporation or partnership to enter into a real estate contract in their own names and then have the corporation or partnership conclude the deal. In fact, in this case, Don Steininger and Chris Jones personally entered into the Purchase Agreement with Edward T. Yasechko, but the title to the property was conveyed by their partnership, Dominion Investments. Thus, there was nothing unusual in the fact that Quadland concluded a deal and accepted title to property in which Edward T. Yasechko had signed the Purchase Agreement. Thus, the court concludes that Edward T. Yasechko was acting on behalf of Quadland when he entered into the Purchase Agreement, and that Quadland ratified Yasechko's act. Consequently, Quadland is bound by the provisions contained in the Purchase Agreement.
The court finds that York and Yasechko erred in believing that Yasechko could simply walk away from the Purchase Agreement if the closing did not take place on May 15th. First, the Purchase Agreement at Section 17.01 states that the closing date is to be extended until surveying is completed. Surveying was not yet complete on May 15th. Second, Section 17.01 states that the closing date is to be extended for the convenience of the closing agent. In this case, the closing agent was not able to prepare the closing documents on May 15th because none of the parties were ready to close. Third, Section 17.01 states that the time and place of closing shall be agreed by the parties in good faith. Here, the parties each agreed to work on getting their business in order in time to close by the end of the week and then agreed to meet on Friday, May 19th for the closing. Fourth, Section 17.05 states that if the transaction is not closed for specified reasons, "buyer may terminate this Agreement." (Emphasis provided). Clearly, Section 17.05 implies that the buyer is required to give notice to the seller if the buyer elects to terminate the Purchase Agreement. In this case, Yasechko not only failed to notify Dominion of his desire to avoid the Agreement, he continued to act as though he intended to fully comply with all of the terms of the Purchase Agreement.
Next, the court will consider plaintiff's claim that an equitable assignment occurred. Since equity disregards mere form, no particular words or particular form of instrument is necessary to effect an equitable assignment, but any language, however informal, if it shows the intention of the owner of a chose in action to transfer it so that it will be the property of the transferee, will amount to an equitable assignment. 6 Am.Jur.2d, Assignments § 83 (1963). However, where the statute of frauds applies, the general rule is that an assignment must likewise be in writing. Id. at § 86. The Indiana Statute of Frauds, I.C. 32-2-1-1, provides that:
No action shall be brought in any of the following cases:
* * * * * *
Fourth. Upon any contract for the sale of lands;
* * * * * *
Unless the promise, contract or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized,....
Pursuant to a stipulation set forth in the parties pre-trial order, approved by this court on November 9, 1990, the parties have agreed that, "No assignment or written document of any form exists whereby *1470 Edward T. Yasechko granted to Quadland Corporation his rights and liabilities in the Agreement to Purchase Real Estate of March 8, 1989." Thus, there is no writing which satisfies the statute of frauds requirement and the defendants conclude that any alleged oral contract assigning the March 8 contract from Mr. Yasechko to Quadland is unenforceable. However, the question before the court is not whether the assignment is enforceable as between Yasechko and Quadland but whether Dominion has the right to enforce the March 8 contract against Quadland, as assignee of Yasechko. There is no legal authority to support defendants' apparent contention that the assignment between Yasechko and Quadland must have been in writing in order for Dominion to be able to enforce the contract for the purchase of land against Quadland, as assignee.
The court finds that an assignment existed between Yasechko and Quadland. York, as attorney for Quadland, represented that Quadland was the assignee of Yasechko's interest under the Purchase Agreement. Indiana law is clear that an assignee of a contract takes the assignor's rights, and also becomes subject to the assignor's burdens. Lake County Trust Co. v. Household Merchandising, Inc., 511 N.E.2d 512, 514 (Ind.App.1987). Furthermore, the assignor remains liable on the contract assigned unless the other contracting party has consented to release him. Boswell v. Lyon, 401 N.E.2d 735, 743-44 (Ind.App.1980). Consequently, Quadland, as assignee of the Purchase Agreement, is liable for failure to perform under the contract, and since there is no evidence that Dominion released Yasechko from his obligations under the Purchase Agreement, Yasechko continues to be liable for Quadland's failure to perform under the contract. However, Dominion did not present any evidence at trial which would show that Tewell or EJJY are liable under the contract. Nor did Dominion make any arguments, either during final arguments or in its post-trial briefs, that it is entitled to recover from Tewell or EJJY[3]. Consequently, the court finds that Tewell and EJJY are not liable to Dominion for breach of the Purchase Agreement.
Next, the court will determine whether any of the defendants committed constructive fraud. Constructive fraud is fraud that arises by operation of law from conduct which, if sanctioned by law, would secure an unconscionable advantage. Lawshe v. Glen Park Lumber Co., 176 Ind.App. 344, 375 N.E.2d 275, 278 (1978); Hoosier Ins. Co. v. Ogle, 150 Ind.App. 590, 276 N.E.2d 876 (1971). A claim of constructive fraud can be based on promissory misrepresentations if the misrepresentations are false, cause a reliance upon such representation to the detriment of the promisee, and create an advantage for the promisor. Eby v. York-Division, Borg-Warner, 455 N.E.2d 623, 628 (Ind.App. 1983); Blaising v. Mills, 176 Ind.App. 141, 374 N.E.2d 1166 (1978); Lawshe v. Glen Park Lumber Co., 176 Ind.App. 344, 375 N.E.2d 275 (1978). In the case at bar, Edward T. Yasechko and Quadland purposely and maliciously misrepresented to Dominion that Quadland intended to take title to the real estate as an assignee of Edward T. Yasechko and that Quadland had intended to ratify the terms of the Purchase Agreement and thus became bound by all of the obligations contained therein. These representations were false as Quadland never intended to be bound by the Purchase Agreement. Dominion relied on these misrepresentations and conveyed the real estate to Quadland. Quadland's refusal to execute the Section 12 documents deprived Dominion of valuable consideration due under the Purchase Agreement and enabled Quadland to obtain title to the real estate. Thus, the court finds that Edward T. Yasechko and Quadland committed constructive fraud and Dominion is therefore entitled to punitive damages. *1471 Spinsky v. Kay, 550 N.E.2d 349 (Ind.App.1990).
Next, the court will address defendants' counterclaim for slander of title. Slander of title occurs when a party maliciously makes false statements regarding some claim in or to the real estate of another which statements cause pecuniary harm to the titleholder. In the present case, the plaintiff filed a complaint with a claim of rescission claiming entitlement to rescind the entire transaction. This rescission claim effectively clouded the title to the 9.84 acre parcel of real estate. The pending rescission claim impeded the defendants' efforts to close on their sale to McDonalds Corporation. The question for the court is whether plaintiff had any reasonable basis for its rescission claim in the first instance.
A plaintiff, when seeking to rescind a contract, need only prove his right to rescind and that he is able to return in species any property he has received under the contract or its reasonable value if a return in species is impossible. Grissom v. Moran, 154 Ind.App. 419, 292 N.E.2d 627, 629 (1973). Furthermore, a party seeking to rescind a contract must do so at the earliest practicable moment after discovery of the facts which would entitle the party to rescission. Griffin v. Axsom, 525 N.E.2d 346 (Ind.App.1988).
In this case, plaintiff had a right to rescind the Purchase Agreement when the defendants breached the Agreement by failing to execute the Section 12 documents. Although the claim for rescission was brought twelve months after the execution of the deed at issue, the court finds that plaintiff was able to return the purchase price when the claim was filed. The court further finds that the claim was brought within a reasonable time of discovering that Quadland would not honor the Section 12 obligations. As the facts set out above indicate, Quadland acted in bad faith and led Dominion to believe that Quadland would eventually sign the documents. Dominion spent months attempting to get a definite response from Quadland as to when Quadland would execute the documents. Dominion finally resorted to a rescission lawsuit in state court. However, Quadland persuaded Dominion to abandon the state court suit by promising to negotiate and then failed to live up to its promises.
Clearly, Dominion did not fail to exercise reasonable diligence in discovering fraud but merely gave Quadland the benefit of the doubt regarding the execution of the outstanding documents. Dominion's delay in filing this suit was reasonable in light of the fact that Dominion was repeatedly assured that there was no problem and that the documents would soon be executed. Dominion resorted to filing a federal court suit for rescission only after Quadland's continued inaction confirmed that Quadland never had the intention to execute the documents. Thus, the court finds that Dominion's act of filing the rescission claim does not constitute slander of title. The rescission claim was not false or malicious because Dominion had a competent basis for asserting its claim and did so within a reasonable time.
The court acknowledges that the defendants have vigorously argued that tender is a condition precedent to a rescission claim and that plaintiff failed to tender the purchase price to defendants. The cases that the defendants cite in support of their argument are not persuasive. Defendants' cases merely state that if a party rescinds a contract, he must return any benefits received. The cases do not state that the benefits must be returned or tendered prior to asserting a claim for rescission. See Indiana & Michigan Electric Co. v. Harlan, 504 N.E.2d 301 (Ind. App.1987); Blaising v. Mills, 176 Ind.App. 141, 374 N.E.2d 1166 (1978). Consequently, plaintiff's failure to tender the purchase price to defendants did not render its rescission claim ill-founded or malicious.
Finally, the court will address Dominion's remedies. It is a matter of course for courts to grant specific performance of a valid contract for the sale of real estate. Ridenour v. France, 442 N.E.2d 716, 718 (Ind.App.1982). Having demonstrated the *1472 enforceability of the Purchase Agreement between Dominion and the defendants, Edward T. Yasechko and Quadland, Dominion is entitled as a matter of course to specific performance of the terms of the Purchase Agreement.
First, Dominion is entitled to specific performance of the Indemnity and Hold Harmless Agreement. Accordingly, the defendants are ordered to execute the final version of the Indemnity and Hold Harmless Agreement as set out in Plaintiff's Exhibit 4.
Second, Dominion is entitled to specific performance of the building tear down provision. Accordingly, the defendants are ordered to immediately tear down Building A and Building B.
Third, Dominion is entitled to specific performance of the grant of the easement. The easement agreement did not merge in the deed because it was a collateral agreement which the parties intended would survive the conveyance of the deed. It is clear from the contract and the evidence that the parties did not intend the deed to complete the contract with respect to this easement. Further, the doctrine of merger does not apply where the deed constitutes only part performance of the contract. Prell v. Trustees of Baird & Warner Mortgage and Realty Investors, 179 Ind.App. 642, 386 N.E.2d 1221, 1230 (1979). Therefore, the defendants are ordered to grant the easement which is described in the deed. (Exhibit B to Plaintiff's Exhibit 7). Defendants, in their post-trial brief, have agreed that should the court grant specific performance with regard to the easement, then the court should order the defendants to execute a grant of easement as described in Exhibit B to Plaintiff's Exhibit 7.
Lastly, Dominion is entitled to specific performance with respect to Quadland's obligation to "mound and plant" the common property lines. The court finds that the quotation by T & G Excavating, Inc. (Plaintiff's Exhibit 21) is a reasonable description of the work to be performed and orders the defendants to mound and plant the property lines in accordance with that quotation.
Dominion is also seeking damages with respect to Building A which was to be torn down by May 19, 1990, and Building B, which was to be torn down by February 11, 1991. Dominion claims that its property value has been damaged and its overall development plan has been and continues to be impeded by the presence of these buildings. However, there is no convincing evidence in the record to support the claim that Dominion has suffered damages as a result of the presence of either Building A or Building B. Dominion did not restrict the use of Tract One on which the two buildings are situated and defendants could easily put Tract One to a use that would be more detrimental to Dominion's remaining property than the existence of the buildings. Therefore, the court finds that Dominion is not entitled to damages for the delay in the tear down of the two buildings.
Next, Dominion seeks attorney fees and costs pursuant to Section 19.02 of the Purchase Agreement. Since defendants, as buyers, breached their obligations under the Purchase Agreement, Dominion is contractually entitled to recover attorney fees and costs. The exact amount of the award will be determined after briefing by the parties and after a hearing on the issue if necessary.
Finally, Dominion seeks punitive damages on their constructive fraud claim. Having found that the conduct of Edward T. Yasechko and Quadland constitutes constructive fraud the court finds it appropriate to award punitive damages to the plaintiff. The purpose of punitive damages is to punish a defendant for its outrageous conduct and to deter it and others from engaging in similar conduct. Moffett v. Gene B. Glick Co., Inc., 621 F. Supp. 244 (N.D.Ind. 1985); Miller Pipeline Corp. v. Broeker, 460 N.E.2d 177 (Ind.App.1984). Thus, an award of punitive damages must be of an amount sufficient to punish defendants who have engaged in reprehensible conduct. In order to determine the proper amount of punitive damages to assess, the defendants' economic wealth and income should be considered. Arlington State *1473 Bank v. Colvin, 545 N.E.2d 572 (Ind.App. 1989). The defendants in this case have convinced this court that they have a highly successful and profitable business enterprise. In fact, the evidence has shown that a single convenience store, such as the one occupying only a portion of the subject real estate, reaps an annual profit of approximately $200,000.00 and this amount represents only a portion of the profits to be realized annually from the subject transaction. Accordingly, the court finds that an award of punitive damages in the amount of $100,000.00 is required to punish Edward T. Yasechko and Quadland and deter them from engaging in similar conduct in the future.
Conclusion
Plaintiff has established by a preponderance of the evidence that defendants breached their obligations under the Purchase Agreement and that the defendants committed constructive fraud. It is hereby ORDERED, ADJUDGED, and DECREED that the defendants, Edward T. Yasechko and Quadland, shall specifically perform the obligations of the Purchase Agreement as follows:
(1) Defendants shall execute the final version of the Indemnity and Hold Harmless Agreement as set out in Plaintiff's Exhibit 4;
(2) Defendants shall immediately tear down Building A and Building B;
(3) Defendants shall grant the easement which is described in the deed (Exhibit B to plaintiff's Exhibit 7); and
(4) Defendants shall mound and plant the property lines in accordance with the quotation by T & G Excavating, Inc. (Plaintiff's Exhibit 21).
Plaintiff is awarded punitive damages against Edward T. Yasechko and Quadland in the amount of $100,000.00[4].
Plaintiff is ORDERED to file a motion for fees and costs within twenty days from the date of this order, detailing its request for fees and costs.
NOTES
[1] Dominion Investments is an Indiana general partnership with its principal offices located Fort Wayne, Indiana. Mr. Donald Steininger and Mr. Chris Jones are both partners in Dominion Investments.
[2] Dominion incorrectly named Edward J. Yasechko as defendant when it initially filed its lawsuit. However, this error was later corrected and Edward T. Yasechko was identified as the proper defendant.
[3] The court notes that plaintiff stated at final arguments that any judgment against Quadland and Edward T. Yasechko should also be directed to the successor corporations, Tewell and EJJY. However, plaintiff has never provided the court with any basis for finding EJJY and Tewell liable.
[4] In accordance with the Deposit Agreement filed by the parties on October 16, 1990, (¶ 3A), plaintiff shall be paid $100,000.00 out of the $200,000.00 deposit. Additionally, any subsequent award to plaintiff of attorney fees and costs shall be paid out of the $200,000.00 deposit. The remainder of the deposit shall be held until the defendants have complied with the specific performance requirements as set forth in this order.
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178 Conn. 557 (1979)
CITY OF NEW BRITAIN
v.
CONNECTICUT STATE BOARD OF MEDIATION AND ARBITRATION ET AL.
Supreme Court of Connecticut.
Argued June 6, 1979.
Decision released July 31, 1979.
COTTER, C. J., LOISELLE, BOGDANSKI, LONGO and A. HEALEY, JS.
Edward T. Lynch, Jr., with whom was Dennis G. Ciccarillo, for the appellant (plaintiff).
*558 Joel M. Ellis, with whom, on the brief, was William S. Zeman, for the appellee (defendant Local 1186, AFSCME, Council 4, AFL-CIO).
BOGDANSKI, J.
In this action, the city of New Britain is appealing from a judgment of the Superior Court denying its application to vacate an arbitration award rendered by the defendant board of arbitration.
The record discloses the following facts: In November of 1975, the defendant Vincent Fusari was hired by the city under the Comprehensive Employment and Training Act of 1973 (hereinafter CETA) and assigned to a position as a planning technician in the city's planning department. In April, 1976, the manpower coordinator of the city sent a letter to all CETA employees informing them that "in the ensuing months, much more intensive emphasis will be placed on transition to permanent jobs [and as a result] you will be referred to permanent job openings for which you are qualified and will be requested to go for many interviews [for which] you will be paid ... providing the proper procedures have been followed." The letter went on to caution the employees "to not refuse an interview and/or comparable job if it is offered to you [as] such refusal will indicate a violation of the intent of the CETA program (i.e. temporary transitional employment) and will weigh very heavily in any decision for lay-off or termination from the program."
In July, 1976, Fusari was terminated from the CETA program by the city for failure to attend a job interview arranged for him by the manpower coordinator. The letter of termination also *559 informed Fusari that "in accordance with the provisions of the Bargaining Agreement between the City of New Britain and Local # 1186, AFSCMEAFL-CIO you have fifteen (15) days in which to appeal in writing through the grievance procedure." A grievance was timely filed on behalf of Fusari by the union and was processed through the various steps of the contractually provided grievance procedure. When no agreement was reached, the grievance was submitted to the defendant Board of Arbitration, the agency named in the agreement as arbitrator. The submission to the arbitrators by the parties was as follows: "Under Article 8.1 of the Collective Bargaining Agreement, was grievant Vincent Fusari discharged for just cause? If not, what shall the remedy be?"
In January, 1977, the arbitrators held a hearing at which the city appeared and participated through its attorney. The award subsequently rendered by the arbitrators ordered that the discharge of the grievant be converted into a thirty-day suspension and that after the suspension period, the grievant be reinstated and awarded back pay, reduced by any unemployment benefits or other compensation which he may have received in the interim.
The city thereupon filed an application, pursuant to General Statutes §§ 52-418-19 to have the award vacated, while the union moved to have the award confirmed. From the judgment of the trial court confirming the award, the plaintiff has appealed to this court.
On appeal, the plaintiff contends that Fusari, as a CETA participant, was only a temporary employee and was not entitled to use the grievance procedure established by the collective bargaining *560 agreement between the city and the union, and that the arbitrators exceeded their powers in sustaining the grievance filed on Fusari's behalf by the union.
We note that a respondent in arbitration who desires to question the arbitrability of a particular dispute may refuse to submit to arbitration and may instead compel judicial determination of the issue of arbitrability. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S. Ct. 1347, 4 L. Ed. 2d 1409; Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 274, 231 A.2d 531. In such cases, a court will interpret the terms of the parties' agreement to determine whether the dispute in question is one which the agreement of the parties requires them to submit to arbitration. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 567-68, 80 S. Ct. 1343, 4 L. Ed. 2d 1403. Alternatively, threshold questions of arbitrability may properly be committed to the arbitrators themselves for determination under the terms of the contract, along with the merits of the underlying dispute. United Steelworkers of America, AFL-CIO v. United States Gypsum Co., 492 F.2d 713 (5th Cir.); Gorman, Labor Law (1976 Ed.) c. 25 § 2. In such cases a court, on a motion to vacate, may properly entertain a challenge to an award alleging disregard of the limits in the parties' agreement with respect to arbitration. Waterbury Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 63, 357 A.2d 466; Costello Construction Corporation v. Teamsters Local 559, 167 Conn. 315, 318, 355 A.2d 279.
In Waterbury Board of Education v. Waterbury Teachers Assn., supra, 62, this court observed that *561 its respect for the autonomy of the arbitration process "dictates that we recognize the waiver principle" and cautioned that "[t]he effect of this recognition is to place a burden upon the parties, in the situation where the question of arbitrability is not [expressly] reserved to the arbitrator, to frame the submission carefully ... and, if necessary to protect their objections, to seek judicial reconciliation of [such] threshold questions prior to submitting to arbitration." See also note, "Participation in arbitration proceedings as waiver of objections to arbitrability," 33 A.L.R. 3d 1242.
The record in the instant case discloses that the city expressly advised Fusari in its letter of termination that he could appeal its decision through the grievance procedure established by the collective bargaining agreement between the city and the union and that the city participated, without objection, in the processing of Fusari's grievance through the various steps of the contractually provided procedure. The record further reveals that the city joined with the union in submitting the dispute over the discharge of Fusari to arbitration and that the joint submission of the parties neither presented nor reserved any question as to the arbitrability of that dispute. Not until after the underlying dispute had been finally resolved on the merits did the plaintiff raise any question as to the arbitrability of the underlying dispute.
On the basis of the above, the trial court concluded that the city's claims as to the arbitrability of the underlying dispute must be deemed to have been waived. We agree and conclude that the court properly refused to consider these claims upon the motion to vacate.
*562 The plaintiff next argues that the award should have been vacated on the ground that the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted to them was not made. General Statutes § 52-419 (b). The plaintiff contends that the award of the arbitrators was internally inconsistent; that the findings of fact of the arbitrators disclose that they expressly found that the city had retained the right to discharge an employee "for cause" on the basis of a failure to seek other employment and that having so found, the arbitrators did not have the power to substitute what they thought to be a more appropriate discipline, i.e., suspension instead of discharge.
In resolving a claim that the arbitrators exceeded or imperfectly exercised their powers, a court need only examine the submission and the award to determine whether the award conforms to the submission. City of Waterbury v. Waterbury Police Union, Local 1237, 176 Conn. 401, 407 A.2d 1013; Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 291, 377 A.2d 323; Norwich Roman Catholic Diocesan Corporation v. Southern New England Contracting Co., 164 Conn. 472, 477, 325 A.2d 274. While the court, in such situations, may examine the memorandum of the arbitrators to determine if the arbitrators were faithful to their obligations, the result reached by the award will control unless the memorandum patently discloses an infidelity to the obligation imposed upon the arbitrators. Darien Education Assn. v. Board of Education, 172 Conn. 434, 438, 374 A.2d 1081; United Steelworkers of America v. Enterprise Wheel & Car Corporation, 363 U.S. 593, 598, 80 S. Ct. 1358, 4 L. Ed. 2d 1424.
*563 Examination of the memorandum in the instant case reveals that the arbitrators found that the failure of the defendant to attend the July 9 job interview was an isolated instance of dereliction and concluded that this failure, while warranting some disciplinary action, was not sufficient to warrant the ultimate penalty of discharge. The trial court concluded from the above that the arbitrators had at least impliedly found that the city lacked "just cause" to discharge Fusari and concluded therefrom that the award was not internally inconsistent and must therefore govern.
We observe that the city, by agreeing to an unlimited submission, authorized the arbitrators to exercise their own judgment in determining whether the conduct of the defendant Fusari constituted "just cause" for dismissal under the terms of the collective bargaining agreement. Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 293-94, 377 A.2d 323. Having agreed to submit that issue to the arbitrators, the city cannot complain when the arbitrators determine that the conduct of the defendant did not rise to the level of "willful misconduct" necessary to provide cause for dismissal under the contract.[1]City of Waterbury v. Waterbury Police Union, supra, 401; Hartford v. Local 308, 171 Conn. 420, 432-33, 370 A.2d 996; Niles-Bement-Pond Co. v. Amalgamated Local 405, 140 Conn. 32, 37-38, 97 A.2d 898.
*564 We conclude that the trial court did not err in denying the plaintiff's application to vacate the award.
There is no error.
In this opinion the other judges concurred.
NOTES
[1] The record discloses that the city at the arbitration hearing acknowledged that "just cause" to discharge was not established simply by a showing that an employee had failed to attend a scheduled job interview and that a failure to attend an interview would constitute grounds for dismissal only if such failure constituted "willful misconduct" on the part of the employee.
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511 A.2d 456 (1986)
STATE of Maine,
v.
Michael GOODNO.
Supreme Judicial Court of Maine.
Argued June 6, 1986.
Decided July 10, 1986.
David W. Crook, Dist. Atty., Pamela Ames (orally), Asst. Dist. Atty., Augusta, for plaintiff.
Michael Goodno, pro se, (orally).
Before McKUSICK, C.J., NICHOLS, ROBERTS, VIOLETTE, GLASSMAN and SCOLNIK, JJ.
ROBERTS, Justice.
Michael Goodno appeals from his conviction in District Court, Waterville, of carrying a concealed weapon in violation of 25 M.R.S.A. § 2031 (1974). Goodno challenges, inter alia, the denial of his motion to suppress evidence, the denial of counsel of choice, the legality of the sentence imposed, and the constitutionality of the statute. Because none of his contentions have merit, we affirm the judgment.
On October 3, 1984 Goodno was arrested on a District Court warrant for failure to appear to answer a motor vehicle charge. Goodno was arrested at a Mister Donut shop by two police officers who knew him by sight. He was not searched at Mister Donut but was transported to the Waterville Police Department. At the police department he was searched, and the police found a .25 caliber handgun concealed in the pocket of his leather jacket. Goodno did not have a permit to carry any such concealed weapon. Apparently Goodno was given no Miranda warnings at the time of his arrest.
Goodno sought to suppress the handgun as evidence on the ground that the warrant for his arrest did not authorize the seizure of his property and on the ground that he was not properly advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The State, of course, does not rely upon the arrest warrant to authorize the seizure of the handgun. Instead the warrant authorized the seizure of Goodno, who, once in lawful custody, was subject to search. State v. Dubay, 338 A.2d 797 (Me. *457 1975). The seizure of Goodno's gun was the lawful result of that lawful search. The presence or absence of proper Miranda warnings is irrelevant because no statement by Goodno was offered in evidence.
At various stages of his prosecution, Goodno claimed the right to "counsel of choice." This right, he asserts, is not limited to representation by persons admitted to the Bar, but includes a right to "lay consultation," a right to consult another person of his choosing during the course of trial. We have previously stated that the right to counsel does not include unfettered freedom to change attorneys or to interfere with the orderly administration of justice. State v. Ayers, 464 A.2d 963, 966 (Me. 1983). Goodno cites no contrary authority, and we conclude that the court's refusal to permit "lay consultation" was well within its discretion.
In a similar vein, Goodno argues that the imposition of a five-day jail sentence was illegal under Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), because he was unrepresented by counsel. We disagree for two reasons. First, the federal constitutional right to legal counsel can be, and on this record clearly was, waived. See, e.g., Bute v. Illinois, 333 U.S. 640, 675, 68 S.Ct. 763, 781, 92 L.Ed. 986 (1948). Second, the right of self representation clearly was asserted. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). See also State v. Walls, 501 A.2d 803, 805-06 (Me. 1985) (trial court must recognize both defendant's right to counsel and right to self-representation).
Finally, Goodno contends that section 2031 violates the right to bear arms guaranteed by the second amendment to the United States Constitution. We reject Goodno's federal constitutional challenge because the second amendment does not limit the authority of our Legislature. The amendment operates to restrict the power of Congress only. Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 584, 29 L.Ed. 615 (1886); State v. Friel, 508 A.2d 123, 125 (Me.1986).
Any other issues raised by Goodno either were not preserved in the trial court or are without merit and require no discussion.
The entry is:
Judgment affirmed.
All concurring.
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286 S.W.2d 712 (1955)
BROTHERHOOD OF RAILROAD TRAINMEN et al., Appellants,
v.
F. L. LUCKIE et al., Appellees.
No. 14987.
Court of Civil Appeals of Texas, Dallas.
November 18, 1955.
Rehearing Denied January 13, 1956.
*713 Willis & Willis and J. T. Suggs, Dallas, and Freeman, Wolfe, Henderson & Bryant, Sherman, for appellants.
Gullett & Gullett, Denison, and Freels, Elliott & Nall, Sherman, for appellees.
YOUNG, Justice.
This is a class action brought by F. L. Luckie and twelve others, all operating employees of MK&T Railway Company of Texas (herinafter styled Katy), and each a member of one of the four Brotherhoods, defendant-appellants, for themselves and others similarly situated, against the Brotherhood of Railroad Trainmen, Grand International Brotherhood of Locomotive Engineers, Brotherhood of Locomotive Firemen and Enginemen, Order of Railway Conductors and Brakemen, certain local lodges of said Brotherhoods, the Texas & Pacific Railway Company (hereinafter styled T&P), and others; for temporary restraint and ultimately a permanent injunction to prevent the placing into effect of a directive dated November 7, 1952, of the chief excutives of said four named Brotherhoods; the directive stating in part that T&P train and engine employees will be permitted to maintain at least one passenger crew on Katy trains operating between Whitesboro and Fort Worth, Texas. The four Brotherhoods above named are the duly constituted bargaining representatives of appellees (plaintiffs below) and are fraternal benefit societies as well as railway labor unions.
On November 30, 1954, the trial court granted a temporary restraining order relative to the above directive, and on hearing for temporary injunction (January 24, 1955) such interlocutory relief was granted, "to preserve and maintain the status quo" pending final determination of this cause; which ruling becomes the basis of this appeal.
We glean from the record, aided by briefs of the parties, that material facts antecedent to the instant controversy are these: The Katy corporations (two in number) operate a line of railroad from St. Louis and Kansas City via Denison, Fort Worth and Waco (also Dallas and Waco) to Houston, San Antonio and Galveston. Trains of the Katy operating between Denison and Waco via Fort Worth use 71 miles of track between Whitesboro and Forth Worth that belong to the T&P Railway, which use is under and by virtue of contracts between predecessor companies of these lines of railroads, dated April 1881 and July 1920. The contracts extend to the Katy the right to both man and operate its trains over said trackan interpretation concurred in by both Katy and T&P management; and since 1881 Katy train and service employees have operated all Katy trains running over the Whitesboro-Fort Worth track with the following exception: In 1920 during Government control of railroads a consolidated train made up of both T&P and Katy equipment and under joint control, was operated by T&P personnel over the tracks between *714 Whitesboro and Fort Worth, continuing for a short period of time; otherwise the record discloses no T&P operation of an exclusively Katy train, either passenger or freight, over this track. And while Katy employees presently manning Katy trains Fort Worth to Whitesboroare under joint supervision of both Roads, the Katy men are subject to discipline only from their own Company employer.
In July 1950, the T&P sought and obtained from the Railroad Commission of Texas authority to discontinue its passenger trains No. 31 and 32, running from Fort Worth to Texarkana via Whitesboro, such change being accomplished without notice to the Katy or its participation in the Commission hearing; the latter Company at the time manning and operating three passenger trains daily over said 71 miles of trackWhitesboro to Fort Worth. Following the mentioned discontinuance of passenger service by T&P, a Committee of its transportation employees (union) made request of T&P management to man one Katy passenger train between Whitesboro and Fort Worth in lieu of their own train which had been discontinued, which request was denied; said T&P Committee then requesting that a Grand Lodge officer be assigned to make investigation and report to the national president of the particular Brotherhood. The result was a ruling by that chief official, concurred in by Chief Executives of the other Brotherhoods, in favor of such request, i. e., that T&P employees were entitled to man one Katy passenger train between these points. This ruling was appealed by Denison Lodge No. 15 (Brakemen and Conductors) to the General Board of Appeals, that Body sustaining the position of its Brotherhood president.
This order, if and when applied, would take Katy men off their own passenger trains and substitute to that extent T&P operatives; and obviously result in loss of employment and interference with seniority rights of the former (appellees). And they allege that such would be the result, they having exhausted their remedy within the respective Brotherhoods. In this connection, to complete a summary of defensive pleading, appellant Brotherhoods answered, along with other defendants; filing motions to dismiss, or in the alternative to abate the suit on grounds that Federal proceedings were and are presently pending before the National Mediation Board at Dallas, pursuant to Title 45, U.S. Code Annotated, § 151 et seq.; that the subject matter of suit involves an interpretation of working agreements, seniority, rates of pay, rules and working conditions, of which exclusive jurisdiction is vested under the National Railway Labor Act, Title 45, U.S.C.A., in the National Railway Adjustment Board; alternatively, that the suit has been prematurely brought, plaintiffs-appellees having an adequate remedy at law; that plaintiffs are bound by Union laws not to sue their Brotherhoods; that complainants, charging "arbitrary, capricious and unjust actions" by superior officers of their Brotherhoods, cannot thus sue their Brotherhoods, who are co-principals, for wrongful acts of a joint agent, because they are thereby in effect suing themselves; and bound, on the other hand, by the decisions of their Brotherhoods. Lastly, that plaintiffs are not true representatives of a class, hence not entitled to bring the action in question, for the reason that seniority rights of the class are not joint, common, or secondary, with no common question of law affecting the several rights; the seniority rights and grievances, if any, of each employee being wholly different. The T&P filed a general denial and cross-action against the Katy, all plaintiffs and defendants, inclusive of appellant Brotherhoods and some of its own employees; the content of said cross-plaintiff's affirmative pleading being enlarged upon in the concurring opinion by Chief Justice Dixon.
The Federal Mediation proceeding above mentioned, now in recess, appears to have been invoked at instance of the Chief Executives of the four Brotherhoods.
There are four classes or crafts of employees here involved. Each of the four defendant Brotherhoods is certified through its General Grievance Committee and General *715 Chairman of the Katy to act as the bargaining representative of its particular class. Likewise each is, by separate and distinct action, so certified on the T&P. The Brotherhoods thereby are authorized to bargain with the Katy concerning only those persons in the craft or class that they are certified to represent, who have an employee status with the Katy. Similarly, they are authorized to bargain with the T&P only concerning the members of such craft or class having an employee status with the T&P; and as we interpret both the Railway Labor Act and Constitutions of each organization in evidence, these separate employer-employee groups are not to be commingled in a joint bargaining effort; see Report of the National Railroad Adjustment Board, 1935, at page 22; and Stephenson v. New Orleans & N.E.R. Co., 180 Miss. 147, 177 So. 509, at page 517 (unless, of course, by consent of all concerned). In the same connection there is testimony that to effectuate the directive of November 7, 1952 would require necessary alteration of passenger crew terminals; several of the Brotherhood Constitutions providing for such a change only on approval of the employees to the affected thereby; or at least, by consent of the General Grievance Committee, no approval or consent having been so obtained.
Turning to particular record evidence, the following parties-defendant, all General Chairmen, Grievance Committee, of their respective Unions, Katy Railroad, were called by plaintiffs to testify: Carl L. Flanery, Sr., Brotherhood of Railroad Trainmen, T. E. Penn, Brotherhood of Locomotive Firemen and Enginemen, Walter Johnson, Order of Railway Conductors and Brakemen, and L. A. Dye, Brotherhood of Locomotive Engineers. That these Officials and the Katy Lodges represented by them were not at all in accord with this 1952 Order requiring T&P train and engine employees to man a Katy passenger train, is certain. However, under veiled threats of disciplinary measures, they were required to sign a letter prepared by Chief Executives of the Orders, directed to both Railroad managements, requesting that said ruling be put into effect. Each witness testified that their respective duties embraced the making of bargaining contracts between Union and the Railroad, inclusive of the handling of grievances; that no labor dispute existed within their jurisdictions, the Order in question having the effect of changing or amending present contracts of collective bargaining; witness Johnson pointing out that the existing contract was inclusive of seniority rights (working conditions); all asserting that such Order was arbitrary and discriminatory to Katy men. On the other hand, from standpoint of Brotherhood Chief Executives, the 1952 Order simply restored to T&P train and engine crews the jobs taken from them by the 1950 discontinuance of passenger trains by T&P management. In the situation thus presented, appellees (Katy employees) assert a case of unjust discrimination by their own Brotherhood Chiefs, in that they alone are penalized in consequence of action (discontinuance of trains) lawfully taken by the management of another and different Railroad Company.
The Railway Labor Act, Title 45 U.S.C.A. § 151 et seq., creating two separate Boards (National Railroad Adjustment and National Mediation) to hear disputes with which it has power to deal, contemplates jurisdiction only of employee-employer problems; specifically stated in sec. 153(i) of the Act as "The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, * * *"; and the issue here does not involve interpretation of the December 1952 Order, but is rather an outright attack upon its validity; the attempted amendment of their existing contract of collective bargaining, in violation of Union Constitution; and constituting arbitrary, capricious and unjustly discriminatory action by defendant Brotherhoods.
In our opinion, appellees have made just such a case, cognizable in a court of equity. Statutory power of the *716 Brotherhoods and Grand Lodge officers in their representation of all for whom they act, is not absolute; Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048, and may be challenged judicially by members of the Brotherhood for actions found discriminatory, arbitrary, or capricious.
Controlling here is Hargrove v. Brotherhood of Locomotive Engineers, D.C., 116 F.Supp. 3, 7, in applicable principles and conclusions reached. There a contract was involved, similar in effect to the Order in question here, the Federal Court assuming jurisdiction to declare it invalid with respect to aggrieved Union members. In the Hargrove appeal, plaintiffs and those similarly situated were members of defendant Brotherhoods in good standing. Under a 1946 contract between Brotherhoods and Railway Company, plaintiffs had acquired seniority rights upon trackage within the Oak Ridge (Tenn.) Reservation Project, which tracks were operated by the Railway Company. On August 26, 1949 the Brotherhoods proposed a new contract which would fill the jobs on the Reservation with men from the Knoxville and Atlanta Division of the Railroad; which contract, being executed by the Brotherhoods and Railroad Company, served to remove plaintiffs and those similarly situated from service and to replace them with men from the Knoxville-Atlanta Division. Following are excerpts from the Court's conclusions in taking jurisdiction of the cause as against the contention that the remedy of plaintiffs was through Administrative Boards set up by the Railway Labor Act: "* * * the charge is that defendants have sacrificed their interests and rights, not on the basis of differences relevant to authorized and reasonable purposes of collective bargaining, but solely for the benefit of another group of employees represented by them, thereby violating the duties and obligations imposed upon the Brotherhoods by the Railway Labor Act. * * * I am therefore of the opinion that the complaint states a case in which the court is not lacking in jurisdiction over the subject matter, and furthermore, under the authority of Steele v. Louisville & Nashville R. Co., supra [323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173], the complaint states a claim upon which relief can be granted. Indeed, it might be difficult to find a constitutional basis for relegating this controversy to the Railway Adjustment Board as contended by defendants, and such procedure appears particularly abhorrent when it is considered that the defendants named herein participate in making the selections of membership on the Board, who would pass upon the validity of their acts charged to be in disregard of the trust imposed upon them." (Emphasis ours.) See also Brotherhood of R. R. Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283; 142 A.L.R., Annotations, pp. 1067-1068. Appellants seek to distinguish Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173, and Brotherhood of R. R. Trainmen v. Howard, supra, because the issue there raised was exceptional (racial discrimination). But even in the dissenting opinion in Brotherhood of R. R. Trainmen v. Howard [343 U.S. 768, 72 S.Ct. 1026], the right of aggrieved members of a Labor Union to carry disputes with their bargaining representatives to the Courts, claiming unjust discrimination, is recognized, viz.: "* * * It would have been the same if the Brotherhood had discriminated against him on some other ground, unrelated to race. It was the Brotherhood's duty `to act on behalf of all the employees which, by virtue of the statute, it undertakes to represent.' Steele, supra, 323 U.S. at page 199, 65 S.Ct. at page 230, 89 L.Ed. 173." And though the Hargrove case is not an Appellate Decision, it has been cited with approval by the Circuit Court of Appeals in Switchmen's Union of North America v. Ogden Union Ry., etc. Co., 10 Cir., 209 F.2d 419, certiorari denied 347 U.S. 989, 74 S.Ct. 852, 98 L.Ed. 1123.
The foregoing view of this controversy sufficiently demonstrates, in our opinion, that it is not one exclusively within the jurisdiction of the Railway Labor Act; but that to the contrary, the claims asserted by appellees are proper matters for adjudication in a court of equity. Concerning *717 further points presented, the following will suffice by way of disposition: (1) Manifestly this is not a jurisdictional dispute; (2) it is undisputed that appellees have exhausted all remedies within their respective unions; and under the precedents already cited, they are not precluded from suing their Brotherhoods, Chief Executives and Grand Lodge Officersthe ground of action being arbitrary, discriminatory or capricious conduct; or that such was beyond the powers or authority granted in their respective Constitutions and Union laws. See also Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187; Graham v. Brotherhood of Locomotive Firemen and Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22; Virginian R. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; Williams v. Central of Georgia Ry. Co., D.C., 124 F.Supp. 164; Stephenson v. New Orleans & N. E. R. Co., 180 Miss. 147, 177 So. 509. (3) The evidence supports the trial court's finding that this is a class action under Rule 42, Texas Rules of Civil Procedure, the purpose thereof being fully explained in McDonald, Texas Civil Practice, Vol. 1, sec. 234, at page 269. The Texas procedure is in language of Federal Rule 23(a, c), 23 U.S.C.A., which has been given a like judicial construction. Parker v. Lester, D.C., 112 F.Supp. 433; System Federation No. 91, etc. v. Reed, 6 Cir., 180 F.2d 991.
All points advanced are accordingly overruled and judgment of the trial court affirmed.
DIXON, Chief Justice.
I concur in the views expressed by Judge YOUNG.
This is neither a dispute between employees and their carrier employer, nor a jurisdictional dispute between two rival labor organizations. It is a dispute between some of the train and engine service employees of the Missouri-Kansas-Texas Railroad Company of Texas on the one hand and their respective labor organizations on the other hand. Plaintiffs in effect complain that their designated bargaining authorities, the Railroad Brotherhoods, have acted capriciously, arbitrarily and in abuse of their representative authority in ordering that Texas and Pacific Railroad train and engine employees be permitted to maintain at least one passenger crew operating a Missouri-Kansas-Texas engine and train between Whitesboro, Texas and Fort Worth, Texas.
The Texas and Pacific Railway Company is made a party defendant, but plaintiffs in their petition do not charge the Railway Company with initiating, promulgating, sponsoring, or even favoring the order. Apparently the only purpose in making the Railway Company a party defendant was to enjoin it from complying with the Brotherhoods' order.
The Railway Company's pleadings consist of a general denial, followed by a cross-action in which several third party defendants are joined, including the Missouri-Kansas-Texas Railroad Company of Texas. The cross-action seeks only a declaratory judgment informing the parties whether they must comply with the order of the Brotherhoods. The attitude of the Texas and Pacific Railway Company is that of a disinterested spectator who does not care particularly which of the disputants prevails, but for its own protection, needs to be told what to do. This attitude is reflected throughout its pleadings, and as an example I quote this excerpt: "Pacific Company represents to the Court that if its employees have a right to employment in operating a Missouri Company passenger train between Whitesboro and Fort Worth, Texas, the Court should adjudicate and declare such right in conjunction with the Court's adjudication and declaration of the Defendant Missouri Company's duty and obligation to afford such employment to Pacific Company's employees; and if Defendant Missouri Company has no duty or obligation to afford such employment to Pacific Company's employees, then this Court should adjudicate and declare that Pacific Company's employees have no right of employment in so operating any of said Missouri Company's passenger trains."
*718 Since this is a dispute between the Brotherhoods and some of their own members, I do not think the Railway Mediation Board or the Railway Adjustment Board has jurisdiction.
The Constitutions of the Brotherhoods provide that members of a Brotherhood may not sue their own organization, but are bound by the decisions of their properly chosen officers and committees. But there are occasions when such provisions are not applicable. Having exhausted all recourse within their organization, members may resort to the courts in those instances when the officers of their Brotherhood have acted capriciously, arbitrarily, and unjustly, thereby depriving the members of valuable property rights. Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173. The pleadings in the instant case present that very issue. And the evidence adduced at the hearing in my opinion was sufficient to warrant the granting of a temporary injunction.
On Rehearing
DIXON, Chief Justice.
In their motion for rehearing appellants allege in points Nos. 1 and 2 that we erred in affirming a temporary injunction (1) "which enjoins a strike called in a railway labor controversy and the holding thus abridges the freedom of the employees to cease work, imposes a condition of involuntary servitude upon the employees, and deprives the employees of their liberty, privileges or immunities without due process in violation of Amendments 5, 13, and 14 of the U. S. Constitution and Article I, sec. 19, Bill of Rights, Texas Constitution [Vernon's Ann.St.Const.]"; and (2) "which enjoins a strike called in a railway labor controversy, such temporary injunction violating Federal and State constitutional guaranties of freedom of speech."
Appellees have filed motion to strike the above allegations from appellants' motion for rehearing for the reason that they present contentions outside the record and represent an attempt to raise for the first time on rehearing points not raised by appellants in their pleadings in the trial court or by their briefs in this Court. In support of their motion to strike appellees cite Aycock v. Travis County, Tex.Civ.App., 255 S.W.2d 910, at page 914; City of Fort Worth v. Burnett, Tex.Civ.App., 115 S.W. 2d 436, at page 442; 3-B Tex.Jur. 259.
We overrule said points Nos. 1 and 2 of appellants' motion for the reasons urged by appellees in their motion to strike, and for the further reason that in light of the record before us we are of the opinion that said points are without merit. Other points presented in the motion for rehearing are overruled for reasons set out in original and concurring opinions.
Appellants' motion for rehearing is overruled; and consistent with our consideration in full of appellants' said motion, appellees' motion to strike is also overruled.
CRAMER, J., dissents.
CRAMER, Justice (dissenting on rehearing).
I find myself unable to agree with the majority in their disposition of this cause. The record here shows this to be a class suit, filed by F. L. Luckie and twelve others against the Brotherhood of Railroad Trainmen, three other railroad brotherhoods or unions, various subordinate lodges or unions, numerous union officials, the Texas & Pacific Railway Company, and others for the purpose of establishing seniority rights asserted by them under the collective bargaining agreement between the unions and the representatives of the Railroads. In my opinion it involved all matters which had been initiated before the Railroad Adjustment Board and the National Mediation Board, and such Boards were at the time of the filing of this suit in the process of hearings; such Boards, in my opinion, having acquired prior jurisdiction over the matters, the court should not have interfered with their orderly proceedings, unless such Boards should act arbitrarily in the expeditious disposition of the matters before *719 them. The record here shows the Boards were proceeding expeditiously and in due order at the time the suit was filed. Under such record, the granting of the injunction was not justified. Colbert v. Brotherhood of Railroad Trainmen, 9 Cir., 206 F.2d 9; Wilburn v. Missouri-Kansas-Texas R. Co. of Texas, Tex.Civ.App., 268 S.W.2d 726. See also International Ass'n of Machinists v. Sandsberry, Tex.Civ.App., 277 S.W.2d 776. A writ of error, however, has been granted in the Sandsberry case.
The present case is not one involving solely and individually a contract of employment by the separate members of the crew, but is based on the employment of a group under a collective bargaining agreement. Under such circumstances the bargaining agreement, as to seniority rights of the members of the crews, controls, and the Mediation Board's functions having been invoked, such Board was in process of a hearing at the time this suit was filed and the injunction here appealed from granted; and a strike was about to be called. All this brought about the controversy here, which is clearly within the jurisdiction of the Boards.
The Federal Constitution grants exclusive power over interstate commerce to Congress. Congress, in the Railway Labor Act, Title 45, ch. 8, § 151a, U.S.C.A., states its purpose as follows: "* * * (1) To avoid any interruption to commerce or to the operation of any carrier engaged therein; * * * (3) to provide for the complete independence of carriers and of employees in the matter of self-organization to carry out the purposes of this chapter; (4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; (5) to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions."
The functions of the National Mediation Board invoked by the T&P Railway Company are as follows: "First. The parties, or either party, to a dispute between an employee or group of employees and a carrier may invoke the services of the Mediation Board in any of the following cases: (a) A dispute concerning changes in rates of pay, rules, or working conditions not adjusted by the parties in conference. (b) Any other dispute not referable to the National Railroad Adjustment Board and not adjusted in conference between the parties or where conferences are refused." Title 45, § 155, U.S.C.A.
The issues in this case being properly before, and being then heard by, the Mediation Board prior to, and at the time of, the filing of this suit, this Court should not have proceeded further than to sustain the plea in abatement of the T&P Railway Company. In American Air Export & Import Co. v. O'Neill, 95 U.S.App.D.C. 274, 221 F.2d 829, syl. 1, the District of Columbia Circuit Court of Appeals held: "Where National Mediation Board advised employer that, under Railway Labor Act, it had assumed jurisdiction of dispute between employer and union and that a mediator would be assigned to investigate the dispute, but no further action had been taken, action by employer to enjoin further Board action on ground that employer was not subject to jurisdiction of Board under provisions of Railway Labor Act would be dismissed since administrative process had only begun and controversy was not ripe for judicial review."
The trial court here in its findings of fact, among other things, found as follows: "And it further appearing to the court that said ruling of the chief executives of said Brotherhoods, if put into effect, would take passenger train work away from two train and engine service crews of Missouri-Kansas-Texas Railroad Company of Texas, who have the right to perform such work, and give said passenger train work to one train and engine service crew of The Texas and Pacific Railway Company, who have no right to perform such work; that said transfer of said work would cause the demotion from the position of engineer to the position of fireman of two engineers of Missouri-Kansas-Texas Railroad Company *720 of Texas with resulting loss in wages to said engineers; that said transfer of said work would cause the demotion from the position of conductor to the position of brakeman of two conductors of Missouri-Kansas-Texas Railroad Company of Texas with resulting loss in wages to said conductors; and that said transfer of work would cause four firemen of Missouri-Kansas-Texas Railroad Company of Texas and four brakemen of said railroad Company to lose their jobs with resulting loss of all earnings; And it further appearing to the court that said transfer of passenger train work from train and engine service employees of Missouri-Kansas-Texas Railroad Company of Texas to train and engine service employees of The Texas and Pacific Railway Company of Texas would prevent train and engine service employees of Missouri-Kansas-Texas Railroad Company of Texas from exercising their seniority rights; that said transfer of work would disrupt crew assignments of Missouri-Kansas-Texas Railroad Company of Texas on its North Texas District, including said joint track, and particularly such crew assignments between Denison, Texas, and Waco, Texas, via Fort Worth; and that said transfer of work would require the establishment of passenger crew terminals at Whitesboro and Fort Worth where none now exist; * * * And it further appearing to the court that placing a Texas and Pacific train and engine crew on one Missouri-Kansas-Texas passenger train operating between Whitesboro and Fort Worth would effect a change, modification, amendment or abrogation of the terms and provisions of said existing written contracts executed by Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas and the General Chairmen of said Brotherhoods on the lines of railroad operated by said railroad companies; * * * And it further appearing to the court that the right of said Brotherhoods to act as bargaining agents for the respective train and engine service employees of the Texas and Pacific Railway Company and the right of the chief executives and other Grand Lodge officers of said Brotherhoods to represent said train and engine service employees of The Texas and Pacific Railway Company does not authorize or empower said Brotherhoods or said chief executives or said Grand Lodge officers to take work and jobs away from train and engine service employees of Missouri-Kansas-Texas Railroad Company of Texas, for whom they also bargain and whom they also represent, and to give said work and jobs to the train and engine service employees of The Texas and Pacific Railway Company."
Believing that the Federal Boards should have been accorded the exclusive right to hear and dispose of the matters involved at the time the present suit was filed in the District Court, the District Court should not have taken jurisdiction. Or, when its jurisdiction was invoked, it should have awaited the time when the administrative process had been concluded, before proceeding with this case.
I therefore respectfully dissent.
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286 S.W.2d 197 (1955)
TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant,
v.
Foster SPIVEY, Appellee.
No. 15667.
Court of Civil Appeals of Texas, Fort Worth.
December 23, 1955.
Rehearing Denied January 27, 1956.
Nelson & Sherrod, Lyle B. Cherry, and Walter Nelson, Jr., Wichita Falls, for appellant.
Peery & Wilson, Kearby Peery, Wichita Falls, for appellee.
*198 RENFRO, Justice.
The trial court entered a judgment for plaintiff Spivey in a workmen's compensation case for total and permanent disability. Texas Employers' Insurance Association was the defendant.
The defendant alleges reversible error on the part of the court in refusing to allow its counsel to fully and completely cross-examine the plaintiff's doctor witness and in refusing to allow full cross-examination for the purpose of developing its bill.
Defendant was allowed free, full and unrestricted cross-examination of the witness in regard to his examination, treatment and opinions concerning the plaintiff's injuries, and was unrestricted in cross-examining him at great length regarding many other matters. It was also permitted to cross-examine the doctor on several reports made by the doctor concerning other persons disassociated with the suit on trial. After allowing cross-examination concerning several such reports, the court sustained an objection to cross-examination concerning additional reports on other persons, and it is to this action the defendant objects. The doctor was permitted, for the purpose of a bill, to testify that he signed the reports exhibited to him (more than twenty in number). In the instant case the doctor had testified that the plaintiff had a case of well-developed hypertrophic arthritis and was totally and permanently disabled. It is the contention of defendant that the doctor had examined other persons similarly affected with hypertrophic arthritis, wherein he had made different conclusions as to the amount of disability suffered and the length of time over which it might last.
Inasmuch as the reports were never tendered in evidence and are not before us, we are of course unable to say whether they contained impeaching matters. Dr. Parnell freely testified that he is a frequent witness in court for claimants That he is paid for his time and that he makes reports to lawyers. Some of the reports that were identified do not show back injuries and some do not report permanent and total disability. It is not pointed out to us wherein impeachable statements were contained in the reports not introduced in evidence.
While defendant was making its bill in the absence of the jury, Dr. Parnell, plaintiff's witness, was asked, "Do you recall ever making a report in any case of hypertrophic arthritis wherein you reported that the man is not able to do ordinary hard labor, but can do light work?" The witness answered, "Yes, sir, I have reported that. * * * That is correct. I have done that several times, and everybody else has." Whereupon the court stated, "I am not going to exclude that statement from the jury." Defendant's attorney then announced, "All right, we have some more, Your Honor." The court then stated, "I will permit that before the jury." So far as the record discloses, the defendant did not avail itself of the opportunity to present such testimony to the jury. Due to the above ruling, we feel we are justified in assuming that the court would have permitted cross-examination upon any contradictory or inconsistent statements that might have been contained in said reports. The manner of the cross-examination and its extent must rest largely in the discretion of the trial judge. McCormick and Ray, Texas Law of Evidence, p. 359.
Under the state of the record, we cannot hold that the trial judge abused his discretion in limiting the cross-examination in the manner in which he did.
The other points of error claim that plaintiff was not entitled to judgment because he failed to make proper proof of his wage rate.
The jury found in answer to issues Nos. 15 and 16 that plaintiff had worked in the same or similar employment for the same employer for substantially the whole of the year next preceding the date of his injury at an average weekly wage of $78.89, and in answer to issues Nos. 17 and 18 found that another employee of the same class worked substantially the whole of the year for the same or other employers in *199 the same or similar employment at an average weekly wage rate of $87.28. Judgment was entered for a lump sum, based on a compensation rate of $25 per week, the defendant having agreed to pay a lump sum in the event of finding of total and permanent disability
Plaintiff had worked for the same company for several years. He was injured on April 28, 1954. From March 2, 1954, to the date of his injury he worked as a truck driver at an hourly wage of $1.40 per hour, with time and a half for overtime. During that period he earned $478.85.
From April 28, 1953, to March 2, 1954, he worked as a truck pusher at a monthly salary of $375. His total earnings for the twelve months immediately preceding his injury amounted to $4,112.85. Both as "pusher" and "driver" he loaded, unloaded and drove trucks. As "pusher" he had additional duties, including supervising other drivers. His injury occurred while he was loading a truck.
Prior to trial, the defendant, in response to request for admissions, admitted it had paid plaintiff compensation at the rate of $25 per week for a number of weeks following the injury. Uncontradicted evidence shows such $25 payments were made for ten weeks.
The defendant contends issues Nos. 15 and 16 are not supported by the evidence and that Nos. 17 and 18 must be disregarded because the jury found that plaintiff did work for substantially the whole year preceding his injury, even though said finding is not supported by the evidence. The defendant offered no evidence tending to show that $25 per week was not the proper compensation rate. Under either finding by the jury, the plaintiff was entitled to the $25 maximum compensation rate. There is no conflict in the finding.
Defendant made no showing that the $25 weekly compensation payments were made upon misrepresentation by anyone, or by mistake of fact as to plaintiff's wage rate; nor was it shown or contended that plaintiff's compensation rate should be less than $25 per week. In the absence of any evidence that the payments were made upon mistake or misrepresentation as to plaintiff's wage rate, or that he was entitled to a smaller compensation rate, defendant's admission, and the undisputed evidence, that defendant paid plaintiff $25 per week compensation for ten weeks, together with the evidence of plaintiff's earnings, is sufficient to support the judgment based on that rate. Traders & General Ins. Co. v. Harper, Tex.Civ.App., 140 S.W.2d 593; Texas Employers Ins. Ass'n v. Hodnett, Tex.Civ. App., 216 S.W.2d 301; Employer's Casualty Co. v. Smith, Tex.Civ.App., 221 S.W.2d 322; Texas Employers Ins. Ass'n v. Hamor, Tex. Civ.App., 97 S.W.2d 1041; Traders & General Ins. Co. v. Slusser, Tex.Civ.App., 110 S.W.2d 598; Maryland Casualty Co. v. Romero, Tex.Civ.App., 146 S.W.2d 1096; Fidelity & Casualty Co. of New York v. Branton, Tex.Civ.App., 70 S.W.2d 780; Texas Employers' Ins. Ass'n v. Beckworth; Tex.Civ.App., 42 S.W.2d 827; Texas Employers' Ins. Ass'n v. Blanton, Tex.Civ. App., 266 S.W.2d 276.
The holding in the above cases might be criticized under the theory that such rule is socially bad, if not legally wrong, in view of its tendency to discourage the payment of weekly compensation in an amount greater than the minimum rate. The plaintiff in this case, nevertheless, would be entitled to the judgment rendered since the error, if any, was harmless. The plaintiff's rate would be the maximum under any method of computation; hence, the defendant could not have been prejudiced. Lawler, Texas Workmen's Compensation Law, p. 312, sec. 152; National Indemnity Underwriters of America v. Rocamontes, Tex.Civ.App., 110 S.W. 2d 228; Southern Underwriters v. Jordan, Tex.Civ.App., 122 S.W.2d 260; Commercial Standard Ins. Co. v. Davis, Tex.Civ. App., 135 S.W.2d 794.
Judgment is affirmed.
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286 S.W.2d 756 (1956)
STATE of Missouri, Respondent,
v.
Ray WILSON, Appellant.
No. 45005.
Supreme Court of Missouri, Division No. 1.
February 13, 1956.
*757 Wm. Duke Hiett, Houston, for appellant.
John M. Dalton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., for respondent.
COIL, Commissioner.
Ray Wilson, defendant below, has appealed from a judgment convicting him of larceny of a motor vehicle pursuant to which he was sentenced to imprisonment in the penitentiary for a term of two years in accordance with the jury's verdict. Wilson contends that the information was fatally defective; and that the trial court erred in failing to sustain his motions for judgment of acquittal, in admitting certain evidence, and in giving an instruction.
Wilson was charged with the larceny of a motor vehicle under Section 560.165 RSMo 1949, V.A.M.S. He contends that the information was fatally defective because it did not charge that he took the automobile with the felonious intent to convert it to his own use without the consent of the owner. It long has been held that an allegation like that above italicized is unnecessary in an information charging larceny. State v. Martin, 357 Mo. 368, 372 [1], 208 S.W.2d 203, 205 [1]. We see no reason to depart from the present law in that respect. The information did charge a felonious taking with intent to permanently deprive the owner of a described vehicle. The information was sufficient.
The state adduced substantial evidence from which a jury reasonably could have found that on January 12, 1952, a blue Plymouth (coach type) automobile belonging to one Randolph Truitt was stolen by defendant and two others. Randolph Truitt testified that he owned a 1937 blue Plymouth coach which he parked in Willow Springs, Missouri, on January 12, 1952; that that automobile was gone when he returned to get it; and that he never saw it again. Sergeant Barkley of the Highway Patrol testified that defendant admitted in an oral statement that defendant, Smith, and Haney had gone to Willow Springs for the purpose of stealing a car, that Haney had located a prospective car and advised defendant and Smith thereof, that the three viewed the car, and later, after Haney had driven it to the outskirts of Willow Springs, defendant and Smith drove it to Haney's farm, and the next day the three men "cut the car up" and hauled it to St. Louis where it was sold as "junk." James Smith, one of the three charged with stealing the automobile, testified that he and defendant drove the automobile from the edge of Willow Springs to Haney's farm.
Defendant contends that the foregoing evidence was insufficient to sustain a conviction for the reason that it did not show that the automobile taken was the personal property of Randolph Truitt. As noted, Truitt testified that he owned a 1937 blue Plymouth coach which he parked in Willow Springs on the afternoon of January 12, 1952. The record makes it clear enough that the automobile referred to by *758 all the witnesses as the one taken by Haney, Smith, and defendant, was the same blue Plymouth coach which Truitt had theretofore parked. It was not essential in this case, where the ownership of Truitt was not disputed, for the state to prove the motor number or license number of, or to adduce in evidence the title to, the automobile in question in order to prove that the automobile stolen was the personal property of Randolph Truitt as alleged in the information. See State v. Haney, Mo.Sup., 284 S.W.2d 417, 418 [3], and State v. Wahlers, Mo., 56 S.W.2d 26, 27 [2, 3]. Nor, contrary to defendant's contention, was it necessary under Section 560.165 to charge or prove that the Plymouth had a value of $30 or more or that it had any particular monetary value. That section made it a felony to steal "`any motor vehicle'" without regard to its value. State v. Haney, supra. The charge in the information that the automobile was "of the reasonable value of $100.00" was surplusage in an information under Section 560.165.
We have no doubt that the evidence was sufficient to make a case for the jury, and, consequently, the trial court did not err in overruling defendant's motions for judgment of acquittal.
Defendant contends that the trial court erred in permitting state's witness, Sergeant Barkley, to testify as to what Haney said concerning defendant's part in the theft after Haney, Smith, and defendant had been arrested and while the three were being questioned by officers. It is defendant's position that Haney's statement, testified to by the witness Barkley, was inadmissible under the well-established rule in this state that statements of a third party, made after a defendant is under arrest or in custody, made in the presence of defendant and undenied by him, are inadmissible against a defendant at his trial. State v. Dengel, Mo., 248 S.W. 603, 605 [2].
That rule is not applicable to the facts here. Sergeant Barkley testified that defendant made a statement, the substance of which we have heretofore set forth. On cross-examination the witness testified that Haney made the same statement as that defendant had made except that Haney said that "James Smith and Ray Wilson drove this car out of Willow Springs and drove it home," whereupon defendant had corrected Haney by reminding him that he, defendant, and James Smith refused to drive the car out of Willow Springs because they were afraid they would get caught and that Haney had said he would drive the car and meet defendant and Smith at the edge of town, from where defendant and Smith drove the car to Haney's farm where it was "cut up" and sold as junk.
It is apparent that Haney's statement was not a statement or accusation made by Haney in defendant's presence which remained undenied by defendant. On the contrary, far from remaining silent, defendant affirmatively concurred in most of Haney's statement and affirmatively corrected one portion in the detail noted. The reason for the rule relied on by defendant is that a third party's statement, admissible as an implied admission by reason of one's silence where there is a duty to speak, is rendered inadmissible where a defendant remains silent when he is under no duty to speak, as here, after his arrest. In other words, the basis for the admissibility of the third party's undenied statement as an implied admission of the defendant, does not exist where defendant is under no duty to speak. As we have noted, the facts of the instant case do not call for application of the rule.
If, however, Haney's statement, under the circumstances, was inadmissible as hearsay, it is clear that no prejudice resulted to defendant by reason of its admission. This, because defendant's part in the larceny of the motor vehicle was admitted by defendant in his voluntary statement to the highway patrolman, and Haney's statement was the same as defendant's except for one unimportant and nondecisive detail. Consequently, Haney's statement tended only to corroborate defendant's confession and its admission could not have resulted *759 in prejudice to defendant. State v. Reich, 293 Mo. 415, 424, 239 S.W. 835, 837 [8].
Defendant complains that the trial court erred in permitting state's witness James Smith (one of those charged with the theft of the automobile) to testify on redirect examination that he was not under any force, threat, or promise as to his testimony in the instant case. It appears from the transcript that Smith had been a witness in the case of State v. Haney (another of those charged with the theft of the same automobile), supra, which had been tried prior to the instant case, and had there made statements inconsistent with some of his testimony at the instant trial. On cross-examination, defendant's counsel, in attempting to impeach Smith, examined about some of the testimony Smith had given in the Haney trial. Smith answered that he had given some of that testimony "under force." Defendant made no objection or move to strike that statement. On redirect, the state's attorney was permitted to elicit from Smith that there had been no force, threat, or promise made to him for the purpose of influencing his testimony at the present trial. The trial court did not abuse its discretion in permitting that testimony on redirect examination. It seems to be appellant's position that the testimony was improper because it "built up and glorified the witness for the State" and because it appeared that defendant had not been responsible for any force, if any, used against Smith prior to the Haney trial. Aside from the fact that it was defendant's counsel who brought out on cross-examination that Smith claimed there had been some sort of force used on him as to his testimony in the other trial and perhaps may not, therefore, be in a position to urge his present contention, it does not appear that there was any impropriety in permitting the state to show that, irrespective of what may have occurred as to threats or force against the witness at the other trial, no like threats, force, or promises had been made to influence the witness' testimony at the present trial. And this is true, irrespective of the fact that it appeared that this defendant had nothing to do with the force or threats against the witness Smith at the former trial. In other words, the propriety of permitting the testimony as to the absence of force on the witness at the instant trial did not depend upon the identity of the person or persons responsible for the force used to influence his testimony at the other trial. Defendant cites no authority to sustain his present contention and we are convinced that the trial court did not abuse its broad discretion as to the scope of redirect examination by permitting the question and answer.
Defendant contends that the trial court erred in giving the state's main instruction for the reason that it permitted the jury to find that the offense charged occurred "on or about the 12th day of January, 1952," and thus so enlarged the time when the jury could have found that the alleged offense occurred as to nullify the effect of defendant's alibi evidence. Defendant adduced substantial evidence from which a jury reasonably could have found that he was not present in Willow Springs on January 12 but was at another place both on January 12 and 13. Thus, says defendant, the jury could have found that the taking occurred at some time other than on January 12, thereby nullifying the effect of defendant's alibi evidence accounting for his presence elsewhere on January 12 and 13.
Defendant's contention is not valid under the evidence in the instant case. The only evidence as to the time of the alleged offense was that it occurred on January 12, 1952, between 4:30 and 9:30 p. m. There is no suggestion in the record that the state contended, nor is there anything in the record from which the jury reasonably might have found or assumed, that the taking might have occurred at some other time. Under such circumstances, it is unreasonable to say that a jury would understand that, because the instruction hypothesized the theft as taking place "on or about January 12," it could find defendant guilty as charged even though it found that defendant was not present in Willow Springs on January 12, 1952.
*760 The instant situation is unlike that in State v. Chittim, Mo., 261 S.W.2d 79, relied upon by defendant. In Chittim, defendant was charged with molesting a minor with immoral intent. The court said at 261 S.W. 2d 80: "The issue presented by the state was that the act of intercourse took place on August 7, 1951, and that issue was accepted by the defense. Therefore, there was no foundation upon which to place an instruction as to any other time, as was done by the state. This instruction nullified appellant's alibi defense which was supported by substantial evidence." The instruction in Chittim was in part: "`on the 7th day of August, 1951, or at any time within three years next before the filing of the information herein, to-wit, October 6, 1952, * * *.'" Due to the nature of the offense charged in Chittim, and the language of the instruction permitting a finding that the offense occurred either on August 7, 1951, or at some time within the period of three years prior to October 6, 1952, it was reasonable to say that the jury might have found defendant guilty of the crime charged on some date other than August 7, 1951.
In the instant case, the charge was stealing a specific vehicle and the only evidence showed that specific vehicle was stolen on January 12. Under those circumstances, the fixing of the time in the instruction as "on or about January 12th" did not, in effect, specify any time other than January 12. We are convinced that the attacked language could not have prejudiced defendant under the charge and the evidence of the instant case.
Defendant also contends that the instruction was erroneous because it directed, inter alia, that defendant was guilty if he had "the fraudulent and felonious intent to convert the same permanently to his or his accomplices' own use." Defendant correctly says that the jury could have found him guilty even though it found he had no intent to convert the automobile to his own use but found only his intent to convert the automobile to his accomplices' use.
The offense of larceny, both at common law and under our statutes (so far as the conversion element is concerned), is complete when there is an intent to convert the property to the use of the taker or to the use of some person other than the owner. In State v. Campbell, 108 Mo. 611, 18 S.W. 1109, the court, in stating what constituted a felonious taking, said: "The taking must have been without right, and with the intention of converting the cow `to a use other than that of the owner, without his consent.'" 18 S.W. 1109. It is true that most of the Missouri cases which define the elements of larceny refer to the necessary conversion ingredient as an intent to convert to the taker's own use. We think it is clear, however, that an inclusive definition as to the necessary conversion would include an intent to convert the property to the use of the taker or of some person other than the owner. 52 C.J.S., Larceny, § 1, p. 779. In the instant case the evidence showed a felonious taking of an automobile participated in by three persons. Under those facts we have no doubt that the instruction was not erroneous in having authorized the jury to predicate defendant's guilt upon a finding, inter alia, that defendant intended to convert the property to "his or his accomplices' own use."
The transcript discloses no error as to those matters not required to be preserved for our review.
The judgment is affirmed.
VAN OSDOL and HOLMAN, CC., concur.
PER CURIAM.
The foregoing opinion by COIL, C., is adopted as the opinion of the court.
All concur.
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Order entered November 26, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01036-CV
CHELSEA DAVIS, Appellant
V.
LESLIE WARE, SAMUEL BAXTER, ET AL., Appellees
On Appeal from the 254th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-13-19281
ORDER
On November 5, 2014 appellant filed a Notice of Effective Transfer and a Notice of
Withdrawal of Documents. In the Notice of Effective Transfer, appellant states that the notice “may
be akin to a notice of removal” and that it “replaces all prior documents.” In the Notice of
Withdrawal of Documents, appellant states that she “withdraws each and every statement in each and
every document submitted to this Court.” To the extent appellant is requesting any action by this
Court, we treat her two documents as motions. We DENY appellant’s motions.
/s/ CAROLYN WRIGHT
CHIEF JUSTICE
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648 So. 2d 1258 (1995)
R.C., a Juvenile, Appellant,
v.
The STATE of Florida, Appellee.
No. 94-2064.
District Court of Appeal of Florida, Third District.
February 1, 1995.
Bennett H. Brummer, Public Defender, and Julie M. Levitt and Donald Tunnage, Sp. Asst. Public Defenders, for appellant.
Robert A. Butterworth, Atty. Gen., and Joni Braunstein, Asst. Atty. Gen., for appellee.
*1259 Before SCHWARTZ, C.J., and BARKDULL and GODERICH, JJ.
SCHWARTZ, Chief Judge.
On the way into the courtroom for his delinquency hearing, the juvenile appellant kicked the courtroom door. When the bailiff, who was following him, told him not to do that, R.C. told him in return to "go f____k yourself."[1] We hold that the trial judge properly found, on the basis of this conduct, that R.C. was guilty of direct criminal contempt. In our view, even though the incident occurred technically outside the courtroom, the scatological language directed at an officer of the court in the due execution of his duty was clearly "calculated to lessen [the court's] authority or its dignity," and was therefore contemptuous. Ex parte Crews, 127 Fla. 381, 389, 173 So. 275, 279 (1937); see Woody v. State ex rel. Allen, 572 P.2d 241 (Okla. Crim. App. 1977) (defendant leaving courtroom making obscene gestures and threatening police officer-witnesses found to be willfully contemptuous); Estes v. State, 192 Miss. 400, 6 So. 2d 132 (1942) (witness gritting teeth and scowling at district attorney in threatening manner in courtroom and stating "I'll see you when you come down" constitutes contempt); see also Carroll v. State, 350 So. 2d 723 (Ala. Crim. App. 1977) (venireperson using vulgar language to court reporter in courtroom while judge temporarily absent constitutes constructive contempt); People v. Reeves, 23 Ill. App. 3d 579, 319 N.E.2d 567 (1974) (respondent striking assistant state attorney in corridor outside courtroom constitutes indirect criminal contempt).[2]
Affirmed.
NOTES
[1] The judge was also in the area and himself heard the offending remark. After the hearing, which was therefore properly conducted summarily under Fla.R.Juv.P. 8.285(a), see Fla. R.Crim.P. 3.830, he concluded that the statement had been directed only at the bailiff, and not at him.
[2] This case does not involve the perceived procedural deficiency, and we do not share the self-tortured reticence to enforce the trial court's contempt authority which together drove the decision in Schenck v. State, 645 So. 2d 71 (Fla. 4th DCA 1994). Indeed, this court has very recently PCA'd a determination that a defendant who, almost exactly like Schenck, said "f____k you" as she was leaving the courtroom, was in contempt. See Best v. State, 648 So. 2d 734 (Fla. 3d DCA 1994).
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363 S.W.2d 912 (1963)
SOUTHERN PIPE COATING, INC. Appellant,
v.
SPEAR & WOOD MFG. CO., Appellee.
No. 5-2880.
Supreme Court of Arkansas.
January 21, 1963.
Nance & Nance, West Memphis, for appellant.
Hale & Fogleman, West Memphis, for appellee.
McFADDIN, Justice.
The only point urged on this appeal is that the Trial Court committed reversible error in refusing to direct a verdict for the appellant; so in testing the ruling of the Trial Court we view the evidence in the light most favorable to the appellee, as is our rule. Ark. P. & L. Co. v. Connelly, 185 Ark. 693, 49 S.W.2d 387; Life & Cas. Ins. Co. v. Kinney, 206 Ark. 804, 177 S.W.2d 768; Mo. Pac. Ry. Co. v. Hopper, 208 Ark. 128, 185 S.W.2d 88.
Appellant, Southern Pipe Coating, Inc., is a corporation engaged in the business of coating pipe. Appellee, Spear & Wood Manufacturing Company, is a corporation engaged in manufacturing and selling pipe. In January 1959 appellee obtained a contract to sell pipe in Greenwood, Mississippi, provided the pipe was coated to comply with the specifications of the American Water Works Association, herein referred to as "AWWA Specifications." Appellant agreed to coat the pipe for appellee in accordance with such specifications; and it is this contract and the work of the appellant thereunder that gives rise to the present litigation.
The appellant, by letter of February 3, 1959, addressed to appellee, proposed a certain price for "coating and wrapping the following pipe according to AWWA Specifications, the interior to be spun lined; the exterior to be coated and wrapped with 15 pound felt with a whitewash and to be cut back approximately 9 inches from the ends. The pipe is to be sand blasted by you, to be done on your premises in West Memphis, Arkansas, available space is to be provided by you, as well as machinery and handling to be furnished by you."[1] The said offer was accepted by the appellee by purchase order, and the appellant undertook *913 to perform the contract. All parties understood the AWWA Specifications, which were that the thickness of the enamel to be applied should be 3/32 inches thick, plus or minus 1/32 inches tolerance.
There appear to be several methods whereby pipe may be coated with enamel: either the "Weir Method,"[2] the "Trough Method,"[3] or the "Dam Method."[4] The appellant, Southern Pipe Coating, Inc., was free to use any method it desired to accomplish the coating of the pipe to the required specifications. Southern Pipe Coating, Inc. had previously sold to Spear & Wood a trough which could be used in applying the enamel through the trough method; and without so informing Spear & Wood, the appellant intended to use the trough that had been sold to Spear & Wood. But when appellant's workmen reached the premises of Spear & Wood, they found that the said trough had been damaged. Without insisting on the repairing of the trough, the furnishing of another trough, or any other equipment to be furnished by appellee, the appellant undertook to coat the pipe by what is called the "dam method."
When appellant had completed the coating, the pipe was shipped to Greenwood for its designated use, and was rejected by the engineer and the contractor because the pipe was not properly coated according to AWWA specifications. Appellee called on appellant to correct the defects in the coating, and there is some controversy between the parties as to what occurred; but there is substantial evidence that the appellant refused to repair the incorrect coating except on a new condition, that is, "machinery and equipment necessary to control thickness of application to be furnished by you." Appellee took the position that appellant should perform the original contract without requiring appellee to furnish any new equipment at such late date. When appellant refused, appellee had the pipe satisfactorily recoated by another company; and then filed this suit for damages, which the jury awarded. From that judgment there is this appeal.
So much for the facts. As heretofore stated, appellant insists that it was entitled to an instructed verdict because the appellee had failed to furnish machinery in accordance with the original contract of February 3, 1959. We have heretofore stated the language of that contract: it said, "available space is to be provided by you,[5] as well as machinery,[6] and handling to be furnished by you." Appellant insists that appellee did not furnish the trough (i. e., machinery) that appellant expected; that it was the failure to furnish such trough that brought about the defective coating; and that because a good trough was not furnished originally, then appellee committed the first breach of the contract, and cannot pursue appellant.
We do not agree with appellant's contention that it was entitled to an instructed verdict. Under the evidence, waiver was a question of fact for the jury. We have a number of cases which hold that one side may waive a breach of the contract by the other side and then be liable for its own subsequent breach of the contract. Some of these cases are: Truemper *914 v. Thane Lbr. Co., 154 Ark. 524, 242 S.W. 823; Grayling Lbr. Co. v. Hemingway, 128 Ark. 535, 194 S.W. 508; Wolff v. Alexander Film Co., 186 Ark. 848, 56 S.W.2d 424; and Clear Creek Oil Co. v. Brunk, 160 Ark. 574, 255 S.W. 7. In the last cited case, Chief Justice McCulloch used this language:
"The principle is elemental that one party to a contract who, with knowledge of a breach by the other party, continues to accept benefits under the contract, and suffers the other party to continue in performance thereof, waives the right to insist on the breach. Friar v. Baldridge, 91 Ark. 133, 120 S.W. 989; Grayson-McLeod Lbr. Co. v. Slack, 102 Ark. 79, 143 S.W. 581; Bennett Lbr. Co. v. Walnut Lake Cypress Co., 105 Ark. 421, 151 S.W. 275; Marker v. East Arkansas Lbr. Co., 135 Ark. 435, 205 S.W. 818; 6 R.C.L. 1022."
In Bennett Lumber Co. v. Walnut Lake Cypress Co., supra, Mr. Justice Hart, in summarizing the evidence of waiver of the first breach in that case, said: "Thus it will be seen that Ladd acted with the full knowledge of all the facts and circumstances connected with the alleged breaches of the contract and will be deemed to have waived them." To the same effect as our own cases, see generally 12 Am.Jur. 919 et seq., "Contracts" § 354; and 17 C.J.S. Contracts § 491 and § 493, p. 992 et seq.
Even if we assume that the appellant, in February 1959, could have claimed a breach of the contract to have been committed by the appellee (for failure to furnish a usable trough), nevertheless it was a question for the jury as to whether the appellant waived such breach by undertaking the performance of the contract after knowledge of such breach. With a jury question made, it follows that the Trial Court was correct in denying appellant's request for an instructed verdict.
Affirmed.
NOTES
[1] There were two of these proposals and two purchase orders; but the contract, as shown by the said proposal and purchase order, was the same in both instances.
[2] In the "Weir Method" applying the enamel is accomplished by inserting in the pipe a device, with a nozzle attached to the end, and spraying the enamel onto the pipe while withdrawing the nozzle.
[3] In the "Trough Method," a vee or semi-circle trough is inserted in the pipe; enamel is poured into the trough; and the pipe is rotated. As the pipe turns, the trough is inverted, pouring the enamel onto the pipe, and centrifugal force spreads the enamel over the interior surface of the pipe.
[4] In the "Dam Method," a rubber hose is placed in the ends of the pipe to make a dam, and the enamel is then poured into the pipe. There is some testimony that the "dam method" will not comply with the AWWA Specifications.
[5] That is, by Spear & Wood.
[6] Emphasis our own.
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998 So. 2d 946 (2008)
Kern BROUSSARD
v.
HILCORP ENERGY COMPANY, Beta Operating Company, LLC, Chevron U.S.A., Inc., Texas Petroleum Investment Company, ConocoPhillips, Union Oil Company of California, Swift Energy Company, Pacific Enterprises Oil Company (USA), K-Exploration Co., Sandoz & Associates, Inc., J.O. Easley, Inc. Winston L. Stokes, State of Lousiana.
No. 08-233.
Court of Appeal of Louisiana, Third Circuit.
December 10, 2008.
Rehearing Applications Denied January 28, 2009.
*947 Arthur M. Murray, Jessica W. Hayes, Korey A. Nelson, Stuart H. Smith, Michael G. Stag, Amber E. Cisney, New Orleans, LA, Warren A. Perrin, Donald Landry, Lafayette, LA, for Plaintiffs-Appellants, Kern Broussard.
Paul J. Hebert, Mark D. Sikes, J. Bradley Duhé, Lafayette, LA, for Defendant-Appellee, Hilcorp Energy Company.
*948 Thomas M. McNamara, Patrick W. Gray, Jessica T. Gachassin, Lafayette, LA, S. Suzanne Mahoney, New Orleans, LA, for Defendant-Appellee, Shell Pipeline Company, LP.
Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and CHRIS J. ROY, Judges.
PAINTER, Judge.
Plaintiffs, Kern Brossard and Nettie Ann Dubois Broussard, appeal the judgment of the trial court dismissing their claims against all Defendants based on exceptions of prematurity, vagueness and ambiguity of the petition, improper cumulation of actions, including improper joinder of parties, and lack of subject matter jurisdiction. For the following reasons, we reverse in part, affirm in part and render.
FACTS
Plaintiffs own real property in Vermilion Parish, Louisiana, on which mineral, surface, and subsurface leases have been granted to Hilcorp Energy Company (Hilcorp), Texaco Exploration and Production, Inc. (Texaco), Texas Petroleum Investment Company (TPIC), ConocoPhillips, Sabine Pipeline, Inc., Plains Pipeline, and Shell Pipeline, Inc. for oil and gas operations on the property. Plaintiffs allege that these entities, along with Bridgeline Gas Distribution, LLC, negligently conducted their oil and gas operations. Plaintiffs further allege that TPIC together with Rodney Lemaire, who was allegedly hired by TPIC to clean up the property, attempted to conceal contamination by burying contaminated soil.
PROCEDURAL HISTORY
Plaintiffs first filed suit in Civil District Court in Orleans Parish, Louisiana praying for damages in solido against all the defendants for damages done to their property. The suit alleged that the Plaintiff owned property in the Erath Field in Vermilion Parish as follows: NE/4 of Section 17 of Township 13 South, Range 4 East, NW/4 of SE/4 of Section 21 of Township 13 South, Range 4 East, and NW/4 of Section 28 of Township 13 South, Range 4 East, that the property was subject to certain oil, gas, and mineral leases between Plaintiffs and Defendants, and that the property had been damaged by Defendants' oil and gas related activities. The petition named as Defendants Hilcorp Energy Company (Hilcorp), Beta Operating Company, LLC, Chevron U.S.A. (Chevron) as successor in interest to Texaco Exploration and Production, itself successor to Texaco Producing, Inc., which was successor to Texaco, Inc.; Texas Petroleum Investment Company (TPIC); ConocoPhillips Company (Conoco) as successor to Phillips Petroleum Company which was a successor to Phillips Oil Company;Union Oil Company of California, a partner with Union Exploration Partners, Ltd.; Swift Energy Company; Pacific Enterprises Oil Company (Pacific); K-Exploration Co. (K-Ex); Sandoz & Associates, successor to Henry & Sandoz, Inc.; Easley, Inc.; J.O, Winston L. Stokes; the State of Louisiana through the Department of Natural Resources (DNR); and the State of Louisiana through the Department of Environmental Quality (DEQ). The petition named sixteen wells alleging that "[s]ome or all of the named Defendants operated or controlled the following wells and/or units located on or near Plaintiff's property." Plaintiffs alleged that "Defendants knew or should have known that their day to day operations in the Erath Fields would cause the soil, surface waters and ground waters of plaintiff's property to be contaminated" and that, rather than removing the contamination, Defendants chose to conceal it. The petition alleged that the DNR had *949 been negligent in connection with the permitting, inspection, and testing of the Conoco plant. As a result, Plaintiff asserted that Defendants were liable to him in solido under theories of both negligence and strict liability. The suit was amended to include an additional defendant, Beta Operating, Inc.
TPIC, Chevron, Conoco, and Hilcorp filed exceptions of improper venue, lack of subject matter jurisdiction, improper cumulation of actions, prematurity, and vagueness.
Plaintiff again amended his petition to add Nettie Ann Dubois Broussard as a Plaintiff and to add as Defendants Shell Pipeline Company (Shell) as successor in interest to Equilon Pipeline Company, which was successor in interest to Texas Pipeline, Inc., Plains Pipeline, L.P (Plains), Rodney LeMaire, and Texaco Exploration and Production (TEP). The amended petition further alleged that Conoco, TPIC, Texaco, Plains, Shell, Hilcorp, Beta, Union, Pacific, K-Ex, Sandoz, Easley and Stokes conducted oil and gas related activities on Plaintiffs' property at all relevant times and abandoned and improperly closed oil waste pits on the property, and knowingly performed improper cleanups, thereby breaching their lease agreements. The amended petition further asserted that Lemaire was retained by TPIC to perform remediation and that he negligently caused substandard remediation to be performed and allowed toxic substances to enter the soil and ground water of Plaintiffs' property. Additionally, it was alleged in the amended petition that the DNR and DEQ were negligent in their monitoring of the disposal procedures used by Defendants named therein for solid hazardous wastes. Chevron, Shell, and Texaco reurged their exceptions. The matter was transferred to Vermilion Parish, Louisiana, pursuant to the exceptions of improper venue.
Rodney Lemaire raised an exception of prematurity. The Plaintiffs dismissed with prejudice their claims against the DNR and the DEQ, having earlier dismissed their claims against Swift.
On July 25, 2006, Plaintiffs amended their petition to name additional Defendants, Sabine Pipeline, LLC, Sea Robin Pipeline, and Bridgeline Gas Distribution, LLC. The amendment further added the claim that on September 24, 2005, a pipeline or equipment leak on or nearby the property described as "40 acres situated in the NW 1/4 of the SE/14 (sic) of Section 21, Township 13 South, Range 4 East Vermilion Parish, allowed a release of oil and/or hydrocarbon contaminated materials onto the Petitioners' property." The amendment further added claims that Bridgeline and Texaco conducted the operations resulting in the spill and that Texas Petroleum instructed employees and contractors to perform cleanup. The amended petition further alleged that contaminated soil was dumped onto other areas of Plaintiffs' property by TPIC, Rodney Lemaire, and their employees and/or contractors. Additionally, Plaintiffs asserted that in January 2006, Bridgeline began discharging an unknown liquid from a tank into the nearby drainage ditch onto the road and nearby property. Plaintiffs claimed that Defendants' improper disposal of hazardous solid and liquid waste and other alleged activities constituted a breach of the mineral and surface leases on the properties located on Sections 21 and 28, Township 13 South, Range 4 East.
Bridgeline, Sabine, Chevron, Shell, Plain, Conoco, TPIC, Lemaire, and Hilcorp urged or re-urged exceptions of improper cumulation of actions, vagueness and nonconformity with La.Code Civ.P. art. 891, and lack of subject matter jurisdiction.
The exceptions were heard on May 7, 2007. The exceptions of vagueness, prematurity, *950 improper cumulation of actions, and non-conformity with La.Code Civ.P. art. 891 were granted, and Plaintiffs were given 30 days from the date of the hearing to cure the bases for granting the exceptions.
On June 7, 2007, Plaintiffs filed a Fourth Supplemental and Amending Petition for Damages. The amended petition added the assertion that Texaco operated well # 166292 in the NE 1/4 of Section 17, Township 13 South, Range 4 East pursuant to a mineral lease, that Texaco sold its rights to a lease from Aristide and Sulie Broussard dated March 24, 1936, to Hilcorp in 1995. Plaintiffs further asserted in the amended petition that well # 166292 was reported shut in as of March 1, 1998 and that Texaco and Hilcorp failed to properly plug and abandon the well, which caused a threat to the environment and ground water and constituted a breach of their duty to act as prudent administrators under the lease. It was further alleged that Texaco and Hilcorp operated unlined production pits on the property and dumped oilfield waste into the pits and actively sought to conceal the toxic waste disposed of on Plaintiffs' property, knew and failed to disclose that the wastes would not degrade or break down over time, and that the improper disposal and concealment thereof were a breach of the lease.
Plaintiffs, in the amended petition, further asserted that Hilcorp, Texaco, TPIC, and Conoco operated on "a certain tract or parcel containing 40 acres, situated in the NW/4 of the SE/4 of Section 21, Township 13 South, Range 4 East in Vermilion Parish" pursuant to a mineral lease. Plaintiffs further alleged that Texaco and Hilcorp operated unlined production pits on the property, dumped oilfield waste into the pits, and attempted to hide the contamination by adding chemicals to the soil, moving contaminated soil, and burying the contamination under fill soil. Plaintiffs further asserted that TPIC and Lemaire knowingly dumped or buried contaminated waste on a four acre portion of the same tract and attempted to conceal the acts.
Plaintiffs also added assertions that Sea Robin, Sabine, Shell, and Plains operated pipelines or pipeline facilities on the NW 1/4 of the SE 1/4 of Section 21, Township 13 South, Range 4 East, that Sabine operates two pipelines crossing the same property, and that pipeline and/or equipment leaks occurred on September 24, 2005, involving the equipment and/or facilities. The leaks allegedly affected the Plaintiffs' property. Additionally, the amended petition added assertions that on January 7, 2006, Bridgeline began discharging an unknown liquid from a tank into a nearby drainage ditch and onto the road and neighboring properties, causing damage to the property located at "a certain tract or parcel containing 40 acres, situated in the NW/4 of the SE/4 of Section 21, Township 13 South, Range 4 East in Vermilion Parish."
Allegations were further added with regard to property located in Section 28, Township 13 South, Range 4 East. Plaintiffs alleged that Conoco, and later TPIC, operated a saltwater disposal site on the N/2 of the SE/4 of that tract pursuant to an easement contract between Rexby Dubois and Phillips Petroleum (later Conoco) dated January 1, 1983, and that although it terminated operations in 2002, TPIC continued to enter the property and bury solid hazardous waste on the property. Plaintiffs alleged that between March and May 2004, TPIC and Lemaire trespassed on a four acre portion of Plaintiffs' property to dispose of hazardous oilfield waste.
Further, Plaintiffs alleged that Phillips Petroleum Company operated wells on the W/2 of the N/2 of the SE/4 of Section 28, *951 Township 13 South, Range 4E from January 1984 to August 1985 and by TPIC from January 1992 until July 2003. Plaintiffs further alleged that Phillips Petroleum, Phillips Oil and TPIC operated well 971164, Vermilion SWD well Number D-7 from 1983 until 2003 and that Phillips Petroleum operated well 29402, Vermilion SWD # D-1 from 1944 to 1987 pursuant to a lease dated July 11, 1941. They alleged that portions of the property were contaminated by the exploration and production of Defendants.
Shell, Hilcorp, Conoco, TPIC, Lemaire, Plains, and Chevron urged or re-urged exceptions of prematurity, vagueness, improper cumulation of actions, and lack of subject matter jurisdiction. On October 3, 2007, the trial court found that the amended petition had not cured the defects made the basis of the court's ruling of May 7, 2007, and dismissed Plaintiffs's action without prejudice.
Plaintiffs appeal the trial court's ruling. They argue that they were not required to make amicable demand prior to suit, that their claims are ripe for review, that they were not required to seek relief from an administrative agency before filing suit against an oil company, that the district court had subject matter jurisdiction over this case, that the claims are properly cumulated, and that the petition satisfies the pleading requirement of La.Code Civ.P. art 891.
DISCUSSION
Compliance with La.Code Civ.P. art 891 and Vagueness
Plaintiffs argue that the trial court erred in granting the exceptions of failure to comply with La.Code Civ. P. art 891 and of vagueness.
Louisiana Code of Civil Procedure article 891 requires that a petition "contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation" There are no technical forms of pleadings; all allegations of fact shall be set forth in numbered paragraphs, and shall be simple, concise, and direct. La. C.C.P. art. 854. In pleading fraud, the circumstances constituting fraud must be alleged with particularity; malice, intent, knowledge, and other conditions of mind of a person may be alleged generally. La. C.C.P. art. 856.
The purpose of the objection of vagueness is to place the defendant on notice of the nature of the facts sought to be proved so as to enable him to identify the cause of action, thus preventing its future relitigation after a judgment is obtained in the present suit. Snoddy v. City of Marksville, 97-327, p. 5 (La.App. 3rd Cir.10/8/97), 702 So. 2d 890, 893. However, the objection of vagueness does not entitle the defendant to demand exactitude and detail of pleading beyond what is necessary to fulfill the aims outlined above. Snoddy, 97-327 at p. 5, 702 So.2d at 893. If the plaintiff's petition fairly informs the defendant of the nature of the cause of action and includes sufficient substantial particulars to enable the defendant to prepare its defense, then the exception of vagueness will be denied. Whipple v. Whipple, 408 So. 2d 390, 392 (La.App. 1st Cir.1981), writ not considered, 412 So. 2d 1089 (La. 1982). Because the exception of vagueness is a dilatory exception, it must be pleaded prior to or in the answer, or it is waived. La. C.C.P. arts. 926(A) and 928. Shatoska v. Whiddon, 468 So. 2d 1314, 1318 (La.App. 1st Cir.), writ denied, 472 So. 2d 35 (La.1985).
Vanderbrook v. Jean, 06-1975, p. 5 (La. App. 1 Cir. 2/14/07), 959 So. 2d 965, 968.
*952 After reviewing the petitions filed by Plaintiffs, we find that taken as a whole, they contain sufficient statements of fact to "place the defendant on notice of the nature of the facts sought to be proved so as to enable him to identify the cause of action." Id. Accordingly, we reverse the trial court's judgment insofar as it grants the exceptions of vagueness and/or failure to comply with La.Code Civ. P. art 891.
Prematurity
Plaintiffs further assert that the trial court erred in granting Defendants' exceptions of prematurity. In the trial court, Defendants argued that the action for damages was premature in that the leases[1] provided for cleanup only after termination of operations on the property and that the mineral code provides for a putting in default prior to filing suit for certain breaches of mineral leases.
This court in Hardee v. Atlantic Richfield, 05-1207, pp. 5-10 (La.App. 3 Cir. 4/5/06), 926 So. 2d 736, 740-42 found the court's earlier decision in Dore Energy Corp. v. Carter-Langham, Inc., 04-1202, 04-1233, 04-1373, 05-0006 (La.App. 3 Cir. 5/4/05), 901 So. 2d 1238, writs denied, 05-1484, 05-1493, 05-1496, 05-1492, 05-1503, 05-1521, 05-1576, 05-1577, 05-1582 (La.1/9/06), 918 So.2d 1042-1047, applicable, as follows:
Even assuming that some wells subject to the leases at issue are still producing, we find no merit in the defendants' primary argument that the plaintiffs' cause of action does not arise in any event until after the leases are terminated.
....
... [T]his court concluded that, while the duty of the lessee to restore the land to its former state, reasonable wear and tear excepted, was an obligation not due until completion of operations, the claims for negligence, breach of contract, exemplary damages, damages for trespass, and maritime tort arising from the lessee's obligation to maintain the leased land as a reasonably prudent operator as required under La.R.S. 31:122 did not have to wait until completion of operations to be heard.
....
... [I]f the defendants have exercised their rights under the leases unreasonably or excessively, La.R.S. 31:122 impliedly imposes the duty of restoration even if there is no express lease provision requiring restoration. This has two consequences in the present case. First, because the petition alleges that the defendants exercised their rights under the lease unreasonably and excessively, the petitioners have alleged a violation of the implied statutory obligation of the defendants under that statute. Second, having alleged specific conduct that violates the lease obligation, the plaintiffs have the right to proceed to trial and prove, if they can, that the defendants have in fact violated the terms of the lease, as well as their statutory obligations under the Louisiana Mineral Code and the Louisiana Civil Code. It is a matter of a defense on the merits, and not an objection to the petition as being prematurely filed, that by the terms of the lease and whatever specific rights may have been granted to the lessees therein, the petitioners gave their assent to the alleged changes in the property or that it was "`worn and torn'" in the manner the parties' [sic] contemplated. See Terrebonne Parish Sch. Bd., 893 So.2d at 800. If such a defense exists, however, it is not the *953 responsibility of the plaintiffs to anticipate that defense and plead against it at the risk of the petition being found premature for failure to so plead.
The petitions filed herein assert that Defendants have "exercised their rights under the leases unreasonably or excessively" and have failed to operate the leased properties as reasonably prudent operators. Therefore, under the reasoning of the Dore case, Plaintiffs' action is not premature. Accordingly, we reverse that part of the trial court's judgment which grants Defendants' exceptions of prematurity.
Improper Cumulation
Louisiana Code of Civil Procedure article 463 provides for cumulation of actions as follows:
Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if:
(1) There is a community of interest between the parties joined;
(2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and
(3) All of the actions cumulated are mutually consistent and employ the same form of procedure.
Except as otherwise provided in Article 3657, inconsistent or mutually exclusive actions may be cumulated in the same suit if pleaded in the alternative.
The question before this court is whether there is a community of interest between the parties joined.
The test in determining whether the parties have a community of interest is whether the cumulated causes of action arise out of the same facts or whether they present the same factual or legal issues. Strahan et. al. v. Maytag Corp., et al., 99-0869, 760 So. 2d 463, 468 (La. App. 4 Cir.2000). Essentially, community of interest is present between different actions or parties, where enough factual overlap is present between the cases to make it commonsensical to litigate them together. See also First Guaranty Bank v. Carter, 89-0862, 563 So. 2d 1240 (La.App. 1 Cir.1990) (citing, The Official Revision Comments to Article 463 which states that a review of Louisiana case law indicates that a community of interest and common interest refer to exactly the same concept).
Albarado v. Union Pacific Railroad Co., 00-2540, p. 11 (La.App. 4 Cir. 4/25/01), 787 So. 2d 431, 438.
After reviewing the record herein, especially the pleadings filed by Plaintiffs, we cannot say that there is enough factual overlap present between all the actions to make it commonsensical to litigate them together. The properties allegedly affected by the contamination are five non-contiguous tracts located in 3 separate sections, different parties and combinations of parties are alleged to have contributed to the contamination on each, and the times at which contamination allegedly occurred differs for each property. The proof of damages for each will necessarily be different as well as the amount of damages, if any, and the people and/or entities found liable, if any. Therefore, we find that the claims made do not all share a community of interest. As a result, we find that the trial judge correctly ruled that the actions were improperly cumulated.
Louisiana Code of Civil Procedure article 464 provides for the effect of improper cumulation of actions a follows:
When the court lacks jurisdiction of, or when the venue is improper as to, one of the actions cumulated, that action shall be dismissed.
When the cumulation is improper for any other reason, the court may: (1) *954 order separate trials of the actions; or (2) order the plaintiff to elect which actions he shall proceed with, and to amend his petition so as to delete therefrom all allegations relating to the action which he elects to discontinue. The penalty for noncompliance with an order to amend is a dismissal of plaintiff's suit.
Defendants raised subject matter jurisdiction by way of exceptions, arguing that the trial court should not assert jurisdiction until the issues raised had been addressed by the Louisiana Office of Conservation. The judgment indicates that all exceptions were granted. However, the Louisiana Supreme Court in Corbello v. Iowa Production, 02-0826, pp. 19-20 (La.2/25/03), 850 So. 2d 686, 701 stated that:
Private landowners in Louisiana have no duty to seek relief from an administrative agency before filing suit against an oil company. In fact, our decision in Magnolia Coal, supra, allows a trial court to award damages caused by failure to restore without requiring the plaintiff to first seek relief through the Department of Natural Resources, the agency charged with protecting the State's natural resources as public trustee. We expressly found in Magnolia Coal that "damages from soil pollution are within the conventional knowledge and expertise of a trier of fact and the court of appeal erred in deciding that the plaintiff's damages cannot be fixed until the commissioner of conservation holds a new hearing." Magnolia Coal, 576 So.2d at 484.
Therefore, the trial court did have subject matter jurisdiction over the claims raised by Plaintiffs. Accordingly, the trial court should have ordered separate trials or ordered Plaintiffs to delete allegations about the action or actions with which they chose not to continue. However, it was not appropriate to dismiss the claim for failure to amend to "cure the bases for the exceptions."
Amicable Demand
The parties further contest the need for amicable demand before filing suit in this matter. Plaintiffs do not assert that they made amicable demand on Defendants, rather they argue that amicable demand was not needed.
The Mineral Code requires notice before filing suit only with regard to claims for failure to pay royalties and production payments and in La.R.S. 31:136 as follows:
If a mineral lessor seeks relief from his lessee arising from drainage of the property leased or from any other claim that the lessee has failed to develop and operate the property leased as a prudent operator, he must give his lessee written notice of the asserted breach to perform and allow a reasonable time for performance by the lessee as a prerequisite to a judicial demand for damages or dissolution of the lease. If a lessee is found to have had actual or constructive knowledge of drainage and is held responsible for consequent damages, the damages may be computed from the time a reasonably prudent operator would have protected the leased premises from drainage. In other cases where notice is required by this Article damages may be computed only from the time the written notice was received by the lessee.
These provisions do not apply to Plaintiffs' claims. However, Hilcorp, uniquely among Defendants, attached an affidavit and leases affecting the properties to its exception. Hilcorp's lease contains a provision requiring notice of "facts relied on as constituting breach" of the lease. Therefore, the trial court correctly dismissed Plaintiffs' claims of breach of the lease contract against Hilcorp. Plaintiffs may continue to pursue any causes of action *955 against Hilcorp which do not arise out of a breach of a lease. However, in the absence of proof of the lease provisions applicable to the relationships between Plaintiffs and the remaining Defendants, the judgment of the trial court as to the need for amicable demand is reversed.
CONCLUSION
For these reasons, the judgment of the trial court is reversed in part, affirmed insofar as it found Plaintiffs' actions improperly cumulated and insofar as it dismissed Plaintiffs' demand for breach of contract against Hilcorp for failure to give notice as required by the leases, and remanded with instructions to take actions as set forth in La.Code Civ.P. art. 464. Costs of this appeal are assessed 75% to Defendants and 25% to Plaintiffs.
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.
NOTES
[1] We note that only Hilcorp's leases are to be found of record in this matter.
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363 S.W.2d 571 (1963)
Mary CARR, Appellant,
v.
MONTGOMERY WARD & COMPANY, Inc., Respondent.
No. 49285.
Supreme Court of Missouri, Division No. 1.
January 14, 1963.
*572 Rose & Brown, V. C. Rose, Herbert S. Brown, Trenton, for appellant.
Somerville & Cleaveland, Ronald L. Somerville, Chillicothe, for respondent.
HOLLINGSWORTH, Judge.
Plaintiff, a former employee of defendant, brought this action to recover actual damages in the sum of $5,000 and exemplary damages in the sum of $25,000, on grounds that, following her discharge as such employee, defendant, upon written request made by plaintiff, unlawfully and maliciously refused to issue to her the so-called "service letter" required by § 290.140 RSMo 1959, V.A.M.S. Attached to and made a part of her petition was plaintiff's Exhibit "A", being the letter pleaded by plaintiff as the written request made by her for said "service letter". Defendant filed its duly verified motion to dismiss the petition, averring that Exhibit "A" attached to plaintiff's petition was the sole written request received by defendant from plaintiff and that said letter "was not, * * * as a matter of law, a request for a `service letter' within the meaning of § 290.140 * * * and plaintiff has therefore failed, as a matter of law, to comply with and bring herself within the terms of said section * * *." The prayer of the motion was that the petition be dismissed with prejudice at the cost of plaintiff, which motion, upon final hearing, was sustained as prayed. Plaintiff has appealed from the judgment accordingly entered. This court has jurisdiction because the amount in dispute, exclusive of costs, exceeds $15,000. Article V, § 3, Constitution of Missouri, V.A.M.S.; § 477.040 RSMo 1959, V.A.M.S.
Section 290.140, in material part, reads:
"Whenever any employee of any corporation doing business in this state shall be discharged or voluntarily quit the service of such corporation, it shall be the duty of the superintendent or manager of said corporation, upon the *573 written request of such employee to him, if such employee shall have been in the service of said corporation for a period of at least ninety days, to issue to such employee a letter, duly signed by such superintendent or manager, setting forth the nature and character of service rendered by such employee to such corporation and the duration thereof, and truly stating for what cause, if any, such employee has quit such service; and if any such superintendent or manager shall fail or refuse to issue such letter to such employee when so requested by such employee, such superintendent or manager shall be deemed guilty of a misdemeanor, * * *."
The petition alleges, in substance as stated in Exhibit "A", the term of employment by defendant at its store in the city of Trenton, Grundy County, Missouri, the fact and date of her discharge by defendant on July 28, 1961, that Exhibit "A" was mailed on August 14, 1961, and by defendant received in Chicago, Illinois, in due course of mail; and that defendant failed and refused to respond. The letter is exceedingly long and much of its content is immaterial only as it may be of aid in determining whether it constituted a written request for a letter setting forth the nature and character of service rendered to defendant, the duration thereof and truly stating for what cause, if any, she quit defendant's service. For that reason, we quote it verbatim:
"Montgomery Ward President Chicago, Illinois
"Dear Sir:
"I just want to tell you how deeply hurt and humiliated I am by Ward's Trenton Store. I have been married 24 yrs. I started working the 2nd yr. of my marriage. I have worked part time off and on for Wards ever since the store opened, I worked 2 yrs. steady as Service Clerk. Then I quit and moved to Detroit. We were gone 18 months and came back.
"Once again I started working steady for Wards in the Service Dept. and intended for it to be 25 yrs., which would be an honor to be proud of. My baby girl was 18 months old when I started working and she will be 10 yrs. old next month. So I have worked steady now for 8 yrs. and 5 months plus the 2 yrs. I worked just before. (Total of 10 yrs. plus)
"I have passed all the inspections of the Auditors twice a year plus all the inspections of the Service Mgrs. at K.C.
"I was dismissed Fri. July 28th, 1961 by the Asst. Mgr. Lionel Dean, without a reason. I asked him why and he said he didn't know. But the very next day his cousin was installed in my office. I am not the only one that has been dismissed. I hear that he is getting rid of the ones he don't like and putting in his own personal friends or relatives.
"My husband can't work and we have two children to support. I am the only one in the family who works and pays bills and buys groceries.
"What hurts so terribly bad is that I have devoted my whole working life to Wards. Then they dismissed me without a reason or a notice, and that means I can't have any recommendations from Wards to get another job.
"I am desperately in need of a job. I have been all over town trying to find work. There were two open jobs that I applied for, I did not get either one. The man at the employment office told me why I did not get a job. He said that each one had called Wards and our new manager, Mr. Barnes would not tell them anything except that he could not recommend me. So naturally they thought that I had committed a crime or something and would not employ me.
"But I want you to know I have not done one single thing that was *574 wrong and I have a clear conscience with God. I am a saved and sanctified Christian. I am sure that you are a Christian too. I can tell by the wonderful article you wrote in one of our `Foreward' Magazines.
"All that I am asking of you is to see that my name is cleared on the Chicago Books. I still like Wards as a company and have always considered it part of my life.
"Could you look up some of the reports over the years sent in by the auditors and please send me a letter of recommendation so that I might obtain work. If I go to another city or town would it ever be possible for me to work in a M.W. Store. You see I would still have to have references.
"If Mr. Barnes did not like my work why didn't he take my office job away and put me on the sales floor. He did not have to fire me after all these years.
"Please do something to help me.
"Will be waiting for an answer soon.
"Mrs. Mary Carr
1524 Carnes St.
Trenton, Missouri"
Plaintiff's sole contention on appeal is that the petition, to which Exhibit "A" was attached and made a part, did allege facts sufficient to constitute a claim upon which she was entitled to relief, in that Exhibit "A" did constitute a sufficient request for a service letter as required of defendant under the provisions of § 290.140.
In the absence of contract or contrary statutory provision, no employee has a right to continued employment, however long may have been his service to his employer. Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122, 124; ACF Industries, Inc. v. Industrial Commission of Missouri, et al., Mo., 320 S.W.2d 484, 491 [5]. Neither is an employer under any duty to give his employee a letter of recommendation or "service letter" in the absence of statute, contractual provision, or custom or usage imposing such a duty. In the absence of such a statute, contractual provision, custom or usage, the fact that an employee's reputation is adversely affected by his discharge affords him no basis for recovery of damages sustained thereby. 56 C.J.S., Master and Servant § 45, pp. 439-440.
Section 290.140, supra, modifies the common law only to the extent of requiring the employer upon written request of the employee to issue to him a letter setting forth (1) the nature and character of service rendered, (2) the duration thereof and (3) truly stating for what cause, if any, he quit his service. The provisions of the statute became a part of her contract of employment. Cheek v. Prudential Ins. Co. of America, Mo., 192 S.W. 387, 393 [7]. But to make a case against his employer, the employee must plead and prove that such a request was made. If he fails so to do, his case fails. Seiller v. Kiel, Mo. App., 149 S.W.2d 463, 465. In the instant case, plaintiff alleged that she had duly made such a request, but the trial court, for the reasons hereinabove stated, held that the letter sent by her to the defendant did not constitute a written request such as would require defendant to issue to her a letter embodying the facts required under the statute.
Plaintiff places strong reliance upon the case of Brinks, Inc., v. Hoyt, U.S.C.A. 8th Cir., 1950, 179 F.2d 355. In that case, the written request made by the employee, in material part, stated, loc. cit. 360: "When you discharged me about the 6th of February, 1948, you informed me, when I asked for a letter of recommendation, that it was not the policy of the company to give such a letter. * * * I would certainly be much indebted to you if you would give me such a letter showing the time I worked for you, the kind of work I did, if satisfactory and why I was fired." The Court of Appeals said of the sufficiency of that request, loc. cit. 360: "Plaintiff may have *575 chosen the wrong word as descriptive of the letter but he definitely states that he wishes the letter to show `the time I worked for you, the kind of work I did, if satisfactory, and why I was fired.' The trial court found that this written request was a sufficient compliance with the statute. In addition to this written request there were numerous oral communications between the plaintiff and the manager relative to supplying plaintiff with a service letter. It may be that the plaintiff's conception of the letter was not as accurate as it might have been and he may have been guilty of a misnomer in describing it, but there can be no doubt that defendant's manager knew what the plaintiff was entitled to and the mere fact that he may have asked for more than he was entitled to would not be sufficient to render ineffectual his request for what he was entitled to."
We cannot construe the request made of the employer in that case to be, even in small degree, comparable to the request in our case. There, the employee, when discharged, orally asked for a letter of recommendation. But in his written request, he asked, in lay language, for substantially the identical information required of the employer under § 290.140.
In construing plaintiff's Exhibit "A", it is our duty, in the absence of ambiguity or ascertainable mistake, to give to the words and phrases used therein their plain, ordinary and usual meaning. Worthington Drainage Dist. v. Elm Township of Putnam Co., 339 Mo. 270, 96 S.W.2d 374, 375 [1, 2]. Repeated reading of the exhibit in its entirety convinces us that plaintiff sought exactly what, and only what, she really desired defendant to send her: "a letter of recommendation so that I might obtain work."
A service letter, as contemplated by the statute, may or may not constitute a recommendation. But that is not its basic purpose. "* * * [U]nder our statute if a discharged employee demands a service letter, then `truth must out', and the employee can accept the consequences." Van Sickle v. Katz Drug Co., 235 Mo.App. 952, 151 S.W.2d 489, 494 [4]. Nowhere in Exhibit "A" do we find any direct or inferable request for a letter truly stating (1) the nature and character of the service rendered by plaintiff, (2) the duration thereof and (3) the cause, if any, for her discharge. Under the authorities above cited she has no cause of action under the statute until she has made, in substance, the written request therein required.
The judgment is affirmed.
All concur.
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648 So. 2d 653 (1994)
Samuel Labarron PARKER
v.
STATE.
CR 93-995.
Court of Criminal Appeals of Alabama.
September 9, 1994.
*654 John Grow II, Mobile, for appellant.
James H. Evans, Atty. Gen., and Jean Therkelsen, Asst. Atty. Gen., for appellee.
BOWEN, Presiding Judge.
This is an appeal from a revocation of probation. The appellant, Samuel Labarron Parker, contends that the circuit court was without authority to increase his term of confinement in the penitentiary upon the revocation of his probation.
In 1991, the appellant pleaded guilty to and was convicted of, possession of a forged instrument in the second degree. His sentence of five years' imprisonment was suspended and he was placed on probation. In February 1994, the appellant was arrested on a charge of kidnapping. His probation was revoked in March 1994, based on evidence that he had committed a kidnapping and a burglary. After revoking his probation, the circuit court ordered the appellant to serve a "split" sentence on his 1991 possession case.
The circuit judge stated:
"This defendant's probation is revoked and I am going to splitHe has got a five-year sentence he is supposed to do and he really should do every minute of it, a year for year, day for day. The problem is that under the rules that the Director of the Department of Corrections has, if I give him this five-year straight time, he will be out before you can say `Jack Robinson.' But I think if I split this sentence and order him to serve three years of it, I believe the law is he has got to serve all those three years at least unless the Director of the Department of Corrections has found some way out of that law. So, that is what I am going to do." R. 18.
*655 In response, defense counsel stated: "Just for the record, I realize this is within your authority, but I would like to put in an objection for the record." R. 18. Although a motion for a new trial was made, that motion is not contained in the record on appeal.
Initially, we note that this issue appears to have been waived. Even though defense counsel objected to the appellant's sentence, he expressly admitted that the judge's action in setting the sentence was within the "authority" of the trial court. Furthermore, even assuming that the issue had been preserved for review, we find no error in the sentence imposed.
The appellant contends that if the trial court had imposed the original five-year sentence, he would have been released from prison in two years with the application of "good time." Ala.Code 1975, §§ 14-9-40 through -44. This argument, however, is based on speculation, because there is no guarantee that the appellant would "faithfully observe" the prison rules and regulations during his period of confinement so as to meet the requirements for the application of good time. See § 14-9-41(a). Furthermore, an inmate has no protected interest in "good time." See Conlogue v. Shinbaum, 949 F.2d 378, 380 (11th Cir.1991), cert. denied, ___ U.S. ___, 113 S. Ct. 123, 121 L. Ed. 2d 79 (1992); Gullett v. State, 613 So. 2d 400, 401 (Ala.Cr.App.1992).
The appellant relies on the distinction between the terms "confinement" and "sentence of imprisonment" made by this Court in Cox v. State, 548 So. 2d 1099 (Ala.Cr.App. 1989). In Cox, this Court held that a defendant who had been sentenced to 10 years' and 12 years' imprisonment was not entitled to good time under a statute that provided no correctional incentive time ("good time") for a person who received a sentence of 10 years or more, even though the defendant's sentences were "split" and the defendant was ordered to serve three years' and two years' imprisonment.
"`Contrary to the petitioner's implication, the terms "sentence of imprisonment in the penitentiary" and "confinement," as used in the Split Sentence and ACIT [good time] Acts, are not interchangeable. As §§ 13A-5-6 and 15-18-1 make it clear, all legal sentences for felonies are sentences to "imprisonment in the penitentiary." The fact that some sentences "to imprisonment" may be suspended or probated relates only to the terms of the execution and not to their basic definitional nature as sentences to imprisonment in the penitentiary.
"`. . . .
"`The terms "confinement" and "sentence of imprisonment" are not synonymous. Section 14-9-41(a) contains the phrase "confined ... in the penitentiary" in reference to those eligible for its benefits, and § 14-9-41(e) contains the phrase "received a sentence for 10 years or more in the state penitentiary" in reference to those ineligible for its benefits. "Confinement" is an obvious prerequisite for good time eligibility under § 14-9-4(a). It does not follow, however, that the exception to eligibility in § 14-9-41(e) is 10 years' actual confinement. In subsection (e), the legislature used the term "[any convict] who has received a sentence of 10 years or more in the state penitentiary" to describe those who are ineligible for good time. "Has received" is past tense and denotes the original sentence imposed upon conviction. A sentence of "10 years or more in the state penitentiary" is not equivalent to being "confined under a sentence of 10 years," especially when read in light of the other exception in subsection (e), which excludes from earning good time those convicts who have been convicted of a Class A felony. The minimum sentence for a Class A felony is 10 years. Alabama Code 1975, § 13A-5-6. Class A felons may have their sentences split under § 15-18-8 or suspended under § 15-22-50, thus resulting in a term of confinement of less than 10 years, yet they are still ineligible for good time because the legislature obviously deemed the nature of their offenses too serious to merit the benefits of good time sentence reduction. It is reasonable to assume that the legislature also concluded that anyone who received a sentence in the Class A felony range would also not merit beneficial treatment.
*656 "`This interpretation of and distinction between the terms "confinement" and "sentence" are reasonable and in accordance with the fundamental rule of statutory construction that "[w]ords used in the statute must be given their natural, plain, ordinary, and commonly understood meaning." Alabama Farm Bureau Mutual Casualty Ins. Co. v. City of Hartselle, 460 So. 2d 1219, 1223 (Ala.1984). The term "sentence" means: "The judgment formally pronounced by the court or judge upon the defendant after his conviction in a criminal prosecution, imposing the punishment to be inflicted." Black's Law Dictionary 1222 (rev. 5th ed. 1979). The term "confinement" means: "State of being confined; shut-in; imprisoned." Black's at 270.'"
Cox v. State, 548 So. 2d 1099, 1101-02 (Ala.Cr. App.1989), (quoting Thomas v. State, 552 So. 2d 875, 876-877 (Ala.Cr.App.1989), affirmed, 552 So. 2d 878 (Ala.1989) (emphasis original in Thomas).
However, a reading of Ala.Code 1975, § 15-22-54, makes it clear that the trial court did have the authority to "split" the appellant's original sentence on revocation of probation. Section 15-22-54(d), Ala.Code 1975, in pertinent part, provides:
"(2) If the court revokes probation, it may, after a hearing, impose the sentence that was suspended at the original hearing or any lesser sentence....
"(3) If revocation results in a sentence of confinement, credit shall be given for all time spent in custody prior to revocation. Full credit shall be awarded for full-time confinement in facilities such as county jail, state prison, and boot camp. Credit for other penalties, such as work release programs, intermittent confinement, and home detention, shall be left to the discretion of the court, with the presumption that time spent subject to these penalties will receive half credit. The court shall also give significant weight to the time spent on probation in substantial compliance with the conditions thereof. The total time spent in confinement may not exceed the term of confinement of the original sentence."
Construed in the context, the sentence "[t]he total time spent in confinement may not exceed the term of confinement of the original sentence," clearly refers to the total time a defendant has spent in confinementwhether it be in full-time confinement in facilities such as county jail, state prison, and boot camp, or any "partial" confinement such as work release programs, intermittent confinement, and home detention, if awardedand that such total time of confinement may not exceed the term of the defendant's original sentence. In other words, the length of a defendant's sentence (as that term is defined in Cox, supra) may not be increased after his probation is revoked.
"Because the meaning of statutory language depends on context, a statute is to be read as a whole." Ex parte Jackson, 614 So. 2d 405, 406 (Ala.1993). Words may have different meanings in different contexts. "Generally the construction or signification of the term is governed by the connection in which it is used, and depends on the context, the subject matter, and the object, purpose, or result designed to be accomplished by its use, and its meaning is to be determined from the facts and circumstances taken together in each particular case." Bayles v. Southern Guar. Ins. Co., 484 So. 2d 1065, 1069 (Ala.1986) (quoting 77 C.J.S. Resident at 305, 306 (1952)). Cf. Fleming v. Alabama Farm Bureau Mutual Casualty Insurance Co., 293 Ala. 719, 722, 310 So. 2d 200, 202 (1975) ("`"[i]t is obvious that the word (family) is one of great flexibility and has `many different meanings according to the connection in which it is used'"'"); In re Sollie, 292 Ala. 606, 609, 298 So. 2d 601, 603 (1974) ("[t]hat the phrase `court of record' may have different meanings in different contexts was recognized even before Amendment 317 was adopted"); Marshall County Bd. of Educ. v. State Tenure Comm'n., 291 Ala. 281, 286, 280 So. 2d 130, 133 (1973) ("[t]he words `political' and `personal' have many different meanings"); Ex parte Alabama State Bar, 285 Ala. 191, 193, 230 So. 2d 519, 521 (1970) ("[t]he courts have given the word conviction many different legal meanings, depending on the situations in which it is used"); Carroll v. Alabama Public Service Commission, 281 *657 Ala. 559, 562, 206 So. 2d 364, 366 (1968) ("[t]he word `misconduct' has several different meanings"); State Farm Mut. Auto. Ins. Co. v. Hanna, 277 Ala. 32, 37, 166 So. 2d 872, 876 (1964) ("[t]he word `reside' is often used to express a different meaning according to the subject matter"); Carroll v. State, 599 So. 2d 1253, 1265 (Ala.Cr.App.1992), affirmed, 627 So. 2d 874 (Ala.1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1207, 127 L. Ed. 2d 554 (1994) ("`[t]he courts have given the word conviction many different legal meanings, depending on the situations in which it is used'"); McCall v. State, 549 So. 2d 623, 625 (Ala.Cr.App.1989) ("[t]he term `custody' has different meanings depending upon the context in which it is employed"). "`A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.'" Lowe v. State, 54 Ala.App. 280, 284-85, 307 So. 2d 86, 90 (1974) (Cates, J., concurring) (quoting Towne v. Eisner, 245 U.S. 418, 38 S. Ct. 158, 62 L. Ed. 372 (1918)).
When a defendant's probation is revoked, it is impossible to determine how much of that particular defendant's original sentence would have been spent in actual confinement had the defendant not been placed on probation. Any such potential determination rests upon the assumption that the prisoner would have earned the maximum amount of "good time," that he would not have had any prison disciplinary actions resulting in "good time" deductions, that the prisoner's eligibility for earning "good time" would not have changed during his sentence, and that the same "good time" administrative regulations and statutory laws would have remained in effect throughout the prisoner's entire sentence. The effect of the appellant's argument, if adopted by this Court, would be to grant him "good time" he never earned. Such a result is unreasonable.
"The cardinal rule in interpreting legislative enactments, to which all other rules are subordinate, is that the court must ascertain and give effect to the true legislative intent. This court has many times held obvious errors in the language of statutes to be self-correcting and has declined to follow the literal language of statutes when to do so would defeat the legislative purpose in enacting the statute or would produce absurd or unreasonable results."
In re Opinion of the Justices, 267 Ala. 114, 117, 100 So. 2d 681, 684 (1958).
Therefore, we hold that in connection with Ala.Code 1975, § 15-22-54(d)(3), the phrase "term of confinement of the original sentence" means the original sentence, i.e., the maximum period of confinement the defendant could potentially serve without regard to any deduction from that sentence.
The judgment of the circuit court revoking the appellant's probation and imposing a "split" sentence is affirmed.
AFFIRMED.
All Judges concur.
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608 N.W.2d 152 (2000)
STATE of Minnesota, Respondent,
v.
Steven Mark LOGE, Appellant.
No. C9-98-842.
Supreme Court of Minnesota.
March 2, 2000.
*153 John M. Stuart, MN State Public Defender, Scott G. Swanson, Assistant State Public Defender, Minneapolis, for appellant.
Michael A. Hatch, MN Attorney General, James B. Early, Assistant Attorney General, St. Paul, for respondent.
Heard, considered, and decided by the court en banc.
OPINION
GILBERT, Justice.
This case presents the question of whether knowledge is an element of the crime under the open bottle law when the driver is the sole occupant of a motor vehicle. Appellant Steven Mark Loge was cited on September 2, 1997, for a violation of Minn.Stat. § 169.122, subd. 3 (1998), which makes it unlawful for the driver of a motor vehicle, when the owner is not present, "to keep or allow to be kept in a motor vehicle when such vehicle is upon the public highway any bottle or receptacle containing intoxicating liquors or 3.2 percent malt liquors which has been opened." Violation of the statute is a misdemeanor. See Minn.Stat. § 169.122, subd. 4 (1998). After a bench trial, the district court held that subdivision 3 imposed "absolute liability" on the driver/owner. Loge appealed. The court of appeals affirmed the conviction, holding that proof of knowledge that the open container was in the motor vehicle was not required. See State v. Loge, 589 N.W.2d 491, 494 (Minn.App.1999). We affirm.
On September 2, 1997, Loge borrowed his father's pick-up truck to go to his evening job. Driving alone on his way home from work, he was stopped by two Albert Lea city police officers on County Road 18 at approximately 8:15 p.m. because he appeared to be speeding. Loge got out of his truck and stood by the driver's side door. While one officer was talking with Loge, the second officer, who was standing by the passenger side of the truck, observed a bottle, which he believed to be a beer bottle, sticking partially out of a brown paper bag underneath the passenger's side of the seat. He retrieved that bottle, which was open and had foam on the inside. He searched the rest of the truck and found one full, unopened can of beer and one empty beer can. After the second officer found the beer bottle, the first officer asked Loge if he had been drinking. Loge stated that he had two beers while working and was on his way home. Loge passed all standard field sobriety tests. The officers gave Loge citations for having no proof of insurance and for a violation of the open bottle statute but not for speeding. The no proof of insurance charge was later dismissed. Loge did not raise a probable cause challenge to either the stop or the officer's actions in observing the open bottle on the floor of the truck.
The trial on the open bottle charge took place on January 29, 1998. Loge testified that the bottle was not his, he did not know it was in the truck and had said that to one of the officers. That officer did not remember any such statements. At the close of the testimony, the trial court requested memoranda from Loge's counsel and the city attorney on the question of whether knowledge is an element of subdivision 3 of the open bottle statute. Both attorneys came to the same legal conclusion that proof of knowledge was required. The trial court found that one of the police officers "observed the neck of the bottle, which was wrapped in a brown paper sack, under the pickup's seat of the truck being operated by defendant." Based on an analysis of section 169.122 as a whole, the trial court held that subdivision 3 creates "absolute liability" on a driver/owner to "inspect and determine * * * whether there are any containers" in the motor vehicle in violation of the open bottle law and found Loge guilty. Loge was sentenced *154 to five days in jail, execution stayed, placed on probation for one year, and fined $150 plus costs of $32.50.
Loge appealed the verdict. The city attorney did not file a respondent's brief but sent a letter to the Clerk of Appellate Court stating that he "concur[red] with the reasoning and rationale in the Appellant's brief and therefore there [was] no reason for the State of Minnesota to file a Respondent's brief." In a published opinion, the court of appeals affirmed the decision of the trial court finding that the evidence, which establishes that one of the officers saw an open bottle containing intoxicating liquor underneath the passenger seat of the truck Loge was driving on a public highway, was sufficient to support Loge's conviction. See Loge, 589 N.W.2d at 494. The court of appeals held that proof of knowledge that the bottle was in the truck is not required to sustain a conviction. See id.
Loge's petition for further review was granted. The Attorney General then assumed responsibility for this case and filed a respondent's brief in which the Attorney General argues, contrary to the previous position of the state, that there is no knowledge requirement under subdivision 3.
Loge is seeking reversal of his conviction because, he argues, the trial court and court of appeals erroneously interpreted subdivision 3 of the open bottle statute[1] not to require proof of knowledge. Loge argues that the words "to keep or allow to be kept" implicitly and unambiguously require a defendant to have knowledge of the open container in the motor vehicle in order for criminal liability to attach. He argues that "keep" means "to maintain, or cause to stay or continue, in a specified condition, position, etc." Loge argues that that definition suggests that a person must purposely choose to continue possession. Further, Loge argues that the word "allow" from the phrase "allow to be kept" means "to permit; to grant license to," suggesting awareness at the minimum.
The state argues that the language of subdivision 3 creates a strict liability offense. The statute was enacted in 1959 and subdivision 3 has not had any substantive change since its enactment.[2] The *155 state relies heavily on the presumption that the legislature intends the statute as a whole to be effective and certain, with no surplusage. See Minn.Stat. §§ 645.16, 645.17(2) (1998); State v. Orsello, 554 N.W.2d 70, 75-76 (Minn.1996). The state argues that subdivision 3's "keep or allow to be kept" language must mean more than mere possession of alcohol because owners/drivers are already subject to liability under subdivision 2 for mere possession, which applies to all persons in the motor vehicle. The state further argues that to read subdivision 3 as requiring conscious or continuing possession would make it mere surplusage.
Statutory construction is a legal determination reviewed by this court under a de novo standard. See In re A.A.E., 590 N.W.2d 773, 776 (Minn.1999). An analysis of a statute must begin with a careful and close examination of the statutory language. See Orsello, 554 N.W.2d at 74. We undertake such a review to ascertain and effectuate legislative intent. See Minn.Stat. § 645.16. If the meaning of the statute is "clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit." Id.
Except for search and seizure issues, this is the first time we have reviewed this statute since its enactment 40 years ago. We are asked only to interpret this statute under the facts presented. Although this statute addresses two potential, alternate situations involving a driver of "any private motor vehicle * * * when such vehicle is upon the public highway," only one is presented under these facts. Minn.Stat. § 169.122, subd. 3. The statute establishes liability for such a driver when that driver "keep[s] or allow[s] to be kept" any open bottle containing intoxicating liquor within the area normally occupied by the driver and passengers. Id. (emphasis added). These two alternate concepts are separated by the disjunctive "or," not "and." Unlike the use of the word "and," "or" signifies the distinction between two factual situations. We have long held that in the absence of some ambiguity surrounding the legislature's use of the word "or," we will read it in the disjunctive and require that only one of the possible factual situations be present in order for the statute to be satisfied. See, e.g., Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 385 (Minn.1999); Aberle v. Faribault Fire Dept. Relief Ass'n, 230 Minn. 353, 360, 41 N.W.2d 813, 817 (1950) ("The word `or' is a disjunctive and ordinarily refers to different things as alternatives."). Accordingly, we limit our opinion to the words "to keep."[3] Minn.Stat. § 169.122, subd. 3.
Further, even though this was a court trial, we note that similar to the statute, CRIMJIG 29.30 also recognizes the significance of the use of the disjunctive "or" and provides for separate, alternate instructions on "(kept) (allowed to be kept)." See 10a Minn. Dist. Judges Ass'n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, CRIMJIG 29.30 (4th ed.1999); see also 10 Minn. Dist. Judges Ass'n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, Explanatory Note (4th ed. 1999) ("[P]arentheses indicate options for factual variations * * * ."). In prior versions of the jury instructions, the comment noted that the trial judges are divided as to whether knowledge is required under the statute. See 10a Minn. Dist. Judges Ass'n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, M-JIG 3.17 Comment (1989 ed.). The comment noted that "[s]ince the [question of proof of knowledge] has not been ruled upon by the Minnesota appellate courts, the trial judge should include or omit the bracketed portion according to his or her own reading of the statute." Id. Thus, the *156 instruction included then, as it does now, an optional portion in brackets which reads "[This means that defendant knew the (bottle) (receptacle) was in the vehicle.]." 10a Minn. Dist. Judges Ass'n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, M-JIG 3.17 (1989 ed.); see also 10a Minn. Dist. Judges Ass'n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, CRIMJIG 29.30 (4th ed. 1999) ("[B]rackets indicate optional element choices, depending on the portion of the statute that has been charged."). We take this opportunity to review Minn. Stat. § 169.122, subd. 3 as it relates to the facts in the record where there was only a sole occupant in the vehicle.
We are guided in our interpretation of section 169.122, subdivision 3 by the statutory presumption that the legislature intends an entire statute to be effective and certain. See Minn.Stat. § 645.17(2). We must therefore look to all subdivisions of section 169.122 together to help us determine whether the legislature intended to impose liability under subdivision 3 on a driver/owner without proof of knowledge. Subdivision 1 prohibits the consumption of alcohol by any person in a motor vehicle on a public highway. See Minn.Stat. § 169.122, subd. 1 (1998). Subdivision 2 prohibits the actual possession of, or conscious exercise of dominion and control over, an open bottle of alcohol by any person in the vehicle. See id. § 169.122, subd. 2 (1998). In contrast, subdivision 3 provides that the owner, or if the owner is not present, the driver is responsible for ensuring that no open bottles of alcohol are present in a vehicle on a public highway, regardless of consumption, actual possession or conscious exercise of dominion and control. See id. § 169.122, subd. 3. Consumption, possession and presence of an open container of alcohol in a motor vehicle are each separate risks. The legislature separately addressed each risk in section 169.122, subdivisions 1 through 3 in an effort to promote highway safety by decreasing the opportunity for alcohol consumption and drunken driving that an open container of alcohol anywhere in the vehicle creates. It is clear from reading the statute as a whole that the legislature intended to categorically prohibit open bottles of alcohol in a motor vehicle on a public road except under the limited circumstances that the legislature expressly addressed and carved out.[4] Thus, we find no ambiguity in the legislature's use of the word "keep."
We are mindful of Loge's argument that, as a criminal statute, section 169.122 must be strictly construed. See State v. Zacher, 504 N.W.2d 468, 473 (Minn.1993). Where we have found a statute ambiguous, we have said, "if criminal liability, particularly gross misdemeanor or felony liability, is to be imposed for conduct unaccompanied by fault, the legislative intent to do so should be clear." State v. Neisen, 415 N.W.2d 326, 329 (Minn. 1987). However, we have held that the rule of strict construction does not require this court to assign the narrowest possible interpretation to the statute or to adopt a construction that would render the statute or one of its subdivisions meaningless. See Zacher, 504 N.W.2d at 473. Furthermore, where, as here, we have interpreted the statute and find no ambiguity, "the so-called `rule of lenity,' which holds that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity towards the defendant," has no application. Orsello, 554 N.W.2d at 74 (emphasis added) (citations omitted). As we did in Gullings v. State Bd. of Dental Examiners, 200 Minn. 115, 119, 273 N.W. 703, 705 (1937), we adhere to the rule of strict construction for a penal statute but hold that where the language of the statute *157 is clear, the court is bound to give effect thereto.
In delineating the elements of the crime, we have also held that the legislature is entitled to consider what it deems "expedient and best suited to the prevention of crime and disorder." State v. Morse, 281 Minn. 378, 382, 161 N.W.2d 699, 702 (1968) (citations omitted). The Supreme Court has addressed the dichotomy between the opportunity to discover and the difficulty of proof in arranging a statutory scheme establishing criminal liability for an unknowing individual:
Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided. Doubtless considerations as to the opportunity of the seller to find out the fact and the difficulty of proof of knowledge contributed to this conclusion.
United States v. Balint, 258 U.S. 250, 254, 42 S. Ct. 301, 66 L. Ed. 604 (1922) (emphasis added). Here, if knowledge was a necessary element of the open container offense, there would be a substantial, if not insurmountable, difficulty of proof. The legislature may have weighed the possible injustice of subjecting a driver to a penalty against the opportunity of the driver to discover any open bottle and the difficulty of proof of knowledge. It is therefore reasonable to conclude that the legislature, weighing the significant danger to the public, decided that proof of knowledge under subdivision 3 was not required.
The legislature has made knowledge distinctions within its traffic statutes that also guide our interpretation. For example, with respect to marijuana in a motor vehicle, the Minnesota legislature has used language similar to the language found in section 169.122, subdivision 3 ("keep or allow to be kept") but added a knowledge requirement. An owner, or if the owner is not present, the driver, is guilty of a misdemeanor if he "knowingly keeps or allows to be kept" marijuana in a motor vehicle. Minn.Stat. § 152.027, subd. 3 (1998) (emphasis added). The use of the word "knowingly" in section 152.027, subdivision 3 to modify the same language as contained in section 169.122, subdivision 3 indicates that the legislature does not perceive the word "keep" alone to imply or contain a knowledge element. Section 152.027 became effective in August of 1989, 30 years after section 169.122 was enacted. If the legislature had intended section 169.122 to have a knowledge requirement, it could have added the word "knowingly," as the legislature did in section 152.027, when section 169.122 was amended in 1990, 1991, 1993 and 1994 or at any other time.[5]
In the absence of such a modifier, we believe that the parallels between subdivision 3 and other non-alcohol related traffic statutes also support our holding. The phrases "it shall be unlawful" or "no person shall" appear throughout the traffic code and have never been understood to require a showing of intent to prove a violation of the statute. See generally Minn.Stat. § 169.14 (1998) (speeding); Butler v. Engel, 243 Minn. 317, 336, 68 N.W.2d 226, 238 (1954). In fact, Loge concedes that other provisions of the traffic code that use such language are strict liability offenses. See generally Minn.Stat. §§ 169.14, 169.48 (1998).
*158 Lastly, Loge argues that an interpretation excluding knowledge as an element could lead to absurd results. While it is true that the legislature does not intend a result that is absurd or unreasonable, see Minn.Stat. § 645.17(1) (1998), we do not believe such a result exists here. Loge's conviction resulted from an officer standing outside the truck observing the open container of beer sticking partially out of a brown bag underneath the seat on the passenger side of the truck Loge was driving. By simply taking control of the truck, Loge took control and charge of the contents of the truck, including the open bottle, even if he did not know the open bottle was in the truck.
Though the dissent acknowledges the authority of the legislature to create criminal statutes without regard to intent or knowledge, it cites to the rule[6] enunciated in Kremer as a limitation: "it is not essential that the wrongdoer should intend to commit the crime to which his act amounts, but it is essential that he should intend to do the act which constitutes the crime." State v. Kremer, 262 Minn. 190, 191, 114 N.W.2d 88, 89 (1962) (citations omitted). However, although dicta, we also stated:
If the defendant * * * went through a stop light that he did not see, and was defending on the ground that he did so without any criminal intent, a court could be justified in finding him guilty of a violation of the ordinance involved. When the driver intends to proceed forward, or is negligent in any way, he can be held liable for his acts.
Id. at 192, 114 N.W.2d at 89. Similarly, here, even though Loge did not see the open bottle and argues therefore that he had no criminal intent, he, as the driver, intended to proceed forward. As in the Kremer hypothetical, not seeing a stop sign or, as here, not seeing an open bottle, a court is justified in finding a defendant guilty of a violation of the statute if the defendant intended to proceed forward. In order to avoid violating this statute, Loge had an affirmative duty to ensure that there were no open containers in the area of a motor vehicle normally occupied by the driver or passenger on a public highway. He had the opportunity and was in the best position to find out the fact of the open bottle's presence "with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities." Id. (citing Morissette v. United States, 342 U.S. 246, 256, 72 S. Ct. 240, 96 L. Ed. 288 (1952)). Here, all Loge had to do was observe an open beer bottle protruding from a bag under the passenger's seat, which the trial court found was visible even to the officer who was standing outside the truck looking in.
The "to keep" an open bottle language of subdivision 3 means more than knowingly continuing possession because such conduct is already made illegal by subdivision 2. Any other interpretation would render subdivision 3 mere surplusage and would violate the statutory presumption that the legislature intends an entire statute to be effective and certain. See Minn.Stat. § 645.17(2); Orsello, 554 N.W.2d at 75-76. Therefore, we hold that in a prosecution under section 169.122, subdivision 3, the state need not prove that the driver and sole occupant of a motor vehicle on a public highway knew of the existence of the *159 open bottle containing intoxicating liquors in the motor vehicle.
Affirmed.
PAUL H. ANDERSON, J. (dissenting).
I respectfully dissent. In its effort to reach a correct policy decision, the majority disregards our proper role as interpreters of the law. In doing so, the majority has preempted the legislature's function and assumed the mantle of policymaker. I agree that under certain circumstances the legislature may provide that criminal liability attach without requiring any showing of intent or knowledge on the part of the person charged. See In re A.A.E., 590 N.W.2d 773, 777 (Minn.1999). Further, in the context of open containers of alcohol in motor vehicles, there is a credible argument that it is good public policy given the social and economic costs that result from the combination of alcohol and motor vehicles. But, all of that said, the majority's analysis simply does not demonstrate the requisite clear statement of legislative intent necessary to create criminal liability in the absence of a showing of knowledge or intent.
It is a fundamental principle of our substantive law, especially for statutes carrying criminal sanctions, that obligations imposed by law must be stated in clear and understandable terms. See State v. Lanesboro Produce & Hatchery Co., 221 Minn. 246, 253, 21 N.W.2d 792, 795 (1946). Due process requires that a penal statute be based on "knowable criteria which [persons] of common intelligence who come in contact with the statute may use with reasonable safety in determining its command." Id. (citing Collins v. Kentucky, 234 U.S. 634, 34 S. Ct. 924, 58 L. Ed. 1510 (1914)). A statute is unconstitutionally vague "if it requires or forbids in terms so vague that [persons] of common intelligence must guess at its meaning and differ as to its application." Lanesboro Produce, 221 Minn. at 254, 21 N.W.2d at 795.
We have stated that when the legislature intends to make an act unlawful and to impose criminal sanctions without any requirement of intent or knowledge, it must do so clearly. See State v. Neisen, 415 N.W.2d 326, 329 (Minn.1987). Further, the legislature's authority to impose criminal sanctions without any requirement of knowledge or intent is subject to another important limitation. While a person need not intend his acts to be criminal, he must intend to do the act that is criminal. We have stated that "[i]t is not essential that the wrongdoer should intend to commit the crime to which his act amounts, [but] it is essential that he should intend to do the act which constitutes the crime." State v. Kremer, 262 Minn. 190, 191, 114 N.W.2d 88, 89 (1962).[1] The United States Supreme Court, confronted with a similar issue, noted:
Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.
Morissette v. United States, 342 U.S. 246, 250, 72 S. Ct. 240, 96 L. Ed. 288 (1952) (citations omitted). Further, it is worth noting that in Morissette the Court held *160 that the "mere omission from [a statute] of any mention of intent will not be construed as eliminating that element from the crimes denounced." Id. at 263, 72 S. Ct. 240.
The majority's analysis of the language of Minn.Stat. § 169.122 does not demonstrate the level of certainty necessary to allow me to conclude that the statute manifests a clear intent by the legislature to impose criminal liability regardless of intent or knowledge. The plain language of the statute, the unreasonable results that arise from the majority's interpretation, the differing application of the statute by district courts, and even the cases cited by the majority lead me to this conclusion. Minnesota Statutes § 169.122, subd. 3, simply lacks the requisite clarity to support the imposition of criminal liability without any showing of intent or knowledge.
We are guided by our accepted rules of statutory interpretation when determining the meaning of a statute. One rule, which the majority claims to follow, is to look to the plain language of the statute. See Minn.Stat. § 645.16. The majority states that the language is plain and dispositive because the legislature frequently uses the phrase "it shall be unlawful" or "no person shall" to indicate strict liability for motor vehicle offenses. However, this is not the dispositive language in this statute. Rather, the question turns on the use of the phrase "keep or allow to be kept."
The majority attempts to avoid the implications of the phrase "allow to be kept" by discarding it on the grounds that Loge was the sole occupant of the vehicle. While we may limit the application of law to the facts presented, that does not mean that we may disregard inconvenient language contained in the statute as a whole. See Kollodge v. F & L Appliances, 248 Minn. 357, 360, 80 N.W.2d 62, 64 (1956) (stating that the court may not read statutory language out of context). The majority cannot avoid the implications of the term "allow" because it is convenient to do so. In other contexts, we have held that the inclusion of words like "permit" (a synonym of "allow") clearly indicates a legislative intent to require some level of knowledge or intent. See, e.g., Peterson v. Pawelk, 263 N.W.2d 634, 637 (Minn.1978) (stating that the use of the term "permit" in a statute clearly indicates that the legislature did not intend to impose strict liability). While it is possible to find definitions of "keep" that do not appear to implicate knowledge or intent, there are, as Loge points out, many definitions of "keep" that imply some level of conscious knowledge or intent. The multiple definitions of the word "keep" cited by the parties underscore the lack of clarity in the statute's language. None of these definitions clearly indicate that proof of knowledge or intent is either required or clearly excluded.
The majority asserts that because the legislature used the similar language "keeps or allows to be kept" in Minn.Stat. § 152.027, but added the word "knowingly," the lack of the word "knowingly" in Minn.Stat. § 169.122 means that no knowledge requirement was intended. While we do presume that the legislature uses words in a consistent manner, here such analysis yields no clear answers. It is clear that the use of the word "knowingly" in section 152.027 indicates that the legislature intended to require knowledge for the possession of marijuana in a vehicle. However, the fact that it is not included in section 169.122, a law passed some 20 years earlier and on a different subject, does not indicate that the legislature intended to disregard any requirement of knowledge or intent.
The majority's analysis also disregards those situations where there is more than one person in the vehicle. However, limiting their holding in this way does not allow the majority to artificially limit the scope of the statute and then claim that requiring knowledge in this case would make subdivision 2 of the statute surplusage. I cannot ignore the fact that the legislature intended this statute to be applied in all *161 situations regardless of the number of persons in the vehicle. Viewed as such, requiring some level of intent on the part of the driver or owner would not render subdivision 2 of the statute surplusage. Also, when viewed in the situation where more than one person is in the vehicle, the majority's interpretation of section 169.122 implies some very troubling and unreasonable outcomes.
Under subdivision 2 of the statute, criminal liability is imposed for possession of an open container of alcohol by any person in a motor vehicle. See Minn.Stat. § 169.122, subd. 2. Possession here means actual possession of or the conscious exercise of dominion or control over the container. See id. The majority claims that because this subdivision already imposes liability for the knowing possession of an open container of alcohol in a vehicle, to do so again in subdivision 3 is unnecessary. This line of reasoning only works in the majority's interpretation and only in the case where one person is in the vehicle. When more than one person is in the vehicle, the purpose of the different subdivisions becomes clear. A passenger may have an open container of alcohol and not have disclosed that fact to the driver. Clearly subdivision 2 applies to that passenger. But it is also clear that because the passenger concealed this fact from the driver, the driver should not be held liable. To do otherwise would be to hold the driver criminally liable for an act he did not intend to commit and over which he had no control. In the case when a container is open and visible in the passenger compartment of a vehicle and none of the passengers are shown possessing it, then the owner, or driver, remains ultimately responsible. Simply because the subdivision may not have application in a unique fact pattern does not make it surplusage for the purposes of our analysis.
The above example highlights one of the unreasonable results of the majority's interpretation. A driver could be held responsible for the acts of passengers that they conceal from him. An absent owner could be held liable for acts of passengers he has never met. In interpreting a statute, we assume that the legislature does not intend an unreasonable or absurd result. See Minn.Stat. § 645.17.
The majority also implies that in this case the bottle was in plain sight and that under the circumstance of this case, Loge actually knew (or should have known) that the open bottle was in the truck. The district court made no such finding nor is it our province to do so. The majority attempts to mollify the results of its holding by saying that in this case Loge really knew. While an interesting conclusion on the part of the majority, it renders the majority's holding unnecessary. If Loge knew, or reasonably should have known, that this open container was present in his vehicle, the majority's holding is unnecessary. In such a case, there is a showing of knowledge or intent sufficient to sustain Loge's conviction without interpreting the statute as having no requirement for knowledge or intent.
While the majority mentions the history of the application of this statute by district courts, it fails to consider its import. While not binding on this court, we do look to the practical construction of a statute by public officials in determining its meaning. See Governmental Research Bureau, Inc. v. St. Louis County, Minn., 258 Minn. 350, 357, 104 N.W.2d 411, 416 (1960). The district court judges of Minnesota are divided about the meaning of Minn.Stat. § 169.122, subd. 3. The Minnesota District Judges Association highlighted the ambiguity of the statute when it noted in the 1989 CRIMJIG on Minn.Stat. § 169.122, subd. 3 that
Trial judges in Minnesota are divided as to whether or not knowledge is required under the statute, and an early Attorney General Opinion maintains that the language of the statute does not require knowledge. Op. Atty. Gen., 989a-25, Jan. 5, 1960.
*162 10a Minn. Dist. Judges Ass'n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, M-JIG 3.17 (1989 ed.). Later editions continued to carry the knowledge requirement as optional, leaving its inclusion to the discretion of the trial judge. See 10a Minn. Dist. Judges Ass'n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, Preface and CRIMJIG 29.30 (4th ed.1999). Such division by the trial bench of this state indicates that the meaning of the statute's language is much less clear than the majority contends.[2]
The majority cites two of our earlier decisions to support the proposition that the legislature may impose criminal liability without regard to intent or knowledge. While I do not disagree with this proposition, the cited cases also demonstrate the way we have analyzed statutes when it is claimed that knowledge or intent is not required to impose criminal liability. In State v. Dombroski, we noted that the legislature clearly and unambiguously manifested its intent to impose criminal liability for the statutory rape of an incompetent female without regard to whether the accused knew that the victim was incompetent. See 145 Minn. 278, 279, 176 N.W. 985, 985-86 (1920). Here, the statute did not require knowledge that the victim was incompetent, but it required intent to commit an act that, in combination with the victim's status, would constitute statutory rape.
In In re A.A.E, we acknowledged that the legislature may make a person criminally liable for injuries resulting from the discharge of a firearm regardless of whether that person intended to cause injury, but we held that some level of intent, reckless disregard of a known danger, was required. See 590 N.W.2d at 777. While the actor need not intend to cause injury, he must intend to recklessly discharge a firearm. See id. The dispute in A.A.E. was not whether intent was required, but whether a specific intent to injure another was required. See id. We observed that the language of the statute could have been read to impose liability under any circumstance where a firearm was discharged and an injury resulted; however, we noted that such an interpretation conflicted with other language in the statute and would produce unreasonable results. See id. Importantly, in both Dombroski and A.A.E., there needed to be an intent to commit the act for which criminal sanctions would be imposed.
The majority, limiting its analysis of this statute to the narrow facts in this case, proceeds undistracted by the implications of other contextual language in the statute and the fact that district courts of this state have differed on both the meaning and the application of the statute. While the majority claims that their holding is limited only to those situations where there is one occupant in the vehicle, they also note that this is the first time we have directly addressed the question of whether knowledge or intent is required for this statute. Given the obvious lack of clarity, the majority's holding will likely have much wider effect.
Finally, under the majority's holding, we now will impose criminal liability on a person, not simply for an act that the person does not know is criminal, but also for an act the person does not even know he is committing. While the district court and the majority seem to assume that everyone who drives a motor vehicle knows that he or she is obligated to search the entire passenger compartment of the vehicle before driving on the state's roads, the law imposes no such requirement. Most drivers would be surprised to discover that *163 after anyone else used their vehiclechildren, friends, spousethey are criminally liable for any open containers of alcohol that are present, regardless of whether they know the containers are there. This also means that any prudent operator of a motor vehicle must also carefully check any case of packaged alcohol before transport and ensure that each container's seal is not broken. See Minn.Stat. § 169.122 (defining an open bottle as a container that is open, has the contents partially removed, or has the seal broken). Under the majority's interpretation, all of these situations would render the driver criminally liable under Minn.Stat. § 169.122. Without a more clear statement by the legislature that this is the law, I cannot agree with such an outcome.
PAGE, Justice (dissenting).
I join in the dissent of Justice Paul H. Anderson.
STRINGER, Justice (dissenting).
I join in the dissent of Justice Paul H. Anderson.
NOTES
[1] Minnesota Statutes § 169.122 reads in part:
Subdivision 1. No person shall drink or consume intoxicating liquors or 3.2 percent malt liquors in any motor vehicle when such vehicle is upon a public highway.
Subdivision 2. No person shall have in possession while in a private motor vehicle upon a public highway, any bottle or receptacle containing intoxicating liquor or 3.2 percent malt liquor which has been opened, or the seal broken, or the contents of which have been partially removed. For purposes of this section, "possession" means either that the person had actual possession of the bottle or receptacle or that the person consciously exercised dominion and control over the bottle or receptacle. This subdivision does not apply to a bottle or receptacle that is in the trunk of the vehicle if it is equipped with a trunk, or that is in another area of the vehicle not normally occupied by the driver and passengers if the vehicle is not equipped with a trunk.
Subdivision 3. It shall be unlawful for the owner of any private motor vehicle or the driver, if the owner be not then present in the motor vehicle, to keep or allow to be kept in a motor vehicle when such vehicle is upon the public highway any bottle or receptacle containing intoxicating liquors or 3.2 percent malt liquors which has been opened, or the seal broken, or the contents of which have been partially removed except when such bottle or receptacle shall be kept in the trunk of the motor vehicle when such vehicle is equipped with a trunk, or kept in some other area of the vehicle not normally occupied by the driver of passengers, if the motor vehicle is not equipped with a trunk. A utility compartment or glove compartment shall be deemed to be within the area occupied by the driver and passengers.
[2] A 1986 amendment removed gender specific references throughout the Minnesota Statutes but did not change the substance of the statutes amended. See Act of March 25, 1986, ch. 444, §§ 1-4, 1986 Minn. Laws 775, 775-77. A 1991 amendment instructed the revisor of statutes to substitute "3.2 percent malt liquor" for "nonintoxicating malt liquor." See Act of May 31, 1991, ch. 249, § 31, 1991 Minn. Laws 782, 794.
[3] The use of the word "allow" may have other implications that are not present in this record which we decline to address.
[4] Minnesota Statutes § 169.122, subd. 5 (1998) exempts charter buses and limousines from the scope of the statute.
[5] One year after the original open bottle statute was enacted, the Attorney General for the State of Minnesota issued an opinion construing the "keep or allow to be kept" language not to require proof of knowledge. See Op. Att'y Gen. No. 54, at 103-05 (Jan. 5, 1960). Attorney general opinions are entitled to "careful consideration" by this court particularly when the opinion is long-standing. See Billigmeier v. County of Hennepin, 428 N.W.2d 79, 82 (Minn.1988). Furthermore, this court has held that where the legislature amends a statute after it has been construed by an attorney general opinion without changing that construction, it is evidence of legislative intent to adopt the meaning attributed to the statute by the attorney general. See Stoecker v. Moeglein, 269 Minn. 19, 22-23, 129 N.W.2d 793, 796 (1964).
[6] The dissent also cites State v. Dombroski, 145 Minn. 278, 176 N.W. 985 (1920) and In re A.A.E., 590 N.W.2d 773 (Minn.1999) for support for this rule. In Dombroski, we held that with respect to a statute criminalizing the rape of an incompetent woman, the legislature had "clearly eliminate[d] the element of knowledge and intent" about a victim's incompetence. See 145 Minn. at 281, 176 N.W. at 986. We found in A.A.E. that other statutory language ("under circumstances") compelled us to hold that a person must act recklessly in endangering another. 590 N.W.2d at 777. Dombroski and A.A.E. involved construing the language of specific statutes; neither altered our basic understanding of the rule enunciated in Kremer.
[1] The majority responds to this argument by noting that we also stated in Kremer that a person could be held liable for driving through a stop sign that he failed to see. However, the majority misses the essential point of Kremer. A wrongdoer must intend to do the act that constitutes the crime. As we went on to point out in Kremer, while operating a motor vehicle in a negligent manner (i.e., failing to observe traffic signs) can support a level of intent (negligence) to support criminal liability, running a stop sign due to unexpected brake failure would not. See Kremer, 262 Minn. at 191, 114 N.W.2d at 89. This is the distinction the majority fails to appreciate. At this time, there is no requirement for the operator of a motor vehicle to inspect the passenger compartment before driving in the same way that there is a requirement to observe and obey traffic signs. In this respect, Loge's situation is more analogous to "brake failure" than to a "negligent failure" to observe the rules of the road.
[2] This division was further demonstrated in this case when both the city attorney and defense counsel agreed that the statute required a showing of knowledge. The city attorney has maintained this position throughout the appellate process. It is the attorney general who now argues that the statute requires no showing of intent or knowledge.
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648 So. 2d 411 (1994)
Larry Colon MAYNOR, Plaintiff-Appellant,
v.
William VOSBURG, et al., Defendant-Appellees.
No. 25922-CA.
Court of Appeal of Louisiana, Second Circuit.
November 28, 1994.
Rehearing Denied January 19, 1995.
*414 James R. Clary, Jr., Robert H. Schmolke, Baton Rouge, Robert Levy, Ruston, for appellant Larry Colon Maynor.
Hudson, Potts & Bernstein by Brady D. King, II, Monroe, for appellees Vosburg, E. LeeYoung & Co., Inc. and Cas. Reciprocal Exchange.
Theus, Grisham, Davis & Leigh by F. William Sartor, Jr., Monroe, for appellee Nat. Union Fire Ins. Co.
Charles S. Norris, Jr., Monroe, for appellee R.L.I. Ins. Co.
Before MARVIN, SEXTON, NORRIS, LINDSAY and BROWN, JJ.
BROWN, Judge.
Plaintiff, Larry Colon Maynor, appeals from a judgment based on a jury verdict granting him damages of $33,589 for injuries sustained when his 18-wheeler was struck by a pick-up truck driven by defendant, Michael Young Vosburg. Maynor argues that the award is inadequate to compensate him for the back injury caused by the accident. The various defendants appealed and answered Maynor's appeal, complaining, among other things, that the jury's allocation of fault was erroneous and that Maynor should be assessed with some degree of comparative fault.
For the reasons set forth below, we amend in part and as amended, affirm.
FACTS
The accident occurred on I-20 in Ruston, Louisiana, on June 15, 1989. Plaintiff, Larry Maynor, a truck driver for Reeves Transportation Company, was driving west in his tractor-trailer *415 rig. Defendant, Michael Vosburg, who was a minor at the time of the accident, was entering westbound traffic on I-20 from the Highway 167 entrance ramp. Vosburg, an employee of his grandfather's business, E. Lee Young & Company, Inc., was driving a pick-up truck owned by the company and insured by Casualty Reciprocal Exchange Insurance Company (C.R.E.).
According to Vosburg, he sideswiped Maynor's 18-wheeler while trying to pass or avoid a white car that stopped ahead of him on the entrance ramp. Contact was made between the right front fender of Maynor's 18-wheeler and the left rear bumper of Vosburg's pick-up.
Maynor finished his route and waited until returning to his home in South Carolina before seeking medical treatment on June 20, 1989. Maynor initially saw Dr. Anthony Hucks-Folliss, who initiated a program of conservative treatment. Subsequently, Maynor consulted Dr. Samuel Chewning, who recommended surgery. However, Maynor decided not to have surgery at that time.
Maynor consulted Dr. George Ferre in November 1990, and in January 1991, Dr. Ferre performed a lumbar laminectomy at the L-4, L-5 level. In August 1991, Dr. Ferre performed a second surgery at the L-5, S-1 level and a third surgery was performed in September 1991. None of these surgeries was deemed successful.
Maynor filed suit against Michael Vosburg and his father, William Vosburg. Also named as defendants were Vosburg's employer, E. Lee Young & Company, and its insurer, C.R.E., in addition to R.L.I. Insurance Company, which had issued a personal umbrella liability policy to Vosburg's father. Reeves Transportation's workers' compensation insurer, National Union Fire Insurance Company, intervened, seeking reimbursement of the workers' compensation benefits paid to Maynor as a result of the accident.
A lengthy jury trial concluded on October 14, 1992. The jury assessed 85% fault to Vosburg and 15% to "any other person" (the unknown driver of the white car). The jury awarded Maynor general damages of $15,000 and special damages of $18,589, a total award of $33,589.
Prior to trial, the trial court ruled that the C.R.E. insurance policy provided primary coverage and would pay the first $250,000. However, the trial court found that the R.L.I. policy was not a "true" excess policy and held that the C.R.E. and R.L.I. policies would provide concurrent coverage for any amounts in excess of $250,000 up to $1,750,000, with C.R.E. paying 43% and R.L.I. paying 57%.
Maynor appealed, contending that the jury erred in failing to find Vosburg 100% at fault in causing the accident and in awarding inadequate damages. He also asserts that the trial court erred in allowing defendants' accident reconstruction expert to testify as to the "minimal property damage" to Maynor's 18-wheeler. Intervenor, National Union, appealed, adopting Maynor's arguments as its own.
R.L.I. appealed and answered Maynor's appeal, asserting that the jury erred in not assessing comparative fault of at least 30% to Maynor and 50% to "any other person." R.L.I. also contends that the trial court erred in finding that its policy was not a true excess policy and that it should pay concurrently with C.R.E.
The Vosburgs, E. Lee Young & Company, and C.R.E. answered the appeal and appealed devolutively, arguing that the jury erred in finding the driver of the white car only 15% at fault and in absolving Maynor of all fault. Defendants also complain of the trial court's denial of C.R.E.'s claim against R.L.I. for reimbursement of court costs, attorney fees and expert witness fees incurred by C.R.E. in defense of their mutual insureds while R.L.I. sought to deny coverage. C.R.E. asserts that R.L.I. should bear an equal share of the costs.
APPORTIONMENT OF FAULT
Each litigant takes issue with the jury's apportionment of fault. Maynor asserts that Vosburg should be held 100% liable for the accident. Defendants argue that Maynor should be assessed with some fault *416 and that the phantom white car should be assigned a greater percentage of fault.
Testimony about the circumstances surrounding the collision was given by three witnesses: Larry Maynor; his passengertrainee, Joanne Buck; and Michael Vosburg.
Larry Maynor testified that on June 15, 1989, he was driving his tractor-trailer rig west on I-20 on his way to deliver a load of carpet to Lubbock, Texas. While driving through Ruston, because of heavy traffic and the number of entrance and exit ramps, Maynor was driving approximately 50 m.p.h. in the westbound, left lane. Maynor observed two vehicles, a white car and the pick-up truck driven by Vosburg, approaching I-20 on the ramp entering the westbound interstate from Highway 167. Accordingly, Maynor took his foot off the gas pedal and began to tap the brake. Maynor testified that the pick-up truck attempted to pass the white car, which by that time was in the outside, right lane of the interstate. However, there was not enough room between the white car and Maynor's 18-wheeler for Vosburg to pass and while Vosburg was attempting to pass the white car, the rear of Vosburg's pick-up collided with the right front corner of Maynor's rig.
Maynor testified that after the impact, he grabbed the steering wheel, "stood on the brakes and held on." As demonstrated by the skid marks, which were about 281 feet long, Maynor was able to keep his vehicle primarily within his lane of traffic and bring the rig to a controlled stop.
At the time of the accident, Maynor's passenger, Joanne Buck, was a trainee in Reeves Transportation's driving program. Ms. Buck testified that Maynor's rig was traveling in the left lane of I-20 closest to grassy median. She also testified that there was another vehicle, presumably the white car, in the right lane slightly in front of the rig. The pick-up truck coming from the ramp tried to squeeze between Maynor's 18-wheeler and the other car. However, because the pick-up driven by Vosburg was going too fast and there was no room to pass, it ran into the front of the 18-wheeler. After hitting the rig, Vosburg lost control of his pick-up truck, which flipped several times and stopped in the path of Maynor's rig. Maynor applied his brakes and was able to stop the 18-wheeler before it struck the pickup truck again. Ms. Buck testified that the other car apparently saw the pick-up truck and tried to accelerate out of the way.
Michael Vosburg testified that he was driving on the entrance ramp to I-20 when the white car ahead of him slowed down and came to a "rolling stop" in the merge lane. He testified that there were no other vehicles in the immediate area to precipitate such a stop. Vosburg admitted that he probably could have stopped behind the white car, but he chose not to do so.
According to Vosburg, after he checked and saw no traffic in the outside lane, he entered the interstate. The white car tried to enter the same lane. In order to avoid the white car, Vosburg got into the left, inside lane. Vosburg stated that he never saw Maynor's 18-wheeler prior to the collision.
Apportionment of fault is a factual matter and the trier of fact's findings will not be disturbed on appeal unless they are manifestly erroneous or clearly wrong. Youn v. Maritime Overseas Corp., 623 So. 2d 1257 (La.1983), U.S. cert. denied, ___ U.S. ___, 114 S. Ct. 1059, 127 L. Ed. 2d 379 (1994); Davis v. L.J. Earnest, Inc., 25,368 (La.App. 2d Cir. 01/19/94), 631 So. 2d 63; Devereux v. Allstate Insurance Co., 557 So. 2d 1091 (La. App. 2d Cir.1990).
According to Michael Vosburg, the white car ahead of him stopped in the merge lane unnecessarily because there was no oncoming traffic. The only vehicle approaching was Maynor's 18-wheeler, which was in the far lane. Vosburg's attempt to pass and merge onto the interstate ahead of the white car demonstrated extremely poor judgment that merits imposition of the greater percentage of fault. However, if Vosburg's testimony is credible, the driver of the "phantom" white car, in coming to a virtual stop when he should have been accelerating in order to merge with the I-20 traffic, also exhibited poor judgment and created an unsafe situation. Therefore, we find that the jury's apportionment of 15% fault to this driver does not constitute manifest error.
*417 Furthermore, our review of the record fails to demonstrate any evidence of fault on the part of Larry Maynor, who acted as prudently as possible under the circumstances presented. In fact, Maynor's quick response to the unexpected collision allowed him to bring his 18-wheeler to a stop before it could strike Vosburg's pick-up, which was out of control ahead of Maynor. The jury did not err in its allocation of fault.
EXPERT TESTIMONY: MINIMAL PROPERTY DAMAGE
Maynor also contends that the trial court erred in allowing Dr. Anthony J. Galli, defendants' reconstruction expert, to testify that Maynor's 18-wheeler sustained only minimal property damage, thus establishing that the minimal force of the collision could not have caused his injuries. Maynor maintains that such evidence was confusing and misleading and should not have been presented to the jury, primarily relying on Starnes v. Caddo Parish School Board, 598 So. 2d 472 (La.App. 2d Cir.1992). In Starnes, we noted that the court has avoided the precedent of trying to measure an injury in direct proportion to the force of a collision when medical experts and lay witnesses establish that a plaintiff has sustained injuries.
In its opinion denying plaintiff's motion in limine to exclude evidence of minimal force and/or property damage, the trial court noted that such evidence is relevant because causation is a primary issue in this case. We note that the trial court is afforded wide discretion in determining relevant evidence and its ruling will not be disturbed absent a clear abuse of this discretion. State v. Mosby, 595 So. 2d 1135 (La.1992); Laing v. American Honda Motor Co., Inc., 628 So. 2d 196 (La.App. 2d Cir.1993), writ denied, 94-0375 (La. 03/25/94), 635 So. 2d 239.
The trial court instructed the jury as follows:
You should consider all facts and circumstances bearing on the issue of causation, such as the testimony of medical experts and lay witnesses. You may also consider the force of collision, but you should not attempt to measure an injury in direct proportion to the degree of force of the collision, nor should you consider the force of the collision as the only determining factor in assessing the severity of the plaintiff's injuries, if any. Thus if the plaintiff proves by a preponderance of the evidence through testimony of medical experts and lay witnesses that he sustained injury as a result of the collision, the degree of force of the collision is of no material importance. (Emphasis added).
The evidence presented by defendants relating to the severity of the collision was relevant to the issue of causation and the jury was carefully instructed as to the proper use of such evidence. The trial court did not err in allowing Dr. Galli's testimony on the issue of the force of the collision.
DAMAGES
Maynor contends that the jury committed manifest error by awarding inadequate damages. Defendants argue that the jury adequately compensated Maynor for soft tissue injuries of six-month duration.
Applicable Legal Principles
An appellate court may not set aside a jury's finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State of Louisiana through DOTD, 617 So. 2d 880 (La.1993); Rosell v. ESCO, 549 So. 2d 840 (La.1989); Whitaker v. Mullinax, 628 So. 2d 222 (La.App. 2d Cir.1993), writ denied, 94-0382 (La. 03/25/94), 635 So. 2d 241. 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, supra; Dismuke v. Quaynor, 25,482 (La. App. 2d Cir. 04/05/94), 637 So. 2d 555, writ denied, 94-1183 (La. 07/01/94), 639 So. 2d 1164.
In a suit for personal injuries, the plaintiff has the burden of establishing by a preponderance of the evidence a causal relationship between the accident and his subsequent injuries. Lasha v. Olin Corp., 625 So. 2d 1002 (La.1993); American Motorist Insurance Co. v. American Rent-All, Inc., 579 So. 2d 429 (La.1991). The test for determining the causal relationship between the accident and subsequent injuries is whether the plaintiff proved, through medical testimony, *418 that it was more probable than not that subsequent injuries were caused by the trauma suffered in the accident. Mart v. Hill, 505 So. 2d 1120 (La.1987); Starnes, supra. As noted by the supreme court in Lasha, supra, whether defendant's fault was a cause-in-fact of plaintiff's injuries may also be proved by other direct or circumstantial evidence. Id. at 1005.
Plaintiff's disability is presumed to have resulted from an accident if, before the accident, he was in good health but, beginning with the accident, the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. Dabog v. Deris, 625 So. 2d 492 (La. 1993); Housley v. Cerise, 579 So. 2d 973 (La. 1991); Harig v. State Board of Elementary & Secondary Education, 25,702 (La.App.2d Cir. 03/30/94), 635 So. 2d 485; Durkee v. City of Shreveport, 587 So. 2d 722 (La.App. 2d Cir.1991), writ denied, 590 So. 2d 68 (La. 1991).
Once plaintiff establishes the prerequisites for the application of the presumption of a causal relationship, defendant has the burden of producing evidence to persuade the trier of fact that it is more probable than not that plaintiff's injuries did not result from the accident or that the accident did not accelerate, aggravate or combine with a preexisting condition to produce plaintiff's disability. Morris v. Allstate Insurance Co., 25,148 (La.App. 2d Cir. 02/23/94), 632 So. 2d 1209, writ denied, 94-1044 (La. 06/17/94), 638 So. 2d 1099; Lubom v. L.J. Earnest, Inc., 579 So. 2d 1174 (La.App. 2d Cir.1991).
Evidence
Dr. Anthony Hucks-Folliss, a neurosurgeon, treated Larry Maynor immediately upon his return to South Carolina following the accident. Maynor saw Dr. Hucks-Folliss on six occasions between June 20, 1989, and December 26, 1989. During this time, Dr. Hucks-Folliss prohibited Maynor from returning to work and treated his complaints of low back, hip and leg pain conservatively by prescribing medication and physical therapy. Because Maynor's complaints continued, Dr. Hucks-Folliss referred him to Dr. Samuel Chewning, who recommended surgery after ordering a discogram. Maynor declined the surgery. Dr. Hucks-Folliss stated that it was more likely than not that Maynor's low back, hip and leg pain was caused by or related to the accident of June 15, 1989.
On October 1, 1990, still plagued by low back and leg pain, Maynor consulted Dr. Stephen Gardner, a neurosurgeon, for a second opinion. Dr. Gardner reviewed the discogram ordered by Dr. Chewning and noted degenerative changes at L4-L5 and L5-S1. Also, at L4-L5, Dr. Gardner noted evidence of disc disruption. Dr. Gardner stated that it was not possible that Maynor's low back pain was caused by degenerative changes. It was Dr. Gardner's opinion that Maynor's pain was caused by trauma sustained as a result of the automobile accident. Dr. Gardner further opined that Maynor's low back condition was aggravated by the accident.
Upon the recommendation of a neighbor, Maynor went to see Dr. George Ferre, an orthopedic surgeon. Dr. Ferre conducted a series of tests and found herniated discs at two levels. Dr. Ferre performed three surgeries, all unsuccessful. Dr. Ferre concluded that Maynor's condition was causally related to the accident of June 15, 1989, and noted the possibility that a fourth fusion surgery would be required. Dr. Ferre estimated that Maynor has a spinal impairment of 30-35%.
Dr. Hugh Queen, Maynor's general practitioner, had treated Maynor for neck and shoulder pain in August 1988. Dr. Queen noted that Maynor responded well to conservative treatment and was released to return to work after only six weeks of treatment. Dr. Queen treated Maynor after his accident in June 1989, though not for complaints related to or arising out of the accident. Maynor mentioned his low back problems to Dr. Queen, whose records show that Maynor's low back complaints did not begin until after the accident in June 1989.
Defendants had Dr. Frank Cline examine Maynor for purposes of trial. After only one examination, Dr. Cline concluded that Maynor's *419 lumbar problems were completely unrelated to the automobile accident, but were probably caused by his occupation or age. Dr. Cline opined that he was in the best position to testify concerning the causal connection between Maynor's accident and subsequent back complaints because he had Maynor's complete history and access to the records and reports of Maynor's treating physicians.
Larry Maynor testified that before the June 1989 accident, he never had lower back problems. He testified that he saw a chiropractor for muscle tightness four times over a six-day period in 1983 after a rough threeweek cross-country haul. Maynor stated that in 1988 he injured his neck and shoulder when he violently jerked the steering wheel of his rig to avoid a collision on I-20 in Shreveport. He stated that he did not injure his back as a result of that incident; this statement is supported by his treating physician's testimony and medical records.
As to the June 1989 accident in Ruston, Maynor testified that after impact with Vosburg's pick-up truck, he forcibly held the steering wheel while placing both feet on the brakes to stop his 18-wheeler. According to Maynor, it felt like he had "run into a brick wall." Maynor did not notice pain in his back until several hours after the accident. He described the pain as being near the center of his lower back down through his right leg.
When he returned home on June 20, 1989, Maynor went to see Dr. Hucks-Folliss, who had treated him when he injured his shoulder and neck in 1988. Dr. Hucks-Folliss treated him conservatively for several months and sent him to see Dr. Chewning, who ordered a discogram. Maynor testified that he refused the surgery recommended by Dr. Chewning.
Maynor testified that the pain became progressively worse and that he consulted Dr. Ferre upon a neighbor's recommendation. Dr. Ferre performed three surgeries, none of which relieved his lower back and leg pain.
Joanne Buck, who was riding with Maynor at the time of the accident, testified that Maynor was a healthy, vigorous man before the June 1989 accident. She said that Maynor had never complained of back pain and was in good health prior to the accident. She first heard Maynor complain of back pain two to three hours after the accident. Ms. Buck stated that Larry Maynor applied his brakes very hard before and after the impact with Vosburg's truck. Ms. Buck testified that the trip to Lubbock, Texas, and the return trip back to South Carolina took an unusually long time because Maynor made frequent stops to relieve the pain in his back.
Defendants introduced the videotaped deposition of Celeste Maynor, who was married to Larry Maynor from 1981 to 1989. Ms. Maynor testified that Maynor had some complaints of back pain while working in 1983. In connection with this back pain, Maynor saw a chiropractor approximately four times.
Although she did not remember the details, Ms. Maynor testified that she was aware that Maynor was involved in an accident in 1988 and would rub his lower back and complain occasionally. Aside from this incident, Celeste Maynor stated that Maynor never missed work because of problems with his back. Ms. Maynor stated that her former husband did not have chronic back pain or continuing lower back problems.
Discussion
The jury announced its verdict in the form of answers to special interrogatories. The jury found that Michael Vosburg and the driver of the phantom white car were negligent and that their fault, 85% and 15% respectively, was the cause-in-fact of the harm suffered by Larry Maynor.
After concluding that Maynor was injured in the accident, the jury awarded $18,589 in special damages (lost wages and medical expenses) and $15,000 in general damages. The jury's award covered only medical expenses incurred and wages lost immediately after the accident. Its award of general damages likewise reflects the jury's conclusion that Maynor's disc condition, which required three surgeries, was not caused by the automobile accident. On this record, the jury was clearly wrong in limiting its award.
None of the medical and lay testimony supports the jury's determination that Maynor *420 only suffered slight injuries of brief duration in the accident. Defendant's expert, Dr. Cline, who saw Maynor only once and reviewed Maynor's medical records for the purpose of testifying, emphatically opined that Maynor was not injured in the June 1989 accident and that the accident had "no significant effect" on Maynor. By finding that Maynor sustained injuries as a result of the accident, the jury implicitly rejected Dr. Cline's opinion that Maynor's complaints were completely unrelated to the accident.
The other doctors who testified had treated Maynor and categorically disagreed with Dr. Cline. Dr. Hucks-Follis, a neurosurgeon, concluded that Maynor's low back, hip and leg pain in 1989-90 was, more likely than not, caused by or related to the June 1989 accident. Dr. Hucks-Follis referred Maynor to Dr. Chewning, a neurosurgeon, who recommended lumbar disc surgery to Maynor.
Dr. Gardner, another consulting neurosurgeon who reviewed Dr. Chewning's records for the purpose of rendering a second opinion, stated that Maynor's disc problems were aggravated by the June 1989 accident and that it was not possible that they were caused solely by degenerative changes. Dr. Ferre, the orthopedic who performed the three surgeries, squarely related the cause of those surgeries to the June 1989 accident.
After reviewing the evidence, especially Maynor's uncontradicted testimony regarding his low back complaints, we find that the jury was clearly wrong in determining that there was no causal connection between the accident and Maynor's subsequent disc condition. Furthermore, the jury was clearly wrong in not applying the Housley presumption.
Maynor was in relatively good health while working as a truck driver before the June 1989 accident. Maynor's low back symptoms arose within hours of the accident and progressively worsened. He received immediate and consistent medical treatment during the months before his surgeries. The medical and lay evidence preponderates in favor of the reasonable conclusion that Maynor's disabling low back condition was caused or aggravated by the accident.
Before an appellate court can disturb a quantum award, the record must clearly reveal that the factfinder abused its discretion in making its award. American Motorist Insurance Co., supra; Coco v. Winston Industries, Inc., 341 So. 2d 332 (La. 1976); Durkee, supra. Based upon our finding that Larry Maynor's disc condition is causally connected to the automobile accident, we find that the jury's award of medical expenses, lost wages and general damages is grossly inadequate. Furthermore, we find error in the jury's failure to make an award for loss of earning capacity.
Once it is determined that the trier of fact is clearly wrong, the appellate court is empowered by LSA-C.C.P. Art. 2164 to render any judgment which is just, legal and proper. Watson v. State Farm Fire & Casualty Insurance Co., 469 So. 2d 967 (La.1985); Beckham v. St. Paul Fire & Marine Insurance Co., 614 So. 2d 760 (La.App. 2d Cir. 1993). In cases where the appellate court is compelled to modify an inadequate award of damages, the award will only be raised to the lowest point that is reasonably within the trier of fact's discretion. Theriot v. Allstate Insurance Co., 625 So. 2d 1337 (La.1993); Coco, supra; Durkee, supra.
General Damages
General damages involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of life or lifestyle that cannot be measured definitively in terms of money. Boswell v. Roy O. Martin Lumber Co., Inc., 363 So. 2d 506 (La.1978); Whitaker, supra; Beckham, supra.
Larry Maynor consulted several doctors and was treated conservatively without success for approximately 18 months following the June 1989 accident. Because of intensified and continuous pain, Maynor consulted Dr. George Ferre in November 1990. After a series of tests, Dr. Ferre diagnosed nerve root compression and a disc rupture at L5-S1 and a disc herniation at L4-L5.
Surgery was performed in January 1991. Because of continued pain, stiffness and limitation *421 of motion, Dr. Ferre ordered another MRI, which revealed scarring at L4-L5 and disc herniation at L5-S1. Maynor's pain worsened and surgery to remove the second herniated disc was performed. A third surgery was undertaken to remove bone growth and scarring.
Dr. Ferre testified that Maynor has chronic back pain and that the three back surgeries were unsuccessful. Dr. Ferre gave Maynor a 30-35% spinal impairment rating and opined that Maynor will never be able to return to work as a truck driver. Dr. Ferre further stated that Maynor is disabled for the purposes of manual labor.
Larry Maynor testified that he is unable to work or engage in hobbies previously enjoyed because of lower back and leg pain. Maynor cannot perform household chores or work in his yard. His bladder control has been affected and he sometimes urinates on himself. Maynor stated that he has lost the ability to function sexually.
After a review of awards in similar cases, we conclude that a general damage award in the amount of $150,000 is the lowest amount within the range of the jury's discretion for Larry Maynor's injuries, two herniated discs requiring three surgeries, none successful, and resulting in a permanent impairment and an inability to work.[1]
Loss of Earnings and Earning Capacity
Lost earnings need not be precisely proven, but they must be shown with reasonable certainty. Moore v. Chrysler Corp., 596 So. 2d 225 (La.App. 2d Cir.1992), writs denied, 599 So. 2d 316, 317 (La.1992); Finley v. Bass, 478 So. 2d 608 (La.App. 2d Cir.1985). Damages for loss of past wages are not necessarily limited to a multiplier of the amount earned at the time of injury. Folse v. Fakouri, 371 So. 2d 1120 (La.1979). An award for lost past wages can be computed on the amount the plaintiff would have in all probability been earning at the time of trial. Coco, supra. To recover, a plaintiff must show proof to reasonably establish his claim. Weber v. Brignac, 568 So. 2d 1129 (La.App. 5th Cir.1990).
Damages for loss of earning capacity should be based on the injured person's ability to earn, rather than what he actually earned before the injury. Hobgood v. Aucoin, 574 So. 2d 344 (La.1990); Laing, supra; Bacle v. Wade, 607 So. 2d 927 (La. App. 2d Cir.1992). In computing loss of future income, it is necessary to determine whether and for how long a plaintiff's disability will prevent him from engaging in work of the same or similar kind that he was doing at the time of his injury. A determination must also be made of whether plaintiff has been disabled from work for which he is fitted by training and experience. Laing, supra; Hunt v. Board of Supervisors of Louisiana State University, 522 So. 2d 1144 (La.App. 2d Cir.1988).
Dr. William Stewart, professor of vocational rehabilitation services at the University of South Carolina, conducted a clinical occupational rehabilitation interview with Maynor on April 8, 1992. Scores from tests administered by Dr. Stewart reveal that Maynor is functionally illiterate, though his math skills are at the ninth grade level. Maynor's performance on a bimanual dexterity work sample test reveals that he experiences pain while sitting and using his upper body. Maynor requires a frequent change of body position and his lack of dexterity prevents him from piece work or production type employment.
*422 Dr. Stewart noted Maynor's desire to return to work. Also, according to Dr. Stewart, one of Maynor's vocational strengths is his outstanding employment record. However, he feels that Maynor is totally disabled for employment purposes because of his lack of work stamina and endurance, physical disabilities, constant pain and depression, and inability to read or write. Based on the severity of Maynor's problems, Dr. Stewart opined that it was unlikely that occupational rehabilitation would be successful. Furthermore, Dr. Stewart noted that there is no expectation of future employability for Maynor.
Dr. Luther Diehl, clinical psychologist, performed a clinical evaluation of Maynor on May 11, 1992. Maynor's scores on several standardized tests reveal extreme difficulty in reading and writing. According to Dr. Diehl, Maynor's functional illiteracy makes retraining very difficult. Dr. Diehl's diagnostic impression of Maynor was major depression, which he attributes to the accident. Maynor's objective symptoms were insomnia, lack of interest in formerly enjoyed activities and decreased interest in sex and romantic relationships.
Dr. Diehl saw Maynor again on October 1, 1992. At this time, he noted Maynor's feelings of hopelessness because of his inability to read and write. Maynor is aware of his limitations and he feels that he doesn't have many alternatives. Dr. Diehl stated that Maynor's pain and resulting depression make it hard for him to concentrate. Dr. Diehl opined that the prognosis is poor for Maynor's resumption of any type of gainful employment given his limitations.
Dr. Randy Rice, professor of economics at Louisiana State University, calculated Maynor's past lost wages from time of injury through trial based on Maynor's 1989 year-to-date earnings as $95,959. Dr. Rice also calculated the present value of Maynor's lost future earnings as $384,692.
Dr. Ernest Moser, economist, testified for defendants. Dr. Moser calculated Maynor's past lost wages from injury through trial based on Maynor's income for the first half of 1989 and previous tax returns. Dr. Moser's figure for past lost wages was $76,719.92. For loss of earning capacity, Dr. Moser calculated the present value of Maynor's future loss as $297,486.24.
Dr. Diana Herbst, vocational rehabilitation expert, noted that Maynor exhibited very little ability in most employment areas. Dr. Herbst also stated that Maynor is limited by his functional illiteracy, physician's restrictions and the non-transferability of his truck driving skills to other occupations.
Based on the above testimony, we find that Maynor is entitled to an award of $85,000 for past lost wages and $345,000 for loss of earning capacity.
Medical Expenses
Medical expenses, past and future, which are incurred by an injured plaintiff, are recoverable as an element of damages. Thames v. Zerangue, 411 So. 2d 17 (La.1982). The record contains uncontroverted evidence of Maynor's past medical expenses in the amount of $55,165.58, which are recoverable in full.
INSURANCE COVERAGE
R.L.I. argues that the trial court erred in concluding that its policy was not a true excess policy and in finding that the R.L.I. policy would pay concurrently, on a pro-rated basis, with the C.R.E. policy for any amount over $250,000 up to $1,750,000.
At the time of the accident, a C.R.E. business auto policy with liability limits of $1,000,000 covered E. Lee Young & Co., Inc., Michael Vosburg's employer. The truck involved in the accident was listed as a covered auto on the C.R.E. policy. Also in effect on the date of the accident was a personal umbrella liability policy issued by R.L.I. to William E. Vosburg, Michael's father.
Prior to trial, the court found that the C.R.E. policy provided primary coverage for the first $250,000 and that the R.L.I. policy was not a true excess policy. The trial court further held that the C.R.E. and R.L.I. policies provided concurrent coverage for any amount over $250,000 up to $1,750,000, with C.R.E. paying 43% and R.L.I. paying 57% of any amount within that range.
*423 Applicable Legal Principles
An insurance policy is a contract between the parties and is to be construed by applying the general rules of interpretation of contracts set forth in Louisiana's Civil Code. Louisiana Insurance Guaranty Association v. Interstate Fire & Casualty Co., 93-0911 (La. 01/14/94), 630 So. 2d 759; Smith v. Matthews, 611 So. 2d 1377 (La.1993); Benton v. Long Manufacturing N.C., Inc., 550 So. 2d 859 (La.App. 2d Cir.1989). Contractual interpretation is the determination of the common intent of the parties. LSA-C.C. Art. 2045; Lindsey v. Poole, 579 So. 2d 1145 (La.App. 2d Cir.1991), writ denied, 588 So. 2d 100 (La.1991).
The parties' intent, which is reflected by the language of the insurance policy, determines the extent of coverage. L.I.G.A., supra; Pareti v. Sentry Indemnity Co., 536 So. 2d 417 (La.1988). An insurance policy should not be interpreted in a manner that would enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or which would lead to an absurd conclusion. L.I.G.A., supra; Lindsey, supra. As long as there is no conflict with statutory provisions or public policy, insurers can limit their liability and obligations in a given policy. Lindsey, supra; Benton, supra.
In L.I.G.A., supra, the issue before the supreme court was whether an excess insurance policy provided drop down coverage as a result of the primary insurer's insolvency. It was noted that in determining the extent of excess coverage, courts have looked beyond the policy language to other factors, such as the premiums paid and the purpose and nature of excess insurance. Id. at 768. See also Benton, 550 at 861, fn. 2.
An insured purchases excess insurance to provide supplemental coverage that picks up where his primary coverage ends and thus provide protection against catastrophic losses. L.I.G.A., supra; Lindsey, supra; Coates v. Northlake Oil Co., Inc., 499 So. 2d 252 (La.App. 1st Cir.1986), writ denied, 503 So. 2d 476 (La.1987). The very nature of excess insurance coverage is such that a predetermined amount of underlying primary coverage must be paid before the excess coverage comes into play. The existence of underlying primary coverage both reduces the risk assumed by the excess insurer and translates into a reduced premium for the insured. L.I.G.A., supra. The reduced premium reflects the parties' intent that excess coverage attaches only after a predetermined amount of primary coverage has been exhausted. Id.; Benton, supra.
Discussion
Our application of the above legal principles to the insurance policies in this case demonstrates that the trial court erred in failing to classifying the R.L.I. policy as a true excess policy and in finding that R.L.I. provided primary coverage.
The C.R.E. policy's "other insurance" clause provides that the policy is primary for any covered auto owned by the insured. It is undisputed that the truck involved in the accident is such an auto. The C.R.E. policy also contains a "pro-rata" clause, which provides that when C.R.E.'s policy and another policy cover a claim on the same basis, C.R.E. will pay its share, which is the proportion that the C.R.E. policy limits bear to the total of the limits of all insurance policies covering the claim on the same basis. (Emphasis added).
The R.L.I. policy provides that it will constitute excess insurance over the amounts provided by basic policies. (Emphasis added). Once the limits of underlying policies are satisfied, R.L.I. will provide coverage of $1,000,000 for each accident. The words "excess" and "excess insurance" appear throughout the R.L.I. policy. The policy premium charged by R.L.I. was $160.00. C.R.E. charged a premium of $17,758. The disparity in premiums charged for the two policies reinforces the position that R.L.I.'s policy is in fact a true excess policy. See Benton, 550 So.2d at 861, fn. 2.
The C.R.E. policy provides primary coverage and the R.L.I. policy provides excess coverage. Therefore, these policies are non-concurrent. As noted by the First Circuit in Penton v. Hotho, 601 So. 2d 762 (La.App. 1st Cir.1992), where one policy is primary and the other is a true excess policy, *424 the "excess" and "other insurance" clauses are not mutually repugnant and the true excess policy does not provide coverage until the primary policy limits are exhausted. Penton, supra at 766, citing Truehart v. Blandon, 884 F.2d 223 (5th Cir.1989). Furthermore, when two policies do not cover a claim on the same basis, pro-rata division does not apply. Easton v. Chevron Industries, Inc., 602 So. 2d 1032 (La.App. 4th Cir. 1992), writs denied, 604 So. 2d 1315, 1318 (La.1992).
In Truehart, supra, the Fifth Circuit reversed the district court's holding that an "other insurance" clause, coupled with a "drop down" clause in an excess insurance policy, transformed the excess policy into a primary insurance policy. As noted by the Fifth Circuit:
[I]t is logical to assume that affordable and socially desirable catastrophic insurance would be difficult to obtain in Louisiana if we were loosely to allow transformation of umbrella policies because of boilerplate "other insurance" clauses in primary policies. Consequently, we are not convinced that Louisiana would allow a standard "other insurance" clause in the policy of an unrelated third party (the owner of the boat involved in the explosion) to define whether U.S. Fire should be treated as an excess or primary insurer.
The doctrine of mutual repugnancy appears to proscribe transformation of a primary policy into an excess policy if the "other insurance" clause would defeat the primary coverage originally contemplated by the parties and lead to absurd, unintended gaps in insurance protection. We find no benefit in applying the doctrine to achieve a dramatically different result: transforming a true umbrella policy into a primary policy where there is sufficient underlying insurance coverage.
But where, as in this case, the primary insurance is sufficient, there is no gap in insurance coverage even if each "other insurance" clause is given full effect.
Moreover, the doctrine of mutual repugnancy requires only that the "other insurance" clauses be given no operative effect. The doctrine has never been used in Louisiana as an instrument to transform a true excess insurance policy into a primary insurance policy where primary insurance is unexhausted.
Id. at 228.
The trial court erred in treating the R.L.I. policy as a primary policy. C.R.E. provides primary coverage for Maynor's claim up to its policy limits of $1,000,000. As the judgment in this case does not exceed C.R.E.'s policy limits, R.L.I.'s excess coverage is not implicated.
APPORTIONMENT OF COSTS
C.R.E. contends that the trial court erred in denying its claim against R.L.I. for reimbursement of certain costs. C.R.E.'s claim is for court costs, attorney fees and expert witness fees incurred by C.R.E. defending their mutual insureds. Throughout the litigation, R.L.I. continued to deny coverage. C.R.E. argues that R.L.I. should bear a proportion of these costs.
LSA-C.C. Art. 1920 affords the trial court broad discretion in assessing court costs and allows the trial court to render judgment for costs against any party as it may consider equitable. Earles v. Ahlstedt, 591 So. 2d 741 (La.App. 1st Cir.1991). A trial court's assessment of costs can be reversed by an appellate court only upon a showing of abuse of discretion. State v. Nicholls College Foundation, 592 So. 2d 419 (La.App. 1st Cir. 1991), writ denied, 593 So. 2d 651 (La.1992); Ratcliff v. Town of Mandeville, 551 So. 2d 761 (La.App. 1st Cir.1989), writ denied, 556 So. 2d 37 (La.1990). We find no abuse of discretion in the trial court's assessment of costs in the instant case, especially in light of our determination that R.L.I. is a true excess insurer and as such is not liable to Maynor for his damages.
DECREE
The judgment is AMENDED in these respects:
(1) Plaintiff's, Larry Maynor's, award is increased to $635,165.58, with legal interest from date of judicial demand and is against defendants, Michael and William Vosburg, E.
*425 Lee Young & Company, Inc., and C.R.E., in accordance with their fault.
(2) All demands against defendant, R.L.I., are rejected at the costs of the other defendants.
AS AMENDED, the judgment is AFFIRMED.
LINDSAY, J., dissents with reasons.
SEXTON, J., dissents for the reasons assigned by LINDSAY, J.
LINDSAY, Judge, dissenting in part.
I dissent from the portions of the majority opinion (1) holding that the jury was clearly wrong in finding that there was no causal connection between the accident and the plaintiff's subsequent disc problems and (2) increasing the plaintiff's award of damages. (Since I would affirm the jury's damage award, which is less than $250,000, it is unnecessary to consider the issue of whether R.L.I.'s policy was a true excess policy.)
Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So. 2d 840 (La.1989). When findings are based on determinations regarding the credibility of witnesses, the manifest errorclearly wrong standard demands great deference to the trier of fact's findings. Rosell, supra.
As the trier of fact, the jury did not accept the plaintiff's evidence that the Ruston accident caused permanent, debilitating injuries. To the contrary, the jury obviously accepted the testimony of Dr. Anthony Hucks-Folliss that the plaintiff sustained only a soft-tissue injury which he treated conservatively for a period of about six months. Dr. Hucks-Folliss was the first doctor to treat the plaintiff following the June 1989 accident. On June 20, 1989, he examined the plaintiff and gave him pain medication and a muscle relaxant. Dr. Hucks-Folliss diagnosed the plaintiff as suffering from an acute muscle and ligament injury. He saw the plaintiff again on July 11, 1989, at which time the plaintiff complained of worsening pain. Dr. Hucks-Folliss scheduled an MRI (magnetic resonance imaging) scan of the lumbar spine. This revealed mild degeneration of the disc at the L4/L5 level. However, since there was no evidence of a ruptured disc, the doctor chose to continue conservative treatment. The plaintiff returned to see him on August 28, 1989 and September 28, 1989. By the time he returned on October 26, 1989, he was showing some improvement. The plaintiff's final office visit was on December 26, 1989.
Additionally, the jury was undoubtedly persuaded by the testimony of Dr. Frank X. Cline, Jr., and Ms. Margo Gibson, a licensed occupational therapy assistant, that the plaintiff's performance on a B200 test (which is designed to measure the strength and the motion capacity of the low lumbar spine) was indicative of a person who was either trying to "fool" the machine and the examiner or was malingering.
Dr. Cline testified that he examined the plaintiff on June 4, 1992. Dr. Cline stated that the plaintiff did not supply a good history because he complained of so many different things and there was no discernable pattern to his complaints. Based upon his examination of the plaintiff and his past medical records and tests, Dr. Cline offered the opinion that he suffered from a long-term disc degeneration at the L4/L5 level as early as 1983.
Dr. Cline was also of the opinion that the June 1989 accident had no significant effect on the plaintiff's pre-existing disc problem or any other disc in his lumbar vertebrae. In addition to his medical diagnosis, he based his opinion on several other factors, noting that the plaintiff was firmly strapped in his seat with a seat belt and there was a "trivial" amount of force involved in the accident. Dr. Cline felt that the plaintiff's January 1991 surgery was due to the natural progressive deterioration of his disc.
Although the plaintiff denied prior lower back problems, his testimony was impeached by that of his former wife and his medical records. The plaintiff's former wife testified that in 1983 the plaintiff received a workrelated injury and that he consequently began seeing a chiropractor. Thereafter, the plaintiff would sometimes rub the small of his back. She was also aware that the plaintiff *426 was involved in another accident in 1988. She testified that after that incident he would sometimes complain and rub his lower back. A 1983 patient information sheet from the chiropractic clinic stated that the appointment concerned the plaintiff's low back; this document was signed by the plaintiff. The medical records of the plaintiff's general practitioner showed that the plaintiff was complaining of "chronic bad back" in 1985. Dr. Stephen Gardner, a neurosurgeon who saw the plaintiff in October 1990, did not diagnose a herniated disc. Dr. George Ferre, the doctor who performed several surgeries on the plaintiff and whose testimony most strongly supported the plaintiff's case, did not see the plaintiff and diagnose a herniated disc until November 1990, some 17 months after the accident.
It is meaningful to note that, in their closing arguments, both defense attorneys urged the jury that, if they felt they wanted to award the plaintiff something, they should give him $15,000 for a soft-tissue injury, wages for a six-month period of about $12,000, and his initial medical bills. This is almost exactly the sum awarded to the plaintiff by the jury, which had the great benefit of observing the plaintiff himself.
Based on the above, I cannot agree with the majority's decision to discard the jury's fact determinations and find that the jury was manifestly erroneous. The majority has impermissibly substituted its judgment for that of the jury even though there was substantial evidence supporting the jury verdict. Therefore, I dissent, in part.
APPLICATION FOR REHEARING
Before MARVIN, SEXTON, NORRIS, LINDSAY and BROWN, JJ.
Rehearing denied.
NOTES
[1] In Buras v. United Gas Pipeline Co., 598 So. 2d 397 (La.App. 4th Cir.1992), writ denied, 605 So. 2d 1147 (La.1992), the Fourth Circuit noted that $100,000 was the minimum award for a herniated disc which requires a surgery. See also Clark v. Ark-La-Tex Auction, Inc., 593 So. 2d 870 (La.App. 2d Cir.1992) ($285,000), writ denied, 596 So. 2d 210 (La.1992); Spangler v. North Star Drilling Co., 552 So. 2d 673 (La.App. 2d Cir.1989) ($375,000); Fanguy v. Dupre Brothers Construction Co., Inc., 588 So. 2d 1251 (La.App. 1st Cir.1991) ($175,000), writ denied, 594 So. 2d 892 (La.1992); Hutchinson v. Wal-Mart, Inc., 573 So. 2d 1148 (La.App. 1st Cir.1990) ($250,000); McLemore v. Fox, 565 So. 2d 1031 (La.App. 3d Cir.1990) ($300,000), writs denied, 569 So. 2d 966, 968 (La.1990); Runnels v. Esteves, 550 So. 2d 1225 (La.App. 4th Cir.1989) ($300,000), writ denied, 558 So. 2d 1126 (La.1990); Tastet v. Joyce, 531 So. 2d 520 (La.App. 5th Cir.1988) ($350,000).
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608 N.W.2d 19 (2000)
STATE of Iowa, Appellee,
v.
Kevin Gerald ANTENUCCI, Appellant.
No. 99-0143.
Supreme Court of Iowa.
March 22, 2000.
Curt Krull of Roehrick, Hultin, Krull & Blumberg, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and John Heinicke, Assistant County Attorney, for appellee.
Considered en banc.
NEUMAN, Justice.
This is an appeal by defendant, Kevin Antenucci, from the judgment and sentence entered on his pleas of guilty to two counts of forgery. See Iowa Code § 715A.2(1)(b), (2)(a)(3) (1997). We affirm.
Antenucci's forgery convictions stem from his use of a stolen credit card to make two sizeable retail purchases. He urged dismissal of the charges in district court, claiming the state should have charged him with the less-serious offense of credit card fraud. See Iowa Code § 715A.6. When the court denied the motion to dismiss, Antenucci withdrew his plea of not guilty. He then entered an Alford plea to the original charges. It is the trial court's dismissal ruling that Antenucci seeks to challenge on appeal.
With limited exceptions, not pertinent here, a guilty plea taken in conformity with Iowa Rule of Criminal Procedure 8(2)(b) waives all defenses and objections. State v. Yodprasit, 564 N.W.2d 383, 387 (Iowa 1997); State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980). "No provision is made in rule 8 for conditional pleas of guilty." State v. Tobin, 333 N.W.2d 842, 844-45 (Iowa 1983). "[O]ur law recognizes only three pleas to a criminal charge: guilty, not guilty, or former judgment of conviction or acquittal of the offense charged." State v. Dorr, 184 N.W.2d 673, 674 (Iowa 1971). A defendant seeking to challenge a guilty plea must do so by motion in arrest of judgment. Worley, 297 N.W.2d at 370. Failure to do so precludes the right to assert the challenge on appeal. Id.; Iowa R.Crim. P. 23(3)(a).
The record before us reveals strict adherence by the court to the plea colloquy required by rule 8(2)(b). Thereafter the court advised Antenucci of his right to file a motion in arrest of judgment, and he *20 waived that right on the record. Antenucci entered a knowing and voluntary plea of guilty to the charges for which he now stands convicted. The error he alleges on appeal was waived along the way. It has not been preserved for our review. See Dorr, 184 N.W.2d at 674 (explaining rationale for rejecting expedient, but unauthorized, "guilty plea with strings attached"). We therefore affirm the judgment of the district court.
AFFIRMED.
All justices concur except CARTER, J., who takes no part.
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363 S.W.2d 332 (1962)
The STATE of Texas, Relator,
v.
Hon Donald M. MARKLE, District Judge, et al., Respondents.
No. 14101.
Court of Civil Appeals of Texas, Houston.
December 13, 1962.
Rehearing Denied January 10, 1963.
*333 Will Wilson, Atty. Gen., and Ben M. Harrison, J. Arthur Sandlin, Thomas H. Peterson and Joe A. Osborn, Asst. Attys. Gen., Austin, for relator.
Barker, Barker & Coltzer, Owen D. Barker, Armstrong, Bedford & Lambdin, Galveston, for respondents.
BELL, Chief Justice.
This is an original proceeding in which the State of Texas, through the Attorney General of Texas, seeks to obtain a writ of mandamus against the Honorable Donald M. Markle, District Judge, compelling him to proceed to hear and try a suit for writ of temporary injunction filed by relator against the other respondent, Galveston East Beach, Inc., seeking to enjoin such other respondent from interfering with the use by the public of what is known as "East Beach" in Galveston and to require the removal of barricades erected across the road that is the means of access to said beach.
Cause No. 97,893, in the 10th District Court of Galveston County was filed February 15, 1962 by respondent Galveston East Beach, Inc., herein called Beach Co. The suit seeks a judgment declaring that it is the owner of the 384 acres described in its petition and that neither the State of Texas, its subdivisions, nor the public or any member of the public, has any easement or any right or claim to the land above the line of mean low tide. The suit for a declaratory judgment is brought pursuant to Section 6 of Article 5415-d, V.A.T.S., and the Uniform Declaratory Judgment Act, Article 2524-1, V.A.T.S. Article 5415-d is what is commonly known as the "Open Beaches" bill. Section 6 confers authority on the littoral owner to seek a declaratory judgment. The petition alleges ownership in the Beach Co. and alleges the provisions of Article 5415-d cast a cloud on its title.
To this petition the relator filed its answer contending that the appellee of Texas had a right of use of a means of access to the shores and waters of the Gulf of Mexico and the right to use and enjoy the beaches from the line of mean low tide to the line of vegetation. The basis of these asserted rights in the public is as follows:
1. Before, at and all of the time since the Menard Grant of a portion of Galveston Island by the Republic of Texas on January 5, 1838, the area extending from the *334 line of mean low tide to the line of vegetation bordering the Gulf of Mexico has been so used by the people, without overt challenge, question or interruption, that such use has become a part of our honored custom and common law. Such inherent right has been retained through continued use by public.
2. At and before such grant said beach area was dedicated as a public way for use by the public for purposes of fishing, camping, swimming and boating. The long use by the public and acquiescence therein by the Beach Co. and its predecessors in title reflect a dedication to public use.
3. Dedication of such beach area subsequent to the Menard Grant.
4. Acquisition by the public of an easement by prescription.
5. Estoppel against the Beach Co. and its predecessors in title to deny such rights of use in the public because they permitted Galveston County to expend public funds in keeping the beach area free of debris and other obstructions and in maintaining said beach.
On June 14, 1962 relator, having been informed that on June 15 the Beach Co. would place a guard so as to prevent vehicular traffic to the beach area and the road used in connection therewith, asked for a temporary restraining order. This was refused on June 15 and at that time the hearing on temporary injunction was set by agreement of the parties for July 11. On July 2 relator filed its amended application for a temporary injunction, the only change being the allegation that the action threatened by the Beach Co. had been taken. The substance of the allegations in the petition for temporary injunction was that the public had the right to access to the beach and the waters of the Gulf of Mexico and the use of the beach between the line of mean low tide and the line of vegetation for the purpose of boating, swimming, fishing and camping, it having acquired an easement for such purpose through immemorial use, through dedication, both before and after the Menard Grant, and by prescription. It alleges the public had for many years used the property without any interference and such situation was the last placeable uncontested condition and this was changed by respondents' action. It then alleges erection of barricades which prevent vehicular traffic and thus prevents use of a road giving full access to the beach and interferes with use of the beach by the public. It alleges the Beach Co. was charging $1.00 for each vehicle admitted by it through the barricade.
The Beach Co. answered this petition, setting up, among other things, that Article 5415-d, V.A.T.S., was unconstitutional because it deprived it of its property without due process of law. We think it unnecessary to notice the other defenses alleged.
When the case, insofar as the temporary injunction is concerned, came on for hearing on July 11, the Court entered an order reciting that the relator's cause of action was founded on Article 5415-d; that the constitutionality of that statute was raised in this cause, and that the constitutionality of the same statute was involved in Cause No. 93, 782, entitled The Attorney General of Texas et al. v. Seaway Company, Inc., in the 122nd District Court of Galveston County, which was on appeal to the Court of Civil Appeals, and the court was of the opinion it was necessary for him to know whether the statute was constitutional before he could properly rule on the application for temporary injunction. It was then ordered that no further proceedings would be held until the appellate courts had finally passed on the constitutionality of Article 5415-d, unless he was ordered to proceed by a court of competent jurisdiction.
The case of the Attorney General of Texas et al. v. Seaway Company, Inc. is now pending on appeal in this Court. The appellant is Seaway Company, Inc. Appellant does assert the unconstitutionality of *335 Article 5415-d. The property involved in the Seaway case is situated on what is called the "West Beach" of Galveston Island and is located some 20 miles from the "East Beach," the property involved in this original proceeding. The record in the case, which is very voluminous, reflects that judgment was rendered in favor of the State finding an easement in the public based on jury findings establishing such easement by dedication, long continued use, which right has been retained by the public, and by prescription. The area over which such easement was found was between the line of mean low tide and the line of vegetation.
We need not here notice in detail the provisions of Article 5415-d. The article merely declares it to be the policy of the State that members of the public shall have the free and unrestricted right of ingress and egress to the State-owned beaches on the seaward shore of the Gulf of Mexico and to the area between the line of mean low tide and the line of vegetation in the event that the right of use or an easement to such area has been acquired by prescription or dedication, or use has been retained by virtue of continuous right in the public. It is made an offense against said policy for anyone to interfere with such right of ingress and egress, but declares the right to free and unrestricted access over areas landward of the line of vegetation is satisfied by existing roads or ways or which with approval of any governmental authority having jurisdiction may be provided in the future. There is an express provision that nothing in the act shall be construed as affecting title to owners of land adjacent to any State-owned beach. It provides that in any suit brought where it is shown that the area involved is between the line of mean low tide and the line of vegetation the presumption arises that the littoral owner does not have the right to prevent the public from using the area for ingress and egress to the sea and that there has been imposed on the area, subject to proof of easement, a prescriptive right or easement in favor of the public for ingress and egress to the sea. It then places the duty on the Attorney General, County Attorney, District Attorney, or Criminal District Attorney, to file suits necessary to remove any obstruction or barrier interfering with use by the public. The act includes definitions that we need not notice.
The sole question we have before us is whether the trial judge should be required to proceed to trial of relator's application for temporary injunction.
Relator's position is that the refusal of the court to hold a trial on its application for a temporary injunction until after the appellate courts have passed on the constitutionality of Article 5415-d is under the facts so unreasonable as to amount to an abuse of discretion and therefore we have jurisdiction, which we should exercise, to issue a writ of mandamus. Respondents contend that a trial court has wide discretion in the control and disposition of his docket and we cannot control his exercise of discretion. Further, respondents say there has been no abuse of discretion in refusing to proceed until after the appellate courts decide the constitutionality of Article 5415-d, which is involved in the Seaway, Inc. case and which is also involved in the Beach Co. case.
It is well settled that under the terms of Article 1824, V.A.T.S., a Court of Civil Appeals has jurisdiction to issue a writ of mandamus to compel a District Judge to proceed to trial and judgment in a case. Allied Store Utilities v. Hunt, Tex. Civ.App., Civ.App., 148 S.W.2d 246; Willis v. Granger, Tex.Civ.App., 195 S.W.2d 831; Bergholm v. Peoria Life Ins. Co., Tex.Civ.App., 63 S.W.2d 1064; 37 Tex.Jur.2d, § 42.
It is frequently said that the Court of Civil Appeals may not through mandamus control the action of the trial court in a matter involving the exercise of discretion. This is, however, too broad a statement. The general rule has its limitations. *336 A writ of mandamus may issue where under the facts of the particular case there is a clear abuse of discretion. Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677.
We here hold that the refusal of the trial court to hear and determine the relator's application for temporary injunction was a clear abuse of the discretion he has in connection with the handling of his docket.
A reading of the record in this proceeding and in the Seaway, Inc. case convinces us that relator is not relying on Article 5415-d, except to the extent that it authorizes and places the duty on the Attorney General to bring suits to require removal of barricades or other obstructions that interfere with the members of the public in the exercise of their rights of ingress and egress to and from the waters of the Gulf of Mexico and in their use of the beaches to the line of vegetation. The act is not relied on to create any rights in the public and the presumption created, as above pointed out, is not relied on. As a matter of fact, a reading of the act indicates to us that it does not purport to create any rights or interfere with any rights of the landowner, but merely declares the policy of the State to protect such rights as the public may have. It is not necessary, however, that we pass on the validity of the act here. What we have said about it is occasioned by the injection by pleading of respondents of the question of the constitutionality of the act. Actually neither case attacks the constitutionality of the act insofar as it confers authority on the Attorney General. A reading of the relator's pleadings in both cases shows it must establish rights of access to and the right to use the beaches to the line of vegetation by showing the rights have been acquired by dedication, prescription or long continued use. The alleged statutory presumption was not relied on in the Seaway, Inc. case and there is no pleading of any presumption in this case. We do not mean it would have to be pled; we merely note there is nothing to show it will be relied on and relator in its brief disavows any intention to rely on it.
Apart from the above, however, even if the constitutionality of the statute were involved in the two cases, it would be no legal or equitable ground for not trying the issue as to whether a temporary injunction should issue.
In determining whether a temporary injunction should issue to preserve the status quo pending a trial of the case on its merits, the court does not finally pass on the constitutionality of a statute or finally determine its proper construction. It does not finally determine the rights of the parties. The only issue is whether the applicant is entitled to an injunction to preserve the status quo pending trial on the merits. To warrant the issuance of such a writ the court merely determines that a probable right and a probable injury are shown. If they are, the court has broad discretion in determining whether or not an injunction should issue. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549; Richter v. Hickman, Tex.Civ.App., 243 S.W.2d 466.
The policy of our law is that applications for temporary injunction should be heard speedily.
We have read all of respondents' authorities. They were all cases where an effort was made to obtain a final trial on the merits where the rights of the parties would be finally determined.
We are of the view that relator is entitled to a trial on its application for temporary injunction. We have no doubt the trial court will proceed to trial without the actual issuance of the writ. It is the order of the Court that a hearing on the application for temporary injunction be set to commence within 60 days from the date our opinion becomes final. No writ will actually issue unless our order be not complied with.
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363 S.W.2d 284 (1962)
Worley Lee INGRAM, Appellant,
v.
The STATE of Texas, Appellee.
No. 35058.
Court of Criminal Appeals of Texas.
December 5, 1962.
Rehearing Denied January 16, 1963.
E. H. Boedeker, Lubbock, for appellant.
Fred E. West, County Atty., Broadus A. Spivey, Asst. County Atty., Lubbock, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The offense is driving while intoxicated; the punishment, three days in jail and a fine of $100.
Highway Patrolman E. B. McKnight, called as a witness by the state, testified that on the night in question, as he was parked on the shoulder of U. S. Highway 84 in Lubbock County, he observed an automobile driven by appellant veer off the road toward him; that after appellant *285 turned back into the road and passed, he proceeded to follow and stop him after traveling a little over a quarter of a mile. Officer McKnight testified that while following appellant he observed his automobile on several occasions weave back and forth on the right side of the road but not cross the center stripe. He further stated that after stopping appellant he could smell a strong odor of alcohol on his breath; that appellant had urinated on himself and the front seat of his car; that he had difficulty in walking and was very unsteady on his feet, and the officer expressed his opinion that at such time appellant was very intoxicated.
Testifying as a witness in his own behalf, appellant denied that he was intoxicated or that he had had anything to drink. He also called witnesses to corroborate his denial of intoxication, and they testified that they had seen him on the night in question, prior to his arrest, at which time they did not smell alcohol on his breath and stated that he was sober.
In explaining his manner of walk and appearance at the time of his arrest, appellant testified that he was a victim of polio, which affected his walk, and that he was also afflicted with kidney trouble. He further denied that the highway patrolman smelled liquor on him and explained that what the officer smeller was fresh Copenhagen snuff, of which he had a mouthful, which "smells like rum."
The jury by their verdict resolved the disputed issue of intoxication against appellant.
We first overrule appellant's contention that the evidence is insufficient to support the judgment of conviction.
Appellant insists that the court erred in failing to grant a new trial on the ground that the jury received new evidence after retiring to deliberate upon the case. This contention is based upon proof that when the jury retired to deliberate, they took with them into the jury room a box of Copenhagen snuff which had been introduced in evidence by the state and, before arriving at a verdict, they opened the box, smelled of the snuff, and then mixed it with water to determine its smell. The box of snuff was a box of Copenhagen snuff appellant had with him at the trial, which he identified as being the same type of snuff he had on the night of his arrest.
In his brief, appellant relies upon certain holdings of this court, primarily in liquor cases such as Tro v. State, 104 Tex. Cr.R. 193, 283 S.W. 511, and Smith v. State, 153 Tex. Crim. 193, 218 S.W.2d 851, where it was held reversible error to exhibit to the jury a container of liquid which had been admitted in evidence for them to smell or otherwise examine to determine whether it was intoxicating liquor, where the matter of its intoxicating nature was an issue, or to permit the jury to take the container with them to the jury room and there examine and determine whether it was intoxicating liquor.
In the cases where such practice has been held reversible error, it was shown that the jury, by their examination, discovered new evidence which influenced their verdict.
In the present case, there is no showing as to the results of the jury's examination and experimentation with the snuff. No juror testified on the motion for new trial as to what smell was revealed by the examination of the snuff. In the absence of a showing that some new fact, hurtful to appellant, was discovered by the examination and experiment, which influenced the jury in the case, such action by the jury would not require the granting of a new trial. Smith v. State, 90 Tex. Crim. 24, 232 S.W. 497, and also Smith v. State, 152 Tex. Cr.R. 399, 214 S.W.2d 471.
Appellant's remaining complaint is to a portion of the county attorney's closing argument to the jury. Appellant's only objection to the argument was: "We take an exception to that." Such objection, *286 without stating the grounds or reason therefor, is insufficient to predicate error. Bryant v. State, 109 Tex. Crim. 32, 2 S.W.2d 846; Maddox v. State, 138 Tex. Crim. 210, 133 S.W.2d 977; Johnson v. State, 150 Tex. Crim. 356, 200 S.W.2d 1021.
The judgment is affirmed.
Opinion approved by the Court.
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648 So. 2d 406 (1994)
Rabon and Carol AYERS, Plaintiffs-Appellants,
v.
Dennis and Rebecca BRAZZELL, et al., Defendants-Appellees.
Henry and Susan PAGE, Individually and for the Minors, Paul Sailer and Angela Sailer, Plaintiffs-Appellants,
v.
ASSOCIATES FINANCIAL SERVICES OF AMERICA, Defendant-Appellee.
No. 26068-CA, No. 26069-CA.
Court of Appeal of Louisiana, Second Circuit.
September 21, 1994.
Opinion Clarifying Decision on Rehearing December 7, 1994.
*407 Weems, Wright, Shimpf, Hayter & Carmouche by Kenneth P. Haines, Shreveport, for appellants.
Mayer, Smith & Roberts by Steven E. Soileau, Shreveport, for appelleeBossier Parish Police Jury.
Fred Rogers, III, Shreveport, for appelleeDennis & Rebecca Brazzell.
Lunn, Irion, Johnson, Salley & Carlisle by Marshall R. Pearce, Shreveport, for appelleeExecutive Realty Plus, Inc. and Sharon Nichols.
Blanchard, Walker, O'Quin & Roberts by Reginald Abrams, Shreveport, for appellee United Built Homes.
Before MARVIN, SEXTON and LINDSAY, JJ.
LINDSAY, Judge.
The plaintiffs, Rabon and Carol Ayers and Henry and Susan Page, appeal from a partial summary judgment granted by the trial court in favor of the Bossier Parish Police Jury (BPPJ). For the following reasons, we vacate the partial summary judgment and remand for further proceedings.
FACTS
The plaintiffs filed suit against numerous parties, including the BPPJ, for damages to their homes caused by flooding during the heavy rains of April, 1991.[1] The houses are in a subdivision near the Caplis-Sligo Road in Bossier Parish. Within the subdivision, only the homes of the Rabons and the Pages were flooded.
As to their claim against the BPPJ, the plaintiffs allege that Parish regulations and ordinances require that, before a building permit is issued, plans and specifications for the proposed construction must be submitted which include the base flood level and the minimum floor elevation. Further, if the property is in the A or B flood level, after the construction is completed, an architect or certified engineer is to certify that the minimum floor elevation is above the base flood level.
The plaintiffs allege that for each of their houses, the Parish did not require submission of the plans and specifications before issuing the permits. Also, after the completion of the residences, and even though the property is in flood zone A, the parish did not require an architect or engineer to certify that the minimum floor elevation was above the base flood level. The plaintiffs allege that the base flood level for their property was 155 feet and that the minimum floor elevation of the houses was below that level. They argue that if the Parish had acted according to its own ordinances and regulations to assure that the houses were not built below the base flood level, the houses would not have flooded.[2] They also allege that such action and/or inaction was willful and/or wanton, with reckless disregard for the safety of the plaintiffs.
The BPPJ filed a motion for partial summary judgment, asserting that, insofar as the petition alleges a failure to enforce ordinances, those are discretionary actions of a political subdivision for which immunity from liability is statutorily provided. This argument *408 is based on LSA-R.S. 9:2798.1; 33:4771(5) and 4773(D).
LSA-R.S. 9:2798.1 provides in pertinent part:
B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policy-making or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless or flagrant misconduct. [Emphasis supplied.]
LSA-R.S. 33:4773(D) provides in pertinent part:
The performance of any enforcement procedure in connection with any building code shall be deemed to be a discretionary act and shall be subject to the provisions of R.S. 9:2798.1. [Emphasis supplied.]
LSA-R.S. 33:4771(5) defines an "enforcement procedure" as:
... any act, action, or failure to take action by a public servant or enforcement agency in connection with the implementation of any provision of a building code, including but not limited to the examination or review of any plan, drawing, or specifications, the conducting or completion of any inspection, the issuance, denial, or revocation of any permit, permission, license, or certificate, and the granting of any approval of construction.
The trial court granted the BPPJ's motion for partial summary judgment. All claims of the plaintiffs against the Police Jury "as they relate to the issuing of a building permit and/or for failing to enforce ordinances relating to the design and construction of the residences," were dismissed at the plaintiffs' cost.
The plaintiffs appealed the trial court judgment, asserting that the trial court erred in granting a partial summary judgment.
The plaintiffs also contend that the trial court erred in failing to consider whether the application of LSA-R.S. 9:2798.1 to the facts of this case violates the constitutional prohibition in Article XII, § 10 of the Louisiana Constitution prohibiting sovereign immunity. They further argue that the statute also violates the Equal Protection Clause of the 14th Amendment to the United States Constitution, in that it treats governmental defendants differently from private defendants.
MOTION FOR SUMMARY JUDGMENT
The plaintiffs contend that the trial court erred in granting the motion for partial summary judgment in favor of BPPJ. They argue that summary judgment should not have been granted in this case because LSA-R.S. 9:2798.1 is not applicable to bar a claim against BPPJ for failure to enforce its ordinances, standards and regulations. The plaintiffs argue that the issuance of building permits is governed by specific regulations and ordinances, is not a discretionary act, and BPPJ was therefore compelled to review the building plans and inspect the sites after completion.[3] See Sunlake Apartment Residents v. Tonti Development Corporation, 522 So. 2d 1298 (La.App. 5th Cir.1988).
They also argue that, under the jurisprudence interpreting LSA-R.S. 9:2798.1, the issue of whether an act is discretionary, therefore affording immunity from liability, is a question of fact, not properly the subject of a motion for summary judgment. See Insley v. Titan Insurance Company, 589 So. 2d 10 (La.App. 1st Cir.1991); Chaney v. National Railroad Passenger Corporation, 583 So. 2d 926 (La.App. 1st Cir.1991); Verdun v. State Through the Department of Health and Human Resources, 559 So. 2d 877 (La.App. 4th Cir.1990).
*409 Generally, the jurisprudence construing LSA-R.S. 9:2798.1 applies the twostep analysis of Berkovitz v. United States, 486 U.S. 531, 108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988), to determine whether the discretionary function exception applies in specific fact situations. Under Berkovitz, the court must first consider whether the government employee had an element of choice. The discretionary function exception will not apply when the statute, regulation or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive. On the other hand, when discretion is involved, the court must then determine whether that discretion is the kind shielded by the exception, that is, one grounded in social, economic or political activity. Fowler v. Roberts, 556 So. 2d 1 (La. 1989); Kneipp v. City of Shreveport, 609 So. 2d 1163 (La.App. 2d Cir.1992), writ denied 613 So. 2d 976 (La.1993); Chaney v. National Railroad Passenger Corporation, supra; Rick v. State Department of Transportation, 93-1776 and 1784 (La. 1/14/94); 630 So. 2d 1271.
In the cases cited by plaintiffs, the statutory definition of a discretionary act, contained in LSA-R.S. 33:4771(5), relative to the issuance of building permits, is not discussed. While the cases cited by the plaintiffs indicate that generally the decision as to whether an act is discretionary involves a factual analysis, in the present case, the issuance of building permits is specifically defined to be a discretionary act in LSA-R.S. 33:4771(5). When this definition is read in conjunction with LSA-R.S. 33:4773(D) and 9:2798.1, no factual analysis is necessary to determine that the above cited statutes create immunity from liability in favor of the BPPJ for its actions regarding the issuance of the building permits in question.
LSA-C.C.P. Art. 966 provides, in pertinent part, that the plaintiff or defendant in the principle or any incidental action, with or without supporting affidavits, may move for summary judgment in his favor for all or part of the relief for which he has prayed. The article further provides that the judgment sought shall be rendered forthwith in the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.
Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. The burden of proving that there is no genuine issue of material fact is on the mover. Chaney v. National Railroad Passenger Corporation, supra.
Applying the statutes discussed above, the actions of the BPPJ in the issuance of building permits was discretionary. Therefore, application of the discretionary function exception makes the BPPJ immune from liability in connection with the issuance of the permits and BPPJ would be entitled to judgment as a matter of law.
While the simple application of the above quoted statutes supports the trial court's granting of the partial summary judgment, nevertheless, as will be discussed below, the issue of the constitutionality of LSA-R.S. 9:2798.1 was not considered by the trial court in reaching its decision. Because the constitutional validity of the primary statute relied upon by the BPPJ is in dispute, we cannot presently make a definitive ruling as to the correctness of the partial summary judgment.
CONSTITUTIONALITY
Even though, under the applicable statutes, if valid, the trial court would have been correct in granting the motion for summary judgment, the plaintiffs also claim that the trial court erred in failing to consider the constitutionality of LSA-R.S. 9:2798.1. The plaintiffs contend that Article XII § 10 of the Louisiana Constitution, prohibiting sovereign immunity, provides that neither the state or a state agency or a political subdivision shall be immune from suit and liability in contract or for injury to person or property. The plaintiffs contend that if LSA-R.S. 33:4771(5), defining a discretionary act, is read in conjunction with LSA-R.S. 9:2798.1 *410 to limit the liability of the BPPJ, then the latter statute unconstitutionally provides sovereign immunity.
The plaintiffs also argue that LSA-R.S. 9:2798.1 violates the equal protection clause of the Fourteenth Amendment of the United States Constitution in that it treats governmental defendants differently from private defendants.
The plaintiffs are correct in their contention that the issue of the constitutionality of LSA-R.S. 9:2798.1 was not ruled upon by the trial court. After our examination of the record, we find that the plaintiffs properly raised this issue in the trial court, but a ruling on the issue was pretermitted. Without a trial court ruling, it would be improper for this court, in the first instance, to consider the issue. Therefore, the case must be remanded to the trial court for consideration of the constitutionality of LSA-R.S. 9:2798.1.
It is well settled that the constitutionality of a statute must first be raised in the trial court, not the court of appeal. This issue must be especially pleaded to be considered by the trial court. Allen v. Burrow, 505 So. 2d 880 (La.App. 2d Cir.1987), writ denied 507 So. 2d 229 (La.1987); Thomson v. State, 564 So. 2d 756 (La.App. 2d Cir.1990); Lemire v. New Orleans Public Service, Inc., 458 So. 2d 1308 (La.1984); Injury Hotline v. Houck, 621 So. 2d 127 (La.App. 2d Cir.1993), writ denied 629 So. 2d 396 (La.1993); Hillman v. Akins, 93-0631 (La. 1/14/94); 631 So. 2d 1.
Further, the Attorney General must be served and given an opportunity to be heard and to participate in the case in a representative capacity. Chamberlain v. State Through the Department of Transportation and Development, 624 So. 2d 874 (La. 1993); Taylor v. Giddens, 618 So. 2d 834 (La. 1993).
In the present case, in response to BPPJ's motion for summary judgment, the plaintiffs specifically pleaded the unconstitutionality of LSA-R.S. 9:2798.1. However, the Attorney General was not served at the trial court level and was not given an opportunity to appear and be heard in a representative capacity in that court.[4] Also, the issue of constitutionality of the statute was pretermitted at the hearing on the motion for summary judgment. The transcript reveals that the parties generally agreed that if this issue was reached, the Attorney General would have to be notified, the issue briefed more thoroughly and a hearing held.
We find that, because the plaintiffs specially pleaded the unconstitutionality of the statute, the question was properly raised and preserved for consideration by the trial court. However, the record is clear that the trial court did not consider and rule upon this issue in granting partial summary judgment in favor of BPPJ. Without service on the Attorney General and a hearing and ruling, the issue is not properly before this court for review.
Because the constitutional question was pretermitted, the appropriate procedure is to remand the case to the trial court for consideration of the constitutional validity of LSA-R.S. 9:2798.1. Further, we find that this issue must first be determined in order to evaluate whether the motion for partial summary judgment in favor of BPPJ should be granted.
Accordingly, we order the plaintiffs to serve the Attorney General and we order that the trial court schedule a hearing and make a ruling on this issue in due course. After deciding the constitutional issues, the trial court is directed to reconsider the motion for partial summary judgment.
*411 CONCLUSION
For the reasons stated above, we vacate the partial summary judgment and we remand the case to the trial court for consideration of the constitutional issues raised by plaintiffs and for further proceedings in accordance with the views expressed herein.
JUDGMENT VACATED AND REMANDED FOR FURTHER PROCEEDINGS.
PER CURIAM.
In response to the application for rehearing filed by the Bossier Parish Police Jury, we granted a rehearing for the limited purpose of clarifying our original opinion in this case.
On original hearing, we remanded this case to the trial court for consideration of the constitutionality of the discretionary immunity statute set forth in LSA-R.S. 9:2798.1. However, we failed to address the trial court's finding that, regardless of the validity of the discretionary immunity statute, the Bossier Parish Police Jury's actions in failing to obtain certification as to the lowest floor elevations of the dwellings in question was not a cause of the damage.
We find that the trial court's statement in its decision to grant the partial summary judgment, based upon this factual finding, was erroneous. As stated in the original opinion, the entire partial summary judgment is vacated.
In its original ruling, the trial court erred in granting the partial summary judgment on an insufficient factual basis. The factual issue of whether the Bossier Parish Police Jury's action was a contributing factor to the plaintiffs' damage must be addressed after the issue of the constitutionality of the statute is decided. Accordingly, the trial court's finding regarding causation, in connection with the Bossier Parish Police Jury, is vacated. The issue is to be reconsidered, if necessary, after a determination regarding the constitutionality of the discretionary immunity statute. With this clarification, our opinion on original hearing remains in effect.
NOTES
[1] The plaintiffs also filed suit against the previous owners and the builders of the homes, the realtors who sold the homes and various unspecified insurance companies. These claims are not before the court for consideration at this time and will not be detailed.
[2] The plaintiffs also alleged that the BPPJ failed to provide adequate drainage and flood control for the property. However, this claim is not the subject of the motion for partial summary judgment currently before the court for decision.
[3] The BPPJ argues that plans for both houses were submitted with the applications for the building permits.
[4] This court notified the Attorney General that the plaintiffs raised the issue of the constitutionality of LSA-R.S. 9:2798.1 on appeal. The Attorney General filed a brief on the issue in this court. However, because the trial court did not rule on the issue, it is not properly before this court on appeal. The present case is distinguishable from Chamberlain v. State through the Department of Transportation and Development, supra. In Chamberlain, although the Attorney General was not notified that the issue of the constitutionality of a statute had been raised until the case was on appeal, the trial court and the appellate court had considered and ruled upon the issue. Therefore, the Louisiana Supreme Court reviewed the constitutional issue. In this case, there has been no lower court ruling on the constitutionality of LSA-R.S. 9:2798.1. Therefore there is nothing for this court to review in that regard.
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648 So. 2d 945 (1994)
STATE of Louisiana
v.
Elmer RICHARDSON.
No. 92-KA-836.
Court of Appeal of Louisiana, Fifth Circuit.
December 14, 1994.
*946 John Mamoulides, Dist. Atty., Dorothy Pendergast, Ronald J. Bodenheimer, Asst. Dist. Attys., Parish of Jefferson, Gretna, for plaintiff, appellee.
Arthur Harris, New Orleans, for defendant, appellant.
Before GAUDIN, DUFRESNE and GOTHARD, JJ.
GOTHARD, Judge.
The defendant, Elmer Richardson, was convicted on two counts of attempted manslaughter and sentenced to serve seven years at hard labor, of which five years were suspended, while the remaining two were to be served without benefit of parole, probation or suspension of sentence. The defendant was also placed on active probation for five years which would begin upon his release from incarceration. He appealed his conviction and sentence to this Court, raising three assignments of error, including the denial of a special requested jury charge on self-defense. This Court affirmed the defendant's conviction and amended his sentence by deleting the restriction on parole, probation and suspension of sentence on the two year imprisonment portion of the sentence, and by giving the defendant credit for time served. See State v. Richardson, 616 So. 2d 225 (La. App. 5 Cir.1993). In affirming the conviction, this Court found that the issue concerning the denial of the charge on self-defense had not been perfected for review and, therefore, did not address the issue.
The defendant filed a writ application with the Louisiana Supreme Court and the Court granted the writ in part and remanded the matter to this Court for supplementation or reconstruction of the record, and reconsideration of the defendant's assignment of error relating to the trial court's denial of his special requested jury charge on self-defense. See State v. Richardson, 629 So.2d *947 342 (La.1993). The record has been reconstructed and this Court will now consider defendant's argument.
The defendant contends that the trial court erred by rejecting his requested jury charge on self-defense, pursuant to LSA-R.S. 14:19, in favor of the court's own charge on justifiable homicide, pursuant to LSA-R.S. 14:20.
A requested special charge shall be given by the court if it does not require qualification, limitation or explanation and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge which is given. LSA-C.Cr.P. art. 807; State v. Smith, 414 So. 2d 1237 (La.1982). If the requested charge does not conform to the statutory requirements, it need not be given by the court. State v. Nuccio, 454 So. 2d 93 (La.1984). The refusal to give a requested special charge does not warrant reversal of a defendant's conviction unless it prejudices substantial rights of the accused. LSA-C.Cr.P. art. 921; State v. Marse, 365 So. 2d 1319 (La.1978).
The defendant's requested charge reads as follows:
In order to maintain a plea of self-defense, the evidence must show an actual attack or overt act by the victim or alleged victim to afford a reasonable ground for the defendant to believe the victim or intended victim would kill him or cause him great bodily harm. The right of self-defense does not depend upon the reality or imminence of the danger apprehended; and that, if an accused is mistaken as to the actual danger, his action will still be excusable under the law if he honestly believes he in (sic) danger of being killed or receiving great bodily harm. State v. Williams, 129 La. 795, 56 So. 891 (1911).
LSA-R.S. 14:19 establishes the standard to be applied in determining whether the use of force or violence on the person of another is justified when such force or violence does not result in death:
The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person's lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.
Thus, the defense of self-defense in a non-homicide situation requires a dual inquiry: an objective inquiry into whether the force used was reasonable under the circumstances, and a subjective inquiry into whether the force was apparently necessary. State v. Freeman, 427 So. 2d 1161 (La.1983).
In contrast, when such force or violence results in a homicide, the standard as set forth in LSA-R.S. 14:20 is applicable:
A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
Under this standard the use of force is justified in self-defense only if the person reasonably believed (objective) that he was in imminent danger of losing his life or receiving great bodily harm and that deadly force was necessary to save himself. State v. Guinn, 319 So. 2d 407 (La.1975).
Defendant's requested charge, based on the facts of this particular case, does not conform to either LSA-R.S. 14:19 or 14:20. Therefore, the trial court did not err in refusing to give the charge.
The trial court charged the jury as follows:
The homicide or attempted homicide is justified if committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing or attempted killing is necessary to save himself from that danger. The danger need not be real as long as the defendant had a reasonable belief that the killing or attempted killing was necessary.
*948 We note that the charge given by the trial court is not wholly correct because it is based on the standard applicable when a homicide results. However, we believe this error to be harmless.
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), the Louisiana Supreme Court stated that an improper jury instruction is a trial error and is subject to a harmless error analysis. We are mindful that the United States Supreme Court held that an erroneous jury instruction on reasonable doubt is not subject to harmless error. See Sullivan v. Louisiana, ___ U.S. ___, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993). Nonetheless, we do not believe that the reasoning and analysis used by the Sullivan court are applicable in this instance. In Sullivan, the court held that a constitutionally deficient reasonable doubt instruction vitiates the jury's findings and will always result in the absence of an appropriate "beyond a reasonable doubt" jury finding. Such a structural defect in the trial mechanism is not subject to a harmless error.
However, the erroneous instruction in the instant case concerned self-defense, and the existence of self-defense merely presents exculpatory circumstances which defeat culpability without negating the state's proof beyond a reasonable doubt of all the essential elements of the offense. See State v. Barnes, 491 So. 2d 42 (La.App. 5 Cir.1986). As such the instruction is subject to a harmless error analysis.
The proper analysis for determining harmless error as stated by the Supreme Court 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 the instant trial was surely unattributable to the error". Sullivan v. Louisiana, supra. ___ U.S. at ___, 113 S.Ct. at 2081; State v. Code, 627 So. 2d 1373 (La.1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1870, 128 L. Ed. 2d 491 (1994).
In the instant case the evidence overwhelmingly established that the defendant fired upon police officers as they attempted to enter the building to execute a search warrant, thereby negating any claim of self-defense. Therefore, we do not find that the defendant's conviction was attributable to the erroneous instruction. Thus, we find the erroneous instruction to be harmless error.
The conviction and sentence are affirmed.
AFFIRMED.
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838 S.W.2d 350 (1992)
310 Ark. 546
Jackie Kaye WARHURST, Appellant,
v.
William David WHITE, Sr., Administrator of the Estate of William David White, II, Jonathan T. Giles, a Minor, by Elizabeth Blayney, His Mother and Next Friend, and Thomas E. Blayney and Elizabeth Blayney, His Wife, Individually, Appellees.
No. 92-102.
Supreme Court of Arkansas.
October 5, 1992.
Jake Brick, West Memphis, for appellant.
Clint Saxton, West Memphis, for appellee.
GLAZE, Justice.
This wrongful death action was initiated by William White, as administrator of his son, David White's, estate against Jackie Warhurst. David was a passenger on Jonathan Giles' motorcycle when Warhurst backed her vehicle onto a street into the path of Giles' motorcycle. The two vehicles collided, causing David's death and Giles' injuries. Giles, a minor represented by his mother, also filed a claim against Warhurst. Both White and Giles sought punitive damages as well as compensatory damages because Warhurst was legally intoxicated at the time of this unfortunate incident.
At a jury trial, David's estate was awarded $510,000 compensatory and $500,000 punitive damages. Giles received a verdict of $40,000 compensatory and $500,000 punitive damages. The trial judge denied Warhurst's motion for a new trial. Afterwards, Warhurst's insurance carrier paid all of Giles' compensatory damages and $50,000 of David's compensatory damages. Warhurst now appeals the unpaid balance, challenging the damage amounts awarded by the jury. *351 Warhurst first argues the trial court erred by admitting into evidence four poems written by David's mother after his death. Warhurst also claims the trial court should have excluded from evidence a copy of a tombstone design containing words selected by his parents. Citing Toney v. Raines, 224 Ark. 692, 275 S.W.2d 771 (1955), Warhurst argues that generally a party cannot make evidence for himself by his own declarations, and it is a well-established rule that a statement of a party, whether oral or written, which is of a selfserving nature is not admissible in evidence in his favor. She further states the rule excluding self-serving declarations is a part of the hearsay rule, and its purpose is to prevent the manufacturing of evidence. In sum, Warhurst says the poems and tombstone epitaph were excludable hearsay which was both irrelevant and prejudicial.
Warhurst's argument ignores that David's estate sought damages for mental anguish, and accordingly, the jury was read twelve of the thirteen factors listed in AMI Instruction 2216, which the jury could consider when assessing compensation for mental anguish factors. Those factors particularly relevant here were the following:
(a) The duration and intimacy of the relationship and the ties of affection between the deceased and the survivor;
(b) The frequency of association and communication;
(c) The attitude of the deceased toward a survivor and a survivor toward a deceased;
(d) The duration and intensity of the sorrow and grief;
* * * * * *
(f) The violence and suddenness of the death.
In meeting its burden, David's estate utilized the state-of-mind hearsay exception rule, Ark.R.Evid. 803(3), to show David's parents' existing state of mind, emotion, sensation, or physical condition. Such exception has been recognized as being available to a plaintiff in a civil damage action as a means of establishing his or her mental anguish as an element of damages. D. Louisell and C. Mueller, Federal Evidence, § 441 (1980). It has been held that the self-serving nature of a declaration only goes to its weight, and not its admissibility. See United States v. DiMaria, 727 F.2d 265 (2d Cir.1984). We will not reverse a trial court's ruling on the admission of evidence absent abuse of discretion. Younts v. Baldor Electric Co., 310 Ark. 86, 832 S.W.2d 832 (1992). Here, the poems and epitaph presented by David's estate were admissible and relevant under Ark.R.Evid. Rule 803(3) on the mental anguish issue, and we cannot say that the trial court abused its discretion in allowing such evidence.
For her second point of reversal, Warhurst contends the trial court erred in allowing expert witnesses, testifying on Warhurst's blood alcohol level, to rely upon the breathalyzer test given her after the collision. The trial court had excluded from evidence the breathalyzer test, showing Warhurst's blood alcohol level at .13, because the officer's machine had not been properly calibrated. Although Warhurst argues she objected to the expert witnesses' reliance on the test, the record fails to support her contention.
Counsel for Warhurst moved in limine to exclude any testimony concerning the .13 breathalyzer test record made from testing Warhurst after the collision, but the trial court indicated it was inclined to allow such testimony. In finally ruling to allow such testimony, the following colloquy between the court and counsel took place:
White's counsel: I understand what the Court is saying. If you will look at the cases, it does say that the expert should be allowed to give what the basis of that is because otherwise it can be left out there
The Court: The basis would be that they reviewed the test results.
Warhurst's counsel: As I understand the Court, I would have no argument with that if they will adhere to the fact that the test result should not be mentioned insofar as .13, and of course they would have to delete [it] from Mrs. Home's deposition which is an evidentiary deposition(emphasis added).
*352 The experts, in giving their testimony, relied in part upon the breathalyzer test given Warhurst, but made no reference to the .13 test results. Warhurst's objection reveals she had no disagreement with the trial court's ruling to permit expert testimony concerning Warhurst's blood alcohol level except the .13 breathalyzer test results should not be mentioned. This court has stated repeatedly that a party cannot change grounds for an objection on appeal. Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989). In the last analysis, Warhurst's objection sought to exclude any mention of the .13 rating, not to prevent the experts from offering opinion testimony that was partially based upon the test given her. Because Warhurst obtained what she requested from the trial court below, we need not address the new or different argument she now argues on appeal.
In her final point, appellant argues the trial court erred in failing to set aside the compensatory and punitive damages as excessive. When this question is before us, we must study the proof, viewing it most favorably to the appellee, and decide the question of whether the verdict is so great as to shock the conscience of the court or to demonstrate passion or prejudice on the part of the trier of fact. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983). This court has often held that the jury has great discretion in determining the amount of damages in wrongful death cases. See Jefferson Hosp. Ass'n v. Garrett, 304 Ark. 679, 804 S.W.2d 711 (1991). Also, in a recent case where a judgment amount for bodily injuries was argued as excessive, we held that, in determining whether the amount was so great as to shock the conscience, we consider such elements as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish. Gipson v. Garrison, 308 Ark. 344, 824 S.W.2d 829 (1992).
David's estate and Giles offered extensive evidence bearing on their compensatory damages. David's estate incurred funeral and medical expenses in the amount of $10,216.33. Giles incurred medical expenses in the amount of $2,493.23. Both young men were fifteen-years-old at the time of the incident, and considerable testimony was elicited concerning the Whites' mental anguish over the loss of their son, David. From our review of the evidence, we are unable to say the compensatory damages awarded David's estate, $510,000, or Giles, $40,000, shocks our conscience.
Nor do we believe the punitive damage awards should be set aside. There is no fixed standard for the measurement of punitive damages. Matthews, 279 Ark. 328, 651 S.W.2d 453. Such damages constitute a penalty and must be sufficient not only to deter similar conduct on the part of the same tortfeasor, but they must be sufficient to deter any others who might engage in similar conduct. Id. Punitive damages may amount to somewhat of a windfall to the plaintiff and the amount of actual damages sustained by the plaintiff is but one criterion for the assessment of punitive damages. Lastly, we have held that the defendant's financial wealth is a proper element to be considered in the computation of punitive damages. Id.
Warhurst basically told the jury that she had nothing of value and depended upon her $350 per week salary for living expenses. In suggesting the punitive damages here are in line with this court's prior cases, David's estate and Giles both point to our recent case of B & F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992), wherein this court affirmed a punitive award of one million dollars to Mr. Cotroneo who suffered injuries resulting from an accident caused by an intoxicated driver. David's estate also sets out testimony of Warhurst from which it says the jury could easily infer and conclude Warhurst lacked any remorse. In the same vein, Warhurst claimed throughout the ordeal that she was totally innocent and without fault. David's estate sought punitive damages in excess of one million dollars, and argues the jury weighed, as instructed, all factors in awarding one-half the amount the injured parties requested. Considering the dual purpose served in assessing punitive *353 damages, we uphold the trial court's refusal to set aside the punitive damages.
We affirm.
HAYS and CORBIN, JJ., concur as to point one because the poems and epitaph were not abstracted.
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838 S.W.2d 302 (1992)
Wendrick Lyndall TANNER, Appellant,
v.
The STATE of Texas, Appellee.
No. 08-91-00248-CR.
Court of Appeals of Texas, El Paso.
September 2, 1992.
*303 Ralph Martinez, Houston, for appellant.
Michael J. Guarino, Dist. Atty., Galveston, for state.
Before OSBORN, C.J., and KOEHLER and BARAJAS, JJ.
OPINION
KOEHLER, Justice.
This is an appeal from a conviction for the offense of illegal investment to further the offense of aggravated possession of cocaine. The court assessed punishment at 10 years' imprisonment and a fine of $50,000. We affirm.
In Point of Error No. One, the Appellant asserts that the court committed reversible error in denying the Appellant's motion to quash the indictment in that the indictment was vague and violative of the Federal and State constitutions. In the Appellant's brief, his argument centers around the unconstitutionality of the illegal investment statute and is in no way couched in terms of the indictment. We will address the Appellant's contentions that the terms "invest" and "finance" contained in the statute are unconstitutionally vague.[1]
In order to respond to these contentions, it is necessary to give a brief recital of the facts. On October 11, 1989, the Appellant, in the company of two other individuals, drove a vehicle to a strip shopping mall in Friendswood, Texas where a drug transaction was to take place. Several undercover narcotics officers were in a vehicle awaiting their arrival. The officers had a quantity of cocaine in their possession. An individual named Carlos Jones got out of the vehicle driven by the Appellant and entered the front seat of the officer's vehicle. He saw the cocaine and assured himself that a "rip-off" was not going to occur. He returned to the other vehicle and a discussion ensued. The Appellant then approached and entered the officer's car. A price for the cocaine was negotiated between the Appellant and the officers. The Appellant then gave them $6,000 and took the cocaine and taste-tested its quality. The Appellant was then arrested.
All criminal statutes must provide notice to the general population as to what activity is criminal. Bynum v. State, 767 S.W.2d 769, 773 (Tex.Crim.App.1989). A statute may be considered void due to vagueness if it either requires or forbids the doing of some act in terms so vague that persons of ordinary intelligence must guess as to the statute's meaning and would differ as to the application. Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim.App.1988).
*304 A reviewing court must make a twopart inquiry in the examination of a criminal statute for vagueness. The first inquiry is whether an ordinary, law-abiding person receives sufficient information from the statute that their conduct risks violating the criminal law. Id. at 215. The second inquiry involves a determination of whether the statute provides sufficient notice to law enforcement personnel to prevent arbitrary or discriminating enforcement. Id. at 215.
When a challenge is made to a criminal statute on the ground of vagueness, an accused must show that in its operation, the statute is unconstitutional to him in his specific situation; that the statute may be unconstitutional as to others is not sufficient. Bynum, 767 S.W.2d at 774. The reviewing court need only scrutinize the statute to determine whether the statute is impermissibly vague as it is applied to the Appellant's specific conduct. Id. at 774.
A statute is not unconstitutionally vague merely because the terms found therein are not specifically defined. Engelking, 750 S.W.2d at 215. Even in a situation where a statute is arguably vague, it may be given constitutional clarity by applying standard rules of statutory construction. Id. at 215. In interpreting a statute, the terms used must be read in the context in which they are used. Bynum, 767 S.W.2d at 774. Further, the terms must usually be construed according to the rules of grammar and common usage. Id. at 774.
The Appellant maintains that the illegal investment statute is vague because the terms "finance" and "invest" are not statutorily defined and fail to give notice to the public what drug discussions and their extent constitute a crime. In Stevens v. State, 817 S.W.2d 800, 804 (Tex.App.Fort Worth 1991, pet. ref'd), the Court of Appeals stated:
'Finance' is defined as `to raise or provide funds or capital for' or `to furnish with necessary funds.' WEBSTER'S NINTH NEW COLLEGIATE DICTINARY 463 (1983). The term `funds' is defined as `a sum of money' or `available pecuniary resources.' Id. at 498. The term `invest' is defined as `to commit (money) in order to earn a financial return.' Id. at 636. Applying these definitions in the context of article 4476-15, section 4.052(a)(2) (now TEX. HEALTH 481.126), the statute clearly proscribes an individual from supplying money which that person knows or believes is intended to further the possession of more than fifty pounds of marihuana. The statute provides that the person must intend to further the commission of an unlawful act, for example, the possession of more than fifty pounds of marihuana. When applied to the conduct of appellant, as shown in the record, the terms complained of are not vague at all.
'Funds,' `invests,' and `finance' are terms which can be readily understood by a person of common intelligence. We find that a person of ordinary intelligence can determine with reasonable precision what specific conduct is prohibited. We also find that the statute provides sufficient notice to law enforcement personnel so as to prevent arbitrary enforcement.
We follow the holding in Stevens. For similar holdings see Hough v. State, 828 S.W.2d 97, 101 (Tex.App.Beaumont 1992, pet. ref'd); Ex parte Guerrero, 811 S.W.2d 726, 728 (Tex.App.Corpus Christi 1991, no pet.). More particularly, in the present case, the statute when applied to the conduct of the Appellant, is not vague. Point of Error No. One is overruled.
In Point of Error No. Two, the Appellant contends that the illegal investment statute is overbroad. An attack on a statute for being overbroad is normally and traditionally reserved for complaints concerning alleged First Amendment violations. Bynum v. State, 767 S.W.2d 769, 772 (Tex.Crim.App.1989). In a facial challenge to the overbreadth and vagueness of a law, a reviewing court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. Id. at 772. A statute is *305 considered impermissibly overbroad if, in addition to proscribing activities which may constitutionally be forbidden, it sweeps within its range of coverage speech or conduct which is protected by the First Amendment. Id. at 772. Clark v. State, 665 S.W.2d 476, 482 (Tex.Crim.App.1984). Only a statute that is substantially overbroad may be invalidated on its face. Bynum v. State, 767 S.W.2d at 773. City of Houston, Texas v. Hill, 482 U.S. 451, 458, 107 S. Ct. 2502, 2508, 96 L. Ed. 2d 398, 410 (1987).
The Appellant maintains that the illegal investment statute is facially overbroad because it reaches expressions not intended to further the sale, distribution or possession of narcotics. He contends that the statute covers any discussion regarding narcotics because the terms "invest" and "finance" do not establish guidelines that characterize legal from illegal expressions. We disagree. Tex.Health & Safety Code Ann. § 481.126(a)(2) penalizes an individual who "finances or invests funds the person knows or believes are intended to further the commission of an offense listed in Subdivision (1)." The Appellant does not allege how the statute improperly penalizes speech or conduct which is protected by the First Amendment. The penal provision at issue criminalizes only the conduct of one who intends to invest or finance funds intended to further the commission of an aggravated drug offense. We conclude that this statute is not substantially overbroad. Point of Error No. Two is overruled.
The judgment of the trial court is affirmed.
NOTES
[1] Tex.Health 481.126 (Vernon 1992) provides in pertinent part:
(a) A person commits an offense if the person knowingly or intentionally:
(1) expends funds the person knows are derived from the commission of an offense under Section 481.221(c), 481.113(c), 481.114(c), 481.115(c), 481.116(c), 481.117(c), 481.118(c), 481.120(c), or 481.121(c); or (2) finances or invests funds the person knows or believes are intended to further the commission of an offense listed in Subdivision (1).
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998 So. 2d 783 (2008)
Grace R. HARPER, et al.
v.
DIRECT GENERAL INSURANCE COMPANY OF LOUISIANA, et al.
No. 08-31.
Court of Appeal of Louisiana, Third Circuit.
November 5, 2008.
Cory P. Roy, Beau R. Layfield, Marksville, LA, for Cross-Claim Plaintiff-Respondent, Billy Joe Ansiel, Jr.
John David Ziober, Brad M. Boudreaux, Baton Rouge, LA, for Defendant-Relator, Liberty Mutual Insurance Company.
Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
PAINTER, Judge.
Defendant-Relator, Liberty Mutual Insurance Company ("Liberty Mutual"), sought supervisory writs from this court after the district court denied its motion *784 for summary judgment, alleging that there was no uninsured/underinsured motorist ("UM/UIM") coverage for the subject accident since such coverage was properly rejected by a legal representative of the insured, Sears, Roebuck and Co. ("Sears"). This court initially denied the writ application in an unpublished opinion, Harper v. Direct General Ins. Co., 08-31 (La.App. 3 Cir. 3/4/08), and found no error in the trial court's ruling. Liberty Mutual filed an application for supervisory and/or remedial writs with the Louisiana Supreme Court, which granted the application and remanded the matter to this court with instructions to hear the case and render a full opinion. Harper v. Direct General Ins. Co., 08-738 (La.6/6/08), 983 So. 2d 907. We have complied with the supreme court's instructions, and, for the reasons that follow, we reaffirm our decision denying Liberty Mutual's supervisory writ application.
FACTUAL AND PROCEDURAL BACKGROUND
This litigation arises from an automobile accident that occurred on April 28, 2004, in Rapides Parish. A vehicle driven by Lanika Hughes, in which Grace Harper ("Harper"), the original Plaintiff, was a passenger collided with a vehicle owned by Sears which was being driven by Billy Joe Ansiel, Jr. ("Ansiel"). Harper filed suit, individually, and on behalf of her minor children, against Hughes and her insurer, Direct General, as well as against Ansiel and Sears. Ansiel filed a cross claim against Hughes, Direct General, and Liberty Mutual as the insurer of Sears. Harper's claims have since been dismissed. The only remaining issue involves Ansiel's cross claim against Liberty Mutual for UM/UIM coverage.
Liberty Mutual filed a motion for summary judgment seeking to have Ansiel's cross claim dismissed based on its contention that there is no UM/UIM coverage under the Business Auto Policy issued to Sears because such coverage was properly rejected by a legal representative of Sears on April 16, 2004, before the subject accident. In this case, the rejection form contained the typed name and address of Sears in the blank for the named insured. In the blank for the signature of a named insured or legal representative, an illegible signature appears. Liberty Mutual filed the affidavit of Laurence Jenchel ("Jenchel") which purports to identify the completed rejection form as a true copy of the original and which purports to establish that Jenchel is the authorized representative of Sears who filled out and signed the rejection form. The trial court denied Liberty Mutual's motion for summary judgment and found that the form for rejection of UM/UIM coverage used by Liberty Mutual in this case did "not comply with the strict rules governing rejection of uninsured motorist coverage." Specifically, the trial court found that an unidentified signature is insufficient to clearly and unmistakably reject UM/UIM coverage and that a printed name must identify the signatory in order to clearly and unmistakable reject UM/UIM coverage.
As previously stated, we denied the writ and found no error in the trial court's denial of Liberty Mutual's motion for summary judgment. The Louisiana Supreme Court subsequently granted Liberty Mutual's application for supervisory and/or remedial writs. This matter has now been briefed and argued pursuant to the supreme court's instruction, and, for the following reasons, we now reach the same result.
DISCUSSION
Liberty Mutual contends that the trial court erred in denying its motion for summary judgment seeking dismissal of Ansiel's *785 claims for UM/UIM coverage as there is no genuine issue of material fact because UM/UIM coverage was properly rejected. We review this matter de novo as that is the standard of review for the grant or denial of a motion for summary judgment. See Schroeder v. Bd. of Supervisors of La. State Univ., 591 So. 2d 342 (La.1991).
Louisiana Revised Statutes 22:680(1)(a)(ii) provides as follows:
Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. An insured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer on the form prescribed by the commissioner of insurance. Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms. For the purpose of this Section, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.
As previously stated, the trial court found that the rejection form did not comply with the strict rules governing rejection of UM/UIM coverage because no printed name of the signatory appeared on the form. In fact, we recognize that it was impossible to tell, from the face of the rejection form itself, who was signing on behalf of Sears.
The Louisiana Supreme Court, in Duncan v. U.S.A.A. Ins. Co., 06-363, pp. 11-12 (La.11/29/06), 950 So. 2d 544, 551, noted the following tasks that must be completed for UM/UIM coverage to be validly rejected:
(1) initialing the selection or rejection of coverage chosen;
(2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident;
(3) printing the name of the named insured or legal representative;
(4) signing the name of the named insured or legal representative;
(5) filling in the policy number; and
(6) filling in the date.
The two elements at issue in this case are numbers three and four. On the form at issue, in the blank for the named insured, *786 Sears' name and address are typed. In the blank for the signature of a named insured or legal representative, an illegible signature appears. In its written reasons for judgment, the trial court stated, in pertinent part:
The UM Coverage Form requires both a printed and signed name to clearly identify the insured party rejecting UM coverage. Discussing these requirements, the Supreme Court stated, "the insured or the legal representative signs the form evidencing the intent to waive UM coverage and includes his or her printed name to identify the signature." Duncan, 950 So.2d at 551. In this case, the signature on the UM coverage form is not identified. No writing on the form identifies the signatory in printed text. No writing identifies the signatory's capacity as it relates to the printed name "Sears, Roebuck and Company." This Court finds that a printed name must identify the signatory in order to clearly and unmistakable reject UM coverage.
Liberty Mutual contends that there is no statutory or jurisprudential authority to support the trial court's position. It is the position of Liberty Mutual that there is no requirement that the legal representative show his capacity or authority on the form or that the name of the legal representative be printed on the form. Liberty Mutual further contends that all six of the factors set out in Duncan were met on the rejection form at issue such that a proper rejection of UM/UIM coverage was effected. Liberty Mutual relies on Odom v. Johnson, 97-546 (La.App. 3 Cir. 12/10/97), 704 So. 2d 1254, writs denied, 98-788 (La.5/1/98), 718 So. 2d 419, 98-826 (La.5/1/98), 718 So. 2d 420, and 98-876 (La.5/1/98), 718 So. 2d 421, for the proposition that a legal representative is not required to identify his capacity or print his name on the form so long as he has authority to execute the form. In Odom, the defendants were a husband and wife who were the only shareholders of the insured corporation. The wife wrote her husband's initials next to the rejection box and signed his name and wrote the corporation's name above the signature line on the form. This court, in Odom, 704 So.2d at 1263, found that the UM/UIM coverage rejection was valid and stated that:
A corporation's authorized agent may execute a UM rejection form without the necessity of a corporate resolution evidencing such authority. Delaune v. State Farm Mut. Auto. Ins. Co., 529 So. 2d 1289 (La.App. 3 Cir.1988). We conclude that Rebecca had the requisite authority to reject UM coverage on behalf of the corporation. She intended to do so and, in fact, did reject UM coverage by signing the form, "Carl R. Martin, CR & B Contractors." The fact that she signed Carl's name instead of her own is of no moment since she was signing on behalf of the corporation and had the authority to do so.
On the other hand, Ansiel relies on Cohn v. State Farm Mutual Automobile Insurance Co., 03-2820 (La.App. 1 Cir. 2/11/05), 895 So. 2d 600, writ denied, 05-1000 (La.06/17/05), 904 So. 2d 705, which was cited with approval by the supreme court in Duncan, for the proposition that the failure to comply with the formal requirements of the statute will render the waiver of coverage invalid. In Cohn, the first circuit found the UM rejection invalid because the form did not include a complete policy number (and the insured had multiple policies with the insurer), the insurance company was not named, and the signatory did not indicate that she was signing in a representative capacity. These deficiencies rendered the rejection as not "clear and unmistakable." Ansiel argues that, in this case, the form is invalid because the *787 signature does not indicate that the individual was signing in a representative capacity, that the signature is invalid, and that Liberty Mutual cannot rely on parol evidence to repair the deficiencies.
We find Odom distinguishable and agree with the first circuit's statement in Cohn, 895 So.2d at 602 that:
Considering that the object of the UM legislation is to promote full recovery for automobile accident victims by making such coverage available for them, jurisprudence has held that the UM statute is to be liberally construed, and the exceptions to coverage interpreted strictly. Therefore, any exclusion from coverage must be clear and unmistakable. Dixon v. Gene Moody Trucking, Inc., 36,420 pp. 5-6 (La.App. 2 Cir. 10/23/02), 830 So. 2d 392, 395. The expression of a desire not to have UM coverage, however clear, does not necessarily constitute a valid rejection if the expression of rejection does not meet the formal requirements of law. Roger v. Estate of Moulton, 513 So. 2d 1126, 1131 (La.1987).
Furthermore, in Duncan, 950 So.2d at 552 (emphasis added), the supreme court specifically stated:
The commissioner of insurance, in drafting the form, requires six tasks, all of which we find to be pertinent in rejecting UM coverage. The insured initials the selection or rejection chosen to indicate that the decision was made by the insured. If lower limits are selected, then the lower limits are entered on the form to denote the exact limits. The insured or the legal representative signs the form evidencing the intent to waive UM coverage and includes his or her printed name to identify the signature. Moreover, the insured dates the form to determine the effective date of the UM waiver. Likewise, the form includes the policy number to demonstrate which policy it refers to. Thus, the policy number is relevant to the determination of whether the insured waived UM coverage for the particular policy at issue.
Thus, we agree with the trial court in its written reasons stating (emphasis added):
Liberty Mutual argues that an insured corporation must always sign the requisite form in a representative capacity, and therefore, the signature is sufficient. Essentially, Liberty Mutual agues that a reader of the UM Coverage Form should assume that the signatory is a legal representative of the company printed above. Since exceptions to UM coverage are interpreted strictly, the Court is not persuaded by an argument that requires such an assumption. Next, Liberty Mutual introduces an affidavit to identify the signatory as a representative of Sears with capacity to reject UM coverage. However, this additional documentation is insufficient to meet Louisiana's strict form requirements. "The insured or his authorized representative must expressly set forth in a single document that UM coverage is rejected in the State of Louisiana as of a specific date in a particular policy issued by the insurer." Duncan, 950 So.2d at 547. The Supreme Court has rejected attempts by an insured party to add or amend the UM Coverage Form retroactively.
In this case, Jenchel, the alleged legal representative of Sears, only signed his name (and, said signature was illegible) and failed to print his name on the rejection form to identify his signature as specifically required by Duncan. After our de novo review, and given the required strict interpretation of the statutory exceptions to UM coverage, we find, as did the trial court, that the rejection at issue was not "clear and unmistakable." Thus, we *788 find no error in the trial court's denial of Liberty Mutual's motion for summary judgment.
DECREE
For the foregoing reasons, we deny Liberty Mutual's application for supervisory writs. We assess all costs of this supervisory writ to Relator-Liberty Mutual.
WRIT DENIED.
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648 So. 2d 472 (1994)
STATE of Louisiana
v.
Edward J. JONES.
No. 94-KA-0926.
Court of Appeal of Louisiana, Fourth Circuit.
December 28, 1994.
*473 Harry F. Connick, Dist. Atty., Susan M. Erlanger, Asst. Dist. Atty., New Orleans, for plaintiff/appellee.
*474 Sherry Watters, Orleans Indigent Defender Program, New Orleans, for defendant/appellant.
ARMSTRONG, Judge.
Defendant Edward J. Jones was charged by grand jury indictment with the first degree murder of Keith Nesbitt. He was arraigned and pled not guilty. He later changed his plea to not guilty and not guilty by reason of insanity. At the beginning of trial, the defendant changed his plea to not guilty. A twelve member jury found him guilty as charged. During the sentencing phase, the jury deadlocked. The defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. He now appeals.
ERRORS PATENT:
The record does not contain a minute entry of trial, nor does the docket master reveal when trial occurred. However, the transcript establishes that trial did in fact occur. The trial court issued a per curiam indicating that the defendant was present at all necessary stages of the judicial process. There are no errors patent.
FACTS:
The victim was visiting New Orleans from North Carolina with his cousin, Clarence Nesbit, and their respective wives, Anna and Nadine. When they arrived at their hotel, the Quality Inn on St. Charles Avenue, the women went inside to register. Clarence Nesbit later went into the hotel to see if the women needed assistance. The victim stayed with the car which he had parked in the neighboring Wendy's restaurant parking lot. Clarence Nesbit exited the hotel and heard his car horn blowing. He opened the driver's side door of the car where the victim was sitting. He saw a black man sitting in the passenger seat, leaning over the console. He had his hand on the victim's shoulder, and he was holding a screwdriver to the victim's head. Clarence Nesbit demanded to know what the man was doing, and the man told him to give him the keys. The victim was already unconscious. Clarence Nesbitt yelled for the police. The man ran, and Clarence Nesbit went into the Wendy's for assistance. He got a good look at the black male, whom he described as wearing a red and white knit cap and a jacket. He could see more of the inside of the jacket because the man was leaning forward, but he thought the jacket was brown. After going to the Wendy's, he went back into the motel to tell the women. When they came back out, a nurse and doctor were attending the victim. Eventually, an ambulance arrived and transported the victim to Charity Hospital. The police arrived and transported Clarence Nesbit to the police station. He gave a description. The police had him view a suspect, but he could not positively identify him as the perpetrator. Then the police showed him a cap and a jacket. He identified the cap. In a few days, the police called him and asked him to view a photographic line-up, and he identified a picture of the defendant. He later identified him at trial.
Dr. Paul McGarry testified that the victim suffered five wounds. The fatal wound was to the left eyebrow and extended into the brain. Each of the wounds had a sharp square cornered edge in the shape of a tip of a screwdriver. The wounds were consistent with a struggle having occurred.
Keisha James, a Wendy's employee, said at 4:30 p.m. she was working at the drive-up window on the side of the restaurant where the crime occurred. She saw two men struggling in the car. One emerged, and the other fell to the window. She then saw Clarence Nesbit come out of the hotel and call for help. She said that the man that ran from the car was wearing a red and white cap and a brown plaid jacket. He was carrying something in his clenched fist. She described the man to the police as a black man with a dark complexion, unshaven, 5'6" and slim. Later that night, the police brought a suspect to the restaurant, but she said that he was not the perpetrator. At the police station, she identified the jacket and cap as the clothing the perpetrator was wearing. A day or so later, she chose the defendant's picture in a photographic line-up.
Carol Dillon, supervisor at Wendy's, saw the two men struggling in the car. She saw Clarence Nesbit walk up to the car and heard him call for the police. She saw the *475 perpetrator exit the car and run towards Erato Street. She viewed the man the police took to the police station as a suspect, but she said that the man was not the perpetrator. She identified the recovered clothing as that worn by the perpetrator. She chose a picture of the defendant in a photographic lineup.
Detective Anthony Small said a white, red and black plaid jacket and a red and white cap were discovered in an alleyway next to an abandoned house at 1414 Carondelet Street. The jacket had blood spots on the sleeve. Small returned to the police station after viewing the scene. There, he received a phone call from the defendant's sister, Julia Robinson. As a result of the phone call, homicide detectives went to the defendant's house where they picked up his brother, Donnell Bingham, who said that he wanted to give a statement. At the same time, a police unit was searching the area near the crime. Officer William Ceravolo picked up another of the defendant's brothers, Joseph Bingham, because he matched the description. He was transported to the scene, but the witnesses did not identify him. He was taken to the police station, but witnesses still did not identify him. He was released. Julia Robinson and Donnell Bingham came to the police station, and both gave statements. As a result, a warrant was issued for the defendant's arrest.
Officer James Stewart testified that Small told him to go to 1622 Baronne Street to collect some evidence. There, he found a white towel with blood on it, a pair of jeans with blood on them, and a philips head screwdriver.
William Gallien, front desk clerk of the Quality Inn, testified that he had already gotten off of work at the time the crime occurred. He saw a newscast of the arrest of the defendant several days later and recognized him as a man he had seen in the parking lot of the Wendy's when he was leaving work at 3:45 p.m. on the afternoon of the crime. He was shown the photographic line-up and narrowed the possible perpetrators to two, but could not positively identify the defendant in the line-up.
Joseph Bingham testified the defendant lived with their mother at 1622 Baronne Street. He said he did not know whether the hat and jacket belonged to the defendant because he was drunk at the time he was questioned.
The State re-called Det. Small who testified that Joseph Bingham told him the defendant had been wearing, at some earlier time, a cap and jacket like the ones discovered. He told him he could not positively say that the defendant had been wearing the items that day.
Criminologist William Givlin testified that hair found in the recovered cap was similar to the defendant's hair.
Detective Ross Mocklin testified that he heard Joseph Bingham say that the jacket and hat that were recovered belonged to the defendant.
Officer Kevin Imbraguglio said that he arrested the defendant as he was walking down Carondelet Street.
The defendant raises two assignments of error on appeal.
ASSIGNMENT OF ERROR NO. 1:
The defendant argues the trial court erred in failing to give a limiting instruction to the jury as to the use of impeachment testimony. During Joseph Bingham's testimony, he stated he could not remember seeing the cap when he accompanied police to 1414 Carondelet Street because he was inebriated at the time. He could not remember telling the police anything about the jacket or the cap. He said he could not remember seeing the defendant wearing the jacket or cap. He said he might have seen the cap at his mother's house because she owned a lot of caps similar to it. The defense attorney asked that the trial court give a limiting instruction in the event the State tried to impeach Bingham's testimony. The trial court ruled that it would not instruct the jury at the time the testimony was elicited, but that it would instruct the jury at the close of the case. As set out above, the State re-called Det. Small who testified Bingham told him that the defendant had been wearing the jacket and hat that day. Mocklin testified that he heard Bingham say that the jacket and cap belonged *476 to the defendant. Imbraguglio testified, and then the trial court gave the jury a charge on the proper use of impeachment evidence.
La.C.E. art. 613 provides:
Except as the interests of justice otherwise require, extrinsic evidence of bias, interest, or corruption, prior inconsistent statements, conviction of crime, or defects of capacity is admissible after the proponent has first fairly directed the witness' attention to the statement, act, or matter alleged, and the witness has been given the opportunity to admit the fact and has failed distinctly to do so.
When a witness states that he does not recall making a prior inconsistent statement, he does not "distinctly" admit making the statement, and thus the evidence that he did make the statement is admissible. State v. Hicks, 554 So. 2d 1298 (La.App. 1st Cir. 1989), writs denied 559 So. 2d 1374 (La.1990) and 604 So. 2d 1297 (La.1992); State v. Singleton, 454 So. 2d 353 (La.App. 4th Cir.1984). Here, the witness stated he did not remember stating that the defendant had been wearing the jacket and cap on the day of the crime. Therefore, he did not "distinctly" admit making the statement, and evidence of the prior inconsistent statement was admissible.
La.C.E. art. 607 provides in pertinent part:
A. Who may attack credibility. The credibility of a witness may be attacked by any party, including the party calling him.
* * * * * *
D. Attacking credibility extrinsically. Except as otherwise provided by legislation:
(1) Extrinsic evidence to show a witness' bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness.
(2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness' testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.
Thus, although C.E. art. 613 provides that evidence of a prior inconsistent statement is admissible after the witness fails to "distinctly" admit the statement, C.E. art. 607 limits the purpose of the admission; it may only be admitted to attack the credibility of a witness and then only when its probative value is not outweighed by confusion of time, confusion of the issues, or unfair prejudice. In this case, the evidence elicited from Bingham, Det. Small and Det. Mocklin appears to have been offered for the proper purposeto show that Bingham was not credible when he said he did not remember identifying the clothing as having been worn by the defendant. The evidence was brief, and the issue simple. There was no unfair prejudice to the defendant. Thus, the evidence was properly admitted.
The defendant argues, however, that the trial court refused to give a limiting instruction explaining that the evidence was only admissible for impeachment purposes. La.C.E. art. 105 provides:
When evidence which is admissible as to one party or for one purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Failure to restrict the evidence and restrict the jury shall not constitute error absent a request to do so. (Emphasis added).
In the instant case, the defense did request a limiting instruction, and the mandatory nature of C.E. art. 105 establishes that the defense was so entitled. The record establishes that the instruction was in fact given. However, the trial court did not immediately give the instruction after the testimony was admitted. The trial court should instruct the jury at the time the evidence is admitted. State v. Taylor, 593 So. 2d 431 (La.App. 2nd Cir.1992), citing State v. Kaufman, 304 So. 2d 300 (La.1974). Here, the trial court chose to wait until the end of trial to give the limiting instruction. However, as set out above, the evidence elicited from the three witnesses about which the defendant complains was elicited just before the trial concluded. Since *477 the instruction was given so close in time to the introduction of the testimony, we find that the trial court did not err in giving the instruction when it did. Moreover, a harmless error analysis is applicable to erroneous admission of prior inconsistent statements. Taylor. Here, in light of the fact that three witnesses made positive identifications of the defendant, the fact that the limiting instruction was given later than it should have been could not have contributed to the verdict, and any error was therefore harmless.
We find no merit to this assignment of error.
ASSIGNMENT OF ERROR NO. 2:
When Det. Small was re-called to the stand, the prosecutor began asking him questions concerning the events surrounding the defendant's arrest. Det. Small testified that he saw the defendant at the Homicide Office after Imbroguglio had arrested him. He said that he advised the defendant of his rights. He said Crime Lab Technician Deborah Prosper took a hair sample and a sample of the defendant's nail scrapings. The prosecutor then asked him what happened next, and Det. Small answered, "Well, he refused to give a statement." The defense asked that the jury be removed, and the jury was removed. The defense then moved for a mistrial on the basis that the officer's comment on the defendant's silence was in violation of his constitutional right to remain silent. The trial court denied the motion. The defense then asked for an admonition, but the trial court refused to give one.
La.C.Cr.P. art. 770(3)[1] provides that if the judge, district attorney or a court official, either directly or indirectly, makes an impermissible reference to the failure of the defendant to testify, a motion for mistrial must be granted, if requested by the defense. However, in the instant case, the reference was made by a police officer. A police officer is not a "court official" under La.C.Cr.P. Article 770. State v. Lee, 618 So. 2d 551 (La.App. 4th Cir.1993), writ denied, 624 So. 2d 1222 (La.1993); State v. Tatum, 506 So. 2d 584 (La.App. 4th Cir.1987). Absent a showing of a pattern of unresponsive answers or improper intent by the prosecutor, a mistrial is not warranted. Lee, supra.
In the instant case, the prosecutor simply asked what happened after the hair sample and nail scraping were taken. It does not appear that the prosecutor intended to elicit testimony concerning the defendant's refusal to give a statement. Moreover, even if the responses of the officer or the intent of the prosecutor were called into question in this case, a mandatory mistrial under Article 770 would not be appropriate. In State v. Smith, 336 So. 2d 867 (La.1976), the Louisiana Supreme Court pointed out that Article 770 does not apply to references to a defendant's post-arrest silence by the prosecutor or by witnesses, but only applies to references to the defendant's failure to testify at trial. Rather, La.C.Cr.P. art. 771[2] is the applicable *478 provision concerning the proper remedy where references are made to a defendant's post-arrest silence.
Under La.C.Cr.P. art. 771, the trial court has the discretion to grant a mistrial or simply admonish the jury, upon the request of the defendant, where the prosecutor or a witness makes a reference to a defendant's post-arrest silence. In Smith, the decision did not reflect that an admonition was given to the jury. Finding that the reference by the attorney was "incidental" and inadvertent" and there was no "indication of the deliberate intent of the State to inject or exploit the issue," the appellate court held that the trial court did not abuse its discretion in denying the motion for mistrial. The motion for mistrial had been based upon a comment made by the prosecuting attorney during the direct examination of the arresting officer in an attempt to summarize the officer's testimony. The prosecutor stated that the defendant had "refused to give a statement" when he was under custodial arrest.
In State v. Montoya, 340 So. 2d 557 (La. 1976), the defendant committed armed robbery of a pharmacy. During direct examination of the arresting officer, the State asked the officer if the officer had asked the defendant after he was arrested where he had gotten the drugs. The officer responded that he had asked the defendant, but the defendant did not answer. The defense objected to the question, but did not move for a mistrial. The record did not indicate that the judge admonished the jury.
On appeal, the Montoya court found that the reference made to defendant's silence during custodial arrest was reversible error in that it violated the defendant's constitutional rights to remain silent under Miranda. The court relied primarily upon Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976) where the United States Supreme Court ruled that the State could not use a defendant's silence during custodial arrest to impeach defendant's exculpatory testimony at trial. The Montoya court relied on the following part of the Doyle decision:
The warnings mandated by [Miranda], as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U.S. 433, 443-444, 94 S. Ct. 2357, 2363-2364, 41 L. Ed. 2d 182 (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, 422 U.S. [171], at 177, 95 S.Ct. [2133] at 2137 [45 L. Ed. 2d 99 (1975)]. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who received the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial. Mr. Justice White, concurring in the judgment in United States v. Hale, 422 U.S. at 182-183, 95 S.Ct. at 2139 [45 L. Ed. 2d 99] put it very well: `... when a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony ... Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case.'
426 U.S. at 617, 96 S.Ct. at 2245, 49 L.Ed.2d at 97-98. (Footnotes omitted.)
*479 Unlike in Doyle, the defendant in Montoya did not take the stand, so that the State's reference to defendant's custodial arrest silence in Montoya was not used to impeach the defendant's testimony. However, the Montoya court found that the reasoning in Doyle should apply with even stronger force when a defendant does not take the stand. The Montoya court stated:
In the instant case the defendant did not take the stand. Thus, there is even less justification here for the State to call attention to his silence at the time of arrest than there was in Doyle, because the argument cannot be made that he was under cross-examination and thus fair game for impeachment by use of his silence at the time of his arrest. Therefore, we conclude it was clearly reversible error for the trial court to permit the State to use the arrested person's silence against him at trial. Doyle v. Ohio, supra; cf. United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975). Id. at 560.
Montoya did not discuss C.Cr.P. arts. 770 and 771. Nor did it discuss the Smith decision, discussed supra which appears to be contradictory to it. Taken by itself, Montoya appears to hold that reference to a defendant's custodial arrest silence is unqualifiedly unconstitutional and mandates a mistrial for that reason. However, later decisions indicate that whether reference to a defendant's silence during custodial arrest warrants reversal depends upon the facts of the case and may under some situations constitute harmless error.
In State v. Hicks, 483 So. 2d 1200 (La.App. 4th Cir.1986), writ denied, 488 So. 2d 197 (La.1986), the defendant was convicted of second degree murder. On appeal, he contended that the trial court erred in denying his motion for a mistrial because the State, during direct examination of the investigating officer, elicited from the officer that the officer had read the defendant his Miranda rights after which the defendant told him he did not want to make a statement, but instead wanted to consult with his attorney. The record does not reflect that the judge admonished the jury. The defense contended that the statement was an improper comment on his right to remain silent and constituted reversible error under Doyle. This Court held that the trial court did not err in denying the motion for mistrial. This court found that while the complained of reference constituted error, the error was not reversible error because the evidence of defendant's guilt was overwhelming and because the "only real issue in the trial, that of defendant's sanity, was not affected by this improper question." Id. at 1202.
In State v. Carmouche, 499 So. 2d 1227 (La.App. 4th Cir.1986), during the direct examination of the arresting officer by the State the prosecutor bluntly asked whether the defendant made a statement after having been advised of his rights, and the officer said that he had not. On appeal, the defense contended that the trial court erred in failing to grant a mistrial based upon the reference made to defendant's failure to make any statements to the officer during his custodial arrest. The court did not rule on the issue because the defense had failed to move for a mistrial or admonition at trial. The court noted the following, however:
While we do not decide the issue in his case we note that the circumstances of this case do not necessarily support the same result as in Montoya even if there had been timely objection at trial. First, as in State v. Mosley, 390 So. 2d 1302 (La.1980), the examination did not stress or emphasize defendant's right to remain silent; and, second, there is some question that this short colloquy at the very beginning of the trial left such an impression on the jurors that it had any effect on their deliberations. If the issue were properly before us these considerations might support the conclusion that the questioning constituted harmless error at worst as in State v. Procell [365 So. 2d 484 (La.1978)], supra.
In State v. Kersey, 406 So. 2d 555 (La. 1981), the prosecutor questioned one of the arresting officers about the defendant's statement and his subsequent assertion of the right to remain silent. The court there found the reference to the defendant's postarrest silence did not appear to be for the purpose of simply calling the jury's attention to it or having the jury make an inappropriate *480 inference. The court further found that the reference was an attempt to show that the entire statement made to the officers had been given to the jury and how the interrogation was concluded, rather than to call attention to the silence. The conviction was upheld.
Similarly, in State v. Procell, 365 So. 2d 484 (La.1978), cert. denied, 441 U.S. 944, 99 S. Ct. 2164, 60 L. Ed. 2d 1046 (1979), the court stated:
Article 771 of the Code of Criminal Procedure requires only that the trial judge admonish the jury to disregard the quoted remarks and comments. However, no request that the trial judge admonish the jury was made. Granting a mistrial in this situation was therefore discretionary with the trial judge "if [he] ... is satisfied that an admonition is not sufficient to assure the defendant a fair trial." La.Code Crim. Pro. art. 771; State v. Smith, 336 So. 2d 867 (La.1976).
In State v. Carroll, 546 So. 2d 1365, 1367 (La.App. 4th Cir.1989), the State, after ascertaining from the testifying officer that the defendant was read his Miranda rights after arrest and understood them, then asked the officer if the defendant, after being read his rights, made any statements to the officer. The officer responded "No." The State did not pursue this response, but began to ask the officer another unrelated question regarding in what parish the events leading up to defendant's arrest occurred. The defense interrupted this question to object to the prior question by the State regarding whether the defendant had made any statements to the officer after the officer read him his Miranda rights. The judge sustained the objection. The defense then moved for a mistrial, which the court denied. Consequently, the defense asked the court to admonish the jury to disregard the response given by the officer, that the defendant had remained silent after being read his Miranda rights. The trial judge did admonish the jury. This court stated:
[W]e conclude that the facts in this case do not warrant reversal. The State, after eliciting from the witness that the defendant did not make any statements upon arrest, moved on to another topic. It did not do anything further to emphasize defendant's silence or to try to get the jury to make a negative inference therefrom during the remainder of the trial. The judge also admonished the jury to disregard the comment about defendant's silence. The evidence of defendant's guilt is considerable. For these reasons, the trial court was within its discretion under C.Cr.P. art. 771 to give an admonishment to the jury instead of declaring a mistrial.
This case differs from all of the cases cited above in that in this case, the defense requested an admonition and was denied one. However, as the above cases point out, when an admonition is not given, the error is not reversible where the evidence of the defendant's guilt is considerable. Given that three eyewitnesses identified the defendant in this case, the evidence of his guilt is considerable. The State did nothing to elicit the remark and did nothing further to emphasize his silence or to get the jury to make a negative inference. Under these facts, we find no merit to this assignment of error.
For the foregoing reasons, we affirm the defendant's conviction and sentence.
AFFIRMED.
NOTES
[1] C.Cr.P. art. 770 provides in part:
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:
* * * * * *
(3) The failure of the defendant to testify in his own defense; or
* * * * * *
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.
[2] C.Cr.P. art. 771 provides:
Art. 771. Admonition
In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person, other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.
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648 So. 2d 1249 (1995)
Jerry DAVIS, Appellant,
v.
STATE of Florida, Appellee.
No. 94-2739.
District Court of Appeal of Florida, Fourth District.
January 25, 1995.
Jerry Davis, pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Georgina Jiminez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.
*1250 PARIENTE, Judge.
Defendant timely appeals a summary denial of his rule 3.850 motion without evidentiary hearing. Defendant asserted ineffective assistance of counsel as a result of the failure of his trial counsel to preserve two issues for appeal: the prosecutor's alleged comment on defendant's silence and the admissibility of the victims' out-of-court identification. Both of these issues were raised on direct appeal, but this court found that neither issue had been preserved for appeal. Davis v. State, 579 So. 2d 418 (Fla. 4th DCA 1991).
The state's response to defendant's motion before the trial court was that: 1) the issue had been decided on appeal; 2) the issues raised were inappropriate subjects for a rule 3.850 motion; and 3) no objection was made at trial. The trial court adopted the state's response, and its attachment the answer brief filed on direct appeal.
This court has held that trial counsel's failure to object to reversible error, while waiving the point on direct appeal, does not bar a subsequent, collateral challenge based on a claim of ineffective assistance of counsel. Vento v. State, 621 So. 2d 493, 495 (Fla. 4th DCA 1993). Our decision in the direct appeal in this case makes clear that the merits of the points raised were not addressed because of the failure to object at trial. Davis, 579 So.2d at 418.
Unless the record supplied conclusively demonstrates that defendant is not entitled to relief, we are compelled to reverse the trial court's order of summary denial in accordance with rule 9.140(g) of the Florida Rules of Appellate Procedure. The state's answer brief, filed as an attachment to the trial court's order summarily denying relief, is not a proper "record" to support affirmance of a summary denial under rule 9.140(g). Compare Kaufman v. Lassiter, 616 So. 2d 491, 493 (Fla. 4th DCA), review denied, 624 So. 2d 267 (Fla. 1993) (party is estopped to argue a position contrary to that taken in a prior appeal).
The state's conclusory arguments that trial counsel's failures to object were reasonable strategic decisions cannot support affirmance of a summary denial and substitute for an evidentiary hearing. While the failure to object based on reasonable trial strategy may refute a claim of ineffective assistance of counsel, "without an adequate record, we are in no position to make such a fact-based determination as a plethora of recent cases attests." Williams v. State, 642 So. 2d 67, 69 (Fla. 1st DCA 1994); see also Chambers v. State, 613 So. 2d 118 (Fla. 2d DCA 1993).
Accordingly the trial court's summary denial of defendant's motion for post-conviction relief is reversed and remanded for either an evidentiary hearing or for attachment of record excerpts which are sufficient to conclusively disprove defendant's claims of ineffective assistance of counsel.
GUNTHER and STONE, JJ., concur.
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648 So. 2d 814 (1995)
Kristy Lynn GRAHAM, Appellant,
v.
Robert Earl GRAHAM, Appellee.
No. 94-1186.
District Court of Appeal of Florida, Fourth District.
January 4, 1995.
George S. Berwig of Thomas T. Grimmett, P.A., Fort Lauderdale, for appellant.
Phillip S. Smith and Susan A. Balmer of McLin, Burnsed, Morrison, Johnson & Robuck, P.A., Leesburg, for appellee.
PARIENTE, Judge.
The central issue presented by this non-final appeal is whether the trial court properly transferred a petition for alimony unconnected with marriage from Broward County to Sumter County, the venue of a previously filed petition for dissolution of marriage. Although the trial court could have abated the wife's separate maintenance action pending disposition of the dissolution action, we reverse the trial court's order transferring the separate maintenance action based on improper venue.
Appellant, Kristy Lynn White (wife), and Robert Earl Graham (husband) were married on March 20, 1992 in Broward County, but maintained their marital residence in Sumter County. Since December of 1993, the wife has resided in Broward County. The husband continued to reside in Sumter County. The husband filed a petition for dissolution of marriage in Sumter County in January of 1994 and thereafter on February 1, 1994, the wife filed her petition for alimony unconnected with dissolution of marriage, pursuant to section 61.09, Florida Statutes (1993), in Broward County. In connection with that action, the wife also filed a motion for temporary support and a motion for restraining order. The wife filed an answer to the husband's *815 petition for dissolution in Sumter County, and also filed a counter-petition for dissolution of marriage in the Sumter County action, requesting alimony, child custody and child support the same relief sought in her separate Broward County action.
In the Broward County separate maintenance action, the husband filed a motion to abate and/or dismiss and to transfer for improper venue. Although in his motion the husband argued that abatement and/or dismissal was appropriate, the relief sought by the husband and granted by the court was transfer not abatement. In granting the motion to transfer, the trial court concluded that it lacked jurisdiction over the wife's petition for alimony because the same issue regarding spousal support was pending in the Sumter County action. At the same time, prior to transferring the action, the court found that it did possess jurisdiction to award temporary child support based on the wife's Broward County residence pursuant to section 61.10, Florida Statutes (1993).
While Sumter County was the proper venue for the dissolution action, see Brown v. Brown, 592 So. 2d 325 (Fla. 4th DCA 1992), Broward County, as the residence of the wife, was also a proper venue for the action for separate maintenance. See Friedman v. Friedman, 383 So. 2d 1100 (Fla. 3d DCA 1980). A cause of action for separate maintenance unconnected with marriage accrues in the county where the petitioner or the child is residing and where the petitioner is refused support by the spouse. Id.
In Weinschel v. Weinschel, 368 So. 2d 386, 387 (Fla. 3d DCA 1979), the court held that "[f]or purposes of a separate maintenance action, it is therefore irrelevant where the parties permanently reside or where the marital domicile is located." The rationale for this rule, as explained in Weinschel, is to prevent making public charges out of non-resident spouses and children who are temporarily in this state. In Weinschel, the issue was not the propriety of venue within two counties in this state, but whether a temporary resident of this state must comply with the jurisdictional prerequisites of residency for dissolution actions when filing a separate maintenance action unconnected with dissolution.
However, where a previously filed petition for dissolution of marriage action has been properly filed in another county or state, principles of priority, comity as well as "wisdom and justice, to prevent ... unnecessary litigation, [and] to prevent a multiplicity of [law] suits" support abatement of the latter filed action. See Bedingfield v. Bedingfield, 417 So. 2d 1047, 1050 (Fla. 4th DCA 1982), pet. for review dismissed, 427 So. 2d 736 (Fla. 1983), citing Simmons v. Superior Court, 96 Cal. App. 2d 119, 214 P.2d 844, 849 (Dist.Ct.App. 1950); Friedman; Rivenbark v. Rivenbark, 335 So. 2d 23 (Fla. 1st DCA 1976). The question we must decide is whether the trial court erred when it did not abate the latter filed action or dismiss it, but instead transferred the latter filed action to the venue of the pending dissolution action, where the identical issues will be litigated.
Section 47.011, Florida Statutes (1993), governs venue choices. It provides:
Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against non-residents.
Section 47.122, Florida Statutes (1993), entitled "Change of venue; convenience of parties or witnesses or in the interest of justice," provides:
For the convenience of the parties or witnesses or the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.
The trial court may have envisioned that Sumter County would be a more convenient forum pursuant to section 47.122, because it found that "all of the evidence concerning issues of alimony, property distribution and child support" was located there. However, the husband did not move for transfer on that basis and the court did not consider the applicability of forum non conveniens in its ruling. A transfer of venue based on convenience is improper where no affidavits or other sworn proof support the *816 motion. See Gallagher v. Smith, 517 So. 2d 744, 747 (Fla. 4th DCA 1987); see also Bassett v. Talquin Electric Cooperative, Inc., 362 So. 2d 357, 359-60 (Fla. 1st DCA 1978).
On the propriety of abatement, in Bedingfield, our court held that a subsequently filed Florida divorce action should be stayed where the prior Georgia divorce action would of necessity determine the same issues. To allow the Florida divorce action to proceed would only cause unnecessary and duplicitous litigation and be oppressive to both parties. Bedingfield, 417 So.2d at 1050. We acknowledged that "where courts within one sovereignty have concurrent jurisdiction, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that case," based on the "principle of priority." Id.
We believe that justice requires the principle of priority to apply and govern the result on the motion to stay. Here, it seems clear that the pending Georgia divorce action, which of necessity will determine the children's custody, is the proper forum for the resolution of the entire case. To fail to stay the wife's Florida divorce action will only cause unnecessary and duplicitous lawsuits. It would be oppressive to both parties.
Id.
Florida recognizes this principle of priority or comity where actions involving the same parties and subject matter are pending concurrently in two different states or pending concurrently in state and federal courts. Id. Thus, in those instances abatement is proper. In Bedingfield, transfer was not an option because the two actions were pending in different states.
In Friedman, the dissolution action had been transferred to Lee County and the separate maintenance action filed by the wife was pending in Dade County, the place of the wife's residence. The third district reversed the trial court's order transferring the venue of the separate maintenance action to Lee County, even though the wife's prior dissolution action had been properly transferred there. Friedman did not address the issue of whether a change of venue would have been proper pursuant to section 47.122, presumably because the parties did not seek transfer on that basis.[1]
Although Broward County was a proper venue choice for the separate maintenance action, Sumter County, the place of the husband's residence, also would have been a proper venue choice. The trial court had discretion, pursuant to section 47.122, to transfer this action to Sumter County, provided that the prerequisites for invoking that statute and the case law interpreting it were met.[2] Otherwise, the trial court should have abated the action; it properly did not proceed to litigate the issues also being litigated in the earlier filed dissolution action. This result is consistent with the principle set forth in Evans v. Evans, 141 Fla. 860, 865, 194 So. 215, 217 (Fla. 1940), where the supreme court stated that the separate suit for maintenance filed by the wife in a county other than the county where the divorce was proceeding "can be more practically and expeditiously adjudicated in a suit for divorce if one be, at the time, pending, and that proper practice dictates that such procedure should be followed." Id. at 217.
Accordingly we reverse the order of transfer because Broward County was not the wrong or improper forum, and remand for the entry of an order of abatement or alternatively *817 for consideration of transfer pursuant to section 47.122.
POLEN and STEVENSON, JJ., concur.
NOTES
[1] Friedman cites Rivenbark as authority for abatement. Rivenbark in turn cites Cicero v. Paradis, 184 So. 2d 212 (Fla. 2d DCA 1966) and Oyama v. Oyama, 138 Fla. 422, 189 So. 418 (Fla. 1939), cases which preceded the 1969 legislative enactment of section 47.122. Prior to the legislative enactment, courts had no authority to transfer based on forum non conveniens where the original venue was otherwise proper.
[2] A change of venue which would merely shift the inconvenience from the defendant to the plaintiff is not proper. Gallagher v. Smith, 517 So. 2d 744, 747 (Fla. 4th DCA 1987); Kuvin, Klingensmith & Lewis, P.A. v. Florida Insur. Guaranty Assoc., Inc., 371 So. 2d 214, 217-18 (Fla. 3d DCA 1979). The plaintiff's venue choice is presumptively correct and defendant bears the burden to prove that a trial in the county in which the action was filed would work a substantial inconvenience to it, and to witnesses. Houchins v. Florida East Coast Ry. Co., 388 So. 2d 1287, 1290 (Fla. 3d DCA 1980); See also Barry Cook Ford, Inc. v. Ford Motor Co., 571 So. 2d 61 (Fla. 1st DCA 1990).
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838 S.W.2d 252 (1992)
Ex Parte Paul Houston CROUCH.
No. 184-92.
Court of Criminal Appeals of Texas, En Banc.
June 24, 1992.
Rehearing Denied October 14, 1992.
*253 John T. McCully, Dallas, for appellant.
Tim Curry, Dist. Atty., and C. Chris Marshall and Susan Ayres, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty. and Jeffrey L. Van Horn, Asst. State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
OVERSTREET, Judge.
A jury convicted Paul Houston Crouch of the offense of illegal investment, Tex. Health 481.126, and assessed punishment at fifteen years confinement and a $50,000 fine. Following a hearing, the trial court denied appellant's motion for post-trial bail on the basis that he was convicted of an offense listed under
§ 4.012(b) of the Controlled Substances Act [now § 481.107(bHe) ]. Appellant appealed the order denying post-trial bail by one point of error complaining that the trial court erred because the court misconstrued the meaning of Article 44.04(b) of the Texas Code of Criminal Procedure and § 4.012(b) of the Texas Controlled Substances Act.
In a published opinion, the Fort Worth Court of Appeals sustained appellant's point of error and reversed and remanded to the trial court for the setting of bail. Ex parte Crouch, 822 S.W.2d 352 (Tex.App.____ Fort Worth 1992).
I.
The question for review is whether Tex. Code Crim.Proc.Ann. Article 44.04(b) should be construed to require the denial of post-trial bail when a defendant has been convicted of one of the offenses listed under § 481.107(b) through (e), Tex.Health & Safety Code Ann., regardless of whether the defendant is a repeat felony offender as described in that statute.
Tex.Code Crim.Proc.Ann. Article 44.04(b) states:
Bond Pending Appeal
The defendant may not be released on bail pending the appeal from any felony conviction where the punishment exceeds 15 years confinement or where the defendant has been convicted of an offense listed under Sections 481.107(b) through (e), Health and Safety Code, but shall immediately be placed in custody and the bail discharged.
Section 481.107 of the Health and Safety Code provides:
Repeat Offenders
(a) If it is shown on the trial of a defendant for an offense listed under this section that the defendant has previously been convicted of a felony offense under this subchapter, on conviction the defendant shall be punished by the term of confinement and amount of fine imposed by this section.
*254 (b) Punishment under this section, on conviction of an offense for which the punishment is otherwise imposed under Section 481.112(d)(1), 481.113(d)(1), 481.-114(d)(1), 481.115(d)(1), 481.116(d)(1), 481.-117(d)(1), 481.118(d)(1), 481.120(d)(1), or 481.121(d)(1), is confinement in the Texas Department of Corrections for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000.
(c) Punishment under this section, on conviction of an offense for which the punishment is otherwise imposed under Section 481.112(d)(2), 481.113(d)(2), 481.-114(d)(2), 481.115(d)(2), 481.116(d)(2), 481.-117(d)(2), 481.118(d)(2), 481.120(d)(2), or 481.121(d)(2), is confinement in the Texas Department of Corrections for life or for a term of not more than 99 years or less than 15 years, and a fine not to exceed $250,000.
(d) Punishment under this section, on conviction of an offense for which the punishment is otherwise imposed under Section 481.112(d)(3), 481.120(d)(3), or 481.121(d)(3), is confinement in the Texas Department of Corrections for life or for a term of not more that 99 years or less than 20 years, and a fine not to exceed $500,000.
(e) Punishment under this section, on conviction of an offense for which the punishment is otherwise imposed under Section 481.126(b), is confinement in the Texas Department of Corrections for life or for a term of not more than 99 years or less than 10 years, and a fine of not less than $100,000 or more than $1,000,000.
(f) A person who is subject to prosecution under this section and Section 12.42, Penal Code, may be prosecuted under either section.
II.
The court of appeals determined that Article 44.04(b)'s denial of bail "where the defendant has been convicted of an offense listed under Sections 481.107(b) through (e)" applies only where the defendant is punished as a repeat offender pursuant to
§ 481.107. These designated subsections in 481.107 all contain a laundry list of various felony drug-trafficking offenses and punishments for same, one of which is illegal investment of which appellant was convicted. The court noted in its opinion that "§ 481.107 is captioned `Repeat Offenders' making it apparent that the legislature intended that no bail be set for repeat offenders only."
The State contends that in reading the statute the provision denies bail where the defendant "has been convicted of an offense listed under Sections 481.107(b) through (e), Health and Safety Code", period. And that likewise the intent of the provision is that "a defendant is to be denied bail if convicted of an aggravated drug offense or of illegal investment." It further argues that the Fort Worth Court of Appeals placed too much emphasis on the title of the section "repeat offenders" in arriving at its decision.
Appellant, on the other hand, contends that in order to trigger the provisions of § 481.107(b) through (e), one must satisfy the provision of paragraph (a) which requires that defendant must have been previously convicted of a felony offense under this subchapter.
III.
Statutes should be read as a whole and construed to give meaning to every part. (Section 312.005 Government Code.) The plain language of Article 44.04(b) makes clear that the Legislature intends to deny bail to the convicted felon where punishment exceeds 15 years confinement or where the defendant has been convicted of an offense which is listed under §§ 481.-107(b) through (e), Health and Safety Code. Review of §§ 481.107(b) through (e) includes the offense of which appellant was convicted: § 481.126(b), illegal investment.
While there is much concern for the "Repeat Offender" heading of the statute, we are not convinced that the legislative intent was that the (b) through (e) provisions were to be referenced exclusively in a repeat offender definition. Furthermore, the heading of a title, subtitle, chapter, subchapter, *255 or section does not limit or expand the meaning of a statute. Section 311.024 Government Code.
In construing Article 44.04(b), we are directed to consider among other things the circumstances under which the statute was enacted, the object sought to be attained, and the consequences of a particular construction. See State v. Oliver, 808 S.W.2d 492, 495 (Tex.Cr.App.1991), and § 311.024 Government Code. Applying the above, the result is that persons convicted of first degree felony drug-trafficking and investment of funds from same will be denied bail upon appeal. This, the Legislature appears to have intended.[1] Had it intended as the appellant argues, it would have been simple enough to include the entirety of § 481.107 as opposed to subsections (b) through (e) only. Subsections (b) through (e) are the only sections in the statute in which offenses are listed.
CONCLUSION
Where a statute is clear and unambiguous, it is not for the courts to add or subtract from it.
The judgment of the court of appeals is reversed and the trial court's denial of bail reinstated.
CLINTON, Judge, concurring.
In my judgment, the statutory provisions in question are far from being "clear and unambiguous," majority opinion, at 255.[1] They derive from legislative weapons fashioned for use in "The War on Crime" by Acts 1981, 67th Leg., Ch. 268, p. 696, § 2, at 697, and § 17, at 707 (House Bill 730).[2] Also implicated is Acts 1981, 67th Leg., Ch. 276, p. 741 (House Bill 729).[3] As shown in notes 2 and 3 respectively, reasonable observers close to the legislation were unable to come to a common understanding of those putative appellants to whom bail was *256 denied, but did agree which defendants were precluded from deferred adjudication; for his part, while critical of the legislative manner of bringing about the latter, Professor Wendorf entertained no doubt on either score.[4]
The common feature in § 16 and § 17 of House Bill 730 is the reference to "an offense listed in [under] Section 4.012(b)," both of which are retained in Article 42.12, § 5(d) and in Article 44.04(b), respectively. Until repealed in 1981, § 4.12(a), contained similar provisions precluding its application to certain offenses under the Act.[5]
From early treatment of all those related issues there thus developed a pattern of legislative intent to withhold otherwise generally available benefits from those defendants charged with or found guilty of controlled substance offenses deemed more egregious than others, i.e., illegal investment, delivery to minor and aggravated manufacture, delivery and possession with intent to manufacture or deliver. In its attack on controlled substances offenses, albeit somewhat awkwardly expressed at times, while permitting pretrial bail, see Article 17.03(b)(2), V.A.C.C.P., the Legislature evidenced a purpose and design to deprive major offenders of such redeeming alternatives as release on deferred adjudication, conditional discharge and, once convicted, on bailbond pending appeal. To construe Article 44.04(b), V.A.C.C.P., and § 4.012(b) of the Act accordingly is in harmony with legislative intent, purpose and design.
For those reasons, I join the judgment of the court.
McCORMICK, P.J., and CAMPBELL, J., join.
BENAVIDES, Judge, concurring.
Our case law prescribing methods of statutory construction is in conflict with itself. I subscribe to the method expressed recently in Boykin v. State, 818 S.W.2d 782, 785-786 (Tex.Crim.App.1991), wherein we affirmed that "we necessarily focus our attention on the literal text of the statute in questionf.]" Accordingly, I no longer accept the inconsistent position, articulated recently in Dillehey v. State, 815 S.W.2d 623, 625 (Tex.Crim.App. 1991), that "[t]he intent of the legislature must be enforced by the courts even though it may not be entirely consistent with the strict letter of the statute." See also State v. Oliver, 808 S.W.2d 492, 495 (Tex.Crim.App.1991). Because Government Code section 311.024 authorizes, but does not require, us to consider legislative history when construing statutes, I decline to do so in the case of *257 legislation which is unambiguous on its face. Rather, clear and unambiguous statutes should, in my judgment, be construed according to the plain import of their words, without regard to the actual intent of the Legislature. "As jurists, we are obliged to implement the expressed will of our legislature, not the will it keeps to itself." Garcia v. State, 829 S.W.2d 796, 799 (Tex.Crim.App.1992).
In the present context, I consider the statutory language in question to be reasonably susceptible on its face only of the reading here given it by the Court. That language clearly and unambiguously provides that persons convicted of an offense listed in section 481.107 of the Health and Safety Code shall not be released on an appeal bond. See Art. 44.04(b), V.A.C.C.P. Because Appellant in this case was undoubtedly convicted of just such an offense, it is plain to me that he may not be admitted to bail pending appeal. The literal text here is the law; it is the definitive evidence of legislative intent; and, the Legislature is entitled to expect that the Judiciary will follow the specific text that was adopted. Boykin, 818 S.W.2d at 785. Hence, I concur in the judgment, but do not think that further consideration of legislative intent is appropriate.
NOTES
[1] Search of the legislative history did not directly illuminate the intent for our purposes here. It is clear from the committee hearings that the intent was generally to provide for harsher penalties for drug traffickers and to expedite the judicial process and keep drug dealers from their trade. Denial of bail is consistent with this intent. H.B. 1191, 67th Leg., 1983.
[1] Emphasis here and throughout this opinion is mine unless otherwise indicated. The Texas Controlled Substances Act is sometimes referred to as the "Act."
[2] Section 17 amended Article 44.04(b), C.C.P. by inserting the underscored language so as to read as follows:
"(b) The defendant may not be released on bail pending the appeal from any felony conviction where the punishment exceeds 15 years confinement or where the defendant has been convicted of any offense listed under Section 4.012(b), Texas Controlled Substances Act, as amended (Article 4476-15, Vernon's Texas Civil Statutes), but shall immediately be placed in custody and the bail discharged." Even upon original enactment of § 17 in House Bill 730, contemporaneously interested commentators were unable to agree on its application to bail on appeal. See, e.g., Rep. Bob Maloney & Dain Whitworth, Legislative Review, 67th Regular Session, 11 Voice for the Defense 6, at 41-42 (July 1981) ("No bail allowed for repeat offenders regardless of sentence."); H.D. Wendorf, The War on Crime: 1981 Legislation, 33 Baylor L.Rev. 765, at 784 (Fall 1981) (bail on appeal denied to convicted aggravated substance offenders but not to illegal investment offenders).
[3] That `The War on Crime" was waged with several legislative bills as weapons seemed to confuse some warriors fighting controlled substances. For example, § 8 of House Bill 730, ante, added § 4.051, captioned and proscribing "Unlawful possession of marihuana," as well as § 4.052, "Illegal investment." Whereas House Bill 729, § 1, also added § 4.051, captioned and proscribing "Delivery of controlled substance to minor." (That duplicity was resolved, however, in Acts 1983, 68th Leg., Ch. 425, p. 2361, at 2392, § 16, by creating and moving to § 4.053 "Delivery of Controlled Substance to Minor.")
Meanwhile, § 16 of House Bill 730 rejected deferred adjudication pursuant to former § 3d for an illegal investment offender under § 4.052, as well as for "an offense listed in § 4.012(b);" § 3 of House Bill 729 proscribed it for a "delivery to minor" offender under its § 4.051. (That too was reconciled in § 25 of Acts 1983, ante, by precluding both §§ 4.052 and 4.053 offenders from deferred adjudication, along with listed § 4.012(b) offenders.
Unlike denial of bail under § 17, however, there was general agreement that § 16 of House Bill 730 denied deferred adjudication pursuant to former § 3d, Article 41.12, C.C.P., to aggravated substance offenders. See Maloney & Whitworth, supra, at 42; Knox Jones & Robin Welch, Offenses and Penalties under the Revised Controlled Substances Act, 11 Voice for the Defense 32, at 33 (September 1981); Wendorf, supra, at 784.
[4] Concluding his analysis of House Bill 730, Professor Wendorf wrote:
"What could be called the topping sections of the punitive provisions in the trafficking act amend the Code of Criminal Procedure to deny aggravated drug offenders and illegal investment offenders the court ordered probation and deferred proceedings of Section 2d [sic], article 42.12 of the Code of Criminal Procedure.! Then final topping is supplied by the denial of bail on appeal to those convicted of aggravated drug offenses (but this denial is not extended to illegal investment offenders.
Id., § 16. This is accomplished by use of references many might attack as equivocal, and this technique will please the hearts of only the most technical of legislative draftsmen but the denials are, nevertheless, apparently intended to apply to aggravated and illegal investment offenders."
Id., at 784. But, by amending § 3f(c), Article 42.12, § 25 of the 1983 Act clearly specifies those defendants to whom deferred adjudication is denied, viz; "(c) The provisions of Section 3d of this Article do not apply to a defendant charged with or adjudged guilty of an offense under Section 4.052 [illegal investment] or 4.053 [delivery to minor] Texas Controlled Substances Act (Article 4476-15, Vernon's Texas Civil Statutes), or an offense listed in Section 4.012(b)."
[5] Not previously mentioned by commentators were restrictions placed on a trial court in granting "conditional discharge" to first controlled substance offenders pursuant to former § 4.12(a) within the Texas Controlled Substance Act. See § 9 of House Bill 730 and § 2 of House Bill 729, the former excepting "an aggravated offense or an offense under Section 4.052 of this Act," the latter excepting only "a violation of Section 4.051 of this subchapter;" but see also § 17 of the 1983 Act, amending § 4.12(a) by combining former § 9 and § 2, ante, into "except an aggravated offense or an offense under Section 4.052 [illegal investment] or 4.053 [delivery to minor (formerly § 4.051 in House Bill 729) ]."
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838 S.W.2d 632 (1992)
Eduardo MACARANGAL, and Metro Airlines, Inc., Relators,
v.
The Honorable Frank ANDREWS, Judge 116th District Court of Dallas County, Texas, Respondent.
No. 05-92-00616-CV.
Court of Appeals of Texas, Dallas.
July 21, 1992.
David T. Moran, Timothy E. Taylor, Fred Meier, Dallas, for relators.
Bryan Newcombe, Houston, and Richard F. Werstein, Dallas, for respondent.
Before ENOCH, C.J., and BAKER and ROSENBERG, JJ.
ORIGINAL PROCEEDING PETITION FOR WRIT OF MANDAMUS
ROSENBERG, Justice.
OPINION
In this original proceeding, relators seek a writ of mandamus directing the trial *633 court to vacate an order reinstating a cause dismissed for want of prosecution. Relators contend that the trial court signed the order of reinstatement after its plenary jurisdiction had expired and, therefore, that the order of reinstatement was void. We disagree, and, accordingly, we deny relators' petition for writ of mandamus.
Real-parties-in-interest William Max Schmidt, an employee of Continental Airlines, and his wife, Jo Ann Curry Schmidt, sued relators Eduardo Macarangal and Metro Airlines, Inc. The Schmidts sought recovery for injuries resulting from an onthe-job accident involving William Schmidt. National Union Fire Insurance Company of Pittsburgh, Pennsylvania, intervened in the suit. National Union asserted a subrogation claim for reimbursement of workers' compensation benefits paid to Schmidt.
After Metro Airlines filed a notice of bankruptcy, the trial court, by letter, requested that the Schmidts' attorney certify certain matters concerning the bankruptcy. The letter warned that failure to certify would result in dismissal for want of prosecution. After the Schmidts' attorney failed to take the requested action, the trial court signed an order dismissing the cause for want of prosecution on December 31, 1991. Although the order's caption listed National Union as an intervenor, the text of the order contained no explicit disposition of National Union's claim. The order stated: Plaintiff(s) having failed to take certain action heretofore specified by the court within the time period prescribed, the court finds that the cause should be dismissed for want of prosecution pursuant to TEXAS RULES OF CIVIL PRCEDURE 165a.
IT IS, THEREFORE, ORDERED, AJUDGED and DECREED by the court that this cause be and is hereby dismissed and that all court costs shall be taxed against the Plaintiff(s), for which let execution issue.
IT IS FURTHER ORDERED that execution may issue in favor of the officers of the court against each party hereto respectively, for all costs by each incurred.
The Schmidts filed an unverified motion to reinstate on January 21, 1992, and an amended motion, which was verified, on February 14, 1992. The trial court reinstated the cause by order of March 2, 1992.
In this original proceeding, relators seek a writ of mandamus directing the trial court to vacate the March 2, 1992 order. Relators contend that the Schmidts' January 22, 1992 motion to reinstate did not extend the trial court's plenary jurisdiction because it was not verified. Consequently, according to relators, the trial court signed the March 2nd order after its plenary jurisdiction had expired, and, therefore, the March 2nd order was void. The Schmidts respond that, because it contained no explicit disposition of National Union's plea in intervention, the December 31st order was interlocutory. Since there was no final judgment, the Schmidts assert, the trial court retained jurisdiction to reinstate their suit in March.
I. THE TRIAL COURT'S JURISDITION TO REINSTATE A CASE DIMISSED FOR WANT OF PROSECTION
Rule 165a of the Texas Rules of Civil Procedure governs reinstatement of cases dismissed for want of prosecution. In such cases, a party may file a motion to reinstate within thirty days of the date on which the order of dismissal was signed. Tex.R.Civ.P. 165a(3). A timely motion to reinstate extends the trial court's plenary jurisdiction in the same manner as a motion for new trial under rule 329b. See Tex. R.Civ.P. 329b. That is, it extends the trial court's plenary jurisdiction until thirty days after the motion to reinstate is overruled. Tex.R.Civ.P. 165a(3).
Rule 165a requires the movant or his attorney to verify the motion to reinstate. Tex.R.Civ.P. 165a(3). An unverified motion to reinstate does not extend the trial court's plenary jurisdiction. McConnell v. May, 800 S.W.2d 194, 194 (Tex.1990, orig. proceeding). In the absence of a verified motion to reinstate, the trial court's plenary jurisdiction expires thirty days after the date on which it signed a final order of dismissal. Id. Mandamus is an appropriate remedy if the trial court grants an *634 unverified motion after its plenary jurisdiction has expired. Id.
In this case, the Schmidts failed to file a verified motion to reinstate within thirty days of December 31, 1991, the date on which the trial court signed the order of dismissal, and the trial court reinstated the case more than thirty days after that date. Therefore, the determinative issue in this case is whether the December 31, 1991 order of dismissal was a final judgment. If the December 31st order was interlocutory, the trial court retained jurisdiction to reinstate the case on March 2nd, and relators have failed to demonstrate that they are entitled to a writ of mandamus. See Massey v. Davis, 650 S.W.2d 551, 554 (Tex. App.-Eastland 1983, writ ref'd n.r.e.). On the other hand, if the December 31st order was a final judgment, then the trial court's plenary jurisdiction expired on January 30, 1992, the March 2nd order of reinstatement is void, and relators are entitled to mandamus relief. McConnell, 800 S.W.2d at 194.
II. FINALITY OF THE DECEMBER 31, 1991 ORDER
To be final, a judgment must dispose of all issues and parties in a case. North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). The disposition need not always be express, however. In Aldridge, the Texas Supreme Court established a presumption of finality applicable to judgments signed in cases set for conventional trial on the merits. In such cases, the judgment's failure to expressly dispose of one or more parties or claims does not preclude its being final. Instead, Aldridge instructs the reviewing court simply to presume that the trial court "intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties." Aldridge, 400 S.W.2d at 897-98. The Aldridge court recognized an exception to this presumption of finality in cases where, as here, the plaintiff's claim is dismissed for want of prosecution. In such cases, there is no presumption that the dismissal order also disposed of issues in an independent cross-action or counterclaim. Id. at 897; see also PHB, Inc. v. Goldsmith, 539 S.W.2d 60 (Tex.1976).
In this case, National Union asserted its subrogation claim by a plea in intervention. The caption of the December 31, 1991 dismissal order listed National Union as an intervenor, but the text contained no reference to National Union's claim. Despite this failure to explicitly address National Union's claim, relators would have us conclude that, even without benefit of the Aldridge presumption of finality, the December 31st order disposed of National Union's claim. Relators present several somewhat interrelated arguments in support of their contention that the December 31st judgment is final.[1] Relators argue that National Union's claim is entirely derivative of the Schmidts', so that when the trial court dismissed the Schmidts' claim, by necessary implication it also disposed of National Union's claim. In further support of their contention that the December 31st judgment is final, relators point out that the caption of the December 31st order listed National Union as a party; that the order dismissed "this cause"; and that the order provided for execution. These factors, according to relators, clearly show that the trial court intended to, and did, dispose of all parties and claims in the December 31st order. We disagree. A compensation carrier's subrogation suit is governed by article 8308-4.05 of the Texas Workers' Compensation Act. In general, if a covered employee sustains a work-related injury, a recovery of workers' compensation benefits is the employee's exclusive remedy against his employer. Tex.Rev.Civ. Stat.Ann. art. 8308-4.01 (Vernon Pamph. 1992). Article 8308-4.05, however, allows an injured employee to recover damages from a third-party tortfeasor. Tex.Rev.Civ. Stat.Ann. art. 8308-4.05(a) (Vernon Pamph. 1992). An employee who seeks damages *635 from a third party remains entitled to pursue a claim for workers' compensation benefits. Id. If the employee receives compensation benefits, however, the compensation carrier becomes subrogated to the rights of the employee and may enforce the liability of the third-party tortfeasor. Tex. Rev.Civ.Stat.Ann. art. 8308-4.05(b) (Vernon Pamph.Supp.1992).
This Court has interpreted the predecessor to article 8308-4.05 as creating only one cause of action against a third-party tortfeasor. Phennel v. Roach, 789 S.W.2d 612, 615 (Tex.App.Dallas 1990, writ denied). The injured employee owns this cause of action, burdened by the right of the insurance carrier to recoup compensation paid. Id. Thus, this Court has held that, when the injured employee's pleadings are stricken, the insurance carrier's cause is also defeated. Id.
Despite the derivative nature of the carrier's subrogation claim, it is well established that article 8308-4.05(b) authorizes the carrier to bring suit against the thirdparty tortfeasor without joining the employee. See Watson v. Glens Falls Ins. Co., 505 S.W.2d 793, 796 (Tex.1974); Fort Worth Lloyds v. Haygood, 151 Tex. 149, 246 S.W.2d 865, 869 (1952). Thus, as the Schmidts observe, National Union could have asserted its subrogation claim against relators even in the absence of a suit by the Schmidts. The purpose of this subrogation provision is to prevent overcompensation of the employee and to reduce the burden of insurance to the employer and to the public. American Gen. Fire & Cos. Co. v. McDonald, 796 S.W.2d 201, 204 (Tex. App.San Antonio 1990, writ denied). Accordingly, the carrier's right to reduce its liability through payments by a third party must not be compromised. Id.; see also Fort Worth Lloyds, 246 S.W.2d at 869-71 (when employee and third-party tortfeasor settle, first money recovered by the employee should go to reimburse the compensation carrier); Home Indem. Co. v. Thompson, 407 S.W.2d 530, 531 (Tex.Civ. App.Texarkana 1966, no writ) (where employee and third party settle, both are liable to carrier for amount of compensation paid).
In this case, the December 31st order of dismissal is at best ambiguous in its treatment of National Union's claim.[2] Since the order is a dismissal for want of prosecution,[3] there is no presumption that the trial court disposed of the subrogation claim. See Aldridge, 400 S.W.2d at 897; Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 150 S.W.2d 377, 378 (1941) ("[W]here the court dismisses the plaintiffs suit, and does not refer to or mention the defendant's cross-action, the judgment does not dispose of the cross-action expressly or by implication, and is therefore not such a final judgment as will authorize an appeal therefrom."). Neither the notice that precipitated the December 31st order of dismissal nor the order of dismissal expressly refers to National Union's claim. In this context, the language dismissing "this cause" is not sufficient to dispose of National Union's claim. See Legrand v. Niagara Fire Ins. Co., 743 S.W.2d 241, 242-43 (Tex.App.Tyler 1987, no writ) (dismissal of "the above styled and numbered cause" did not dispose of defendant's cross action); Massey, 650 S.W.2d at 554 (dismissal of "the hereinafter styled and numbered causes" did not dispose of interventions and cross-actions). The December 31st order does not expressly dispose of National Union's claim. Further, since National Union could have asserted its claim *636 in the absence of a suit by the Schmidts, we do not construe the December 31st dismissal as disposing of National Union's claim by necessary implication. The December 31st dismissal order was interlocutory, and the trial court retained jurisdiction to reinstate the Schmidts' claims in March. Accordingly, we deny relators' petition for writ of mandamus.
BAKER, J., dissents and files an opinion.
BAKER, Justice, dissenting.
The majority concludes the respondent's December 31, 1991 dismissal order is interlocutory. Because of this conclusion, the majority denies the writ of mandamus. I think the order is final. I would grant the writ. I respectfully dissent.
THE UNDERLYING LITIGATION
In September 1990, real parties in interest William Max Schmidt and his wife sued relators Eduardo Macarangal and Metro Airlines, Inc. The Schmidts' causes of action against relators arose from injuries Mr. Schmidt sustained in an accident at the Dallas/Fort Worth Airport in July 1989, when a baggage conveyor driven by Mr. Schmidt collided with a Metro Airlines van operated by Macarangal. In February, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, intervened in the suit to secure reimbursement of workers' compensation benefits it paid to Mr. Schmidt.
The Schmidts' attorney did not take certain action respondent requested. Respondent dismissed the cause for want of prosecution on December 31, 1991. The Schmidts filed an unverified motion to reinstate on January 21, 1992. On February 14, 1992, the Schmidts filed an amended motion to reinstate, which they verified. Despite relators' contention that his plenary jurisdiction had expired, respondent signed an order reinstating the cause on March 2, 1992. The relators filed this original proceeding for writ of mandamus asserting that respondent lacked jurisdiction to enter the March 2 order. Relators contend the order is void because the court signed it after the court's plenary jurisdiction expired.
THE ISSUE
The majority recognizes that the issue is whether respondent's dismissal order is final. If it is final, respondent lost plenary jurisdiction to rule on the Schmidts' February amended motion to reinstate. See McConnell v. May, 800 S.W.2d 194 (Tex. 1990) (orig. proceeding). If it is interlocutory, respondent retained jurisdiction and could rule on the February amended motion to reinstate. See Massey v. Davis, 650 S.W.2d 551, 554 (Tex.AppEastland 1983, writ ref'd n.r.e.).
THE PARTIES' CONTENTIONS
A. Relators
Relators contend the dismissal order entered on December 31, 1991, is a final order. Relators argue the order disposed of the claims of plaintiffs Schmidt and intervenor National Union Fire Insurance Company of Pittsburgh, Pennsylvania. Relators contend that because the plaintiffs and intervenor did not file a verified motion within thirty days of the entry of the December 31, 1991 dismissal order, respondent's jurisdiction to reinstate the case expired on January 30, 1992. Relators argue that respondent abused his discretion when he granted the Schmidts' motion to reinstate.
B. Respondent and Real
Parties in Interest
Respondent and the real parties in interest contend that the December 31, 1991 dismissal order was interlocutory because it did not dispose of National's claim in intervention. Respondent and the real parties in interest additionally argue that reinstatement was proper because neither they nor their attorneys received notice of the proposed dismissal.
THE APPLICABLE LAW
A. Motion to Reinstate
Rule 165a of the Texas Rules of Civil Procedure governs the reinstatement of cases dismissed for want of prosecution. See TexR.Civ.P. 165a. That rule requires a party seeking reinstatement to file a verified motion to reinstate within thirty days after the court signs the dismissal order or *637 within the period provided by rule 306a. Tex.R.Civ.P. 165a(3). McConnell, 800 S.W.2d at 194; Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex.1986). A trial court's jurisdiction to reinstate a case expires within thirty days of the date of the entry of the dismissal order unless a party files a verified motion to reinstate within that thirty-day period. McConnell, 800 S.W.2d at 194; Butts, 705 S.W.2d at 697.
B. Finality of the Dismissal Order To be final, a judgment must dispose of all issues and parties in a case. North East Indep. Sck. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). When a trial court renders a judgment not intrinsically interlocutory in character in a case regularly set for conventional trial on the merits, we presume for appellate purposes the trial court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between the parties. Aldridge, 400 S.W.2d at 897-98. This rule is subject to an exception in those cases where the judgment dismisses the case for want of prosecution. Aldridge, 400 S.W.2d at 897.
Where the court dismisses the plaintiff's suit and does not refer to or mention the defendant's cross action, the judgment does not dispose of the cross action, expressly or by implication, and is therefore not a final judgment as will authorize an appeal from it. See Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 150 S.W.2d 377, 378 (1941).
C. Workers' Compensation Subrogation
A claim for recoupment of compensation is a derivative cause of action under article 8308-4.05(b). See Tex.Rev.Civ.Stat.Ann. art. 8308-4.05(b) (Vernon Supp.1992). The recoupment depends upon the injured employee's recovery of damages from injuries sustained because of the act or omission of a third party. Yeary v. Hinojosa, 307 S.W.2d 325, 332 (Tex.Civ.App.Houston [1st Dist.] 1957, writ ref'd n.r.e.). There is but one cause of action against the thirdparty tortfeasor. Fort Worth Lloyds v. Haygood, 151 Tex. 149, 246 S.W.2d 865, 868 (1952). No cause of action exists in favor of the injured employee except for the damages, if any, suffered in excess of the amount of compensation insurance collected by the employee. Fort Worth Lloyds, 246 S.W.2d at 868. That cause of action is that of the employee, who owns it burdened by the insurance carrier's right to recover the compensation it paid the employee. Fort Worth Lloyds, 246 S.W.2d at 868; Phennel v. Roach, 789 S.W.2d 612, 615 (Tex.App.Dallas 1990, writ denied); Evans v. Venglar, 429 S.W.2d 673, 675 (Tex.Civ.App.Cftrpus Christi 1968, no writ).
THE MAJORITY'S CONCLUSIONS
The majority, while recognizing the derivative nature of the carrier's subrogation claim, observes that it is well established that the Workers' Compensation Act authorizes the carrier to bring suit against the third-party tortfeasor without joining the employee. See Watson v. Glens Falls Ins. Co., 505 S.W.2d 793, 796 (Tex.1974). Thus, the majority observes that National Union could have asserted its subrogation claim against relators even in the absence of a suit by the Schmidts.
The majority concludes that the dismissal order is at best ambiguous in its treatment of National's subrogation claim. The majority uses this conclusion to dispose of this Court's holding in Phennel. The majority then notes that because the order is a dismissal for want of prosecution, there is no presumption that the trial court disposed of the subrogation claim. Without analysis, the majority then concludes that because of its first two conclusions, National's claim is transformed from a subrogation claim, which is wholly derivative in nature, to an affirmative counterclaim or cross action.[1] I cannot agree with the majority's suppositions or conclusions.
*638 DERIVATIVE NATURE OF THE SUBROGATION CLAIM
National intervened in the Schmidts' action against Macarangal and Metro. National claimed subrogation rights to the Schmidts' causes of action against relators for the workers' compensation benefits National Union paid to Mr. Schmidt. See Tex. Rev.Civ.Stat.Ann. art. 8308-4.05(b) (Vernon Supp.1992). National's claim is wholly derivative of the Schmidts' claim against Macarangal and Metro. Fort Worth Lloyds, 246 S.W.2d at 868; Phennel, 789 S.W.2d at 615; City of Houston v. Turin City Fire Ins. Co., 578 S.W.2d 806, 808 (Tex.Civ. App.Houston [1st Dist.] 1979, writ ref'd n.r.e.). National's claim for recoupment of compensation benefits paid to the Schmidts depends upon the Schmidts' recovery from relators. Yeary, 307 S.W.2d at 332. There is but one cause of action against relatorsthat of the Schmidts, who own it burdened by National's right to recoup compensation paid. Fort Worth Lloyds, 246 S.W.2d at 870; Phennel, 789 S.W.2d at 615; Evans, 429 S.W.2d at 675.
Rule 165a(3) required the Schmidts to file a verified motion to reinstate within thirty days after the court signed the dismissal order. See Tex.R.Civ.P. 165a(3). If a party seeking reinstatement does not file a verified motion within thirty days of the dismissal order, the trial court's jurisdiction to reinstate the case expires. McConnell, 800 S.W.2d at 194; Butts, 705 S.W.2d at 697.
In this case, the trial court signed the dismissal order on December 31,1991. The thirty-day period required by rule 165a(3) ended January 30, 1992. The Schmidts did not file their verified amended motion to reinstate until February 14, 1992. The trial court's jurisdiction expired January 30, 1992.
Because the Schmidts did not follow rule 165a(3), and because National's claim for recoupment of workers' compensation benefits was a derivative claim dependent upon the Schmidts' recovery, the Schmidts' failure to follow the rule was fatal to National's subrogation suit. I would hold that the trial court's December 31, 1991 dismissal order was a final order disposing of Schmidts' personal injury claim and National's derivative subrogation claim.
AUTHORITIES ARE DISTINGUISHABLE
The majority relies upon Massey and Legrand v. Niagara Fire Insurance Co., 743 S.W.2d 241 (Tex.App.Tyler 1987, no writ), to support its conclusions. The respondent and the real parties in interest also rely on Legrand and Tramco Enterprises, Inc. v. Independent American Savings Ass'n, 739 S.W.2d 944 (Tex.AppFort Worth 1987, no writ), to support their contentions. In my view, Massey, Legrand, and Tramco are all distinguishable.
In Massey, both the intervenors and the defendants filed cross actions for affirmative relief. The trial court dismissed the plaintiff's cause of action for want of prosecution. Subsequently, a new judge reinstated the case on the docket. Both the dismissal and reinstatement orders were entered without notice to the parties or their attorneys. On appeal, the Massey defendants contended that the reinstatement order was void because the trial court signed it more than thirty days after entry of the order of dismissal. The Massey court held that the original dismissal order was interlocutory because it did not dispose of all the parties and issues pending before the court. The court reached this conclusion because there were affirmative cross actions pending. The Massey court relied on Davis and Barrier v. Lowery, 118 Tex. 227, 13 S.W.2d 688 (1929) (on reh'g), to support this conclusion.[2]Massey differs from this case because independent cross actions were pending in Massey rather than a purely derivative action as in this case.
In Legrand, Legrand sued an insurance company, her former husband, and the partners of the agency that issued the policy. *639 Legrand's former husband filed a cross action against the insurance company and the partners. The district court sent a notice to Legrand's former attorney of the court's intention to dismiss her suit against the insurance company and the others for want of prosecution. Legrand and her former husband's attorney did not receive the notice, nor did the court inform the attorney of the later dismissal order. Some months later, the attorney learned of the dismissal of Legrand's suit against the insurance company. The court's judgment dismissing the suit stated: "The above styled and numbered cause is hereby dismissed for want of prosecution." That judgment made no reference to the exhusband's cross action.
The Legrand court held that the dismissal order was not a final judgment. The Legrand court held that the presumption of finality did not apply to this dismissal order. Because the order did not refer to or mention the ex-husband's cross action, it was not final. See Legrand, 743 S.W.2d at 242. In Legrand, as in Massey, the cross action was not a derivative subrogation claim but an independent cross action. In my view, this factor makes the holdings of Legrand and Massey inapplicable to this case.
In Tramco, the trial court entered a dismissal with prejudice on the claims of the opposing parties in the main lawsuit. The trial court included Tramco's intervention claim in the dismissal. Tramco's intervention was an independent action by Tramco against parties over the foreclosure of a deed of trust covering a construction site. Tramco's intervention action was not a derivative suit like National's in this case. Tramco filed a writ of error to set aside the trial court's dismissal order. In my view, Tramco does not offer support for the respondent's position that the dismissal order is not a final judgment.
I would grant the writ. Because the majority declines to do so, I respectfully dissent.
NOTES
[1] In their petition for writ of mandamus, relators do not address whether the December 31st judgment is a final judgment despite its failure to dispose explicitly of National Union's claim. Instead, they simply assume its finality. The arguments discussed in this opinion are the arguments that relators presented to the trial court in their response to the Schmidts' amended motion to reinstate.
[2] This ambiguity distinguishes the present case from this Court's opinion in Phennel v. Roach, 789 S.W.2d 612 (Tex.App.Dallas 1990, writ denied). The opinion in Phennel suggests that the trial court's order clearly disposed of both the injured employee's and the compensation carrier's suit. The issue addressed in Phennel was simply the correctness of that disposition. Phennel, 789 S.W.2d at 615.
[3] In summary judgments, another instance in which there is no presumption of finality, this Court has declined to construe ambiguous orders as final. See McClennahan v. First Gibraltar Bank, F.S.B., 791 S.W.2d 607 (Tex.App. Dallas 1990, no writ); Sakser v. Fitze, 708 S.W.2d 40 (Tex.App.Dallas 1986, no writ) (Mother Hubbard clause in summary judgment does not dispose of claims not presented in motion); but see Cockrell v. Central Sav. and Loan Ass'n, 788 S.W.2d 221 (Tex.App.Dallas 1990, no writ).
[1] To bolster its conclusion that the alleged ambiguity in the order transforms National's claim from a derivative action to an affirmative cross action, the majority relies on two summary judgment cases from this Court. The majority observes this Court declined to construe "ambiguous" summary judgment orders as final. A careful reading of both of these cases reveals that this Court did not characterize either order as ambiguous, nor did the court render any decision that lack of finality of the orders was because of ambiguity. See McClennahan v. First Gibraltar Bank, F.S.B., 791 S.W.2d 607 (Tex. App.Dallas 1990, no writ); Sakser v. Fitze, 708 S.W.2d 40 (Tex.App.Dallas 1986, no writ).
[2] Davis and Barrier were also cases where affirmative cross actions were pending. See Davis, 150 S.W.2d at 377; Barrier, 13 S.W.2d at 688.
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838 S.W.2d 743 (1992)
Randy COOPER, d/b/a Cooper Farms, Appellant,
v.
SCOTT IRRIGATION CONSTRUCTION, INC., Appellee.
No. 08-91-00352-CV.
Court of Appeals of Texas, El Paso.
August 26, 1992.
*744 Sterling Harmon, Seminole, for appellant.
James R. Caton, Seminole, for appellee.
Before OSBORN, C.J., and KOEHLER and BARAJAS, JJ.
OPINION
OSBORN, Chief Justice.
This is an appeal from an order granting summary judgment on an account in favor of Scott Irrigation Construction, Inc. (Scott), Appellee, and against Randy Cooper, d/b/a Cooper Farms (Cooper), Appellant. In a single point of error, Cooper contends that the trial court erred in granting summary judgment. We affirm.
Scott filed a petition, accompanied by an affidavit, for an amount allegedly owed to it on an account which arose from the sale and installation of an irrigation system on Cooper's farm. Cooper in his original answer pled a general denial and certain defenses to the effect that the system was defective and he suffered damages by way of repairs and loss of cotton. These pleadings were unsworn and unsupported by affidavit. Scott then filed its motion for summary judgment attaching as proof affidavits and copies of Cooper's account. Cooper filed an amended answer, alleging essentially the same defenses as pled in his original answer, including breach of express and implied warranties, violations of the Deceptive Trade Practices Act and negligence both by specific acts and generally under the doctrine of res ipsa loquitur. Although Cooper pled that he had suffered damages in the amount of $2,500 as a result of Scott's wrongful acts, his pleadings were defensive in nature rather than as a counterclaim against Scott for affirmative relief. Cooper also filed a response to the motion for summary judgment. Both Cooper's amended answer and his response were accompanied by identical affidavits in which he alleged facts in support of his defenses but failed to deny Scott's claim. The trial court granted the motion for summary judgment, reciting in its order that it "finds that [Scott's] suit is founded upon a Sworn Account, but that ... [Cooper] has failed to file an Answer in compliance with Rule 185, Texas Rules of Civil Procedure, and that no such Answer has been timely tendered...."
In reviewing a summary judgment appeal, the general rule is that this Court must determine whether the successful *745 movant in the trial court carried its burden of showing that there is no genuine issue of a material fact issue and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether or not there is a disputed fact issue precluding summary judgment, evidence favorable to the non-movant is to be taken as true, and in that connection, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Nixon, 690 S.W.2d at 548-49.
Within his point of error, Cooper asserts four errors on the part of the trial court which he claims mandate a reversal and remand of the case. First, he contends that the court erred in ruling that the suit was based on a sworn account because of a defective affidavit attached and filed in support of Scott's petition. Specifically, Cooper claims that because of an omitted date in the jurat at the end of the affidavit ("SIGNED AND SWORN TO before me on March , 1991."), it is essentially an unsworn statement not competent as summary judgment proof.
The lack of a specific date in the jurat of an affidavit does not render the affidavit invalid. Order of Aztecs v. Noble, 174 S.W. 623, 624 (Tex.Civ.App.Austin 1915, no writ); 2 Tex.Jur.3d, Affidavits, § 19 (1979). The Texas Court of Criminal Appeals has cited and followed those authorities in Ex parte Davis, 586 S.W.2d 536, 537 (Tex.Crim. App.1979). Trimble v. Gulf Paint & Battery, Inc., 728 S.W.2d 887 (Tex.App.Houston [1st Dist.] 1987, no writ), cited by Cooper in support of his contention that lack of a specific date renders an affidavit ineffective, is inapposite since that case involved a complete absence of notarization. The same may be said with respect to Reese v. State, 712 S.W.2d 131 (Tex.Crim.App.1986), another case cited by Cooper, which held only that even where the jurat of an affidavit in support of a search warrant was unsigned, it was not fatally defective since it was incorporated by reference into a properly executed warrant.
Cooper next complains that the trial court erred in ruling that he had failed to file an answer which met the requirements of Tex.R.Civ.P. 185.[1] This rule provides that where a plaintiff sues for recovery on an account with verified pleadings "to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed," that such allegations are to be taken as prima facie evidence of the truth of the claim. The defendant will not be permitted to deny the claim, or any item therein, unless he files a "written denial, under oath." Tex.R.Civ.P. 93(10) requires that a defensive pleading which denies a plaintiff's verified suit on an account must also be verified by affidavit.[2]
Rule 185 is a rule of procedure with regard to the establishment of a prima facie right to recovery in a suit on an account. McNeil v. Pierce, 688 S.W.2d 209, 210 (Tex.App.El Paso 1985, writ ref'd n.r.e.). A defendant who fails to file a *746 sworn denial which meets the requirements of Rules 185 and 93(10) is not entitled to dispute the receipt of items or services or the accuracy of the stated charges. Canter v. Easley, 787 S.W.2d 72, 73 (Tex. App.Houston [1st Dist.] 1990, writ denied), citing, Vance v. Holloway, 689 S.W.2d 403 (Tex.1985). A correctly worded denial, properly verified as required by Rules 93(10) and 185, will destroy the prima facie effect of the verified claim and will force the plaintiff to prove his claim. McNeil, 688 S.W.2d at 210. On the other hand, a sworn general denial is insufficient to remove the evidentiary presumption created by a properly worded and verified suit on an account. Huddleston v. Case Power & Equipment Co., 748 S.W.2d 102, 103 (Tex.AppDallas 1988, no writ). The "written denial, under oath" required by Rule 185 must also comply with Rule 93(10) which requires a special sworn denial in the defendant's answer to put the plaintiff's claim at issue. Huddleston, 748 S.W.2d at 103. A sworn denial in a response to a motion for summary judgment is not sufficient for this purpose. Rush v. Montgomery Ward, 757 S.W.2d 521, 523 (Tex.App. Houston [14th Dist.] 1988, writ denied); Zemaco, Inc. v. Navarro, 580 S.W.2d 616, 620 (Tex.Civ.App.Tyler 1979, writ dism'd). While no particular form or words are required by Rules 185 and 93(10) for a verified denial, the defendant's sworn answer must sufficiently deny the account upon which plaintiffs claim is founded. Canter, 787 S.W.2d at 74.
Here, Scott established its prima facie case by pleading that:
In the usual course of business, Plaintiff sold materials and provided labor and services, to defendant as shown on the attached statement of account. Defendant accepted each item and became bound to pay Plaintiff its designated price, which is a reasonable, usual, and customary price for such materials and labor. The statement of account, marked `Exhibit A,' is incorporated in this petition by reference as if copied herein verbatim. This account represents a transaction of which a systematic record has been kept.
Appended to the petition was an affidavit in which, among other things, the affiant stated that the account attached to the petition was "within my personal knowledge just and true. The total amount of the account is due Plaintiff by Defendant, and all just and lawful offsets, payments, and credits have been allowed." Cooper in his amended answer asserted only a general denial and various defenses. Neither in the answer itself nor in his accompanying affidavit did he set out any language that could be taken as a verified special denial of the account in order to put Scott's claim at issue. In fact, the only rather remote reference to the account is in Cooper's affidavit where he stated:
During this time, Scott has refused on several occasions to repair the pipeline system, and the major repars [sic] have been done by myself or have been paid for out of my pocket. The cost of repairs and the loss to my 1990 cotton crop far exceed any amount otherwise due and owing for the pipeline system.
Although the pleading requisites have been somewhat relaxed from what was formerly required, Cooper's answer and affidavit do not constitute a sworn special denial.
As his third ground for reversal, Cooper claims that the trial court erred in considering defunct and irrelevant rules of law. The argument here is that since the trial court ruled that Cooper's answer and affidavit did not meet the requirements of Rules 185 and 93(10), the court must have been relying on the pre-1984 version of Rule 185 which required the use of the "magic words" "each and every item is not just or true." There is nothing in the record to indicate that the trial judge was basing his ruling on the previous version of Rule 185 or on the failure of Cooper to utilize the "magic words".
Finally, Cooper asserts error by the trial court in failing to consider genuine issues of material fact raised by his alternate defensive theories. As previously indicated, in addition to his general denial, Cooper pled several defenses including *747 breach of express and implied warranties, DTPA violations and negligence.
Where a defendant does not file a sworn denial to a suit based upon a sworn account as provided for in Tex.R.Civ.P. 185, the account is taken as true and a prima facie case is established. Rizk v. Financial Guardian Insurance Agency, Inc., 584 S.W.2d 860 (Tex.1979). In such a case, the defendant may not dispute the receipt of the goods sold or services rendered or the correctness of the stated charges. Id. at 862; 2 McDonald, Texas Civil Practice § 7.31 (1982). Certainly, properly pled affirmative defenses may be raised. DeWees v. Alsip, 546 S.W.2d 692 (Tex.Civ.App.El Paso 1977, no writ). We see under footnote 5, Section 7.31 of Texas Civil Practice many defenses which can be raised. These include payment, limitations and illegality among others. None of these defenses challenge the correctness of the account, they admit the account but say there can be no collection for the reason stated in the affirmative defense.
In this case, the defendant would contend that there can be no collection because the goods sold were defective and those defects resulted in a breach of express and implied warranties, negligence and DTPA violations. If the goods were defective when sold, then the account as stated could not be correct and the defendant has a complaint about the quality of the items sold and the correctness of the account or, in effect, the charges for defective goods. It is inconsistent to say the account is correct and cannot be contested, without a sworn denial, and yet say a defense can be raised that the goods sold are defective. If there was a defect, the account is not correct and that issue can only be raised by a sworn denial that says the amount charged for a particular item is not due and owing because the goods as delivered or services rendered were defective and did not have the value charged in the invoice which forms the basis for the sworn account.
We hold that if a defendant admits the account, such defendant can defend that it has paid that account or raise any other defense that is not inconsistent with a true and just account for goods or services which were delivered as ordered and without any defects, but cannot say that the goods were defective. Certainly the DTPA has no application in a defense to a sworn account. That statute creates a cause of action, not a defense, and in this case no affirmative relief was sought for a breach of that statute. Any claim that the irrigation system was defective and that such defects resulted in a breach of warranty or that there was negligence in the manufacture or installation of the system is a claim the system was defective and contrary to the admitted correctness of the stated charges.
The Appellant's point of error is overruled. The judgment of the trial court is affirmed.
KOEHLER, Justice, dissenting.
I respectfully dissent. All of Cooper's defensive pleadings were to the effect that though he was not disputing items in the account itself, he did not owe the amount claimed by Scott for the reason that the materials and workmanship were defective. Cooper's assertions[3] were affirmative defenses since, if supported by evidence, they would establish independent reasons why Scott should not recover rather than tend to rebut the factual propositions asserted in Scott's claim. An affirmative defense usually accepts the existence at one time or another of a prima facie case but alleges propositions which, if established, would defeat the claim. 2 McDonald, Texas Civil Practice § 7.34.1 (1982). See Bracton Corporation v. Evans Construction Company, 784 S.W.2d 708, 710 (Tex.App.Houston [14th Dist.] 1990, no writ); W.R Grace Company v. Scotch Corporation, Inc., 753 S.W.2d 743, 746 (Tex.App.Austin 1988, writ denied).
Although a defendant who fails to file a sworn denial that meets the requirements of Rule 185 is not permitted to dispute the receipt of the items or the services, or the correctness of the charges stated in the account, he is not prevented from defending *748 on other grounds raised by his pleadings. Rizk v. Financial Guardian Insurance Agency, Inc., 584 S.W.2d 860, 863 (Tex.1979); Wauson and Williams, Architects, Inc. v. Reeder Development Corporation, 572 S.W.2d 24, 26 (Tex.Civ.App. Houston [1st Dist.] 1978, no writ); Airborne Freight Corporation v. CRB Marketing, Inc., 566 S.W.2d 573, 574 (Tex. 1978); DeWees v. Alsip, 546 S.W.2d 692, 694 (Tex.Civ.App.El Paso 1977, no writ); 2 McDonald, Texas Civil Practice § 7.31 (1982). Notwithstanding the fact that the trial court was correct in finding that Scott had established a prima facie case on its sworn account, it erred by granting the summary judgment on the whole case, thus denying Cooper the right to a trial on his defensive theories.[4]
Accordingly, I would reverse the summary judgment and remand the cause for trial on the merits of Cooper's affirmative defenses for a reconsideration of the attorney's fees, if any, to be awarded to Scott.
NOTES
[1] Tex.R.Civ.P. 185 provides in relevant part: When any action or defense is founded upon an open account or other claim for goods, wares and merchandise, including any claim for a liquidated money demand based upon written contract ... or is for ... labor done or labor or materials furnished, on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall file a written denial, under oath. A party resisting such a sworn claim shall comply with the rules of pleading as are required in any other kind of suit, provided, however, that if he does not timely file a written denial, under oath, he shall not be permitted to deny the claim, or any item therein, as the case may be.
[2] Tex.R.Civ.P. 93 in relevant part provides as follows:
A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit.
....
10. A denial of an account which is the foundation of the plaintiffs action, and supported by affidavit.
[3] Cooper's defensive pleadings are similar in effect to a plea of partial failure of consideration or a plea of confession and avoidance. They could well have been pled as counterclaims rather than as affirmative defenses.
[4] We agree with the logic of Chief Justice Osborn's reasoning in his opinion, to the effect that if the goods or services were defective at the time they were sold or delivered, then a defendant must attack the sworn account itself by filing an appropriate sworn denial. A plain reading of Rule 185 would seem to support this result. A plaintiff in a sworn account suit swears that the claim is "just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed...." When an answering defendant pleads an affirmative defense such as accord and satisfaction, failure of consideration, limitations or any other matter constituting an avoidance (Rule 94), he may not be contesting the accuracy of the account or the receipt of the items or services, but he is certainly saying the account is either not just or true or that it is not due. Yet, the courts in the cases cited in both the opinion and dissent have held that defenses such as accord and satisfaction, failure of consideration, payment and limitations can be raised in spite of the failure of the defendant to file a proper sworn denial. Cooper's defenses of breach of warranty and negligence are similar to defenses of failure of consideration or confession and avoidance.
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998 So. 2d 128 (2008)
LUTZ OIL & GAS, L.L.C., Jordan Operations, Inc., Ronald J. Lutz, Jr. and Paula M. Lutz
v.
PRIDE ENERGY COMPANY, Lobrano and Lobrano, L.L.C., and Francis Jay Lobrano.
No. 2007-CA-1291.
Court of Appeal of Louisiana, Fourth Circuit.
October 15, 2008.
Timothy W. Cerniglia, Colvin, Weaver & Cerniglia, L.L.C., Metairie, LA, Pamela N. Breedlove, Colvin Weaver & Cerniglia, *129 L.L.C., Shreveport, LA, for Plaintiffs/Appellants, Lutz Oil and Gas, L.L.C., Jordan Operations, Inc., Ronald J. Lutz, Jr., and Paula M. Lutz.
James H. Gibson, Allen & Gooch, Lafayette, LA, for Defendants/Appellees, Lobrano and Lobrano, L.L.C., and Francis Jay Lobrano.
Court composed of Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge Pro Tempore MOON LANDRIEU.
MOON LANDRIEU, Judge Pro Tempore.
Plaintiffs Ronald J. Lutz, Jr.; Paula M. Lutz; and Jordan Operations, Inc. ("Jordan"), appeal the district court's judgment insofar as it granted the exception of no right of action asserted by defendants Lobrano and Lobrano, LLC, and Francis Jay Lobrano ("the Lobrano defendants") dismissing with prejudice these plaintiffs' claims against the exceptors. For the reasons that follow, we reverse and remand.
FACTS AND PROCEEDINGS BELOW
The three plaintiffs that are appellants herein, as well as Lutz Oil & Gas Company, LLC ("Lutz Oil") filed suit February 10, 2006, against the Lobrano defendants and Pride Energy Company ("Pride"). The petition alleges that in the summer of 2003, plaintiffs Ronald and Paula Lutz met with and retained attorney Francis Jay Lobrano to advise them and perform legal work connected to the Lutzes' contemplated purchase of an oil and gas leasehold interest from Pride. At the time, the Lutzes already owned Jordan, a subchapter S corporation which had equipment and resources they believed would be useful in working the leases they were considering buying from Pride. Mr. Lobrano also advised Jordan through its officer, Paula Lutz. Pursuant to Mr. Lobrano's advice, the Lutzes formed a new corporation, Lutz Oil, to acquire Pride's leasehold interest. According to the plaintiffs' petition, Pride had represented to Ronald Lutz that it owned a 100% working interest in the leasehold serviced by two particular wells and a 99.6% interest in the leasehold serviced by a third well, but Pride did not warrant title to the leases. The petition further alleges that, because the Lutzes had never before acquired an oil and gas lease, they relied upon Mr. Lobrano to "advise [them] legally as to all pertinent issues in the acquisition of the oil and gas leasehold interests from Pride, and to handle all legal issues relating to the proposed acquisition, including any research or investigation required to confirm that plaintiffs would receive the net revenues and working interest as represented by Pride, and to form Lutz Oil and Gas, as the entity which would actually purchase the interests of Pride."
The petition goes on to allege that Mr. Lobrano, after several meetings with Paula Lutz, assured plaintiffs that he had performed all necessary and appropriate research and had determined that Pride had clear title to the leasehold as it had represented. On October 23, 2003, the plaintiffs executed before Mr. Lobrano an Assignment and Bill of Sale between Pride and Lutz Oil. On February 10, 2005, after the Lutzes allegedly had invested substantial amounts of personal and borrowed funds into re-working the leasehold interest and had diverted Jordan's business, equipment and resources exclusively into the re-working effort, Paula Lutz was contacted by a representative of Blenheim Energy, Inc., who advised her for the first time that Blenheim actually owned a 56% working interest in the leasehold.
The Lutzes then retained other counsel to ascertain the accuracy of the Blenheim *130 claim and discovered that Pride, by means of a 1999 act of sale, had acquired only a 44% working interest in the leasehold; therefore, Lutz Oil, by means of its 2003 acquisition from Pride, owned only a 44% interest rather than the 99-100% interest the plaintiffs had believed they were purchasing. Plaintiffs' petition alleges that Pride is liable for a knowing misrepresentation of the facts, and that the Lobrano defendants are liable for negligent legal representation on account of Mr. Lobrano's failure to discover the true extent of Pride's ownership interest.
The Lobrano defendants filed exceptions of improper cumulation of actions, no cause of action and no right of action, which were heard on April 5, 2007. By judgment dated June 15, 2007, the district court severed the plaintiffs' claims against Pride from those against the Lobrano defendants, thereby pretermitting the exception of improper cumulation; granted the exception of no right of action as to the claims asserted by Ronald Lutz, Paula Lutz and Jordan, but not as to the claims of Lutz Oil; denied as moot the exception of no cause of action; and dismissed with prejudice the claims of Ronald Lutz, Paula Lutz and Jordan against the Lobrano defendants. The three plaintiffs whose claims were dismissed now appeal the granting of the exception of no right of action and the dismissal of their claims.
DISCUSSION
The sole issue on appeal is whether the district court erred by finding that the appellants have no right of action against the Lobrano defendants.
Whether a plaintiff has a right of action is a question of law subject to de novo review. Oakville Community Action Group v. Plaquemines Parish Council, 05-1501, p. 3 (La.App. 4 Cir. 9/27/06), 942 So. 2d 1152, 1155. The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. Badeaux v. Southwest Computer Bureau, Inc., 05-612, 05-719, p. 6 (La.3/17/06), 929 So. 2d 1211, 1217.
Although the trial court did not issue reasons for judgment in the instant case, the transcript of the hearing reflects that the trial court granted the exception because it determined that Ronald and Paula Lutz, as shareholders of the corporation Lutz Oil, do not have a separate or individual right of action against third parties (in this case, the Lobrano defendants) for wrongs allegedly committed against or causing damage to the corporation; only the corporation has a right of action.[1] See, e.g.: Glod v. Baker, 02-988, p. 12 (La.App. 3 Cir. 8/6/03), 851 So. 2d 1255, 1264.
The appellants argue that the trial court's determination is wrong because Ronald and Paula Lutz (in her individual capacity as well as in her capacity as an officer of Jordan) sought and received legal advice from Mr. Lobrano prior to the formation of Lutz Oil. In fact, at the time the Lutzes procured the services of Mr. Lobrano, Lutz Oil did not exist. In their petition, the Lutzes specifically allege that, based upon Mr. Lobrano's advice, they invested substantial amounts of personal funds and mortgaged equipment owned by Jordan in order to purchase Pride's leasehold interest, and further that, if the Lutzes had known that Pride's interest was not 100%, they would not have acquired the interest (and, it follows, would not have had to form Lutz Oil).
*131 Our review of the petition reveals that the plaintiffs have stated a cause of action in legal malpractice against the Lobrano defendants. On appeal, the pertinent question is whether the trial court was correct in deciding that Lutz Oil is the only plaintiff entitled to assert that cause of action.
The elements of the tort of legal malpractice are: (1) the existence of an attorney-client relationship; (2) negligent representation by the attorney; and (3) loss to the client caused by that negligence. Francois v. Andry, 05-388, pp. 6-7(La.App. 4 Cir. 4/5/06), 930 So. 2d 995, 998 (citing Francois v. Reed, 97-1328, p. 4 (La.App. 1 Cir. 5/15/98), 714 So. 2d 228, 229-230). The existence of an attorney-client relationship turns largely on the client's subjective belief that it exists. Id. (citing Louisiana State Bar Association v. Bosworth, 481 So. 2d 567, 571 (La.1986)).
In the instant case, based upon the facts alleged in the petition and those adduced at the hearing, Ronald and Paula Lutz clearly had established an attorney-client relationship with Mr. Lobrano prior to the formation of Lutz Oil. Moreover, Mr. Lobrano was aware at the time the Lutzes contacted him that they owned a subchapter S corporation, namely Jordan, for whose benefit they also were seeking advice. Finally, the petition alleges that Mr. Lobrano's negligence caused losses to the Lutzes and Jordan that are not the same as the losses allegedly suffered by Lutz Oil. For example, the Lutzes invested personal funds, incurred fees for work done by Mr. Lobrano, and mortgaged equipment owned by Jordan. For these reasons, the instant case is not analogous to the shareholder actions apparently relied upon by the trial court in granting the exception of no right of action. In view of the record, we conclude that Ronald Lutz, Paula Lutz and Jordan each have a right of action to assert legal malpractice against the Lobrano defendants. We therefore find that the trial court erred by granting the exception of no right of action and dismissing appellants' claims.
CONCLUSION
Accordingly, we reverse the trial court's judgment insofar as it grants the exception of no right of action. We reinstate the appellants' claims and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
NOTES
[1] The record does not reveal the basis for the trial court's determination that Jordan Operations, Inc., also has no right of action against the Lobrano defendants.
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998 So. 2d 916 (2008)
Amy BROSSETT, et al.
v.
Melody HOWARD, et al.
No. 08-535.
Court of Appeal of Louisiana, Third Circuit.
December 10, 2008.
*921 Joseph J. Bailey, Provosty, Sadler & deLaunay, Alexandria, LA, Barry Ray Laiche, Provosty, Sadler, Marksville, LA, for Plaintiffs/Appellees, Amy Brossett, et al.
Ian Alexander Macdonald, Longman Russo, Lafayette, LA, for Defendants/Appellants, Progressive Security Ins. Co., Melody Howard.
Court composed of JOHN D. SAUNDERS, JAMES T. GENOVESE, and CHRIS J. ROY, Judges.
ROY, Judge pro tempore.[1]
This is an appeal brought by defendants, Melody Howard (Howard) and her insurer, Progressive Insurance Company (Progressive), of the judgment rendered after the jury trial of a personal injury and wrongful death action. The plaintiffs, Amy Brossett and her daughter, Emily Brossett Porche (Emily), were awarded general and specific damages, including damages for the death of Brossett's husband and Emily's father, Craig Brossett. The defendants argue that the damage awards are unsupported by the evidence and should be reversed and that Emily's claims should be dismissed because they were prescribed and the citation to the amended petition asserting her claims was never properly served. The defendants have also filed with this court an Exception of No Right of Action, asserting that Amy Brossett lost her standing to seek damages through this action when she filed for bankruptcy while the lawsuit was pending. Amy Brossett has answered the appeal, asking this court to reverse the jury's denial of exemplary damages.
For the following reasons, the Exception of No Right of Action is overruled and the judgment of the trial court is affirmed, as amended.
ISSUES
1. Should the Exception of No Right of Action, raised for the first time on appeal, be sustained due to the failure of Amy Brossett's bankruptcy trustee to be substituted as the plaintiff in this action?
2. Was Emily's claim for wrongful death damages prescribed when it was filed years after the commencement of the action?
3. Should Emily's damage awards have been excluded from the judgment due to plaintiffs' failure to serve the defendants with a citation of the suit?
4. Did the jury abuse its discretion in awarding to Emily $500,000.00 in damages *922 for the wrongful death of her father despite the fact that she was an infant when he died?
5. Did the jury abuse its discretion in awarding future medical expenses in the amount of $50,000.00 to Amy Brossett, when the only expert testimony offered regarding the value of future medical expenses was $36,052.00?
6. Were the awards to Amy Brossett of $750,000.00 for her pain and suffering and $75,000.00 for her loss of enjoyment of life abusively high considering the evidence presented?
7. Did the jury abuse its discretion in awarding to Amy Brossett a $40,000.00 disability award, considering the evidence presented of her status of recovery from her injuries?
8. Did the jury abuse its discretion in awarding Amy Brossett and her daughter, a total award of $500,000.00 for loss of future economic support, when the expert testimony presented at trial quantified the loss as $394,531.00?
9. Did the jury abuse its discretion in failing to award exemplary damages to the plaintiffs when it was stipulated that Howard was intoxicated and at fault in causing the accident and resulting injuries?
FACTUAL BACKGROUND
On March 7, 1998, shortly after midnight on Louisiana Highway 107, Melody Howard drove her 1992 Toyota 4-Runner into the Brossetts' 1995 Pontiac Grand Am, causing the death of Craig Brossett and causing serious injuries to Amy Brossett. It is undisputed that Howard was legally intoxicated at the time of the crash. Since approximately 4:00 p.m. that day, she had been celebrating her fortieth birthday with friends and co-workers, beginning with drinks and appetizers at a local restaurant. The evening ended near midnight at a local hotel's bar. Although Howard has no memory of leaving the hotel's bar, it is undisputed that she was driven by two of her co-workers to her car, which was parked at another location and was left to drive herself home.
Howard was alone in her vehicle and attempting to drive herself home when the accident happened. She had fallen asleep at the wheel and was seen by following drivers, swerving multiple times from her southbound lane of travel across the northbound lanes and back. Immediately prior to the accident occurring, she had crossed the entire highway and was driving on the shoulder of the northbound side of the highway, facing oncoming, northbound traffic.
The Brossetts, who were traveling north on Highway 107, were returning home after having had dinner with friends; they had not consumed any alcohol that evening. Amy Brossett was driving, as her husband, Craig, lay reclined and sleeping in the front passenger seat. As Howard's vehicle and the Brossetts' vehicle approached, Howard woke up and jerked her steering wheel into the oncoming traffic, striking the Brossetts' vehicle. She denied seeing the Brossetts' vehicle until immediately before the impact.
Craig Brossett died in the vehicle without regaining consciousness. Amy Brossett suffered multiple injuries, the most serious of which were the fractures to her right hip, a broken femur, an open fracture of the kneecap, and multiple fractures to, and a dislocation of, her right foot. She was pinned in the vehicle under the wreckage for well over an hour. While efforts were being made to extricate Amy Brossett from the vehicle, she remained conscious and suffered excruciating pain.
*923 Results from toxicology tests performed on the night of the accident resulted in Howard being arrested and charged with Vehicular Homicide for Craig Brossett's death and also First Degree Vehicular Negligent Injury for the serious injuries caused to Amy Brossett. Howard subsequently submitted a "blind plea" to the court in that proceeding. That is, she voluntarily pled guilty to the charges with no pre-agreement as to sentencing.
Craig was twenty-four years old when he died. Amy was twenty-three. The Brossetts had been married since November of 1996 approximately sixteen months at the time of the accident and had a nine-month old daughter, Emily, who was being babysat by her grandmother that evening.
Amy Brossett filed a Petition on behalf of herself and "the Estate of Craig Brossett" on October 23, 1998, originally seeking multiple general and specific damages for her personal injuries, as well as wrongful death and survival damages[2] due to her husband's death. On January 19, 2007, Amy Brossett filed her Fifth Supplemental and Amending Petition, adding their daughter, Emily Brossett Porche,[3] as a plaintiff in the action. The parties jointly stipulated to the court that the claims of Emily were not prescribed and would related back to the date of the filing of Amy Brossett's original petition. The trial court allowed the amendment and filing of the petition.
Also prior to the trial of this matter, Howard filed a stipulation accepting 100 percent of the fault and sole responsibility for the accident. She further stipulated that Craig Brossett died from the injuries he sustained in the accident. Accordingly, this case was tried before a jury, on the issue of damages only, from October 23, 2007 through October 25, 2007. The jury's awards, which were subsequently rendered by the trial court in its Final Judgment, were as follows:
For the injuries to Amy Brossett
Past medical expenses $ 81,869.14
(credit=
$30,960.00)[4]
Future medical expenses $ 50,000.00
Past lost wages $ 6,500.00
Physical pain & suffering & mental
anguish $750,000.00
Loss of enjoyment of life $ 75,000.00
Disability $ 40,000.00
Loss of consortium to Emily
(For her mother's injuries) $ 5,000.00
For the wrongful death of Craig Brossett
For loss of past economic support
for Amy and Emily $173,000.00
For loss of future economic support for
Amy and Emily $500,000.00
Loss of love, affection, companionship,
grief and anguish to Amy $250,000.00
Loss of love, affection, companionship,
grief, and anguish to Emily $500,000.00
Do you find that an award of exemplary damages should be made in this case?
Yes____ No XX
Progressive and Howard have appealed the judgment, asserting that the jury abused its discretion in quantifying the amount of many of the awards rendered. They assert that $50,000.00 for future medical expenses is unsupported by the evidence produced at trial, which only established that $36,052.00 in future medical *924 expenses might be warranted. They argue that the general damage awards to Amy Brossett of $750,000.00 for pain and suffering and $75,000.00 for loss of enjoyment of life are abusively high. The defendants argue that these awards are a consequence of the trial court disallowing the presentation to the jury of Amy Brossett's statement in a letter to Howard in 2005 that she was "happy." Moreover, the defendants contend that the awards are not justified because Amy Brossett failed to introduce any evidence of her loss of the ability to resume many of the activities and/or the recreational lifestyle she enjoyed prior to the accident. Additionally, the defendants contend that there is a lack of evidence of Amy Brossett suffering from any physical or mental impairment to support granting her a disability award of $40,000.00. Finally, they appeal the joint award to Amy Brossett and Emily of $500,000.00 for their loss of future economic support due to Craig's death, arguing that the only evidence presented at trial of this loss totaled $394,531.00.
Regarding Emily's awards, it was argued that the $500,000.00 general damage award for the loss of her father's love, affection, companionship, and for her grief and anguish was abusively high due to the fact that she was nine months old at the time of his death, and she lacked a requisite awareness of the loss suffered. Further, the defendants contend that Emily's claims, which were added nine years after the accident, were prescribed and should be dismissed. The defendants also argue that Emily's claims should be dismissed because they did not receive proper service of the citation of the amended petition that added her claims to the action. The defendants have also filed a peremptory Exception of No Right of Action with this court, seeking the dismissal of the entire action. The exception challenges Ms. Brossett's capacity to pursue this lawsuit after she filed a petition to be declared bankrupt in federal court in 2004, years after this suit was filed.
Amy Brossett has answered the appeal, asserting that the jury abused its discretion in failing to award exemplary damages pursuant to La.Civ.Code art. 2315.4, which authorizes exemplary damages for injuries caused by an intoxicated defendant.
LAW AND DISCUSSION
Exception of No Right of Action
The defendants' peremptory exception alleges that Ms. Brossett instituted a Chapter 7 bankruptcy proceeding while her action was pending. Once the action was filed, the defendants contend that she no longer possessed the right to pursue the pending claims for damages. Rather, according to the defendants, from the time the petition for bankruptcy was filed, the bankruptcy trustee became exclusively vested with the right to pursue those claims. Therefore, the defendants assert that because the trustee was never substituted as the plaintiff in these proceedings, the suit should be dismissed.
Amy Brossett argues that the exception of no right of action should be overruled because she was authorized by the bankruptcy court to continue pursuit of her claims in the pending litigation. She alternatively argues that the exception should be denied because proof of the ground of the exception does not appear in the record, as is required by La.Code Civ.P. art. 2163.[5] For the following reasons, the exception is overruled.
*925 The peremptory exception of no right of action questions a plaintiff's right to pursue the remedy being sought:
An exception of no right of action is a threshold procedural device used to terminate a suit brought by a person who has no legally recognized right to enforce the right asserted. Unless otherwise provided by law, an action can only be brought by a person having a real and actual interest in the matter asserted. LSA-C.C.P. art. 681.
Joseph v. Hosp. Serv. Dist. No. 2 of Parish of St. Mary, 05-2364, p. 5 (La. 10/15/06), 939 So. 2d 1206, 1210.
Louisiana Code of Civil Procedure article 2163 states that the exception of no right of action can be considered for the first time on appeal, but only if it is filed prior to the case being submitted for a decision, and "proof of the ground of the exception appears of record." Both parties agree that the only reference in the record to Amy Brossett's bankruptcy proceedings is contained in the text of the trial court pleading styled, Second Request for Trial Date, that was filed by her attorney in 2006. Therein her attorney stated that "[t]he undersigned has obtained permission from the bankruptcy court to proceed in this matter." Our review of the record confirms that this statement by Amy Brossett's counsel is the only reference in the record to her bankruptcy action, and it is accurate that the bankruptcy trustee was never substituted as a plaintiff in the personal injury and wrongful death action that is at issue.
We recognize that, generally, only a trustee has a right to pursue a debtor's cause of action that existed at or prior to commencement of a bankruptcy proceeding:
11 U.S.C.A. § 323 makes the trustee the representative of the bankrupt's estate, and grants him the capacity to sue and be sued. 11 U.S.C.A. § 541 provides that the commencement of a bankruptcy case creates an estate, which includes all legal and equitable interests of the bankrupt in property "as of the commencement of the case." 11 U.S.C.A. § 704 obligates the trustee to collect and administer the bankrupt's estate. Thus, all legal and equitable interests of the bankrupt in property vests in the trustee from the time the bankruptcy is filed. Thereafter, only the trustee can act to recover the assets of the bankrupt. It is the trustee, not the bankrupt, who has the legal capacity to sue upon a cause of action for damages arising prior to the filing of the petition in bankruptcy.
Jones v. Chrysler Credit Corp., 417 So. 2d 425, 426 (La.App. 1 Cir.), writ denied, 420 So. 2d 456 (La.1982), cert. denied, 459 U.S. 1114, 103 S. Ct. 747, 74 L. Ed. 2d 966 (1983) (emphasis added). However, we also recognize that a trustee has the authority to allow the bankruptcy plaintiff to proceed, via his or her own counsel, in any such pending litigation. Scarborough v. Duke, 532 So. 2d 361 (La.App. 3 Cir.1988); Johnson v. Best Mfg. Co., Inc., 263 So. 2d 436 (La.App. 1 Cir.1972).
We find that under the circumstances of this particular case, in which there has been a final judgment rendered after the conclusion of a multi-day jury trial, following almost ten years of litigation, equity and judicial economy entitles us to consider Amy Brossett's attorney's statement that was made in the Motion for New *926 Trial, since these attestations clearly have evidentiary value pertinent to the determination of this peremptory exception. See Ott v. Richard, 556 So. 2d 147 (La.App. 5 Cir.1990) (finding that judicial expediency and economy supported the court's consideration of an attorney's admission made during argument to the trial court of the fact of his client's filing a bankruptcy petition in federal court, although no tangible evidence as to the details of the bankruptcy was filed in evidence).
Specifically, we find that Amy Brossett's attorney's statement infers that she was involved in personal bankruptcy proceedings while the personal injury and wrongful death action was pending. Moreover, because the attorney referenced his receipt of approval from the bankruptcy court to proceed, it further infers an acquiescence of the fact that Amy Brossett no longer possessed the standing to pursue the tort action as a consequence of her initiating the bankruptcy action. We find that this statement, consequently, negates Amy Brossett's claim, made in opposition to the exception, that there is nothing contained in the record to support the basis of the exception and that it should, therefore, not be considered by this court. See La. Code Civ. P. art. 2163.
However, the statement also brings to a quick close, our review of the exception. Amy Brossett's attorney's attestation to the trial court that he received the bankruptcy court's approval to proceed to trial, notwithstanding the pending bankruptcy, was accepted as true by the trial court and was not challenged prior to trial by opposing counsel. Considering this, and in efforts to promote judicial expediency and economy under the particular facts of this case, the exception of no right of action is overruled.
Prescription of Emily Brossett Porche's Claims and Service of Process
The defendants contend that the trial court erred by allowing the addition of Emily Brossett Porche's claim for wrongful death damages nine years after the suit was initially filed by her mother. The suit was filed in October 1998, and at the time, Emily was not named as a plaintiff in the action. It is argued that Emily's claims were prescribed and could not relate back to the date of the timely filing of Amy Brossett's first petition because they constituted an unexpected assertion of substantial claims that Amy Brossett knew or should have known about when she filed the first petition. The defendants argue that it is inexplicable that although multiple amendments were made to the petition over the years, it was not until 2007 that Amy Brossett moved for leave of court to add Emily as a plaintiff in a Fifth Supplemental and Amending Petition. They also argue in this appeal that they were never properly served with the citation to the Fifth Supplemental and Amending Petition after the court approved its filing, and for this reason as well, Emily's claims should be dismissed.
The record reflects that during the hearing held on April 16, 2007, on Amy Brossett's Motion for Leave to File Fifth Supplemental and Amending Petition, counsel for defendants and Amy Brossett entered a joint stipulation in regard to the filing of the amended petition. The court's minutes recite the joint stipulation as follows: "the Fifth Supplemental and Amending Petition will be allowed; the claim of Emily Brossett is not prescribed...." A judgment was thereafter rendered in accordance with the stipulation and the amendment was allowed by the trial court. Because of this stipulation, we find that the defendants are precluded *927 from now asserting that the claims are prescribed, for the following reasons:
A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it. A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. Stipulations between the parties in a specific case are binding on the trial court when not in derogation of law. Such agreements are the law of the case. It is well-settled that a stipulation amounts to full proof against those who made it. It has the effect of withdrawing a fact from issue and disposing wholly with the need for proof of that fact.
Parish of St. Charles v. R.H. Creager, Inc., 07-676 (La.App. 5 Cir. 2/6/08), pp. 9-10, 975 So. 2d 742, 747-48, writ denied, 08-777 (La.6/6/08), 983 So. 2d 918 (footnotes omitted). Accordingly, we find that this exception to the filing of Emily's claims on the basis of prescription is meritless.
Additionally, we find no merit to the defendants' assertion that Emily's claims, as set forth in the Fifth Supplemental and Amending Petition, should be dismissed because of their failure to receive service of a citation for the amended suit. The record reflects that immediately prior to the commencement of trial, counsel for the defendants orally entered a general denial to all of the claims asserted in the final amended petition and stated to the court that all of the issues were joined. There was no exception regarding insufficient service of citation filed before the defendants' general denial was entered into the record. Louisiana Code of Civil Procedure articles 925 and 928 require that the declinatory exception of insufficiency of citation be pled prior to or in the answer. This was not done. Accordingly, we find that these exceptions were waived and may not now be raised before this court on appeal.
Future Medical Expenses
Amy Brossett was awarded future medical expenses in the amount of $50,000.00 by the jury. The defendants argue, first, that this value is too high since the only evidence of the value of any future medical expenses was in the amount of $36,052.00, which represented her expert economist's calculation of the present value of the only future medical treatment that might be needed hip replacement surgery. Next they argue that no evidence was presented that definitively established that Amy Brossett would need this procedure in the future or that she would choose to undergo the procedure in the future. Rather, they contend that the diagnosis for Amy Brossett is the development of degenerative arthritis in her injured hip in twenty to twenty-five years. The defendants argue that the effect this would have on the possible need for hip replacement surgery depends on Amy Brossett's future weight and activity levels, which are unknown. Accordingly, it is argued that the opinion offered of a need for a future hip replacement is speculative and, as such, cannot serve as a basis for the award of future medical expenses.
Amy Brossett contends that the award is supported by the testimony presented by one of her treating physicians, orthopedic surgeon, Dr. Vanda Davidson (Dr. Davidson), and her expert economist, Dr. Roy Douglas Womack (Dr. Womack). Dr. Davidson opined that it was more probable than not that Amy Brossett would need the hip replacement surgery in the future. He also testified that "there conceivably could be some limited surgeries on the foot and on the knee down the road," but stated that those would be less likely than he anticipated the hip surgery would be.
*928 Amy Brossett argues that Dr. Womack calculated that the conservative present value of a future hip replacement surgery, alone, would be $36,052.00, based on the current day costs associated with that surgery. Dr. Womack also took into consideration the lost wages that would be incurred for six months of work that Ms. Brossett would necessarily miss as a consequence of undergoing such a surgery. He calculated a conservative estimate of this loss by taking into consideration Amy Brossett's current full-time pay rate of $6.25 per hour and determined that she could face a loss of income in the amount of $6,500.00 if she were to undergo the surgery. Therefore, although the total estimated future medical expenses, he concluded, would be $42,552.00, she argues that the jury's award is a reasonable award based on the facts presented.
Future medical expenses are reviewed by an appeals court pursuant to the manifest error standard of review. Armentor v. Safeway Ins. Co., 07-805 (La. App. 3 Cir. 12/19/07), 972 So. 2d 444 (citing Cormier v. Colston, 05-507 (La.App. 3 Cir. 12/30/05), 918 So. 2d 541). A plaintiff seeking an award for future medical expenses is required to establish those expenses "with some degree of certainty." Armentor, 972 So.2d at 448. The plaintiff is required to show that it is more probable than not that the expenses will be incurred. Id. We have held that "[a]wards will not be made in the absence of medical testimony that they are indicated and setting out their probable cost." Id. Moreover, as we stated in Veazey v. State Farm Mut. Auto Ins. Co., 587 So. 2d 5, 8 (La.App. 3 Cir.1991), "an award for future medical expenses cannot be based on mere speculation of the jury. Much stronger proof, such as medical testimony of the specific expenses to arise, should be required for such an award."
Given the opinion of Dr. Davidson that it was more probable than not that Amy Brossett would need hip replacement in the surgery due to her likely development of degenerative arthritis in that hip, but that he opined that it was less likely that the other medical surgeries mentioned would be needed, we find that the $50,000.00 award for future medical expenses is not reasonably supported by the record. Accordingly, we reduce the award of future medical expenses to $42,552.00.
General Damages
Standard of Review
General damages are defined as those awards that are "inherently speculative in nature and cannot be fixed with mathematical certainty." Wainwright v. Fontenot, 00-492, p. 6 (La.10/17/00), 774 So. 2d 70, 74 (citation omitted). The assessment of the appropriate amount of these damages is, therefore, a question of fact to be determined by a judge or jury. Youn v. Maritime Overseas Corp., 623 So. 2d 1257 (La.1993). The fact finder's determination is accorded "great deference" on appeal, therefore, the appeal court's role is to review the exercise of that discretion. Youn, 623 So. 2d 1257. Moreover, "[t]he facts submitted as evidence must be reviewed by the appellate court in the light most favorable to the judgment rendered." Venissat v. St. Paul Fire & Marine Ins. Co., 06-987, p. 17 (La.App. 3 Cir. 8/15/07), 968 So. 2d 1063, 1074 (citing Arceneaux v. Domingue, 365 So. 2d 1330 (La.1978)). The supreme court has explained how to apply the standard of review for abuse of discretion:
Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.
*929 In Reck [v. Stevens, 373 So. 2d 498 (La. 1979) ], this court disapproved the appellate court's simply reviewing the medical evidence and then concluding that the award for those injuries was excessive, without taking into consideration the particular effect of the particular injuries on the particular plaintiff. This court further disapproved of the use of a scale of prior awards in cases with generically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the facts and circumstances peculiar to the particular case. The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the "much discretion" of the trier of fact. Gaspard v. LeMaire, 245 La. 239, 158 So. 2d 149 (1963); Ballard v. National Indem. Co. of Omaha, Neb., 246 La. 963, 169 So. 2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So. 2d 127 (1967). Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Industries, Inc., 341 So. 2d 332 (La.1976); Bitoun v. Landry, 302 So. 2d 278 (La. 1974); Spillers v. Montgomery Ward & Co., 294 So. 2d 803 (La.1974).
The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158 So. 2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So. 2d 332 (La.1976), and through Reck to the present case is that the discretion vested in the trier of fact is "great," and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.
Youn v. Maritime Overseas Corp., 623 So. 2d 1257, 1260-61 (La.1993). We shall apply this standard to the multiple general damage awards being challenged by the defendants on appeal.
Pain and Suffering
The defendants argue that the jury's award of $750,000.00 to Amy Brossett for pain and suffering is abusively high and should be reduced to $300,000.00. The defendants claim that the jury's award does not reflect a consideration of Amy Brossett's "remarkable" recovery from her injuries, but rather reflects an impermissible award based on sympathy. The defendants contend that the evidence presented showed that Amy Brossett was walking and able to return to work six months after the accident and that within two years she had completed all medical treatment and had been released to return to work without restriction. The defendants also contend that Amy Brossett has been able to return to a relatively normal lifestyle, aside from her testimony of experiencing occasional knee pain, knee weakness, and "catching" in her hip joint. The award, they argue, is out of the range of the quantum of damages awarded in cases of multiple injuries such as hers and *930 exceeds the amounts awarded in cases to persons who were not able to return to work as quickly as she was.
The record reflects that Amy Brossett was pinned in the wreckage of her vehicle for well over an hour while she remained conscious and in excruciating pain. She also watched and heard her husband die as they both lay trapped in the wreckage. The evidence in the record further establishes that Amy Brossett suffered severe injuries due to the crash. They were described by Dr. Davidson, one of her treating orthopedic surgeons on the night of the accident. The most severe injuries included multiple fractures in her right hip, which included a fracture to the socket of the "ball and socket" joint of the hip (an acetabular fracture). She also suffered a fracture to the upper femur bone of her right leg, an open fracture of the left kneecap, and a severely dislocated and broken left foot. Her kneecap was removed, resulting in an approximate ten percent disability. The broken foot was reset and the fractured bones therein were surgically secured with multiple pins. Amy Brossett testified at trial that she still suffers hip pain, experiences catching in her hip joint, suffers daily pain and swelling in her left foot and legs. She is unable to sit or walk for long periods of time due to the pain. Dr. Davidson testified that she experiences arthritis at her sites of injury as well.
Amy Brossett was immobile for three months after the crash and was unable to care for her infant daughter for months thereafter. Because of her injuries, she was hospitalized and unable to attend her husband's funeral. Besides suffering from grief and shock, she testified to suffering fear, anxiety, and depression due to the reality of having to raise and provide for her child, alone, for the first time. Although Amy Brossett worked full-time prior to the accident, testimony and evidence established that Craig Brossett was the primary wage earner for the family, having worked two jobs in the year prior to his death in order to provide for his family. Amy Brossett testified that she was able to return to full-time work approximately one-year after the accident, after progressing from a wheel-chair to a walker and finally to a cane. She attributed her recovery accomplishments to needing to be able to take care of her infant daughter.
Considering these facts, we find that the jury's award for pain and suffering is reasonably supported by the record and is not an abuse of its vast discretion in quantifying these damages.
Loss of Enjoyment of Life
"Loss of enjoyment of life is a compensable component of general damages." McGee v. A C & S, Inc., 05-1036, p. 4 (La.7/10/06), 933 So. 2d 770, 774. It involves the inherently speculative valuation of the quality of a person's life and cannot be definitively measured. Id. These damages refer to the "detrimental alterations of a person's ability to participate in the activities or pleasures of life that were formerly enjoyed." Id. at 773. Whether or not this element of general damages is recoverable, however, is a question that depends on the particular facts of the case, and is to be left to the discretion of the trier of fact to be determined on a case-by-case basis. Id.
The defendants claim that the award of $75,000.00 to Amy Brossett for loss of enjoyment of life also constitutes an abuse of the jury's discretion because she failed to establish that after the accident she has suffered any limitations on her life, other than not being able to play catch with her daughter. The award then contend, is therefore, improperly based on sympathy, considering the minimal limitations *931 Amy Brossett discussed during her testimony.
Testimony from Amy, her close friend, Cassie Campbell, who was also her bridesmaid, in addition to that offered by her father and one of her aunts, Margaret Bryant, all established that Amy's life was altered by the accident. She has exhibited a changed outlook on life after losing her husband and having to face raising and supporting a child as a single mother. Testimony was offered that she exhibited more fearfulness and nervousness after the accident. In regards to vehicles, she does not allow Emily, who is now ten, to travel in a vehicle with anyone, even family members, because of her experience. In addition, testimony was offered that her physical limitations caused by the extensive injuries to both of her legs have limited her ability to engage in activities such as athletic play with her daughter and other activities, that she might want to engage in, such as shopping; she is simply not free to do everything that she would like to do because of her physical condition, although she makes an effort to live as normally as she can.
Accordingly, we do not find that the jury abused its wide discretion in quantifying Amy Brossett's damages for loss of enjoyment of life, based on the evidence presented in the record.
Disability
Disability damages are recognized as those general damages constituting any permanent disability or impairment that is secondary to the injuries sustained in the accident. Matos v. Clarendon Nat'l Ins. Co., 00-2814 (La.App. 1 Cir. 2/15/02), 808 So. 2d 841. In this case, the jury awarded Amy Brossett $40,000.00 in disability damages. Defendants argue there was no proof presented at trial of any physical or mental impairment, therefore, the damages constitute an abuse of discretion.
We disagree. Testimony and evidence presented at trial established that Amy Brossett was twenty-three years old when the accident occurred. There was no testimony presented of her suffering from any physical or emotional disabilities or pain prior to the accident. Rather, she was a newly married female, a working mother, and caretaker of her home and infant child. As a consequence of the accident, ten years later, she continues to suffer from pain and swelling in her foot and legs, walks with a limp, and is unable to sit or stand for long periods of time, limiting her ability to be mobile for long periods of time.
Dr. Davidson testified that she suffers from a ten percent weakness in her ability to straighten out her leg caused by the removal of her kneecap. This loss of the kneecap also causes problems with her ability to climb steps without needing a support to stabilize herself. He stated that "the mid-foot fracture dislocation is debilitating and the open fracture of the knee was certainly debilitating, with some permanent impairment associated with these injuries." He recognized her continuing limitations by noting that her progress of recovery was "pretty balanced" considering her ability to try to do what she can do with her continuing pain and swelling in her foot, weakness in the knee, and catches in the hip.
Considering this, we cannot say that the jury's award offends a sense of fairness and constitutes an abuse of its discretion in the quantifying these damages.
Loss of Future Economic Support
Amy Brossett and her daughter, Emily, were awarded a joint award of $500,000.00 for the loss of future economic support caused by Craig's death. The only calculation presented at trial was *932 that offered by the plaintiffs' expert economist, Dr. Womack. Defendants contend that he testified that his calculations established a future loss (from the date of trial) of $394,531.00. They argue that $500,000.00 award is therefore, unsupported by the evidence presented and should be reduced to $394,531.00. Amy Brossett contends that the jury's award is reasonably supported by the evidence presented, considering the fact that Dr. Womack's calculation of the present value of the total economic loss as a result of Craig's death is $567,661.00.
The record shows that Dr. Womack indeed calculated a total economic loss with a present value of $567,661.00. This figure was composed of two components. He calculated the past economic loss suffered from the date of the accident to the date of the trial, $173,130.00, and the amount of economic loss estimated post-trial (future), in the amount of $394,531.00. These figures included Craig's wages earned in the year prior to his death, $19,592.00, and included a value for the loss of his household services at $8.00 per hour for forty hours per week. Dr. Womack testified that his calculation was conservative because it was based on Craig's income earned from working two jobs in 1997. He did not take into consideration Craig's new job as a delivery routesman for Borden that he had begun working approximately three months before the accident. He was earning approximately $2,000.00 per month on this new job an estimated $5,000.00 per year more than he had earned in the year preceding his death.
He further testified that he based his figures on a work-life expectancy of 22.15 years set forth by the Bureau of Labor Statistics. He stated that use of the Social Security Administration's (S.S.A.) statistics would have allowed him to estimate a work-life expectancy of 32 years ten more years than was actually used in his calculation.
Amy Brossett contends that the jury heard and took into consideration this evidence of Craig's new job and pay raise, as well as Dr. Womack's testimony and that of others, regarding Craig's industriousness as a worker. Testimony from multiple witnesses was presented, stating that Craig "did what it took" to provide for his family, as evidenced by his working two jobs prior to obtaining the better-paying job with Borden. The sentiment was that he would more than likely have continued to generate more in wages over the course of his work life had he lived beyond the age of twenty-four.
"An award for loss of support includes the loss of past support from the date of death to the date of trial and loss of future support from the date of trial through the duration of the decedent's work-life expectancy." Magee v. Pittman, 98-1164, p. 22 (La.App. 1 Cir. 5/12/00), 761 So. 2d 731, 748-49. The process for determining this measure of damages was further explained by the first circuit as follows:
Awards for future lost income are inherently speculative and intrinsically insusceptible of being calculated with mathematical certainty, thus the courts must exercise sound judicial discretion to determine these awards. The awards should be consistent with the record and not work a hardship upon either party. Factors to be considered in determining a proper award for lost future income are the decedent's physical condition before his death, the decedent's past work history and consistency thereof, the amount the decedent probably would have earned absent the death, and the probability that the decedent would have continued to earn wages over the remainder of his working life. See Robbins *933 v. State, Department of Labor, 31,590, p. 8 (La.App. 2nd Cir.2/24/99), 728 So. 2d 991, 996-97.
Id. at 749.
Regarding Craig's health status, we find that the only testimony offered of a negative health history was the fact that he was taking high blood pressure medication before his death. No expert medical opinion was offered regarding a diminished life expectancy however. The jury heard Dr. Womack testify that the S.S.A.'s statistics for work life expectancy were greater than the more conservative Bureau of Labor Statistics' figure that he used.
We recognize that the jury had the authority to accept and reject the testimony of Dr. Womack and may have decided to consider the S.S.A.'s statistic for work-life expectancy in its determination of future economic loss. They could have reasonably concluded that it was more likely that Craig would have earned even more income than the projected amounts set forth by Dr. Womack, based on the testimony regarding his industriousness. A jury's ability to consider such evidence and alter a general damage award such as this, accordingly, has been recognized by this and other courts:
The jury did not award the exact figure that either expert calculated. Nevertheless, it is permitted to "substitute common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole." [Green v. K-Mart Corp., 03-2495, p. 5 (La.5/25/04), 874 So. 2d 838, 843.] "Credibility determinations are for the trier of fact, even as to the evaluation of expert witness testimony. A fact-finder may accept or reject the opinion expressed by an expert, in whole or in part."
Guidry v. Coregis Ins. Co., 04-325, p. 24 (La.App. 3 Cir. 12/29/04), 896 So. 2d 164, 185. Accordingly, we find no abuse of the jury's discretion in quantifying the damages of future of loss of economic support in the amount of $500,000.00.
Wrongful Death Damages to Emily Brossett Porche
The jury awarded Emily Brossett Porche $500,000.00 in damages for the wrongful death of her father. The defendants argue that this award is abusively high because Emily was an infant when her father was killed and lacked the requisite awareness of his death to justify such an award. Moreover, they argue that no evidence was presented regarding any negative effect that Craig's death has had on her life. Rather, they contend, it was established that Emily is a well-adjusted child. According to the defendants, then, the jury's award is improperly based on sympathy and speculation, and for this reason, the wrongful death award should be reduced to $50,000.00, commensurate with other cases in which infants were awarded wrongful death damages due to the loss of a parent.
The plaintiffs argue that the award is not an abuse of discretion, considering the testimony that was presented to the jury of the dedication to, and love of, Emily that Craig showed her as an infant. He was a "hands-on" father and family-man who spent the majority of his free time with his family. He was consistently described in testimony offered by family members and friends as an extraordinary father who had a strong sense of love and devotion for his child; he cried when she was born, participated in her daily care, and "always had her in his arms." Amy Brossett testified that a large measure of her grief was based in knowing that Emily would not know Craig and that she had suffered the loss of a great father.
*934 We find that the facts and evidence presented support the jury's award of $500,000.00 to Emily for the wrongful death of her father. A wrongful death action seeks to compensate a beneficiary for his or her own injuries suffered from the moment of the victim's death and thereafter. McGee, 933 So. 2d 770. It is undisputed that Craig was a doting father. We recognize that a child's loss of a parent is a lifelong loss and, in this particular case, the jury must have been impressed by the extent of the loss imposed on Emily by her father's premature death. Based on the testimony presented of Craig's pre-death efforts and involvement with his child, it is almost certain that he would have been an integral part of her life. Emily was ten years old at the time of the trial of this matter, and still faces a future of great life events that will be passed without her father's presence and involvement as well; therefore, we cannot say that the jury abused its discretion in quantifying this award of wrongful death damages, in this amount, considering the particular facts of this case.
Exemplary Damages
In Amy Brossett's Answer to the defendants' appeal, she seeks a reversal of the jury's denial of exemplary damages. She asserts that the elements were satisfied for an award of exemplary damages pursuant to La.Civ.Code art. 2315.4, and that the jury abused its discretion in failing to assess these damages. She argues that Howard was clearly intoxicated but attempted to drive herself home anyway, expressing a wanton and reckless disregard for the safety of the public. Amy Brossett also asserts that Howard's intoxicated driving caused the accident that killed Craig Brossett and left her with severe injuries. Amy Brossett requests that separate awards of $125,000.00, each, be granted to her and her daughter, Emily.
The defendants contend that the elements of La.Civ.Code art. 2315.4 were not met in this case and that the jury's decision was not manifestly erroneous. They also argue that the jury possessed discretion to deny exemplary damages, and in this case, its decision to reject an award of exemplary damages was reasonable.
Louisiana Civil Code Article 2315.4 states:
Art. 2315.4. Additional damages; intoxicated defendant
In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.
In summary, exemplary damages may be awarded upon proof (1) that the defendant was intoxicated or had a sufficient quantity of intoxicants to make him or her lose normal control of his mental and physical facilities; (2) the drinking was a cause-in-fact of the accident; and (3) the injuries were caused by a wanton and reckless disregard for the rights and safety of others. See Brumfield v. Guilmino, 93-366 (La.App. 1 Cir. 3/11/94), 633 So. 2d 903 (citation omitted).
"Whether the elements requisite to recovery under [La.Civ.Code] art. 2315.4 have been proven is a question of fact, not to be set aside in the absence of manifest error." Angeron v. Martin, 93-2381, p. 4 (La.App. 1 Cir. 12/22/94), 649 So. 2d 40, 43. However, the decision to award exemplary damages rests within the discretion of the trier of fact. La.Civ.Code art. 2315.4; see Khaled v. Windham, 94-2171 (La.App. 1 Cir. 6/23/95), 657 So.2d *935 672, writ dismissed, 95-1914 (La.11/1/95), 661 So. 2d 1369; Boulmay v. Dubois, 593 So. 2d 769 (La.App. 4 Cir.1992). Even when the plaintiff proves the elements of the statute, the jury does not abuse its discretion in refusing to award exemplary damages when the statute does not mandate it. Khaled, 657 So. 2d 672.
Although cases such as these are tragic, the record reasonably supports the jury's choice to not award exemplary damages in this case. Howard testified at the trial and obviously impressed the jury with her remorsefulness. The jury could have taken into consideration her admission of fault and liability, as well as her submission of a blind plea of guilt to the criminal court. The jury may have been impressed by her lack of a negative driving history or criminal record prior to the accident and her clean driving record since completion of the related criminal proceedings. Moreover, the jury may have positively viewed Howard's compliance with her court-ordered restitution payments and orders to speak with groups regarding the consequences of her decision to drive while intoxicated. Howard testified that her continued status as a felon has prevented her from returning to her career as a perfusionist (operator of the heart and lung machine during open heart surgeries), because she is unable to obtain privileges to work in hospitals.
The jury also heard testimony regarding Howard's attempts to get a designated driver as the evening progressed. She testified that once she recognized that she was intoxicated, she stopped drinking alcohol and drank water instead, in attempts to make herself sober. She also began asking co-workers to make sure that she got home safely. This all may have been considered by the jury as a self-awareness of her impaired condition and attempts, although unsuccessful, to do no harm.
Consequently, although we would have sustained an award for exemplary damages if the jury had rendered such an award, we find no abuse of discretion on the part of the jury in failing to award exemplary damages in this case.
CONCLUSION
The Exception of No Right of Action is overruled. The judgment of the trial court is amended to reflect a reduced award of $42,552.00 in future medical expenses to Amy Brossett. All other damages set forth in the judgment are affirmed. Costs of this appeal are assessed to defendants-appellants-appellees, Melody Howard and Progressive Insurance Company.
EXCEPTION OVERRULED; JUDGMENT AFFIRMED, AS AMENDED.
NOTES
[1] Judge Chris J. Roy, Sr. appointed judge pro tempore of the Court of Appeal, Third Circuit.
[2] The claim for survival damages was later voluntarily dismissed.
[3] Amy Brossett married William Porche in April of 2001.
[4] This amount constituted the sum, at trial, of the monthly restitution payments that Melody Howard had been ordered by the criminal court to pay to Amy Brossett.
[5] Code of Civil Procedure article 2163 states, in relevant part:
Art. 2163. Peremptory exception filed in appellate court; remand if prescription pleaded
The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.
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648 So. 2d 1078 (1994)
STATE of Louisiana DEPARTMENT OF WILDLIFE AND FISHERIES
v.
Earl Thomas VANACOR.
No. 94-CA-689.
Court of Appeal of Louisiana, Fifth Circuit.
December 28, 1994.
Victor E. Bradley, Jr., Norco, for defendant-appellee.
T. Michael Landrum, Deputy Gen. Counsel, Louisiana Dept. of Wildlife and Fisheries, Baton Rouge, for plaintiff-appellant.
Before BOWES, GAUDIN and GRISBAUM, JJ.
GAUDIN, Judge.
The Louisiana Department of Wildlife and Fisheries is before this Court contending that its exceptions in the 29th Judicial District Court were erroneously overruled. We agree.
This case in district court, State v. Vanacor, charges the defendant with catching and/or possessing undersized catfish, a violation of LSA-R.S. 56:526(7)(b). The defendant asked for and received a TRO enjoining the department from enforcing the small catfish statute.
The department's exceptions allege (1) that it must be sued in Baton Rouge and (2) that the actions, i.e., the criminal proceeding against the fisherman and the proposed proceeding against the department, are illegally joined.
LSA-R.S. 56:7 says that the domicile of the Wildlife and Fisheries Commission "... is and shall be in Baton Rouge, Louisiana." Section (B) of the statute very clearly states:
"Any person in interest who feels aggrieved by any rule or regulation adopted by the Louisiana Wildlife and Fisheries Commission may test its legality in a court of competent jurisdiction at the domicile of the commission."
In Demolle v. Dept. of Wildlife and Fisheries, 580 So. 2d 1083 (La.App. 4 Cir.1991), writs denied by the Supreme Court of Louisiana at 586 So. 2d 534 (La.1991), it was held that the specific statutes which control suits against the department supersede general venue statutes. Accordingly, although this alleged cause of action by oyster fishermen arose in Plaquemines Parish, the department had to be sued in Baton Rouge.
*1079 Further, a civil suit challenging a departmental regulation regarding the legal size of catfish cannot be combined with a criminal case against a person charged with disregarding the regulation. We are unaware of any statute or jurisprudence allowing either the department to be sued other than in Baton Rouge or the joining of civil and criminal cases in one district court proceeding.
For these reasons, we reverse the August 2, 1994 district court judgment overruling the department's exceptions. The district court may, in the interest of justice and in line with LSA-C.C.P. art. 932, transfer the cause of action against the department to the court of proper jurisdiction. We remand to the district court for such transfer, if deemed appropriate.
REVERSED AND REMANDED FOR POSSIBLE TRANSFER.
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953 F. Supp. 28 (1997)
Sebastian BANKS, Plaintiff,
v.
CITY OF ALBANY, New York Fire Department; Civil Service Department; Gerald D. Jennings, Mayor; and James Larson, Fire Chief, Defendants.
No. 95-CV-761.
United States District Court, N.D. New York.
January 28, 1997.
*29 *30 Law Offices of Peter M. Pryor (Peter M. Pryor, of counsel), Albany, NY, for Plaintiff.
City of Albany Corporation Counsel (Stacy Kitt, of counsel), Albany, NY, for Defendants.
MEMORANDUM-DECISION & ORDER
McAVOY, Chief Judge.
I. BACKGROUND
Plaintiff Sebastian Banks alleges that the defendants unlawfully discriminated against him on the basis of his race by refusing to hire him for employment in the Albany Fire Department, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. Banks also claims that Defendants violated his constitutional right of equal employment guaranteed by the Fifth and Fourteenth Amendments. In addition, Banks asserts that Defendants violated Article 23-A of the New York State Corrections Law by denying him employment on the basis of his past criminal convictions.
On June 5, 1993, Sebastian Banks, a black male and lifelong resident of Albany County, took an open competitive civil service examination for the position of firefighter for the City of Albany. Banks scored an 85 on the examination. A total of 154 candidates passed the June 5, 1993 examination. No candidate scored above 95; nineteen individuals received scores of 95; nineteen individuals received scores of 90; and thirty-eight individuals received scores of 85. The remaining seventy-eight candidates did not score high enough to be considered for employment.
On November 24, 1993, the Albany Municipal Civil Service Commission ("Commission") established an "Eligible List" containing the names and scores of the 154 candidates who passed the June 5, 1993 examination. (Kitt Aff., Exh. 1). The Eligible List had an effective date of January 20, 1993 and expired January 20, 1994. From this Eligible List of candidates, P. Marsolais, Secretary of the Commission, certified 67 candidates as eligible for the position of firefighter on May 20, 1994. (Kitt Aff., Exh. 2). As required by New York State Civil Service Law §§ 50 & 57, the actual appointment of firefighters must be from this certified list.
On May 24, 1994, four days after the certification of eligibles, Fire Chief James Larson appointed nine candidates to the position of firefighter. Six of the nine appointed candidates had a score of 90 on the June 5, 1993 exam. The remaining two appointed candidates had a score of 85. Although Banks was on the list of certified eligible candidates for the position of firefighter, and had scored an 85 on the exam, he was not chosen.
In his deposition, Chief Larson stated that he appointed the two candidates with a score of 85 without reviewing the background of any other candidates who also scored an 85. (Larson Tr. at 61-62). Instead, Chief Larson stated that he had already decided he wanted the two candidates, Mr. Dagget and Mr. Rhatigan, based on his relationship with their families. (Larson Tr. at 61-65).
Presently before the Court are Defendants' Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment.
II. DISCUSSION
A. Summary Judgment Standard
Pursuant to Fed.R.Civ.P. 56(c), a court may grant summary judgment if it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." *31 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). Furthermore, it is the substantive law that will determine what facts are material to the outcome of a case. See Anderson, 477 U.S. at 250, 106 S.Ct. at 2511.
Initially, the moving party has the burden of informing the court of the basis of its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). If the moving party satisfies its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The Court must then resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1355-56, 89 L. Ed. 2d 538 (1986). However, the non-moving party must do more than simply show "that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1355-56. Only when the Court concludes that no rational finder of fact can find in favor of the non-moving party should summary judgment be granted. Gallo v. Prudential Residential. Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir.1994).
B. Title VII
Initially, the Court notes that although summary judgment is no longer a disfavored process for the elimination of groundless claims, see Celotex, 477 U.S. at 322, 106 S.Ct. at 2552 (summary judgment favored to dispose of meritless claims), a district court should be wary of granting summary judgment in a discrimination case because the device is generally inappropriate where, as is typical, an employer's state of mind is relevant. Gallo, 22 F.3d at 1224. This is not to say that summary judgment is wholly inappropriate; rather, as the Second Circuit has noted, "the summary judgment rule would be rendered sterile ... if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. [T]he purposes of summary judgment ... apply no less to discrimination cases than to ... other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S. Ct. 91, 88 L. Ed. 2d 74 (1985). Considering the relative ease of bringing a suit alleging discrimination and the difficulty and expense of defending against such a suit, courts correctly find summary judgment proper where allegations of discriminatory intent are merely conclusory.
i. Prima facie case under Title VII
Designed "`to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees,'" Albemarle Paper Co. v. Moody, 422 U.S. 405, 417, 95 S. Ct. 2362, 2371, 45 L. Ed. 2d 280 (1975) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S. Ct. 849, 852-53, 28 L. Ed. 2d 158 (1971)), Title VII prohibits not only overt and intentional discrimination, but also discrimination resulting from practices that are facially neutral but have a "disparate impact" on a protected group. See, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S. Ct. 1843, 1854-55 n. 15, 52 L. Ed. 2d 396 (1977); Griggs, 401 U.S. at 431, 91 S.Ct. at 853. Section 703(a) of Title VII defines "unlawful employment practice" in this way:
It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin....
42 U.S.C. § 2000e-2(a)(1).
In the Second Circuit, Title VII cases are analyzed under the familiar framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under the test articulated in McDonnell Douglas, a plaintiff
must demonstrate that: (i) he is a member of a protected class; (ii) he was qualified for the position; (iii) he was subjected to an adverse employment decision; and (iv) either the position remained open or he was replaced by someone not a member of his protected class.
*32 Sergio de la Cruz v. New York City Human Resources Administration Dept. of Social Services, 82 F.3d 16, 20 (2d Cir.1996) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824); see also Owens v. New York City Hous. Auth., 934 F.2d 405, 408-09 (2d Cir. 1991); Sweeney v. Research Found. of State Univ. of New York, 711 F.2d 1179, 1184-85 (2d Cir.1983). Once a prima facie case has been established, "[t]he employer then has the burden of articulating a legitimate, nondiscriminatory reason for its action.... The burden shifts back at that point to the plaintiff to prove that this reason is pretextual." Promisel v. First American Artificial Flowers, 943 F.2d 251, 259 (2d Cir.1991), cert. denied, 502 U.S. 1060, 112 S. Ct. 939, 117 L. Ed. 2d 110 (1992).
The Court will now examine each of the steps in the burden shifting analysis in order to determine whether Plaintiff has put forth a viable cause of action. We must be mindful that regardless of how these burdens are described, Plaintiff retains the ultimate burden of persuading the fact finder. See Lopez v. Metropolitan Life Ins. Co., 930 F.2d 157, 161 (2d Cir.1991).
Here, the parties do not dispute the fact that Banks has established the first element of his prima facie case; Banks is an African-American. In addition, Defendants do not dispute that the nine firefighters appointed were white. The present controversy surrounds the remaining elements: job qualification and rejection.
On the issue of qualification, the minimum requirements for the position of firefighter were contained in two announcements, dated March 31, 1993 and November 21, 1990. (Banks Aff., Exhs. 4 & 5). The minimum qualifications include: graduation from high school or possession of a high school equivalency diploma; age between 20 and 36; legal residency in Albany County for at least 12 months; a valid class 5 drivers license; Emergency Medical Technician (EMT) Certification; citizenship in the United States; passing a physical and medical exam; drug testing; and passing a qualifying psychological examination. (Banks Aff., Exh. 4).
Defendants assert that Banks is not qualified for the position of firefighter. First, they assert that he did not pass a medical exam or a psychological examination. However, Banks never took these exams. Although it is unclear when a candidate for firefighter is required to take the medical and psychological exams, it is clear that an exam is scheduled by, and a candidate is notified by, the Albany Fire Department itself. (Larson Tr. at 54-58). As this was never done, Defendants cannot assert now that Banks is unqualified because he did not pass an exam that they never scheduled for him.
Defendants also argue that Banks was not a certified EMT at the time he sought appointment. Defendants argue that Banks' certification was invalid because in applying to the New York State Department of Health for EMT certification and recertification, he twice improperly signed an affirmation at the bottom of his application that stated that he had never been convicted of certain enumerated crimes, when in fact he had a number of such convictions.
Although this is serious conduct on the part of Plaintiff, he was, and still is, certified as an EMT. In fact, in a letter from the New York State Department of Health ("DOH") dated October 24, 1996, the DOH states that "Banks is currently a certified Emergency Medical Technician (EMT). His certification expires on May 31, 1998. Although an investigative file is open, there has been no action taken against Mr. Banks, nor has the Department made a determination to revoke his EMT certification." (Banks Aff., Exh. 8). Clearly, if the DOH rescinds Banks' EMT certification he cannot be considered "qualified" to be a firefighter. However, in the absence of DOH action, it is not within the purview of the Albany Fire Department to decide on its own whether Banks' conduct retroactively voids his EMT certification. Accordingly, the Court must conclude that Banks is qualified to be a firefighter and has thus met the qualification requirement under McDonnell Douglas.
Turning to the next prong of the McDonnell Douglas test, Defendants assert that even though Banks was not hired as a firefighter, he nevertheless was not "rejected." Defendants argue: "The selection of other *33 candidates had no effect on his eligibility for hire. Had the City of Albany done additional hiring off of the Civil Service List at issue, Mr. Banks would have been eligible for consideration." (Defs' Mem. of Law at 3). Apparently, every unemployed worker can take consolation in the thought that they were not "rejected," they just simply "were not hired."
Semantics aside, Defendants' argument is absurd. Were this Court to adopt Defendants' definition of "rejection" this would completely eviscerate Title VII and most other state and federal statutes dealing with employment discrimination. Under Defendants' nonsensical definition, a job applicant would only be "rejected" if the employer actually said "you are rejected." In other words, rejection would never occur, and an employer could perpetually insulate itself from Title VII, so long as the employer kept the candidate's application on file. This is clearly not the law, and Defendants' constrained definition of "rejection" is rejected, or rather, not accepted.
Furthermore, Banks' rejection occurred under circumstances giving rise to an inference of discrimination. Under Title VII, discrimination can be demonstrated through evidence of either "disparate treatment" or "disparate impact." See Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1041 (2nd Cir. 1993). To show disparate treatment, the plaintiff is "required to prove that the defendant had a discriminatory intent or motive." Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986, 108 S. Ct. 2777, 2784, 101 L. Ed. 2d 827 (1988). Disparate impact, on the other hand is based upon the premise "that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination." Watson, 487 U.S. at 987, 108 S.Ct. at 2785. The evidence in disparate impact cases "usually focuses on statistical disparities, rather than specific incidents, and on competing explanations for those disparities." Watson, 487 U.S. at 986-87, 108 S.Ct. at 2784-85.
a. Disparate Impact
In Griggs v. Duke Power Co., the Supreme Court stated that Title VII bans not only intentional discrimination, but also those employment practices that result in disparate impact. 401 U.S. at 424, 91 S.Ct. at 849. Disparate impact claims involve employment practices "that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group and cannot be justified on business necessity." Int'l Bd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S. Ct. 1843, 1854 n. 15, 52 L. Ed. 2d 396 (1977).
A plaintiff proceeding under this theory need not offer proof of discriminatory motive to make out a prima facie case. See, e.g., Griggs, 401 U.S. at 430-32, 91 S.Ct. at 853-54. Instead, a plaintiff must isolate and identify a particular employment practice that is the cause of the disparity and provide evidence sufficient to raise an inference of causation. See Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994-95, 108 S. Ct. 2777, 2788-89, 101 L. Ed. 2d 827 (1988). Generally, it is a comparison between the racial composition of qualified persons in the labor market and persons holding at-issue jobs that forms the proper basis for the initial inquiry in a disparate impact case. See Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 650-51, 109 S. Ct. 2115, 2121-22, 104 L. Ed. 2d 733 (1989).
Here, Plaintiff points to Chief Larson's wholly subjective criterion for appointing firefighters as the employment practice that causes a disparate impact. First, Plaintiff notes that Chief Larson is vested with the sole power to determine which certified candidates are appointed to firefighter. As Defendant Larson stated in his deposition, all appointments were made by him without the input of others, except that people would look at the list of eligible candidates and comment: "I know this person, I know that person. Isn't that so and so's brother?" (Larson Tr. at 27-28). Second, the procedure that Larson used to pick the nine firefighters was flawed in that Larson never spoke with any of the candidates with respect to their appointmentshe simply relied on their submitted background informationalthough he failed to follow even this procedure when he appointed two candidates with a score of 85 without reading any of the *34 other similarly situated candidates' background information, including the information submitted by Sebastian Banks. (Larson Tr. at 32).
Finally, Banks argues that the actual criterion used by Larson in making his appointments is improperly subjective. With regard to the nine candidates appointed, as well as the two candidates chosen that had the same score as Banks, the following colloquy took place during Chief Larson's Deposition:
Q. ... I'm going to ask you again, sir, to tell me what factors other than the rule of three that you took into consideration in making those nine appointments?
A. It was something that I wished to do personally.
Q. When you say you wished to do it personally, why did you have such a personal stake in[] the nine appointments?
A. Michael Dagget, who I had known since really his birth ... I wanted to help him out....
Q. And you wanted to help Michael Dagget personally, and you had reasons for wanting to help Justin Rhatigan, isn't that correct?
A. Yes, Sir.
Q. And what were those reasons?
A. The fact that I worked with his father and brothers throughout my entire career on the department, both working for them as a firefighter and having them work for me when they were fire fighters.
(Larson Tr. at 63-64).
Based on the foregoing statements by Chief Larson, Banks asserts that Larson, the only person who decides which candidates will be firefighters, utilized a wholly personal and subjective process for appointing eligible candidates as firefighters. Consequently, the critical qualifications for firefighter are: (1) know Chief Larson personally, and (2) have close familial ties with the Albany Fire Department. For minority candidates, these qualifications pose a significant obstacle. As Plaintiff states in his Memorandum of Law in Opposition: "[W]hen the dearth of blacks in the AFD is considered, along with its dismal employment practices, and if minorities would have to rely upon family ties and friendships within the AFD for access, it will be generations before the few blacks that are presently employed could recommend their sons, daughters or other relatives for appointments." (Pltf's Mem. of Law at 6).
Accordingly, Banks has sufficiently isolated and identified a suspect employment practice within the Albany Fire Department. See Watson, 487 U.S. at 991, 108 S.Ct. at 2787 (noting the disparate impact theory of Title VII liability may be utilized to challenge both objective and subjective selection processes); Wards Cove, 490 U.S. at 665 n. 9, 109 S.Ct. at 2129-30 n. 9 ("This is not to say that a specific practice, such as nepotism, if it were proved to exist, could not itself be subject to challenge if it had a disparate impact on minorities.") Thus, Banks now must articulate a causal connection between that practice and demonstrate a disparate impact on a protected group.
Although a comparison between the racial composition of qualified persons in the labor market and persons holding at-issue jobs generally forms the proper basis for the initial inquiry in a disparate impact case, see Wards Cove, 490 U.S. at 650-55, 109 S.Ct. at 2121-24, in cases where such labor market statistics will be difficult if not impossible to ascertain courts have recognized that certain other statisticssuch as measures indicating the racial composition of "otherwise-qualified applicants" for at-issue jobsare equally probative for this purpose. See, e.g., New York City Transit Authority v. Beazer, 440 U.S. 568, 585, 99 S. Ct. 1355, 1365, 59 L. Ed. 2d 587 (1979). Furthermore, where "figures for the general population might ... accurately reflect the pool of qualified job applicants," courts have relied on such statistics as well. See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 329-330, 97 S. Ct. 2720, 2726-27, 53 L. Ed. 2d 786 (1977); Wards Cove Packing, 490 U.S. at 650-51, 109 S.Ct. at 2121-22.
In addition, a plaintiff in a disparate impact case need only offer statistical evidence of a kind and degree sufficient to show that the practice in question has a greater negative impact on a minority group; the Supreme Court has dictated that no particular mathematical formula must be implemented *35 and satisfied. See Watson, 487 U.S. at 994-95, 108 S.Ct. at 2789-90. Instead, "[c]ases must be evaluated on their own terms." Council 31, American Fed'n of State, County, & Mun. Employees v. Ward, 978 F.2d 373, 379 (7th Cir.1992).
In support of his assertion that the Albany Fire Department's subjective criteria for choosing firefighters results in a disparate impact on minorities, Banks provides a number of statistics.[1] First, Plaintiff notes that between 1987 and 1994, the Albany Fire Department appointed only 2 black males as firefighters out of a total of 129 white male appointments over the same time period. Second, the Albany Fire Department presently has only 8 black firefighters out of a total duty roster of 261, resulting in a statistical population of blacks in the Albany Fire Department of 3.1%. In comparison, 1990 Census data show a black population in the City of Albany of 21.5%, and a black population in the County of Albany of 8.6%.
Accordingly, there is little doubt that Banks has established a prima facie case of discrimination based on race. See Quaratino v. Tiffany & Co., 71 F.3d 58, 65-66 (2d Cir.1995) ("plaintiff's burden of proof in a ... discrimination action is de minimis at the prima facie stage"). This is not to say that the Albany Fire Department's hiring procedure is in fact the cause of the noted statistical disparity; perhaps black men and women are less interested in being firefighters in the Albany Fire Department. Instead, the Court's holding is more limited. The Court finds only that Banks has met his de minimis burden of showing that a genuine issue of material fact exists as to whether the Albany Fire Department's hiring procedure resulted in disparate impact on a protected group.
ii. Business Necessity
Once a plaintiff has established a prima facie case, the employer can respond with evidence that the "challenged practice is job-related for the position in question and consistent with business necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i).
Establishment of the prima facie case creates a presumption that the employer unlawfully discriminated against the employee. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981). Once such a prima facie case has been made out, the defendant must show that the challenged action is demonstrably necessary to meet an important business goal for Title VII purposes.
The Supreme Court held in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989), that the defendant's burden on the "business necessity" defense is only one of production; under Wards Cove the ultimate burden of persuasion remains at all times with the plaintiff. 490 U.S. at 659, 109 S.Ct. at 2126. However, Congress statutorily reversed the Wards Cove ruling by passing the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, which amended Title VII to provide that, once a plaintiff makes out a prima facie case, the full burden of proof shifts to the defendant who must demonstrate "business necessity" in order to avoid liability. § 105(a), 105 Stat. at 1074-75 (codified at 42 U.S.C. §§ 2000e-2(k)(1)(A)).[2]
*36 For example, a commonly asserted business necessity defense is the protection of employees from workplace hazards. See, e.g., Hayes v. Shelby Memorial Hosp., 726 F.2d 1543, 1552 n. 14 (11th Cir.1984); New York City Transit Auth. v. Beazer, 440 U.S. 568, 587 & n. 31, 99 S. Ct. 1355, 1366 & n. 31, 59 L. Ed. 2d 587 (1979); Dothard, 433 U.S. at 331 n. 14, 97 S.Ct. at 2728 n. 14. But cf. International Union, U.A.W. v. Johnson Controls, 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158 (1991) (employers desire to guard against birth defects in employees' potential offspring does not constitute bona fide occupational qualification justifying facially discriminatory employment policy).
However, merely asserting a business necessity rationale does not suffice to prove the defense. See MacLennan v. American Airlines, Inc., 440 F. Supp. 466, 472 (E.D.Va. 1977) ("[T]he incantation of a safety rationale is not an abracadabra to which [a] [c]ourt must defer judgment."). An employer's subjective belief that a practice is necessary, without any supporting evidence, is insufficient to justify a discriminatory practice. See Craig v. County of Los Angeles, 626 F.2d 659, 667 n. 8 (9th Cir.1980); United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 941-43 (10th Cir.1979). In order to establish a business necessity defense, employers have been required to present convincing expert testimony demonstrating that a challenged practice is in fact required to achieve the desired goal. See Burwell v. Eastern Air Lines, Inc., 633 F.2d 361, 365-66 (4th Cir. 1980); Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670, 675 (9th Cir.1980); Levin v. Delta Air Lines, Inc., 730 F.2d 994, 997 (5th Cir.1984).
Here, Defendants offer no specific justification as to why Chief Larson's subjective determination based on personal contact and familial relationships is a business necessity in the hiring of firefighters. Instead, Defendants assert that Larson made his decision because "[i]t was the Chief's belief that each of these people had exceptional familiarity with the work and unusual schedule of the Department, and would work well within the organization." (Defs' Mem. of Law at 5). These are laudable considerations, but the Court is left with the question of how Chief Larson knew that Dagget and Rhatigan were the best qualified candidates without even reading the background information on the other similarly situated candidates? Perhaps there was another candidate on the list who had years of experience as a firefighter, perhaps even experience as a fire chief!
The Court does not wish to imply that Chief Larson's subjective criterion is unsound. Although it may be inferred that familial ties to the Albany Fire Department and a close personal relationship with Chief Larson are an indication of future excellence as a firefighter, Defendants offer no support for the proposition that the Chief's subjective criterion is a business necessity in the appointment of the most qualified candidates. Moreover, common sense dictates that a better procedure for finding the most qualified candidate might be to review the background information of all the eligible candidates who scored an 85 before deciding which candidates have the greatest "familiarity with the work and unusual schedule of the Department, and would work well within the organization."
Accordingly, Defendants have failed to demonstrate that the "challenged practice is job-related for the position in question and consistent with business necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i). Thus Defendant's Motion for Summary Judgment must be denied.
III. CONCLUSION
In summary, Plaintiff has established a prima facie case of discrimination in violation of Title VII that Defendants have not rebutted by offering a business necessity justifying the challenged hiring practice. Accordingly, Defendants' Motion for Summary Judgment seeking dismissal of Plaintiff's Title VII claim is DENIED.
However, Plaintiff is not entitled to relief on his Cross-Motion for Summary Judgment because material facts remain in dispute. Thus, Plaintiff's Cross-Motion for Summary Judgment is DENIED. Furthermore, because neither party addressed Plaintiff's remaining claims, the Court did not consider *37 them in its analysis of the parties' respective Motions for Summary Judgment.
IT IS SO ORDERED.
NOTES
[1] In light of the fact that Defendants do not challenge these statistics, for the purpose of this motion the Court assumes that Plaintiff's proffered statistics are accurate.
[2] Prior to Wards Cove, the "business necessity" showing was an affirmative defense for which the defendant bore the burden of proof and risk of nonpersuasion. See Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S. Ct. 2720, 2726-27, 53 L. Ed. 2d 786 (1977); Griggs, 401 U.S. at 432, 91 S.Ct. at 854; Larkin v. Pullman-Standard Div., Pullman, Inc., 854 F.2d 1549, 1580 (11th Cir. 1988), vacated sub nom., Pullman-Standard, Inc. v. Swint, 493 U.S. 929, 110 S. Ct. 316, 107 L. Ed. 2d 307 (1989). In 1989, the Supreme Court held that the defendant bore only the burden of coming forward with an alleged business-related justification for the challenged practice which the plaintiff would then have to disprove in order to prevail. Wards Cove, 490 U.S. at 659, 109 S.Ct. at 2126. The Court also broadened the scope of the necessity defense by holding that practices causing a disparate impact were permissible, even if they could not be shown to be absolutely necessary, so long as they "served, in a significant way, the legitimate employment goals of the employer." Wards Cove, 490 U.S. at 659, 109 S.Ct. at 2126. These changes were also statutorily reversed by the Civil Rights Act of 1991. 42 U.S.C. § 2000e-2(k)(1)(A).
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838 S.W.2d 229 (1992)
Judy ROOKE, Petitioner,
v.
Linda Ray Reed JENSON, as Executrix of the Estate of Sam Ray Reed, Deceased, Respondent.
No. D-2294.
Supreme Court of Texas.
September 9, 1992.
Rehearing Overruled October 7, 1992.
Timothy M. Purcell, Gwen E. Richard, Hardy, Milutin & Johns, Houston, for petitioner.
Vince Cruz, Jr., Fort Worth, for respondent.
PER CURIAM.
We consider a statute of limitations defense raised by the estate of an alleged tortfeasor.
On January 17, 1986 Sam Ray Reed's automobile collided with that of Judy Rooke, who then filed suit against him on December 21, 1987. At the time of attempted service in January 1988, she learned that Reed had died. Since Reed's will named his wife, Nellie Mae Reed, as executrix and sole beneficiary, she was substituted as the defendant in her capacity as executrix in Rooke's amended complaint filed in February 1988. At this time, Linda Ray Reed Jenson, the Reeds' daughter, also learned of this suit filed against the "executrix" of the estate.
Although aware of this suit and named as a party, Nellie Mae Reed sought to have the will probated as a muniment of title, a method by which no executrix would be required. Upon Rooke's motion seeking the appointment of an executrix, Jenson requested and was finally appointed executrix more than two years after the accident. Rooke again amended her petition to substitute Jenson as the defendant in her capacity as executrix.
The trial court granted Jenson's motion for summary judgment which was based solely on a defense of limitations. The court of appeals affirmed. 838 S.W.2d 259. We reverse the judgments of both courts and remand for trial.
As we wrote in Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988):
The primary purpose of statutes of limitations is to compel the exercise of a right of action within a reasonable period of time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds.
*230 See also Robinson v. Weaver, 550 S.W.2d 18, 20 (Tex.1977).
Where an individual whose conduct allegedly gave rise to an action has died, we have previously held that suit is properly brought against the decedent's personal representative or, if unavailable, the heirs or beneficiaries rather than the estate itself. Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex.1975). See also Love v. Woerndell, 737 S.W.2d 50 (Tex.App.____ San Antonio 1987, writ denied) (holding that executor is the proper defendant and that heirs or devisees must be joined only if the suit involves title to real estate); Bennett v. Bennett, 9 S.W.2d 758 (Tex.Civ. App.____ Waco 1928, no writ) (holding that suit should be brought against the executor or administrator in a representative capacity on any claim against the estate, and that heirs are not ordinarily joined).
Before limitations ran in Price, "The Estate of Welton Terry Anderson" was named defendant. The temporary administrator, Paul Echols, was subsequently served with citation. After limitations ran, the plaintiff amended the complaint to name both the estate and Echols as defendants. This court refused the bar of limitations, since "[t]he purpose and the nature of the claim asserted were clear from the outset...." Id. at 692. Jenson seeks to distinguish Price on the grounds that here the party finally named as defendant was not the same person previously served. It is undisputed that Jenson had been aware that the "executrix" was being sued since her mother was served in February 1988. She is also represented by the same attorney that represented her mother. We hold that limitations may not be asserted by an individual who assumes the job of executrix with full knowledge that, prior to the running of limitations, a claim involving the deceased had already been filed, naming the presumed executrix as defendant. A contrary holding would in no way serve the purpose of the statute of limitations. As appropriately determined in Castro v. Harris County, 663 S.W.2d 502, 505 (Tex. App.____Houston [1st Dist.] 1983, writ dism'd), "[t]he statute of limitations herein involved was not created to provide a log behind which opportunistic defendants could smugly lay for two years and then emerge solemnly proclaiming their statutory rights...."
Accordingly, pursuant to TEX.R.APP.P. 170, without hearing oral argument, a majority of this court grants Rooke's application for writ of error, reverses the judgment of the court of appeals and remands this case to the trial court for further proceedings in accordance with this opinion.
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648 So. 2d 1203 (1995)
Perfecto COCHO, Appellant,
v.
CONTINENTAL BAKING and Travelers Insurance Company, Appellees.
No. 94-1353.
District Court of Appeal of Florida, First District.
January 10, 1995.
H. Guy Smith of Smith & Brunetti, P.A., Lakeland, for appellant.
David C. Lockwood of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellees.
*1204 SMITH, Senior Judge.
Claimant Perfecto Cocho has appealed from an order of the judge of compensation claims awarding certain temporary total disability (TTD) benefits and denying others. We reverse and remand for further findings.
In September 1992, Cocho injured his right leg and hip in a compensable accident at work. After numerous visits to a walk-in clinic, the employer/carrier (E/C) referred him to Dr. Henderson, a board-certified orthopedist. Cocho first saw Dr. Henderson on September 29, 1992, and was placed on light duty. Dr. Henderson thereafter prescribed crutches and on October 23, 1992, while using the crutches at work, Cocho slipped in some spilled flour and fell on his right leg and hip. On October 29, 1992, Dr. Henderson first took Cocho off work for two weeks to rest his leg; when Cocho returned on November 17, 1992, Henderson recommended an MRI and again took Cocho off work for two weeks (or until December 1, 1992). Cocho testified that, after the October 23, 1992 fall, Dr. Henderson "pulled me two weeks off this temporary disability."
Dr. Henderson did not see Cocho after November 17, 1992, and it is undisputed that Cocho neither worked nor looked for work thereafter. Dr. Henderson testified that Cocho probably could have done sedentary work until the MRI was performed on May 23, 1993, but, because he did not see him during that period, he "didn't really know." Cocho thereafter filed a claim for TTD benefits from October 24, 1992 to October 20, 1993. The claim was heard on December 2, 1993, where the judge received testimony from Cocho (live) and Dr. Henderson (deposition). By order of January 12, 1994, the judge awarded TTD benefits for the periods October 29 to December 1, 1992, and June 7 to October 20, 1993, relying on Dr. Henderson's opinions of total disability during those periods. The order makes no specific finding as to the failure to award TTD benefits for the period December 2, 1992 to June 6, 1993.
Entitlement to TTD may be shown by medical testimony that a claimant is unable to work, or by evidence of a good faith unsuccessful work search. Holiday Foliage v. Anderson, 642 So. 2d 94 (Fla. 1st DCA 1994). Here, there is no medical testimony that Cocho was unable to work between December 1, 1992 and June 7, 1993 (in fact, Dr. Henderson gave retrospective testimony that Cocho could have performed sedentary work during that period), and no evidence of an unsuccessful work search. However, even absent medical evidence of total disability or an unsuccessful work search, TTD should be awarded where the claimant's physician never communicated to the claimant a release to return to work, even assuming retrospective testimony that the claimant could have worked during the relevant period. Garcia-Vina v. U.S. Holiday Health & Recreation, 634 So. 2d 200, 201 (Fla. 1st DCA 1994) (emphasis supplied), citing Charles v. Suwannee Swifty, 622 So. 2d 114, 115 (Fla. 1st DCA 1993) (TTD cannot be denied in the absence of evidence that claimant was informed of a release to work, or should have known he was released to work).
Here, the judge did not explain his failure to award TTD benefits between December 1, 1992 and June 7, 1993. He may have relied on the absence of medical evidence of total disability and/or on Cocho's failure to do a work search. However, because Dr. Henderson never informed Cocho that he could return to work, these deficiencies are irrelevant unless the JCC found that Cocho "knew or should have known" he could return to work. See Charles, 622 So.2d at 115. The E/C urge affirmance, citing Cocho's knowledge that he had been taken off work only for discrete two-week increments, but we cannot determine that this knowledge formed the basis of the order. In other words, the judge may not have considered Cocho's knowledge of his work status (or lack thereof), but simply relied on the absence of medical evidence of total disability, the lack of an unsuccessful work search, or both. In light of the lack of findings in support of the failure to award TTD for the period in question, we reverse the order herein, and remand for further findings on that issue.
Reversed and remanded with directions.
BARFIELD and DAVIS, JJ., concur.
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953 F. Supp. 475 (1997)
Keiko WESTPHAL, Plaintiff,
v.
CATCH BALL PRODUCTS CORP., et ano., Defendants.
No. 95 Civ. 9613 (LAK).
United States District Court, S.D. New York.
February 18, 1997.
*476 *477 Noah A. Kinigstein, New York City, for Plaintiff.
Ronald N. Inouye, Inouye & Ogden, New York City, William L. Kandel, McDermott, Will & Emery, New York City, for Defendants.
MEMORANDUM OPINION
KAPLAN, District Judge.
The jury in this case found that defendant Catch Ball Products Corporation ("Catch Ball") discriminated against plaintiff Keiko Westphal on the basis of age and retaliated against her for filing a complaint with the Equal Employment Opportunity Commission. It awarded $45,000 in back pay, $5,000 in compensatory damages, and $25,000 in punitive damages. The Court thereafter awarded front pay in the amount of $92,859.[1] (Findings of Fact and Conclusions of Law, Dec. 6, 1996) Defendant now moves for judgment as a matter of law on the ground that the Court lacks subject matter jurisdiction and that there was insufficient evidence to permit the jury to find either age discrimination or retaliation.
I
The first of defendant's jurisdictional challenges is the contention that there was no federal jurisdiction and that the exercise of supplemental jurisdiction therefore was inappropriate.
The complaint alleged age and gender discrimination claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act ("ADEA"), and 42 U.S.C. § 1981 as well as pendent state law claims. No motion to dismiss the complaint was made. The scheduling order, dated January 31, 1996, required that any motions for summary judgment be filed on or before May 30, 1996. No such motion was filed, however, until immediately before the commencement of the trial on October 27, 1996. Defendant then contended, among other things, that its employees were insufficiently numerous to bring it within the coverage of Title VII or ADEA, that the Section 1981 claim was insufficient, and that the Court therefore lacked subject matter jurisdiction. Inasmuch as Rule 56(c) requires that motions for summary judgment be served at least ten days before the hearing, it was obvious that the trial would be concluded before the motion was ripe for decision.[2] The Court therefore indicated that the jurisdictional point, which in any case involved factual issues as to the number of defendant's employees and whether defendant and related entities should be considered to be a single employer, might be raised by motion during the trial. (Tr. 2-5)
Title VII and ADEA define "employer" to mean entities with 15 and 20 or more employees, respectively. 42 U.S.C. § 2000e; 29 U.S.C. § 630(b). The evidence at trial, viewed in the light most favorable to the plaintiff, showed that defendant Catch Ball did not have more than six employees at any relevant time. The defendant, however, conceded that Catch Ball and two other related companies, Orange Point and Gallup, together employed at least 15 people. (Tr. 187) *478 Assuming that Orange Point, Gallup and Catch Ball properly were considered a single employer, the three companies together had 20 employees in 1996 at the time plaintiff was terminated.[3]
Defendants moved for a directed verdict at the end of the plaintiff's case on the grounds, among others, that (1) the Section 1981 claim failed to state a cause of action, (2) there was insufficient evidence to permit the conclusion that the defendant employed the requisite number of persons to come under ADEA or Title VII, and (3) there was no evidence of gender discrimination. (Tr. 181-204) The Court granted the motion as to the Section 1981 and Title VII claims, the latter on the ground that there was no evidence of gender discrimination (id. 195). Although it expressed reservations as to whether the evidence was sufficient to permit amalgamation of Orange Point and Gallup with Catch Ball, it denied that motion without prejudice to renewal. Catch Ball properly preserved the point by Rule 50 motions at the close of the defendant's case and of all the evidence. The jury returned a special verdict finding that Catch Ball should be considered a single employer with both Orange Point and Gallup.
Defendant now urges the Court to hold that it lacked any basis of federal subject matter jurisdiction. Its first theory is based upon the argument that the affidavits submitted in support of its motion for summary judgment demonstrated that Catch Ball and Orange Point were in no way integrated and that those affidavits were unrebutted. (Def.Mem.8) The argument, however, overlooks a basic fact: the summary judgment motion never was litigated and in fact was mooted by the trial.
Defendants' summary judgment motion was filed nearly five months after the deadline fixed by the scheduling order and only at the start of the trial. It was never answered because the scheduling order and Rule 56(c) were not complied with, and the Court made it plain that the point would be taken up during the trial. The evidence upon which Catch Ball now relies never was offered at trial and therefore never was properly before the Court. The jurisdictional issue therefore turns on the trial record.
Defendant's next argument is that the record was devoid of admissible evidence sufficient to justify a finding that Catch Ball and Orange Point were a single employer.[4] While there are some differences in approach to the single employer issue, the test in this circuit is "whether `all the circumstances of the case' tend to show the absence of an arm's length relationship between two entities." Rivera v. Puerto Rican Home Attendants Services, Inc., 922 F. Supp. 943, 949 (S.D.N.Y.1996) (quoting Lihli Fashions Corp. v. NLRB, 80 F.3d 743, 747 (2d Cir.1996)). Pertinent factors are evidence of "(1) interrelated operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership." Id. (citing Brower-Coad v. Fundamental Brokers, Inc., 856 F. Supp. 147, 150 (S.D.N.Y.1993)); accord, Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir.1995).
In this case, plaintiff adduced evidence that Mr. Naraoka was the president of both Catch Ball and Orange Point, that he used the two companies to perform the same function in different parts of the United States, that Orange Point from time to time *479 had Catch Ball order goods on its behalf for delivery to a Catch Ball warehouse located near Orange Point, that the two companies split commissions, that the two companies spoke frequently on business matters, and that all goods purchased by both were shipped to Mr. Naraoka's Japanese company, Limousine International. She offered testimony that Gallup was set up in conjunction with Orange Point to buy for retail and to ship to Japan as well. (Tr. 31-36) There was evidence that Mr. Naraoka referred to Limousine as "the mother company" and ran both Orange Point and Catch Ball. (Tr. 74; see id. 32)
Defendant argues strenuously that the most important factor in the single employer determination is centralized control of labor relations and that there was no such evidence here. While this, to be sure, is defendant's strongest point, it does not carry the day. These three companies all were small entities. The evidence permitted the jury to find that all were run from Japan by Mr. Naraoka and that Mr. Naraoka dictated the manner in which plaintiff was treated throughout her employment by Catch Ball. This in turn permitted the inference that Mr. Naraoka controlled the labor and employment policies of all three companies and, in consequence, that the factor relied upon by the defendant was satisfied. Even if it was not, the other evidence of common ownership and control and of interrelationship of operations was sufficient to permit the ultimate conclusion that the entities were a single employer. Accordingly, this Court quite plainly had jurisdiction over the Title VII claim until it was dismissed at the end of the plaintiff's case. It retained jurisdiction over the ADEA claim throughout, as the single employer issue ultimately was determined by the jury and the number of employees was not determinable until the close of the evidence. The portion of the judgment pertaining to 1996 events therefore rests both on the ADEA and the state law claims. The balance rests on the state claims.
This Court's exercise of jurisdiction to decide the state claims clearly was proper. Section 1367(a) of the Judicial Code, as amended, 28 U.S.C. § 1367(a), provides, with exceptions not here relevant, that "the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." Plaintiff's state law and federal claims of employment discrimination involved exactly the same alleged conduct by the defendants. It simply cannot be denied that they formed part of the same case or controversy as the federal discrimination claims.
To be sure, district courts usually dismiss state claims for lack of jurisdiction where the jurisdiction-conferring federal claims to which they are pendent are disposed of before trial. They certainly have discretion, however, to retain state claims within the supplemental jurisdiction where the federal claims are not disposed of before trial. As the Court made clear during the trial, it would have been an absurd waste of resources to have dismissed the plaintiff's state law claims on jurisdictional grounds even if all of the federal claims had been dismissed during the trial. To do so now, even if the Court were mistaken as to the existence of ADEA jurisdiction with respect to the 1996 portion of the claim, would be even more senseless. Accordingly, lest there be any doubt, the Court reaffirms its exercise of discretion to retain the plaintiff's state law claims irrespective of whether the ruling as to the existence of a viable federal claim is correct.[5]
*480 II
Defendant's next contention is that the judgment, insofar as it rests on the New York State Human Rights Law ("NYSHRL"),[6] must be set aside because plaintiff brought an action on that claim in state court which remains pending. It argues that Section 300 of the NYSHRL makes the state action, while pending, plaintiff's exclusive remedy for violation of that statute. The contention suffers from factual, evidentiary and legal flaws.
To begin with, there is no evidence in the record that plaintiff brought a state court action, much less that it remained pending at the time of trial. While defendant raised this point in the pretrial order and listed a state court complaint as an exhibit (PTO, at 14), neither the complaint nor any other evidence of the existence, scope or pendency of the action ever was offered at trial.
Second, even if the Court were to assume that there is a state court action pending, defendant's argument would be unpersuasive. The pertinent provision of the NYSHRL provides:
"The provisions of this article shall be construed liberally for the accomplishment of the purposes thereof. Nothing contained in this article shall be deemed to repeal any of the provisions of the civil rights law or any other law of this state relating to discrimination because of race, creed, color or national origin; but, as to acts declared unlawful by section two hundred ninety-six of this article, the procedure herein provided shall, while pending, be exclusive; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned. If such individual institutes any action based on such grievance without resorting to the procedure provided in this article, he may not subsequently resort to the procedure herein." N.Y.EXEC.L. § 300.
Read in context, it is crystal clear that "the procedure herein provided" refers to administrative proceedings before the New York State Division of Human Rights. See, e.g., Gaynor v. Rockefeller, 21 A.D.2d 92, 97, 248 N.Y.S.2d 792, 800 (1st Dep't 1964), aff'd 15 N.Y.2d 120, 256 N.Y.S.2d 584, 204 N.E.2d 627 (1965); Moran v. Simpson, 80 Misc. 2d 437, 438-39, 362 N.Y.S.2d 666, 668 (Sup.Ct. Liv.Co.1974). Thus, one with a claim under the NYSHRL must elect between his or her administrative or judicial remedies. See Moodie v. Federal Reserve Bank of New York, 58 F.3d 879 (2d Cir.1995). But Section 300 does not preclude a court in which a claim under the NYSHRL is pending from rendering judgment on that claim on the ground that another action under that statute is pending before another court.[7]See State Div. of Human Rights v. County of Monroe, 88 Misc. 2d 16, 17-18, 386 N.Y.S.2d 317, 319 (Sup.Ct.Mon.Co.1976). Nothing in Moodie, relied upon by defendant, is to the contrary.
Finally, even if defendant had overcome all of these hurdles, there would be still another before it. While the alleged state court complaint is not before the Court, defendant asserts that it was filed on January 24, 1995, months before plaintiff's termination and certain of the events complained of in this action. (Def.Mem.12) In consequence, even if defendant's argument otherwise were well taken, it would have no effect on the award of front pay or the award of back pay for the period after January 24, 1995.
III
Defendant next contends that the judgment, to the extent it rests on the New York City Human Rights Law ("NYCHRL"), should be set aside because plaintiff (a) failed to serve a copy of her complaint on the City Commissioner of Human Rights and the Corporation *481 Counsel before filing this action as allegedly is required by Section 8-502(c) of the Administrative Code, and (b) seeks relief for actions which preceded September 16, 1991, the effective date of the NYCHRL. The arguments are without merit.
Section 8-502(c) of the Administrative Code requires persons bringing actions based upon Title 8 first to serve a copy of the complaint upon the Commissioner of Human Rights and the Corporation Counsel. As this Court previously has noted,[8] judges in this district have reached different conclusions as to whether the failure to do so, as defendant claims here, is fatal to a plaintiff's claim. This Court, however, is persuaded that it is not.
The issue is one of state law. In Bernstein v. 1995 Associates, 217 A.D.2d 512, 630 N.Y.S.2d 68 (1st Dept.1995), the Appellate Division, First Department, held that the giving of notice to the Commissioner and the Corporation Counsel is not "a condition precedent to maintaining a valid cause of action under Title 8 of the Administrative Code." 217 A.D.2d at 515, 630 N.Y.S.2d at 71. Rather, the court characterized it as "a device by which the City Commission ... and the Corporation Counsel would be apprised of any actions commenced under Title 8" and reversed the trial court's dismissal based on the failure to give notice. 217 A.D.2d at 516, 630 N.Y.S.2d at 72. Absent compelling indications that Bernstein would not be followed by the New York Court of Appeals, and there are none, this Court is obliged to give it great weight in determining the law of New York. Bernstein is consistent also with a number of decisions in this Court. E.g., Kim v. Dial Service International, Inc., No. 96 Civ. 3327 (DLC), 1997 WL 5902, at *7 (S.D.N.Y. Jan. 8, 1997); Luongo v. Nationwide Mutual Insurance Co., No. 95 Civ. 3190 (MBM), at *3, 1996 WL 445365 (S.D.N.Y. Aug. 7, 1996); Persaud v. S. Axelrod Co., No. 95 Civ. 7849 (RPP), 1996 WL 11197, at *6 n. 1 (S.D.N.Y.1996). Accordingly, this Court holds that the giving of notice under Section 8-502(c) is not a condition precedent to the maintenance of an action under Title 8 of the New York City Administrative Code. In any case, defendant has failed to preserve the point, as it did not move for judgment as a matter of law on this ground at trial. Lambert v. Genesee Hospital, 10 F.3d 46, 53-54 (2d Cir.1993).[9]
Defendant's contention that the NYCHRL claim, to the extent it rests on events prior to September 16, 1991, should be dismissed is puzzling. The point was not raised in the pretrial order or at trial. In view of the plain language of FED.R.CIV.P. 12(h)(2), it has been waived and may not be asserted by post-trial motion. E.g., Brown v. Trustees of Boston University, 891 F.2d 337 (1st Cir.1989) (failure to state claim waived if not raised by end of trial); 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1392, at 763 (1990). In any case, there would be little or nothing to the argument. While plaintiff testified to some age related comments and to the loss of a raise prior to September 1991, the raise thus lost never was quantified. The crux of the case was plaintiff's demotion and pay cut, effective June 30, 1992, and her subsequent termination.
IV
Defendant contends that there was insufficient evidence to prove age discrimination or retaliation.
Viewing the evidence in the light most favorable to the plaintiff, the jury was entitled to find the following:
In 1987, Mr. Naraoka, president of Catch Ball, told plaintiff that she should be satisfied with her annual raise because her salary was high for someone as old as she. Subsequently, Naraoka told her on a number of occasions that plaintiff was old and that he preferred a younger person in her position. (Tr. 96)
*482 In 1988, plaintiff received a raise lower than that of a younger employee. Upon questioning it, she was told by Naraoka that she was old and that it therefore did not matter what he paid her. (Id. 98-99)
In a July 1991 memorandum, Naraoka advised plaintiff that he wanted her to work until age 62, that he wanted to replace her as vice president of Catch Ball, and that he desired her support. (Id. 100)
In June 1992, Naraoka removed plaintiff as vice president and cut her pay. (Id. 108) In 1993, plaintiff met with Naraoka, who told her that if plaintiff were in Japan, she would retire or do "clerk work" after the age of 55. When plaintiff protested that this was the United States, Naraoka reiterated his view. (Id. 114)
In April 1994, Naraoka flatly asked plaintiff when she would leave. (Id. 115) When she responded that she wanted to work as long as she was healthy and the company profitable, perhaps until age 67 or 68, Naraoka told her that he did not want an old person hanging around, that she was not to stay past the age of 62, and that he wanted her to resign. (Id. 116) Plaintiff said that she would not resign and that Naraoka would have to fire her. Naraoka responded that he would not fire her but wanted her to quit. (Id.) In June 1994, the defendant began altering plaintiff's job responsibilities by shifting more and more of her duties to a younger employee, a process that accelerated when plaintiff filed an EEOC complaint in November 1994. (Id. 117)
On June 27, 1995, plaintiff reached age 62. In September 1995, the EEOC issued a right to sue letter to plaintiff. Shortly thereafter, plaintiff became the target of claims, which the jury was entitled to find were untrue, that she had been abusive and disrespectful in the office. She received no annual raise in 1995. (Id. 123) Finally, in early 1996, plaintiff was terminated. (Id. 133)
This evidence went substantially uncontroverted at trial. The only witness called by defendant was Sally Lee, the co-worker at Catch Ball who gradually succeeded to plaintiff's responsibilities. Ms. Lee was in no position to dispute the various statements attributed by plaintiff to Naraoka, and the jury was not obliged to believe the little she did say.
In these circumstances, the jury was more than amply justified in finding both age discrimination and retaliation. Indeed, the defendant's contrary argument is frivolous.
Conclusion
Defendant's motion for judgment as a matter of law is denied in all respects.
SO ORDERED.
NOTES
[1] The case was consolidated for trial with Preda v. Catch Ball Products Corp., 96 Civ. 0101 (LAK). The jury found for defendant in that case, which now is on appeal.
[2] While defendant's motion was styled one for summary judgment, it arguably was a speaking motion pursuant to Rule 12(b)(1) insofar as it raised the jurisdictional issue. This Circuit, however, treats such 12(b)(1) motions as motions for summary judgment. See Exchange National Bank v. Touche Ross & Co., 544 F.2d 1126, 1130-31 (2d Cir.1976), cert. denied 469 U.S. 884, 105 S. Ct. 253, 83 L. Ed. 2d 190 (1984). Accordingly, the Court regards Rule 56(c) as applicable to them.
[3] No party sought, and the jury was not asked to make, a finding as to the number of employees the three companies had in any of the relevant years. The Court therefore exercises its power under FED.R.CIV.P. 49 to make such findings now. Catch Ball during most of the relevant period had six employees: plaintiff Westphal, Gabriel Preda, Sui Ling Lam, Sally Lee, Eric Ng, and Mr. Naraoka. (Tr. 32, 156, 211) The number dropped to five in September 1995 when Preda was fired. (Id. 55 (fired Sept. 1995), 228 (Preda not replaced)) In 1993, 1994, 1995 and 1996, Orange Point and Gallup had a total of 8, 13, 13 and 14 full time and 3, 0, 0 and 1 part time employees who worked every day during a total of 20 weeks during the period, respectively. (Id. 205-06) The part time employees who work regularly must be included in determining whether the statutory definition is satisfied. Cohen v. S.U.P.A., 814 F. Supp. 251, 254-55 (N.D.N.Y. 1993). Accordingly, the three companies together had 17 employees in 1993, 19 in each of 1994 and 1995, and 20 in 1996 at the time plaintiff was terminated.
[4] Although it does not mention Gallup, the Court assumes that it intends the same argument with respect to that entity.
[5] Although defendant does not articulate the argument in this way, perhaps its unstated premise is that there was no federal question jurisdiction to begin with and therefore no predicate for the exercise of supplemental jurisdiction. If that is the argument, it is mistaken. Federal courts have jurisdiction to determine the existence or absence of jurisdiction. E.g., Land v. Dollar, 330 U.S. 731, 739, 67 S. Ct. 1009, 1013, 91 L. Ed. 1209 (1947). Here, the existence of federal question jurisdiction depends upon factual issues that were neither ripe nor determined until trial. One of the jurisdictional issues whether the three companies were a "single employer" for Title VII purposes required consideration, among other things, of the manner in which their employment policies were determined. This issue overlapped the question whether Catch Ball's treatment of plaintiff was discriminatory, as both involved Naraoka's role in the enterprise. As both the jurisdictional issues and the state law claims arose from a common nucleus of operative fact, the Court had supplemental jurisdiction over the state law claims irrespective of the outcome of the federal jurisdictional issue.
[6] N.Y.EXEC.L. § 290 et seq. (McKinney 1993).
[7] Of course, principles of former adjudication in most cases would result in the adjudication in the first case to go to judgment controlling the outcome of any other then pending.
[8] Dryden v. Tiffany & Co., 919 F. Supp. 165, 167 (1996).
[9] Irrespective of whether compliance with Section 8-502(c) is a condition precedent to suit, it is manifest in light of what has been said already that failure to comply is not a jurisdictional defect which was unaffected by defendant's failure to preserve the point.
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648 So. 2d 204 (1994)
Nancy FRIEDBERG and Lori Friedberg, Appellants,
v.
SUNBANK/MIAMI, N.A., et al., Appellees.
No. 94-146.
District Court of Appeal of Florida, Third District.
December 21, 1994.
Rehearing Denied January 18, 1995.
*205 Downey & Downey, P.A., Edward Downey, Palm Beach, for appellants.
Green, Kahn, Piotrkowski & Miller, P.A., Robert B. Miller, Miami Beach, for appellees.
The Real Property, Probate & Trust Law Section of The Florida Bar, Robert W. Goldman, as amicus curiae.
Before HUBBART, BASKIN and GREEN, JJ.
GREEN, Judge.
Nancy and Lori Friedberg appeal from a final order of the trial court which denied their petition to take an elective share against the assets of a revocable, inter vivos trust established by Milton E. Friedberg or to have a constructive trust imposed upon the family residence and 30 per cent of the assets of the trust. We affirm.
Milton and Nancy Friedberg had been married for 38 years at the time of his death in 1992. Lori is the surviving child of the marriage. Milton executed a revocable, inter vivos trust in 1990. Also in 1990, Milton and Nancy signed a quit-claim deed which transferred a condominium, the family residence, to the trust. A "pour over" will executed by Milton at the same time passed any probate assets into the trust for disposition at Milton's death.
Milton died in 1992. At the time of his death his estate was valued at over $7 million. Of this amount, $247,386 passed in probate. The terms of the trust provided $1,500,000 to Nancy in a charitable remainder trust, $400,000 to Lori in a charitable remainder trust, a separate $500,000 medical trust and a life estate in the condominium to Nancy. The remaining $4 million went directly to various charities. On Nancy's death her $1,500,000 trust and the condominium are to be paid to charity and upon Lori's death her $400,000 trust and the $500,000 medical trust also are to be paid to charity. It is undisputed that the amount provided to Nancy by the inter vivos trust is less than what she would have received as an elective share under Florida Statute 732.207.[1]
The Florida Supreme Court has held that the right to devise property is a property right protected by the Florida Constitution. Shriners Hosps. for Crippled Children v. Zrillic, 563 So. 2d 64, 67 (Fla. 1990). This protection extends to completed inter vivos transfers by a spouse which reduce the transferring spouse's probate estate, even when done with the specific intent to diminish or eliminate a surviving spouse's statutory elective share. Traub v. Zlatkiss, 559 So. 2d 443, 446 (Fla. 5th DCA 1990).
The right to an elective share is limited to assets which are subject to administration. § 732.206, Fla. Stat. (1991). Assets included in an inter vivos trust are not subject to administration. Estate of Solnik, 401 So. 2d 896, 897 (Fla. 4th DCA 1981). "In enacting sections 732.201 and 732.206, the legislature effectively limited the `elective share' to the probate estate." Kelley v. Hill, 481 So. 2d 1311, 1312 (Fla. 2d DCA 1986).
*206 When the legislature revised the Probate Code in 1974 it rejected section 2-202 of the Uniform Probate Code which provided that surviving spouses could not be deprived of a "fair share" of an estate through the use of a "will substitute". Solnik. Hence the trial court did not err when it denied the petition for an elective share against the assets of a revocable trust or to have a constructive trust imposed.
We must point out, however, that we are troubled by this result. This case involves a long term, intact marriage. We find it strange that a divorced spouse is entitled, under section 61.075, Florida Statutes, to reach assets held in a revocable, inter vivos trust but a loving, devoted spouse is not. See Carrison v. Carrison, 486 So. 2d 1363 (Fla. 1st DCA), rev. denied 494 So. 2d 1149 (Fla. 1986), and cases cited therein. Further, both the appellees and amicus[2] indicated that it would be legal for a spouse to place all of the assets into a revocable trust and thereafter fail to provide for the surviving spouse. Indeed, the amicus brief stated that a citizen has "a constitutional right to be a meanspirited, no good curmudgeon" and that there are no "statutory impediments to developing an estate plan that cuts out the spouse".[3] Although we believe this to be a manifestly unfair result and poor public policy, we recognize that we are not the appropriate forum to correct the same. We encourage the legislature to revisit the issue.
Affirmed.
NOTES
[1] This statute provides that:
... The elective share shall consist of an amount equal to 30 percent of the fair market value, on the date of death, of all assets referred to in s. 732.206, computed after deducting from the total value of the assets:
(1) All valid claims against the estate paid or payable from the estate; and
(2) All mortgages, liens, or security interests on the assets.
[2] Because the result seemed so anomalous, we asked the Real Property, Probate & Trust Law Section of The Florida Bar to file a brief as amicus addressing the question of whether assets placed in a revocable, inter vivos trust are subject to claims of a surviving spouse's elective share in the same manner as claims by creditors and former spouses. We thank the section for taking the time to respond and to provide us with its input.
[3] The section advised this court that it, in conjunction with the Family Law, Tax Law and Elder Law Sections of The Florida Bar, began studying the issue of revocable, inter vivos trusts and the elective share two years ago, working on the premise that the current statutes can lead to unfair results and attempting to develop a new statute to present to the legislature.
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998 So. 2d 624 (2009)
SIMMONS
v.
STATE.
No. 5D08-3609.
District Court of Appeal of Florida, Fifth District.
January 8, 2009.
Decision without published opinion. Affirmed.
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838 S.W.2d 331 (1992)
CELLULAR MARKETING, INC., Appellant,
v.
HOUSTON CELLULAR TELEPHONE CO., Appellee.
No. A14-91-00772-CV.
Court of Appeals of Texas, Houston (14th Dist.).
October 1, 1992.
Rehearing Denied October 29, 1992.
*332 Charles Rice Young, Houston, for appellant.
Robert Boemer, Al Stahely, Bonnie White, Houston, for appellee.
Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.
OPINION
SEARS, Justice.
Appellant, Cellular Marketing, Inc., appeals from a judgment for the plaintiff for breach of contract. A jury awarded damages to Houston Cellular Telephone Co. after the trial court struck Cellular Marketing's Inc. pleadings and entered a default judgment on liability. We affirm.
Houston Cellular Telephone Co. ("Houston Cellular") owns and operates a cellular radio telephone network service. Cellular Marketing, Inc. ("Cellular Marketing") sold cellular radio telephone equipment and was an agent selling cellular telephone services.
Houston Cellular sued Cellular Marketing for breach of an exclusive agency agreement under which Cellular Marketing agreed to act as an exclusive sales agent for Houston Cellular.
On December 27, 1989, Houston Cellular served Cellular Marketing with sixty-five requests for production. Cellular Marketing failed to produce the documents requested.
On April 17, 1990, Houston Cellular informed the Court that the discovery requests from December 1989 were still outstanding, and it was considering a Motion to Compel and for Sanctions. Cellular Marketing's counsel promised to provide the discovery in "twenty-four to fourty-eight hours."
On April 19, 1990, the Court granted Houston Cellular's Special Exceptions to Cellular Marketing's Third Amended Answer. Counsel for Cellular Marketing requested four to five days to replead. The Court allowed Cellular Marketing five days to file an amended answer. Trial was set for April 27, 1990. However, Cellular Marketing did not produce the discovery as promised and did not file it's amended answer as ordered. Trial had to be reset for May 14, 1990.
On May 2, 1990, Cellular Marketing requested discovery from Houston Cellular and filed a notice to depose Mr. Hausman.[1] The Court noted that Cellular Marketing still had not complied with Houston Cellular's discovery requests. Cellular Marketing again promised production of the documents within two days. The Court then ordered that the discovery be exchanged on Friday, May 4, 1990. Cellular Marketing still had not filed it's amended answer; it was now eight days late.
On May 4, 1990, Houston Cellular filed a Motion to Quash the Deposition of Mr. Hausman, a Motion to Compel, (and for Sanctions), and a Protective Order. Cellular Marketing still failed to produce all of the documents as promised and as ordered by the Court. The Court postponed the hearing on the motions until Monday, May
*333 7, 1990. Cellular Marketing still had not filed it's amended answer; it was now ten days late.
On May 7,1990, the Court granted Houston Cellular's Motion to Quash and the Protective Order. Mr. Young, counsel for Cellular Marketing, took the stand and testified that they produced all documents they could find. Houston Cellular disputed this contention and cited two categories of documents missing:
(1) 1989 tax return forms and W2 forms; and
(2) Detailed billing statements and invoices for Cellular Marketing customers; (evidence of its sales to GTE in violation of their agreement).
The Court noted that it was anxious for defendant's amended answer; it was thirteen days late.
On May 11, 1990, Houston Cellular again informed the Court that discovery was not complete and asked for a hearing on its Motion to Compel and for Sanctions. The Court granted a hearing for Monday, May 14, 1990. Cellular Marketing's amended answer was now seventeen days late.
On May 14, 1990, Houston Cellular summarized the discovery events and requested that the trial court strike the defendant's pleadings under Tex.R.Civ.P. 215(2)(b)(5). The Court's order read as follows: "having heard the argument, and knowing the file pretty well, with all the pleadings and all the motions that have occurred, the Court will issue an interlocutory judgment for the Plaintiff under 215.... Defendant's pleadings will be stricken."
On September 20, 1990, the Court denied Cellular Marketing's Motion for Rehearing on the Court's decision to strike Cellular Marketing's pleadings. After a trial on damages, a jury awarded relief to plaintiff, Houston Cellular.
On April 25, 1991, a final judgment was signed and entered. It is from this judgment that Cellular Marketing appeals.
Cellular Marketing brings one point of error, alleging that the trial court
p.Houston [14th Dist] 1992) abused it's discretion by striking their pleadings on May 14, 1990, and entering a default judgment for the plaintiff.
The standard of review in this appeal is abuse of discretion. "Discovery sanctions imposed by a trial court are within that court's discretion and will be set aside only if the court clearly abused its discretion." Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex.1986) citing Street v. The Second Court of Appeals, 715 S.W.2d 638 (Tex.1986). The test for abuse of discretion is whether the court acted without reference to any guiding rules and principles, or whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-2 (Tex.1985) cert, denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). In determining whether the trial court has abused it's discretion an appellate court is to review the record in the light most favorable to the trial court's action. Vaughn v. Texas Employment Comm'n, 792 S.W.2d 139, 143 (Tex.App.Houston [1st Dist.] 1990, no writ).
When the Court imposed the sanctions it did not state what specific discovery abuses it found. However, Appellant never requested findings of facts nor conclusions of law. Absent findings of fact or conclusion of law it is implied that the trial court made all necessary findings to support the judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989).
Further, it is clear from the record that appellant did not comply with the trial court's order of April 19, 1990 instructing them to replead within five days. The trial court had granted special exceptions by Houston Cellular and ordered Appellant to replead. Cellular Marketing continually made representations to the Court that it's amended answer would be forthcoming, yet twenty-one days later it still was not filed. Further, the Court could have found at the hearing on May 14, 1990 that Cellular Marketing had not in fact produced all the requested discovery in their possession.[2]
*334 In TransAmerican Natural Gas v. Powell, 811 S.W.2d 913 (Tex.1991), the Supreme Court held that a court must consider the availability of less stringent sanctions. The record on appeal indicates that the trial judge was extremely lenient with the Appellant. On May 7,1990, seven days before trial, the Court considered continuing the case again and appointing a master. It stated:
"Let me point something out. I have been doing everything possible to keep a trial date for you all.... I don't think [Cellular Marketing] is entitled to anything until such time as they answe... But by the same token I don't intend to foreclose this case by simply saying ... grant default judgment ... for the plaintiff.... If y'all can't get together on what you are going to ask various people or whoever's depositions are going to be taken... [and] until I see [Cellular Marketing's] answer ... I don't think I am in a position to do anything."
The Court heard the arguments and excuses of both sides in this discovery dispute on April 17, April 18, April 19, May 2, May 7, May 11, and May 14, 1990. On more than one occasion the Court ordered Cellular Marketing to produce the discovery requested by Houston Cellular and to amend its answer.[3] Cellular Marketing failed to comply with any of the Court's orders. The only justification Cellular Marketing gave for its lack of diligence was that the case seemed to be "continually changing." Appellant's response was not a valid justification. When an offending party files late and incomplete responses to discovery and violates court orders, giving no justification for its lack of diligence, the trial court may strike that party's pleadings. Koslow's v. Mackie, 796 S.W.2d 700, 704 (Tex.1990). Multiple violations of the discovery rule and court orders may authorize the imposition of a default judgment even when the offending party offers justifications and excuses. Id.
However, "sanctions which are so severe as to preclude presentation of the merits of the case should not be assessed absent a party's flagrant bad faith or counsel's callous disregard for the responsibilities of discovery under the rules." TransAmerican. Cellular Marketing's failure to amend its answer despite a direct court order to do so, and its failure to fully produce discovery after six requests by Houston Cellular and several court orders, can be viewed as either flagrant bad faith or callous disregard. The Court noted on May 14, 1990 that Cellular Marketing had been completely "destroying the rules of discovery."
Due process requires that a party be given reasonable notice of a hearing on motions for sanctions. Allied Chemical Co. v. DeHaven, 824 S.W.2d 257, 262 (Tex. App.Houston [14th Dist] 1992, no writ). On April 17, 1990, Houston Cellular indicated to Cellular Marketing and the Court that it was considering a Motion to Compel. There were five court hearings between April 17, 1990 and May 14, 1990. On May 11, 1990, Houston Cellular requested that the Court set a date for a hearing on its Motion to Compel and for Sanctions; that hearing was held on May 14, 1990. During that hearing the Court allowed both sides to fully present their case on the discovery dispute. Finally, on September 28, 1990, the Court allowed Cellular Marketing to come forward with its Motion for Rehearing, and again allowed Cellular Marketing to fully present its case. Cellular Marketing was given notice and fair opportunity to respond. *335 A trial court should only strike a party's pleadings for discovery abuses in severe cases where repeated requests and warnings from the court go unheeded. Unfortunately, that is the case before us. Cellular Marketing totally refused to fully comply with discovery in spite of numerous requests and court orders. Cellular Marketing provided no clear explanation as to why it could not produce the requested discovery or amend its answer. The fault was apparently shared by the party and by the attorney. After numerous hearings and violations the Court exercised it's discretion and struck the defendant's pleadings. Appellant's point of error is overruled and the judgment of the trial court is affirmed.
NOTES
[1] Mr. Hausman is an officer of Houston Cellular
[2] Houston Cellular listed specific documents which were still missing as of May 14, 1990. Such documents included 1987 information on corporate compensation to Larry Shaefer. Celhilar Marketing had stated under oath on May 7, 1990 that this information, and all information that they could find had been produced. Further, Cellular Marketing never filed a written response to the request for productions, as required by Tex.R.Civ.P. 167.
[3] On April 17, the Court indicated that it was relying on Cellular Marketing's promise to produce information in two days. On April 19, the Court ordered Cellular Marketing to amend its answer within five days. On May 2, the Court ordered Cellular Marketing to produce all discovery by May 4. On May 7, the Court granted Houston Cellular's Motion to Quash and indicated the deposition would not go forward until Cellular Marketing produced the discovery. Cellular Marketing violated each order.
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713 N.W.2d 199 (2006)
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,
v.
Kay E. DULL, Respondent.
No. 05-2024.
Supreme Court of Iowa.
April 28, 2006.
*201 Charles L. Harrington and David J. Grace, Des Moines, for complainant.
Kay E. Dull, Spirit Lake, pro se.
LAVORATO, Chief Justice.
The Iowa Supreme Court Board of Professional Ethics and Conduct, now the Iowa Supreme Court Attorney Disciplinary Board, filed a multi-count complaint against attorney Kay E. Dull. The allegations of misconduct fall into four categories: appearing in court while under the influence of alcohol; being convicted of operating a motor vehicle while intoxicated (OWI), third offense; neglecting legal matters entrusted to her; and failing to respond to inquiries from the Board.
Following a hearing, the Grievance Commission of the Iowa Supreme Court found that Dull had violated numerous provisions of the Iowa Code of Professional Responsibility for Lawyers. The Board and Dull filed a stipulation with the Commission for a one-year suspension to run concurrently with a temporary suspension we imposed on March 11, 2003. The Commission rejected the stipulation and recommended that Dull's license to practice law be suspended for two years from the date of its hearing, September 29, 2005. We agree with the Commission's findings and recommendation of a two-year suspension but order that such suspension run from the date of this opinion. We rescind the March 11, 2003 temporary suspension order.
I. Scope of Review.
We review attorney disciplinary proceedings de novo. Iowa Sup.Ct. Att'y Disciplinary Bd. v. Zenor, 707 N.W.2d 176, 178 (Iowa 2005). The Board must establish the charges by a convincing preponderance of the evidence. Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Steffes, 588 N.W.2d 121, 122 (Iowa 1999). "This quantum of proof is `something less than required in a criminal prosecution, and is something more than is required in a civil proceeding.'" Id. (citation omitted).
*202 II. Facts.
On our de novo review, we find the following facts. Dull has been practicing law as a solo practitioner in northwest Iowa since 1991. From 1986 to 1991, Dull was employed by a law firm.
At the disciplinary hearing, Wanda Rae Smith, Aimee Devereaux, Jeffrey Ryan, and Ellen Langseth, Dull's former clients, testified. Dull appeared but did not testify. The Board offered and the Commission received into evidence twenty-eight exhibits.
A. Appearing in court while under the influence of alcohol. On January 28, 2002, Dull appeared for a hearing before Judge James D. Scott while under the influence of alcohol. When the judge questioned Dull about it, she denied she had been drinking. Dull admitted these facts in her answer to the Board's complaint.
B. Conviction of OWI, third offense. On December 31, 2002, Dull was convicted of OWI, third offense, in violation of Iowa Code section 321J.2 (2001). The offense occurred on April 25, 2002. A third offense OWI is a class "D" felony. Iowa Code § 321J.2(2)(c). Dull's answer to the Board's complaint did not deny these facts. In evidence is a judgment of conviction of that offense.
C. Neglect.
1. Wanda Rae Smith. In October 2000 Smith hired Dull to obtain a dissolution of marriage for Smith. Smith gave Dull $500 for the legal services necessary to dissolve her marriage. On November 17, 2000, Dull filed Smith's petition for dissolution of marriage.
Smith began calling Dull about the progress of her case. She called Dull daily for about a month before she was ever able to speak with her. When Smith finally reached Dull, Dull put Smith on hold and never returned to the phone.
Finally, Smith had to hire another attorney to complete the matter for her. The attorney sent Dull a letter requesting Smith's file and an itemized statement of services. Dull never responded. Consequently, the attorney had to copy the court file so the attorney could proceed to obtain the dissolution for Smith.
Once the dissolution was finalized, Smith tried to contact Dull again to recover the money she had paid Dull. Smith talked to Dull once, and Dull told her the bookkeeper would send a check for what was due Smith. Smith never received a check.
2. Aimee Devereaux. In January 2002 Dull agreed to represent Devereaux regarding $26,000 in back child support owed by Devereaux's ex-husband. At the time, Devereaux left several original documents with Dull. The documents included a journal regarding child support issues, a divorce decree, and other court orders concerning child support matters. Dull told Devereaux that she had commitments and other issues she was working on at the time but she would get back to Devereaux in about three weeks.
After four or five weeks of no word from Dull, Devereaux tried to call her with no success. Devereaux left messages with a secretary and then with an answering machine. At first, Devereaux called to get a progress report on her case. When Dull did not return Devereaux's calls, Devereaux left messages in an attempt to get her file back so she could engage another lawyer to pursue her case.
Eventually, with the help of the Dickinson County Attorney, Devereaux was able to get her file back in October 2002. Devereaux had not paid Dull any retainer.
3. L.M. Dull undertook to represent L.M., a mother in a termination of parental *203 rights appeal. On August 2, 2002, this court dismissed L.M.'s appeal for failure to prosecute the appeal. The dismissal order, which is in evidence, stated that there had been three motions to dismiss filed and each related to Dull's failure to prosecute the appeal. The order further stated, "The appeal has been marked by delay and neglect resulting from appellate counsel's failure to comply with the applicable rules of appellate procedure."
4. Jeffrey D. Ryan. In late 2000 Dull began representing Ryan in a modification of a dissolution-of-marriage decree. Ryan sought to modify the decree so that he could have custody of his son. At their first meeting, Ryan gave Dull a $200 retainer. At their second and third meetings, Ryan gave Dull $500 and $300, respectively.
On February 19, 2002, Dull filed a motion to modify the decree. On April 18 trial was set for May 30. In the meantime, Ryan tried to get information from Dull about the action. Ryan asked about approaching court dates, and Dull never responded to those inquiries. Ryan learned of the May 30 trial date from his ex-wife. To make matters worse, Dull did not appear for trial on May 30. Fortunately for Ryan, the court gave him a continuance. Through the efforts of another attorney, Ryan was able to win custody of his son, which cost him $7500 in attorney fees to the new attorney and $5000 to Ryan's ex-wife to induce her to settle.
Ryan filed a claim with the Client Security Commission for the fees he had paid Dull. Ryan was unable to recall how much the Client Security Commission had paid him, but whatever they paid him did not fully compensate him.
5. Ellen Langseth. In April 2002 Langseth's husband filed a petition for dissolution of marriage. Langseth tried to represent herself but then sought Dull's help in August at which time she gave Dull a $500 retainer. Dull was able to get a continuance, and as a result trial was set for October 1.
In the meantime, Langseth's accountant tried several times to fax Dull Langseth's financial information; the accountant was unsuccessful because Dull's fax machine was turned off. Consequently, Dull never prepared and filed an affidavit of financial status on Langseth's behalf as required by a pretrial order.
On the day of trial, Dull did not have the financial information the accountant was trying to fax to her. Concerned about losing her Iowa Public Employees' Retirement System (IPERS) pension because she had no financial statement as required by the pretrial order, Langseth felt compelled to reach a settlement with her husband on her own. She settled with her husband by paying him $2700 in return for her keeping her IPERS pension and some burial plots.
6. Other cases. The Board filed two other counts alleging neglect of a client's legal matter. Like the Commission, we find the Board failed in its proof on those allegations.
C. Failing to respond to Board inquiries. Dull failed to give any response to notices of inquiry in four of the counts. As to some of the counts, she admitted she received more than one notice of inquiry and that she did not respond. Dull failed to respond in a timely manner to the notices of inquiry from the Board in one of the counts.
III. Ethical Violations.
A. Appearing in court while under the influence of alcohol. The Commission found that Dull violated several disciplinary rules by appearing in court while under the influence of alcohol and in *204 denying she had been drinking. These include DR 7-106(C)(6) (in appearing in a professional capacity before a tribunal, lawyer shall not engage in undignified or discourteous conduct that is degrading to a tribunal), DR 1-102(A)(1) (lawyer shall not violate a disciplinary rule), (4) (lawyer shall not engage in conduct involving dishonesty or misrepresentation), (5) (lawyer shall not engage in conduct that is prejudicial to the administration of justice), and (6) (lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law).
We have found a violation of DR 7-106(C)(6) when counsel made "outrageously unprofessional" comments in a brief, Sonksen v. Legal Servs. Corp., 389 N.W.2d 386, 388-89 (Iowa 1986), and when counsel lost his temper in chambers, slammed a book on the floor, and used obscene language to criticize the judge's refusal to grant a continuance, Comm. on Prof'l Ethics & Conduct v. Rauch, 486 N.W.2d 39, 39-40 (Iowa 1992) (per curiam). We find that Dull's appearance in court while under the influence of alcohol and denial of such condition qualify as a display of undignified or discourteous conduct toward a tribunal in violation of this disciplinary rule. In addition, we find that such conduct also violates DR 1-102(A)(1), (4)-(6). See Iowa Sup.Ct. Att'y Disciplinary Bd. v. Kadenge, 706 N.W.2d 403, 409-10 (Iowa 2005) (holding that attorney's conduct in appearing in court while under the influence of alcohol and in telling the judge that he had not been drinking violated DR 1-102(A)(1), (4)-(6)).
B. Conviction of OWI, third offense. In its complaint, the Board charged that Dull violated DR 1-102(A) by her conviction of OWI, third offense. The Commission found that Dull had violated DR 1-102(A)(5)-(6), a finding we adopt. See Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Marcucci, 543 N.W.2d 879, 880-81 (Iowa 1996) (holding that a conviction for OWI, third offense, is a violation of DR 1-102(A)(6)). In Marcucci, we noted that a felony conviction is "an extremely serious breach of the rules of society" and, under Iowa Code section 602.10122(1), may be grounds for revocation or suspension of a lawyer's license. Id. at 882.
Exhibits in evidence indicate that Dull has been convicted of OWI four times with two of those arrests resulting in those convictions coming within a month's time. Less than three months after the arrest for the offense in question, Dull was arrested for OWI, fourth offense. Less than seven months after the arrest in question, Dull was again arrested for OWI, fourth offense. We mention Dull's OWI history to underscore her serious problem with alcohol abuse.
C. Neglect. Regarding Smith, Devereaux, L.M., Ryan, and Langseth, the Board charged that Dull violated DR 6-101(A)(3) (lawyer shall not neglect a client's legal matter), DR 7-101(A) (lawyer shall not fail to seek the lawful objectives of a client through reasonably available means), and DR 1-102(A)(1), (5)-(6). Regarding Smith, the Board additionally charged that Dull violated DR 9-102 by not making a timely accounting and refund of the unearned portion of the retainer Smith paid Dull.
In several cases we have discussed what constitutes neglect for purposes of DR 6-101(A)(3). In Committee on Professional Ethics & Conduct v. Bitter, we said:
The rule, however, does not proscribe mere delayit must amount to "neglect." Application of the rule should require a lawyer to complete legal matters entrusted to him in a reasonably timely manner. If necessary, he should decline additional legal matters if accepting *205 them would result in neglecting pending matters, seek assistance, or disengage himself from these lingering matters and allow another lawyer to complete them.
279 N.W.2d 521, 524 (Iowa 1979).
More specifically, we have detailed what constitutes neglect as
"indifference and a consistent failure to carry out the obligations which the lawyer has assumed to his client or a conscious disregard for the responsibility owed to the client. The concept of ordinary negligence is different. Neglect usually involves more than a single act or omission. Neglect cannot be found if the acts or omissions complained of were inadvertent or the result of an error of judgment made in good faith."
Comm. on Prof'l Ethics & Conduct v. Rogers, 313 N.W.2d 535, 536 (Iowa 1981) (citation omitted).
In the same vein, we said in Iowa Supreme Court Board of Professional Ethics & Conduct v. Moorman:
Neglect is not defined by our rules of ethics, but it has generally been recognized to involve indifference and a consistent failure to perform those obligations that a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer owes to a client. Neglect is more than ordinary negligence and usually involves multiple acts or omissions. It is a form of professional incompetence that often involves procrastination, such as a lawyer doing little or nothing to advance the interests of a client after agreeing to represent the client.
683 N.W.2d 549, 551-52 (Iowa 2004) (citations omitted); accord Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. McKittrick, 683 N.W.2d 554, 559 (Iowa 2004).
Dull's actions toward these five clients represent a pattern of indifference and procrastination. In each instance, Dull would take the case and do little or nothing thereafter to advance the interests of the client. She repeatedly failed to return calls. In one instance when Dull did take a call, she left the client holding and never returned to talk to her. In three of the cases, the client had to retain another attorney to complete the work. In one case, Dull let an appeal be dismissed because of her inaction in failing to respond to three motions to dismiss for failure to prosecute the appeal. In another case, Dull actually showed up for a hearing but was so unprepared because of her repeated failure to communicate with the client and the client's accountant that the client felt compelled to settle to protect her IPERS pension.
We agree with the Commission and find that Dull's conduct towards these five clients constitutes neglect in violation of DR 6-101(A)(3) and also constitutes a violation of DR 7-101(A), and DR 1-102(A)(1), (5)-(6). Regarding Smith, we agree with the Commission and find that Dull violated DR 9-102 when she failed to make a timely accounting and refund of the unearned portion of the retainer that Smith paid Dull.
D. Failing to respond to Board inquiries. The Commission found and we agree that Dull's failure to respond to notices from the Board regarding complaints constitutes a violation of DR 1-102(A)(5)-(6) as charged by the Board. See Iowa Sup.Ct. Att'y Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 399-400 (Iowa 2005) (holding that failure to respond to Board inquiries is a violation of DR 1-102(A)(5)-(6)).
IV. Discipline.
In determining the appropriate sanction in attorney disciplinary cases, we *206 focus on the attorney's "`"fitness to continue in the practice of law, deterrence of others from similar conduct, and assurance to the public that the courts will maintain the ethics of the profession."'" Zenor, 707 N.W.2d at 185 (citations omitted). Additional considerations include the nature of the violations and aggravating and mitigating circumstances. Id. While we recognize that there is no standard discipline imposed for particular instances of attorney misconduct, we look to similar cases for guidance. Id.
In those cases in which neglect is the principal violation, discipline generally ranges from a public reprimand to a six-month suspension. Kadenge, 706 N.W.2d at 410. We have, however, imposed a one-year suspension for multiple instances of neglect of client's legal matters that resulted in client harm, Iowa Sup.Ct. Att'y Disciplinary Bd. v. Maxwell, 705 N.W.2d 477, 480-81 (Iowa 2005), and a two-year suspension in a case involving multiple instances of neglect in which clients suffered harm, Moorman, 683 N.W.2d at 552-53.
Here at least one client L.M. was directly harmed by Dull's neglect. L.M. lost her opportunity to appeal the termination of her parental rights due to Dull's failure to prosecute the appeal. In Ryan's case, Dull's neglect delayed his custody suit not to mention the fact that Dull's actions caused him anxiety and frustration. Langseth felt compelled to reach a settlement she otherwise might have avoided had Dull been prepared. Devereaux had to have legal help just to get her file back. Smith's new attorney had to copy her court file to secure the dissolution decree because Dull would not respond to the attorney's letter. Smith, Devereaux, and Ryan had to hire new lawyers to complete the work Dull agreed to do. Moreover, Dull never responded to Smith when she asked for a return of the unearned retainer. Ryan went so far as to file a claim with the Client Security Commission, which paid some of the unearned retainer. These repeated instances of neglect constitute aggravating circumstances for us to consider in determining discipline. Moorman, 683 N.W.2d at 553. They alone warrant suspension for a considerable period of time.
Appearing in court in an intoxicated condition is a serious violation of our code of ethics. Kadenge, 706 N.W.2d at 410. We noted in Kadenge that in other jurisdictions sanctions for similar conduct have ranged from public reprimand to disbarment. Id. Dull compounded this serious violation by lying to the judge when she was asked if she had been drinking. See id. at 409-10.
Dull stands convicted of OWI, third offense, a felony. In our determination of appropriate discipline, we consider only this conviction because that is the only one the Board charged. The felony conviction alone could warrant revocation. See Iowa Code §§ 602.10121, 602.10122(1). In Marcucci, this court imposed a six-month suspension. 543 N.W.2d at 883. In that case, the only matter before the Commission was the attorney's conviction of felony OWI. Id. at 880-81. In addition, the record showed that the attorney continued to be an effective advocate notwithstanding his problems with alcohol abuse, a mitigating factor in the attorney's favor. Id. at 881.
Finally, there is the matter of Dull's failure to respond to Board inquiries. Dull's attitude in this respect reflects disdain for the disciplinary system. We have imposed a reprimand when such failure was the only misconduct considered. See Comm. on Prof'l Ethics & Conduct v. Stienstra, 390 N.W.2d 135, 136 (Iowa 1986).
*207 Dull has been disciplined beforea reprimand in 2001 for neglect of a client's legal matter and for failure to provide the Board with a timely response. The reprimand is an aggravating circumstance that we consider in our determination of discipline. Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Pracht, 656 N.W.2d 123, 126 (Iowa 2003). Another aggravating factor is experience in the practice of law. Iowa Sup.Ct. Bd. of Prof'l Ethics & Conduct v. Wagner, 599 N.W.2d 721, 730 (Iowa 1999). Dull has practiced law since 1986 and should have been well aware that her actions constituted serious breaches of our ethical rules.
Dull stated in an answer to a Board interrogatory filed in May 2005 that she does not intend to practice law again in this state. In the same answer Dull stated she has serious health problems. She disclosed she has been diagnosed with end-stage liver disease and is awaiting a liver transplant. According to Dull, the damage to her liver creates a condition known as encephalopathy. The symptoms of this condition, she says, include confusion, fatigue, memory failure, lack of focus, and insomnia. However sympathetic we may feel, her state of health will not excuse her ethical violations because "it is our duty to protect the public we serve from lawyers rendered unfit from any cause." Comm. on Prof'l Ethics & Conduct v. Paulos, 410 N.W.2d 260, 261 (Iowa 1987). However, we can and do consider Dull's state of health in determining a sanction. See Iowa Sup.Ct. Att'y Disciplinary Bd. v. McCann, 712 N.W.2d 89, 96 (Iowa 2006).
In answer to another interrogatory, Dull stated that she (1) had not consumed alcohol for nine months, (2) has completed an inpatient alcohol treatment program, and (3) regularly attends Alcoholics Anonymous meetings. Like the Commission, we commend Dull for her efforts to maintain sobriety, for her recognition that she suffers from alcoholism, and for her apparent acceptance of her present situation by indicating she does not intend to practice law in Iowa.
When assessing the multiple violations and the aggravating and mitigating circumstances we have mentioned, we conclude the Commission's recommendation of a two-year suspension is appropriate. However, we do not agree with the Commission's recommendation that the suspension should run from September 29, 2005, the date of the disciplinary hearing. Rather we conclude the suspension should run from the date of this opinion.
In a case strikingly similar to this one, we imposed a sanction of eighteen months for neglect of legal matters, mishandling a client trust account, misrepresentations to another member of the bar, misdemeanor conviction for public intoxication arising out of a court appearance, denying to the court that he had been drinking, and failing to respond to Board inquiries. Kadenge, 706 N.W.2d at 405, 409. The material difference is that Kadenge was not convicted of a felony, and had no prior disciplinary violations. Id. at 407, 410-11.
V. Disposition.
We suspend Dull's license to practice law in this state indefinitely with no possibility of reinstatement for two years from the date of this opinion. The suspension applies to all facets of the practice of law. See Iowa Ct. R. 35.12. Dull has been temporarily suspended from the practice of law since March 11, 2003 because of her OWI, third offense, conviction. The suspension was ordered pursuant to Iowa Court Rule 35.14. We now rescind that order. In imposing the two-year suspension, we reject the Board's and Dull's stipulation for a one-year suspension to run *208 concurrently with the March 11, 2003 suspension. See Comm. on Prof'l Ethics & Conduct v. Nadler, 467 N.W.2d 250, 254-55 (Iowa 1991).
Upon any application for reinstatement, Dull must establish that she has not practiced law during the suspension period, she has in all ways complied with the requirements of Iowa Court Rule 35.13, and she has refunded unearned fees to those clients mentioned in this opinion. Dull must also provide this court with an evaluation by a licensed health care professional verifying her fitness to practice law. Before obtaining this evaluation, Dull shall submit the names of the proposed evaluators and the nature of the evaluation to the Board for its prior approval. Dull shall also comply with the notification requirements of Iowa Court Rule 35.21.
Costs are taxed to Dull pursuant to Iowa Court Rule 35.25.
LICENSE SUSPENDED.
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953 F. Supp. 177 (1995)
DAYTON HUDSON DEPARTMENT STORE COMPANY, Plaintiff,
v.
AUTO-OWNERS INSURANCE COMPANY, Defendant.
No. 5:94-CV-151.
United States District Court, W.D. Michigan, Southern Division.
November 20, 1995.
*178 Peter S. Shek, Saginaw, MI, for plaintiff.
John P. Seyfried, Garan, Lucow, Miller, Seward & Becker, P.C., Port Huron, MI, for defendant.
OPINION
BENJAMIN F. GIBSON, District Judge.
The parties, a no-fault carrier and an employee benefit plan, dispute their liability for medical benefits required by their mutually insured for injuries sustained in an auto accident. Defendant Auto-Owners Insurance Company ("Auto-Owners") moves to dismiss and for summary judgment on plaintiff's claim for reimbursement. For the following reasons, the Court will grant defendant's motion.
I.
While operating an automobile, Steve Boukis was injured in a car accident. Defendant Auto-Owners insured Boukis under a no-fault policy, but refused to pay Boukis' medical expenses. Boukis also was covered under an employee health care plan ("the Plan") that was provided by plaintiff Dayton Hudson Department Store Company ("Dayton Hudson"). The Plan was subject to the Employee Retirement Income Security Act ("ERISA"), Title 29 United States Code Sections 1001 to 1461. The policy documentation for both the no-fault insurance and the Plan contained coordination of benefits ("COB") provisions. Plaintiff paid approximately $22,000 of Boukis' medical expenses incident to the accident. Plaintiff claims that as subrogee to Boukis, it is entitled to reimbursement from defendant.
II.
In reviewing a motion to dismiss, a court must accept all well-pleaded allegations of the complaint as true and construe them in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974). A court may dismiss the complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232-33, 81 L. Ed. 2d 59 (1984); Saylor v. Parker Seal Co., 975 F.2d 252, 254 (6th Cir.1992).
Summary judgment is proper 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 judgment as a matter of law. Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988). In ruling on a motion for summary judgment, the inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether the evidence is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989).
III.
Defendant contends that the Plan does not authorize the plaintiff as subrogee *179 to make a claim directly against defendant. Rather, defendant maintains that plaintiff may proceed only against a Plan participant who has been "paid" for an injury. Defendant also argues that under the terms of both the Plan and the no-fault policy the Plan is primarily responsible for Boukis' medical expense benefits.
A. Subrogation
The Plan contains an explicit subrogation provision, which provides:
If you are paid for any injury or illness resulting from the act or omission of someone else ... the Company has the right of reimbursement of its cost for the medical benefits provided for treating that injury or illness.
In such cases, the Company requires that you complete a subrogation/right of reimbursement agreement. This entitles the Company to recover the cost and the right, if needed, to bring suit in your name.
Defendant claims that under the first paragraph, plaintiff (the Company) only has a right of reimbursement from the Plan participant who has been "paid for any injury or illness." Further, defendant contends that the second paragraph, dealing with subrogation, only applies to "such cases," as covered in the first paragraph where a Plan participant already has been "paid," which is not the present case.
The Court finds that defendant's reading is untenable. If the subrogation provision is read as defendant suggests, a plaintiff would bring a suit against the Plan participant in the name of the Plan participant. This would be an unreasonable construction. Although the Court notes that the subrogation clause could be more clearly drafted, it clearly does afford plaintiff the right to bring a suit against defendant in the Plan participant's name.
B. Coordination of Benefits
Defendant contends that the Plan is primarily liable for coverage of Boukis' medical expenses because the COB clause of the no-fault policy effectively subordinates its coverage to that of the plaintiff. Defendant acknowledges that ERISA preempts state law where a conflict exists. Auto Club Ins. Ass'n v. Health & Welfare Plans, Inc., 961 F.2d 588 (6th Cir.1992). However, defendant maintains that no conflict exists between the COB provisions of the Plan and the no-fault policy because the no-fault policy explicitly subordinates its coverage to other insurance coverage, while the Plan merely references "no-fault auto coverage" but does not proceed to specifically subordinate itself to the no-fault policy.
In Auto Owners Ins. Co. v. Thorn Apple Valley, 31 F.3d 371, 374 (6th Cir.1994), the Sixth Circuit held that "when a traditional insurance policy and a qualified ERISA plan contain conflicting coordination of benefits clauses, the terms of the ERISA plan, including its COB clause, must be given full effect." However, relying on Auto Club Ins. Ass'n v. Frederick & Herrud, 443 Mich. 358, 505 N.W.2d 820 (1993), the Thorn Apple Valley court cautioned that preemption "does not necessarily mean that the ERISA plan must prevail." Rather, any conflict between COB provisions should be resolved under federal common law. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S. Ct. 1549, 1557, 95 L. Ed. 2d 39 (1987); Lincoln Mut. Casualty Co. v. Lectron Prods. Inc., Employee Health Benefit Plan, 970 F.2d 206 (6th Cir.1992); Auto Club Ins. Ass'n v. Health and Welfare Plans, Inc., 961 F.2d 588 (6th Cir.1992).
After noting that the "underlying purpose of ERISA is to protect `the interests of participants in employee benefit plans and their beneficiaries,'" the court in Thorn Apple Valley, 31 F.3d at 375, determined that, "Congress sought to guard qualified benefit plans from claims ... which have been expressly disavowed by the plans." (emphasis added)
In the present case, plaintiff Dayton Hudson's Plan contains a coordination of benefits section that discusses coordination of benefits and primary and secondary liability and even provides an "order of benefit determination." However, it does not "expressly disavow" or subordinate itself to a no-fault automobile insurance policy. The Plan provides:
*180 If you or your dependents incur medical expenses for which benefits are payable under this Plan and another plan, such as additional insurance, student coverage at a university, or no-fault auto coverage, the Coordination of Benefits provision will be applied.
CARVE-OUT
If benefits are payable by this plan and another plan, the benefits will be coordinated so that deductibles and copayments are preserved and you and your dependents do not receive duplicate payments for medical expenses.
The Plan then distinguishes between primary and secondary liability and provides a four-step protocol ("ORDER OF BENEFIT DETERMINATION") to determine the priority of coverage between two available plans. It provides:
If a person is covered under this plan and another plan at the same time, the plans will pay benefits in this order:
1. The plan that covers the person as an employee pays first. The plan that covers the person as a dependent pays second.
2. For children's expenses, the primary plan is the plan of the male parent and the secondary plan is the plan of the female parent.
[provision dealing with divorced or separated parents omitted]
3. If the above rules don't establish an order, the plan which has covered the person as an employee or as that employee's dependent for the longer period of time will pay first with the following exception:
The plan covering an active employee would pay before the plan of a laid-off or retired employee.
4. Any plan that does not contain a Coordination of Benefits provision automatically pays first.
In contrast, an endorsement to the no-fault policy states:
It is agreed that the limits of liability provision of Section IV of the Michigan No-Fault Insurance Endorsement attached to and forming a part of this policy, which provides that benefits payable under this policy shall be reduced by certain benefits from other sources, is amended by addition of the following:
5. © any health, disability or automobile medical expense insurance policy; any health care plan; or any salary or wage continuation plan, including sick pay benefits; but this provision © shall apply only with respect to the named insured and any relative.
It is clear that the Plan documentation did not "expressly disavow" or subordinate its coverage to the no-fault insurance. Whereas, it is equally clear that the no-fault policy did subordinate its coverage to the Plan's coverage. If the Plan had subordinated its coverage to the no-fault insurance, the Plan would have prevailed under Thorn Apple Valley. However, it simply did not. Consequently, the Plan's coverage is primary and the no-fault coverage is secondary. Accordingly, the Court will grant defendant's motion for summary judgment.
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648 So. 2d 1310 (1995)
ST. CHARLES GAMING COMPANY, INC.
v.
The RIVERBOAT GAMING COMMISSION, et al.
No. 94-WA-2697.
Supreme Court of Louisiana.
January 17, 1995.
*1312 Michael H. Rubin, Paul S. West, McGlinchey, Stafford & Lang, Robert M. Grodner, Timothy H. Scott, Randell O. Lewis, for applicant.
Salvador Anzelmo, Thomas W. Millner, Thomas P. Anzelmo, Graymond F. Martin, Ira J. Rosenzwieg, Robert L. Raymond, Smith, Martin, Schneider, Shields & Moot, Anna-Kathryn Williams, Joseph P. Brantley, IV, Beychok, Freeman & Brantley, Richard P. Ieyoub, Atty. Gen., Thomas A. Warner, III, Sean A. Jackson, Claudeidra Minor, Jenifer Schaye, John M. Landis, Phillip A. Wittmann, Marc D. Winsberg, Stone, Pigman, Walther, Wittmann & Hutchinson, for respondent.
Thomas W. Tucker, Lisa C. West, for amicus curiae.
PER CURIAM.[*]
The question presented is whether a St. Charles Parish zoning ordinance, which restricts riverboat gaming activity within the parish to locations on batture to be specifically designated by subsequent ordinances, is invalid because it violates the state constitution and laws. The State Riverboat Gaming Commission authorized a riverboat gaming company to berth its vessel and conduct riverboat gaming operations at a specific site on the batture. The parish council passed a proposed ordinance rezoning the gaming company's site to permit gaming activities in accordance with the zoning ordinance, but the parish president prevented the measure from becoming law by his veto, and the council failed to override the veto. The gaming company brought suit to enjoin the parish from enforcing its zoning ordinance so as to halt or interfere with the company's construction of berthing facilities at the site. The trial court granted a preliminary injunction to this effect, holding that the zoning ordinance violates both state constitutional and statutory provisions and that, consequently, the gaming company is entitled to injunctive relief without showing irreparable injury.
The parish president appealed to this court, which has jurisdiction because this is a case in which an ordinance has been declared unconstitutional. La. Const.1974, Art. V., § 5(D). We reverse and remand the case to the trial court for further proceedings. The parish zoning ordinance is not unconstitutional or unlawful for the reasons relied upon by the trial court. Article XII, § 6(B) of the state constitution, which mandates the legislature to define and suppress gambling, does not prevent a local government from exercising *1313 its constitutionally delegated home rule powers to adopt and enforce lawful and nonarbitrary zoning ordinances to restrict riverboat gaming activity to reasonably designated zones and locations. The Riverboat Economic Development and Gaming Control Act, La.Rev.Stat.Ann. § 4:501, et seq. (West Supp.1994), does not deny any home rule government the power to enact and enforce constitutional and nonarbitrary zoning ordinances.
The case is remanded to the trial court for its adjudication of the issues not reached, including whether the gaming company can prove all the requisites for injunctive relief, such as irreparable injury; and whether the gaming company is entitled to any relief because the parish acted arbitrarily or unreasonably in failing to perfect an ordinance approving the company's site as a designated location for riverboat gaming activity.
I.
In 1991, the legislature enacted the Louisiana Riverboat Economic Development and Gaming Control Act, La.Rev.Stat.Ann. § 4:501 et seq. (West Supp.1994) (the Riverboat Gaming Act), which authorizes the establishment of a limited number of riverboat gaming projects in the state under the auspices of the Department of Public Safety and Corrections. In June 1993, the Louisiana Riverboat Gaming Commission (the Gaming Commission), pursuant to its statutory authority, awarded the St. Charles Gaming Company, Inc. (SCGC) a Certificate of Preliminary Approval to berth and conduct gaming operations at a site located on the west bank of the Mississippi River in St. Charles Parish. On March 29, 1994, SCGC received a license to conduct such gaming operations from the Louisiana Riverboat Gaming Enforcement Division. On or about May 21, 1994, the Gaming Commission approved SCGC's application for a site change to a 23-acre property located on the east bank of the Mississippi at St. Rose in St. Charles Parish. The Gaming Commission subsequently approved an addition of 9 acres to this site. The entire proposed docking site is located on batture property in St. Charles Parish.
St. Charles Parish enacted the ordinance at issue, Ordinance 93-10-9 (the zoning ordinance), on October 18, 1993, purportedly to regulate land use in light of the enactment of the Riverboat Gaming Act. The Ordinance limits the location of docking and related facilities for riverboat casinos to a newly created zoning category, G-1, and restricts G-1 zoning to batture property in the Parish.[1]
This suit for injunctive relief was brought by SCGC when the Parish failed to grant its request to rezone to G-1 the docking site *1314 located in St. Rose in order for SCGC to proceed with its plans to develop the site for berthing its riverboat casino.[2] Following a two-day hearing, the trial court granted SCGC a preliminary injunction enjoining the Parish of St. Charles and its governing authority, officers, agents and employees, "from interfering with, prohibiting or restricting the location, operation or development, within the Parish of St. Charles, of the St. Charles Gaming Company, Inc. riverboat and gaming operations conducted thereon, at the site along the Mississippi River duly approved by the Louisiana Gaming Commission."
In its Written Reasons for Judgment, the trial court granted the injunction without a showing of irreparable harm based on its finding that (1) the Ordinance is unconstitutional on its face, because it purports to regulate "gambling" in violation of La. Const. art. 12, § 6(B) and La.Rev.Stat.Ann. § 14:90 (West Supp.1994); and (2) "by omission" the Ordinance directly contradicts prohibitory law, because the Riverboat Gaming Act authorizes riverboat gaming on Lake Pontchartrain, see La.Rev.Stat.Ann. § 4:503(B) (West Supp.1994), yet the Ordinance, in limiting G-1 zoning to batture property in the Parish, does not permit the berthing of riverboat casinos along the lake inasmuch as there is no batture property in the St. Charles Parish portion of the lakeshore. The trial court also observed, in a footnote located in the portion of the Written Reasons discussing its findings of fact, that the Parish's application of the zoning ordinance, by allowing the Parish to prohibit gaming through its ability to withhold G-1 zoning, violated the Riverboat Gaming Act, specifically La.Rev.Stat.Ann. § 4:552(B) (West Supp.1994), which provides that "[o]ther than to levy the admission fee authorized by Subsection A of this Section, no local governing authority may license or regulate the operation of riverboats and the gaming operations conducted thereon."
Appellant, Chris Tregre, as St. Charles Parish President, unsuccessfully sought leave to file a suspensive appeal from the trial court's grant of injunctive relief and came before this Court seeking an emergency stay of the injunction pending appeal, as well as a writ of mandamus. We noted probable jurisdiction to review the trial court's determination that the Parish's zoning ordinance is unconstitutional. St. Charles Gaming Company, Inc. v. The River Boat Gaming Commission, 94-2697 (La. 11/10/94), 645 So. 2d 208. We now reverse.
II.
A preliminary injunction may not issue against a municipal body without a showing of irreparable harm unless the action sought to be enjoined directly violates the constitution or prohibitory law. See, e.g., City of New Orleans v. Board of Commissioners, 93-0690, p. 30 (La. 7/5/94), 640 So. 2d 237, 253; Louisiana Associated General Contractors v. Calcasieu Parish, 586 So. 2d 1354 (La.1991); Plaquemines Parish Commission Council v. Perez, 379 So. 2d 1373 (La.1980); New Orleans Public Service Inc. v. Council of the City of New Orleans, 539 So. 2d 891 (La.App. 4 Cir.1989). As one of its stated reasons for granting injunctive relief without first requiring proof of irreparable harm, the trial court found that the zoning ordinance unconstitutionally attempted to regulate gambling in violation of La. Const. art. 12, § 6(B)[3] and that it directly violated the legislature's prohibition of gambling, see La.Rev.Stat.Ann. § 14:90 (West Supp. *1315 1994),[4] because the ordinance was intended "to create a specific Zoning District in St. Charles Parish to allow for Riverboat Gambling." The trial court's rationale proceeds as follows: (1) The state constitution mandates that the legislature define gambling and suppress it. (2) Therefore, only the legislature has power to pass such laws. (3) The legislature has defined gambling by naming and defining riverboat "gaming" as legal activity conducted under state licensing and supervision on gaming boats. (4) Therefore, the St. Charles Parish ordinance is unconstitutional because it attempts to define or suppress "gambling."
The trial court's rationale is based on an incorrect interpretation of the ordinance. The zoning ordinance does not attempt to define or suppress activity that is defined and suppressed as "gambling" by the legislature. When the ordinance is read as a whole and in context, it is clear that it purports only to regulate the use of land in connection with state authorized riverboat "gaming" by designating a specific zoning district for riverboat gaming. The preamble of the ordinance explicitly indicates that the ordinance was enacted in response to the Riverboat Gaming Act and the advent of legalized riverboat gaming in the state. The ordinance does not purport to regulate the activity of gaming itself. The local law is designed merely to designate an area in which such legal activity may be conducted and to limit legal gaming to that district. The ordinance's inadvertent use of the term "riverboat gambling," instead of "riverboat gaming," does not indicate a different intention. The legislative intent of the ordinance clearly is to confine legal riverboat gaming, and not illegal gambling, to a specific district within the parish. To attribute any other meaning to the zoning ordinance would lead to absurd consequences.
The trial court additionally granted the injunction based on its finding that the zoning ordinance is in direct violation of a prohibitory law because "by omission, the G-1 Ordinance purports to prohibit the berthing of a riverboat casino on Lake Pontchartrain within the Parish," in "direct[] contradict[ion to] the Riverboat Gaming Act, which authorizes the operation of riverboats on Lake Pontchartrain." The trial court erred in making this determination because the issue was not ripe for adjudication.
It is well settled that courts will not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. St. Charles Parish School Board v. GAF Corp., 512 So. 2d 1165, 1170-71 (La.1987), and cases cited therein. In order to avoid deciding abstract, hypothetical or moot questions, courts require that cases submitted for adjudication be justiciable, ripe for decision, and not brought prematurely. Id. at 1171, and cases cited therein. A "justiciable controversy" is one presenting an existing actual and substantial dispute involving the legal relations of the parties who have real adverse interest and upon which the judgment of the court may effectively operate through a decree of conclusive character. Id. A "justiciable controversy" is thus distinguished from one that is hypothetical or abstract, academic or moot. Id.
Although there is an actual and substantial dispute between the parties regarding the operation of SCGC's riverboat from the proposed docking site along the Mississippi River at St. Rose, there is nothing in the record to suggest that SCGC has sought approval or been authorized to conduct riverboat gaming operations at any location along Lake Pontchartrain in the Parish of St. Charles. Consequently, the lakefront question arising from the controversy between the parties in the present case is not justiciable, not ripe for decision and is raised prematurely. The trial court thus erred in deciding this issue as a basis for its grant of injunctive relief to SCGC.
*1316 The above issues constitute the express reasons for the trial court's grant of the injunction in favor of SCGC. In a footnote located within its discussion of its findings of fact, however, the court also observed that the zoning ordinance improperly regulates riverboat gaming in violation of La.Rev. Stat.Ann. § 4:552(B) (West Supp.1994), remarking as follows:
At the hearing on the preliminary injunction, St. Charles Gaming Corporation, Parish President Chris Tregre, and the Parish of St. Charles stipulated that "that [sic] there is not now, nor has there ever been any land located in St. Charles Parish that has been designated for G-1 zoning."
Having received authority from the Riverboat Gaming Commission to dock in St. Charles Parish; having been permitted by the Zoning Ordinance of 1981 to dock in the B-1 and B-2 districts; yet, having been disqualified from docking on the batture property on account of the enactment and the Parish's interpretation of Ordinance No. 93-10-9, SCGC was prohibited from conducting gaming operations.
By prohibiting gaming on riverboats through its ability to withhold the G-1 zoning designation, St. Charles Parish attempted to control the gaming aspect of a licensed riverboat casino. In so doing, St. Charles Parish violated the Riverboat Gaming Act, specifically La.R.S. 4:552(B), which provides that, "[o]ther than to levy the admission fee authorized by Subsection A of this Section, no local governing authority may license or regulate the operation of riverboats and the gaming operations conducted thereon."
If the trial court meant by this statement that a local government is precluded by operation of the Riverboat Gaming Act from enacting valid zoning and land use regulations in connection with gaming activities, the trial court was in error.
Zoning is a legislative function, the authority for which flows from the police powers of governmental bodies. City of New Orleans v. Board of Commissioners, 93-0690, p. 11 (La. 7/5/94), 640 So. 2d 237, 245; Palermo Land Co. v. Planning Commission of Calcasieu Parish, 561 So. 2d 482, 491 (La. 1990); Morton v. Jefferson Parish Council, 419 So. 2d 431, 434 (La.1982); Folsom Road Civic Association v. Parish of St. Tammany, 407 So. 2d 1219, 1222 (La.1981); Four States Realty Co., Inc. v. City of Baton Rouge, 309 So. 2d 659, 672 (La.1974). Article VI, § 17 of the 1974 Louisiana Constitution expressly grants to all local governments the power to enact zoning regulations.[5] La. Const. art. VI, § 17; see also Morton, supra, at 433 n. 3. This specific grant of home rule authority must be interpreted broadly to preserve it from undue encroachment by the state. See Francis v. Morial, 455 So. 2d 1168, 1173 (La. 1984). Home rule powers, functions and immunities are to be construed fairly, genuinely and reasonably, and any claimed exceptions to them should be given careful scrutiny by the courts. Id.; City of New Orleans, supra, at p. 27, 640 So.2d at 252.
The Parish of St. Charles is a post-1974 home rule charter government that adopted its home rule charter pursuant to the terms of the 1974 Louisiana Constitution, art. VI, § 5. In a recent pronouncement of the constitutional balance between state and local governmental powers, we observed that the 1974 Louisiana Constitution grants to post-1974 home rule charter governments immunity from state legislative control when exercising within their boundaries legislative powers consistent with the 1974 state constitution that are not denied by general law. See City of New Orleans, supra, pp. 4-19; 640 So.2d at 243; La. Const. art. VI, § 5. Thus, a valid ordinance of a post-1974 home rule charter government is constitutionally protected against reversal by the legislature "except by general state laws that deny, *1317 rather than merely conflict with," the local law. Id. at 19, 640 So.2d at 248 (emphasis added).
The trial court's observation that the zoning ordinance attempts to control the gaming aspect of a licensed riverboat casino in violation of the Riverboat Gaming Act's prohibition against local government licensing or regulating of riverboat gaming operations presumably reflects its belief that the Riverboat Gaming Act constitutes a general state law that denies to local government the power to regulate zoning and land use. Such a determination reads the provisions of the Riverboat Gaming Act too broadly in derogation of local government powers and misconstrues our decision in City of New Orleans, supra.
Section 552(B) of the Riverboat Gaming Act prohibits local governments from "licens[ing] or regulat[ing] the operation of riverboats and the gaming operations conducted thereon," other than to levy fees permitted under the Act. La.Rev.Stat.Ann. § 4:552(B) (West Supp.1994). Nothing in this language expressly or implicitly denies to local governments the authority to exercise zoning powers to promote the public health, safety, morals and general welfare of their communities. In Polk v. Edwards, 626 So. 2d 1128, 1144 (La.1993), we found that comparable language in a provision restricting the power of local government to regulate the "operation" of the land-based casino authorized pursuant to the Louisiana Economic Development and Gaming Corp. Act, 1992 Acts 384, La.Rev. Stat.Ann. §§ 4:601-686 (West Supp.1994),[6] did not infringe the City of New Orleans' zoning and land use powers. We observed that "[t]he statute's focus is not on land use, zoning, or historic preservation, but on licensing, taxing, and fee imposition on the internal affairs of the corporation." Id. at 1144. Similarly, the provision here is focussed on licensing, fees and the internal affairs of the riverboat casino operations. Consequently, this section of the Riverboat Gaming Act does not deny to local governments the authority to enact valid land use and zoning regulations relative to riverboat casino activities.
Moreover, nothing in the scheme or purpose of the Riverboat Gaming Act as a whole suggests that a local government's power to zone and regulate land use has been denied by the state. In our opinion, the Riverboat Gaming Act does not purport to prevent localities from confining legal gaming activities to reasonable and fair zones in accord with the surrounding uses of property and comprehensive zoning ordinances to promote the public health, safety, morality and welfare of the community. The purpose of the Act is to authorize, license and control legalized gaming activities in riverboats on designated waterways in order to stimulate and promote growth of the state's economy. The Act specifically provides that riverboat gaming shall be "regulated, licensed, and controlled in such a manner as to accomplish and promote [the Act's] policies in such a manner as to protect the public health, safety, morals, good order, and general welfare of our citizens." La.Rev.Stat.Ann. § 4:502(A)(4). As reflected by the constitutional grant of land use and zoning power to local government, this purpose can generally best be accomplished with respect to land use and zoning by permitting regulation at the local level. La. Const. art. VI, § 17; see also Note, Municipal Antitrust Immunity After City of Columbia v. Omni Outdoor Advertising, Inc., 67 Wash.L.Rev. 479, 485 (1992) ("In most instances of local concern such as zoning ... the local government is in the best position to regulate in accordance with the unique needs of the community."); Luery v. Zoning Board of the City of Stamford, 187 A.2d 247, 252 (Conn.1962) ("In the final analysis, zoning is primarily a matter of local concern. The local authorities are conversant with the needs of the community as a whole. They are in the best position to plan the orderly growth and expansion of the community for the general welfare."). We see nothing in the Riverboat Gaming Act that indicates a legislative intent to remove this power from local government. The Act *1318 does not authorize the Gaming Commission, or any other state agency, to zone or designate, as opposed to approve, the specific locations for such activities within a parish or community or to deprive localities of the power to create reasonable and fair zones for such activities consistent with both the economic goals of the statute, the public health, safety, morals, good order and general welfare goals of the statute, and the parish's exercise of land use and zoning authority. The St. Charles Parish zoning ordinance consequently may not be invalidated on the grounds that the parish exceeded its authority in enacting zoning regulations with respect to riverboat gaming activities.[7]
III.
SCGC is not without a remedy, however, in the event that it proves that the parish government has acted arbitrarily in rezoning or denying rezoning for purposes of gaming. The method of zoning pursued by the locality here is sometimes called "two-step," or "floating" zoning, under which one ordinance creates a new use classification without boundaries, and a second ordinance places designated territories in that classification. See 8 McQuillan § 26.65, p. 222, and authorities cited therein. Therefore, if the parish acts unreasonably, arbitrarily or discriminatorily in refusing to place designated territory in the legal gaming classification, aggrieved parties are entitled to seek judicial review and relief. Questions that should be considered when the locality rezones or denies rezoning for this purpose include whether the local government's action was arbitrary, unreasonable or discriminatory in terms of the prevailing uses of property and whether the action was in accord with a comprehensive plan. See 8 McQuillan, § 25.65, p. 222, and authorities cited therein.
Because the trial court did not reach the issue of whether the parish government validly exercised its zoning power in denying the gaming company's request to place a designated territory including its property in the G-1 or legal gaming classification, we reserve this issue and all other issues not reached by the trial court or determined by our opinion for resolution when this case is remanded to the trial court. On remand, SCGC is free to seek relief on the grounds that the Parish of St. Charles has violated well-settled principles governing the exercise of the police power, see, e.g., Francis v. Morial, 455 So. 2d 1168 (La.1984); or has exercised its zoning power in an unreasonable, oppressive, arbitrary, or discriminatory manner. See, e.g., Four States Realty Co. Inc. v. City of Baton Rouge, 309 So. 2d 659 (La. 1975); Plebst v. Barnwell Drilling Co., Inc., 243 La. 874, 148 So. 2d 584 (1963); 6 Rohan, Zoning and Land Use Controls § 35.04 (1991); see also City of New Orleans v. Board of Commissioners, 93-0690, p. 32 (La. 7/5/94), 640 So. 2d 237, 254-55 (remanding for determination of these issues).
Additionally, the trial court did not reach the arguments raised by intervenor, T.L. James and Company, Inc., that (1) the St. Charles Parish Home Rule Charter and general state law do not authorize the parish president to veto a zoning ordinance, and (2) the parish president's veto was an abuse of his discretion because it was arbitrary and capricious. These issues are more appropriately adjudicated in the first instance by the trial court following full briefing and argument. The trial court should closely scrutinize any argument that the parish president acted ultra vires in vetoing the rezoning ordinance in light of La. Const. art. VI, § 6, La.Rev.Stat.Ann. § 33:4780.50 (West Supp. 1994), and Francis v. Morial, supra. The trial court additionally should consider whether the claim that the parish president abused his discretion in vetoing the ordinance presents a political question that the separation of powers places beyond the ambit of judicial review. See, e.g., Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 230, 106 S. Ct. 2860, 2865-66, 92 L. Ed. 2d 166 (1986); Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710, 7 L. Ed. 2d 663 *1319 (1962); Murrill v. Edwards, 613 So. 2d 185 (La.App. 1 Cir.1992); see also INS v. Chadha, 462 U.S. 919, 946-48, 103 S. Ct. 2764, 2782-83, 77 L. Ed. 2d 317 (1983) (discussing importance of qualified executive veto in balance of political power); Burstein v. Morial, 438 So. 2d 554, 557-58 (La.1983) (same).
For the reasons assigned, the declaration of unconstitutionality is reversed and the judgment ordering a preliminary injunction to issue is vacated. The case is remanded to the trial court for further proceedings consistent with this opinion.
NOTES
[*] Judge William Norris, III, Court of Appeal, Second Circuit, sitting by assignment in place of Justice Pike Hall, Jr. Pursuant to Rule IV, Part 2, § 3, Marcus, J., was not on the panel that heard and decided this case.
[1] In pertinent part, Ordinance 93-10-9 provides:
WHEREAS, Chapter 9 of Title 4 of the Louisiana Revised Statutes of 1950, R.S. 4:501 through 4:562, provides for Riverboat Gambling in Louisiana on certain bodies of water and rivers; and,
* * * * * *
WHEREAS, local government is prohibited from licensing or regulating the operation of riverboats and the gaming operation conducted thereon; and
WHEREAS, it is not the intent of this ordinance to regulate the riverboat operation or the gaming operation conducted on them; and,
WHEREAS, it is the intent of this ordinance to regulate the land use in St. Charles Parish to promote the well being of our communities. THE ST. CHARLES PARISH COUNCIL HEREBY ORDAINS:
* * * * * *
SECTION I. That the St. Charles Parish Code of Ordinances, Appendix A, Section V.1., is hereby amended to state as follows:
1. For the purpose of promoting the public health, safety, morals, and general welfare to the Parish of St. Charles, Louisiana, said Parish is hereby divided into the following types of districts.
ZONING DISTRICTS
* * * * * *
G-1 Gambling District
* * * * * *
SECTION II. That the St. Charles Parish Code of Ordinances, Appendix A, Section VI. G., is hereby amended to state as follows:
G. Gambling DistrictThe regulations in the Gambling District are as follows
Policy Statement: This district shall be limited to those areas located on batture property in St. Charles Parish. The District regulations are designed to protect the residential and commercial character of the areas by prohibiting Riverboat Gambling development and their support facilities from locating on properties other than batture property in St. Charles Parish.
[2] The docking site is currently zoned B-1 (Non-Industrial Batture District) and B-2 (Industrial Batture District) pursuant to the St. Charles Parish Ordinance of 1981. In July 1994, SCGC applied for a change of zoning district with the Planning and Zoning Department of St. Charles Parish to cover the initial 23-acre portion of the docking site. SCGC amended its application in August 1994, to include the additional 9 acres of the docking site.
The Planning and Zoning Commission recommended approval of the application by a vote of 4-3 on September 1, 1994. The Parish Council on September 6, 1994, approved by a vote of 5-4 the request for rezoning by Ordinance No. 94-9-2. On September 9, 1994, Parish President, Chris Tregre, the appellant herein, vetoed the rezoning ordinance. The Parish Council subsequently failed to override the President's veto.
[3] La. Const. art. VII, § 6(B) provides that "[g]ambling shall be defined and suppressed by the legislature."
[4] Under La.Rev.Stat.Ann. § 14:90(D) (West Supp.1994), "[t]he intentional conducting or assisting in the conducting of gaming activities upon a riverboat as defined and authorized in R.S. 4:501 through R.S. 4:562, whereby a person risks the loss of anything of value in order to realize a profit is not gambling and shall not be suppressed by any state or local law enforcement officer."
[5] Louisiana is one of the few states whose constitution specifically grants to local governmental bodies the authority to regulate land use, zoning and historic preservation. La. Const. art. VI, § 17; City of New Orleans v. Board of Commissioners, 93-0690, p. 37 (7/5/94), 640 So. 2d 237, 256 (citing 6 Rohan, Zoning and Land Use Controls, § 35.03[2]). Article VI, Section 17 of the 1974 Constitution provides in pertinent part:
Section 17. Subject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning, and historic preservation, which authority is declared to be a public purpose....
[6] Section 627(A) of the Casino Act provides that "Corporation operations are exempt from and no political subdivision may enact any measure to require licensing, to regulate, to impose fees, or to tax corporation operations." La.Rev.Stat. Ann. § 4:627(A) (West Supp.1994).
[7] Because we decide here that the Riverboat Gaming Act does not deny zoning and land use powers to local governments, we do not need to reach the issue urged by amicus curiae of whether the state legislature is empowered to limit or deny the express constitutional grant of this authority to all local governments by any act less imperative than an exercise of the state's police power necessary to protect the vital interest of the state as a whole.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1747166/
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998 So. 2d 636 (2008)
Felipe OQUENDO and Isora Oquendo, Appellants,
v.
CITIZENS PROPERTY INSURANCE CORP., Appellee.
No. 3D07-2522.
District Court of Appeal of Florida, Third District.
November 26, 2008.
Rehearing and Rehearing En Banc Denied January 23, 2009.
*637 Ligman Martin and Michael R. Seward, for appellants.
Groelle & Salmon and Gina L. Clausen, for appellee.
Before COPE, CORTIAS, and LAGOA, JJ.
COPE, J.
This is an appeal from a final judgment denying, in part, a motion for trial court attorney's fees under section 627.428, Florida Statutes (2005). We affirm.
Felipe and Isora Oquendo were the insureds under a homeowners' insurance policy issued by Citizens Property Insurance Corp. Their home was destroyed by fire. The insureds brought suit against the insurer and recovered judgment in the trial court.
The insureds sought an award of attorney's fees under section 627.428. The insurer contested both entitlement[1] and amount. The trial court ruled in the insureds' favor on entitlement and conducted an evidentiary hearing to set the amount. The trial court awarded attorney's fees for time reasonably expended in the trial phase of the litigation, and also made an award for the time expended on the issue of entitlement. The trial court denied "fees for fees," that is, attorney's fees for preparing for, and participating in, the evidentiary hearing to set the amount of attorney's fees. The insureds have appealed the judgment insofar as it denied "fees for fees."
The Florida Supreme Court has "held that attorney's fees may properly be awarded under section 627.428 for litigating the issue of entitlement to attorney's fees, but not for litigating the amount of attorney's fees." Lugassy v. Indep. Fire Ins. Co., 636 So. 2d 1332, 1336 (Fla.1994) (citing State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830 (Fla.1993)).
The insureds argue, however, that this case is distinguishable because the insureds' retainer agreement with counsel includes the following:
The Client agrees to compensate Joseph W. Ligman, P.A. $350.00 per hour for any time, costs, and effort for litigating the amount of court awarded attorneys' fees if the court does not award attorney's fees for time spent litigating the amount of attorney's fees.
The insureds contend that since they are obligated to pay their counsel for the time spent in litigating the amount of attorney's fees, it follows that the insureds are entitled to recover those amounts under section 627.428. They point out that Palma was based, in part, on the proposition that litigating the amount of attorney's fees *638 "inures solely to the attorney's benefit and cannot be considered services rendered in procuring full payment of the judgment." Palma, 629 So.2d at 833. The insureds assert that since they are obligated under their retainer agreement to pay counsel for time expended in litigating the amount of attorney's fees, it follows that making such an award in this case is for the benefit of the insureds, not just the attorneys.
We do not agree with the insureds' argument. The Palma decision was based in part on statutory construction. Id. ("The language of the statute [ß 627.428] does not support such a conclusion [that attorney's fees may be awarded for litigating the amount of attorney's fees].") (emphasis added). Since Palma is based both on (a) statutory interpretation, and (b) the proposition that litigating the amount of fees inures solely to the attorney's benefit, id., the fact that the retainer agreement in this case has a "fees for fees" provision makes no difference.
The Fourth and Fifth Districts have rejected the argument that the insureds make here. See Paladyne Corp. v. Weindruch, 867 So. 2d 630, 634 (Fla. 5th DCA 2004) ("Mr. Weindruch attempts to avoid the holding in these cases by suggesting that his attorney's fee contract gives him an interest in the recovery of the fee. First of all, we find nothing in the attorney's fee contract that would avoid the holding of Palma. Secondly, as we pointed out in Mangel, the litigant's fee arrangement with his or her attorney is `not determinative of the fees he is entitled to recover as reasonable attorney's fees'"); Mediplex Constr. of Fla., Inc. v. Schaub, 856 So. 2d 13, 14-15 (Fla. 4th DCA 2003) (based on the attorney's fee agreement, the plaintiffs "attempt[ed] to differentiate Palma on the basis that they, unlike the client in Palma, directly benefited from the time their counsel spent litigating the amount of attorney's fees.... Certainly we recognize that fees for fees may not always inure to the exclusive benefit of the lawyer, but Palma still applies."); Mangel v. Bob Dance Dodge, Inc., 739 So. 2d 720, 724 (Fla. 5th DCA 1999) ("Mangel also argues that he has an interest in passing his fee obligations on to defendants, since his fee agreement with Blau required Mangel to pay Blau for the time spent litigating both entitlement to and the amount of his fees. This contractual provision is apparently designed to avoid the rule of State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830 (Fla.1993). Mangel therefore asserts that he should be able to recover Blau's fees as part of his `reasonable fees.' However, Mangel's own fee arrangement with Blau is not determinative of the fees he is entitled to recover as reasonable attorney's fees.").[2]
We follow the Fourth and Fifth Districts and affirm the trial court's order denying "fees for fees."
Affirmed.
CORTIAS, J. (concurring).
I concur with the majority because we are bound by State Farm Fire & Casualty *639 Co. v. Palma, 629 So. 2d 830 (Fla.1993). However, I write to highlight and address the potential problems that may arise from the Palma decision. The Florida Supreme Court explained that attorney's fees for litigating the amount of attorney's fees are not recoverable because:
The language of the statute does not support such a conclusion. Such work inures solely to the attorney's benefit and cannot be considered services rendered in procuring full payment of the judgment.
Palma, 629 So.2d at 833.
Palma further stated:
Florida courts, including this Court, have consistently held that the purpose of section 627.428 is "to discourage the contesting of valid claims against insurance companies and to reimburse successful insureds for their attorney's fees when they are compelled to defend or sue to enforce their insurance contracts." Lexow, 602 So.2d at 531. Our conclusion that statutory fees may be awarded for litigating the issues of entitlement to attorney's fees but not the amount of attorney's fees comports with the purpose of section 627.428 and with the plain language of the statute.
Palma, 629 So.2d at 833.
The pertinent portion of section 627.428 provides as follows:
(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had.
Section 627.428(1), Florida Statutes (emphasis added).
Based upon the plain language of the statute, it is clear that the legislature intended that an insured or beneficiary is entitled to a reasonable amount of attorney's fees should it be the prevailing party in litigation against its insurer. Palma and its progeny agree on this point. However, because the object of such entitlement is the "reasonable sum as fees or compensation for the insured's or beneficiary's attorney," it is difficult to reconcile how a prevailing party can be awarded fees expended in the determination of "entitlement" while being disallowed recovery of fees for litigating what constitutes a "reasonable sum" under the facts of a particular case. This conundrum was examined in the partial dissent in Palma and subsequent cases.
In his partial dissent, Justice Kogan pointed out:
I cannot agree that attorneys fees are unavailable for litigating the amount of those fees even though, as the majority concedes, fees may be awarded for litigating the entitlement to the fees. In actual practice, the two issues are inextricable, and I believe the majority is expecting the legislature to draft legislation with a distinction far more fine than we have required in other contexts. The purpose of attorneys fees legislation is to make legal representation more widely available to those who need it. The federal courts have recognized this and have adopted a rule in harmony with what I am advocating here. I would adhere to the federal view as a matter of state law. There is no sound reason in policy or in statutory construction *640 to depart from the view used by the largest court system in this nation.
Palma, 629 So.2d at 834 (Kogan, J., dissenting in part, concurring in part).
Similarly, Judge Farmer stated in his concurring opinion in Citibank Federal Savings Bank v. Sandel, 766 So. 2d 302 (Fla. 4th DCA 2000):
The statute in Palma, section 627.428, provided that the insured was entitled to "a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which recovery is had." [emphasis supplied] It is thus a reasonable fee authorized by this statute. If the carrier disputes the reasonableness of the amount of the fees sought by the insured, that issue cannot be settled without being litigated. If it must be litigated, it is perforce an issue in the case. Nothing in the statutes precludes fees for litigating the amount of the authorized reasonable fee.
Id. at 304 (Farmer, J., concurring).
Section 627.428(1) provides that a prevailing insured shall receive a "reasonable sum as fees or compensation" for his or her attorney, but contains no language specifying that the fees incurred in litigating the reasonableness of the amount may be excised from the amount of attorney compensation which the insured is entitled to recover. As stated by Judge Farmer in his dissent in Mediplex Construction of Florida, Inc. v. Schaub, 856 So. 2d 13 (Fla. 4th DCA 2003), "[a]lthough the statute does not explicitly refer to fees-for-fees, compensating the insured for having to fight the issue of the amount of fees is well within the statutory purpose of making the insured whole for having to sue the carrier for policy benefits." Id. at 17, n. 3. Furthermore, the statute contemplates compensating the attorney and it logically follows that, absent any language to the contrary, this compensation would encompass the conclusion of judicial labor.
It is important to also note that inherent in the preclusion of awards for attorney's fees is the possibility that the insurer, who is generally in a financially superior position to the insured, may needlessly challenge the reasonableness of fees in order to force the insured to accept a significantly reduced fee amount. This scenario can easily arise in cases such as the one before us where the retainer agreement specifically provides that the insured is responsible for the payment of fees incurred in litigating the amount of fees. If the insured cannot recover the potentially large costs associated with litigating the amount of fees, accepting a significantly lower offer from an insurer may be more appealing when faced with the possibility of having any award of fees offset by the very fees necessary to establish the reasonableness of the amount.
In the case before us, Citizens challenged the insured's entitlement to fees, and then challenged the amount of fees to which the Oquendos were entitled. Citizens' fee expert opined that, at most, the Oquendos' attorney would have expended five to ten hours worth of attorney's fees even though Citizens itself incurred approximately three hundred hours of attorney's fees and Citizens' fee expert spent approximately fifteen hours reviewing the file. It is unfair to allow an insurer to offer a miniscule amount of fees, essentially creating the litigation necessary to establishing what is a "reasonable sum," and then avoid an award of attorney's fees on the ground that the amount of the fees is a benefit that inures to the attorney and not the insured. This position ignores the symbiotic relationship between attorney and client and how an award of fees does benefit clients insofar as it encourages attorneys to represent them. See Prandini *641 v. Nat'l Tea Co., 585 F.2d 47, 53 (3d Cir. 1978).
Frequently, in cases involving the award of attorney's fees, the issue of entitlement is litigated separately from the amount of fees. Perhaps the better practice, which would not be inconsistent with Palma, would be to litigate the issue of entitlement contemporaneously with the issue of the reasonableness of the fees. In such a situation, any attorney's fees incurred may be awardable under 627.428 because they were expended in determining entitlement to "a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had." See section 627.428(1), Florida Statutes. Moreover, Federal courts have held that, depending on the particular facts being disputed in the determination of the amount of attorney's fees in a given case, a court may rely upon written filings by the parties without the need for an evidentiary hearing. See In re Holywell Corp., 967 F.2d 568, 571 (11th Cir.1992) (citing Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1304 (11th Cir.1988)). Submitting fee expert affidavits and allowing a court to determine the reasonableness of the fees would obviate the need for a potentially costly hearing on the issue of fees. By litigating the amount of reasonable attorneys' fees contemporaneously with the issue of entitlement or, alternatively, by deciding the reasonableness of fees upon written filings, parties may avoid the need to carve out distinct attorney's fees incurred solely on the reasonableness of fees as occurred in Palma.
LAGOA, J. (concurs).
NOTES
[1] The insurer initially maintained that it was not covered by section 627.428, Florida Statutes, but has abandoned that position.
[2] This court has previously denied "fees for fees" in a number of contexts, but those cases did not involve a claim that Palma should be distinguished where the attorney-client fee agreement provided for "fees for fees." See Cincinnati Equitable Ins. Co. v. Hawit, 933 So. 2d 1233 (Fla. 3d DCA 2006) (medical insurance coverage claim); N. Dade Church of God, Inc. v. JM Statewide, Inc., 851 So. 2d 194, 196 (Fla. 3d DCA 2003) (mortgage foreclosure action); Allstate Ins. Co. v. Blanco, 791 So. 2d 515 (Fla. 3d DCA 2001) (homeowner's insurance claim); Oruga Corp. v. AT & T Wireless of Fla., Inc., 712 So. 2d 1141, 1145 (Fla. 3d DCA 1998) (offer of judgment under section 768.79, Florida Statutes); Eisman v. Ross, 664 So. 2d 1128, 1129 (Fla. 3d DCA 1995) (award under subsection 57.105(1), Florida Statutes).
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1747153/
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998 So. 2d 1258 (2008)
STATE of Louisiana
v.
D.T.
No. 08-814.
Court of Appeal of Louisiana, Third Circuit.
December 11, 2008.
Rehearing Denied February 4, 2009.
*1262 J. Phillip Haney, District Attorney, New Iberia, LA, for State of Louisiana.
Jeffrey J. Trosclair, Assistant District Attorney, Franklin, LA, for Plaintiff/Appellee State of Louisiana.
Mark O. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant D.T.
D.T. Angola, LA, In Proper Person.
Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and CHRIS J. ROY, SR.,[*] Judges.
SULLIVAN, Judge.
Defendant, D.T., was charged by grand jury indictment with four counts of aggravated rape in violation of La.R.S. 14:42. Each indictment contained one count of aggravated rape. The charges were consolidated for trial. Defendant was tried before a twelve-person jury, which found him guilty as charged on each count of aggravated rape. Thereafter, Defendant was sentenced to serve four consecutive life sentences at hard labor without benefit of probation, parole, or suspension of sentence. Defendant now appeals on the basis of four assignments of error, including insufficiency of the evidence. Additionally, Defendant filed a pro so brief alleging seven assignments of error. Although this brief was post-marked untimely, we will address the assignments in the interest of justice.
ASSIGNMENTS OF ERROR
1. The evidence was insufficient to support convictions on any of the counts of aggravated rape.
2. The time limitation for initiating prosecution had lapsed.
*1263 3. The trial court violated D.T.'s constitutional right to a jury.
4. The sentences imposed by the trial court were cruel, unusual, and excessive, in violation of Article I, § 20 of the Louisiana Constitution of 1974.
PRO SE ASSIGNMENTS OF ERROR
1. The trial court was without lawful jurisdiction, inasmuch as the prosecution was illegally instituted by an arrest warrant that was obtained contrary to law, and an indictment two months after arrest that was obtained by a factually prejudiced 1st District Attorney, Phillip J. Haney and/or his office.
2. The trial court erred in failing to recuse the District Attorney's office for actual conflict.
3. The trial court erred in refusing to consider Appellant's numerous pro se motions prior to trial which included objection made by Appellant to being prosecuted by Mr. Phillip J. Haney, and/or his Office in his motion for change of venue, merely because he had been assigned an attorney; but which attorney refused to act in his behalf, communicate with him, investigate the case, or interview witnesses.
4. The trial court erred in refusing to allow defense counsel to adequately question and cross-examine State's witnesses preventing Appellant from confronting his accusers and leading defense counsel to verbally state during trial in the hearing of the jury: "I Give Up!"
5. The trial court erred in failing to maintain defense counsel's timely objection and motion for declaration of a mistrial based on the improper statement made in the hearing of the jury by the District Attorney in closing arguments using Appellant's failure to testify as "evidence" against him.
6. The Appellant was denied Brady material in the possession of the District Attorney.
7. [The trial court erred in not insuring that the] Appellant's subpoenas for the production of his nine affiants and seven other family members and relatives with first-hand knowledge issue forth, resulting in his inability to present contradictory testimony in his own defense.
FACTS
On each count of aggravated rape, the State presented testimony from each victim. The first victim, M.L., was born September 26, 1975. The indictment charged that the offense was committed between September 26, 1981 and September 26, 1987. M.L. testified that her uncle, Defendant, put his "private" inside her "private" when she was eight years old.
The second victim, A.B., was born January 3, 1969. The indictment charged that the offense was committed between January 1, 1974, and January 1, 1979. A.B. testified that her uncle, Defendant, began having oral and vaginal sex with her when she was five years old. She alleged that this abuse lasted until she was ten years old. A.B. testified that Defendant performed oral sex on her and made her perform oral sex on him. A.B. also testified that Defendant beat her and threatened to kill her and her family if she told anyone.
The third victim, R.L., was born March 14, 1970. The indictment charged that the offense was committed between March 14, 1978, and March 14, 1984. R.L. testified that her uncle, Defendant, began having vaginal, anal, and oral sex with her when *1264 she was eight years old. She alleged that this abuse lasted until she was fourteen years old. R.L. also testified that Defendant beat her and threatened to kill her and her family if she told anyone about the abuse.
The fourth victim, C.C., was born August 24, 1987. The indictment charged that the offense was committed between November 1, 1999, and October 5, 2005. C.C. testified that her stepfather, Defendant, began having vaginal, oral, and anal intercourse with her when she was twelve years old. C.C. testified that this lasted for six years.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, a possible error patent exists due to the trial court's failure to sequester the jury. Louisiana Code of Criminal Procedure Article 791(B) provides, "[i]n capital cases, after each juror is sworn he shall be sequestered, unless the state and the defense have jointly moved that the jury not be sequestered." One of the charges against Defendant is that he committed aggravated rape of A.B. between the period of 1974 to 1979. A review of the statutory history of La.R.S. 14:42 and the applicable jurisprudence suggests the procedural rules required in capital cases should have been applied to the charges of aggravated rape of A.B. during the time period of 1974 to 1976. See State v. Smith, 01-1027 (La.App. 1 Cir. 2/15/02), 809 So. 2d 556; State v. Mizell, 05-2516 (La.App. 1 Cir. 6/9/06), 938 So. 2d 712; State v. Marcantel, 98-825 (La. App. 3 Cir. 12/22/99), 756 So. 2d 366, writ denied, 00-208 (La.8/31/00), 766 So. 2d 1274. However, because the remaining charges against Defendant were either committed when the penalty for La.R.S. 14:42 was life imprisonment or charged as non-capital offenses of aggravated rape, the procedural rules required in capital cases were inapplicable. See Mizell and Smith. Nevertheless, since the cases were consolidated for trial, we find that the capital procedural rules should have been applied and that the trial court failed to sequester the jury in accordance with La. Code Crim.P. art. 791(B).
The defense filed a pre-trial motion for sequestration of the jury. A hearing was held, and the trial court denied the motion. Defendant reserved the right to seek review of the issue on appeal but did not assign this issue on appeal. However, this court has recognized this as an error patent and has applied the harmless error analysis. State v. Porter, 99-1722 (La. App. 3 Cir. 5/3/00), 761 So. 2d 115 and Marcantel, 756 So. 2d 366.
In this case, the State did not seek the death penalty. Defendant failed to assign this error in his appeal to this court, and he failed to allege or prove any prejudice suffered by this possible error. Accordingly, assuming the trial court erred in failing to sequester the jury, we find this error to be harmless. See Porter, 761 So. 2d 115, and Marcantel, 756 So. 2d 366.
SUFFICIENCY OF THE EVIDENCE
Defendant contends that the evidence was insufficient to support his convictions of aggravated rape. Defendant argues that, in the absence of other corroborating evidence, bare allegations and vague testimony of sexual abuse from over thirty years ago should not be sufficient to sustain a conviction of aggravated rape. This is basically a challenge against the victims' credibility, which is outside the purview of this court, as shown by the following jurisprudence.
When the issue of sufficiency of evidence is raised on appeal, the critical *1265 inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State ex rel. Graffagnino v. King, 436 So. 2d 559 (La.1983); State v. Duncan, 420 So. 2d 1105 (La.1982); State v. Moody, 393 So. 2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So. 2d 1228 (La. 1983). To obtain a conviction, the elements of the crime must be proven beyond a reasonable doubt.
State v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So. 2d 578, 580. Furthermore:
In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Johnson, 00-1552 (La.App. 5 Cir. 3/28/01) 783 So. 2d 520, 527, writ denied, 01-1190 (La.3/22/02), 811 So. 2d 921. The question of the credibility of the witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Id. The credibility of the witnesses will not be re-weighed on appeal. Id.
State v. Dixon, 04-1019, p. 12 (La.App. 5 Cir. 3/15/05), 900 So. 2d 929, 936.
This case involved four indictments. Each indictment contained a time frame in which the alleged rape occurred. It is well settled in Louisiana jurisprudence that proof of any rape committed within this time frame is sufficient to obtain a conviction of aggravated rape against Defendant. State v. Brauner, 99-1954 (La.App. 4 Cir 2/21/01), 782 So. 2d 52, writ denied, 01-1260 (La.3/22/02), 811 So. 2d 920.
At the time that three of these offenses were committed, aggravated rape was defined as follows:[1]
Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
. . . .
(3) Where the victim is under the age of twelve years. Lack of knowledge of the victim's age shall not be a defense.
La.R.S. 14:42, as amended by Acts 1978, No. 239, Section 1.
AGGRAVATED RAPE OF M.L.
The victim, M.L., was born September 26, 1975; she was thirty-two years old at the time of trial. She testified that her uncle, Defendant, touched her by putting his finger and his "private" in her "private" when she was eight or nine years old. M.L. testified that this happened only one time. During this time period, M.L. shared a home with her mother, brother, and Defendant on Moresi Alley in Jeanerette, Louisiana. At one point, M.L. was *1266 questioned again about whether Defendant ever did anything else to her, and she indicated that he did not. The prosecution then asked, "He never touched you?" In response, M.L. stated, "He did touch me.... He touched me with his finger inside my private."
On cross-examination, defense counsel questioned M.L. about a prior statement she gave to a detective. M.L. admitted that she told the detective that Defendant put his private inside her private and never mentioned that he used his fingers as she indicated on direct. When defense counsel questioned the victim a second time about what Defendant used to touch her, she indicated that Defendant used his finger and his private. M.L. also indicated that she disclosed this information to her mother, her cousin, A.B., and a doctor when she was younger.
On appeal, Defendant challenges M.L.'s credibility by arguing that her testimony is vague and uncorroborated. As previously stated, the testimony of one witness, if believed by the jury, is sufficient to sustain a conviction, even when no physical or medical evidence is presented. State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So. 2d 1036, writ denied, 99-3477 (La.6/30/00), 765 So. 2d 1062 and 00-150 (La.6/30/00), 765 So. 2d 1066. In his brief, Defendant particularly points out that some of the victims, such as M.L., testified that they disclosed the rape to their mother or a doctor, but neither of such witnesses was called by the State to corroborate the victims' allegations.
In response, the State relies on State v. M.J.S., 05-380 (La.App. 3 Cir. 11/2/05), 916 So. 2d 1215, to argue that "the testimonies of the victims corroborate one another," and further, that "no corroboration of the victims' testimonies was required." Id. at 1219. We agree and note that Defendant does not point to any inconsistency regarding the victims' testimony.
In order to convict Defendant of aggravated rape, the State needed to prove that Defendant had sexual intercourse with M.L. when she was under the age of twelve. La.R.S. 14:42. M.L.'s testimony revealed that Defendant "put his private inside her private" in 1981 when she was eight or nine years old. Thus, the jury could have found that the elements of aggravated rape were proven beyond a reasonable doubt. This assignment of error lacks merit.
AGGRAVATED RAPE OF A.B.
A.B. was born January 3, 1969. At trial, she testified that her uncle, Defendant, began raping her when she was five years old. A.B. testified that she remembered being five because she was in kindergarten, and she remembered lying down for a nap and being worried about whether she was going to her grandmother's house that weekend. A.B. testified that during these weekend visits at her grandmother's house, Defendant forced her to have sexual intercourse. Defendant would perform oral sex on A.B. and make her perform oral sex on him. A.B. told the jury, "And he would put the music really, really loud so, when I would scream, no one would hear me." She testified that she tried to fight Defendant and that she told him to stop but "he would keep doing it." A.B. explained that these incidents happened nearly every weekend until she was ten or eleven years old. She also explained that she never told anyone because she was afraid of Defendant; he beat her and threatened to kill her mother, so that she and her sister would then have to move to the grandmother's house.
A.B. testified that she remembered Defendant raping her "in his bedroom ... a shed behind her grandmother's house, another *1267 shed ... behind that shed, at her Aunt Shirley's house in her bed, in an abandoned house next to her grandmother's [house], in a bus, and in a cane field." She also stated that when these incidents happened, her sister, R.L., and her cousin would be playing outside and her grandmother would either be in the kitchen, sleeping, or reading a book. A.B. also testified that Defendant fed her brownies with white powder. When asked how she felt after eating these brownies, A.B. responded, "I remember I always felt tired when I was there."
A.B. stated that, after being raped, she would clean up and go back outside to play. When asked by the prosecution what she meant by "clean up," she testified, "Go to the bathroom and wipe blood off of me and go play outside. And I didn't say anything to anyone." A.B. also stated if her clothes were bloody, sometimes she tried to clean them off and sometimes she just wore them like that and her grandmother would wash her clothes. A.B. was then questioned by the prosecutor, "When [D.T.] would force you to perform oral sex on him, what would happen afterwards?" She said, "Sometimes he would put some stuff all over his stuff all over my face. And after he finished, I'd wipe my face off and go play again."
The prosecutor questioned A.B. about the last time she was raped by the Defendant, as follows:
Q. [A.B.], when was the last incident that you recall happening?
A. With me, the very last?
Q. That you remember.
A. I can't I can't answer that question, because I don't know the very last time.
Q. How old were you?
A. When it ended?
Q. Around ten or twelve sorry ten or eleven, around that age. I know nothing happened after that.
Q. [A.B.], did you ever stop going by your grandmother's house?
A. Yes.
Q. What age were you?
A. Around ten or eleven. That's when it stopped, when we stopped going.
On appeal, Defendant challenges A.B.'s credibility by arguing that her testimony is vague and uncorroborated. As previously stated, the testimony of one witness, if believed by the court, is sufficient to sustain a conviction, even when no corroborating evidence is presented.
In order to convict Defendant of aggravated rape, the State needed to prove that Defendant had sexual intercourse with A.B. when she was under the age of twelve. La.R.S. 14:42. According to A.B.'s testimony, Defendant began having sex with her when she was five years old, around 1974, and stopped having sex with her when she was ten years old, around 1979. As such, we find that her testimony is sufficient to establish that Defendant committed aggravated rape from 1974 through 1979. While A.B.'s testimony also indicates that she resisted to the utmost but was overcome by force, this element is not necessary to maintain the conviction because she was under the age of twelve at the time of the offense. This assignment of error lacks merit.
AGGRAVATED RAPE OF R.L.
R.L. was born March 14, 1970; she was thirty-seven years old at the time of trial. R.L. and A.B. are siblings. R.L. testified that, as a child, she visited her grandparents every weekend. According to R.L.'s testimony, it was during these visits that she was raped by her uncle, Defendant. She stated that when she was *1268 around eight years old, Defendant forced her to have vaginal, anal, and oral sex with him. After a series of questions posed by the prosecution, R.L. clarified for the jury, stating, "He would stick his thing in my private.... He would place it [his penis] in my behind and in my mouth." The prosecution then asked, "When you say that he placed it in your behind, what do you mean?" R.L. replied, "Anally."
R.L. went on to state that she did not tell anyone because she was afraid. She testified that she was scared for her life. In particular, R.L. stated that Defendant threatened to kill her and her family. He also threatened to kill her mom, so that R.L. and her sister would have to live with Defendant and their grandmother. According to R.L., Defendant threatened her with "the belt," pulled her hair, and punched her in the head.
R.L. testified that she remembered the abuse occurring in Defendant's bedroom. Although others were around in other parts of the house, R.L. stated that nobody ever knew about it. When asked by the prosecution, "How was he able to rape you?" The victim explained that,
When he would take me in his room, he would put the music really loud to where nobody would hear me scream. Or he would stuff a red handkerchief in my mouth so that no one could hear me.... He handcuffed my arms on top of my head.... So that I wouldn't fight with him to try to get away or stop him.
R.L. also mentioned that Defendant made them eat brownies baked with marijuana. When the prosecution asked R.L. about other specific incidents of abuse, she stated:
I remember one time .... he took me in a cane field and he did all kind of things to me in the cane field. That's when he stuck a bottle up me and also a pipe. And it hurt, and I cried and cried and said that it hurt. And he told me, "Keep crying. Nobody can hear you."
. . . .
When I came back to my aunt's house, I was full of blood. And I went to the bathroom when everybody was sleeping, and I took my clothes off and I put it in the closet behind a cardboard box and hid my clothes until I could throw it away without anybody knowing. My aunt found it, my play clothes.... And I said it was mine and I had started the time of the month. And my aunt said, "You started the time of the month?" I said, "Yes, I did." But I wanted her to ask me what happened, because I had blood even on the top of my shirt.
R.L. also testified to abuse occurring in a bathroom at her grandmother's house. According to R.L., a door in Defendant's room was linked to the bathroom located in the hall. R.L. testified that if Defendant thought she was taking a bath or using the bathroom, "[h]e would come and get me." She further explained that this is when Defendant would "do bad things" to her. R.L. stated that during these events her sister and her cousin were playing outside and her grandmother would be lying in her bed reading a book or cooking in the kitchen. When asked, "What, if anything, did [D.T.] do to prevent others from hearing what was going on?," she again explained that Defendant played his music loud or everyone would go play outside and they would be left alone in the house. She testified that if she tried to fight back, Defendant would slap or punch her.
With respect to the rape that occurred in the cane field, R.L. testified that she could not remember her exact age but that she was between eight and twelve, "cause that's when the worst happened." She *1269 further testified that the abuse stopped when she was fourteen years old.
On appeal, Defendant challenges R.L.'s credibility by arguing that her testimony is vague and uncorroborated. As previously stated, the testimony of one witness, if believed by the court, is sufficient to sustain a conviction, even when no corroborating evidence is presented.
In order to convict Defendant of aggravated rape, the State needed to prove that Defendant had anal or vaginal sexual intercourse with R.L. when she was under the age of twelve. La.R.S. 14:42. R.L.'s testimony revealed that Defendant forced her to have anal and vaginal intercourse from the time she was eight years old until she was fourteen. Accordingly, we find the evidence is sufficient to establish that Defendant committed aggravated rape from 1979 through 1984. While R.L.'s testimony also indicates that she resisted to the utmost but was overcome by force, this element is not necessary to maintain the conviction because she was under the age of twelve at the time of the offense.
AGGRAVATED RAPE OF C.C.
The indictment charged Defendant with aggravated rape of C.C. from November 1, 1999, to October 5, 2005. As the statute existed in 1999,[2] aggravated rape was defined as follows:
Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but her resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by the apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
(4) When the victim is under the age of twelve years. Lack of knowledge of the victim's age shall not be a defense.
La.R.S. 14:42, as amended by 1997 La. Acts No. 898, Section 1 (emphasis added). With respect to C.C., Defendant argues that C.C.'s testimony is insufficient to prove the elements of aggravated rape.
C.C. was born August, 24, 1987; she was twenty years old at the time of trial. According to her testimony, C.C. was twelve years old the first time her stepfather, Defendant, had sexual intercourse with her. C.C. described it to the jury, as follows:
The first incident was when I was twelve. It was right after him and my mamma got married. And he woke me up out of my bed, and he brought me in the living room and he took off my pants and he pushed me over on the sofa. And I asked him to stop, and he just kept going.
C.C. went on to clarify some of her statements at the request of the prosecution, and she specifically stated that Defendant "stuck his penis in my vagina." C.C. told the prosecutor that during this particular incident her face was buried in the sofa.
C.C. explained to the jury that this type of abuse continued for a number of years. *1270 In particular, she stated, "It prolonged over six years where I had to have intercourse with him, perform oral sex, and even had to have anal sex with him, just to be able to have freedom." When the prosecutor asked C.C. what she meant by "freedom," she replied, "To be able to go places or to be able to go sleep somewheres. Or if I didn't do anything by the time I had my car, I couldn't take my car nowheres." She further explained that Defendant would give her cigars and buy her cigarettes in exchange for sex. On one occasion, C.C.'s mother walked in on Defendant performing oral sex on her, but according to C.C., that only resulted in her mother getting mad at her.
C.C. moved out of her mother's house on October 5, 2005, to live with her boyfriend. It was during this time that C.C. told her mother, as well as A.B., about the sexual abuse. She also testified that after confiding in A.B., she was contacted by the police and, as a result, she gave a statement to the police. C.C. testified that she moved back home to live with her mother and her sister on September 24, 2006.
On October 17, 2006, C.C. wrote a letter to the prosecutor asking to be removed from Defendant's case. The letter expressly stated that she did not want to testify against Defendant because her relationship with her mother was more important. C.C.'s letter also stated that she felt violated and used by A.B. C.C. testified that this letter was written while she was living with her mother. After the letter was read to the jury, the prosecution asked C.C., "In this letter dated October 17, 2006, did you deny that anything happened?" C.C. replied, "No, ma'am."
Next, the prosecution called attention to an affidavit dated January 10, 2007. In this affidavit, C.C. made a second request to be removed from Defendant's case. She also accused A.B. of being "conniving," stating, "she convinced me to talk to the cops and told me what I needed to say to get him convicted." The affidavit also stated that A.B. tricked her into saying that Defendant molested her. C.C. testified that she was living with her mother when she wrote the affidavit. When the prosecution asked C.C., "Is this [affidavit] true," she responded in the negative.
C.C. again moved out of her mother's home on January 18, 2007, to live with her boyfriend. She testified that during the time that she lived with her mother, Defendant started writing her letters, and she wrote him back. She also stated that she visited Defendant while he was in jail, stating "I felt that I could forgive him for what he done."
C.C. testified that Defendant had sex with her "[b]etween 1,500 and 2,000 times." She told the court that these acts would happen in the living room or in her mom's room. She explained that the abuse happened mostly at night, "A lot of the times, nobody was home or my mom was sleeping." When asked whether Defendant ever told her anything about disclosing his actions to others, C.C. replied, "No, Ma'am. He just took my freedom away from me."
In order to convict Defendant of aggravated rape, the State needed to prove that Defendant had sexual intercourse with C.C. when she was under the age of twelve. La.R.S. 14:42. C.C.'s testimony revealed that Defendant had sex with her in 1999 when she was twelve years old. Thus, the elements of aggravated rape were not proven beyond a reasonable doubt. We find, therefore, that Defendant's conviction on this count should be reversed.
"Pursuant to La.Code Crim.P. art. 821(C), an appellate court that finds `the evidence, viewed in a light most favorable *1271 to the state, supports only a conviction of a lesser included responsive offense ... may modify the verdict and render judgment of conviction on the lesser included responsive offense.'" State v. Teague, 04-1132, p. 9 (La.App. 3 Cir. 2/2/05), 893 So. 2d 198, 205.
Attempted aggravated rape is a responsive offense to aggravated rape. La.R.S. 14:27, La.R.S. 14:42. However, based on the same reasoning stated above, the victim's testimony is insufficient to prove the elements of this offense.
Forcible rape is a responsive offense to aggravated rape. La.R.S. 14:42.1. At the time the offense was committed, forcible rape was defined as follows:
A. Forcible rape is rape committed when the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
La.R.S. 14:42.1, as amended by Acts 1997, No. 862, Section 1.
Accordingly, the State had to prove beyond a reasonable doubt that Defendant had (1) anal or vaginal sexual intercourse (2) without the lawful consent of C.C. and (3) where C.C. was prevented from resisting the act by force under circumstances where she reasonably believed that such resistance would not prevent the rape.
C.C. testified that Defendant pushed her over the couch and had vaginal sexual intercourse with her. She also stated that her face was buried in the sofa during this incident. C.C. testified that her mother was in the room sleeping but she did not call out; she pushed up from the couch and asked Defendant to stop. In turn, Defendant pushed C.C. back down and kept going. During this incident and the six years of abuse that followed, C.C. testified that Defendant never threatened her. C.C. also testified that she had sex with Defendant in order to be able to go places, use the car, and get cigarettes.
In State v. Schexnaider, 03-144, p. 10 (La.App. 3 Cir. 6/4/03), 852 So. 2d 450, 457, the victim testified that "Defendant forcefully pushed her back and got on top of her. She testified she could not push the Defendant back because he was bigger than her, and she was pinned under the Defendant's weight." The court in Schexnaider held that this testimony and other evidence presented at trial established that Defendant used sufficient force against the victim to sustain Defendant's conviction. In making this determination the court made the following comments:
The facts in the case before this court are more similar to those in State v. Wilkinson, 00-339 (La.App. 5 Cir. 10/18/00), 772 So. 2d 758, writ denied, 00-3161 (La.10/12/01), 799 So. 2d 494. Although, in Wilkinson, a jury convicted the defendant of simple rape, in reviewing his conviction, the Fifth Circuit observed that evidence presented by the state was sufficient to convict the defendant of forcible rape.
The evidence offered by the State shows that the Defendant forcibly grabbed C.C.,[[3]] threw her to the ground, pushed down her clothing, laid on top of her and penetrated her vaginally several times. C.C., a fourteen-year-old, was frightened, weighted down by the backpack and did not know whether any action on her part *1272 would have caused him to do additional harm. She was thrown into a secluded area and could have reasonably believed that screaming would be futile.
Similar testimony from Coffman, police officers, and Dr. McCaslin, confirm that C.C. was extremely upset, but consistent, when relating the details of the incident. Further, medical evidence showed that C.C. sustained a tear at the bottom of the hymen consistent with attempted penetration.
Id. at p. 15, 766-67.
The court held that, given the facts presented at trial, the evidence was sufficient to support the elements of forcible rape.
In State v. Hawkins, 504 So. 2d 1132 (La.App. 5 Cir.1987), the victim was riding a bike near dark when the defendant grabbed him and his bike and brought the victim and the bike upstairs into an apartment. Once inside the apartment, the defendant locked the door, undressed himself and then the victim, and put his penis inside the victim's rectum for ten minutes. The victim testified he was forced against his will into the apartment, he was afraid and tried to escape, but the defendant was on top of him, thus, he could not move. The court held the evidence supported the verdict of forcible rape.
We find the facts in this case are more like those in Wilkinson, and Hawkins.
Schexnaider, 852 So.2d at 458-59.
Accordingly, we find C.C.'s testimony establishes that Defendant used sufficient force against her to prove beyond a reasonable doubt the elements of forcible rape.
TIMELY PROSECUTION
As his second assignment of error, Defendant contends that the time limitations for the institution of prosecution had lapsed with respect to the cases involving A.B., R.L., and M.L. Defendant admits in his brief that this error was not raised in the trial court, but he seeks review pursuant to La.Code Crim.P. art. 577, which provides, in relevant part, as follows:
The issue that a prosecution was not timely instituted may be raised at any time, but only once, and shall be tried by the court alone. If raised during the trial, a hearing thereon may be deferred until the end of the trial.
In response, the State contends that Defendant failed to file a plea of prescription, a motion to quash, or a bill of particulars before trial and, as a result, he has waived the issue for appellate review. We find Defendant's failure to file such pleadings does not preclude this court from reviewing the issue. Comment (b)(4) to La.Code Crim.P. art. 535 provides that if Defendant did not previously file a motion to quash urging that the time limitation for institution of prosecution has expired, this defense "may be raised on appeal." Accordingly, we proceed with an analysis of this issue as it relates to these three victims.
In 1977, the aggravated rape statute was amended to provide a penalty of life imprisonment without benefits, but the legislature did not amend La.Code Crim.P. art. 571 to provide that there was no time limitation to prosecute such crimes until 1984. With respect to the cases involving M.L., A.B., and R.L., Defendant contends that the evidence in the record is insufficient to prove that he committed aggravated rape after the 1984 amendment. Consequently, Defendant argues that the State's right to prosecute these cases expired long before the State sought bills of *1273 indictment. This argument is presumably based on La.Code Crim.P. art. 572, which provides that a felony necessarily punishable by hard labor must be prosecuted within six years from the date of the offense. However, Defendant's argument is not supported by Louisiana jurisprudence.
In State v. Romero, 96-777 (La.App. 3 Cir. 3/5/97), 692 So. 2d 609, this court was faced with a similar issue. In Romero, the defendant was charged with one count of molestation of a juvenile occurring between the years of 1983 and 1986, but he was not indicted until 1993. At the time these offenses were committed, the prescriptive period for the institution of prosecution was four years under La.Code Crim.P. art. 572(2). Therefore, the State's right to prosecute these crimes originally prescribed between the years of 1987 and 1990. However, before that period ended, the legislature amended La.Code Crim.P. art. 573 to include molestation of a juvenile in the list of crimes for which the time limitations established by La.Code Crim.P. art. 572 shall not commence to run until the relationship or status involved has ceased to exist. The enactment was effective September 1, 1987. Thus, this court found the amendment did not apply to any sexual acts constituting molestation which had prescribed at the time of the effective date of the enactment (acts occurring between January 1, 1983 and August 31, 1983). However, as to those sexual acts constituting molestation occurring after August 31, 1983, the time limits to prosecute the defendant were extended to four years from the date the defendant ceased domination and control over the victim, as a result of the above-referenced amendment to La.Code Crim.P. art. 573.
This court in Romero went on to discuss the further extension of the prescriptive period as a result of a 1988 amendment to La.Code Crim.P. art. 573, which eliminated the requirement that the victim be under the domination or control of the offender; and a 1993 amendment, which deleted all sex offenses from La.Code Crim.P. art. 573, created a new article, La.Code Crim.P. art. 571.1, and changed the prescriptive period for sex offenses involving minors to ten years from the date of the victim's seventeenth birthday.
In Romero, the court stated:
It is well settled law that these legislative extensions discussed here are retroactive. In State v. Adkisson, 602 So. 2d 718 (La.1992), the Louisiana Supreme Court recognized that the Legislature could amend La.Code Crim.P. art. 573 and extend the time limit within which the state could institute prosecution, but only as long as the amendment came into effect before the statute of limitations accrued. Id. at 719.
In cases arising after Adkisson, the amendment of La.Code Crim.P. art. 573, and enactment of La.Code Crim.P. art. 571.1, the courts have had to calculate when the statute of limitation accrues and if the changes in the law have extended the time within which the state may institute prosecution. See, e.g. State v. Hughes, 94-1364 (La.App. 4 Cir. 12/28/94); 648 So. 2d 490, writ denied, 95-255 (La.3/24/95), 651 So. 2d 292; State v. Farris, 95-570 (La.App. 1 Cir. 11/16/95), 666 So. 2d 337.
In State v. Ferrie, 243 La. 416, 144 So. 2d 380, 384 (1962), the Louisiana Supreme Court stated as follows:
[I]n the absence of a statute of limitations, the State retains the right to prosecute for crimes indefinitely. But when a right of grace has been extended the State relinquishes the right to prosecute once the statute of limitations has run; until it does run, the State's right to prosecute is retained *1274 and may be extended at the will of the state.
Romero, 692 So.2d at 611-12.
In light of Romero, Adkisson, and Ferrie, we find that there was no time bar on the institution of prosecution for M.L., A.B., and R.L. in this case. M.L.'s testimony clearly indicated that Defendant raped her in 1981, and that this was the only incident of rape. In 1981, aggravated rape was punishable by life imprisonment without benefits and subject to a six-year prescriptive period.[4] Defendant argues that the State's right to prosecute him for the offense against M.L. expired in 1987. The last acts of aggravated rape involving A.B. and R.L. occurred in 1979 and 1984 respectively. Defendant argues that the State's right to prosecute prescribed in 1985 for the offense against A.B. and in 1990 for the offense against R.L. However, in 1984, while the original prescriptive periods for the offenses against M.L., A.B., and R.L. were still running, La.Code Crim.P. art. 571 was amended to remove the time limitations on prosecution for aggravated rape. Thus, applying Romero, the unlimited prescriptive period should apply to the offenses against M.L., A.B., and R.L. because the original period was extended before it expired. Therefore, this assignment of error lacks merit.
RIGHT TO A JURY
As his third assignment of error, Defendant contends that the trial court violated his right to a jury. In particular, Defendant asserts that the trial court erred in making a factual determination as to when the offenses occurred and, thereby, "usurped a function of the jury."
Defense counsel made the following comments at the sentencing hearing:
[T]his case consisted of four separate indictments which were consolidated for trial.... Each of the indictments contained a range of years for the one count of aggravated rape contained in each. The verdict forms did not require that the jury specify the precise date or year of the offense upon which is [sic] based its verdict on each indictment. As you know, the jury did return verdicts of guilty as charged on all four indictments.
(Emphasis added).
A review of the appellate record reveals that defense counsel did not object to the verdict form or the jury verdict when rendered, and Defendant did not file a motion for a new trial or motion in arrest of judgment. Thus, this issue of whether the verdict form should have required the jury to specify the precise date of the offense has not been properly preserved for appellate review. La.Code Crim.P. arts. 801, 841. See also State v. Lewis, 00-53 (La.App. 4 Cir. 12/13/00), 776 So. 2d 613, writ denied, 01-381 (La.10/5/01), 798 So. 2d 966.
Furthermore, in Brauner, 782 So.2d at 73 (quoting State v. Dixon, 628 So. 2d 1295, 1299 (La.App. 4 Cir.1993) (citations omitted)), the court stated:
The date of the offense is not an essential element of the crime of aggravated rape. In a continuing relationship of this type, exact dates often cannot be supplied.... It was not necessary for the State to specify the date of an offense in the indictment or the bill of particulars, and any one of the offenses committed within that time frame could be proven to obtain a conviction for the crime with which defendant was charged.
*1275 In Romero, 692 So. 2d 609, this court held that where the defense did not file a bill of particulars to have the time range clarified to provide specific dates, the prosecution has to prove only one act of the alleged offense occurred during that time range.
In this case, Defendant did not file a bill of particulars. We have previously determined that the evidence was sufficient to show that aggravated rape was committed within the time frame in the indictments. Thus, this assignment of error lacks merit.
EXCESSIVE SENTENCE
Defendant's final assignment of error is a claim of excessive sentence. On appeal, Defendant asserts that the sentences imposed for the convictions involving A.B., R.L., and M.L. should be reduced to a sentence of twenty years at hard labor in accordance with State v. Lee, 340 So. 2d 180 (La.1976), which addressed a conviction for aggravated rape that occurred in 1974.
In his Motion to Reconsider Sentence, Defendant asserted the same argument, but only in relation to the sentence imposed for the conviction involving A.B. As such, his excessiveness claim, as it relates to R.L. and M.L., is barred by La.Code Crim.P. art. 881.1. However, in the interest of justice, this court has chosen to review such an assignment as a bare claim of excessiveness. State v. Hargrave, 05-1027 (La.App. 3 Cir. 3/1/06), 926 So. 2d 41, writ denied, 06-1233 (La. 11/22/06), 942 So. 2d 552.
This court has set forth the following standard to be used in reviewing excessive sentence claims:
La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So. 2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So. 2d 124, writ denied, 00-0165 (La.6/30/00); 765 So. 2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So. 2d 957, cert. denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996).
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So. 2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So. 2d 331.
With respect to the case involving A.B., Defendant was sentenced to life imprisonment without benefits. This has been the mandatory penalty for a conviction of aggravated rape since the statute was amended in 1977 by La. Acts No. 343, Section 1. Defendant asserted the following argument in his Motion to Reconsider Sentence:
[T]he testimony adduced at trial most reasonably prompted the jury to find that the aggravated rape occurred during 1974, when the mandatory penalty for aggravated rape was unconstitutional and the jurisprudence required that the maximum penalty of twenty years at hard labor for the then lesser included offense was the appropriate penalty under *1276 State v. Lee, 340 So. 2d 180 (La. 1976).
As previously established, A.B.'s testimony is sufficient to prove that Defendant committed aggravated rape from 1974 through 1979. Thus, the last act of aggravated rape occurred in 1979, which would have been after the effective date of the mandatory life sentence. Thus, this assignment of error lacks merit.
With respect to the offenses involving M.L. and R.L., Defendant was sentenced to life imprisonment without benefits. After reviewing the evidence, the jury could have found that aggravated rape occurred in 1981 for M.L. and 1984 for R.L. During these times, the mandatory penalty for aggravated rape was life imprisonment without benefits.
In State v. Waguespack, 06-410, p. 12 (La.App. 3 Cir. 9/27/06), 939 So. 2d 636, 644, this court addressed this precise issue and made the following comments:
Louisiana Revised Statute[s] 14:42 provides a mandatory life sentence for aggravated rape cases in which the death penalty is not sought or not otherwise available. In State v. Foley, 456 So. 2d 979, 981 (La.1984), the supreme court discussed the penalty for aggravated rape as follows:
The mandatory life sentence for aggravated rape is a valid exercise of the state legislature's prerogative to determine the length of sentence for crimes classified as felonies. State v. Prestridge, 399 So. 2d 564 (La.1981); State v. Farria, 412 So. 2d 577 (La. 1982); and State v. Talbert, 416 So. 2d 97 (La.1982).
Based on Foley, Defendant's life sentence is mandatory and can not be excessive. Accordingly, this assignment of error lacks merit.
In light of the courts' reasoning in Waguespack and Foley, Defendant's sentence is not excessive, and this assignment of error lacks merit.
PRO SE ASSIGNMENT OF ERROR NO. 1
As his first assignment of error, Defendant contends:
The trial court was without lawful jurisdiction, inasmuch as the prosecution was illegally instituted by an arrest warrant that was obtained contrary to law, and an indictment two months after arrest that was obtained by a factually prejudicial 1st District Attorney, Phillip J. Haney and/or his office.
In support of this contention, Defendant primarily argues that, prior to the grand jury proceeding, the district attorney's office was in possession of several sworn statements from nine witnesses whose testimony would undermine the credibility of the victims and their accusations. Defendant contends that the district attorney did not present these witnesses or their statements to the grand jury and, as a result, his indictment was based upon biased accusations.
Contrary to Defendant's argument, at least two of the nine witnesses testified on his behalf at the grand jury proceeding. At the request of Defendant, the trial court conducted an in camera inspection of the grand jury transcript to determine whether it contained any exculpatory material which must be produced to Defendant. According to the court's declaration, C.C.'s sister and mother testified at the grand jury proceeding and contradicted many of C.C.'s allegations. The declaration also revealed inconsistent statements concerning the testimony of two other witnesses. Thus, Defendant has failed to prove that he suffered any prejudice as it relates to the grand jury proceeding.
*1277 Defendant also makes a general assertion that his arrest warrant was obtained contrary to law but provides no factual support. Thus, this assignment of error has no merit.
PRO SE ASSIGNMENT OF ERROR NO. 2
Defendant's second assignment of error is based upon the assertion that "the trial court erred in failing to recuse the District Attorney's office for actual conflict." In 1992, Defendant was charged with conspiracy to commit first degree murder of then Assistant District Attorney, Phillip J. Haney. Although Defendant was incarcerated for more than a year, the charge was eventually dropped for lack of evidence. Haney has since been elected as the District Attorney for the Sixteenth Judicial District. Thus, Defendant asserts that the district attorney's office should have been recused based upon this conflict of interest and in accordance with La.Code Crim.P. art. 680.
In State v. Chavez, 540 So. 2d 992 (La. App. 2 Cir. 1989), the second circuit addressed a similar issue where the defendant faced being prosecuted by an attorney who had previously represented the defendant in the same matter. The court made the following comments when addressing whether the defendant had waived his right to request recusal.
Despite a lack of Louisiana jurisprudence addressing the issue of waiver of conflict-free counsel in the context of an attorney's switching sides in a criminal prosecution, it is plain that for a defendant to knowingly and intelligently waive his right to request recusal, the defendant must be aware of the implications of the conflict of interest as well as the defendant's right to request recusal....
... In particular, the trial court ordinarily should engage in a colloquy with the defendant, advise the defendant of the implications of his former counsel's representing the state in his prosecution, and attempt to obtain a narrative response from the defendant. The narrative response should indicate that the defendant has been advised of his right to request recusal, that he understands the implications of his former attorney representing the state, that he has discussed the matter with an attorney, and that he voluntarily waives his right to request a recusal.
Id. at 995-96.
In this case, a review of the record shows that Defendant waived his right to request recusal. This matter was taken up by the court on September 27, 2007, and the following colloquy took place:
Q. Okay. The question becomes that we're addressing today: Are you willing to understand and okay Phil Haney's office prosecuting this matter against you despite what happened in the past?
BY MS. DUNNING:
Your Honor, I have advised Mr. [T.] I see he's I have discussed this with him twice. I have advised Mr. [T.] that if he raises an objection and you sustain that objection, that then the Attorney General's Office would step in. And in conjunction with that, I would like to also put on the record that I have also explained to Mr. [T.] that electing not to have Mr. Haney's office prosecute him would not entail a change of venue, that that is a totally separate issue.
BY THE COURT:
Right.
(ADDRESSING DEFENDANT [T.]:)
*1278 Q. Okay. So, Mr. [T.], she states it correctly. If Mr. Haney's office is recused and you want his office recused because of what happened between you and Mr. Haney previously, then the Attorney General has two choices. He can assign another DA's Office to handle the matter, he can appoint a special DA or a special lawyer to handle the matter as a prosecutor, or he can have some prosecutor from his office in Baton Rouge handle the matter. So that would be the choices he would have about who would handle the prosecution against you. It would not involve changing the venue or the location of the charges, because the alleged crime was committed in this parish so it has to be tried in this parish, unless of course you could prove that there's some objection to venue because of publicity, in the case. That has nothing to do with who's prosecuting. You understand?
A. Yes, sir.
Q. If you wanted to say you couldn't try the case in this parish because it was too much publicity in the newspaper and the whole jury panel was poisoned as a result of excessive publicity, it might be changed to another parish. But that would not change who prosecutes. You understand?
A. Yes, sir. Miss Dunning explained all of that to me.
Q. All right. So are you willing to waive any objection to Mr. Haney's office prosecuting this case?
BY MS. DUNNING:
And that's entirely up to you, Mr. [T.]
BY DEFENDANT [T.]:
A. On your word, yeah.
BY THE COURT:
(ADDRESSING DEFENDANT [T.]:)
Q. On her advice, you're willing to waive that; is that correct, Mr. [T.]?
A. Yes, sir.
Accordingly, in light of the court's reasoning in Chavez, Defendant made a knowing and voluntary waiver of his right to request recusal. The record clearly indicates that Defendant discussed the matter with his attorney and that he understood the implications of his decision. Thus, this assignment of error has no merit.
PRO SE ASSIGNMENT OF ERROR NO. 3
As his third assignment of error, Defendant contends that the trial court erred in refusing to consider his pro se motions because he was represented by counsel. Defendant asserts that he objected to being prosecuted by the district attorney's office in his motion for change of venue but that his attorney refused to act on his behalf, to communicate with him, and failed to investigate the case or interview witnesses.
When Defendant initially filed his pro se motions, he was represented by attorney Craig Colwart. After the denial of two pro se motions seeking the appointment of new counsel, Defendant filed a writ application with this court. After review, this court granted Defendant's writ and remanded the matter back to the trial court. See State v. D.T., an unpublished writ bearing docket number 07-658 (La.App. 3 Cir. 6/20/07). Thereafter, the trial court granted Defendant's request for new counsel and appointed Nancy Dunning to represent Defendant. In making this determination, the trial court also ordered that "all motions previously filed by [the Defendant] be discussed with his new attorney and that they determine which, if any, of those they desire to have heard and inform the court of their desire no later than September 26, 2007." Our review reveals *1279 that several motions were filed by Defendant's new counsel. At a hearing held on September 28, 2007, the court ruled upon many of these motions and addressed the issue of whether Defendant had any objection to being prosecuted by the District Attorney's office. As previously mentioned, Defendant waived his right of recusal at the direction of his attorney. Thus, any pro se motions previously filed by Defendant were waived after he consulted with his attorney. Accordingly, this assignment of error has no merit.
PRO SE ASSIGNMENT OF ERROR NO. 4
Defendant asserts that "the trial court erred in refusing to allow defense counsel to adequately question and cross-examine State's witnesses preventing Appellant from confronting his accusers and leading defense counsel to verbally state during trial in the hearing of the jury: `I Give Up!'" We find that Defendant is incorrect in his assertion. According to the record, defense counsel cross-examined only two victims and at no point during cross-examination did defense counsel state "I give up!"
Our review also reveals that there is no indication that the trial court limited cross-examination. At one point, defense counsel asked C.C. whether she ever made complaints about other grown men making sexual advances toward her. In response to the State's objection, defense counsel stated that she wanted to demonstrate that the victim has a history of making sexual allegations against other family members and then recanting. The trial court sustained the State's objection on the grounds that evidence of the victim's past sexual behavior is not admissible under La.Code Evid. art. 412 and that there was no preliminary hearing held to determine the admissibility of such evidence prior to trial. Thus, we find that this assignment of error has no merit.
PRO SE ASSIGNMENT OF ERROR NO. 5
In Defendant's fifth assignment of error, he asserts that the trial court erred in failing to maintain defense counsel's objection and motion for a mistrial. In particular, Defendant contends that this motion was based upon the district attorney's using his failure to testify as evidence against him in closing arguments. There is no mention in the record that an objection or motion for a mistrial was ever made by defense counsel during or after the state's closing arguments. Thus, this assignment of error has no merit.
PRO SE ASSIGNMENT OF ERROR NO. 6
As his sixth assignment of error, Defendant contends that he was "denied Brady material in the possession of the District Attorney." Defendant contends that nine witnesses provided a signed statement or affidavit in which they stated that C.C. has a history of making false accusations of sexual abuse against numerous family members and that A.B. and R.L., Defendant's nieces, were sexually abused by their mother when they were infants.
In State v. Mayeux, 06-944, p. 15 (La.App. 3 Cir. 1/10/07), 949 So. 2d 520, 531, this court made the following comments:
The United States Supreme Court has determined that there are three components of a true Brady violation: The evidence must be favorable to the accused, either exculpatory or impeaching in nature; the evidence must have been suppressed by the State either willfully or inadvertently; and there must be prejudice. Strickler v. Greene, 527 U.S. *1280 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999); State v. Louviere, 00-2085 (La.9/4/02), 833 So. 2d 885, cert. denied, 540 U.S. 828, 124 S. Ct. 56, 157 L. Ed. 2d 52 (2003).
Other than making a general allegation, Defendant does not demonstrate that these statements, whether exculpatory or not, were ever suppressed by the State. In fact, Defendant admits in his brief that he caused these statements to be sent to the district attorney and his defense counsel in January and February of 2006, prior to the grand jury proceedings. It follows that Defendant was aware of these statements throughout the entire criminal prosecution. Therefore, Defendant has failed to prove a Brady violation, and this assignment of error has no merit.
Defendant also points out that these witnesses were never interviewed by his attorney and that their statements were never entered into the record by his attorney. We find that this argument would be better addressed by a claim of ineffective assistance of counsel. Because this issue would require an evidentiary hearing, this is "a matter more properly addressed in an application for post conviction relief." State v. F.B.A., 07-1526, p. 9 (La.App. 3 Cir. 5/28/08), 983 So. 2d 1006, 1013 (quoting State v. Griffin, 02-1703, p. 8 (La.App 4 Cir. 1/15/03), 838 So. 2d 34, 40, writ denied, 03-809 (La.11/17/03), 857 So. 2d 515).
PRO SE ASSIGNMENT OF ERROR NO. 7
Under his seventh assignment of error, Defendant contends he was denied compulsory service in obtaining the production of witnesses at trial and this resulted in his inability to present contradictory testimony in his own defense. In support of this contention, Defendant includes a list of nine witnesses and explains the facts of each witness's testimony. Defendant contends the names, addresses and phone numbers of these nine witnesses were provided to the District Attorney, the court, and the first Indigent Defender Board (IDB) attorney appointed to his case. Despite having this information, Defendant complains that these witnesses were never interviewed during the investigation, nor were they called to testify at trial.
Defendant also indicates these witnesses were not called to testify because his second IDB attorney was "given inadequate time to prepare a defense against four Aggravated Rape charges." On October 5, 2007, defense counsel filed a written motion for continuance on the grounds that she needed more time to prepare a defense for Defendant. In this motion, defense counsel reminded the trial court that she was appointed on September 14, 2007, following Defendant's pro se motion for new counsel, which meant that she had only five weeks to prepare for the October 22 trial date. She also pointed out that, based upon an initial review of Defendant's IDB file, she discovered that Defendant's former counsel "concluded that only a few lines of inquiry needed investigation in order to prepare Defendant's defenses." However, after speaking with Defendant and his wife, current counsel urged that additional time would be needed to follow up on leads and to subpoena witnesses.
Defendant's pro se Assignment of Error No. 6 addresses his contention concerning the first IDB attorney's failure to interview, call or subpoena witnesses. As explained above in response to that assignment of error, that argument is more proper for an application for post conviction relief.
While we recognize Defendant's right to interview, subpoena and call *1281 witnesses in his defense, we find Defendant's second attorney had adequate time to address the issues regarding these potential witnesses.
Both the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution (1974) guarantee a criminal defendant the right to compulsory process and to present a defense. A defendant's right to compulsory process is the right to demand subpoenas for witnesses and the right to have those subpoenas served. State v. Gordon, 01-734 (La.App. 5 Cir. 11/27/01), 803 So. 2d 131, 148, writs denied, XXXX-XXXX (La.12/19/02), 833 So. 2d 336 and XXXX-XXXX (La.2/14/03), 836 So. 2d 134.
State v. Jackson, 07-84, p. 9 (La.App. 5 Cir. 6/26/07), 963 So. 2d 432, 438, writ denied, 07-1666 (La.1/25/08), 973 So. 2d 754.
The trial court has great discretion in deciding whether to grant a continuance, and its ruling will not be overturned absent an abuse of discretion. State v. Bourque, 622 So. 2d 198 (La.1993); State v. Champion, 412 So. 2d 1048 (La.1982); La.C.Cr.P. art. 712. Further, we generally will not reverse a conviction due to an improper ruling on a continuance unless there is a showing of specific prejudice to the defendant as a result of the denial of the continuance. State v. Strickland, 94-0025 (La.11/1/96), 683 So. 2d 218; State v. Knighton, 436 So. 2d 1141 (La.1983).
State v. Castleberry, 98-1388, p. 11 (La.4/13/99), 758 So. 2d 749, 759-60, cert. denied, 528 U.S. 893, 120 S. Ct. 220, 145 L. Ed. 2d 185 (1999).
At a hearing on October 5, 2007, the trial court denied the motion to continue and gave the following reasons:
All right. I'm looking at the court file. The defendant was indicted on March 10, 2006. He's been represented by the ID Board since April 3, 2006. You have two weeks left before the trial. You allege your investigator has been sitting with him at the jail for some reason. But, I mean, you can handle your investigator how you want to handle him, but you do have an investigator at your disposal. You have other lawyers at your disposal. You have yourself at your disposal. You have two weeks to finish doing what you need to do. I think you have plenty time. The request for continuance is denied.
The Louisiana Supreme Court has held that, based upon the facts and circumstances of each particular case, having only one month to prepare for trial may be insufficient grounds for granting a motion for continuance. See State v. Robicheaux, 412 So. 2d 1313 (La.1982); State v. Ordonez, 395 So. 2d 778 (La.1981); State v. Devenow, 253 La. 796, 220 So. 2d 78 (1969); see also State v. Lee, 275 So. 2d 757 (La. 1973); State v. DiVincenti, 232 La. 13, 93 So. 2d 676 (1957). The record reveals defense counsel was appointed to this matter approximately five weeks prior to trial. However, the trial court's reasons for denying a continuance indicate that counsel was not using the available resources, i.e., the investigator was sitting in jail with Defendant instead of assisting counsel, to prepare for trial. Given that counsel had more than one month to prepare for trial and was not using that time and the available resources wisely, we find that the trial court did not abuse its discretion in denying the motion for continuance. Thus, this assignment of error is without merit.
DECREE
With respect to the offenses committed against M.L., A.B., and R.L., we affirm Defendant's convictions and sentences. Because of insufficiency of the evidence, we vacate Defendant's conviction of aggravated *1282 rape of C.C. and enter a judgment of guilty for the crime of forcible rape. We remand the matter for sentencing on this conviction.
AFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART; AND REMANDED.
ROY, J., dissents and assigns written reasons.
ROY, Judge, dissents and assigns written reasons:
While the prevailing jurisprudence appears to suggest that an interval of five weeks between the time of assignment of counsel to a case and the start of trial is normally insufficient to vacate a conviction based on a trial court's denial of a defense motion for continuance, I do not believe that the particular facts of this case support such a result. In the Defendant's case, he faced prosecution which could result in four terms of life imprisonment, without parole.
After only three weeks as defense counsel, Defendant's attorney timely moved for a continuance based on a completed review of the Defendant's case file, the admissions of prior counsel that he had failed to conclude an adequate investigation of potentially-relevant matters and the need to pursue and subpoena additional witnesses. With only two weeks remaining until trial, the trial court denied the Defendant's motion for continuance and counsel had no alternative but to proceed as best she could.
Given the complex nature of this case, with multiple alleged victims, a time span listed for the offenses that covered some thirty years, the apparently chaotic nature of the familial relationship involved, the short time for trial preparation and the timely application for continuance, as well as the relatively minor inconvenience which would have resulted from a short delay in the start of trial, I would find that the trial court erred in denying the Defendant's motion for continuance.
Every citizen in this state is entitled, by law, to an adequate defense, regardless of the nature of the charged offenses or understandable desire of the State to bring the case to trial as soon as possible. In matters where a criminal defendant is faced with the prospect of imprisonment for the remainder of his natural life, it is paramount that the trial and appellate courts insure that he receives every protection afforded by the Louisiana Constitution and full access to any and all resources necessary to adequately defend himself.
Clearly, the facts of this case indicate that there was, at a minimum, a rush to judgment in the matter, which transpired over the strenuous objections of defense counsel and for no overriding reason. A reasonable delay in the matter would have been, at worst, a minor inconvenience for the State, but could have made the difference between conviction and acquittal on these most serious charges for the Defendant. Reinforcing the significance of permitting adequate preparation in such cases, I note that the majority of this court, on review, found that the State had introduced insufficient evidence to convict the Defendant of the charged offense, regarding at least one of the alleged victims.
Accordingly, I would vacate the Defendant's convictions and sentences and remand this matter for a new trial, at which the defense would be assured of adequate time for preparation, funds for expert witnesses and time for review of their evaluations and resources for a thorough investigation and interview of witnesses in the case.
*1283 For these reasons, I respectfully dissent.
NOTES
[*] Honorable Chris J. Roy, Sr., participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.
[1] The crimes committed against these victims cover a ten year span in which the aggravated rape statute was amended several times. Although these amendments made substantive changes to the statute, these changes are not relevant to this portion of the analysis, as the state was required to prove the same elements for each victim.
[2] In 2003, the fourth paragraph of the statute was amended to read, "When the victim is under the age of thirteen years." 2003 La. Acts No. 301, Section 1 (emphasis added).
[3] The victim in Wilkinson has the same initials as the victim in this case.
[4] La.R.S. 14:42, as amended by Acts 1977, No. 343, Section 1.
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144 B.R. 503 (1992)
Connie J. WEKELL, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. C91-5227(T)WD.
United States District Court, W.D. Washington, at Seattle.
May 4, 1992.
*504 Arthur H. Boelter, Dennis G. Riggs, Boelter & Gale, Seattle, Wash., for plaintiff.
Berry A. Heatley, U.S. Dept. of Justice, Tax Div., Washington, D.C., for defendant.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND DIRECTION FOR ENTRY OF JUDGMENT
DWYER, District Judge.
The plaintiff in this action seeks to remove tax liens filed by the Internal Revenue Service against certain real property in Pierce County, Washington, and seeks, under 26 U.S.C. § 7432, an award of damages, costs, and attorney fees by reason of the government's failure to release the liens. The property is a residence at which plaintiff has resided since her divorce from a husband whose activities led to the unpaid tax obligations and to the liens. The decisive question is whether the statute of limitations for collection of a tax deficiency had passed, thus making the liens invalid. Both parties have moved for summary judgment. There is no issue of fact for trial, and the case can be decided as a matter of law under Fed.R.Civ.P. 56.
The record shows that plaintiff's former husband filed a petition for corporate bankruptcy on June 21, 1982, and a personal bankruptcy petition for himself and the plaintiff on July 8, 1982. Both petitions were filed under Chapter 11, and the IRS received timely notice of them.
Plaintiff contends that the automatic stay in bankruptcy tolled the IRS collection limitation period only during the time it would reasonably have taken the IRS to petition for the stay to be lifted, making *505 the IRS's November 3, 1988, notice of intent to levy untimely. Defendant asserts that under 26 U.S.C. § 6503 the bankruptcy action effectively tolled the statute until the stay was actually lifted, making the Notice of Intent to Levy timely if issued before December 11, 1988.
The automatic stay under 11 U.S.C. § 362(a) acts as an absolute bar to IRS collection proceedings until it is lifted. Noli v. C.I.R., 860 F.2d 1521, 1525 (9th Cir.1988). The statute of limitations is tolled during the period that the IRS is prohibited from collection activities because of a bankruptcy action. 26 U.S.C. § 6503(h). Congress intended 26 U.S.C. § 6503(i) [now 6503(h)] to toll the period of limitation on collection during the period the automatic stay under 11 U.S.C. § 362(a) was in effect. Galanis v. Commissioner, 92 T.C. 34 (1989).
A grant of relief from the automatic stay is within the discretion of the bankruptcy judge. In re MacDonald, 755 F.2d 715, 716 (9th Cir.1985). A party may request the stay be lifted, and that request will be granted if the bankruptcy debtor has no equity in the property, and the property is not necessary for successful reorganization. 11 U.S.C. § 362(d).
Plaintiff contends that the IRS had an affirmative duty to petition for the stay to be lifted. However, there is no statute or case law to support the contention; and such a rule would have the effect of requiring the IRS to petition for the stay to be lifted in every bankruptcy case in which taxes are an issue or risk the limitation period continuing to run.
The automatic stay was designed to give a debtor some freedom from financial pressures, and to protect creditors from a race to the courthouse. See In re Minoco Group of Companies, Ltd., 799 F.2d 517 (9th Cir.1986). Tolling ensures that the debtor cannot file bankruptcy merely to let the limitation period to run. In re Hunters Run Ltd. Partnership, 875 F.2d 1425, 1429 (9th Cir.1989). In Hunters Run, the court expressly rejected that theory that a lien holder should be required to apply for relief from the automatic stay. Id. at 1428.
Plaintiff's final argument is that the IRS is being enriched at her expense because she made mortgage payments in the amount of $612 per month during the years after the bankruptcy. However, the record shows without dispute that plaintiff knew that the IRS could foreclose on the house, which she has occupied at all relevant times, and that she took the property at the time of her divorce in 1987 knowing that the tax lien should have been cleared off by her husband, and had not been. There is no legal or factual basis for plaintiff's contention.
On the record before this court, it appears that the plaintiff has suffered financially because of non-payment of taxes by her former husband. A substantial part of the motion papers is devoted to that history. However, the present case is governed by an issue of law, i.e., whether the statute of limitations had run on the tax obligations. As a matter of law it had not run. Accordingly, plaintiff's motion for summary judgment is denied, defendant's motion is granted, and judgment for defendant will be entered.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 15, 2012
No. 11-13414 JOHN LEY
CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cr-20883-DLG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LORN LEITMAN,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 15, 2012)
Before HULL, PRYOR and MARTIN, Circuit Judges
PER CURIAM:
Lorn Leitman appeals his conviction and sentence of 210 months of
imprisonment following his plea of guilt to mail fraud. 18 U.S.C. § 1341.
Leitman argues, for the first time on appeal, that the district court failed to comply
with Federal Rule of Criminal Procedure 11. Leitman also argues that his
sentence is unreasonable and the district court failed to comply with Federal Rule
of Criminal Procedure 32.2 before ordering forfeiture. We affirm Leitman’s
conviction and sentence, and we dismiss Leitman’s appeal of the forfeiture.
There was no plain error in Leitman’s guilty plea. Leitman argues that the
district court failed to ensure that he understood the charges against him and failed
to inform him that the government requested the forfeiture. The district court
complied with and satisfied the “core principles” of Rule 11, see United States v.
Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005), when it determined that Leitman
had knowingly and intelligently pleaded guilty to the crime of mail fraud as it was
described by the prosecutor and that Leitman understood and had “agreed to the
entry of a money judgment against [him] to be determined at a later time.”
Leitman challenges the eight-level enhancement of his sentence for
violating a prior administrative order, United States Sentencing Guidelines
Manual § 2B1.1(b)(9)(C) (Nov. 2010), relocating his fraudulent business scheme
to evade law enforcement, id. § 2B1.1(b)(10)(A), and being an investment adviser
or associated with an investment adviser, id. § 2B1.1(b)(18)(A)(iii), but we need
2
not address Leitman’s challenges because the “guidelines error, if any, did not
affect [his] sentence,” United States v. Keene, 470 F.3d 1347, 1349 (11th Cir.
2006). The district court stated that it varied upward from the guideline range of
121 to 151 months of imprisonment because it was “wholly inadequate” to address
Leitman’s “nefarious and deceitful” and “abhorrent” fraud. The district court also
stated that the guidelines “substantially understate[d] the manner in which [the]
offense was committed,” which included Leitman’s violation of his oaths to
protect the public as a member of the Florida Bar and as a certified public
accountant; “preying upon fellow service members”; exacting “usurious fees that
[he] charged by moving [the] location[]” of his business from Florida to Puerto
Rico and then to New Mexico; inflicting “psychological injuries” by defrauding
his mother and longtime friends, including his “son’s godfather”; “preying upon
the elderly and retirees” who could not “recoup their losses”; and “continu[ing]
[his] criminal conduct after having been put on notice by the Florida business
regulators and the Florida Bar.” The district court found Leitman’s crime so
“exceptional” that it varied upward 59 months from the high end of the guideline
range. The district court considered the “statements of all parties, the presentence
report which contains the advisory guidelines, and the statutory factors,” 18 U.S.C.
§ 3553(a), and explained that Leitman’s “conduct [required] the strongest possible
3
measure of deterrence.”
The district court also did not abuse its discretion when it varied upward
from the guidelines range. Leitman swindled over 36 friends, associates, and
fellow military personnel out of more than $3.4 million, and several of his victims
lost their life savings and were forced to end their retirements or rely on their
families for financial support. In the light of the seriousness and magnitude of
Leitman’s misconduct, his sentence of 210 months of imprisonment is reasonable.
Leitman’s challenge to the order of forfeiture is barred by the appeal waiver
in his plea agreement. Leitman’s plea agreement provided that he “agree[d] to
entry of a money judgment against him . . . which is therefore property subject to
forfeiture pursuant to Title 18, United States Code, Section 982,” and that he
“knowingly and voluntarily waive[d] . . . any right to appeal the forfeiture.” The
district court discussed the waiver with Leitman during his change of plea hearing,
and Leitman said that he understood and had agreed to waive his right to appeal
the forfeiture. See United States v. Bascomb, 451 F.3d 1292, 1293 (11th Cir.
2006). Leitman’s waiver was knowing and voluntary, so we dismiss his appeal of
the forfeiture.
We AFFIRM Leitman’s sentence and conviction, and we DISMISS his
appeal as to forfeiture.
4
AFFIRMED IN PART, DISMISSED IN PART.
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Case: 14-10958 Document: 00513095977 Page: 1 Date Filed: 06/26/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-10958 FILED
Summary Calendar June 26, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JARROD JAMIEL WILLIAMS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CR-426
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Jarrod Jamiel Williams pleaded guilty to conspiracy to commit wire
fraud affecting a financial institution in violation of 18 U.S.C. §§ 1343 and
1349. The district court sentenced Williams to 87 months of imprisonment and
a three-year term of supervised release. The district court stated at sentencing
that it would not impose child support compliance as a condition of supervised
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-10958 Document: 00513095977 Page: 2 Date Filed: 06/26/2015
No. 14-10958
release. However, the written judgment listed timely child support payments
as a special condition of supervised release.
Despite the appeal waiver provision in the plea agreement, Williams
asks this court to strike the written judgment’s imposition of child support as
a special condition of supervised release. He maintains that the conflict
between the oral pronouncement and the written judgment is merely a clerical
error and that correction of the error is not precluded by the appeal waiver.
Invoking the appeal waiver, the Government moves for dismissal of
Williams’s appeal. In the alternative, it moves for summary affirmance,
contending that the district court’s oral pronouncement related only to new
child support obligations and did not foreclose existing child support
obligations as a condition of supervised release. The Government notes the
district court’s explicit statement that the standard conditions of supervised
release apply and argues that child support compliance is a standard condition
under the Sentencing Guidelines.
Federal Rule of Criminal Procedure 36 provides that a “court may at any
time correct a clerical error in a judgment, order, or other part of the record, or
correct an error in the record arising from oversight or omission.” However,
the difference between the oral pronouncement and written judgment in this
matter is not a clerical error, but rather a conflict. See United States v.
Buendia-Rangel, 553 F.3d 378, 379 (5th Cir. 2008). Dismissal of the appeal is
appropriate as this conflict does not fall under any of the exceptions listed in
the appeal waiver. See United States v. Higgins, 739 F.3d 733, 738-39 (5th
Cir.), cert. denied, 134 S. Ct. 2319 (2014). Williams may file a motion in the
district court for modification of the conditions of his supervised release
pursuant to 18 U.S.C. § 3583(e) and Federal Rule of Criminal Procedure
32.1(c).
2
Case: 14-10958 Document: 00513095977 Page: 3 Date Filed: 06/26/2015
No. 14-10958
Accordingly, IT IS ORDERED that the Government’s motion for
dismissal is GRANTED, and the appeal is DISMISSED. The Government’s
motions for summary affirmance and for an extension of time to file a brief are
DENIED.
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Intermediate Court of Appeals
CAAP-14-0000840
26-JUN-2015
07:58 AM
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109 S.W.3d 856 (2003)
James and Patricia VINCENT, Appellants,
v.
BANK OF AMERICA, N.A. f/k/a Bank of America Texas, N.A., Appellee.
No. 05-02-00363-CV.
Court of Appeals of Texas, Dallas.
July 9, 2003.
*860 John H. Crouch, Kilgore & Kilgore, Inc., Dallas, for appellants.
Eric Scott Lipper, Hirsch & Westheimer, P.C., Houston, for appellee.
Before Justices MOSELEY, O'NEILL, and LAGARDE.[1]
OPINION
Opinion by Justice LAGARDE (Retired).
James and Patricia Vincent appeal a judgment entered after a bench trial of a dispute involving a home equity loan. In four issues, appellants: (1) contend the trial court erred in refusing to order forfeiture pursuant to the Texas constitution; (2) request this court to order forfeiture as a sanction for appellee Bank of America's contempt of the trial court's order to correct its accounting methods; (3) contend the trial court erred in refusing to certify this case for treatment as a class action; and (4) request this court to remand the case for redetermination of attorney's fees *861 in light of the trial court's erroneous refusal to certify the class and order forfeiture. Appellee/cross appellant Bank of America asserts by way of cross points that (1) the trial court erred in determining that Bank of America failed to comply with and/or deviated from the loan agreement; (2) the trial court erred in determining that paragraph II, 6 of the loan agreement requires application of the scheduled installment earnings method of accounting; (3) there is no evidence or insufficient evidence to support the trial court's finding that Bank of America, outside of discovery, gave no explanation of its method of accounting; (4) the trial court erred in its construction of the contract and, thus, attorneys' fees should have been awarded to Bank of America and not to appellants; (5) there is no evidence or insufficient evidence that Bank of America accrued interest for statement periods in excess of the fixed payment amount; and (6) there are no pleadings to support the injunctive and declaratory relief granted. For reasons that follow, we modify the trial court's judgment by vacating that portion thereof granting injunctive relief, and we affirm the judgment as modified.
Factual Background
In May 1998, James and Patricia Vincent (collectively the "Vincents") borrowed $130,400 from Bank of America (the "Bank") and signed a Federal Truth in Lending Disclosure & Loan Agreement (the "Loan Agreement"). This home equity loan was secured by the Vincents' homestead and is governed by the Texas constitution. TEX. CONST. art. XVI, § 50(a)(6). After a dispute arose regarding how payments were being allocated between principal and interest, the Vincents filed suit against the Bank seeking, among other things, certification as a class action and forfeiture of all principal and interest on the loan. After a hearing, the trial court denied class certification and the case proceeded to trial before the court on December 18, 2001. Final judgment was entered in the Vincents' favor on February 14, 2002, granting them injunctive and declaratory relief, but refusing to grant a requested declaration of forfeiture of all principal and interest due under the loan documents. Requested findings of fact and conclusions of law were filed by the trial court. Both the Vincents and the Bank have appealed the trial court's judgment.
Constitutional Forfeiture
In their first issue, the Vincents contend the trial court erred in refusing to order forfeiture as required by the Texas constitution. The Vincents argue that once the trial court found the Bank failed to comply with its obligations under the home equity loan, forfeiture should have been automatic. They assert that breach of the following provision of the Loan Agreement triggered forfeiture:
6. Interest Calculation and Application of Payments. For purposes of interest calculation, we will assume that all months have thirty days, that each year has 360 days, that all payments are received on the last day of the billing cycle, and that the daily periodic rate for your account is constant. (The Daily Periodic Rate is calculated by dividing the annual percentage rate by 360.) Payments shall be applied in this order: (1) to any interest accrued to the assumed date of payment; (2) to scheduled principal reduction; (3) to any late charges accrued; and (4) to principal not yet paid.
The Vincents base this claim, in part, on section 50(a)(6)(Q)(x) of the Texas constitution. This section states:
*862 (x) the lender or any holder of the note for the extension of credit shall forfeit all principal and interest of the extension of credit if the lender or holder fails to comply with the lender's or holder's obligations under the extension of credit within a reasonable time after the lender or holder is notified by the borrower of the lender's failure to comply;
See TEX. CONST. art. XVI, § 50(a)(6)(Q)(x). This section provides the substantive rights and obligations of lenders and borrowers involved in home equity loan transactions secured by homestead property in Texas. See Stringer v. Cendant Mortgage Corp., 23 S.W.3d 353, 356 (Tex.2000). "Section 50(a)(6), in its totality, establishes the terms and conditions a home-equity lender must satisfy to make a valid loan." Id. See TEX. CONST. art. XVI, § 50(a)(6). This section also "provides that the lender forfeits all principal and interest of the loan if it fails to comply with the obligations set out in section 50(a)(6)." Id. at 356-57. Thus, forfeiture is only available for violations of constitutionally mandated provisions of the loan documents. Violation of any other provision of the loan documents may result in traditional breach of contract causes of action only, with traditional breach of contract remedies. Therefore, the Vincents were only entitled to forfeiture if the Bank breached a provision of the Loan Agreement that was constitutionally mandated. There is nothing in the constitution that requires the language of paragraph II, 6 to be included in home equity loans secured by homestead property. Because paragraph II, 6 of the Loan Agreement is not constitutionally mandated, its breach will not support forfeiture.
The trial court found the Bank failed to comply with its obligations under the Loan Agreement in the manner of the application of the payments made by the Vincents. Paragraph II, 6 of the Loan Agreement, quoted above, provides that "[p]ayments shall be applied in this order: (1) to any interest accrued to the assumed date of payment; (2) to scheduled principal reduction; (3) to any late charges accrued; and (4) to principal not yet paid." The amount of each payment made by the Vincents from month to month that was applied to reduce the outstanding principal varied dramatically. As a result of the manner in which the Bank applied the payments made by the Vincents, found by the trial court to be in breach of paragraph II, 6, interest in excess of the $997.57 monthly payment called for in the loan documents accrued for several months. The Vincents contend this breach entitles them to automatic forfeiture under the Texas constitutional provision requiring that the loan be
scheduled to be repaid in equal successive monthly installments beginning no later than two months from the date the extension of credit is made, each of which equals or exceeds the amount of accrued interest as of the date of the scheduled installment;
TEX. CONST. art. XVI, § 50(a)(6)(L). This contention, however, ignores the actual wording of the constitution. As long as the Loan Agreement, as originally entered into by the parties, complies with the provisions of the constitution, forfeiture is not an appropriate remedy. If the loan is scheduled to be repaid in accordance with this provision, it complies with the constitution. The Loan Agreement calls for three hundred monthly payments of $997.57 beginning on June 10, 1998. As written, it complies with the terms of the constitution. Accordingly, there was no violation of section 50(a)(6)(L) of the constitution and forfeiture is not an available remedy. The trial court, therefore, did *863 not err in denying forfeiture. We resolve the Vincents' first issue against them.
Injunctive Relief
In the final judgment entered by the trial court, an injunction was issued in the Vincents' favor. In its cross issue number six, the Bank asserts, in part, the trial court erred in granting the injunction because it is not supported by the pleadings. The Vincents' third amended petition sought injunctive relief relating to the validity of the lien on their homestead in the event the trial court ordered forfeiture of all principal and interest. The trial court granted the Vincents an injunction ordering the Bank to:
use the scheduled installment earnings method, i.e., a fixed amortization schedule, to account for all future, monthly payments made by Plaintiffs under the Loan Agreement.
"Texas law requires a judgment to conform to the pleadings and the verdict." Affiliated Capital Corp. v. Musemeche, 804 S.W.2d 216, 219 (Tex.App.-Houston [14th Dist.] 1991, writ denied); Tex.R. CIV. P. 301. A party may not obtain a judgment based on a theory not pled. Wilson v. McCracken, 713 S.W.2d 394, 395 (Tex.App.-Houston [14th Dist.] 1986, no writ). A judgment not supported by pleadings must be reversed. Oil Field Haulers Assoc. v. R.R. Comm'n, 381 S.W.2d 183, 191 (Tex.1964); Affiliated Capital, 804 S.W.2d at 219. The pleadings in this case do not support the injunction. Consequently, we resolve that portion of cross issue number six relating to the injunction in the Bank's favor. We modify the trial court's judgment by vacating that portion thereof granting injunctive relief.
In their second issue, the Vincents request this court to order forfeiture as a sanction for the Bank's failure to comply with the injunction. Because vacating the trial court's injunction renders the Vincent's second issue moot, we resolve that issue against them.
Declaratory Relief Supported By the Pleadings
The Bank also asserts in its cross issue number six that the declaratory relief granted to the Vincents was not supported by the pleadings on file. Plaintiff's Third Amended Petition is the petition upon which the final judgment was rendered. The second count of that pleading sought a declaration that "the Bank's accounting for allocation of loan payments as between principal and interest breaches the terms of the Home Equity Loan Notes, ..." The final judgment awarded declaratory relief to the Vincents as follows:
Paragraph II, 6 of that certain Federal Truth In Lending Disclosure & Loan AgreementHome Secured Loan, dated May 5, 1998, in the original principal amount of $130,400 (the "Loan Agreement") requires Bank of America to account for Plaintiff's monthly loan payments using the scheduled installment earnings method, i.e., using a fixed amortization schedule, subject to the delinquency and/or default provisions of said Loan Agreement.
The rules of civil procedure require only that a plaintiff's petition contain "a short statement of the cause of action sufficient to give fair notice of the claim involved." Tex.R. CIV. P. 47. In addition to seeking forfeiture based upon a breach of the Loan Agreement, appellants also sought declaratory relief in connection with the Loan Agreement. We conclude the third amended petition gave fair notice of the claim involved and supported the declaratory relief awarded in the judgment. We resolve the Bank's cross-issue number six *864 as it relates to the declaratory judgment against the Bank.
Class Action Certification
In their third issue, the Vincents assert the trial court erred in refusing to certify this case as a class action. Trial courts enjoy a wide range of discretion in deciding whether to maintain a lawsuit as a class action. Vinson v. Tex. Commerce Bank-Houston, N.A., 880 S.W.2d 820, 823 (Tex.App.-Dallas 1994, no writ). Our review of the trial court's decision on appeal is strictly limited to determining whether there has been an abuse of discretion in denying certification. Id. (citing Wiggins v. Enserch Exploration, Inc., 743 S.W.2d 332, 334 (Tex.App.-Dallas 1987, writ dism'd w.o.j.)). A trial court abuses its discretion when it: (1) acts arbitrarily or unreasonably; (2) does not properly apply the law to the undisputed facts; or (3) rules on factual assertions not supported by the record. Id. "Although it may not be an abuse of discretion to certify a class that could later fail, ... a cautious approach to class certification is essential." Southwestern Ref. Co., Inc. v. Bernal, 22 S.W.3d 425, 435 (Tex.2000). The trial court may certify a class action if a plaintiff satisfies the prerequisites of rule 42. TEX.R. CIV. P. 42. Texas law, however, does not require a trial court to certify a class action even if the facts sufficiently satisfy rule 42. Vinson, 880 S.W.2d at 824. That is, even if certification would have been proper, a denial might still not be an abuse of discretion. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985)). Because the matter is committed to the trial court's discretion, we uphold the denial of a class certification so long as the court acted rationally in the exercise of its discretion. Id. This Court may reverse a trial court for abuse of discretion only if, after searching the record, it is clear that the trial court's decision was arbitrary and unreasonable. Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.1987).
But the trial court's exercise of discretion cannot be supported by every presumption that can be made in its favor. Actual, not presumed, conformance with rule 42 is required. See Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 690 (Tex. 2002) (quoting Bernal, 22 S.W.3d at 434-35); see also TEX. R. CIV. P. 42. Accordingly, we do not view the evidence in the light most favorable to the trial court's decision in either granting or denying certification, nor do we entertain every presumption in favor of the trial court's decision. Stromboe, 102 S.W.3d at 691. We determine whether a trial court, before ruling on a class certification, has performed a "rigorous analysis" on whether all prerequisites to certification have been met. Bernal, 22 S.W.3d at 435.
As this Court noted in Vinson, an appellant seeking to reverse an order denying class certification faces a formidable task. The Vincents must demonstrate that they satisfied all the rule 42 requirements for certification. Tex.R. Civ. P. 42. They must also show that the trial court's refusal to certify was legally unreasonable under the facts and circumstances of the case. Vinson, 880 S.W.2d at 824.
In their third amended petition, the Vincents sought forfeiture of all principal and interest on behalf of all members of the purported class. In the order denying class certification, the trial court concluded that "notice by individual class members and an opportunity to cure by the Bank are not suitable for class treatment." The Bank argues that the opportunity to cure provided by the above provision is a substantive right which would be abridged by class certification. Because the Vincents have failed to demonstrate *865 they suffered any compensable damages as a result of the Bank's actions and because of the importance of the notice and right to cure provision in the constitution, we conclude the Vincents have failed to demonstrate that the trial court's refusal to certify was legally unreasonable. See Vinson, 880 S.W.2d at 824. We resolve the Vincents' third issue against them.
No Evidence or Insufficient Evidence
In cross issue number one, the Bank asserts the trial court erred in determining that the Bank failed to comply with and/or deviated from the Loan Agreement. We construe this issue to be a complaint that there was no evidence or insufficient evidence to support the trial court's finding that the Bank breached the Loan Agreement. In cross issue number three, the Bank asserts there was no evidence or insufficient evidence to support the trial court's finding that the Bank gave no explanation of its method of accounting outside of discovery. In cross issue number five, the Bank complains there was no evidence or insufficient evidence that the Bank "accrued interest for statement periods in excess" of the fixed payment amount.
When analyzing a legal sufficiency or "no evidence" issue, we consider the evidence in the light most favorable to the challenged finding, disregarding all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001). If there is more than a scintilla of evidence to support the finding, the evidence is legally sufficient and the no evidence challenge must fail. Formosa Plastics Corp. v. Presidio Eng'rs and Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).
When reviewing factual sufficiency points, we review all the evidence in the record, including any evidence contrary to the verdict. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Monroe v. Frank, 936 S.W.2d 654, 658 (Tex.App.-Dallas 1996, writ dism'd w.o.j.). In a bench trial, it is for the court, as trier of fact, to judge the witnesses, to assign the weight to be given their testimony, and to resolve any conflicts or inconsistencies in the testimony. Tate v. Commodore County Mut. Ins. Co., 767 S.W.2d 219, 224 (Tex.App.-Dallas 1989, writ denied); Blackwood v. Tom Benson Chevrolet Co., Inc., 702 S.W.2d 732, 733 (Tex.App.-San Antonio 1985, no writ). The appellate court sets aside the verdict only if the trial court's finding is so against the great weight and preponderance of the evidence as to be manifestly unjust, shocking to the conscience, or clearly demonstrating bias. Pilkington v. Kornell, 822 S.W.2d 223, 230-31 (Tex.App.-Dallas 1991, writ denied).
Considering the evidence in the light most favorable to the trial court's finding, we conclude there was more than a scintilla of evidence supporting the finding that the Bank failed to comply with and/or deviated from the Loan Agreement. Additionally, after a review of all the evidence, we conclude there was sufficient evidence to support the finding. First, there was testimony that the Bank failed to properly account for a pre-payment in the amount of $100 made by the Vincents until after suit was filed. Additionally, the record reflects that on numerous occasions, the Bank failed to assume that payments made by the Vincents were received on the assumed date of payment, but recorded them as received on the actual date they were made. We conclude the finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust, shocking to the conscience, or clearly demonstrating bias. See Pilkington, 822 S.W.2d at 230-31. Additionally, even had the trial court erred *866 in determining the Bank failed to comply with and/or deviated from the Loan Agreement, we conclude such error to be harmless in light of the Vincents' failure to prove damages resulting from any breach. We resolve the Bank's cross issue number one against it.
In its cross issue number three, the Bank asserts there is no evidence or insufficient evidence to support the trial court's finding that it gave no explanation of its method of accounting outside of discovery. We disagree. The record reflects no explanation was given to the Vincents outside of discovery that the Bank was deferring interest from one month to the next. More specifically, when the Vincents made the December 10, 2000 payment on November 13, 2000, this payment was applied on the date it was received. Per diem interest was calculated from November 13, 2000 until the next payment was received on January 10, 2001. However, the amount due on January 10 remained the same, $997.57. The total interest charged by the Bank from November 13 through January 10 was $1,553.18, leaving an excess of $555.60 in interest due after the January 10, 2001 payment. This excess per diem interest was carried from month to month until paid. None of the statements sent to the Vincents and introduced at trial reflect this practice was disclosed to the Vincents outside of discovery. Viewing the evidence in the light most favorable to the trial court's finding, we conclude there is more than a scintilla of evidence supporting the finding. See Formosa Plastics, 960 S.W.2d at 48. Viewing all of the evidence in a neutral light, we conclude the finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust, shocking to the conscience, or clearly demonstrating bias. See Pilkington, 822 S.W.2d at 230-31. Even had the trial court erred in making the challenged finding, we conclude such error to be harmless because the Vincents have failed to prove damages resulting from the breach. We resolve the Bank's cross issue number three against it.
In its cross issue number five, the Bank asserts there was no evidence or insufficient evidence that the Bank accrued interest for statement periods in excess of the fixed payment amount. As discussed above, the Bank accrued interest for the period between the December 2000 payment and the January 2001 payment in the total amount of $1,553.18. This is obviously interest in excess of the $997.57 fixed payment amount. We conclude that not only is there more than a scintilla of evidence to support this finding, the court's finding is not against the great weight and preponderance of the evidence. See Formosa Plastics, 960 S.W.2d at 48; Pilkington, 822 S.W.2d at 230-31. Again, even had the trial court erred in making this finding, we conclude such error to be harmless in light of the Vincents' failure to prove damages resulting from this breach. We resolve the Bank's cross issue number five against it.
Scheduled Installment Earnings Method of Accounting
In its cross issue number two, the Bank complains the trial court erred in determining that paragraph II, 6 of the Loan Agreement required application of the scheduled installment earnings method of accounting. In construing a contract, the trial court should ascertain the objective intent of the parties as expressed in the writing itself. See Sun Oil Co. v. Madeley, 626 S.W.2d 726, 731 (Tex.1981). It should do this by examining the entire instrument, harmonizing and giving effect to all provisions to the extent possible so that none of the provisions will be rendered *867 meaningless. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). Every clause of an instrument is intended to have some effect. See Westwind Exploration, Inc. v. Homestate Sav. Ass'n, 696 S.W.2d 378, 382 (Tex.1985). A reasonable interpretation of an agreement will be preferred to one which is unreasonable. See id. The court should adopt the construction of the instrument placed upon it by the parties unless there is clear language in the instrument indicating an intention to the contrary. See Harris v. Rowe, 593 S.W.2d 303, 306 (Tex.1979). If a contract is susceptible to two constructions, one of which would render it valid and the other invalid, construction validating it must prevail. Id.; Dahlberg v. Holden, 150 Tex. 179, 183, 238 S.W.2d 699, 701 (1951). We give the language of the contract its plain meaning unless to do so would defeat the parties' intention. DeWitt, 1 S.W.3d at 101.
If the language in a contract can be given a certain or definite meaning, it is not ambiguous, and we are obligated to interpret the contract as a matter of law. DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex.1999). An ambiguity does not arise merely because the parties to an agreement advance differing interpretations. See Lopez v. Munoz, Hockema & Reed, 22 S.W.3d 857, 861 (Tex.2000). The contract is ambiguous only if the application of established rules of construction leaves an agreement susceptible to more than one reasonable meaning. DeWitt County, 1 S.W.3d at 100; Lopez, 22 S.W.3d at 861.
When, as in this case, the contract is unambiguous, we apply the pertinent rules of construction and enforce the contract as written. City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773, 783 (Tex.App.-Dallas 1992, writ denied); see Lopez, 22 S.W.3d at 862; Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996). We construe the contract by giving the terms their plain, ordinary, and generally accepted meaning unless the instrument shows that the parties used them in a technical or different sense. See Heritage Resources, Inc., 939 S.W.2d at 121. Because the contract is unambiguous, we do not ask about the subjective intent of the parties to the contract. See City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.1968) (if contract unambiguous, parties' objective, not subjective, intent controls). We simply apply the plain meaning of the contract language. Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex.1987); Spooner, 432 S.W.2d at 518.
The provision at issue here is not ambiguous. Applying the plain meaning of the contract language, the Bank was required to (1) assume all months have 30 days, regardless of the actual number of days in each month; (2) assume each year has 360 days, regardless of the actual number of days in each year; (3) assume each payment is received on the last day of the billing cycle, regardless of when the payment is actually received, even if received early; and (4) assume the daily periodic rate for the account is constant. The trial court concluded, and we agree, that this language required the application of the scheduled installment earnings method of accounting. Even had the trial court been in error in so construing the contract, however, we would hold such error to be harmless in light of the failure of the Vincents to establish damages in connection with the breach of this provision. We resolve the Bank's cross issue number two against it.
Attorneys' Fees
In issue number four, the Vincents seek a remand of this case for determination of *868 reasonable and necessary attorneys' fees if this court reverses the trial court's order denying class certification and/or renders judgment of forfeiture. Because we affirm the trial court's order denying class certification and its refusal to order forfeiture, we need not, and do not, address the Vincents' issue number four.
In its cross issue number four, the Bank asserts that, because the trial court erred in its construction of the contract, attorneys' fees should have been awarded to the Bank, and not to the Vincents. The declaratory judgments act provides that "[i]n any proceeding under this chapter, the court may award costs and reasonable and necessary attorney's fees as are equitable and just." TEX. CIV. PRAC. & REM.CODE ANN. § 37.009 (Vernon 1997). The grant or denial of attorney's fees in a declaratory judgment lies within the discretion of the trial court, and its judgment will not be reversed on appeal absent a clear showing that it abused its discretion. Oake v. Collin County, 692 S.W.2d 454, 455 (Tex.1985). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) (noting abuse of discretion occurs when court acts arbitrarily or unreasonably). We broadly construe the trial court's discretion to award attorney's fees and costs in a declaratory judgment action. McLendon v. McLendon, 862 S.W.2d 662, 672 (Tex.App.-Dallas 1993). Nonetheless, any fees granted must be reasonable and necessary, which are questions of fact, as well as equitable and just, which are questions of law. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998). As a general rule, a party seeking to recover attorney's fees carries the burden of proof to establish that it is entitled to them. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.1991). "Although courts should consider several factors when awarding attorney's fees, a short hand version of these considerations is that the trial court may award those fees that are `reasonable and necessary' for the prosecution of the suit." Id.
The Bank argues that it is entitled to attorneys' fees because "the only issue on which the Vincents prevailed should be reversed." However, "a trial court may, in its discretion, award attorneys' fees to the nonprevailing party in a declaratory judgment action." State Farm Lloyds v. Borum, 53 S.W.3d 877, 894 (Tex.App.-Dallas 2001, pet. denied). See also Scottsdale Ins. Co. v. Travis, 68 S.W.3d 72, 77 (Tex. App.-Dallas 2001, pet. denied); Brush v. Reata Oil & Gas Corp., 984 S.W.2d 720, 729 (Tex.App.-Waco 1998, pet. denied). Even if we were to conclude that the Vincents did not prevail in the litigation, which we do not, awarding attorneys' fees to the nonprevailing party is not in itself an abuse of discretion. Because prevailing party status is the only ground upon which the Bank relies to demonstrate an abuse of discretion, we conclude it has failed to demonstrate that the trial court abused its discretion is awarding attorneys' fees to the Vincents. We therefore resolve the Bank's cross issue number four against it.
We vacate the trial court's injunction and affirm the judgment as modified.
NOTES
[1] The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
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109 S.W.3d 73 (2003)
Arturo DE LA CRUZ, Appellant,
v.
Columbus P. BROWN a/k/a C.P. Brown, Appellee.
No. 08-02-00208-CV.
Court of Appeals of Texas, El Paso.
May 15, 2003.
Rehearing Overruled June 18, 2003.
*74 Anthony C. Aguilar, El Paso, for Appellant.
Jeffrey B. Thompson, Alto, NM, for Appellee.
Before Panel No. 5 McCLURE, CHEW, JJ., and PRESLAR, C.J. (Ret.)(sitting by assignment).
OPINION
ANN CRAWFORD McCLURE, Justice.
In this case of first impression, we consider whether statutory protections afforded to the residents of colonias may give rise to a private cause of action for monetary damages. Because we conclude that the Legislature intended to create a private cause of action, we reverse and remand.
FACTUAL SUMMARY
On December 3, 1984, Arturo de la Cruz purchased from Columbus P. Brown by executory contract a parcel of land described as Lot 3, Block 5, Roseville Subdivision, El Paso County, Texas, also known as 320 Bauman Road, El Paso County, Texas. De La Cruz made the final payment on June 9, 1997. In January 2001, he filed suit for damages arising from Brown's failure to transfer recorded legal title to the property in question. He argued that Section 5.102 of the Texas Property Code provided for the imposition of fines on the seller of real property if the seller failed to transfer recorded legal title within thirty days of receipt of the purchaser's final payment. Tex.Prop.Code Ann. § 5.079 (Vernon's Supp.2003).[1] Brown recorded the deed to the property on March 30, 2001, nearly four years after final payment was tendered.
De La Cruz filed a motion for summary judgment claiming that he had established as a matter of law his entitlement to the sum of $648,5000 in penalties for a violation of Section 5.102. By amended motion, he adjusted the penalty to $664,500. In his first amended answer, Brown claimed that Section 5.102 did not provide a private cause of action and that the penalties sought to be imposed would amount to an excessive fine. He alternatively alleged the affirmative defenses of waiver, estoppel and laches, and contended that De La Cruz had failed to mitigate his damages, if any. Brown then filed a response to De La Cruz's amended motion for summary judgment, in which he asserted essentially the same arguments as those presented in his amended answer. Brown also filed a motion for summary judgment arguing that Section 5.102 did not grant De La Cruz a private cause of action. Pertinent to our disposition, he did not raise any of his affirmative defenses in that motion for summary judgment. The trial court granted Brown's motion, denied De La Cruz's motion, and rendered a take-nothing judgment in favor of Brown.
This appeal follows. De La Cruz brings seven issues challenging the granting of Brown's motion for summary judgment and the denial of his own. The main issue before usthe interpretation and construction of Section 5.102 of the Texas *75 Property Codeis one of first impression.[2]
STANDARD OF REVIEW
When examining cross-motions for summary judgment, the reviewing court should analyze the summary judgment evidence produced by each side and determine all questions presented. Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997). We should then render such judgment as the trial court should have rendered. Id. Both motions for summary judgment turn on the statutory construction of Texas Property Code Section 5.102; thus, the case is ideally suited for summary judgment.
Statutory construction is a question of law, which we review de novo. Texas Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). Our purpose in construing a statute is to determine legislative intent. Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001). As a starting point, we construe the statute as written and, if possible, ascertain intent from the statutory language. Id. citing Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985). Legislative intent should be determined by reading the language used and construing the statute in its entirety. See In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 380 (Tex.1998); Taylor v. Firemen's & Policemen's Civil Serv. Comm'n, 616 S.W.2d 187, 190 (Tex. 1981). Further, we should read every word, phrase, and expression as if it were deliberately chosen, and presume that words excluded from the statute were excluded purposefully. Gables Realty Ltd. P'ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied). We may also consider other factors, including the object the statute seeks to obtain, circumstances under which the statute was enacted, legislative history, and the consequences of a particular construction. Id.; see also Tex.Gov't Code Ann. § 311.023 (Vernon 1998).
THE STATUTE AT ISSUE
Section 5.102 provided:
(a) The seller shall transfer recorded, legal title of the property covered by the executory contract to the purchaser not later than the 30th day after the date the seller receives the purchaser's final payment due under the contract.
(b) A seller who violates Subsection (a) is subject to a penalty of:
(1) $250 a day for each day the seller fails to transfer the title to the purchaser during the period that begins the 31st day and ends the 90th day after the date the seller receives the purchaser's final payment due under the contract; and
(2) $500 a day for each day the seller fails to transfer title to the purchaser after the 90th day after the date the seller receives the purchaser's final payment due under the contract.
(c) In this section, `seller' includes a successor, assignee, personal representative, executor; [sic] or administrator of the seller.
Act of June 17, 1995, 74th Leg., R.S., ch. 994, § 3 (amended 2001)(current version at Tex.Prop.Code Ann. § 5.079 (Vernon Supp. 2003)).
LEGISLATIVE HISTORY
*76 OF THE STATUTE[3]
Section 5.102 of the Texas Property Code was introduced during the 74th Legislative Session as part of S.B. 336. Senate Committees on International Relations, Trade & Technology, Bill Analyses, Tex. S.B. 336, 74th Leg., R.S. (1995). S.B. 336 sought to establish notice and cure provisions required for a defaulting purchaser under a contract for deed and to establish requirements for and loans associated with a contract for deed transaction in certain counties. Id. S.B. 336 was signed in the Senate and House on May 27, 1995, and by the Governor on June 17, 1995. It became effective on September 1, 1995.
The bill was targeted to address subdivisions known as colonias, described as "substandard, generally impoverished, rural subdivisions that typically lack one or more of the basic amenities of water, wastewater service, paved streets, drainage or electric service." Senate Committees on International Relations, Trade & Technology, Bill Analyses, Tex. S.B. 336, 74th Leg., R.S. (1995). While colonias exist in the greatest concentration along the Texas-Mexico border, particularly in the lower Rio Grande Valley and El Paso County, there are similarly substandard subdivisions in virtually every area of Texas. Id.
Residents of colonias almost always acquire lots by means of an executory contract, generally known as a "contract for deed" or "contract for sale." Id. This type of conveyance is unlike a typical deed of trust transaction in several notable respects. First, the property being conveyed generally is land only, with no house, structure or improvements included. Second, under a contract for deed, legal title does not transfer until all payments are made, and the purchaser may not accrue any equity in a tract even though substantial payments have been tendered. Third, contracts for deed are not required to be recorded; and fourth, virtually none of the state and federal protections afforded conventional home buyers apply to a purchaser under a contract for deed. Id.
This paucity of remedies led to abusive practices by sellers in colonias. Id. For example, sellers have sold individual tracts to two or more buyers, sold lots without a written contract, and placed liens on lots subsequent to the sale without informing the purchaser. Id. Sellers have also misrepresented the availability of water, sewer service and other utilities, and purchasers are often not informed that the property lies in a flood plain or is otherwise unsuitable for habitation. Id.
The magnitude of problems stemming from the development of colonias and the role that contracts for deed play in allowing these problems to develop led some parties to call for an outright prohibition on these conveyances. Id. However, low income families needing housing currently have no other alternatives, as few, if any, banks or other conventional financial institutions are willing to lend, and few insurers will provide coverage for colonias. Id.
S.B. 336 originally provided that a seller who fails to transfer recorded legal title within thirty days of receipt of the purchaser's final payment faced a daily penalty equal to a daily payment under the executory contract. Id. As enacted, however, the bill imposes a penalty of $250 a day for each day the seller remains in *77 violation beginning on the 31st day and ending on the 90th day after the date the seller receives the final payment due under the contract. The penalty increases to $500 per day for each day the seller fails to transfer title after the 90th day. Id.
Section 5.102 was amended and renumbered during the 77th Legislative Session. Senate Comm. on Intergovernmental Relations, Bill Analyses, Tex. S.B. 198, 77th Leg., R.S. (2001). Introduced as S.B. 198, the bill removed the income and geographical brackets and extended state-wide protection to purchasers of real property by executory contract. Id. Signed in the Senate and House on May 18, 2001, and by the Governor on June 13, 2001, S.B. 198 became effective on September 1, 2001.
While numerous changes were made to this chapter of the Texas Property Code, the amendments to Section 5.102, renumbered as Section 5.079, are the focus of the issue at bar. Section 5.079(b) provides that the seller who fails to transfer title upon receipt of the final payment is liable for reasonable attorney's fees and liquidated damages. Senate Comm. on Intergovernmental Relations, Bill Analyses, Tex. S.B. 198, 77th Leg., R.S. (2001). Thus, the "penalty" language of Section 5.102 was replaced with "liquidated damages" and provision was made for recovery of reasonable attorney's fees. This statutory change applies only to a violation occurring on or after September 1, 2001. Id. A violation pre-dating the effective date of the amendment is governed by the law in effect when the violation occurred, and the former law is continued in effect for that purpose. Id. Thus, for purposes of this appeal, we must look to Section 5.102(b).
IS THERE A PRIVATE CAUSE OF ACTION?
The language of subsection (a) was not changed when Section 5.102 was amended and renumbered as Section 5.079. Senate Comm. on Intergovernmental Relations, Bill Analyses, Tex. S.B. 198, 77th Leg., R.S. (2001). In any event, Section 5.079(a) applies to an executory contract on or after September 1, 2001, regardless of when the contract was entered into. Id. Thus, Brown was required to transfer to De La Cruz recorded legal title no later than July 9, 1997, the thirtieth day after Brown received the final payment.
The change in law made by Section 5.079(b) applies only to a violation that occurred on or after September 1, 2001; the language of Section 5.102(b) remains in effect for the case at bar. Id. Brown is subject to a penalty of $250 a day for each day he failed to transfer title during the period beginning July 10, 1997 and ending September 9, 1997; and $500 per day for each day after September 10, 1997 until March 30, 2001, when title was finally transferred. Brown contends that this statutory penalty applies to enforcement by the State of Texas through the Office of the Attorney General and does not give rise to a private cause of action. He relies on amended Section 5.079, which explicitly provides that the seller "is liable to the purchaser ... for liquidated damages" in arguing that the Legislature obviously did not intend a private cause action to be available until after the 2001 amendments. Tex.Prop.Code Ann. § 5.079.
Article IV, Section 22 of the Texas Constitution defines the powers and duties of the Texas Attorney General:
[The Attorney General] shall represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party ... and perform such other duties as may be required by law. *78 TEX. CONST. art. IV, § 22. The Legislature has expanded the Attorney General's authority to include representing the State before the courts of appeals. See TEX. GOV'T CODE ANN. § 402.021 (Vernon 1998); El Paso Electric Company v. Texas Department of Insurance, 937 S.W.2d 432, 438 (Tex.1996). For suits in district court, the Constitution provides that the State shall be represented by either the District Attorney or the County Attorney, as determined by the Legislature. See TEX. CONST. art. V, § 21; El Paso Electric, 937 S.W.2d at 438. This constitutional provision, however, does not preclude the Legislature, pursuant to the authority delegated to it under Article IV, Section 22, from empowering the Attorney General to likewise represent the State in district court. El Paso Electric, 937 S.W.2d at 438. While there is no general statute authorizing the Attorney General to represent the State and its agencies in district court, the Legislature has provided for such representation in particular types of cases. Id.
Section 5.102 does not contain any language from which it can be concluded that the Legislature intended the State to collect the penalty in a suit filed by the Attorney General. Significantly, there is no language specifically obligating or authorizing the Attorney General to enforce the penalty by a civil suit. By contrast, there are numerous statutes which not only provide for a civil penalty but further specify that the Attorney General is authorized to file suit to collect the penalty on behalf of the State. See e.g., TEX.AGRIC. CODE ANN. § 18.009 (Vernon Supp.2003) (penalty for violating subchapter or rule adopted under the subchapter relating to organic standards and certification); TEX. BUS. & COM.CODE ANN. § 38.302 (Vernon 2002)(penalty for violating injunction related to telephone solicitation); Tex.Fin.Code Ann. § 31.108 (Vernon 1998)(penalty against a state bank for failing to file a certain report); Tex.Hum.Res.Code Ann. § 32.0211 (Vernon 2001)(penalty for violation of prohibition against conflict of interest); Tex.Ins.Code Ann. § 101.105 (Vernon Pamph.2003)(penalty for violations of Chapter 101 of Insurance Code); Tex.Nat. Res.Code Ann. § 61.018 (Vernon 2001)(penalty for violations of Chapter 61 of Natural Resources Code); Tex.Transp. Code Ann. § 21.154 (Vernon 1999)(penalty for violating chapter related to administration of aeronautics); Tex.Util.Code Ann. § 15.028 (Vernon 1998)(penalty against a public utility, customer owned pay telephone service provider, or affiliate for certain acts or omissions).[4] Examples of such provisions are also found throughout the Property Code. See e.g., TEX.PROP. CODE ANN. § 12.017(i)(authorizing attorney general to file suit to collect civil penalty against a title insurance company officer for filing a false affidavit that mortgagor *79 has paid off mortgage); Tex.Prop.Code Ann. § 74.709 (Vernon Supp.2003)(authorizing attorney general to file suit to collect civil penalty against a holder of property who fails to file a report or deliver property); Tex.Prop.Code Ann. § 221.075 (Vernon Supp.2003)(under the Texas Timeshare Act, attorney general may institute action against a managing entity to collect civil penalty for failure to file a statement required by Section 221.074); Tex.Prop.Code Ann. § 301.112 (attorney general may file suit to collect civil penalty assessed against a party engaging in discriminatory housing practice; statute notes that civil penalty is assessed by commission to "vindicate the public's interest"). In the absence of specific legislation, the Attorney General is not authorized to file suit to collect the penalty provided for by Section 5.102(a).
In reviewing the circumstances under which the original statute was enacted and legislative history, it is clear that the Legislature was addressing the problems an individual purchaser faced when entering into an executory contract to purchase land in a colonia. Senate Committees on International Relations, Trade & Technology, Bill Analyses, Tex. S.B. 336, 74th Leg., R.S. (1995). The bill's history noted that a purchaser had very few rights or remedies under a contract for deed, and that abusive practices by sellers of colonia lots were common. Id. With the 2001 amendments, the Legislature made the contract for deed protections applicable statewide. Senate Comm. On Intergovernmental Relations, Bill Analyses, Tex. S.B. 198, 77th Leg., R.S. (2001). These amendments buttress our conclusion that the purpose of this legislation was to provide a measure of protection and legal recourse to the purchasers who have been victimized in the past.
We have already determined that Section 5.102 did not authorize the Attorney General to file suit on behalf of the State to collect the penalty. If we accept Brown's argument that Section 5.102 did not provide a private cause of action to a purchaser, then the statute is rendered meaningless and unenforceable as no one would be authorized to file suit to collect the penalty. Such a construction is impermissible as the Legislature is never presumed to have done a useless thing. Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 551 (Tex.1981); Collins v. County of El Paso, 954 S.W.2d 137, 147 (Tex.App.-El Paso 1997, pet. denied). Further, in construing a statute, it is presumed that the entire statute is intended to be effective and a result feasible of execution is intended. Tex.Gov't Code Ann. § 311.021. We therefore conclude that the Legislature intended that purchasers such as De La Cruz would have the ability to maintain a private cause of action to recover the civil penalty established by Section 5.102. Issues One through Seven are sustained.
POSTURE OF AFFIRMATIVE DEFENSES
De La Cruz asks that we reverse and render judgment in his favor. Although we agree with De La Cruz that Section 5.102 provides him with a private cause of action, rendition is not an appropriate remedy due to the procedural posture of this case. Both parties moved for summary judgment on the private cause of action issue. Brown did not move for summary judgment on his affirmative defenses but simply raised them in response to De La Cruz's motion for summary judgment. Consequently, the trial court could not have rendered a take-nothing judgment on those affirmative defenses. In other words, the affirmative defenses might have served to defeat De La Cruz's *80 motion for summary judgment but could not serve as an independent basis for the rendition of judgment in Brown's favor. Because the trial court rendered a take-nothing judgment, it is apparent that the trial court addressed only the argument pertaining to the construction of Section 5.102 and did not address Brown's affirmative defenses raised in his response to the motion for summary judgment. Therefore, remand rather than rendition is the appropriate remedy. Having sustained Issues One through Seven, we reverse the judgment of the trial court and remand this cause for further proceedings consistent with this opinion.
NOTES
[1] Act of June 17, 1995, 74th Leg., R.S., ch. 994, § 3, amended by Act of June 13, 2001, 77th Leg., R.S., ch. 693, § 1, eff. Sept. 1, 2001.
[2] Only one other Texas case mentions Section 5.102. In Salinas v. Beaudrie, 960 S.W.2d 314 (Tex.App.-Corpus Christi 1997, no pet.), the court held that the statute applied to a contract for deed that was executed before the effective date of the statute, since final payment was due after the effective date. Id. at 319.
[3] We will refer to Section 5.102 as it was numbered when originally enacted. As noted previously, Section 5.102 was amended and renumbered by Act of June 13, 2001, 77th Leg., R.S., ch. 693, § 1, and its current version is found at Tex. Prop.Code Ann. § 5.079 (Vernon Supp.2003).
[4] While some statutes provide for the penalty and in the same statute authorize the Attorney General to prosecute a suit to collect them, some statutes are more general. See e.g., Tex.Gov't Code Ann. § 442.012 (Vernon 1998)(authorizing attorney general to file suit to recover on behalf of the state a civil penalty provided by Chapter 442 of the Government Code); Tex.Parks & Wildlife Code Ann. § 86.025 (Vernon 2002)("At the request of the director, the attorney general ... shall bring suit for injunctive relief, to recover a civil penalty, to recover the value of material taken in violation of this chapter, or for any appropriate combination of these remedies."); Tex.Water Code Ann. § 7.105(a)(Vernon 2000)("On the request of the executive director or the [Water Commission], the attorney general shall institute a suit in the name of the state for injunctive relief under Section 7.032, to recover a civil penalty, or for both injunctive relief and a civil penalty."). Neither the Property Code nor the relevant subchapters at issue here contain a general provision authorizing the Attorney General to collect the penalty prescribed by Section 5.102.
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109 S.W.3d 188 (2003)
Nasrin TAUK, Respondent/Cross-Appellant,
v.
Nabil TAUK, Appellant/Cross-Respondent.
No. ED 80788.
Missouri Court of Appeals, Eastern District, Division Four.
June 24, 2003.
Alan E. Freed, Clayton, for respondent/cross-appellant.
Jeanne M. Fox, David B. Lacks, co-counsel, St. Louis, for appellant/cross-respondent.
*189 OPINION
GLENN A. NORTON, Judge.
Nabil Tauk ("Husband") and Nasrin Tauk ("Wife") cross-appeal the judgment dissolving their marriage. We dismiss the appeal for lack of jurisdiction.
I. BACKGROUND
Husband is a medical doctor. He has a 43.2% interest in St. Louis Nephrology Associates, LLC. At the trial on Wife's petition for dissolution, Husband explained that the LLC's money is deposited into an account that all four doctors in the LLC use and that quarterly "the money is separated electronically ... and then each one has his own money." The LLC's account balance at the time of trial was $641,350. Husband acknowledged that at the time of trial, there was $452,000 available for him to draw from this account. The judgment does not specifically mention by name Husband's interest in the LLC or the funds available to him in the LLC account. Instead, the trial court listed Husband's "medical practice" as marital property and awarded it to him, stating that its value was unknown.
II. DISCUSSION
Wife contends that the judgment is not final and the appeal must be dismissed because the trial court failed to classify and divide all of the property. We agree.
Under section 452.330 RSMo 2000, the trial court must make specific findings as to whether each asset before the court is marital property subject to division, is non-marital property to be set aside, or is property over which the dissolution court has no control. In re Marriage of Bell, 84 S.W.3d 467, 468 (Mo.App. E.D.2002). Without such findings, this Court cannot adequately determine whether the division of property is just. Tipton v. Tipton, 993 S.W.2d 567, 568 (Mo.App. S.D.1999). Therefore, a judgment is not final if it fails to distribute all property identified as marital or fails to make a determination that the property before the court is separate or not subject to the court's control. Bell, 84 S.W.3d at 468.
Here, there was evidence before the trial court showing that Husband had a 43.2% interest in the LLC and that he had money available to him in the LLC account. The award to Husband of his "medical practice" is somewhat ambiguous. We can infer that the award must at least refer to Husband's interest in the LLC. We cannot, however, infer that "medical practice" also refers to the money available for Husband to draw from the LLC account. The "draw" is not, as Husband contends, a component of his "medical practice." These assets are distinct for purposes of identifying, classifying and dividing the parties' properties: the "medical practice" is Husband's medical business, represented here by his interest in the LLC; the draw is money generated by that practice and available for Husband's withdrawal from the LLC account. It is simply unclear from this judgment whether the draw (a) was considered marital property and intended to be included in the "medical practice" award, (b) was considered marital but overlooked in the distribution of marital property, (c) was considered Husband's separate property, or (c) was deemed not to be either party's asset.[1]
*190 Until the trial court's intentions with respect to this asset are clarified, we cannot determine whether the division of property is just. See Tipton, 993 S.W.2d at 568. The judgment is not final, and we have no jurisdiction to hear either party's appeal. By dismissing the appeals, we recognize the trial court's jurisdiction to enter a new judgment covering the entire case, from which either party will then have the right to appeal. See In re Marriage of Clark, 3 S.W.3d 402, 404 (Mo.App. E.D.1999).
III. CONCLUSION
The appeals are dismissed.
WILLIAM H. CRANDALL, P.J., and SHERRI B. SULLIVAN, J., concur.
NOTES
[1] If the money in the LLC account is deemed to be the retained earnings of the LLC, then it would be the LLC's propertynot Husband's or Wife'sand not under the dissolution court's control to set aside or divide. See Hoffmann v. Hoffmann, 676 S.W.2d 817, 827 (Mo. banc 1984); see also Graves v. Graves, 967 S.W.2d 632, 636 (Mo.App. W.D.1998); see also section 347.061.1. There are circumstances, however, in which retained earnings may be treated as marital property or are otherwise subject to action by the trial court. See Heineman v. Heineman, 768 S.W.2d 130, 137 (Mo.App. W.D.1989) (retained earnings held in lieu of salary treated as spouse's income and subject to division in dissolution); see also Graves, 967 S.W.2d at 636 (spouse, as sole member of LLC, ordered in dissolution to cause transfer of company's property).
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1836
BOBBY R. ABERNETHY,
Plaintiff - Appellant,
v.
PATRICK DONAHOE, Postmaster General, US Postal Service,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Norman K. Moon, Senior
District Judge. (5:11-cv-30077-NKM-BWC)
Submitted: November 16, 2012 Decided: November 21, 2012
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Bobby R. Abernethy, Appellant Pro Se. David Lew, Rick A.
Mountcastle, Kartic Padmanabhan, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby R. Abernethy, a former employee of the United
States Postal Service (“USPS”), appeals the district court’s
order granting Defendant’s motion to dismiss his breach of
contract action. The district court dismissed Abernethy’s
complaint “based on the simple fact that . . . a federal statute
provides that, with narrow exceptions that are not applicable
here, USPS employees serve by appointment, and not by contract.”
Citing to 39 U.S.C. § 1001(b) (2006) (“Except as otherwise
provided in this title, the Postal Service shall appoint all
officers and employees of the Postal Service.”), and O’Neal v.
Donahoe, 802 F. Supp. 2d 709, 714 (E.D. Va. 2011) (collecting
cases wherein breach of employment contract actions against the
USPS were dismissed), the district court determined that “claims
that the USPS breached an employment contract are ‘necessarily
without merit.’” For the following reasons, we vacate and
remand to the district court.
Unlike the claim at issue in O’Neal, and regardless of
the fact that Abernethy was an appointed employee of the USPS,
Abernethy alleged the existence and breach of a contract
governing his compensation, rather than a contract governing his
employment duration. See O’Neal, 802 F. Supp. 2d at 714
(collecting cases to support holding that “there is no
employment contract that can form the basis for a Postal
2
employee’s breach of contract action against the Postal
Service[,]” where all of the cases involved an unlawful
discharge or failure to reinstate). It does not necessarily
follow that because Abernethy could have been terminated at any
time, the Defendant also had the right to alter his compensation
if, as Abernethy alleges, there was a valid contract on that
point.
Accordingly, we vacate the district court’s order and
remand the matter to the district court for further proceedings. *
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
VACATED AND REMANDED
*
By this disposition, we intimate no view as to the
appropriate resolution of Abernethy’s claim.
3
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Filed: March 14, 2002
IN THE SUPREME COURT OF THE STATE OF OREGON
STEVEN NOVICK,
Petitioner,
v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent.
STEVEN NOVICK,
Petitioner,
v.
HARDY MYERS,
Attorney General,
State of Oregon,
Respondent.
(SC S49020; S49022)
(Consolidated for Opinion)
En Banc
On petition objecting to modified ballot titles.*
Submitted February 26, 2002.
Margaret S. Olney, of Smith, Gamson, Diamond & Olney,
Portland, filed the petition for petitioner.
Judy C. Lucas, Assistant Attorney General, Salem, filed the
response for respondent. With her on the response were Hardy
Myers, Attorney General, and Michael Reynolds, Solicitor General.
BALMER, J.
Modified ballot titles referred to Attorney General for
modification.
*333 Or 314, __ P3d __ (2002) (referring ballot titles for
modification).
BALMER, J.
In these ballot title review proceedings, which we
consolidated for opinion, this court determined that the Attorney
General's ballot titles for two proposed initiative measures,
which the Secretary of State denominated as Initiative Petitions
120 (2002) and 121 (2002), failed to comply substantially with
statutory standards. Novick v. Myers, 333 Or 314, P3d
(2002). The court referred the ballot titles to the Attorney
General for modification. See ORS 250.085(8) (describing
procedure). The Attorney General filed modified ballot titles
for the proposed initiative measures, and, under ORS 250.085(9),
petitioner objected to the modified ballot titles.
Petitioner initially objected to the "yes" vote result
statements in the certified ballot titles, because those
statements failed to state that adoption of either proposed
measure would reduce state revenues. This court determined that
those objections were well taken. In response to this court's
decision, the Attorney General modified the "yes" vote result
statements as follows:
"RESULT OF 'YES' VOTE: 'Yes' vote taxes corporate and
personal capital gains differently from other income,
lowers that tax rate to four percent, reducing revenue
for other state expenditures."
Petitioner contends that use of the word "other" to
modify "state expenditures" is inaccurate because the proposed
initiative measures would reduce the revenue available for all
public services funded through the State General Fund.
Petitioner asserts that the reduction does not relate to any
specific state expenditure and, thus, that the use of the term
"other" is inaccurate. We agree. If either proposed initiative
measure were to pass, then revenues for state expenditures
generally would be reduced. The use of the word "other" to
modify "state expenditures" is inaccurate.
We have considered petitioner's other objections to the
modified ballot titles and conclude that they are not well taken.
For the foregoing reasons, the Attorney General must
modify the "yes" vote result statements of the modified ballot
titles for Initiative Petitions 120 (2002) and 121 (2002).
Modified ballot titles referred to Attorney General for
modification.
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12-699-cv
Dattner v. ConAgra Foods, Inc., et al.
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 3rd day of January, two thousand thirteen.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PIERRE N. LEVAL,
9 GUIDO CALABRESI,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 YEHSKEL DATTNER,
14
15 Plaintiff-Appellant,
16
17 -v.- 12-699-cv
18
19 CONAGRA INTERNATIONAL, INC., DONALD DA
20 PARMA, and CONAGRA FOODS, INC.,
21
22 Defendants-Appellants.
23 - - - - - - - - - - - - - - - - - - - -X
24
25 FOR APPELLANTS: Gregory E. Galterio (Bension
26 Daniel DeFunis and Ira N.
27 Glauber on the brief), Jaffe &
28 Asher LLP, New York, New York.
1
1
2 FOR APPELLEES: Frank Harold Wohl (Patrick Paul
3 Garlinger on the brief), Lankler
4 Siffert & Wohl LLP, New York,
5 New York.
6
7 Appeal from a judgment of the United States District
8 Court for the Southern District of New York (Preska, J.).
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the judgment of the district court be
12 AFFIRMED.
13
14 This is an appeal from the denial of Yeheskel Dattner’s
15 motion under Rule 60(b)(6) to reinstate his action, which
16 had been dismissed in 2003 for forum non conveniens. We
17 assume the parties’ familiarity with the underlying facts,
18 the procedural history, and the issues presented for review.
19
20 We conclude that Dattner’s appeal is without merit
21 substantially for the reasons articulated by the district
22 court in its well-reasoned decision. We have considered all
23 of Dattner’s remaining arguments and find them to be without
24 merit.
25
26 For the foregoing reasons, we hereby AFFIRM the
27 judgment of the district court.
28
29
30 FOR THE COURT:
31 CATHERINE O’HAGAN WOLFE, CLERK
32
2
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11-3388-cr
United States v. Ly
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 3rd day
3 of January, two thousand thirteen.
4
5 Present: PIERRE N. LEVAL,
6 ROSEMARY S. POOLER,
7 BARRINGTON D. PARKER,
8 Circuit Judges.
9
10 ________________________________________________
11
12 UNITED STATES OF AMERICA,
13
14 Appellant,
15
16 v. No. 11-3388-cr
17
18 HUONG THI KIM LY,
19
20 Defendant-Appellee.
21
22 ________________________________________________
23
24 For Appellant: Soumya Dayananda (Amy Busa, Assistant United States Attorneys, on
25 the brief), for Loretta E. Lynch, United States Attorney for the Eastern
26 District of New York, Brooklyn, NY
27
28 For Defendant-Appellee: Edward M. Kratt, New York, NY
29 ________________________________________________
1
2 Appeal from the United States District Court for the Eastern District of New York
3 (Johnson, J.).
4
5 ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
6 DECREED that the judgment of the district court dated July 22, 2011, be and hereby is
7 AFFIRMED.
8 The United States appeals from the district court’s grant of a new trial in the criminal trial
9 of Defendant Huong Thi Kim Ly. We assume the parties’ familiarity with the underlying facts
10 and procedural history.
11 “We review the decision of the district court to grant a new trial for abuse of discretion.”
12 United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001). Under Fed. R. Crim. P. 33, a
13 district court may grant a new trial to a defendant “if the interest of justice so requires,” which
14 we have explained means that “letting a guilty verdict stand would be a manifest injustice.”
15 Ferguson, 246 F.3d at 133-34.
16 We affirm the district court’s grant of a new trial. We believe the district court was
17 correct in its perception that its response to the jury’s request for a more helpful definition of
18 domestic violence, telling the jury no more than to use its common sense, failed to give the jury
19 appropriate guidance and potentially prejudiced defendant’s case. See United States v.
20 Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004). For example, the defendant testified to several
21 incidences of conduct, which constitute domestic violence within the meaning of the statute,
22 such as a slap in the face, but which the jury might erroneously have believed too trivial to be
23 considered violence. The court’s failure to explain the term “domestic violence” to the jury could
24
-2-
1 well have prejudiced the defense. We conclude that the court’s decision to grant a new trial was
2 within the court’s lawful discretion. Accordingly, we reject the government’s appeal.1
3 For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
4 FOR THE COURT:
5 CATHERINE O’HAGAN WOLFE, CLERK
6
7
1
The district court appeared to believe, in addition, that the jury should have been
instructed that purely emotional abuse, involving neither incidence nor threat nor attempt of
physical harm or force, also qualifies as domestic violence, so that flight from such conduct
would constitute a defense to international child kidnapping under 18 U.S.C. § 1204. The court
relied in part on a website posting by the Department of Justice’s Office on Violence Against
Women, which defined “domestic violence” to include purely emotional, economic, or
psychologic abuse. See USDOJ: OFFICE ON VIOLENCE AGAINST WOMEN: CRIMES OF FOCUS:
DOMESTIC VIOLENCE, http://www.ovw.usdoj.gov/domviolence.htm (last updated August 2012).
It is by no means clear to us that Congress intended by § 1204 to make a spouse’s flight
from purely emotional abuse (such as, calling one’s spouse “stupid,” for example),
unaccompanied by any incidence or threat of physical force, a defense to kidnapping. Domestic
violence must include the use of physical force and any threats, explicit or implicit, including
gestures and psychological means, that create a reasonable fear of harm in the victim. In other
statutes, Congress has repeatedly used the term “violence” to mean physical harm or threatened
or attempted physical harm. For example, 18 U.S.C. § 16 defines a “crime of violence” as an
“offense that has as an element the use, attempted use, or threatened use of physical force against
the person or property of another,” or an offense “that, by its nature, involves a substantial risk
that physical force against the person or property of another may be used in the course of
committing the offense.” See also id. § 3156(a)(4) (same). That definition of “crime of violence”
is incorporated in several statutes into the term “domestic violence.” See, e.g., 8 U.S.C. §
1227(a)(2)(E)(i) (defining “crime of domestic violence” in context of immigration laws as a
“crime of violence (as defined in section 16 of Title 18)” against a person committed by a current
or former spouse or similarly-related individual); 18 U.S.C. § 2261(a) (defining “interstate
domestic violence” as a crime where a person with the requisite intent and relationship to the
victim “commits or attempts to commit a crime of violence”); id. § 3561(b) (defining “domestic
violence crime” as a “crime of violence” against a current or former spouse or similarly-related
individual); 42 U.S.C. § 13925(a)(6) (defining “domestic violence,” for purposes of subchapter
III of Chapter 136 of Title 42, as “crimes of violence” committed by a current or former spouse
or similarly-related individual).
We have no need to rule definitively on the issue at this time and do not do so. We urge
the district court to request full briefing of the issue before instructing the jury in the new trial.
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J-S36004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMON DIEHL
Appellant No. 763 WDA 2014
Appeal from the Judgment of Sentence April 29, 2014
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000715-2013
BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.∗
MEMORANDUM BY PANELLA, J. FILED JUNE 30, 2015
Appellant, Jamon Diehl, appeals from the judgment of sentence
entered on April 29, 2014, in the Court of Common Pleas of Jefferson
County. He maintains that the jury’s verdict is against the weight of the
evidence. We affirm.
A jury convicted Diehl of aggravated assault, simple assault, and
recklessly endangering another person. The convictions stem from Diehl’s
attack of Glenn Teddy Baker, Sr. The trial court sentenced Diehl to an
aggregate sentence of 14 to 40 years’ imprisonment. This timely appeal
followed.
____________________________________________
∗
Retired Senior Judge assigned to the Superior Court.
J-S36004-15
Baker testified that he and Luis Molino went to Diehl’s apartment to
speak with him about his mistreatment of a female acquaintance. See N.T.,
4/17-18/14, at 49. In the words of Baker, “it just went chaos from there.”
Id. Diehl answered the door and then went to the kitchen to retrieve a
knife, which he then dropped. See id., at 50. Diehl then punched Baker in
the back of the head and tried to pull him “in towards the house.” Id., at
51. Molino “snatched” Baker “away from him.” Id., at 52. The pair then
left and went to another apartment. See id., at 54. Diehl followed them
and then confronted Baker outside the other apartment. See id., at 55-57.
Diehl “swung the knife” at Baker and the pair fell down the steps. See id.,
at 57. During the tussle, Diehl stabbed Baker. See id., at 62. Molino and
Baker were able to subdue Diehl, eventually letting him go. Another friend
of Baker’s called the police. Molino’s testimony corroborated Baker’s. See
id., at 161-166. Other witnesses also confirmed parts of Baker’s testimony.
Diehl testified on his own behalf and presented the testimony of other
witnesses. Diehl’s version of events is far different from Baker’s testimony.
Diehl maintained that he was not the aggressor, but the victim. There is no
need to detail the testimony here.
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In the only issue presented on appeal, Diehl maintains that the jury’s
verdict is against the weight of the evidence.1 He maintains, essentially,
that all the Commonwealth witnesses lied and that he and his witnesses
testified truthfully.
Our standard of review for a challenge to the weight of the evidence is
well settled. The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none of the evidence
presented and determines the credibility of the witnesses. See
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003). As an
appellate court, we cannot substitute our judgment for that of the finder of
fact. See id. Therefore, we will reverse a jury’s verdict and grant a new
trial only where the verdict is so contrary to the evidence as to shock one’s
sense of justice. See Commonwealth v. Passmore, 857 A.2d 697, 708
(Pa. Super. 2004).
A verdict is said to be contrary to the evidence such that it shocks
one’s sense of justice when “the figure of Justice totters on her pedestal,” or
when “the jury’s verdict, at the time of its rendition, causes the trial judge to
lose his breath, temporarily, and causes him to almost fall from the bench,
then it is truly shocking to the judicial conscience.” Commonwealth v.
____________________________________________
1
Diehl properly preserved this claim for our review by raising it in a post-
sentence motion. See Pa.R.Crim.P., Rule 607(A)(3).
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J-S36004-15
Davidson, 860 A.2d 575, 581 (Pa. Super. 2004) (citations omitted), aff’d,
938 A.2d 198 (Pa. 2007).
Furthermore,
where the trial court has ruled on the weight claim below, an
appellate court’s role is not to consider the underlying question
of whether the verdict is against the weight of the evidence.
Rather, appellate review is limited to whether the trial court
palpably abused its discretion in ruling on the weight claim.
Champney, 574 Pa. at 444, 832 A.2d at 408 (citation omitted).
The trial court found that the verdict did not shock its sense of justice.
A reading of the trial court’s opinion reveals that the trial court agreed fully
with the jury’s credibility determinations. See Trial Court Opinion, 2/2/15.
We can find no abuse of discretion with this conclusion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2015
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FILED
NOT FOR PUBLICATION DEC 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50557
Plaintiff - Appellee, D.C. No. 3:08-cr-01720-WQH-1
v.
MEMORANDUM *
JESUS CORONA-RIVERA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted May 4, 2011
Pasadena, California
Before: PREGERSON, FISHER and BERZON, Circuit Judges.
Defendant-Appellant was convicted by jury of illegal reentry under 8 U.S.C.
§ 1326. He appeals the district court’s (1) denial of his motion to dismiss the
indictment for improper grand jury instructions and (2) the reasonableness of his
sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Grand jury instructions.1 The district court’s instructions to the grand
jury were within the bounds of similar instructions we have found constitutional.
See United States v. Caruto, 663 F.3d 394, 397-401 (9th Cir. 2010); United States
v. Navarro-Vargas, 408 F.3d 1184, 1204-05 (9th Cir. 2005). The district court’s
grand jury instructions did not convey to the jury that upon finding probable cause
it was obligated to indict. See Caruto, 663 F.3d at 397-401; Navarro-Vargas, 408
F.3d at 1204-05.
2. Sentencing.
a. Procedural Challenges.
i. The district court did not plainly err in finding that Corona-
Rivera had a previous conviction in August 1990 for violating California Health
and Safety Code § 11360(a) (hereinafter “§ 11360(a)”). See United States v. Vieke,
348 F.3d 811, 813 (9th Cir. 2003) (reviewing sentencing challenge for plain error
where, as here, the original objection lacked a “specific substantive basis”). The
pretrial sentencing report (PSR) stated that Corona-Rivera was convicted in August
1990 of violating § 11360(a). Because Corona-Rivera “did not object to the factual
accuracy of the [PSR], the district court was entitled to treat the factual assertions
1
United States District Judge Larry A. Burns presided over the grand jury
portion of this case.
2
therein as established.” United States v. Hilgers, 560 F.3d 944, 948 n.4 (9th Cir.
2009) (citing Fed. R. Crim. Proc. 32(i)(3)(A) (“At sentencing, the court . . . may
accept any undisputed portion of the presentence report as a finding of fact.”)).
Nor was the district court required sua sponte to recognize that the conviction
documents did not identify Corona-Rivera by name or contain other adequate
“indicia of reliability.” The PSR addendum stated that the PSR was prepared
based on fingerprint-matched rapsheets, the probation officer testified at
sentencing that he relied on official databases and Corona-Rivera did not suggest
the preparing officer had reason to prevaricate. See United States v. Marin-
Cuevas, 147 F.3d 889, 895 (9th Cir. 1998) (district court did not abuse its
discretion by accepting PSR as reliable evidence where probation officer who
prepared report obtained his information from “a reliable source [like] the
computerized criminal history” and “had no reason to prevaricate”).
ii. The district court did not plainly err in concluding under the
modified categorical approach, which Corona-Rivera declined to address before
the district court, that Corona-Rivera’s conviction was a “drug trafficking offense”
3
and a “felony” within the meaning of USSG § 2L1.2.2 Although § 11360(a)
proscribes a range of actions, the PSR addendum included conviction documents,
including a felony complaint stating that Corona-Rivera (under an alias) was
charged only with “Sale of Marijuana.” The attached plea agreement likewise
revealed that he pled guilty “as charged” and admitted to “unlawfully [selling]
marijuana.” The plea agreement also stated that he faced a maximum of four
years’ imprisonment. The felony complaint and written plea agreement are
quintessential evidence under the modified categorical approach. See United
States v. Almazan-Becerra, 537 F.3d 1094, 1095, 1100 (9th Cir. 2008) (relying on
similar records to hold that a conviction for the same act under the same California
statute warranted a 16-level enhancement under the modified categorical
approach).3
2
The comments to USSG § 2L1.2 define “drug trafficking offense” as “an
offense under federal, state, or local law that prohibits the manufacture, import,
export, distribution, or dispensing of, or offer to sell a controlled substance (or a
counterfeit substance) or the possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export, distribute, or dispense[,]”
USSG § 2L1.2, cmt. n.1(B)(iv), and “felony” as “any federal, state, or local offense
punishable by imprisonment for a term exceeding one year[,]” id. at cmt. n. 2.
3
Corona-Rivera’s other attempts to escape the plain language of USSG §
2L1.2 fail to persuade. See United States v. Treadwell, 593 F.3d 990, 1006 (9th
Cir. 2010) (“If the text of a guideline is unambiguous, its plain meaning
controls.”).
4
iii. The district court did not abuse its discretion in imposing a
90-month sentence. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2005).
The district court methodically considered all of the § 3553 factors and provided a
reasoned explanation why it was necessary to sentence Corona-Rivera to a longer
sentence than for previous similar convictions.
b. Substantive challenge. The district court did not abuse its
discretion in adhering to the Guidelines range despite (1) the alleged staleness of
the August 1990 conviction and Corona-Rivera’s lack of any violent or physically
harmful convictions since then, and (2) what he refers to as “the exceptionally
benign nature” of the “plus 16” conviction. See Carty, 520 F.3d at 993. Unlike in
United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), the district court
considered all of the § 3553 factors in light of the concerns Corona-Rivera raised,
and came to the reasoned conclusion that his lengthy criminal history and
recidivism required a sentence of 90 months to deter future violations and protect
the community. Cf. id. at 1057 (“[T]he district court applied the Guidelines
sentence without considering the defendant-specific facts that made the resulting
sentence unreasonable under § 3553(a) – i.e., the staleness of the predicate prior
conviction[.]”). Amezcua-Vasquez, moreover, did not have Corona-Rivera’s
significant immigration record and subsequent history of petty crime. Because it
5
was this history that warranted the long sentence, not the simple fact that Corona-
Rivera qualified for an enhancement, Corona-Rivera’s 28(j) letter identifying a
proposed amendment to the Guidelines that would reduce his offense level by 8,
were it made retroactive, does not provide a basis to find an abuse of discretion.
AFFIRMED.
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468 S.W.2d 604 (1971)
A. C. CROUCH et al., Appellants,
v.
SWING MACHINERY COMPANY, Inc., Appellee.
No. 14933.
Court of Civil Appeals of Texas, San Antonio.
June 9, 1971.
*605 John J. Clayton, San Antonio, for appellants.
Stolhandske, Simmons & Stolhandske, San Antonio, for appellee.
CADENA, Justice.
Defendants, A. C. Crouch and W. L. Bedford, appeal from an order temporarily enjoining them from soliciting the customers of, or contacting the suppliers represented by their former employer, Swing Machinery Company, Inc., plaintiff below.
Plaintiff alleged that Crouch had been its office manager, while Bedford had been one of plaintiff's salesmen. According to plaintiff's petition:
1. As office manager, Crouch occupied a position of trust and confidence, and had access to plaintiff's trade secrets, customer lists, mailing lists and price lists.
2. Bedford, as a salesman, had access to such information because he occupied a position of trust and confidence. At the time that he entered plaintiff's employ, Bedford agreed that he would not engage in a business competitive with plaintiff for a period of five years after termination of his employment.
3. Both Crouch and Bedford, after terminating their employment with plaintiff by resignation, were employed by Southwest Vacu-Blast and Industrial Sales, Inc., a newly organized company which was in direct competition with plaintiff. Both Crouch and Bedford immediately began to call upon the customers and accounts of plaintiff, soliciting their business. In soliciting plaintiff's customers, defendants made use of plaintiff's trade secrets.
At the outset, we affirm the order below insofar as it applies to William L. Bedford. The evidence shows that at the time he entered plaintiff's employ, Bedford signed an agreement not to engage in post-employment competition with plaintiff. Bedford has failed to present any evidence which even tends to indicate that such agreement is unreasonable, and the record discloses no reason why he should not be compelled to abide by his agreement pending trial on the merits.
Crouch never agreed not to compete with plaintiff. On the effective date of his resignation, Crouch called on plaintiff for his accrued salary. His salary was withheld until he signed an instrument stating that he had been entrusted with trade secrets, and that he agreed not to divulge them. Despite the circumstances under which the instrument was signed by Crouch, it is, perhaps, some evidence that he had, in fact, been entrusted with some trade secrets. But even if his agreement not to divulge such secrets is enforcible, it imposes on him no obligation greater than that which is imposed on him by the common law doctrine, which prohibits an exemployee from disclosing, or using for his own benefit and to the detriment of his former employer, any confidential information obtained by virtue of his former employment. Hyde Corporation v. Huffines, 158 Tex. 566, 314 S.W.2d 763 (1958).
With reference to Crouch, we consider first the propriety of that portion of the order which prohibits him from "contacting" suppliers whom plaintiff represented in the San Antonio area. In this connection, plaintiff's pleadings fail to allege that the identity of such suppliers is not generally known to all persons engaged in the same business as plaintiff. Plaintiff's evidence discloses that the identity of such suppliers can be easily ascertained by any interested person merely by referring to trade journals. In fact, under the terms of plaintiff's sales representative agreement with one supplier, plaintiff was under a duty to advertise, at its own expense, by *606 inserting at least one display listing in the classified section (yellow pages) of the telephone directories in all cities within plaintiff's trade area which prominently displayed the name of such supplier. We find nothing in the record to indicate that such information is not of a routine nature. Such information is nothing more than that which is necessarily known to all persons engaged in the business. Although there are cases where courts have gone to rather extreme lengths in protecting business information which represents nothing more than the normal accretion of day-to-day routines, 43 A.L.R.2d, Anno: EmployeeRestrictive CovenantArea, pp. 94, 168-70 (1955), we do not believe that knowledge of the ordinary routines of a business is sufficient to justify a restriction on a person's post-employment economic mobility.
In reaching the conclusion that the temporary injunction prohibiting defendant, Crouch, from contacting the suppliers must be dissolved, we do not overlook the fact that we are reviewing the action of the trial court in granting a temporary injunction. As our Supreme Court has said, we may not reverse the decision below unless it appears that the trial court abused its discretion, and "there is no abuse of discretion in the issuance of a writ if the petition alleges a cause of action and the evidence adduced tends to sustain it." Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953). Admittedly, the trial court has a wide discretion in determining whether a temporary injunction shall be granted or denied. But to authorize the issuance of a temporary injunction, the applicant has the "burden of not only pleading facts which, if proved, would entitle it to a permanent injunction, but, as well, of offering evidence tending to prove its probable right thereto on final hearing and of probable injury in the interim." Millwrights Local Union No. 2484 v. Rust Engineering Co., 433 S.W.2d 683, 686 (Tex.1968). Far from tending to show a breach of any duty by Crouch, the evidence merely shows that Crouch, after he left plaintiff's employ, was making use of information which is necessarily known to all persons in the trade. What is known to all cannot be converted into confidential information worthy of equitable protection by merely whispering into the ear of even the most highly trusted employee.
The customer list cases stand on the periphery of that area of the law which can best be described as "the trade secret quagmire." The confusion created by decisions concerning the use of customer lists and customer contracts by ex-employees is due to the fact that the decisions seemingly turn on arbitrary distinctions unrelated to trade practices.[1]
In the absence of an express agreement restricting the post-employment activities of an employee, it is generally held that an ex-employee is free to compete with, and to solicit the customers of, his former employer. *607 Therefore, what is described as an "ordinary" customer list is not considered a trade secret. Texas Shop Towel v. Haire, 246 S.W.2d 482, 485 (Tex.Civ.App.San Antonio 1952, no writ); 28 A.L.R. 3d, Anno: Customer ListAs Trade SecretsFactors, pp. 7, 18 (1969).
However, the former employer will be protected in some situations. An ex-employee will not be permitted to make use of a secret list of customers, nor of any other confidential information obtained about the customers by virtue of his former employment. This rule has been applied in a multitude of cases. In addition, there is considerable language in the decisions to the effect that injunctive relief will be granted when the defendant occupied a fiduciary relationship, such as that occupied by an officer of a corporation or other employee who has been the repository of special trust. 73 Harv.L.Rev. 625, 655, supra.
But neither of these two "exceptions" to the general rule against restraints on post-employment activities will explain the decisions. Admittedly, the courts have shown a willingness to protect secret customer lists and to prevent the use by an ex-employee of confidential information concerning the customers of his former employer. But there is not reliable test for determining when a list is secret, nor is there agreement as to the type of customer information which will be considered confidential. Further, the employer has been protected in many cases where the identity of the customers could not be classified as secret, as in the numerous cases where the courts have enjoined salesmen assigned to service a regular route. 43 A.L.R.2d, Anno: EmployeeRestrictive CovenantArea, pp. 94, 316-21 (1958). Nor is the "fiduciary relationship" rationale particularly helpful. The fact that certain information is divulged only to the most trusted employees may be evidence of its confidential nature, but not all information revealed to such employees is necessarily confidential.
Where the list of customers is not secret, some courts have been inclined to grant relief where the employee's relationships with customers have been such as to create a substantial risk that he may be able to divert all or a part of their business. Absent secrecy, it is in cases where the employer's sole, or at least major, contact with his customers is through agents that there exists a real danger that the customers will come to regard their relationship with the agent as more important than the quality of products or services furnished by the employer, so that some of the customers may be persuaded, or even be willing, to forsake the employer and follow the employee. See Arthur Murray Dance Studios of Cleveland v. Witter, 105 N.E.2d 685, 705-709 (Common Pleas, Ohio 1952), for an enlightening discussion of the customer list problem. The "customer contact" approach is discussed in 73 Harv.L. Rev. 625, 657-61, supra.
It may be, as Crouch insists, that there is no evidence tending to show that the identity of plaintiff's customers is a secret, since plaintiff's president admitted potential buyers of the products sold by it could be ascertained by consulting the telephone directory or by touring the industrial section of a city. However, there is evidence to the effect that the important information relates not to the identity of particular businesses which might purchase plaintiff's products, but the identity of officers or other employees of such concerns who make the decisions concerning the purchase of such equipment. There is also evidence which at least tends to show that ascertaining the identity of such key personnel requires the expenditure of considerable time and money. While one may be justified in viewing with skepticism plaintiff's insistence that purchasers of industrial equipment try to keep the identities of their purchasing agents secret, such evidence stands uncontradicted.
In addition, there is testimony, uncontradicted, that because Crouch occupied a position of confidence, he acquired information *608 concerning the credit ratings of plaintiff's customers and other useful customer data which, according to plaintiff's president, were strictly confidential and of great value to plaintiff in the conduct of his business. While the nature of such data was described in rather general terms, and the testimony of plaintiff's president concerning its confidential nature is not completely persuasive, in view of his insistence that such things as "telephone manners" and general accounting principles were also "secrets," we believe that such evidence, standing unchallenged, prevents the conclusion that the trial court abused its discretion in issuing the temporary injunction. See Ellis, Trade Secrets, Sec. 79 (1953).
That portion of the temporary injunction which prohibits Crouch from contacting plaintiff's suppliers is dissolved. In all other respects the order appealed from is affirmed.
The costs of this appeal are taxed one-half to appellant, W. L. Bedford, one-fourth to appellant, A. C. Crouch, and one-fourth to appellee, Swing Machinery Company, Inc.
NOTES
[1] In the numerous decisions in this area will be found language which at least tends to support each of the following statements: (1) Practically all customer lists will be protected; (2) practically no such lists will be protected; (3) only written lists will be protected; (4) only lists of retail customers will be protected. Notes: Protection and Use of Trade Secrets, 64 Harv.L.Rev. 976, 977 (1951). The American Law Institute makes the availability of injunctive relief depend upon the length of an employee's memory. "The agent is entitled to use general information concerning the method of business of the principal and the names of the customers retained in his memory, if not acquired in violation of his duty as agent." Restatement (Second), Agency Sec. 396 (1958). For criticisms of the "memory" exception to the general rule that a person is free to compete with his former employer, see 2 Callman, Unfair Competition and Trademarks, 844, 845 (2d ed. 1950); McClain, Injunctive Relief Against Employees Using Confidential Information, 23 Ky.L.J. 248, 259 (1935). Many courts have decided cases by applying the memory rule. See Blake, Employee Agreements Not to Compete, 73 Harv.L.Rev. 625, 655 (1960).
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283 Pa. Super. 585 (1981)
424 A.2d 1355
Doris L. STRUNACK, Appellant,
v.
Clair K. ECKER and Guido Robert Ecker.
Superior Court of Pennsylvania.
Argued June 13, 1980.
Filed January 23, 1981.
Petition for Allowance of Appeal Granted May 26, 1981.
*586 David S. Shrager, Philadelphia, for appellant.
Dean B. Stewart Jr., Norristown, for appellees.
Before CERCONE, President Judge, and PRICE, SPAETH, HESTER, CAVANAUGH, BROSKY and WICKERSHAM, JJ.
HESTER, Judge:
This is an appeal from an order granting appellees' motion to strike appellant's complaint.
Appellant instituted an action in trespass to recover damages for injuries sustained as a result of a collision between the automobile she was operating and appellees' vehicle. Medical expenses in the amount of $1,162.75 were alleged.
Appellees filed a motion to strike the complaint asserting that the appellant had failed to meet the $750 medical expense threshold of the "Pennsylvania No-Fault Motor Vehicle Insurance Act", 1974 July 19, P.L. 489, No. 176 Art. I et seq., 40 P.S. § 1009.101, as amended (herein the "Act") in that $756.00 of appellant's medical expense was as a result of chiropractic services.
The motion to strike was granted and this appeal followed.
We are presented with the question as to whether § 301(a)(5)(B) of the "Act" should be construed to include chiropractic expenses.
Section 301(a)(5)(B) provides as follows:
Article III Tort Liability
(a) Partial abolition. Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance or use of a motor vehicle, except that:
.....
(5) A person remains liable for damages for non-economic detriment if the accident results in:
*587 (B) the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care and recovery of the victim, exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars ($100) is in excess of seven hundred fifty dollars (750). For purposes of this subclause, the reasonable value of hospital room and board shall be the amount determined by the Department of Health to be the average daily rate charged for a semi-private hospital room and board computed from such charges by all hospitals in the Commonwealth. (At 40 P.S. § 1009.-301).
We have previously affirmed two lower court decisions wherein they excluded chiropractic expenses from section B (above). Miller v. Johnson, 276 Pa.Super. 638, 424 A.2d 548 (1979); Babcock v. Tippett, 260 Pa.Super. 583, 394 A.2d 607 (1978).
In determining the meaning of statutory language, our purpose is to ascertain and effectuate the intention of the Legislature. Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312 (1979).
In section 301(a)(5)(B), the Legislature enumerated two classes of expenses which can be sued for if in excess of $750.00, "medical and dental services".
Clearly the maxim "expressio unius est exclusio alterius" would seem to apply here. The maxim essentially provides that where certain things are specifically designated, all omissions should be understood as exclusions. Commonwealth v. Charles, 270 Pa.Super. 280, 411 A.2d 527 (1979). Thus here, where the statute specified two classes of expenses and "chiropractic" expenses were not included, logically one should conclude that the Legislature did not intend that chiropractic expenses be included in calculating the $750.00 threshold of the Act.
Indeed, our interpretation that the Legislature intended to exclude chiropractic expenses because they were not specifically *588 enumerated in the Act, is supported when the history of the Act is examined.
Intense debate proceeded the enactment of the No-Fault Act. During the course of this, Senator Edward P. Zemprelli proposed an amendment that would have eliminated the term "dental" and replaced it with "dental, osteopathic, chiropractic, physical therapy and pharmaceutical," 2190 Legislative Journal, Senate (July 11, 1974). However, this amendment was defeated. Thus it is an inescapable conclusion that the Legislature did not intend to include chiropractic expenses within this section of the Act.
Surely when one is seeking to determine whether a specific "term" should be construed to be within the language of a particular statute, no clearer indication of legislative intent exists than the specific rejection by the Legislature of an amendment which includes that particular "term".
Appellant points to other statutes, i.e., Workmen's Compensation Act, Act of 1915, June 2, P.L. 736, 77 P.S. § 1, as amended, and the "Chiropractic Registration Act", Act of 1951, Aug. 10, P.L. 1182 § 1, 63 P.S. § 601 et seq., as amended, whose definition of "chiropractic services" and "medical services" would seem to merit the inclusion of chiropractic expenses within § 301(a)(5)(B) of the "Act".
However, we need look no further than the clearly demonstrated intention of the Legislature as expressed during the passage of the "Act".
We resist the temptation to "judicially" legislate under the guise of statutory interpretation. Irrespective of our personal inclinations, our duty is to see that the Legislature's intention is correctly implemented. This duty is best expressed by the ancient maxim, "Jus dicere et non jus dare" (to declare the law, not to make it).
Since the position of the appellant was specifically rejected by the Legislature, we see no course but to affirm.
SPAETH, J., files a dissenting opinion in which CERCONE, President Judge, and BROSKY, J. join.
*589 SPAETH, Judge, dissenting:
In deciding that the expense of chiropractic services may not be counted toward the $750 threshold provided in the No-Fault Motor Vehicle Act, 40 P.S. § 1009.301(a)(5)(B), the majority cites the maxim "expressio unius est exclusio alterius." The maxim is beside the point. The issue in this case is not whether we should add the word "chiropractic" to the words "medical and dental;" it is rather whether the term "medical services" should be construed to include chiropractic services.
I am persuaded that the term "medical services" as used in section 301(a)(5)(B) should be construed to include chiropractic services.
The Statutory Construction Act defines "Medicine and surgery" as:
The art and science having for their object the cure of diseases of and the preservation of the health of man, including all practice of the healing art with or without drugs, except healing by spiritual means or prayer. 1 Pa.C.S.A. § 1991 (Purdon's Supp. 1964-1978).
and "Healing art" as:
The science of diagnosis and treatment in any manner whatsoever of disease or any ailment of the human body. 1 Pa.C.S.A. § 1991 (Purdon's Supp. 1964-1978) (emphasis added).
We may fairly assume that the legislature was aware of these definitions when drafting the No-Fault Motor Vehicle Act.[1] Moreover, the legislature has previously considered chiropractic services as a form of the healing arts. In the Chiropractic Registration Act of 1951, 63 P.S. § 601 (Purdon's 1968), the legislature defined "Chiropractic" as a
limited science of the healing arts dealing with the relationship between the articulations of the vertebral column, *590 as well as other articulations, and the nervous system and the role of these relationships in the restoration and maintenance of health. 63 P.S. § 602(b) (Purdon's 1968).
In the Workmen's Compensation Act, 77 P.S. § 531 (Purdon's Supp. 1979-80), the legislature provided for payment by the employer of "reasonable surgical and medical services, services provided by duly licensed practitioners of the healing arts, medicines, and supplies." This provision has been interpreted as requiring employers to pay for chiropractic services. Workmen's Comp. App. Bd. v. Overmyer Mold, 473 Pa. 369, 374 A.2d 689 (1977).
In addition to these statutory definitions, a line of cases interprets the Medical Practice Act of June 3, 1911, 63 P.S. § 401 (Purdon's 1968), repealed, 63 P.S. § 421.1 (Purdon's Supp. 1979-1980), as requiring that chiropractors be licensed by the Board of Medical Education and Licensure, notwithstanding the lack of any specific statutory language to that effect. In Long v. Metzger, 301 Pa. 449, 453, 152 A. 572, 573 (1930), the Supreme Court defined the "practice of medicine," which is the term found in the licensing statute, as including "everything that by common understanding is included in the term healing art" (citing Commonwealth v. Seibert, 262 Pa. 345, 105 A. 507 (1918)). See also Commonwealth v. Jobe, 91 Pa.Super. 110 (1927); Commonwealth v. Martindell, 82 Pa.Super. 417 (1923); Commonwealth v. Byrd, 64 Pa.Super. 108 (1916). Since the chiropractors in Long acknowledged that their profession was a healing one, the Court concluded that they had to be licensed to practice.
Appellees do correctly note in their brief, at 8, that the Medical Practice Act of 1974, 63 P.S. § 421.17(a)(4), specifically excludes chiropractic from its scope. This, however, is indicative only of the narrow focus of that Act on doctors of medicine. Thus Section 421.17(a)(6) similarly excludes osteopathy, which is regulated by the Act of March 19, 1909, 63 P.S. § 261 et seq.
Perhaps the most compelling argument for construing Section 301(a)(5)(B) to include chiropractic services is the *591 structure of the No-Fault Motor Vehicle Act itself. Section 103 of the Act defines the term "Medical and vocational rehabilitation services" in language broad enough to include chiropractic services. This broad definition of "Medical and vocational rehabilitation services" is central to the functioning of the Act because it is incorporated in Article II of the Act, which creates the victim's right to recover "basic loss benefits."[2] To be sure, one might say that the definition of "Medical and vocational rehabilitation services" in Section 103 should not influence our construction of the term "medical and dental services" in Section 301(a)(5)(B), because the latter provision has a narrower purpose, namely, to define which victims may sue for non-economic loss.[3] However, if the legislature intended "medical services" to have a broad meaning in Section 103 and a narrow meaning in Section 301(a)(5)(B), one would expect that in drafting Section 301(a)(5)(B), it would have chosen a different term than "medical services." The fact that the legislature used the term in both sections implies that it meant the term to have the same meaning in both sections. In addition, to hold, as the majority does, that "chiropractic services" are not included in "medical services" within Section 301(a)(5)(B), may require a ruling in some later case that chiropractic services are not included in "Medical services" within the Section 103 definition. Such a result might be found inconsistent with considerations of public policy,[4] and yet it might be the only *592 way to read the statute in an internally consistent manner.[5]
The majority relies heavily on the defeat of Senator Zemprelli's proposed amendment to the No-Fault Act. 283 Pa.Super. at 591, 424 A.2d at 1357. However, it is always at best a tricky business to imply an intention from a failure to do something. If I don't take my umbrella, does that imply that I don't think it will rain? That I don't care? Or that I forgot to take it? Senator Zemprelli also proposed to refer specifically to "osteopathic" services. Having found an implied intent to exclude "chiropractic services" (because of a refusal to refer specifically to such services), the majority should also find an implied intent to exclude "osteopathic services" (because of a refusal to refer specifically to such services). Such a finding, however, would be quite clearly wrong, for the Statutory Construction Act, 1 Pa.C.S.A. § 1991 (Purdon's Supp. 1964-1978), defines an osteopath as a physician.[6] Thus osteopathic services should be included within the term "medical services," in Section 301(a)(5)(B). I suggest that the legislature rejected Senator Zemprelli's proposed amendment simply because it thought the amendment unnecessary, an opinion supported by the broad language of Section 103 of the No-Fault Motor Vehicle Act, which provides:
"Medical and vocational rehabilitation services" means services necessary to reduce disability and to restore the *593 physical, psychological, social, and vocational functioning of a victim. Such services may include, but are not limited to, medical care, diagnostic and evaluation procedures, physical and occupational therapy, other necessary therapies, speech pathology and audiology, optometric services, nursing care under the supervision of a registered nurse, medical social services, vocational rehabilitation and training services, occupational licenses and tools, and transportation where necessary to secure medical and vocational rehabilitation services. A basic loss obligor is not obligated to provide basic loss benefits for allowable expense for medical and vocational rehabilitation services unless the facility in which or through which such services are provided has been accredited by the Department of Health, the equivalent governmental agency responsible for health programs, or the accrediting designee of such department or agency of the state in which such services are provided, as being in accordance with applicable requirements and regulations.
The majority notes that we have affirmed two lower court decisions that excluded the expense of chiropractic services from the $750 threshold. Miller v. Johnson, 276 Pa.Super. 638, 424 A.2d 548 (1979); Babcock v. Tippett, 260 Pa.Super. 583, 394 A.2d 607 (1978). These cases are entitled to no precedential weight. The per curiam opinion in Miller contains no discussion, and cites only Babcock. Babcock was a per curiam decision made without any opinion being filed (as may be seen by referring to its citation above). In other words, both Miller and Babcock are naked unexplained statements that chiropractic services do not qualify as "medical services." Of course we should respect the principle of stare decisis. "Stare decisis," however, means, "To abide by, or adhere to, decided cases." Black's Law Dictionary 1577 (4th ed. rev. 1968) (emphasis added). In Struthers v. Dunkirk, Inc. Ry. Co., 87 Pa. 282, 286 (1878), our Supreme Court emphasized that the doctrine of stare decisis is to uphold the authority of cases "solemnly decided." Similarly, in State v. Mellenberger, 163 Or. 233, 95 P.2d 709 (1939), the *594 Supreme Court of Oregon emphasized that the doctrine recognizes as authority "`[a] deliberate or solemn decision.'" And see Commonwealth v. Riggins, 232 Pa.Super. 32, 48-49, 232 A.2d 521, 529-530 (1974) (dissenting opinion by SPAETH, J., collecting authority, on the necessity of a reasoned opinion as essential to a rational system of criminal justice). There is nothing solemn or deliberate or reasoned about either Miller or Babcock; they merely proclaim a sic volo, sic iubeo, and we should pay them no heed.
Accordingly, given the past history of the definition of "chiropractic" in this Commonwealth and the structure and broad remedial purpose of the No-Fault Act, I believe that chiropractic expenses should be includable in the $750 threshold. The order of the lower court should be reversed.
CERCONE, President Judge, and BROSKY, J., join in this dissenting opinion.
NOTES
[1] The preface to the section of the Statutory Construction Act that defines "Medicine and surgery" and "Healing art" states that the definitions apply to any statute "finally enacted on or after Sept. 1, 1937, unless the context clearly indicates otherwise." 1 Pa.C.S.A. § 1991 (Purdon's Supp. 1964-1978).
[2] 40 P.S. § 1009.202(a) (Purdon's Supp. 1979-1980).
[3] This suggestion is made in the Pennsylvania Bar Institute's book on the No-Fault Insurance Act. See PBI, Pennsylvania No-Fault Motor Vehicle Insurance Act Practice Under the Act 94 (1975).
[4] A remedial statute should be liberally construed. Moreover, it is difficult to think of a reason why the victim of an industrial accident should be allowed to recover the cost of chiropractic services in a workmen's compensation claim, while the victim of a motor vehicle accident should not be. The philosophy underlying workmen's compensation legislation is in essence the same as that underlying no-fault legislation: both types of legislation are designed to provide compensation on the basis of personal need and without regard to personal fault.
[5] It is a fundamental precept of statutory construction that the several provisions of a statute should be read so as to be consistent with one another. See Statutory Construction Act, 1 Pa.C.S.A. § 1922(1)(2) (Purdon's Supp. 1964-1978); Pennsylvania Public Utility Commission v. Commonwealth, 23 Pa.Cmwlth. 566, 353 A.2d 887 (1976).
[6] Section 1991 provides:
"Physician."
.....
(3) when used in any statute finally enacted on or after June 15, 1957, an individual licensed under the laws of this Commonwealth to engage in the practice of medicine and surgery in all of its branches within the scope of the act of June 3, 1911 (P.L. 639) relating to medicine and surgery and its amendments, or in the practice of osteopathy or osteopathic surgery within the scope of the act of March 19, 1909 (No. 29) and its amendments.
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492 Pa. 500 (1981)
424 A.2d 1302
COMMONWEALTH of Pennsylvania,
v.
Donald LUTZ, Appellant.
Supreme Court of Pennsylvania.
Submitted September 24, 1980.
Decided February 4, 1981.
*501 John H. Corbett, Jr., Asst. Public Defender, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellee.
Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.
*502 OPINION OF THE COURT
ROBERTS, Justice.
This is an appeal from an order of the Court of Common Pleas of Allegheny County which, after a counselled evidentiary hearing, dismissed a petition for relief under the Post Conviction Hearing Act (PCHA), Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., formerly 19 P.S. § 1180-1 et seq. Appellant Donald Lutz pled guilty to a single count of voluntary manslaughter while standing trial on charges including murder of the first and third degrees. He now contends that his guilty plea was unlawfully induced by the ineffective assistance of guilty plea counsel. The record supports the determination of the PCHA court that appellant's plea was not so induced. We affirm.
I
Appellant was charged with murder of the first degree, murder of the third degree, voluntary manslaughter, and involuntary manslaughter in connection with the death of Robert Van Tassell on September 10, 1977. The victim was killed as a result of stab wounds inflicted by appellant in the course of an altercation between the two men. Appellant has contended that he acted in self-defense. Although the Commonwealth has acknowledged that the victim initiated the altercation by accosting appellant, wielding a belt with a large buckle, and striking appellant several times, the Commonwealth has taken the position that appellant failed to retreat when obliged to do so and instead pursued the victim and stabbed him to death.
Trial testimony before a jury commenced on January 24, 1978. Among those testifying on the Commonwealth's behalf was a friend of appellant's, Phyllis Sadecky, the only eyewitness. Sadecky confirmed that the victim had initiated the altercation by striking appellant as many as four times in the face and other parts of the upper body. According to her testimony, appellant then pulled out a hunting knife he was carrying in his back pocket. After the *503 victim had swung the belt and buckle a "couple more" times and struck appellant, appellant started to swing the knife at the victim. Sadecky stated, "I saw [the victim] get slashed a couple times. But the one I saw was when he got stabbed in the chest." Sadecky added that the stab to the chest was a "penetrating" one, inflicted after the first time appellant had swung the knife, and after the victim had begun to move away. On direct examination Sadecky testified:
"Q. . . . You say when Lutz began to swing the knife or to stab with the knife, you say Van Tassell moved back and away?
A. He, like, ducked out of the way or whatever.
Q. Did he move backward?
A. Yes.
Q. And did Lutz come at him then again with a knife?
A. Yes."
According to Sadecky, appellant never attempted to "break and try to run," even though there were no obstacles to a retreat. Sadecky additionally testified that, after the stabbing, appellant had given her another knife, a pocket-type with a folding blade, and had told her to say "[t]hat was the one he used." Cross-examination did not disturb Sadecky's version presented on direct testimony.
After defense testimony, including the testimony of appellant, the Commonwealth recalled Phyllis Sadecky to the witness stand. On redirect examination Sadecky testified that defense counsel told her "to forget about" the other knife, the hunting knife actually employed.
Defense counsel immediately requested a side-bar conference. Counsel adamantly denied ever attempting to alter or influence testimony or to conceal evidence. He then demanded that Sadecky be further questioned outside the jury's presence. The court granted the request and recessed the jury.
Additional questioning of Sadecky revealed that the suggestion of impropriety on the part of defense counsel was unfounded, and that "[i]t was the little [pocket-knife]" *504 which appellant had sought to portray as the knife employed, that counsel had told Sadecky to "forget about." Once the parties and the court resolved Sadecky's unfounded suggestion that defense counsel acted improperly, defense counsel moved for a mistrial on the ground that the suggestion had prejudiced the jury.
While the court was considering the defense's request for a mistrial, the prosecutor and defense counsel, with appellant's knowledge, entered into plea bargaining. The result of the negotiations was a change in appellant's plea from not guilty on all charges to guilty on the charge of voluntary manslaughter. In return, the Commonwealth agreed to drop both murder counts, but expressly refused to make a recommendation regarding sentence.
After an on-the-record colloquy, the trial court accepted appellant's plea to voluntary manslaughter. On April 4, 1978, following consideration of a pre-sentence report, the court imposed a sentence of three to ten years' imprisonment. The court additionally advised appellant of his right to petition to withdraw the plea, as well as his right of appeal. Appellant, however, made no challenge to either the plea or the sentence imposed.
In September of 1978, appellant initiated the present proceeding by filing a pro se petition for relief under the PCHA, alleging that his privately-retained counsel "forced" him to plead guilty. Counsel was appointed from the Office of the Public Defender of Allegheny County. Following the Commonwealth's answer, the PCHA court set the matter for a hearing.
The hearing was held on March 23, 1979. At the hearing, the PCHA court heard the testimony of both guilty plea counsel and appellant. On March 28, the PCHA court denied relief, finding no factual support for appellant's allegations. This appeal followed.
II
Appellant now makes two arguments in support of relief. First appellant contends that he was unreasonably "induc[ed]" *505 by trial counsel to plead guilty "when there was substantial evidence of self-defense on the record which would have resulted in an acquittal." Second, appellant claims that counsel should have never "persuaded" him to plead guilty to any charge while the mistrial motion was pending and "the probability of a mistrial existed."
There can be no question that appellant's claim of ineffective assistance of guilty plea counsel was properly before the PCHA court. Consistent with the requirement of section 3(d) of the PCHA, appellant's claim of ineffective assistance has not been "finally litigated." See Commonwealth v. Hare, 486 Pa. 123, 404 A.2d 388 (1979). And although appellant did not directly challenge the plea, his present contentions have not been "waived" within the meaning of section 3(d). As this Court held in Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976),
"where a PCHA petition alleges as grounds for relief that trial counsel, with whom the petitioner consulted concerning the feasibility of appeal, has been ineffective and where trial counsel has not taken a direct appeal on behalf of the petitioner, the question of whether trial counsel was ineffective has not been waived for the purpose of review in a PCHA proceeding."
467 Pa. at 469-70, 359 A.2d at 372 (footnote omitted). See also Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).
However, this is not to say that a showing of ineffective assistance is sufficient to justify relief where, as here, a plea of guilty has been entered. As in Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978),
"[a]ppellant's claims of ineffectiveness must be evaluated in the context of his guilty plea. Upon entry of a plea of guilty, all grounds of appeal are waived other than challenges to the voluntariness of the plea and the jurisdiction of the sentencing court. Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974). Thus allegations of ineffective assistance of counsel in connection with entry of the guilty plea will serve as a basis for relief only if the ineffectiveness *506 caused appellant to enter an involuntary or unknowing plea. See Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978); Commonwealth v. Bunch, 466 Pa. 22, 351 A.2d 284 (1976)."
482 Pa. at 640-41, 394 A.2d at 504-505.
It must also be remembered that appellant has been afforded a hearing on his allegations and has been denied relief. In reviewing the PCHA court's determination, our task is not to engage in de novo evaluation of testimony.
"This Court does not sit as a trier of issues of fact, expecting to be persuaded that one or the other side is more credible. That is a task for a trial court and we would never invade that area of the judicial process."
Reed v. Universal C.I.T. Credit Corp., 434 Pa. 212, 217, 253 A.2d 101, 104 (1969). Rather, we look to whether the PCHA court's determination is supported by evidence of record and is otherwise free of legal error. Compare Commonwealth v. Yocham, 473 Pa. 445, 375 A.2d 325 (1977) (taking PCHA petitioner's allegations as true for purposes of determining whether hearing should have been granted).
This record is clear that the PCHA court could properly reject appellant's allegations that counsel wrongfully "induced" or "persuaded" him to enter his plea. Among the evidence considered by the PCHA court was the colloquy conducted at the time appellant tendered his plea of guilty. In that colloquy, the court carefully and fully explored whether appellant was aware of the charges and the evidence presented against him, of his right to have the jury consider the evidence, of the possibility of a mistrial, and, should a mistrial be declared, of the consequences of a retrial. Also considered by the PCHA court was the testimony of guilty plea counsel. Counsel testified that he had emphasized to appellant that the likelihood of a successful claim of self-defense was seriously eroded by Commonwealth evidence indicating that appellant did not retreat, but instead pursued the victim. See generally Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977). Counsel also testified that he had advised appellant of the risks *507 attending retrial, including costs, delay, and possible loss of defense witnesses and evidence.
Appellant did testify at the PCHA hearing that his responses to the court's questions at the guilty plea colloquy were not truthful, and had been made only in the hope that the court would suspend sentence. The PCHA court, which also conducted the colloquy and imposed the sentence, chose not to credit this testimony. In so deciding, the PCHA court acted well within its province as factfinder.
Because the record reflects support for the PCHA court's determination that appellant's plea to a single count of voluntary manslaughter was not induced by ineffective assistance of guilty plea counsel, the order of the PCHA court must be affirmed.
Order affirmed.
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994 So. 2d 385 (2008)
Bernard TAYLOR, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D08-1895.
District Court of Appeal of Florida, Third District.
October 15, 2008.
Bernard Taylor, in proper person.
Bill McCollum, Attorney General, for appellee.
Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
LAGOA, J.
Appellant, Bernard Taylor ("Taylor"), appeals from the trial court's order denying his postconviction motion filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. For the following reasons, we affirm the trial court's order.
In his Rule 3.850 motion, Taylor sought to vacate, set aside or correct his sentence on the ground that he was not advised during his plea colloquy that the plea "could subject him to enhanced sentences in future convictions." Taylor contends that as a result of his guilty plea in state court he was labeled a career offender, and subjected to an enhanced sentence in federal court. The trial court denied Taylor's motion and this appeal followed.
In support of the relief he seeks, Taylor relies on State v. Green, 944 So. 2d 208 (Fla.2006), and its progeny. Green, however, does not support Taylor's position. The law is clear that "neither the trial court nor counsel has a duty to advise a defendant that the defendant's plea in a pending case may have sentence enhancing consequences on a sentence imposed for a crime committed in the future." Major v. *386 State, 814 So. 2d 424, 431 (Fla.2002). Because Taylor's claim is legally invalid, we affirm the trial court's summary denial of the motion.
Affirmed.
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767 F. Supp. 226 (1991)
Jessie P. SMITH, Plaintiff,
v.
The DENVER PUBLIC SCHOOL BOARD, Defendant.
Civ. A. No. 90-S-0121.
United States District Court, D. Colorado.
July 9, 1991.
*227 Michael H. Jackson, Franklin A. Nachman, Semple & Jackson, P.C., Denver, Colo., for defendant.
Penfield W. Tate, II, Trimble, Tate & Nulan, Denver, Colo., for plaintiff.
ORDER
SPARR, District Judge.
THIS MATTER comes before the Court on Defendant's Motion for Summary Judgment on Plaintiff's First Claim for Relief. On February 25, 1991, the Court dismissed Plaintiff's Second and Third Claims for Relief. The Court, having reviewed the Defendant's motion regarding the single remaining claim, the Plaintiff's response, the Defendant's reply, the Defendant's additional authority, the Defendant's supplemental record in support of the motion, the Plaintiff's response to the Defendant's supplemental submission, the Defendant's reply to the Plaintiff's response to the Defendant's supplemental submission, the Defendant's additional authority filed March 27, 1991, the Defendant's additional authority filed June 3, 1991, the applicable law, and being fully advised in the premises, ORDERS as follows.
Factual and Procedural Background
Smith filed this civil action in federal court on January 22, 1990. In her First Claim for Relief under Title VII, 42 U.S.C. § 2000e et seq., Smith alleges that she was continually harassed by her principal as well as other members of the administration of the Denver School Board from September of 1986 until her termination in May of 1990. Smith alleges she was harassed and ultimately terminated because she "is a member of the Negro race, is a woman, and in retaliation for Plaintiff filing a charge of discrimination against the Defendant" with the Equal Employment Opportunity Commission.
On February 13, 1989, the Superintendent of the Denver Public Schools recommended to the Board of Education that Plaintiff be dismissed as a tenure teacher on the grounds of incompetence, and/or insubordination, and/or neglect of duty, and/or other good and just cause. The Board accepted the charges on February 16, 1989. Plaintiff, through her counsel, requested a hearing on the charges. Administrative Law Judge (ALJ) Marshall A. Snider held a tenure teacher dismissal hearing *228 for twelve days, from October 18, 1989 to November 2, 1989. Several witnesses testified and approximately three hundred exhibits were reviewed.
On March 28, 1990, ALJ Snider issued a 37-page Findings of Fact and Recommendation. He concluded that the School District had proved all four statutory charges of incompetence, neglect of duty, insubordination, and other and good just cause. He considered and rejected Plaintiff's allegations that the School District was motivated by discrimination in seeking her termination. ALJ Snider recommended that the Plaintiff's employment be terminated.
The Board issued its Resolution and Order of Dismissal on May 17, 1990, adopting the ALJ's Findings of Fact and Recommendation. At its legislative meeting on May 17, 1990, the Board resolved that Smith be dismissed as a tenure teacher.
The Standard 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. 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 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). 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, 2509-10, 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).
Standard of Proof for Title VII Claim
A plaintiff in a Title VII case has the burden of establishing a prima facie case of discrimination. In order to establish a prima facie case for employment discrimination in an academic setting in this particular case, Smith must show: (1) that she is a member of a class protected by Title VII; (2) that she was qualified for the position or rank held; (3) that she was denied tenure or dismissed; and (4) that others with similar qualifications were reappointed or granted tenure or retained. See Allen v. Denver Public School Board, 928 F.2d 978, 985 (10th Cir.1991); Carlile v. South Routt School Dist. RE-3J, 739 F.2d 1496, 1500 (10th Cir.1984).
For a disparate treatment theory, a plaintiff must prove a prima facie case of discrimination pursuant to the analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). In a disparate treatment case, it must be proven that the employer treated an employee or potential employee less favorably than others based upon a discriminatory intent or motive. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 986, 108 S. Ct. 2777, 2784, 101 L. Ed. 2d 827 (1988).
*229 For a disparate impact theory, a plaintiff must show more than mere statistical disparities. Watson, 487 U.S. at 994, 108 S.Ct. at 2788-89. Plaintiff must identify a specific employment practice that is allegedly responsible for an observed disparate impact. Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 657, 109 S. Ct. 2115, 2124, 104 L. Ed. 2d 733 (1989). A second constraint on the application of a disparate impact theory lies in the nature of the "business necessity" or "job relatedness" defense. When a plaintiff has made out a prima facie case of disparate impact and the defendant has met its burden of producing evidence that its employment practices are based on legitimate business reasons, the plaintiff must show that other selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest in efficient work. Watson, 487 U.S. at 998, 108 S.Ct. at 2790.
In order to establish a prima facie case for retaliatory discharge, Smith must prove: (1) that she engaged in protected opposition to discrimination or participation in a proceeding arising out of discrimination; (2) adverse action by the employer subsequent to the protected activity; and (3) a causal connection between such activity and the employer's action. Allen v. Denver Public School Board, 928 F.2d 978, 985 (10th Cir.1991); Anderson v. Phillips Petroleum Co., 861 F.2d 631, 634 (10th Cir.1988).
Plaintiff's Title VII Claim
A. Proceedings Before the ALJ
The ALJ's evidentiary findings are binding on the Board of Education if they are supported by substantial and competent evidence in the record. deKoevend v. Bd. of Educ. of West End School, 688 P.2d 219, 225-26 (Colo.1984). Smith does not argue that the Board looked outside the ALJ's findings in acting upon the ALJ's recommendation for termination. Smith has presented no evidence that the Board acted other than according to state law. There is no suggestion that the evidence relied upon by the ALJ in making his findings was in any way unreliable.
In the proceedings before the ALJ, Smith made a claim for discrimination under a disparate impact theory. Although the ALJ noted some statistical disparity in the placement of black teachers on 1311B appraisal (paragraphs 78-80 of ALJ's Findings of Fact and Recommendation), he found no evidence of any specific employment practice that was allegedly responsible for an observed disparate impact (pp 31-33 of ALJ's Findings of Fact and Recommendation). See Wards Cove, 490 U.S. at 657, 109 S.Ct. at 2124; Watson, 487 U.S. at 994, 108 S.Ct. at 2788. The ALJ found that even if Smith had established a prima facie case, the School District had brought forth evidence to meet its burden under the business necessity defense and Smith had failed to meet her burden to demonstrate that other methods of selection for 1311B appraisal would serve the District's legitimate interests without having an undesirable racial effect or that the District used this selection process as a mere pretext for discrimination. Wards Cove, 490 U.S. at 660, 109 S.Ct. at 2126; Watson, 487 U.S. at 998, 108 S.Ct. at 2790.
In footnote 18, the ALJ stated that it "does not appear that Smith raises a discrimination claim under a disparate treatment analysis. Nevertheless, such a claim would also have to fail. There was no evidence that Smith was treated differently than similarly situated employees (that is, there was no evidence that Smith was treated differently than other tenure teachers with similar demonstrated teaching deficiencies)."
The ALJ concluded that Smith's claim for discrimination failed.
B. Proceedings in Federal Court
1. Since the ALJ's Findings of Fact and Recommendation were issued, Smith has attempted to present the Court with further evidence of employment discrimination. Smith has presented what she characterizes as "controverted facts yet to be resolved as to whether the Plaintiff was subjected to unlawful discrimination," in the form of an Affidavit of Plaintiff claiming that two white male teachers were never *230 placed on Policy 1311B although they were not satisfactory teachers and did not reach Smith's level of performance (attachment to Plaintiff's Response to Defendant's Supplemental Submission). Smith has also presented an excerpt from the Defendants' answers to interrogatories (Exhibit A to Plaintiff's Response to Defendant's Motion for Summary Judgment) and a letter from an attorney for the School District listing the teachers whose cases were acted on by the Board following a hearing pursuant to the Tenure Act during Mr. Garner's tenure on the Board (Exhibit B to Plaintiff's Response to Defendant's Motion for Summary Judgment).
Smith's "controverted facts" are not sufficient to defeat the motion for summary judgment. The excerpt from the answers to interrogatories and the letter are of little or no probative value. The exhibits are incomplete in several ways. The ethnicity of the teachers involved is not identified, the various reasons for which the teachers were dismissed are not identified, and the teachers who have been retained are not identified.
Smith's knowledge of the two male teachers is based on the performance she observed of students who had been taught by these two male teachers and comments she heard from students about these two teachers. Smith's affidavit is not "made on personal knowledge," and does not "set forth such facts as would be admissible in evidence," pursuant to the requirements of Fed.R.Civ.P. 56(e). Her affidavit consists merely of conclusory allegations and does not satisfy her burden as the non-movant to come forward with specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 247-49, 106 S.Ct. at 2509-10; Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; Clifton, 924 F.2d at 183.
Defendants have supported their motion for summary judgment with extensive evidence pursuant to Fed.R.Civ.P. 56, showing that the two white male teachers were more qualified than Smith and that not every black teacher who has been recommended for termination by an ALJ has been dismissed by the Board (Exhibits to Defendants' Reply Brief in Support of Motion for Summary Judgment).
Smith cannot establish the second and fourth prongs of a prima facie case for employment discrimination in an academic settingthat she was qualified for continued employment and that others with similar qualifications were not dismissed. Neither can she establish the third prong of a prima facie case for retaliatory discharge that there was a causal connection between the filing of her charge with the EEOC and her termination. The Court concludes that Smith cannot present a prima facie case for disparate treatment, disparate impact, or retaliatory discharge. Because she fails to establish the prima facie case, her Title VII claim must fail on summary judgment.
2. In addition, there is reasoning from this district that the Board's actions in adopting the recommendation for dismissal by an impartial ALJ broke the chain of causation between any retaliatory motivation by the Defendants and Smith's subsequent termination. Romero v. Aguayo, No. 87-M-6, slip op. at 5 (D.Colo. May 29, 1990), aff'd., [934 F.2d 326 (table)] slip op. at 6 (10th Cir. May 31, 1991). This Court agrees with that reasoning that the Board could not have been motivated by discriminatory motives when it adopted the findings of an impartial ALJ that concluded the School District acted lawfully in discharging Smith. There can be no causal connection between Smith's EEOC charge and the Board's action. Therefore, there can be no retaliatory discrimination. Allen, 928 F.2d at 985.
Accordingly, for the reasons stated in this Order, the Defendant's Motion for Summary Judgment on Plaintiff's First Claim for Relief is GRANTED and this civil action is DISMISSED.
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286 S.W.2d 657 (1955)
Wm. David SIBLEY, Appellant,
v.
Gladys Mealer SIBLEY, Appellee.
No. 14974.
Court of Civil Appeals of Texas, Dallas.
June 3, 1955.
Rehearing Denied June 24, 1955.
*658 Burt Barr and Earl R. Parker, Dallas, for appellant.
Sanders, Lefkowitz & Green, and Jack D. Eades, Dallas, for appellee.
PER CURIAM.
This is a duly perfected appeal from only that portion of a divorce proceeding which partitioned the property of the parties, to wit, a 160-acre farm in Kaufman County. The trial court found the property was paid for, 11% out of community funds and 89% out of appellee's separate funds, and entered judgment for appellant for 5½% of the fee in the property and for appellee for 94½% of the fee in the property, and in addition awarded appellee a life estate in the whole farm. Appellant here briefs six points of error.
Point 1 asserts error in the finding and judgment in favor of appellee for 89% of the farm as her separate estate because same is not supported by the evidence. The record shows the farm was purchased during the marriage of appellant and appellee (the parties were married July 24, 1929 and divorced Dec. 9, 1954). The history of the transactions leading up to the purchase of the farm began with the transfer to appellee by appellee's aunt of a certain lot in the City of Dallas which appellee testified was a gift from her aunt to her. The deed recited the consideration as $10 to grantor in hand paid by appellee out of her separate means and estate, the receipt of which was acknowledged and confessed; and conveyed the property to Mrs. Sibley as her separate property and estate. Appellant testified that he paid the $10 recited in the deed out of community funds. Appellee testified the land was worth $2,000 and that the $10 recited in the deed was not paid. The lot in question was traded in as part of the purchase price of another piece of property located on Gaston Avenue. The Gaston Avenue deed recited the consideration as $10 and other valuable considerations. There was evidence that the lot, received by appellee from her aunt, was transferred to the grantor of the Gaston Avenue property as the down payment thereon. The Gaston Avenue deed named appellant as grantee, and the consideration as $165 cash and a note for $335. Appellee testified the two named sums were paid out of community funds. Appellant testified certain improvements were made thereon and were paid for out of community funds. That the Gaston Avenue property was afterwards sold for $4,000 less closing expenses, and the net to them of $3,566.68 was deposited with $2,500 of appellant's separate funds; that on Oct. 11, 1946 the 160-acre farm here involved was purchased for $2,880, $1,929.08 cash and a note for the balance. At the time of the trial the balance due on *659 the note was $200; payments thereon were made from community funds. Appellee testified the proceeds of $3,566.68 were deposited in a joint checking account in Arlington on July 10, 1946, which account at the time had a balance of $1,698.34 which was community funds. Appellant also testified the $1,698.34 was what was left of a $2,500 deposit of his separate funds placed in the joint account about three months before. The joint account on Oct. 16, 1946, with no deposits in the meantime, had been reduced through checks for living expenses to $4,009.46. On Oct. 11, 1946 the $1,929.08 check as the down payment on the farm reduced the account to $2,070.30. In our opinion the testimony of the parties to the suit, being interested witnesses, made questions of fact for the trial judge sitting without a jury, as to the status of all funds on hand at the time of the divorce; that is, whether such funds were community or separate.
The presumption is that where funds are commingled so as to prevent their proper identity as separate or community funds, they must be held to be community funds. However, there are exceptions to the rule or presumption. In divorce proceedings our courts have found no difficulty in following separate funds through bank accounts. Farrow v. Farrow, Tex. Civ.App., 238 S.W.2d 255; Coggin v. Coggin, Tex.Civ.App., 204 S.W.2d 47. Equity impresses a resulting trust on such funds in favor of the wife and where a trustee draws checks on a fund in which trust funds are mingled with those of the trustee, the trustee is presumed to have checked out his own money first, and is therefore an exception to the general rule. U. S. Fidelity & Guaranty Co. v. First National Bank, Tex.Civ.App., 81 S.W.2d 213; Continental Nat. Bank v. Weems, 69 Tex. 489, 6 S.W. 802, at page 805.
The community moneys in joint bank account of the parties are therefore presumed to have been drawn out first, before the separate moneys are withdrawn. Edsall v. Edsall, Tex.Civ.App., 240 S.W.2d 424; Farrow v. Farrow, supra; Coggin v. Coggin, supra; and since there were sufficient funds in the bank, at all times material here, to cover appellee's separate estate balance at the time of the divorce, such balance will be presumed to be her separate funds. Point 1 is overruled.
Point 2 asserts error in holding 89% of the property to be appellee's separate property because the undisputed facts show appellant from his separate estate placed $2,500 in the bank prior to the sale of the Gaston Avenue property; that $1,698.34 was in said account when the $3,566.68 from the Gaston Avenue property was placed therein, raising the balance to $5,245.43; that appellant should have $1,698.34/$3,566.68 into $1,929.08 of the down payment as his separate estate in the 160-acre farm, and the balance held to be community property because made from the community estate.
As stated under point 1, the evidence disclosed that the balance in the bank account to the extent of $3,566.68 was the proceeds of the sale of appellee's separate property, and properly awarded to her by the trial court. Point 2 is overruled.
For the reasons stated in passing on point 1, we cannot hold such funds lost their identity as her separate property. Point 2 is overruled.
Point 3 asserts error in holding 89% of the farm to be appellee's separate property because the funds were so commingled that they lost their identity as separate property. For the reasons stated in passing on point 1, we cannot hold such funds lost their separate property classification. Point 3 is overruled.
Point 4 asserts the trial court erred "in not charging the separate property, if any, of appellee with improvements made out of community funds." Under the record in this case the trial court was, under Art. 4638, V.A.C.S., required to partition the properties of the parties in such manner as the court should deem equitable, with only the prohibition that neither party shall be required to divest himself or herself of the title to real estate. Partitioning the *660 property of the parties upon divorce is based upon equitable principles, considering all the facts and circumstances, limited only by the prohibition as to a forced divestiture of title to real property by either party.
As said by our Supreme Court in Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, at page 313: "* * * This statute does not allow the divorce court to compel either party to the divorce action to divest himself or herself of the title to realty. As we construe it, Article 4638, supra, is mandatory in its provisions, and, under its terms, the District Court of Dallas County as between this husband and this wife, must decree a division of the property. Also, under this statute the division of the property does not have to be equal. The court can be controlled by what the facts may lead him to believe is just and right. * * *"
The divorce here was granted because of appellant's cruel treatment. He did not appeal from that portion of the judgment. The evidence does show, as contended by appellant, that certain improvements were made on the Gaston Avenue property and on the Kaufman County farm after they were acquired, amounting to between $1,000 and $1,100. The amount of this charge would be in favor of the community and since the court may award the community property equitably, we cannot hold under the record here that the trial court abused his discretion in the manner in which he equitably partitioned the property. Point 4 is overruled.
Point 5 complains of the reopening of the case by the trial court for additional testimony after appellant had filed his appeal bond with the District Clerk and after it had been approved by such Clerk.
The record does show that about three days after the appeal bond was filed by appellant the court reopened the cause and heard the evidence of a doctor who contradicted evidence given on the trial to the effect that appellant had an active case of tuberculosis. We find no reversible error in this action since it was harmless and could not have affected the court's prior announced judgment which was not thereafter disturbed or changed by the trial court. Point 5 is overruled.
Point 6 asserts error in the finding that appellant caused the community estate to suffer loss in excess of $4,000 because such finding is not supported by the evidence. The trial court's finding's in the judgment are as follows: "* * * and it appearing to the court and the court here and now finds that at the time title to said property was acquired, 89% of the cash purchase price therefor was paid out of the * * * separate funds and estate of plaintiff, Gladys Mealer Sibley, said funds having been traced from the proceeds received from the sale or trade of certain other real property acquired by plaintiff as her separate property by gift from Mary L. Orem, and 11% of the cash purchase price therefore was paid out of community funds belonging to the community estate of plaintiff and defendant; that plaintiff, Gladys Mealer Sibley, owns title to 89% of said property in fee simple as her own separate property and estate, and that the community estate of plaintiff and defendant owns title to 11% of said property; that defendant's conduct in failing and refusing to protect the equity of the community estate in the Grand Prairie, Texas, homestead on Oak Street was such that the value and amount of their community estate was appreciably diminished to the extent that such equity in excess of $4,000 was lost; and that the court being of the opinion that the community interest of 11% in said property should be divided equally between plaintiff and defendant, but the plaintiff should be further granted a life estate in and upon the entire property and plaintiff be required to assume the mortgage indebtedness existing on said property, such a division of said property being just, right and equitable, having due regard to the rights of each party; * * *." Appellant asserts that the court, by his own remarks during the trial, showed that he did not intend "to sign any such judgment."
*661 There is nothing in this record to show that subsequent to such remarks, the judge did not abandon such remarks after hearing all of the evidence. Absent such a showing, his judgment as contained in the transcript being based on all the evidence, including that heard after such remarks, this Court is controlled by the judgment in the transcript, rendered after hearing all the evidence, in passing on the assignments on appeal. Point 6 is overruled.
Finding no reversible error in the record, the judgment below is
Affirmed.
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292 Pa. Super. 142 (1981)
436 A.2d 1192
POSH CONSTRUCTION, INC.,
v.
SIMMONS & GREER, INC., and Maryland Casualty Company and Samuel F. Meisenhelder, Trustee in Bankruptcy of Simpson Steel Products Company, Inc., Additional Defendant.
Appeal of MARYLAND CASUALTY COMPANY.
Superior Court of Pennsylvania.
Argued March 10, 1981.
Filed October 30, 1981.
*144 David M. Kozloff, Reading, for appellant.
Lewis R. Long, Bethlehem, for appellees.
Before HESTER, DISALLE and MONTGOMERY, JJ.
MONTGOMERY, Judge:
The Appellant in the instant case[1] is one of the original defendants, Maryland Casualty Company (hereinafter referred to as "Maryland Casualty"). The case was tried in the lower court before a jury, which returned a verdict for the plaintiff against Maryland Casualty, and verdicts in favor of the other original defendant and the additional defendant. Maryland Casualty filed a motion for judgment n.o.v., or in the alternative, for a new trial. The lower court granted a new trial, but Maryland Casualty has filed the instant appeal, claiming that it was entitled to judgment n.o.v.
It is well-established that when a motion for judgment n.o.v. or a new trial is filed, and the lower court grants the new trial but denies the judgment n.o.v., the appellate court is limited to a determination of whether there has been an abuse of discretion by the lower court. Ellerbe v. Steinman, 162 Pa.Super. 440, 58 A.2d 202 (1948); Standard Oil Company of New Jersey v. Graham Oil Transport Corp., 157 Pa.Super. 41, 41 A.2d 414 (1945). However, if the record clearly establishes that the moving party was *145 entitled to judgment n.o.v., the grant of a new trial in such circumstances may be found to have been an abuse of discretion on the part of the lower court. See Matevish v. School District of Borough of Ramey, 167 Pa.Super. 313, 74 A.2d 797 (1950), where there were no factual issues for determination by a jury. Further, we must be mindful that judgment n.o.v. will be entered only in a clear case, when the facts are such that no two reasonable persons could fail to agree that the verdict was improper, and any doubts should be resolved in favor of the verdict. See Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980); Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977); Bottorf v. Waltz, 245 Pa.Super. 139, 369 A.2d 332 (1976). In the resolution of this appeal, we must consider the evidence available to the lower court in the light most favorable to the verdict winner, giving it the benefit of every reasonable inference of fact arising therefrom, and we must resolve any conflict in evidence in the favor of the verdict winner. See Broxie v. Household Finance Company, supra.
Viewing the evidence in that light, the record shows that the defendant Simmons & Greer, Inc. (hereinafter referred to as "Simmons") was a general contractor for various building projects. In late January, 1969 Simmons entered into a contract with the General State Authority for the erection of a gymnasium at Kutztown State College in Berks County. Pursuant to the Public Works Contractors Bond Law[2], Simmons obtained performance and payment bonds for the project, from Maryland Casualty. During the course of the project, Simmons entered into a contract with Simpson Steel Products Company, Inc.[3] (hereinafter referred to as "Simpson"), for certain work on the project. In turn, Simpson hired the plaintiff, Posh Construction, Inc. (hereinafter *146 referred to as "Posh"), to furnish labor, materials, and equipment to Simpson for the project. Thereafter, the Plaintiff commenced work on the gymnasium construction in September, 1969. Posh submitted an initial bill to Simpson for partial work completed on the project and Simpson paid the bill by check. However, the Plaintiff's next billing to Simpson was not paid and Posh approached the general contractor, Simmons, about the problem. Posh did this by orally notifying the Simmons' field superintendent at the construction site that it would not continue on the job unless it was paid, as Simpson had not made a payment for work completed to that date, in accordance with the second billing by Posh. Thereafter, a representative of the plaintiff was summoned to Simmons' home office in Philadelphia. At that time, Posh's representative received a check from Simmons in the amount of just over $11,000.00, which check was made payable to both Simpson and Posh as co-payees. The Posh representative obtained appropriate signatures on the check from Simpson and deposited the proceeds of the check in its own account. As the work progressed further, Simmons issued another check for almost $21,000.00, in identical circumstances, for the benefit of the plaintiff. In the instant action, Posh claimed a balance due of just over $14,000.00, representing both the final payment on its work for Simpson on the project, and also including several hundred dollars for work performed directly at the request of Simpson, which work was not covered by plaintiff's contract with Simpson.
The plaintiff filed the instant action claiming it supplied its labor, material and equipment in reliance upon Simmons' promise to pay any debts of Simpson to the plaintiff in connection with the project. The plaintiff claimed that Maryland Casualty was liable to it under Simmons' payment bond, and in that regard, the plaintiff's claims were based upon its rights under the Public Works Contractors Bond Law of 1967. In describing the types of bonds required, that Act in § 3(a)(2) [8 P.S. § 193(a)(2)] states that a payment bond ". . . shall be solely for the protection of claimants *147 supplying labor or materials to the prime contractor to whom the contract was awarded, or to any of his subcontractors, in the prosecution of the work provided for in such contract, and shall be conditioned for the prompt payment of all such material furnished or labor supplied or performed in the prosecution of the work." Further, § 4(b) [8 P.S. § 194(b)] is particularly relevant to the issues presented in this case, and provides:
Any claimant who has a direct contractual relationship with any subcontractor of the prime contractor who gave such payment bond but has no contractual relationship, express or implied, with such prime contractor may bring an action on the payment bond only if he has given written notice to such contractor within ninety days from the date on which the claimant performed the last of the labor or furnished the last of the materials for which he claims payment, stating with substantial accuracy the amount claimed and the name of the person for whom the work was performed or to whom the material was furnished.
Notice shall be served by registered or certified mail, postage prepaid, in an envelope addressed to such contractor at any place where his office is regularly maintained for the transaction of business or served in any manner in which legal process may be served in the manner now or hereafter provided by law for the service of a summons, except that such service need not be made by a public officer.
It was conceded at trial by the plaintiff that it had not furnished any written notice to Simmons, the defendant general contractor, concerning its claim. At the request of the defendants, the trial judge instructed the jury: (1) that no evidence had been presented to prove that the plaintiff had notified Simmons of its claim in accordance with the provisions of the bond law; (2) that such notice was in fact not given; and (3) that if the jury was to find that such notice was required of plaintiff, then there was no right or entitlement to recovery by plaintiff under the bond. Thus, *148 under the statutory provision cited earlier, it was apparent that the plaintiff could recover from Simmons only if a contractual relationship existed between it and Simmons. Therefore, the trial court charged the jury that it was required to decide whether Posh was a proper claimant under the bond law, and, if so, whether plaintiff had a direct contractual relationship, either expressed or implied, with Simmons.
Maryland Casualty has claimed that it was entitled to judgment n.o.v. in the lower court because there was no evidence upon which the jury could have returned a verdict in favor of the plaintiff and against the Appellant. After a thorough review we are convinced that the lower court acted prudently, and certainly did not abuse its discretion, in denying the motion for judgment n.o.v. It simply could not be said, as a matter of law, that the plaintiff was not a proper claimant under the Bond Law. That Act clearly provides that a payment bond may be applied to the protection of claimants supplying labor and materials to the subcontractor of the prime contractor. The evidence, viewed in a light most favorable to the plaintiff, certainly supported a finding that the statutorily required contractual relationship existed between the plaintiff and Simmons. Such is evident by virtue of the transactions whereby Simmons made payments directly to the plaintiff, at least as a co-payee with Simpson, for the work which the plaintiff performed on the construction project. Moreover, the record is clear that as a result of understandings reached between the plaintiff and Simmons, the former did not discontinue its work on the job, even though Simpson was not making payments on the contract.
A judgment n.o.v. would only have been granted in circumstances where binding instructions would have been proper at the close of trial. See Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970). Binding instructions certainly would not have been proper at the close of the trial in the instant case, either on the issue of whether the plaintiff was proper claimant under the bond law, and/or whether a *149 contractual relationship, express or implied, may have existed between the plaintiff and Simmons. Thus, we find that the decision to deny the request for judgment n.o.v. did not constitute error on the part of the lower court.
The lower court found that a new trial was appropriate because the verdict in favor of Simmons, but against its insurer, Maryland Casualty, was inconsistent. The Appellee, Posh, argues on this appeal that the lower court had the power to mold the verdict to eliminate any possible inconsistency, and seeks to have this court amend or mold the jury verdict. Any consideration of such contentions would not be appropriate, as Posh filed no appeal from the lower court's order granting a new trial. Thus, the questions of whether the new trial was properly granted, or whether the lower court or this court could or should mold the verdict, are simply not before us on this appeal.
The order of the lower court denying the motion for judgment n.o.v. is hereby affirmed.
NOTES
[1] The Complaint was filed in October, 1970 and the additional defendant was joined in the case in November, 1970. In November, 1975 the lower court prothonotary terminated the case for lack of activity. Upon the plaintiff's request the lower court ordered the reinstatement of the action in May, 1976. The defendants appealed to our Court, which affirmed the reinstatement order. See Posh Construction v. Simmons & Greer, Inc., 252 Pa.Super. 640, 382 A.2d 760 (1978).
[2] Act of December 20, 1967, P.L. 869, § 1, 8 P.S. § 191, et seq.; see § 3, 8 P.S. § 193 in particular.
[3] As indicated in the caption of this case, Simpson was in bankruptcy proceedings at the time of its inclusion as an additional defendant in this case. Simpson was not present at trial, either through its trustee in bankruptcy or by counsel.
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286 S.W.2d 437 (1956)
Cecil Couch HICKERSON, Appellant,
v.
The STATE of Texas, Appellee.
No. 27914.
Court of Criminal Appeals of Texas.
February 1, 1956.
Calloway Huffaker, Harold Green, Tahoka, for appellant.
George E. Gilkerson, County Atty., Gene S. Cobb, Asst. County Atty., Lubbock, Leon B. Douglas, State's Atty., Austin, for the State.
DAVIDSON, Judge.
This conviction is for the drunken driving of a motor vehicle upon a public highway; the punishment, thirty days in jail and a fine of $250.
Upon a former trial, that conviction was reversed and remanded by this court. Hickerson v. State, Tex.Cr.App., 275 S.W.2d 801.
In that case there was a sharp dispute under the facts as to appellant's intoxication.
According to the testimony of two highway patrolmen, appellant, while driving an automobile in an erratic manner, passed them upon a public highway. Each of the officers expressed the opinion that appellant was intoxicated when they stopped him, found beer in his car, observed him walk, and noticed the odor of beer on his breath.
It was shown that a specimen of appellant's blood, which was obtained with his consent, contained an alcoholic concentration of 1.9 milligrams per cubic centimeter. Proof was offered that any person having such concentration of alcohol in his blood would be intoxicated.
Appellant admitted that he was driving a car upon a public highway at the time in question and that he had drunk some beer during the day but denied being intoxicated. He offered several witnesses who had seen and observed him shortly before and after his arrest, and each expressed the opinion that he was not intoxicated.
Reliance for a reversal is based upon alleged harmful and prejudicial argument.
By a proper bill of exception it is shown that in closing argument, state's counsel made the following statement:
"Now, gentlemen, this case happened a long time ago and I want you to know each and every one of you, that I am just as interested as your County Attorney in protecting the rights of the innocent that are tried in this Court as any defense lawyer, as any judge or anybody else, and I most certainly do not want any conscious (sic) to go through the years that I have prosecuted an innocent man, and certainly after three years had passed or two years, I am still trying this case today. *438 That is what I think of that." (Emphasis supplied.)
The objection to such argument was that it expressed the personal opinion and belief of the county attorney and invaded the province of the jury. The objection was sustained and the jury instructed not to consider said argument, but a request for a mistrial was denied.
Notwithstanding the trial court's action in sustaining the objection to the argument and withholding it from the jury's consideration, state's counsel immediately continued his argument and stated to the jury:
"And so today, even though the time is long since this happened, we are still in here and we are still bringing witnesses from Austin to try to stick this man here in the courtroom today. What do you think about that? What do you think about that?"
The bill of exception recites that, further in the argument, state's counsel stated to the jury:
"Why in the world would we be trying this case today, sometime after it happened? Why would I stand behind these gentlemen up here, these officers on the witness stand if there was one slight tinkle in may mind that they were lying to you? You know I Wouldn't."
Appellant's objection to that argument, for practically the same reasons as those sustained to the previous argument, was overruled.
Following the court's ruling, counsel further continued his argument to the jury, as follows:
"All of those officers, that is their duty, myself, George, the Court, it is our duty to come in here and present these cases to you, to bring in all the evidence that we can. Do you think that for one minute that I or anybody that I am associated with is going to frame a case against a man? We have got too many of them on the docket and you know it. We are not going to do any such of a thing and you know it, gentlemen. * * *
"And Calloway would have you believe that this boy was subject to some sort of collusion and that he would deliberately lie or fabricate a result of a chemical analysis for the purpose of sticking this man today. He is just not that interested in this gentlemen and you know it. And I certainly would not be a single party to it if I even suspected it, and you know it."
The same objection as to the previous argument was overruled.
The bill of exception setting forth the above arguments and objections and ruling relative thereto was approved by the trial court without qualification.
Looking to the several statements as an overall picture, we are compelled to come to the conclusion that state's counsel, as effectually as if he, himself, had testified to such facts from the witness stand, was getting before the jury his personal opinion that the appellant was guilty, that the witnesses for the state were telling the truth, and that the witnesses for the appellant were not telling the truth. Moreover, the arguments are also susceptible of the construction that state's counsel was attesting the reputation and veracity of the state's witnesses as well as their being law-abiding.
There is nothing in this record by which it can be said that the arguments were justified or legitimate, under the circumstances.
In Roach v. State, 89 Tex. Crim. 553, 232 S.W. 504, 505, where there was before us the propriety of argument of state's counsel, we held as follows:
"Many complaints are made to this court of arguments of prosecuting officers, which complaints are trivial in their nature, and are frequently as to deductions and conclusions drawn by the attorneys. It is seldom that this court disturbs a conviction under those circumstances. But where the prosecuting *439 officers depart from the domain of legitimate argument, and undertake to supply testimony in their discourse to the jury, it is going further than this court can sanction. It is regrettable that the prosecuting officers so frequently, in their zeal to secure a present conviction, overlook the fact that it is a barren victory, if they inject into the case matters which are extraneous to the record, and compel this court to reverse the case."
We are constrained to conclude that the instant case falls within the observation expressed and that the arguments complained of were not justified or legitimate but improper and prejudicial. As supporting this conclusion, see: Parroccini v. State, 90 Tex. Crim. 320, 234 S.W. 671; Alford v. State, 158 Tex. Crim. 632, 258 S.W.2d 817; Spinks v. State, 157 Tex. Crim. 612, 252 S.W.2d 159; Walker v. State, 105 Tex. Crim. 252, 288 S.W. 220.
In view of another trial, the opinion is expressed that a sufficient predicate was laid to authorize the testimony of the chemist as to the blood analysis.
For the reasons stated, the judgment is reversed and the cause is remanded.
WOODLEY, Judge (dissenting).
The reversal of this conviction is predicated upon Bill of Exception No. 2, which complains of several separate remarks of the county attorney in his closing argument. To some of these objection was sustained and the argument withdrawn from the jury; to others, no objection or exception is shown, and to the remainder objection was overruled and exception noted.
Since the 1953 amendment of Article 667, Vernon's Ann.C.C.P., the fact that the bill of exception is multifarious will not prevent its consideration by this Court.
The writer does not understand, however, that the several claims of error reflected in a multifarious bill may be considered as "an overall picture", in determining whether or not reversible error is reflected.
The rule that where a portion of the remarks in argument complained of are proper, the bill of exception is insufficient has been adhered to to the present time by this Court. See Robinson v. State, 156 Tex.Cr. R. 6, 238 S.W.2d 193; Wilson v. State, 1956, Tex.Crim.App., ___ S.W.2d ___.
The majority opinion does not attempt to say that any of the several remarks complained of in the bill constitutes reversible error, but reaches the conclusion that the several remarks, considered as "an overall picture", show reversible error.
To what extent the remarks to which no objection is shown to have been addressed contribute to the "overall picture" is not disclosed in the majority opinion. Nor does the opinion reveal to what extent the remarks which were withdrawn from the jury's consideration contributed to the conclusion of the majority that the county attorney was attesting the reputation and veracity of the State's witnesses.
Surely my brethren do not intend to hold that a prosecuting attorney is precluded from getting before the jury his belief that the witnesses for the State have testified truthfully and the defense testimony to the contrary is not true.
Neither of the several remarks complained of constitutes reversible error, nor do all.
The writer adheres to the truism "nothing multiplied equals nothing."
I respectfully enter my dissent.
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286 S.W.2d 112 (1955)
TEXAS & NEW ORLEANS RAILROAD CO. et al., Appellants,
v.
The RAILROAD COMMISSION of Texas et al., Appellees.
No. A-4463.
Supreme Court of Texas.
November 16, 1955.
Rehearing Denied February 15, 1956.
*115 Baker, Botts, Andrews & Shepherd, Edwin N. Bell, Hutcheson, Taliaferro & Hutcheson, Thomas O. Arnold, Houston, Wigley, McLeod, Mills & Shirley, Ballinger Mills, Jr., and J. L. McMicken, Galveston, G. H. Penland, Mart W. Reeves, William R. McDowell, Robert Thompson, J. T. Suggs, Stroud & Dyer, and Frank C. Brooks, Dallas, Seth W. Barwise, T. D. Magoffin, Thompson, Walker, Smith & Shannon, Richard T. Churchill and Allen, Gambill & Gambill, Fort Worth, McKay & Avery, Hollers, O'Quinn & Crenshaw, Everett Hutchinson and C. K. Richards, Austin, Lowe P. Siddons, Colorado Springs, Colo., Louis A. Schwartz, New Orleans, La., for appellants.
John Ben Shepperd, Atty. Gen., and Philip Robinson and Mert Starnes, Asst. Attys. Gen., and Smith & Steakley (Zollie C. Steakley), Austin, Sam S. Minter and Joe G. Fender, Houston, for appellees.
*116 WILSON, Justice.
On rehearing our original opinion is withdrawn and the following substituted:
This suit was filed under art. 6453, V.A. C.S., by a number of railroads as plaintiffs against the Texas Railroad Commission as defendant attacking a reduction by that body of certain intrastate freight rates on sugar. Several out-of-state sugar companies also attack it as being discriminatory as between shippers. Plaintiffs alleged that the Imperial Sugar Company had theretofore filed before the Railroad Commission a complaint against the railroads seeking a reduction of rates on intrastate shipments of sugar on the grounds that the existing rates were too high (not justified by transportation costs) and were discriminatory in favor of out-of-state shippers. After a hearing on this complaint, the Commission entered the order attacked at bar amending existing tariffs and reducing the intrastate freight rates on sugar. This suit resulted.
The trial court, sitting without jury, upheld the order. The carriers and out-of-state sugar refineries are our appellants. Sugar refineries located in Louisiana, California, and Colorado have intervened alleging that Texas refineries already have an undue competitive advantage and that a further reduction of intrastate rates will increase this and be both discriminatory and a burden on interstate commerce. There is but one cane sugar refinery (Imperial) and one corn products refinery located within Texas both of which are appellees.
The discriminatory complaint is based upon the fact that competitively sugar seems to sell at any one place at the same price with the cost of transportation included. This is called destination pricing. This price is arrived at by taking the base price at the nearest adequate base of supply and adding to it a freight prepay. We are not told how the base price is determined. The prepay is a computation of freight costs from the refinery to the place of delivery, plus an allowance for tax and certain other factors.
As an illustration, the price of sugar in Dallas seems to be determined by the base price at Sugar Land, which is the site of the nearest sugar refinery, plus a fixed prepay from Sugar Land to Dallas. If beet sugar refineries located in Colorado would sell in Dallas, they must do so at this price and themselves pay the additional freight costs from Colorado to Dallas. Because of shipping the greater distance at an interstate rate, the freight charges from Colorado to Dallas will be more than the prepay from Sugar Land to Dallas. This difference is known in the sugar trade as the freight rate absorption. In every-day language, this means that the sugar beet companies must themselves absorb as a part of the costs of coing business the extra charge for the freight caused by shipping the greater distance from Colorado to Texas at the interstate freight rate. On the other hand, Imperial's plant located at Sugar Land does not have to absorb any transportation cost in shipping to Texas points except to El Paso and Beaumont. In shipping to El Paso, Imperial must absorb the amount by which its freight costs exceed the freight costs from Crockett, California, to El Paso. In shipping to Beaumont, Imperial must absorb the amount by which its freight costs exceed that from New Orleans, Louisiana, to Beaumont.
It is contended that the policy of the Interstate Commerce Commission is to stabilize competitive relationships, and for sugar the Interstate Commerce Commission has adopted the relationship existing on June 30, 1946.
The carriers contend that the Railroad Commission must derive all of its powers from the applicable Texas statutes, arts. 6445, 6448, 6457, 6460, 6473, and 6474, V.A. C.S., and that a consideration of an alleged discrimination in favor of interstate rates and interstate shippers and against intrastate rates and shippers is not authorized by the Texas statutes.
It is urged that if Imperial prevails here, the out-of-state refineries could insist upon further reduction of the interstate rates by the transcontinental lines to restore the *117 June 30, 1946, competitive relationship, which the Interstate Commerce Commission wishes to maintain. Both California and the Hawaiian Sugar Refining Corporation, Ltd., and Godchaux Sugars, Inc., have already made such an application. If this be granted, Imperial might then go back to the Texas Railroad Commission for another reduction in intrastate rates, and the railroads fear there will be no end to the process. Of course, one limitation upon any reduction of intrastate rates is the question of whether or not the rate be compensatory to the railroad.
There is no question but that the proceeding culminating in the order under attack at bar was initiated by Imperial (Sugar Land) to obtain relief from an alleged discrimination growing out of a reduction of certain intrastate rates approved by the Interstate Commerce Commission. The order attacked at bar recites:
"The further reductions which have been made, effective generally in January, 1953, from the interstate sugar refining, producing and distributing points to Texas, have the effect of nullifying, in whole or in part, the revisions which were made in our former order, the rates under which were related to the reduced rates from the interstate origins to Texas as in effect at that time; and to that portion of Texas to which no reductions were made in the rates from Sugar Land, but to which the rates from California have been further reduced, the situation as to rates from California and Sugar Land to that part of Texas, has been worsened."
* * * * * *
"* * * and upon further showing by complainant, that while previously it was 10¢ more attractive to California to sell sugar in Chicago than in Dallas, it is now 3¢ more attractive for California to sell at Dallas than in the Chicago market."
* * * * * *
"The widespread chaos, however, apparently was not feared when the rates were being reduced from California to Texas, and if so serious apparently could now be avoided by restoring the December 31, 1952 rates from California to Texas, and the January 14, 1953 rates from Louisiana, Colorado and the beet sugar area to Texas, it having been these reductions that brought about the complaint herein."
* * * * * *
"As result of the two series of reductions which have been made in the interstate sugar rates to Texas, and especially the reductions made in January, 1953, the Texas intrastate sugar traffic is called upon to bear a relatively greater proportion of the increases, or the Texas intrastate rates are subjected to relatively greater increases, than is the interstate traffic or rates to Texas and certain intermediate territory."
* * * * * *
"We have heretofore found from the record herein that the rates from the several interstate producing areas to Texas as made effective in January, 1953, average 138.9% of the rates as were in effect on June 30, 1946, and using that as a base, the 60,000 pound minimum weight rates to be prescribed herein will be approximately 138.9% of the Texas intrastate rates as of June 30, 1946. While there are some variations, both over and under, the great preponderance of the 80,000 pound minimum weight rates that have been established from the interstate origins to Texas, are 8¢ less than the 60,000 pound minimum weight rates to the same points. The 80,000 pound minimum weight rates to be prescribed, and at this time limited generally to the same territory to which the 80,000 pound minimum weight rates were prescribed in our former order, will, therefore, be constructed on basis of *118 8¢ under the prescribed 60,000 pound minimum weight rates."
* * * * * *
"We further find from the evidence before us that the action of defendants, individually or in connection with their interstate connecting lines, involuntarily reducing the rates from the interstate origins to Texas, makes necessary the revisions of the Texas intrastate rates to be made herein * * *."
* * * * * *
"The Column 2 rates prescribed in our former order to the socalled 28502 territory will also be canceled, as the reductions which have been made by defendants and their connecting lines in 1950, and again in January, 1953, in the interstate rates to Texas and some Oklahoma points have served to wipe out all semblance of the Docket 28502 adjudgment."
The Commission reasoned that the carriers voluntarily reduced certain interstate rates which it believed to be comparable to the rate in question; that the new intrastate rates would return greater earnings than comparable intrastate rates in other areas; that the carriers were not getting all the bulk-sugar-hauling business available since some was being moved by private truck, an indication that the intrastate rates were too high; and that a reduction in rates may mean additional business for the carriers.
The State's regulatory power to fix intrastate rates is not automatically limited by a related interstate rate, for the court said in Simpson v. Shepard, 1913, 230 U.S. 352, 33 S. Ct. 729, 747, 57 L. Ed. 1511:
"To say that this power exists, but that it may be exercised only in prescribing rates that are on an equal or higher basis than those that are fixed by the carrier for interstate transportation, is to maintain the power in name while denying it in fact. It is to assert that the exercise of the legislative judgment in determining what should be the carrier's charge for the intrastate service is itself subject to the carrier's will. But this statewide authority controls the carrier, and is not controlled by it; and the idea that the power of the state of fix reasonable rates for its internal traffic is limited by the mere action of the carrier in laying an interstate rate to places across the state's border is foreign to our jurisprudence."
Art. 6445 confers upon the Commission power and authority and it is made its duty to adopt all necessary rates, charges and regulations to govern and regulate the railroads, to correct abuses and prevent unjust discrimination in the rates, and in general to prevent any and all other abuses in the conduct of the railroads' business.
Art. 6448 provides that
"The Commission shall:
"1. Adopt all necessary rates, charges and regulations, to govern and regulate freight and passenger traffic, to correct abuses and prevent unjust discrimination and extortion in rates of freight and passenger traffic on the different railroads in this State.
"2. Fairly and justly classify and subdivide all freight and property of whatsoever character that may be transported over the railroads of this State into such general and special classes or subdivisions as may be found necessary and expedient.
"3. Fix to each class or subdivision of freight a reasonable rate for each railroad subject to this title for the transportation of each of said classes and subdivisions. * * *
"6. From time to time, alter, change, amend or abolish any classification or rate established by it when deemed necessary. Such amended, altered or new classification or rates shall be put into effect in the same manner as the originals."
*119 Art. 6457 provides:
"The Commission may at any time abolish, alter, or in any manner amend any such regulations; and in that event certified copies of the schedules, rules or regulations, showing the changes therein, shall be delivered to each road affected as herein specified. In all cases where the rates shall not have been fixed by the Commission, no changes shall be made, except after ten days' notice to and with the consent of the Commission."
Art. 6474 prohibits railroads from doing a number of acts which are declared to be unjust discriminations and imposes penalties upon the railroad found guilty. The Act does not apply to interstate commerce, and from this the railroads argue that the Commission cannot consider interstate rates in fixing intrastate rates. A charge of discrimination may be leveled in an effort to have a rate declared void or to collect a penalty, but in the case at bar it is given as one reason for changing a rate by the body having the rate-making function. The statute imposing penalties upon railroads was not intended to limit the ratemaking function. The jurisdiction to penalize and the scope of facts to be considered in rate-making are two different things. We hold that when acting within its ratemaking function the Railroad Commission can consider the structure of interstate rates and their effect upon intrastate rates. Railroad Commission v. Weld & Neville, 96 Tex. 394, 73 S.W. 529. The general power and duty to fix rates comes from art. 6445 et seq. Art. 6474 is not a limitation upon the scope of the inquiry to determine a correct rate.
The carriers cite the case of Missouri Kansas & T. R. Co. v. Railroad Commission, Tex.Civ.App., 1928, 3 S.W.2d 489, affirmed in Producers' Refining Co. v. Missouri Kansas & T. R. Co., Tex.Com.App., 13 S.W.2d 679 and 680, for the proposition that "the Commission then did what it has done here, and so declared its purpose, to fix the Texas rate in relation to the interstate rate." That case was an attempt by a shipper to collect reparations through a Railroad Commission order from a carrier for oil already shipped under a prescribed intrastate rate on the grounds of unjust discrimination by reason of a related interstate rate. The express holding was that a prescribed intrastate rate was binding until set aside or changed and that a carrier was not liable for reparations as long as it charged the prescribed rate. The action of the Commission in attempting to award money reparations to a shipper under those circumstances is completely different from its legislative action here in changing an existing rate.
In the case of Texas Steel Co. v. Ft. Worth & D. C. Ry. Co., 120 Tex. 597, 40 S.W.2d 78, it was held that a suit cannot be maintained in a state court against a railroad for penalties for discriminations growing out of interstate rates. That case does not hold that the Railroad Commission in fixing an intrastate rate may not consider the interstate rate structure both for comparative purposes and additionally for the purpose of making the intrastate rate consistent with the interstate rate. The case at bar is not a penalty suit. The two cases are not comparable although the Texas business concerns in both cases may have been suffering the same type of injury. The relief sought before the Railroad Commission in the matter at bar was a rate change while that case was a collateral attack in court on a rate order in which the relief sought was a penalty. For us to hold that the Texas Railroad Commission could not consider the interstate rate structure in fixing intrastate rates would be to blindfold that body and bring on many conflicts with the Interstate Commerce Commission.
The case of Railroad Commission of Texas v. Texas Steel Co., Tex.Civ.App., 1931, 43 S.W.2d 137, 143, er. ref.; certiorari denied 286 U.S. 562, 52 S. Ct. 644, 76 L. Ed. 1295, was an attack in the state courts upon an order of the Texas Railroad Commission refusing to grant relief against intrastate rates and against a 2-cent fabricating-intransit privilege prescribed in a related interstate *120 rate by the Interstate Commerce Commission. The trial court had "found that the Interstate Commerce Commission had no authority to prescribe the 2-cent transit privilege plus differential as intrastate rates * * *". The Court of Civil Appeals first held:
"The record as presented shows that the Interstate Commerce Commission made no basic or essential findings to support its order, or for its jurisdiction to establish or authorize the 2-cent transit privilege plus differentials as intrastate rates on iron and steel articles moving wholly within this state as intrastate business, in order to end an unjust discrimination as against intrastate commerce either as between persons and localities, or because of an undue burden upon the income of the carriers. However, only excerpts of the order of the Interstate Commerce Commission and its proceedings in the Consolidated Cases hearing are in evidence, and we reverse and remand the cause for a fuller development of the case in this regard. If it be found after a full hearing of the issue that the Interstate Commerce Commission failed to make basic or essential findings to support its order and jurisdiction for entering the state field under the rules stated by Chief Justice Hughes in the case of Florida v. United States, supra, its order establishing the 2-cent transit privilege plus differentials as intrastate rates is wholly void, and the district court may enjoin the carriers from collecting same, and from using the said transit privilege in connection with interstate rates on iron and steel articles. * * *"
On rehearing this was reversed. The specific final holding was that "suits raising issues of discrimination growing out of such rates can be maintained only in federal courts, after matter has been presented to Interstate Commerce Commission."
This is not a holding that the Railroad Commission cannot consider a related interstate rate while acting legislatively in prescribing rates. A study of the entire opinion inclines us to the belief that the "such rates" referred to as being reviewable only in suits in the federal courts were the interstate rates under attack. The first judgment remanded for further proof of the basis of the Interstate Commerce Commission's order prescribing them. On rehearing this was changed to a rendition on the grounds that this was exclusively a federal question. In that case the Texas Railroad Commission had refused to alter the intrastate rate. This presents an entirely different question from the one at bar.
In short, the position of the carriers and out-of-state shippers seems to be that where an intrastate rate needs adjusting up or down by reason of a related interstate rate, this change can only be made by the Interstate Commerce Commission and cannot be made by the State Commission which promulgated the intrastate rate in the first place. We find no such jurisdictional restriction upon state government. Surely the Commission which promulgates an intrastate rate has the power to make adjustments in those rates. If its action should turn out to be a burden upon interstate commerce, this can be corrected by the Interstate Commerce Commission.
A brief filed by one appellant states the maintenance-of-competitive-relationship contention as follows:
"Through the years the primary concern of the sugar companies, Appellants and Appellees, has been to maintain a differential or absorption in all of their out of state markets on a basis which each could afford to do business in such market. The Interstate Commerce Commission in its orders granting general rate increases in the post World War II era (the ex parte proceedings) has recognized this relationship and in its orders has urged the carriers to maintain the competitive relationships. * * *"
Is such a policy determination binding on the Texas Railroad Commission? Is it the duty of the Railroad Commission to stabilize *121 competitive relationships as of June 30, 1946?
At that time, for example, Sugar Land had a competitive advantage in freight costs in sugar sold at Dallas of thirteen cents per 100 pounds over New Orleans, a forty cents per 100 pounds advantage over Colorado. In the order under attack, the Railroad Commission has lowered the intrastate freight rate from Sugar Land to Dallas and so has changed this competitive relationship. This reduction of intrastate rates lowers the prepay and this in turn will lower the sales price of sugar in Dallas and may give sugar consumers in Dallas cheaper sugar. The Colorado beet sugar refineries claim this to be a burden on interstate commerce. They will have to meet the lower price of sugar in Dallas, and since the interstate freight rates will remain the same, this will increase the amount of absorption and correspondingly reduce their profit. They say in their briefs that they doubt that they can absorb this additional amount. This will make the Dallas market less attractive to them and it could mean that they will cease or materially reduce their business in Dallas.
To the railroads this reduction means a loss of revenue on sugar shipped intrastate in Texas but no direct change in revenue on sugar shipped into Texas. However, the order could reduce the total amount of sugar shipped into Texas and correspondingly increase the intrastate shipments within Texas if the out-of-state refineries elect to terminate or reduce their Texas business rather than absorb the reduction in the selling price of sugar. So the benefits of this rate reduction fall directly to the Texas consumer and indirectly to the Texas sugar refineries by reason of reducing the profit margin of their competitors. The order hurts directly the railroads by reducing their revenue on intrastate sugar hauls and may hurt them indirectly by reducing the volume of interstate sugar hauls. It can be a burden on interstate commerce if its effect is to throw an undue share of the carrier's operating expense upon their interstate revenues.
The carriers and out-of-state intervenors did not obtain a finding in the trial court that the new rate would be a burden upon interstate commerce. This record does not establish this as a matter of law. Neither did they obtain a finding that the new rate was discriminatory as to out-of-state shippers. The Railroad Commission is under no duty to maintain a high sugar price in Texas in order to allow out-of-state shippers to compete. Of course there is an advantage in being near a market and by reason of this having less cost of hauling than does a competitor. Freight rates should not be used as a price-fixing device.
A pricing scheme which included an allowance of shipping sugar from Hawaii to Louisiana in order to allow an Hawaiian sugar company to compete in Louisiana would seem to allow the Louisiana producers a large profit at the expense of the public. If such an arrangement were maintained all over the United States it would allow each sugar refiner a much larger profit in its "home" territory. Any such primary concern of the sugar companies which found its way into an express agreement would be dangerously close to violating the antitrust laws. The freight rate structure should not be used as a cloak behind which to hide a possible antitrust violation. Freight rates should be fair and nondiscriminatory between shippers similarly situated and between geographical locations. They should be based upon the carrier's cost of operation plus a fair profit. Any greater charge would constitute a subsidy to the carrier made for the purpose of favoring and protecting some industry or locality or maintaining an artificial price level and would constitute discrimination. The intrastate rates must bear their just share of the carrier's cost of operation. They must not shift part of the cost of hauling intrastate freight into the rates for interstate commerce and thus be a burden upon interstate commerce. The Railroad Commission has no duty to divide or prorate the sugar business between competitive shippers. It has no duty to fix intrastate *122 freight rates above a level reasonably compensable to the carriers for the purpose of maintaining a sales price on sugar high enough to allow a distant shipper to compete at a profit.
In their Point 5 the carriers say that a previous general increase of 6% was under attack in court by the Texas Industrial Traffic League and that the Railroad Commission lost its power to consider changes in the rate structure while that case, Texas Industrial Traffic League v. Railroad Commission, Tex.Civ.App., 255 S.W.2d 903, 905 was pending. The order at bar did not involve the issues in that case, was dated subsequent to the order under attack in that case, and was not contingent upon the outcome of that case. It obviously was not an attempt to act upon a matter pending litigation since in the first order the Commission gave the railroads a general increase (later sustained in court) and the reasonableness of that increase was the question at issue there. Here the decrease is in one commodity upon complaint of a shipper not a party to that litigation. The pendency of that case could not deprive the Railroad Commission of its continuing power to supervise the rate structure and to make changes unconnected with the specific issues involved there.
In Point 6 the carriers urge that this order should be stricken because it is a burden upon interstate commerce and in "direct violation of the order of the Interstate Commerce Commission" Docket Number 28502.
We have examined the order entered in Docket No. 28502. There the Interstate Commerce Commission on August 3, 1942 found that the interstate rates then in effect between Sugar Land, Texas, and points in Southern Oklahoma were reasonable; that intrastate rates to points in Northern Texas just across the Oklahoma border were too low; and that the Texas intrastate rates constituted a burden on interstate commerce in that sugar was shipped by rail to North Texas and then by private truck to Southern Oklahoma cheaper than the interstate rate for the same distance. Although it found that the cheaper Texas intrastate rate was a burden on interstate commerce, the Commission issued no order upon this finding because the Texas Railroad Commission advised that it would make a revision.
Thereafter, on April 5, 1943, the Texas intrastate rates were adjusted upward to meet the requirements of the order in Docket No. 28502. During the period since April 5, 1943 there have been a number of changes affecting the relationship dealt with in Docket No. 28502. We hold that due to the interval of time involved and to the changes which have occurred since April 5, 1943, the intrastate rate under attack at bar does not violate the order in Docket No. 28502. If the carriers feel that this intrastate rate creates a burden on interstate shipments to Southern Oklahoma, they have two remedies in addition to any relief which might be granted by the Railroad Commission. They may seek a voluntary adjustment downward of the interstate rates. Or they may initiate a "Section 13" proceeding, Title 49 U.S.C.A. Part 1, Section 13(3) and (4), before the Interstate Commerce Commission for the purpose of having the intrastate rate adjusted upwards in the affected territory. Board of Ry. Com'rs of State of North Dakota v. Great Northern Ry. Co., 1930, 281 U.S. 412, 50 S. Ct. 391, 74 L. Ed. 936; Railroad Commission of State of Wisconsin v. Chicago, B. & Q. Railroad Co., 1922, 257 U.S. 563, 42 S. Ct. 232, 66 L. Ed. 371, 22 A.L.R. 1086; Lutcher & Moore Lumber Co. v. Beaumont, S. L. & W. R. Co., Tex.Com.App., 1932, 49 S.W.2d 726; Atchison, Topeka & Santa Fe Ry. Co. v. Illinois Commerce Commission, 1929, 335 Ill. 70, 166 N.E. 466.
Right from the start, the trial court faced a dilemma. Should the case be tried under the substantial evidence rule or by a preponderance of the evidence? This dilemma arose from a conflict between the case of Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, requiring a preponderance burden and the following cases applying the substantial evidence rule. Consolidated Chemical Industries, Inc., v. Railroad Commission, Tex.Civ.App., 1947, 201 S.W.2d *123 124, error ref., n. r. e.; Angelina & Neches River R. Co. v. Railroad Commission, Tex. Civ.App., 246 S.W.2d 928; and Texas Industrial Traffic League v. Railroad Commission of Texas, Tex.Civ.App., 1953, 255 S.W.2d 903, error ref., n. r. e.
In response to an objection to the tender of evidence of certain cost data, the Court made the following ruling:
"The Court: In so far as the objection is concerned as to the particular subject matter, let me preface my ruling with this observation: the petitioners have pleaded, as I have viewed their pleadings, on two theories. I don't know that they have subordinated one to the other. One is under the substantial evidence rule and the other is on the pure trial de novo theory. Under the substantial evidence rule, the petitioner has a positive negative burden, if you get what I mean. I don't know whether I do or not, but the allegations over all of no evidence upon which the order could be based is one which nearly opens up the matter of evidence in the trial court, if it is tried on the substantial evidence theory, on almost anything that has anything to do with rates or operations.
"It is a peculiar thing that they have a burden which in ordinary parlance and in ordinary understanding of the English language is an impossible burden, but the Supreme Court has ruled it to be a possible burden by having established the rule itself, and so the rule is a positive but negative rule, and under that theory I will overrule the objection and let them go into it in that regard.
"Mr. Richards: Now then, Your Honor, do I understand this Court is now conducting the trial of this case under the substantial evidence rule?
"The Court: I am conducting the trial on any theory pleaded by the plaintiffs. There is another burden on the petitioner; he has the burden of establishing any theory or any combination of theories that he feels he can stand on. I don't know whether he has to elect after he presents his case and I don't think probably he does except in so far as it develops. I will allow him to go ahead on that basis."
At the termination of the trial, the Court included in his conclusions of law the following:
"This being a review of action of the Railroad Commission under Article 6453, V.C.S., the judicial review of the Commission's action herein is under the precepts of the substantial evidence rule, as it is defined and recognized in the jurisprudence of this State and evidence otherwise considered to have been inadmissible was received on the theory that the substantial evidence rule applies. Findings of fact based on a preponderance of the evidence have been made, however, and the conclusions of law herein are the same whether or not the substantial evidence rule governs this case."
We hold that the substantial evidence rule should not have been applied and reaffirm our holding in the Lone Star Gas case that fact issues at bar should be resolved according to a preponderance of the evidence.
The fixing of freight rates is by its very nature legislative. Simpson v. Shepard, 1913, 230 U.S. 352, 33 S. Ct. 729, 57 L. Ed. 1511; Railroad Commission v. Houston & T. C. Ry. Co., 1897, 90 Tex. 340, 38 S.W. 750, 756; Railroad Commission v. Weld & Neville, 1903, 96 Tex. 394, 73 S.W. 529; Gulf C. & S. F. R. Co. v. Railroad Commission, 1909, 102 Tex. 338, 113 S.W. 741, 116 S.W. 795; Railroad Commission v. Houston Chamber of Commerce, 124 Tex. 375, 78 S.W.2d 591; M. K. & T. R. Co. v. Railroad Commission, Tex.Civ.App., 1928, 3 S.W.2d 489, affirmed, Tex.Com.App., 13 S.W.2d 679.
*124 Art. 10, § 2, Texas Constitution, Vernon's Ann.St., provides:
"* * * The Legislature shall pass laws to regulate railroad, freight and passenger tariffs, to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this state, and enforce the same by adequate penalties; and to the further accomplishment of these objects and purposes, may provide and establish all requisite means and agencies invested with such powers as may be deemed adequate and advisable."
Under arts. 6445 and 6448, V.A.C. S., fixing rates is a function and duty of the Railroad Commission. But under the separation and division of powers doctrine still our basic and fundamental guarantee of libertythe Legislature has charged the judiciary by art. 6453, V.A.C.S., with examining an order of the Railroad Commission upon complaint of a dissatisfied party and, under art. 6454, V.A.C.S., the burden of proving that the rates complained of are "unreasonable and unjust to it or them" is placed upon the complaining party.
In Producers Refining Co. v. M. K. & T. Ry. Co. of Texas, Tex.Com.App.1929, 13 S.W.2d 679, 680, 682, a suit for reparations for freight collected under an order of the Railroad Commission fixing a rate alleged to be too high and discriminatory, we held that the Railroad Commission cannot pass a judicial-type judgment upon its own legislative order. This Court said:
"In our opinion, it was never contemplated that the Railroad Commission should be placed in the unenviable position of determining as to whether its rates duly established are unjust and discriminatory. We think the article of the statute above quoted was enacted for the express purpose of making the rates fixed by the Railroad Commission binding and conclusive upon all parties until they were set aside by a proceeding in the district court as provided in articles 6453 and 6454, R.S. 1925."
This Court then went on to point out the difference in function between the Interstate Commerce Commission and the Texas Railroad Commission, saying:
"The plausible argument is made that the federal syatem of permitting reparations to be awarded by the Interstate Commerce Commission is analogous to the right claimed in this case. There is a fundamental difference, however, between the federal and the rate-making system of our state. Under the federal system, the Interstate Commerce Commission does not fix the rates charged by the carriers. Under the Transportation Act, the carrier is commanded to fix rates that are just, reasonable, and nondiscriminatory. In the light of this admonition, they fix their own rates by filing schedules thereof with the Interstate Commerce Commission. It is only when a complaint is made by the carrier or a shipper that the Interstate Commerce Commission is authorized to ascertain whether a rate is fair, just, and reasonable, and to determine what is a just and fair rate. Under our system the rate is not determined by the carrier, but is fixed by a tribunal created for the very purpose of establishing reasonable and nondiscriminatory rates. The Interstate Commerce Commission only awards reparations when it finds that a rate fixed by the carrier itself is unjust or discriminatory. Of course it was not contemplated under the federal system that the carrier could fix a rate that would be binding and conclusive upon the shipper. This would enable the railway company to do the very thing which it was the policy of the law to preventthe charging of extortionate and discriminatory rates. A different rule, however, applies where the rates in the first instance are fixed by a tribunal upon whom is imposed the *125 public duty of fixing freight rates fair and just to the carrier and the shipper."
In Railroad Commission v. Houston Chamber of Commerce, supra, this Court said [124 Tex. 375, 78 S.W.2d 595]:
"* * * the making of rates is a legislative function, but the determination as to whether a rate is unreasonable or for any reason is illegal is a judicial function * * *.
"* * * On the question of burden of proof required by statute when an order of the Railroad Commission is attacked directly, the statute (article 6454, Rev.Stat.1925) now reads: `The burden of proof shall rest upon the plaintiff to show the rates, regulations, orders, classifications, acts or charges complained of are unreasonable and unjust to it or them:'
"The codifiers of the 1925 revision left unchanged article 6658 of the Rev.Stat.1911 (which in turn was article 4566 of the Rev.Stat.1895) on the subject, except the omission after the word `show' of the words `by clear and satisfactory evidence'; under the statute now in force the controversy must therefore be determined, so far as the `burden of proof' is concerned, by the same rules governing in ordinary civil cases."
The carriers contend also that this order is void because the Commission made no finding that the old rate was "* * * unjust, unreasonable, discriminatory, prejudicial or otherwise illegal, and without finding the new rates just, reasonable and fair * * *", citing Thompson v. Railroad Commission, 150 Tex. 307, 240 S.W.2d 759. That case involved an attack upon a specialized motor carrier permit issued under art. 911b. Section 5a(d) of art. 911b provides that the Commission's order shall be void "* * * unless the Commission set forth in its order full and complete findings of fact * * *." There is no such provision in the statutes governing the rate making function for railroads and we cannot insert it into the statutes by judicial fiat.
By their Point 7 the carriers contend that the new rate is unreasonable and unjust as to them in that the order will substantially reduce their annual revenue and is noncompensable in that it will not give them a fair return. Although appellees claim that the carriers did not plead that the rate was not compensatory, we believe that if given a liberal construction their pleading will support this Point.
Having failed to obtain favorable findings of fact in the trial court, the carriers have the burden on appeal of showing that the order of the Commission is as a matter of law either confiscatory or unreasonable and unjust.
The evidence offered by the railroads on this issue, as summarized by them in their application for writ of error, comes to this: In February 1952 the Railroad Commission granted a general rate increase of 6% on intrastate freight. The railroads' unit operating expense items were greater in August 1953 than they were in February 1952. Although their total investment had increased from $863,197,002 in February 1952 to $872,642,806 in July 1953, their net operating income had decreased from $3,998,668 to $3,533,303, and their rate of return from 5.56% to 4.86% in the same period. An operating ratio of cost to income not exceeding 70% is necessary in the railroad industry to a sound financial condition, and while that ratio was 72.49 in February 1952, it was 77.44 in July 1953. Under the proposed reduced rates on sugar the carriers will lose, annually, in excess of $284,000. Charges under the new rates from Sugar Land to many points in Texas will be even lower than they were in 1928. One witness knew of no reason why this should be so.
The railroads offered no evidence to show that the new rates on sugar, if considered alone, are noncompensatory. Their position on this phase of the case is that if their *126 entire intrastate operations do not show a reasonable return on investment, or if they show an unreasonable operating ratio of cost to income, the Commission is powerless to reduce the rates on a single commodity, citing Railroad Commission of Texas v. Weld & Neville, 96 Tex. 394, 73 S.W. 529; Smyth v. Ames, 169 U.S. 466, 18 S. Ct. 418, 42 L. Ed. 819, and Simpson v. Shepard (Minnesota Rate Cases), 230 U.S. 352, 33 S. Ct. 729, 57 L. Ed. 1511. These authorities are not controlling.
In the Weld & Neville case suit was against the Railroad Commission to compel it to trant a lower rate on round-bale cotton than was fixed for cotton shipped in flat bales. The relief sought was denied. The court said that in refusing to fix a lower rate for round-bale cotton the Commission had a right to consider the entire business operations of the railroads and that some commodities would have to be transported at a loss. That is not a holding that the Commission cannot lower a rate on a particular commodity because by virtue of the reduction the railroads would lose revenue.
In Smyth v. Ames state authorities were enjoined from enforcing against railroads in Nebraska a general statutory reduction of 29½ in freight rates. The evidence showed that if the reduced rates had been in effect during any of the preceding three years most of the roads would have operated at a loss and the income of the few operating at a profit would have been so small as to compel the conclusion that they were forced to use their property without just compensation.
In Simpson v. Shepard the Supreme Court of the United States affirmed an injunction against two orders of the Railroad & Warehouse Commission of the State of Minnesota and two acts of the legislature of that state which fixed general schedules of maximum charges for freight and passenger transportation. The injunction was granted upon a showing that the rates prescribed would have made a very serious reduction in a return already inadequate.
Thus it appears that in both Smyth v. Ames and Simpson v. Shepard the injunction ran against enforcement of orders and statutes for general rate reductions which would have resulted in depriving the railroads of a reasonable and just return on their investment. There is nothing in either of the cases which deprives a ratemaking agency of the authority to reduce rates on a particular commodity simply because the reduction will result in a loss of revenue to railroads whose return on investment is already low. Unless the rate fixed on the particular commodity is unreasonable and unjust, the railroads should not be heard to complain of it simply because it results in a loss of revenue. They have their remedy under the statutes in seeking a general revenue increase in rates.
The admission of comparable rates offered for comparison was error without proof of comparable operating conditions. Railroad Commission v. Weld & Neville, supra; Moline Consumers' Co. v. Ill. Commerce Commission, 353 Ill. 119, 187 N.E. 161. The comparisons did show some aspects of similarity, such as loading characteristics, value, damages, and the revenue in terms of ton-miles and car-miles. They did not show comparable cost factors. Although the degree to which comparative data are truly comparable and the degree to which they differ may be a matter going to the weight of the testimony, still a basis for evaluating the comparison should be established before the comparative data are admitted in evidence. But since this was a nonjury trial, we do not consider this to have been reversible error.[1]
*127 The question has been raised by members of the Court as to whether art. 1738a allows a direct appeal from the trial court to this Court in a case like the present. In the opinion of the majority this question is foreclosed in favor of direct appeal by Railroad Commission v. Sterling Oil & Ref. Co., 147 Tex. 547, 218 S.W.2d 415, and Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235. The effect of these decisions was, incidentally, to modify the contrary implication of Sec. (c) of Rule 499-a, Tex.Rules of Civ.Procedure.
By their Points 8 and 9 the carriers allege that the 80,000 rates are discriminatory as between certain cities in Texas. Neither those cities nor any one else affected by the alleged discrimination are parties to this case. Therefore, on this aspect of the new rate, this case is not a true adversary proceeding. For this reason we do not decide those points and do not adjudicate the question.
The judgment of the trial court is affirmed.
CULVER, Justice (dissenting).
I do not agree with the result reached in this decision. I would reverse because it appears to me that the action of the Railroad Commission in reducing the intrastate rate on sugar is arbitrary, unreasonable and not based on any evidence of a probative force.
The railroad carriers are here caught in a vise between large sugar refiners, domestic and out-of-state, contending for the Texas market and particularly that of the Dallas-Fort Worth area. The appellee (Imperial of Texas) applied to the Railroad Commission for a reduction of the intrastate rate. Imperial was not complaining of the intrastate rate. It was complaining of the relationship between the interstate and intrastate rates. It claimed that a slight reduction in the interstate rates applying to sugar moving into Texas gave the out-of-state refiners undue advantage.
As far back as 1946 the advantage enjoyed by Imperial to the Dallas market in the way of railroad rates over out-of-state shippers was forty cents per hundred. On account of certain adjustments in rates this advantage had been increased to forty-two cents. In 1953 the Interstate Commerce Commission approved a rate structure which reduced this advantage back to the forty cents which prevailed in 1946. Upon this application by Imperial the Railroad Commission not only reduced the intrastate rate so as to restore the two cents, but gave to Imperial a total of forty-nine cents advantage over the California shipper and a corresponding adjustment in the advantage held by Imperial over the Colorado refiners. For example, the distance from Sugar Land to Amarillo is 172 miles greater than from Denver to Amarillo. Under the present rates the difference is six cents in favor of the Colorado shipment. Under the intrastate rate now established by the Railroad Commission that is reversed so as to give a six cents differential in favor of Sugar Land. Dalhart is 312 miles nearer Denver than it is to Sugar Land. The present rate is eleven cents in favor of Denver. The rate established by the Railroad Commission is two cents in favor of Sugar Land. Lubbock is only 36 miles nearer Sugar Land. The present rate gives Sugar Land an advantage of 10.4 cents, but the proposed rate more than doubles Sugar Land's advantage.
Seemingly appropriate here are the words of Circuit Judge Huxman in State Corporation Commission of Kansas v. U. S., D.C.Kan.1954, 128 F. Supp. 646, 651:
"While relative distances from a common market is not the only factor to be considered in determining fair rates between competitors for a share of a common market, they are of major importance where the distances are approximately the same and general conditions *128 are likewise comparable, and they may well be controlling in determining the reasonableness or unreasonableness of rates between competitors in the absence of other persuasive factors."
The basic question, it seems to me, before this court is: Can the Railroad Commission lawfully fix and relate intrastate rates to interstate rates? Certainly the Railroad Commission has the right to consider all applicable factors in fixing intrastate rates, including the level of interstate rates, but I think it does not have the power to lower intrastate rates solely on the ground of a reduction in interstate rates that has been approved by the Interstate Commerce Commission. Louisville & N. R. Co. v. Eubank, 184 U.S. 27, 22 S. Ct. 277, 46 L. Ed. 416; Houston, E. & W. T. R. Co. v. U. S., 234 U.S. 342, 34 S. Ct. 833, 58 L. Ed. 1341; Swift & Co. v. Philadelphia & R. R. Co., C.C., 58 F. 858. If the Commission does have that power then it can be said to regulate, somewhat, interstate freight rates and hamper the movement of goods in interstate commerce.
The proof that the rate relationship was the sole factor considered by the Railroad Commission in entering the rate reduction, is best shown by the language of the Commission's order as set forth in the majority opinion and particularly as follows:
"`We further find from the evidence before us that the action of defendants, individually or in connection with their interstate connecting lines, involuntarily reducing the rates from the interstate origins to Texas, makes necessary the revisions of the Texas intrastate rates to be made herein * * *.'"
Some stress seems to be laid by the Commission and by the respondents on the fact, as they say, that this was a voluntary reduction by the railroads in the interstate rate. Whether it be voluntary or not would seem to be immaterial as the railroad pursued the only method appropriate and the reduction was approved by the Interstate Commerce Commission. On the other hand the carriers point out that the interstate rate reduction, the basis of Imperial's complaint, was made to comply with the criticism by the Interstate Commerce Commission that rate relationship as of June 30, 1946, should be restored. The Commission said:
"`We have the assurance of the petitioners of their intention to proceed by voluntary discussion and cooperation with the shippers and representatives of markets to endeavor to put into effect such measures as will restore former competitive relationships as completely as possible. We expect full and prompt compliance with these representations, in the spirit of the proceeding. Restoration of rate relationships should not be made the excuse for further increasing revenue or of bettering the competitive position of the carriers.'"
This must have had the effect of making the interstate reduction by the railroad carriers something less than voluntary.
In a case heavily relied upon by appellees, Atchison, T. & S. F. Ry. v. Illinois Commerce Commission, 1929, 335 Ill. 70, 166 N.E. 466, 472, the general rule is said to be:
"It is of course true that the Illinois commission has no power to regulate interstate commerce or to change and fix the relation between interstate and intrastate commerce rates. * * *"
In view of this reduction of intrastate rates by the Railroad Commission, the out-of-state shippers, in order to preserve the rate relationship which had existed for many years, are demanding further interstate reductions. Emphasizing again the only factor, namely, rate relationship, which I think, caused the intrastate rate reduction the Commission pointedly said in its order:
"* * * If such further demands are made by intervenors, and defendants in connection with their connecting lines accede thereto by further reducing the interstate rates to Texas, seemingly the time will have arrived for a general investigation into the rates on sugar, carloads. Such an investigation would properly embrace the *129 matter of rates on sugar in carloads from Texas to California and the territory intermediate Texas to California, and from Texas to Louisiana, to which the evidence shows that the rates from Texas are on a much higher level than from California to the territory west of Texas, including California, and than from the New Orleans refining group to points in Louisiana. A mileage scale of rates might be the solution."
In other words, if from pressure brought by the out-of-state shippers or by the I.C.C. any further reduction is made of the interstate rates to Texas the Railroad Commission will really make a reduction, and it is implied that further reduction in the intrastate rates will be in order unless something is done about the rate from Texas to California.
Bearing further on this point the railroads show that under the new intrastate rates fixed by the Railroad Commission the charges for transporting sugar from Sugar Land, Texas, (Imperial Refinery) will be lower to many points in Texas than the rates were in 1928, and this in spite of the greatly increased cost of carrier operation during these more than twenty-five years and no change in economic conditions which would warrant that situation.
Appellees contend that even if the Commission did fix and relate the intrastate rate to the interstate rate, nevertheless the only relief for the railroad carriers would be an application to the Interstate Commerce Commission under Section 13 of the Interstate Commerce Act for a finding that the intrastate rates are too low and constitute a burden upon interstate commerce. While admittedly this action is available to the carriers, I think it is not exclusive for the reason that the statutory authority under which the Railroad Commission acts does not empower it to revise rates upward or downward depending solely upon the level or unreasonableness of interstate rights.
It may be said that the same avenue was open to appellee, Imperial, to correct any discrimination exerted by the interstate rate. Indeed Imperial first took that course. It applied to the I.C.C. to suspend the interstate reductions on the ground of unfair discrimination. Upon a denial of that relief Imperial did not pursue this protest further, although it could have had its complaint examined after formal application filed in accordance with the Commission's general rules of practice.
I think the Railroad Commission used the wrong measuring stick and therefore its order should not stand.
On Motion for Rehearing
Motion for rehearing of cause is overruled.
On rehearing GARWOOD, J., concurred with the dissent of CULVER, J., and alternatively concurs with Associate Justice WILSON'S opinion that the cause should be remanded.
NOTES
[1] Due to the public interest in both the solvency of the railroads and in not paying excessive freight rates, Abilene & So. Ry. Co. v. Terrell, Tex.Civ.App., 1939, 131 S.W.2d 37, error ref., the writer would prefer to reverse and remand in order that all parties might focus on establishing their contentions by relevant evidence properly supported so that a true comparison might be drawn and comparative rates truly evaluated. Evidence "otherwise considered to have been inadmissible" was received in volume. It would be virtually impossible for the trial court to exclude from his thinking the total effect of this evidence. Under these circumstances, and considering the length of the trial, I feel that this testimony probably did enter into the trial court's judgment.
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767 F. Supp. 672 (1991)
NORTHEAST JET CENTER, LTD.
v.
LEHIGH-NORTHAMPTON AIRPORT AUTHORITY, Jack Yohe and Sanford Wartell.
Civ. A. No. 90-1262.
United States District Court, E.D. Pennsylvania.
May 31, 1991.
*673 *674 B. Chirstopher Lee, Ellen Rosen Rogoff, Philadelphia, Pa., David K. Monroe, Joel E. Laiks, Washington, D.C., for plaintiff.
Allen D. Black, J. Bruce McKissock, Philadelphia, Pa., for defendants.
OPINION AND ORDER
VAN ANTWERPEN, District Judge.
INTRODUCTION
The defendants in the captioned matter have moved to dismiss plaintiff's first amended complaint. The plaintiff has alleged numerous causes of action in the following counts: (1) violation of the plaintiff's constitutional rights (42 U.S.C.A. § 1983 (West 1981)); (2) violation of the Sherman Antitrust Act, 15 U.S.C.A. §§ 1 et seq. (West 1973 & Supp.1991); (3, 4, & 5) civil RICO violations of 18 U.S.C.A. §§ 1962(a), (b), (c) and (d) (West 1984 & Supp.1991) respectively; (6) violation of the Airport and Airway Improvement Act, 49 U.S.C.A.App. § 2210 (West Supp.1991); (7) tortious interference with business relations; (8) tortious interference with prospective business relations; (9) violation of the Pennsylvania Municipality Authorities Act of 1945, Pa.Stat.Ann. tit. 53, §§ 301 et seq. (Purdon 1974 & Supp.1990); (10) defamation; (11) breach of contractual duty of good faith dealing; (12) respondeat superior; and (13) aiding and abetting.
All of these claims arise out of the plaintiff's allegations of unfair and discriminatory treatment in its role as a fixed-base operator[1] ("FBO") at the Allentown-Bethlehem-Easton Airport run by the Airport Authority and its director, Jack Yohe, and the Chairman of the Airport Authority's Board of Directors, Sanford Wartell. In brief, the plaintiff alleges that it had to sell its hangar and other facilities on the grounds of the Allentown-Bethlehem-Easton Airport in February, 1990 at an artificially depressed price of $5.1 Million. The plaintiff alleges that the sale price was artificially depressed because of actions taken by the Airport Authority and its officials. The defendants have all moved to dismiss the plaintiff's amended complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6).
Fed.R.Civ.P. 12(b)(1) allows a complaint to be dismissed for "lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(6) allows dismissal of a complaint for "failure to state a claim upon which relief can be granted." The criteria which a court must use in deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6) are clear. "In reviewing a motion to dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6), all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. Wisniewski v. Johns Manville Corp., 759 F.2d 271, 273 (3d Cir.1985); Rogin v. Bensalem Twp., 616 F.2d 680, 685 (3d Cir.1980)." Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir.1987). Also "in deciding a Rule 12(b)(6) motion, factual allegations of the complaint are to be accepted as true and the complaint should be dismissed only if it appears to a certainty that no relief could be granted under any set of facts which could be proved. Reasonable factual inferences will be drawn to aid the pleader. Amalgamated *675 Transit Union v. Byrne, 568 F.2d 1025, 1031 (3d Cir.1977) (in banc) (Aldisert, J., dissenting); Knuth v. Erie-Crawford Dairy Cooperative Ass'n, 395 F.2d 420 (3d Cir.1968)." D.P. Enterprises v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir.1984).
With these standards in mind, we shall consider each of the defendants' arguments in turn.
COUNT 142 U.S.C.A. § 1983
In Count one of its amended complaint, the plaintiff has brought an action under 42 U.S.C.A. § 1983.[2] The plaintiff alleges a violation of its rights to equal protection and due process of law. The defendants challenge the adequacy of the plaintiff's pleading of this cause of action on several grounds: that the plaintiff has not alleged a property interest protected by the due process clause; that the plaintiff improperly alleges a violation of due process under the Federal Aviation Act of 1958, 49 U.S.C. A.App. § 1349 (West 1991)[3]; that the plaintiff has not alleged the violation of any rights entitled to due process protection; that the plaintiff has failed to allege a denial of equal protection; that the plaintiff's allegations are vague and conclusory; that the plaintiff's claim against the defendant Airport Authority fails to describe a custom or policy; and that the plaintiff's claim against defendants Yohe and Wartell is barred by the defense of qualified immunity. Before discussing the merits of the defendants' challenge, we shall first examine exactly what the plaintiff has alleged in the first count of its amended complaint.
The plaintiff alleges that the defendants enforced against it aloneand not against other similarly situated persons operating at the Airportcertain regulations and requirements which the defendants knew were not in effect. The plaintiff also alleges a pattern of arbitrary, capricious, and discriminatory acts on the part of the defendants, including the selective enforcement of void regulations referred to above, as well as the following: the defendants' enforcement of a "policy" of not granting "through the fence" agreements to commercial operators but not against ITT and other similarly situated persons; requiring the plaintiff to obtain an FAA repair station certificate when such a requirement was not enforced against other FBOs at the airport; enforcing FBO standards solely against the plaintiff; offering extremely favorable terms to the interim FBO and not the plaintiff in order to enable the interim FBO to compete unfairly against the plaintiff; luring away the plaintiff's customers; and disparaging the plaintiff's business reputation as an FBO. (Amended Complaint, ¶¶ 41 and 42).
The plaintiff continues its allegations of constitutional violations by alleging deprivation of property in the following ways: breach of the plaintiff's lease; inequitable and fraudulent enforcement of Airport Authority regulations and policy; conduct violating the antidiscrimination provisions of the Federal Aviation Act; interference with business relations; and malicious publication of false and derogatory statements. Specifically, the plaintiff has alleged that the defendants: prevented the plaintiff from obtaining financing to expand its hangar in connection with the plaintiff's ten-year lease extension with Union Pacific; persuaded Union Pacific to sever its business relationship with the plaintiff; prevented the plaintiff from receiving an FAA repair station certificate through numerous contacts with FAA officials, and interfered with the plaintiff's business relationships and prospective business relationships by making malicious and defamatory statements *676 regarding the plaintiff's financial condition, qualifications, and performance as an FBO. Among the damages that the plaintiff alleges is the loss of the benefits of the plaintiff's ten-year lease extension with Union Pacific. (Amended Complaint, ¶ 44).
In order to plead a § 1983 action properly, a plaintiff must make two allegations: (1) that some person has deprived him of a federal right and (2) that the person who has deprived him of that right has done so under color of state law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1923, 64 L. Ed. 2d 572 (1980). The defendants do not challenge the plaintiff's fulfillment of the second requirement, but they do challenge the plaintiff's fulfillment of the first. Therefore, our inquiry must focus on whether the plaintiff has alleged the deprivation of a "federal" right.
We agree with the defendants that the amended complaint is unclear as to whether the plaintiff is alleging a deprivation of procedural or substantive due process. "A procedural due process claim is based on an allegation that the procedures used by the state in effecting the deprivation of a life, liberty or property interest were inadequate. Substantive due process is not a claim of procedural deficiency but rather a claim that the state's conduct is inherently impermissible." Metcalf v. Long, 615 F. Supp. 1108, 1118 (D.Del.1985). There is no allegation that any state procedure is constitutionally inadequate; we must, therefore, assume that the plaintiff is alleging a deprivation of some substantive due process right. It is upon this assumption that we shall proceed.
We believe that most of the grounds chosen by the plaintiff to support its alleged deprivation of "due process" must fail. To begin with, the mere breach of a contract by a government or a government instrumentality does not give rise to a constitutional right. Jimenez v. Almodovar, 650 F.2d 363, 370 (1st Cir.1981) ("A mere breach of contractual right is not a deprivation of property without constitutional due process of law.... Otherwise virtually every controversy involving an alleged breach of contract by a government or governmental institution or agency or instrumentality would be a constitutional case."); Medical Laundry Services v. Board of Trustees of the University of Alabama, 906 F.2d 571 (11th Cir.1990) (breach of contract claim was not a sufficient basis for a § 1983 action).
The plaintiff is also evidently basing a due process violation on conduct violating the antidiscrimination provisions of the Federal Aviation Act. 49 U.S.C.A.App. § 1349(a) reads:
(a) No Federal funds, other than those expended under this chapter, shall be expended, other than for military purposes (whether or not in cooperation with State or other local governmental agencies), for the acquisition, establishment, construction, alteration, repair, maintenance, or operation of any landing area, or for the acquisition, establishment, construction, maintenance, or operation of air navigation facilities thereon, except upon written recommendation and certification by the Secretary of Transportation that such landing area or facility is reasonably necessary for use in air commerce or in the interests of national defense. Any interested person may apply to the Secretary of Transportation, under regulations prescribed by him, for such recommendation and certification with respect to any landing area or air navigation facility proposed to be established, constructed, altered, repaired, maintained, or operated by, or in the interests of, such person. There shall be no exclusive right for the use of any landing area or air navigation facility upon which Federal funds have been expended. For purposes of the preceding sentence, the providing of services at an airport by a single fixed-based operator shall not be construed as an exclusive right if it would be unreasonably costly, burdensome, or impractical for more than one fixed-based operator to provide such services, and if allowing more than one fixed-based operator to provide such services would require the reduction of space leased pursuant to an existing *677 agreement between such single fixed-based operator and such airport.
There is no private right of action under the Federal Aviation Act, 49 U.S.C. A.App. § 1349. Interface Group, Inc. v. Massachusetts Port Authority, 816 F.2d 9, 15 (1st Cir.1987). The plaintiff, however, puts forward this argument in its brief: "NEJ has not claimed that defendants' violation of the Federal Aviation Act in and of itself is sufficient to support a violation of the due process clause, but rather, that the misconduct which forms the basis for a violation of that statute is also part of the conspiracy underlying NEJ's due process claim. See Complaint at ¶ 44-45." Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss Plaintiff's First Amended Complaint, at 11 n. 4.
What the plaintiff has failed to explain to the court is how its right to be free of such alleged misconduct rises to the level of a federal right protected by 42 U.S.C.A. § 1983. The Second Circuit, which has considered this issue, has held in Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91 (2d Cir.), cert. denied, 479 U.S. 872, 107 S. Ct. 248, 93 L. Ed. 2d 172 (1986):
Finally, appellant asserts that the court erred in dismissing its claim under § 1983. The comprehensive enforcement scheme provided in the Federal Aviation Act manifests congressional intent to foreclose an action under § 1983. Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 28 [101 S. Ct. 1531, 1545, 67 L. Ed. 2d 694] (1981); Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 19 [101 S. Ct. 2615, 69 L. Ed. 2d 435] (1981). Appellant must look to the administrative agency responsible for the enforcement of these provisions. Caceres Agency, Inc. v. Trans World Airways, 594 F.2d 932 (2 Cir.1979).
We hold that the District Court was correct in dismissing appellant's claims under the Federal Aviation Act and § 1983.
Id. at 98.
We are persuaded that Montauk-Caribbean Airways, Inc. was correctly decided and, therefore, find that the plaintiff may not base its § 1983 action on conduct alleged to be violative of the Federal Aviation Act.
The plaintiff further alleges that the defendants "interfered with the plaintiff's business relationships and prospective business relationships by making malicious and defamatory statements regarding the plaintiff's financial condition, qualifications and performance as an FBO." Defamation alone, without infringement of some tangible interest, does not involve the violation of a constitutional right. Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976). In the case at bar, however, the plaintiff has alleged the infringement of a tangible interest, i.e., actual and prospective business relationships, as a result of the defendants' defamatory remarks. We believe that the plaintiff has properly pleaded a § 1983 claim in this regard. See Petrone v. City of Reading, 541 F. Supp. 735 (E.D.Pa.1982) (plaintiff properly stated a claim under 42 U.S.C.A. § 1983 where defamation was linked to loss of business and later opportunities for employment).
The defendants' challenge to the plaintiff's allegations of a denial of equal protection is less successful. The plaintiff, in its amended complaint, does not allege the existence of legislative classifications at work to the detriment of some fundamental constitutional right. The plaintiff is here only alleging that existing regulations and policies were applied to it and not to others who were similarly situated. "The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination." Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 401, 88 L. Ed. 497 (1944).
Construing the allegations of the complaint in the light most favorable to the plaintiff, we conclude that the plaintiff has adequately alleged that a governmental entity *678 has enforced certain regulations and policies solely against the plaintiff and not against other similarly situated FBOs. This, in conjunction with the plaintiff's allegations of conspiracy among the defendants, and their purpose of harassing the plaintiff with the intent of injuring its business and appropriating its business and property, convinces us that the plaintiff has met the Snowden requirements for a proper pleading of a denial of equal protection.
The other challenges raised by the defendants may be disposed of as follows. We are aware that, where an action is brought under 42 U.S.C.A. § 1983, a special degree of precision must be injected into the pleading of the complaint. The general standard for pleading civil rights claims is a stringent one. The requirement is that the complaint state facts upon which the court can weigh the substantiality of the claim. Negrich v. Hohn, 379 F.2d 213 (3d Cir.1967); Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir.1976); and LaPlant v. Frazier, 564 F. Supp. 1095 (E.D.Pa.1983). Under the standard, a plaintiff must state the conduct violating his or her civil rights, when and where the conduct occurred, and who was responsible. The complaint will be dismissed if it contains only vague and conclusory allegations. Boykins v. Ambridge Area School District, 621 F.2d 75, 80 (3d Cir.1980); Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir.1978).
The defendants argue that it is not clear what acts the individual defendants are charged with. At paragraphs 21, 28, and 40, the complaint specifically alleges the individual conduct of Messrs. Wartell or Yohe. Paragraph 21 reads:
21. NEJ is informed and believes, and alleges thereon, that, in or about September, 1988, Defendants Airport Authority, Yohe and Wartell (the "Airport Defendants") devised a scheme to defraud NEJ and others, and Defendants Wartell and Yohe, in their official capacities, commenced and ordered the Airport Authority to commence, in combination and conspiracy with others, a purposeful course of conduct designed to interfere with NEJ's business relationships, prevent NEJ from obtaining FAA certification, lure away NEJ's tenants and customers, prevent NEJ from obtaining financing to expand its business, wrongfully drive NEJ out of the FBO business, wrongfully cancel the NEJ lease, and wrongfully appropriate NEJ's valuable hangar and other property at a price far below its actual value.
Paragraph 28 reads:
28. NEJ relied on the Airport Defendants' misrepresentation that the FBO Standards were in effect and, in early February, 1989, submitted proof that it was in compliance with the the FBO Standards. NEJ also informed the Airport Defendants that NEJ had applied for, and shortly would receive, a new FAA repair station certificate. Upon learning that NEJ expected to soon receive a new FAA repair station certificate, Defendant Yohe telephoned FAA officials in Allentown, New York, and Washington in an effort to prevent NEJ from receiving a new FAA repair station certificate, so that NEJ could not `cure' the improper default.
Paragraph 40 reads:
40. Under color of state law, and pursuant to an official policy of the Airport Authority promulgated by Defendants Yohe and Wartell, the Airport Defendants have deprived, and conspired to deprive, NEJ of its equal protection and due process rights under the Fourteenth Amendment to the United States Constitution, and Article I, 9 and 26 of the Pennsylvania Constitution.
We believe that the plaintiff has sufficiently alleged the conduct of the defendants Yohe and Wartell to put them on notice of the charges against them.
The defendants also argue that the complaint fails to plead a constitutional violation perpetuated according to a custom or policy of the Airport Authority. A municipal authority can be sued under § 1983 only when the violations are a result of a "custom or policy" of the municipality. Monell v. Department of Social Services, *679 436 U.S. 658, 691-94, 98 S. Ct. 2018, 2036-37, 56 L. Ed. 2d 611 (1978).
The defendants contend that Yohe and Wartell did not possess any policy-making authority and that the plaintiff has not alleged a true "policy" or "custom" on the part of the Airport Authority. With regard to the first argument, we believe that this is a factual matter which cannot be resolved on a motion to dismiss. With regard to the second, we must look to the actual allegations in the amended complaint. Paragraph 21 alleges:
21. NEJ is informed and believes, and alleges thereon, that, in or about September, 1988, Defendants Airport Authority, Yohe and Wartell (the `Airport Defendants') devised a scheme to defraud NEJ and others, and Defendants Wartell and Yohe, in their official capacities, commenced and ordered the Airport Authority to commence, in combination and conspiracy with others, a purposeful course of conduct designed to interfere with NEJ's business relationships, prevent NEJ from obtaining FAA certification, lure away NEJ's tenants and customers, prevent NEJ from obtaining financing to expand its business, wrongfully drive NEJ out of the FBO business, wrongfully cancel the NEJ lease, and wrongfully appropriate NEJ's valuable hangar and other property at a price far below its actual value.
Paragraph 22 further alleges that defendant Wartell, as Chairman of the Airport Authority's Board of Directors, and defendant Yohe, as the Airport's Director, had policy-making authority to cause the Airport Authority to take the actions recited above against the plaintiff and that this decision had the effect and force of an official policy of the Airport Authority.
In Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986), the Supreme Court stated: "[I]t is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances." Id. at 480, 106 S.Ct. at 1298. As the Supreme Court noted:
[A] government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government's authorized decisionmakers, it surely represents an act of official government `policy' as that term is commonly understood. More importantly, where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly....
Id. at 481, 106 S.Ct. at 1299 (footnote omitted).
The Supreme Court held in Pembaur that "municipal liability under § 1983 attaches whereand only wherea deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Id. at 483, 106 S.Ct. at 1300.
Looking to paragraphs 21 and 22 of the amended complaint, we find allegations of a "purposeful" course of conduct against the plaintiff taken by defendants possessed of policy-making authority for the Airport. We believe that these allegations are sufficient under Pembaur to withstand a motion to dismiss.
The defendants raise the defense of qualified immunity in their motion to dismiss. A government official performing a discretionary function is subject to suit for violation of constitutional rights if "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing would violate that right." Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987). What a "reasonable" official would understand is not a determination which should be made on a motion to dismiss in the circumstances here. We shall, therefore, deny the defendants' motion on this ground as well.
Finally, we reject the defendants' argument that the plaintiff's equal protection *680 claim should be dismissed because the defendants acted out of a concern for safety at the airport. Such an argument involves factual questions which cannot be resolved on a motion to dismiss.
COUNT 2ANTITRUST CLAIM
The defendants argue that the plaintiff's cause of action based upon the alleged violation of the Sherman Act, 15 U.S.C.A. §§ 1 et seq., should be dismissed on the basis of the Local Government Antitrust Act, 15 U.S.C.A. § 35(a) (West Supp.1991). That statute reads: "No damages, interest on damages, costs, or attorney's fees may be recovered under section 15, 15a, or 15c of this title from any local government, or official or employee thereof acting in an official capacity." Paragraph 51 of the amended complaint specifically requests, as relief, "treble damages, attorneys' fees, interest and costs."
Defendant Lehigh-Northampton Airport Authority would fit into the definition of "local government" found at 15 U.S.C.A. § 34(1) (West Supp.1991):
For purposes of this section and sections 35 and 36 of this title
(1) the term `local government' means
(A) a city, county, parish, town, township, village, or any other general function governmental unit established by State law, or
(B) a school district, sanitary district, or any other special function governmental unit established by State law in one or more States.
....
We believe that an airport authority would fit the definition "any other special function governmental unit established by State law ..." under 15 U.S.C.A. § 34(1)(B). Legislative history supports our belief. As the House Judiciary Committee stated, in discussing the scope of the Act, especially the inclusion of "special function governmental unit[s]":
Examples of special purpose political subdivisions included within the definition are planning districts, water districts, sewer districts, irrigation districts, drainage districts, road districts, and mosquito control districts. Such a subdivision would have a geographic jurisdiction that is not contiguous with, and is generally substantially smaller than, that of the State that established it. The definition, however, would encompass special purpose governmental units that operate in more than one State. For example, regional planning boards, environmental organizations, or airport or port authorities may be established in two or more States.
H.R.Rep. No. 965, 98th Cong.2d Sess. 19-20, reprinted in 1984 U.S.Code Cong. & Admin.News 4602, 4620-21 (emphasis added).
The plaintiff contends that the immunity extended by the statute covers only reasoned, legitimate, authorized acts of a municipal authority which reduce competition and not what they allege is a secret conspiracy with third parties designed to eliminate competition through conduct outside the municipal authority's powers. With regard to the individual defendants Yohe and Wartell, the plaintiff further contends that their clandestine misconduct cannot fall within the meaning of "official capacity" as used in the Act.
Although neither we nor the parties have been able to locate authority in this Circuit regarding the "absolute" nature of the immunity granted by the Local Government Antitrust Act, the District Court in Palm Springs Medical Clinic, Inc. v. Desert Hospital, 628 F. Supp. 454 (C.D.Cal.1986) has conducted an extensive analysis of the Act's legislative history. The court concluded that the immunity granted by the Act is absolute, i.e., that it need not be confined only to conduct within the government's lawful regulatory authority. The Desert Hospital court stated:
The legislative history thus demonstrates that, while the House may have originally contemplated an `official action' limit on both local government and official immunity, both the House and Senate passed the final version of the 1984 Act with the intent that local government immunity be blanket and absolute. *681 PSMC [the plaintiff], as a final argument, contends that such blanket immunity is against public policy in that it would absolutely shield local governments from liability for antitrust violations. The legislative history of the 1984 Act, however, indicates that Congress thought that public policy would best be served by limiting the antitrust remedy against local governments to injunctive relief.
Id. at 462-63.
The examination of the legislative history of the Act done by the Desert Hospital court is thorough and extensive. We believe, as did the court in Desert Hospital, that Congress intended to create an absolute immunity for the conduct of a municipal authority, at least as far as monetary damages are concerned. Since this is precisely the relief requested by the plaintiff, we shall dismiss the plaintiff's antitrust claim for damages under the Sherman Act with prejudice.
The plaintiff, however, argues in its brief that its overall claim under the Sherman Act should not be dismissed because it may also require injunctive relief although plaintiff did not specifically request injunctive relief. The plaintiff points to paragraph 4(b) of the general prayer for relief found at the end of the amended complaint where the plaintiff asks generally "for such other relief as this Court may deem proper." We must look with a rather jaundiced eye upon a plaintiff who only needs injunctive relief when federal jurisdiction is threatened.
It appears that the state action exemption to the antitrust laws would bar even injunctive relief. The state action exemption to the antitrust laws was established by the Supreme Court in Parker v. Brown, 317 U.S. 341, 63 S. Ct. 307, 87 L. Ed. 315 (1943) (Sherman Act does not apply to anticompetitive restraints imposed by the states "as an act of government") and was developed by such later cases as Town of Hallie v. City of Eau Claire, 471 U.S. 34, 105 S. Ct. 1713, 85 L. Ed. 2d 24 (1985) and, most recently, City of Columbia v. Omni-Outdoor Advertising, ___ U.S. ___, 111 S. Ct. 1344, 113 L. Ed. 2d 382 (1991).
In Town of Hallie, the petitioners, four unincorporated Wisconsin townships, sought injunctive relief against respondent, the City of Eau Claire, alleging that the City had violated the Sherman Act by acquiring a monopoly over sewage treatment services in two counties and by tying the provision of sewage treatment services to the provision of sewage collection and transportation services. The Supreme Court held that the respondent's anticompetitive activities were protected by the state action exemption to the antitrust laws. "[T]o obtain exemption, municipalities must demonstrate that their anticompetitive activities were authorized by the State `pursuant to state policy to displace competition with regulation or monopoly public service'." Id. 471 U.S. at 39, 105 S.Ct. at 1716 (quoting Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 412, 98 S. Ct. 1123, 1136, 55 L. Ed. 2d 364 (1978) (opinion of Brennan, J.)).
Most recently, in Omni Outdoor Advertising, the Supreme Court rejected a "conspiracy exception" to the state action exemption. It stated: "[W]e reaffirm our rejection of any interpretation of the Sherman Act that would allow plaintiffs to look behind the actions of state sovereigns to base their claims on `perceived conspiracies to restrain trade', Hoover [v. Ronwin], 466 U.S. [558], at 580 [104 S. Ct. 1989, 2001, 80 L. Ed. 2d 590 (1984)]. We reiterate that, with the possible market participant exception, any action that qualifies as state action is `ipso facto ... exempt from the operation of the antitrust laws,' id., at 568 [104 S.Ct. at 1995]." Id. ___ U.S. at ___, 111 S.Ct. at 1535. Thus, if the action of the defendants in the instant case qualifies as "state action", even a claim for injunctive relief must be dismissed.
The amended complaint alleges at paragraph 2:
Defendant LEHIGH-NORTHAMPTON AIRPORT AUTHORITY ("Airport Authority") is a municipal authority organized under the laws of the Commonwealth of Pennsylvania having its principal *682 place of business at Allentown, Pennsylvania. The Airport Authority is the owner and operator of the Allentown-Bethlehem-Easton International Airport, commonly known as "A.B.E."
The plaintiff argues that the Municipality Authorities Act of 1945, Pa.Stat.Ann. tit. 53, §§ 301 et seq. is the enabling statute under which the Airport Authority exists. Pa.Stat.Ann. tit. 53, § 302(a) defines "Authority" thus: "a body politic and corporate, created pursuant to this act or pursuant to the `Municipality Authorities Act of 1935' repealed hereby." Pa.Stat.Ann. tit. 53, § 306 A(a)(3) sets forth the purposes and powers of Authorities to include airports. That section reads:
The Authority shall be for the purpose of acquiring, holding, constructing, financing, improving, maintaining and operating, owning, leasing, either in the capacity of lessor lessee, projects of the following kind and character:
....
(3) transportation, marketing, shopping, terminals, bridges, tunnels, flood control projects, highways, parkways, traffic distribution centers, parking spaces, airports, and all facilities necessary or incident thereto; .... (Emphasis supplied).
Pennsylvania, however, has not left the powers of its municipal authorities unlimited. Pa.Stat.Ann. tit. 53, § 306 A(b)(2) concerns the desire to foster competition in the Commonwealth and reads in pertinent part:
This section is subject to the following limitations:
....
(2) The purpose and intent of this act being to benefit the people of the Commonwealth by, among other things, increasing their commerce, health, safety and prosperity, and not to unnecessarily burden or interfere with existing business by the establishment of competitive enterprises, none of the powers granted by this act shall be exercised in the construction, financing, improvement, maintenance, extension or operation of any project or projects which in whole or in part shall duplicate or compete with existing enterprises serving substantially the same purposes....
At paragraph 48 of the amended complaint, the plaintiff alleges: "The Airport Defendants have entered into an unlawful combination, conspiracy and agreement with Dynair [Fueling, Inc.] and others to unreasonably restrain trade in the provision of ground-based aviation support services by FBOs at A.B.E. Airport...." The plaintiff further alleges that "Dynair, operating on behalf of the Airport Authority, will be the only FBO at A.B.E. as of March 1, 1990. Accordingly, Dynair and the Airport Authority will have a total monopoly on FBO services at A.B.E. as of March 1, 1990." (Amended Complaint, ¶ 49).
As the Supreme Court of Pennsylvania stated in Thompson Appeal, 427 Pa. 1, 233 A.2d 237 (1967) with regard to Pa.Stat.Ann. tit. 53, § 306 A(b)(2): "As we read the proviso relied upon by appellants its primary purpose is to protect businesses which will be competing with the condemnor's [Rostraver Township Airport Authority's] operations...." Id. at 4, 233 A.2d 237. According to the allegations in the amended complaint, the Airport Authority, in concert with Dynair Fueling, Inc., is alleged to be competing with the plaintiff in the provision of ground-based aviation support services.
We must keep in mind that at this early stage we have before us only a motion to dismiss and that the standard is quite liberal. "[A]ll allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. [Citations omitted]." Sturm, 835 F.2d at 1011. We believe that, in light of this liberal standard, amendment of the complaint to include a prayer for injunctive relief would not be improper. Given Pennsylvania's limitation of the activities of municipal authorities, as found in Pa.Stat.Ann. tit. 53, § 306 A(b)(2), we believe that the plaintiff has managed to avoid application of the state action exemption to the antitrust laws, at least at this point. We shall, therefore, permit the *683 plaintiff to amend its complaint within the next twenty-one (21) days, to expressly seek injunctive relief under the Sherman Act if they wish. Whether the relevant market and other elements of such a claim can ultimately be proven is, of course, another matter.
COUNT 3 RICO, 18 U.S.C.A. § 1962(a)
The plaintiff does not contest the dismissal of the third cause of action, the alleged RICO violation of 18 U.S.C.A. § 1962(a). See Answer of Plaintiff, Northeast Jet Center, Ltd., to Defendants' Motion to Dismiss the First Amended Complaint, at 36 n. 18. Accordingly, we shall dismiss it. The remaining RICO theories under subsections (b), (c) and (d) will be treated next in this opinion.
COUNT 4 RICO, 18 U.S.C.A. § 1962(b)
The defendants maintain that the plaintiff has failed to plead this RICO claim properly. 18 U.S.C.A. § 1962(b) (West 1984) reads:
It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.
The "enterprise" here is alleged to be the plaintiff Northeast Jet, Ltd. ("NEJ"). Paragraph 62 of the amended complaint reads:
NEJ is and was an `enterprise' within the meaning of 18 U.S.C. §§ 1961(b) and (d), the activities of which affect interstate commerce within the meaning of 18 U.S.C. § 1962.
As to the particular actions taken by the defendants with regard to the enterprise, the plaintiff alleges the following:
63. Defendants Airport Authority, Yohe, and Wartell knowingly devised, participated, and/or concealed a scheme to defraud NEJ and others of its business and property by misrepresenting to NEJ and others that NEJ was in default of its lease, by attempting to prevent NEJ from obtaining FAA certification, by preventing NEJ from obtaining financing to expand its business, by luring and attempting to lure away NEJ's customers, by falsely disparaging NEJ's adequacy and reliability as an FBO, and by undertaking other acts in furtherance of the scheme to defraud.
....
65. As a result of their racketeering activities, defendants Airport Authority, Yohe, and Wartell conspired to, within the meaning of 18 U.S.C. § 1962(d), and did, acquire and maintain an interest in, or control of, NEJ in violation of 18 U.S.C. §§ 1962(b) and (d). In particular, as a result of defendants' racketeering activities in furtherance of their scheme to defraud, defendants acquired NEJ's facilities for much less than their actual worth.
We do not understand how any of these actions can amount to the acquisition of an "interest" in the "enterprise", plaintiff Northeast Jet, Ltd. As far as we can discern, the plaintiff here only alleges that a campaign of misrepresentation and disparagement compelled the plaintiff to sell off some of its property at an undesirable price. No acquisition of an "ownership interest" is alleged. We shall, therefore, grant without prejudice the defendants' motion to dismiss insofar as it pertains to the plaintiff's cause of action based upon 18 U.S.C.A. § 1962(b). If the plaintiff can properly allege a cause of action under this section of the RICO statute, it may do so by amendment, but this count of the amended complaint is deficient as it now stands.[4]
COUNT 5 RICO, 18 U.S.C.A. §§ 1962(c) & (d)
18 U.S.C.A. § 1962(c) (West 1984) reads:
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of *684 which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
Under 18 U.S.C.A. § 1961(4) (West 1984), "enterprise" is defined as including "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity; ..."
In the amended complaint, the plaintiff alleges the "enterprise" required by 18 U.S.C.A. § 1962(c) as follows, in paragraph 69:
69. Defendants Airport Authority, Yohe, and Wartell are an association in fact, sharing a common purpose, utility, and identifiable structure in that the Airport Authority operates the business that permits Yohe, its Director, and Wartell, its Chairman of the Board, the control and authority to devise and perpetrate its scheme to defraud NEJ and others. This association in fact was thus an `enterprise' within the meaning of 18 U.S.C. §§ 1961(4) and 1962(c) and (d).
In the case at bar, the "association in fact" is alleged to be the three defendants themselves: the Airport Authority, Yohe, the Director, and Wartell, the Chairman of the Board of Directors. Case law in this Circuit, however, makes it clear that this attempt at pleading an "enterprise" must fail. As the court stated in Newfield v. Shearson Lehman Brothers, 699 F. Supp. 1124 (E.D.Pa.1988):
In this Circuit, ... the RICO enterprise must be separate from the defendant. B.F. Hirsch v. Enright Refining Co., 751 F.2d 628, 633 (3d Cir.1984). Since Shearson is a corporation, which cannot act but through its agents, plaintiff has in effect pleaded the existence of an association-in-fact of a corporation with its agents, O'Brien and Naft. This will not satisfy the nonidentity requirement. Tarasi v. Dravo Corp., 613 F. Supp. 1235, 1237 (W.D.Pa.1985). As this Court has stated before `[t]o accept plaintiff's argument would be to read the enterprise requirement out of the statute entirely, whenever a corporate defendant is involved.' Gilbert v. Prudential-Bache Securities, Inc., 643 F. Supp. 107, 109 (E.D.Pa.1986). Plaintiff's RICO claim must be dismissed.
Id. at 1127.
The "enterprise" in the instant case has no separate existence apart from the very same defendants from whom the plaintiff seeks relief. Also, the "association in fact" which the plaintiff alleges consists of a body that can act only by and through its agents, such as Yohe and Wartell. These flaws are fatal to a successful pleading of a cause of action under 18 U.S.C.A. § 1962(c). We shall, therefore, grant the defendants' motion as it pertains to dismissal of the plaintiff's cause of action under 18 U.S.C.A. § 1962(c) and dismiss the same.
18 U.S.C.A. § 1962(d) (West Supp. 1991) reads: "It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section." In the amended complaint, the conspirators are alleged to be the three defendants: the Airport Authority, its Director, Yohe, and its Chairman of the Board of Directors, Wartell. "The majority rule is that conspiracy cannot lie against the corporate entity for the concerted action of its employees who violate RICO on its behalf. McLendon v. Continental Group, Inc., 602 F. Supp. 1492, 1510, 1512 (D.N.J.1985)." Lawaetz v. Bank of Nova Scotia, 653 F. Supp. 1278, 1287 (D.V.I.1987). See also Yancoski v. E.F. Hutton & Co., Inc., 581 F. Supp. 88, 97 (E.D.Pa.1983) (court rejected attempt to hold stockbroker and brokerage liable under 18 U.S.C.A. § 1962(d) on grounds that a corporation and its employees are not capable of a civil conspiracy).
Callan v. State Chemical Manufacturing Co., 584 F. Supp. 619 (E.D.Pa.1984), is cited by the plaintiff in support of its argument that the defendants should be held liable under 18 U.S.C.A. § 1962(d). Callan did hold a chemical company and its agents and officers liable for conspiracy in a civil RICO action. The Callan court did not cite to any authority within this Circuit, but *685 instead preferred to follow a Southern District of New York case, Mauriber v. Shearson/American Express, Inc., 567 F. Supp. 1231 (S.D.N.Y.1983), which it believed embodied the better view of this issue. Also, the Callan court noted that the complaint alleged a conspiracy of the company-defendant, its "employees, agents and others." Callan, 584 F.Supp. at 623 (emphasis in original). The court in Callan found that the plaintiff had thus adequately alleged a conspiracy under § 1962(d).
We find Callan distinguishable from the case at bar. There is no allegation of a conspiracy with "others" in the amended complaint here. Also, we prefer to follow the majority of courts who have declined to hold a corporation and its agents and employees liable for a civil conspiracy. We shall, therefore, grant that part of the defendants' motion to dismiss as it pertains to the defendants' liability under 18 U.S.C.A. § 1962(d) with prejudice.
COUNT 6 AIRWAY AND AIRPORT IMPROVEMENT ACT
The plaintiff argues that it is alleging that the Airport Authority's discriminatory conduct violates 49 U.S.C.A.App. § 2210 and that this violation of its rights under this federal law gives rise to a cause of action under 42 U.S.C.A. § 1983. The defendants seek dismissal of this cause of action claiming there is no private right of action under this statute.[5]
No court in the Third Circuit has as yet considered this issue. Rocky Mountain Airways, Inc. v. Pitkin County, 674 F. Supp. 312 (D.Colo.1987), however, addressed it and found that a plaintiff cannot bring an action under 42 U.S.C.A. § 1983 based upon 49 U.S.C.A.App. § 2210. The court in Rocky Mountain Airways first considered the language of the relevant statutes:
Section 2210 essentially provides that any airport receiving federal assistance for an airport development project must provide the Secretary of Transportation with written assurances that the airport `will be available for public use on fair and reasonable terms and without unjust discrimination....' Section 1983 gives a cause of action to every person within the jurisdiction of the United States who, under color of state regulation, is deprived of any rights secured by `the Constitution and laws' of the United States.
Id. at 317.
After discussing the general meaning of these statutes, the court opined:
Although Section 1983 encompasses more than merely civil rights and equal protection statutes, however, not every federal statute is privately enforceable via Section 1983. Specifically, a federal statute does not provide a private right of action enforceable under Section 1983 if either (1) Congress foreclosed private enforcement when it enacted the statute, or (2) the statute is not of `the kind' that creates enforceable rights under Section 1983. Middlesex County Sewerage Authority v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 19, 101 S. Ct. 2615, 2626, 69 L. Ed. 2d 435 (1981); Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28, 101 S. Ct. 1531, 1545, 67 L. Ed. 2d 694 (1981).
Id. at 317-318.
Under Middlesex County, 453 U.S. at 19-20, 101 S.Ct. at 2626, Congress will be found to have foreclosed a remedy under 42 U.S.C.A. § 1983 "when the federal statute itself provides other remedial devices or creates its own comprehensive scheme." Rocky Mountain Airways, 674 F.Supp. at 318. The Airway and Airport Improvement Act does create its own comprehensive administrative enforcement scheme. The Supreme Court has furnished little guidance on the issue of what makes a federal statute of "the kind" that creates rights enforceable under 42 U.S.C.A. § 1983. Id. In Rocky Mountain Airways, the court looked to a prior Supreme Court case, Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981), and stated:
*686 The Supreme Court in Pennhurst did not reach the question of whether the statute in that case gave rise to a cause of action under Section 1983. Pennhurst, 451 U.S. at 28, n. 21, 101 S.Ct. at 1545 n. 21. However, its discussion of the issue, and the fact that it even chose to note the distinction at all [between alleging that a state law prevents plaintiffs from receiving federal funds to which they were entitled and a claim that a state plan has not provided adequate `assurances' to the Secretary], substantially convince this court that a statute requiring `assurances' before federal funds are advanced to a state or local government is not `the kind' of statute which creates a right enforceable under Section 1983. As noted above, 49 U.S.C. § 2210 merely provides that the Secretary of Transportation must receive written `assurances' from an airport that certain standards and requirements will be met before federal funds may be advanced for an airport development project. As such, it clearly falls within the class of statutes referred to by the Supreme Court in Pennhurst. Therefore, since 49 U.S.C. § 2210 is not `the kind' of statute that creates rights enforceable under 42 U.S.C. § 1983, defendants' motion to dismiss with respect to the third claim for relief, will be granted.
Id.
We agree with the analysis set forth in Rocky Mountain Airways. Accordingly, the plaintiff's claim under the Airport and Airway Improvement Act, 49 U.S.C.A.App. § 2210, shall be dismissed.[6]
COUNTS 7, 8, 9, 10 AND 11 PENDENT STATE LAW CLAIMS
In its amended complaint, the plaintiff alleges intentional interference with business relations and prospective business relations (Counts 7 and 8); defamation (Count 10); and breach of a contractual duty of good faith dealing (Count 11). The plaintiff also brings a private cause of action under the Pennsylvania Municipality Authorities Act of 1945, 53 Pa.Stat.Ann. § 306 (Purdon Supp.1990) (Count 9). Since not all of the plaintiff's federal claims have been dismissed, we shall retain pendent jurisdiction over the plaintiff's state law claims. United Mine Workers of America v. Gibbs, 383 U.S. 715, 724, 86 S. Ct. 1130, 1137, 16 L. Ed. 2d 218 (1966).[7] The defendants' motion to dismiss these claims is, therefore, denied.
COUNTS 12 AND 13
Plaintiff denominates the twelfth and thirteenth causes of action "Respondeat Superior" and "Aiding and Abetting", respectively. These are theories of liability and not separate causes of action in their own right. They shall, therefore, be dismissed as well with prejudice although plaintiff is free to use such theories in conjunction with other causes of action to *687 the extent that they are relevant and properly pleaded.
NOTES
[1] An "FBO" provides storage, fueling, maintenance, repair and other ground-based aviation services to resident and transient aircraft using an airport.
[2] 42 U.S.C.A. § 1983 (West 1981) reads in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
[3] The plaintiff does not provide any statutory citation to the Federal Aviation Act. We believe that the plaintiff is referring to 49 U.S.C.A.App. § 1349 (West Supp.1991).
[4] Because we have decided to grant the defendants' motion to dismiss as it pertains to the plaintiff's claims under 18 U.S.C.A. §§ 1962(b) and (c) on the grounds stated above, we need not consider the defendants' challenge based on a failure to allege the "pattern of racketeering" requirement of the RICO statute or any of the alternative grounds raised by defendants.
[5] Defendants also seek dismissal on grounds of nonspecificity; lack of custom or policy; and qualified immunity for the individual defendants. Since we find that there is no private right of action under this act, we shall not discuss these other grounds for dismissal.
[6] The plaintiff cites to New York Airlines, Inc. v. Dukes County, 623 F. Supp. 1435 (D.Mass.1985) and to New England Legal Foundation v. Massachusetts Port Authority, 883 F.2d 157 (1st Cir. 1989) ("NELF") to support its argument that a private party can bring an action under 42 U.S. C.A. § 1983 for conduct violative of 49 U.S.C.A. App. § 2210. The District Court in Dukes County did allow such an action. It is not proper, however, to interpret NELF as does the plaintiff as the First Circuit's endorsement of such a finding. The issue before the First Circuit in NELF was whether a private right of action existed under 49 U.S.C.A.App. § 2210. The Circuit Court found that none existed and even cited Rocky Mountain Airways, 674 F. Supp. 312 in support of its holding: "Cf. Rocky Mountain Airways, Inc. v. Pitkin County, 674 F. Supp. 312 (D.Colo.1987) (airline has no private cause of action against county under 42 U.S.C. § 1983 for county's alleged violation of § 511)." NELF, 883 F.2d at 169. "Cf.", as all readers of the "Blue Book" know, means: "Cited Authority supports a proposition different from the main proposition but sufficiently analogous to lend support." The Harvard Law Association, A Uniform System of Citation (13th ed.1981).
We have found the reasoning of Rocky Mountain Airways to be more persuasive than that of Dukes County and, accordingly, have chosen to follow it in the instant case.
[7] 28 U.S.C.A. § 1367 (West Supp.1991) codifies under the name of "supplemental jurisdiction" the case law doctrines of "pendent" and "ancillary" jurisdiction. This section, however, applies to civil actions commenced on or after December 1, 1990. The original complaint in the instant case was filed on February 22, 1990. We have, therefore, not included a discussion of this statute in the foregoing opinion.
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767 F. Supp. 36 (1991)
UNITED STATES of America, Plaintiff,
v.
ALL FUNDS ON DEPOSIT IN ANY ACCOUNT AT CERTAIN FINANCIAL INSTITUTIONS HELD IN THE NAMES OF CERTAIN INDIVIDUALS, et al., Defendants.
No. CV-90-4117 (ADS).
United States District Court, E.D. New York.
June 17, 1991.
*37 Andrew J. Maloney, U.S. Atty., E.D.N.Y. by Paul Weinstein, Asst. U.S. Atty., Brooklyn, N.Y., for U.S.
Goltzer & Adler, New York City (Charles D. Adler, of counsel), for claimant Francisco A. Murillo.
*38 OPINION AND ORDER
SPATT, District Judge.
In United States v. Monsanto, 924 F.2d 1186 (2d Cir.1991) (en banc) ("Monsanto IV"), the Second Circuit held that in the context of a criminal forfeiture proceeding the Fifth and Sixth Amendments require an adversary, post-restraint, pretrial hearing as to probable cause to continue the restraint of assets needed to retain counsel of choice. Less than six months later, this Court is faced with the issue of whether the Monsanto IV safeguards are equally applicable in a civil forfeiture proceeding when the claimant is also the defendant in the related criminal action. For the reasons that follow, this Court is of the view that under the circumstances presented here, the rule enunciated in Monsanto IV applies equally in this case.
I. PRELIMINARY STATEMENT
Claimant Francisco A. Murillo ("Murillo"), moves pursuant to Rule 12 of the Admiralty Rules of the United States District Courts for the Southern and Eastern Districts of New York, as well as the Fifth and Sixth Amendments of the Constitution, for the release of $100,000 of funds previously attached by an ex parte order, so he can retain private counsel of his choice to defend him in the related ongoing criminal action.
The plaintiff United States of America ("the Government"), cross-moves pursuant to Fed.R.Civ.P. 56(a), for summary judgment, and also for a stay of this civil forfeiture proceeding pending a disposition of the criminal action, pursuant to 18 U.S.C. § 981(g) and 21 U.S.C. § 881(i). In addition, Murillo cross-moves to dismiss the action as to four of the six seized bank accounts, on the ground that they are located outside of the Eastern District of New York, and therefore the Court lacks subject matter jurisdiction over the res.
Oral argument was held by the Court on June 7, 1991 and June 14, 1991. On June 14, 1991, the Government waived any objection to the conceded untimeliness of Murillo's cross-motion to dismiss, relying solely on oral argument as to that issue.
II. FACTUAL BACKGROUND
By criminal complaint dated October 19, 1990, Murillo was charged in the Eastern District of New York (CR-90-1336-M) with knowingly and intentionally structuring financial transactions with a domestic financial institution (see 31 U.S.C. § 5324; 18 U.S.C. § 3551). Specifically, Murillo is charged with breaking down the amount of cash in excess of $10,000 and making cash deposits in the Bank of New York, Garden City, and other banks, such as Chemical Bank, of less than $10,000 with the purpose of causing the bank not to file a currency transaction report ("CTR") with respect to the deposits.
On or about May 16, 1991, a Grand Jury returned a 111-count indictment charging Murillo with conspiracy to illegally transfer funds out of the United States through structuring financial transactions to avoid CTR requirements in violation of 31 U.S.C. §§ 5313(a) and 5324(3). Murillo was arraigned by this Court on the indictment on June 7, 1991, entering a plea of not guilty.
In the interim, on December 3, 1990, the Government commenced this civil action pursuant to 18 U.S.C. § 981 and 31 U.S.C. § 5324, by filing a verified complaint in rem seeking the forfeiture of all funds contained in numerous bank accounts in the names of Murillo, his wife and his daughter. The Government alleges that these funds have been involved in or are the proceeds of Murillo's alleged criminal activities. On that same day, this Court issued, ex parte, a warrant for the arrest of the funds in rem, which attached all funds on deposit in the banks, including the following six accounts to which Murillo now asserts a claim:[1]
(1) Chemical Bank, 52 Broadway, New York, New York, Account No. 06311264, *39 in the name of Francisco and Minerva Murillo, in the amount of $7,780.51;[2]
(2) Chemical Bank, 52 Broadway, New York, New York, Account No. XXXXXXXXX, in the name of Francisco Murillo, in the amount of $8,409.87;
(3) Chemical Bank, 52 Broadway, New York, New York, Account No. XXXXXXXXX, in the name of Francisco and Minerva Murillo, in the amount of $17,442.87;
(4) Bank of New York, Stewart Avenue, Garden City, New York, Account No. XXXXXXXXX, in the name of Francisco Murillo, in the amount of $3,829.21;
(5) Long Island Savings Bank, 1150 Franklin Avenue, Garden City, New York, Account No. XXXXXXXXXXX, in the name of Francisco Murillo, in the amount of $10,575.34; and,
(6) Merrill Lynch, 2 Broadway, New York, New York, Account No. 84031253, in the name of Francisco and Minerva Murillo, in the amount of $290,731.20.
Murillo now seeks to have the restraining order vacated to the extent that he requests that $100,000 be released from the seizure to enable him to retain private counsel of his choice to defend the parallel criminal action.
III. DISCUSSION
As stated above, before the Court at this time are four motions: (1) Murillo's motion to dismiss as to four of the accounts for lack of subject matter jurisdiction; (2) The Government's motion for partial summary judgment; (3) Murillo's motion to have $100,000 of the seized funds released; and, (4) The Government's motion for a stay. Each of these motions is considered separately below.
(1) Murillo's Motion to Dismiss for Lack of Jurisdiction:
Murillo contends that since four of the six bank accounts seized are located in Manhattan, within the confines of the Southern District of New York, this Court lacks subject matter jurisdiction over the res with respect to those accounts. In support of his argument, Murillo relies on 28 U.S.C. § 1395(b), which provides as follows:
"(b) A civil proceeding for the forfeiture of property may be prosecuted in any district where such property is found" (emphasis supplied).
For the reasons that follow, the Court finds Murillo's argument to be without merit.
Pursuant to 28 U.S.C. § 1345, federal district courts have exclusive jurisdiction over all actions where the United States is a plaintiff. Furthermore, 28 U.S.C. § 1355 provides that original exclusive jurisdiction over all actions or proceedings for forfeiture rests with the district courts. Clearly, "subject matter" jurisdiction over the civil forfeiture of Murillo's bank accounts pursuant to 18 U.S.C. § 981 is proper in this Court.
The Court must next determine whether venue over the four accounts maintained in Manhattan is proper in this district. To make this determination, the Court turns to section 981(h) of Title 18 U.S.C., which specifically provides that,
"[i]n addition to the venue provided for in section 1395 of title 28 or any other provision of law, in the case of property of a defendant charged with a violation that is the basis for forfeiture of the property under this section, a proceeding for forfeiture under this section may be brought in the judicial district in which the defendant owning such property is found or in the judicial district in which the criminal prosecution is brought" (emphasis supplied).
Section 981(h), therefore, expressly creates a specific alternative for venue of civil forfeiture proceedings in addition to the venue provisions of 28 U.S.C. § 1395, governing venue of civil proceedings to recover fines, penalties or forfeiture in general. This section explicitly contemplates venue of civil forfeiture proceedings in the judicial *40 district where the parallel criminal action is prosecuted. As a practical matter, this avoids piecemeal forfeiture proceedings in district courts throughout the country where the criminal defendant owns or has an interest in property located outside of the district within which he or she is being criminally prosecuted.
Finally, the Court also notes that the venue provision relied upon by Murillo is couched in permissive terms"[a] civil proceeding ... may be prosecuted in any district where such property is found" and is not a mandatory direction. Accordingly, the Court finds that subject matter jurisdiction exists over this action and that venue of all six bank accounts is proper in the Eastern District of New York. As such, Murillo's motion to dismiss for lack of subject matter jurisdiction is denied.
(2) The Government's Motion for Partial Summary Judgment:
The Government moves for summary judgment pursuant to Fed.R.Civ.P. 56(a) as to the six bank accounts. Specifically, the Government alleges that these accounts were used in over one-hundred separate transactions allegedly structured so as to avoid currency transaction reporting requirements in violation of 31 U.S.C. § 5324.
To establish forfeitability under 18 U.S.C. § 981(a)(1)(A), the Government is required to demonstrate that "probable cause" exists for the forfeiture (see United States v. Banco Cafetero Panama, 797 F.2d 1154, 1160 [2d Cir.1986]), which entails a showing of "reasonable grounds, rising above the level of mere suspicion, to believe that certain property is subject to forfeiture" (United States v. Premises and Real Property at 4492 South Livonia Road, 889 F.2d 1258, 1267 [2d Cir.1989]). Once the Government establishes probable cause, the burden shifts to the claimant to prove that the factual predicates for forfeiture under the statute have not been met (see United States v. Premises and Real Property at 4492 South Livonia Road, supra, 889 F.2d at pp. 1267-68). Where the claimant fails to come forward with such evidence, "summary judgment may be granted for the government solely upon the basis of its showing of probable cause" (id. at p. 1267).
Upon a review of the submissions by the parties, the Court finds that questions of fact exist as to whether or not, and the extent to which, the funds on deposit represent fruits of illegal activity through structuring financial transactions to avoid the CTR requirements. Additionally, questions of fact exist as to whether Murillo in fact made the statements to Government agents, attributed to him, concerning the alleged structuring.
Contrary to the well-settled standard on a motion for summary judgment, the Government nonetheless seeks this Court to draw all reasonable inferences in favor of it, rather than the non-movant as is required (see Liscio v. Warren, 901 F.2d 274, 276 [2d Cir.1990] [court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion]; Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 [2d Cir.1986] [same], cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L. Ed. 2d 762 [1987]).
Accordingly, the motion of the Government for partial summary judgment is denied.
(3) Murillo's Motion to Seek the Release of Funds:
Murillo seeks the release of $100,000 from the six bank accounts in order to enable him to retain private counsel to defend the criminal action against him. He bases this application on Local Admiralty Rule 12 and pursuant to the Fifth and Sixth Amendments to the United States Constitution as construed by Monsanto IV.
The Government contends that Monsanto IV is inapplicable to a civil forfeiture proceeding and, in any event, Murillo has access to sufficient unattached funds to retain private counsel. Specifically, the Government alleges that it did not attach approximately $300,000 of Murillo's assets and that he is also an owner and officer of a plastics factory in Columbia.
*41 In Monsanto IV, the Second Circuit held that together, the Fifth and Sixth Amendments require an adversarial, post-restraint, pretrial hearing as to probable cause that (a) the defendant committed crimes that provide a basis for forfeiture, and (b) the properties specified as forfeitable in the indictment are properly forfeitable, to continue a restraint of assets (i) needed to retain counsel of choice and (ii) ordered ex parte pursuant to 21 U.S.C. § 853(e)(1)(A) (see 924 F.2d at p. 1203).
It is undisputed that Monsanto IV involved a purely criminal forfeiture proceeding decided within the context of a criminal action, in which the district court entered an ex parte restraining order, prohibiting defendant Monsanto from transferring his home or apartment pending the outcome of the criminal trial.
In a criminal forfeiture proceeding, upon the defendant's conviction all assets derived from the commission of the offenses are forfeited (see 21 U.S.C. § 853[a] ). There is a rebuttable presumption that upon conviction of the illegal activity, the property of the defendant is subject to forfeiture (see 21 U.S.C. § 853[d] ).
In contrast, in a civil forfeiture proceeding, like this one, forfeiture does not occur until after discovery and a plenary trial. As discussed above, in a civil forfeiture proceeding, the Government must establish that probable cause exists for the forfeiture (see United States v. Premises and Real Property at 4492 South Livonia Road, supra, 889 F.2d at pp. 1267-68).
The issue before the Court, therefore, is one of apparent first impression post-Monsanto IV, namely, whether the procedural safeguards and requirements set forth in Monsanto IV, apply equally in a civil forfeiture proceeding, when the civil forfeiture proceeding is based on the same allegedly illegal activities and conduct that form the basis of the related criminal action, and the claimant is also the defendant in the criminal case. This precise issue was presented before the Second Circuit in United States v. $876,915.00, 874 F.2d 104 (2d Cir.1989), which was decided while Monsanto III was pending before the Supreme Court. In $876,915.00, Judge Pratt expressly declined to decide the issue of whether Monsanto is equally applicable to civil forfeiture proceedings, in light of Monsanto III pending in the Supreme Court.
In the instant case, the situation is similar to that presented in $876,915.00, where a civil forfeiture proceeding has been brought parallel with a related criminal action, and the claimant in the civil case (who is also the defendant in the criminal case), seeks to vacate an ex parte restraining order that froze funds, in order to enable him to retain private counsel of his choice to defend the criminal action.
Although the $876,915.00 court refrained from deciding the issue and specifically stated that it was not setting precedent, Judge Pratt noted that the claimant in that civil forfeiture proceeding found "himself realistically in the identical situation we encountered in Monsanto: He desires to hire an attorney of his choice to defend him against the criminal charges, but is unable to do so because the government has tied up all his assets in a forfeiture proceeding, claiming that the assets are proceeds of the very criminal activity underlying the indictment against which he is attempting to defend himself in the first place" (874 F.2d at p. 107). This is the precise situation presented here.
Murillo contends that Monsanto IV applies in this case, since he is effectively in the same position as the defendant in Monsanto IV; that is, he seeks to use funds seized in the civil forfeiture case to retain private counsel to defend him in the related criminal case. The Government contends that Monsanto IV is inapplicable to civil forfeiture proceedings and applies only to criminal forfeiture proceedings. The Government further alleges that to afford the claimant in the civil suit the procedural safeguards of Monsanto IV, would abrogate the civil forfeiture proceeding since the ultimate issue to be determined later at trial is precisely whether "probable cause" exists for forfeiture.
Although the Court recognizes that $876,915.00, supra, is not to be used as *42 precedent, this Court finds the rationale of that decision to be persuasive. Murillo is the defendant in the parallel criminal action. The 111 counts in the indictment constitute the allegedly illegal activities giving rise to the potential forfeitability of the funds seized and sought in this case. Where the criminal defendant is also a claimant in the related civil forfeiture proceeding, which is based on the same allegedly illegal activities that form the basis of the criminal action, then, as Judge Pratt observed, he or she effectively shares the same position as the defendant in a criminal forfeiture proceeding brought directly in the context of a criminal action. Under both scenarios, the Government's seizure of all assets implicates the Fifth and Sixth Amendment rights of the defendant-claimant, when that person claims that the seizure is improperly denying him access to private counsel.
Accordingly, in light of the pronouncements set forth in Monsanto III and Monsanto IV, as well as the rationale in $876,915.00, this Court is of the view that under such circumstances, an adversarial post-restraint "probable cause" hearing must be held at this juncture.
However, this hearing shall only be conducted if the Government first fails to show that Murillo has an interest in, access to or possession of funds or assets other than those contained in the six bank accounts sufficient to enable him to retain private counsel. If the Government shows that Murillo has access to other sufficient unattached funds, then no hearing under Monsanto IV is to be held. Thus, the Government bears the initial burden to establish by a fair preponderance of the credible evidence that Murillo has access to or possession of unattached funds or assets so as to enable him to retain private counsel.
If Murillo has no such funds, then a hearing under Monsanto IV shall be conducted, at which time the Court may consider evidence that might otherwise be inadmissible under the Federal Rules of Evidence (see Monsanto IV, supra, 924 F.2d at p. 1203). At the Monsanto IV hearing, the Government must establish, by a fair preponderance of the credible evidence, that there is probable cause to forfeit the funds. The claimant then shall be afforded the opportunity to establish any defense to forfeiture (cf. United States v. Leasehold Interest in 121 Nostrand Avenue, 760 F. Supp. 1015, 1028-29 [E.D.N.Y.1991] [Weinstein, J.] [scope of interim pre-seizure hearing includes opportunity to present defenses]).
(4) Stay of the Civil Forfeiture Proceeding:
Relying on this Court's decision in United States v. Leasehold Interests in 118 Avenue D, 754 F. Supp. 282 (E.D.N.Y. 1990), the Government seeks a stay of this action pending a disposition of the related criminal action, pursuant to 18 U.S.C. § 981(g) and 21 U.S.C. § 881(i). As stated in Leasehold Interests in 118 Avenue D, supra, however, "mere conclusory allegations of potential abuse or simply the opportunity by the claimant to improperly exploit civil discovery ... will not avail on a motion for a stay" (754 F.Supp. at p. 287 [emphasis in original]). Here, the Government fails to point to any specific discovery request or abuse that has taken place or any other compelling reason why the forfeiture action should be stayed at this time. In addition, since the Court has ordered the hearing as set forth above, discovery should not be stayed.
Accordingly, the Government having failed to establish good cause in support of its application for a stay, the motion is denied.
IV. CONCLUSION
Based upon the foregoing, the motions are decided as follows:
1. The motion of the claimant Francisco Murillo to dismiss the action as to four of the six bank accounts for lack of subject matter jurisdiction, is denied.
2. The motion of the Government for partial summary judgment is denied.
3. The motion of the claimant Francisco Murillo for a hearing pursuant to Monsanto IV, is granted, in part. The issues to be *43 determined by the hearing are as follows: (i) whether the claimant has an interest in, possession of or access to funds and/or assets other than those contained in the six seized bank accounts sufficient to permit him to retain private counsel for the defense of the related criminal action; and, if not, then (ii) whether there exists probable cause to believe that $100,000 of the restrained assets represent the proceeds of the offenses that are the subject of the criminal action; and, if so, then (iii) whether the defendant has any defense to forfeiture. If the Government establishes that Murillo has access to funds or assets other than those seized, there shall be no Monsanto IV hearing.
The matter is hereby referred to United States Magistrate Judge Michael L. Orenstein, to conduct a hearing and to prepare a report and recommendation to this Court on these issues.
4. The motion of the Government for a stay of this action in its entirety pending a disposition of the criminal action, is denied, with leave to renew at a later time if the circumstances so warrant.
SO ORDERED.
NOTES
[1] Other bank accounts are also the subject of this action, but claimant Francisco Murillo asserts no claim over them.
[2] The amounts indicated are the amounts that were on deposit at the time the accounts were frozen.
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