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https://www.courtlistener.com/api/rest/v3/opinions/1610153/ | 865 So.2d 248 (2004)
STATE of Louisiana, Appellee
v.
Jerry Barrioshena ELZIE, Appellant.
No. 37,920-KA.
Court of Appeal of Louisiana, Second Circuit.
January 28, 2004.
*249 Anita D. McKeithen, Shreveport, for Appellant.
Paul J. Carmouche, District Attorney, Edwin L. Blewer, J. Thomas Butler, Assistant District Attorneys, for Appellee.
Before WILLIAMS, CARAWAY & PEATROSS, JJ.
PEATROSS, J.
Defendant, Reverend Jerry B. Elzie, was charged with molestation of a juvenile on two grounds: by the use of force, menace and psychological intimidation and by the use of influence by virtue of a position of control and supervision over the juvenile, J.A.[1], in violation of La. R.S. *250 14:81.2(A)[2]. He was tried by a six-person jury and convicted as charged. Defendant was sentenced to serve 12 and a half years imprisonment at hard labor. He now appeals his conviction and sentence. For the reasons stated herein, we affirm.
FACTS
The victim, J.A., was born on October 10, 1980. Defendant is J.A.'s father and a reverend at a church in Shreveport, Louisiana. In the fall of 1995, when J.A. was 15 years old, she began using Defendant's address in order to attend Woodlawn High School.[3] During this time, Defendant and J.A. spent time alone at various locations, including Defendant's home. Ultimately, Defendant had sex with J.A. at least three times during the fall of 1995, twice at his office in his residence and once at his church. Defendant ordered J.A. to have sex with him each time. In two of the sexual acts between Defendant and J.A., Defendant rubbed J.A. with oil and had candles burning in the room. J.A. questioned Defendant as to why he ordered her to have sex with him and told him that she did not want to have sex with him, crying throughout one of the acts. Defendant explained to J.A. that others had "done it" and she also had to "do it" to get the blessings of God. J.A. did not tell anyone what happened to her because Defendant told her that nobody would believe her they would believe him.
After a few weeks, having become upset with J.A.'s reluctance to continue having sex with him, Defendant took J.A. by a store he owned and showed her a bed with candles surrounding the bed. Defendant told her, "This is what you missed out on. This was all for you." Defendant then took J.A. back to her home; and, while she was being dropped off, J.A. exclaimed to her mother, in the presence of Defendant, that she did not want to have sex with Defendant anymore. In response to J.A.'s accusation, Defendant told the victim, "Do you see what you have done. Do you know this will take me to jail?" J.A. never returned to Defendant's household. Shortly after this encounter, the authorities were notified.
In November 1995, Lieutenant Mickey Lowe of the juvenile and sex crimes unit with the Shreveport Police Department received a call from a counselor at Woodlawn High School regarding a 15-year-old girl, J.A., who complained that her father had ordered her to have sexual intercourse with him on at least two different occasions. J.A. said that one incident took place at Defendant's office. The other took place in a room in Defendant's church. Lieutenant Lowe began the investigation by interviewing J.A. He also arranged for J.A. to have a medical examination with Dr. Ann Springer at LSU Medical Center. Dr. Springer, an expert *251 in pediatric medicine and evaluation of child sexual abuse, examined J.A. on November 30, 1995. J.A.'s exam was "normal"it neither proved nor disproved sexual abuse.
In an interview conducted by Detective Carolyn Eaves Deal, Defendant denied any intimate sexual relationship with J.A.'s mother, denied that J.A. was his daughter and denied the allegations of sexual abuse. Until J.A.'s accusation of what Defendant had done to her, Defendant had never denied to J.A. that she was his daughter. Specifically, Defendant related that J.A.'s mother caused problems for him when she was pregnant by publicly claiming in church that he was "her man," and contacting his wife about her claim. Defendant claimed that J.A.'s mother then asked Defendant and his wife to be J.A.'s godparents, to which they agreed. Further, Defendant related to Detective Deal that J.A.'s mother approached him about letting J.A. use his address so that she could attend Woodlawn High School. Defendant explained that J.A.'s accusations of sexual abuse were because she was angry at him for having spanked her as punishment for bad grades. Moreover, Defendant told Detective Deal that his wife and daughters could confirm that he was never alone with J.A. Due to the lack of evidence to substantiate J.A.'s claims or to determine that Defendant was lying about his relation to J.A., the case was closed in December 1995. Detective Deal did not have the capability to take DNA samples in 1995.
The case was reopened in early 1998 when the Caddo Parish District Attorney's Office's newly formed screening section reviewed the case. A search warrant was obtained to collect epithelial cells from the cheek lining of Defendant and several other persons, in order to establish paternity. The collection was conducted by Detective Deal in accordance with instructions given by Connie Brown ("Brown") of the North Louisiana Crime Lab regarding the proper collection procedures. Detective Deal wore the same gloves throughout the collection process. Epithelial cell samples were also taken from J.A. and her mother at the police station.
After testing the samples, it was determined that J.A. was indeed the daughter of Defendant. Further, it was also determined that Defendant was the father of other children with two other girls. The police discovered that in 1983, Defendant fathered a child with one of the girls, who is his adoptive daughter, while she was under the age of consent and the other girl told police that she had sex with Defendant numerous times before she came into the age of consent and later gave birth to two of Defendant's children.
Based on the discovery of this evidence that Defendant had lied to the police and that he had shown a pattern of behavior of having sex with underage girls, one being his adoptive daughter, Defendant was charged with molestation of a juvenile, his daughter, J.A. At trial, J.A. testified against Defendant, describing Defendant's actions. On cross-examination, J.A. testified that she made some bad grades in September at Woodlawn High School. It was also brought out that Defendant had spanked J.A. because of those grades. J.A. explained that her bad grades were in response to what her father was doing to her. She steadfastly denied concocting the accusations against her father because she was angry about the spanking.
The State presented not only the testimony of J.A., but also that of the investigating officers and Dr. Springer. Dr. Springer testified that, during her exam of J.A., J.A. told Dr. Springer that her biological father had sex with her two times. As previously stated, J.A.'s exam was "normal"it neither proved nor disproved *252 sexual abuse; but Dr. Springer explained at trial that, in 80 percent of the cases in which penetration is known to have occurred with a female victim, the physical exam will still produce normal results. Dr. Springer further explained that it is normal for an abused child to "act out," and it is particularly normal for an abused child to have difficulty in school. According to Dr. Springer, the latter is a "red flag." In her conclusion, Dr. Springer opined that this case was typical of the findings seen when a child is sexually molested and penetrated.
Connie Larkins also testified for the State. Ms. Larkins is the adoptive daughter of Defendant. When she was age 14 or 15, she gave birth to a son. It was later determined that Defendant was the father of Ms. Larkins' child. Tracy Lidette Smith also testified for the State. She was a childhood friend of Ms. Larkins; and, when she was younger, she would go to Defendant's house to play and she attended Defendant's church. Ms. Smith testified that she began having sex with Defendant when she was a 14-year-old virgin. Defendant had sex with Ms. Smith about three times a week while she was underage. He fathered her two children.
Brown, an expert in the field of DNA analysis, testified that there was no contamination of any of the DNA samples taken by Detective Deal in this case. According to the tests of the samples performed by Brown, there is a 99.99 percent probability that Defendant is J.A.'s father, the father of Ms. Smith's two children and the father of Ms. Larkins' child.
After the conclusion of the trial, Defendant was convicted as charged of molestation of a juvenile on two grounds: by use of force, menace and psychological intimidation and by the use of influence by virtue of a position of control and supervision over J.A. After the conviction, Defendant filed a motion for post-verdict judgment of acquittal and/or a motion for a new trial. His motion asserted that the evidence did not reasonably support the guilty verdict. Defendant also argued that a new trial should be granted because the verdict was contrary to law and evidence and the ends of justice would not be served because his defense trial counsel was ineffective. After a hearing and arguments, the motions were denied by the trial court.
On December 30, 2002, a sentencing proceeding was held. Defendant was allowed to address the trial judge. Before sentencing Defendant, the trial judge read the facts of the crime into the record. In particular, the trial judge noted that two sexual acts with J.A. were performed as a religious ritual wherein she was rubbed with an oil and laid near a cross and lighted candle before intercourse. The trial judge also noted that Defendant had a history of taking advantage of underage girls by having sex with them, using his position as a minister to entice these young girls to satisfy his sexual desires. The trial judge found it particularly reprehensible that Defendant's conduct in this case involved his own natural daughter.
Defendant was then sentenced to serve 12 and a half years imprisonment at hard labor, with credit for time served. Subsequently, Defendant timely filed a motion to reconsider sentence, which was denied. Defendant now appeals, raising the following assignments of error (verbatim):
1. The trial court erred by convicting the defendant without sufficient evidence to do so;
2. The trial court erred by denying defendant's motion for a new trial; and,
3. The trial court erred by imposing an excessive sentence.
*253 DISCUSSION
Sufficiency of the Evidence
Defendant argues that the evidence presented at trial was not sufficient to convict him of the crime charged. He asserts that J.A.'s physical examination did not support her allegation of sexual activity. He further contends that J.A.'s trial testimony was inconsistent with her statement to the examining physician, Dr. Springer, that she had sex with Defendant two times. Defendant further argues that the DNA evidence was unreliable because Detective Deal did not change gloves between taking swabs from at least 18 individuals; and, thus, the evidence could have been contaminated. He asserts that no rational trier of fact could have found him guilty beyond a reasonable doubt. We disagree.
The question of sufficiency of the evidence is properly raised by a motion for post-verdict judgment of acquittal. La. C.Cr.P. art. 821; State v. Gay, 29,434 (La. App.2d Cir.6/18/97), 697 So.2d 642. When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La. App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.
The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writs denied, 00-3070 (La.10/26/01), 799 So.2d 1150, 01-2087 (La.4/19/02), 813 So.2d 424. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La. App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.
The testimony of the victim alone is sufficient to convict a defendant. State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490. This is equally applicable to the testimony of sexual assault victims. State v. Rives, 407 So.2d 1195 (La.1981); State v. Thomas, 30,490 (La.App.2d Cir.4/8/98), 711 So.2d 808, writ denied, 99-0331 (La.7/2/99), 747 So.2d 8; State v. Free, 26,267 (La.App.2d Cir.9/21/94), 643 So.2d 767, writ denied, 94-2846 (La.3/10/95), 650 So.2d 1175; State v. Standifer, 513 So.2d 481 (La.App. 2d Cir.1987). Indeed, such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant. State v. Ponsell, supra; State v. Watson, 32,203 (La.App.2d Cir.8/18/99), 743 So.2d 239, writ denied, 99-3014 (La.3/31/00), 759 So.2d 69; State v. Turner, 591 So.2d 391 (La.App. 2d Cir. 1991), writ denied, 597 So.2d 1027 (La. 1992).
The essential elements of the crime of molestation of a juvenile, each of which *254 the prosecution must prove beyond a reasonable doubt, are (1) the accused was over the age of seventeen, (2) the accused committed a lewd or lascivious act upon the person or in the presence of a child under the age of seventeen, (3) the accused was more than two years older than the victim, (4) the accused had the specific intent to arouse or gratify either the child's sexual desires or his own sexual desires and (5) the accused committed the lewd or lascivious act by use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm or by the use of influence by virtue of a position of control or supervision over the juvenile. State v. LeBlanc, 506 So.2d 1197 (La.1987); State v. Breaux, 02-382 (La. App. 5th Cir.10/16/02), 830 So.2d 1003.
After viewing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have found the essential elements of Defendant's crime proven beyond a reasonable doubt. The State proved the ages of both J.A. and Defendant at the time of the sexual encounters. Through J.A.'s testimony, the State proved that Defendant committed the act upon J.A. with the specific intent to satisfy his own sexual desires while he used intimidation and control to force her to have sex with him. This testimony alone supports Defendant's conviction and was sufficient to persuade the jury to convict Defendant. Contrary to Defendant's assertions, it is not necessary for the State to introduce any medical, scientific or physical evidence to prove the commission of the offense by him. The jury's decision to accept the testimony of J.A. in whole or in part will be accorded great deference and we will not disturb it on appeal. We conclude that there was sufficient evidence to find Defendant guilty; and, consequently, Defendant's first assignment of error is without merit.
Ineffective Assistance of Counsel
Defendant argues that the trial court erred in denying his motion for a new trial because he had ineffective assistance of counsel. He contends that no defense was presented and his defense counsel failed to rebut several of the claims made against him. Further, Defendant asserts that, contrary to his trial counsel's statements during oral arguments, no evidence was presented regarding Defendant's loving household. Defendant also argues that his trial counsel erred in failing to call J.A.'s mother as a witness and in failing to call witnesses to testify regarding J.A.'s mother's change in demeanor and threats against Defendant after their love affair ended, despite his trial counsel's statement in oral arguments that such evidence would be presented. He further argues that his trial counsel incorrectly told the jury that Dr. Springer's opinion was that the victim's examination was normal. Finally, Defendant contends that his trial counsel erred in failing to call any witnesses to testify that the DNA samples could have been contaminated because Detective Deal failed to change gloves between the individuals from whom she received a DNA sample. Defendant concludes that these facts clearly show that he suffered some injustice and his motion for new trial should have been granted. We do not agree.
As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the trial court than by appeal. This is because post-conviction relief creates the opportunity for a full evidentiary hearing under La.C.Cr.P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App.2d Cir.6/21/00), 764 So.2d 1164. A motion for new trial, however, is also an accepted vehicle to *255 raise such a claim. Id. When the record is sufficient, we may resolve the issue of ineffective assistance of counsel on direct appeal in the interest of judicial economy. See State v. Ratcliff, 416 So.2d 528 (La. 1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673; State v. Smith, 25,841 (La.App.2d Cir.2/23/94), 632 So.2d 887.
The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). The defendant bears the burden of proving that certain acts by his counsel were deficient and that this deficiency led to an unreliable outcome. Id.
A claim of ineffectiveness of counsel is analyzed under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, to establish that his attorney was ineffective, a defendant must show that his counsel's performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel's representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra; State v. Roland, 36,786 (La.App.2d Cir.6/5/03), 850 So.2d 738; State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991). The assessment of an attorney's performance requires his conduct to be evaluated from counsel's perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel's judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. Roland, supra; Moore, supra.
Second, a defendant must show that his counsel's deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, supra. A defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that, but for counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; Roland, supra; State v. Pratt, 26,862 (La. App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9.
Based partly on his claim of ineffective assistance of counsel, Defendant in this case filed a motion for new trial and was afforded a hearing. The record contains sufficient evidence to address Defendant's allegations here; however, we find that Defendant's claim of ineffective assistance of counsel is unsubstantiated.
Defendant was represented by two attorneys at trial. Contrary to Defendant's allegations, his trial team did present a defense, which was that the State failed to prove its case. The record shows that Defendant's trial team questioned all witnesses and diligently pursued its theory throughout the case, alleging that J.A. made up the story as revenge against Defendant. Moreover, failing to call certain witnesses does not itself establish ineffective assistance of counsel. See Willars, supra. Defendant cannot show that his defense counsel was deficient or that, even if his defense counsel was deficient, but for his defense counsel's errors, there is a reasonable probability the outcome of the trial would have been different.
*256 Defendant's allegations of attorney error are vague and touch merely upon defense counsel's strategy and what hypothetically defense counsel should have done at trial. We note that Defendant does not even specify which of his two defense attorneys was allegedly ineffective or whether it is argued that both attorneys were ineffective. The failure to present defense witnesses was a tactical and strategic decision, not an example of ineffective assistance of counsel, and we will give great deference to trial counsel in these decisions. At the hearing on the motion for new trial, Defendant argued in broad general terms about his ineffective assistance of counsel, without providing any evidence of this claim. Defendant has failed to show that he was prejudiced by defense counsel's trial strategy or that he was deprived of a fair trial. The record does not support Defendant's claims of ineffective assistance of counsel; and, thus, this assignment of error is without merit.
Defendant's Sentence
Defendant notes that the maximum sentence for the instant offense is 15 years, with or without hard labor. He argues that his 12 and a half year hard labor sentence is excessive. Although the trial court considered his previous criminal history, which included two prior felonies, Defendant contends that the court failed to recognize that he has had no criminal history since 1976. Defendant asserts that one of his felonies is over 37 years old and the other is more than 26 years old; and, consequently, his sentence is excessive. We do not agree.
La. R.S. 14:81.2 C provides:
Whoever commits the crime of molestation of a juvenile when the offender has control or supervision over the juvenile shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than one nor more than fifteen years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with Code of Criminal Procedure Article 893.
The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. The record must show that the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied, 521 So.2d 1143 (La.1988). There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979.
*257 Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); Bradford, supra.
In the case sub judice, the record contains a complete and accurate articulation of the factual basis for Defendant's sentence, setting forth the criteria the court considered in sentencing Defendant in compliance with La.C.Cr.P. art. 894.1. The record adequately indicates that the trial judge considered the circumstances of this case and of Defendant, reciting the factors he considered before imposing sentence, including Defendant's lengthy personal statement, his age, the details of his criminal history[4] and the content of the multiple letters sent to the court on his behalf. A pre-sentence investigative report was prepared and filed into the record. Defendant has exhibited a history of a predilection for sex with underage girlsa nature which could easily be described as predatory. In summary, the trial judge concluded that Defendant was a third-felony offender and used his position as a minister to seduce underage girls under the pretense that it was sanctioned by his religion. The fact that these types of relationships produced children was also considered.
Defendant's 12 and a half year hard labor sentence is neither grossly out of proportion to the seriousness of the offense, nor is it a purposeless and needless infliction of pain and suffering. He did not receive the maximum sentence of imprisonment for this heinous, loathsome crime and no fine was imposed. When the crime and punishment are viewed in light of the harm done to society, and particularly to J.A., Defendant's sentence does not shock the sense of justice and it is not constitutionally excessive under the facts and circumstances of this case. Defendant's final assignment of error is without merit.
CONCLUSION
For the foregoing reasons, the conviction and sentence of Defendant, Reverend Jerry B. Elzie, are affirmed.
AFFIRMED.
NOTES
[1] The victim's initials are used because of confidentiality requirements applicable to the instant case under La. R.S. 46:1844(W).
[2] La. R.S. 14:81.2(A) defines molestation as follows:
Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age shall not be a defense.
[3] Before this time, J.A. was not brought up in Defendant's home. Defendant's house was located within Woodlawn's school district. J.A. also used Defendant's address to ride the bus to school. J.A. lived with her mother, but used her father's address so that she could attend Woodlawn. J.A.'s mother lived in the Captain Shreve High School school district.
[4] In 1965, while in military service, Defendant was convicted by court martial of illegal carrying of a weapon and received a three-month hard labor sentence. In 1965, he was also convicted by court martial of house breaking or burglary in Fort Sam Houston and sentenced to serve one year at hard labor. In 1976, the defendant was convicted of a postal violation and sentenced to serve one year imprisonment at hard labor, two years execution, all but six months suspended, and given five years probation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610196/ | 739 F.Supp. 1138 (1990)
FERRARI S.P.A. ESERCIZIO FABRICHE AUTOMIBILI E CORSE
v.
Carl ROBERTS, d/b/a Roberts Motor Company.
No. CIV-2-88-73.
United States District Court, E.D. Tennessee, Northeastern Division.
April 27, 1990.
*1139 Cleary, Gottlieb, Steen & Hamilton (Jonathan I. Blackman and Lawrence B. Friedman, of counsel), New York City, Robin, Blecker, Daley & Driscoll (Albert Robin, of counsel), New York City, Baker, Worthington, Crossley, Stansberry & Woolf, Johnson City, Tenn. (Ed E. Williams III, Robert D. Van de Vuurst, of counsel), for plaintiff.
Shumate & Bowling (W.F. Shumate, Jr. and Bobby Bishop, Jr., of counsel), Richard S. Wirtz (pro hac vice), University of Tennessee College of Law, Knoxville, Tenn., for defendant.
MEMORANDUM OPINION
HULL, Chief Judge.
This is an action for unfair competition in which the plaintiff (Ferrari) alleges that its unregistered trademarks have been infringed by the defendant (Roberts).[1] The trademarks at issue are claimed in the exterior *1140 shapes and features of two of Ferrari's automobile models, the 365 GTB/4 (Daytona Spyder) and the Testarossa. Accused of infringing these alleged trademarks are two of Roberts' automobile models, the Miami Spyder and the Miami Coupe. For relief, Ferrari requests an injunction enjoining Roberts from manufacturing and marketing the Miami Spyder and the Miami Coupe, or any vehicle that imitates the bodies of the Daytona Spyder and the Testarossa; an equitable accounting; and an award of attorneys' fees. Proceeding under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and Tennessee common law, this case came on for trial without a jury on April 10, 1990. Based on all the evidence from the trial, the Court renders the following findings of fact and conclusions of law.
I.
Ferrari is the well-known manufacturer of widely acclaimed racing automobiles and grand touring cars. Based in Modena, Italy, the company intentionally limits production of its road cars, striving for an image of exclusivity. In 1989, for example, Ferrari produced 3,821 vehicles, shipping 853 of these to the United States. Ferrari markets its automobiles in North America through 43 authorized dealers.
Between 1969 and 1973, Ferrari produced an automobile known as the 365 GTB/4 Daytona. Of the approximately one thousand four hundred Daytonas built, most were close-bodied; i.e., coupes or berlinettas. Although approximately 100 were originally built as soft-top convertibles ("Spyders"), many berlinettas were later converted into Spyders. Because the vehicle at issue is the Daytona Spyder instead of the Daytona Berlinetta, this memorandum opinion refers to only the Spyder. Since the introduction of the Daytona Spyder, Ferrari has continuously produced mechanical parts and body panels and provided service to repair the vehicle. Daytona Spyders currently sell for one to two million dollars.
Introduced in 1984, the Testarossa continues to be manufactured by Ferrari to the present day. Ferrari has produced approximately 5,000 Testarossas since the vehicle's introduction. The entire production of the Testarossa is sold out for the next several years and the waiting period to receive one is typically five years. The sales price for a new Testarossa is approximately $230,000.00.
From his facility in Kingsport, Tennessee, Roberts conducts several business ventures, most of which relate to the automobile industry. One enterprise Roberts has engaged in since 1985 is the marketing of a vehicle currently known as the Miami Spyder. This automobile's exterior is virtually identical to the body of a vehicle constructed by Al Mardikian and Tom McBurnie and used on the popular television series "Miami Vice." The body of the Mardikian/McBurnie automobile is in turn virtually identical to the exterior of Ferrari's Daytona Spyder.
Roberts advertises his Miami Spyder in nationally published magazines catering to the automobile and replica automobile industries. In exchange for $15.00, a respondent to Roberts' advertisement receives a picture of the Mardikian/McBurnie automobile and an informational pamphlet showing the various components of the Miami Spyder. Although Roberts has constructed several "turnkey" Miami Spyders, the majority of them are sold as kits. The principal component of this kit is a one-piece body shell molded from reinforced fiberglass. This body is usually bolted onto the undercarriage of a Chevrolet Corvette. Roberts has sold approximately 80 Miami Spyders, shipping them in interstate commerce. In addition to the various components of the Miami Spyder's exterior, Roberts also offers for sale an interior package that essentially replicates the interior features of the Daytona Spyder. Depending on the components desired by the purchaser, the Miami Spyder costs between $8,500.00 and $50,000.00.
A more recent venture for Roberts is the marketing of an automobile known as the Miami Coupe. This car's existence also traces its roots to "Miami Vice." In 1986, Roberts supplied to the show's producers *1141 an automobile designed to perform the stunts for the Testarossa loaned to the program by Ferrari. Soon thereafter, Roberts decided to build and sell a vehicle whose appearance would imitate that of the Ferrari Testarossa. Roberts' design of the Miami Coupe requires the attachment of several molded fiberglass panels to the frame of a Pontiac Fiero. The Fiero is used as the "donor car" because its space frame allows easy installment of Roberts' body panels. Although Roberts has not yet completed a Miami Coupe, two units are currently in production. One of these vehicles has enough of its body panels attached to make it apparent that once completed, the exterior of the automobile would be virtually identical to the body of the Ferrari Testarossa. To be sure, the features and dimensions of the Miami Coupe's exterior (doors, bumpers, hood, front grill, exhaust pipes, etc.), differ from those of the Ferrari Testarossa only where it is dictated by the substructure of the donor car.
The two Miami Coupes in production are being built for individuals who have made respective deposits of $15,000.00 and $24,275.00. One buyer resides in Massachusetts and the other resides in Ohio. Roberts' advertisements for the Miami Spyder also invite inquiries about the Miami Coupe. In exchange for $15.00, an advertisement respondent receives an informational pamphlet for the Miami Coupe. On the cover of the pamphlet is a drawing of an automobile whose exterior appearance is essentially identical to that of the Ferrari Testarossa. Roberts has distributed several of these pamphlets in the mail.
II.
Roberts argues that the relief Ferrari seeks in this case is precluded by Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989). At issue in Bonito Boats was a state statute, Fla.Stat. § 559.94 (1987), which made it "`... unlawful for any person to use the direct molding process to duplicate for the purpose of sale any manufactured vessel hull ... made by another without the written permission of that other person.'" Id. at ___, 109 S.Ct. at 974, 103 L.Ed.2d at 130. Enacted to induce boat manufacturers to improve the designs of their boat hulls, the Florida statute "endow[ed] the original boat hull manufacturer with rights against the world, similar in scope and operation to the rights accorded a federal patentee." Id. at ___, 109 S.Ct. at 981, 103 L.Ed.2d at 139. More importantly, the Florida statute transcended federal patent law by conferring protection "... for an unlimited number of years to all boat hulls and their component parts, without regard to their ornamental or technological merit." Id. at ___, 109 S.Ct. at 982, 103 L.Ed.2d at 139-140. Indeed, "... even the most mundane and obvious changes in the design of a boat hull would trigger the protections of the statute." Id. at ___, 109 S.Ct. at 983, 103 L.Ed.2d at 141.
On review, the Supreme Court found that the Florida statute permitted the assertion of a substantial property right in an idea without regard for the "... careful protections of high standards of innovation and limited monopoly contained in the federal [patent law] scheme." Id. at ___, 109 S.Ct. at 982, 103 L.Ed.2d at 140. This conflicted with Supreme Court precedent precluding the states from offering patent-like protection to intellectual creations which would otherwise remain unprotected as a matter of federal law. See Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964). In sum, the Court in Bonito Boats concluded that the Florida statute "... substantially restrict[ed] the public's ability to exploit an unpatented design in general circulation, raising the specter of state-created monopolies in a host of useful shapes and processes for which patent protection has been denied or is otherwise unobtainable." Because this constituted an impermissible intrusion into a regulatory field exclusively restricted to the Congress, the Supreme Court held that the Florida statute was preempted by the Supremacy Clause, and affirmed the judgment *1142 of the Florida Supreme Court striking down the Statute.
This case does not involve a statute like the one at issue in Bonito Boats. Although earlier in this action Ferrari made a claim based on a similar statute, Tenn.Code Ann. § 47-50-111, that claim was abandoned after the publication of the decision in Bonito Boats. This case was tried solely on Ferrari's federal and common law claims of unfair competition. These kinds of actions encompass a wide spectrum of cases; claims similar to Ferrari's have been characterized previously as "misappropriation" Truck Equipment Service Co. v. Fruehauf Corp., 536 F.2d 1210 (C.A.8 1976), cert. den'd. 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976); "unprivileged imitation" Hartford House Ltd. v. Hallmark Cards, Inc., 846 F.2d 1268 (C.A.10 1988), cert. den'd 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 248 (1988); and "dilution" Ameritech, Inc. v. American Inf. Technologies Corp., 811 F.2d 960, 965 (C.A.6 1987). In this case, Ferrari requests that the exterior shapes and features of two of its automobiles be clothed in the type of protection typically accorded to trademarks. Even without a registered trademark, a manufacturer's product "... may have an image or look referred to as `trade dress' that is so distinctive as to become an unregistered trademark eligible for protection under the Lanham Act." Brunswick Corp. v. Spinit Reel Co., 832 F.2d 513, 517 (C.A.10 1987). Accordingly, the Lanham Act confers a right of action upon those claiming unfair competition for trade dress infringement. Kwik-Site Corp. v. Clear View Mfg., Inc., 758 F.2d 167 (C.A.6 1985).
Regardless of how this action is characterized, both state and federal authority hold that the essential element of Ferrari's infringement claim is the likelihood of confusion between its product and Roberts'. See, e.g., Men of Measure Clothing, Inc. v. Men of Measure, Inc., 710 S.W.2d 43, 48 (Tenn.App.1986) and Frisch's Restaurants, Inc. v. Elby's Big Boy, 670 F.2d 642, 647 (C.A.6 1982). The necessity of showing this factual element further distinguishes this case from Bonito Boats because the statute at issue in that case operated to provide relief "... without any showing of consumer confusion." Id. ___ U.S. at ___, 109 S.Ct. at 986, 103 L.Ed.2d at 145. Plainly, Bonito Boats is inapposite to the facts of this case and its governing law. Notwithstanding this conclusion, Roberts argues that the case stands for the broad proposition that the law of unfair competition as it relates to trademarks serves to protect only the consumer. This argument is based on nothing more than dicta within Bonito Boats and consequently possesses little persuasive value. Moreover, it stands in flat contradiction to the weight of authority in the appellate circuits. Indeed, our own Court of Appeals has stated
... trademark law now pursues two related goalsthe prevention of deception and consumer confusion, and more fundamentally, the protection of property interests in trademarks. Ameritech, Inc., supra at 964.
Consequently, this Court cannot agree with Roberts' narrow view of the law governing this case.
In addition to contesting the general principles involved in this case, Roberts more specifically contends that granting trademark protection to the exterior shapes and features of Ferrari's vehicles would violate the holdings of the precedent cases underlying Bonito Boats; i.e., Sears and Compco. This Court disagrees, relying on the reasoning employed by several other courts when addressing this same argument. In Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200 (C.A.2 1979), the court found that plaintiff had a trademark in the particular combination of colors and collocation of decorations possessed by the trade dress of its cheerleader uniform; i.e., "[t]he familiar outfit ... of white vinyl boots, white shorts, a white belt decorated with blue stars, a blue bolero blouse, and a white vest decorated with three blue stars on each side of the front and a white fringe around the bottom." Id. at 202. In response to defendant's argument that finding a trademark in plaintiff's uniform violated Sears and Compco, the Court disagreed, stating:
*1143 In Sears-Compco the Court held merely that a state may not, through its law banning unfair competition, undermine the federal patent laws by prohibiting the copying of an article that is protected by neither a federal patent nor a federal copyright. For the Court to have held otherwise would have been to allow states to grant a monopoly to a producer where the federal government had specifically determined that free competition should prevail. This consideration does not apply in a trademark infringement action where the plaintiff does not assert exclusive rights to the sale of a product but merely to a mark indicating its origin or sponsorship. The question presented therefore is one of trademark law, and it is clear that Sears-Compco did not redefine the permissible scope of the law of trademarks insofar as it applies to origin and sponsorship. Dallas Cowboys, supra, at 204 (citations omitted).
This line of reasoning is echoed in other cases such as Truck Equipment Serv. Co., supra, at 1215, and Brunswick Corp., supra, at 526, n. 7. Consequently, the Court finds defendant's contrary position to be without merit in this case.
III.
A plaintiff can recover under § 43(a) of the Lanham Act for trade dress infringement if the following three elements are proven by a preponderance of the evidence: first, that the trade dress has obtained secondary meaning; second, that the appropriated features of the trade dress are primarily non-functional; and third, that the trade dress of the two competing products is confusingly similar. Kwik-Site Corp. supra at 178.
A. SECONDARY MEANING
Secondary meaning occurs when a feature is so associated in the public mind with a goods provider that the public distinguishes that provider from other providers of the same good by that feature. Watch What Develops Franchise Concepts, Inc. v. Par Five, Inc., 825 F.2d 412 (C.A.6 1987), unpublished. The chief inquiry for secondary meaning is whether the mark denotes to the consumer "`a single thing coming from a single source.'" Barrios v. American Thermal Instruments, Inc., 712 F.Supp. 611, 616 (S.D.Ohio 1988), citing Sir Speedy Inc. v. Speedy Printing Centers, Inc., 746 F.2d 1479 (C.A.6 1984), unpublished, cert. den'd 469 U.S. 1217, 105 S.Ct. 1195, 84 L.Ed.2d 341 (1985). To establish secondary meaning for the exterior shapes and features of the Daytona Spyder and the Testarossa, Ferrari conducted a consumer survey for each vehicle. The report for the Daytona Spyder survey concluded that a high level of secondary meaning exists for that automobile. This conclusion resulted from testing the survey respondents' ability to view photographs of several different automobiles and identify their respective manufacturers. In these photographs, all badges of identification are removed and the automobiles appear in the same positions. Viewing these photographs, 73% of the survey respondents correctly identified the Daytona Spyder as manufactured by Ferrari. The survey for the Testarossa was conducted according to essentially the same methodology as that governing the survey for the Daytona Spyder. The resulting report also concluded that a high level of secondary meaning exists for the shape and features of the Testarossa. Specifically, 82% of the survey respondents correctly identified Ferrari as the manufacturer of the Testarossa.
The Court finds that the surveys conducted for the Daytona Spyder and Testarossa were conducted according to generally accepted survey principles. The Court also finds that the surveys provide material and probative evidence on the issue of secondary meaning. This evidence is corroborated by the cumulative testimony of witnesses such as Lawrence C. Crane, Art Director of "Automobile Magazine." According to Mr. Crane's credible testimony, the shape for both the Daytona Spyder and the Testarossa are very distinctive, distinguishing these vehicles from other high performance automobiles. Ferrari's evidence at trial on the issue of secondary meaning was uncontroverted by Roberts. In view of the substantial weight and credibility *1144 of Ferrari's proof, the Court finds that Ferrari established by a preponderance of the evidence the element of secondary meaning; i.e., the exterior shapes and features of the Daytona Spyder and the Testarossa are so associated in the public mind with Ferrari that the public distinguishes Ferrari from other automobile manufacturers by those shapes and features.
B. FUNCTIONALITY
The functionality of an article concerns the extent to which the item's shape, size, or form affects its utility or the economy of its production. See West Point Mfg. Co. v. Detroit Stamping Co., 222 F.2d 581, 594 (C.A.6 1955). A design is non-functional if it is "... `a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality' ..." See Tas-T Nut Co. v. Variety Nut & Date Co., 245 F.2d 3, 6 (C.A.6 1957), quoting Pagliero v. Wallace China Co., 198 F.2d 339, 343 (C.A.9 1952). The appropriate inquiry for the functionality of trade dress "... is not whether each individual feature of the trade dress is functional but whether the whole collection of features, taken together is functional." Hartford House, Ltd., supra, at 1272. Furthermore, the article at issue is required to be only "primarily non-functional" Kwik-Site, supra, at 178 (emphasis added). Consequently, an item's features can be non-functional even when they serve a useful purpose if they primarily serve to indicate sponsorship or origin.
To support its claim of non-functionality, Ferrari produced the testimony of Angelo Bellei, the individual responsible for the development of Ferrari's grand touring cars between 1964 and 1975. Mr. Bellei's testimony was uncontroverted that he was intimately involved with the decision-making for the designs of both the Daytona Spyder and the Testarossa. Mr. Bellei explained that the bodies for each were commissioned to the design firm of Paninfarina. As part of the design process, Paninfarina submitted several different design proposals for each the Daytona Spyder and the Testarossa. In each case, Mr. Bellei asserted that the ultimate body design chosen was selected for its beauty and distinctiveness. Asserting that any one of the design proposals would have been compatible with the mechanics of the automobiles, Mr. Bellei credibly testified that the bodies for the Daytona Spyder and the Testarossa were not chosen for functional reasons.
Ferrari produced cumulative testimony supporting the assertions of Mr. Bellei and the inference that utility and economy of production are largely irrelevant factors in the exterior shapes and features of the Daytona Spyder and Testarossa. Furthermore, Roberts adduced no evidence to counter Ferrari's proof that its exteriors were adopted primarily for purposes of distinctiveness. Therefore, the Court finds that Ferrari proved by a preponderance of the evidence that the exterior shapes and features of the Daytona Spyder and Testarossa are non-functional.
C. CONFUSION
Roberts argues that Ferrari is not entitled to relief in this case unless it shows that a potential purchaser of Roberts' vehicles would actually believe that Roberts' automobile is in fact Ferrari's vehicle. This argument is erroneous for two reasons. First, it suggests that the Lanham Act provides a remedy only in the case of "passing off"; i.e., an instance where the defendant uses the plaintiff's "`well-known product, name, symbol, or familiar packaging to attract the public to the product under the assumption that it is the plaintiff's product which is bought.'" Frisch's, supra at 647. However, passing off is only one of several kinds of infringement actions cognizable under the Lanham Act. Ameritech, Inc., supra, at 964. Second, defendant's argument assumes that the standard for confusion is actual confusion. This is incorrect, as the Sixth Circuit has stated on several occasions that the determination of confusion rests on several factual considerations. E.g. Frisch's, supra; Kwik-Site, supra. Although actual confusion is one of the applicable factors, it is not a primary consideration and absence *1145 of its proof is not significant. Wynn Oil v. Thomas, 839 F.2d 1183, 1188 (C.A.6 1988).
Contrary to Roberts' restricted viewpoint, "[t]he general concept underlying the likelihood of confusion is that the public believe that `the mark's owner sponsored or otherwise approved the use of the trademark'" Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (C.A.6 1983) (emphasis sic). In determining whether the alleged infringement of a trademark causes a likelihood of confusion among consumers, the following eight factors are to be considered: the strength of plaintiff's mark; relatedness of the goods; similarity of the marks; evidence of actual confusion; marketing channels used; likely degree of purchaser care; defendant's intent in selecting the mark; and likelihood of expansion of the product lines. Wynn Oil, supra, at 1186. These eight factors bear no hierarchial value to one another and a plaintiff may prevail without showing all or even most of the factors. Id.
In this case, no evidence was offered to show either actual confusion or the likelihood of expansion of the product lines. For two other factors, the evidence in this case corresponding to those factors favors Roberts. Even assuming a purchaser who is totally unaware of Ferrari, there is no reason to doubt that the minimum sales price of Roberts' kit for the Miami Spyder ($8,500.00) would cause this hypothetical customer to exercise a high degree of purchaser care. Likewise, the evidence shows that Ferrari's and Roberts' vehicles are sold through very different marketing channels. For the remaining confusion factors, however, the evidence radically favors Ferrari.
Based on this Court's discussion of secondary meaning, it is clear that Ferrari's marksi.e., the exterior shapes and features of the Daytona Spyder and Testarossaare strong. Furthermore, Ferrari's and Roberts' products must be deemed closely related because they are essentially the same things, automobiles. In assessing the similarity of marks, courts are not required to compare them side-by-side; instead, a court "... must determine in light of what occurs in the marketplace whether the mark `will be confusing to the public when singly presented.'" Id. (citation to quote omitted). As this Court has previously found, the exterior of Roberts' Miami Coupe closely imitates that of Ferrari's Testarossa, differing only where required by the frame of the donor car. Furthermore, comparison of photographs of one of Roberts' Miami Spyders currently under production (plaintiff's exhibit 161) with photographs of the Daytona Spyder shows that the body of the Miami Spyder virtually mirrors the exterior of Ferrari's Daytona Spyder. Consequently, the Court finds that the exterior shapes and features of the Miami Coupe and Miami Spyder are, respectively, very similar to those of the Testarossa and Daytona Spyder, and that this similarity will be confusing to the public when either the Miami Coupe or the Miami Spyder is singly presented.
When a mark is chosen with the intent of deriving benefit from the reputation of the senior user, then that fact alone may show confusing similarity. Id. at 1188-1189. A principal assertion of Ferrari's case is that Roberts produced the Miami Coupe and the Miami Spyder with the intent of deriving benefit from the reputation of Ferrari's Testarossa and Daytona Spyder. At trial, the strongest proof of this intent was provided by Vivian Bumgardner, a legal investigator who met Carl Roberts on two occasions. At both meetings, Ms. Bumgardner represented that she was interested in purchasing a Miami Coupe. Ms. Bumgardner testified Mr. Roberts affirmed during a meeting in December 1987 that when looking at the Ferrari Testarossa and Roberts' Miami Coupe, one cannot tell the difference between the two. According to Ms. Bumgardner, Mr. Roberts asserted that his company "... build[s] and sell the same car, reproduce it ... [sic]", and explained that while the Testarossa cost $140,000.00, the Miami Coupe cost less than $50,000.00, making the Miami Coupe "... more of a practical car ..." than the Testarossa. Ms. Bumgardner's testimony is credible and the Court accords it significant weight.
*1146 The whole of the evidence in this case preponderates in favor of finding that Roberts chose for his automobiles the exterior shapes and features of the Daytona Spyder and Testarossa with the intent of deriving benefit from the reputation of Ferrari. Coupled with the Court's findings for the other confusion factors, this conclusion causes the Court to find that Ferrari showed by a preponderance of the evidence a likelihood of confusion between the Miami Coupe and the Ferrari Testarossa and between the Miami Spyder and the Daytona Spyder. Based on this conclusion and the Court's findings for the other two elements of Ferrari's federal claim, the Court concludes that Ferrari has proved that Roberts' Miami Coupe and Miami Spyder infringe Ferrari's trademarks in the exterior shapes and features of the Testarossa and Daytona Spyder, violating § 43(a) of the Lanham Act.
IV.
Ferrari contends that its claim of unfair competition under Tennessee common law can be proven with the same proof necessary to recover under the Lanham Act. To support this contention, Ferrari cites only one case: Hall v. Britton, 41 Tenn.App. 72, 292 S.W.2d 524 (1954). This case does not provide strong support for Ferrari's assertion because the appellate decision chiefly concerns the appropriation of trade secrets. See Hickory Specialties v. B & L Laboratories, 592 S.W.2d 583, 585 (Tenn.App.1979). The language in Hall supportive of Ferrari's position is as follows:
[t]o constitute unfair competition the product of defendants need not be an exact copy of complainant's, but need only be so reasonably similar in appearance, use and name as to cause an unwary purchaser to confuse the products.
Id. 292 S.W.2d at 531.
A close reading of this passage indicates that similarity between the two products must "cause" confusion in order to merit relief for unfair competition. This factual requirement differs significantly from that of a claim brought under the Lanham Act which requires a plaintiff to show only a "likelihood" of confusion. E.g. Kwik-Site, supra, at 178.
A review of other cases confirms that Ferrari is required to show more than a violation of the Lanham Act in order to recover for Tennessee's common law tort of unfair competition. In Plastic Industries, Inc. v. Yarborough and Co., unreported, Court of Appeals, Western Section, (November 21, 1988), 1988 WL 123948, the court asserts that "palming off" is the essence of a claim for unfair competition under Tennessee common law, requiring a plaintiff to show
an intent to deceive the public as to the source of the goods or services offered, as well as actual deception.
Id., citing United Van Lines v. American Holiday Van Lines, Inc., 487 F.Supp. 235, 239 (E.D.Tenn.1979). This description of Tennessee's common law tort of unfair competition is repeated in National Medical Care, Inc. v. Gardiner, unreported, Court of Appeals, Middle Section (March 12, 1986) 1986 WL 3157. Therefore, the Court finds that recovery for Ferrari's state law claim requires proof of an intent to deceive and actual deception. However, no evidence was adduced showing that Roberts attempted to deceive his customers into believing that the source of his automobiles was Ferrari. Indeed, the only evidence on this issue tended to show that Roberts made efforts to apprise his customers that regardless of appearances his vehicles were not genuine Ferraris. Therefore, the Court concludes Ferrari cannot recover in this action for Tennessee's common law tort of unfair competition.[2]
*1147 V.
Ferrari was able to prosecute this action only due to a Stipulation and Order filed in Roberts' bankruptcy proceeding that lifted the automatic stay as to this case. (Doc. 36). Although some of the language in the Order lifting the stay arguably permits Ferrari to seek any relief deemed "equitable," the Court finds that the overall intent of the Order was to limit potential remedies to injunctive relief. Therefore, the Court declines to address the issues of whether Ferrari is entitled to either an equitable accounting or attorney fees in this case. Based on the foregoing, the Court finds in favor of Ferrari and against Roberts on the claim of unfair competition brought under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). The Court finds in favor of Roberts and against Ferrari on the claim of unfair competition brought under Tennessee common law. Consequently, the Court will file an Order entering judgment in accord with this Memorandum Opinion and granting Ferrari a permanent injunction restraining Roberts from infringing Ferrari's trademark rights in the trade dress of the Daytona Spyder and the Testarossa.
ORDER
Based on the foregoing Memorandum Opinion passed this day to the Clerk for filing, the Court finds in favor of defendant and against plaintiff on plaintiff's claim brought under Tennessee common law for unfair competition. Accordingly, judgment is ENTERED in favor of defendant and plaintiff takes nothing on this claim.
Pursuant to the Memorandum Opinion previously referenced, the Court finds in favor of plaintiff and against defendant on plaintiff's claim brought under 15 U.S.C. § 1125(a). Accordingly, judgment is ENTERED in favor of plaintiff and the Court ORDERS the following PERMANENT INJUNCTION:
1. Carl Roberts, d/b/a Roberts Motor Company (Roberts), his agents, officers, servants, employees, representatives, affiliates, related companies, distributors, dealers, heirs, successors and assigns, and all persons acting for, with, by, through, or under him or them, and each of them, are PERMANENTLY ENJOINED from directly or indirectly:
(a) manufacturing, or selling, or distributing, or in any manner, enabling or aiding others to manufacture, or to sell, or to distribute the Miami Spyder and the Miami Coupe and all versions thereof, including but not limited to their exterior shapes and features, the designs of which have been determined to violate plaintiff's (Ferrari) right to protection under the Lanham Act with respect to 365 GTB/4 (Daytona Spyder) and the Testarossa;
(b) using in any manner on or in connection with the advertising, or manufacturing, or distributing, or offer for sale, or selling of any automobile, the designs of the Miami Spyder and the Miami Coupe and all versions thereof;
(c) using any Ferrari badges, emblems, names or indicia of any kind, including but not limited to the word "Testarossa" and the Ferrari prancing horse, and further including any imitations thereof, in connection with the advertising, manufacture, offering for sale, sale or distribution of any products or parts thereof not made by Ferrari.
(d) from shipping, delivering, distributing, selling or otherwise disposing of, in any manner, the Miami Spyder, the Miami Coupe, or molds or parts thereof.
NOTES
[1] For convenience, the defendant will be referred to as "Roberts," referring in shorthand fashion to the business principally involved in this case, Roberts Motor Company. Nevertheless, the Court wishes to make clear that the defendant is an individual doing business as a proprietorship and not a partnership or corporation.
[2] Outside of the common law tort of unfair competition, Ferrari's case is problematic when limited to Tennessee law. To reiterate, Ferrari essentially seeks trademark protection for the trade dress of its two vehicles. To this Court's knowledge, no state court in Tennessee has addressed the threshold issue of whether trademark protection is accorded to trade dress. Even assuming that Tennessee law allows for the protection requested, Ferrari's claim would still fail. Protective rights for unregistered trademarks arise from prior appropriation and use in trade. See Men of Measure Clothing, supra, at 45. However, Ferrari produced no evidence at trial of prior appropriation and use of the claimed trademarks in Tennessee commerce. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610199/ | 865 So.2d 242 (2004)
Irma THORNTON, Plaintiff-Appellant,
v.
CITY OF SHREVEPORT, Defendant-Appellee.
No. 38,025-CA.
Court of Appeal of Louisiana, Second Circuit.
January 28, 2004.
*243 Scott D. Wilson, Baton Rouge, for Appellant.
Cook, Yancey, King and Galloway by S. Price Barker, Rebecca L. Castillo, Shreveport, for Appellee.
Before STEWART, GASKINS and LOLLEY, JJ.
STEWART, J.
Irma Thornton filed suit against her employer, the City of Shreveport (hereinafter "the City"), for conversion and breach of contract relating to alleged inaccuracies regarding her years of service and fund contributions in the City's retirement system records. The City responded with an exception of prescription that was sustained by the trial court after a hearing. On appeal, Thornton argues that the trial court erred in ruling that her claims had prescribed, specifically by not applying the doctrine of contra non valentem. For the following reasons, we affirm the trial court's judgment.
FACTS
Thornton was employed by the City from July 1979 until July 22, 1982, when her employment was terminated. As a *244 result of a complaint filed by Thornton with the United States Equal Opportunity Employment Commission, a settlement agreement was reached in July 1983, whereby Thornton's employment was reinstated "without loss of seniority." Over nineteen years later, on October 22, 2002, Thornton filed the instant suit claiming that the City's records do not accurately reflect her contributions to the retirement fund nor her years of service for retirement eligibility "without loss of seniority."
In the early part of 2002, Thornton checked with the City to determine her retirement status and learned that her years of service for retirement purposes did not date back to her initial employment beginning in July 1979. The City's retirement records reflected only 19 years of service, whereas Thornton believed that she should be credited for 23 years of service.
A letter from the City's director of finance dated March 7, 2002, informed Thornton that the City's records showed that she received a refund of her contributions to the retirement system in the amount of $2,862.42 on August 1, 1982, following her employment termination. As a result of this refund, Thornton lost her time in the retirement system from July 1979 through July 1982. The letter explained that even though Thornton was reinstated with seniority, she could not regain her time for retirement purposes without buying back that time. Although the City's pension records and accounting records indicated that the refund check had been issued, the City did not have the canceled check from twenty years ago.
In her petition, Thornton alleged that the City refused to adjust her retirement account to properly reflect her contributions or give her credit for years of employment "without loss of seniority." Alternatively, she asserted that the City refused to pay her the amount of her contributions plus employer contributions and accrued interest. Based on these allegations, Thornton asserted a cause of action for conversion based on the City allegedly depriving her of funds contributed by her. Thornton also asserted a cause of action for breach of contract based on the City's alleged breach of the settlement agreement due to its failure to credit her with years of service prior to the date of the settlement agreement. Thornton asserted that this failure was contrary to the City's fiduciary duties regarding its administration of the retirement plan and care for the members' contributions.
On July 16, 2003, the City filed a peremptory exception of prescription asserting that Thornton had one year to bring her conversion claim and ten years to bring her breach of contract claim. Since the settlement agreement was made in June 1983, and the petition not filed until October 2002, Thornton's claims appeared to be prescribed. At the hearing on the exception, the City presented testimony to establish that Thornton had received a refund of her contributions when her employment was terminated and that she had not bought back that time when she resumed employment with the City.
The City established that beginning in August 1984, the pay stubs for the City's employees included year-to-date pension contributions and pension amount totals. However, the pay stubs did not reflect years of service credited toward retirement. Elizabeth Washington, the City's director of finance, testified about a payroll processing form from December 1985, which pertained to Thornton's employment. As explained by Washington, the payroll form indicated that Thornton contributed $1,008.72 to the retirement fund for 1985 and that her employment-to-date *245 retirement contributions totaled only $2,404.75. This information would have been available to Thornton on her payroll stubs. Washington also testified about a form from the City's pension office dated August 1, 1982, which was used to generate checks for refunds. This form, which was introduced into evidence, included a listing for Thornton in the amount of $2,862.42. In addition, Washington testified that Thornton's retirement refund payment from 1982 was reflected in a microfiche check register, a copy of which was introduced into evidence. On cross, Washington admitted that the City had no other evidence to show that Thornton negotiated a refund check and that there was no letter in the City's records of Thornton ever requesting a refund of her retirement contribution.
The City also presented testimony from Phillis Copp, who served as pension manager from December 1996 through April 2000. Copp testified that she performed a refund buy-back calculation for Thornton in August 1997. Although Copp did not have a specific recollection of speaking with Thornton about the calculation, Copp testified that she would not have performed the calculation without Thornton having asked her to do it. The "Refund BuyBack" form was introduced into evidence and showed that Thornton was refunded $2,862.42 on August 1, 1982, and that she would have to buy back 3.061 years at 7% interest for a total amount of $7,943.36 to credit her retirement account with the years of employment prior to her termination on July 23, 1982. Copp also testified about a computer screen printout of benefits accrual dates for Thornton which showed that her leave accrual began on her initial date of hire, July 1, 1979, but that her retirement plan credits began on June 12, 1983. Copp explained that the discrepancy indicated that some event interrupted Thornton's contributions to the retirement plan.
In opposition to the exception of prescription, Thornton argued that she had a personal right to seek modification or correction of her retirement account to accurately reflect the amount of contributions made and that this right was subject to a 10 year prescriptive period that did not begin running until she became vested in her retirement. In addition, Thornton argued that if her claims for conversion and breach of contract were found to date back to the time of the alleged issuance of the refund check or the settlement agreement, then the doctrine of contra non valentem suspended the running of prescription until February 2002, when she first learned of the discrepancy in the City's records.
At the hearing on the exception of prescription, Thornton testified that she never elected to take a refund of her retirement funds when she was terminated, and that she never received any refund check. Also, she did not recall asking Copp to prepare a refund buy-back calculation. Thornton insisted that she learned only a year ago that the City believed she had received a refund and that she was not given retirement credit for her full years of employment. Thornton introduced the certificate of appreciation she received from the City for twenty years of service on November 18, 1999, to show that the City considered her employed since 1979.
At the conclusion of the hearing, the trial court stated that it was convinced Thornton was paid her retirement refund when it was due and that she knew about it. The court also stated that when Thornton was rehired in 1983, she should have checked to see whether she was reinstated and given credit for retirement purposes. Accordingly, the trial court concluded that Thornton's claims were prescribed.
*246 DISCUSSION
On appeal, Thornton raises the single issue of whether the doctrine of contra non valentem should be applied in this case to prevent the running of prescription. The doctrine of contra non valentem is based on the equitable notion that no one is required to exercise a right when it is impossible for him to do so. Harvey v. Dixie Graphics, Inc., 593 So.2d 351 (La.1992); Martin v. Comm-Care Corp., 37,600 (La.App.2d Cir.10/16/03), 859 So.2d 217. The doctrine is an exception to the general rule of prescription. Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206; Hughes v. Olin Corp., 37,404 (La. App.2d Cir.10/03/03), 856 So.2d 222. It applies only in "exceptional circumstances." La. C.C. art. 3467, Official Revision Comment (d); Renfroe v. State ex rel. Dept. of Transp. and Dev., XXXX-XXXX (La.2/26/02), 809 So.2d 947. In fact, the Louisiana Supreme Court has recognized the following four specific situations to which the doctrine of contra non valentem applies so as to prevent the running of liberative prescription:
1. Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's actions;
2. Where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
3. Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or
4. Where the cause of action is neither known nor reasonably knowable by the plaintiff even though the plaintiff's ignorance is not induced by the defendant.
Renfroe, supra.
Thornton asserts that the third and fourth situations listed above apply in this case. For the third category of contra non valentem to apply, the defendant's conduct must have prevented the plaintiff from availing himself of his cause of action. In other words, the cause of action accrued, but the plaintiff was unable to enforce it due to some reason external of his own will. Wimberly, supra; Corsey v. State, Through Dept. of Corrections, 375 So.2d 1319 (La.1979). Under the fourth category, referred to as the discovery rule, prescription begins to run when the injured party discovers or should have discovered the facts upon which his cause of action is based. Wimberly, supra; Griffin v. Kinberger, 507 So.2d 821 (La.1987). For the fourth category to apply, the plaintiff's ignorance of his cause of action cannot be attributable to his own willfulness or neglect; a plaintiff is deemed to know what he could have learned by reasonable diligence. Renfroe, supra; Corsey, supra.
Thornton argues that before she checked her retirement status in 2002, she had every reason to believe that the City was standing by the agreement it made in 1983 to reinstate her "without loss of seniority." She notes that in 1999, she received a certificate of appreciation for twenty years of service, and she points out that the City was unable to produce a cancelled check to show she actually received a refund, that the City had no evidence showing it actually mailed the refund check to her, and that the City had no letter from her requesting a refund. Thus, she argues that the record shows she did not know and could not reasonably have known about the City's failure to reinstate her with no loss of seniority as agreed in 1983.
Evidence regarding the City's payment of a retirement contribution refund to Thornton was introduced at the hearing *247 on the exception of prescription without objection by either party. Even though such evidence went to the ultimate issue before the trial court on Thornton's claims, such evidence was also germane to the City's claim of prescription. At trial on a peremptory exception pleaded prior to trial, other than the exception of no cause of action, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. See La. C.C.P. art. 931. When evidence is introduced at a hearing on a exception of prescription, the trial court's findings of fact are reviewed under the manifest error standard. Perez v. Trahant, 2000-2372 (La.App. 1st Cir.12/28/01), 806 So.2d 110, writs denied, XXXX-XXXX, XXXX-XXXX (La.8/30/02), 823 So.2d 953.
In ruling that Thornton's claims had prescribed, the trial court made the factual finding that the "plaintiff was paid her retirement refund when it was due, that she knew about it." The trial court also concluded that Thornton should have checked to make sure that she was reinstated and given retirement credit when rehired in 1983. From our review of the record, we cannot conclude that the trial court's factual findings are manifestly erroneous. These findings were undoubtedly based, at least in part, on credibility determinations made by the trial court after hearing the witnesses, including Thornton. The manifest error standard accords great deference to the fact finder's credibility determinations as only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what was said. Where a fact finder's conclusion is based on its decision to credit the testimony of one of two or more witnesses, that determination can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Pope v. Prunty, 37,395 (La.App.2d Cir.8/20/03), 852 So.2d 1213, writ denied, 2003-2496 (La.11/26/03), 860 So.2d 1137.
From its ruling, it is apparent that the trial court disbelieved Thornton's testimony that she did not receive the refund check and credited the testimony and evidence presented by the City which established that a refund check was issued. Even though no canceled check was produced, the trial court had before it evidence of both a check request and a check issuance reflected on the City's internal documents. While the City could not show that Thornton had requested payment of her retirement benefits in 1982, there was evidence that she had requested a buy-back calculation in 1997. That evidence, by its very nature, contradicted Thornton's testimony that she did not learn of the City's allegation of a refund until years after the buy-back calculation was performed. The trial court resolved the conflict in the evidence in favor of the City, and resolving a conflict in the evidence is a matter falling squarely within the trial court's broad discretion.
Thornton's claim of breach of contract was subject to a ten year prescriptive period under La. C.C. art. 3499, and her claim for conversion was subject to a one year prescriptive period under La. C.C. art. 3492. Both causes of action arose when Thornton was rehired by the City in 1983, the time at which the breach of the settlement agreement and the conversion of funds would have occurred as a result of the City's alleged failure to reinstate her "without loss of seniority." As such, the trial court was correct in ruling that both causes of action are prescribed. Moreover, we do not find that the trial court erred in failing to apply the doctrine of contra non valentem. Neither the settlement *248 agreement by which Thornton was rehired "without loss of seniority" nor the certificate of appreciation introduced by Thornton were acts that prevented her from availing herself of any cause of action she might have had against the City. Moreover, any cause of action pertaining to her reinstatement in the retirement system with credit for her prior years of employment was reasonably knowable by the plaintiff, who with exercise of due diligence could have learned the status of her retirement system participation when re-hired.
We note Thornton's argument that she alleged current wrongful conduct by the City due to its refusal to adjust her retirement account to reflect contributions made during the early years of her employment or to credit her for her full years of service. However, this alleged wrongful conduct hinges upon the claims for breach of contract and conversion, which have prescribed. Moreover, the trial court's finding that the City paid Thornton a retirement refund means that her claims regarding the inaccuracies in her retirement account have been shown to be without merit.
CONCLUSION
For the reasons set forth above, the trial court's judgment sustaining the exception of prescription is hereby affirmed at appellant's costs.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3035779/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-3184
___________
Lance Stormo, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Jo Anne B. Barnhart, *
Commissioner of Social Security, *
*
Appellee. *
___________
Submitted: May 10, 2004
Filed: August 2, 2004
___________
Before WOLLMAN, HANSEN, and BYE, Circuit Judges.
___________
WOLLMAN, Circuit Judge.
Lance E. Stormo appeals from the district court’s1 order affirming the final
decision of the Commissioner of Social Security to deny Stormo’s application for
disability insurance benefits and supplemental security income. He asserts that the
Administrative Law Judge (ALJ) erred in failing to give controlling weight to the
1
The Honorable Lawrence L. Piersol, Chief Judge, United States District Court
for the District of South Dakota, adopting the Report and Recommendation of the
Honorable John E. Simko, United States Magistrate Judge for the District of South
Dakota.
opinions of Stormo’s treating physicians, improperly substituted his own opinion for
those of medical experts, and failed to correctly describe his impairments in the
hypothetical given to the vocational expert. We affirm.
I.
Stormo was born on August 12, 1961. He completed high school and one year
of college. He worked from 1981 to 1997 as a systems programmer/analyst. Stormo
claims that he is unable to work due to residual effects of an ascending aortic
aneurysm that was surgically repaired. Stormo did not have any substantial gainful
employment after July 3, 1997, though he did work part time for brief periods in two
different jobs. Stormo’s application for social security benefits was denied initially
and upon reconsideration. Upon request, he received a hearing before an
Administrative Law Judge (ALJ), who concluded that Stormo was not disabled.
The ALJ based his conclusion on the extensive record of Stormo’s medical
treatment and evaluations and the testimony of Stormo, his mother, and a vocational
expert. The ALJ recognized some visual field loss, hand tremors, and mild cognitive
impairment, and determined that alcohol abuse was not a material factor. The ALJ
focused primarily on the functional impact of the impairments. In determining the
impact of Stormo’s mental impairments, the ALJ relied on the opinions of two one-
time examining physicians: Michael McGrath, Ph.D., and Ola Selnes, Ph.D. The
ALJ observed that their findings were “not particularly supportive of the presence of
any significant neuropsychological functional limitation[s].” A.R. 17. He gave less
weight to the speculative and conclusory opinions of Leonard Gutnik, M.D., and Guy
McKhann, M.D., submitted in letter form following the hearing.
After making a determination regarding Stormo’s residual functional capacity
(RFC), the ALJ posed a hypothetical to the vocational expert, which stated in part:
-2-
Subsequent to the surgery he indicates some mild cognitive
impairments, some memory loss, some peripheral vision loss in the right
eye, and he’s been diagnosed as having somewhat of an adjustment
disorder with depression. He has a long standing fine tremor bilateral
hands. Some light-headedness. And also some transient arm numbness
in the left arm.
A.R. 220. In response, the vocational expert opined that Stormo could not return to
his past “very technical” work requiring “excellent memory and excellent cognitive
skills.” He indicated, however, that there was a wide range of unskilled work at the
medium, light and sedentary exertional levels that Stormo could perform, including
packaging, janitorial, or cashier occupations. A.R. 221-22.
The ALJ evaluated Stormo’s claim according to the five-step analysis
prescribed by the regulations. 20 C.F.R. §§ 404.1520(a)–(f) (2004); Anderson v.
Barnhart, 344 F.3d 809, 812 (8th Cir. 2003). The ALJ found that Stormo was not
presently engaged in substantial gainful employment and that he had a severe
impairment based on the effect of his aortic root replacement surgery, but that his
impairment did not meet the criteria found in a listed impairment in 20 C.F.R. Part
404, Subpart P, Appendix 1. The ALJ concluded that Stormo was not disabled
because, although he was unable to return to past relevant work, he still retained the
RFC to perform a significant number of jobs in the national and local economies.
II.
We review de novo the decision of the district court upholding the denial of
social security benefits, and we will affirm the decision of the Commissioner if
substantial evidence on the record as a whole supports its findings. Fredrickson v.
Barnhart, 359 F.3d 972, 976 (8th Cir. 2004). “Substantial evidence is less than a
preponderance, but is enough that a reasonable mind would find it adequate to
support the Commissioner’s conclusion.” Prosch v. Apfel, 201 F.3d 1010, 1012 (8th
Cir. 2000). We consider both evidence that detracts from and evidence that supports
-3-
the Commissioner’s decision. Id. If substantial evidence supports the outcome, we
will not reverse the decision even if substantial evidence also supports a different
outcome. Fredrickson, 359 F.3d at 976.
Stormo first asserts that the ALJ failed to recognize as treating physicians
Helen Simpson, M.D., Dr. McKhann, and Dr. Gutnik, and therefore erred in failing
to give controlling weight to their opinions. The opinions of the claimant’s treating
physicians are entitled to controlling weight if they are supported by and not
inconsistent with the substantial medical evidence in the record. Hogan v. Apfel, 239
F.3d 958, 961 (8th Cir. 2001). Merely concluding that a particular physician is a
treating physician, therefore, is not the end of the inquiry. Such opinions are given
less weight if they are inconsistent with the record as a whole or if the conclusions
consist of vague, conclusory statements unsupported by medically acceptable data.
Piepgras v. Chater, 76 F.3d 233, 236 (8th Cir. 1996). For example, treating
physicians’ opinions are not medical opinions that should be credited when they
simply state that a claimant can not be gainfully employed, because they are merely
“opinions on the application of the statute, a task assigned solely to the discretion of
the [Commissioner].” Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir. 2002)
(citation omitted) (alteration in original).
Stormo also argues that, if the opinions were unclear or seemed to lack a
foundation, the ALJ was duty-bound to further develop the record by asking the
treating physicians for more information. The ALJ’s duty to develop the record,
however, does not extend so far. The burden of persuasion to prove disability and to
demonstrate RFC remains on the claimant, even when the burden of production shifts
to the Commissioner at step five. Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir.
2004); see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (noting that the
claimant is in a better position to provide information about his own medical
condition). Because the social security disability hearing is non-adversarial, however,
the ALJ’s duty to develop the record exists independent of the claimant’s burden in
-4-
the case. Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004). The ALJ must
neutrally develop the facts. Id. He does not, however, have to seek additional
clarifying statements from a treating physician unless a crucial issue is undeveloped.
Id. at 839.
In this case, no crucial issue was undeveloped, and several examining
physicians provided detailed clinical data and observations about Stormo’s
limitations. The ALJ carefully considered the record as a whole, giving substantial
weight to statements based upon medical expertise and supported by the medical
evidence, and appropriately weighed the opinions of Dr. Simpson, Dr. McKhann and
Dr. Gutnik. He did not commit error in giving little weight to Dr. Simpson’s
statement that “[a]t this time, I feel this patient is totally disable [sic] and should be
considered for assistance and disability,” A.R. 484, for it constituted a legal
conclusion and failed to specify any functional limitations or provide medical data in
support thereof. The ALJ also properly placed little weight on the opinion expressed
in Dr. Gutnik’s letter. Dr. Gutnik’s conclusory statement “that Lance’s problems
would make it difficult for him to hold any significant employment,” A.R. 513,
similarly asserts an inappropriate legal conclusion. The remainder of the letter,
partially drafted by Stormo’s brother, see A.R. 510-13, 529, establishes little personal
knowledge of Stormo’s impairments, mentioning functional limitations only in
relation to what “Lance’s family reports.” Some of the medical conclusions in the
letter are also inconsistent with other parts of the record, including statements by Dr.
McGrath. See A.R. 517.
The ALJ also did not err in concluding that Dr. McKhann’s opinions reflected
in his letter were “highly speculative and conditional, referring only to possibilities.”
A.R. 164. They therefore could not be given controlling weight. Dr. McKhann, a
neurologist, examined the results of an MRI examination of Stormo and concluded
that the damage was consistent with stroke damage to the brain. In a letter, he
commented that the aneurysm could cause neurobehavioral and neurological
-5-
consequences, but he did not mention specific observed limitations for Stormo other
than “some areas of mild to moderate problem with cognitive function.” A.R. 515.
In addition, he hypothesized that “It would not be unusual for someone with Lance’s
aneurysm history, record of neurologic damage, and test results to exhibit some
problems with daily living.” Id. These statements are far from a conclusive
description of Stormo’s specific problems with daily living and the ALJ appropriately
looked to other medical evidence to provide such detail.
Second, Stormo argues that the ALJ improperly substituted his own opinion
about the medical evidence in establishing Stormo’s RFC instead of relying on
medical evaluations. We disagree, for there was substantial evidence in the record
to support the ALJ’s conclusion that Stormo was not disabled. The ALJ is
responsible for determining a claimant’s RFC, a determination that must be based on
medical evidence that addresses the claimant’s ability to function in the workplace.
Krogmeier, 294 F.3d at 1023. In determining RFC, the ALJ must consider the effects
of the combination of both physical and mental impairments. Baldwin v. Barnhart,
349 F.3d 549, 556 (8th Cir. 2003).
It is appropriate for the ALJ to take a “functional approach” when determining
whether impairments amount to a disability. Bowen, 482 U.S. at 146. That a
claimant has medically-documented impairments does not perforce result in a finding
of disability. See Brown v. Chater, 87 F.3d 963, 964 (8th Cir. 1996). The ALJ
should consider “all the evidence in the record” in determining RFC, including “the
medical records, observations of treating physicians and others, and an individual’s
own description of his limitations.” Krogmeier, 294 F.3d at 1024 (citing McKinney
v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). If, in light of all the evidence, “the
impairments are not severe enough to limit significantly the claimant’s ability to
perform most jobs, by definition the impairment does not prevent the claimant from
engaging in any substantial gainful activity.” Bowen, 482 U.S. at 146.
-6-
There is substantial evidence to support the ALJ’s RFC determination. State
agency physicians performed physical RFC assessments and consistently concluded
that Stormo had very few physical limitations (he could stand, walk, and sit for up to
six hours per day; he had no tactile, visual, or communication limitations; and he
could both push and pull). Susan Bollinger, M.D., indicated that Stormo’s daily
activities included shooting pool, watching TV, and reading techno-thrillers. Stormo
also stated, in a daily activities questionnaire he completed, that he drives, runs
errands, watches TV, reads and does laundry, but does not pay bills or cook. A.R.
307-13.
Stormo’s mental limitations are well documented by numerous sources.
Psychiatrist Jerome Cripe, who saw Stormo several times, noted mild impaired
concentration and adjustment disorder with depressed feelings. Dr. McGrath, in an
“Assessment of Cognitive and Emotional Functioning for [vocational rehabilitation]
purposes,” found “no evidence of significant cognitive impairment,” A.R. 520, low
to normal memory functioning, and no signs of significant dysphoria. A.R. 522. He
concluded that Stormo did not appear to have cognitive limitations vocationally.
A.R. 524-25. Dr. Selnes conducted a neuropsychological evaluation of Stormo and
noted that the tests showed that Stormo’s verbal learning and memory were within
“broad normal limits” and stated that the results were “reassuringly normal.” A.R.
491. She indicated, however, that Stormo had episodic memory problems and was
often depressed. Id. Dr. Bollinger noted “mild cognitive impairment,” and
hypothesized that Stormo’s cognitive impairment would be significant for highly
technical work. A.R. 160-61. State agency physicians who completed mental RFC
assessments as well as Psychiatric Review Technique Forms for Stormo documented
that Stormo likely suffered from adjustment disorder with depressed feelings, some
memory impairment and thinking disturbances. They indicated that his mental
disorders resulted in only a slight restriction on activities of daily living, moderate
difficulties with social functioning (getting along with co-workers, supervisors), and
rare deficiencies of concentration or episodes of deterioration. A.R. 419. One state
-7-
physician concluded that Stormo “can do simple and complex work but possibly not
at prior levels.” A.R. 423. In light of the medical evidence supporting the ALJ’s
determination, there is no warrant for finding that the he substituted his own opinion
for those of the medical experts in concluding that Stormo still retains significant
functional ability.
Third, Stormo claims that the ALJ ignored relevant evidence when he found
that Stormo’s mental impairments did not meet the criteria for “Organic Mental
Disorders,” described at 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.02 (2004).
He argues that the evidence of his drop in IQ based on Dr. McKhann’s analysis is
sufficient to indicate that he has organic mental disorder. A claimant does not meet
the requirements of section 12.02, however, unless the evidence shows both a
significant loss in cognitive ability and evidence of at least two of the following
manifestations: (1) marked restriction of activities of daily living; or (2) marked
difficulties in maintaining social functioning; or (3) marked difficulties in
maintaining concentration, persistence, or pace; or (4) repeated episodes of
decompensation, each of extended duration. 20 C.F.R. Pt. 404, Subpt. P, App. 1 §
12.02(B). A significant drop in IQ may indicate cognitive impairment, but its alleged
severity must be supported by other information in the record about the claimant’s
ability to function. Holland v. Apfel, 153 F.3d 620, 622 (8th Cir. 1998). The criteria
in section 12.02(B) establish the “functional limitations” resulting from the mental
disorder that “are incompatible with the ability to do any gainful activity.” Id. §
12.00(A). A limitation is considered “marked” if it is “more than moderate but less
than extreme.” Id. § 12.00(C).
Substantial evidence in the record supports the conclusion that Stormo does not
have marked limitations in his daily activities, in concentrating, or in social
functioning. In fact, the evidence supports that his limitations in those areas, insofar
as they are present at all, are slight. Stormo argues that results from the
neuropsychology tests performed by Dr. McGrath are not reliable and should not have
-8-
been considered by the ALJ. The ALJ considered numerous sources in addition to
those test results, however, including Stormo’s own testimony. We therefore
conclude that substantial evidence supports the ALJ’s conclusion that Stormo’s
impairments do not meet or equal any listed impairment in appendix 1.
Finally, Stormo contends that because the hypothetical posed to the vocational
expert failed to describe fully Stormo’s impairments, the vocational expert’s
testimony on Stormo’s ability to work could not constitute substantial evidence to
support a finding of no disability. “A hypothetical is sufficient if it sets forth
impairments supported by substantial evidence in the record and accepted as true by
the ALJ.” Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001). We conclude that the
hypothetical question adequately reflected the impairments that were consistent with
the record as a whole and which the ALJ reasonably accepted as true. Accordingly,
the ALJ properly relied on the vocational expert’s testimony in reaching the
conclusion that Stormo was not disabled.
The judgment is affirmed.
______________________________
-9- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2697167/ | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-4385
___________
RUBEN CUEVAS,
Appellant
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 3:09-cv-00043)
Magistrate Judge: Honorable Lisa Pupo Lenihan
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 1, 2014
Before: FISHER, VANASKIE and ALDISERT, Circuit Judges
(Opinion filed: August 4, 2014 )
___________
OPINION
___________
PER CURIAM
Federal prisoner Ruben Cuevas appeals pro se from the District Court’s August
21, 2013 order granting summary judgment in favor of the Government in this Federal
Tort Claims Act (“FTCA”) action. For the reasons that follow, we will affirm.
I.
Cuevas brought this FTCA action alleging medical negligence after he fell and
broke his foot while incarcerated at the Federal Correctional Institution in Loretto,
Pennsylvania. He alleged that the breaks went undiagnosed for several months, and that
he had not received the surgery that he believes is necessary to properly mend his foot.
This case was previously before us a few years ago. See Cuevas v. United States,
422 F. App’x 142 (3d Cir. 2011) (per curiam). At that time, the District Court had
(1) denied Cuevas’s motion for counsel, and (2) granted summary judgment in favor of
the Government because he had not filed a Certificate of Merit (“COM”) pursuant to
Pennsylvania Rule of Civil Procedure 1042.3.1 We vacated the court’s judgment and
remanded for further proceedings. We explained that the court’s sole basis for denying
1
Rule 1042.3 requires that, in any malpractice action, the plaintiff file a COM stating that
(1) an appropriate licensed professional has supplied a written
statement that there exists a reasonable probability that the
care, skill or knowledge exercised or exhibited in the
treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional standards and
that such conduct was a cause in bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable
professional standard is based solely on allegations that other
licensed professionals for whom this defendant is responsible
deviated from an acceptable professional standard, or
(3) expert testimony of an appropriate licensed professional is
unnecessary for prosecution of the claim.
Pa. R. Civ. P. 1042.3(a) (notes omitted).
2
Cuevas’s counsel motion — that there were a “paucity of attorneys willing to take on pro
bono cases” — could not be determinative on its own, and we instructed the court to
“continue to attempt to obtain counsel for Cuevas.” Cuevas, 422 F. App’x at 145. We
also directed the court to consider in the first instance whether the COM requirement
“actually represents a point of substantive Pennsylvania law” (such that it applies to this
federal action). Id. at 146.
The day after our decision, the District Court placed the case in “administrative
suspense” and directed the District Court Clerk to recruit a lawyer for Cuevas. Over the
next several months, the Clerk recruited three attorneys to represent Cuevas. Each
attorney declined, and these declinations are memorialized on the District Court’s docket
by three sealed documents. In September 2011, the District Court ordered the Clerk to
reopen the case and cease efforts to find counsel. The court explained that
[b]ecause of the reasons given for the declinations, which
were filed under seal and will not be delineated here, and the
fact that a reasonable effort has been made to locate counsel
to no avail, the Court does not see any utility in continuing in
its efforts to find counsel for Plaintiff.
(Supplemental App. at 12 (emphasis added).) In that same order, the court (1) directed
the parties to submit briefing on the applicability of the COM requirement, and
(2) granted Cuevas an extension of time to file a COM.
In October 2011, we held in Liggon-Redding v. Estate of Sugarman, 659 F.3d 258,
264-65 (3d Cir. 2011), that Pennsylvania’s COM requirement is substantive law and must
3
be applied as such by the federal courts. In light of that decision, the District Court
rescinded its directive to submit briefing and gave Cuevas 90 more days to file a COM.
Cuevas then submitted a motion in which he argued that the District Court’s September
2011 order violated our directive on the counsel issue. He also requested that he be
provided with the sealed declinations so that he could “make an independ [sic] judgment
on whether these attorneys have violated their ethical standards.” The court denied the
motion to the extent it sought appointment of counsel or access to the sealed declinations,
but it granted Cuevas additional time to locate counsel on his own.
In the months that followed, Cuevas was given additional time to both secure
counsel and file a COM. In June 2012, Cuevas, still without counsel, filed his COM.
Therein, he certified, pursuant to Rule 1042.3(a)(3), that expert testimony was not
necessary in his case. The Government then moved for summary judgment, arguing that
his claim failed because such testimony was, in fact, necessary.
On August 21, 2013, the District Court granted the Government’s motion. The
court determined that, because “the medical issues presented in this case are not within
the range of experience and comprehension of non-professional persons,” “expert
testimony is needed to prove Plaintiff’s claim of medical negligence.” (Supplemental
App. at 131.) Because Cuevas’s COM certified that expert testimony was not necessary,
the court concluded that Cuevas “is bound by this certification and now prohibited from
offering such testimony absent exceptional circumstances.” (Id. at 132.) Finding no
exceptional circumstances, the District Court held that summary judgment in favor of the
4
Government was appropriate.
Cuevas now appeals, challenging the District Court’s handling of the counsel issue
on remand and its August 21, 2013 grant of summary judgment.2
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. “We review a
district court’s grant of summary judgment de novo, applying the same standard as the
district court.” S.H. v. Lower Merion Sch. Dist., 729 F.3d 248, 256 (3d Cir. 2013).
Summary judgment is appropriate when the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Although “the evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his favor in determining whether a genuine
factual question exists, summary judgment should not be denied unless there is sufficient
evidence for a jury to reasonably find for the non[-]movant.” Barefoot Architect, Inc. v.
Bunge, 632 F.3d 822, 826 (3d Cir. 2011) (internal quotation marks and citation omitted).
We review the District Court’s handling of the counsel issue for abuse of discretion. See
Tabron v. Grace, 6 F.3d 147, 157-58 (3d Cir. 1993).
We begin with the counsel issue. A district court may only ask, not compel, an
attorney to represent a litigant who is unable to afford counsel. See 28 U.S.C.
2
Although Cuevas’s notice of appeal was not docketed until 78 days after the District
Court entered its judgment, the parties agree that he submitted that notice to prison
authorities for forwarding to the District Court within the 60-day appeal period prescribed
by Federal Rule of Appellate Procedure 4(a)(1)(B). Accordingly, this appeal is timely.
5
§ 1915(e)(1); Brightwell v. Lehmann, 637 F.3d 187, 191 n.5 (3d Cir. 2011) (citing
Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296 (1989)). In Tabron, we
took note of the “significant practical restraints” on a district court’s ability to appoint
counsel under § 1915: “the ever-growing number of prisoner civil rights actions filed
each year in the federal courts; the lack of funding to pay appointed counsel; and the
limited supply of competent lawyers who are willing to undertake such representation
without compensation.” 6 F.3d at 157. We expressed “no doubt that there are many
cases in which district courts seek to appoint counsel but there is simply none willing to
accept appointment. It is difficult to fault a district court that denies a request for
appointment under such circumstances.” Id.
Here, the District Court, on remand, made a concerted effort to obtain an attorney
for Cuevas. Unfortunately, each of the three recruited attorneys declined. The court’s
decision to stop searching at that point was not necessarily problematic. What was
potentially problematic was the fact that the court explicitly based that decision, in part,
on the reasons given in the attorney declinations while, at the same time, refusing to share
those reasons with the parties.
To be sure, there was no need for the court to unseal the declinations themselves.
Nor would it have been appropriate to disclose the names of the recruited attorneys. But
without giving any indication as to why those attorneys declined, the District Court
erected a barrier to meaningful review of its decision.
See Houston v. Lack, 487 U.S. 266, 276 (1988).
6
Despite that, we need not remand again. We have examined the attorney
declinations and believe it is necessary to disclose the reasons (and only the reasons)
given in those declinations. One attorney declined because of his/her full-time
commitment to non-legal employment. Another attorney declined because of his/her
caseload, and noted that he/she had been “unable to identify other counsel in [his/her]
office with the capacity to represent the plaintiff at this time.” The third attorney
declined because he/she had investigated the case and believed that it lacked merit.
Having considered these reasons and the circumstances of this case, we cannot conclude
that the District Court abused its discretion when it called off the search for counsel.
We now turn to the District Court’s decision to grant summary judgment in the
Government’s favor. Pursuant to Liggon-Redding, Cuevas was required to file a COM.
He eventually did so, invoking Rule 1042.3(a)(3) and asserting that no expert testimony
was necessary. For substantially the reasons given by the District Court, we agree with
the court that expert testimony was, in fact, necessary, and that Cuevas’s decision to
proceed under subsection (a)(3) prohibited him from presenting such testimony.
Accordingly, the District Court properly granted summary judgment in favor of the
Government.
In light of the above, we will affirm the District Court’s August 21, 2013
judgment.3
3
Cuevas has moved for reconsideration of a June 2, 2014 order issued by the Clerk of
this Court, which took no action on his untimely opposition to the Government’s motion
7
to supplement the appendix. Cuevas’s motion is denied. We note that, even if we were
to consider that opposition, the outcome of this appeal would not change.
8 | 01-03-2023 | 08-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1500603/ | 109 F.2d 866 (1940)
McCULLOCH et al.
v.
MUTUAL LIFE INS. CO. OF NEW YORK.
No. 4574.
Circuit Court of Appeals, Fourth Circuit.
February 26, 1940.
*867 Ashton File, of Beckley, W. Va. and B. J. Pettigrew, of Charleston, W. Va. (File, Scherer & File, of Beckley, W. Va. on the brief), for appellants.
Thomas B. Jackson, of Charleston, W. Va. (Frank R. Lyon, Jr., of Charleston, W. Va., Louis W. Dawson, of New York City, and Brown, Jackson & Knight, of Charleston, W.Va., on the brief), for appellee.
Before PARKER and SOPER, Circuit Judges, and HENRY H. WATKINS, District Judge.
SOPER, Circuit Judge.
The Mutual Life Insurance Company of New York brought this suit against the administrator of the estate of Dr. John H. McCulloch and the beneficiaries of insurance policies on his life in the aggregate sum of $50,000, to establish the right to exhume the body of the deceased and perform an autopsy under a provision of the policies which purported to confer this right. The complaint sought to enjoin the defendants from interfering with an autopsy to be performed under such terms and conditions as the court might impose, and from instituting in the meanwhile any action on the policies for the recovery of double indemnity, and sought also a declaratory judgment, if it should be disclosed that the death of the insured did not result from bodily injury effected solely through external, violent and accidental means, that the Insurance Company was not liable for double the face of the policies. The District Judge issued the injunction as prayed, after evidence was taken, and appointed a pathologist to perform the autopsy. Execution of the order, pending this appeal, was stayed upon the filing of a bond. This court has jurisdiction at this stage of the case to entertain an appeal from the order granting the injunction by reason of the provisions of the statute, 28 U.S.C.A. § 227.
Death occurred about 6 o'clock on Saturday evening, March 18, 1939, at the Black Knight Country Club near Beckley, West Virginia, where the residence of the insured was located. He fell while descending a flight of stairs leading from the second to the first floor of the club, and the force of the fall was so great that he sustained a multiple fracture of the skull and died within eight or ten minutes. There was evidence tending to show that he caught his left heel in a tread of the stairs and was pitched forward. He was examined by a physician two minutes after the fall. The physical symptoms and conditions were such as usually follow such a fall, and the injuries were such as would naturally result in death.
*868 The District Judge found that the fracture of the skull was the apparent cause of death, and that there was no evidence of fraud or concealment respecting the physical condition and state of health of the insured prior to or at the time of his death. He made no finding that the deceased was suffering from any disease that contributed to his death, and there was no direct evidence on the point.
The record in the District Court upon which the issuance of the injunction was based, may be summarized as follows: The insured was 53 years of age, over 6 feet tall, and weighed 195 pounds. He was a physician in active superintendence of the Beckley Hospital of 155 beds, of which he was part owner, and he was also actively engaged in other business enterprises of considerable importance. At the time of his death he was apparently in good health. The company charged that the exact cause of the death was unknown, but that there was reason to believe that death resulted directly or indirectly from disease or bodily or mental infirmity, or from the effects of intoxicating beverages imbibed by the deceased; that he had been partaking freely and to excess of intoxicating beverages on the day of his death, and in fact had been drinking to excess during the five years immediately preceding his death, during which time he gained excessively in weight. The only direct evidence offered in support of the charge related to the use of intoxicants. On this point it was shown that he did not drink during the day, but was entirely sober and competent, and gave constant daily attention to his duties as an officer of various business enterprises; that he was an occasional moderate drinker when he visited the Country Club and sometimes showed the effects of alcohol although never so much as to lose control of himself; in short, that his habits with respect to the use of intoxicants were "about the same as 90% of the people who visit Country Clubs". He had had one drink about one and a half or two hours before his fall, and was not under the influence of intoxicants at the time.
The Insurance Company offered the testimony of two medical experts of Charleston, West Virginia, one of whom was a medical referee in its employ, and the other a pathologist who was accustomed to perform autopsies. Neither of them had examined the insured or had any personal knowledge of his physical condition or state of health at the time of the fall or the injuries then sustained. Each of them was asked and permitted to answer the following question without reference to any facts with respect to the physical condition or state of health of the insured other than is contained in the question itself, namely: Doctor, assuming that the deceased, Dr. John H. McCulloch fell downstairs at the Black Knight Country Club in Beckley and sustained a fracture of the skull and died within 8 or 10 minutes thereafter; that Dr. McCulloch was a man 53 years of age at the time of his death; was a large man, 6 feet or 6 feet 2 inches tall, and weighed around 195 pounds; I want to ask you what is the possibility, in your opinion as a physician, that Dr. McCulloch may have died from one of the following causes: 1. A coronary occlusion. 2. An arterial aneurism. 3. An apoplexy. 4. An internal hemorrhage from an ulcer or from cirrhosis of the liver; or that one of those causes may have contributed directly to his death? The answer in each case was that death from one of the enumerated causes was possible. The experts also testified that the use of alcoholic drinks by the insured preceding death would increase the likelihood that one of the enumerated causes contributed to his death the greater the use, the greater the likelihood and that the only method of ascertaining whether one of the enumerated diseases was a contributing cause of death was by an autopsy.
One physician who appeared on behalf of the policy holders testified that he examined the insured two or three minutes after the fall and before his death, and found conditions inconsistent with either a coronary occlusion or an arterial aneurism. In his opinion, the cause of death was clearly a brain hemorrhage induced by the fracture. Of the five other physicians who examined the body the same evening, two were x-ray specialists and testified as to the fracture; the remaining three were of the unanimous opinion that the fracture caused the death. It was also shown that an apoplexy could not be determined by an autopsy in this case because the fracture had caused a brain hemorrhage of sufficient severity to obliterate traces of any hemorrhage caused by apoplexy. No evidence was offered to indicate that the deceased had ever suffered with any of the four diseases *869 mentioned in the hypothetical question above set out.
The Sunday newspapers carried conflicting accounts of the accident, one paper attributing death to the fall, and another, to heart disease, although the record contains no evidence tending to indicate the latter. The Charleston agent, who solicited the policies, read these reports, and wired and wrote the State office of the Company at Wheeling on Sunday, asking for blanks for proof of death. A discussion of the newspaper stories took place by telephone on Monday between him and the agent in Wheeling. A prompt investigation was advised, and on Monday the soliciting agent communicated with the administrator who explained the facts surrounding the death of the insured and indicated that if an autopsy was to be performed, it would have to be done prior to the burial, which was fixed for Tuesday afternoon, as the widow would not consent to an autopsy after the interment. The agent expressed the opinion that the Company would not require an autopsy. No investigation was initiated by the Company before burial to ascertain the cause of death. Proofs of death were sent to the home office of the Company on March 29. On April 3, 1939 the Company requested the widow to permit it to make an autopsy, calling attention to the provision of the policy with regard to an autopsy. The request was refused upon the ground that the Company had had an opportunity to make the autopsy before burial and had not availed itself thereof.
The policies in suit contained the following provision: "The Company shall have the right and opportunity to examine the body and to make an autopsy unless prohibited by law". Similar provisions in life and accident policies have been considered by the courts during the past forty years and for the most part have been strictly construed. This attitude has been deemed just, not only because the policy provision is phrased by the insurer for its own benefit and may be invoked as a condition precedent to work a forfeiture and defeat recovery, but also because an unnecessary or unreasonable exercise of the right of autopsy entails a course of action that is abhorrent to the sensibilities of surviving relatives and may involve a desecration of the grave. Some decisions have gone so far as to say that if the policy does not give the insurer the right to perform an autopsy after interment, the right is lost unless the autopsy is demanded and performed before interment, and that if the insurer desires to secure the practicable exercise of the privilege, it must arrange to secure information of the death before the interment takes place. United States F. & G. Co. v. Hood, 124 Miss. 548, 87 So. 115, 15 A.L.R. 605; Provident Life & Accident Ins. Co. v. Campbell, 18 Tenn.App. 452, 79 S.W.2d 292; Cantrall v. Great American Cas. Co., 256 Ill.App. 47.
The general current of authority, however, does not go to this extent. It is generally held that the right may not be exercised after burial if it was reasonably possible for the insurer to secure the privilege before that event. But the insurer may have been denied an autopsy before burial, or may have had no notice or insufficient notice of the death until after the interment; or circumstances, such as fraud or mistake or uncertainty as to the true cause of death that make an autopsy reasonably necessary to the ascertainment of the truth may not have become known to the insurer until after the burial, notwithstanding the exercise of due diligence on its part. Under such circumstances, an autopsy ought not to be arbitrarily withheld, and the decisions so hold. See, Whitman v. Kentucky Central Life & Acc. Ins. Co., 232 Ky. 173, 22 S.W.2d 593; Hurley v. Metropolitan Life Ins. Co., Mass. 5 N.E.2d 16; Sheehan v. Commercial Travelers' Mut. Acc. Ass'n, 283 Mass. 543, 186 N.E. 627, 88 A.L.R. 975; Gould v. Travelers' Ins. Co., 244 A.D. 274, 279 N.Y.S. 892; Painter v. United States F. & G. Co., 123 Md. 301, 308, 91 A. 158.
While it is difficult to lay down a rule generally applicable under all circumstances, it is safe to say that two conditions at least must concur to justify an autopsy after burial. It must appear that through no fault of the insurer it was impracticable to demand and perform the autopsy before interment, and secondly, it must be reasonably certain that an examination of the body will reveal something bearing on the rights of the parties which could not otherwise be discovered. Massachusetts Bonding & Ins. Co. v. Duncan, 166 Ky. 515, 179 S.W. 472; Grangers' Life Ins. Co. v. Brown, 57 Miss. 308, 34 Am.Rep. 446; Johnson v. Bankers' Mut. Cas. Ins. Co., 129 Minn. 18, 151 N.W. 413, L.R.A.1915D, 1199, Ann.Cas.1916A, *870 154; American National Ins. Co. v. Nuckols, 1916, Tex.Civ.App., 187 S.W. 497; Rinaldi v. Prudential Ins. Co., 118 Conn. 419, 172 A. 777; General Acc. Fire & Life Assur. Corp. v. Savage, 8 Cir., 35 F.2d 587; Clay v. Ætna Life Ins. Co., D.C. Minn., 53 F.2d 689; Howes v. United States F. & G. Co., 9 Cir., 73 F.2d 611; Travelers Ins. Co. v. Welch, 5 Cir., 82 F.2d 799.
The general principles involved are summed up in Wehle v. United States Mut. Acc. Ass'n, 153 N.Y. 116, 122, 47 N.E. 35, 36, 60 Am. St. Rep. 598, as follows: "The provisions as to the examination of the person or body of the insured was not only expressly assented to by the insured when he made application for the insurance, and therefore should be given effect as his express agreement, but it was a reasonable provision, and quite necessary in accident insurance, as affording a protection against fraud. * * * The effect of the giving of immediate notice was to impose upon the defendant the obligation immediately to make such investigation of the occurrence as to enable it to decide whether to insist upon its right to an examination of the body in order to satisfy itself as to the cause of the death. It was not at liberty to wait indefinitely, or for any unreasonable length of time. The provision, though not, as before observed, of an unreasonable nature, nevertheless was one which, in the nature of things, called for prompt action on the part of the insurer. Although no time is specified within which the permission to examine may be availed of, still a due regard for the sentiments of the family and friends of the deceased, if not public policy, required as immediate an exercise of the option to examine as was possible. Conditions in insurance policies, as in all other contracts, should be construed strictly against those for whose benefit they were reserved. Paul v. Travelers' Ins. Co., 112 N.Y. 472, 20 N.E. 347 [3 L.R.A. 443, 8 Am. St. Rep. 758]. * * * We do not think that there was any ambiguity with respect to the permission to examine the person or body of the insured, and if it should appear in any case that at some subsequent date, after the interment of the body, circumstances or facts coming to the knowledge of the insurer warranted a reasonable belief that death was occasioned by means or causes excepted from the contract of insurance, a reasonable construction of this provision would authorize the insurer to insist upon an exhumation of the body and upon a dissection of it."
In the pending case the District Judge found that one day only was available to the insurer between the death and the burial, and that this was insufficient to permit an investigation, and that the demand for an autopsy, two weeks after the death of the insured, was made within a reasonable time. The judge also found that the insurer had reasonable ground to believe that an autopsy might disclose such a cause or contributing cause of death as would demonstrate that it was not accidental within the meaning of the double indemnity clause of the policies. Opinions may differ as to whether the period which elapsed after the insurer had knowledge of the death gave sufficient time before interment for a decision upon the necessity of an autopsy. But we need not decide this point, for in our opinion the insurer failed to show that it had reasonable ground to believe that death was not purely accidental within the meaning of the policies. All of the evidence tended to show that the insured was killed by the fall, and there was no evidence whatsoever to indicate that he was afflicted by any disease at the time of the accident. The evidence of the insurer's experts tended to show that one who uses intoxicants is more likely to suffer from the ailments enumerated in the hypothetical question than one who does not; but whether or not a moderate drinker has in fact a serious disease at any particular point of time remains a question of fact which is not solved by merely showing that he is a user of alcoholic drinks. The hypothetical question made no reference to the habits or health of the deceased, and elicited no other information than that if one falls down a flight of stairs, fractures his skull and dies in eight minutes, his death may possibly have been caused wholly or partly by disease. The possibility alone may furnish support for a guess or a conjecture, but it does not amount to proof. Two weeks elapsed after the accident and before the insured demanded an autopsy. Two additional months passed by before the pending suit was brought, and another month before the hearing took place. Nevertheless no evidence whatever was produced to show that the insured was afflicted with disease at the time of the accident. The only fair inference is that the insurer *871 has no basis for its assertion that disease was a contributing cause of death, but only a hope that in the course of the investigation something may be revealed that will relieve it from the double liability. Our conclusion is that it would not be reasonable under the circumstances to compel the representatives of the deceased to allow an autopsy, and that the injunction should have been denied.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610230/ | 739 F.Supp. 146 (1990)
UNITED STATES of America
v.
Lorne COATES and Michelle Dillard, Defendants.
No. 90 Cr. 105 (KTD).
United States District Court, S.D. New York.
May 11, 1990.
*147 *148 Otto G. Obermaier, U.S. Atty., S.D.N.Y., New York City, for U.S.; Jonathan Rosenberg, Asst. U.S. Atty., of counsel.
Joseph Greenwald & Laake, Greenbelt, Md., for defendant Lorne Coates; Fred R. Joseph, of counsel.
Joseph & Stalonas, New York City, for defendant Michelle Dillard; Michael P. Joseph, of counsel.
OPINION
KEVIN THOMAS DUFFY, District Judge:
Defendants Lorne Coates and Michelle A. Dillard are charged with (1) conspiracy to possess with intent to distribute 500 grams or more of cocaine, and (2) possessing with intent to distribute 4,018 grams of cocaine, within 1,000 feet of a school, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 845a(a). The defendants were arrested in the Amtrak section of Pennsylvania Station in Manhattan. Coates and Dillard both move to suppress all evidence and property, including the cocaine, obtained by the Government in this case, as fruits of an allegedly unlawful investigatory stop and subsequent search of their travelling bags and persons in violation of the Fourth Amendment. Both Dillard and Coates also seek to dismiss that part of count two of the indictment, the "schoolhouse" charge, that arises from the presence, within 1,000 feet of their arrest, of the Taylor Business School, a vocational school located at One Penn Plaza, New York, New York.
A one-day suppression hearing was held on May 8, 1990, and I reserved judgment at that time. Both suppression motions are now denied. Coates' and Dillard's motion to dismiss the schoolhouse charge in count two of the indictment, however, is granted.
FACTS
On January 25, 1990, Captain Steven Goldstein of the Drug Enforcement Unit of the Amtrak Police Department was working with Officer Louis Coiro on the upperlevel concourse of Penn Station. Both were in plainclothes and carried guns in shoulder holsters concealed beneath their jackets. Goldstein testified that at approximately 11:50 a.m., he and Coiro observed Coates and Dillard standing "around one of the gates", about twenty to thirty feet away. They were engaged in conversation. Coates was carrying a tweed shoulder bag and Dillard was carrying a matching tweed garment bag. Goldstein further testified that he observed Coates looking around "furtively," appearing nervous, as if surveilling the station. Coates glanced at the officers, and then quickly away. Goldstein observed Coates and Dillard in this manner for approximately three to five minutes.
*149 When the gate for a departing train was announced, Coates and Dillard walked together towards the down escalator for gate 13-14. The announced train, bound for Washington D.C., was scheduled for a stop in New Carrollton, Maryland. Just prior to reaching the gate, Coates looked back at the officers and then away. Goldstein then went to the railing by the gate and watched them descend the escalator toward the train. Again, Coates looked up in Goldstein's direction, and then quickly away. Coates then leaned over to say something to Dillard.
Goldstein summoned Coiro and decided to investigate further. The officers observed Coates and Dillard board the train, entering through the rear door of the railway car. The officers entered the front end of the car. It was a regular Metroliner car, with no reserved seating. Coates and Dillard were not seated together, although there were adjoining seats available. Dillard was seated across the aisle from Coates, approximately five rows in front of him. Both pieces of luggage, the tweed shoulder bag that had been carried by Coates and the tweed garment bag carried by Dillard, were stored in the luggage rack above Coates' head.
The officers walked down the aisle, passing both Coates and Dillard. Coiro told Goldstein that Dillard turned her head and watched Goldstein walk by. Based on these circumstances, Goldstein testified that he decided to approach Coates to see if he would consent to speak with him. Goldstein walked up to Coates, identified himself as a police officer, but not as someone involved with the drug interdiction program, and asked Coates if he would mind speaking to him. Coates consented to the interview.
Goldstein asked Coates where he was going, and Coates told him to New Carrollton. Goldstein asked to see his ticket, and Coates produced it. The ticket was issued in the name of Kim Jones, and indicated that it had been paid for in cash. Goldstein then asked Coates for the identity of "Kim Jones." Coates responded that it was his wife. Goldstein asked Coates for identification, and Coates said he had none. When Goldstein asked him if he was travelling with anyone, Coates said no. Goldstein then asked him if the luggage above his head, which at that point appeared only to be the garment bag, on top of and covering the shoulder bag, was his. Coates replied that it was. Goldstein then told Coates that he was with the drug enforcement agency working in Penn Station, and with that in mind, would he consent to a search of his bag. Coates refused, stating that Goldstein needed a warrant.
Goldstein then approached Dillard, identified himself, and requested permission to speak to her. Dillard also consented to the interview. Goldstein asked her if she was travelling with anyone, and she said no. He then asked to see her ticket, and she produced a ticket that was also in the name of Kim Jones and identical to the one produced by Coates. When Goldstein asked her if she was Kim Jones, she replied that she was not. Goldstein then asked for her identification, and she produced a driver's license in the name of Michelle A. Dillard. Goldstein asked her if she had any luggage, and she pointed to only her handbag and bookbag. He asked her again if she was travelling with anyone, and then pointed to Coates and stated that both of them had tickets issued under the same name. Dillard responded that she knew Coates but that they were not travelling together.
Goldstein then walked back to Coates and reached up to the garment bag. Upon moving it he noticed the shoulder bag, which Coates had been carrying when he entered the train. Goldstein asked Coates if the shoulder bag was his, and Coates responded that it was not. He then asked Dillard if it was hers, and she said it was not. Goldstein then held the shoulder bag aloft and asked aloud whether anyone in the car owned the bag. After receiving no response, Goldstein opened the shoulder bag and discovered a heavily wrapped brown package inside. Goldstein made a slit in the package and found white powder. Two more similar packages were in the bag. Goldstein closed the shoulder bag and told Coiro to place Coates under arrest.
*150 Once Coates was secured by Coiro, Goldstein took the unopened garment bag over to Dillard. Dillard, although not under arrest, told Goldstein that she wanted to go with him to Amtrak Police headquarters to see if Coates was all right. At that point, Goldstein testified, Dillard was not under arrest and was free to go, but that he intended to hold on to the garment bag. At police headquarters, one level above the train platform, Goldstein conducted an inventory search of Coates' property, including the garment bag that Coates had identified as his while still on the train, but that had originally been carried by Dillard onto the train. Inside the garment bag, Goldstein discovered a similar brown package of cocaine. Dillard was then placed under arrest.
Both Coates and Dillard were read their Miranda rights and searched, and all their personal belongings were collected. Coates had on him approximately $122.60 and a beeper. Dillard had, among other things, a wallet, a checkbook, a 1988-89 monthly academic calendar, and a 1989-90 weekly minder.
Coates testified at the hearing that Goldstein stood in close proximity to him during the interview on the train. According to Coates, Goldstein leaned down within six inches of his face as he was questioned. Coiro stood directly behind Goldstein in the aisle. Coates also testified that Coiro had his hand in his jacket, and that he could see a gun handle sticking out. Coates further stated that Goldstein told him to show him his ticket or Goldstein would throw him off the train. He averred that when he tried to stand up, he was told to sit back down. Furthermore, Coates testified that he told Goldstein that he owned both bags, and that Goldstein never held the shoulder bag up to ask others in the car if it was theirs. Coates added that Goldstein never asked with whom Coates was travelling. Finally, he stated that Goldstein told him "I can do what I want" because he worked for the drug enforcement agency of Amtrak, and proceeded to open the shoulder bag. On cross-examination, Coates testified that his wife's name was Sabrina Coates, not Kim Jones, that "Kim Jones" was "just a name" that Coates and Dillard had used, and that Coates and Dillard were in fact travelling together. Dillard did not testify at the hearing.
DISCUSSION
I. Suppression Motion
A person is "seized" for Fourth Amendment purposes "only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). Mere questioning of an individual by police in a public place does not rise to the level of a "seizure" within this standard, unless additional circumstances exist which make it reasonable for the individual to believe his liberty has been restrained. Id. at 552, 100 S.Ct. at 1876. Examples of circumstances that may indicate a seizure include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Id. at 554, 100 S.Ct. at 1877.
However, police questioning "`by itself, is unlikely to result in a Fourth Amendment violation. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.'" United States v. Moreno, 897 F.2d 26, 30 (2nd Cir.1990) (quoting INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984)). Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering evidence in a criminal prosecution of his voluntary answers to such questions. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983). Nor would the fact that an *151 officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring objective justification. Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1877.
To the extent that Coates' testimony conflicts with Goldstein's, I credit Goldstein's testimony. In rejecting Coates' testimony, I find that the officers did not act in an aggressive, overbearing, or coercive manner that could have reasonably lead Coates and Dillard to believe that their freedom was restrained. The encounter occurred in a public place, in front of other passengers. The questioning was brief and pointed, and no show of force was used or threatened to obtain Dillard's and Coates' consent to the interview.
As such, I find that the officer's questioning of Coates and Dillard did not rise to the level of a seizure here. Similar to the facts in Mendenhall, Coates and Dillard were approached in a public area by agents in plainclothes who did not appear to be wearing arms; the officers did not crowd tightly around the defendants or otherwise obstruct their freedom of movement; they identified themselves as law enforcement agents; and they asked, without raising their voices and without a show of coercion, if they could speak with the defendants.
It is also clear that Coates' and Dillard's consent to the interview was given voluntarily, as determined by the "totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973). Defendants need not be instructed that they have a right to refuse consent to an interview. Id. at 227, 93 S.Ct. at 2047. Here, Goldstein identified himself as a police officer, asked permission to speak with Coates and Dillard, and did not restrict their freedom of movement. There is no credible evidence establishing duress. Both Coates and Dillard responded affirmatively when asked whether they consented to be interviewed. There was neither extended questioning nor any overt act or speech that could fairly be construed as detaining them. Nor was there any physical contact, deprivation, or threat. Moreover, neither Coates nor Dillard make any claim based on youth, lack of education, or experience. See id. at 226, 93 S.Ct. at 2047.
Even assuming that the questioning of Coates and Dillard rose to the level of an investigatory Terry stop, the officers' actions nonetheless satisfied constitutional strictures because the record indicates that they had sufficient grounds for suspicion to justify such a stop. While officers "must be able to articulate something more than an `inchoate and unparticularized suspicion or hunch,'" the Fourth Amendment requires only a "minimum level of objective justification" for making a stop, and far less proof of wrongdoing than necessary to establish probable cause. United States v. Sokolow, ___ U.S. ___, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)). Limited stops by law enforcement officers to investigate those suspected of wrongdoing are permissible "seizures" within the Fourth Amendment, provided that the officers can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968) (footnote omitted).
Although the actions of Coates and Dillard, such as scanning the crowd of a busy train station, may have innocent explanations, courts in determining the existence of "reasonable suspicion" should view the circumstances "`through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.'" United States v. Oates, 560 F.2d 45, 61 (2nd Cir.1977) (quoting United States v. Magda, 547 F.2d 756, 758 (2nd Cir.1976)). Here, Goldstein, an experienced narcotics officer, observed a pattern of activity that his training and knowledge indicated was often used in narcotics trafficking. Goldstein had reasonable suspicion to question Coates and Dillard briefly based on several distinct circumstances. Coates repeatedly scanned the crowd while standing next to Dillard in the train station, as if searching out the presence of surveillance. *152 Coates responded nervously upon spotting Coiro and Goldstein, and then communicated with Dillard.
Moreover, Coates' and Dillard's behavior inside the train provided further suspicion to justify continuing the questioning. Dillard and Coates sat some distance apart in the car, although obviously travelling together, and despite the existence of several empty seats adjoining one another. In addition, the fact that they were travelling to the same place, with tickets purchased in cash that same day in the name of the same individual, "Kim Jones," and their continued unwillingness to say they were travelling together, provided additional justification for an investigative "stop."
In addition, both Coates and Dillard denied ownership of, and therefore abandoned, the tweed shoulder bag. A defendant cannot challenge the search and seizure of objects that he has voluntarily abandoned. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). Although Coates told Goldstein that the garment bag was his, and that Goldstein needed a warrant to search it, Coates and Dillard both stated that the shoulder bag did not belong to them. Even after Goldstein held the shoulder bag aloft and asked whether anyone in the car owned it, neither Coates nor Dillard claimed ownership. Thus Goldstein's search of the shoulder bag was proper, formed a more than sufficient basis for Coates' arrest, and the three kilograms of cocaine found in it should not be suppressed.
Similarly, the inventory search of the garment bag was proper. The garment bag was not opened on the train, but at the stationhouse after Coates had been arrested and placed in a holding area. Coates had explicitly claimed the garment bag to be his. Police officers are entitled under the Fourth Amendment to conduct a warrantless search of the personal effects and baggage of a person under lawful arrest as part of routine administrative procedure incident to booking and jailing a suspect. See United States v. Arango-Correa, 851 F.2d 54, 59 (2nd Cir.1988). The officers' discovery of drugs in the garment bag, which Dillard had carried onto the train, was also amply sufficient grounds to form the basis of her arrest.
Coates also seeks to suppress a beeper found on him after his arrest, while Dillard seeks to suppress an address book, monthly academic calendar, 1989-90 weekly reminder, and checkbook found on her. The totality of the circumstances set forth above, however, gave rise to ample probable cause for the arrest of both Coates and Dillard. As such, the subsequent search of them incident to their arrest and the inventory logging of their belongings were proper.
II. The "Schoolhouse" Charge
Coates and Dillard also move to dismiss that part of count two of the indictment that constitutes a "schoolhouse" charge, arguing that such charge is inapplicable to the facts here. Section 845a of Title 21 enhances the penalty for those found guilty of certain narcotics crimes committed within 1,000 feet of a school. Subsection (a) of the statute, as amended in 1986 and 1988, includes those "possessing with intent to distribute ... a controlled substance" within a thousand feet of "the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university." Violation of this section is punishable
(1) by a term of imprisonment, or fine, or both up to twice that authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense. Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a term of imprisonment under this subsection shall not be less than one year.
The Second Circuit found the statute's clear purpose as follows:
Congress sought to create a drug-free zone around schools; whether it chose to do so directly or indirectly is not particularly relevant. According to its sponsor, the provision was designed to "deter *153 drug distribution in and around schools," including transactions which "take place in remote outdoor areas, at local hangouts, or at nearby homes or apartments," thereby helping to "eliminate outside negative influences" around schools.
United States v. Falu, 776 F.2d 46, 50 (2nd Cir.1985) (citations omitted).
Coates was arrested on board a train and Dillard in the lower level of Penn Station, in possession of a total of four kilograms of cocaine. Penn Station is within 1,000 feet of the Taylor Business School, which is a technical school located in Penn Plaza, an office complex above and adjoining the station. It is clear that Coates and Dillard were in Penn Station simply because that is where trains bound to Washington, D.C. and elsewhere are regularly scheduled. There is no evidence that they were in Penn Station to distribute cocaine within 1,000 feet of a school, or, for that matter, to distribute cocaine within New York State at all. Indeed, Coates testified on cross-examination that he and Dillard were transporting the cocaine to Maryland.
To charge a schoolyard count in these circumstances stretches the scope of the statute beyond logical and acceptable bounds. The statute cannot be meant to reach the circumstance of Coates' and Dillard's presence, undoubtedly unknowing, within a 1,000 feet of a school while ensconced in a railway car. To posit liability under § 845a in these fortuitous circumstances is simple overreaching. To hold otherwise would be to mandate charging a schoolhouse count every time defendants on trains, or any other means of transportation, speed by a school on their way to a narcotics sale. See United States v. Liranzo, 729 F.Supp. 1012 (S.D.N.Y.1990) (dismissing schoolhouse count as to defendant arrested in Port Authority bus terminal while en route to Pennsylvania).[1] As such, I find the schoolhouse statute inapplicable to the facts of this case.
In sum, Coates' and Dillard's motion to dismiss the charge in the second count of the indictment that they violated the schoolhouse statute, 21 U.S.C. § 845a(a), is granted. Their suppression motion is denied in all respects.
SO ORDERED.
NOTES
[1] I do not reach the issue of overbreadth of the statute raised by Coates and Dillard because I find that on these facts, the schoolhouse statute is inapplicable. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645409/ | 994 So.2d 319 (2008)
ESPINOZA
v.
STATE.
No. 5D08-2186.
District Court of Appeal of Florida, Fifth District.
November 10, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/728081/ | 98 F.3d 670
72 Fair Empl.Prac.Cas. (BNA) 406,69 Empl. Prac. Dec. P 44,437Gilberto MULERO-RODRGUEZ, Gladys Ortiz-Margarys,Plaintiffs-Appellants,v.PONTE, INC. and Haydee Sabines, Widow of Ponte, Defendants-Appellees.
No. 95-1877.
United States Court of Appeals,First Circuit.
Heard Feb. 27, 1996.Decided Oct. 28, 1996.
Kevin G. Little, Fresno, CA, with whom David Efrn and Law Offices David Efrn, Rio Piedras, PR, were on brief, for appellants.
Jay A. Garca-Gregory, with whom Juan C. Guzman-Rodrguez and Fiddler Gonzalez & Rodrguez, San Juan, PR, were on brief, for appellees.
Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.
TORRUELLA, Chief Judge.
1
Appellants-Plaintiffs Gilberto Mulero-Rodrguez ("Mulero") and his spouse, Gladys Ortiz-Margarys, appeal the district court's grant of summary judgment to defendants Ponte, Inc. and Haydee Sabines ("Sabines") in this wrongful termination case for their suit under the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 626(c), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The Muleros also presented claims under Puerto Rico Law 100, 29 L.P.R.A. § 185(a), Law 80, 29 L.P.R.A. § 146, and the Puerto Rico Civil Code for breach of contract and tortious conduct provisions. For the reasons stated herein, we affirm in part and reverse in part.
BACKGROUND
2
As always, in reviewing the district court's grant of summary judgment, we present the facts, drawn here from the district court opinion and order, see Mulero Rodriguez v. Ponte, Inc., 891 F.Supp. 680, 682-83 (D.P.R.1995), in the light most favorable to the nonmovant, see, e.g., Woodman v. Haemonetics Corp., 51 F.3d 1087, 1089 n. 1 (1st Cir.1995). Appellee Ponte, Inc. is a corporation whose principal place of business is in Puerto Rico and is incorporated there. It is owned by members of two families of Cuban descent, the Pontes and the Sabines. Appellant Mulero worked for Ponte, Inc. for 29 years, starting as a driver and eventually attaining the positions of general manager and director. By January of 1993, he bore substantial responsibility for the day-to-day operations of Ponte, Inc., and received compensation of some $150,000 per year.
3
Mara Luisa Ponte ("Ponte"), one of the owners and officers of Ponte, Inc., began to work at the company in late 1991. She soon moved to restrict Mulero's authority, limiting his ability to hire and fire employees by requiring her approval for personnel actions. During the course of 1992, Ponte and Mulero clashed over a series of issues, relating to Mulero's job performance, employee bonuses, control over inventory, and Mulero's interaction with other employees. Mulero's employment was terminated on January 26, 1993, by Sabines and her son-in-law Jorge Redondo ("Redondo"), who was not a Ponte, Inc., employee. Mulero was 47 years old. The appellants sued, alleging discrimination under the ADEA and Title VII, and the district court granted summary judgment for Ponte, Inc., and Sabines. This appeal followed.
DISCUSSION
A. Title VII and ADEA Claims
4
In the summary judgment context, we review the district court's grant of summary judgment de novo, and "are obliged to review the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving party's favor." LeBlanc v. Great American Ins. Co., 6 F.3d 836, 841 (1st Cir.1993), cert. denied, 511 U.S. 1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994); see, e.g., Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir.1994). "An inference is reasonable only if it can be drawn from the evidence without resort to speculation." Frieze v. Boatmen's Bank of Belton, 950 F.2d 538, 541 (8th Cir.1991).
5
We will uphold summary judgment where "the pleadings, depositions, answers to the interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We are not restricted to the scope of the district court's logic, but can affirm on "any independently sufficient ground." Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992). Of course,
6
[n]ot every factual controversy bars a litigant's access to the Rule 56 anodyne:
7
[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.
8
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). The nonmovant bears the burden of setting forth "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). An issue is genuine if it "must be decided at trial because the evidence, viewed in the light most flattering to the nonmovant, would permit a rational factfinder to resolve the issue in favor of either party." Medina-Munoz, 896 F.2d at 8 (citation omitted).
9
In the absence of direct evidence of discrimination, we apply the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to ADEA and Title VII claims. See Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 96 (1st Cir.1996) (noting that "direct evidence does not include stray remarks in the workplace"); see, e.g., Pages-Cahue v. Iberia Lneas Aereas de Espana, 82 F.3d 533, 536-37 (1st Cir.1996); Woods, 30 F.3d at 259. First, the plaintiffs must establish a prima facie case that Mulero (1) was within a protected class; (2) met Ponte, Inc.'s legitimate performance expectations; (3) was adversely affected; and (4) was replaced by another with similar skills and qualifications. See Smith v. Stratus Computer, Inc., 40 F.3d 11, 15 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1958, 131 L.Ed.2d 850 (1995); Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir.1993). Once they do so, the burden shifts to Ponte, Inc., to produce a valid and nondiscriminatory reason for the dismissal. In the final stage, the burden shifts back to the plaintiffs to show that Ponte, Inc.'s stated reason for Mulero's dismissal was false and but a pretext for discrimination. See, e.g., Woods, 30 F.3d at 260; Medina-Munoz, 896 F.2d at 8. In this summary judgment context, plaintiffs, as the nonmovants, must show evidence sufficient for a factfinder to reasonably conclude that Ponte, Inc.'s decision to terminate was driven by a discriminatory animus. See LeBlanc, 6 F.3d at 843. "Thus, a district court's grant of summary judgment to an employer will be upheld if the record is devoid of adequate direct or circumstantial evidence of the employer's discriminatory intent." Pages-Cahue, 82 F.3d at 537.
1. The Prima Facie Case
10
The parties agree that only the second element of the prima facie case, i.e., that Mulero met Ponte, Inc.'s legitimate job expectations, is in dispute. Finding little support in the depositions cited, and noting that the record did not include affirmative evidence of satisfactory performance, such as evaluations or appraisals, the district court nonetheless assumed that the plaintiffs satisfied the second element, on the basis of Mulero's long history at Ponte, Inc. We take the district court's reasoning a step further and find that plaintiffs did, indeed, fulfill the second element.
11
Mulero was at Ponte, Inc., for almost thirty years. During that time, he rose from being a driver to holding the posts of general manager and director, with the attendant promotions and pay raises. We have previously found that such evidence supports an inference that an employee's job performance was adequate to meet an employer's needs, even when the evidence did not extend all the way to the time of the discharge. See Keisling v. SER-Jobs for Progress, Inc., 19 F.3d 755, 760 (1st Cir.1994); see also Woodman, 51 F.3d at 1092; Stratus Computer, 40 F.3d at 15 n. 4; Woods, 30 F.3d at 261. We do so again here, and so find that plaintiffs established their prima facie case.2. Ponte, Inc.'s Reason for Dismissal
12
The parties do not contest that defendants have articulated a non-discriminatory reason for Mulero's discharge, namely, that he "made poor hiring decisions; argued repeatedly with, threatened and vandalized the automobile belonging to, the company's accountant, Luis Caceiro [ ("Caceiro") ]; inadequately controlled inventory; permitted his children inappropriate access to the company's resources; and misallocated bonus payments." Mulero Rodrguez, 891 F.Supp. at 685. We therefore turn to the final step of the McDonnell Douglas framework.
3. Pretext for Discrimination
13
In their effort to demonstrate that Ponte, Inc.'s stated reason for Mulero's dismissal was a pretext for discrimination, the plaintiffs weave a tale of discriminatory comments, pretextual business decisions, and favoritism. Finding little substance in the story, the district court held that the plaintiffs did not meet their burden of demonstrating pretext and unlawful animus, in either the ADEA or the Title VII claim. We now weigh the evidence for each in turn, "focus[ing] on the ultimate question, [and] scrapping the burden-shifting framework in favor of considering the evidence as a whole." Mesnick, 950 F.2d at 827. Like the district court, we find that much of the Muleros' evidence merely "reflects the existence of differences of opinion between Mulero and others at the company with respect to a wide variety of issues affecting the company." Mulero Rodrguez, 891 F.Supp. at 686. However, because we find more content in the plaintiffs' case than did the district court, our review of the record leads us to conclude that, taking all inferences in their favor, the Muleros have offered sufficient evidence to fulfill the third McDonnell Douglas requirement and survive summary judgment. Accordingly, we reverse the district court's grant of summary judgment on their Title VII and ADEA claims.
14
a. The National Origin Discrimination Claim
15
The plaintiffs contend that Mulero was discriminated against because he is Puerto Rican, and the owners of Ponte, Inc., were Cuban and preferred to have a Cuban employee. As noted above, at this stage of our analysis, the Muleros "must introduce sufficient evidence to support two findings: (1) that the employer's articulated reason for laying off the plaintiff is a pretext, and (2) that the true reason is discriminatory." Udo v. Tomes, 54 F.3d 9, 13 (1st Cir.1995). The Muleros rely upon one set of evidence to establish both findings. See Woodman, 51 F.3d at 1092 (noting that a plaintiff may rely on the same evidence for both findings); see also Udo, 54 F.3d at 13.
16
We turn first to the question of pretext. The defendants spell out a series of reasons for Mulero's dismissal, listed above. In weighing whether the Muleros have presented enough evidence for a reasonable factfinder to deem the cited reasons pretextual, we remember that the issue is not whether Ponte, Inc.'s reasons to fire Mulero were real, but merely whether the decisionmakers--Sabines and Ponte--believed them to be real. See Woodman, 51 F.3d at 1093. As the district court noted, the defendants support their reasons with substantial deposition testimony and sworn statements. The Muleros counter with evidence challenging the veracity of many of the underlying reasons, but with little evidence that Sabines and Ponte did not actually believe them. Nonetheless, our review of the record leads us to conclude that the Muleros have indeed produced evidence sufficient for a reasonable factfinder to find Ponte, Inc.'s cited reasons pretextual.
17
First, defendants present evidence that complaints made by Ponte, Inc., salesmen over a shortage of inventory acted as the "catalyst" for the decision to terminate Mulero. They argue that Ponte and Sabines met with the complaining salesmen in late 1992, because the salesmen were concerned about a shortage in the inventory and its impact on their clients and commissions. Mulero still had the responsibility for buying the inventory. Defendants present deposition testimony of Sabines and Ponte about the meeting, as well as sworn statements by two of the salesmen. Defendants further attest that they brought up the complaints with Mulero, and that the complaints "were the straws that broke the camel's back." Appellants' Brief at 12.
18
However, the Muleros have offered evidence that the complaints were false. Mulero's deposition testimony states that in fact a shortage of inventory was a regular occurrence at the end of every calendar year, because the company ceased purchasing between December 1 and January 15 so that inventory could be taken. Although he testified that in 1992 he discussed with Sabines that he was behind in taking the inventory, he also testified that it was in fact finished in time and that he had no recollection of Sabines or Ponte--or the salesmen--complaining about a shortage of inventory. The Muleros also point out that, although they requested them, Ponte, Inc., has produced no business records in any way reflecting a shortage or lost sales or income based thereon. In sum, giving credence to Mulero's testimony, a rational factfinder could find that there was in fact no shortage of inventory beyond the standard end-of-year freeze on purchases. This casts doubt on whether Ponte and Sabines actually believed the complaints, and whether they could have served as the catalyst for Mulero's dismissal. The conclusion is not an inevitable one, but as the issues centering on the salesmen's complaints involve real issues of fact, it should be left to the factfinders.
19
Second, according to Ponte's testimony, the salesmen also complained that when they asked for merchandise Mulero would tell them to go ask Sabines or Ponte. The defendants argue that they found this attitude to be problematic, as Mulero still had buying and selling authority. Mulero testified, however, that if he ever said that, it was because he was no longer in charge of the salesmen. Clearly, an issue of fact exists as to whether the salesmen's complaints on this point are a real reason for Mulero's dismissal, as it is unresolved what the scope of his responsibility was.
20
Finally, Ponte attests that she started working at the company because of complaints about Mulero's conduct made to her mother, Sabines. Mulero, however, testified that Ponte told him she was starting work at Ponte, Inc., "in order to relieve [him] of some work." Mulero Deposition, at 102. At the same time, although he said they were not needed, she hired labor lawyers. While this is hardly condemning evidence, the reasonable factfinder could see Ponte's dissimulation regarding her motives for becoming active in the company and her contemporaneous hiring of attorneys as further reason to disbelieve the defendants' proffered reasons for firing Mulero. Cf. Sinai v. New England Telephone and Telegraph Co., 3 F.3d 471, 474 (1st Cir.1993) (noting that fact that employer "advanced different reasons for refusing to hire appellant at different times could have led the jury simply to disbelieve" the employer).
21
Having determined that the Muleros have marshalled enough evidence regarding pretext to defeat summary judgment on that point, we turn to the question of whether they can show that the real reason was national origin discrimination. The key evidence in the plaintiffs' argument that Mulero was discriminated against because he is Puerto Rican is his testimony that Luis Caceiro repeatedly commented to Mulero that Mulero was the only Puerto Rican running a Cuban company. Acknowledging that "[h]ad the comment ... been attributable to the defendants, it might have sufficed to satisfy the low threshold required to escape dismissal at this stage," Mulero Rodrguez, 891 F.Supp. at 685, the district court dismissed the evidence of Caceiro's comment and granted the defendants summary judgment. The court found that Mulero had not offered sufficient evidence to show that Caceiro was in any way a decision-maker--or influenced the decision-makers--regarding Mulero's dismissal. See Medina- Munoz, 896 F.2d at 10 ("The biases of one who neither makes nor influences the challenged personnel decision are not probative in an employment discrimination case."); see also Woods, 30 F.3d at 258. The district court also noted that, although not determinative, it "need not ignore" the absence of any evidence that defendants were aware of his Puerto Rican birth and heritage during his lengthy career at Ponte, Inc.
22
Review of the record in the light most favorable to the Muleros, however, leads us to conclude that a reasonable factfinder could in fact reasonably infer that Caceiro was in a position to influence Ponte, Inc.'s decision-making. Ponte took away Mulero's authority over the salesmen, giving the responsibility to Caceiro. She also shifted Mulero's inventory duties to Caceiro, proposing to computerize the inventory system. When she changed the bonus system, Caceiro's bonus was increased. According to Mulero, Ponte trusted Caceiro's word over Mulero's. Finally, as the district court noted, Ponte "learned from Caceiro about Caceiro's conflicts with Mulero." Mulero Rodrguez, 891 F.Supp. at 685. Given the favor with which Caceiro was treated and the responsibilities given him, on this record Caceiro may reasonably be thought to have been in a position to influence Ponte's decision-making. While this is not the inevitable conclusion, it is a reasonable one. Accordingly, a reasonable jury could infer that, based on Caceiro's comments that Mulero was the only Puerto Rican running a Cuban company, national origin animus played a role in the decision to terminate Mulero's employment, and so the district court erred in granting summary judgment on the Muleros' Title VII claim.1
23
b. The Age Discrimination Claim
24
The district court found the record insufficient to demonstrate genuine issues of material fact regarding whether Mulero's discharge was due to age-based animus. It focused on a comment Ponte made to Mulero in April of 1992, some eight months before his discharge, that he was "too old to handle" the salespeople, and so was to be relieved of his supervisory duties over the sales force. The court found that this statement was followed by no additional evidence of age-related bias, and that, standing alone, it was too remote in time for a sufficient nexus to exist between it and the decision to terminate Mulero. We review the record de novo. As we have already found that the Muleros have produced enough evidence to support a finding of pretext, we turn directly to the question of whether they can show that the real reason was age discrimination.
25
There is no question that statements like Ponte's, when made by a decision-maker, can be evidence of age discrimination. See, e.g., Mesnick, 950 F.2d at 824; Olivera v. Nestle Puerto Rico, 922 F.2d 43, 49 (1st Cir.1990). Granted, Ponte made the comment in relation to Mulero's ability to handle the salesmen, but "an employer's willingness to consider impermissible factors such as ... age ... while engaging in one set of presumably neutral employment decisions ... might tend to support an inference that such impermissible considerations may have entered into another area of ostensibly neutral employment decisions--here, an employee's termination." Conway v. Electro Switch Corp., 825 F.2d 593, 597-98 (1st Cir.1987).
26
However, we agree with the district court that, standing alone, it is too remote in time to be linked with the decision to terminate Mulero. See Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 512 (4th Cir.1994) (finding that discriminatory comment made over two years prior to discharge was not evidence of age discrimination); Phelps v. Yale Security, Inc., 986 F.2d 1020, 1026 (6th Cir.) (holding that statements made almost a year before layoff were too far removed to have influenced decision), cert. denied, 510 U.S. 861, 114 S.Ct. 175, 126 L.Ed.2d 135 (1993); see also Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330 (6th Cir.1994) (listing timing of remarks as factor in whether they evidenced discrimination); Frieze v. Boatmen's Bank of Belton, 950 F.2d 538, 541 (8th Cir.1991). Indeed, "[t]he fact that [Ponte] made such a statement on only one occasion further supports this conclusion." Birkbeck, 30 F.3d at 512.
27
If, however, the Muleros have offered evidence to establish the needed nexus between Ponte's statement and the decision to fire Mulero, the statement may become pivotal. Unlike the district court, we find such a nexus in the record. Specifically, at the time she made the "too old" comment and altered Mulero's supervisory duties, Ponte instituted other changes, including the method by which bonuses were apportioned. In the past, bonuses had been awarded in April on a seniority basis; she switched to a merit-based system. Ponte testified that she changed the system for two reasons. First, she wanted to provide an incentive to new employees. Second, she felt that the old employees gave all their loyalty to Mulero, and that they knew that no matter what they did, they would still get a good bonus. Thus the change was designed to change their work habits and "attitude problems." Ponte Deposition, at 61. Under the new system, Mulero's bonus was decreased--Ponte testified that she did not believe Mulero deserved the bonus he had previously been receiving--while those of several newer employees, including the younger Caceiro, were increased.
28
The policy change regarding the bonus system can be viewed in several ways. First, the change in the system was a business decision--which we will not normally second-guess. See LeBlanc, 6 F.3d at 845. That does not mean we must ignore its existence, however. Cf. Sinai, 3 F.3d at 474 (finding that the multiple reasons employer advanced for its failure to hire appellant, including policy against hiring spouses of current employees, meant that jury could easily have found the reasons were pretextual). Second, although the change reduced Mulero's bonus, it did not change his base salary. At the same time, the bonus was part of Mulero's expected compensation. Finally, the old bonus system was based on seniority, not age--but in Mulero's case, seniority could serve as a proxy for his age. In sum, the evidence regarding the bonus system is anything but conclusive: it can be viewed as a reasonable measure in the face of a perceived problem, or as a method used to strip away part of Mulero's compensation and hurt those employees loyal to him--those who had been there the longest. Thus it is prime fodder for a jury.
29
It also serves Mulero's purpose here. Ponte's "too old" comment is strong evidence. The Muleros have found the needed nexus between it and Mulero's dismissal in the bonus change, and in this context we find the combination of Ponte's "too old" comment with the change in the bonus system disfavoring long-term--and therefore often older--employees troubling. Thus we think there is a material issue as to whether Ponte, Inc.'s real reason for firing Mulero was rooted in discriminatory animus. Cf. Conway, 825 F.2d at 598 (holding that statement made eight months before employee was dismissed and one made at least ten months before were not too remote from the dismissal and, thus, properly admitted at trial as evidence of a discriminatory atmosphere where he who made the first statement may have participated in the decision to fire her and the other refused to block her termination).
30
Of course, the full presentation of evidence on both sides might alter this judgment and show that the plaintiffs fell just short and would be subject to a directed verdict. But at the summary judgment stage, with the obligation to draw all reasonable inferences in favor of the party opposing summary judgment, we think that this case could not be dismissed against [the] defendants.
31
Rubinovitz v. Rogato, 60 F.3d 906, 912 (1st Cir.1995). Accordingly, and with a nod to the premise that "determinations of motive and intent, particularly in discrimination cases, are questions better suited for the jury," Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 34 (1st Cir.1990), we reverse the district court's grant of summary judgment on the Muleros' ADEA claim.
32
A final note. Without pointing to a specific example, the Muleros argue that the district court misapplied the summary judgment standard by founding its grant of summary judgment upon its acceptance of the defendants' testimonial evidence as "substantial," see Mulero Rodrguez, 891 F.Supp. at 685, and its rejection of contrasting testimony. See LeBlanc, 6 F.3d at 836 (noting that, in summary judgment, reviewing court must view record and draw all reasonable inferences in nonmovant's favor). We disagree. First, the district court's comment was made regarding the defendants' rebuttal in the second step of the McDonnell Douglas framework, and was merely describing the strength with which the defendants supported their asserted reasons. See Mulero Rodrguez, 891 F.Supp. at 685 ("Defendants, now tossed the ball, run quite a distance with it."). Second, although we reverse the court below, we find no misapplication of the summary judgment standard in this difficult case. Indeed, we remind appellants that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." See Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2510.
33
In making their allegation, the Muleros contend that the district court should not have credited Sabines' and Ponte's testimony because of their invocation of the privilege against self-incrimination. The defendants retort that this issue was not raised below, and so, as this is not an exceptional case requiring a deviation from the norm, the Muleros are precluded from raising it here. See Villafane-Neriz v. FDIC, 75 F.3d 727, 734 (1st Cir.1996). Even if the argument were raised below, however, the defendants' invocation of the privilege is largely irrelevant here. The Muleros' argument goes to credibility, and it is well established that the nonmovants are entitled to all reasonable inferences in a summary judgment case, whether or not the moving party invoked their privilege. At the same time, the Muleros misapprehend the nature of the case law they cite: "the Fifth Amendment does not forbid adverse inferences against parties in civil actions when they refuse to testify," Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810 (1976), see FDIC v. Elio, 39 F.3d 1239, 1248 (1st Cir.1994), but nor does it mandate such inferences, especially as regards topics unrelated to the issues they refused to testify about. Cf. Serafino v. Hasbro, Inc., 82 F.3d 515, 518 (1st Cir.1996) (noting that "assertion of the privilege may sometimes disadvantage a party" (emphasis added)). Indeed, to hold otherwise would seem to go against the premise that the Fifth Amendment " 'guarantees ... the right of a person to remain silent ... and to suffer no penalty ... for such silence.' " Id. at 517 (quoting Spevack v. Klein, 385 U.S. 511, 514, 87 S.Ct. 625, 628, 17 L.Ed.2d 574 (1967) (emphasis added)). Therefore, we do not find that the district court misapplied Baxter v. Palmigiano.
B. Discovery
34
The Muleros next contend that the district court abused its discretion in refusing the parties' joint motion to extend discovery.2 See Ayala-Gerena, 95 F.3d at 91 (noting that we review district court's pre-trial discovery order for abuse of discretion). They argue that protracted discovery disputes, interruptions in the discovery process, and an early cutoff date3 made the requested four-month extension essential. The result, they continue, was a prejudicial impact on their ability to contest the testimonial evidence presented in the summary judgment motion.
35
However, the Muleros did not seek reconsideration of the district court's denial of the parties' stipulation for the extension of the discovery period. Nor did the appellants mention the need for further discovery in their part of the Proposed Pretrial Order; indeed, they cited the fact that "discovery [had] long since closed" in arguing that the defendants' summary judgment motion was untimely and contravened Local Rule 312. Plaintiffs' Proposed Pretrial Order, at 23. Further, the Muleros' Opposition to Defendants' Motion for Summary Judgment and their Surreply in Further Opposition to Motion for Summary Judgment are both silent as to the district court denial of additional time for discovery, as well as to any need for additional discovery. Finally, the Muleros did not file a Rule 56(f) motion requesting additional discovery in order to oppose the Motion for Summary Judgment. In these circumstances, the Muleros have well and fully waived their right to argue this issue on appeal. See Correa v. Hospital San Francisco, 69 F.3d 1184, 1195 (1st Cir.1995) (noting that failure to raise an issue in the final pretrial order generally constitutes waiver), cert. denied, --- U.S. ----, 116 S.Ct. 1423, 134 L.Ed.2d 547 (1996); Beaulieu v. IRS, 865 F.2d 1351, 1352 (1st Cir.1989) ("[I]t is a party's first obligation to seek any relief that might fairly have been thought available in the district court before seeking it on appeal.").
C. The Supplemental Claims
36
Finally, the Muleros argue that the district court erred in entering a judgment on the merits on the Muleros' supplemental Puerto Rico law claims. They argue that the summary judgment motion focused solely on the Title VII and ADEA claims, such that the Puerto Rico law claims were not even the subject of the motion. Accordingly, they posit, when it dismissed the Muleros' federal law claims, the district court should have dismissed the supplemental Puerto Rico law claims without prejudice to their being refiled in a court of competent jurisdiction.
37
The defendants contend that the issue has not been properly raised before this court, as the Muleros failed to designate the dismissal of the supplemental claims as an issue on appeal, and so the appeal should be deemed waived. See Fed. R.App. P. 10(b)(3). Specifically, the Muleros' first stated issue was that the court below erred in granting the motion for summary judgment and dismissing the action "as there existed genuine issues of material fact requiring trial." Appellants' Brief, at 1. The second stated issue regarded the discovery continuance. We agree with the defendants that the issues as presented do not encompass the question whether the Puerto Rico law claims should have been dismissed.
38
Moreover, even if the Muleros' statement of issues encompassed the question now raised, it would still have been deemed waived. The defendants' Motion for Summary Judgment specifically requests summary judgment as regards both the federal and state law claims, as did their Reply to the plaintiffs' Opposition, such that the district court did have the Puerto Rico law claims in front of it. The Muleros' Opposition and Surreply, however, remained silent as to the Puerto Rico law claims: they argued neither that the Puerto Rico law claims should be dismissed without prejudice, as they do now, nor that the court should exercise its supplemental jurisdiction over these claims. Nor did they file a motion for reconsideration. In these circumstances, we find that the Muleros have indeed waived this argument. See McCoy v. Massachusetts Institute of Technology, 950 F.2d 13, 22 (1st Cir.1991), cert. denied, 504 U.S. 910, 112 S.Ct. 1939, 118 L.Ed.2d 545 (1992).
CONCLUSION
39
For the reasons presented above, the district court's denial of the joint motion to extend discovery is affirmed. The opinion of the district court granting summary judgment is reversed as to the Title VII and ADEA claims, and affirmed as to the pendent Puerto Rico Law claims. We remand this case to the district court for proceedings consistent with this decision.
1
We note that the district court's recognition that Mulero had been promoted over a 29-year period in which defendants undoubtedly knew of his Puerto Rican origin is not conclusive. As the district court found, only in late 1991 did Ponte, an acknowledged decision maker, begin to work at the company. A jury could infer from this and the policy changes she instituted that Ponte was a "new broom" and wanted to "sweep clean" according to her own prejudices, which had heretofore been ignored
2
The Muleros do not seem to address their argument to either of the Magistrate Judge's two orders regarding discovery deadlines. Nonetheless, we note that, although they filed a motion seeking clarification of one aspect of the second magistrate's order (which was denied), they did not in fact file an objection to either order regarding the discovery deadline, and so any argument regarding the Magistrate Judge's order has been waived. See Fed.R.Civ.P. 72(a) (party must object to magistrate judge's order within ten days); Pagano v. Frank, 983 F.2d 343, 345-46 (1st Cir.1993)
3
The discovery cutoff date was set for September 12, 1994, seven months after the defendants answered the complaint on February 11, 1994 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/524906/ | 877 F.2d 61Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Paul JACKSON, Defendant-Appellant.
No. 88-5122.
United States Court of Appeals, Fourth Circuit.
Argued March 8, 1989.Decided June 6, 1989.
David Benjamin Smith (English & Smith on brief) for appellant.
Bonnie S. Greenberg (Jean Barrett, Special Assistant United States Attorney on brief) for appellee.
Before SPROUSE, Circuit Judge, BUTZNER, Senior Circuit Judge, and FRANK A. KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.
PER CURIAM:
1
Paul Jackson appeals from a judgment of the district court entered after a jury verdict finding him guilty of possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and of interstate travel in aid of racketeering in violation of 18 U.S.C. Secs. 1952 and 2. He was sentenced to concurrent terms of sixty-three months on the cocaine charge and sixty months on the Travel Act charge. In addition, the district court imposed a $10,000 fine for the cocaine charge, a $12,500 fine for the Travel Act charge, and supervised release sentences of five years on each count, to run concurrently, as well as a special assessment of one hundred dollars.
2
On January 26, 1988, two Drug Enforcement Administration agents approached sixteen-year-old Malena Seabrooks at Washington National Airport after she deplaned from a flight originating in Miami, Florida, and made two telephone calls. She consented to a search of her traveling bag, and the agents discovered two packages of cocaine, one containing 893 grams of cocaine hydrochloride and the other containing 180 grams. After she was arrested for possession of the cocaine, she agreed to cooperate in making a controlled delivery to the individual she was instructed to contact and who was to pick her up at the airport.
3
The agents replaced only the smaller package of cocaine in Seabrooks' bag which was then given back to her. At an agent's request, Seabrooks again called the telephone number she had called previously. This time she was called back immediately and approximately five minutes later was approached by Jackson who spoke with her briefly and then took possession of the bag containing cocaine. He was then arrested.
4
According to the government's evidence, after being arrested Jackson told the agents that he travelled to the airport to pick up Seabrooks and knew that she was in possession of drugs. He explained that he was being paid $700 to pick her up and that he had been instructed to take the packages to another person at a parking lot in Maryland. According to the DEA agent, who testified at trial, Jackson also stated to that agent that he had "either dropped off or picked up individuals at the [Washington National] airport on three other occasions."
5
Jackson's testimony at trial, however, differed from the agent's account. He denied making the statements attributed to him by the DEA agent and claimed that the agent had threatened him with bodily harm. Further, Jackson claimed he was at the airport because his cousin, Dale Reed, telephoned him and asked him to pick up Seabrooks. He stated that when he met her she simply handed him her bag and asked him to help with her luggage. Reed corroborated Jackson's version of the events by testifying that Seabrooks telephoned him to request a ride to her home and, since he did not have a car, he called Jackson at his home to ask him to pick up Seabrooks.1
6
On appeal, Jackson concedes that the evidence was sufficient to convict him of possession with intent to distribute cocaine. He contends, however, that the evidence was insufficient to convict him of possession of more than 500 grams of cocaine to which a mandatory five-year term of imprisonment applies. See 21 U.S.C. Sec. 841(b)(1)(B). The court instructed the jury on theories of actual possession, constructive possession, and aiding and abetting another to commit a crime. In viewing the evidence in a light most favorable to the government, United States v. Snowden, 770 F.2d 393, 397 (4th Cir.), cert. denied, 474 U.S. 1011 (1985), we think the evidence so convincingly supports a finding of both constructive possession and aiding and abetting that no further discussion apart from the above factual summary is necessary.
7
Jackson also contends that the district court erred in its jury instruction on the Travel Act count. We agree that the district court's instruction concerning the second count of the indictment was, at best, confusing and constitutes prejudicial error. Count II of the indictment, in effect, charged that Jackson aided and abetted Seabrooks in traveling in interstate commerce from Miami, Florida, to Washington National Airport in Arlington, Virginia. It stated:
8
On or about January 26, 1988, defendant, PAUL JACKSON did aid, abet, induce and procure another to willfully travel in interstate commerce from Miami, Florida to Washington National Airport in Arlington, Virginia, within the Eastern District of Virginia, with the intent to promote, manage, establish, carry on and facilitate the promotion, management, establishment, and carrying on of an unlawful activity, to wit: the distribution and possession with intent to distribute cocaine, a Schedule II, narcotic controlled substance, and thereafter the said defendant, PAUL JACKSON, did perform acts, and aid, abet, induce and procure another to perform acts, to promote, manage, establish, carry on, and facilitate the promotion, management, establishment and carrying on of said unlawful activity.
The court, however, told the jury:
9
It is charged in Count II of the indictment that: On or about January 26, 1988, at the Washington National Airport, in Arlington, Virginia, in the Eastern District of Virginia, the defendant Paul Jackson did knowingly, unlawfully and intentionally travel or transport between states in aid of racketeering enterprises.
10
In explaining the actions which could have made Jackson guilty of violating the Travel Act, the court told the jury:
11
First: That the defendant Paul Jackson on or about January 26, 1988, traveled in interstate commerce or used the facilities in interstate commerce;
12
Second: That the travel or use of the facilities was done with the specific intent to further the unlawful activity of possession with intent to distribute cocaine in Arlington County, in the Eastern District of Virginia, in violation of the laws of the United States;
13
Third: That the defendant, following such travel and use, performed or attempted to perform acts of possession with intent to distribute cocaine as charged in the indictment.
14
The court's instruction simply does not instruct the jury concerning the violation charged in the indictment and conceivably allowed the jury to find that Jackson violated the statute simply by crossing the Maryland-Virginia border on his way to the airport rather than by his alleged participation in Seabrooks' travel in interstate commerce. Accordingly, Jackson's conviction on the Travel Act charge must be reversed.
15
In view of the above, the judgment of the district court finding Jackson guilty of count I of the indictment is affirmed. That part of the judgment finding Jackson guilty of count II, the Travel Act charge, is reversed and remanded with instructions to vacate that part of the judgment and to return to him that part of the fine imposed for his conviction under count II.
16
AFFIRMED IN PART, REVERSED AND REMANDED IN PART WITH INSTRUCTIONS.
1
Jackson appeared at the airport five minutes after Seabrooks' second call. Reed testified that it would have taken Jackson from forty-five minutes to an hour to travel from Jackson's home to the airport | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/525376/ | 878 F.2d 369
Sidney P. SELIGSON, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 89-3068.
United States Court of Appeals,Federal Circuit.
June 20, 1989.
Sidney P. Seligson, Witchita Falls, Tex., pro se.
Steven A. Hemmatt, Dept. of Justice, Washington, D.C., for respondent. With him on the brief were John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director and Helene M. Goldberg, Asst. Director. Also on the brief were James M. Strock, Gen. Counsel, Thomas F. Moyer, Asst. Gen. Counsel and Gail L. Goldberg, Deputy Asst. Gen. Counsel, Office of Personnel Management, of counsel.
ON MOTION FOR PUBLICATION OF OPINION
Before RICH, Circuit Judge, NICHOLS, Senior Circuit Judge, and ARCHER, Circuit Judge.
ORDER
1
The court, PER CURIAM, determines as follows:
2
In the above-entitled case we affirmed by our unpublished decision of May 5, 1989, a decision of the Merit Systems Protection Board (MSPB), Docket No. DA831M8810234. It had affirmed the refusal of the Office of Personnel Management (OPM) to grant petitioner Seligson a waiver of his debt to the United States in the amount of $8,899.91, owed by him to reinstate his retirement account in view of his reinstatement as a civilian employee of the United States Air Force after an adverse action. He asked for forgiveness which OPM had authority to grant, if it deemed that certain conditions were met, under 5 U.S.C. Sec. 8346-(b). These were that the individual was without fault and recovery against him would be against equity and good conscience. At OPM, MSPB, and with us, Mr. Seligson's nonsuccess was due in part to his failure to make use of the forms OPM provided to show in a clear and understandable way that repayment of the involved sum would be a hardship for him.
3
Our opinion was not prepared for publication because it did not add significantly, we thought, to the body of law, and was not of widespread legal interest. It appeared to us to be made up almost wholly of fact-specific material, and publication would needlessly infringe Mr. Seligson's expectations of privacy concerning his financial condition.
4
The OPM has now moved for publication under our Local Rule 47.8(d). OPM says:
5
The decision is one that merits publication. It holds that OPM may rely upon documentation provided by an application for a waiver of an overpayment of monies from the Civil Service Retirement and Disability Fund and that OPM is not obligated to perform an audit upon the books and records of the applicant. This holding is a significant one, inasmuch as it approves OPM's practice of requiring applicants for waivers to establish their financial condition through the submission to OPM of pertinent financial information. It would be administratively impractical, if not impossible, for OPM to investigate the financial condition of all applicants for waivers. The Court's decision implicitly recognizes that fact in holding that applicants must establish their own financial condition through their submissions to OPM.
6
The holding in this case is of great importance to OPM because of its recognition and approval of OPM's practice and procedures in waiver cases. No other published decision of this Court or its predecessors addresses the issues considered in this case; therefore, OPM respectfully requests that the Court publish its opinion in this case.
7
We deny the motion because we still do not think the opinion adds significantly to the body of law. We hardly can imagine anyone who would suppose the OPM was required to conduct an audit or not to ask an applicant for a waiver to demonstrate his own financial condition. The OPM can cite this order, as it will be published, if it wants judicial authority approving the procedure it followed in Mr. Seligson's case. By nonpublication of the May 5, 1989, opinion, the privacy of Mr. Seligson is not further invaded.
8
In general, the stress hitherto has been on nonpublication of judicial opinions, or rather, publication of only a selected few, as a means of conserving judicial resources and keeping channels clear and unobstructed, for legal opinions that really matter to circulate in. A by-product of selective publication is also avoiding needless invasion of the privacy of individuals. The significance of this must not be overstressed as the unpublished opinion is still, of course, a public record that normally anyone can consult and copy. Here, the OPM could itself copy and circulate our unpublished opinion of May 5 if it saw fit to do so. However, it may not, and if it does, at least the judges are not doing it.
IT IS ORDERED THAT:
9
The respondent's motion be DENIED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/315741/ | 489 F.2d 193
UNITED STATES of America, Plaintiff-Appellee,v.William Darryl BLAKEMORE, Defendant-Appellant.
No. 73-1288.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 3, 1973.Decided Dec. 13, 1973.
Wm. H. Allison, Jr. (Court Appointed), Louisville, Ky., on brief for defendant-appellant.
James H. Barr, Asst. U.S. Atty., for plaintiff-appellee; George J. Long, U.S. Atty., on brief.
Before PHILLIPS, Chief Judge, McCREE and MILLER, Circuit Judges.
WILLIAM E. MILLER, Circuit Judge.
1
This is an appeal from a criminal conviction in the district court. The defendant-appellant, William Darryl Blakemore, was convicted in the court below on a charge of possessing a sawed-off .12 gauge shotgun in violation of 26 U.S.C. 5861(d). He was given a five year sentence to run concurrently with a yen year sentence he had received in state court for armed robbery.
2
The appellant makes a number of contentions on appeal, one of which is that the trial judge erred in allowing the prosecutor to comment in his agrument to the jury that the defendant's failure to call four prospective witnesses would give rise to an inference that their testimony would be unfavorable to the defendant. We deem it unnecessary to discuss the other assigned grounds for reversal since in our view this issue is critical.
3
The appellant and the prosecutor each presented a list of prospective witnesses to the trial judge for his use in conducting the voir dire. The appellant's list contained six names.1 During the course of the trial, the appellant called one witness from his list to testify. The prosecutor stipulated to the testimony of another defense witness on the list. At the close of the appellant's case, the prosecutor, out of the presence of the jury, asked for a ruling from the court as to whether the government could properly comment in closing argument on the appellant's failure to call four of the prospective defense witnesses to testify. The court ruled, without inquiry as to why the witnesses were not called or as to what their testimony would be, and over the appellant's objection, that such comment was proper.2
4
Following the court's ruling, the appellant's attorney, making the opening argument consistent with the local practice and apparently in an attempt to lessen the impact of the prosecutor's anticipated comments, advised the jury that he had not called the remaining defense witnesses because the government's case was too weak to convict the appellant. Then the prosecutor, in the closing argument, made the following statement to the jury:
5
'Ladies and gentlemen, I'd like to point out to you, at the beginning of the trial the defendant and his counsel, Mr. Allison, indicated he had several witnesses to call, approximately four. Those witnesses were not called. The fact that they were not called would permit you to draw an inference that their testimony of those four individuals was unfavorable to the defendant and that's the reason they were not called.'
6
The court gave no instructions to the jury on this point.
7
3$ An adverse inference is permitted from the failure of a defendant to call witnesses if they are 'peculiarly within (his) power to produce' and if their testimony would 'elucidate the transaction.' Wynn v. United States, 130 U.S.App.D.C. 60, 397 F.2d 621, 625 (1967). See also United States v. Young, 150 U.S.App.D.C. 98, 463 F.2d 934 (1972); Gass v. United States, 135 U.S.App.D.C. 11, 416 F.2d 767 (1969). Most courts have carefully restricted application of the 'uncalled or missing witness' rule to situations where both of these elements are present. E.g. Pennewell v. United States, 122 U.S.App.D.C. 332, 353 F.2d 870 (1965).3 This two part analysis should be strictly applied. It first must be determined if the uncalled witnesses are peculiarly within the control or power of one party. The appellant urges that the four uncalled defense witnesses were not within his 'control' because they were equally available to the government. 'Availability' of a witness to a party must take into account both practical and physical considerations. Stewart v. United States, 135 U.S.App.D.C. 274, 418 F.2d 1110, 1115 (1969). Thus whether a person is to be regarded as peculiarly within the control of one party may depend as much on his relationship to that party as on his physical availability. Milton v. United States, 71 App.D.C. 394, 110 F.2d 556 (1940).4 In the present case, all four of the uncalled witnesses were present in the courtroom. The court did not specifically find that there was a special relationship of any kind between the appellant and any of the four prospective defense witnesses. Nor is there in the record any indication of relationship.
8
In addition to the element of control, it must be found, before an adverse inference may be drawn, that the anticipated testimony of the uncalled witnesses will 'elucidate the transaction.' The record in this case is barren of any inquiry by the court into the probable testimony of the four uncalled witnesses. As the court did not acquaint itself with the circumstances or conditions which would justify an adverse inference surrounding the failure of the defense to call the four witnesses, and as a specific objection was made by defense counsel to the court's ruling, we think it was error to allow the government to advise the jury that an adverse inference could be drawn. The resulting prejudice from such comments is compounded in this case by the circumstantial nature of the evidence against the appellant. The jury was already required to deal with inferences from the circumstantial evidence on which the government's case was almost entirely based. We are not, therefore, prepared to say that the government's comments on the failure of the defense to call the four witnesses was harmless or innocuous. Indeed, such comments would appear to have been clearly damaging to the defense.5
9
When counsel for either side intends to argue to the jury for an adverse inference to be derived from the absence of witnesses, an advance ruling from the trial court should be sought and obtained, as was done here. The trial court, however, before ruling on the appropriateness of such argument, must make the pertinent inquiries and findings indicated above. Furthermore, if such argument is to be permitted, and the operative facts appear to be in doubt or in dispute, an instruction should be given to the jury defining the conditions under which the inference might properly be drawn. Gass v. United States, 135 U.S.App.D.C. 11, 416 F.2d 767, 775 (1969). By these practices the risk of vitiating the entire trial by improper argument as to the absence of witnesses can be obviated. Although, as stated, the prosecution in this case did ask for and receive a favorable advance ruling from the trial judge before making its comments to the jury, the trial judge unfortunately failed, despite appellant's specific objection, to make the necessary inquiries or determinations to support his ruling permitting the comments to be made.
10
We therefore reverse appellant's conviction and remand for a new trial.
1
Some of these witnesses were under subpoena and some appeared voluntarily. We find it unnecessary to make a distinction between them for the purposes of our analysis in this case. Apparently the trial judge in qualifying the prospective jurors on voir dire had the defense witnesses identified merely to determine whether any juror was acquainted or had any connection with them. The jurors were in no way advised as to what the testimony of any witness on the defense list would be
2
At chambers the following colloquy occurred: (Mr. Allison for the defendant-appellant, Mr. Partin for the government)
MR. PARTIN: It would be the position of the United States that it would be proper in closing argument for the United States to note that there were certain witnesses subpoenaed on behalf of the defendant, these witnesses were not called to testify, which would permit the jury to draw an inference that their testimony would have been unfavorable to the defendant's position.
MR. ALLISON: I don't see that there is any relevance to it. Now, is it the U.S. Government's position that the Government feels that it has a right to comment on witnesses not only subpoenaed, but the whole prospective witness list?
BY THE COURT: Not-- he says that this-- that this right enures to him by the fact that you told the Court that you had these witnesses and you had me to voir dire the jury predicated that these were going to be your witnesses.
It's his intention here to show or infer that you expected in some manner to gain by just alerting the jury that you had all these witnesses, but he says now that they're not entitled to make that inference but in fact they are entitled to make the inference to the contrary because they were not going to help you. You wanted to benefit from a long list, so now the other end of it says he ought to benefit because of the fact you don't use it. And that's the rationale, as I understand it.
MR. PARTIN: Yes, sir.
BY THE COURT: . . . But you alerted the Court that you had a-- several witnesses ostensibly available to you which would assist you in the defense of this case and provide you with-- with undergirding testimony for your position, and I voir dired the jury based on that showing of yours. Then you didn't use several of them. The United States feels that under those circumstances he has the right, legitimately, to comment about it.
The Court rules that he may make comment in his closing argument concerning these witnesses who have been indicated as potential possible prospective witnesses by the defendant but who were not called to testify.
3
In some cases both sides have been allowed to argue adverse inferences to the jury in situations where both had equal ability to produce the witness and it was debatable which party might have been expected to call a witness. A review of these decisions reveals that the testimony of the disputed witness in each case was obviously essential to the full development of the facts. E.g., United States v. Jackson, 257 F.2d 41 (3d Cir. 1958). No analogous situation exists in this case
4
A review of the case law does not reveal a uniform definition of the types of relationships that should be considered in this analysis. In Milton v. United States, 71 App.D.C. 394, 110 F.2d 556 (1940), an employer-employee relationship was held to be sufficient to make the uncalled witness peculiarly within the control of the appellant. Although it has been stated that the employer-employee rule is generally applicable in civil cases (See Annot. 68 A.L.R. 2d 1072 (1957)), Milton is a criminal case. One early case, cited by most recent decisions concerning the uncalled witness rule, is Egan v. United States, 52 App.D.C. 384, 287 F. 958 (1923), where the court stated:
'The general rule is that no such inference may be drawn by a jury because a party fails to call as a witness one who is in a legal sense a stranger to him and is equally available to the other side. Jordan v. Austin, 161 Ala. 585, 50 So. 70; Cullum v. Colwell, 85 Conn. 459, 83 A. 695; State v. Fitzgerald, 68 Vt. 125, 34 A. 429; Wood v. Agostines, 72 Vt. 51, 47 A. 108; Briody v. The Persian Monarch (D.C.) 49 F. 669; The Oregon, 9 Cir., 133 F. 609, 629.' Hayden v. New York Railway Co., 233 N.Y. 34, 134 N.E. 826.
As mentioned earlier, practicality is the touchstone in this situation. There may be a relationship of such description (legal, personal, practical or perhaps even social) between a prospective witness and one party that would in a pragmatic sense make his testimony unavailable to the opposing party regardless of physical availability. Obviously the potential situations are too numerous and varied to make possible a comprehensive and definitive enumeration. The trial judge, using his sound discretion, must determine the sufficiency of the relationship by ascertaining the practical effect of any connection between the prospective witness and the party against whom the inference is sought to be used as well as the materiality of the witness' testimony; or conceivably in some situations these issues should be left to the jury under proper instructions.
5
The harmless error approach is available where the facts clearly point to the defendant's guilt. E.g. United States v. Jones, 140 U.S.App.D.C. 1, 433 F.2d 1107 (1970) (fingerprints on a rifled money box not accessible to the public). We do not regard the evidence in this case to be of such cogency or strength | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/589126/ | 972 F.2d 1337
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.James Dean BINGMAN, Plaintiff-Appellant,v.Jack MCCORMICK, Warden Montana State Prison; CandiceHilyer; et al., Defendants-Appellees.
No. 91-35605.
United States Court of Appeals, Ninth Circuit.
Submitted July 10, 1992.*Decided July 16, 1992.
1
Before ALARCON, RYMER AND T.G. NELSON, Circuit Judges
2
MEMORANDUM**
3
James Dean Bingman appeals the dismissal of his § 1983 complaint against the warden of the Montana State Prison. Bingman alleges that his constitutional rights were violated because he was improperly reclassified to a higher security level without due process. The district court, upon the magistrate's recommendations, found that Bingman was reclassified with due process. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
4
Assuming that the state of Montana provided Bingman with a protected liberty interest in his classification, the hearing in this case satisfied the minimum requirements of due process. The prison officials were "obligated to engage only in an informal, nonadversary review of the information supporting [Bingman's reclassification], including whatever statement [Bingman] wished to submit, within a reasonable time after confining him" to a higher security level. Hewitt v. Helms, 459 U.S. 460, 472 (1983). The record shows that Bingman was given prior notice of his reclassification hearing, was informed of the nature of the hearing and the charges against him, and was given an opportunity to make a statement.
5
Bingman's complaint also challenges the prison's failure to provide him with a written notice of the reclassification committee's decision. Assuming that the written notice required by Classification Regulation PD 82-204(G) was not given, Bingman, who was informed of the nature of the charges against him and who was made aware of the committee's decision when he was reclassified, has failed to show any prejudice resulting from the failure to give written notice. See United States v. Lovasco, 431 U.S. 783, 790 (1977) (proof of prejudice is generally a necessary element of a due process claim).
6
In his written objections to the magistrate's findings, Bingman also complained that he was not offered the services of an investigator. Bingman, however, cannot challenge the prison's failure to provide him with these services, for he has not shown that the state has provided him with a constitutionally protected interest in an investigator.
7
Finally, Bingman makes several arguments on appeal that were not raised before the district court. We decline to consider these arguments. See United States v. Oregon, 769 F.2d 1410, 1414 (9th Cir.1985) ("The rule is well-established that absent exceptional circumstances, an issue not raised below will not be considered on appeal.").
8
AFFIRMED.
*
The panel unimously finds this case suitable for decision without oral argument. Fed.R.App. P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/526658/ | 880 F.2d 415
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,vDavid COOPER, Defendant-Appellant.
No. 88-1078.
United States Court of Appeals, Sixth Circuit.
July 28, 1989.
Before KEITH and KENNEDY, Circuit Judges and RICHARD B. McQUADE, Jr., District Judge.*
PER CURIAM.
1
Defendant David Cooper appeals his jury conviction for (1) violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1962(c); (2) conspiracy to violate RICO, 18 U.S.C. Sec. 1962(d); (3) conspiracy to distribute prescription-drug controlled substances in violation of 21 U.S.C. Secs. 846 & 841(a)(1); (4) conspiracy to commit mail fraud in violation of 18 U.S.C. Secs. 371 & 1341; and (5) violation of the mail fraud statute, 18 U.S.C. Sec. 1341. Cooper challenges the sufficiency of the evidence to support his conviction on the above charges. We affirm.
I. Background
2
In original and superseding multi-count, multi-defendant indictments, dated April 24 and August 28, 1987, respectively, David Cooper, a licensed pharmacist, was charged with the five counts of violating, and conspiracy to violate, the RICO, controlled substance, and mail fraud statutes on which he was ultimately convicted. Jt.App. 10-92. Cooper was indicted along with 23 other individual defendants, including 17 licensed pharmacists, and 29 Southeastern Michigan retail pharmacy corporations which were part of the Unarex/Motor City Pharmacy Group. With the exception of Cooper, all defendants pled guilty before trial.1
3
Cooper's three week trial began on November 3, 1987. The government introduced evidence to prove that Cooper was part of a wide-ranging, decade-long conspiracy to engage in fraudulent insurance company billing, controlled substance violations and mail fraud by more than twenty pharmacies. The conspiracy was directed by the principals of the Unarex/Motor City chain of retail pharmacies--Melvin Boyer, Nathan Pack, and Paul Mittleman. Specifically, the two alleged schemes involved (1) filling customers' prescriptions with generic drugs, but billing the insurance companies for higher priced brand name drugs; and (2) filling large quantities of forged and illegal prescriptions for controlled-substance Schedule II drugs presented by dealers of "street drugs."
4
Cooper's involvement with Unarex began in late 1981, when the Unarex principals purchased Karp Pharmacy. In January 1982, Cooper was approached on their behalf by Gary Ingram, who offered to make Cooper a loan to enable Cooper to purchase 25% of Karp; Karp's other owners were the Unarex principals and Ingram. The loan was to be repaid out of the pharmacy's profits. Cooper managed the pharmacy, with Unarex handling Karp's payroll, corporate checkbook, paying the invoices for generic drugs, and receiving the insurance company checks sent through the United States mails.
5
The first of the two schemes, fraudulent generic substitution, involved substituting cheaper generic drugs for more expensive "brand name" drugs. The Government presented evidence that a customer would receive the cheaper generic drug, but the insurance company would be fraudulently billed for the brand name drug. Cooper, or one of his employees, would place a "double slash" mark on the prescription to indicate that a generic had been dispensed, but a brand name billed. Two of these employees, Shirley Bogoff and Grayce Alfonsi, were hired to replace experienced pharmacy technicians when Unarex purchased Karp Pharmacy. They testified that Cooper personally taught them the "double slash" mark system. A third employee with 12 years of experience as a pharmacy technician, Deborah Garver, testified that she did not engage in generic substitution, but that specific billings, including those in Cooper's handwriting, involved such substitution. Insurance companies, including Blue Cross/Blue Shield of Michigan, would pay Karp Pharmacy for the more expensive drug, sending payment through the United States mail to Unarex headquarters.
6
The second scheme involved the illegal distribution of controlled substances. The Government presented evidence that a "runner," a dealer of street drugs, would present Cooper or one of his employees with large numbers of forged or illegal prescriptions for "Schedule II" drugs,2 including dilaudid, talwin, preludin, and quaaludes. The runner would also hand over a large amount of cash. One runner subpoenaed as a witness, Ann Gentry, testified that she would usually put about $12,000 in a manilla envelope to pay for 1,000 tablets of dilaudid. Another witness, Mabel Hickey, testified that in one instance a runner sent by Gary Ingram openly displayed two pouches filled with prescriptions and handed two prescriptions over to a visibly agitated Cooper, who then filled the orders.
7
Finally, the Government introduced evidence that Cooper's controlled-substance prescription files were "shuffled" and misdated to make them appear more legitimate. The files included hundreds of forged Dr. Rhee and Dr. Horton prescriptions. Doctors Rhee and Horton testified that Cooper filled the prescriptions without once contacting them to verify that the prescriptions were valid.
8
On November 19, 1987, the jury found Cooper guilty on all five counts. On January 7, 1988, the court imposed concurrent three-year sentences on each count, plus a $5,000 committed fine, $250 in felony assessments, and forfeiture of Cooper's pharmacy license. The court denied Cooper's motion for acquittal pursuant to Rule 29(c), Fed.R.Crim.P. On appeal, Cooper challenges the sufficiency of the evidence to support his conviction on each of the five counts. Based on our examination of the record and consideration of the parties' briefs, we find no merit in Cooper's assertions.
II.
A. Standard of Review
9
A criminal defendant challenging the sufficiency of the evidence bears a heavy burden. The standard of review applied by this 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 beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). See United States v. Bourjaily, 781 F.2d 539, 544 (6th Cir.1986), aff'd, 483 U.S. 171 (1987) (quoting Jackson ). All evidence must be viewed in the light most favorable to the government. See, e.g., Glasser v. United States, 315 U.S. 60, 80 (1942); United States v. Chandler, 752 F.2d 1148, 1151 (6th Cir.1985); United States v. Pennell, 737 F.2d 521, 537 (6th Cir.1984), cert. denied, 469 U.S. 1158 (1985). Further, this Court may not make credibility determinations or weigh the evidence; those functions are within the province of the jury. Glasser, 315 U.S. at 80; United States v. Stull, 743 F.2d 439, 442 (6th Cir.1984), cert. denied, 470 U.S. 1062 (1985). Finally, circumstantial evidence alone can sustain a guilty verdict. United States v. Stone, 748 F.2d 361, 362 (6th Cir.1984).
B. Sufficiency of the Evidence
10
Based on the above standard of review, we conclude that the evidence was sufficient to support Cooper's conviction on each of the five counts. First, under Count Two of the indictment, the substantive violation of RICO, 18 U.S.C. Sec. 1962(c), the government was required to prove four elements: (1) defendant engaged in an enterprise; (2) the enterprise affected interstate commerce; (3) defendant's conduct or participation in the enterprise was conducted through a pattern of racketeering activity; and (4) the pattern of racketeering involved two or more of the racketeering offenses set out in the statute. See United States v. Sutton, et al., 642 F.2d 1001, 1008 (6th Cir.1980), cert. denied, 453 U.S. 912 (1981). Cooper contends that the evidence was insufficient to prove a "pattern of racketeering activity" or an "enterprise."
11
With respect to the "pattern of racketeering activity," Cooper challenges the pattern of mail fraud offenses under 21 U.S.C. Secs. 841(a)(1) & 846, involving the generic substitution scheme. Cooper argues that one of his employees, pharmacy technician Grayce Alfonsi, was unsure about the fraudulent billing procedure, and did not know anything was "wrong." The evidence was sufficient, however, to establish the billing fraud for two main reasons. First, Alfonsi herself testified that she engaged in generic substitution. She stated, "When I was taught how to bill, Mr. Cooper instructed me [to dispense the generic and bill Blue Cross for the brand name drug]." Witness Shirley Bogoff, another pharmacy technician, also testified that Cooper instructed her on the fraudulent billing scheme. A third technician, Deborah Garver testified that Cooper and the other technicians engaged in the practice, although she did not. With regard to not knowing it was "wrong," the jury could have inferred that Alfonsi and Bogoff did not know that the billing procedure was illegal because of their inexperience as pharmacy technicians. Alternatively, the jury could have found this portion of their testimony not credible.
12
Cooper's conviction under section 1962(c) is also supported by his own admission that he engaged in generic substitution for "bookkeeping purposes." He explains that insurance companies tightened their procedures in 1984 to require dispensing only generic drugs in some instances. If he did not have the generic on hand, he would dispense a brand name, and "take" the loss without passing it on to the customer. He would then substitute the generic on the next prescription to balance the "loss" with a "gain." This "bookkeeping" argument fails not only because no evidence was submitted at trial on this defense except his self-serving testimony, but also because it did not constitute a valid defense. Both the government's and defendant's pharmacy experts testified that it is always wrong to dispense generic and bill for brand name drugs. Moreover, even after being warned that it was wrong, the evidence shows that Cooper continued to engage in the practice.
13
The "enterprise" requirement was also clearly satisfied. The Unarex/Motor City Pharmacy Group was an "enterprise" of associated retail pharmacies, pharmacists and employees existing in corporate form, with interlocking ownership and management, for over a decade. Unarex did $90 million in billings to Blue Cross/Blue Shield alone between 1971 and 1985. Unarex purchased millions of dollars worth of medication manufactured outside of Michigan, thus also meeting the interstate commerce requirement.
14
With respect to Count One of the indictment, Cooper contends that there was insufficient evidence linking him to a conspiracy to violate RICO, 18 U.S.C. Sec. 1962(d). The evidence is sufficient to support both the fact that a conspiracy existed, and that Cooper was a member of that conspiracy. See United States v. Truglio, 731 F.2d 1123 (4th Cir.), cert. denied, 469 U.S. 862 (1984). Cooper cannot seriously dispute the existence of a RICO conspiracy involving the Unarex/Motor City Pharmacy Group and its principals--Boyer, Pack, and Mittleman--who all pled guilty. Once a conspiracy is established, the government need only provide "slight additional evidence" of the defendant's participation in the conspiracy. United States v. Hamilton, 689 F.2d 1262, 1275 (6th Cir.1982), cert. denied, 459 U.S. 1117 (1983). Cooper's agreement to participate in the RICO conspiracy may be inferred from his acts. United States v. Joseph, 835 F.2d 1149, 1152 (6th Cir.1987).
15
More than slight evidence exists to link Cooper to the conspiracy. First, although he argues that the "double slash" system was merely a bookkeeping device, it was identical to the "code" created by Melvin Boyer, one of the Unarex principals, and used at other Unarex pharmacies. Another codefendant, Ronald Drexler, testified that it was taught to him "from day one," and that the code was used throughout the Unarex pharmacy chain. A rational trier of fact could have inferred that a Unarex official also taught the code to Cooper. Second, additional inferences could be drawn from the fact that Unarex handled Karp's payroll, corporate checkbook, paying for invoices on generic drugs, receiving insurance company checks fraudulently billed by Karp, and splitting the profits of Karp.
16
Cooper argues on the third count, conspiracy to distribute controlled substances in violation of 21 U.S.C. Secs. 846 & 841(a)(1), that the jury misinterpreted Nathan Pack's testimony that Gary Ingram was sending Cooper "Schedule II" patients, and that Ann Gentry was not credible and was a surprise witness. However, as we explained in Part II.A. above, this Court may neither make credibility determinations nor weigh the evidence. As to the surprise witness argument, the defendant was not entitled to a witness list. See United States v. Carter, 621 F.2d 238, 240 (6th Cir.), cert. denied, 449 U.S. 858 (1980). Moreover, the witness was not a "surprise" in light of the fact that Cooper's attorney was attacking the government for not producing Gentry at trial. The government subsequently located and subpoenaed her as a witness, with no objection or request for a continuance from Cooper's attorney.
17
The last two counts, violation and conspiracy to violate the mail fraud statute, 18 U.S.C. Secs. 371 & 1341, were supported by the evidence of the generic substitution scheme discussed above. The insurance companies paid the fraudulent billings by checks sent through the United States mail. Cooper's argument that Nathan Pack at one time warned him to stop his fraudulent practices and could not, therefore, be a co-conspirator, is without merit. The purported warning could as easily be interpreted as a warning not to get caught.
18
The judgment of the District Court is AFFIRMED.
*
Honorable Richard B. McQuade, Jr., United States District Judge for the Northern District of Ohio, sitting by designation
1
Following the trial and conviction of Cooper, this Court vacated codefendant Marvin Goldberg's plea and remanded the case for repleading based on the trial court's failure to secure a sufficient factual basis for the original plea. No such issue arises in the present case. See United States v. Goldberg, 862 F.2d 101 (6th Cir.1988). A second defendant was never arrested or identified, and the government voluntarily dismissed the charges against two other defendants
2
See 21 U.S.C. Sec. 812(b)(2) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1609121/ | 21 So.3d 311 (2009)
MAGNOLIA ENTERPRISES, L.L.C.
v.
MORRISON INSURANCE AGENCY, INC., et al.
No. 2009-CC-1871.
Supreme Court of Louisiana.
November 6, 2009.
*312 Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4515776/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Trevon Randle v. The State of Texas
Appellate case number: 01-19-00916-CR
Trial court case number: 1588177
Trial court: 179th District Court of Harris County
Appellant, Trevon Randle, was convicted of the felony offense of possession of a
controlled substance, weighing less than one gram. On November 5, 2019, appellant filed a notice
of appeal of the trial court’s November 5, 2019 judgment. The record in this case was due on
January 6, 2020. See TEX. R. APP. P. 35.2. A clerk’s record has not been filed. On January 8,
2020, we notified the Harris County district clerk that the clerk’s record had not been filed and
requested that the record be filed within 30 days. To date, this Court has not received a clerk’s
record.
The trial court clerk is responsible for preparing, certifying, and timely filing the clerk’s
record when a notice of appeal has been filed and, in criminal proceedings, the trial court has
certified a defendant’s right to appeal. See id. 35.3(a); see also id. 34.5(a). Our record indicates
that appointed counsel represented appellant in the trial court and counsel has been appointed to
represent appellant on appeal. Further, the Harris County district clerk’s online docket indicates
that appellant is indigent. See id. 35.3(a).
Accordingly, the Harris County district clerk is directed to prepare, certify, and file
a clerk’s record containing the items required under Texas Rule of Appellate Procedure
34.5(a)(2)–(10), (12), (13) and any additional items requested in “Defendant’s Designation to
the Clerk of Matters to be Included in the Record.” The clerk’s record is due to be filed with
this Court within 30 days of the date of this order.
It is so ORDERED.
Judge’s signature: _____/s/ Julie Countiss______
Acting individually Acting for the Court
Date: ___March 12, 2020___
1 | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3034171/ | FILED
NOT FOR PUBLICATION MAR 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30295
Plaintiff - Appellee, D.C. No. 4:04-cr-00056-SEH
v.
GREGORY MORRIS POWDERFACE, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Gregory Morris Powderface appeals from the nine-month sentence imposed
following revocation of his supervised release. We have jurisdiction pursuant to
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.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
JC/Research
Powderface contends his nine-month sentence is substantively unreasonable
because prison alone does not serve the sentencing purposes of deterrence,
protection of the public, and rehabilitation. In light of the totality of the
circumstances of this case and the applicable 18 U.S.C. § 3553(a) sentencing
factors, the sentence is substantively reasonable. See 18 U.S.C. § 3583(e)(3);
Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Cope,
527 F.3d 944, 952 (9th Cir. 2008) (applying reasonableness requirements to
supervised release term).
AFFIRMED.
JC/Research 2 09-30295 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1609223/ | 270 F.Supp. 963 (1967)
UNITED STATES of America
v.
Helen WOOD, Defendant.
No. 66 CR. 745.
United States District Court S. D. New York.
February 2, 1967.
*964 Robert M. Morgenthau, U. S. Atty. for Southern District of New York, for plaintiff, Stephen F. Williams, New York City, of counsel.
Eugene Gibilaro, New York City, for defendant.
MEMORANDUM
TENNEY, District Judge.
Defendant moves herein for an order: (1) pursuant to Rule 16 of the Federal Rules of Criminal Procedure directing the United States Attorney to permit defendant's counsel to inspect and copy any relevant statements or confessions made by said defendant; and (2) pursuant to Rule 41 of said Rules directing suppression of certain evidence seized during a search of a basement beneath defendant's place of business conducted pursuant to a search warrant.
Defendant is charged in a three-count indictment with having in her possession chattels, each having a value of more than $100.00, to wit, three Underwood typewriters, which had been stolen from an interstate shipment, knowing the same to have been stolen, in violation of Title 18 U.S.C. § 659 (1964).
Motion for Discovery and Inspection.
Defendant alleges that at the time of her arrest, she was taken to an office of the Federal Bureau of Investigation where she was questioned with respect to the charges set forth in this indictment. A written statement was signed by her but she was not given a copy of it. The Government contends that no sufficient reason has been given for the Court to exercise its discretion and grant defendant the relief sought.
Rule 16(a) of the Federal Rules of Criminal Procedure provides in pertinent part that
Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph any relevant (1) written or recorded statements or confessions made by the defendant * * * within the possession, custody or control of the government * * *.
I have recently held that under the amended Rule 16(a), a defendant is not required to advance a "compelling" reason for discovery and inspection before a motion under said Rule is granted. Nevertheless, some demonstration of need will be required before the Court will grant such request. United States v. Leighton, 265 F.Supp. 27, S.D.N.Y., Jan. 23, 1967; United States v. Diliberto, 264 F.Supp. 181, S.D.N.Y., Jan. 5, 1967; cf. United States v. Roberts, 264 F.Supp. 622 S.D.N.Y., Dec. 29, 1966.
No such showing has been made herein, and, accordingly, this motion will be denied unless defendant, within ten (10) days of the date of this order, will submit an affidavit to me setting forth the grounds for the request. If such affidavit is submitted, the Government will be afforded an opportunity to answer within five (5) days of its receipt of said papers.
Motion to Suppress.
Defendant alleges that on or about August 31, 1966, agents of the Federal Bureau of Investigation visited her store in Manhattan while she was absent therefrom. A search warrant was served on her son, who was in charge of the store at that time. The agents "then * * * proceeded to the basement of said premises and conducted a search thereof." While searching said basement, three typewriters, empty cartons and papers were found and seized. Defendant seeks *965 to suppress the use of these items on the ground that there was no probable cause for the issuance of the search warrant.
Before reaching the issue of probable cause, I have serious reservations with respect to the standing of this defendant to challenge the search. Any discussion of standing necessarily must include a detailed examination of the Supreme Court's decision in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). In Jones, the defendant was convicted of violating the federal narcotics law, to wit, 26 U.S.C. § 4704(a) (sale, etc., of narcotics not from the original stamped package) and 21 U.S.C. § 174 (facilitating concealment and sale of narcotics knowing the same to have been illegally imported). Prior to trial, he moved to suppress any evidence obtained pursuant to the execution of a search warrant because the warrant had allegedly been issued without probable cause. The district judge denied the motion on the ground that petitioner neither alleged ownership of the seized articles nor had an interest in the apartment searched greater than that of an invitee or guest, and, hence, lacked standing to object.
In reversing Jones' conviction, the Supreme Court noted that "ordinarily * * * it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy." Id. at 261, 80 S.Ct. at 731. To show this invasion of privacy or "to establish `standing' Courts of Appeal have generally required that the movant claim either to have owned or possessed the seized property or to have had a substantial possessory interest in the premises searched." Ibid. However, where a conviction may be obtained on a mere showing of possession (such as a federal narcotics conviction), Rule 41(e) of the Federal Rules of Criminal Procedure should not be utilized to deprive a defendant of standing. Otherwise, a defendant in such a case would be faced with the anomalous situation wherein possession would both convict and confer standing, and a conviction should not be based on such internally inconsistent theories. Id. at 261, 263, 264, 80 S.Ct. 725.
With respect to the interest in the premises necessary to confer standing, Mr. Justice Frankfurter, writing for the Jones majority, abrogated the "property" requirement previously promulgated by the appellate courts[1] (Id. at 266-267, 80 S.Ct. 725) by stating that "anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him." Id. at 267, 80 S.Ct. at 734.
Summarizing the Jones decision, I find that the Supreme Court has promulgated the following rules:
(1) Ordinarily, in order to challenge a search, the defendant must assert a proprietary or possessory interest in the property seized or the premises searched, or he must be on the premises lawfully at the time of the search. See United States v. Bozza, 365 F.2d 206, 223-224 (2d Cir. 1966); United States v. Thomas, 342 F.2d 132 (6th Cir.), cert. denied, 382 U.S. 855, 86 S.Ct. 105, 15 L.Ed.2d 92 (1965); Murray v. United States, 333 F.2d 409 (10th Cir. 1964); Fisher v. United States, 324 F.2d 775 (8th Cir. 1963), cert. denied, 377 U.S. 999, 84 S.Ct. 1935, 12 L.Ed.2d 1049, rehearing *966 denied, Lindquist v. U. S., 379 U.S. 873, 85 S.Ct. 24, 13 L.Ed.2d 81 (1964); Williams v. United States, 323 F.2d 90 (10th Cir. 1963), cert. denied, 376 U.S. 906, 84 S.Ct. 659, 11 L.Ed.2d 605 (1964); Smith v. United States, 321 F.2d 954 (9th Cir. 1963); United States v. Paroutian, 299 F.2d 486 (2d Cir. 1962); United States v. Romano, 203 F.Supp. 27, 30 (D.Conn.1962).
(2) Where the Government need only prove possession to convict a defendant of a crime, said defendant will have standing to contest a search and seizure even though he may deny possession or ownership of property seized and interest in the premises searched and was not present on the premises at the time of the search. United States v. Bozza, supra; United States v. Konigsberg, 336 F.2d 844, 847 (3d Cir.), cert. denied, 379 U.S. 930, 85 S.Ct. 327, 13 L.Ed.2d 344 (1964).
(3) A defendant legitimately present on the premises searched will have standing to attack the seizure of any goods or the validity of the search regardless of proof of lack of a possessory or a proprietary interest in the premises. United States v. Thomas, supra, 342 F.2d at 135; Murray v. United States, supra 333 F.2d at 412.
Thus, I must now determine whether standing has been in any manner conferred by the criteria set forth in Jones.[2] The first issue to be resolved is whether the indictment charges a crime where the conviction flows merely from proof of possession. In United States v. Konigsberg, supra, defendants were indicted, tried and convicted of violating 18 U.S.C. § 659the same statute allegedly violated in the instant case. The Court rejected defendants' contention that this is the type of case alluded to in Jones, reasoning that possession is only one necessary element of a § 659 crime and, by itself, is insufficient to convict. 336 F.2d at 847; see United States v. Bozza, supra 365 F.2d at 222-223; United States v. Romano, supra 203 F.Supp. at 31. Hence, in the instant case, following the decision in Konigsberg, I find that the requirement of standing cannot be dispensed with.[3]
Since I have determined that the requirement of standing must be met, I now consider whether standing has been sufficiently alleged. Because of what has been hereinbefore set forth, the only way in which defendant would have standing is if she has alleged a sufficient possessory or proprietary interest in the premises. Reiterating what has been earlier set forth, defendant alleges that a search warrant was served on her son who was in charge of her store. The agents then "proceeded to the basement of said premises and conducted a search thereof." There is no showing by defendant that she had any interest in the basement. Even examining the statement in a light most favorable to her, defendant has done nothing more than alleged the mere possibility of an interest in that portion of the premises.
A person seeking to suppress relevant evidence has the burden of proving that his personal rights under the *967 fourth amendment have been violated. Murray v. United States, supra 333 F. 2d at 411-412; cf. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). Defendant has failed to show whether the basement searched was part of the store area leased or owned by her and, hence, has failed to establish that her right of privacy was invaded by the search. Murray v. United States, supra 333 F.2d at 412. Accordingly, I find that defendant has failed to sufficiently allege standing to challenge the search.
However, even assuming that defendant had satisfied her burden of proof with respect to the standing issue, I would not suppress the use of the seized items in this case for it is most clear that there was probable cause for the issuance of the warrant.
The affidavit of the agent states that the F.B.I. was informed by a trucking company that some 400 Olivetti-Underwood typewriters en route from Italy to New York had been stolen, and that one Clarence Holt[4] informed the agent that on the premises to be searched he had seen some 40 such typewriters, including one with a serial number 054569. This number corresponded to that of one of the typewriters reported stolen.
I do not see how defendant would require the affiant to allege anything more than has been set forth. There is no need to establish that Holt was a previously reliable informer. United States v. Bozza, supra, 365 F.2d at 225. The Constitution requires that there be a "substantial basis" for the issuer of the warrant to conclude that an offense was being committed. Rugendorf v. United States, 376 U.S. 528, 533, 84 S. Ct. 825, 11 L.Ed.2d 887 (1964); United States v. Bozza, supra, 365 F.2d at 225. Where the application is based on hearsay, there must be a substantial basis for crediting the statement of the declarant. Jones v. United States, supra, 362 U.S. at 269, 80 S.Ct. 725; United States v. Bozza, supra, 365 F.2d at 225; cf. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). This would require the United States Commissioner (the issuing officer) to be informed of some underlying circumstances upon which affiant has relied to conclude that the information received is reliable. Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L. Ed.2d 723 (1964); United States v. Bozza, supra, 365 F.2d at 225.
In the case at bar, agent Cook in his affidavit stated that Holt informed him that he (Holt) was on the premises, saw the typewriters and supplied the agent with a serial number of one of the machines. When the number given by Holt corresponded to that of one of the stolen typewriters, there was probable cause for the issuance of the warrant. See United States v. Bozza, supra.[5]
At this point, I see no need for conducting a hearing on the within motion to suppress. Only one factthe interest *968 of the defendant in the premises searched is in dispute. Since I have determined that even if defendant has standing there was probable cause for the issuance of the warrant, the fact in dispute is of no significance.
Accordingly, defendant's motion to suppress is in all respects denied.
The motions are disposed of as set forth herein.
So ordered.
NOTES
[1] E.g., Gaskins v. United States, 95 U.S. App.D.C. 34, 218 F.2d 47, 48 (1955) (per curiam) (no standing to guests); Steeber v. United States, 198 F.2d 615, 617 (10th Cir. 1952) (exercise of dominion or control over premises required); Jeffers v. United States, 88 U.S.App.D.C. 58, 187 F.2d 498, 501 (1950), aff'd, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951) (ownership in or right to possession of the premises required); United States v. Conoscente, 63 F.2d 811 (2d Cir.) (per curiam), cert. denied, 290 U.S. 642, 54 S.Ct. 60, 78 L.Ed. 557 (1933) (workman on premises lacked standing); Connolly v. Medalie, 58 F.2d 629, 630 (2d Cir. 1932) (per curiam) (night watchman on premises had no standing).
[2] The third principal of Jones has no bearing herein since, by her own admission, defendant was not on the premises lawfully or otherwise at the time of the search. See United States v. Thomas, 342 F.2d 132 (6th Cir.), cert. denied, 382 U.S. 855, 86 S.Ct. 105, 15 L.Ed.2d 92 (1965); Murray v. United States, 333 F.2d 409 (10th Cir. 1964).
[3] I have my doubts whether Jones should not be extended to include all cases where possession is a necessary element of the crime charged. However, it is clear that the Jones holding is limited as set forth in the accompanying text supra. Nevertheless, it would appear that the rationale of Jones (that where possession both confers standing and convicts, standing need not be alleged) should apply equally to cases where possession is a necessary element of the crime because "where the indictment itself charges possession, the defendant in a very real sense is revealed as a `person aggrieved by an unlawful search and seizure' upon a motion to suppress evidence prior to trial." Jones v. United States, 362 U.S. at 264, 80 S.Ct. at 733.
[4] Although the issue has not been raised by counsel for defendant, the status of the informant Holt has been investigated and, from information supplied me by the United States Attorney's Office, it would appear that Holt is neither a government agent nor was he unlawfully on the premises at the time the typewriters were originally seen by him.
[5] The facts of Bozza relating to search and seizure bear a striking resemblance to the facts presented herein. In Bozza, the affiant, a state police officer, investigated the burglary of a motor vehicle agency from which validating machines, license forms and inspection stickers had been stolen. One Brown reported purchasing stolen drivers' licenses and other items from Kuhle. These items were found in Brown's possession. On the basis of these allegations, a search of Kuhle's home was authorized. The Court of Appeals stated, "The identity of the licenses found on Brown with those known by * * * [the affiant] to have been stolen was a far stronger reason for believing Brown's story than a record of an informer's previous reliability." 365 F.2d at 225. In the case at bar, the serial number supplied by Holt which matched the number known by the F.B.I. agent was strong evidence of credibility. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609300/ | 270 F.Supp. 887 (1967)
Lloyd M. SEVITS, Plaintiff,
v.
McKIERNAN-TERRY CORPORATION (NEW JERSEY), M. T. Liquidation Corporation, Litton Systems, Inc., Litton Industries, Inc., Defendants.
LITTON SYSTEMS, INC., Defendant and Third-Party Plaintiff,
v.
UNITED STATES of America, Third-Party Defendant.
LITTON INDUSTRIES, INC., Defendant and Third-Party Plaintiff,
v.
M. T. LIQUIDATION CORPORATION, McKiernan-Terry Corporation (New Jersey), United States of America, Third-Party Defendants.
No. 65 Civ. 1804.
United States District Court S. D. New York.
July 14, 1967.
*888 Skadden, Arps, Slate, Meagher & Flom, New York City, for defendants McKiernan-Terry Corp. (New Jersey) and M. T. Liquidation Corp., William R. Meagher, Barry H. Garfinkel, Blaine V. Fogg, New York City, of counsel.
Lilly, Sullivan & Purcell, New York City, for plaintiff, George W. Sullivan, New York City, of counsel.
Townley, Updike, Carter & Rodgers, New York City, for defendant Litton Systems, Inc., Philip D. Pakula, W. Wright Danenbarger, New York City, of counsel.
*889 Robert M. Morgenthau, U. S. Atty., Louis E. Greco, Atty. in Charge, Admiralty and Shipping Section, Dept. of Justice, New York City, for third-party defendant, Philip A. Berns, New York City, of counsel.
OPINION
BRYAN, District Judge:
This is a diversity action to recover damages for personal injuries.
Plaintiff was seriously injured on August 19, 1963, while serving in the United States Navy aboard the aircraft carrier U.S.S. Constellation when he was struck in the legs by an arresting cable used for landing planes. Plaintiff alleges that the cable came loose due to the failure of an arresting engine or brake manufactured by the McKiernan-Terry defendants. The amended complaint asserts two claims for relief based upon negligence, and one claim for breach of warranty.[1]
Two groups of defendants are involved. The McKiernan group consists of the McKiernan-Terry Corporation (New Jersey) and M. T. Liquidation Corporation. The Litton group consists of Litton Industries, Inc., a Delaware corporation, and its subsidiary Litton Systems, Inc., a Maryland corporation.
It is undisputed that the arresting engine involved was manufactured by McKiernan-Terry Corporation (New Jersey) during 1958. In September 1962, McKiernan-Terry (New Jersey) changed its name to M. T. Liquidation Corporation and sold its assets to the Radcom Division of Litton Industries in return for Litton stock. In February 1963, the Radcom Division of Litton Industries was merged into Litton Systems, Inc. The issue between the Litton and McKiernan defendants, then, is whether Litton assumed this type of liability when it purchased McKiernan's assets in 1962. To resolve this issue a variety of procedural techniques have been employed. Litton Systems, Inc. has cross-claimed in this action against the McKiernan defendants. Litton Industries, Inc. has filed a third party complaint and impleaded the McKiernan defendants. The McKiernan defendants (through M. T. Liquidation) have commenced an action for declaratory judgment against Litton Industries in the District Court of New Jersey. Litton Systems has also filed a third party complaint and impleaded the United States.
The McKiernan defendants have now moved to dismiss the action in this court for want of personal jurisdiction and improper venue. Rule 12(b), F.R.Civ.P. An earlier motion by defendants for this relief was held in abeyance pending discovery on the issue of jurisdiction by plaintiff. When the present motion was returned in November, 1966, I allowed plaintiff further time to complete his jurisdictional discovery. The motions were finally argued before me on April 12, 1967.
Both motions seek to quash various alleged services of process for want of personal jurisdiction. By now plaintiff seems to have served defendants in every conceivable manner and I will assume that all methods of service to acquire personal jurisdiction have been invoked. Thus the question presently before me is whether plaintiff can obtain jurisdiction in this district on any basis.
In seeking to satisfy his burden of establishing jurisdiction, e. g., McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936), plaintiff makes two principal contentions. He urges first that at the time the arresting engine was manufactured the McKiernan defendants were doing business in New York pursuant to authority obtained from the state and *890 consequently are amenable to service on that basis; and second, that the McKiernan defendants transacted business in New York out of which the present claim for relief arose. N.Y.C.P.L.R. § 302(a) (1).
Defendants concede that McKiernan-Terry (New Jersey) was doing business in New York pursuant to authority obtained under then General Corporation Law § 210 (now Business Corporation Law § 1304, McKinney's Consol.Laws, c. 4) until September of 1962. While operating under that authority, of course, the defendants were amenable to suit in New York for all purposes. N.Y. Gen.Corp.Law § 225 (now Bus.Corp.Law § 1314(b) (5)). On September 20, 1962 McKiernan surrendered its certificate of authority to do business to the New York Secretary of State. Pursuant to N.Y.Gen.Corp.Law § 216 (now Bus.Corp. Law § 1310) paragraph 4 of the certificate of surrender provides that McKiernan consents to service of process against it in any subsequent "action or proceeding upon any liability or obligation incurred within the State of New York before the filing of this certificate."
Service here can be based upon McKiernan's certificate of authority only if plaintiff's claim is upon a liability incurred in New York before September 20, 1962. See Jay's Stores, Inc. v. Ann Lewis Shops, Inc., 15 N.Y.2d 141, 256 N.Y.S.2d 600, 204 N.E.2d 638 (1965). The complaint asserts claims based upon negligence in design and manufacture, and breach of warranty. The arresting engine involved here was manufactured in 1958 and installed some time thereafter. Thus, the complaint is based upon claims for liability "incurred" before September 20, 1962. Munn v. Security Controls, Inc., 23 A.D.2d 813, 258 N.Y.S. 2d 475 (4th Dept. 1965).
The next question is whether defendant's liability, if any, was "incurred" in New York. I hold that it was not. The arresting engine was manufactured in New Jersey, shipped by the McKiernan defendants to the Navy in Pennsylvania, and installed by the Navy in New York. In their depositions defendant's officers deny that McKiernan had any control over installation, or inspected or maintained the arresting engine after it left their New Jersey plant and there is no evidence to the contrary. In Singer v. Walker, 15 N.Y.2d 443, 464-467, 261 N.Y.S.2d 8, 24-27 (1965), the New York Court of Appeals ruled that the tort of negligent manufacture was committed at the place of manufacture and not within this state. The same reasoning applies to a non-purchaser's claim of breach of warranty, which is factually indistinguishable from the claim of negligent design and manufacture.
Moreover, it is clear that the liability or obligation at suit does not flow out of activities carried on in New York by the McKiernan defendants when they were authorized to do business here. Compare Antonana v. Ore S.S. Corp., 144 F.Supp. 486 (S.D.N.Y.1956); Carlton Properties, Inc. v. 328 Properties, Inc., 208 Misc. 776, 143 N.Y.S.2d 140 (Sup.Ct. 1955). Thus, plaintiff cannot base jurisdiction upon the surrendered certificate of authority.
Nor has plaintiff established jurisdiction under C.P.L.R. § 302(a) (1). That section requires that the claim for relief arise out of business transacted in New York. Singer v. Walker, 15 N.Y.2d 443, 464-67, 261 N.Y.S.2d 8, 24-27 (1965). The precise nature of McKiernan's business in New York prior to the merger with Litton is not clear. What little information the record contains suggests that it dealt primarily in industrial and salvage equipment, such as pile drivers. By the time of plaintiff's injury, however, McKiernan was not engaged in any business in New York. Nor would it seem that the activities surrounding McKiernan's ordinary civilian business can constitute a basis for jurisdiction on a claim arising from military business performed wholly without the state. Plaintiff has not shown any activities or similar transactions in New *891 York sufficient to support jurisdiction on his present claim under § 302(a) (1).
The only remaining possibility of jurisdiction rests on defendant's performance within New York of meaningful activities in connection with the arresting engine claimed to have caused the injuries. See Liquid Carriers Corp. v. American Marine Corp., 375 F.2d 951 (2d Cir. 1967); Longine-Wittnauer Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 455-458, 261 N.Y.S.2d 8, 17-19 (1965). The record does not show, however, any act by defendant in New York with relation to the engine. In their depositions, defendant's officers vigorously denied that they had inspected, installed or maintained the arresting engine while the Constellation was being built in Brooklyn Navy Yard. Their testimony was that once the engine had left the defendant's New Jersey plant they had no further contact with it. Again nothing has been shown to the contrary. It does not appear that the contract was negotiated in New York, or that the engine was shipped by defendants into this state.
On the record before me, I conclude that plaintiff has not established personal jurisdiction over the McKiernan defendants. The services of process heretofore made on them will be quashed. In view of my disposal of the jurisdictional motion, I need not pass on defendants' claim of improper venue. Nor need I decide defendants' motion to dismiss as to McKiernan-Terry (New Jersey) based on its change of name to M. T. Liquidation.
Finally, a few comments should be made upon the resulting posture of this case. My decision on this motion does not divorce the McKiernan defendants from this action, as they so strenuously argue. Litton Industries has filed a third-party complaint and thus impleaded the McKiernan defendants pursuant to Rule 14, F.R.C.P.[2] Service of the third-party complaint was effected in New Jersey pursuant to the 100 mile provision of Rule 4(f). The claim of the McKiernan defendants that such service is subject to constitutional objection in a diversity case is foreclosed by decisions upholding nationwide service in interpleader actions, which are also based on diversity. E. g., State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 87 S.Ct. 1199, 18 L.Ed.2d 270 (1967); see also Mississippi Pub. Corp. v. Murphee, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185 (1946); Monsieur Henri Wines, Ltd. v. S.S. Covadonga, 222 F.Supp. 139 (D.N.J. 1962).
The McKiernan defendants have also raised the issue of the possible applicability of New York's door-closing statute, Bus.Corp.Law § 1314(b), to bar impleader by Litton defendants. Federal courts in diversity actions were formerly required to apply such statutes in the same situations where a state court would apply them. E. g., Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949). Whether this feature of the Erie doctrine has survived recent transformations is open to some doubt. See Szantay v. Beech Aircraft Corp., 349 F.2d 60 (4th Cir. 1965); Comment, 66 Colum.L.Rev. 377 (1966). More pertinently, however, there is no evidence that New York would apply its statute in an impleader situation. The growing need for federal jurisdiction over multi-state litigations militates strongly against application of door-closing statutes in the circumstances of this lawsuit, even though the substantive issue may be governed by state law. Compare Arrowsmith v. United Press Int'l, 320 F.2d 219, 227 (2d Cir. 1963) (en banc); B. Kaplan, Amendments of the Federal Rules of Civil Procedure, 1961-1963(I), 77 Harv.L.Rev. 601, 629-35 (1964).
These comments are not intended to be dispositive of the issues not now raised by the McKiernan motions before me *892 but merely to indicate the very limited practical effect of my ruling granting such motions. The McKiernan defendants are still parties to this action through their impleader by Litton Industries and are quite likely to remain so, at the very least as third-party defendants, and quite possibly on a complaint by plaintiff against them in that capacity. It might well be sensible for the McKiernan defendants to consider consenting to jurisdiction here in order for this litigation to be resolved as to all the concerned parties in a single forum.
The motion of the McKiernan defendants to dismiss for want of personal jurisdiction is granted.
It is so ordered.
NOTES
[1] Plaintiff has commenced two other actions for similar relief to protect his rights. The first, in the District Court of New Jersey is against only the McKiernan defendants. In that action, McKiernan has filed a third party complaint and impleaded the United States. Plaintiff commenced a second action in the District Court of Delaware which is not being actively prosecuted.
[2] Litton Systems, Inc. cross-claimed against the McKiernan defendants in their answer. Its counsel have indicated that if this motion is granted, they will file a third-party complaint and implead the McKiernan defendants pursuant to Rule 14, F.R.C.P. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609116/ | 664 So.2d 665 (1995)
STATE of Louisiana, Appellee,
v.
Dalton M. BAILEY, Defendant-Appellant.
No. 95-78.
Court of Appeal of Louisiana, Third Circuit.
November 2, 1995.
Rehearing Denied February 6, 1996.
*668 David Wayne Burton, De Ridder, for State of Louisiana.
Thomas L. Lorenzi, Walter Marshall Sanchez, Lake Charles, for Dalton M. Bailey.
Before DOUCET, C.J., and AMY and SULLIVAN, Judges.
AMY, Judge.
Defendant, Dalton M. Bailey, appeals his second degree murder conviction. For the following reasons, defendant's conviction is affirmed.
DISCUSSION OF THE RECORD
On July 23, 1993, defendant shot his wife, Dana Bailey, in the forehead with a Marlin.22 semiautomatic rifle. A few hours later, the victim died in Beauregard Memorial Hospital as a result of the head wound. On August 25, 1993, defendant was charged by grand jury indictment with the Second degree murder of his wife in violation of La. R.S. 14:30.1. On March 11, 1994, the defendant pled not guilty. After trial by jury, the defendant was found guilty of Second degree murder on September 15, 1994. After defendant was sentenced on September 30, 1994, to life imprisonment without benefit of parole, probation, or suspension of sentence, he timely perfected this appeal and asserts the following assignments of error:
(1) The ruling of the trial court prohibiting voir dire regarding the elements of negligent homicide in a prosecution charging second degree murder was reversible error as it infringed on the defendant's right to full voir dire examination under Article 1, Section 17, Louisiana Constitution of 1974 and such error was not cured by restriction of voir dire to the permitted inquiry regarding the elements constituting criminal negligence.
(2) The trial court committed reversible error in overruling defendant's objection and in denying defendant's motion for mistrial upon Deputy Slover testifying that the defendant said, "He had been arrested before," and that the deputies would blame him.
(3) The trial court committed reversible error in permitting the introduction into evidence of photographs of marijuana at the crime scene and evidence of intended distribution of marijuana by the defendant on an in limine motion of the State seeking introduction of evidence of other crimes *669 pursuant to Louisiana Code of Evidence Article 404(B).
(4) The trial court committed reversible error in permitting hearsay testimony regarding the existence of photographs of the victim depicting "prior beatings" under Louisiana Code of Evidence Article 404(B) as the introduction of evidence of other crimes denied defendant the right to a fair trial, especially where a search of the premises failed to produce any physical proof of the actual existence of the photographs regarding which such testimony was permitted.
(5) It was reversible error for the trial court to overrule defendant's objections to the hearsay statement by Dayna Lacy that the minor child of the victim and defendant said: "Turn around Mama and maybe he won't shoot you[.];" further, it was reversible error to rule that the prejudice of such remark did not outweigh its relevancy.
(6) Defendant was denied a fair trial by the trial court's denial of defendant's objection to the testimony of Dayna Lacy that the defendant threatened to kill her if she did not say that the shooting was an accident, which testimony constitutes evidence of the commission of another crime.
(7) It was reversible error for the trial court to deny defendant's objection to the introduction of the written statement of defendant, or redaction of the statement, with reference to inclusion within the statement of evidence of other crimes or bad acts directed toward the victim and narcotics.
(8) In announcing to the jury after the State had rested: "We shall now proceed with the defendant's case," the trial court committed reversible error in commenting upon the failure of the defendant to produce evidence despite the State's burden of proof, where the State had called the witnesses announced by defendant for sequestration, the defendant was not called to testify and the defense was forced to announce in response that it rested.
(9) Reversible error resulted from the denial by the trial court of defendant's motion for mistrial for a comment on the failure of the defendant to testify in his own defense where the court announced to the jury upon the State having rested: "We shall now proceed with the defendant's case[.]," in response to which defendant was compelled to announce that it rested without calling the defendant to testify in his own defense and where the witnesses he had announced for purposes of sequestration had been called to testify by the State.
(10) It was reversible error for the trial court to reject defendant's request for a special instruction on the elements of negligent homicide and that it is not a responsive verdict to a charge of second degree murder where the requested charge was a correct statement of the law and the instruction, as given by the court, only defined criminal negligence with reference to the essential element of specific intent or general intent but without the contextual relationship to the crime of negligent homicide.
(11) The admissible evidence is insufficient, when viewed in the light most favorable to the prosecution, to sustain a verdict of guilty of second degree murder beyond a reasonable doubt.
SUFFICIENCY OF THE EVIDENCE
By the eleventh assignment of error, the defendant contends that the evidence was insufficient, when viewed in the light most favorable to the prosecution, to sustain a verdict of guilty of second degree murder beyond a reasonable doubt. Specifically, the defendant contends that the State failed to prove beyond a reasonable doubt that he possessed the requisite specific intent because he argues that the shooting which resulted in his wife's death was accidental.
The record establishes that on the day of the victim's death, the defendant was anticipating an exchange of drugs with Larry Basco. Dayna Lacy, who was called as a prosecution witness, testified that she was present at the defendant's residence with the defendant's cousin, who was her boyfriend at the time, Charles Austin, on the day of the shooting and testified about the incidents leading up to the victim's death. Ms. Lacy testified that when the victim told the defendant *670 about a telephone call from Basco that he had missed, the defendant told her "to get her fucking ass back into the house and that if he called again to make sure that he was told or else she would pay for it later." Ms. Lacy stated that the victim answered another telephone call from Basco, but did not immediately tell the defendant about the call. When the victim later told the defendant about Basco's call, Ms. Lacy stated that the defendant became angry and started cursing and screaming at the victim. Ms. Lacy testified that the defendant showed her pictures of his wife after he had beaten her, pushed the victim and the chair in which she was sitting to the floor, and walked over to the gun rack to retrieve a big knife. Ms. Lacy testified that the victim was still lying on the floor when the defendant threw the knife at her and missed her by "about an inch and a half." Ms. Lacy further testified that when the victim asked the defendant if he was trying to kill her that he replied: "Today seems like a good day to die."
Next, the defendant walked over to the gun rack and loaded a .22 rifle outfitted with a scope. Ms. Lacy testified that at this point, the victim got up and started mixing peas at the sink with her back toward the defendant. The defendant hollered for the victim to turn around, but she did not. Ms. Lacy stated the defendant began shooting around the victim, but that she did not turn around. She testified that Clifton Bailey, the son of the victim and defendant, told his mother: "Turn around, mama, and maybe he won't shoot you." When the victim turned around, the defendant shot her in the forehead. Ms. Lacy testified that she counted a total of nine shots and immediately prior to the last shot being fired, the defendant told his victim, "Turn around and look at the man that's going to send you to your mother-fucking maker."
The testimony of defendant's cousin, Charles Austin, corroborated Ms. Lacy's testimony. He testified that he was present at defendant's home the day the victim was shot and that the defendant and victim had a disagreement over the fact that she was not inside waiting on a phone call. Mr. Austin testified that he was outside working on defendant's four-wheeler when he heard five (5) or six (6) shots of rapid fire. Mr. Austin further testified that he heard the defendant state: "Turn around and look at the man that's sending you to meet your mother-fucking maker." Mr. Austin stated that he then "heard the rifle go `kawhop,' heard, `blunk,' and she [the victim] hit the floor." Mr. Austin testified that Ms. Lacy came running out the door screaming that "he shot her, he's killed her, she's dead."
When asked at trial about the rifle which killed the victim, Mr. Austin testified that he had used it a week earlier and that it "was very accurate when the scope's set right" and that he would assume that it was accurate the day the victim was shot.
After the shooting, defendant called the sheriff's office for an ambulance. Wesley Slover, the deputy who received defendant's call, testified that defendant was screaming and that defendant advised him that he and his wife were struggling over a .22 caliber gun, and it went off, shooting her in the head. He also stated that the defendant told him that "he had been arrested before and that the deputies were going to blame him for the shooting."
Kelly Kraft and Glen Mears were Beauregard Parish Sheriff's Department deputies who responded to defendant's call. Deputy Kraft stated that when he arrived at defendant's residence, he found the defendant kneeling down beside his wife, with his left hand on her forehead, apparently applying pressure to her wound, and dipping blood and fluid out of her mouth with a spoon. Deputy Kraft further testified that defendant stated that the victim was in the kitchen and he was in the living room when she was shot. Deputy Mears testified that inside the defendant's home, he located the following: six (6).22 caliber spent casings; three live rounds; the weapon, a .22 caliber rifle on the gun rack; a knife stuck in the "cabinet door just above the location of where Mrs. Bailey's head was when she was laying on the floor"; and several bullet holes.
Some evidence was introduced at trial to establish that the shooting was accidental. Ms. Lacy stated that she told the sheriff's office and the defendant's mother that the *671 shooting was an accident shortly after the incident. However, she testified at trial that the defendant told her to say that the shooting was an accident or that he would kill her. When Mr. Austin spoke with the sheriff's department over the phone seeking emergency help for the victim immediately following the shooting, he told the police officer that there had been an accidental shooting. When questioned about this at trial, Mr. Austin explained: "The man ... shot his wife. For all I know, he might turn around to shoot me." At the crime scene, Mr. Austin also told the investigating officer that the rifle's scope was "way off." He explained at trial that he assumed that he stated that the scope was "way off" because the defendant was "an expert shot" and that he did not believe at the time of the homicide that the defendant had actually intended to shoot his wife and further, that he did not want to be involved in this incident.
John Yerby, a deputy with the Beauregard Parish Sheriff's Department, testified that when he took the gun off the gun rack, he noticed that it was loose and it wiggled. Ms. Lacy testified that after the defendant shot the victim he threw the gun to the floor and then told his son, Clifton, to put the gun on the gun rack, and Clifton complied.
Tom Harless, self-employed in the forensic field of firearms, handwriting and fingerprints, and accepted by the court as an expert, testified that when he received the weapon used in the instant case the scope was loose on the front mount. Mr. Harless testified that sighting through the scope, "the shots grouped seven and a half inches low or below the point of aim, and one inch to the right of the point of aim." Mr. Harless further testified that the test shots were all fired at a 21 foot distance since that was the distance given to him by the sheriff's office. According to Mr. Harless, the scope was not in focus at any magnification. He also stated that if the scope was on three power magnification, a person looking through the scope could actually see where the projectile would hit. On six power, Mr. Harless stated, the projectile would still hit within the shooter's field of view. On nine power, however, the projectile would hit outside the shooter's field of view. Mr. Harless stated that if a rifle is seven and a half (7½) inches low at 21 feet, it is off tremendously. However, Mr. Harless also testified that it was common practice not to use the scope at a range of 21 feet.
Terry Welke, Chief Deputy Coroner with the Calcasieu Parish Coroner's Office, testified that he performed the autopsy on the victim and that the gun shot wound was located two and a half (2½) inches below the top of her head, and three-fourths (3/4) inches to the right of the anterior mid-line, "which is essentially the line that runs down the center of the nose."
Finally, Mr. Ronnie Cooley, a deputy who responded to the defendant's home after the shooting, testified that when he told defendant his wife died, defendant replied, "If I meant to kill her, I could have. I am a crack shot. I can strike a match at a hundred yards," and pointed out the window.
When the issue of sufficiency of evidence is raised on appeal, the reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have determined that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (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).
In the case sub judice, defendant was convicted of second degree murder, in violation of La.R.S. 14:30.1(A)(1), which provides that "[s]econd degree murder is the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm." Specific criminal intent is that "state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La.R.S. 14:10(1).
Since specific criminal intent is a state of mind, it may be inferred from the circumstances present in a case and the actions of a defendant in discharging a firearm. *672 State v. Hongo, 625 So.2d 610 (La.App. 3 Cir.1993), writ denied, 93-2774 (La. 1/13/94); 631 So.2d 1163; State v. Thorne, 93-859 (La. App. 5 Cir. 2/23/94); 633 So.2d 773. Also, specific intent may be established by direct evidence, including the statements of the defendant. State v. Dixon, 620 So.2d 904 (La. App. 1 Cir.1993); State v. Navarre, 498 So.2d 249 (La.App. 1 Cir.1986).
When there is conflicting testimony, it is the role of the fact-finder, rather than the appellate court, to weigh the respective credibility of the witnesses. Accordingly, an appellate court should not second-guess the credibility determinations of the trier of fact beyond the sufficiency of the evidence review. Graffagnino, 436 So.2d 559. Since only irrational decisions to convict will be overturned, the conviction will be upheld if the interpretation of the evidence most favorable to the State is sufficient to establish all of the essential elements of the crime beyond a reasonable doubt. State v. Mussall, 523 So.2d 1305 (La.1988).
Although there was some evidence of an accidental shooting, there was ample evidence indicating defendant specifically intended to kill his wife or inflict great bodily harm from his words and actions at the time of the offense, including that he told the victim when the victim asked the defendant if he was trying to kill her that "Today seems like a good day to die"; that he told his victim "Turn around and look at the man that's going to send you to your mother-fucking maker" immediately before shooting her in the forehead; and that he shot her in the middle of her forehead. Viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence to find defendant guilty of second degree murder. Accordingly, the eleventh assignment of error lacks merit.
REQUESTED NEGLIGENT HOMICIDE JURY INSTRUCTION
The defendant requested a special charge to the jury defining negligent homicide and stating that negligent homicide is not a responsive verdict to the crime charged, which the trial court refused. By assignment of error, the defendant contends that this refusal constituted reversible error.
La.Code Crim.P. art. 802 requires the trial court to charge the jury on the applicable law in the case. Pursuant to La.Code Crim.P. art. 807, "[a] requested special charge shall be given by the trial court if it does not require qualification, limitation, or explanation, if it is wholly correct and pertinent." Accordingly, it is the duty of the trial court, when properly requested, to charge the jury about the applicable law in every phase of the case, including any theory of defense which the jury could reasonably infer from the evidence. State v. Smith, 414 So.2d 1237 (La.1982); State v. Marse, 365 So.2d 1319 (La.1978).
When there is no evidence or testimony to support a finding that a homicide occurred as a result of criminal negligence, a trial court does not err in refusing to give a requested instruction on negligent homicide. State v. Vergo, 594 So.2d 1360 (La.App. 2 Cir.), writ denied, 598 So.2d 373 (La.1992). But, as discussed above, there was some evidence of an accidental shooting introduced at trial. Since under the evidence presented it was possible for the jury to reasonably infer the defendant committed negligent homicide and the requested instruction was a correct and pertinent statement of the law and requiring no explanation or qualification, the trial court erred in refusing to give the requested definition.
Nevertheless, the refusal to give a requested jury charge does not constitute reversible error unless it prejudices the defendant's substantial rights. La.Code Crim.P. art. 921; Marse, 365 So.2d 1319; State v. Beck, 445 So.2d 470 (La.App. 2 Cir.), writ denied, 446 So.2d 315 (La.1984). Although the instructions given by the court did not make specific reference to the crime of negligent homicide, the instructions defined criminal negligence and further instructed the jury to find defendant not guilty of second degree murder and of manslaughter if they found defendant was merely negligent. This instruction sufficiently advised the jury that if they found that defendant did not have the intent necessary to convict him of second degree murder or manslaughter, *673 they must acquit him of these charges. The Louisiana Supreme Court in Marse, 365 So.2d at 1324, determined that the omission of a requested jury instruction on negligent homicide "could have been prejudicial only if the jury had insufficient information to understand that if ... [the defendant] was guilty only of negligent homicide it should find him not guilty of the charged offense." Accordingly, we conclude that there has been no miscarriage of justice or substantial prejudice to the defendant and that the trial court's failure to give this instruction did not constitute reversible error.
For the foregoing reasons, the tenth assignment of error lacks merit.
LIMITATION ON VOIR DIRE EXAMINATION
Defendant's first assignment of error alleges the trial court erred in disallowing questions concerning negligent homicide during voir dire examination. Specifically, defendant claims:
The ruling of the trial court prohibiting voir dire regarding the elements of negligent homicide in a prosecution charging second degree murder was reversible error as it infringed on the defendant's right to full voir dire examination under Article 1, Section 17, Louisiana Constitution of 1974 and such error was not cured by restriction of voir dire to the permitted inquiry regarding the elements constituting criminal negligence.
La. Const. art. 1, § 17 guarantees that "[t]he accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily." La. Code Crim.P. art. 786 provides that "[t]he scope of the voir dire examination shall be within the discretion of the court." Thus, even though a trial court is vested with wide discretion to restrict voir dire, he must grant wide latitude to the defendant's attorney to preserve the accused's right to full voir dire. State v. Hall, 616 So.2d 664 (La.1993).
To preserve a defendant's right to full voir dire, the trial court should allow him to ask non-repetitious voir dire questions which reasonably explore the potential jurors' prejudices and misunderstandings relevant to the central issues in the case. State v. Jackson, 450 So.2d 621 (La.1984); State v. Allen, 633 So.2d 325 (La.App. 1 Cir.1993). In the case before us, the defendant sought to question the prospective jurors about the offense of negligent homicide. The jury could only return a guilty verdict if defendant possessed the specific intent to kill or inflict great bodily harm. Accordingly, if the jury concluded that the defendant had only committed negligent homicide, it would have to return a not guilty verdict. For these reasons, the question that the defendant sought to ask about negligent homicide was relevant to central issues in the case and should have been allowed by the trial court. Nevertheless, since a trial court is accorded wide discretion in determining whether particular questions are essential to a full voir dire, disallowance of one relevant question does not automatically constitute reversible error. Jackson, supra; Allen, supra. In determining whether the trial court impermissibly infringed on the defendant's right to a full voir dire, an appellate court will review and consider the record of the voir dire as a whole to determine if defendant was given sufficient latitude. Hall, supra; Jackson, supra; Allen, supra.
Although the trial court in the case sub judice did not allow defendant to question jurors regarding the offense of negligent homicide, the trial court did allow defendant to question the jurors regarding criminal negligence. Based on the voir dire as a whole, we conclude the trial court did not commit reversible error in disallowing defense counsel to question jurors regarding negligent homicide. Furthermore, the instructions given the jury regarding criminal negligence and the trial judge's allowance of defense counsel to question jurors regarding criminal negligence, sufficiently advised jurors that if they found defendant did not possess the intent necessary to convict him of second degree murder or manslaughter, they must find him not guilty.
Accordingly, the first assignment of error lacks merit.
*674 DENIAL OF MOTION FOR MISTRIAL
When Deputy Slover was examined at trial regarding statements made by the defendant during his call for help after the victim was shot, Deputy Slover testified that defendant "advised that he had been arrested before and that the deputies were going to blame him for the shooting." The defense immediately objected to the testimony, arguing that Deputy Slover's testimony involved prior arrests, which were inadmissible, and moved for a mistrial. The trial court determined that the statement was not hearsay and was "clearly relevant" because it involved defendant's motive and intent. The trial court stated that he recognized that the statement was prejudicial, but did not consider it to be "unduly prejudicial." The trial court overruled the objection and denied the motion for a mistrial.
Under La.Code Crim.P. art. 770, a mistrial is mandatory upon timely motion of the defendant when a remark or comment made within the jury's hearing by "the judge, district attorney, or a court official" is a direct or indirect reference to "another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible." A police officer is not a court official; therefore, the mandatory mistrial mandated by Article 770(2) is not applicable. State v. Watson, 449 So.2d 1321 (La.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985); State v. Henry, 461 So.2d 484 (La.App. 3 Cir.), writ denied, 464 So.2d 313 (La.1984). However, a discretionary mistrial is appropriate under La.Code Crim.P. art. 771, where the witness is a police officer and the inadmissible other crimes evidence is elicited or should have been anticipated by the prosecutor. State v. Waymire, 504 So.2d 953 (La.App. 1 Cir. 1987). To determine whether a discretionary mistrial was warranted in this case, we must first consider whether the trial court erred in concluding that Deputy Slover's testimony about defendant's prior arrests was admissible.
Under La.Code Evid. art. 801(D)(2), a statement is not hearsay if it "is offered against a party and is: (a) [h]is own statement, in either his individual or a representative capacity." Since the statement was made by defendant and was offered against him, we conclude that the trial court correctly determined that defendant's statement was not hearsay. Under La.Code Evid. art. 401, "`relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." According to La.Code Evid. art. 404(B), "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." Finally, under La. Code Evid. Art. 403, relevant evidence may be excluded by the trial court "if its probative value is substantially outweighed by the danger of unfair prejudice."
The trial court correctly determined that the statement in this case was relevant under Article 401 because it tended to prove that the defendant had a guilty mind when he talked to Deputy Glover and because evidence on the issue of whether a defendant possessed the specific intent to kill or inflict great bodily harm on his victim is relevant evidence in a second degree murder prosecution. State v. Bourque, 622 So.2d 198 (La. 1993).
In State v. Jackson, 625 So.2d 146, 148 (La.1993), the Louisiana Supreme Court stated: "Generally, evidence of other acts of misconduct is not admissible ... One exception is when the evidence tends to prove a material issue and has independent relevance other than showing that the defendant is a man of bad character." In the case before us, the defendant's statement about his previous arrests has independent relevance other than to prove the defendant's character. It was independently relevant on the issue of defendant's guilt following the shooting and whether he possessed specific intent, an element of second degree murder, in shooting his wife. Accordingly, we conclude that the trial court correctly determined that the defendant's statement was not inadmissible *675 character evidence excluded by Article 404(B), because it was not offered to establish that defendant acted in conformity with prior bad acts.
Under Rule 403, the trial court is vested with great discretion in determining whether the probative value of a relevant piece of evidence is substantially outweighed by the danger of unfair prejudice. Nigreville v. Federated Rural Elec. Ins., Co., 93-1202 (La.App. 3 Cir. 7/13/94); 642 So.2d 216, writ denied, 94-2803 (La. 1/27/95); 649 So.2d 384. No details were introduced concerning the nature of the defendant's arrests and the State did not pursue the matter any further. Accordingly, we conclude that the trial court did not abuse its discretion in determining that the prejudice of defendant's statement did not substantially outweigh its probative value.
For the foregoing reasons, we conclude that the second assignment of error lacks merit.
EVIDENCE OF MARIJUANA
By this assignment of error, the defendant argues that the trial court committed reversible error in permitting the introduction of photographs of marijuana at the crime scene. Defendant also contends the trial court erred in denying his motion in limine in which he sought to prevent the State from introducing evidence of other crimes pursuant to Louisiana Code of Evidence Article 404(B).
At trial, Dayna Lacy testified that she observed the defendant in his kitchen on the day of the murder bagging marijuana. She also testified about the disagreement that arose between the defendant and his wife about her not telling him about the telephone call from Larry Basco. She testified that the victim had told her that the defendant was expecting to exchange marijuana for cocaine on the day of the victim's death. The trial court also allowed photographs of marijuana found at the crime scene to be admitted.
As a general rule, evidence of other uncharged crimes is inadmissible in the guilt phase of a criminal trial because of the risk of undue prejudice or that the jury will convict the defendant due to his character, rather than the evidence of the present offense. State v. Code, 627 So.2d 1373 (La.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994); La.Code Evid. art. 404(B). However, other crimes evidence is admissible when "it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it. In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. The concomitant other crimes do not affect the accused's character, because they were done, if at all, as parts of a whole; therefore, the trier of fact will attribute all of the criminal conduct to the defendant or none of it." State v. Brewington, 601 So.2d 656, 657 (La.1992). (citations omitted).
The fact that defendant became angry with his wife because she did not tell him of a phone call he received from a person to whom the defendant planned to distribute marijuana was relevant to show the progression of defendant's anger in the period leading up to the shooting of his wife. The State could not have accurately presented its case without referring to the presence of marijuana in the house and also defendant's intention to distribute the marijuana. We conclude that the court was correct in its finding that the evidence of marijuana in defendant's home and evidence of defendant's intention to distribute the marijuana was admissible as an integral part of the criminal act of murder. The burden of proof was on the State to show the defendant had a specific intent to kill his wife, and was not provoked by her to such an extent that he should be convicted of manslaughter rather than second degree murder. As discussed above, the defendant also introduced evidence that the shooting was accidental. Therefore, the progression of defendant's anger was also relevant for the State to rebut such a claim.
Defendant further argues the state did not comply with the requirements of State v. Prieur, 277 So.2d 126 (La.1973), in *676 its notification to the defendant. When the prosecution intends to introduce evidence of "other crimes," Prieur, 277 So.2d 126, requires the State to furnish in writing to the defendant a statement of the acts or wrongful acts about which it intends to offer evidence and the State shall specify the exception to the general exclusionary rule on which it relies to offer evidence of other offenses. However, when the other crimes evidence introduced by the State formed an integral part of the crime for which the defendant was tried or is part of the res gestae of the offense, the State is not required to give notice. State v. Goza, 408 So.2d 1349 (La.1982). Since the evidence of marijuana in defendant's home and evidence of defendant's intention to distribute the marijuana were admissible as an integral part of the criminal act of murder for which defendant was on trial, no Prieur notice was required.
For the foregoing reasons, the third assignment of error is without merit.
EVIDENCE ABOUT PRIOR BEATINGS
Ms. Lacy testified that on the day of the victim's death shortly before the shooting incident while the defendant was cursing at his wife, the defendant showed her photographs of his wife taken after he had beat her in the past. Ms. Lacy testified that immediately after she was shown the pictures, the defendant pushed the victim and the chair in which she was sitting to the floor and then walked over to the gun rack and retrieved a knife which he threw at his wife. Shortly after Ms. Lacy viewed the pictures, the defendant shot the victim. Defendant claims the trial court committed reversible error in permitting hearsay testimony regarding the existence of photographs of the victim depicting "prior beatings" under La. Code Evid. art. 404(B).
The statement as to the "prior beatings," was made by the defendant and offered against him. Thus, it was a non hearsay statement under La.Code Evid. art. 801(D)(2)(a). Furthermore, the lack of physical evidence of the photographs does not render Ms. Lacy's testimony as to the content of the photos inadmissible hearsay.
Since defendant's statement was a necessary and concomitant incident of the criminal offense for which defendant is on trial, it was admissible under 404(B) because "it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it" and its purpose was "to complete the story of the crime on trial by proving its immediate context of happenings near in time and place." Brewington, 601 So.2d at 657. The defendant's statement was a necessary incident to the crime of murder and was admissible even though it referred to another crime committed by him.
Defendant argues that the notice given by the state of its intent to introduce defendant's statement about these pictures did not satisfy Prieur because the state did not specify the exception to the exclusionary rule upon which it relied for its admissibility. However, since the statement was a necessary incident of the crime charged, no Prieur notice was necessary. Goza, 408 So.2d 1349.
For the foregoing reasons, we conclude that the fourth assignment lacks merit.
DEFENDANT'S STATEMENT THREATENING TO KILL MS. LACY
By assignment of error, defendant claims he was denied a fair trial by the trial court's overruling of defendant's objection to the testimony of Dayna Lacy that the defendant threatened to kill her if she did not say that the shooting was an accident. Specifically, the defendant contends that this testimony was inadmissible because it constitutes evidence of the commission of another crime. For the reasons discussed above, the State asked Ms. Lacy if the defendant said anything to her "in the minutes following the time that he shot" the victim. Ms. Lacy responded that the defendant told her to say "that it was an accident, that the gun just went off while he was cleaning it. That if I didn't say it was an accident, that he would kill me too." His statement was an integral part of the offense for which defendant is being tried because defendant's threat to kill Ms. Lacy if she did not say the shooting was an accident was evidence of defendant's motive *677 and intent. Although the statement referred to other crimes evidence, it was a necessary incident to the murder. Thus, under Article 404(B), the statement was properly admitted by the trial court. Furthermore, we conclude that the statement was not unduly prejudicial and that the trial court did not abuse its discretion under Article 403.
Based on the foregoing, the admission of this evidence did not deprive defendant of a fair trial; therefore, the sixth assignment of error lacks merit.
"OTHER CRIMES" EVIDENCE IN DEFENDANT'S VOLUNTARY STATEMENT
At trial, the state moved to introduce into evidence S-20, a written statement made by the defendant on July 23, 1993. Defendant objected to its introduction since the statement contains references to other crimes, including assault and battery. The trial court ruled that the entire statement was admissible because it found that the statements contained in it were part of the continuing transaction surrounding the murder. By assignment of error, the defendant asserts that it was reversible error for the trial court to deny defendant's objection to the introduction of the written statement of defendant, or to deny redaction of the statement with reference to inclusion within the statement of evidence of other crimes or bad acts.
La.R.S. 15:450 provides that a defendant's statement sought to be admitted by the State against the defendant must be introduced in its entirety. However, when the statement contains references to other crimes evidence, which is inadmissible, the defendant enjoys the option of objecting to the inadmissible evidence and requiring the trial court to excise or edit the statement before admitting it. State v. Morris, 429 So.2d 111 (La.1983); State v. Lewis, 590 So.2d 752 (La.App. 3 Cir.1991). In fact, this court has determined that after a timely objection by the defendant, it is reversible error for the trial court to admit a statement in its entirety with inadmissible "other crimes" evidence in it without a redaction. Lewis, 590 So.2d 752.
In the statement, defendant said that immediately prior to the victim's death, he shot two or three shots around his wife, and she dropped to the floor. The statement also makes reference to defendant shoving his wife out of her chair and to defendant denying that the marijuana found in his home belonged to him.
This evidence, which defendant contends is "other crimes" evidence, concerned actions occurring immediately prior to the victim's death and were concomitant incidents of the criminal offense for which defendant is on trial. Thus, this evidence was admissible under Article 404(B) because "it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it" and its purpose was "to complete the story of the crime on trial by proving its immediate context of happenings near in time and place." Brewington, 601 So.2d at 657. Accordingly, the trial court did not err in admitting these portions of the statement. Furthermore, since the other crimes evidence introduced by the state formed an integral part of the crime for which the defendant was tried, no Prieur notice was necessary. Goza, 408 So.2d 1349.
However, defendant also admitted, in this voluntary written statement, that he had "slapped her [the victim] before to give her an attitude adjustment, I slapped her but I didn't hit her." Defendant was also asked if his wife seemed scared or concerned when he was shooting in her direction the day of her death, and defendant replied, "None what so ever, she knew that I wasn't going to shoot her, I have done it before, I have shook her up before and about 7 months ago I shot into the floor around her, she knew that I wouldn't shoot her intentionally." These crimes or prior acts were not an integral part of the act or transaction for which defendant is being tried and defendant's statement itself was not an integral part of the act or transaction since it was made after defendant was taken to the Beauregard Parish Sheriff's Office.
As stated above, the Louisiana Supreme Court in Prieur, 277 So.2d 126, held that when the prosecution intends to offer evidence of other crimes, the State must give *678 a defendant notice that evidence of other crimes will be offered and which exception to the general exclusionary rule the prosecution will rely on. Since these crimes or other wrongful acts were not admissible as an integral part of the act or transaction for which defendant is being tried, Prieur notice was required. Prieur, 277 So.2d 126; La.Code Evid. art. 1103; State v. Code, 627 So.2d 1373 (La.1993); State v. Jackson, 625 So.2d 146 (La.1993).
The defendant contends that the trial court erred in admitting this evidence because the State did not comply with Prieur. However, the requirements of Prieur are not intended to be "technical procedures sacramental to a valid conviction." State v. Banks, 307 So.2d 594, 597 (La.1975). Accordingly, substantial compliance with the mandates of Prieur is all that is required. State v. McDermitt, 406 So.2d 195 (La.1981); State v. Lee, 25, 917 (La.App. 2 Cir. 5/4/94); 637 So.2d 656, writ denied, 94-1451 (La. 10/7/94); 644 So.2d 631. The State's notice in the case before us was in response to defendant's Motion for Discovery and Inspection. The defendant asked to be informed of "the State's intent to offer evidence of the commission of any other crime, act, conduct, or declaration alleged to be admissible under the authority of LSA-C.E. art. 404(B)." The State indicated that it "intended to offer evidence of the commission of the crimes of Possession of Marijuana with the Intent to Distribute, Aggravated Assault and Simple Battery." Furthermore, the State attached a copy of the statement, which it intended to introduce, to its answer. Finally, this information was supplied to defendant on November 3, 1993, nine months before trial. The State clearly indicates that the exception under which the other crimes evidence would be admitted is Article 404(B); therefore, we conclude that the State substantially complied with Prieur and that the trial court did not err in allowing the statement in its entirety into evidence. Lee, 637 So.2d 656. The seventh assignment of error lacks merit.
MS. LACY'S TESTIMONY ABOUT THE DEFENDANT'S MINOR CHILD'S STATEMENT
At trial, Ms. Lacy testified that after the defendant walked over to the gun rack and loaded his gun, he began yelling at the victim to turn around while he was shooting around her with his rifle. The prosecution asked Ms. Lacy if Clifton, the son of the victim and defendant, had made any statements to his mother immediately after the defendant told her to turn around. Ms. Lacy replied that he did, but the defendant objected before she testified as to the substance of the statement. The trial court ruled that the statement was admissible, and Ms. Lacy testified that Clifton said: "Turn around Mama and maybe he won't shoot you."
On appeal, the defendant argues that it was reversible error for the trial court to overrule defendant's objections to the hearsay statement by Dayna Lacy and that it was reversible error to rule that the prejudice of such remark did not outweigh its relevancy.
Hearsay "is a statement ... offered in evidence to prove the truth of the matter asserted." La.Code Evid. art. 801(C). We conclude that this statement was not hearsay, because it was not offered to prove the truth of the matter asserted, but rather to explain the victim's actions immediately before her death in that Ms. Lacy testified that the victim turned around "[b]ecause her son Clifton told her, `Turn around, mama, and maybe he won't shoot you." Ms. Lacy then testified that the victim "turned to look at him, and sheafter glancingafter once looking at her son, she glanced over to her husband, and she looked at him, and that's went [sic] he shot her."
As discussed above, under La.Code Evid. art. 403, the trial court is vested with great discretion in determining whether the probative value of a relevant piece of evidence is substantially outweighed by the danger of unfair prejudice. Nigreville, 642 So.2d 216. This statement had probative value because it tends to show Clifton, the son, believed his father intended to shoot his mother. Intent is an important issue in the case at hand since the defendant claims the shooting was accidental. The statement also tends to show why the victim was shot in the middle of her forehead. Based on the foregoing, *679 we are unable to conclude that the trial court abused its discretion in determining that the prejudice of defendant's statement did not substantially outweigh its probative value.
For the foregoing reasons, the fifth assignment of error lacks merit.
TRIAL COURT'S REMARKS AND DENIAL OF MISTRIAL
After the close of the State's case, the trial court stated: "We shall now proceed with the defendant's case." The defense counsel approached the bench and stated his objection to the above comment because the defense was not planning on presenting any additional evidence. The trial court indicated that he planned to explain that to the jury and did not feel the comment was prejudicial to the defendant. The defendant then asked for a brief recess in order to avoid having to immediately stand and announce that was not going to present a case, which the trial court granted. The defendant then moved for a mistrial, stating the comment referred to defendant's right to silence. The trial court denied defendant's motion. After a brief recess, the defendant announced that it had no further evidence to introduce and the trial judge made the following comment to the jury:
Ladies and gentlemen, the meaning of that statement is that no further evidence will be presented to you in connection with this case. You must make your decision on the basis of the evidence that you have heard to this point. It is the State's burden of proof to convince you beyond a reasonable doubt that a crime was committed. The evidence that you have heard has come from witnesses that have been before you and been questioned and cross-examined by the defense, and the defense has presented evidence through that cross-examination process to you. So you will have to consider only the evidence that you have heard in connection with the case at this time.
The trial court reiterated in his final instructions to the jury that "[t]he defendant is not required to prove that he is innocent. The burden is upon the State to prove the defendant's guilt beyond a reasonable doubt."
By the eighth assignment of error, the defendant contends that the trial court committed reversible error in commenting upon the failure of the defendant to produce evidence despite the State's burden of proof, where the State had called the witnesses announced by defendant for sequestration, the defendant was not called to testify and the defense was forced to announce in response that it rested. Furthermore, by the ninth assignment of error, the defendant contends that the trial court committed reversible error in denying the motion for mistrial.
Under La.Code Crim.P. art. 770, "a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge ... refers directly or indirectly to ... [t]he failure of the defendant to testify in his own defense." A mistrial is a drastic remedy and is only warranted in those cases where there is substantial prejudice to the accused sufficient to deprive him of a fair trial. State v. Edwards, 420 So.2d 663 (La.1982).
On review of the record, we do not conclude that the trial judge's comment was either a direct or indirect reference to the failure of the defendant to testify. His comment in no way reflected an intent to emphasize defendant's failure to testify. Furthermore, we do not consider the trial court's comment to have resulted in any prejudice to the defendant; therefore, the comment made by the trial judge in the case sub judice did not warrant a mistrial. The explanation given the jury as to why defendant was not required to present any additional evidence as well as the trial judge's final instructions to the jury lend further support to this finding.
For the foregoing reasons, the eighth and ninth assignments of error lack merit.
ERROR PATENT
Pursuant to La.Code Crim.P. art. 920, we have reviewed the record for errors patent and have discovered one. The record does not reflect that the defendant was given credit toward service of his sentence for time *680 spent in actual custody prior to the imposition of sentence. La.Code Crim.P. art. 880. Article 880 applies to life sentences. State v. Howard, 626 So.2d 459 (La.App. 3 Cir.1993). Defendant's sentence therefore shall be amended to reflect that the defendant is given credit for time served prior to the execution of the sentence. La.Code Crim.P. art. 882(A). We remand this matter to the district court, ordering it to amend the commitment and minute entry of the sentence to reflect that the defendant is given credit for time served. See State v. Moore, 93-1632 (La.App. 3 Cir. 5/4/94); 640 So.2d 561, writ denied, 94-1455 (La. 3/30/95); 651 So.2d 858.
DECREE
For the reasons assigned, defendant's conviction and sentence are affirmed. The case is remanded to the trial court to amend the commitment and the minute entry of the sentence to reflect that the defendant is given credit for time served.
AFFIRMED AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609128/ | 664 So.2d 655 (1995)
Marie REVEL, Plaintiff-Appellant,
v.
Bruce C. SNOW, et al., Defendants-Appellees.
No. 95-462.
Court of Appeal of Louisiana, Third Circuit.
November 2, 1995.
Writ Denied February 2, 1996.
*656 Terry Eli Theriot, for Marie Revel.
Alex Andrew Lopresto III, Preston D. Cloyd, Ricky Lafleur, for State Farm Mutual Auto Ins. Co.
*657 Before DOUCET, C.J., and AMY and SULLIVAN, JJ.
AMY, Judge.
This is an appeal by Marie Revel from a verdict in a jury trial. The parties stipulated as to liability. The jury awarded appellant the following damages: (1) $15,000 for past, present, and future pain and suffering, (2) $5,000 for loss of enjoyment of life, and (3) $5,000 for past medical expenses. The past medical expenses were subject to a credit of $10,000.00 previously paid by State Farm Mutual Automobile Insurance Co.
Appellant makes the following assignments of error: (1) that the trial court awarded inadequate damages for pain and suffering, mental anguish and distress, emotional distress, loss of enjoyment of life, past, present and future, past and future medical expenses, and loss of past income, and (2) that the trial court erred in failing to grant a J.N.O.V. on the issue of quantum. For the reasons which follow, we affirm the award of general damages and affirm the award of special damages with the exception of past medical expenses, which we amend and affirm as amended.
FACTS
On October 7, 1991, Marie Revel was a passenger in an automobile being driven south on Highway 167. A car driven by Heather Snow, the minor daughter of Bruce Snow, made an improper left turn in front of the car in which appellant was a passenger. A collision ensued. Ms. Revel was transported by ambulance to the emergency room at Lafayette General Medical Center. She arrived complaining of soreness in her neck, lower back and knees. An examination by the emergency room physician, Dr. Charles Pearson, revealed acute cervical muscular strain, lumbosacral strain, and an abrasion over her right knee. The doctor was of the opinion that the accident was the cause of the pain and these injuries.
On October 10, 1991, Ms. Revel was examined by Dr. William Smith, an orthopedic surgeon. She was complaining of pain and stiffness in her neck, lower back, right wrist and right knee. Dr. Smith examined Ms. Revel's neck, wrist and knee. He deferred to Dr. John Clifford, a neurosurgeon, with regard to her lower back complaints since Dr. Clifford had performed two previous lumbar surgeries on Ms. Revel. Dr. Smith diagnosed Ms. Revel as having a moderate cervical sprain superimposed on mild degenerative arthritis of the cervical spine with no neurological involvement. He also was of the opinion that she suffered from a sprain or soft tissue injury of the neck, a sprain of the flexor ulnaris tendon in the right wrist, and an area of contusion and abrasion with probable post-traumatic chondromalacia of the right knee. Dr. Smith opined that these problems were caused by the accident because he had no reason to believe otherwise.
Ms. Revel saw Dr. Clifford on October 18, 1991, complaining of pain in her lower back. Based upon an examination, an MRI of the lumbar spine, and Ms. Revel's complaints, Dr. Clifford opined that Ms. Revel suffered from a soft tissue injury superimposed on the incompletely healed lower back. Her lower back was incompletely healed due to two previous surgeries on the lumbar spine, for which Ms. Revel had still complained of pain after the two surgeries but before the accident. Dr. Clifford had assigned a 20% disability to the body as a whole because of these two previous surgeries. Dr. Clifford believed that the accident caused the cervical strain diagnosed by Dr. Smith and also caused the aggravation of her previous back condition, namely the incompletely healed lumbar area.
Ms. Revel also saw Dr. Laxman Kewalramani, a specialist in physical medicine and rehabilitation and pain management. His original diagnosis was cervical and lumbar muscular ligamentous pain syndrome. He believed the accident caused the problems with the cervical spine and aggravated a pre-existing condition in the lumbar spine. After continued complaints of pain, Dr. Kewalramani ordered a facet arthrography to be performed by Dr. Charles Aprill, a radiologist.
Dr. Aprill performed the facet arthrogram which, in his opinion, revealed a facet joint problem in the cervical spine, primarily at C2-3 and secondarily at C5-6 and 6-7. He testified that an MRI is totally insensitive to *658 facet joint pathology. Dr. Aprill also testified that it was reasonable to believe that these problems were caused by the accident of October 7, 1991, assuming Ms. Revel had no prior neck problems. Dr. Kewalramani testified that it is possible that Ms. Revel had degeneration in the facet joints which was aggravated by the accident. Based upon the above test results, Ms. Revel was referred to Dr. Kenneth Vogel, a neurosurgeon.
Dr. Vogel initially examined Ms. Revel on February 9, 1993. He diagnosed Ms. Revel as having cervical facet arthropathy and chronic lumbar strain superimposed on the previous lumbar injury and surgeries. Based upon this diagnosis, Dr. Vogel performed a surgical procedure on Ms. Revel known as a cervical neurotomy.
Soon after the surgery and Ms. Revel's release from the hospital, she returned due to complaints of coughing, fever and chest pain. X-rays were taken of Ms. Revel's chest. Dr. Frank Monte, a specialist in internal medicine, diagnosed her as having right lobe pneumonia. Dr. Monte treated Ms. Revel for the pneumonia and released her from the hospital. Although Ms. Revel had two risk factors for pneumonia, namely, smoking and being overweight, Dr. Monte believed that the general anesthesia given to Ms. Revel prior to the neurotomy, which interfered with her normal body defenses, triggered the pneumonia. Medically, he believed there was a causal relationship between the general anesthesia and the pneumonia.
Dr. Vogel believed that the cervical neurotomy was a success. He assigned her a 10 to 15 percent temporary disability of the body as a whole. Since the full effects of the surgery would not be felt for a full year after the surgery, Dr. Vogel did not assign a permanent disability. He did testify that 85% of the people who have the type of procedure conducted on Ms. Revel have as much as 90% pain relief. He discharged Ms. Revel.
Dr. Kewalramani also believed that the surgery helped Ms. Revel's condition. Dr. Kewalramani testified that he could not assign a permanent disability rating to Ms. Revel since he did not conduct an examination for that purpose. In fact, Ms. Revel's permanent disability is not determined anywhere in the record.
Dr. Aprill testified that the cervical neurotomy was an appropriate procedure based upon the results of the facet arthrogram.
With regard to Ms. Revel's psychological health, she began to see Mr. Tim Kemery, a clinical social worker, on July 17, 1992, with the following symptoms: insomnia, headaches, lack of energy, irritability, crying spells, feelings of sadness and helplessness, problems concentrating, memory difficulty, and weight gain. Ms. Revel revealed the following history to Mr. Kemery: She had a failed marriage of 21 years. She had bouts with both breast cancer and skin cancer and underwent a radical mastectomy for the breast cancer. She had two previous lumbar surgeries. Her live-in companion was diagnosed with cancer and died within a year. She was in an automobile accident and underwent a cervical procedure as a result. Also, she had a family history of depression.
Mr. Kemery opined that she was clinically depressed and suffering from a major depression. He referred her to Dr. Kantack, a psychiatrist, because he felt her depression was biomedical in nature and needed treatment through medication. He felt it was caused by her body chemistry and exacerbated by her recent losses and pain. Mr. Kemery testified that he cannot isolate any one event as the cause of Ms. Revel's depression, but he believed that the loss of her live-in companion was a very big factor.
Dr. Kantack saw Ms. Revel on July 20, 1992. He believed she had a major mood disorder which needed to be treated with medication. He believed that she had several different "stressors," but that the automobile accident was "the straw that broke the camel's back." He prescribed medication, which Ms. Revel continued to take up to the time of trial. Both Dr. Kantack and Mr. Kemery believed that the medication has helped Ms. Revel.
Ms. Revel was 50 years old at the time of trial. She testified that the pain after the accident prohibited her from living a normal life. She claims she could not cook, wash dishes, and could not wear her prosthesis and *659 bra, which was important to her since she had the mastectomy. However, she testified that the pain "was worse after the accident," which indicates she was still in pain prior to the accident from the two previous back surgeries. Also, Ms. Revel continued to attend school at L.S.U., full-time, and was commuting from Butte La Rose to Baton Rouge for classes. She graduated in May of 1992. Ms. Revel then attended Tulane University for paralegal training. She now attends Loyola Law School at night, while working part-time as a paralegal in New Orleans. Ms. Revel's daughter testified that her mother still has problems, but that her neck is better and that most of her complaints are with her lower back.
ANALYSIS
CAUSATION
The jury awarded plaintiff (1) $15,000 for past, present, and future pain and suffering, (2) $5,000 for loss of enjoyment of life, and (3) $5,000 for past medical expenses.
To be entitled to recover damages in a tort suit, the plaintiff must prove by a preponderance of the evidence that: (1) injuries were sustained and (2) the injuries were caused by the accident. American Motorist Ins. Co. v. American Rent-All, Inc., 579 So.2d 429 (La.1991). Since the existence of injuries and causation of those injuries are factual determinations, the trier of fact's resolution of these issues is normally reviewed under the manifest error standard of review. Ponder v. Groendyke Transport, Inc., 454 So.2d 823 (La.App. 3 Cir.), writs denied, 457 So.2d 1195, 1198 (La.1984). In the case before us, the plaintiff introduced evidence at trial of multiple injuries requiring several types of medical treatments and diagnostic testing, all of which she alleged was causally linked to the accident. Since the jury rendered a general verdict, we are unable to ascertain which injuries it found to be causally related to the accident. When no specific findings of fact are issued, appellate courts consider the record as a whole in the light most favorable to the appellee. Homer Nat. Bank v. Springlake Farms, Inc., 616 So.2d 255 (La.App. 2 Cir.1993); Jeffers v. Hansen, 441 So.2d 283 (La.App. 4 Cir.1983); Texas General Petroleum Corp. v. Brown, 408 So.2d 288 (La.App. 2 Cir.1981). Therefore, we consider the record as a whole in the light most favorable to the defendant in order to determine which injuries a rational fact finder must have concluded were causally related to the accident.
Based upon the record as a whole, reading it in a light most favorable to the defendants, we conclude the jury would have erred had it not found that Ms. Revel suffered the following injuries as a result of the accident: (1) minor knee and wrist injuries, (2) an aggravation of a pre-existing condition of lower back, (3) an injury to her neck, which may have been an aggravation of pre-existing degenerative changes, and (4) pneumonia. We reach this conclusion because the record clearly demonstrates that the plaintiff introduced sufficient evidence to meet her burden of proving causation by a preponderance of the evidence and the defendants introduced no evidence to the contrary. Therefore, on review, we conclude that appellant is entitled to recover damages for those injuries.
We also find that it would not have been error for the jury to have concluded that the mental injuries suffered by Ms. Revel were not caused by the accident. Two experts testified; both believed Ms. Revel's depression to be biomedical in nature. One stated that he could not isolate any one thing as having triggered Ms. Revel's depression, but felt that the death of her live-in companion was a big factor. The other stated that Ms. Revel had many "stressors" which contributed to her depression, but that the accident was "the straw that broke the camel's back." When testimony of expert witnesses differs, it is within the trier of fact's discretion to determine what is the most credible evidence. Opelousas Production Credit Ass'n. v. B.B. & H., Inc., 587 So.2d 812 (La.App. 3 Cir.1991). Given the testimony of the experts here, it would have been proper for the jury to conclude that a single cause for Ms. Revel's depression could not be isolated. It would also be proper to conclude that the loss of her live-in companion was what triggered her depression, thus not entitling *660 Ms. Revel to damages for her mental injuries.
GENERAL DAMAGES
With our resolution of these causation issues, we now review the adequacy of the damages awarded. With respect to the general damage award, appellant asserts that the jury award for pain and suffering, mental anguish and distress, emotional distress, and loss of enjoyment of life was inadequate.
In assessing the quantum of general damages, the Louisiana Supreme Court has stated 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." Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); See also: La.Civ.Code art. 2324.1. "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, 623 So.2d at 1261. The appropriate test under this rule of law is whether, viewing the evidence in the light most favorable to the defendant, a reasonable trier of fact could have assessed damages as they were assessed. Charles v. Arceneaux Ford, Inc., 542 So.2d 846 (La.App. 3 Cir.1989).
In light of the above test for the review of general damages, we particularly note the following:
Ms. Revel testified that the pain after the accident prohibited her from living a normal life. She claims she could not cook, wash dishes, and could not wear her prosthesis and bra, which was important to her since she had a mastectomy. However, there is evidence to indicate that Ms. Revel was suffering pain from the two previous lumbar surgeries before the accident happened. Also, after the accident, Ms. Revel continued to commute from Butte La Rose to Baton Rouge to attend L.S.U. full-time. When she graduated from L.S.U., she moved to New Orleans to attend paralegal school. She now attends Loyola Law School at night while working 20 hours per week as a paralegal at a New Orleans law firm. Ms. Revel's daughter testified that Ms. Revel still has complaints of pain, but that most of her complaints are of pain in her lower back.
All doctors testified that Ms. Revel's lumbar injury was an aggravation of a pre-existing condition. There is evidence to indicate that Ms. Revel was still suffering from pain from the two previous surgeries at the time of the accident. Therefore, the evidence viewed in the light most favorable to defendant could lead a trier of fact to conclude that Ms. Revel suffered little, if any, additional pain in her lower back.
Ms. Revel did undergo a surgical procedure for the treatment of the facet joint pathology. Doctors Kewalramani and Vogel both believe the surgery was a success. Neither doctor assigned a permanent disability to Ms. Revel. Dr. Vogel testified that the full effects of the surgery would not be felt for a full year, but he did state that 85% of those who undergo a neurotomy have as much as 90% pain relief. Dr. Vogel, Dr. Kewalramani and Ms. Revel's daughter all testified that her neck pain is better.
Ms. Revel was hospitalized for eight days for pneumonia. She was 100% cured with no residual effects.
With regard to the knee and wrist injury, the injuries quickly improved and were not a major issue at trial.
Considering all of the above evidence in the light most favorable to the defendant we cannot say that the jury abused its "vast" discretion in awarding $20,000 in general damages. Accordingly we leave this award undisturbed. The first assignment of error lacks merit.
SPECIAL DAMAGES
A. Past Medical Expenses
Appellant asserts that the trial court erred in awarding inadequate damages for past medical expenses. "A Plaintiff may ordinarily recover reasonable medical expenses, past and future, which he incurs as a result of an injury." White v. Longanecker, 93-1122 (La.App. 1 Cir. 5/23/94), 637 So.2d *661 1213, 1218, writ denied, 94-1704 (La. 10/7/94), 644 So.2d 640. We have already concluded that a reasonable trier of fact must have concluded that Ms. Revel suffered, at the very least, the following injuries as result of the accident of October 7, 1991: (1) minor injuries to right wrist and right knee, (2) aggravation of a pre-existing condition in her lower back, (3) aggravation of a pre-existing injury to her cervical facet joints, and (4) pneumonia.
A tortfeasor is liable for the full amount of medical expenses incurred in treatment of injuries for which he or she is responsible. This court has held that a jury errs by not awarding the full amount of medical expenses incurred as a result of injuries caused by the accident when the record demonstrates that the victim has proven them by a preponderance of the evidence. Andres v. Liberty Mut. Ins. Co., 568 So.2d 651 (La.App. 3 Cir.1990). The rule is applicable unless plaintiff has incurred medical expenses in bad faith. Sumrall v. Sumrall, 612 So.2d 1010 (La.App. 2 Cir.1993).
There are no allegations or evidence introduced at trial of bad faith on Ms. Revel's part in receiving medical treatment; therefore, appellee is liable for the full amount of medical expenses incurred in the treatment of the knee injury, wrist injury, aggravation of pre-existing lumbar condition, aggravation of the pre-existing cervical condition, and pneumonia. Accordingly, we conclude that the jury erred in not awarding the full amount of medical expenses incurred in the treatment of these injuries. Appellant introduced medical bills totaling $50,835.73. After a review of the medical bills introduced into evidence, we conclude that the total medical expenses attributable to those injuries caused by the accident is $34,419.74. This is the amount the jury should have awarded; therefore, we amend the judgment to increase the award for past medical expenses from $5,000 to $34,419.74, subject to a credit of $10,000 previously paid by State Farm Mutual Automobile Insurance Co.
B. Future Medical Expenses
Appellant next argues that the jury abused its discretion in failing to award an amount for future medical expenses. However, in order to recover for future medical expenses, they "must be established with some degree of certainty, and awards will not be made in the absence of medical testimony as to the requirement for such expenses and their probable cost." James v. Webb, 94-162 (La.App. 3 Cir. 10/5/94), 643 So.2d 424, 429, writ denied, 94-2670 (La. 12/16/94), 648 So.2d 396. The only medical testimony, with regard to future medical expenses for injuries caused by the accident, indicates that the only future treatment Ms. Revel will need is symptomatic treatment, i.e. medication and physical therapy. However, there is no testimony establishing the probable cost for such treatment. Thus, we conclude that the jury did not err in refusing to award future medical expenses for the symptomatic treatment.
While the record demonstrates that there is a slight possibility that the plaintiff may require a future surgery, Doctors Vogel and Kewalramani do not anticipate such treatment. Considering this evidence in the light most favorable to the defendant, we will not disturb the jury's denial of future medical expenses.
C. Loss of Past Income
"Claims for past lost wages must be established with certainty." Dupre v. Exxon Pipeline Co., 93-1528 (La.App. 3 Cir. 6/1/94), 638 So.2d 1118, 1121, writ denied, 94-2200 (La. 11/18/94), 646 So.2d 379. We find that the trial court's denial of an award for past loss of income was proper because the evidence lacks sufficient proof that she suffered such a loss. She was unemployed at the time of the accident. In fact she had not worked since 1989. She was attending school at the time of the accident and continues to do so today. The only evidence introduced at trial that she would have worked after the accident and before trial is her own testimony indicating she might have sought employment after the accident had she not been injured. This is speculative and does not establish with certainty that she suffered a loss of income. Therefore, we leave the trial court's decision with respect to this element of damages undisturbed.
*662 Based on the foregoing, we conclude that this assignment of error has merit with respect to past medicals and we amend the award to $34,419.74. However, plaintiff's assignment lacks merit with respect to future medicals and past lost wages.
J.N.O.V.
Appellant also asserts that the trial court erred in failing to grant a J.N.O.V. on the issue of quantum. Because our resolution of the previous assignments of error necessarily disposes of the issues raised by the appellant in this assignment of error, we deem it unnecessary to consider whether the trial court abused its discretion in denying the motion for a J.N.O.V.
DECREE
For the reasons given above, we affirm the trial court's award of general damages and affirm the award of special damages with the exception of past medical expenses. We amend the award of past medical expenses to $34,419.74 and affirm as amended. Costs are assessed to appellee.
AFFIRMED AS AMENDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609134/ | 664 So.2d 453 (1995)
Mary Jane GARDNER
v.
Christopher McDONALD, M.D.
No. 95-C-2349.
Supreme Court of Louisiana.
December 15, 1995.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609142/ | 21 So.3d 1222 (2009)
Ex parte GUARANTY PEST CONTROL, INC.
(In re A. Vincent Brown, Jr. v. Guaranty Pest Control, Inc.)
1080386.
Supreme Court of Alabama.
April 24, 2009.
*1224 Edgar M. Elliott IV, Michael A. Vercher, and Richard M. Thayer of Christian & Small LLP, Birmingham, for petitioner.
Thomas F. Campbell and D. Keiron McGowin of Campbell Law, P.C., Birmingham, for respondent.
LYONS, Justice.
Guaranty Pest Control, Inc. ("Guaranty"), has filed a petition for a writ of mandamus requesting that this Court direct the Jefferson Circuit Court to vacate its orders granting a motion to compel filed by A. Vincent Brown, Jr., and denying Guaranty's motion for a protective order. We grant the petition in part, deny it in part, and issue the writ.
I. Factual Background and Procedural History
Brown sued Guaranty on May 4, 2006, alleging that Brown owned an office building ("the office") that Guaranty had inspected for possible infestation of wood-destroying organisms ("WDO"), including termites. The complaint[1] also alleged that Guaranty had treated the office to prevent infestation by WDOs but that the office had been infested and had suffered extensive damage. Brown, among other things, asserted a claim of fraud with respect to Guaranty's inspection and treatment of the office.
With his complaint, Brown served Guaranty with discovery requests, including the following requests for production of documents, pursuant to Rule 34, Ala. R. Civ. P.:
"13. For each date on which the [office] received treatment for termites from [Guaranty], please produce the customer file for each of [Guaranty's] customers who received a treatment for termites during the same week which was performed by the same person.
"....
"20. For each date on which the [office] received an annual renewal inspection from [Guaranty], please produce the customer file for each of [Guaranty's] customers who received an annual renewal inspection during the same week, performed by the same inspector.
"21. For each date on which the [office] received an inspection for the purpose of completing an Official Alabama Wood Infestation Inspection Report from [Guaranty], please produce the customer *1225 file for each of [Guaranty's] customers who received such an inspection during the same week from the same inspector.
"....
"27. Please produce all documents relating to all properties placed under WDO contracts during the month that the [office] was originally placed under contract with [Guaranty] (January 1991), the month that [Brown] became a party to a termite contract with [Guaranty] (October 1995), and each property placed under contract in the month immediately preceding and immediately following those months (November 1990, February 1991, September 1995 and November 1995)."
Guaranty objected to requests 13, 20, 21, and 27 ("the requests") on the grounds that they were overly broad and unduly burdensome.
Eventually, on October 10, 2008, Brown moved to compel responses to the requests. Guaranty responded to Brown's motion, arguing primarily that the requests were unduly burdensome. Guaranty relied on an affidavit of its vice president, who stated that responding to the requests would require a manual review of some 20,000 to 25,000 files. Guaranty estimated that the cost of responding to the requests would be approximately $16,000. The trial court granted Brown's motion to compel on October 22, 2008. On October 31, 2008, Guaranty moved for a protective order.[2]
The trial court held a hearing on Guaranty's motion for a protective order on November 18, 2008. That hearing was not transcribed. On the same day, the trial court rendered the following order by handwritten notation on the trial court's docket sheet: "[Brown] is entitled to customer files at the time of the original treatment and 3 months before and after and at the time [Brown] took over the [office] and 3 months before and after." See Rule 58(a), Ala. R. Civ. P. It is unclear whether this order was ever entered pursuant to Rule 58(c), Ala. R. Civ. P., which prescribes the requirements for the entry of an order. On December 22, 2008, the trial court entered an order denying Guaranty's motion for a protective order. The December 22, 2008, order did not include any findings similar to those in its November 18, 2008, order. Guaranty subsequently petitioned this Court for a writ of mandamus directing the trial court to vacate its November 18, 2008, and December 22, 2008, orders.
II. Standard of Review
"A writ of mandamus will be `issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.' Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)."
Ex parte Horton Homes, Inc., 774 So.2d 536, 539 (Ala.2000). Regarding discovery matters specifically, this Court has stated:
"Discovery matters are within the trial court's sound discretion, and this Court will not reverse a trial court's ruling on a discovery issue unless the trial court has clearly exceeded its discretion. Home Ins. Co. v. Rice, 585 *1226 So.2d 859, 862 (Ala.1991). Accordingly, mandamus will issue to reverse a trial court's ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.
"Generally, an appeal of a discovery order is an adequate remedy, notwithstanding the fact that that procedure may delay an appellate court's review of a petitioner's grievance or impose on the petitioner additional expense; our judicial system cannot afford immediate mandamus review of every discovery order."
Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (footnote omitted). In Ocwen, this Court identified "four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus." Ex parte Dillard Dep't Stores, Inc., 879 So.2d 1134, 1137 (Ala.2003)(citing Ocwen). Those circumstances include:
"(a) [W]hen a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala.2001); (b) when a discovery order compels the production of patently irrelevant or duplicative documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party, see, e.g., Ex parte Compass Bank, 686 So.2d 1135, 1138 (Ala.1996); (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party's entire action or defense so that, in either event, the outcome of the case has been all but determined and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that an appellate court cannot review the effect of the trial court's alleged error. The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ'g Co., 601 So.2d 423, 426 (Ala.1992)."
Dillard, 879 So.2d at 1137.
III. Analysis
Guaranty argues in its petition that the trial court erred in denying its motion for a protective order as to the requests as they were written. Guaranty contends that each of the requests was unduly burdensome. Guaranty therefore argues that its petition falls within the second circumstance identified by Ocwen and Dillard, supra, in which this Court may review a discovery order by a petition for a writ of mandamus where the discovery requested "imposes a burden on the producing party far out of proportion to any benefit received by the requesting party." Dillard, 879 So.2d at 1137. In its petition, Guaranty relies, as it did before the trial court, on the affidavit of its vice president.
Although the trial court's December 22, 2008, order denied Guaranty's motion for a protective order in its entirety, Brown contends in his answer to the petition that the trial court in fact granted Guaranty's motion with respect to requests 13, 20, and 21. Accordingly, Brown argues that the issues Guaranty raises in its petition relative to requests 13, 20, and 21 are moot; Brown consequently does not respond substantively to Guaranty's petition regarding those requests. Regarding request 27, Brown contends that Guaranty *1227 admitted that that request was not burdensome.
Brown bases his contention regarding requests 13, 20, and 21 on the trial court's November 18, 2008, order, which is silent as to those requests, and on arguments made by counsel for the parties at the November 18, 2008, hearing. Brown maintains that Guaranty's admission regarding request 27 also occurred at the November 18, 2008, hearing. To support these assertions, Brown attached to his answer an affidavit from one of his attorneys who attended the hearing. In that affidavit, Brown's counsel states, among other things:
"In response to questioning by Judge King [at the November 18, 2008, hearing,] Guaranty's lawyer ... admitted his client could identify and locate customer records by date service was initiated for Vince Brown in 1995 and the prior owner in 1991. However, [Guaranty's counsel] stated that Guaranty could not easily identify information responsive to [requests 13, 20, and 21].... [In the November 18, 2008, order,] Judge King essentially ruled for Guaranty on the two items that [Guaranty's counsel] said presented difficulty and ruled for the plaintiff on the issue that [Guaranty's counsel] conceded did not present difficulty."
Without citing authority, Guaranty has moved to strike the affidavit on the ground that it is inadmissible hearsay. Guaranty also argues that the affidavit improperly attempts to represent "unrecorded procedural matters" and to alter the "record" before this Court. Guaranty cites Cooper v. Adams, 295 Ala. 58, 61, 322 So.2d 706, 708 (1975)(stating regarding an exhibit to a brief in an appeal from a summary judgment: "The record cannot be changed, altered or varied on appeal by statements in briefs of counsel, nor by affidavits or other evidence not appearing in the record."). Guaranty does not deny the substantive assertions of the affidavit, in either its motion to strike the affidavit or its reply to Brown's answer. Nor does Guaranty offer conflicting evidence.
Rule 21(a)(1)(B), Ala. R.App. P., provides that the petitioner is to provide this Court with a "statement of the facts necessary to an understanding of the issues presented by the petition." This Court has explained the role of the parties in assembling the materials to be reviewed in a mandamus proceeding as follows:
"The materials reviewed by this Court in considering a petition for writ of mandamus consist of exhibits provided by the parties:
"`[A] petitioner for a writ of mandamus is obliged to provide with the petition "copies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition." Rule 21(a), Ala. R.App. P. In the event the petition is not denied, the respondent is directed to file an answer to the petition, which provides the respondent with an "opportunity to supplement the `record' by attaching exhibits of its own...."'
"Ex parte Fontaine Trailer Co., 854 So.2d 71, 74 (Ala.2003) (quoting Ex parte Miltope Corp., 522 So.2d 272, 273 (Ala. 1988))."
Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 232 n. 2 (Ala.2004). Regarding the facts and materials submitted by the respondent in answer to the petition, this Court has stated: "`In passing upon the petition for mandamus, the return or answer of respondent, unless controverted, is to be taken as true.'" King v. Smith, 288 Ala. 215, 219, 259 So.2d 244, 248 (1972) (quoting Ex parte Adams, 216 Ala. 353, 355, 113 So. 513, 515 (1927)). See also Ex *1228 parte State ex rel. Atlas Auto Fin. Co., 251 Ala. 665, 668, 38 So.2d 560, 562 (1949).
When this Court considers a petition for a writ of mandamus, the only materials before it are the petition and the answer and any attachments to those documents. There is no traditional "record" submitted to this Court by the trial court clerk as in an appeal. This Court's statement in Cooper, supra, that the "record cannot be changed, altered or varied on appeal by statements in briefs of counsel, nor by affidavits or other evidence not appearing in the record," related to materials attached to an appellee's brief that were "dehors the record" prepared by the trial court clerk in a proceeding reaching this Court on direct appeal. 295 Ala. at 61, 322 So.2d at 708. Contrary to Guaranty's assertion, this Court's statements in Cooper do not refer to materials submitted by a respondent in answer to a petition for a writ of mandamus. Pursuant to Covington Pike Dodge, supra, it was within Brown's province, as the respondent to Guaranty's petition, to supplement the "record" before us with exhibits of his own. 904 So.2d at 232 n. 2. Guaranty challenged the affidavit procedurally as hearsay; however, Guaranty did not support its arguments with citations to authority as required by the Alabama Rules of Appellate Procedure. See Rule 21(a)(1)(D) and Rule 28(a)(10), Ala. R.App. P. "[I]t is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument." Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994). Accordingly, we deny Guaranty's motion to strike on this basis. Furthermore, the statements of Guaranty's counsel appear to fall within the hearsay exclusions of Rule 801(d)(2)(A) and (C), Ala. R. Evid.,[3] and Guaranty has not offered any argument or authority showing otherwise. Moreover, we have previously considered affidavits submitted in response to a petition for mandamus from trial judges describing the proceedings below. See, e.g., Ex parte Benford, 935 So.2d 421, 423 (Ala.2006), and Ex parte S & Davis Int'l, Inc., 798 So.2d 677, 679 (Ala.2001). Also, we are not here confronted with an attempt to bring to this Court matters not considered by the trial court, as the affidavit of counsel purports to describe proceedings before the trial court. Compare Ex parte Flowers, 991 So.2d 218, 225 (Ala.2008) ("`In determining whether the trial court [exceeded] its discretion, this [C]ourt is bound by the record and cannot consider a statement or evidence in brief that was not before the trial court.'" (quoting Ex parte Baker, 459 So.2d 873, 876 (Ala.1984))).
As the petitioner, Guaranty is obliged to advise this Court of all the "facts necessary to an understanding of the issues presented by the petition," Rule 21(a)(1)(B), Ala. R.App. P., and to show "a clear legal right ... to the order sought." Horton Homes, 774 So.2d at 539 (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). Furthermore, the burden is on Guaranty to show that, in compelling discovery and denying its motion for a protective order, the trial court exceeded its discretion. Ocwen Federal Bank, 872 So.2d at 813. As noted above, Guaranty did not deny the substantive assertions of the affidavit Brown submitted *1229 or offer conflicting evidence. Accordingly, as to its substance, the affidavit is not "controverted, [and] is to be taken as true." King, 288 Ala. at 219, 259 So.2d at 248.
Based upon Brown's concession regarding his right to production pursuant to requests 13, 20, and 21 on the basis of (a) the silence of the trial court's order of November 18, 2008, as to those requests and (b) on his affidavit describing proceedings in the trial court, we deny the petition as to requests 13, 20, and 21 because we cannot recognize that Guaranty has a clear legal right to the issuance of the writ of mandamus to address a moot issue.
With regard to Guaranty's claim of undue burden as to request 27, we are again confronted with the uncontroverted evidence of a concession that "Guaranty's lawyer ... admitted his client could identify and locate customer records by date service was initiated for Vince Brown in 1995 and the prior owner in 1991." Request 27 calls for
"all documents relating to all properties placed under WDO contracts during the month that the [office] was originally placed under contract with [Guaranty] (January 1991), the month that [Brown] became a party to a termite contract with [Guaranty] (October 1995), and each property placed under contract in the month immediately preceding and immediately following those months (November 1990, February 1991, September 1995 and November 1995)."
Based upon the foregoing, we conclude that Guaranty has failed to establish a clear legal right to the issuance of the writ based on undue burden and hardship.
Guaranty also argues that the trial court exceeded its discretion by ordering more discovery than Brown requested. Guaranty argues that the trial court's November 18, 2008, order required Guaranty to produce records for the six-month period surrounding Guaranty's original inspection and contract regarding the office and for the six-month period surrounding Brown's acquisition of the office. However, request 27 sought only records for the three-month periods surrounding those dates. Guaranty argues that a party may be compelled to produce only those documents that have been requested. It cites Rule 37(a)(2), Ala. R. Civ. P., which provides, in part: "[I]f a party in a response to a request for production or inspection submitted under Rule 34[] fails to respond that production or inspection will be permitted as requested or fails to produce or permit inspection as requested, ... the discovering party may move for an order ... compelling production or inspection ...."
In his answer to the petition, Brown concedes the error of the November 18, 2008, order. Accordingly, it is undisputed that the trial court compelled Guaranty to produce documents that Brown had not requested, specifically, documents covering a time period twice the time period for which Brown had requested documents. Although it is unclear whether the trial court's November 18, 2008, order was entered pursuant to Rule 58(c), Ala. R. Civ. P., the parties agree that they are bound by it. Because this issue is presented in tandem with an issue whether production of the material sought in request 27 would be unduly burdensome clearly within the scope of the Ocwen factors and as to which we have, on the one hand, no evidence of a concession that production would not be unduly burdensome and, on the other, Brown's concession that the order exceeds the scope of his request, we address it. We agree that the trial court exceeded its discretion to the extent that the trial court ordered the production of more documents than Brown requested and that Guaranty does not have an adequate remedy by appeal. See, e.g., Ex parte Sexton, 904 So.2d 1251, 1252 (Ala.2004)(granting a petition for a writ of *1230 mandamus in part where, "given the willingness of the parties seeking production to limit their previous broad requests to a specific set of photographs, [this Court] conclude[d] that the trial court's order exceeded the scope of the request before it").
IV. Conclusion
Based on the foregoing, we conclude that Guaranty has satisfied its burden with respect to that part of its petition challenging the trial court's November 18, 2008, order insofar as it requires Guaranty to produce more documents than Brown requested, but not as to the remainder of its petition. Accordingly, we grant Guaranty's petition for a writ of mandamus to the extent that the trial court ordered the production of more documents than were requested, and we direct the trial court to vacate its November 18, 2008, and December 22, 2008, orders and to enter an order consistent with this opinion. In all other respects, we deny Guaranty's petition for a writ of mandamus.
MOTION TO STRIKE DENIED; PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.
COBB, C.J., and WOODALL, SMITH, PARKER, and SHAW, JJ., concur.
NOTES
[1] Guaranty did not attach a copy of the complaint to its petition for a writ of mandamus. However, Brown attached a copy of the complaint to his answer to the petition. Accordingly, the complaint is properly before this Court for consideration. See Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 232 n. 2 (Ala.2004)(quoting Ex parte Fontaine Trailer Co., 854 So.2d 71, 74 (Ala.2003), and Ex parte Miltope Corp., 522 So.2d 272, 273 (Ala.1988)).
[2] See, e.g., Ex parte Horton Homes, Inc., 774 So.2d 536, 540 (Ala.2000)("[A] party dissatisfied with the trial court's ruling on a motion to compel discovery must first make a timely motion for a protective order, so as to create a record to support the essential allegation that the petitioner has no other adequate remedy." (citing Ex parte Reynolds Metals Co., 710 So.2d 897 (Ala.1998))).
[3] Rule 801(d) provides, in part:
"A statement is not hearsay if
"....
"(2) Admission by Party Opponent. The statement is offered against a party and is (A) the party's own statement in either an individual or a representative capacity or... (C) a statement by a person authorized by the party to make a statement concerning the subject ...." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609147/ | 664 So.2d 23 (1995)
Ricci M. SALZANO, Appellant,
v.
STATE of Florida, Appellee.
No. 95-00116.
District Court of Appeal of Florida, Second District.
November 22, 1995.
*24 James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Assistant Public Defender, Clearwater, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
PER CURIAM.
The appellant, Ricci M. Salzano, challenges the revocation of his community control. We reverse.
The appellant pled guilty to two felony petit theft charges in violation of section 812.014, Florida Statutes (1993). The trial court adjudicated the appellant guilty and ordered him to serve two years community control, each case concurrent. The affidavit of violation of community control which was subsequently filed alleged that the appellant violated condition (22) which stated: "You will be screened for drug treatment and complete any counseling or treatment as recommended or required." The affidavit alleged that the appellant was screened and found acceptable for the residential program at Operation PAR, was admitted effective May 2, 1994, and was unsuccessfully terminated for failure to comply and inappropriate behavior effective May 4, 1994. After a hearing, the trial court ruled that the appellant violated the alleged condition and as a result, adjudicated him guilty of two counts of felony petit theft and ordered him to serve two concurrent terms of two years community control. This timely appeal followed.
The appellant contends that he did not willfully and substantially violate his community control. We agree.
A violation of probation which triggers revocation must be both willful and substantial, and the willful and substantial nature of the violation must be supported by the greater weight of the evidence. Steiner v. State, 604 So.2d 1265 (Fla. 4th DCA 1992). At the revocation of community control hearing in the instant case, the director for the assessment and admissions department at Operation PAR testified that the appellant appeared highly motivated to enter the treatment program at PAR. She testified that after two days in the program the appellant was terminated because of allegations that he had made sexual comments to a resident and because he was found in the detox area on four occasions against the rules of the facility. However, the appellant denied making the alleged comments to the resident and testified that he went to the detox area of the facility in order to get medication as he was told to do. The appellant testified that after he left the PAR program he immediately contacted his probation officer and enrolled in another detox facility because he believed he was still in need of treatment.
The appellant's probation officer testified that the appellant originally expressed repeatedly that he needed treatment. She testified that she did not explain to the appellant that a condition of his community control was to complete the PAR program and that at the time the affidavit of violation of probation was filed, he was residing at another residential treatment program.
We believe that the trial court abused its discretion in revoking the appellant's community control since the appellant expressed a willingness to complete some form of counseling. Furthermore, the order of community control did not specify the period within which the appellant was to complete the program and how many chances he would be given to obtain success. See Young v. State, 566 So.2d 69 (Fla. 2d DCA 1990). Accordingly, the sentence imposed as a result of the revocation of community control is reversed and the cause is remanded with instructions to reinstate the appellant's original community control sentence on the petit theft charges.
Reversed and remanded with instructions.
THREADGILL, C.J., and SCHOONOVER and PATTERSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609154/ | 664 So.2d 939 (1995)
Troy MERCK, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 83063.
Supreme Court of Florida.
October 12, 1995.
Rehearing Denied December 22, 1995.
*940 James Marion Moorman, Public Defender and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General and Robert J. Landry, Assistant Attorney General, Tampa, for Appellee.
PER CURIAM.
We have on appeal the judgment and sentence of the trial court imposing a death sentence upon Troy Merck, Jr. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
Merck was convicted of first-degree murder of the victim, James Anthony Newton. Newton died after Merck repeatedly stabbed him while the two men were in the parking lot of a bar in Pinellas County shortly after 2 a.m. on October 12, 1991. The bar had closed at 2 a.m., and several patrons of the bar remained in the parking lot. The evidence was that several of these individuals, including the victim, Merck, and those who witnessed the murder, had consumed a substantial amount of alcohol during the evening while at the bar.
After closing, Merck and his companion, both of whom had recently come to Florida from North Carolina, were in the bar's parking lot. The two were either close to or leaning on a vehicle in which several people were sitting. One of the car's occupants asked them not to lean on the car. Merck *941 and his companion sarcastically apologized. The victim approached the car and began talking to the car's owner. When Merck overheard the owner congratulate the victim on his birthday, Merck made a snide remark. The victim responded by telling Merck to mind his own business. Merck attempted to provoke the victim to fight; however, the victim refused.
Merck then asked his companion for the keys to the car in which he had come to the bar. At the car, Merck unlocked the passenger-side door and took off his shirt and threw it in the back seat. Thereafter, Merck approached the victim, telling the victim that Merck was going to "teach him how to bleed." Merck rushed the victim and began hitting him in the back with punches. The person who had been talking to the victim testified that she saw a glint of light from some sort of blade and saw blood spots on the victim's back. The victim fell to the ground and died from multiple stab wounds; the main fatal wound was to the neck.
Merck was indicted on November 14, 1991, for the first-degree murder of James Anthony Newton. The case went to trial and ended in a mistrial on November 6, 1992, because the jury was unable to reach a verdict. After a second trial, Merck was found guilty as charged. The jury recommended death by a vote of nine to three. The trial judge found two aggravating factors: (1) the murder was especially heinous, atrocious, or cruel;[1] and (2) previous conviction of felonies involving the use or threat of violence.[2] The court found no statutory mitigating factors and two nonstatutory mitigating factors: (1) abused childhood; and (2) alcohol use on the night of the offense. The trial court sentenced Merck to death.
On appeal, Merck presents five claims: (1) the trial court erred in imposing the death sentence; (2) the death sentence is invalid because the jury heard and the trial judge considered highly prejudicial testimony not relating to any statutory aggravating circumstance; (3) the trial court erred in denying Merck's motion for mistrial based upon a State witness's reference to the first trial of this case; (4) Merck's conviction must be vacated as a result of the State's bad-faith failure to preserve potentially exculpatory evidence; and (5) the trial court erred in giving the jury an unconstitutionally vague and overbroad instruction on the "especially heinous, atrocious, or cruel" aggravating factor.
GUILT PHASE
Issues 3 and 4 raised by Merck relate to the guilt phase of the trial. We do not find merit in either issue and affirm Merck's conviction.
With respect to issue 3, we find that there was no abuse of discretion in denying Merck's motion for mistrial based upon inadvertent reference by Deputy Sheriff Nestor, the case agent detective, to the first trial of this case. The reference was isolated and appears to have been inadvertent. The trial court had ordered in limine that there be no reference to the first trial, in which the jury had been unable to reach a verdict. Detective Nestor was the State's witness, and during cross-examination by Merck's counsel, the following colloquy occurred:
Q. Have you seen the videotape by the way?
A. No, not recently I have not.
Q. Have you ever seen it?
A. Back before the last trial, yes.
Q. Is it fair does it fairly, accurately depict what when you say, you talk about the last hearing that we had in this case?
A. Yes, sir.
Q. Does it fairly, accurately depict what went on at the time?
A. Yes.
The record reflects that Merck's counsel properly responded to this statement by not drawing attention to it. The trial court was well within its discretion to determine that the statement did not prevent Merck from having a fair trial. Power v. State, 605 So.2d 856 (Fla. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1863, 123 L.Ed.2d 483 (1993).
*942 In issue 4, Merck asserts that the failure on the part of Detective Nestor to keep as evidence a pair of khaki pants located during the search of the vehicle abandoned by Merck and his companion after the murder, was a bad-faith failure to preserve potentially exculpatory evidence, resulting in a denial of due process. In examining the items found in the vehicle, Detective Nestor meticulously looked at every item found in the car, and a videotape was made of the search. Detective Nestor testified that it was his job as the case agent to determine which of these items had evidentiary value. He retained all items that he determined to have evidentiary value, and he left the other items in the vehicle. The vehicle was thereafter available to be picked up by its registered owner. One of the items examined by Detective Nestor was a pair of "baggy khaki colored style pants." Detective Nestor testified that after he examined those pants and found no blood stains on them, he concluded that they did not have evidentiary value and left the pants in the vehicle.
Merck raised this issue in post-trial motions which were acknowledged not to be timely. Merck asserts that the failure to maintain this evidence was fundamental error and, as such, can be raised for the first time post-trial. We do not agree. Here, the failure to preserve the khaki pants was clearly known by Merck prior to and during the trial. The issue was not preserved by timely objection and was not properly the basis for a post-trial attack on the conviction. State v. Matera, 266 So.2d 661 (Fla. 1972).
However, even if there had been a timely presentation of this issue, based upon our review of the record, we conclude that the failure to preserve the khaki pants was not a denial of due process pursuant to Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), and Kelley v. State, 569 So.2d 754 (Fla. 1990). There is simply no showing that Detective Nestor acted in bad faith in deciding not to preserve pants which had no blood stains. Moreover, Merck has to stack multiple inferences in order to postulate that the pants were either material or exculpatory. Thus, we find no merit in Merck's fourth issue.
PENALTY PHASE
In issue 1, appellant raises three points.
A. Appellant's age, 19, should have been found and weighed in mitigation.
We reject Merck's contention that our decision in Ellis v. State, 622 So.2d 991 (Fla. 1993), is applicable to Merck, who was 19 at the time of this murder. Rather, as we decided in Peek v. State, 395 So.2d 492 (Fla. 1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981), the trial court may find or decline to find age as a mitigating factor in respect to a defendant who is 19. In the trial court's sentencing order in this case, the trial court considered but rejected defendant's age as being a mitigating factor. We affirm.
B. The judge should not have found or instructed the jury on the heinous, atrocious, or cruel aggravating factor.
The basis of Merck's argument regarding the second point is that this aggravator is not applicable because this was a sudden attack at a time when both Merck and the victim were intoxicated. The medical examiner testified that the fatal wound to the neck would have caused unconsciousness within two to five minutes and death within five to ten minutes. The victim had a blood alcohol level of .18. Likewise, there was substantial evidence that Merck had consumed a sufficient amount of alcohol to have been intoxicated at the time of the murder. However, there was also evidence that Merck had deliberately twisted the knife blade during the stabbing. Witnesses testified that this stabbing occurred after Merck said to the victim, "I'll show you how to bleed." Death was a result of multiple stab wounds.
We recently rejected a challenge that the heinous, atrocious, or cruel aggravator was not applicable based upon a similar assertion in Whitton v. State, 649 So.2d 861 (Fla. 1994), petition for cert. filed, No. 94-9356 (U.S. May 15, 1995). We believe that the heinous, atrocious, or cruel aggravator was applicable in this case and affirm on this issue.
*943 C. The death sentence is disproportionate.
Merck bases this issue primarily upon the contention in point B that the heinous, atrocious, or cruel aggravator should be stricken. We have rejected that contention and likewise reject the contention that death is disproportionate in this stabbing murder. Whitton; Derrick v. State, 641 So.2d 378 (Fla. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 943, 130 L.Ed.2d 887 (1995); Taylor v. State, 630 So.2d 1038 (Fla. 1993), cert. denied, ___ U.S. ___, 115 S.Ct. 107, 130 L.Ed.2d 54 (1994); Atwater v. State, 626 So.2d 1325 (Fla. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994). We do not find this case similar to Kramer v. State, 619 So.2d 274 (Fla. 1993). The mitigating factors found to exist in Kramer are not found to exist in this case. Id. at 278.
As a separate issue numbered 5, Merck challenges the current standard jury instruction on the heinous, atrocious, or cruel statutory aggravator. We upheld the instruction against similar challenges in Taylor and Hall v. State, 614 So.2d 473 (Fla.), cert. denied, ___ U.S. ___, 114 S.Ct. 109, 126 L.Ed.2d 74 (1993). We affirm.
In Merck's issue 2, he asserts that the death sentence is invalid because the jury heard and the trial court expressly considered testimony concerning Merck shooting in the face a laundromat operator in Sylva, North Carolina, when Merck was 14. In her sentencing order, the trial court found as an aggravating factor the following:
1. F.S. 921.141(5)(b): The defendant was previously convicted of a felony involving the use or threat of violence to the person. The Court finds that this factor was established beyond and to the exclusion of every reasonable doubt. The State presented testimony that on March 15, 1989, the Defendant, TROY MERCK, JR., while armed with a knife, robbed a convenience store in Marion County, Florida. On March 22, 1989, the defendant, TROY MERCK, JR., while armed with a knife, robbed a convenience store in Pasco County, Florida. On March 23, 1989, the defendant, TROY MERCK, JR., while armed with a knife, robbed three separate convenience stores in Lake County, Florida. While no one was injured in any of the five robberies, the store keeper in each convenience store was threatened. The defendant was adjudicated guilty of each of the armed robberies. These are proper aggravating factors.
In addition to the robberies listed above, the defendant, TROY MERCK, JR., while a juvenile, committed an offense of Assault with a Deadly Weapon, in North Carolina. On January 8, 1986, the defendant, TROY MERCK, JR., entered a laundromat operated by Fawn Chastain. When she discovered his presence, Ms. Chastain asked the defendant, TROY MERCK, JR., to leave the premises. As Ms. Chastain went to lock the door behind him, the defendant, TROY MERCK, JR., shot her in the face with a rifle, the bullet lodging in her head. There apparently was no provocation for the assault. The defendant, TROY MERCK, JR., was convicted and adjudicated a delinquent for this offense. This is also a proper aggravating factor under F.S. 921.141(5)(b).
During the penalty phase, the State introduced the judgments and sentences for the five prior felonies involving the use or threat of violence which occurred in the state of Florida. The State thereafter introduced testimony relating to the shooting by Merck of a laundromat operator in North Carolina. Fawn Chastain testified that while she was working in a laundromat in Sylva, North Carolina, on January 8, 1986, Merck intentionally shot her in the face when she would not allow him to enter the laundromat after closing. The State also introduced testimony of the law enforcement officer from the North Carolina State Bureau of Investigation who investigated the shooting. No objection was made to the introduction of this evidence.
The State next sought to introduce the judgment and sentence from the North Carolina case. At this point, Merck objected on the basis that the North Carolina incident was a juvenile adjudication which is not a criminal conviction under North Carolina or Florida law. The trial court sustained this objection. Merck moved for mistrial based *944 on the jury's having heard the testimony of Fawn Chastain and the North Carolina law enforcement officer. Merck's motion for mistrial was denied. Merck sought a curative instruction (no specific instruction was proffered), and the court ruled that a curative instruction would not be appropriate. The trial court instructed the State not to refer to the North Carolina judgment for the remainder of the penalty phase before the jury, and the State complied.
It is clear from the record that the genesis of the error asserted in this issue was counsel's failure to recognize or make the court aware prior to the admission of evidence about the North Carolina shooting that the shooting was a juvenile adjudication, not a "conviction" as defined under North Carolina or Florida statutes. We do note that the trial judge concluded that this error was in fact a good-faith mistake, and not an act on the part of counsel to create error. We accept the trial court's conclusion and approve the procedure followed by the trial judge in conducting the remainder of the jury proceeding.
However, we agree with Merck that the juvenile adjudication was not a conviction within the meaning of section 921.141(5)(b), Florida Statutes (1993). This is expressly mandated in section 39.053, Florida Statutes (1993), and section 7A-638, General Statutes of North Carolina (1993). Despite correctly sustaining the objection to the admissibility of the North Carolina judgment, the trial court erred in stating in her sentencing order, "This is also a proper aggravating factor under F.S. 921.141(5)(b)." We find the inclusion of this juvenile adjudication similar to the erroneous inclusion of community control as an aggravating factor in Trotter v. State, 576 So.2d 691 (Fla. 1990). As noted in Trotter, penal statutes must be strictly construed in favor of the one against whom a penalty is imposed. Id. at 694. We therefore conclude, as we did in Trotter, that a resentencing before a jury is required.
We find this case to be unlike Jones v. State, 440 So.2d 570 (Fla. 1983), because we cannot find that the trial court's inclusion of the North Carolina delinquency adjudication was surplusage. We acknowledge that there was other substantial evidence to support the aggravating factor in section 921.141(5)(b). Nevertheless, from our review of the record we cannot say that the dramatic testimony concerning the North Carolina shooting did not taint the recommendation of the jury. As in Trawick v. State, 473 So.2d 1235 (Fla. 1985), cert. denied, 476 U.S. 1143, 106 S.Ct. 2254, 90 L.Ed.2d 699 (1986), we find this to be an additional reason to require resentencing before a jury.
We distinguish Campbell v. State, 571 So.2d 415 (Fla. 1990), because that case involved "juvenile convictions." Our decision in this case is not to be read to mean that "convictions" of individuals who are juveniles which otherwise come within section 921.141(5)(b) are eliminated from consideration because the individuals are juveniles. Rather, our decision applies only to adjudications of delinquency which by statute are not convictions.
We affirm the conviction and remand for resentencing consistent with this opinion.
It is so ordered.
GRIMES, C.J., and OVERTON, SHAW, KOGAN and HARDING, JJ., concur.
WELLS, J., concurs with an opinion.
ANSTEAD, J., concurs as to the conviction, and concurs in result only as to the sentence.
WELLS, Justice, concurring.
I concur in affirming the conviction and in remanding for resentencing. I cannot conclude that the evidence as to the North Carolina shooting did not substantially influence the jury.
I write to express my concern about an issue which is unclear in the record. Merck was sentenced to four years in prison on October 9, 1989, six years in prison on October 31, 1989, and five years in prison on March 28, 1990. The murder for which he is here convicted occurred on October 12, 1991. Why then was section 921.141(5)(a), Florida Statutes (1993), not applicable to Merck at the time of this murder?
*945 I do note that if Merck was on parole, or if his order of probation included as a condition a term of incarceration and this murder was committed while Merck was or should have been incarcerated, he would have been under a sentence of imprisonment within the meaning of section 921.141(5)(a). See Peek v. State, 395 So.2d 492 (Fla. 1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981). Upon remand, the resentencing will be governed by the "clean slate" rule, and this issue should therefore be considered. See Preston v. State, 607 So.2d 404, 408 (Fla. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1619, 123 L.Ed.2d 178 (1993).
If the explanation is that Merck was out of jail because of an early release program, this case highlights why truth in sentencing is critical to the proper administration of justice.
NOTES
[1] § 921.141(5)(h), Fla. Stat. (1993).
[2] § 921.141(5)(b), Fla. Stat. (1993). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609155/ | 21 So.3d 907 (2009)
Eliezier LEAL and Clara Leon, Appellant,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, Appellee.
No. 3D09-821.
District Court of Appeal of Florida, Third District.
November 12, 2009.
*908 David M. Sostchin, Hialeah, and Michelle D. Alvarez, for appellant.
Van Ness Law Firm and Katherine J. Pauls, Hallandale Beach, for appellee.
Before COPE, GERSTEN and SUAREZ, JJ.
COPE, J.
This is an appeal of a summary judgment in a mortgage foreclosure action. We remand for further proceedings.
Deutsche Bank National Trust Company, as trustee, filed a complaint seeking to reestablish a lost promissory note and foreclose a mortgage on a home in Miami-Dade County. According to the complaint, the loan was made in 2006 and went into default on August 1, 2008. The borrowers filed a pro se answer.
After the case had been pending for two months, the borrowers obtained counsel who filed an answer and affirmative defenses. The Bank filed a motion for summary judgment and the borrowers filed an affidavit in opposition.
At the hearing on the motion for summary judgment, the main issue under discussion was whether the Bank had standing. The Bank has filed the assignment in its favor and we agree that standing has been satisfactorily established.
At the hearing, the borrowers argued that the Bank had failed to address their affirmative defenses, and argued that discovery had been propounded to the Bank which had not been answered. The trial court entered summary judgment, in the borrowers have appealed.
The borrowers argue that the Bank failed to address their affirmative defenses. The Bank acknowledges that when counsel entered the case on behalf of the borrowers, he filed an amended answer and affirmative defenses. The Bank responds that this should not have been considered. The Bank points out that more than twenty days had elapsed after the filing of the pro se answer, so that counsel needed to obtain leave of court in order to file an amended answer and affirmative defenses. See Fla. R. Civ. P. 1.190(a). The borrowers had filed a motion for leave to amend, but it had not been ruled on. We reject the Bank's argument because the Bank did not make an objection on this ground when the summary judgment motion was argued before the trial court. *909 The answer and affirmative defenses were treated as having been properly filed.[*]
Turning to the merits, "[t]he party moving for summary judgment must factually refute or disprove the affirmative defenses raised, or establish that the defenses are insufficient as a matter of law." Kendall Coffey, Foreclosures in Florida 493 (2008) (citing Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784 (Fla. 5th DCA 2003); Manassas Inv., Inc. v. O'Hanrahan, 817 So.2d 1080 (Fla. 2d DCA 2002)). The Bank's motion failed to address the affirmative defenses. Among these were a claim that the defendants had not received a notice of acceleration and right to reinstate. Such a notice appears to be required by this mortgage.
We therefore reverse the summary judgment and remand for further proceedings. This ruling is without prejudice to the Bank to file a renewed motion for summary judgment which addresses the affirmative defenses. Because we have affirmed on the issue of standing, no further proceedings need be conducted on that issue. We express no opinion on the factual or legal merit of the remaining affirmative defenses, which should be addressed in the first instance by the trial court.
The borrowers also maintained that the Bank incorrectly calculated the amount due by not considering two late payments, and claimed that late charges after acceleration should not have been added into the total amount. See Maung v. National Stamping, LLC, 842 So.2d 214, 216 (Fla. 3d DCA 2003). On remand the borrowers must file a more specific affidavit stating the amounts for which they contend they should be given credit.
We note that some of the affirmative defenses and statements in the affidavit in opposition are conclusory. "Where there are no facts pled to support general allegations of affirmative defenses, the defenses are legally insufficient." Kendall Coffey, supra, at 493 (citing Southern Waste Sys., LLC v. J & A Transfer, Inc., 879 So.2d 86, 87 (Fla. 4th DCA 2004)).
At the summary judgment hearing, the borrowers also maintained that summary judgment should not be granted because of pending discovery. To the extent that the pending discovery was directed to the issue of standing, that issue is moot. To the extent that pending discovery is pertinent to any remaining issue, that should be addressed on remand in the trial court.
Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.
NOTES
[*] Had an objection been made, we are confident the trial court would have granted leave for the filing of the amended answer and affirmative defenses, to replace the earlier pro se filing. The case had only been pending two months when counsel had filed the amended answer and affirmative defenses promptly after entering his appearance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609162/ | 664 So.2d 207 (1994)
Larry Douglas TARVER
v.
DIAMOND RUBBER PRODUCTS COMPANY.
AV93000067.
Court of Civil Appeals of Alabama.
June 17, 1994.
Rehearing Denied July 29, 1994.
Certiorari Quashed May 26, 1995.
*208 Richard L. Wyatt of Wallace & Wyatt, Birmingham, for appellant.
Dick D. Nave, Birmingham, for appellee.
Alabama Supreme Court 1931526.
ROBERTSON, Presiding Judge.
On March 25, 1991, Larry Douglas Tarver filed a complaint against Diamond Rubber Products, Inc., seeking workmen's compensation benefits for an injury that he suffered to his back on February 23, 1990, while working within the line and scope of his employment with Diamond. Tarver also asserted claims of fraud and wrongful termination against Diamond; however, these claims are not a part of this appeal.
Following an ore tenus proceeding on the claim for workmen's compensation benefits, the trial court entered a judgment in favor of Diamond and against Tarver on July 2, 1993. The trial court found that Tarver had "not carried the minimal burden of proof establishing that an accident occurred while in the line and scope of his employment with the defendant." The trial court also found that the root of Tarver's disability was his "preexisting Stargardt's Disease" and that the back injury was not a contributing factor to his disability.
On July 30, 1993, Tarver filed a motion for a new trial, or in the alternative, to alter, amend, or vacate the judgment. The trial court denied this motion on August 30, 1993. Tarver appeals.
Tarver contends on appeal that the trial court's findings are contrary to the substantial and undisputed evidence and unsupported by legal evidence; that the trial court erred in finding that Tarver's blindness was the root cause of his disability; that the trial court erred in finding that Tarver's back injury was not a contributing cause to his disability; and that the trial court drew incorrect legal conclusions.
In Ex parte Eastwood Foods, Inc., 575 So.2d 91, 93 (Ala.1991), our supreme court set out the standard for appellate review of factual findings in a workmen's compensation case:
*209 "Initially, the reviewing court will look to see if there is any legal evidence to support the trial court's findings. If such evidence is found, then the reviewing court determines whether any reasonable view of that evidence supports the trial court's judgment."
However, we note that in ore tenus cases, the two-pronged test set forth in Eastwood Foods only applies to our review of the trial court's findings of fact, not to its conclusions of law. Ex parte Cash, 624 So.2d 576 (Ala. 1993).
A careful review of the record reveals that Tarver, a veteran of the Vietnam War, was hired by Diamond in October 1989 to do maintenance work. Tarver testified that he first had a problem with his back two weeks before February 23, 1990, while he was picking up bins of scrap rubber. He stated that he informed David Blumenthal, Diamond's plant manager, about the back problem, and that David Blumenthal told him that he would receive help in emptying the bins. Tarver continued working and did not seek medical treatment at that time.
Tarver testified that on February 23, 1990, as he bent down to pick up a log that he was unloading from a pickup truck into a dumpster at Diamond, he felt pain in his lower back, and that as he tried to pick up the log, the pain went down his left leg. He stated that he immediately went to the office and reported to David Blumenthal, to Donald Blumenthal, the president of Diamond, and to two others that he was having back pain. Donald Blumenthal admitted that, on February 23, 1990, he saw Tarver slumped over the steering wheel of a forklift, that Tarver said his back hurt, and that he offered to send Tarver to the company doctor, but that Tarver said he was going to the Veterans' Administration (VA) hospital instead.
Tarver testified that, on February 24, 1990, the day after his injury, he went to the emergency room at the VA hospital in Birmingham. Tarver's VA hospital records, which were introduced at trial, revealed that on February 24, 1990, he complained of lower back pain "since lifting a heavy object at work." On that date, Tarver was diagnosed as having a back strain, placed on pain medication, and prescribed rest. However, he returned to the VA hospital two days later, still complaining of pain. He was then prescribed five days of bed rest.
In the months following the injury, Tarver sought treatment at the VA hospital several times, constantly complaining of pain in his lower back. Objective evidence of Tarver's back pain was chronicled in his medical records at the VA hospital at various times during the latter half of 1990, including an antalgic gait on the left, radiculopathy in the lower left portion of his back, and a small herniation on the right side of the lower back. Moreover, the results of pin prick tests of Tarver's lower back were consistent with a finding of nerve damage.
Dr. Cecil Nepomuceno, a rehabilitation specialist who conducted an examination of Tarver at the Spain Rehabilitation Center in Birmingham, also found objective evidence that Tarver had suffered an injury to his back. In his report, which was introduced at trial, Dr. Nepomuceno stated that Tarver has a 35% impairment of the whole person because of his back injury. Also in evidence was a letter written by Dr. William A. Crunk, a vocational consultant, who reported the results of a vocational evaluation that he had conducted on Tarver. Dr. Crunk stated that Tarver "would have a 100% vocational employability disability as it relates to his current [back] pain situation."
In examining the medical evidence, the trial court appears to have relied exclusively upon certain statements made by Dr. Shin Joong Oh, a neurologist at the VA hospital, during his deposition testimony. However, the trial court's characterization of Dr. Oh's testimony was not entirely accurate. The trial court stated:
"The medical testimony was that, at all times relevant to this cause, Mr. Tarver complained of pain on the left side of his back, and his left leg. Dr. Oh's testimony was clear that the only medical finding was by CT scan and myelogram, which showed a small herniation at L5-S1 on the right side. Dr. Oh stated that any problems suffered by [Tarver] were not due to this condition, and the only problem which *210 would affect Mr. Tarver's employability was his blindness."
Actually, Dr. Oh testified that the herniated disc on Tarver's right side could not explain the pain that Tarver complained of in his left leg, but that the herniation could "produce ill-defined backache." He stated that he did not know the cause of the impingement affecting the lower left portion of Tarver's back. In the context of a discussion about nerve block and TENS treatments, which were temporarily successful in relieving some of Tarver's pain, Dr. Oh stated that he knew of no "objective finding which is not abling him to be employed, except ... blindness." However, Dr. Oh pointed out that he could not measure subjective pain, and he admitted that Tarver's records contained objective evidence of a back injury.
There is no evidence in the record to support the trial court's suggestion that Tarver's claims of injury were confined only to the left portion of his lower back and his left leg. The fact that Dr. Oh could not find a medical explanation for Tarver's pain does not refute that disabling pain actually existed. In fact, there is no evidence whatsoever to refute that Tarver was experiencing disabling back and leg pain.
The trial court also found that Tarver did not return to work until March 8, 1990, and that only then did he claim that he had suffered an accidental injury on the job. However, Tarver testified that he returned to work to deliver the doctor's excuse on February 26, 1990. David Blumenthal and Donald Blumenthal both testified that Tarver returned to work within one to two weeks after February 23. Donald Blumenthal stated that he saw Tarver come to pick up his work clothes in the latter part of February. David Blumenthal testified that on another occasion, Tarver returned on a Friday to collect his paycheck, and that Tarver told him then that he had been injured on the job. About this time, Tarver was terminated from his employment at Diamond. Diamond records indicate that on March 4, 1990, Tarver made a claim for unemployment benefits. Diamond filed a report of Tarver's work-related injury on March 8, 1990. Thus, the evidence is clear that Tarver notified his employer of his injury on the date of the injury, and that he returned on at least one occasion before March 8, when Diamond actually filed a report of the injury.
The trial court has wide discretion to determine workmen's compensation cases and may choose not to accept the opinions of medical experts; however, it cannot ignore undisputed evidence. Malone v. ConAgra Poultry, Inc., 595 So.2d 897 (Ala.Civ.App. 1992). In this case, Tarver's uncontradicted testimony was to the effect that he had suffered an injury to his back while at work. The uncontradicted testimony of Drs. Nepomuceno and Crunk was that the injury was a contributing cause to Tarver's disability. Thus, there is no legal evidence to support the trial court's finding that Tarver had not established that an accident had occurred in the line and scope of his employment with Diamond.
The trial court found that Tarver's blindness was the root cause of his disability. A careful review of the record reveals that although Tarver had symptoms of Stargardt's Disease dating to 1980, he was not diagnosed as having the disease until after he started to work with Diamond. In fact, Tarver's VA hospital records indicated that he was diagnosed with Stargardt's disease on October 22, 1990, months after his employment at Diamond had been terminated. There was no evidence to support the trial court's finding that Tarver's disability was caused by Stargardt's disease.
This court has stated that "[a] preexisting condition will not affect a workmen's compensation award if a job-related injury combined with that preexisting condition to produce disability." Reynolds Metals Co. v. Stults, 532 So.2d 1035, 1038 (Ala.Civ.App. 1988). Furthermore, if a previous injury or infirmity has not demonstrated itself as disabling and has not prevented the employee from performing his job in a normal manner, then the preexisting condition or disability does not disqualify the claim under the "arising out of and in the course of his employment" requirement of the statute. Blue Bell, Inc. v. Nichols, 479 So.2d 1264 (Ala.Civ.App. *211 1985); Ex parte Lewis, 469 So.2d 599 (Ala. 1985).
We find that the trial court erred in denying Tarver's claim for workmen's compensation benefits based on the preexistence of his Stargardt's disease. Tarver's undisputed testimony was that before his back injury, his job performance was not affected by any problems with his eyes.
The judgment of the trial court is reversed. This cause is remanded for the trial court to make a determination of disability consistent with this opinion and to enter judgment accordingly.
REVERSED AND REMANDED WITH INSTRUCTIONS.
THIGPEN and YATES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610234/ | 865 So.2d 531 (2003)
STATE of Florida, Appellant,
v.
Paul T. HENDREX, Appellee.
No. 2D02-3584.
District Court of Appeal of Florida, Second District.
December 12, 2003.
Rehearing Denied February 10, 2004.
*532 Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah F. Hogge, Assistant Attorney General, Tampa, for Appellant.
James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellee.
CANADY, Judge.
The State appeals an order of the trial court suppressing illegal drugs that were found in the possession of Paul T. Hendrex when he was detained and arrested. Because we conclude that the police officer who detained and arrested Hendrex had the necessary legal justification for doing so, we reverse.
I. BACKGROUND
At Hendrex's suppression hearing, the State presented the testimony of several police officers. This testimony revealed that the investigation of Hendrex began when a juvenile who was arrested for breaking into cars told the police that he had committed his crimes because he was addicted to methamphetamine. The police asked the juvenile to help them arrest his drug dealer, and the juvenile agreed to cooperate. The juvenile was known to police and in the past had provided them with information concerning the location of certain persons. There was no showing, however, that the information the juvenile had previously provided had ever led to an arrest. The juvenile identified Hendrex as his dealer and gave the police a detailed physical description of both Hendrex and Hendrex's car. He also explained that his ordinary course of dealing with Hendrex was that he would call Hendrex when he had some stolen radios to trade for drugs. Testimony was also presented by an officer with experience in criminal investigations that transactions involving bulk radio sales were frequently linked with criminal drug activity.
According to the testimony of the officers, the juvenile was directed to make a "controlled call"that is, a call in which an officer dialed the phone and listened to the juvenile during the callfrom an officer's cell phone to Hendrex to set up a meeting. During the call, the officer heard the juvenile inform Hendrex that he had "some radios to show him." Following the call, the juvenile informed the officer that Hendrex had agreed to meet at the juvenile's residence shortly to look at the radios. There was no overt mention of criminal activity or drugs during the call, although the juvenile did inform the officer that Hendrex had mentioned during the call that he still had a couple of radios left over from a prior transaction with the juvenile.
*533 The officers began driving toward the juvenile's residence in anticipation of Hendrex's arrival. Hendrex, however, arrived at the juvenile's residence before the officers and called the cell phone that had been used for the controlled call. In an effort to stall Hendrex and give the officers time to reach the residence, an officer who posed as the juvenile's friend told Hendrex that the juvenile had gone into a convenience store and would be at the residence in a few minutes. Fearing that Hendrex was getting "antsy" and that he might leave before the officers arrived, the officers provided detailed descriptions of Hendrex and his car to another officer who was patrolling the area of the juvenile's residence. That officer was advised that there was probable cause for Hendrex's arrest. When that officer approached the residence, he observed a vehicle in the driveway with a person inside. Both the vehicle and its occupant fit the descriptions the officer had been given. The trial court described the sequence of events as follows:
Thereafter, [the officer] parked behind [Hendrex], who was seated in his vehicle in the driveway of the [residence], and initiated his vehicle's overhead lights. After exiting his patrol car, [the officer] withdrew his service weapon and ordered [Hendrex] out of the car and to lie on the ground. [Hendrex] exited the vehicle and began "digging around in his pocket." [Hendrex] removed a small plastic bag containing a white powdery substance from his front pants pocket and placed it on the ground next to him as he lay down. [Hendrex] was then handcuffed.
The contents of the bag were later tested and determined to be methamphetamine. A subsequent search of Hendrex's person and automobile led to the discovery of a quantity of marijuana.
In his motion to suppress, Hendrex argued that the juvenile informant's tip did not give the police probable cause to arrest him. The trial court accepted this argument and stated in its order that the tip was sufficient to create reasonable suspicion to stop Hendrex and question him about his activities but was inadequate to constitute probable cause to arrest Hendrex. The trial court concluded:
Under the facts of this case, the Court finds that the officer would have been justified in stopping [Hendrex] and detaining him for a reasonable length of time in order to further investigate the allegations and information of the informant. However, that is not what happened in this case. Upon initial contact by law enforcement [Hendrex] was immediately `seized' when he was ordered out of his car.
In support of its ruling, the trial court cited Popple v. State, 626 So.2d 185, 188 (Fla.1993), a case in which the supreme court concluded that the officers "did not have the reasonable suspicion necessary to authorize an investigatory stop."
II. ANALYSIS
When a trial court's ruling on a motion to suppress is reviewed on appeal, the trial court's findings of historical fact are reviewed under a deferential standard, but the trial court's determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598, 608 (Fla.2001). When considering a motion to suppress, a court is required to consider the "totality of [the] circumstances" that led to the discovery of evidence. State v. Butler, 655 So.2d 1123, 1128 (Fla.1995).
The disposition of this case turns on the distinction between an investigatory stop *534 and an arrest. An arrest involves a higher level of police intrusion than does an investigatory stop. Under the Fourth Amendment, an arrest therefore requires a higher level of justification than that required for an investigatory stop. Based upon the trial court's historical factual findings, we conclude that (1) the initial detention of Hendrex was an investigatory stop and not an arrest; (2) the investigative stop was legally justified; and (3) the voluntary production by Hendrex of the small plastic bag in the course of the investigatory detention gave the officer probable cause to arrest Hendrex and to search his person and his vehicle. We thus conclude that the trial court erred in determining that Hendrex was subjected to arrest without probable cause, while we agree with the trial court's conclusion that the police had the reasonable suspicion necessary to make an investigatory stop.
"An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion." Ornelas, 517 U.S. at 693, 116 S.Ct. 1657 (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). For a reasonable suspicion to exist, "the detaining officers must have a particularized objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 411-12, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Although an officer making an investigatory stop "must be able to articulate something more than an inchoate and unparticularized suspicion or `hunch,'" United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citing Terry, 392 U.S. at 30, 88 S.Ct. 1868), the "level of suspicion required for [such a] stop is obviously less demanding than that for probable cause," id. (citing United States v. Montoya de Hernandez, 473 U.S. 531, 541, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985)).
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.
Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).
An investigative stop may be based on a police officer's personal observations. See United States v. Sharpe, 470 U.S. 675, 682 n. 3, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (holding that police observation of overloaded pickup truck with camper shell commonly used to transport illegal drugs, driving in tandem with car and evading police, provided reasonable suspicion to justify investigatory stop). But information provided to the police by an informant may also serve as the basis for an investigatory detention. See White, 496 U.S. at 326-27, 110 S.Ct. 2412 (holding that there was reasonable suspicion to justify stop of person based on anonymous informant's correct description of detainee's vehicle, time of departure, and travel destination).
Here, the trial court correctly concluded that the police had the reasonable suspicion necessary to justify an investigative detention of Hendrex. The facts of the instant case are similar to those in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), where the court held that an investigative stop was justified. In Adams, the investigatory detention was based on information provided to a police officer by an informant that the defendant who was "seated in a nearby vehicle was carrying narcotics and had a gun at his waist." Id. at 145, 92 S.Ct. 1921. The court noted that the "informant *535 was known to the officer personally and had provided him with information in the past." Id. at 146, 92 S.Ct. 1921. The court stated: "This is a stronger case than obtains in the case of an anonymous telephone tip. The informant here came forward personally to give information that was immediately verifiable at the scene." Id.
Similarly, in the present case, the juvenile informant was known to the police and had provided them with information in the past. In addition, the reliability of the information he provided was demonstrated by his ability to influence and predict the future conduct of the defendant. When the defendant responded to the phone call from the informant, the police were thus ableat least to some extentto corroborate the reliability of the informant. See also White, 496 U.S. at 332, 110 S.Ct. 2412 ("When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop."). Finally, the prediction of Hendrex's conduct was significant when viewed in light of the totality of the circumstances because there was testimony from a police officer with experience in criminal investigations that bulk sales of used car radios were highly correlated with criminal drug activity and that such transactions outside the context of criminal activity were rare. The trial court was thus correct to conclude that the police had reasonable suspicion to stop Hendrex.
Hendrex argues that the credibility of the juvenile informant's tip should have been discounted because the tip was offered merely to curry favor with the authorities. But in the circumstances present here, the informant's desire to curry favor would in fact make it more likely that he would provide truthful information rather than untruthful information. The assertion that Hendrex would be in possession of drugs was readily subject to verification or nonverification by the police. And the informant would hardly expect to curry favor with the authorities by providing them information that they could readily determine was untruthful. Cf. Adams, 407 U.S. at 147, 92 S.Ct. 1921 (relying on circumstance that "the informant may have been subject to immediate arrest [under state law] for making a false complaint" if police "investigation proved the tip incorrect").
The trial court's error in this case arose from its conclusion that the initial encounter between the police and Hendrex constituted an arrest. In reaching this conclusion, the court stated: "Upon initial contact by law enforcement, [Hendrex] was immediately `seized' when he was ordered out of his car." The court apparently reasoned that such a seizure necessarily resulted in an arrest. But that is not the case.
This point is illustrated by Popple v. State, 626 So.2d 185 (Fla.1993), which was cited by the trial court as supporting authority. In Popple, a police officer directed the defendant to leave his vehicle. The Florida Supreme Court concluded that the officer's conduct resulted in a seizure under the Fourth Amendment. But the court concluded not that the defendant had been arrested, but that he had been subjected to an "investigatory stop." Id. at 188, 626 So.2d 185. A similar "seizure" occurred in the course of the investigative stop in the instant case when Hendrex was ordered out of his vehicle by the officer.
The fact that the investigative stop of Hendrex was effected at gunpoint did not convert it into an arrest. It has long been recognized that in a properly justified investigatory stop an officer has grounds "to insist on an encounter" with the subject of *536 the stop, that is "to make a forcible stop." Terry, 392 U.S. at 32, 88 S.Ct. 1868 (emphasis supplied). In State v. Perera, 412 So.2d 867, 871 (Fla. 2d DCA 1982), we held that conducting an investigative stop at gunpoint was appropriate:
That the officers used their sirens and flashing lights and had their guns drawn also did not change the stop into an arrest.... [W]here there is a clear possibility of the type of criminal activity which the officers believed they were encountering in the present case, we cannot fault them for having their guns at the ready for their own protection.
See also Carroll v. State, 636 So.2d 1316, 1318 (Fla.1994) ("The stop was not necessarily converted into an arrest because the officer drew his gun and directed [the defendant] to lie on the ground.") (citing Perera and State v. Ruiz, 526 So.2d 170 (Fla. 3d DCA 1988)).
Nor does the fact that the officer who detained Hendrex had been toldand believedthat there was probable cause to arrest Hendrex mean that the initial detention of Hendrex was an arrest. We addressed this issue in Perera, where we held that the belief of police officers that there was probable cause to arrest did not convert an investigative stop into an arrest. 412 So.2d at 871. This court stated:
Our view [that the police conduct constituted an investigative stop] is not changed simply because some of the officers may have had the intent to arrest appellees prior to stopping them. Actions taken by a law enforcement officer must be examined objectively as to how they affect a suspect and not from the standpoint of what the officer's intent was.
Id.; cf. State v. Pye, 551 So.2d 1237, 1239 (Fla. 1st DCA 1989) ("The police officer's words alone cannot transform an investigatory stop into an arrest.").
Here, as in Perera, "immediately after the stop probable cause developed" when the illegal drugs came into the plain view of the police. 412 So.2d at 870. "Under [the plain-view] doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant." Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). In the instant case, the officer had reasonable suspicion that Hendrex was engaged in illegal activity and conducted the stop in a lawful manner. The plastic bag that contained a substance that appeared to be an illegal drug was placed by Hendrex in the plain view of the officer, who was in a "lawful vantage point" to see it. Id. Once the officer observed the plastic bag, he had probable cause to arrest Hendrex and perform a search of Hendrex's person and vehicle incident to that arrest.
III. CONCLUSION
In stopping Hendrex, arresting him, and conducting the subsequent search, the police did nothing to transgress the Fourth Amendment. We therefore quash the order granting the motion to suppress and remand this case for further proceedings.
Reversed and remanded.
WHATLEY and SALCINES, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610255/ | 7 Wis.2d 146 (1959)
REIMER, Respondent,
v.
REIMER, Appellant.
Supreme Court of Wisconsin.
April 6, 1959.
May 5, 1959.
*147 For the appellant there was a brief and oral argument by Roman H. Papka of Milwaukee.
For the respondent there was a brief by Nathan W. Heller and oral argument by Mr. Roland J. Steinle, Jr., and Mr. Heller, both of Milwaukee.
BROADFOOT, J.
Upon this appeal no questions are raised as to the provisions of the judgment with reference to custody of the children, the division of property, or of the payments directed to be made by the plaintiff for support money and alimony. The defendant contends: (1) That the evidence does not support a finding that cruel and inhuman treatment had been practiced by the defendant wife toward the plaintiff husband; (2) that the plaintiff's cause of action for divorce is barred by the rule of condonation as a result of cohabitation and other condoning conduct on his part; and (3) that the plaintiff husband's own cruel conduct toward the defendant wife bars his right to a divorce under the doctrine of recrimination.
These contentions must be considered in the light of certain fundamental rules that need no citation of authority. Findings of fact by a trial court are not to be set aside unless they are against the great weight and clear preponderance of the evidence. Where there is a dispute in the testimony the trier of the facts is the judge of the weight and credibility to be accorded to the testimony of the witnesses. In reviewing divorce cases this court relies heavily upon the findings by the trial court.
*148 A careful review of the record shows that there is evidence to support the findings of the trial court as to cruel and inhuman treatment and that the findings are not against the great weight and clear preponderance of the evidence. A condensed recital of the testimony by the various witnesses called will serve no useful purpose. It will be better for the parties and for their children if this is not done.
As to the issue of condonation there was also conflicting testimony. The defendant testified that the parties had marital relations upon one occasion during the pendency of the action. This was denied by the plaintiff. It is admitted that the plaintiff gave his wife gifts for Christmas and on her birthday while the action was pending; that he paid his wife more than he was directed to pay in the order fixing temporary alimony; that he bought a second car so that each of the parties would have one to drive; and that there were negotiations tending to bring about a reconciliation. The defendant claims that these acts in themselves constitute condonation. The trial court determined that the defendant, who had the burden of proof upon the issue of condonation, had failed to establish the same as an affirmative defense. There was testimony to support the finding and we cannot disturb it.
The same may be said about the defense of recrimination. There was evidence to support the determination of the trial court on this issue. That the evidence, if viewed in a light most favorable to the defendant, might sustain a contrary determination is, of course, immaterial.
The plaintiff failed to file his briefs until April 6, 1959, the day the case was argued in this court. Based upon that fact the defendant moved for a reversal of the judgment under Supreme Court Rules 32 and 35, secs. 251.32, 251.35, *149 Stats. The motion is denied, but plaintiff is denied costs in this court.
By the Court.Judgment affirmed. No costs to be taxed in this court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922397/ | 897 A.2d 42 (2006)
Dorothy NERI
v.
ROSS-SIMONS, INC.
No. 2004-230-Appeal.
Supreme Court of Rhode Island.
May 12, 2006.
*45 Bernard P. Healy, Providence, for Plaintiff.
Michael A. Gamboli, Providence, for Defendant.
Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.
OPINION
Chief Justice WILLIAMS, for the Court.
In this dispute between an employee and her former employer, the plaintiff, Dorothy Neri (plaintiff), appeals from the entry of summary judgment in favor of the defendant, Ross-Simons, Inc. (defendant), dismissing the plaintiff's suit in the Superior Court alleging: (1) unlawful discrimination based upon her age and gender; and (2) breach of an employment contract. This case came before the Supreme Court for oral argument on January 25, 2006, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that this appeal may be decided at this time, without further briefing or argument. For the reasons set forth in this opinion, we affirm the entry of summary judgment.
I
Facts and Travel
According to her deposition testimony, plaintiff began working for defendant in 1992, until she was terminated in April 2001. At the time she was terminated, she held the position of call center manager, *46 which was a salaried position. The defendant informed plaintiff that her position, as well as other positions in the company including those of salaried employees had been eliminated. At that time, plaintiff was fifty-three years old.
The plaintiff grounds the factual basis for her suit in defendant's employee handbook. That document provides for a certain protocol to be followed in the event of "staff reduction": "In the event positions in the same Job classification are equal in value and each individual's performance of the assigned duties are [sic] relatively the same, the least senior employee within the department will be identified for staff reduction." Both parties refer to this protocol as "bumping" rights. Although the parties submitted contrary affidavits on the issue of whether these "bumping" rights applied to salaried employees such as plaintiff, the record discloses that at the hearing on the motion for summary judgment, plaintiff could not identify a salaried employee who had displaced a less senior salaried employee, and she maintained that she was the first salaried employee to be terminated under the policy who had requested to displace a less senior salaried employee. The plaintiff identifies two less senior employees with positions in the same job classification as call center manager a younger woman and a man as employees she should have been allowed to displace.
The handbook, however, includes numerous disclaimers. The opening letter from the president reads, in pertinent part: "Ross-Simons, in its discretion, may add, delete, or modify the policies and benefits described in this manual. When such changes occur, they will be communicated in writing to [the employee]. [The employee's] continuation in employment at Ross-Simons will indicate [his or her] acceptance of the changes." The receipt slip, which the employee is required to sign, includes that identical language. Furthermore, although the handbook generally outlines one's "privileges and obligations as an employee of Ross-Simons," the introduction to the handbook expressly limits the nature of those privileges and obligations: "The employment relationship between Ross-Simons and the employees is one of employment at will. Both the employee and Ross-Simons have the right to terminate their relationship for any reason." The receipt slip also states that employees hold their positions "at will" and that the handbook was intended as a "guideline."
Additionally, plaintiff alleged in her argument opposing summary judgment that prior to her termination she was "systematically excluded" from management meetings.
According to plaintiff's brief to this Court, she filed a charge of discrimination with the Rhode Island Commission for Human Rights (commission), and then waited 120 days before filing a complaint in Superior Court.[1] The plaintiff's second amended complaint delineated two counts *47 alleging: (1) gender and age discrimination in violation of the State Fair Employment Practices Act, G.L. 1956 chapter 5 of title 28;[2] and (2) a breach of an employment contract. On defendant's motion for summary judgment, the motion justice found: (1) no competent evidence existed that would allow a factfinder to infer that defendant's termination of plaintiff was motivated by age-based or gender-based discriminatory animus; and (2) that the employee handbook did not create a contract under Rhode Island law because the employer reserved the right to modify the handbook. The motion justice then entered summary judgment in favor of defendant, and plaintiff now appeals.
II
Analysis
When reviewing an order granting a motion for summary judgment, we apply the same standard as the motion justice and we conduct a de novo review. Ritter v. Mantissa Investment Corp., 864 A.2d 601, 604 (R.I.2005). The judgment shall be affirmed "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Super. R. Civ. P. 56(c). A nonmoving party must demonstrate "by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions." Ritter, 864 A.2d at 604 (quoting Duffy v. Dwyer, 847 A.2d 266, 269 (R.I.2004)). To clarify the legal significance of the employee handbook, we will address the legal issues plaintiff presented in reverse order.
A
Employment Contract
The plaintiff contends the motion justice misconstrued the law of this state on employee handbooks when he dismissed her breach of contract claim. "In this jurisdiction when the duration of a contract is uncertain, the contract is to be considered terminable at will." Payne v. K-D Manufacturing Co., 520 A.2d 569, 573 (R.I.1987). The plaintiff seeks to circumvent the "at will" rule by arguing that the employee handbook granted to her the right to displace less senior employees in the event of a reduction in staff.
The principal authority that the motion justice cited for this issue was Roy v. Woonsocket Institution for Savings, 525 A.2d 915 (R.I.1987). In that case, we declined to decide whether we should adopt the doctrine that "handbooks and personnel policies may give rise to contract rights in certain circumstances." Id. at 918. Roy then proceeded, however, to provide reasons why, even if we adopted the doctrine, no employment contract arose in that case, one of which was:
"[T]he [employer's] handbook and manual specifically provided that the policies stated therein could be altered or revoked by the [employer] at any time and for any reason. Thus it cannot be said that [the employee] should have relied on any statements in the [employer's] handbook or manual. * * * `[I]f an employer notifies its employees that its policies are subject to unilateral change, the employees can have no legitimate expectation that any particular policy will remain in force.'" Id. (quoting Dudkin v. Michigan Civil Service Commission, *48 127 Mich.App. 397, 339 N.W.2d 190, 195 (1983)).
Applying Roy, we have held that an employer was not required to make a certain severance payment to a terminated employee because the handbook in question reserved the employer's right to revise all its policies. D'Oliveira v. Rare Hospitality International, Inc., 840 A.2d 538, 541 (R.I.2004). In doing so, we stated "employees cannot have a legitimate expectation that a particular policy will remain in effect when he or she has been notified that the policy is subject to unilateral change." Id.; see also DelSignore v. Providence Journal Co., 691 A.2d 1050, 1052 (R.I.1997) (citing Roy as supporting the proposition that an employee's "implied contract theory" could not survive summary judgment because the employee "has not directed us to anything in the defendant's policies, practices, procedures, or employee memoranda that would give rise to a reasonable belief that he was anything other than an at-will employee").
The motion justice correctly applied the law to this case. The handbook's disclaimer contained both in the letter from the president and in the receipt slip clearly militates against any employee expectation that defendant can be bound by the policies expressed therein. Put differently, because defendant unilaterally could change its policy concerning staff reduction, plaintiff did not have a contractual right to displace less senior employees. Accordingly, plaintiff's breach of contract claim cannot survive summary judgment.
B
Employment Discrimination
The plaintiff next argues that the motion justice erroneously discounted her factual allegations in entering summary judgment in favor of defendant on her claims of age and gender discrimination. In doing so, plaintiff contends, the motion justice held her to a nearly insurmountable burden of proof. Since a claim of age discrimination and a claim of gender discrimination employ similar legal analyses, and because plaintiff marshals the same set of facts with respect to each claim, we will address both claims simultaneously.
The State Fair Employment Practices Act (FEPA), G.L. 1956 chapter 5 of title 28, prevents an employer from discharging an employee because of his or her "age" or "sex," § 28-5-7(1)(i)-(ii).[3] This Court has adopted the federal legal framework to provide structure to our state employment discrimination statutes. Newport Shipyard, Inc. v. Rhode Island Commission for Human Rights, 484 A.2d 893, 898 (R.I.1984). The parties seem to agree that plaintiff's claims are in the nature of disparate treatment, and, therefore, we will apply the now-familiar burden-shifting framework found in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny. See Newport Shipyard, Inc., 484 A.2d at 898. This burden shifting "allocates burdens of production and orders the presentation of evidence so as `progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.'" Center for Behavioral Health, Rhode Island, Inc. v. Barros, 710 A.2d 680, 685 (R.I.1998) (quoting Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir.1995)).
1
Prima Facie Cases
A plaintiff must prove a prima facie case in the first step of the McDonnell *49 Douglas analysis. Barros, 710 A.2d at 685. The prima facie case in an age discrimination analysis based upon a termination[4] is:
"(1) she was at least forty years of age; (2) her job performance met the employer's legitimate expectations; (3) the employer subjected her to an adverse employment action (e.g., an actual or constructive discharge); and (4) the employer had a continuing need for the services provided by the position from which the claimant was discharged." Ramírez Rodríguez v. Boehringer Ingelheim Pharmacueticals, Inc., 425 F.3d 67, 78 n. 11 (1st Cir.2005); cf. Casey v. Town of Portsmouth, 861 A.2d 1032, 1037 (R.I.2004) (reciting the prima facie case in a failure to hire age discrimination analysis).
Similarly, the prima facie case in a gender discrimination analysis based upon a termination is:
"(1) she is a member of a protected class; (2) she was performing her job at a level that rules out the possibility that she was fired for inadequate job performance; (3) she suffered an adverse job action by her employer; and (4) her employer sought a replacement for her with roughly equivalent qualifications." DeCamp v. Dollar Tree Stores, Inc., 875 A.2d 13, 21 (R.I.2005) (quoting Smith v. Stratus Computer, Inc., 40 F.3d 11, 15 (1st Cir.1994)).
Concerning the first element of a prima facie case of gender discrimination, "every person is in a class protected against gender discrimination." Id. at 22 n. 7 (quoting Williams v. Raytheon Co., 220 F.3d 16, 19 (1st Cir.2000)). Proving a prima facie case is not "especially onerous." Barros, 710 A.2d at 685. A prima facie case gives rise to "a [rebuttable] presumption that the employer unlawfully discriminated against the employee." Id.
Turning to this case, plaintiff, a woman who was fifty-three years old at the time she was terminated, is clearly a member of the classes protected from age and gender discrimination. The plaintiff alleged in her second amended complaint, and defendant admitted in its answer, that her job performance was at least "satisfactory." In eliminating her position, defendant unquestionably adversely affected plaintiff's employment. Finally, there is evidence to suggest that another manager at the call center, who had worked for defendant before plaintiff was terminated, assumed plaintiff's duties by working hours similar to the hours that plaintiff worked prior to her termination.[5] The prima facie cases of age and gender discrimination are supported by the facts of this case.
2
Legitimate, Nondiscriminatory Reason
In the second step of the McDonnell Douglas burden-shifting framework, an employer must offer a legitimate, nondiscriminatory reason for terminating the employee. Barros, 710 A.2d at 685. The offer of a legitimate, nondiscriminatory reason is a burden of production rather than persuasion, Casey, 861 A.2d at 1037, and when produced, that reason eliminates the presumption of discrimination created by the prima facie case. Wellborn v. Spurwink/Rhode Island, 873 *50 A.2d 884, 889 (R.I.2005). The defendant articulated a legitimate, nondiscriminatory reason for terminating plaintiff: that defendant eliminated plaintiff's call center manager position in an effort to cut payroll. The defendant offered affidavits to support this contention, and, thus, it has met its burden of producing a legitimate, nondiscriminatory reason.
3
Pretext and Discrimination
The third and final step in this burden-shifting framework focuses on the ultimate question of "discrimination vel non." Casey, 861 A.2d at 1037 (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 518, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). An employee need not offer "`smoking gun'" evidence of discrimination. Barros, 710 A.2d at 685. Rather, an employee must prove that defendant's reason for termination was a pretext for discriminatory animus. Casey, 861 A.2d at 1038. More specifically, "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). The ultimate inference of discrimination is stronger when the reason for terminating an employee is "accompanied by a suspicion of mendacity." Barros, 710 A.2d at 685 (quoting Hicks, 509 U.S. at 511, 113 S.Ct. 2742). The burden of proof in the third step of the McDonnell Douglas framework rests with the employee/plaintiff. Wellborn, 873 A.2d at 889.
The plaintiff argues that, on the ultimate issue of discrimination, a triable issue of fact arises from defendant's failure to adhere to its handbook and to offer plaintiff the option of displacing less senior employees a younger woman and a man.[6] From this failure, plaintiff contends, a factfinder would be permitted to infer that by not allowing her to displace a younger woman, defendant committed age discrimination, and that by not allowing her to displace a man, defendant committed gender discrimination. The plaintiff relies heavily on our opinion in Barros to support her argument.
In determining whether an employee has demonstrated pretext, we first analyze whether defendant's legitimate, nondiscriminatory reason bears "a suspicion of mendacity." See Barros, 710 A.2d at 685 (quoting Hicks, 509 U.S. at 511, 113 S.Ct. 2742). Accordingly, we observed in Barros that "almost all the conduct that served as a basis for her termination took place prior to February 1991, when she announced her pregnancy." Id. at 686. Thus, the fact that her behavior became more objectionable to her employer after she became pregnant rendered the employer's reasons suspect. This "suspicion of mendacity," combined with the employer's failure to follow its policies, was sufficient to support a finding of unlawful gender discrimination. See id. at 685-86. Read fairly, Barros stands for the proposition that evidence suggesting a meaningful "suspicion of mendacity" will greatly bolster a plaintiff's case. It follows, therefore, that a lack of evidence on this point may be fatal to a claim of discrimination. Cf. Ruiz v. Posadas de San Juan Associates, 124 F.3d 243, 248 (1st Cir.1997).
*51 The defendant's legitimate, nondiscriminatory reason for terminating plaintiff in this case is not analogous to Barros. At the same time plaintiff was terminated, defendant also discharged several other employees, including other salaried employees. This lends support to defendant's assertion that it sought to cut payroll throughout the company. Furthermore, plaintiff does not directly controvert defendant's assertion that it was, in fact, reducing its staff; she takes issue only with who was terminated. When analyzing an employer's attempt to reduce staff, other courts have noted the importance of allowing an employer to exercise its business judgment in terminating a member of a protected class:
"There is little doubt that an employer, consistent with its business judgment, may eliminate positions during the course of a downsizing without violating Title VII even though those positions are held by members of protected groups (pregnant women included). * * * This is merely a reflection of a central theme that permeates the relevant jurisprudence: insofar as Title VII is concerned, an employer can hire or fire one employee instead of another for any reason, fair or unfair, provided that the employer's choice is not driven by race, gender, pregnancy, or some other protected characteristic. * * * The flip side of the coin, however, is that an employer who selectively cleans house cannot hide behind convenient euphemisms such as `downsizing' or `streamlining.' Whether or not trimming the fat from a company's organizational chart is a prudent practice in a particular business environment, the employer's decision to eliminate specific positions must not be tainted by a discriminatory animus." Smith v. F.W. Morse & Co., 76 F.3d 413, 422 (1st Cir. 1996).
Therefore, plaintiff's failure to cast meaningful doubt on the proffered reason of staff reduction only militates in favor of entry of summary judgment.
We are mindful, however, that an employer's failure to follow certain termination policies can support an inference of discrimination. Barros, 710 A.2d at 686; see also Casey, 861 A.2d at 1039 (holding that an employee did not create a genuine issue of material fact concerning whether an employer deviated from its hiring policies). In Barros, however, the employer did not contend on appeal that the commission erred in concluding that the policies in question applied to the employee/plaintiff; in this case, by contrast, defendant vigorously maintains that the staff reduction policy applied only to non-salaried employees, rather than such salaried employees as plaintiff. The plaintiff does offer an affidavit of another former employee to support her assertion that the policy applied to salaried employees. When pressed by the motion justice, however, plaintiff could not identify a single instance in which a salaried employee was offered an opportunity to displace a less senior salaried employee.
Ultimately, we must answer the challenging question of whether the pleadings and affidavits in this case, which suggest that an employer may have failed to adhere to its handbook, are sufficient to survive summary judgment in an employment discrimination case in which the factfinder will be asked to infer an employer's true intent and motive for terminating an employee. Even when we read the pleadings and affidavits in a light most favorable to her, the plaintiff fails to cast any meaningful doubt on the defendant's reason for terminating the plaintiff, staff reduction. Accordingly, a reasonable juror could not infer age and/or gender-based discriminatory animus from the combination of the plaintiff's prima facie case and the fact *52 that the defendant may have failed to adhere to its staff reduction policy. We hold that the motion justice properly entered summary judgment in favor of the defendant on both employment discrimination claims.
Conclusion
For the foregoing reasons, we affirm the motion justice's grant of summary judgment in favor of the defendant. The record shall be remanded to the Superior Court.
NOTES
[1] The plaintiff's brief appears to be, based on our review of the record, the first time that plaintiff avers that she made the requisite filing with the Rhode Island Commission of Human Rights (commission). See G.L. 1956 § 28-5-24.1(a). For example, plaintiff failed to document that filing in her original complaint, her second amended complaint, or in her memorandum of law opposing defendant's motion for summary judgment. Furthermore, plaintiff completely fails to identify whether the commission issued her a right to sue letter, and, if so, when that letter was issued. See id. The defendant, however, does not contend that plaintiff failed to adhere to the requirements of § 28-5-24.1; therefore, we will assume for purposes of this appeal that plaintiff did, in fact, adhere to the statutory requirements.
[2] The plaintiff's complaint also included an allegation of employment discrimination based on her Italian ancestry, but she did not pursue that allegation when opposing defendant's motion for summary judgment and she does not advance that argument on appeal.
[3] The plaintiff's second amended complaint only refers to the State Fair Employment Practices Act, and does not refer to the Civil Rights Act of 1990, G.L. 1956 chapter 112 of title 42.
[4] The elements of a prima facie case vary to some extent based on whether the underlying facts pertain to a termination, failure to promote, or failure to hire. Casey v. Town of Portsmouth, 861 A.2d 1032, 1036-37 (R.I. 2004).
[5] The motion justice disagreed with defendant's contention that plaintiff failed to prove the fourth element of her prima facie case. In its briefs to this Court, defendant does not renew that argument on appeal.
[6] The plaintiff also contends that she was "systematically excluded" from management meetings, but fails to develop how that fact advances her legal cause of action. Even in a light most favorable to her, this evidence has, at best, minimal relevance to the legal issues of pretext and discriminatory animus in this wrongful termination case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609554/ | 275 Wis. 320 (1957)
DROTT TRACTOR COMPANY, Respondent,
vs.
KEHREIN, Appellant.
Supreme Court of Wisconsin.
February 8, 1957.
March 5, 1957.
*323 For the appellant there was a brief and oral argument by Bernard F. Mathiowetz of Milwaukee.
For the respondent there was a brief by Houghton, Bullinger, Nehs & Houghton, attorneys, and Albert F. Houghton of counsel, all of Milwaukee, and oral argument by Albert F. Houghton.
STEINLE, J.
The defendant, Arthur Kehrein, challenges the court's findings (1) that the defendant was negligent in failing to give notice to the plaintiff of the defendant's intention to excavate along the plaintiff's property line, (2) that the plaintiff did not have actual knowledge prior to the excavation of the defendant's intention to excavate along the south line of West Bluemound road which adjoined the plaintiff's property, (3) that the defendant excavated in a careless and negligent manner in not properly shoring or backfilling the trench, thus removing plaintiff's lateral support and causing damage to plaintiff's property.
It is well established that findings of a trial court are not to be disturbed on appeal unless they are contrary to the great weight and clear preponderance of the evidence. Swazee v. Lee (1951), 259 Wis. 136, 137, 47 N. W. (2d) 733.
With respect to the defendant's first contention it is to be considered that one who intends an excavation which may endanger adjoining structures, should notify the owner thereof as an exercise of the ordinary care required of an excavator, unless the adjoining owner has the full knowledge of the excavation a notice would impute. 2 C. J. S., Adjoining *324 Landowners, p. 13, sec. 13 a. See also 1 Am. Jur., Adjoining Landowners, p. 523, sec. 28. The notice of an intention to excavate should give the adjoining owner full knowledge of the intended excavation in time and at a time to enable the adjoining owner to take the necessary measures to protect his property. In addition to being timely, the notice should be correct and complete. 2 C. J. S., Adjoining Landowners, p. 14, sec. 13 b. See also 1 Am. Jur., Adjoining Landowners, p. 523, sec. 28. In Christensen v. Mann (1925), 187 Wis. 567, 577, 204 N. W. 499, it was said:
"In order that the owner of property who excavates his soil in close proximity to his neighbor's building may be immune from a claim for damages, the law also imposes upon him the duty of giving reasonable and timely notice to his neighbor, so that the latter may use such means as he may deem proper to protect his own structures, and a failure to give such notice, in the absence of knowledge on the part of the neighbor, would be negligence." (Emphasis supplied.)
From the record it appears that on an occasion about a month prior to the cave-in, the defendant asked the plaintiff's general manager for the plans of the plaintiff's building. When said general manager inquired as to what need the defendant had for the plans, he said: "You never know what might be protruding on the abutments out into the road." The defendant did not advise the plaintiff's representative that he was going to excavate near the wall. Manifestly, a sufficient notice as required under the rules above referred to was not given, and the court's finding in this regard is not contrary to the evidence.
It is next contended that the evidence adduced at the trial clearly established knowledge by the plaintiff of the defendant's intention to excavate alongside its property. The plaintiff's president testified that previous to the cave-in he had observed that a sewer trench or ditch was being constructed west of plaintiff's property. The plaintiff's general manager *325 also testified that he had noticed some excavation equipment parked down the alley before the cave-in; that while he noticed the trench at the North Thirty-Ninth street intersection, he did not observe that it was being dug in a southerly direction across that intersection; that the north side of plaintiff's building was blocked off during the progress of the project; that his first knowledge that something had happened to the wall was when his brother told him about it. The defendant submits that this evidence conclusively establishes that the plaintiff was well aware of the situation as the work of excavation progressed, and that therefore it is chargeable with "knowledge." He also urges that since the excavation was visible to the plaintiff's representatives,had they looked, they would have seen the situation as it existed alongside the plaintiff's property, and that by closing their eyes for the purpose of preventing knowledge of what was occurring, they brought themselves within the field of knowledge as that term is used in the law. We cannot agree that for the reason alone that some excavating was being done in the vicinity, the plaintiff is chargeable with knowledge of the intended development alongside its property. We concur in the observation expressed in Smith v. Howard (1923). 201 Ky. 249, 258, 256 S. W. 402, where it was said:
"It is conceded in this case that no notice was given, but defendants rely upon the knowledge the plaintiff had of the work. Manifestly such knowledge, to be available as a defense to defendants, must have been such as a lawful notice would have imputed to the plaintiff. The mere fact that he knew the work was going on was in itself insufficient; manifestly he must have known, also, not only the proximity of the excavation to his own property, and the extent thereof on the surface as proposed, but he must have known the depth, particularly along or near to his own property line, in order to determine the necessity for precautionary measures on his part."
*326 In Jamison v. Myrtle Lodge (1913), 158 Iowa, 264, 271, 139 N. W. 547, and McGrath v. St. Louis (1908), 215 Mo. 191, 114 S. W. 611, the courts held that the knowledge of the complainants involved, dispensed with formal notice of the intended excavations. Those cases, however, are distinguishable in their facts from the case at bar. In the Jamison Case one of the complainants testified that he "`saw the excavation going on probably every day, and my attention was called to the crumbling and caving condition of the north wall prior to the caving of the building. The building caved on Monday, and I noticed the caving in of the wall of the excavation, the previous Sunday.'" In the McGrath Case it appeared that the plaintiffs lived in a house adjoining an alley which was being excavated, and that two weeks before the work reached their end of the alley they knew that the entire alley up to their wall would be excavated. The plaintiff's evidence in the case at bar is to the effect that it did not know of the intention of the defendant to construct the trench alongside its property. An issue of fact for the court was presented. There is ample evidence to sustain the court's finding that the plaintiff did not have actual knowledge prior to the excavation of the defendant's intention to excavate alongside its property. Such finding is not contrary to the great weight and clear preponderance of the evidence.
With reference to the challenged finding of the court that the defendant was negligent in the construction of the excavation in the area of plaintiff's retaining wall, particularly in relation to removing the lateral support, it appears that the evidence was in dispute,the defendant having testified that his bracing or shoring up of the trench was done according to method established, accepted, and approved by the industry,the plaintiff's witnesses, its president and general manager, having testified to the contrary. At the trial the defendant objected on the ground that the plaintiff's witnesses *327 were not sufficiently qualified as experts to testify as they did to the effect that the method employed by the defendant in relation to re-enforcing the ground and the trench in the vicinity of the retaining wall, was not in accordance with standards employed by sewer contractors or other contractors in circumstances as here, and that the trench caved in because of lack of sufficient bracing.
Plaintiff's president testified that he had studied engineering for two years, and that he was one of the plaintiff company's engineers; that plaintiff is engaged in the business of manufacturing, selling, and servicing construction machinery, including road-building equipment; that while he was in the plaintiff's employ from 1935 to 1949, the plaintiff dealt with many sewer and other excavating contractors, and that he personally had observed at least a hundred sewer-excavating jobs. Plaintiff's general manager testified that he had spent four years in the study of chemical engineering at college, and that in such course and under the head of civil and electrical engineering, he had studied construction in excavating; that he had been active in the plaintiff company's business from 1935 until 1949 with the exception of two years while he was serving in the navy; that on at least 50 to 100 occasions he had observed the work of sewer contractors in excavating; that it was his business to deal with such contractors and recommend equipment for their needs.
On the basis of these stated qualifications the trial court received in evidence the expert testimony of these witnesses. The question of whether a witness possesses sufficient knowledge to qualify as an expert is generally one for the trial court, and unless it appears that in its determination the court is guilty of an abuse of discretion, the court's ruling will stand. Morrill v. Komasinski (1950), 256 Wis. 417, 41 N. W. (2d) 620. Obviously the court was of the opinion that based upon their studies and practical experience, these witnesses had acquired the peculiar skill and knowledge *328 necessary to qualify them as expert witnesses with reference to the matter of proper standards to be employed by sewer contractors under circumstances as here. We are not able to conclude that the court's determination in this regard constituted an abuse of discretion.
The testimony of the plaintiff's expert witnesses in regard to the proper manner of shoring a trench under circumstances as here, is sufficient to sustain the court's finding that the defendant was negligent in not properly shoring or backfilling the trench and thereby causing the damage complained of.
A careful review of the facts satisfies us that the challenged findings are all sustained by the proof. The most that can be said is that on some of the contested issues of fact, the proof might have sustained a finding contrary to that made by the court. Upon such a state of the record this court may not disturb the findings of the trial court.
By the Court.Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/525436/ | 878 F.2d 380Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Kevin F. WALSH, Petitioner,v.NORFOLK DREDGING COMPANY, Director, Office of Workers'Compensation Programs, United States Department ofLabor; Helmsman Management Services,Inc., Respondents.
No. 88-3532.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 2, 1988.Decided June 16, 1989.
Ralph Rabinowitz (Rabinowitz, Rafal, Swartz & Gilbert, PC on brief) for petitioner.
Ann Katherine Sullivan (Crenshaw, Ware & Johnson, Michael Scott Hertzig, Linda Meekins, Benefits Review Board, Lawrence W. Rogers, U.S. Department of Labor, Basil E. Voultsides, U.S. DOL/ESA/OWCP on brief) for respondents.
Before PHILLIPS, Circuit Judge, BUTZNER, Senior Circuit Judge, and TERRENCE W. BOYLE, United States District Judge for the Eastern District of North Carolina, sitting by designation.
PER CURIAM:
1
Kevin F. Walsh has petitioned for review of a final decision of the Benefits Review Board (the Board or BRB) denying in part his application for disability benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA or the Act), 33 U.S.C. Sec. 901 et seq. The Board rejected an administrative law judge's determination that, inter alia, Walsh was entitled to continuing partial disability benefits for injuries attributable to a January 1982 on-the-job accident. Concluding that the ALJ's determination that Walsh was entitled to benefits for injuries sustained in the January 1982 accident was supported by substantial evidence, but that the ALJ did not give sufficient consideration to the relevant evidence of the resulting loss of earning capacity, we reverse and remand for further proceedings as to that portion of the award.
2
* At the time of the accident giving rise to this case, Norfolk employed Walsh as an overhead welder. On January 22, 1982, while Walsh was working on a tugboat, his foot slipped and his right arm became entangled in overhead equipment, dislocating his shoulder. Walsh was treated at and shortly thereafter released from the Chesapeake General Hospital.
3
On January 26, Walsh visited a general practitioner, Dr. Alfredo Soriano, who examined the shoulder and recommended that Walsh take three weeks leave from work. Walsh's supervisors apparently refused to approve any time off, however, and instead sent him to the company's orthopedic specialist, Dr. John Vann. Dr. Vann examined Walsh on February 1, and subsequently reported that he was "sure [Walsh] is going to be immobilized for about three weeks." J.A. at 114. Management nevertheless refused to grant Walsh's request for leave. Instead, Norfolk supervisors allowed him to wear a splint and agreed temporarily to restrict his duties to "light" work.
4
Walsh claims that, as a result of the accident, he was and continues to be incapable of performing "above eye-level" work with his right hand. He complained that his shoulder repeatedly "wiggled in and out," especially when he reached up and out with his right arm.
5
In the months immediately following the accident, Dr. Van and his associate, Dr. Stephen McCoy, continued to treat Walsh for the injury. Dr. Vann examined Walsh on April 26 and concluded that the injury was sufficiently healed that Walsh could perform all of his former duties. In May, however, Walsh again visited Dr. Vann and complained of repeated dislocations. Dr. Vann reevaluated his earlier diagnosis and scheduled corrective surgery, which Dr. McCoy performed on June 25.1 This surgery apparently did not succeed, as hoped, in restoring mobility to the claimant's shoulder and arm. Beginning in January of 1983, Walsh began to see another orthopedic surgeon, Dr. A.A. Kirk, for treatment of the dislocation. After physical therapy resulted in little improvement of the claimant's impaired shoulder abduction, Dr. Kirk recommended additional surgery, which he performed sometime shortly after the initial September 1983 administrative hearing on Walsh's LHWCA claim.
6
The evidence of "lost earning capacity" allegedly attributable to the January 1982 accident consists primarily of Walsh's subsequent employment history.2 On April 17, 1982, Norfolk discharged the claimant, purportedly for "excessive absenteeism." For a short period prior to his surgery the following June, Walsh worked as a carpenter, earning approximately $5.00 per hour. After the initial operation, however, he was not again employed until February of 1983,3 when he finally obtained work as a gas station manager. The claimant held that position for six weeks, earning $3.45 per hour. Walsh then began working for a junk dealer, first at $150.00 and then later at $200.00 per week. Walsh continued to hold this position at the time of the 1983 administrative hearing.
7
On the basis of the available medical evidence, the ALJ concluded that Walsh had suffered a compensable partial disability as a result of the January 1982 accident. He recommended that the Department of Labor order Norfolk to pay Walsh continuing "temporary" disability benefits, which would presumably terminate upon any later showing that the claimant's condition had improved such that he could once again perform his former duties as an overhead welder.4 On Norfolk's appeal, however, the Benefits Review Board reversed, concluding that, except with respect to the three-month period following Walsh's June 1982 surgery, the record did not include substantial evidence either that the claimant's impairments were directly attributable to his January 1982 on-the-job accident, or that he had suffered an actual loss of earning capacity in connection with the injury.
8
This petition for review followed.
II
9
Our review of a BRB decision rejecting an ALJ's factual findings is to determine whether in doing so the BRB erred as a matter of law in concluding that those findings were not supported by substantial evidence. Essentially, that is, we review the ALJ's decision de novo under the same substantial evidence standard which bound the BRB. This of course means that in a situation of conflicting findings, we owe deference to the ALJ's findings rather than the BRB's. See Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP, 681 F.2d 938, 941 (4th Cir.1982).
10
Reviewing under this standard, we conclude that the BRB erred in its assessment that substantial evidence did not support either the ALJ's finding that claimant's impairments were directly attributable to the January 1982 on-the-job accident or that claimant had suffered some actual loss of earning capacity from that injury. We conclude to the contrary that substantial evidence supported both the ALJ's finding of the requisite causation and some degree of compensable loss.
11
After examining the claimant in January of 1983, Dr. Kirk found that, notwithstanding the corrective surgery performed by Dr. McCoy the previous June, Walsh still "lacked eighty degrees abduction[,] seventy degrees external rotation and twenty degrees internal rotation of his [right] shoulder." J.A. at 115. The claimant also "lacked sixteen inches getting his hand up behind his back." Id. Dr. Kirk concluded that "[a]t the present time ..., Mr. Walsh has [a] fifty percent (50%) disability of his right shoulder." Id. at 111. By September, Walsh's shoulder mobility had improved considerably, but was still sufficiently impaired that Dr. Kirk recommended a second corrective surgical procedure. Id. at 116.
12
On various other occasions, Walsh's treating physicians diagnosed functional impairments directly attributable to the January 1982 accident. As early as April of 1982, for example, Dr. Vann had concluded that the claimant was "developing recurrent dislocation of his shoulder," possibly of such severity that Walsh would require corrective surgery. Id. at 113. On May 17, 1982, radiological examination confirmed an "anterior dislocation" and a consequent need for surgical repair of the claimant's shoulder joint. Id. at 112. At a deposition conducted after the initial administrative hearing, Dr. McCoy testified that Walsh required continuing treatment, including the initial surgery, as a result of "permanent instability of the shoulder." Id. at 182. Dr. McCoy had earlier concluded that this "instability" was directly traceable to the injuries Walsh suffered in the January 1982 accident. Id. at 108. Moreover, the claimant experienced continuing functional impairment--and therefore required additional surgery some twenty months after the accident--primarily as a result of complications associated with the first operation, hence as a proximate consequence of the original injury. Id. at 171.
13
We are persuaded, therefore, that the record contains substantial medical evidence to support the ALJ's conclusion that the claimant was partially disabled as a result of injuries suffered in the on-the-job accident here at issue. In so concluding, we are of course aware that there is substantial countervailing evidence. Norfolk claims, for example, that Walsh's continuing shoulder problems are attributable not to the January 1982 injury, but instead to a preexisting orthopedic condition traceable to earlier shoulder dislocations. The claimant's medical history indeed suggests that he injured his shoulder on more than one occasion before 1982, and Dr. McCoy at one point concluded that the evidence of these prior injuries "would seemingly remove the responsibility for this [recurring shoulder problem] from Norfolk Dredging Company." Id. at 107. After a further review of the claimant's medical records, however, Dr. McCoy reversed himself and indicated that "certainly the accident, when at work for Norfolk Dredging, was the cause for this boy's shoulder problems." Id. at 106. In any event, we think that on this causation question and the other factual issues present in this case Norfolk has shown no more than that the record might lead two equally reasonable factfinders to reach different conclusions on the ultimate question of liability. Under the applicable standard of review "it is immaterial that the facts may permit the drawing of different inferences, or even that we may have reached a different conclusion on the same facts." Symanowicz v. Army & Air Force Exchange Service, 672 F.2d 638, 642-43 (7th Cir.1982).
14
We therefore reverse the decision of the Benefits Review Board and reinstate the ALJ's original decision that Norfolk is liable to Walsh for temporary partial disability benefits under the LHWCA.
III
15
We are also persuaded, however, that this case must be remanded for further consideration of the precise amount of benefits to be paid to the claimant.
16
The ALJ recommended that the Department compute Walsh's benefits on the basis of a $185 per week "loss of earning capacity." He arrived at that figure by subtracting the claimant's average post-injury wage rate (approximately $175.00 per week) from his "stipulated" earnings at Norfolk ($360.00 per week).
17
In cases involving "temporary partial disability [and] decrease of earning capacity," Sec. 908(e) of the Act provides for the payment of benefits totalling "two-thirds of the difference between the injured employee's average weekly wages before the injury and his wage-earning capacity after the injury in the same or another employment." 33 U.S.C. Sec. 908(e). Section 908(h) then sets out the factors to be considered by an ALJ in determining post-injury earning capacity.
18
The wage-earning capacity of an injured employee in cases of partial disability ... under [Sec. 908(e) ] shall be determined by his actual earnings if such actual earnings fairly and reasonably represent his wage-earning capacity: Provided, however, That if the employee has no actual earnings or his actual earnings do not fairly and reasonably represent his wage-earning capacity, the [factfinder] may, in the interest of justice, fix such wage-earning capacity as shall be reasonable, having due regard to the nature of his injury, the degree of physical impairment, his usual employment, and any other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition, including the effect of disability as it may naturally extend into the future. Id. Sec. 908(h). This provision establishes a two-step process for the determination of post-injury earning capacity. First, the ALJ must determine whether the claimant's actual post-injury wages accurately reflect actual wage-earning capacity. If not, the ALJ then must consider all relevant "factors and circumstances" and determine the claimant's actual capacity for various gainful employment.
19
This two-part statutory scheme does not, however, permit an administrative law judge to engage in cursory or conclusory analysis of whether actual post-injury wages accurately reflect wage-earning capacity. Read narrowly, Sec. 908(h) requires the ALJ to consider the specific "factors and circumstances" surrounding a claimant's "capacity to earn wages in his disabled condition" only after a preliminary finding that actual post-injury wages do not themselves fairly represent wage-earning potential. Put another way, "the second inquiry need not be reached depending on the outcome of the first." Randall v. Comfort Control, Inc., 725 F.2d 791, 797 (D.C.Cir.1984). This does not suggest, however, that Sec. 908(h) poses two separate and distinct questions, capable of analysis in isolation. Indeed, "the same factors must be considered at each level of the analysis." Id. (citing Devillier v. Nat'l Steel & Shipbuilding Co., 10 Ben.Rev.Bd.Serv. (MB) 649, 660-61 (1979)) (emphasis supplied). Moreover, "[w]hen an administrative law judge is setting forth in a Decision and Order his or her analysis of whether post-injury earnings fairly represent the claimant's wage-earning capacity ..., he or she [must] make explicit findings on all relevant aspects of the determination." Devillier, 10 Ben.Rev.Bd.Serv. (MB) at 661 (quoted in Randall, 725 F.2d at 797).
20
Here, the ALJ's otherwise exhaustive opinion includes no discussion whatsoever of the evidence informing his implicit conclusion that the claimant's average post-injury weekly wage rate accurately reflects true wage-earning capacity. Under Sec. 908(h), it simply is not the case, as the ALJ here assumed, that a comparison of pre- and post-injury wages always "afford[s] the court the necessary information to compute the lost earning capacity." J.A. at 197. The parties have joined issue on a number of questions implicating the legitimacy of this assumption, not the least of which is whether they indeed entered into a binding stipulation of Walsh's actual pre-injury wages as a Norfolk employee.5 They dispute, for example, whether Walsh accurately reported his post-injury wages and employment history at the original administrative hearing, and whether he had the continuing capacity, notwithstanding his injury, to obtain higher paying positions than those which he actually held. Neither the Board nor the court of appeals is empowered to resolve such disputes without the benefit of explicit and detialed analysis of the relevant evidence by an administrative factfinder. We therefore remand the case to the Department of Labor for reconsideration and de novo determination both of Walsh's actual pre-injury wages and his diminished post-injury earning capacity. We emphasize that, on remand, the hearing officer should make explicit findings with respect to the various "factors and circumstances" which Sec. 908(h) clearly requires him to consider--even if it ultimately be determined once again that the claimant's proven post-injury wages accurately reflect his diminished earning capacity.
IV
21
For the foregoing reasons, the decision of the Benefits Review Board is: (1) affirmed, insofar as it awards benefits for the period from June 2, 1982 to September 30, 1982; and (2) reversed, insofar as it absolves Norfolk of liability for the payment of disability benefits for other periods covered by the ALJ's initial Decision and Order. On the question of the claimant's compensable loss of earning capacity, the case is remanded to the Department of Labor for further proceedings consistent with this opinion.
22
SO ORDERED.
1
The parties do not dispute that, as a result of the surgery, Walsh was unable to work from June 25 until late September of 1982. The Benefits Review Board did not disturb the ALJ's finding that Walsh was entitled to disability benefits for this period
2
On appeal, the parties vigorously dispute the facts surrounding Walsh's post-injury employment history. Our summary incorporates only those facts upon which they appear to agree. For the reasons expressed in Part III, ante, we think that any remaining questions about the claimant's post-injury employment should be resolved on remand, in connection with a general de novo inquiry into his actual "loss of earning capacity."
3
Walsh claims that several prospective employers rejected his job applications because of his "manifest" shoulder problems
4
Though he explicitly found that Walsh's injury-related disability was "temporary," see J.A. at 197, the ALJ did not specifically address the question of whether Norfolk's obligation to pay "continuing benefits" might abate or terminate upon a later showing of substantial improvement in the claimant's condition. The Act makes clear, however, that benefits awards are subject to modification as a result of changes in relevant circumstances. See 33 U.S.C. Sec. 922. Of course, modification would be appropriate where the condition of a claimant originally found only "temporarily" or "partially" disabled had substantially worsened or improved. Haughton Elevator Co. v. Lewis, 572 F.2d 447, 449 (4th Cir.1978) (Sec. 922 authorizes Department of Labor to "decrease or increase" benefits awards in light of any relevant "change in conditions")
5
As indicated, the ALJ relied on a purported "stipulation" that Walsh's average pre-injury wage rate was $360.00 per week. Norfolk denies that the parties settled on any such stipulation, however, and the record on appeal indeed contains no evidence of explicit agreement on the point. Of course, we could do no better than guess at what understandings counsel for the parties might or might not have reached on this question off the record. We are persuaded, therefore, that the actual level of Walsh's pre-injury wages is best considered anew at the administrative level, in connection with the general inquiry on remand into the claimant's true loss of earning capacity | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1609316/ | 270 F.Supp. 131 (1967)
Robert ZWICKER, Henry Haslach, Jr., Bourtai Scudder, Garrett Webb, Robert Cohen, David L. Goldman, Individually and on Behalf of those similarly situated, Plaintiffs,
v.
James BOLL, Individually and as District Attorney of Dane County, Wisconsin, Ralph Hanson, Individually and as Chief of the University of Wisconsin (Madison Campus) Department of Protection and Security, Wilbur H. Emery, Individually and as Chief of Police of the City of Madison, Wisconsin, William L. Buenzli, Individually and as Judge of the County Court (Branch II, Criminal) of Dane County, Franz Haas, Individually and as Sheriff of Dane County, Wisconsin, William C. Sachtjen, Individually and as Judge of the Circuit Court (Branch IV) of Dane County, Wisconsin, The Regents of the University of Wisconsin, and their agents, assistants, successors, employees, and attorneys, Defendants.
No. 67-C-36.
United States District Court W. D. Wisconsin.
June 6, 1967.
*132 Percy L. Julian, Jr., Madison, Wis., for plaintiffs.
John P. Koberstein, Asst. Dist. Atty., Madison, Wis., for defendant Boll.
Charles A. Bleck, Asst. Atty. Gen., Thomas A. Lockyear, Asst. Atty. Gen., Madison, Wis., for defendants Hanson and The Regents of the University of Wisconsin.
William A. Jansen, Asst. City Atty., Madison, Wis., for defendant Emery.
Glenn L. Henry, Asst. Dist. Atty., Madison, Wis., for defendants Haas, Sachtjen and Buenzli.
Before FAIRCHILD, Circuit Judge, and DOYLE and GORDON, District Judges.
OPINION
MYRON L. GORDON, District Judge.
This is an action in which plaintiffs seek equitable relief to prevent their being prosecuted by officials of the state of Wisconsin for an alleged violation of Sec. 947.01, Wis.Stats. The Wisconsin statute provides as follows:
"947.01 Disorderly conduct. Whoever does any of the following may be fined not more than $100 or imprisoned not more than 30 days: (1) In a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance."
The state court actions were commenced against these plaintiffs before the latter began the instant action. The state court actions remain pending.
*133 The complaint in this court seeks either a declaratory judgment or interlocutory injunctive relief to enjoin the alleged deprivation of the plaintiffs' rights, privileges and immunities under the United States Constitution.
A temporary restraining order was entered by the U. S. district court enjoining the defendants from further proceedings to enforce Wisconsin Statute 947.01, pending a further order of the court. Then a three-judge court was convened, and a hearing was held on April 17, 1967. At the conclusion of that hearing, this court took under advisement the plaintiffs' request for equitable relief and continued the temporary restraining order. I believe that the plaintiffs' application should be denied and further that the temporary restraining order should be terminated.
The conduct which gave rise to the state court prosecutions, and, subsequently, to the complaint in this court, stemmed from occurrences on February 21 and February 22, 1967, in Madison, Wisconsin. The pleadings disclose conflicting factual claims. There are before us affidavits by the plaintiffs, and also copies of the criminal complaints filed against them in the state court. These documents, together with the other pleadings now before this court, reflect that the plaintiffs were arrested while engaging in protest demonstrations on the campus of the University of Wisconsin in Madison. The plaintiffs expressed their views regarding the war in Vietnam and the use of napalm. The immediate occasion of the protests related to the University's permitting a private company, which manufactures napalm, to conduct employment interviews in campus buildings. Upon their arrest, each was charged with violation of the disorderly conduct statute, and each was released upon bail in the sum of $105.
The plaintiffs contend that they were engaged in the legitimate exercise of their rights of free speech and assembly and that they were doing so by lawful and peaceful means, including picketing and leafletting. The complaints in the state court, appended to the answer in this action, itemize the nature of the alleged disorderly conduct and are specific as to both time and place; they indicate that certain of the plaintiffs, by continued presence in the buildings after requests to leave, and that others of the plaintiffs by loud speech interfered with or interrupted interviews and classes being conducted in the university building.
The plaintiffs contend that Sec. 947.01 of the Wisconsin statutes, on its face, is vague, over broad and also encompasses within its coverage activities which are protected by the first amendment to the United States Constitution. In State v. Givens (1965), 28 Wis.2d 109, 135 N.W. 2d 780, the Wisconsin disorderly conduct statute was challenged as being too indefinite, and that view was rejected with the state court relying upon Lanzetta v. New Jersey (1939), 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888, and Connally v. General Construction Co. (1926), 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322.
Plaintiffs' conduct, according to the state's version, bears some similarity to the conduct involved in the Givens Case, where the convictions related to a demonstration within a public building, interfering with the activities usually carried on there, and in deliberate and knowing violation of reasonable regulations of those in charge of the area, reasonably designed to preserve good order and facilitate the public uses for which the building was intended. Although distinguishable, there is some degree of similarity to the facts in Brown v. State of Louisiana (1966), 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (presence within a public building, continued after official direction to leave). In that case, decided after Givens, the Supreme Court of the United States reversed convictions under a Louisiana statute.
The pleadings suggest the factual issues between the parties. The dominant legal issue for adjudication is also readily apparent: Is the disorderly conduct statute one which regulates expression, and is it "over broad" so that these plaintiffs *134 are entitled to an adjudication of invalidity whether or not their own conduct could properly be prohibited by a more specific statute?
The legal and factual issues in this court are the same as those which would have to be resolved in the state court actions if they were permitted to proceed. The nub question is whether it is appropriate for this court to step in and determine these issues first.
Applying common sense principles of comity to the existing situation, I find no compelling reason why this court should assert power to decide these issues in this action and thus displace the state court from a resolution of the same issues in an action already before it.
The seventh circuit court of appeals recently reviewed a challenge to the Illinois disorderly conduct statute. In United States v. Woodard and United States v. Seelig, 376 F.2d 136, decided April 4, 1967, (Cases Nos. 15566 and 15567), the court ruled that the statute was not void for vagueness. The Illinois statute provides, in part, as follows:
"A person commits disorderly conduct when he knowingly * * * does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace."
In analyzing the vagueness argument, the court stated as follows:
"The Constitution does not require impossible standards of specificity in penal statutes. It requires only that the statute convey `sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.' United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). When measured by this criterion, section 26-1(a) (1) of the Illinois disorderly conduct statute does not offend due process.
"The statute proscribes conduct that is so unreasonable as to `alarm or disturb' another and provoke a `breach of the peace.' The term `breach of the peace' has never had a precise meaning in relation to specific conduct. Yet from its early common law origin to the present it has received a fairly well defined gloss. `The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others.' Cantwell v. State of Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). The term connotes conduct that creates consternation and alarm. It is an indecorum that incites public turbulence; yet violent conduct is not a necessary element.
Statutes which intrude upon first amendment rights may be held to be over broad because such freedoms are "delicate and vulnerable, as well as supremely precious in our society." N.A. A.C.P. v. Button (1963), 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405; Thornhill v. State of Alabama (1965), 310 U.S. 88, 97, 60 S.Ct. 736, 84 L.Ed. 1093; State v. Smith (1966), 46 N.J. 510, 218 A.2d 147, cert. denied, 385 U.S. 838, 87 S.Ct. 85, 17 L.Ed.2d 71. However, in the case at bar, there is no reason to believe that Wisconsin is about to punish these plaintiffs for "peacefully expressing unpopular views." Cox v. State of Louisiana (1965), 379 U.S. 536, 551, 85 S.Ct. 453, 13 L.Ed.2d 471. See also Edwards v. S. Carolina (1963) 372 U.S. 229, 237, 83 S.Ct. 680, 9 L.Ed.2d 697.
I would distinguish the type of protest involved in Brown v. State of Louisiana (1966), 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637, from the conduct alleged in the case at bar because in the latter case the demeanor of the protestors was clearly not disorderly. In the Brown Case, there was a civil rights issue presented when five Negro men persisted in remaining quietly in a segregated public library. The court noted that their "deportment while in the library was unexceptionable. They were neither loud, boisterous, obstreperous, indecorous nor impolite." It was manifest, said the court in that case, that "they intended *135 to and did stage a peaceful and orderly protest demonstration * * *"
I believe that upon the charges against the plaintiffs in the case at bar the state is entitled to prosecute them for such conduct even if such conduct occurs at a time when they were enjoying otherwise protected constitutional privileges, unless there is reason to believe that their being prosecuted is a mere pretext for the denial of such privileges. In other words, one may not be convicted for disorderly conduct under a statute such as that in Wisconsin merely because he espouses unpopular ideas or merely because others are thereby stimulated to commit disorderly acts; on the other hand, conduct which is in fact disorderly is not insulated because it is perpetrated while engaged in a protest demonstration.
I do not read Givens as a declaration by the Wisconsin supreme court that the propounding of unpopular views will qualify for conviction under Sec. 947.01 (1). However, if accompanied by any of the conduct proscribed in that statute (e. g. profanity, etc.), the otherwise protected rights can, indeed, qualify for prosecution and conviction. In this sense the Wisconsin disorderly conduct statute cannot be said to regulate expression. In my opinion, the Wisconsin statute and the Givens interpretation thereof do not authorize an encroachment on first amendment guarantees. Neither in Givens nor in the case at bar is there any reason to believe that the cause espoused by the demonstrators or the contents of the views expressed by them constituted any part of their offense. Upon this interpretation the "possible applications" approach announced in several U. S. supreme court decisions is not involved. N.A.A.C.P. v. Button (1963), 371 U.S. 415, 432, 83 S.Ct. 328, 9 L.Ed.2d 405; Winters v. People of State of New York (1948), 333 U.S. 507, 514, 68 S.Ct. 665, 92 L.Ed. 840.
In People v. Turner (1966), 17 N.Y. 2d 829, 271 N.Y.S.2d 274, 218 N.E.2d 316, the New York court of appeals held that the New York disorderly conduct statute was not uncontitutionally vague as applied to a case in which there was shouting and screaming at a street meeting. On May 8, 1967, the U. S. supreme court dismissed a writ as improvidently granted in the Turner Case. Two justices dissented in part upon the ground that first amendment rights were impaired by a "fuzzy" application of the New York disorderly conduct statute. In another recent development, the U. S. supreme court denied review in Burbridge v. State of California, 386 U.S. 1030, 1031, 87 S.Ct. 1475, 18 L.Ed.2d 591, which was a case in which sit-in demonstrators who were convicted of unlawful assembly or disturbing the peace were held to be not entitled to state habeas corpus.
The plaintiffs urge that there is an abuse of their rights in the manner in which the statute has been applied in this case. In Dombrowski v. Pfister (1965), 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, there was a threatened prosecution of a civil rights organization under a Louisiana statute which was restrained in the light of allegations that rights of free expression under the first and fourteenth amendments would be violated by the state's prosecution. In view of Dombrowski, a federal court may consider whether a state prosecution projects a threatened trespass upon federally protected rights. I conclude that there is no justification in the case at bar to foreclose the state courts from conducting their normal adjudication of the constitutional defenses which have been raised in this case.
Dombrowski requires a federal court to enjoin threatened state prosecution when there is reason to believe that the state's action will have a "chilling effect" upon a citizen's exercise of his rights under the first and fourteenth amendments. In that manner, the case preserves the viability of dissent within a free society. However, I do not interpert Dombrowski as directing a federal court to use its injunctive power to stay state proceedings in the absence of reason to believe that there is or will be such an abuse.
*136 There is a difference between allegation of wrong and evidence or color of wrong. Rights guaranteed under the first amendment are "not absolute at all times and under all circumstances." Chaplinsky v. State of New Hampshire (1942), 315 U.S. 568, 571, 62 S.Ct. 766, 769, 86 L.Ed. 1034. In Cox v. State of Louisiana (1965), 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471, Mr. Justice Goldberg said:
"The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy."
The materials presently before this court convince me that precipitous federal court interference with the enforcement of Wisconsin's disorderly conduct statute in the cases at bar would be an unwise intrusion upon Wisconsin's good faith administration of its criminal laws.
The plaintiffs have alleged bad faith on the part of the defendants. They also claim that irreparable injury will result from their being prosecuted. In my view, notwithstanding these allegations, there are no special circumstances to justify short-cutting the normal adjudication of the constitutional defenses which may be advanced in the course of a criminal prosecution.
In view of the fact that the plaintiffs have failed to show that the Wisconsin statute is unconstitutional on its face and, further, in view of a reluctance to grant injunctive relief upon the showing which has been made in this case, I do not believe that it is necessary to resolve the abstention question presented by the application of 28 U.S.C. § 2283. The so-called anti-injunction statute provides as follows:
"A court of the United States may not grant an injunction to stay proceedings in a State Court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."
It is urged that 42 U.S.C. § 1983, the Federal Civil Rights Act, permits a federal court to grant injunctions under Sec. 2283. Notwithstanding Goss v. State of Illinois (1963), 7 Cir., 312 F.2d 257 and Smith v. Village of Lansing (1957), 7 Cir. 241 F.2d 856, the plaintiffs contend that the Dombrowski Case permits the federal courts to enjoin proceedings in state courts. However, in a footnote at P. 484 in the Dombrowski Case, the court stated that such question was left undecided. Cf. Cameron v. Johnson, (1965), 381 U.S. 741, 85 S.Ct. 1451, 14 L.Ed.2d 715. In my view, it is not necessary to determine in this case whether Sec. 1983 is an exception to Sec. 2283.
Although the matter was presented at the hearing in terms of an application for interlocutory injunction, the reasons for which such application is denied would inexorably require denial of a permanent injunction and declaratory relief as well. I believe that judgment should be entered denying the application for interlocutory injunction, vacating the temporary restraining order, and dismissing the action on its merits.
FAIRCHILD, Circuit Judge.
I concur with Judge Gordon in the disposition of the case. I agree with much that he has ably stated, but I reach the result by a somewhat different path.
I express no final view upon any of the constitutional claims asserted by plaintiffs. They will be free to raise them anew in defense of the state court actions, without prejudice by reason of decision here. I go only so far as to conclude that sec. 947.01, Wis.Stats., is not, in the light of any decision of the Supreme Court of the United States, so clearly unconstitutional under the first and fourteenth amendments as to make it appropriate for this federal court so to *137 declare notwithstanding the opportunity of plaintiffs to litigate the same issue in actions already before the state court when this action was begun.
In my view an act of Congress, 28 U.S.C. § 2283, even when read together with 42 U.S.C. § 1983, forbids this court from staying the state court actions, and impliedly, at least admonishes us, if it does not prohibit us from superseding, in effect, the state court resolution of these federal issues by issuing a declaratory judgment.[1]
Sec. 2283 provides:
"A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."
There is no act of Congress which specifically authorizes stay of state court proceedings in an action of this type. If any authorization can be found, it must be read out of 42 U.S.C.A. § 1983, as follows:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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."
In considering whether sec. 1983 authorizes an injunction against state court proceedings, I would distinguish between a state court proceeding which will serve to adjudicate reasonably debatable legal issues, as well as issues of fact, and a state court proceeding which, because of the patent invalidity of the statute involved or some other demonstrated reason, would be merely an instrument in a program of abuse by state officers of federal constitutional rights.
Where there appear to be debatable constitutional issues, I do not think that a plaintiff's claim before the federal court that a judgment against him on those issues in state court will violate his federal rights is enough to cause the federal court to decide the claim. It should be presumed, unless clearly shown to the contrary, that the state court will deal as carefully with federal rights as would we.
Plaintiffs' principal foundation for their attack on the state disorderly conduct statute is the doctrine of "overbreadth." This doctrine, as I understand it, applies specially in the area of freedoms protected by the first amendment. It permits a person who has done things the state could properly have forbidden to attack the statute on the ground that its terms not only include his conduct, but include conduct protected by the first and fourteenth amendments.
The heart of the argument here is that a demonstration in support of a point of view is protected, even though the point of view is so abhorrent to onlookers that the onlookers may riot, and that this statute may be construed to apply to a protected demonstration under circumstances where that result is produced. It seems to me, on the other hand, that it is at least arguable that the statute is not concerned with the substance of any idea which may be expressed or advocated by conduct nor with the tendency of such expression or advocacy to provoke a disorderly reaction by bystanders who are offended, except in the limited fields of indecent or profane conduct.[2]
And I know of no decision of the United States Supreme Court which determines, *138 upon the overbreadth rationale, that a substantially identical statute is wholly invalid.
The American Law Institute is preparing a Study of the Division of Jurisdiction Between State and Federal Courts, and formulating provisions on that subject for possible inclusion in the Judicial Code. Proposed sec. 1372[3] is an attempt at restatement of existing sec. 2283 as interpreted by the courts. It would prohibit an injunction to stay proceedings in a state court, except in seven enumerated types of cases. Exception (7) would permit an injunction, if otherwise warranted, where "the injunction is to restrain a criminal prosecution that should not be permitted to continue either because the statute or other law that is the basis of the prosecution plainly cannot constitutionally be applied to the party seeking the injunction or because the prosecution is so plainly discriminatory against one who has engaged in conduct privileged under the Constitution or laws of the United States as to amount to a denial of the equal protection of the laws."
A reporter's note indicates: "Exception (7) goes beyond present law to permit an injunction in certain civil rights cases where the very existence of a state prosecution may have a chilling effect on others who wish to exercise rights guaranteed by the Constitution of the United States. * * *"
A portion of the reporter's commentary[4] hereinafter quoted, exactly expresses the caution which I feel must be observed even if the provisions of 42 U.S.C. § 1983 be deemed to open up a civil rights exception to present 28 U.S.C. § 2283.
"* * * The exception covers two classes of cases. The first is those in which the prosecution must ultimately fail because it is plain that the statute or other law that is the basis of the prosecution cannot constitutionally be applied to the party seeking the injunction. This covers both statutes plainly invalid on their face and statutes that are generally valid but that cannot be applied to the defendant in the criminal proceeding because his conduct is plainly privileged under federal law. The word `plainly' is of importance. An injunction should not issue unless the constitutional question involved has been authoritatively determined with regard either to the particular statute in question or one that is indistinguishable from it."
JAMES E. DOYLE, District Judge (dissenting).
In my view, Sec. 947.01(1), Wis.Stats., as construed in State v. Givens, 28 Wis.2d 109, 135 N.W.2d 780 (1965), is invalid on its face because it is overly broad. It encompasses within its prohibition forms of expression which are protected by the First and Fourteenth Amendments to the Constitution of the United States.
In Givens it was contended that on its face Sec. 947.01(1) was fatally vague because it condemns "otherwise disorderly conduct." To meet this challenge, the Court gave content to "otherwise disorderly conduct" by construing it to mean conduct "having a tendency to disrupt good order and to provoke a disturbance." 28 Wis.2d, at 115, 135 N.W.2d, at 784. To be prohibited, the conduct need not be violent, abusive, indecent, profane, boisterous, or unreasonably loud; it need only have a tendency to disrupt good order and to provoke a disturbance. Givens has been so read by the Wisconsin Board of Criminal Court Judges in its model instruction for disorderly conduct cases. Model instruction 1900 (Wisconsin Jury InstructionsCriminal, volume 2, 1966), citing Givens, includes this sentence: "Conduct is disorderly although it may not be violent, abusive, indecent, profane, boisterous or unreasonably loud; if it is of a type which tends to disrupt good order and provoke a disturbance." The words of the Supreme *139 Court of Wisconsin in Givens are as much a part of the statute as if the legislature had put them there. Winters v. People of State of New York, 333 U.S. 507, 514, 68 S.Ct. 665, 92 L.Ed. 840 (1948); Albertson v. Millard, 345 U.S. 242, 244, 73 S.Ct. 600, 97 L.Ed. 983 (1953).
These plaintiffs are not required to show that their conduct, which is the subject of the criminal actions pending against them in the state courts, could not be made punishable by a properly drawn statute. It is enough that Sec. 947.01(1), as construed in Givens, may be applied to conduct protected by the First Amendment. "For in appraising a statute's inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts beyond that at bar. Thornhill v. State of Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093; Winters v. New York, supra, at 518-520, 68 S. Ct. 665, 671-672, 92 L.Ed. 840. Cf. Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302." N.A.A. C.P. v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405 (1963). See Aptheker v. Secretary of State, 378 U.S. 500, 516-517, 84 S.Ct. 1659, 12 L. Ed.2d 992 (1964). Thus, we need accept neither the allegations of the complaint in this court with respect to what the plaintiffs were actually doing at the times and places in question, nor the allegations of the answer in this court on that subject, nor the allegations contained in the criminal complaints or amended criminal complaints against these plaintiffs now pending in the state court. Judge Gordon's description of the alleged conduct of these plaintiffs seems to me irrelevant, as does his comparison of the conduct of the petitioners in Brown v. State of Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966), with the alleged conduct of the plaintiffs here.
As N.A.A.C.P. v. Button instructs us, we are to take into account "possible applications of [Sec. 947.01(1)] in other factual contexts beyond that at bar." A classic, practical, and realistic example is the conduct of a speaker who expresses his views at an appropriate time and place and in a subdued manner, but whose views so offend his listeners that they are moved to disrupt good order and to effect a disturbance. The same may be true of otherwise discreet and appropriate picketing, standing, or sitting, the significance of which is accurately comprehended by others and resented by them. In my view, applications of Sec. 947.01(1), as construed in Givens, to such "factual contexts beyond that at bar" are not only "possible applications" (371 U.S., at 432, 83 S.Ct. at 337); these applications are probable and even necessary applications of a statute which condemns conduct "having a tendency to disrupt good order and to provoke a disturbance."
The Supreme Court of the United States has declared repeatedly that a state may not constitutionally prohibit the expression or advocacy of ideas by conduct which may have a tendency to provoke antagonists to break the peace.
In Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949), the petitioner had been found guilty by a jury of violating Chicago's disorderly conduct ordinance which employed the phrase "breach of the peace". The trial court had instructed the jury that breach of the peace consists of any "misbehavior which violates the public peace and decorum"; and that the "misbehavior may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm." 337 U.S., at 3, 69 S.Ct. at 895. The Supreme Court reversed the conviction. It held that the instruction to the jury was "as binding on us as though the precise words had been written into the ordinance." Thus, the ordinance as construed "permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition *140 of unrest. A conviction resting on any of those grounds may not stand." (Emphasis mine.) 337 U.S., at 4-5, 69 S.Ct. at 896.
Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963), involved a conviction for the common law crime of breach of the peace. The Court found (372 U.S., at 234, 83 S.Ct. at 683) that in affirming the conviction, the Supreme Court of South Carolina had defined "breach of the peace" as:
"`a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence * * *, it includes any violation of any law enacted to preserve peace and good order. It may consist of an act of violence or an act likely to produce violence. It is not necessary that the peace be actually broken to lay the foundation for a prosecution of this offense. If what is done is unjustifiable and unlawful, tending with sufficient directness to break the peace, no more is required. Nor is actual personal violence an essential element in the offense * * *.
"`By "peace," as used in the law in this connection, is meant the tranquility enjoyed by citizens of a municipality or community where good order reigns among its members, which is the natural right of all persons in political society.' 239 S.C., at 343-344, 123 S.E.2d, at 249."
The Supreme Court of the United States reversed the conviction. It noted that the petitioners had been "convicted upon evidence which showed no more than that the opinions which they were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection. The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views." 372 U.S., at 237, 83 S.Ct. at 684. The Court quoted approvingly from Terminiello and declared (372 U.S., at 238, 83 S.Ct. at 685):
"As in the Terminiello case, the courts of South Carolina have defined a criminal offense so as to permit conviction of the petitioners if their speech `stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.' Id. [Terminiello v. Chicago, 337 U.S. 1], at 5, 69 S.Ct., [894,] at 896 [93 L.Ed. 1131]."
Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), involved a conviction under a Louisiana "disturbing the peace" statute which provided:
"Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby * * * crowds or congregates with others * * * in or upon * * * a public street or public highway, or upon a public sidewalk, or any other public place or building * * * and who fails or refuses to disperse and move on * * * when ordered so to do by any law enforcement officer of any municipality, or parish, in which such act or acts are committed, or by any law enforcement officer of the state of Louisiana, or any other authorized person * * * shall be guilty of disturbing the peace." La.Rev.Stat. § 14:103.1 (Cum.Supp.1962).
The Supreme Court considered in detail the specific conduct of the appellant and held that the Louisiana statute could not constitutionally be applied in the particular case. 379 U.S., at 544-551, 85 S.Ct. at 458-462. It then continued (379 U.S., at 551-552, 85 S.Ct. at 462-463):
"There is an additional reason why this conviction cannot be sustained. The statute at issue in this case, as authoritatively interpreted by the Louisiana Supreme Court, is unconstitutionally vague in its overly broad scope. The statutory crime consists of two elements: (1) congregating with others `with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned,' and (2) a refusal to move on after having been ordered *141 to do so by a law enforcement officer. While the second part of this offense is narrow and specific, the first element is not. The Louisiana Supreme Court in this case defined the term `breach of the peace' as `to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet.' 244 La., at 1105, 156 So.2d, at 455. In Edwards, defendants had been convicted of a common-law crime similarly defined by the South Carolina Supreme Court. Both definitions would allow person to be punished merely for peacefully expressing unpopular views. Yet, a `function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech * * * is * * * protected against censorship or punishment * * *. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.' Terminiello v. Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894, 896, 93 L.Ed. 1131. In Terminiello convictions were not allowed to stand because the trial judge charged that speech of the defendants could be punished as a breach of the peace `"if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm."' Id., 337 U.S., at 3, 69 S.Ct., at 895. The Louisiana statute, as interpreted by the Louisiana court, is at least as likely to allow conviction for innocent speech as was the charge of the trial judge in Terminiello. Therefore, as in Terminiello and Edwards the conviction under this statute must be reversed as the statute is unconstitutional in that it sweeps within its broad scope activities that are constitutionally protected free speech and assembly."
The Louisiana statute, thus held invalid on its face as being overly broad, included the phrase: "under circumstances such that a breach of the peace may be occasioned thereby." I consider this language indistinguishable, in terms of overbreadth, from the words "having a tendency to disrupt good order and to provoke a disturbance." Thus, I consider Cox unambiguous authority for the proposition that Sec. 947.01(1) is unconstitutional "in that it sweeps within its broad scope activities that are constitutionally protected free speech and assembly." 379 U.S., at 552, 85 S.Ct. at 463.
When Brown v. State of Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966), reached the court, it was called upon to deal with another conviction under the Louisiana "disturbing the peace" statute which it had considered in Cox. In Cox the conduct had occurred on public streets and sidewalks; in Brown, in a public library. The court recalled (383 U.S., at 134-135, 86 S.Ct. at 720) that in Cox it had invalidated the statute on its face for overbreadth and commented:
"Since the present case was decided under precisely the statute involved in Cox but before our decision in that case was announced, it might well be supposed that, without further ado, we would vacate and remand in light of Cox. But because the incident leading to the present convictions occurred in a public library and might be thought to raise materially different questions, we have heard argument and have considered the case in extenso."
The Court then proceeded to hold that the "public building phase" of the statute (Black, J., dissenting, 383 U.S., at 157, 731; Brennan, J., concurring, 383 U.S., at 144, 725) could not constitutionally be applied to punish the petitioners' *142 actions in the circumstances of this case. Concurring in the judgment (383 U.S., at 143-150, 724-728), Mr. Justice Brennan expressed the view that the Louisiana statute could not properly be considered to consist of two discrete "phases", one dealing with public streets and sidewalks and another with public buildings; therefore, the Cox declaration of invalidity for overbreadth felled the whole statute once and for all. Even assuming the correctness of the two-phase analysis, he was of the opinion that the public building phase was itself invalid on its face by reason of overbreadth.
One is left uncertain why neither of the two alternative views of Justice Brennan was accepted by the Court in entering its judgment reversing the convictions in Brown. It is clear, however, that the Court's election to invalidate the "public buildings phase" of the statute on other grounds did not signal the death of the overbreadth doctrine. See Elfbrandt v. Russell, 384 U.S. 11, at 18-19, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966). Cf. Ashton v. Kentucky, 384 U.S. 195, 200-201, 86 S.Ct. 1407, 16 L. Ed.2d 469 (1966).
In any event, it is firmly developed law that a state may not constitutionally punish the expression or advocacy of ideas by conduct because "it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" (emphasis mine), Terminiello, 337 U.S. 1, at 3, 69 S.Ct. 894, at 895, nor may it punish persons "merely for peacefully expressing unpopular views," Cox, 379 U.S., at 551, 85 S.Ct. 162. If the "possible applications of the statute," N.A.A.C.P. v. Button, 371 U.S., at 432, 83 S.Ct. at 337, are such that "it sweeps within its broad scope activities that are constitutionally protected free speech and assembly," Cox, 379 U.S., at 552, 85 S.Ct. at 463, the statute must fall. These are the considerations which persuaded the three-judge federal court in Carmichael v. Allen, D.C., 267 F.Supp. 985 (N.D.Ga., Atlanta Division, Civil Action No. 10421, December 13, 1966) that it must declare invalid on its face an Atlanta disorderly conduct ordinance making it unlawful "for any person to act in a violent, turbulent, quarrelsome, boisterous, indecent or disorderly manner, or to use profane, vulgar or obscene language, or to do anything tending to disturb the good order, morals, peace or dignity of the City."[1]
I do not understand either of the judges who constitute a majority here to say that the "possible applications" test, enunciated in N.A.A.C.P. v. Button and elsewhere, is not to be applied in the area of First Amendment freedoms. Nor do I understand either of them to say that a statute would not be invalid on its face if, so tested, it may be applied to prohibit the expression or advocacy of ideas by conduct which has a tendency to provoke a disorderly reaction by antagonized onlookers or bystanders.
Judge Gordon seems to say that the "possible applications" test is inappropriate here because Sec. 947.01(1) does not prohibit conduct unless it both: (1) is violent, abusive, indecent, profane, boisterous, or unreasonably loud; and (2) has a tendency to disrupt good order and to provoke a disturbance. I believe it is not open to us to save Sec. 947.01(1) by a construction which flatly opposes the construction by the Supreme Court of Wisconsin in Givens.
Judge Fairchild seems to make two points. The first is "that it is at least arguable that the statute is not concerned *143 with the substance of any idea which may be expressed or advocated by conduct nor with the tendency of such expression or advocacy to provoke a disorderly reaction by bystanders who are offended, except in the limited fields of indecent or profane conduct." The second is that when the constitutional issues are "debatable", or when the statute is not marked by "patent invalidity", or when, in the quoted language of the American Law Institute Reporter, the constitutional question involved has not been "authoritatively determined with regard either to the particular statute in question or one that is indistinguishable from it", the three-judge federal court should, and may indeed be compelled to, abstain and permit state court resolution of the federal constitutional issue.
With respect to the first point, it is unclear whether Judge Fairchild refers to the statute as enacted or as construed in Givens. Because we must test it as construed in Givens, we must consider Judge Fairchild's "arguable" construction as it applies both to conduct described by the six adjectives in Sec. 947.01(1) (violent, abusive, indecent, profane, boisterous, or unreasonably loud) and also to conduct merely "having a tendency to disrupt good order and to provoke a disturbance." Nothing whatever in this latter phrase suggests that if the "tendency" is a function of the substance of any idea expressed or advocated by conduct, then the conduct is excluded from the prohibition. "[W]e will not presume that the statute curtails constitutionally protected activity as little as possible." N.A.A.C.P. v. Button, 371 U.S. 415, at 432, 83 S.Ct. at 337.
Assuming, howeverincorrectly, I believe that we may strain to find an arguable and saving construction of Sec. 947.01(1) which is not inconsistent with Givens, the construction suggested does not seem to me to rise to a reasonably minimal level of arguability or debatability. It is conceded that with respect to "indecent" conduct and "profane" conduct, Sec. 947.01(1) does render operative both the substance of ideas expressed or advocated by conduct, and the tendency of such expression or advocacy to provoke a disorderly reaction by bystanders who are offended. To these two categories must be added "abusive" conduct. In Lane v. Collins, 29 Wis.2d 66, 138 N.W.2d 264 (1965), decided after Givens, the Supreme Court of Wisconsin dealt with a city ordinance the provisions of which are said to be (29 Wis.2d, at 71-72, 138 N.W.2d at 267):
"similar in import to that portion of sec. 947.01(1) * * * which makes it a misdemeanor for a person to engage `in * * * abusive, indecent, profane * * * conduct * * *' in a public or private place. The underlying reason for disorderly conduct statutes and ordinances proscribing abusive language is that such language tends to provoke retaliatory conduct on the part of the person to whom it is addressed that amounts to breach of the peace. Calling another person a `son-of-a-bitch' under charged circumstances might well constitute abusive language which is likely to have that result."
Also, to the extent that "violent" conduct may be in the form of speech, and assuming that "violent" means something other than "boisterous" or "unreasonably loud", it appears that substance or content is necessarily an operative factor in determining whether speech is "violent".
Moreover, the suggested construction of the phrase "having a tendency to disrupt good order and to provoke a disturbance"namely, that it is deaf to the substance of ideas expressed or advocated by conductwould also remove from its ambit conscious incitement of one's sympathizers to break the peace. Such a construction would nearly nullify the phrase "to provoke a disturbance."
Thus, the suggested construction of the phrase would require us: (1) to find in it an implicit, not explicit, limitation upon its scope which is inoperative with respect to three and perhaps four of *144 the six categories of conduct specifically described in the statute; and (2) to remove from its ambit, for no reason which its words suggest, virtually all expression or advocacy of ideas by conduct. I am obliged to say that such a construction seems to me so lacking in merit as not to be "debatable" or "arguable", for our purposes here.
I conclude that the unconstitutionality of Sec. 947.01(1) is not seriously debatable, that it is patently invalid,[2] and that the constitutional question involved has been authoritatively determined with regard to an ordinance in Terminiello, a common law crime in Edwards, and a statute in Cox, none of which, as construed by jury instructions or by state appellate courts, is significantly distinguishable from Sec. 947.01(1), as construed in Givens.
Thus I reach issues which neither member of the majority reaches: May and should this three-judge federal court declare invalid a state criminal statute which clearly violates the First and Fourteenth Amendments, or must or should this court abstain and leave this function to the state courts? If it may and should declare the statute invalid, may and should it also permanently enjoin further proceedings in a pending prosecution in the state courts? I share fully with the other members of this court a powerful disinclination to interfere with the state's administration of its criminal laws, and an awareness that the devotion of the Wisconsin state judiciary to the Constitution of the United States is equal to that of the federal judiciary. However, the circumstances here do not permit us to indulge so readily our natural disposition to defer to the state courts.
In Givens, two state trial courts and the Supreme Court of Wisconsin refrained from practicing the method of constitutional analysis which, in my view, is demanded by Thornhill, Winters, N. A. A. C. P. v. Button, Aptheker, and other decisions. In Givens, the Supreme Court of Wisconsin undertook to fill out the provisions of Sec. 947.01(1) with words which rendered it fatally overbroad. These words are now enshrined in a model jury instruction approved and published by the Wisconsin Board of Criminal Court Judges. I would notice judicially, as I consider us obliged to do, that the state trial courts may be expected to use this model instruction. It comes to this: the strong probability is that the cases of these plaintiffs, and others prosecuted for violations of Sec. 947.01(1), will be governed by the statute as construed in Givens and as reflected in the model instructions. On appeal to the Supreme Court of Wisconsin from convictions, it would be necessary for them to persuade that appellate court to engage in a method of constitutional analysis from which it refrained in Givens, and then either to change radically the construction enunciated in Givens, or to reach a conclusion with respect to the constitutionality of Sec. 947.01(1) which would be inconsistent with, and perhaps contradictory to, the conclusion reached in Givens. Failing in all this, they would be left to seek review in the Supreme Court of the United States.
*145 Moreover, this is not a situation in which we are properly asked to defer to the state trial courts to permit them to make findings of fact in the particular case and then to shape the statute by application and non-application to these facts or to those. Instead, the state courts at both the trial and appellate level would be obliged to engage in the very analysis of the statute's breadth in which I have engaged here, and, as I see it, to reach the inevitable conclusion that the statute, as construed in Givens, is fatally overbroad. In short, the only reason to leave to the state courts the opportunity to make this analysis and to reach this conclusion is that, the second time around, the Supreme Court of Wisconsin might discard the Givens construction and substitute for it a saving construction of the statute.
Fortunately, we find in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), rather specific guidance in this situation. There (380 U.S., at 483-487, 85 S.Ct. at 1119) the court defined the limited reach of the abstention doctrine enunciated in Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324, and declared (at 486-487, 85 S.Ct. at 1120-1121):
"A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms. See, e. g., Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. When the statutes also have an overbroad sweep, as is here alleged, the hazard of loss or substantial impairment of those precious rights may be critical. For in such cases, the statutes lend themselves too readily to denial of those rights. The assumption that defense of a criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases. See Baggett v. Bullitt, supra, 377 U.S. at 379, 84 S.Ct., at 1326. For `[t]he threat of sanctions may deter * * * almost as potently as the actual application of sanctions. * * *' NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405. Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expressionof transcendent value to all society, and not merely to those exercising their rightsmight be the loser. Cf. Garrison v. State of Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 215, 216, 13 L.Ed.2d 125. For example, we have consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Thornhill v. State of Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741, 742, 84 L.Ed. 1093; NAACP v. Button, supra, 371 U.S. at 432-433, 83 S.Ct., at 337-338; cf. Aptheker v. Secretary of State, 378 U.S. 500, 515-517, 84 S.Ct. 1659, 1668-1669, 12 L.Ed. 2d 992; United States v. Raines, 362 U.S. 17, 21-22, 80 S.Ct. 519, 522-523, 4 L.Ed.2d 524. We have fashioned this exception to the usual rules governing standing, see United States v. Raines, supra, because of the `* * * danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.' NAACP v. Button, supra, 371 U.S., at 433, 83 S.Ct., at 338. If the rule were otherwise, the contours of regulation would have to be hammered out case by caseand tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation. Cf. Ex parte Young, supra, 209 U.S., at 147-148, 28 S.Ct., at 448-449. By permitting determination of the invalidity of these statutes without regard to the permissibility of some regulation on the facts of particular cases, we have, in effect, *146 avoided making vindication of freedom of expression await the outcome of protracted litigation. Moreover, we have not thought that the improbability of successful prosecution makes the case different. The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure. See NAACP v. Button, supra, 371 U.S., at 432-433, 83 S.Ct., at 337-338; cf. Baggett v. Bullitt, supra, 377 U.S., at 378-379, 84 S.Ct., at 1326; Bush v. Orleans School Board, D.C., 194 F.Supp. 182, 185, affirmed sub nom. Tugwell v. Bush, 367 U.S. 907, 81 S.Ct. 1926, 6 L.Ed.2d 1250; Gremillion v. United States, 368 U.S. 11, 82 S.Ct. 119, 7 L.Ed.2d 75."
And directly pertinent to the situation presented here, the court held (at 489-490, 85 S.Ct. at 1122):
"The District Court also erred in holding that it should abstain pending authoritative interpretation of the statutes in the state courts, which might hold that they did not apply to SCEF, or that they were unconstitutional as applied to SCEF. We hold the abstention doctrine is inappropriate for cases such as the present one where, unlike Douglas v. City of Jeannette, statutes are justifiably attacked on their face as abridging free expression * * *."
See Cameron v. Johnson, 381 U.S. 741, 85 S.Ct. 1751, 14 L.Ed.2d 715 (1965).
I conclude that we are not free to abstain from a declaration that Sec. 947.01(1) is unconstitutional because of overbreadth, and I would enter a declaratory judgment to this effect.
In Dombrowski, 380 U.S. at 479, n. 2, 85 S.Ct. 1116, 1119, the question was reserved whether 42 U.S.C. § 1983, under which the present action in this court is brought, permits a federal court to stay proceedings in a state court, despite the provisions of 28 U.S.C. § 2283. It appears that the issuenow much in conflictmay be resolved by the Supreme Court reasonably soon. I content myself to say that the logic of the doctrines exemplified in Thornhill, N. A. A. C. P. v. Button, Cox, and Dombrowski seems to me to compel the conclusion that an injunction must issue in a case such as the case at bar. The illogic of preventing the institution of, while permitting the continuance of, criminal prosecutions under an invalid statute has been remarked. Douglas, J., dissenting, in City of Greenwood v. Peacock, 384 U.S. 808, 845-846, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966); American Law Institute, Study of the Division of Jurisdiction between State and Federal Courts, Tentative Draft No. 5, May 2, 1957, pp. 112-113.[3] I would enjoin the continuance of the pending criminal proceedings against these plaintiffs in the state courts.
We are not called upon to categorize today the kinds of "disorderly conduct" which the state may prohibit by a carefully drawn statute; in my view, it can constitutionally prohibit a very considerable range of disorderly conduct. We are called upon only to remind the legislature *147 that when it approaches the foothills of First Amendment freedoms, it must step with far greater care than that which marked the enactment of Sec. 947.01(1).
NOTES
[1] See Great Lakes Dredge & Dock Co. v. Huffman (1943), 319 U.S. 293, 299, 63 S.Ct. 1070, 87 L.Ed. 1407, and H. J. Heinz Co. v. Owens (9th Cir. 1951), 189 F.2d 505, 509, cert. den. 342 U.S. 905, 72 S.Ct. 294, 96 L.Ed. 677.
[2] If material, examination of the appellants' briefs in State v. Givens (1965), 28 Wis.2d 109, 135 N.W.2d 780, discloses that the doctrine of overbreadth, as distinguished from vagueness-as-lack-of-notice, was not presented to the court.
[3] P. 31-32 of Tentative Draft No. 5 of the Study.
[4] P. 184 of Tentative Draft No. 5 of the Study.
[1] I express no opinion concerning the conclusion reached in United States v. Woodard and United States v. Seelig, 376 F.2d 136 (C.A.7th, April 4, 1967, Cases Nos. 15566 and 15567), in which an Illinois disorderly conduct statute was held not void for vagueness. With respect, I do observe that the constitutionality of the statute was not analyzed by the method described in N. A. A. C. P. v. Button, supra. As a three-judge court whose decision is directly reviewable by the Supreme Court of the United States, I believe we are not bound by a decision of the Court of Appeals for the Seventh Circuit.
[2] Because I consider Sec. 947.01(1) invalid on the ground explained in this opinion, I refrain from detailed discussion of other possible grounds of invalidity, particularly this declaration in Givens: "Those in authority over public buildings or particular areas therein must be accorded discretion to regulate conduct therein. Such regulation must be reasonably designed to preserve good order and facilitate the public uses for which the building was intended. Such regulation must not, of course, deprive anyone of his constitutional or other legal rights." 28 Wis.2d, at 121, 135 N.W.2d at 787. The court's holding in this respect is not clear. If its holding is that rulemaking may be delegated to custodians of public buildings within only the guidelines just quoted, and that a deliberate and knowing violation of such a regulation constitutes a violation of Sec. 947.01(1), the statute may well be void for vagueness.
[3] The American Law Institute's proposed new sections 1372(7), Tentative Draft No. 5, May 2, 1967, pp. 31-32, and commentary thereon, pp. 184-185 (see also new section 1312(c), p. 9, and commentary thereon, pp. 110-113) appear to me preoccupied with equal protection, as distinguished from First Amendment, situations. This distinction was heavily emphasized in State of Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 16 L.Ed. 2d 925 (1966); the Court cited approvingly from People of State of New York v. Galamison, 342 F.2d 255, 269, 271 (C.A. 2d), a passage distinguishing between civil rights stated in terms of racial equality and laws "of which the due process clause and 42 U.S.C. § 1983 are sufficient examples, that confer rights in the sense, vital to our way of life, of bestowing them upon all." Since the "possible applications" method of analysis is deemed appropriate with respect to state criminal statutes affecting First Amendment rights, redefining the relationships between state and federal courts in this area may well be quite as urgent as in the equal protection area. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609341/ | 664 So.2d 444 (1995)
John YOUNG
v.
Otis T. LOGUE, et al.
No. 95-C-2597.
Supreme Court of Louisiana.
December 15, 1995.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609345/ | 664 So.2d 312 (1995)
FORTUNE INSURANCE COMPANY, Appellant,
v.
DEPARTMENT OF INSURANCE, Appellee.
No. 95-9.
District Court of Appeal of Florida, First District.
December 8, 1995.
*313 Harold H. Catlin and Holly J. McCorkle of Saalfied, Catlin & Coulson, P.A., Jacksonville, for Appellant.
James B. Redner, Department of Insurance, Tallahassee, for Appellee.
SMITH, Senior Judge.
Fortune Insurance Company (hereafter "Fortune") appeals from a final order of the Department of Insurance (hereafter "Department"). The Department ruled that it has the authority, under Section 627.062(2)(g), Florida Statutes, to review and disapprove an insurer's rate as excessive at any time after the expiration of a period of one year following final approval by the Department, without necessity for a finding that a material misrepresentation or material error was made by the insurer in its rate filing. We affirm.
The facts, which are not in dispute, so far as they pertain to this appeal are as follows. Fortune, an insurance company authorized to conduct an insurance business in Florida, engages in the business of writing home-owners' insurance throughout Florida. In 1985, Fortune sought approval of homeowners' insurance rates to be charged by Fortune in four geographic zones. In January of 1986, the Department approved Fortune's homeowners rates in all four zones. Fortune requested no rate modification between January, 1986 and June 11, 1993, on which date Fortune filed a request for approval of an increase in rates within Zones I, II, and III, pursuant to section 627.062(2)(a)1, Florida Statutes. Fortune did not seek a rate increase in Zone IV. On January 25, 1994, the Department furnished to Fortune a proposed base rate for all four zones. Based upon its review, the Department found Fortune's requested rates for Zones I, II and III were inadequate, and that the rates for Zone IV were excessive. Fortune disagreed with the Department's determination and withdrew its 1993 request for approval by letter dated February 18, 1994. By letter dated March 7, 1994, the Department accepted the withdrawal of the 1993 request and informed Fortune that the withdrawal was "equivalent to the filing never having been submitted."
However, by letter dated March 8, 1994, the Department notified Fortune that it had reviewed Fortune's current rates, and that the Department had found on a preliminary basis that certain of Fortune's rates were excessive and certain rates were inadequate. The Department also gave notice of its intention to initiate proceedings to disapprove the rates.
At Fortune's request, a formal administrative hearing was held pursuant to Chapter 120, Florida Statutes. At the conclusion of the hearing the hearing officer issued his recommended order finding that the rates in Zones I, II, and III were inadequate, and that a final order should be entered accordingly. The hearing officer further found that the rate in Zone IV was excessive. However, the hearing officer concluded, as a matter of law, that the Department had no authority under Section 627.062(2)(g) to require a decrease based upon "excessiveness."
The Department filed exceptions to the recommended order with respect to certain of the hearing officer's conclusions of law. Thereafter the Department, acting through the Insurance Commissioner of the State, issued a final order in which it approved the hearing officer's findings of fact, but rejected the hearing officer's conclusion of law with respect to disapproval of Fortune's rates in Zone IV as excessive. Instead, the Department concluded that Section 627.062(2)(g), properly construed, authorized the Department to review and disapprove a rate as excessive where the rate had been approved either by "final approval," or after the rate had been "deemed approved."
Section 627.062(2)(g) provides in pertinent part as follows:
The department may at any time review a rate, rating schedule, rating manual, or *314 rate change; the pertinent records of the insurer; and market conditions. If the department finds on a preliminary basis that a rate may be excessive, inadequate, or unfairly discriminatory, the department shall initiate proceedings to disapprove the rate and shall so notify the insurer. However, the department may not disapprove as excessive any rate for which it has given final approval or which has been deemed approved for a period of 1 year after the effective date of the filing unless the department finds that a material misrepresentation or material error was made by the insurer or was contained in the filing... .
(Emphasis added.)
The hearing officer interpreted this statute as precluding the Department from disapproving a rate as excessive, absent a material misrepresentation or error in the insurer's filing, if the rate has been given "final approval" by the Department. However, as to the Department's authority to find excessive any rate "deemed approved," the hearing officer found that the language of Section 627.062(2)(g) precluded such disapproval by the Department only for a period of one year from the effective date of filing, after which the Department could disapprove a rate as excessive. In keeping with the foregoing analysis, the hearing officer found that since Fortune's 1986 rate for Zone IV had been given final approval, the Department had no authority to declare the rate excessive.
The Department's final order agreed with the hearing officer's construction of the statute so far as his recommended order dealt with rates "deemed approved." The Department disagreed, however, with the hearing officer's conclusion as to the Department's authority to disapprove as excessive a rate given "final approval." The Department concluded that under a proper interpretation, taking into account the entire language of Section 627.062(2)(g), as well as related statutory provisions, the Department had authority to also disapprove rates as excessive even though approved under the "final approval" provision, the only limitation on such authority being the same as for rates "deemed approved"; that is, after a rate has been given "final approval," the Department may not declare the rate excessive until after the expiration of a one-year period from the insurer's filing date, unless the Department also finds a material misrepresentation or error in the insurer's filing.
On appeal, Fortune contends that both the hearing officer and the Department erred in their interpretation of the statute's prohibition against disapproval as excessive a rate "deemed approved." Under Fortune's view, the language "for a period of one year after the effective date of filing," merely provides a one year window within which the Department may disapprove as excessive a rate "deemed approved," after which the Department's authority ceases, unless the Department also finds a material misrepresentation or error in the insurer's filing.[1] As to rates which have received "final approval," Fortune urges that the hearing officer was correct in finding that the Department has no authority to disapprove such a rate as excessive, absent a material misrepresentation or error in the filing.
We begin our analysis by noting the appropriate standard of review. It is a well-settled principle that the interpretation of a statute by the agency responsible for its enforcement is entitled to great weight, and will not be overturned unless clearly erroneous. Dep't of Envtl. Reg. v. Goldring, 477 So.2d 532 (Fla. 1985); Shell Harbor Group, Inc. v. Dep't of Bus. Reg., 487 So.2d 1141 (Fla. 1st DCA 1986); Escambia County v. Trans Pac, 584 So.2d 603 (Fla. 1st DCA 1991). It is also well-settled that a hearing officer's legal conclusions, as opposed to factual determinations, are not clothed with a presumption of correctness and thus, an agency is free to substitute its own conclusions of law for those of the hearing officer. Harloff v. City of Sarasota, 575 So.2d 1324 *315 (Fla. 2d DCA 1991); Bustillo v. Dep't of Prof. Reg., 561 So.2d 610 (Fla. 3rd DCA 1990).
As above noted, the Department has interpreted section 627.062(2)(g) as authorizing its review and disapproval of an insurer's rate as excessive at any time, subject only to the limitation that after a rate has been given final approval or a rate has been deemed approved, a rate cannot be disapproved as excessive until the expiration of one year after the insurer's rate filing. This construction by the Department appears to be a reasonable one, well within the legislative intent as reflected by related statutory provisions setting out the purposes sought to be accomplished by the law and the guidelines to be followed by the Department in carrying out its rate-governing authority.
The statute under consideration was enacted in 1986 as a part of extensive revisions to the "Rating Law" portions of Chapter 627, Florida Statutes, particularly sections 627.011-627.381. See, Chapter 160, Laws of Florida (1986). The purposes of the law are stated in section 627.031, as follows:
627.031 Purposes of this part; interpretation.
(1) The purpose of this part are:
(a) To promote the public welfare by regulating insurance rates as herein provided to the end that they shall not be excessive, inadequate, or unfairly discriminatory;
....
(2) It is the purpose of this part to protect policyholders and the public against the adverse effects of excessive, inadequate, or unfairly discriminatory insurance rates, and to authorize the department to regulate such rates. If at any time the department has reason to believe any such rate is excessive, inadequate, or unfairly discriminatory under the law, it is directed to take the necessary action to cause such rate to comply with the laws of this state.
Consistent with the purposes expressed above, the first sentence of section 627.062(2)(g) provides that the Department may "at any time" review a rate. (Emphasis added.) The second sentence authorizes the Department to initiate proceedings to disapprove any rate that may be "excessive, inadequate, or unfairly discriminatory."
Of critical significance is the third sentence, which reads:
However, the department may not disapprove as excessive any rate for which it has given final approval or which has been deemed approved for a period of 1 year after the effective date of the filing unless the department finds that a material misrepresentation or material error was made by the insurer or was contained in the filing.
In the light of the purposes of the rating law and the broad grant of authority to review and disapprove rates "at any time," we find no reason to interfere with the Department's interpretation, nor, for that matter could we, since we cannot say that its interpretation is clearly erroneous. In our view the Department was not bound to accept the hearing officer's conclusions that the one-year limitation on disapproval for excessiveness applies only to a rate "which has been deemed approved," and that a rate given "final approval" is not subject to disapproval for excessiveness in the absence of a material misrepresentation or error in the rate filing.
This court and others of this state have often made use of the doctrine of the last antecedent as an aid to statutory construction. See, Kirksey v. State, 433 So.2d 1236 (Fla. 1st DCA 1983) (generally, use of the disjunctive "or" in a statute indicates alternatives were intended and requires that such alternatives be treated separately; hence, language in clause following disjunctive is considered inapplicable to subject matter of preceding clause); McKenzie Tank Lines, Inc. v. McCauley, 418 So.2d 1177 (Fla. 1st DCA 1982); Brown v. Brown, 432 So.2d 704 (Fla. 3rd DCA 1983). Apparently relying on this rule, the hearing officer found that the language "for a period of 1 year after the effective date of filing" does not modify the clause "rate for which it has given final approval."
The issue before us is not whether the statute can be construed as did the hearing officer, but rather, whether it must be so *316 construed. We agree with the Department's view that a reading of the third sentence, in conjunction with the two preceding sentences and related statutes in pari materia, does not require the interpretation given by the hearing officer, but to the contrary, supports the interpretation of the Department. Moreover, without suggesting that the "last antecedent" rule lacks validity or usefulness, we note that the rule itself is not absolute. The discussion found in 49 Fla.Jur.2d, "Statutes," § 129 is instructive:
Grammatical rules are not conclusive, however, and the true meaning, if clearly ascertained, must prevail even though contrary to the apparent grammatical construction... . And there are cases where, instead of applying qualifying words and phrases to their next antecedent, as strict grammatical construction might require, they are applied distributively to that part of the subject matter to which they appear by the context most properly to relate.
To the same effect, 73 Am.Jur.2d, "Statutes," § 230, states, in part:
The last antecedent, within the meaning of this rule, has been regarded as the last word which can be made an antecedent without impairing the meaning of the sentence. This rule of statutory construction, however, is not controlling or inflexible. The rule is not applicable where a further extension or inclusion is clearly required by the intent and meaning of the context, or disclosed by the entire act.
Faced with a similar problem of grammatical construction Mr. Justice Brandeis, writing for the court in Porto Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 40 S.Ct. 516, 64 L.Ed. 944 (1920), stated: "When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all." 253 U.S. at 348, 40 S.Ct. at 518.
As the above discussion indicates, the Department followed accepted usage in finding that, considering the context in which it appears, the clause "for a period of 1 year after the effective date of filing," is as much applicable to rates given "final approval" as to rates "deemed approved."[2] In this connection it is noteworthy that the statutory provision placing a time limit upon the Department within which it must "finalize" its review, subsection 627.062(2)(a)1 (known as the "file and use" provision), is the same provision containing the "deemed approved" language. By contrast, subsection 627.062(2)(a)2 (the "use and file" provision), contains no time limit for the Department's review and approval or disapproval of rates, and does not contain a "deemed approved" provision. Thus, formal "final approval" and approval under the "deemed approved" provision simply identify the two ways in which approval may be obtained under the "file and use" procedure.
Finally, as argued by the Department, the concept embraced by the hearing officer and urged by Fortune on appeal that once "finally approved" a rate remains thereafter forever approved, is not only contrary to the expressed purposes of the rating law and the provision for review for excessiveness "at any time," but is also inconsistent with statutory directives enumerating factors that the Department shall consider in the reviewing process. These factors, under subsections 627.062(2)(b), 1-13, (c), (d) and (e), include among other things the insurer's loss experience; expenses; income from invested premiums; the cost of reinsurance; trend factors, including trends in actual losses; profits received in relation to the risk involved; and other relevant factors which impact on the frequency or severity of claims or upon expenses. It is apparent, as the Department urges, that the factors involved in determining the excessiveness of rates are not constant, but are variable over a period of time. We agree with the Department's conclusion that to restrict the Department's reviewing *317 authority as urged by Fortune would tend to limit the Department's ability to discharge its legislatively delegated duties in a manner not intended by the Legislature.
Accordingly, the order appealed is AFFIRMED.
KAHN and DAVIS, JJ., concur.
NOTES
[1] We have stated Fortune's view as reflected by its brief. However, we note that at oral argument before this court, Fortune's counsel conceded that the "period of 1 year" language of the statute was capable of two interpretations, and that the one adopted by the hearing officer made "more sense."
[2] The present case thus appears to be an instance permitting the application of the "possible presumption," referred to by Professor Reed Dickerson, "that, the word `or' is used in the inclusive sense of `A or B, or both,' unless the context affirmatively shows that it is used in the exclusive sense of `A or B, but not both.'" Dickerson, The Interpretation and Application of Statutes, p 233 (Little, Brown & Co., 1975). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610267/ | 865 So.2d 1177 (2003)
Shelia HOLLY and Leroy Holly, as parents and next friends of Cameron Holly, a deceased minor
v.
HUNTSVILLE HOSPITAL and Dr. John Edward Markushewski, Jr., M.D.
1000963.
Supreme Court of Alabama.
May 16, 2003.
*1178 Shay Samples and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham; and Maureen K. Cooper of Morris, Conchin, Banks & Cooper, Huntsville, for appellants.
Stanley Rodgers, Daniel F. Beasley, and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellees.
JOHNSTONE, Justice.
Introduction
The plaintiffs, Shelia Holly and Leroy Holly, parents of Cameron Holly, appeal the judgment on the jury verdict in favor of the defendants Huntsville Hospital and Dr. John Edward Markushewski, Jr., in the medical malpractice action of the plaintiffs. We reverse and remand.
On October 6, 1997, Shelia Holly took her eleven-month-old son Cameron to the emergency room at Huntsville Hospital because he had a high fever, a high pulse rate, and trouble breathing. Dr. Markushewski, who was board-certified in family practice, was working in the emergency room when the Hollys arrived at the hospital. Dr. Markushewski treated Cameron for croup, observed him for three hours, gave Shelia a prescription for Cameron, and then released him to go home. After Shelia left the hospital, she went to a Winn *1179 Dixie pharmacy to get Cameron's prescription filled. While at the pharmacy, Cameron went into respiratory arrest and then into cardiac arrest. Emergency medical technicians, responding to a 911 emergency call, transported Cameron to Huntsville Hospital, where he was pronounced dead. An autopsy of Cameron indicated that he died of necrotizing tracheobronchitis (severe tracheitis and bronchitis), a severe infection of the trachea and bronchi that obstructed his airway.
The plaintiffs sued Huntsville Hospital and Dr. Markushewski for medical malpractice. To prove medical negligence, the plaintiffs offered expert medical testimony by Dr. Mark Weber, who was board-certified in pediatrics, in emergency medicine, and in pediatric emergency medicine, and Dr. Lance Kreplick, who was board-certified in emergency medicine. The defendants objected to expert testimony from Dr. Weber and Dr. Kreplick on the ground that they were not "similarly situated" with Dr. Markushewski in that neither Dr. Weber nor Dr. Kreplick was board-certified in family practice as Dr. Markushewski was.
Relying on Waddail v. Roberts, 827 So.2d 784 (Ala.Civ.App.2000) (reversed by this Court six months after the trial of the case now before us, Ex parte Waddail, 827 So.2d 789 (Ala.2001)), the trial court held that, because Dr. Weber and Dr. Kreplick were not board-certified in family practice like the defendant Dr. Markushewski, they were not "similarly situated" with Dr. Markushewski and therefore were not competent to testify to the standard of care and the breach of that standard alleged by the plaintiffs. While the trial court allowed Dr. Weber and Dr. Kreplick to testify to causation, the trial court instructed the jury that these expert witnesses were not qualified to testify to the standard of care or to a breach of that standard. Further relying on Waddail v. Roberts, the trial court also instructed the jury that the standard of care applicable to Dr. Markushewski was the standard of care applicable to family practice physicians.
The jury returned a verdict in favor of the defendants. The plaintiffs moved for a new trial. The trial court denied the motion and entered a judgment on the jury verdict in favor of the defendants.
On appeal, the plaintiffs argue that Waddail v. Roberts, followed by the trial court in excluding testimony by the plaintiffs' expert witnesses on standard of care and breach of that standard, and cited by the trial court in instructing the jury on the competency of the plaintiffs' expert witnesses and on the standard of care applicable to the defendant doctor, was wrongly decided. The plaintiffs argue to us, as they did before the trial court, that the standard of care applicable to the defendant doctor was the standard applicable to a doctor practicing emergency medicine, as the defendant Dr. Markushewski was in treating Cameron. The plaintiffs argue, therefore, that the trial court erred to reversal in excluding the plaintiffs' experts' testimony to standard of care and breach of that standard and in instructing the jury on the plaintiffs' experts' competency and on the applicable standard of care. The defendants argue that any error by the trial court was harmless because "Dr. Markushewski himself provided the same testimony the plaintiffs' experts would have provided concerning the standard of care, and this testimony was sufficient to establish a jury question whether Dr. Markushewski breached the standard of care." (Appellees' brief, p. 7.)
Testimony
In the plaintiffs' case-in-chief, they called the defendant Dr. Markushewski as an adverse witness. On direct examination, *1180 he testified that he was board-certified in family practice but was not board-certified in emergency medicine. He testified further that, when he treated Cameron, he was "working in the emergency room practicing emergency medicine" and was "not [working] as a family practice doctor." (R. 10.) Dr. Markushewski admitted that he had not obtained a complete history of Cameron's illness, had treated him for croup rather than for necrotizing tracheobronchitis, had not admitted him to the hospital, had not intubated him to protect his airway, and had not recorded his vital signs before discharging him. Dr. Markushewski further admitted that tracheitis, a part of tracheobronchitis, requires admission to the hospital and intubation of the patient to protect his airway.
On cross-examination by defense counsel, Dr. Markushewski testified about the standard of care to be met by a doctor practicing emergency medicine:
"Q. Tell me what the standard of care is, Doctor, as you understand it?
"A. Standard of care, as I understand it, is that the standard of care implies what a reasonable and prudent physician would do to evaluate and treat a patient who presents to the emergency department.
"....
"Q. Let's talk about Cameron Holly for a minute. Does the standard of care with Cameron Holly require you to take a history from his mother about his illness?
"A. Yes, sir.
"Q. And did you do that?
"A. I did.
"Q. And did you take the appropriate history that met the standard of care?
"A. Yes, sir.
"Q. Did it require that you do a physical examination?
"A. Yes, sir.
"Q. And did you do that physical examination?
"A. I did.
"Q. And did you do a thorough and appropriate physical examination for his presentation?
"A. Yes, sir.
"....
"Q. Now, let me talk to you about the literature and your course of action here. I want to show you some information from a publication, Pediatrics in Review, December 1997. One of the sections in here deals with croup and its treatment; am I correct?
"A. Yes, sir.
"Q. You've reviewed that?
"A. Yes, sir.
"Q. You consider that to be an authoritativeor reliable authoritative information with respect to the treatment of croup?
"A. Yes, sir.
"Q. `Current research suggests that children presenting with croup who are in significant distress may be treated effectively with racemic epinephrine or L-epinephrine and steroids, undergo a period of observation, and be discharged home safely if they are free of stridor and retraction and have access to appropriate follow-up care. The recommended period of observation varies from one to three hours.' Do you agree that is appropriate and acceptable care to be provided to an infant such as Cameron Holly?
"A. Yes, sir.
*1181 "Q. Would it represent one method of treatment of a patient such as Cameron that would meet the appropriate standard of care for someone taking care of a patient such as Cameron Holly?
"A. Yes, sir.
"Q. In this case, did he receive racemic epinephrine?
"A. Yes, sir.
"Q. Steroids?
"A. Yes, sir.
"Q. We haven't talked about that. He got the two shots, one was an antibiotic Rocephin?
"A. Right.
"Q. The other was Decadron, the steroid?
"A. That's correct.
"Q. So, he had received both epinephrine and steroid?
"A. Right. Yes, sir.
"Q. He had undergone a period of observation that was approximately three hours?
"A. Yes, sir.
"Q. He was free of stridor, correct?
"A. Yes, sir.
"Q. He was free of reactions?
"A. Yes, sir.
"Q. Did he have access to appropriate follow-up care?
"A. Yes, sir.
"Q. Had you arranged for that follow-up care the next day?
"A. Yes, sir.
"....
"Q. Let me see if I can find this other one. Let me show you an article from theI believe it's Mayo Clinicthe Mayo Clinic Procedures I believe is the publication of the Mayo Clinic here. And ask you if you have reviewed that.
"A. I have.
"Q. And does it contain information that is pertinent to the treatment of a patient like Cameron Holly?
"A. Yes, sir.
"Q. And does it make a recommendation for treatment of a patient like Cameron Holly?
"A. Yes, sir.
"Q. They note, `It seems to be safe to dismiss a child who received nebulized adrenaline.' Is that racemic epinephrine?
"A. Yes, sir.
"Q. From the emergency department, if, after three to four hours of observation, the child has not stridor at rest, normal air entry, normal color, normal level of consciousness, and has received one dose of.6 milligrams per kilogram of dexamethasone. Is that Decadron?
"A. Yes, sir.
"Q. Same as what [Cameron] received?
"A. Yes, sir.
"....
"Q. And, he received that treatment?
"A. Yes, sir.
"Q. Lastly, have you reviewed an article on `The Cost Effective Use of Nebulized Racemic Epinephrine'?
"A. Yes, sir.
"Q. This one here'In the treatment of Croup' from the American Journal of Emergency Medicine, January 1998?
"A. Yes, sir.
"Q. Does it contain reliable information, reliable authority for the treatment of patients such as Cameron Holly?
"A. Yes, sir.
*1182 "Q. Does it provide that if there is significant improvement after treatment with racemic epinephrine, patient should be observed for three hours in the ED [emergency department] until the effect of the medication is gone to assess for relapse of the stridor respiratory distress. If continued improvement, therapy may include discharge on appropriate therapy and close follow-up.
"A. Yes, sir.
"Q. Was that, too, in keeping with the standard of care that was being advised for patients being treated as was Cameron Holly?
"A. Yes, sir.
"Q. And did you follow that?
"A. Yes, sir. He stayed in the ED [emergency department] for approximately three hours after the completion of racemic epinephrine treatment.
"....
"Q. Let me close with a couple of questions. In the care that you provided to Cameron that day, that morning and that early afternoon during that four hours that he was there in the emergency department at Huntsville Hospital, did you bring to him your education, your experience, and did you do what you thought was in his best interests for his presentation?
"A. In my medical judgment I did, yes, sir.
"Q. And did you follow those teachings and that training that you had and these things such as we've just alluded to from the medical literature that set forth plans for care for patients such as Cameron Holly as you rendered care to him that day?
"A. Yes, sir.
"Q. Did you perform in a manner which is in keeping with the standard of care required of you as a doctor practicing in the emergency department at the time in question of October 6, 1997?
"A. Yes, sir.
"Q. Did you in any way violate what was the standard of care required of you in taking care of Cameron Holly on October 6, 1997?
"A. No, sir."
(R. 223-232.)
Thereafter, on redirect examination by counsel for the plaintiff, Dr. Markushewski testified further:
"Q.... If someone has a severe case of viral tracheitis, you agree that the standard of care requires all of these things?
"A. If someone has a severe case of viral tracheitis, that wouldas we talked about earlier, Cameron did not have that.
"Q. I understand you say that is correct, but if that were the truth, then you agree that the standard of care requires mandatory admission to the hospital, aggressive treatment, safe airway, all three of those things, right?
"A. That's correct."
(R. 232.)
Expert witness Dr. Weber testified that he had been board-certified in pediatrics, emergency medicine, and pediatric emergency medicine. He testified that he treats his own and other pediatric patients in the emergency room and that, when he is on call for the pediatric emergency department, he answers calls from other emergency room physicians about their pediatric patients. Dr. Weber testified he *1183 has practiced emergency medicine in this manner for several years, including the year before the alleged breach occurred. Had Dr. Weber been permitted to testify about the standard of care and the breach of that standard alleged by the plaintiffs, he would have testified as follows:
"Q. Dr. Weber, are you familiar with the minimum standard of care required of a physician seeing a pediatric patient like Cameron Holly in an emergency room setting in October of 1997?
"A. Yes.
"Q. On the basis of your medical education, background, and training and experience, your review of the records in this case, do you have an opinion as to whether Dr. Markushewski met and satisfied the standard of care in this case?
"A. Yes.
"Q. What is that opinion?
"A. That he did not.
"Q. In what respects did Dr. Markushewski deviate or depart from the minimum standard of care applicable to the facts of this case?
"A. That if a diagnosis of tracheitis, be it bacterial or viral, is seriously entertained or made, there is only one management option for that patient, and that patient goes to the operating room, they have an artificial airway placed, and they're treated with antibiotics.
"Q. All right. In your opinion, did the standard of care require Dr. Markushewski to see that that was done in this case?
"A. Yes.
"Q. If the standard of care had been met in this case, Dr. Weber, do you have an opinion based on reasonable medical probability as to whether Cameron Holly would probably have survived?
"A. Yes.
"Q. What is that opinion?
"A. That he would have survived.
"Q. What do you base that opinion on?
"A. I base that opinion on two facts: One, if you have either severe croup or tracheitis, or for that matter epiglottitis, if those patients are timely taken, in the case of severe croup, to an intensive care unit and have frequent, rapid cardiopulmonary assessments so that you recognize when that child is tiring out, their airway can be managed appropriately. Certainly, if you have a patient with epiglottitis or tracheitis, if those patients are takenif those patients are taken to the operating room and their airway is managed appropriately, they do very well. And, in fact, for the most part are extubated within 48 or 72 hours....
"Q. All right.
"A. And then the second area is if they're admitted in the case of severe croup, certainly in a pediatric intensive care unit setting, which this hospital had and if there was a pediatric intensivist available from what I can gather from the records, Dr. McDuffey, she was availablethat that airway would have been managed quite optimally.
"Q. All right. And that Cameron Holly would have survived even if he had had a respiratory arrest before his airway was protected?
"A. Yes.
"Q. You say the standard of care would require protection of the airway, admission to the hospital before *1184 Cameron arrested outside the hospital 45 to 50 minutes after he was discharged?
"A. That's correct."
(R. 284-87.)
The plaintiffs' other expert witness, Dr. Kreplick, testified by affidavit that he "became board certified in emergency medicine in 1994, and [he has] been actively engaged in the practice of emergency medicine continuously and without interruption since 1991." He testified further by this affidavit that the defendant Dr. Markushewski "breached the minimum standard of care" "required of emergency room physicians in diagnosing and treating children like Cameron Holly" by "[n]egligently discharg[ing]" him, "[n]egligently fail[ing] to stabilize and treat" him, "negligently fail[ing] to arrange for [him] to be admitted to the hospital," and "[n]egligently fail[ing] to appreciate the severity and seriousness of [his] condition."
The trial court did allow Dr. Weber and Dr. Kreplick to answer hypothetical questions limited to the issue of causation in testimony admitted into evidence before the jury. Both testified to the jury that, if Cameron Holly had been "admitted to the hospital [and] aggressively treated with regard to a diagnosis of tracheitis, and [if] steps [had been] taken to protect his airway," he would have survived. (R. 330, 416.) While the evidence established that Cameron had not been so treated by the defendant Dr. Markushewski, neither plaintiffs' expert was allowed to testify that these omissions constituted a breach of the applicable standard of care.
Law
A. Alabama Medical Liability Act
Section 6-5-548(a), Ala.Code 1975, a part of the Alabama Medical Liability Act, provides:
"(a) In any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case." (Emphasis added.)
Section 6-5-548(b), applicable to defendant health care providers who are not specialists, provides:
"(b) ... [A] `similarly situated health care provider' is one who meets all of the following qualifications:
"(1) Is licensed by the appropriate regulatory board or agency of this or some other state.
"(2) Is trained and experienced in the same discipline or school of practice.
"(3) Has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred."
Section 6-5-548(c), applicable to defendant health care providers who are specialists, provides:
"(c) ... [A] `similarly situated health care provider' is one who meets all of the following requirements:
"(1) Is licensed by the appropriate regulatory board or agency of this or some other state.
"(2) Is trained and experienced in the same speciality.
"(3) Is certified by an appropriate American board in the same specialty.
"(4) Has practiced in this speciality during the year preceding the date *1185 that the alleged breach of the standard of care occurred."
Section 6-5-548(e) governs the competency of expert witnesses to testify to breach of the standard of care in medical malpractice actions:
"(e) The purpose of this section is to establish a relative standard of care for heath care providers. A health care provider may testify as an expert witness in any action for injury or damages against another health care provider based on a breach of the standard of care only if he or she is a `similarly situated health care provider' as defined above. It is the intent of the Legislature that in the event the defendant health care provider is certified by an appropriate American board or in a particular specialty and is practicing that specialty at the time of the alleged breach of the standard of care, a health care provider may testify as an expert witness with respect to an alleged breach of the standard of care in any action for injury, damages, or wrongful death against another health care provider only if he or she is certified by the same American board in the same specialty."
(Emphasis added.)
B. Waddail v. Roberts
In Waddail v. Roberts, the plaintiff alleged that the defendant doctor, who was certified by the American Osteopathic Board of Family Physicians, had breached the standard of care applicable to a doctor practicing emergency medicine, which required the doctor to stabilize a diabetic patient before the doctor transferred the patient to another facility. To prove medical negligence, the plaintiff offered expert testimony by a doctor who was certified by the American College of Emergency Medicine. The trial court granted the defendant's motion for a summary judgment; the plaintiff appealed the summary judgment to this Court; and this Court transferred the appeal to the Court of Civil Appeals pursuant to § 12-2-7(6), Ala.Code 1975.
The Court of Civil Appeals acknowledged that "the medical negligence alleged in this case would have occurred during the practice of emergency medicine." 827 So.2d at 788. Even though the defendant doctor was not board-certified in emergency medicine, the Court of Civil Appeals treated him as a specialist and applied § 6-5-548(c) to determine whether the proffered expert witness was "similarly situated" and therefore competent to testify under § 6-5-548(e). The Court of Civil Appeals "conclude[d] that, because [the defendant doctor and the proffered witness] were certified by different boards, [the proffered witness could not] testify as to the standard of care to which [the defendant doctor] is to be held...." 827 So.2d at 788.
C. Ex parte Waddail
Reversing the judgment of the Court of Civil Appeals, this Court, in Ex parte Waddail, held that the Court of Civil Appeals had erred in applying subsection (c) and the last sentence of subsection (e) of § 6-5-548 in the Alabama Medical Liability Act to determine whether the proffered expert witness was competent to testify against the defendant doctor on the issue of medical negligence.
"[The defendant doctor] is board-certified in family medicine; however, the alleged breach of the standard of care occurred while he was practicing emergency medicine. In Medlin [v. Crosby, 583 So.2d 1290 (Ala.1991) ], this Court held that for the purposes of determining whether a defendant doctor is a `specialist' under subsection (c), `the trial court should look to whether the defendant *1186 "health care provider" is board-certified in the speciality or discipline or school of practice that covers the area of the alleged breach.' 583 So.2d at 1294 (emphasis added [in Ex parte Waddail]). [The defendant doctor], who is not board-certified in emergency medicine,... is not a specialist.'" (Footnote omitted.)
Ex parte Waddail, 827 So.2d at 793. In other words, we held that a defendant board-certified health-care provider practicing outside his speciality in undertaking the allegedly negligent treatment is not a "specialist" protected by the more stringent qualifications imposed by subsection (c) (as compared with subsection (b)) of § 6-5-548 for adverse expert witnesses. We held further that the disqualification of any proffered adverse expert witness not "certified by the same American board in the same specialty" imposed by the "last sentence of subsection (e) [of § 6-5-548] applies only to cases involving specialists." 827 So.2d at 794.
We held that, because the defendant doctor had been practicing outside his speciality in committing the alleged medical negligence, he was not a "specialist" in the case then before us. We held that, because the defendant doctor was not a specialist, subsection (b) rather than subsection (c) of § 6-5-548 applied to determine whether the proffered expert witness qualified as "similarly situated" with the defendant. We concluded that the proffered expert witness met the qualifications of a "similarly situated health care provider" specified by § 6-5-548(b), which did not require board certification in the same specialty as the defendant's, and therefore met the applicable criterion for competency to testify imposed by § 6-5-548(e).
Analysis
In reaching our conclusion in Ex parte Waddail, we recognized the three questions formulated in Medlin v. Crosby, 583 So.2d 1290 (Ala.1991), for determining whether a proffered expert witness qualifies as a "similarly situated health care provider" within the meaning of the Alabama Medical Liability Act:
"(1) What is the standard of care alleged to have been breached? (2) Is the defendant `health care provider' a specialist in the discipline or school of practice of the standard of care that the court has previously determined is alleged to have been breached? (3) Does the proffered expert witness qualify as a `similarly situated health care provider' under the subsection determined in the second step to apply?"
Medlin, 583 So.2d at 1293, and Ex parte Waddail, 827 So.2d at 793. Therefore, in the case now before us, we will answer the same three questions to determine whether the plaintiffs' experts Dr. Weber and Dr. Kreplick are "similarly situated" with the defendant Dr. Markushewski and therefore competent to testify against him.
The defendants do not dispute that "the standard of care alleged to have been breached" was the standard of care applicable to doctors practicing emergency medicine. Likewise, the defendants do not dispute that "the defendant `health care provider' [was not] a specialist" in emergency medicine. Because the defendant doctor was not "a specialist in the discipline or school of practice" subject to "the standard of care alleged to have been breached," § 6-5-548(b) governs the issue of whether the plaintiffs' experts Dr. Weber and Dr. Kreplick are "similarly situated" with the defendant doctor and therefore competent to testify against him. Medlin, supra, and Ex parte Waddail, supra. The record contains virtually uncontradicted evidence that both plaintiffs' experts meet all three "qualifications" specified § 6-5-548(b)the requirements *1187 of (1) the appropriate license, (2) the training and experience "in the same discipline or school of practice" as the defendant's discipline or school of practice (emergency medicine) in his treatment of Cameron, and (3) the actual practice in that "same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred." The trial court did not find, and the defendants do not argue before us, any absence of any of these three § 6-5-548(b) qualifications in either of the plaintiffs' two expert witnesses. Therefore, they are "similarly situated" with the defendant doctor under § 6-5-548(b) and are not disqualified from testifying by the last sentence of § 6-5-548(e). Ex parte Waddail, supra. Thus, the trial court erred in excluding the testimony of the plaintiffs' expert witnesses Dr. Weber and Dr. Kreplick.
For virtually the same reasons, we hold that the trial court erred in instructing the jury that the plaintiffs' experts were not qualified to testify to standard of care and breach of that standard. Likewise, we hold that the trial court erred in instructing the jury that the standard of care applicable to the defendant doctor was the standard of care applicable to family practice physicians as distinguished from physicians practicing emergency medicine.
The defendants argue that any error by the trial court was harmless. In brief they write:
"Because the jury was presented with expert testimony sufficient to support a verdict for the plaintiffs, and the testimony of the plaintiffs' experts as to the standard of care would have been cumulative, the jury's verdict cannot properly be set aside simply because the experts were not allowed to testify on that issue. The same is true of the alleged error in instructing the jury that the applicable standard of care was that of a `family practice physician.' Like the alleged error in excluding the experts' testimony on the standard of care issue, the alleged error in instructing the jury not only had to be erroneous, but also prejudicial."
(Appellees' brief, p. 9.) Essentially, the defendants are arguing that the plaintiffs' proof of a prima facie case renders harmless all of the errors committed against them.
"`[T]he trial judge's refusal to permit certain witnesses to testify will constitute reversible error if those witnesses are produced to give testimony which goes to settle an ultimate issue in the case and which is different from the testimony given by the witnesses who have already testified.'
"C. Gamble, McElroy's Alabama Evidence § 10.06 at 34 (5th ed.1996).
"`The integrity of our judicial system should be maintained by giving litigants a fair and just trial. The outcome may be the same, but the parties should be given an opportunity to present their evidence. Otherwise, the public's respect for and trust in our judicial system cannot be maintained.'
"Morrison v. Morrison, 628 So.2d 839, 841-42 (Ala.Civ.App.1993) (Robertson, P.J., dissenting)."
State ex rel. Pryor v. Cupps, 770 So.2d 1111, 1112 (Ala.Civ.App.2000).
"Under Alabama law, `"[a] party is entitled to proper jury instructions regarding the issues presented, and an incorrect or misleading charge may be the basis for the granting of a new trial." `King v. W.A. Brown & Sons, Inc., 585 So.2d 10, 12 (Ala.1991) (citation omitted). When an objection to a jury *1188 charge has been properly preserved for review on appeal, as this one was, we `"look to the entirety of the [jury] charge to see if there was reversible error,"` and reversal is warranted only if the error is prejudicial. King, 585 So.2d at 12.
"....
"... The defendants were entitled to instructions that were germane to the legal theories for which there was substantial evidence. Therefore, the trial court's charge was prejudicial and constituted reversible error."
George H. Lanier Mem'l Hosp. v. Andrews, 809 So.2d 802, 806-07 (Ala.2001). The only testimony the plaintiffs were allowed to introduce to prove the applicable standard of care and the defendant doctor's breach of that standard, and thereby to prove the ultimate fact of his medical negligence, consisted of his own admissions in response to the plaintiffs' questions addressing the individual elements of the standard of care and of a hypothetical breach. The defendant doctor, answering his own counsel's questions, however, testified positively that he did not breach the standard of care. The testimony of the plaintiffs' proffered and qualified experts to the effect that the defendant doctor did breach the standard of care would have responded in like terms to the persuasive effect of the defendant doctor's own testimony to the contrary. Therefore, the exclusion of this competent expert testimony proffered by the plaintiffs "has probably injuriously affected [the] substantial rights of the [plaintiffs]." Rule 45, Ala. R.App. P. The erroneous jury instructions to the effect that the plaintiffs' experts were not qualified to testify to standard of care and breach can only have exacerbated the plaintiffs' prejudice by diminishing their experts' credibility on the one issue they were allowed to address: proximate causation. Finally, if the jury could deduce from the state of the evidence that the defendant doctor had breached the standard of care applicable to a doctor practicing emergency medicine, as the defendant doctor admittedly was, the jury can only have been bewildered, if not actually dissuaded from a verdict for the plaintiffs, by the instruction that the defendant doctor was subject to the standard of care applicable to family practice physicians.
Conclusion
The trial court committed errors which probably injuriously affected the substantial rights of the plaintiffs. Therefore, they are entitled to a new trial. Rule 45, Ala. R.App. P. This judgment must be reversed and the cause remanded.
REVERSED AND REMANDED.
HOUSTON, SEE, LYONS, BROWN, HARWOOD, and WOODALL, JJ., concur.
MOORE, C.J., and STUART, J., concur in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610279/ | 96 N.W.2d 623 (1959)
168 Neb. 547
Helen S. JOHNSON, Appellant,
v.
SCHOOL DISTRICT NO. 3 OF CLAY COUNTY, Nebraska, Appellee.
No. 34553.
Supreme Court of Nebraska.
May 22, 1959.
*624 Madgett & Hunter, Hastings, for appellant.
S. W. Moger, J. T. Massie, Clay Center, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
CARTER, Justice.
Plaintiff commenced this action against the defendant to recover $1,050, the balance alleged to be due under a written contract of employment as a teacher. The trial court held the contract void and dismissed the action. The plaintiff has appealed.
Plaintiff contends primarily that the trial court erred in overruling her motion for a summary judgment and in sustaining a motion to dismiss plaintiff's cause of action at the close of plaintiff's evidence on the trial of the case.
There is no bill of exceptions filed in this case. The plaintiff asserts that the pleadings and the answers to requests for admissions appearing in the transcript show that there is no question of fact to be determined and that she is entitled to a judgment as a matter of law. The requests for admissions and the answers thereto are evidence which this court can *625 consider only if preserved in a bill of exceptions. Consequently, the pleadings are all that are before us in considering the correctness of the court's ruling on the motion for summary judgment. A motion for summary judgment may not be used as a substitute for a motion to dismiss, a demurrer, or a motion for judgment on the pleadings. Healy v. Metropolitan Utilities Dist., 158 Neb. 151, 62 N.W.2d 543. We shall not consider, therefore, the alleged error of the trial court in overruling plaintiff's motion for summary judgment. Under the state of the record the issues raised on the appeal will be determined on consideration of the correctness of the court's ruling in dismissing the cause of action at the close of plaintiff's evidence. There being no bill of exceptions, the issue in that respect is whether or not the pleadings sustain the judgment. Bryant v. Greene, 163 Neb. 497, 80 N.W.2d 137; Benedict v. State, 166 Neb. 295, 89 N.W.2d 82.
The only question to be determined, therefore, is whether or not the pleadings sustain the judgment of the district court. The petition alleges plaintiff was at all times herein mentioned legally qualified to teach school in Nebraska by virtue of a valid certificate issued by the Superintendent of Public Instruction of the State of Nebraska. It alleges also that on or about October 20, 1954, plaintiff and defendant entered into an agreement in writing, which agreement is attached to and made a part of the petition. It alleges that by the terms of the agreement plaintiff agreed to teach school in the defendant district for a period of 7 months, commencing on or about November 1, 1954. The compensation for such service was fixed by the contract at $1,470, payable at the rate of $210 per month. The petition further alleges that plaintiff entered into the performance of her duties on November 1, 1954, and continued to perform her duties under the contract until January 26, 1955, on which date the school board of such district terminated and cancelled the agreement, and discharged the plaintiff illegally and without cause. It is alleged that plaintiff was paid $420 for her services and that there remains due and unpaid under the terms of the agreement the sum of $1,050 for which she prays judgment. The contract attached to the petition states among other things that plaintiff is a legally qualified teacher who holds, or will hold at the beginning of the term of this contract, a third-grade elementary certificate in force and valid in said county for the entire period of the contract. The contract further provides that it may be terminated only by mutual agreement or by operation of law, and that there shall be no penalty for such release from this contract.
The defendant admits by its answer that it entered into the contract attached to the plaintiff's petition. The defendant denies that plaintiff was legally qualified to teach school in the public schools of Nebraska. The answer admits that the school board terminated and cancelled the written agreement because of her incompetency, insubordination, neglect of duty, and general improper conduct during and outside of school hours. The answer also alleges that plaintiff failed to teach school in a proper and efficient manner and thereby breached her contract with the school district; and that she was fully paid all salaries due her during the time she was employed by said school district. The answer denies all other allegations contained in plaintiff's petition.
The plaintiff by her reply admits that she was paid for her services from November 1, 1954, to January 26, 1955, and alleges that defendant was estopped from discharging plaintiff or terminating or cancelling the written contract for any reason except by mutual agreement or by operation of law. Plaintiff alleges also that the school district ratified and confirmed the contract by its action subsequent to its execution and by its answer filed in the present suit. All other allegations of defendant's answer were denied.
*626 The contention of the defendant is that the contract was void because the plaintiff did not hold a teacher's certificate at the time she entered into the contract. The defendant relies on our holdings in Markey v. School Dist. No. 18, 58 Neb. 479, 78 N.W. 932; Zevin v. School Dist. No. 11, 144 Neb. 100, 12 N.W.2d 634, and Kuhl v. School Dist. No. 76, 155 Neb. 357, 51 N.W.2d 746. At the time the situation in those cases arose the applicable statute provided that each holder of a teacher's certificate shall, before contracting to teach, register the same in the office of the county superintendent of the county in which he is contracting to teach. Section 79-1338, R.S.1943. In 1949, however, the Legislature passed an act recodifying the school laws of this state. Laws 1949, c. 256, p. 689. The pertinent parts of this act now provide: A contract for the employment of a teacher shall be in writing on a form recommended by the Superintendent of Public Instruction. Section 79-1248, R.R.S.1943. Such contract shall contain a provision whereby the employed person affirms that he holds or will hold, at the beginning of the term of the contract, a valid certificate properly registered in the office of the county superintendent. Section 79-1250, R.R.S.1943. The holder of a teacher's certificate shall, before beginning to teach, register the same in the office of the county superintendent of the county in which he is contracting to teach, and no certificate to teach nor contract for a school shall be valid until the certificate is so registered. Section 79-1239, R.R.S.1943. A teacher violating the certificate and registration provisions of the statutes shall not recover any money for services while teaching during the time that such contract and certificate are invalid. Section 79-1240, R.R.S.1943.
It is plain from the foregoing that a teacher may enter into a valid contract with a school district who does not then have a teacher's certificate. In other words, such a contract is not void because a teacher does not then hold a teacher's certificate. She may properly contract to have such a certificate and to register it with the county superintendent at the beginning of the term of the contract. The contract in the instant case is clearly within the purview of the statutes on the subject.
There is a contradiction of terms in the cited statutes. The use of the terms "valid" and "invalid" in sections 79-1239 and 79-1240, R.R.S.1943, gives rise to this assertion. The Legislature clearly meant that such contracts should be effective or ineffective rather than valid or invalid. Such contracts under the cited sections of the statutes are valid when entered into and are voidable when statutory requirements are not met. The effect of existing statutes is that a teacher must have a certificate registered with the county superintendent before she begins to teach. If the teacher does not have such certificate on file the contract is voidable and may be terminated by the school district. If the contract is not terminated during the time the teacher is in default in not having a teacher's certificate registered with the county superintendent before beginning to teach, the statute provides that such teacher shall not recover any money for teaching during the period of such default. In other words, if the contract is not terminated by the proper authority during the period of the default, and the teacher subsequently meets the requirements of the statute as to holding and registering her certificate, the contract is valid, even though the teacher is precluded from recovering compensation during the period of the default.
In the instant case the defendant admitted entering into the contract with the plaintiff; admitted paying her until January 26, 1955; and alleged affirmatively that the contract was terminated and cancelled because of incompetency, insubordination, neglect of duty, and general improper conduct during and outside of school hours. Under our holdings involving a similar contract *627 in Greer v. Chelewski, 162 Neb. 450, 76 N.W.2d 438, the power to terminate the contract for such reasons is lodged with the then Superintendent of Public Instruction, now the State Board of Education. See, also, Schlueter v. School Dist. No. 42, 168 Neb. 443, 96 N.W.2d 203. Consequently, the school district officers were without authority to terminate its contract with the plaintiff for the reasons stated, and the affirmative defense alleged is not a defense to the action. See Section 79-1234, R.R.S.1943.
The defendant asserts that the general denial contained in the answer raises issues of fact and precludes a determination of the issues raised by the appeal on the pleadings. It has long been the rule in this state that where defendant admits the material facts in plaintiff's petition and pleads a waiver, an estoppel, or matters in avoidance as a defense thereto, such material facts will be treated as true, though the answer also contains a general denial. Dwelling House Ins. Co. of Boston v. Brewster, 43 Neb. 528, 61 N.W. 746; Nason v. Nason, 79 Neb. 582, 113 N.W. 139; Hueftle v. Farmers Elevator, 145 Neb. 424, 16 N.W.2d 855; Anderson v. Anderson, 155 Neb. 1, 50 N.W.2d 224. Under the foregoing rule the plaintiff's allegations of fact contained in her petition stand conclusively admitted and require no evidentiary proof. Kipf v. Bitner, 150 Neb. 155, 33 N.W.2d 518; Kuhlmann v. Platte Valley Irr. Dist., 166 Neb. 493, 89 N.W.2d 768. The contract being valid and not terminated by mutual agreement or by operation of law in accordance with its terms, the ruling on the motion to dismiss made at the close of plaintiff's evidence was erroneous, particularly since the affirmative defense alleged in defendant's answer was not a defense as a matter of law.
We conclude that the judgment of dismissal is not sustained by the pleadings. The judgment is reversed and the cause remanded for further proceedings.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610296/ | 7 Wis.2d 353 (1959)
STATE EX REL. SOWLE, Respondent,
v.
BRITTICH, Appellant.
Supreme Court of Wisconsin.
April 7, 1959.
May 8, 1959.
*356 For the appellant there was a brief and oral argument by N. Paley Phillips, attorney, and Bertram J. Hoffman of counsel, both of Milwaukee.
For the respondent there was a brief by the Attorney General and William A. Platz, assistant attorney general, C. Stanley Perry, corporation counsel of Milwaukee county, and W. Lee Cronin, assistant corporation counsel, and oral argument by Mr. Cronin and Mr. Platz.
HALLOWS, J.
The defendant raises three questions: (1) Was the refusal to grant the defendant's request for a jury trial a violation of the defendant's constitutional rights; (2) did the court err in applying to this proceeding sec. 52.355, Stats., which changed the burden of proof in paternity cases from "beyond a reasonable doubt" to that of "clear and satisfactory evidence;" (3) does the evidence sustain the finding of the court?
What are now designated as paternity proceedings, but formerly as illegitimacy or bastardy proceedings, are in fact civil proceedings. Early in the history of this state such proceedings were recognized as purely statutory and not classifiable either as civil or criminal. Such proceedings were *357 considered neither fish nor fowl. To such characteristics of the proceedings as were similar to criminal actions the rules and practice of criminal actions were applied, and as to those characteristics as were similar to civil actions the rules of civil practice were applied. Goyke v. State (1908), 136 Wis. 557, 117 N. W. 1027, and cases cited therein. Earlier cases characterized these proceedings as not criminal but quasi-criminal proceedings. Baker v. State (1885), 65 Wis. 50, 26 N. W. 167; State v. Mushied (1860), 12 Wis. *561. Thus at one time it was held that such a proceeding could be brought before the supreme court for review by writ of error only and that the accused must be proved guilty beyond a reasonable doubt. Windahl v. State (1926), 189 Wis. 424, 207 N. W. 694.
In State ex rel. Mahnke v. Kablitz (1935), 217 Wis. 231, 258 N. W. 840, this court pointed out that the hybrid characteristics of the proceeding had created confusion and difficulty and in some respects the proceeding was governed by procedural rules more favorable to the defendant than those applicable to civil actions. However, these criminal-procedural rules did not make the proceeding a criminal action and the term "quasi criminal" applied to a paternity proceeding was misleading unless considered merely descriptive of the procedure. The court then stated the code defining civil and criminal actions made a paternity proceeding a civil action. This view of the nature of this statutory proceeding was affirmed in State ex rel. Zimmerman v. Euclide (1938), 227 Wis. 279, 278 N. W. 535, by applying the test that the judgment sought in an action, rather than the procedure applicable therein, afforded the basis for determining the nature thereof under sec. 260.05, Stats., although the court did not distinguish between an action and a proceeding.
The problem such as existed was set at rest in 1957 by the amendment of sec. 52.45, Stats. That section, following the reasoning of these later decisions of this court, provides that *358 a paternity proceeding "is a civil special proceeding." This section also upgraded the name and terminology of the proceeding by giving it such respectability as its subject matter would permit.
Since paternity proceedings are statutory in origin, they must be tried in the manner fixed by the legislature. State ex rel. Lang v. Civil Court (1938), 228 Wis. 411, 280 N. W. 347. The legislature in 1957, after this proceeding had been commenced by the issuance of the warrant and before the preliminary hearing was held, changed the manner or procedure by which a jury trial could be obtained or waived, and also changed the burden of proof required in such proceeding. The question now is: Are these changes applicable to this proceeding?
Trial by jury is guaranteed by the Wisconsin constitution in all cases at law. Sec. 5, art. I, provides:
"The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law."
While the right of trial by jury is guaranteed, the constitution expressly provides that the right may be waived in the manner prescribed by law. This the legislature has done in paternity cases by sec. 52.35, Stats., in providing that a demand in such cases must be in writing at the time the defendant is bound over for trial or within twenty days thereafter, and any neglect to make such demand shall be a waiver of the right. Although this statute was in effect at the time the defendant was bound over, no such demand was made until almost a year later at the time of the trial.
This section is not inconsistent with the special act creating the civil court of Milwaukee county where this proceeding was tried. Under sec. 196-5.2, 44 W. S. A., p. 55, judges of the civil court have all the powers and jurisdiction of a *359 justice of the peace in paternity cases and the civil court has concurrent jurisdiction with the circuit court in such proceedings. This section of the special act also provides that paternity cases shall be tried by a 12-man jury unless it is waived by the defendant. By sec. 196-14.1 of the special act, 44 W. S. A., p. 65, the practice, pleadings, and proceedings in paternity cases are governed by ch. 64 (ch. 166) relating to proceedings in paternity cases. Ch. 166, Stats., is now secs. 52.21 to 52.45, Stats. 1957.
We need not decide whether sec. 196-19.2, 44 W. S. A., p. 74, of the special act is applicable to this proceeding. This section provides that either party to a civil action, upon first paying the clerk the sum of $12, may demand a jury trial provided such demand is made at the time of joining of the issue or twenty days thereafter, and any neglect thereof to make such demand shall be a waiver of the right to demand a trial by jury. Reference is made, however, to point out the manner of the waiver of the right to a jury trial in civil cases coming under that section.
The manner in which the right of a jury is exercised or waived is a matter of procedure. Sec. 52.35, Stats., providing the failure to demand a jury in writing at a certain point in the proceeding, constitutes a waiver of the right and is not an unreasonable regulation. What amounts to an unreasonable regulation is a matter of degree under the circumstances. In Reliance Auto Repair Co. v. Nugent (1915), 159 Wis. 488, 149 N. W. 377, this court held the provision of the Milwaukee County Civil Court Act requiring the party demanding a jury trial shall pay into court a jury fee of $12, to be recovered by him in the cost bill if successful in the action, was not an unreasonable regulation of the right. But in La Bowe v. Balthazor (1923), 180 Wis. 419, 193 N. W. 244, we held $2 for each juror on the panel was an infringement and the right of trial by jury was violated.
*360 The exercise of the right to trial by jury and the waiver thereof have been the subject of court rules of this court. See Petition of Doar (1945), 248 Wis. 113, 21 N. W. (2d) 1. Rule 38 (b) of the Federal Rules of Civil Procedure, 28 USCA, p. 157, adopted by the supreme court of the United States, requires a demand not later than ten days after service of the last pleading directed to such issue, and the failure to so demand a jury and file the demand as required by Rule 5 (d) constitutes a waiver.
While the defendant has a right to a trial by jury, he has no vested right under the Wisconsin constitution to the manner or time in which that right may be exercised or waived. Those are procedural matters expressly left for determination by law. For requirements of demand of trial by jury see sec. 324.17, Stats., county courts; sec. 302.04, justice of peace courts; sec. 48.25, juvenile courts; and for the provisions on waiver of right, sec. 270.32 and sec. 270.28, civil cases; sec. 957.01, criminal cases.
The provisions of sec. 52.355, Stats., changing the burden of proof in paternity proceedings are procedural or a matter of evidence. The defendant has no vested rights in the rules of evidence. In Wilhelm v. Columbian Knights (1912), 149 Wis. 585, 136 N. W. 160, this court said:
"It is a well-established rule that the legislature may change rules of evidence even though such change affects pending cases."
Nor has the defendant any vested rights in a remedial statute. Donaldson v. Chase Securities Corp. (1943), 216 Minn. 269, 13 N. W. (2d) 1, 325 U. S. 304, 65 Sup. Ct. 1137, 89 L. Ed. 1619.
These sections are not ex post facto laws. The rule against ex post facto applies to criminal cases, which this paternity proceeding is not. In a paternity proceeding the defendant is not accused of a crime. The issue is whether the defendant *361 is or is not the father of the complainant's child. His status and relationship to the child are determined. He is not punished or tried for any crime.
The fact that a procedural and remedial statute applies to a civil action retrospectively does not render it unconstitutional. In Steffen v. Little (1957), 2 Wis. (2d) 350, 86 N. W. (2d) 622, the problem of retrospective application of such statutes was thoroughly analyzed. It was pointed out that, while statutes in general are construed prospectively, the general rule is that remedial and procedural statutes are retroactive unless the legislature has declared otherwise and if they do not impair contract rights or vested rights.
The defendant had no vested rights in the procedure regulating the waiver of a jury trial or in the burden of proof in this statutory proceeding. Sec. 52.35, Stats., merely established a new procedure for exercising the right of trial by jury, and sec. 52.355 changed a rule of evidence relating to the burden of proof. There can be no valid objection to applying them to an existing cause of action. The defendant was not deprived of his right to trial by jury or to his defense.
Sec. 990.04, Stats., has no application to this case. This section deals with laws which are repealed. Sec. 52.35 did not repeal any law but amended a statute by adding a provision, and sec. 52.355 created a new section. These sections, with the other amendments, were for the purpose of revising the paternity statutes as a supplement to the 1955 Children's Code. See ch. 296, Laws of 1957. Sec. 990.04 seeks to save liability for committed offenses, penalties and forfeitures incurred, and rights of action accrued, under the statute which is repealed. The rights contended for by the defendant are not of these classes.
In answering the third question raised by the defendant no good purpose would be served and it would be better for all concerned, including the unfortunate child of this situation, *362 if the evidence was not detailed or discussed here. The future happiness of an innocent child should not be jeopardized by recounting the transgressions of its illegitimate parents. To the credit of our modern social thinking, these cases have now been designated as paternity proceedings rather than by their former designation. The new designation more aptly characterizes the essence of the proceeding than the former billingsgate.
We have reviewed all the testimony in the record in the light of the burden of proof applicable to this proceeding. The burden of proof set up by sec. 52.355, Stats., of clear and satisfactory evidence is not unknown in our jurisprudence. The section defines it as greater than a clear preponderance of the evidence required in other civil cases but less than proof beyond a reasonable doubt required in criminal cases. The clear-and-satisfactory rule has been applied in civil cases and explained in many cases. See Estate of Hatten (1940), 233 Wis. 199, 288 N. W. 278; an excellent discussion in Lepley v. Andersen (1910), 142 Wis. 668, 125 N. W. 433; Anno. 33 L. R. A. (N. S.) 839; and Anno. 94 A. L. R. 1282.
Where the trial is to the court, the findings of fact will be sustained unless they are contrary to the great weight and clear preponderance of the evidence. Estate of Eannelli (1955), 269 Wis. 192, 68 N. W. (2d) 791, and cases cited in 1 Callaghan's Wis. Dig., Appeal and Error, p. 578, sec. 870.
We conclude that the findings of the trial court meet these tests and must be sustained.
By the Court.Judgment affirmed.
DIETERICH, J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922353/ | 897 A.2d 683 (2006)
95 Conn.App. 616
STATE of Connecticut
v.
Joshua MILOTTE.
No. 26217.
Appellate Court of Connecticut.
Argued March 23, 2006.
Decided May 23, 2006.
*684 Martin Zeldis, public defender, with whom was Karen A. Goodrow, public defender, for the appellant (defendant).
John A. East III, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Robin S. Schwartz, deputy assistant state's attorney, for the appellee (state).
FLYNN, C.J., and ROGERS and LAVINE, Js.
*685 LAVINE, J.
The issue in this appeal by the state is whether a police officer who arrested the driver of a motor vehicle on a charge of operating under the influence of intoxicating liquor had a reasonable and articulable suspicion on the basis of facts to justify an investigatory stop. Because the driver was not operating the vehicle in an erratic or dangerous manner or otherwise engaged in or about to engage in criminal activity and because there was no report of recent crime in the area, the officer lacked a particularized and objective factual basis to warrant an investigatory stop. An officer's suspicion grounded in a speculative belief that the operator was engaged in avoidance behavior lacks the specific and objective basis necessary to conclude reasonably that an investigatory detention is justified. We therefore affirm the judgment of the trial court.
The case has the following procedural background. On April 17, 2004, the defendant, Joshua Milotte, was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a. On August 6, 2004, the defendant filed a motion to suppress evidence of his operating a motor vehicle while under the influence because the investigating officer did not have "probable cause"[1] to stop him. He also filed a motion to dismiss the charge because there was insufficient evidence to prosecute him. The defendant filed his motions pursuant to Practice Book §§ 41-8(5) and 14-227a, article first, §§ 7, 8 and 9, of the constitution of Connecticut, and the sixth and fourteenth amendments to the United States constitution. On December 30, 2004, following a hearing, the court granted both motions.
The court made the following findings of fact. At approximately 1:50 a.m. on April 17, 2004, the defendant was operating his motor vehicle in a westerly direction on Route 44 in Coventry. Gail McDonnell, a member of the Coventry police department, was patrolling the northern section of Coventry. A police officer for approximately fifteen years, she had attended the municipal police academy twice and had been trained in patrol procedures, investigation and motor vehicle enforcement. She attended a weeklong training program concerning the investigation of operators driving under the influence.
As McDonnell was traveling west on Route 44, she noticed a vehicle ahead of her. When the police cruiser was directly behind the vehicle, the operator turned right onto Twin Hills Drive, a U shaped residential street that returned to Route 44. McDonnell was somewhat suspicious of the operator because he had turned his vehicle right immediately after she drew behind his vehicle. She believed that at that hour of the morning, some drivers avoid having a police officer follow them. McDonnell continued west on Route 44 until she encountered the Bolton town line where she turned her vehicle around. As she was traveling east on Route 44, she again observed the vehicle in the parking lot of a 7-Eleven convenience store. McDonnell became more suspicious that the driver of the vehicle was trying to avoid the police, so she processed the license plate number through police dispatch. She learned that the address of the owner of the vehicle was in Willimantic. McDonnell concluded that the driver, therefore, had no reason to turn onto Twin Hills Drive other than to avoid her.[2] She decided to follow the vehicle.
*686 When the vehicle left the 7-Eleven parking lot, McDonnell followed, and the operator took the first right turn onto Brewster Street, another residential road. McDonnell's suspicions were heightened because she believed that the operator seemed to be avoiding her. She followed the vehicle until it entered a private driveway at a farmhouse that was completely dark. The operator had turned off the lights of the vehicle. McDonnell continued on and turned her vehicle around. When she passed the farmhouse again, the vehicle was gone. She did not see any taillights on Brewster Street and concluded again that the operator of the vehicle was trying to avoid her. She returned to Route 44 and headed east until she saw the vehicle and activated her overhead lights. The operator drove his vehicle into the Meadowbrook Shopping Plaza, where McDonnell made the investigatory stop. McDonnell noticed the odor of alcohol about the defendant and, after he failed a field sobriety test, arrested him.
According to McDonnell, drivers operating under the influence frequently are arrested in the area. The area, however, was not known as a high crime area, and the defendant had not been traveling at a high rate of speed and did not appear to have committed a motor vehicle violation prior to the stop. McDonnell knew that the vehicle was not the subject of a police investigation that evening, that it had not been stolen and that the owner of the vehicle was not wanted by the authorities. On the basis of McDonnell's training and experience, and in light of all the circumstances, she believed that the operator of the vehicle was avoiding contact with the police and that such behavior was typical of a person who was involved in some type of criminal activity. For these reasons, McDonnell suspected that the defendant was engaged in, or was about to engage in, illegal conduct.
The court concluded that when McDonnell signaled for the defendant to stop and he drove his vehicle into the Meadowbrook Shopping Plaza, he was seized for purposes of an investigatory detention pursuant to the fourth amendment to the United States constitution and article first, §§ 7, 8 and 9, of the constitution of Connecticut.[3] See State v. Donahue, 251 Conn. 636, 643, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000). After citing the relevant precedent governing the federal and state constitutional law; United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Donahue, supra, at 643, 742 A.2d 775; State v. Oquendo, 223 Conn. 635, 613 A.2d 1300 (1992); the court concluded that McDonnell did not have the particularized and objective factual basis necessary to conclude reasonably that an investigatory detention of the defendant was justified. McDonnell merely believed that the defendant was trying to avoid her. The court granted the defendant's motions to suppress the evidence and to dismiss the charge against him. Thereafter, the court granted the state's motion to appeal from the judgment of dismissal.
"Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality." (Internal quotation marks omitted.) State v. Paradis, 91 Conn.App. 595, 607, 881 A.2d 530 (2005). "On appeal, we apply a *687 familiar standard of review to a trial court's findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision. . . . Because a trial court's determination of the validity of a . . . search [or seizure] implicates a defendant's constitutional rights, however, we engage in a careful examination of the record to ensure that the court's decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses." (Internal quotation marks omitted.) Id., at 607-608, 881 A.2d 530.
On appeal, the state claims that a particularized and articulable suspicion existed to support McDonnell's stopping the defendant's vehicle and, therefore, the court improperly granted his motion to suppress and dismissed the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs. We disagree.
The law controlling the issue on appeal, which is whether there was a particularized and articulable suspicion grounded in fact and sufficient to justify an investigative stop, is well known. The application of those legal principles, however, is necessarily fact bound, and that is the focus of our attention on appeal. "In determining whether the detention was justified in a given case, a court must consider if [b]ased upon the whole picture the detaining officers [had] a particularized and objective basis for suspecting the particular person stopped of criminal activity.. . . A court reviewing the legality of a stop must therefore examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom. . . . These standards, which mirror those set forth by the United States Supreme Court in Terry v. Ohio, [supra, 392 U.S. at 20-22, 88 S. Ct. 1868], with regard to fourth amendment analysis, govern the legality of investigatory detentions under article first, §§ 7 and 9 of our state constitution." (Internal quotation marks omitted.) State v. Donahue, supra, 251 Conn. at 644, 742 A.2d 775.
"Police have the right to stop for investigation short of arrest where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. . . . [I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Internal quotation marks omitted.) Id., at 645, 742 A.2d 775.
The essential facts of this case are not in dispute. We agree with the court's analysis of, and reasonable inferences drawn from, the facts it found. McDonnell did not observe the defendant operating his vehicle in an unsafe or illegal manner, including speeding. There were no recent reports of crimes in the area, and McDonnell knew that the vehicle and its owner were not wanted by the authorities. The area where the defendant was operating his vehicle was not a high crime area, although it was a place that McDonnell said was known for a number of arrests made for operating a motor vehicle while under the influence of intoxicating liquor or drugs. Other than McDonnell's belief that the defendant wanted to avoid her, she had no particular reason founded in fact to suspect that the defendant was intoxicated or had committed any other *688 motor vehicle or criminal offense. On the basis of the information she received in response to her having done a check of the vehicle's registration, McDonnell knew before she left the 7-Eleven parking lot that the vehicle was registered and had not been reported stolen, the name of the vehicle's owner and his address in Willimantic.
McDonnell had a suspicious feeling about the defendant after he made an immediate right turn after she approached his vehicle on Route 44. Her suspicions intensified when she observed the defendant's vehicle in the 7-Eleven parking lot, saw it turn onto Brewster Street and proceed into the driveway of a darkened farmhouse. There was no evidence as to what the defendant did while he was at the 7-Eleven parking lot or in the driveway of the darkened farmhouse. The court found that McDonnell stopped the defendant because she believed that he was trying to avoid her, a belief predicated in part on the time of day and the fact that the defendant, who lived in Willimantic, traveled on streets and made stops at locations with which she believed he had no connection. An investigatory stop must be justified by some objective manifestation of criminal activity. United States v. Cortez, supra, 449 U.S. at 417, 101 S. Ct. 690. The court concluded that under the circumstances of this case, there was no evidence to suggest that the defendant was engaged in or planning to engage in illegal activity. McDonnell therefore lacked a particularized and articulable reason to detain the defendant.
The facts of this case are similar to the facts of State v. Donahue, supra, 251 Conn. at 647-48, 742 A.2d 775, in which the defendant was driving in a deserted, high crime area late at night and made an abrupt turn into an empty parking lot of an establishment that was closed. Although the behavior of the defendant in Donahue was consistent with that which often precedes criminal activity, the defendant was not driving erratically and had not violated motor vehicle laws. Furthermore, the vehicle had not been stolen, nor was it the subject of a police investigation. See also State v. Santos, 267 Conn. 495, 509, 838 A.2d 981 (2004) ("presence in a high crime area at night, without any other facts, cannot form the basis for a reasonable and articulable suspicion that the defendant had engaged or was about to engage in criminal activity"). The facts of this case are dissimilar from those in State v. Lipscomb, 258 Conn. 68, 73-74, 779 A.2d 88 (2001), in which the defendant was driving in an area in which prostitutes were known to hail would be customers. It was late at night when the defendant let a woman, suspected by the police of being a prostitute, into his vehicle after she had flagged him down. In Lipscomb, there was a particularized and articulable basis that justified the stop, i.e., solicitation of prostitution.
Appellate courts have long said that a particularized and articulable reason to conduct an investigatory stop must be based on more than a hunch. Terry v. Ohio, supra, 392 U.S. at 27, 88 S. Ct. 1868. Whatever visceral or intuitive feeling McDonnell had about the way in which the defendant operated his vehicle on April 17, 2004, when all is said and done, it was nothing more than a hunch.[4] McDonnell *689 cited no specific facts to indicate that the defendant was operating his vehicle while under the influence of intoxicating liquor or that he was otherwise engaged in, or about to engage in, criminal behavior. For that reason, the stop was not justified, and the court properly granted the motion to suppress the evidence that was the fruit of the poisonous tree and the motion to dismiss the case.
The judgment is affirmed.
In this opinion the other judges concurred.
NOTES
[1] Although the defendant cited probable cause as the standard in his motion to suppress, reasonable suspicion, not probable cause, is the applicable standard.
[2] The court took judicial notice of the fact that the towns of Mansfield and Windham abut the southeast boundary of the town of Coventry and that the city of Willimantic is part of the town of Windham. Conn. Register and Manual (2003) pp. 603, 681.
[3] The parties do not dispute that the defendant was seized at the time of the stop.
[4] In its brief, the state argued that avoidance behavior on the part of a suspect, in and of itself, is an objective and reasonable basis to justify an investigatory stop. In support of that argument, the state cited a number of federal cases. We have reviewed the facts of the federal cases cited and conclude that they are factually distinguishable, most notably because the suspicious behavior took place in high crime areas, and the evasive action was consistent with the types of crime committed in that area. For example, in United States v. Arvizu, 534 U.S. 266, 269-71, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002), the border patrol was alerted by a sensor to a vehicle on a back road at a time when roving patrols were returning to a checkpoint for a shift change. The driver slowed as he approached the patrol, but did not acknowledge the patrol with a wave as was customary on the desolate, unpaved road. The patrol noticed that the knees of two children in the backseat of the vehicle were unusually high, as if the children were sitting on something. The children turned and mechanically waved at the patrol for four or five minutes. The vehicle was similar to the type used in smuggling and was registered to an address in an area notorious for smuggling. The driver turned onto a rough road just before the checkpoint.
We also take this opportunity to note that the state failed to conform its table of authorities to our rules of practice when citing to federal decisions that have not been reported officially. See Practice Book § 67-9. We are aware that counsel frequently make use of electronic databases to find decisions that are not published in official reporters. In such instances, citations must conform to Practice Book § 67-11(c), and if the case is cited in a party's brief, the text of the decision must be included in the appendix to the brief. See Practice Book § 67-9. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2191490/ | 68 Ill. App. 2d 215 (1966)
215 N.E.2d 302
The People of the State of Illinois, Plaintiff-Appellee,
v.
James Edward Jenkins, Defendant-Appellant.
Gen. No. 10,697.
Illinois Appellate Court Fourth District.
March 28, 1966.
Burger, Geisler & Fombelle, of Decatur, for appellant.
Basil Greanias, State's Attorney, of Decatur, for appellee.
(Abstract of Decision.)
Opinion by JUSTICE SMITH.
Affirmed.
Not to be published in full. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/240758/ | 238 F.2d 665
Matters of THIRD AVENUE TRANSIT CORPORATION et al., Debtors.A. Philip WOOLFSON, Appellant,v.Lester T. DOYLE, As Trustee in Reorganization, et al., Appellees.
No. 181.
Docket 24362.
United States Court of Appeals Second Circuit.
Argued November 8, 1956.
Decided November 30, 1956.
COPYRIGHT MATERIAL OMITTED A. Philip Woolfson, New York City, pro se.
Saxe, Bacon & O'Shea, New York City (William J. O'Shea, John A. Kiser and Martin Fogelman, New York City, of counsel), for Lester T. Doyle, trustee in reorganization.
Thomas G. Meeker, Gen. Counsel, David Ferber, Asst. Gen. Counsel, Washington, D. C. (Richard V. Bandler, Attorney, New York City, of counsel), for Securities and Exchange Commission.
Kelley, Drye, Newhall & Maginnes, New York City (Frank H. Heiss, New York City, of counsel), for Hanover Bank, indenture trustee under first refunding mortgage.
Wagner, Quillinan & Tennant, New York City (Sidney R. Nussenfeld, New York City, of counsel), for Colonial Trust Co. as successor trustee under the adjustment mortgage.
Peter Campbell Brown, Corp. Counsel, New York City (Sidney Brandes, New York City, of counsel), for City of New York.
Shearman & Sterling & Wright, New York City (Grayson M-P Murphy and Thomas R. Nangle, New York City, of counsel), for Fifth Avenue Coach Lines, Inc.
Murphy, Block, Sullivan & Sawyer, New York City (John Dwight Sullivan, New York City, of counsel), for O'Connell Committee for First Refunding Bondholders.
Harold P. Seligson and Morton E. Yohalem, New York City (Morton E. Yohalem, New York City, of counsel), for Amott Committee for First Refunding Bondholders.
Charles Poletti, Hoffman, Buchwald, Nadel & Hoffman and Buchman & Buchman, New York City (Charles D. Hoffman, New York City, of counsel), for Imperial Bank of Canada et al., Adjustment Income Bondholders.
Kresel & Meyerson, New York City (Harold I. Meyerson, New York City, of counsel), for Tinker Committee for Adjustment Bondholders.
Bergerman & Hourwich, New York City (Joseph Calderon, New York City, of counsel), for Smith Committee for Adjustment Bondholders.
Hays, St. John, Abramson & Heilbron, New York City (Edward M. Garlock and Osmond K. Fraenkel, New York City, of counsel), for petitioning creditors.
Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.
MEDINA, Circuit Judge.
1
A corporate reorganization of Third Avenue Transit Corporation was commenced by the filing of an involuntary petition in the District Court for the Southern District of New York on October 25, 1948. Various plans of reorganization were formulated and amended or modified. After numerous and prolonged hearings and consideration by the Securities and Exchange Commission and the Public Service Commission of the State of New York, a Joint Plan of Reorganization was finally evolved. This Plan was duly approved by the District Court; but, before the confirmation of the Plan, appellant, an alleged holder of common stock and at least one of the Adjustment Income Mortgage Bonds of the debtor, appeared on the scene and made a series of motions to block the consummation of the Plan.
2
The matter came before us on the motion calendar on November 8, 1956, when appellees moved to dismiss the appeals, hereinafter described, as frivolous. As appellant's points were numerous, we proceeded, with the consent of all parties, to hear the appeals on the merits forthwith, on oral argument and on the briefs then and later submitted.
There are three appeals:
3
(1) From an order of September 11, 1956, denying appellant's motion to vacate an order of August 5, 1955, adjudging the debtor to be insolvent and to reopen the question of solvency for further consideration;
4
(2) From an order of July 26, 1956, approving the Joint Plan of Reorganization; (3) From an order of October 8, 1956, confirming the Joint Plan of Reorganization.
5
Despite the unsubstantial and technical character of the miscellany of points urged upon us as ground for reversal, we have given each of them careful consideration. There is not a shred of merit in any of them.
I.
6
The insolvency of the debtor is abundantly established as of the date of the order of adjudication and long prior thereto. But appellant insists that the failure of the Court to require notice to the stockholders that this order had been entered "deprived them of the right to appeal," and that "since the requirements of due process were not complied with by the Appellees, the order of the District Court of August 5, 1955 with respect to debtor's insolvency should be set aside." We fail to understand how anyone was in any sense "deprived" of the right to appeal, unless appellant is contending that the stockholders had received no notice that such an order might be entered. But the stockholders had been apprised of this likelihood in several ways. As recently as June 28, 1955, which was shortly before entry of the order complained of, notices had been mailed reminding them that under the trustee's plan "No provision is made for the stockholders of debtor Third Avenue since the assets of that debtor are insufficient to pay its creditors in full." The notice announced the time and place of the resumption of the hearings and stated, "Any creditor or stockholder has the right to appear in person or by duly authorized representative at the hearing and make objections or propose amendments to the Trustee's Amended Plan of Reorganization, or propose another plan or plans of reorganization." This disposes of appellant's appeal No. 1.
II.
7
Appellant contends that the District Court lacked power to enter its order approving the plan because of failure to comply with the requirement of Section 171 of the Bankruptcy Act, 11 U.S. C.A. § 571, that "Notice of the time of any hearing, as provided in section 169 * * * shall be given to * * * the creditors and stockholders * * *" Section 169, 11 U.S.C.A. § 569, provides
8
"Where a trustee has been appointed the judge shall fix a time within which the trustee shall prepare and file a plan, or a report of his reasons why a plan cannot be effected, and shall fix a subsequent time for a hearing on such plan or report and for the consideration of any objections which may be made or of such amendments or plans as may be proposed by the debtor or by any creditor or stockholder."
9
It is not disputed that there was notice of the commencement of hearings following submission of the original plan by the trustee, as well as additional notices preceding approval of the plan. Appellant's position seems to be that further notice is required by the Act. We find no such requirement. On the contrary, if separate notice were required as a condition precedent to the consideration of every amendment or modification or to resumption of the hearings following a recess, it is plain that any party so minded could delay the proceeding indefinitely and cause needless and prohibitive expense.
10
The statute contemplates a continuous process which may culminate in the approval of a fair and equitable and feasible plan, initiated by the filing of the trustee's plan with widespread notice of the commencement of hearings. Creditors and stockholders and other interested persons have the right to be heard and to object or to propose amendments or modifications and even to file completely new plans. The notices of plan hearings uniformly state, as did the notice in this case, that the hearings may be adjourned from time to time without further notice other than the announcement of such adjournment in open court.
11
Appellant also contends that before approving the Plan the Court should have ordered notice by publication as well as notice by mail. He points to no authority to support this contention. Section 207 of the Act, 11 U.S.C.A. § 607, provides that, "Except where otherwise provided in this chapter, the judge may from time to time enter orders designating * * * the form and manner in which notice may be given," and Section 120, 11 U.S.C.A. § 520, provides that, "Whenever notice is to be given under this chapter, the court shall designate, if not otherwise specified hereunder, * * * the form and manner in which the notice shall be given."
12
The objections urged by appellant do not establish failure to comply with Section 171.
13
Appellant also challenges the District Court's approval of the plan on the ground that the Court need not have submitted the plan to the New York State Public Service Commission under Section 178, 11 U.S.C.A. § 578, since that body lacks jurisdiction to establish rates for the debtor corporation. Even if this were true, we fail to see how appellant could have been injured by such submission.
III.
14
In his third appeal, appellant urges that the order confirming the plan is invalid because of failure to comply with Section 179, 11 U.S.C.A. § 579, which requires acceptance "by or on behalf of creditors holding two-thirds in amount of the claims filed and allowed in each class." The undisputed facts are that some 84 per cent in amount of the holders of the adjustment mortgage income bonds who filed claims accepted the plan, but that these assenting bondholders represented less than two-thirds of the total issue. The question is simply whether acceptance by the holders of two-thirds of the entire issue is required or only by the holders of two-thirds of the amount claimed and allowed. The statute is explicit on the point, and we find little to recommend appellant's argument that it would be "ridiculous" to construe the statute as meaning what it says since acceptance by the holders of only a tiny fraction of the issue would be sufficient where only a few claims are filed. We think it not unreasonable to provide that if only a few creditors are available and interested enough to vote, they should determine acceptance or rejection of the Plan by their class. In any event, we are not at liberty to vary the requirement of the Act. And if Section 179 were thought to leave any doubt as to what that requirement is, such doubt would be dispelled by Section 198, 11 U.S.C.A. § 598, which provides:
15
"An indenture trustee may file claims for all holders, known or unknown, of securities issued pursuant to the instrument under which he is trustee, who have not filed claims: Provided, however, That in computing the majority necessary for the acceptance of the plan only the claims filed by the holders thereof, and allowed, shall be included."
16
This section also disposes of appellant's contention that for purposes of determining the class, the acceptance of two-thirds of which was necessary, "it was clearly erroneous for the District Court Judge to require the Adjustment Bondholders individually to file proofs of claim."
17
Appellant's remaining points are frivolous on their face, and we shall not discuss them.
18
The orders appealed from are affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/8304612/ | FELTS, J.
These two suits grew out of a collision of motor vehicles in Murfreesboro. Andrew M. Jarratt, Jr., a boy twelve year of age, suffered serious personal injuries when the motorbike on which he was riding was struck by a truck driven by Buford Clinton. He sued for damages for his injuries and his father sued to recover for loss of his services and for medical and hospital expenses.
The declarations charged that the accident and the injuries sued for were caused by the truck driver’s negligence in the particulars set out, and that he was acting *673as servant and in the business of the other two defendants, Lee Clinton and J. A. Bilbrey, the latter doing business as the Bilbrey Lime Company.
The cases were tried together. In the boy’s suit there was a verdict and judgment for plaintiff against defendants for $15,000, and in the father’s suit there was a verdict and judgment for plaintiff against the defendants for $4,806. Defendants appealed in error and, being represented by different counsel, have assigned separate errors, one set of assignments being made by J. A. Bil-brey, doing business as the Bilbrey Lime Company, and another set by the other two defendants, Buford Clinton and Lee Clinton.
We first consider Bilbrey’s assignments. They present only one point: that he was not liable because the relationship between him and the other defendants was not that of master and servant but that of independent contractor. He insists, first, that a verdict should have been directed for him upon this issue at the close of the evidence for plaintiffs;' and, second, that verdicts should have been directed for him on this issue at the close of all the evidence.
Plaintiffs submit that Bilbrey cannot rely on his first motion for a directed verdict. This motion was made at the close of the evidence for plaintiffs. At the same time the other defendants made a like motion. Both motions were overruled. Bilbrey did not take the witness stand himself but defendant Buford Clinton and three other witnesses were called for the defense.
Plaintiffs insist that defendant Bilbrey waived his first motion by introducing evidence in his defense. John Gerber Co. v. Smith, 150 Tenn. 255, 259, 263 S. W. 974. Bilbrey contends that he did not introduce any such evidence but was merely exercising his right to cross *674examine the witnesses introduced by Ms co-defendants; and that lie is entitled to have Ms right to a directed verdict tried upon the case as it stood at the end of plaintiffs’ proof, without taking into consideration the evidence introduced by the other defendants.
We need not determine this controversy. We think that defendant Bilbrey cannot rely on his first motion because he did not make the court’s action thereon a ground of his motion for a new trial. Rhoton v. Burton, 2 Tenn. App. 164, 168; Savage v. Spur Distributing Co., 33 Tenn. App. 27, 35, 228 S. W. (2d) 122, 123, 126, and authorities there cited.
So we must look to all the evidence, construe it most favorably to plaintiffs, take as true that which supports their rights, discard all countervailing evidence, and indulge all reasonable inferences to uphold the verdicts. Good v. Tennessee Coach Co., 30 Tenn. App. 575, 578, 209 S. W. 41, 43; Smith v. Sloan, 189 Tenn. 368, 376, 225 S. W. (2d) 539, 542, 227 S. W. (2d) 2.
The evidence so taken tended to prove these facts. Defendant Bilbrey, doing business as the Bilbrey Lime Company, owned and operated a rock and lime crusher which was located several miles south of Murfreesboro near the Murfreesboro-Shelbyville Highway. He sold and delivered crushed rock to the State Highway Department and lime and crushed rock to farmers, builders, and other people generally in that vicinity.
In his business of selling and delivering crushed rock and lime he used a number of trucks which were equipped for spreading lime on land or for dumping crushed stone. He owned three or four of the trucks so used and employed drivers to operate them. He also employed a number of other trucks and drivers to aid his own trucks in hauling and delivering crushed stone and lime.
*675Three of the trucks so used by Bilbrey in his business of selling and delivering lime and crushed stone belonged to defendant Lee Clinton. Lee Clinton drove one of them, Cecil Taylor one, and defendant Buford Clinton the other one, this being the one involved in this accident. One of these trucks was equipped with a lime spreader and the others were equipped to dump crushed stone. Bilbrey had been employing these trucks with these drivers continuously in his business for perhaps a year when the accident happened.
There was no writing to evidence the terms of the employment. It appears Lee Clinton maintained the trucks, furnished the gasoline and oil, and paid his brother Buford Clinton a flat wage of $25 per week. It does not appear what he paid the other driver. Bilbrey paid Lee Clinton so much per ton for the rock and the lime hauled by these three trucks. The price for hauling and spreading lime did not vary but remained the same irrespective of the distance of the hauling. But the price for hauling crushed stone did vary according to the distance hauled.
There was no contract of employment for any length of time. Bilbrey had the right to discharge the Clintons or terminate their services at any time. He also had the right of control and did control the conduct of these truck drivers and the details and methods of the work they did. He furnished them machinery for loading the trucks at his plant and gave them orders what to haul, where to haul it, and to whom to deliver it. Neither of the Clintons would usually know one day what they were going to do the next day. They would usually receive orders what to do and where to go every morning either from Bilbrey or'from Bilbrey’s bookkeeper, Mr. Beaman.
*676Bilbrey would usually receive orders for lime or crusted stone but sometimes purchasers would give such orders to tbe Clintons who would deliver them to Bilbrey. Bilbrey also required them, when they delivered stone or lime, to have tbe customer sign a delivery receipt in duplicate, one copy of wbicb would be left with Mm and tbe other copy returned by them to Bilbrey.
On tbe morning of tbe day of tbe accident Buford Clinton drove tbe truck to Bilbrey’s plant to receive orders. Bilbrey bad already sent Lee Clinton to haul and spread lime on a certain farm, along with one of Bilbrey’s own trucks. Beaman, Bilbrey’s employee, instructed Buford Clinton to deliver a certain quantity of lime and crushed stone to a Mr. Bugg who lived some miles from Murfreesboro. Beaman rode on tbe truck with Buford Clinton and directed him bow to go to Bugg’s place. Beaman also bad Buford Clinton drive him in tbe truck to Murfreesboro where be adjusted some misunderstanding about Bugg’s order.
Buford Clinton then took Beaman in tbe truck back to Bilbrey’s plant and resumed tbe hauling of tbe lime and crushed stone to Bugg’s place. When be delivered tbe last load about 3:30 or 4:00 that afternoon Mrs. Bugg gave him Bugg’s check for tbe stone and lime, wbicb be took to bis brother Lee and Lee delivered to Bilbrey. After Buford delivered this last load and while be was on bis way to return tbe truck to tbe borne of bis brother Lee, this accident happened.
Such being- tbe evidence, we think tbe jury could have reasonably found that Bilbrey bad tbe right to control, and was actually exercising control of, tbe conduct of Buford Clinton and of tbe details and manner of tbe work be was doing which caused this accident;-and that in this particular tbe relation between Bilbrey and Buford Clin*677ton was that of master and servant rather than that of employer and independent contractor.
All onr cases show that the decisive test, and the touchstone of the distinction, of the relation of master and servant from that of employer and independent contractor is: “Had the defendant the right to control in the given particular the conduct of the person doing the wrong?” If so the relationship between them is that of master and servant and not that of employer and independent contractor. D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 513-514, 206 S. W. (2d) 897, and the numerous cases there cited.
The question who originally employed the servant, or who pays him, is not a conclusive test as to who was his master in or about a particular work in which he was engaged. The fact that Buford Clinton was paid by his brother did not prevent him from being the servant of Bilbrey in the particular work he was doing. Powell v. Virginia Construction Co., 88 Tenn. 692, 701, 13 S. W. 691, 17 Am. St. Rep. 925; Sledge v. Hunt, 157 Tenn. 606, 12 S. W. (2d) 529; D. M. Rose & Co. v. Snyder, supra, 185 Tenn. 515, 206 S. W. (2d) 904.
As stated, Bilbrey retained the right to discharge the Clintons and terminate their services at any time. Such a right to discharge is inconsistent with the relationship of employer and independent contractor and is a mark of the relationship of master and servant. Welch v. Reiling, 170 Tenn. 698, 703, 99 S. W. (2d) 216; Odom v. Sanford & Treadway, 156 Tenn. 202, 210, 299 S. W. 1045; Income Life Ins. Co. v. Mitchell, 168 Tenn. 471, 477, 79 S. W. (2d) 572; McVeigh v. Brewer, 182 Tenn. 683, 696, 189 S. W. (2d) 812.
The fact that Buford was using his brother’s truck in hauling for Bilbrey did .not negative the relation*678ship of master and servant between them or prevent snob nse from being in the master’s business. Morrison v. National Life & Acc. Ins. Co., 179 Tenn. 18, 162 S. W. (2d) 497, second appeal, 179 Tenn. 29, 162 S. W. (2d) 501; Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S. W. (2d) 860; Sledge v. Hunt, 157 Tenn. 606, 12 S. W. (2d) 529.
"Where employment appears, the presumption is that one doing work for another is a servant, and the burden is on the employer to prove that the employee was an independent contractor, if the employer would avoid liability upon that ground. He must show that he relinquished the right to control the employee’s conduct in the manner of doing the work. D. M. Rose & Co. v. Snyder, supra, 185 Tenn. 514-515, 206 S. W. (2d) 904, and cases there cited.
Where the evidence makes a prima facie case against defendant, and he could offer evidence to rebut the adverse inference but fails to do so, it may be inferred that the fully developed evidence would establish liability on his part. Western Union Tel. Co. v. Lamb, 140 Tenn. 107, 203 S. W. 752; National Life & Acc. Ins. Co. v. Morrison, supra, 179 Tenn. 41, 162 S. W. (2d) 501; The Vogue, Inc., v. Cox, No. 7, 28 Tenn. App. 344, 349, 190 S. W. (2d) 307.
For these reasons we think the trial judge did not err in overruling defendant Bilbrey’s motion for a directed verdict and in submitting to the jury the question whether Buford Clinton was acting as servant and in the course of the business of Bilbrey in doing the work which brought about the accident and the injuries herein sued for.
As stated, the other defendants have also assigned errors. But these assignments do not point out *679wherein the court erred, nor are they supported by any brief or argument. So under Rule 12 of this Court, Williams’ Code, Vol. VII, p. 549, and the well-settled practice, we treat said assignments of error as waived. Brown v. Smith, 32 Tenn. App. 622, 630, 225 S. W. (2d) 91, 95; Freeman v. Loyd, 31 Tenn. App. 164, 170, 212 S. W. (2d) 912; McDonnell v. Amo, 162 Tenn. 36, 41, 34 S. W. (2d) 212; State ex rel. v. Retail Credit Men’s Ass’n, 163 Tenn. 450, 470, 43 S. W. (2d) 918; Ward v. Gulf M. & N. R. Co., 23 Tenn. App. 533, 550, 134 S. W. (2d) 917; Louisville & N. R. Co. v. Conasauga River Lumber Co., 25 Tenn. App. 157, 163, 153 S. W. (2d) 143; Tri-State Transit Co. of La., Inc., v. Duffey, 27 Tenn. App. 731, 751, 173 S. W. (2d) 706.
All of the assignments of error are overruled and the judgments are affirmed. Judgments will be entered in this Court for the plaintiffs against defendants for the amounts of the judgments below together with interest and the costs of this appeal in error. The costs are also adjudged against the sureties upon the appeal bond of plaintiff in error, J. A. Bilbrey.
Howell and Hickerson, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1609519/ | 270 F.Supp. 968 (1967)
Billie Lou STEPHENS and Montana Bank, a Montana banking corporation, Co-Executors of the Estate of Chris Jensen, Deceased, Plaintiffs,
v.
The UNITED STATES of America, Defendant.
Civ. No. 2606.
United States District Court D. Montana, Great Falls Division.
July 20, 1967.
*969 Church, Harris, Johnson & Williams, Dale Forbes, Great Falls, Mont., for plaintiffs.
Jerome Hillis, Atty., Dept. of Justice, Washington, D. C., Moody Brickett, U. S. Atty., Butte, Mont., for defendant.
OPINION AND ORDER
RUSSELL E. SMITH, District Judge.
Plaintiffs, co-executors of the estate of Chris Jensen, deceased, having paid a deficiency in the estate taxes assessed by the Commissioner of Internal Revenue, sue for a refund. The case was submitted for decision upon stipulated facts.
Claims for refund sufficient in form were timely filed. This action was timely filed. Four issues were submitted:
1. How is the marital deduction to be computed in view of a will; a renunciation of it by the widow, and an agreement which controlled the decree of distribution?
Chris Jensen died leaving behind him a will, a widow, and a daughter by a previous marriage. The will was admitted to probate. Under its terms the widow was to receive the family home. A trust created for her benefit was to receive certain real estate and one-half of the residue of the estate. The widow was given a general power of appointment over the assets of the trust. At the date of testator's death the widow's interest as provided by the will qualified for the marital deduction.[1]
The widow, after consultation with counsel, and apparently with a callous disregard for estate tax consequences, elected to renounce the will and take her dower in the lands and her share in the personal estate.[2] The renunciation was in statutory form and was filed within the statutory time.[3]
After the renunciation had been filed, the attorney for the executors advised them that he was uncertain of the widow's rights under Montana law and that it might be advantageous to reach an agreement between the widow and the estate. Finally, and again without regard to estate tax consequences, an agreement was reached under which the widow received certain real estate in fee and one-half of the personal property. The probate court was advised of what had been done and a decree of distribution was entered. The probate judge specifically determined the agreement to be a fair and equitable settlement and distributed the estate in accordance with it. The decree of the court was not a declaration of state law as applied to the facts. Basically, it was nothing more than an approval of the agreement which had been reached by the parties. The agreement, however, was a bona fide settlement of a complex legal problem.
The marital deduction was calculated by plaintiffs on the basis of the decree; that is, on the basis of the property actually received by the widow. The Commissioner refused to allow the marital deduction as claimed. It was the Commissioner's position that for estate tax purposes the interest of the widow should be determined on the basis of the rights given her by law upon the renunciation of the will; that under Montana law the widow's dower interest in the lands was a life estate and therefore a terminable, non-qualifying interest under § 2056(b) (1) Int.Rev.Code of 1954.
The defendant supports this position by an argument that the deduction is allowable only as to interests passing from the decedent; that the election to renounce by operation of law occurs on the date of death; hence, as of date of death, the widow had terminable interest in the real estate and that her dealings with the other heirs and the estate amounted to a trade of assets. From this it is urged that the non-terminable *970 interests received by the widow in exchange for her terminable interests passed from the other heirs and not from the decedent.
The core of the defendant's argument is the contention that the marital deduction depends upon a "passing" from the decedent under the provisions of § 2056(e).[4] The defendant urges that under § 2056(e) (3) and Treasury Regulation 20.2056(e)-2 (c)[5] once an election is made the widow's rights under the law fix the marital deduction.
The court regards the language of the section and the Treasury regulation as standing for no more than that where the distribution is based upon statutory rights following an election, the marital deduction is then determined on the basis of the quality and quantity of rights actually received by the widow. To base a marital deduction on a mid-probate happening which does not ripen into a real interest is to produce a tax result unrelated to the economic realities. The court is of the opinion that such a result is compelled neither by the statute nor the decisions. The government considers the widow's rights once the statutory election was made as being finally and completely measured by R.C.M.1947, § 22-107. The election was not necessarily finalpossibly it might have been withdrawn as a matter of right[6] or by consent of all of the other heirs. There is likewise the possibility that the widow's life estate would have been converted into the actual cash in hand prior to the distribution of the estate.[7]
It is not at all clear here that the widow did not have rights as an heir in the real estate which the will left to the trust. When she renounced the will, the real estate devised to her went into the residue of the estate. One-half of the residue went to the daughter, but after the widow's renunciation there was no *971 testamentary disposition of the other half. Under Montana law this widow would inherit one-half of the property as to which the decedent died intestate. R.C.M.1947, § 91-403.
The court is not here determining the exact rights of the widow and has not mentioned some of the rights which the plaintiffs claim for her under the law of Montana, but it is indicating that as a widow and heir she has a bundle of rights which passed to her from her husband even if some of them were nothing more than rights to litigate substantial questions. While it is true that the marital deduction is normally fixed as of the date of death,[8] such is obviously not so where an election to renounce the will and take statutory rights is made. There is nothing in the law which gives the date of an election to renounce the same finality as the law gives to the date of death in the ordinary marital deduction case. If one post-death election may be made and have the effect of altering the marital deduction, it is difficult to see why other post-death happenings cannot alter the effect of the initial election. See Dougherty v. United States, 6 Cir. 1961, 292 F.2d 331. The agreement which was reached and which ultimately found its way into the decree of distribution can be regarded as a measurement of the rights passing to the widow by virtue of the lawthe rights which are described in subdivisions 1, 2, and 3 of § 2056(e), Int.Rev. Code of 1954. Lyeth v. Hoey, 305 U.S. 188, 59 S.Ct. 155, 83 L.Ed. 119, 119 A.L.R. 410 (1938) lends support to this position. There, upon the compromise of a will contest, the court held that the property received by an heir was an inheritance, saying:
"There is no question that petitioner obtained that portion, upon the value of which he is sought to be taxed, because of his standing as an heir and of his claim in that capacity. It does not seem to be questioned that if the contest had been fought to a finish and petitioner had succeeded, the property which he would have received would have been exempt under the federal act. Nor is it questioned that if in any appropriate proceeding, instituted by him as heir, he had recovered judgment for a part of the estate, that part would have been acquired by inheritance within the meaning of the act. We think that the distinction sought to be made between acquisition through such a judgment and acquisition by a compromise agreement in lieu of such a judgment is too formal to be sound, as it disregards the substance of the statutory exemption. It does so, because it disregards the heirship which underlay the compromise, the status which commanded that agreement and was recognized by it." Supra at p. 196, 59 S.Ct. at p. 159.
The case of Dougherty v. United States, supra, is persuasive here. There the district court[9] had held that certain property had not "passed" from the decedent to his surviving spouse. She had elected to take a dower interest which, in Kentucky, is normally a life estate. Under some circumstances, however, the dower may be reduced to a sum certain prior to distribution. As a result of a compromise the widow did receive a sum certain. The Court of Appeals reversed, saying:
"`The basic principle * * * is that the spouse first to die shall be permitted to pass on to the surviving spouse free of estate tax up to one-half of his or her estate, provided only that the terms of the transfer are such *972 that this property will be taxable in the estate of the surviving spouse.' Estate of Pipe v. Commissioner, 23 T.C. 99, 104. Under this construction of the Act, we are more concerned with what the widow actually received in the settlement of her husband's estate than with what she was technically entitled to receive but actually did not receive. The transaction is materially different from an allotment of dower in the settlement of the estate and a subsequent sale by her of such allotment." Dougherty v. United States, supra, 292 F.2d at p. 337.
It is therefore the opinion of the court that the property received by the widow in this case through the decree of distribution was property which passed to her from her deceased husband and that the marital deduction should be calculated on the basis of the value of that property.
2. Should the marital deduction be charged with a share of the Federal Estate Taxes?
Defendant urges that since under R.C.M.1947, § 22-107 the widow's share of the personal estate is paid only after the payment of inheritance taxes, the marital deductions should be subject to a deduction for these taxes. Since the court has held that for marital deduction purposes the widow's rights in this case are not controlled by § 22-107, this argument fails.
Plaintiffs, citing Marans v. Newland, 143 Mont. 388, 390 P.2d 443 (1964) say that the Montana Supreme Court is receptive to the doctrine of apportionment and that the Montana Court would not subject the widow's share of the assets to the federal estate tax. On the basis of the present record, it appears that the court is not required to pass upon this contention. From that portion of the probate file which is in this record it seems that the federal estate taxes were paid out of the residue of the estate and that the widow received one-half of what was left. Since the court has decided that the widow's allowance is measured by the "did gets" rather than the "would have gottens", the court is not inclined to determine how the tax might have been apportioned under some other circumstances.
If the court is in error in its assumption as to what happened with respect to the payment of estate taxes, plaintiffs are granted leave to reopen for the limited purpose of proving who did in fact bear the burden of the federal estate taxes.
3. Did the widow's allowance qualify as a marital deduction?
A widow's allowance in the amount of $6,000.00 was paid under an order of the court during the course of the administration of the estate. The defendant contends that a family allowance is, as of the date of death, a terminable interest and does not qualify for the marital deduction. The Montana statutes are almost identical with those providing for the widow's allowance in California. A widow's allowance under California law was held not to qualify for the marital deduction in Jackson v. United States, 376 U.S. 503, 84 S.Ct. 869, 11 L.Ed.2d 871 (1964). In Montana the allowance may be lost if the widow does not ask for it.[10] Under Shedd's Estate v. Commissioner of Internal Revenue, supra, this alone is sufficient to disqualify the allowance.
4. Were certain accumulations to a trust includable in the gross estate?
In April, 1959, Chris Jensen established an irrevocable trust for his grandchildren. Between that date and the date of his death the trust increased in value by the amount of $431.74. Defendant claims that this amount should be added to the gross estate, relying upon United States v. O'Malley, 383 U.S. 627, 86 S.Ct. 1123, 16 L.Ed.2d 145 (1966). In that case the trust instrument provided that the trustees, of whom the decedent was one, could accumulate *973 the income of the trust, in which event it became a part of the principal of the trust. The court held that under § 811 (c) (1) (B) (ii) of the 1939 Code the retained power to accumulate constituted a right to designate, that this right did not expire until death, and that hence the accumulated income was transferred at death. Under the Jensen trust the trustees had the power to accumulate, but the decedent was not one of the trustees. When the trust was created, all of the decedent's rights to the property, including the right to future income and any rights to control the disposition of future income were lost to Jensen. This case is controlled by the rule announced in Commissioner of Internal Revenue v. Gidwitz' Estate, 7 Cir. 1952, 196 F.2d 813; Burns v. Commissioner of Internal Revenue, 5 Cir. 1949, 177 F.2d 739. In United States v. O'Malley, supra, the court refused to extend the rule of these cases, but there is no indication that that rule itself was repudiated.
This opinion together with the stipulation of the parties constitute the findings of fact and conclusions of law of the court.
It is therefore ordered that the estate taxes in the Estate of Chris Jensen be determined as follows:
1. That the marital deduction be computed on the basis of the interests actually distributed to the widow.
2. That the widow's allowance be disregarded in the computation of the federal estate taxes.
3. That the amount of $431.74, the accumulation to the trust, be excluded from the gross estate.
The parties are directed to compute the amount of the refund due to plaintiffs on the basis of this order, and report the result of their calculations to the court within thirty (30) days from the date this order is filed with the clerk. If they are unable to agree, they shall report their disagreement to the court within the same time.
NOTES
[1] Int.Rev.Code of 1954 § 2056(a).
[2] R.C.M.1947, § 22-107.
[3] R.C.M.1947, § 22-108.
[4] The pertinent subdivisions of § 2056(e) are 1, 2, and 3, reading as follows:
"[A]n interest in property shall be considered as passing from the decedent to any person if and only if
(1) such interest is bequeathed or devised to such person by the decedent;
(2) such interest is inherited by such person from the decedent;
(3) such interest is the dower or curtesy interest (or statutory interest in lieu thereof) of such person as surviving spouse of the decedent."
[5] Section 2056(e) (3) of the Int.Rev.Code of 1954, reads as follows:
"(e) Definition.For purposes of this section, an interest in property shall be considered as passing from the decedent to any person if and only if
"(3) such interest is the dower or curtesy interest (or statutory interest in lieu thereof) of such person as surviving spouse of the decedent; * * *" Treasury Regulation § 20.2056(e)-2 (c) provides:
"(c) Effect of election by surviving spouse.
This paragraph contains rules applicable if the surviving spouse may elect between a property interest offered to her under the decedent's will or other instrument and a property interest to which she is otherwise entitled (such as dower, a right in the decedent's estate, or her interest under community property laws) of which adverse disposition was attempted by the decedent under the will or other instrument. If the surviving spouse elects to take against the will or other instrument, then the property interests offered thereunder are not considered as having `passed from the decedent to his surviving spouse' and the dower or other property interest retained by her is considered as having so passed (if it otherwise so qualifies under this section). If the surviving spouse elects to take under the will or other instrument, then the dower or other property interest relinquished by her is not considered as having `passed from the decedent to his surviving spouse' (irrespective of whether it otherwise comes within the definition stated in paragraph (a) of this section) and the interest taken under the will or other instrument is considered as having so passed (if it otherwise so qualifies). As to the valuation of the property interest taken under the will or other instrument, see paragraph (b) of Sec. 20.2056(b)-4."
[6] 97 C.J.S. Wills § 1254 (1957).
[7] Where the land is not susceptible of division without great injury this may be done under R.C.M.1947, § 91-2612.
[8] Jackson v. United States, 376 U.S. 503, 84 S.Ct. 869, 11 L.Ed.2d 871 (1964); Starrett v. Commissioner of Internal Revenue, 1 Cir. 1955, 223 F.2d 163; Commissioner of Internal Revenue v. Ellis' Estate, 3 Cir. 1958, 252 F.2d 109; Bookwalter v. Lamar, 8 Cir., 1963, 323 F.2d 664; Allen v. United States, 2 Cir. 1966, 359 F.2d 151, cert. den. 385 U.S. 832, 87 S.Ct. 71, 17 L.Ed.2d 67 (1966); Shedd's Estate v. Commissioner of Internal Revenue, 9 Cir. 1956, 237 F.2d 345, cert. den. 352 U.S. 1024, 77 S.Ct. 590, 1 L.Ed.2d 596 (1957).
[9] 175 F.Supp. 339.
[10] In re Trepp's Estate, 71 Mont. 154, 227 P. 1005 (1924). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609533/ | 270 F.Supp. 524 (1967)
James L. PARKS, Plaintiff,
v.
Duffie V. SLAUGHTER and E. C. Harris, dba Northside Motor Co., Defendants.
No. 67-186 Civ.
United States District Court W. D. Oklahoma.
July 14, 1967.
Mathews, Buck, Cain, Crabtree & Lynn, Oklahoma City, Okl., for plaintiff.
Duvall, Head, McKinney & Travis, Oklahoma City, Okl., for defendants.
ORDER
DAUGHERTY, District Judge.
This case is now before the Court for consideration of the Defendants' Special Appearance and Motion to Quash and the *525 Plaintiff's Response thereto. The general issue raised is the alleged lack of jurisdiction due to the failure of Plaintiff to achieve valid service of process upon the Defendants. The specific challenge made is to the irregularity of the manner of service on the Defendants, each of whom were served personally by the U. S. Marshal in Texas per the Returns. Defendants aver that under the Oklahoma Non-Resident Motorist Service Act, Title 47 O.S.A. Section 391 et seq., the exclusive method of service provided is to first serve the Secretary of State with notification to a Defendant thereafter by registered mail or personal service. On the other hand, the Plaintiff contends the "long arm" provisions of the Uniform Interstate and International Procedure Act, as adopted in Oklahoma in 1965, Title 12 O.S.A. Sections 1701.01-1702.04, are operative in this case and this Act authorizes personal service in the manner in which it was effected herein. The Plaintiff, therefore, concludes there is no necessity for complying with the Oklahoma Non-Resident Motorist Service Act by service upon the state official.
This action arises from personal injuries sustained in an automobile-truck collision in Oklahoma County, Oklahoma. Service of process is governed in this diversity action by Rule 4(d) (1) and (7), F.R.Civ.P. 28 U.S.C.A. which provides, inter alia, that service on an individual is sufficient if the summons and complaint are served in accordance with the law of the state in which the District Court is held. Denton v. Ellis, 258 F. Supp. 223 (E.D.N.Carolina, 1966).
It is undisputed factually and legally that service of summons or mailing was not had herein through the Secretary of State in compliance with the Oklahoma Non-Resident Motorist Service Act, Title 47 O.S.A. Section 394. See 15 Okla. Law Review 88, and Van Gundy v. Ellis, 246 F.Supp. 802 (S.D.Iowa, 1965).
Next, of course, the question is whether the Plaintiff can find any comfort in the Uniform Interstate and International Procedure Act for personal service and personal jurisdiction of a non-resident motorist and his principal. The pioneer statute in this area (Long Arm) was enacted in Illinois in 1956 and upheld in Nelson v. Miller, 11 Ill. 2d 378, 143 N.E. 2d 673 (1957). Also see 2 L.Ed.2d 1664 Annot.; Development of the Doctrine of Pennoyer v. Neff, as regards jurisdiction over non-resident individuals and foreign corporationsSupreme Court cases. The Uniform Interstate and International Procedure Act authorizes personal jurisdiction to be exercised by personal service in the manner prescribed for service within the State. Title 12 O.S.A. Sections 1701.04 and 1702.01(a) (1). If the extrastate service is valid, however, it must be obtained within the umbrage of one of the bases of jurisdiction enumerated in Title 12 O.S.A. Section 1701.03. See 19 Okla. Law Review, 443, 446. The subpart applicable to this action is Title 12 O.S.A. Section 1701.03(a) (3) providing for personal jurisdiction over a person "causing tortious injury in this state by an act or omission in this state; * * *."
Apart from the question of ultimate liability, the facts set out in the Complaint are sufficient to support the conclusion that the Defendants have committed or caused to be committed a jurisdictional act by causing tortious injury in this State. Cf. Keckler v. Brookwood Country Club, 248 F.Supp. 645 (N. D.Ill.E.D.1965). The methods of obtaining service of process in Article II of the Uniform Interstate and International Procedure Act were modeled after the Motorists Service of Process Acts but were designed to give superior and actual notice to a defendant who has had substantial connection with the forum. See 17 Ark. Law Review 118-125. The Act is to be so construed and interpreted to effectuate its general purposes of making the state law uniform, Title 12 O.S.A. Section 1706.02, and to widen the constitutional bases upon which the courts of the states may exercise in personam jurisdiction consistent with due process of law. 36 Okla. Bar Journal, 2205, 2209. It was not intended to repeal *526 or modify other laws "permitting a procedure for service * * * other than the procedures prescribed in Article II * * * of this act; * * *." Title 12 O.S.A. Section 1706.01(b).
Therefore, the Court finds that the Uniform Interstate and International Procedure Act and the Oklahoma Non-Resident Motorist Service Act are not mutually exclusive, but are cumulative and provide alternative and harmonious methods of exercising personal jurisdiction by substituted or extrastate personal service when consistent with statutory standards and due process of law. The Defendants' Special Appearance and Motion to Quash must be overruled and denied. The Defendants will have fifteen (15) days from this date to further plead or answer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609586/ | 81 N.W.2d 318 (1957)
163 Neb. 833
Roy A. BITLER, Appellee,
v.
TERRI LEE, Inc., Appellant.
No. 34013.
Supreme Court of Nebraska.
March 1, 1957.
*319 Ginsburg, Rosenberg & Ginsburg, Lincoln, for appellant.
C. M. Pierson, William D. Blue, Elmer M. Scheele, Lincoln, for appellee.
*320 Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
BOSLAUGH, Justice.
This is an action on a written contract of employment brought by appellee to recover damages from appellant for alleged wrongful termination of the contract and the discharge of appellee from his employment.
The circumstances of the first cause of action asserted by appellee are: Appellant is a domestic corporation authorized to manufacture and sell dolls and doll accessories. A contract was made by the parties on or about October 24, 1951, as of April 15, 1951, by which appellee was employed for a period of 3 years commencing April 16, 1951, to be the plant manager of the factory of appellant and to look after the production, manufacture, and shipping of products to be sold by it in its business. Appellee was obligated by the contract to loyally serve appellant, to keep all information obtained by him during the employment confidential, and to refrain from becoming associated with any competing business until 1 year from the date of the termination of his employment by appellant. A copy of the contract was made a part of the cause of action. The compensation of appellee was $150 per week; an annual bonus of $5,000 for each year if the sales of appellant were not less than its sales for the year immediately preceding the commencement of the contract and if the margin of gross profit of appellant on its sales was not less than the margin of gross profit received by it for the year immediately preceding the commencement of the contract; and an additional yearly bonus of 2 percent of gross profit on sales of appellant in excess of $500,000 per year if its sales were increased to that amount for any year during the employment of appellee and if the percentage of gross profit of appellant should not be less than the percentage of gross profit received by it on its sales the year next preceding the commencement of the contract. Appellee entered upon the performance of the duties of his employment April 16, 1951; faithfully and competently performed all things required of him to be done; and has been and is able, willing, and ready to fully perform the contract of employment according to its requirements. The appellant on or about September 15, 1952, without cause, wrongfully terminated the employment of and discharged appellee. During the periods covered by the written contract to and including the year ending April 15, 1954, the contingencies and conditions precedent to appellee being entitled to a bonus of $5,000 for each of the periods of April 15, 1952, to April 15, 1953, and April 15, 1953, to April 15, 1954, and appellee being entitled to an additional yearly bonus of 2 percent on the amount of the gross sales of appellant in excess of $500,000 occurred and were satisfied but no part thereof has been paid to appellee. The weekly salary was paid to appellee according to the contract to September 15, 1952. The amount claimed due appellee on the first cause of action is stated.
The second cause of action of appellee is based on these claims: In March 1951 the parties made a separate and independent oral agreement that appellee would be paid expenses of traveling from Lincoln to Fair Lawn, New Jersey, where his family resided, and the expenses of transporting appellee, his family, and his household furnishings from Fair Lawn, New Jersey, to Lincoln. The agreement was made by appellant with appellee as an inducement of his execution of the written contract described in the first cause of action and the consideration for the oral agreement was the promise of appellee to enter into the written contract. Appellee relied on the oral agreement and incurred the expenses and costs contemplated by it, the amount of which is stated.
The third cause of action of the petition of appellee was dismissed in the trial court because of insufficient evidence. The judgment *321 of dismissal has become final and no further mention of it will be made.
The answer of appellant to the first cause of action of appellee consists of the following: Admission of its corporate existence and capacity as claimed by appellee and that the exhibit attached to the petition is a copy of the written contract of the parties made under date of October 24, 1951, a denial of all other matters asserted in the first cause of action, and affirmative defenses which will be detailed if required later herein. The answer of appellant to the second cause of action admitted its existence and corporate capacity as claimed by appellee and denied all other statements made therein. The reply of appellee was a denial of all new matter contained in the answer of appellant.
The trial of the case resulted in a general verdict for appellee and against appellant for the gross amount of $43,443.40. The motion of appellant for judgment notwithstanding the verdict or, in the alternative, for a new trial, was filed May 13, 1954. It was argued and submitted to the court and thereafter on January 31, 1956, the district court by order of that date set aside and vacated all of the verdict of the jury in excess of the sum of $9,398.60 and rendered judgment in favor of appellee and against appellant on the first cause of action in the sum of $8,462 and on the second cause of action the sum of $936.60, a total of $9,398.60 with interest thereon at 6 percent per annum from May 4, 1954.
Violet Gradwohl, referred to herein as Mrs. Gradwohl, was the president of appellant. She was in New York in March of 1951 in the interest of the corporation, displaying dolls at the annual toy fair. She had under consideration the employment of a production manager for the factory of appellant at Lincoln. She met appellee and they had a general conversation on March 20 or 21, 1951. He gave her a printed statement of his background in management planning and coordinating over-all plant production operation and of his experience and accomplishments as plant manager in two locations for considerable periods of time. Mrs. Gradwohl said that she was president of appellant and that she intended to employ a plant manager before she returned to Lincoln. She asked appellee to contact her the next day and they would continue their conversation. They met as she suggested. Appellee testified that she said she was looking for a good man who was qualified in manufacturing and the over-all problem was discussed. She said she had a small factory and production in Lincoln; that she was not able to produce all of the orders she had for the 1950 Christmas business; that she had gross sales of $220,000 the previous year and she spoke of the margin or percentage of profit on the sales; that if he decided to accept employment by appellant, she would give him $150 per week, a $5,000 bonus each year for a 3-year period if he got the business up to $500,000, and an additional bonus on a gross profit set-up of 2 percent of the gross profit on the volume in excess of the first $500,000; that the gross profit was to be 50 percent of the gross business; that she would pay the expense of three round trips from New York to Lincoln and return and the moving expenses of appellee and his family from Fair Lawn, New Jersey, to Lincoln; that she would allow appellee a month's vacation with pay each year; and that when appellee came to Lincoln and started work for appellant she would have her attorney, Mr. Ginsburg, "draw up a written agreement concerning everything that we determined in her room in the Hotel New Yorker."
Appellee came to Lincoln, made the investigation he desired, accepted the offer he claims Mrs. Gradwohl made in New York, and on April 3, 1951, returned to his home in Fair Lawn, New Jersey. He said he was paid for the expense of that trip. He returned to Lincoln April 15, 1951, and commenced his employment by appellant April 16, 1951, in the capacity stated in the written contract.
*322 The first draft of the written contract was prepared by Mr. Ginsburg. A copy of it was delivered to appellee and he had it for at least 3 days, consulted with his attorney in reference to it, and returned it to Mr. Ginsburg with suggestion for a change in it. The final draft of the contract, a copy of which is attached to the petition, was prepared by Mr. Ginsburg as appellee requested. It was approved and executed by the parties to it. It bears date October 24, 1951, but was to be effective as of April 15, 1951, as recited therein. Appellee testified that the intention was to include in the written contract all of the terms of the agreement made by him with appellant and that the written contract does that. Appellee made no representation or claim to Mr. Ginsburg about appellant having agreed to pay appellee for travel or moving expenses when Mr. Ginsburg was receiving information and instruction concerning the terms and provisions of the contract preliminary to preparing it; neither did appellee mention that he claimed that there was such an agreement at the time he suggested to Mr. Ginsburg a change in the first draft of the written contract or at any other time. Appellee testified that he made no claim for moving expense of himself and his family to Lincoln before he filed this lawsuit October 22, 1952.
Mrs. Gradwohl testified that she made no agreement with appellee to pay him any travel expense or any expense of moving his family to Lincoln except she agreed to pay the expense of his trip to Lincoln to investigate concerning the proposed employment; that if he decided to enter the employ of appellant she would pay the plane fare back to New Jersey from Lincoln; and that she paid appellee exactly what she agreed in this respect.
The proof does not sustain the contention of appellee that the alleged oral agreement concerning the travel expense, the expense of transportation for his family, and the cost of transporting his household furnishings, as pleaded in the second cause of action, was a collateral oral contract separate and distinct from and independent of the written contract made by the parties; that the parol agreement was the inducement of appellee executing the written contract; and that the execution of it by him was the consideration for the oral agreement. The evidence is convincing that the negotiations had by the parties concerned the single matter of the employment of appellee by appellant and the offer made by appellant to appellee concerning it consisted of one conversation had in New York. The obligation of appellant to appellee if he accepted the offer and performed the duties it required was, as testified by appellee, enumerated in that conversation as a connected whole, namely, weekly salary, bonuses upon certain conditions, travel expenses incurred by appellee, and the cost of moving his family and household furnishings from New Jersey to Lincoln. It is true there is disagreement of the parties as to how much travel expense appellant was obligated to pay appellee and as to any liability of appellant to appellee for the expense of his moving his family and household furnishings but whatever was said concerning these was said in that one conversation which constituted the negotiations for the employment of appellee by appellant. Whatever was the offer there made was the subject matter concerned in and evidenced by the written contract subsequently made and acted upon by the parties. It was the understanding at the conclusion of the negotiations in New York that if appellee accepted the offer made him by Mrs. Gradwohl after he had made an investigation in Lincoln, everything comprehended in the offer would be made the subject of a written contract of the parties to be prepared by Mr. Ginsburg who was referred to as her attorney. The written contract was prepared in October of 1951 after appellee had discussed what it should contain with Mr. Ginsburg. A draft of the contract was given appellee. He had it for several days, consulted his attorney concerning it, and suggested a *323 change in it which was made when the contract was finally written. Appellee at that time made no claim of the now-asserted oral agreement concerning travel and moving expense. He testified at the trial that it was the intention of the parties that the written contract should express and evidence the whole of the agreements of the parties and that the contract prepared and executed does that. He also testified that he made no claim for moving expenses until he filed the lawsuit on October 22, 1952.
Appellee may not extract from negotiations resulting in his employment an understanding which he claims was arrived at by the parties concerning his travel and moving expense and frame a cause of action thereon independent from and in disregard of the written contract of the parties subsequently made which concerns the subject matter of the negotiations. The understanding of the parties resulting therefrom may not be thus fragmentized. Whatever was said by the parties concerning the travel and moving expense was, as shown by the testimony of appellee, a part of the conversation concerning and related to his employment by appellant and any oral understanding by the parties concerning it should have been, and to be effective was required to be, included in the written contract. It is said in Hoerger v. City State Bank, 151 Neb. 321, 37 N.W.2d 393: "Where negotiations take place between parties which result in their reaching an agreement in reference to the subject matter of the negotiations, and the parties reduce their agreement to writing, sign and deliver the same, such writing, in the absence of fraud, mistake, or ambiguity in the writing, constitutes the best and only competent evidence of the contract."
The following is contained in Annotation, 33 A.L.R.2d 968: "All oral negotiations or stipulations between the parties, preceding or accompanying the execution of the written instrument, are regarded as merged in it, and the instrument is treated as the exclusive medium of ascertaining the agreement of the parties to it. * * * The reason for this rule is that it is only reasonable, where parties have entered into a written agreement, to suppose that they have introduced into the instrument every material term and circumstance; and, consequently, all parol testimony of conversations made by either of them, whether before or after, or at the time of, the completion of the contract, will be rejected. * * With respect to the first-mentioned theory (adding by parol evidence to the contract evidenced by writing), it has been well said that the rule forbids to add by parol where the writing is silent, as well as to vary where it speaks, that generally it will be presumed that the parties have introduced into the written contract every material item and term, and that parol evidence cannot be admitted to add another term to the agreement, although the writing contains nothing on the particular feature to which the parol evidence is directed." See, also, Barkalow Bros. Co. v. English, 159 Neb. 407, 67 N.W.2d 336; Ford v. Luria Steel & Trading Corp., 8 Cir., 192 F.2d 880; 20 Am.Jur., Evidence, § 1099, p. 958.
The second cause of action has not been brought within any exception to the general doctrine expressed in and sustained by the above authorities. The record does not sustain the second cause of action. The submission of it to the jury was erroneous and prejudicial. The recovery allowed appellee thereon cannot be sustained.
Appellee was employed by appellant as plant manager of its factory in Lincoln to superintend it and to look after the production, manufacture, and shipping of products sold by it in the conduct of its business. The service of appellee, because of the contract of employment with appellant, commenced April 16, 1951, and continued at the Lincoln factory until it was totally destroyed, except the records of appellant, December 15, 1951. The business of appellant was the manufacture of quality dolls, doll garments, and accessories consisting of *324 stockings, shoes, and many other items that were appropriate for the many and various types of dolls that were made by appellant. The objective was to produce and market a doll that would look as nearly as possible like a real child and for which clothing and accessories were available and of such a nature that they could be put on the doll and changed by a child. This idea was developed by Mrs. Gradwohl commencing in 1946. Appellant was incorporated in 1948 and it thereafter conducted the business as a quality production until its factory was destroyed by fire in December of 1951. In January 1952 appellant secured and equipped a small plant in Lincoln in which it resumed the making of doll garments and clothing. It did not have space or capacity for any other department of the normal activity of the appellant.
A site for a factory and a building thereon were purchased by Mrs. Gradwohl in Apple Valley, California, about the first of March 1952, and she then made arrangements to have the building put in proper condition for and equipped as a plant in which the business formerly conducted in Lincoln could be pursued. Production of dolls was commenced at the California plant about May 10, 1952. There were some dolls ready for shipment about May 15, 1952. The first shipment of dolls was made from there about May 26, 1952. The plant commenced operations with 6 or 7 employees. The number was soon increased to about 20 but they were new employees with substantially no experience or training for the work to be done. Many problems developed that made any production almost impossible. The situation did improve and about the middle of June 1952 the number of employees had increased to about one-third as many as were employed at the time of the fire in December 1951 but at that time other difficulties arose. Production slowed down, employees were laid off, and production substantially ceased. There was a delay then until July 5 or 6, 1952. Appellee was from about May 10, 1952, to July 10, 1952, production manager of the plant at Apple Valley, California. A new production man was placed in charge of the plant on July 10, 1952. Appellee was made receiving and shipping clerk and was permitted to interview applicants for employment but the new manager decided if the applicant should be employed and if engaged where he would work. Appellee continued in this capacity until September 15, 1952, on which date his services were discontinued and he then left and did not return to the plant. He thereafter had no connection with or knowledge of the business. The business conducted in California commencing in May 1952 referred to above was by a partnership consisting of Violet Gradwohl and Grace Hast, the name of which is Terri Lee of California.
Appellee, prior to his employment by appellant, was for 3 years plant superintendent of a company in New Jersey that manufactured a general line of toys and games. He was also employed by a company and became and was for several years manager of its Long Island City, New York, factory. This company also made toys and games. The character and scope of the specific duties performed by him in these two engagements are not mentioned in the record. It is not shown that appellee had any instruction or training in cost accounting. He had not before the employment concerned in this case had any experience in the making and disposing of articles of the kind and character of those produced and sold by appellant. The materials and supplies required by appellant in the conduct of its business were purchased by Mrs. Gradwohl or by her immediate direction. She decided what appellant would obligate itself for in this regard, she determined what appellant should receive for any item it sold, and she controlled the labor employed and the compensation paid. Appellee fixed no prices, made no sales, and produced no customer. These were matters in the exclusive province of Mrs. Gradwohl. In short, the policies, practices, and *325 activities of appellant were determined by her and her decisions and directions were final. The obligation of appellee in reference to these was only to perform her directions and decisions insofar as they operated in his sphere of employment. The knowledge appellee had of the business operations of appellant as a manufacturing concern was limited to the contact he had with them during the brief periods of April 16, 1951, to December 15, 1951, and from May 10, 1952, until September 15, 1952, under the circumstances recited above.
The contract of the parties was that appellant employed appellee for a period of 3 years commencing April 16, 1951, as plant manager of the factory of appellant in Lincoln, Nebraska; that appellee agreed to serve appellant as such plant manager, devote his time and best efforts to the superintendence of the factory, and look after the production, manufacture, and shipping of products sold by appellant in its business to its best advantage and interest; and that the compensation to be paid appellee by appellant was $150 per week, an annual bonus of $5,000 if its sales and the margin of gross profit were not less than during the year preceding the going into effect of the contract, and, if its sales were increased to $500,000 per annum, appellee should receive from appellant an additional bonus of 2 percent of the gross profit of appellant on sales over $500,000 if its percentage of gross profit was not less than its percentage of the gross profits received on its sales for the year preceding the commencement of employment of appellee as evidenced by the contract. Appellee was paid the weekly salary to September 15, 1952, as required by the contract. He was paid $5,000 referred to by him as his first-year bonus in this manner: Two-fifths thereof October 15, 1951; "The second part of my bonus was paid to me on December 15, 1951, and then the last of the bonus was paid early the following year" (1952). The $5,000 was obviously not paid after or because of a determination of the amount of the sales and the margin of gross profit the first year of the employment of appellee because appellant operated on a fiscal-year basis ending March 31 of each calendar year of which appellee was advised and in which he concurred. The contract conditions made it impossible to determine, when the three installments were paid appellee aggregating $5,000, that an annual bonus of $5,000, or any bonus, was or would be due appellee. These things could not be ascertained until after March 31, 1952. There has been no amount paid appellee by appellant because of the contract in addition to the weekly salary and the $5,000 discussed above.
The contract made it necessary to determine by some method the amount of the sales of appellant during its fiscal year ending March 31, 1951, and its margin of gross profit for that period; likewise the gross sales and margin of gross profit for each fiscal year thereafter had to be determined. This was discussed by the parties when the matter of a bonus to appellee was considered and specified. Mrs. Gradwohl advised appellee that appellant had an accountant, Dana F. Cole, and that he supervised the books of appellant. Nothing was said concerning any change in the bookkeeping set-up of appellant or the manner of computation of gross profit. The books were to be continued to be kept by Dana F. Cole just as they had been in the past. The percentage of margin was a matter of bookkeeping and appellee understood that the percentage of margin of profit realized by appellant would be determined by Dana F. Cole on a fiscal-year basis.
Dana F. Cole set up the bookkeeping system for appellant when it was incorporated in 1948, has since had supervisory charge of the books, and has made computations and determined the gross margin realized by appellant from its business. There has been no change in his procedure in this regard. He has been a public accountant in Lincoln for about 37 years; maintains a place of business in the Stuart Building in Lincoln; has a staff of from 12 to 18 persons in his *326 employ; does public accounting consisting of auditing and setting up books; advises on all types of management problems, cost accounting, and supervision of cost accounting; determines gross margins of profit on sales; and does income tax work. He is professor of accounting at the University of Nebraska. He has taught accounting and tax work at the University since 1915 except as he was interrupted by military service. He has written and had published several books referred to as accounting and laboratory manuals. He is and has been accountant and auditor for appellant since its inception. His services for it have included designing the accounting plans, preparing and making interim and annual reports, preparing tax returns, making regular accounting audits prepared for annual statement purposes and for tax purposes, and aided in the organization and reorganization of companies. He has been and is familiar with the books of the company, the items that go into the sales made by it, the items that enter into the cost of the manufacturing done by the company, and the items constituting the gross margin resulting from its operations.
There were organized during the period commencing in May 1952 until September 30, 1953, by Mrs. Gradwohl and others, a partnership and five corporations. Mrs. Gradwohl was a member of the partnership and was president of each of the corporations. This was done for business reasons not important to be here reviewed and detailed. It is sufficient for this case that it was stipulated that for the purposes of this action appellee was permitted to consolidate the sales of these organizations, the sales of appellant, and all the gross profit thereof for each applicable year. Dana F. Cole has been the accountant for the partnership and the five corporations mentioned since the organization of each of them.
Appellee, by cross-examination of Dana F. Cole, introduced information which he had secured from the books of appellant as follows:
The gross sales of Terri Lee Doll Factory for the fiscal year ending June 30, 1953, were $26,528.09. The cost of producing the goods sold was $14,843.11. The margin of gross profit was 44.05 percent. The gross sales of this company from July 1, 1953, to March 31, 1954, were $39,800.93. The cost of producing the goods sold was $18,488.89. The percentage or margin of gross profit was 53.55 percent.
The gross sales of Ray Sheen Wig Corporation for the fiscal year ending August 31, 1953, were $82,940.20. The cost of the goods sold was $52,688.42. The margin of gross profit was 36.47 percent. The gross sales of this company from September 1, 1953, to March 31, 1954, were $42,418.80. The cost of the goods sold was $30,057.71. The margin of gross profit was 29.14 percent.
The gross sales of Connie Lynn Manufacturing Corporation for the fiscal year ending September 30, 1953, was $193,893.17. The cost of the goods sold was $139,749.15. The margin of gross profit was 27.92 percent. Gross sales of this corporation for the period of October 1, 1953, to March 31, 1954, were $75,548.09. The cost of the goods sold was $63,080.45. The margin of gross profit was 16.50 percent.
The gross sales of Terri Lee Sales Corporation for the period ending March 31, 1954, were $1,301,587.91. The cost of the goods sold was $1,033,099.53. The margin of gross profit was 20.63 percent.
The gross sales of Terri Lee Fashions for the period ending March 31, 1954, were $259,455.60. The cost of the goods sold was $175,758.02. The margin of gross profit was 32.25 percent.
The gross sales of Terri Lee of California, a partnership, for the fiscal year ending April 30, 1953, were $696,290.05. The cost of the goods sold was $460,067.99. The margin of gross profit was 33.93 percent. The gross sales of this company from May 1, 1953, to March 31, 1954, were $527,189.07. The cost of the goods sold was $442,947.46.
*327 The margin of gross profit was 15.98 percent.
Appellee also adopted and introduced in the record the determination of the accountant made from the books of appellant that the sales of Terri Lee, Inc., the appellant, for the fiscal year ending March 31, 1951, were $223,097 and its sales for the fiscal year ending March 31, 1952, were $557,504.56. Appellee did not place in the record the cost of the production of the goods sold by appellant during either of these periods as determined by the accountant from the books of appellant.
The accountant testified in detail concerning the cost of producing the goods sold by appellant during these periods as evidenced by and determined from its books. He said: The sales of appellant for the fiscal year ending March 31, 1951, were $223,097.34. The cost of the goods sold was $133,817.07. The gross margin was $89,280.27. The percentage of gross profit was 40.02 percent. He arrived at the cost of the goods sold in this manner: He added the beginning inventory, $16,570.03; the purchases, $81,096.05; and freight, $3,318.80. From the total of these, $100,984.88, he subtracted the ending inventory, $31,676.06, resulting in a balance of $69,308.82, to which he added labor expense of $44,696.53 for a total of $114,005.35. He added to the last amount depreciation on machinery and equipment, $2,693.46; packing and handling, $6,630.95; factory supplies, expenses, and direct supplies used in factory for repair, $5,044.01; and royalties, $5,443.30, or $19,811.72, and arrived at the sum of $133,817.07 as the cost of producing the goods sold during the fiscal year ending March 31, 1951. The sales of appellant for the fiscal year ending March 31, 1952, were $557,504.56. The cost of the goods sold was $412,443.56. The gross margin was $145,061 and the percentage of the margin was 26.02 percent. The accountant analyzed the procedure and method of arriving at the cost of the goods sold during this period as he did for the fiscal year ending March 31, 1951, and detailed above. This procedure and method were consistent and identical with the accounting procedure and method used by the accountant in the work done for appellant through the years of its existence and for the other companies referred to above since their organization. The same method and procedure were used by the accountant in arriving at the matters concerning which he testified in this case. The figures and amounts given by the accountant were the ones used and included in the annual income tax returns made by the companies.
There was a recovery in 1952 of insurance by appellant on account of the loss of its factory by fire December 15, 1951, and the propriety of including any part of it in the consideration of the margin or percentage of gross profits is disputed. It is not important to resolve this problem because if the proportionate part of the insurance money received which might be allocated to the gross margin of that year is added to it, the total would be $213,831.98 instead of $145,061 as determined by the accountant and the total percentage would thereby be increased to 34.14 percent instead of 26.02 percent.
The accountant testified that the sales of appellant for the fiscal year ending March 31, 1953, were $426,772.04, the cost of the goods sold was $332,187.87, the gross margin was $94,584.17, and the percentage was 22.16 percent. If the proportionate part of the insurance money received by appellant which might be allocated to the gross margin for the fiscal year ending March 31, 1953, as the accountant testified, is added to it, the total gross margin would be $126,472.09 instead of $94,584.17 and the percentage would thereby be increased to 27.57 instead of 22.16 percent.
The accountant consolidated the figures he had given of actual sales and actual gross margins of all the companies that had fiscal years ending in 1953 and thereby he found that the sales of the group amounted to $1,426,423.55, that the gross margin was $426,897.01, and the percentage of margin *328 was 29.93 percent. He made another consolidation of the total amount of all sales and the total of all gross margins he had given in his testimony for the entire period involved and this shows total sales of $2,522,080.45, a total gross margin of $534,039.47, and a percentage margin of 21.17 percent.
Appellee relies almost exclusively on his testimony as evidentiary basis for his conclusion that the conditions of the contract of employment have been complied with and that he is entitled to each of the bonuses specified in the contract. His testimony, insofar as it was intended to establish cost of production, margin of gross profit, and percentage of gross profit, is unsupported by any record, data, or corroboration. The facts elicited by appellee by cross-examination of Dana F. Cole, the accountant, on these subjects are contradictory of the testimony and contention of appellee. He boldly and positively asserts that he kept a record of the cost of goods sold and the sales. He did not exhibit or attempt to place in evidence such a record during the trial of the case. He was asked at the trial if he kept records of any kind of the production during the period between April 16 (1951) and December 15 (1951). His answer was: "I kept my own record in my wallet of the amount of business we shipped each day, and each day, if we would ship $6,000.00, I'd add it to the previous total for that particular month." This is the only mention in the record of this case that has been found of any claim that appellee made a record of any kind concerning any part of the business of appellant while he was employed by it. The evidence of appellee just quoted makes no mention of any record made or kept by him "of the cost of goods sold." He did not produce or offer any record or other data from which the "cost of goods sold," the margin of gross profit, or the percentage of margin of gross profit could be determined except the information given by the accountant referred to above.
The determination of the cost of production of manufactured goods, the gross margin, and the percentage of gross profit of the organization concerned would generally and logically be expected to be done from the books in which were recorded the facts of its day-to-day transactions and activities and according to usual and ordinary accounting practices. The record in this case shows quite clearly a definite understanding and contemplation of the parties to the contract that such a procedure should obtain in this instance. This is even recognized by appellee. In the consideration of the contemplated employment of him by appellant the facts were discussed that it had an accountant; that he had set up the bookkeeping system used by appellant; that he had supervised and surveyed the books of appellant from time to time; that he had done all of the accounting and auditing work for appellant; that he prepared all its financial statements, reports, and tax returns; and that he had made computations of its gross margin of profit and the percentage thereof. It was understood that the books of appellant would continue to be kept by the accountant as in the past, that the matter of determining the percentage of margin of profit of appellant was a matter of bookkeeping, and that appellee understood that it would be done in the future by Dana F. Cole, the accountant, as he had done it in the past. It is convincingly certain in this case that the parties did not contemplate that such matters as gross sales, gross margins of profit, or the percentage thereof of appellant should or could be decided on information and data less definite, certain, and satisfactory than the information and evidence contained in its books kept in the ordinary course of its business. The law requires the best evidence available. A claimant of substantial damages must, to prevail, furnish appropriate data to enable the trier of fact to find the amount of damages with reasonable certainty and exactness if the evidence of damages or the amount thereof are susceptible of definite *329 proof. They may not be established by conjecture, speculation, or doubtful proof.
The record of the financial operation of appellant was available in its books. Appellee examined the accountant of appellant very extensively as to information he had secured from the books. All the definite amounts of sales of goods by appellant put in the record by appellee were precisely the amounts the accountant disclosed in his testimony were recorded in and evidenced by the books of appellant on that subject but appellee elected to attempt to evade the additional information contained in the books of appellant and testified to by the accountant directed to the cost of the production of the goods sold, the margin of gross profit, and the percentage thereof. No objection has been made and no issue raised that the books and records of appellant presented at the trial through the accountant were not fair, accurate, complete, or a correct representation of the activities of appellant. The data furnished from the books, the integrity of which has not been challenged, cannot be overcome by conclusions, speculations, projections, or theorizing such as appellee has offered in this case. The matter of sale of goods by appellant, cost of producing the goods sold, the margin of gross profit, and the percentage of gross profit are matters that admit of reasonably exact calculation under the circumstances of this case.
Reference is made by appellee to the fact that he contends that the additional bonus of 2 percent was based on gross profits of appellant being figured at 50 percent of the gross sales. This basis is employed in this respect in his computations in this case. Proof of this contention does not appear in the record except in the unsupported statement of a conclusion by appellee. There is no evidence that it was a representation or obligation as to what the gross profit had been in the past or would be in the future. Appellee says the "margin of profit or percentage was 50% or less" for the fiscal year ending March 31, 1951. This is the character of uncertainty, speculation, and statements of conclusion upon which appellee rests his case. The uncontradicted evidence of the record is that the percentage of gross profit of appellant for the fiscal year ending March 31, 1951, was 40.02 percent. This was established by its books. The purpose and attempt of appellee, without any knowledge of the facts, are to make it appear that the percentage of gross profit for that year was 50 percent. The statement of Mrs. Gradwohl made before the end of that fiscal year does not clash with the fact that the actual percentage of gross profit was 40.02 percent. Appellee testified only that "she estimated the gross profit to be 50%" for the year ending March 31, 1951.
The testimony of appellee, in an attempt to establish compliance with conditions precedent of the contract of employment relative to the matter of bonus, was pointed to gross mark-up for an individual doll. It did not purport to cover gross margin on sales. The two are entirely different things. Gross margin on sales of manufactured goods must include overhead and selling expense of the year's operation. Appellee was asked what was the average profit on dolls and his answer was: "The gross profit on a doll was at least 50%." (Emphasis supplied.) Likewise, when he was asked how he computed gross margin of profit on sales, he said it is the cost of goods sold deducted from the gross sales but when the inquiry was made as to how he arrived at the cost of the goods sold he replied: "The cost of the goods sold includes the cost of the item, cost of material, and cost of the labor." (Emphasis supplied.) The method attempted by appellee violated recognized accounting procedure. The accountant testified that it is improper to consider each article by itself in ascertaining gross margin and that it requires a consideration of the over-all picture as between total sales and the arrived-at cost of the goods sold in order to determine gross margin. It is the actual result sustained *330 during a period of time, usually the fiscal year of the company.
Appellant had business interruption insurance when its factory was destroyed December 15, 1951. There was evidence that an adjustment of this was made on the basis of the payment of $73,000 to appellant. Appellee was asked if he could calculate the amount of gross profit that $73,000 received from the business interruption insurance would represent. He was permitted, over comprehensive and proper objections, to testify that the figure was $300,000. He was allowed to tesify that based on $300,000 worth of production that would have occurred in the balance of December, January, February, and March, the fiscal year ending March 31, 1952, the gross profits would be 50 percent of the gross sales or $150,000 and that 2 percent of that is $3,000 which is his bonus based on his agreement of 2 percent of the balance over and above the $500,000 figure. It hardly requires argument or authority to conclude that this was without foundation, was speculative, a conclusion, inadmissible, and prejudicial.
An inquiry was made of appellee if he could give the jury a picture of the production record of the company in California as of September 15, 1952. He answered by saying he would have to estimate; that he could not give an exact picture. He later said, presumably as an estimate but not as a fact that he knew, that 35,000 dolls were produced in California at the Apple Valley plant from May 15, 1952, to September 15, 1952, and this number at $8 a doll would be $280,000. He was asked what appellant charged for a doll and he said dolls ranged from $6 to $295. When asked what the gross profit on the dolls were he said it exceeded 50 percent. This evidence had no probative value as to what the sales were, what the cost of production of the goods was, or what the margin of gross profit or the percentage of gross profit was. Appellee discontinued his employment by appellant on September 15, 1952, and left its place of business. He did not return thereafter and had no contact with or knowledge of the affairs or activities of appellant. The only evidence of its operations thereafter is the testimony of the accountant and it in no way sustains any claim of appellee.
The proof of damages because of breach of a contract must be made with a reasonable degree of certainty. The damages, to be recoverable in such a case, must not be remote or speculative. There must be sufficient data produced by the claimant to permit a determination with reasonable certainty of the loss occasioned by the breach relied upon.
In Harper v. Young, 139 Neb. 624, 298 N.W. 342, 344, it is said: "The rule is that damages which are uncertain, contingent, conjectural, or speculative, cannot be made the basis of a recovery, whether applied to the existence, nature, or proximate cause thereof. 17 C.J. 753; 15 Am.Jur. 409 [sec. 19]; Williams v. Hines, 109 Neb. 11, 189 N.W. 623."
It is stated in Gallagher v. Vogel, 157 Neb. 670, 61 N.W.2d 245, 246: "In such an action the plaintiff will be called upon, in order to recover substantial damages, to furnish such data to enable the court, with a reasonable degree of certainty and exactness, to estimate the actual damages, and if he fails to do this he can recover only a nominal sum."
Restatement, Contracts, § 331, p. 515, states the rule: "Damages are recoverable for losses caused or for profits and other gains prevented by the breach only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty."
It is declared in Paxton & Gallagher v. Vadbonker, 1 Neb.Unof. 776, 96 N.W. 378: "Where damages are susceptible of actual computation, the amount *331 thereof should not be left to conjecture." See, also, Ricenbaw v. Kraus, 157 Neb. 723, 61 N.W.2d 350; Snyder v. Platte Valley Public Power & Irr. Dist., 144 Neb. 308, 13 N.W.2d 160, 160 A.L.R. 1154; O'Shea v. North American Hotel Co., 109 Neb. 317, 191 N.W. 321; 15 Am.Jur., Damages, § 20, p. 410; 25 C.J.S., Damages, § 28, p. 496. The evidence is insufficient to sustain a finding of compliance with the conditions precedent of the contract of employment relative to bonuses or to sustain recovery by appellee for any amount of bonus mentioned in the contract.
Appellee claimed recovery of damages on his first cause of action as follows: $12,350 for weekly salary from September 15, 1952, and interest thereon at legal rate; $10,000 for annual bonus for 2 years as provided in paragraph 2 of the contract and interest thereon at legal rate; $33,245.02 additional bonus as provided in paragraph 3 of the contract and interest on $3,760 of that amount at legal rate. Appellee claimed recovery on his second cause of action of $936.60. The verdict of the jury was for appellee in the gross amount of $43,443.40. The district court denied the motion of appellant for judgment notwithstanding the verdict or, in the alternative, for a new trial; vacated all of the verdict except $9,398.60, consisting of $8,462 on the first cause of action and $936.60 on the second cause of action; and entered judgment for appellee in the sum of $9,398.60 with interest from May 4, 1954, at legal rate. It is impossible to determine from the record the amount the jury allowed recovery on any of the items of the first cause of action or how much, if any, it allowed on the second cause of action. The action of the trial court was incorrect. The motion of appellant for a new trial should have been sustained.
The doctrine in this state in this regard is stated in Peacock v. J. L. Brandeis & Sons, 157 Neb. 514, 60 N.W.2d 643, 645: "Where it is clear that a verdict is excessive but there is no method by which the court can rationally ascertain the extent of the excess, a remittitur cannot be properly required since a remittitur would amount only to a substitution of the judgment of the court for that of the jury."
The cross-appeal of appellee should be and it is denied. The judgment should be and it is reversed and the cause is remanded to the district court of Lancaster County for further proceedings according to law.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4515790/ | Opinion issued March 12, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00008-CV
———————————
ALI YAZDCHI, Appellant
V.
MAKANSAM INC. D/B/A IDEAL TOWING, Appellee
On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Case No. 1133779
MEMORANDUM OPINION
Appellant, Ali Yazdchi, attempts to appeal the trial court’s order signed
October 2, 2019. We dismiss the appeal for lack of jurisdiction.
The Office of Court Administration website lists all vexatious litigants subject
to prefiling orders. See Office of Court Administration, List of Vexatious Litigants
Subject to Prefiling Order, https://www.txcourts.gov/judicial-data/vexatious-
litigants/ (list last updated March 4, 2020); see also TEX. CIV. PRAC. & REM. CODE
§ 11.104(b) (requiring office of court administration to maintain list and post list of
vexatious litigants on agency’s website). Appellant is one such litigant. This list
contains three pre-filing orders concerning appellant: (1) one signed on April 28,
2015 in Ali Yazdchi v. Mike Jones and Sam Adamo, Cause No. 2015-05013, in the
11th District Court of Harris County; (2) another signed on July 10, 2015, with an
amended order signed January 15, 2016, in Ali Yazdchi v. Wells Fargo Bank N.A.,
Cause No. 2015-11585 in the 215th District Court of Harris County; and (3) another
signed on July 15, 2015, in Ali Yazdchi v. BBVA Compass Bank, in Cause No. 2015-
05657, in the 151st District Court in Harris County. See Office of Court
Administration, List of Vexatious Litigants Subject to Pre-Filing Orders under
Section 11.101, Texas Civil Practice and Remedies Code, available at:
https://www.txcourts.gov/media/950960/Ali-Yazdchi-Case-No-2015-
05013.pdf;
https://www.txcourts.gov/media/1278447/Ali-Yazdchi-Case-No-2015-
11585-01_15_2016.pdf;
https://www.txcourts.gov/media/1029372/Ali-Yazdchi-Case-No-2015-
05657.pdf
2
See also Douglas v. Am. Title Co., 196 S.W.3d 876, 878 n.2 (Tex. App.—Houston
[1st Dist.] 2006, no pet.) (taking judicial notice of Harris County record of vexatious
litigants).
The Clerk of this Court may not file an appeal presented by a vexatious litigant
subject to a prefiling order unless (1) the litigant first obtains an order from the local
administrative judge permitting the filing or (2) the appeal is from a prefiling order
designating the person a vexatious litigant. See TEX. CIV. PRAC. & REM. CODE
§ 11.103(a), (d). Appellant’s appeal is not an appeal from the prefiling order
designating him a vexatious litigant. Thus, appellant may not proceed with his appeal
unless the local administrative judge permitted this filing.
This Court issued a notice to appellant advising him that we would dismiss
his appeal unless he responded within 10 days with proof that, before filing the
appeal, he had obtained an order from the local administrative judge permitting the
appeal. Appellant filed a response on February 14, 2020 that was also a Notice of
Representation and Appearance of counsel, advising this Court that he was now
represented by retained counsel, Byron Steele. Appellant asserted that Section
11.103 does not apply because under Section 11.002, the vexatious litigant chapter
is inapplicable to a licensed attorney.
Section 11.002 states that Chapter 11, concerning vexatious litigants, “does
not apply to an attorney licensed to practice law in this state unless the attorney
3
proceeds pro se.” TEX. CIV. PRAC. & REM. CODE § 11.002(a). However, at the time
appellant filed his notice of appeal he was not represented by counsel. Thus, Chapter
11 and Section 11.103 applied. Because appellant did not obtain an order from the
appropriate local administrative judge permitting the filing of his pro se notice of
appeal, we must dismiss the appeal. See TEX. CIV. PRAC. & REM. CODE § 11.103(a);
Kastner v. Fulco, No. 01–13–00100–CV, 2013 WL 6157392, at *1–2 (Tex. App.—
Houston [1st Dist.] Nov. 21, 2013, no pet.) (dismissing appeal after providing notice
of intent to dismiss because vexatious litigant appellant failed to provide copy of
order permitting filing of appeal); McCray v. Prudential Ins., No. 14–12–00860–
CV, 2012 WL 5586804, at *1 (Tex. App.—Houston [14th Dist.] Nov. 15, 2012, no
pet.) (same).
Accordingly, we dismiss the appeal. See TEX. R. APP. P. 42.3(a); 43.2(f). We
dismiss any pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Kelly and Goodman.
4 | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1609481/ | 270 F. Supp. 957 (1967)
Russell M. DOUGHTY, Plaintiff,
v.
NEBEL TOWING CO., Inc., Defendant.
Civ. A. No. 15710.
United States District Court E. D. Louisiana, New Orleans Division.
July 13, 1967.
*958 Jack C. Benjamin, New Orleans, La., for plaintiff.
Gerard T. Gelpi, New Orleans, La., for defendant; J. Barbee Winston, New Orleans, La., of counsel.
RUBIN, District Judge.
The plaintiff, who was employed by the defendant as a member of the crew of a tugboat, was injured when the tug sank. He sued for maintenance and cure and for damages resulting from the injuries suffered by him, setting forth claims under both the Jones Act and the general maritime law, and he demanded trial by jury. The defendant denied liability and also invoked the limitation of liability statute.[1] The plaintiff asserts that the issues arising from the plea for limitation of liability should be tried by the jury; the defendant contends that all issues arising out of this defense should be determined by the Court sitting in admiralty.
Limitation of liability was a doctrine of maritime law[2] based on the concept that the shipowner's exposure to loss should be limited to the value of his investment the ship.[3] After the concept was rejected by American Courts,[4] Congress, in 1851, adopted an act for the limitation of liability. The act did not provide expressly how the limitation of liability should be asserted procedurally, saying only that either the claimants or the vessel owner might "take the appropriate proceedings in any court" and that surrender of the vessel by the owner to a court appointed trustee for the claimants should "be deemed a sufficient compliance" with the Act.[5]
In the first of the limitation cases to come before the Supreme Court, Norwich & N. Y. Transportation Company v. Wright, 1871, 80 U.S. (13 Wall.) 104, 20 L. Ed. 585, the Court issued "Supplementary Rules of Practice in Admiralty" under which the owner could claim limitation of liability either by filing a petition *959 for limitation or by invoking the Limitation Act as a defense.[6] These rules were made a part of the statute by an amendment adopted in 1936.
There is of course no right to a trial by jury in admiralty proceedings, and when the Limitation Act is invoked by a separate proceeding the case is clearly one to be tried by the Admiralty Court.[7] The merger of Admiralty Rules with the Rules of Civil Procedure did not alter this for Rule 38(e) provides expressly that, "These rules shall not be construed to create a right to trial by jury of the issues in an admiralty or maritime claim * * *."
But when the shipowner elects to assert his right to limitation by way of defense to a claim with respect to which the plaintiff is entitled to a jury trial under the Jones Act[8] at least some of the issues relevant to the plaintiff's right to recover involve the same evidence and the same determinations as those involved in the demand for limitation of liability.
For example, the shipowner's right to limit his liability depends on his "privity or knowledge" of the cause of loss.[9] In the case of individual owners, "privity as used in the statute means some personal participation of the owner in the fault or negligence which caused or contributed to the loss or injury."[10] In cases involving corporate owners, "liability may not be limited under the statute where the negligence is that of an executive officer, manager, or superintendent whose scope of authority includes supervision over the phase of the business out of which the loss or injury occurred."[11]
But with respect to corporate owners, Gilmore and Black summarize, "Some duties appear to be `nondelegable,' which is a way of saying that the corporation will be conclusively presumed to have `privity or knowledge' of the breach, or, more directly, that the corporation will not be entitled to limit its liability in such a case no matter what the state of proof on actual privity or knowledge."[12] These non-delegable duties are "all facets of * * * the shipowner's duty to provide a seaworthy ship or at least to use due diligence to do so."[13] If the corporate owner fails to use due diligence to send out a seaworthy ship, one that is "tight, staunch, strong, and well and sufficiently tackled,"[14] and if, as a result, the ship sinks, there is obviously a breach of the duty to provide a seaworthy ship, and the owner will be denied limitation.[15]
Where, as here, the ship sank, the plaintiff will obviously seek to show that the sinking was due to lack of seaworthiness in the "primitive sense," that is "what any English-speaking person, *960 not a member of the admiralty bar, would expect it to mean today."[16] The issue as to seaworthiness is therefore virtually identical in determining whether the plaintiff is entitled to recover and whether the defendant has a right to limit liability.
The plaintiff has a right to trial by jury, not only of his claim under the Jones Act, but also of all of the counts properly included in his Jones Act suit. In Fitzgerald v. United States Lines Co., 1963, 374 U.S. 16, 83 S. Ct. 1646, 10 L. Ed. 2d 720, claims were made under the Jones Act, for unseaworthiness under the general maritime law, and for maintenance and cure. Justice Black's opinion said:
"Although remedies for negligence, unseaworthiness, and maintenance and cure have different origins and may on occasion call for application of slightly different principles and procedures, they nevertheless, when based on one unitary set of circumstances, serve the same purpose of indemnifying a seaman for damages caused by injury, depend in large part upon the same evidence, and involve some identical elements of recovery. Requiring a seaman to split up his lawsuit, submitting a part of it to a jury and part to a judge, unduly complicates and confuses a trial, creates difficulties in applying doctrines of res judicata and collateral estoppel, and can easily result in too much or too little recovery. * * * In the absence of some statutory or constitutional obstacle, an end should be put to such an unfortunate, outdated, and wasteful manner of trying these cases. * * *
"While this Court has held that the Seventh Amendment does not require jury trials in admiralty cases, neither that Amendment nor any other provision of the Constitution forbids them. Nor does any statute of Congress or Rule of Procedure, Civil or Admiralty, forbid jury trials in maritime cases. * * * Only one trier of fact should be used for the trial of what is essentially one lawsuit to settle one claim split conceptually into separate parts because of historical developments. And since Congress in the Jones Act has declared that the negligence part of the claim shall be tried by a jury, we would not be free, even if we wished, to require submission of all the claims to the judge alone. Therefore, the jury, a time-honored institution in our jurisprudence, is the only tribunal competent under the present congressional enactments to try all the claims. * * *"[17]
A question similar to the one presented here arises when an equitable counter-claim is asserted to a legal claim in which the plaintiff has demanded a jury trial. In such situations it has been held that the issues raised by the counter-claim should be submitted to the jury at the trial and should not be decided by the Court without a jury prior to trial.[18] It has been held that in a suit involving both legal and equitable issues, that is, so long as any legal cause is involved, the constitutional right to a jury trial controls, and a litigant cannot be denied a jury trial because the legal issues presented are incidental to equitable issues.[19]
*961 Neither Article III of the Constitution nor the Seventh Amendment require a trial by judge of suits in admiralty or equity. The constitutional guarantee is of a right to trial by jury in suits at common law.[20] One commentator has indicated the reasons why, in the event of doubt, the district court should require a jury trial:
"If a suit in equity is erroneously tried at law, the error may well be harmless. And even if the error is prejudicial, a new trial is unnecessary, since the cause may simply be remanded for the entry of findings of fact by the judge who presided over the jury trial. Therefore, both trial convenience and a due regard for the constitutional status of trial by jury seem to require that in doubtful cases discretion be exercised in favor of a jury."[21]
The United States Supreme Court has reviewed the problems involved and the procedure to be followed when the same case presents both legal and equitable claims. In Dairy Queen, Inc. v. Wood, 1962, 369 U.S. 469, 471, 82 S. Ct. 894, 896, 8 L. Ed. 2d 44, the Court said:
"The Federal Rules did not, however, purport to change the basic holding of Scott v. Neely that the right to trial by jury of legal claims must be preserved * * * Nonetheless, after the adoption of the Federal Rules, attempts were made indirectly to undercut that right by having federal courts in which cases involving both legal and equitable claims were filed decide the equitable claims first. The result of this procedure in those cases in which it was followed was that any issue common to both the legal and equitable claims was finally determined by the court and the party seeking trial by jury on the legal claim was deprived of that right as to these common issues. * * * The holding in Beacon Theatres was that where both legal and equitable issues are presented in a single case, `only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims.'
"* * * the legal claims involved in the action must be determined prior to any final court determination of respondents' equitable claims."
For "* * * the federal policy favoring jury trials is of historic and continuing strength."[22]
"[E]xcept under most imperative circumstances, a right to jury trial on legal issues may not be denied to a federal litigant on the ground that the case reached court only through equity, or because equitable rights are involved, or because the legal issues are `incidental' to the equitable issues, or because substantive equitable remedies are sought, or by the device of trying the equitable issues first."[23]
Since Scott v. Neely, 1891, 140 U.S. 106, 11 S. Ct. 712, 35 L. Ed. 358, it has been held that the right to a jury *962 trial "cannot be dispensed with, except by the assent of the parties entitled to it; nor can it be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of a legal action or during its pendency." "[W]henever, respecting any right violated, a court of law is competent to render a judgment affording a plain, adequate, and complete remedy, the party aggrieved must seek his remedy in such court, not only because the defendant has a constitutional right to a trial by jury, but because of the prohibition of the act of congress to pursue his remedy in such cases in a court of equity." And the Fifth Circuit of Appeals said in Thermo-Stitch, Inc. v. Chemi-Cord Processing Corp., 1961, 294 F.2d 486, 490:
"While the right to trial by jury is a constitutional one, no similar importance attaches to trial by court. Under the flexible procedures of the Federal Rules, a jury determines issues pertinent to an equitable cause without interruption or prejudice to the proceeding; the court decides whether equitable relief is called for on the basis of the jury's findings of fact. The mere presence of an equitable cause furnishes no justification for depriving a party to a legal action of his right to a jury trial.
"* * * It would make no difference if the equitable cause clearly out-weighed the legal cause so that the basic issue of the case taken as a whole is equitable. As long as any legal cause is involved the jury rights it creates control. * * *"
In this case there is at least one issue that is not involved in the plaintiff's suit but is involved in the limitation claim: the value of the vessel. However, the issue of "privity" is involved in the plaintiff's claim. Counsel for the plaintiff has been requested to indicate what other issues, if any, are involved both in the limitation proceeding and in the determination of the plaintiff's claim, but he has indicated no others. Therefore, in accordance with the decision in Dairy Queen, Inc. v. Wood, supra, it is ordered that plaintiff's motion for a jury trial of the issues raised by the defense of limitation set forth in the answer is granted, but to the following extent only: the issue pertaining to whether any act, matter or thing, loss, damage or forfeiture, was done or incurred for which the defendant is responsible and, if so, whether such act, matter or thing was done with the privity or knowledge of the defendant, being issues to be determined upon substantially the same evidence will be submitted to the jury.[24] In all other respects the motion is denied, and the other issues relative to the limitation of liability claimed by the defendant will be tried by the Court alone, as an Admiralty Court, after the jury arrives at a verdict.
NOTES
[1] 46 U.S.C. § 183.
[2] Norwich & New York Transportation Co. v. Wright, 1871, 80 U.S. (13 Wall) 104, 123, 20 L. Ed. 585; The Rebecca, D.C. Maine, 1831, 20 Fed.Cas. p. 373, Case No. 11,619. For a historical background of limitation of liability, see the opinion of Mr. Justice Brown in The Main v. Williams, 1894, 152 U.S. 122, 14 S. Ct. 486, 38 L. Ed. 381.
[3] Gilmore & Black, The Law of Admiralty, 1957, p. 663.
[4] Concurring opinion of Justice Woodbury in New Jersey Steam Navigation Co. v. Merchant's Bank, 1848, 47 U.S. (6 How.) 344, 434, 12 L. Ed. 465; The Rebecca, supra Note 2.
[5] 46 U.S.C. § 185, before amendment on June 5, 1936, by Public Law 662, Ch. 521, Sec. 3.
[6] The Scotland, 1882, 105 U.S. 24, 26 L. Ed. 1001; The Benefactor, 1880, 103 U.S. 239, 26 L. Ed. 351; California Yacht Club of Los Angeles v. Johnson, 9 Cir., 1933, 65 F.2d 245; The H. F. Dimock, S.D.N.Y., 1892, 52 F. 598.
[7] Norwich & N. Y. Transportation Co. v. Wright, supra, Note 2; Waring v. Clarke, 1847, 46 U.S. (5 How) 441, 460, 12 L. Ed. 226; Doucette v. Vincent, 1 Cir., 1952, 194 F.2d 834; The Eastland, 7 Cir., 1935, 78 F.2d 984.
[8] 46 U.S.C.A. § 688.
[9] 46 U.S.C. § 183.
[10] Coryell v. Phipps (The Seminole), 1943, 317 U.S. 406, 410, 63 S. Ct. 291, 293, 87 L. Ed. 363.
[11] Ibid.
[12] Gilmore & Black, The Law of Admiralty, 1957, p. 701.
[13] Id. at p. 702.
[14] Ibid. This is the language used in the customary charter-party warranty. See also the language in New England S.S. Co. v. Howard, 2 Cir., 1942, 130 F.2d 354.
[15] States Steamship Company v. United States, 9 Cir., 1957, 259 F.2d 458; Hudgins v. Gregory, 4 Cir., 1955, 219 F.2d 255; Griffith v. Gardner, 9 Cir., 1952, 196 F.2d 698; Petition of Midwest Towing Company, E.D.Ill., 1962, 203 F. Supp. 727, aff'd sub nom., Midwest Towing Company v. Anderson, 7 Cir., 1963, 317 F.2d 270.
[16] Gilmore & Black, supra Note 3, at p. 702.
[17] See Gvirtsman v. Western King, C.D. Cal., 1967, 263 F. Supp. 633. The question had been left open in Romero v. International Terminal Operating Co., 1959, 358 U.S. 354, 79 S. Ct. 468, 3 L. Ed. 2d 368, rehearing denied 359 U.S. 962, 79 S. Ct. 795, 3 L. Ed. 2d 769.
[18] Garman v. Metropolitan Life Insurance Company, 3 Cir., 1949, 175 F.2d 24.
[19] Shubin v. United States District Court, 9 Cir., 1963, 313 F.2d 250, cert. denied 373 U.S. 936, 83 S. Ct. 1539, 10 L. Ed. 2d 690. Compare Thermo-Stitch, Inc. v. Chemi-Cord Processing Corp., 5 Cir., 1961, 294 F.2d 486, which was an injunction suit. There was a counter-claim for damages for patent infringement and a trial by jury. The court held that a jury trial should have been ordered. "The mere presence of an equitable cause furnishes no justification of depriving a party to a legal action of his right to a jury trial."
The Court therefore concluded that the district judge should not have ordered an immediate and separate trial without a jury on the issues of validity and infringement of the defendant's patent.
[20] In suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved. * * * U.S. Constitution, Amendment VII; Great American Ins. Co. v. Johnson, 4 Cir., 1928, 25 F.2d 847; see also, Hart, "The Supreme Court 1958 Term," 73 Harvard L.Rev. 84, 186.
[21] Hart, "The Supreme Court 1958 Term," 73 Harvard L.Rev. 84, 191 (1959).
[22] Simler v. Conner, 1963, 372 U.S. 221, 222, 83 S. Ct. 609, 610, 9 L. Ed. 2d 691.
[23] DePinto v. Provident Security Life Insurance Co., 9 Cir., 1963, 323 F.2d 826, 835, cert. denied 376 U.S. 950, 84 S. Ct. 965, 11 L. Ed. 2d 969.
[24] The case of Murray v. N.Y. Central Railroad Company, S.C.N.Y., 1959, 171 F. Supp. 80, 2 Cir., 1961, 287 F.2d 152, 87 A.L.R. 2d 681, is consistent with this result. The question of whether the jury should hear the issues arising from a plea of limitation of liability was not presented in Murray. Rather, the question was whether the limitation should be denied when the general verdict of the jury made it impossible to say which theory of negligence the jury accepted, since one of the theories advanced at trial would preclude limitation of liability. The Court of Appeal held that the findings of the District Judge that the injury was caused by the other theory which would not preclude limitation was consistent with the jury's general verdict. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609588/ | 42 F.Supp. 235 (1941)
UNITED STATES
v.
ELIOTT HALL FARM et al.
Misc. 43-A.
District Court, D. New Jersey.
November 21, 1941.
*236 Charles M. Phillips, U. S. Atty., by Charles A. Stanziale, Asst. U. S. Atty., both of Trenton, N. J., for the Government.
Lloyd C. Riddle, of Jersey City, N.J., for claimant.
WALKER, District Judge.
The facts are:[1]
1. On and prior to May 21, 1940, Stephen E. Hall was the owner in fee simple of a 92 acre farm[2] located on the northerly side of a public road leading from New Bedford to Allaire, Wall Township, Monmouth County, New Jersey, together with the buildings thereon, consisting of a dwelling house, dairy barn, barn, machine shed, two silos, pump and milk house, etc. A private lane from 1200 to 1300 feet in length leads from the highway to the barnyard and buildings and crosses a small brook about one-half way from the main entrance. This lane is fenced and along it is a line of poles with wires for the transmission of electric current for the premises. Arriving in the barnyard, the residence is to the east or right and separated from the other buildings by a fence and the yard thereof must be entered through a gate.
2. On the south side of the public road leading from New Bedford to Allaire, Wall Township, Monmouth County, New Jersey, and about 400 feet westward from the entrance to the farm described in paragraph 1, were two bungalows owned by Mr. Hall and he resided in the most easterly one. The bungalow occupied by Mr. Hall was approximately 1,300 to 1,400 feet south of the shed attached to the horse barn and in which shed the still was located.
3. On or about April 6, 1940, a party by the name of Marsallo rented the horse barn and the shed attached thereto for $20 a month. He was in possession on May 21, 1940.
4. From May 18, 1940, to May 21, 1940, agents of the District Supervisor of the Alcohol Tax Unit, Bureau of Internal Revenue had the farm and more particularly the horse barn and the shed attached thereto under observation.
5. On May 19, 1940, the agents were on property adjoining the farm and they saw men about the farm and more particularly in the vicinity of the shed where the still was subsequently found, and through an open door leading into the said shed, they saw a portion of a still and some part of the vats and they smelled fermenting mash. On May 21, 1940, the agents were on property adjoining the Eliott Hall Farm and they saw a man standing in the doorway which led into the shed where the still was subsequently found and beyond him they could see something resembling a fermenter,[3] and they smelled the odor of hot fermenting mash.
6. On May 21, 1940, the said agents entered upon the farm and they entered the shed attached to the horse barn, where they found a distillery in operation, and they seized among other things, a 24 inch copper column, a 300 gallon still, a 75 horse-power steam boiler, a steam pump, 7 mash vats some 15 feet in diameter, approximately 30,000 gallons of mash and 180 gallons of finished alcohol.
7. An electric line supplied power to the electric motors used in connection with the still and to the lights in the vicinity of said still. It ran from said electric motors and lights out of the shed to the dairy barn and from there to the residence. An electric alarm system was also found, the bell was in the shed attached to the horse barn and the string for sounding the alarm was in the barn.
8. There was a pipe line for water running diagonally from a part of the still across the lane to a brook about 750 feet away.
*237 9. On May 21, 1940, the business of a distiller was being engaged in on the premises in question.
10. The seizure of the property was made without a search warrant.
11. Stephen E. Hall knowingly suffered or permitted the business of a distillery to be carried on upon his property.
12. On May 27, 1940, the government filed a libel in rem against the entire premises and on May 28, 1940, a monition returnable on June 21, 1940, was issued and all the property mentioned in the libel was attached by the United States Marshal.
13. On June 11, 1940, Stephen E. Hall filed his claim to the real estate only, and on June 15, 1940, his answer wherein he denied he knowingly suffered or permitted or connived in the violation charged, and further set up that his lands were not legally seized.
14. Before trial an amended libel was filed wherein the number of acres of land to be forfeited was reduced to approximately 25.16 acres. This acreage includes the lane to the farmhouse, the main farmhouse, the windmill, the milk shed, the dairy barn, two silos, the barn and a shed together with a small building occupied by a helper on the farm.
15. On October 22, 1940, Stephen E. Hall died. His death was suggested upon the record and Lloyd C. Riddle, executor and trustee of his last will and testament was substituted.
Discussion
It is argued that the forfeiture proceedings in the case at bar are criminal in nature, therefore, personal, and because they have been brought under a penal statute they abated and terminated with the death of Mr. Hall.
With but one exception all of the cases cited by the claimant in support of this contention deal with purely personal actions involving penalties against certain persons for certain illegal acts and do not involve forfeitures of property. Ex parte Schreiber and others[4] was a suit for penalties for infringement of a copyright, and the court held that the death of the party abated the action. United States v. Dunne[5] involved a criminal action in which the defendant was fined after a conviction. It was held that the entire sentence, including the fine, was abated by death. Fithian et al. v. St. Louis & S. F. Ry. Co.,[6] involved a cause of action for injuries resulting in death. United States v. Riley,[7] involved an action for the forfeiture of the value of goods which had been smuggled into the country under a penal statute and was not a proceeding to forfeit the goods themselves. United Copper Securities Co. v. Amalgamated Copper Co., et al.[8] and Caillouet et al. v. American Sugar Refining Co., et al.[9] were actions for three-fold damages under the Antitrust Act, 15 U.S.C.A. § 15.
Boyd et al., v. United States,[10] is the only case that bears on the issue. It deals with the seizure for forfeiture of certain imported goods for alleged failure to properly declare the same. The claimant was compelled by the lower court to produce certain of his own records which were used to obtain the forfeiture. The court held that the forfeiture proceedings under the particular statute involved were criminal in nature, that if an indictment had been presented against the claimant, upon conviction, the forfeiture could have been included in the judgment. The court thereupon set aside the forfeiture. The distinction that if an indictment had been presented against the claimant, the forfeiture could have been included in the conviction in the criminal case is extremely important and must be kept in mind, for this clearly made the proceedings criminal in nature and is entirely different from forfeiture proceedings under statutes where there must be a separate civil suit in rem in order to forfeit the res. This was recognized by the Supreme Court in Thomas S. Dobbins v. United States,[11] in which a forfeiture was obtained for failure to keep proper records at a distillery. In said case the court referred to matters where the judgment of forfeiture necessarily carried with it and as a part of the sentence, a conviction and judgment against the person for the crime committed, thereby making the proceeding criminal in character, but where the information in a case does not involve the *238 personal conviction of the wrongdoer for the offense charged, the remedy of forfeiture claimed is plainly one of a civil nature as the conviction of the wrongdoer must be obtained, if at all, in another and wholly independent proceeding. The Supreme Court repeated what Judge Story said about forfeitures not attaching at common law in many cases of felony where the proceeding was in rem, until the offender was convicted, and that said rule was never applied to seizures and forfeitures created by statute in rem cognizable on the revenue side of the Exchequer Court for the reason that the thing in such a case is primarily considered as the offender, or rather that the offense is attached primarily to the thing whether the offense be malum prohibitum or malum in se.
It has been held directly by the Supreme Court that: "A forfeiture proceeding under Rev.St. § 3257 or § 3281[12] is in rem. It is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient."[13]
The forfeiture which the government seeks to establish in this matter is not personal. It does not depend on the conviction of Stephen E. Hall or any other person and the proceedings do not abate by reason of the death of Stephen E. Hall.
The evidence offered by the government and uncontradicted by the claimant discloses that on May 18, 1940, agents of the Alcohol Tax Unit, Bureau of Internal Revenue placed themselves in the woods directly behind the rye field on the Eliott Hall Farm and from the place selected they saw activity about the shed attached to the horse barn, and they smelled the odor of mash.
On May 19, 1940, from property to the west of the rye field the agents were able to see men moving about the farm and through an open doorway leading into the shed attached to the horse barn they saw part of a still and they smelled the odor of mash. On May 21, 1940, from the same property they saw a man in the doorway of the shed attached to the horse barn and through the doorway they could see something resembling a fermenter, and they smelled the odor of hot fermenting mash.
The man in the doorway was the first person they had seen in the shed where the law was being violated, and in an attempt to arrest him they entered upon the Eliott Hall Farm from different directions. When the agents arrived at the shed he had disappeared and could not be found. The attempt to arrest said man even though it did not meet with success because he escaped, is sufficient to validate the search. If they had succeeded in arresting him the search could have been made at the time of the arrest and as an incident thereto.[14] The fact that he eluded arrest should not make the seizure illegal and a violation of the Fourth Amendment to the Constitution of these United States.
The observations which the agents made on May 19 and 21, 1940, and the fact that they saw part of a still, vats and smelled the odor of hot fermenting mash was sufficient to justify reasonably prudent persons in believing that a crime was being committed in and upon the Eliott Hall Farm and to establish probable cause for the action taken.[15]
In ruling on the legality of the search the court recognizes the right in Mr. Hall as owner to question same. While the protection granted by the Fourth Amendment to the Constitution is purely *239 personal and only the person whose constitutional rights have been violated can complain, Mr. Hall, as owner, had a sufficient proprietary interest upon which to question the search and seizure.[16]
According to Mr. Shubert, the manager of Eliott Hall Farm, Mr. Hall was the one who told him to move the machinery out of the shed attached to the horse barn because he had rented it for storage purposes, and later when he saw a hole 40 feet from the west of the cow barn and about 100 feet from the pump house, he reported this to Mr. Hall, who admitted that he knew all about it, and when he smelled an odor which persisted over many days and was more noticeable on rainy days, and commented thereon to Mr. Hall, Mr. Hall replied "I'll bet it don't stink as bad as that old apple used to." This evidence has not been successfully challenged nor discredited and it establishes that Mr. Hall knowingly suffered or permitted the business of a distillery to be carried on upon his property.
The only question which remains is: How much of the Eliott Hall Farm has the government connected with the distillery operation?[17] The government has established that the private lane from 1,200 to 1,300 feet in length leading from the public road to the barnyard was used for ingress and egress to the shed where the still was located, that said shed and the horse barn to which it was attached and the sheds at the westerly end of said horse barn and running therefrom in a southerly direction housed the still and parts and things used in connection with the still and the pipe line for water ran from said sheds and barn approximately 750 feet to a point in the brook for the purposes of supplying water to the still and the aforesaid lane, sheds, barn and land adjacent thereto, and land over which and through which the pipe line travelled were connected with or related to the distillery operation.
Conclusion
A distillery was being operated on the Eliott Hall Farm on May 21, 1940. Proof that the required bond had been given was not offered during the trial and it is found that Section 2833[18] was being violated on the date and at the time and place in question.
The private lane (Exhibits C-1, C-2, and C-3), barn (Exhibit C-5), shed attached to the barn (Exhibit C-9), sheds attached to the barn at the westerly end thereof and running southerly therefrom (Exhibit C-6), and land adjacent thereto, and land over which and through which the pipe line for water travelled from the sheds shown in Exhibit C-6 to a point approximately 750 feet therefrom, are forfeited in accordance with the prayer in the amended libel.
NOTES
[1] Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.A. following Section 723c.
[2] Hereinafter identified as the Eliott Hall Farm.
[3] The term given to a fermenting-vat.
[4] 110 U.S. 76, 3 S.Ct. 423, 28 L.Ed. 65.
[5] 9 Cir., 173 F. 254, 19 Ann.Cas. 1145.
[6] 8 Cir., 188 F. 842.
[7] D.C., 104 F. 275.
[8] 2 Cir., 232 F. 574.
[9] D.C., 250 F. 639.
[10] 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.
[11] 96 U.S. 395, 24 L.Ed. 637.
[12] 26 U.S.C.A. Int.Rev.Code, §§ 2806, 2833. Section 2833 is derived from R.S. § 3281, which was in nature of a revision of Act July 20, 1868, c. 186, § 44, 15 Stat. 142, as amended by Acts Feb. 8, 1875, c. 36, § 16, 18 Stat. 310; June 26, 1936, c. 830, § 314(b), Tit. III, 49 Stat. 1949.
[13] Waterloo Distilling Corporation et al. v. United States, 282 U.S. 577, at page 581, 51 S.Ct. 282, at page 284, 75 L.Ed. 558. See, also, J. W. Goldsmith Jr.-Grant Co. v. United States, 254 U. S. 505, 41 S.Ct. 189, 65 L.Ed. 376; Norbriga v. United States, 1 Cir., 55 F.2d 146; United States v. Stowell, 133 U. S. 1, 10 S.Ct. 244, 33 L.Ed. 555; United States v. Five Boxes of Asaftida, etc., D.C., 181 F. 561; United States v. One 1940 Packard Coupe, D.C., 36 F.Supp. 788.
[14] See: 34 Harvard Law Review 361 at 377. See also, Kelley v. United States, 8 Cir., 61 F.2d 843, 86 A.L.R. 338; Rocchia v. United States, 9 Cir., 78 F.2d 966.
[15] Whitcombe et al. v. United States, 3 Cir., 90 F.2d 290.
[16] See Mello et al. v. United States, 3 Cir., 66 F.2d 135.
[17] United States v. About 151.682 Acres of Land in McHenry County, Ill., 7 Cir., 99 F.2d 716.
[18] 26 U.S.C.A. Int.Rev.Code § 2833. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609460/ | 270 F. Supp. 619 (1967)
AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, American Motorists Insurance Company, Federal Mutual Insurance Company and Lumbermens Mutual Casualty Company, Plaintiffs,
v.
AMERICAN BROADCASTING-PARAMOUNT THEATRES, INC., Defendant.
No. 63 Civ. 1492.
United States District Court S. D. New York.
May 31, 1967.
*620 Lord, Day & Lord, New York City, John W. Castles III, Muriel Bell, William E. McCurdy, Jr., New York City, of counsel, for plaintiffs.
Hawkins, Delafield & Wood, New York City, Clarence Fried, Robert G. Desmond, New York City, of counsel, for defendant.
OPINION
TENNEY, District Judge.
Plaintiffs, widely known as the Kemper Insurance Companies (hereinafter collectively referred to as "Kemper"), instituted this action against the defendant, American Broadcasting-Paramount Theatres, Inc. (hereinafter referred to as "ABC"): to obtain an adjudication that a contract between Kemper and ABC, dated August 15, 1962, for the sponsorship of the program "Evening *621 Report" over the ABC network is illegal and unenforceable under Section 1 of the Sherman Anti-Trust Act, 26 Stat. 209 (1890), as amended, 15 U.S.C. § 1 (1964); to obtain a permanent injunction staying ABC from prosecuting an action in the New York State Court to recover damages for Kemper's cancellation of the contract (28 U.S.C. § 2283 (1964)); and for an award of treble damages (38 Stat. 731 (1914), 15 U.S.C. § 15 (1964)), and such other relief as may be appropriate.
On June 20, 1963, ABC moved, under Rule 12(b) of the Federal Rules of Civil Procedure, to dismiss Kemper's complaint, and, in the alternative, under Rule 12(f), to strike therefrom the allegations pertaining: to ABC's control over the broadcast time of its affiliates; to ABC's State Court suit; and to Kemper's request for a permanent injunction against said suit.
On August 14, 1963, this Court (per Cooper, J.) denied ABC's motions to dismiss and to strike. American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 221 F. Supp. 848 (S.D.N.Y.1963).[1] Thereafter, on August 26, 1963, ABC answered the complaint. Subsequent to that time, extensive discovery has been pursued by both parties in the form of interrogatories, depositions and documentary evidence submitted herewith.
On September 4, 1964, the case at bar was assigned to me for all purposes by then Chief Judge Ryan pursuant to Rule 2 of the General Rules of this district. No jury demand has been made.
The matter is presently before this Court on a motion by Kemper for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the grounds that the pleadings and papers filed in support of such motion demonstrate that there is no genuine issue as to any material fact, and that plaintiff is entitled to judgment as a matter of law. Defendant ABC, while alleging in opposition to Kemper's motion that there are triable issues of fact, has itself cross-moved for summary judgment.[2] Certain facts would appear not to be disputed, and will be set forth hereinafter.
In 1962, the year during which the contract at issue was negotiated and consummated, there were approximately 556 TV stations in this country and practically the entire gross income of the TV industry, which totaled one and one-half billion dollars in that year, was derived from the sale to advertisers of the broadcast time of these stations.
There are three major networks in the United States, of which ABC is one, having operated its network for almost fifteen years, and in 1962-63 ABC had approximately 260 stations affiliated with it. In addition to its affiliates, ABC is itself owner and licensee of five *622 TV stations.[3] In 1962, ABC's gross income from the sale of TV and radio time and programs, less discounts, rebates and commissions to advertising agencies, totaled $174,523,295.00. In that same year, the three networks (NBC, CBS and ABC), plus their fifteen owned and operated stations, reported total revenues of $754.2 million, accounting for 50.7 per cent of the industry total, and profits of $111.4 million, representing 35.8 per cent of the industry total. In 1962, 73 per cent of the total broadcasting revenues of TV stations in this country were derived from the sale of broadcast time, and the balance from the sale of talent and program materials. Of the sales of broadcast time, 40 per cent were network sales, 41 per cent were national spot sales, and 19 per cent were sales to local advertisers.
Programs are produced by the TV stations, by independent producers, or by a network. Where the program is not a network program, the station is free to sell the broadcast time on that program directly to advertisers, such direct sales being made in either the national, regional, or local markets.[4] In the national and regional markets, each station is represented by an agency in the principal TV centers of the country, specifically, New York and Chicago. These agencies are known as national spot representatives, and sales of broadcast time made directly by a TV station to national or regional advertisers are known as "national spot sales". Whenever an advertiser buys on the national spot market, he buys time on such stations as he desires to deal with, for the advertiser is dealing directly with the individual station through its national spot representative.[5] Sales to local advertisers made directly by a TV station are known *623 as sales on the "local market" and in 1962 totaled $242.5 million.
As stated above, networks also produce programs which are made available to the TV stations. In April of 1961, ABC announced its intention to produce a new nightly news program entitled "Evening Report", which it offered for clearance (acceptance) on a five-nights-a-week basis only. Prior to the fall of 1961, "Evening Report" was broadcast without any network sponsor.
By August of 1961 there was a "going lineup" of 95 stations which had cleared the program for broadcast beginning in September 1961, of which stations approximately 90 per cent were primary affiliates having their major network alliance with ABC, the balance or secondary affiliates being for the most part stations which had a primary affiliation with another network.[6] The primary affiliates of ABC cleared the "Evening Report" program series in accordance with the terms of ABC's standard form of affiliation agreement, under which such primary stations were given first call on ABC network programming in their areas, and, accordingly, were first offered the ABC programs or program series for clearance. Under the affiliation agreements, certain time was "optioned" to ABC by the affiliates. "Evening Report", however was not broadcast during the option time hours set forth in the agreements and thus each affiliate had the right to accept or reject the program. Upon the affiliates' clearing the program, the entire commercial time connected with that program became subject to ABC's use and control. When the program or program series with a network sponsor was first offered to an affiliate for clearance, the station could not accept the program and reject the sponsor provided by ABC. Also, if at the time of the initial clearance of a program series, ABC had secured sponsorship for only a part of the commercial time, the primary affiliate would nevertheless have had to accept the entire program series, including the unsponsored portion for which the station received no payment. The station was to carry the entire program series in accordance with the affiliation agreement, including portions unsold to a network sponsor, subject to release by ABC to the affiliate of all or part of the unsold time. The affiliates could not make any commercial use of this time by direct sale to advertisers unless the network permitted it by releasing the time to them. In 1962, ABC did release such unsold portions of program series to the affiliates for direct sale by them, but only with the proviso that such time was subject to recapture by the network upon three weeks' notice. This release of the commercial time which the network had been unable to sell allowed the station to sell that time directly to local advertisers or on the national "spot market" without compensation to the network.
Thus, the clearance of a program or program series by an affiliate meant that it had to carry the entire program or series, including portions where there was no network sponsor. And although the affiliate was not compensated by the network for the commercial time for which there was no network sponsor, the affiliate could not sell that time directly to advertisers unless it were released by the network. Finally, even when released, any sales would have to be subject to the network's right to recapture the time and oust the advertiser *624 to whom the station had made its direct sale.
The affiliates which had cleared the "Evening Report" series were compensated by those segments of the series actually sponsored by a network advertiser. The method of compensating ABC's primary affiliates for the use of this time was based on a formula whereby ABC first fixed a network hourly station rate for each affiliate, which was the rate set forth in ABC's published rate card. Each month an average unit hourly rate was computed by dividing the total dollar value of all network programs carried during that period at such rate, by the number of unit hours carried. This average hourly rate was then multiplied by the number of unit hours in excess of 22, so as to afford ABC 22 unit free hours of time, and the affiliates were paid as compensation 30 per cent of this total figure. The effect of this arrangement was that the rate of compensation to an affiliate increased as the number of hours of network programming per month in excess of 22 unit hours increased. With respect to its secondary affiliates, no 22 hours of "free time" was supplied to ABC, and, instead, those stations received a straight 30 per cent of the total amount billed to the advertiser at network station rates.
In April of 1961, after the "Evening Report" program series became available, ABC prepared, in accordance with its regular practice, offering sheets regarding the program. The offering sheet of April 27, 1961 offered the program series in one-quarter hour segments for each of 5 days in each week and for periods of 13 or 26 weeks. The approximate gross was set at $34,500.00, based on rate card time charges, as to which "Special Discounts" were allowed, depending on the number of segments purchased. This was only an approximation, presumably based on a network of 110 stations, the figure used in the offering sheet to project estimated audience and efficiency. The discounted figure represented the time charge, to which was added a program charge of $5,750.00 ($5,000 plus 15 per cent commission) and a networking charge of $500.00. In other words, the approximate cost to the sponsor was obtained by subtracting the discount from the approximate gross and adding to that figure the program charge and the networking charge. Thus, it offered "Evening Report" at a 35 per cent discount from gross rate card time charges for the purchase of two (2) one-quarter hour segments over 26 weeks, plus program and network charges, or $28,675.00 per segment, and at a 30 per cent discount plus program and network charges for the purchase of one (1) one-quarter hour segment over the same period, or $30,400.00 per segment.
The offering sheet of August 21, 1961 offered similar discounts and program and network charges. However, gross rate card time charges were based on the rate card charges of 95 cleared stations (identified in the offering sheet) which amounted to $27,926.00 plus a contingency allowance for additional stations and rate increases of $4,074.00 or a total gross rate charge of $32,000.00. Thus, it offered the program series for $27,050.00 per segment for two (2) one-quarter hour segments and for $28,650.00 per segment for one (1) one-quarter hour segment over the 26-week period.
However, it would appear that it was ABC's practice to negotiate with advertisers a final price at a further discount from the offering sheet prices, and that television network prices are negotiated prices. There was also testimony that it was ABC's practice to offer time to individual customers at less than the figure in the offering sheet and then negotiate from that figure to a lower final selling price.
The offering sheet of October 3, 1961 offered similar discounts and network charges but the program price was increased to $6,210.00. The gross rate card time charges were based on the rate card charges of 100 stations of $29,141.00 plus a contingency allowance for additional stations and rate increases of *625 $859.00 or a total gross rate charge of $30,000.00. It offered the program series for $26,210.00 per segment for two (2) one-quarter hour segments and for $27,710.00 per segment for one (1) one-quarter hour segment over the 26-week period. The special discounts offered were the same as in the prior offerings.
The final offering sheet relevant to the present controversy was issued by ABC on June 13, 1962, approximately two months before the contract between ABC and Kemper was executed. This document lists a lineup of 100 cleared stations and a total price per segment of $36,250, consisting of an approximate gross time charge of $30,000 plus the program price of $5,750 and network charge of $500. However, no provision was made for any special discounts; the offering sheet merely stated that the gross time charges were "subject to discounts as provided by ABC's then current rate card." The offering sheet listed sponsorship by "American Tobacco, Kemper, Plywood, Schick and Squibb."
The contract executed on August 15, 1962 was the product of a lengthy series of negotiations between Kemper's advertising agency, Clinton E. Frank, Inc. (hereinafter referred to as the "Frank Agency") and ABC. Much with respect to these negotiations is not disputed or is documentary in nature. It is Kemper's claim that in the course of negotiations, ABC conditioned the sale of sponsorship of "Evening Report" to Kemper upon Kemper's purchase of time to broadcast "Evening Report" over 35 of ABC's affiliated stations serving market areas in which Kemper did not wish to advertise, advancing the legal theory that ABC's actions constituted an unreasonable restraint of trade within the meaning of Section 1 of the Sherman Anti-Trust Act. In the light of such claim, it is helpful to examine these negotiations from their inception until their culmination in the execution on August 15, 1962 of the agreement between ABC and Kemper whereby the latter agreed to sponsor "Evening Report" one night per week over a 26-week period, beginning October 17, 1962.
It is not disputed that on January 25, 1962, Buckingham W. Gunn, Senior Vice President and Director of Broadcasting Services of the Frank Agency, had a meeting at ABC's offices in New York with Edgar Scherick, who at that time was ABC's Vice President in charge of network sales. Mr. Scherick offered sponsorship of "Evening Report" to Kemper at a package price of $22,000 per one-quarter hour segment for two segments per week over a 26-week period. Apparently no commitment was made at this meeting other than Gunn's statement that he would report the offer to Kemper. On February 8, 1962, John Beebe, a TV account executive in ABC's Chicago office, wrote Gunn "that probably ABC would be willing to go along with a special package price of roughly $20,000 a program or $100,000 a week * * * on the assumption that Kemper Insurance could use 2½ minutes a day 5 days a week." Mr. Beebe again wrote Mr. Gunn on March 23, 1962, referring to the $22,000 per segment price quoted by Mr. Scherick and stating: "As I pointed out to you yesterday, rate card per quarter-hour comes in at $36,250. At the special package price offered to you this would be $66,000 a week for 13 weeks, for a total cost of $858,000 for the 13 weeks beginning in October."[7] On the same day, William C. Gillogly, the head of ABC's Chicago office, sent a memorandum to Mr. Scherick in New York, confirming an earlier telephone conversation on that date and reminding him that he had quoted to Gunn the $22,000 price per quarter-hour segment for two segments a week over a 26-week period. "This is roughly 50% plus discount on time. Buck [Buckingham W. *626 Gunn] is actually going with this figure, but you are going to recheck whether its okay." Mr. Scherick's reply, by wire dated March 26, 1962, stated: "Quote to Gunn Kemper Insurance for Early News okay." Thereafter, on March 28, 1962, Mr. Beebe wrote Mr. Gunn enclosing "all of the available material we have here on our EARLY NEWS." One of the enclosures may have been a list of stations carrying "Evening Report" as of February 1962, in which 99 stations were listed. In any event, it is not disputed that Mr. Gunn had received such a list by the early part of April 1962. There is testimony to the effect that when Mr. Gunn received the list of stations he instructed his secretary, Miss Flannery, to "check Mr. De Mark and give him the list of these stations" (Gunn Deposition of Nov. 1, 1963 at 40) and that a copy was sent to Mr. De Mark on April 16, 1962. Mr. De Mark had been Advertising Manager of Kemper since 1960. There is further testimony that upon seeing the list of stations, Mr. De Mark indicated to Mr. Gunn over the telephone that there were at least 20 stations which would not be suitable,[8] that Mr. Gunn's secretary, Miss Flannery, got on the telephone with Mr. De Mark and marked down on a copy of the February line-up those stations which Kemper did not want. In any event, on or before the following day, April 17, 1962, Mr. Gunn prepared a brochure dated that date, entitled "1962 Television Recommendation for Kemper Insurance Group, ABC-TV Evening Report," referred to herein as the "Silver Report". It is stated on page 2 of this report:
At this precise moment the ABC EVENING REPORT can be bought in a number of ways. Squibb, who has sponsored 3 segments a week this year, will probably return in the fall. (American Tobacco, Block Drug, and Schick are other interested advertisers.) According to ABC-TV's rate card, a one-segment-a-week sponsor pays a higher rate-per-segment than a two-a-week sponsor, who in turn pays a higher rate than a three-a-week sponsor, and so on. The rate card per quarter-hour segment calls for $36,250 per segment, time and program, commissionable. However, when the agency went to New York to discuss programming for Kemper with the network's chief executives, we were able to get a special reduced per-segment price of $22,000, time and program, commissionable. This represents a discount of approximately 40 percent.
Four sponsorship plans were outlined on the same page: (a) two ¼ hour segments per week over a 26-week period at $22,000 per segment; (b) two segments one week, one segment the next week, over a 26-week period at $22,000 per segment; (c) one segment a week over a 26-week period for an estimated $25,000 per segment; and (d) one segment a week over a 13-week period for an estimated $27,500 per segment (to combine with All-Star Golf, also sponsored by Kemper). The Frank Agency recommended (b), namely, the purchase of sponsorship "for 26 weeks on the rotation of two segments one week, one segment the next" at $22,000 per segment. Attached to the Silver Report was a new list for the coming fall, identifying 99 stations that had already cleared, and an additional 28 stations desired by Kemper which had not cleared. Of these 28 stations, 15 were listed as "pending" and 13 as "non-clear". As stated at page 3 of the Report, "It is to be hoped that sponsorship by Kemper and a continuing effort by ABC and the agency will move the `pending' stations to the `cleared' list by fall and perhaps, altho [sic] it is doubtful, some of the `non-clear' stations as well." Although no mention of unwanted stations is contained in the Report itself, on the list of stations attached thereto 20 stations are marked with asterisks as being "markets Kemper does not want", presumably based on the telephone conversation *627 between Mr. De Mark, Mr. Gunn and Miss Flannery on the prior day. There is testimony to the effect that on April 17, 1962, a meeting occurred at the Kemper offices between Messrs. Gillogly and Beebe of ABC and Messrs. De Mark and Gunn of Kemper, and Mr. Norris C. Flanagin, one of the senior executives of Kemper. Prior to going over to Mr. Flanagin's office, Mr. Gunn, together with another Frank agent, Mr. Bowman Kreer, first met with Messrs. Gillogly and Beebe, at which time Mr. Gillogly read the "Silver Report". There is some conflict as to just what occurred at this meeting, although it seems clear that all parties were aware that Kemper did not want all of the then-going lineup of 99 stations. The Kemper representatives argue the proposition was an all-or-nothing one. ABC states, however, that Mr. Gillogly received the definite impression from Mr. De Mark that Kemper would proceed on the basis of the $22,000 package price and the lineup upon which said package price was based, and that Mr. De Mark was going to take the matter up with Mr. James S. Kemper, Sr., who was then out of the City. In any event, on the following day, April 18, 1962, Mr. De Mark sent a memorandum to Mr. Kemper in Palm Springs. This memorandum refers to the fact that Kemper and ABC had been negotiating with respect to "Evening Report" and it states, in part:
In view of the fact that there are a number of important markets which are not now carrying the show and because of the 5:30 time period for the show in Chicago, we are recommending that we order the show on the basis of two times one week and one time the next week on an alternating week basis for a 26 week period contingent upon the following:
include a list of stations that "must" carry the show and a change of time in Chicago. [The memorandum further stated that the cost would be approximately $950,000-$975,000, 39 segments at $22,000 per segment plus $3,000 for all of the "must" stations would be $975,000.]
reserve the right to cut back to a one time per week basis at a cost of $24,000 per program with the cost of the additional stations to be added at the same pro-rated discount price. [The memorandum further stated that the cost would be $624,000 plus the additional stations. $24,000 × 26 is $624,000.]
It is significant that no statement was made by Mr. De Mark in his memorandum to Mr. Kemper regarding stations which Kemper did not want. On April 23, 1962, De Mark and Kemper discussed over the telephone Mr. De Mark's recommendation in his memorandum of April 18th, and Mr. Kemper approved the recommendation for sponsorship of Evening Report. Thereafter, on April 25, Mr. Gillogly telegraphed Mr. Slocum Chapin, his superior at ABC in New York, confirming that they had a "verbal order from Clinton Frank on behalf of Kemper Insurance for 39 quarter hours over 26 weeks of the Evening Report starting in October" and to "expect written order shortly." There is some conflict in the testimony as to who informed Mr. Gillogly of the "verbal order". Mr. Gillogly says it was Mr. Gunn, but the latter denies it. However, on the same date as Mr. Gillogly's telegram, Mr. Kemper wrote Mr. James C. Hagerty, a Vice President of ABC, stating that Kemper had "several problems, one of which is the time your show is on in Chicago; another the fact that your people have not been able to clear with a number of markets important to us, for example, Charlotte, North Carolina, and Rochester, New York." Again, no problem as to unwanted stations is mentioned. This letter would appear to have been written in response to the specific statement by Mr. De Mark in his memorandum of April 18th, that "if you approve our giving an order to ABC on the basis as outlined above, we would most appreciate your writing Mr. Hagerty calling attention to our problem *628 with specific reference to the poor time the show is carried in Chicago * * *."
A meeting was called at the Frank Agency for April 27th, for the purpose of resolving any remaining problems and preparing a draft order letter. Mr. Gillogly attended for ABC, together with Mr. Arne Nordmark, Sales Service Manager for ABC in Chicago, and Mr. De Mark, Mr. Gunn and Mr. Trude represented Kemper. Mr. Gillogly testified that Mr. Trude of the Frank Agency agreed to the ABC lineup at this meeting, although he also testified that up to the end of April 1962 he could not say that anyone had told him that Kemper had agreed to sponsor the "Evening Report" on any specified list of stations. According to Mr. Gillogly, "basically, they were agreeable to taking the ABC lineup, but what was really vital and critical to them was the additional fifteen markets which they felt they should have in order to make it an optimum advertising basis and cover as many of their key offices in the country in terms of doing business." Gillogly Deposition of Nov. 1, 1963, at 77. It was agreed at the meeting that although Kemper would order 39 segments of "Evening Report" over a 26-week period, it would have the right to reduce its order to one segment per week over the same period if within thirty days after the contract ABC could not clear all of the Kemper key markets. The price in the latter event for the 26 segments was to be $24,000 per segment rather than $22,000 for the 39 segments. However, once again there is disagreement as to the basic lineup exclusive of the additional stations desired by Kemper. ABC contends that the basic lineup for which the $22,000 and $24,000 figures were set was the then-going lineup, that Kemper agreed to pay a maximum of $3,000 for 15 of the 28 additional stations desired by Kemper, and that ABC agreed to furnish the other 13 at no charge.
On April 20, 1962, a week before the meeting just referred to, a representative of ABC's sales service department in New York sent to Miss Mary Alice Crisafulli, a "time-buyer" employed by the Frank Agency in Chicago, a copy of the current ABC network rate card. On the basis of this rate card, she made certain computations bearing a notation that they were prepared on April 27th, possibly for use at the meeting on that date. These computations reflected the time cost net of the then-lineup of 99 stations at $15,750.00, from which was deducted the 32 stations which Kemper did not want, for which the time cost net was figured at $2,871.23 (computed at a 47½ per cent discount, the same as that granted on the then-lineup when the $22,000 figure was quoted) and to which was added the net time cost of 15 stations then pending and which Kemper desired figured at $3,166.00 (again at the same discount) plus 5 "must" stations (similarly discounted) at $1,218.00, and 8 additional non-cleared stations (similarly discounted) at $1,204.88 or a total for the "then wanted" stations of $18,467.65. To this, Miss Crisafulli added gross programming charges of $5,882.50 (applying a 17.65 per cent commission rate rather than the 15 per cent rate) and gross networking charges of $500.00 for a total of $24,850.15 per segment on the basis of a Kemper selected 95 station lineup. While these computations were never submitted to ABC and cannot be considered as an offer by Kemper, nevertheless they are extremely significant in considering Kemper's offering letter of May 4, 1962, and the ensuing negotiations.[9] Also, assuming *629 there had been no prior firm verbal order on the part of Kemper, they are evidence of the fluctuating nature of negotiations at that time.
On or about May 4, 1962, Mr. Trude, on behalf of the Frank Agency, delivered to Mr. Beebe the heretofore mentioned order letter which, if it did not deviate from, at least expanded substantially on, any agreements reached one week prior thereto on April 27th. The letter ordered "Evening Report" for 39 segments over a 26-week period for broadcast over a specific lineup of 95 stations, only 67 of which were among the 99 stations that had then cleared the program; the remaining 28 were the additional stations that Kemper wanted ABC to clear. The price per segment was not one lump sum, for it consisted of a $5,000 program charge, a $500 networking charge, and total time charges for the 95 stations listed in the attached ordered station lineup in an amount not to exceed $18,750 for a total of $24,250.00 (or for the 39 segments $945,750). The total time charge was to be reduced by the "package rate" of any station not clearing or carrying the program. The order letter referred to 41 "key markets" (12 of which were locations of Kemper branch offices) of which 29 had cleared the program as of that date and stated that "this order is contingent upon the clearance of these markets unless our client elects otherwise." However, it was also stated that if ABC could not clear all of the Kemper key markets by June 1, 1962, the order would revert to an order for one segment per week over a 26-week period and in this event, although the program and networking charges would remain the same, the maximum time charges were to be $20,750 for a total of $26,250. In addition, Kemper was to have the right to cancel its sponsorship after the first 13 weeks upon 45 days' written notice.
It is the contention of ABC that Kemper had agreed at the April 27th meeting to pay a flat package price of $22,000 per segment for 39 segments over the then-going lineup of stations clearing the program plus a maximum of $3,000 time charges for the additional stations that Kemper wanted cleared, or a total of $25,000 per segment; and that what Kemper did in its May 4th order letter was to substitute 28 additional stations that it wanted cleared in place of 32 stations on the cleared then-going lineup, for which it agreed to pay $24,250 per segment for 39 segments even though the time charges for the 28 additional stations were over twice as high as the time charges for the 32 unwanted stations.[10] The day following the receipt of the letter of May 4th, Mr. Nordmark of ABC compared the lineup Kemper had ordered with the ABC going lineup of the February listing and saw at once that the order excluded many of the stations on ABC's going lineup, although he already knew that Kemper was not interested in all the ABC lineup. According to Mr. Nordmark, he told Mr. Trude
"that the lineup attached to the letter was not the lineup that was offered as part of the package deal offered by Mr. Scherick to Mr. Gunn in New York and that [he] did not know if the proposal would be accepted by ABC in New York because it differed from the original agreement. However, *630 [he] stated that [he] would nevertheless forward it to New York." Nordmark Affidavit of June 3, 1965, at 3.
Mr. Beebe testified that he pointed out to Mr. Gunn that the proposal differed from the one that had been made to Kemper primarily because it was based on a lineup of stations different from the one upon which ABC's offer had been made, and that he told Mr. Gunn that at the package price quoted he did not see how stations could be eliminated but if they were eliminated, "it would cost" and that "we would have to renegotiate it." He further stated that he told Mr. Trude that Kemper bought the program on a package-price basis and that Kemper could not eliminate stations and pay the same package price. Mr. Gillogly testified that the May 4th letter was completely contrary to the agreement that they had reached at the meeting of April 27th, and that he directed Mr. Nordmark to so inform Mr. Trude and, in the meantime, to send the order letter to ABC in New York. Mr. Nordmark, in addition to talking to Trude and Gillogly, talked to Donald Flynn, an attorney at ABC in New York, and following such conversation made notes on his copy of the order letter of May 4th. The first two pages of the lineup specified by Kemper and attached to the order letter (together with the last 3 stations listed on page 3 of the said lineup) list 67 of the 99 stations then clearing "Evening Report" and the third page includes 28 additional stations that had not cleared the program but that Kemper wanted to order. Mr. Nordmark wrote this notation on the first page of the attached lineup. "No! to Pg. 1 & 2 of lineup Then going lineup will negotiate on non Kemper markets." In the order letter itself, opposite the provision for an "ordered station lineup" of the 95 stations specified by Kemper, is Nordmark's notation "nosee attached lineup for comment" and where Kemper's order letter, at page 2, specified the gross time charges of $18,750 for the "ordered station lineup" Nordmark wrote "O.K. But based on 99 stations on our lineup plus Kemper 15 pending markets. See attached lineup." After making these notations (and others not relevant hereto) on the order letter, Nordmark forwarded the letter to ABC in New York. Nordmark further stated that he conferred by telephone with Mr. Henry Hede, Vice President and Administrative Sales Manager, and other ABC representatives in New York to advise that Kemper had requested a specific list of stations rather than all stations carrying the program. Mr. Hede then spoke to Mr. Scherick and was told by him that his (Scherick's) original proposal was based on the sale of the ABC going lineup, and that if Kemper insisted on its ordered lineup it would have to revert to rate-card rate. However, even assuming that it was not a basis for further negotiation, there is dispute as to what the cost per segment would have been had Kemper reverted to ABC rate-card charges for the 67 wanted stations, particularly since these stations were, for the most part, included in stations already in ABC's going lineup, and it is not clear whether the rate-card price was to apply to stations in the going lineup as well as those not presently a part of it. Kemper argues that the 67 wanted stations, based on ABC's rate card, would have totaled $30,490 per segment, to which should be added the program charge and commission of $5,750 and network charge of $500 or a total of $36,740 which would be reduced to $35,521 on a 26-program basis or $34,215 on a 39-program basis. Kemper further argues that the 15 pending stations, offered as part of the package deal at $3,000, would cost $6,000 at the rate-card rate (not conceded to be true) and that if the 15 stations were added to the 67, at rate-card rates, each program would cost $42,470, which, after dollar value discount on time charges, would total $41,290 per program for 26 programs and $40,960 per program for a series of 39.
Subsequent to the receipt of Kemper's order letter of May 4, 1962, Mr. Irish, in *631 charge of processing orders for ABC, on May 8th directed the Sales Service Department to order up immediately the 99 stations then broadcasting "Evening Report" for sponsorship by Kemper. Miss Stamatis, Manager of night time television sales service, prepared a Facilities Order, dated May 10th, which ordered "the then going ABC lineup" for Kemper sponsorship beginning October 15, 1962. On May 11th, telegrams were sent to the 32 stations which Kemper had indicated in its May 4th order letter that it did not want, "recapturing" the commercial time for 3 segments of ¼ hour in each two-week period for 26 weeks beginning October 15, 1962. The 28 stations which were ordered in addition to the going lineup, not having previously cleared the program series, were not yet subject to any recapture conditions, and ABC by telegram dated May 11, 1962, invited them, rather than directed them, to carry the program. Under the offer, of course, the stations were free to reject the entire order but not to accept the program and reject Kemper as sponsor. The Facilities Order and the telegrams of May 11, 1962 were in conformity with ABC's letter of May 10, 1962 (hereinafter referred to), replying to Kemper's order letter of May 4, 1962, and, according to ABC, also in conformity with the agreement reached at the meeting of April 27, 1962.
ABC's letter of May 10, 1962 acknowledged receipt of Kemper's letter of May 4, 1962 and confirmed ABC's "firm order therein * * * of * * * the KEMPER INSURANCE COMPANIES, for sponsorship of ABC EVENING REPORT * * *." Such sponsorship was to be of 39 one-quarter hours over a 26-week period commencing with the week of October 15, 1962. The letter stated that Kemper's "station line-up" would "consist of the then going lineup of ABC basic affiliated stations carrying the program as of each telecast of which you are a sponsor." The time charges were to be a flat $15,750.00 per segment for a 39-segment program, or if Kemper reduced its sponsorship to one segment per week for 26 weeks because of ABC's inability to clear all of the 41 Kemper key markets, the time charges were to be $17,750.00 per segment. In each case the program charge of $5,750 and network charge of $500 were to be added. In addition, ABC agreed to order on Kemper's behalf 15 additional stations, specifically identified with their individual time charges (apparently substantially below rate card) at $3,000, plus 13 other stations for which Kemper was not required to pay any additional time charges. With respect to the additional 15 stations Kemper was required to pay only for those actually clearing the program. Accordingly, the maximum total price per segment for sponsorship of 39 segments under the May 10th letter was $24,250 or for 26 segments it was $26,250 per segment. These totals are the same as those set forth in Kemper's order letter of May 4th.
There is testimony that following receipt of ABC's letter of May 10, 1962, Mr. Nordmark went to ABC's offices in New York on May 14th or 15th, and spoke to Mr. Hede, Jr., and various other ABC personnel. It is Kemper's position that Mr. Nordmark was advised by Mr. Gillogly that Kemper could have the lineup attached to their letter of May 4th only if they paid the full rate-card rate. This is disputed by ABC which asserts that it never made the decision that Kemper would have to pay the rate-card time charges, and nothing less, if it wanted to sponsor the program over its lineup of stations carrying the program or that Kemper could have its own lineup only if it paid the rate-card rates. There is no evidence that during the period in question ABC had any policy or practice that any discount would not be available to a sponsor unless certain stations were ordered as a group, or that certain stations would not be available or the sponsor entitled to a discount unless *632 the sponsor ordered a minimum number of stations.[11]
Thereafter, on May 18th, a meeting was called at the office of the Frank Agency to go over the differences between the Kemper order letter of May 4th and the ABC reply of May 10th. ABC was represented by Nordmark and Beebe, Kemper by De Mark and his assistant, Bruce Robertson, and the Frank Agency by Gunn and Trude. Mr. Nordmark, on behalf of ABC, claims that he told the representatives of the Frank Agency at that meeting "that if Kemper did not want certain markets on the then-going lineup it could either select its own stations and pay the rate card time charges for each station or it could go back to New York and renegotiate the deal with Mr. Scherick" and "that Kemper could not have both the package price quoted by Mr. Scherick and a lineup of stations that differed from the lineup which was part of the package price." Nordmark Affidavit of June 3, 1965, at 4. (Emphasis added.) Mr. Nordmark further claims that he told Mr. Trude that if Kemper did not order some of the stations on the then-going lineup its commercials would have to be "blacked out" over said stations, which would cost Kemper more money. Mr. Beebe, on behalf of ABC, testified that he told De Mark, Trude and Gunn at this meeting that it was difficult to eliminate markets, that ABC would have to contact each affiliate, and that Kemper would have to give up visual identification with the commentator. Kemper's position, according to Mr. De Mark, was that it didn't want certain markets (stations) because of lack of representation and in some cases because it would constitute an overlapping of coverage.
Following the May 18th meeting, De Mark prepared a memorandum for Mr. Kemper dated May 21, referring to the "three hour meeting with ABC to discuss the problems which arose out of our order letter and ABC's acceptance letter", and at which time they (Kemper and ABC) "went into the many ramifications of the order." No mention was made of any problem concerning the lineup, the only items mentioned being the products of possible co-sponsors and not "pushing" the program to specific advertisers. De Mark requested a conference "to discuss this" with Mr. Kemper, which discussion apparently took place on May 23d, and the results of which were confirmed to Mr. Kemper by De Mark by memorandum dated May 24, 1962. As stated by De Mark, "On the basis of our discussion yesterday, we will get together with ABC on the purchase of the EVENING REPORT for 1 night a week for 26 weeks without `cross plugging' on any night." The only matters reported to have been discussed were "co-sponsor compatibility", what items would be advertised by Squibb Products, the time taken by other purchasers (Squibb, U. S. Plywood, and American Tobacco), and the refusal of ABC to provide a cancellation clause "because Squibb and U. S. Plywood had purchased on a firm basis for 26 weeks and it was on this basis that ABC believes it can increase its network station line-up." No mention is made in the memorandum or in De Mark's hand-written notes of that meeting of any discussion concerning the purchase of unwanted markets or an attempt to negotiate on the basis of the lineup annexed to Kemper's May 4th order letter. Referring to his recapitulation of the matters discussed by him with Mr. Kemper at the May 23d meeting, De Mark stated, "On the basis of the above, you then told me we should buy 1 night a week and `be on by ourselves.'" *633 Thereafter, the Frank Agency prepared a draft order letter, dated June 1, 1962, which cancelled and superseded the May 4th order letter and provided for sponsorship by Kemper over what was referred to as "the then-going lineup of ABC affiliated stations" plus the 28 additional stations Kemper wanted, although it provided that Kemper would not be required to accept any additional stations added to the then-going lineup after the date of the order. Since Kemper wanted to buy a set list of stations, an ordered station lineup was attached to the draft order letter submitted to De Mark. De Mark's typewritten comments regarding this draft do not indicate that Kemper did not wish to sponsor over some of the stations in the attached lineup. Furthermore, the draft was prepared by the Frank Agency on behalf of Kemper. The draft order letter was put in final form under date of June 5, 1962, and sent to ABC. The principal difference between this order letter and ABC's letter of May 10th is the fact that it was based upon an attached station lineup (as was Kemper's May 4th order letter) as distinguished from a "then-going lineup" and it was for only 1 segment per week over a 26-week period. The station lineup was to "consist of the then-going lineup of ABC affiliated stations", the time charges for which were not to exceed $17,750 per segment. However, this was not an order for a "then-going lineup" because Kemper was not required to accept any additional stations other than those shown as Group I on the attached ordered lineup, whereas an actual then-going lineup would have included all stations actually carrying the program on each date when Kemper's commercials were scheduled to appear. Included also in the lineup were the 15 additional stations (Group II of the ordered lineup) for which Kemper was to pay a maximum of $3,000 time charges per segment, which charges were to be reduced by the individual time charges of stations failing to clear, plus the 13 stations (Group III) for which no charge was to be made to Kemper. Individual station time charges were set forth only for the 15 Group II stations. Program and networking charges of $5,000 and $500, respectively, remained unchanged. ABC guaranteed a coverage of 75 per cent of all United States television homes in the lineup under Groups I and II with a credit to Kemper equal to the percentage points of actual coverage less than 75 per cent. On June 12, 1962, by telegram, ABC accepted the order of June 5, 1962, subject to certain clarifications. The telegram stated that the ordered lineup should consist of the then-going lineup as set forth in Group I of the lineup attached to the June 5th letter, the time charges for which would be in accordance with ABC's rate card less a 38 per cent discount, but not in excess of $17,750.00; that the 15 additional stations (Group II) were to be at rate card less a 45 per cent discount, but not to exceed $3,000.00; and that Kemper would "now be billed applicable time charges" to be automatically reduced by any non-clearance of stations. Thus ABC acceded to Kemper's desire to sponsor the program over an ordered station lineup as distinguished from the then-going lineup, and granted Kemper a concession as to the flat package time charge for the then-going lineup. Following ABC's acceptance telegram of June 12th, it issued a Facilities Order on June 13th stating that instead of ordering the then-going lineup for Kemper, ABC would order a specific list of stations "shown on attachment. It is understood that client does not have to accept any additional stations that we may add to the program if they do not have representation in those markets. We have agreed to black-out their commercials from any such stations at no cost to them." On the same date, as previously noted herein, ABC issued another "Evening Report" offering sheet referring to a 100-station cleared lineup, a total price of $36,250 per segment and making no provision for any special discounts.
On June 25, 1962, Trude of the Frank Agency wrote De Mark of Kemper, recapping the Agency's current negotiations *634 with ABC. In his letter he indicated that the discount with respect to the Group I stations, previously computed at 38 per cent, would be recomputed at 42½ per cent to bring it to the agreed figure of $17,750.
On June 28th, De Mark sent a further memorandum to Mr. Kemper. Neither Trude's letter nor De Mark's memorandum mentions any "unwanted markets" or any attempt to negotiate a price for the lineup. Reference is made in De Mark's memorandum to the "back and forth discussions with ABC with regard to our order letters and ABC's acceptance letters", and that Kemper had "submitted two order letters to ABC replete with conditions and they have, as might be expected, sent us acceptance letters which were just as filled with conditions." De Mark stated that ABC's New York office was going to send "a currently cleared list of 96 stations", and there are various references to additional markets that Kemper wanted cleared. However, there is no indication that Kemper felt it was being required to accept stations it did not want. On July 3d, Mr. Trude of the Frank Agency sent to De Mark of Kemper a document entitled "ABC Evening ReportTerms of Agreement" and stated in the covering letter: "I have tried to incorporate all of the order letters, acceptance telegrams, and verbal conversations between you and ABC" (which apparently was intended to mean between Mr. De Mark and Mr. Trude). Neither the letter nor document made any reference to unwanted markets. On July 13, 1962, another memorandum was sent to Mr. Kemper from De Mark referring to the former's approval of the program on a sole sponsorship basis but noting that the Executive Committee had not approved the expenditure which would "range from $666,000 to $684,000 depending on the number of stations which have cleared and will probably clear the show."
On July 17, 1962, ABC sent a formal acknowledgment letter to the Frank Agency which was characterized as a proposed agreement that was "the result of extended negotiations between our [ABC's] Chicago office and your agency and we believe represents the entire understanding between us." The time charges set forth therein were based upon ABC's rate card less a special 42½ per cent discount for the Groups I and III stations, and a special 50 per cent discount for the Group II stations; there was no maximum dollar limitation for the time charges. On July 18, 1962, De Mark sent an interoffice memorandum to Mr. Flanagin regarding, among other matters, the "Executive Committee Expenditure Approval" which stated:
On May 23 I discussed the purchase of the show with the Board Chairman and he said "buy one night a week and be on by ourselves." He subsequently approved this in my memo of May 24 (copy to you). Further, I wrote him on June 28 (copy to you) telling him about the additional major stations that have cleared and at his request discussed that memo with him on July 2. His only query at that time had to do with cost. And when I reconfirmed what I had told him on May 23 he said "OK". * * * ABC would not give us a cancellation clause. Mr. Kemper was informed of this and said "OK" and this was one of the reasons he said to buy on one night per week basis.
No reference was made to unwanted stations.
On July 24, 1962, Kemper's Executive Committee unanimously authorized the expenditure of between $666,000 and $684,000 for the purchase of "Evening Report" on a sole sponsorship basis one night per week for 26 weeks. Shortly thereafter, on July 27th, Mr. Flanagin sent an interoffice memorandum to Mr. Kemper stating that
at the time the Executive Committee approved the purchase of ABC-TV Evening Report Mr. H. G. Kemper mentioned some real reservations about the show and I know that you already had expressed some reservations. I also lack some enthusiasm about the show in part because news shows do *635 not have the same merchandising qualities that our golf show had and also because of the time spot this particular show has in Chicago. I do nevertheless feel that the show represents a good sound dollar value for us within a budget which by present day TV standards is very limited. * * *
Incidentally, the Frank people feel that we have gone so far in the negotiations that even though no contract has been signed we have legally made a commitment.
Clint Frank and his fellows again reviewed the thinking behind the purchase of the show and I attach a copy of his letter to me of July 26 outlining the basic reasons why the agency feels this purchase is a sound one.
The letter referred to, dated July 26, although containing Frank's signature, was apparently written either by Gunn or Trude, both of whom were familiar with the negotiations between ABC and Kemper. It was a detailed review of the agency's original recommendation and the subsequent negotiations with ABC and states that "our recommendation was based on the fact that this show could be expected to deliver a considerably larger number of advertising impressions for the dollars available than any other offered by any of the three networks within reach of our budget." It set forth five advantages of the program: (1) "This program offers excellent advertising continuity * * *"; (2) "the audience for this program has shown steady growth * * *"; (3) "ABC Evening Report fulfills our need better than any other available television program * * *"; (4) "the price we were able to obtain through extensive negotiations with ABC makes Evening Report an excellent advertising value"; and (5) "we certainly plan to obtain as much merchandising value out of your sponsorship of Evening Report as possible" (referring to various plans worked out with ABC for newsletters, an appearance by Jim Hagerty, and other merchandising ideas). Three "drawbacks" were mentioned with respect to the program: (1) "It does not offer the opportunity for some of your agents and policyholders to attend and participate in actual programs as did All Star Golf"; (2) "a straight news program does not lend itself to the kind of promotional gimmicks and premiums you have been able to utilize to some extent with the golf show such as golf balls, playing tip booklets, score cards, etc."; and (3) "the Chicago time period for the program is not ideal." As to each of the "drawbacks", the Frank letter indicates that there are countervailing factors to be considered. Of greater significance is the fact that the present claim of Kemper that it was forced to take undesired stations is nowhere mentioned or inferred, nor is there any mention of any kind of unwanted stations or of ABC's alleged refusal to allow Kemper to sponsor the program over the 95 stations that it wanted.
As the Frank letter stated:
after an honest and openminded reevaluation of the pros and cons, we believe this program will give you more of the things you need within the limits of your budget than any other available to us: a large audience per dollar expended; a broad audience of adult males; an excellent atmosphere for a wide range of commercials; a prestige program; and above all, excellent continuity of commercial impressions.
* * * * * *
I certainly hope that you will have an opportunity to go over this matter with the members of your Executive Committee and give them the benefit of the facts and thinking both pro and con that went into our recommendation.
The final contract, dated August 15, 1962, and under attack herein, provided for Kemper's sponsorship of "Evening Report" one day per week during a 26-week period commencing October 17, 1962, over an ordered station lineup attached to and forming a part of the contract. Kemper was given the right to "accept or reject any additional stations *636 to the lineup shown on the attached ordered station lineup." The provision for the $17,750.00 maximum was removed. The lineup was divided into three groups. Group I consisted of 102 stations specifically named and identified. Of this group, 67 were originally "ordered" by Kemper in its letter of May 4th, and 35 were stations most of which Kemper indicated in its letter of May 4th that it did not want. Comprising Group II were 15 stations specifically named and identified in the contract, most of which were not clearing the program at the time the contract was signed but which Kemper desired and with respect to which there was a reasonable likelihood of clearance. Finally, Group III consisted of 13 stations specifically named and identified in the contract which were not clearing the program at contract time but which Kemper wanted although it was unlikely they would clear prior to the commencement of the program. Individual time charges for each station were set forth in terms of each station's Class "A" hourly rate based on the June 5, 1962 hourly rate. As heretofore noted, the rate-card charge for a 15-minute program such as "Evening Report" was 40 per cent of each station's hourly rate. The contract provided that with respect to Groups I and III the time charges computed as indicated above would be subject to a special 42½ per cent discount, subject to agency commission, whereas the similar charges for the Group II stations would be subject to a special 50 per cent discount. The program cost of $5,000 and network charge of $500 were maintained. Kemper had the right to accept or reject any additional stations to the lineup shown on the attached "ordered station lineup", and as a matter of fact subsequent to the execution of the contract of August 15, 1962, Kemper both ordered and rejected additions to the lineup. Subsequent to the execution of the contract of August 15th "Evening Report" was broadcast under Kemper's sponsorship on October 17, 26 and 31 and November 9, 1962. Kemper's commercials were broadcast over only those stations that Kemper ordered.
However, on Sunday, November 11, 1962, ABC broadcast a program entitled: "The Political Obituary of Richard M. Nixon" which caused considerable editorial comment in the nation's press because of the appearance of Alger Hiss on that program. On November 13, 1962, Kemper advised ABC that it was cancelling its sponsorship of "Evening Report" and on November 14 delivered a formal notice of cancellation. After some attempts to reconcile their differences, ABC on January 9, 1963 instituted suit against Kemper in the N. Y. Supreme Court for breach of contract. Two days later, Kemper issued a press release explaining why it had cancelled its sponsorship, namely, the appearance of Alger Hiss on the aforesaid program which, according to Kemper, adversely affected its image as a sponsor of the ABC news broadcast. Two and one-half pages of the three-page press release were devoted to comment on the Hiss event with the remainder concerning the statement "the package that we thought we had bought at the start of the 1962-63 season no longer is the same, and we should not be required to pay for what is damaging to us." Nowhere in this statement, made almost two months after cancellation of the sponsorship, is there any reference to any economic coercion practiced by ABC on Kemper during the contract negotiations nor is there any reference to any violation by ABC of the anti-trust laws. Kemper's answer to ABC's amended complaint in the State Court action and its complaint in the present action filed at approximately the same time contain the first reference of any kind to Kemper's contention that it was coerced into sponsorship by an illegal tie-in arrangement. One of the numerous defenses set forth in Kemper's answer in the State Court alleged that the contract of August 15, 1962 was illegal and thus unenforceable because it constituted a tie-in sale in violation of the Sherman Act. This defense was dismissed on September 5, 1963 by the State *637 Court. American Broadcasting-Paramount Theatres, Inc. v. American Mfrs. Mut. Ins. Co., 42 Misc. 2d 939, 249 N.Y.S.2d 481 (Sup.Ct.1963), aff'd on opinion below, 20 App.Div.2d 890, 251 N.Y.S.2d 906 (1st Dep't 1964), aff'd mem., 17 N. Y.2d 849, 218 N.E.2d 324, 271 N.Y.S.2d 284, cert. denied, 385 U.S. 931, 87 S. Ct. 1, 17 L. Ed. 2d 37 (1966). A final judgment was also rendered for plaintiff ABC in the State Court on March 18, 1965, 48 Misc. 2d 397, 265 N.Y.S.2d 76 (Sup. Ct.), aff'd on opinion below, 24 A.D. 2d 851, 265 N.Y.S.2d 577 (1st Dep't 1965), aff'd mem., 17 N.Y.2d 849, 218 N.E.2d 324, 271 N.Y.S.2d 284 (1966). Final judgment was entered for $265,047.21. By amendment to its complaint in the instant action, Kemper has included said amount as additional damages to be trebled under Section 4 of the Clayton Act. Initially, Kemper sought treble damages based upon the time charges of $6,841.35 which it had to pay for the "unwanted" stations. (Complaint ¶ 32(a)).
The Applicable Statutes
Section 1 of the Sherman Anti-Trust Act, 26 Stat. 209 (1890), as amended, 15 U.S.C. § 1 (1964), provides in pertinent part that "every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal."
Section 4 of the Clayton Act, 38 Stat. 731 (1914), 15 U.S.C. § 15 (1964), authorizes suit by any person "injured in his business or property by reason of anything forbidden in the antitrust laws" and further provides that he "shall recover threefold the damages by him sustained".[12]
Initially, it should be observed that civil actions for anti-trust violations by radio or television stations are cognizable and entitled to decisions on their merits in the Federal Courts. Packaged Programs, Inc. v. Westinghouse Broadcasting Co., 255 F.2d 708, 709 (3d Cir. 1958).
The Burden of Proof
The burden of proving that a contract is illegal is upon the party asserting itin this case, plaintiff. Associated Press v. Taft-Ingalls Corp., 340 F.2d 753, 759 (6th Cir.), cert. denied, 382 U.S. 820, 86 S. Ct. 47, 15 L. Ed. 2d 66 (1965); Palmer v. Chamberlin, 191 F.2d 532, 539, 27 A.L.R. 2d 416 (5th Cir. 1951); Illinois Sur. Co. v. O'Brien, 223 F. 933 (6th Cir. 1915). Accordingly, plaintiffs alleging an illegal tying arrangement must prove by a preponderance of the credible evidence that defendant agreed "to sell one product but only on the condition that the buyer also purchases a different (or tied) product". Northern Pac. Ry. v. United States, 356 U.S. 1, 5, 78 S. Ct. 514, 518, 2 L. Ed. 2d 545 (1958).
It is important to recognize that not every contract, combination or conspiracy in restraint of trade or commerce is illegal. The intent of Congress was "not to restrain the right to make and enforce contracts * * * which did not unduly restrain interstate or foreign commerce, but to protect that commerce from being restrained by methods * * which would constitute an interference, that is, an undue restraint." Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 60, 31 S. Ct. 502, 515, 55 L. Ed. 619 (1911). The "standard of reason", it has been held, "was intended to be the measure used for the purpose of determining whether, in a given case a particular act had or had not brought about the wrong against which the statute provided." Ibid.
Despite plaintiffs' assertion to the contrary, tying arrangements are not *638 illegal per se. Susser v. Carvel Corp., 332 F.2d 505, 518 (2d Cir. 1964) (concurring opinion), cert. dismissed, 381 U.S. 125, 85 S. Ct. 1364, 14 L. Ed. 2d 284 (1965). As stated by this Court in Albert H. Cayne Equip. Corp. v. Union Asbestos & Rubber Co., 220 F. Supp. 784, 788 (S.D.N.Y.1963):
"Thus it seems that, despite earlier statements that tying arrangements are illegal per se, they are `not necessarily so.' We conclude, therefore, that tying arrangements are not per se violations of Section 1 of the Sherman Act. They become violations of Section 1 if (1) the seller has sufficient economic power with respect to the tying product, such as monopoly, market dominance, patent, copyright, unique attributes, distinctiveness or consumer appeal, to exert economic leverage to induce his customer to take the tied product along with the tying item, and (2) a substantial volume of commerce in the tied product is restrained." (Citations omitted.)
Or, as stated in Northern Pac. Ry. v. United States, supra 356 U.S. at 6, 78 S.Ct. at 518:
They [tie-ins] are unreasonable in and of themselves whenever a party has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a "not insubstantial" amount of interstate commerce is affected.
Tying arrangements "may fall" in the category of per se violations, "though not necessarily so." White Motor Co. v. United States, 372 U.S. 253, 262, 83 S. Ct. 696, 9 L. Ed. 2d 738 (1963).
Furthermore, business arrangements which conceptually might be styled as tie-ins may be "exculpated from the reach of the anti-trust laws if the arrangement was actuated by or could be explained on the basis of a legitimate business justification as opposed to an improper motive". Baker v. Simmons Co., 307 F.2d 458, 468 (1st Cir. 1962); see Susser v. Carvel Corp., supra, 332 F. 2d at 519; Dehydrating Process Co. v. A. O. Smith Corp., 292 F.2d 653, 655 (1st Cir.), cert. denied, 368 U.S. 931, 82 S. Ct. 368, 7 L. Ed. 2d 194 (1961); Bascom Launder Corp. v. Telecoin Corp., 204 F.2d 331, 335 (2d Cir.), cert. denied, 345 U.S. 994, 73 S. Ct. 1133, 97 L. Ed. 1401 (1953).
"However, there are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use." Northern Pac. Ry. v. United States, supra 356 U.S. at 5, 78 S.Ct. at 518. Among such practices are tying arrangements. International Salt Co. v. United States, 332 U.S. 392, 68 S. Ct. 12, 92 L. Ed. 20 (1947). Since true tying arrangements "serve hardly any purpose beyond the suppression of competition", Standard Oil Co. of California and Standard Stations v. United States, 337 U.S. 293, 305-306, 69 S. Ct. 1051, 1058, 93 L. Ed. 1371 (1949), a conclusive presumption of unreasonableness and consequent illegality "avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved". Northern Pac. Ry., supra, 356 U.S. at 5, 78 S.Ct. at 518. However, as has been hereinbefore mentioned and as will be more fully developed shortly herein, all tying arrangements are not conclusively unreasonable restraints and as such illegal per se.[13]
Any meaningful discussion of the application of the anti-trust laws condemning tying arrangements, more particularly the Sherman Act, to television program *639 sponsorship should commence with a brief recapitulation of past developments in this area. Tying arrangements were first condemned as a matter of patent law. As noted by Professor Turner in The Validity of Tying Arrangements Under the Antitrust Laws, 72 Harv.L. Rev. 50, 51-52 (1958), ever since Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 37 S. Ct. 416, 61 L. Ed. 871 (1917), the Supreme Court has consistently ruled that arrangements tying unpatented supplies to patented machines were beyond the scope of the monopoly granted under patent law. This same principle was later extended to the licensing of a process, method or combination patent. Leitch Mfg. Co. v. Barber Co., 302 U.S. 458, 58 S. Ct. 288, 82 L. Ed. 37 (1938); Carbice Corp. of America v. American Patents Dev. Corp., 283 U.S. 27, 51 S. Ct. 334, 75 L. Ed. 819 (1931). These cases were infringement cases where initially the Court held that the patentee could not maintain an infringement action against a person who bought another seller's supplies, or against the other seller for "contributory" infringement, because neither was infringing the patent. Subsequently, the consequences of such tying arrangements were broadened into a full-fledged patent misuse doctrine and the patentee could get no relief even against a direct infringer. Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 62 S. Ct. 403, 86 L. Ed. 363 (1942).
While it is true that reference to the anti-trust laws appears in the infringement cases, patent tying arrangements were not specifically denominated as anti-trust violations per se, but rather as excessive or improper uses of the statutory patent monopoly. Cf. Mercoid Corp. v. Minneapolis Honeywell Regulator Co., 320 U.S. 680, 684, 64 S. Ct. 278, 88 L. Ed. 396 (1944). However, in International Salt Co. v. United States, supra, the Court determined that for all practical purposes patent tying arrangements were illegal per se, provided only that they foreclosed a dollar amount of commerce that "cannot be said to be insignificant". 332 U.S. at 396, 68 S.Ct. at 15. As indicated by Professor Turner, while it is not clear whether in International Salt the existence of a patent as the tying product conclusively showed "dominance" in the relevant market, leaving dominance to be proved in non-patent cases, or whether "distinctiveness" rather than "dominance" was to be the relevant factor, Turner, supra at 53, it seems clear that in United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S. Ct. 915, 92 L. Ed. 1260 (1948) "distinctiveness" rather than "dominance" was to be the test. Paramount Pictures involved among other things the block-booking of copyrighted films. The Court approved the action of the District Court in enjoining this practice, the result of which was "to add to the monopoly of the copyright in violation of the principle of the patent cases involving tying clauses." 334 U.S. at 158, 68 S. Ct. at 929. However, the Court did not "suggest that films may not be sold in blocks or groups, when there is no requirement, express or implied, for the purchase of more than one film." Id. at 159, 68 S.Ct. at 930.
In Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 73 S. Ct. 872, 97 L. Ed. 1277 (1953), a non-patent case, the majority of the Court held that a tying arrangement of advertising space in morning and afternoon newspapers was not illegal because the tied products were identical, and because there was no market dominance in the tying product. The evidentiary distinctions between establishing a tie-in violation under the Clayton Act as distinguished from the Sherman Act were synthesized by the Court in the following terms: A tying arrangement will violate the Clayton Act "[w]hen the seller enjoys a monopolistic position in the market for the `tying' product, or if a substantial volume of commerce in the `tied' product is restrained", id. at 608, 73 S.Ct. at 880, and the practice will contravene the Sherman Act "whenever both conditions are met." Id. at 609, 73 S. Ct. 872. As thus formulated, a more demanding burden *640 of proof was required under the Sherman Act. However, in Northern Pac. Ry. v. United States, supra, also a non-patent case, the Court reverted from the requirement of demonstrating the market dominance or "monopolistic" position of the defendant and substituted the less demanding test of a "sufficient economic power to impose an appreciable restraint on free competition in the tied product (assuming all the time, of course, that a `not insubstantial' amount of interstate commerce is affected)." 356 U.S. at 11, 78 S.Ct. at 521.
Finally, in United States v. Loew's Inc., 371 U.S. 38, at 45, 83 S. Ct. 97 at 102, 9 L. Ed. 2d 11 (1962), the watered-down Times-Picayune test was abandoned and the Court stated:
"Market dominancesome power to control price and to exclude competition is by no means the only test of whether the seller has the requisite economic power. Even absent a showing of market dominance, the crucial economic power may be inferred from the tying product's desirability to consumers or from uniqueness in its attributes." (Footnote omitted.)
Against the foregoing background, I proceed to the issues involved herein.
What Kemper Must Prove
In order to succeed, Kemper must prove
(a) the existence of a tying arrangement as defined by law to which arrangement Kemper was compelled to become a party;
(b) that ABC had "sufficient economic power to impose an appreciable restraint on free competition in the tied product", Northern Pac. Ry. v. United States, supra, 356 U.S. at 11, 78 S.Ct. at 521;
(c) that a "not insubstantial" amount of interstate commerce was affected; and
(d) failing proof of (b) and (c), that the tying arrangement constituted an unreasonable restraint.
Was There a Tying Arrangement?
ABC contends that the facts of the case demonstrate there was no "tie-in" sale as alleged in the complaint due to (a) the complete absence of separate "products" or "services" within the meaning of anti-trust case law, and (b) the complete absence of the necessary element of coercion sufficient to support the concept of such a sale under such law.
The Supreme Court has stated in Times-Picayune Publishing Co. v. United States, supra, 345 U.S. at 614, 73 S.Ct. at 883, that the "common core" of unlawful tying arrangements "is the forced purchase of a second distinct commodity with the desired purchase of a dominant `tying' product, resulting in economic harm to competition in the `tied' market."
A tying arrangement has also been defined as "an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product * * *." Northern Pac. Ry. v. United States, supra, 356 U.S. at 5, 78 S.Ct. at 518.
In Times-Picayune Publishing Co. v. United States, supra, the defendant publishing company published both morning and afternoon papers in New Orleans. The only other newspaper was an afternoon competitor. The Government contended that there was an unlawful tying arrangement whereby certain advertisers were required to advertise in both the morning and afternoon papers published by defendant. The Supreme Court held, however, that defendant was engaged in the sale of a single product, i. e., readership, and since only one product was involved, there was no tying arrangement. The Court held that
"two newspapers under single ownership at the same place, time, and terms sell indistinguishable products to advertisers; no dominant `tying' product exists (in fact, since space in neither the Times-Picayune nor the States can be bought alone, one may be viewed as `tying' as the other); no leverage *641 in one market excludes sellers in the second, because for present purposes the products are identical and the market the same." 345 U.S. at 614, 73 S.Ct. at 883.
While it is perhaps true that the effect of the Times-Picayune case has been limited to its precise facts by Northern Pac. Ry. v. United States, supra, such limitation has in no way affected the requirement that there be a "second distinct commodity" which must be purchased along with the "dominant `tying' product", Times-Picayune, supra, or that there must be a sale of "one product but only on the condition that the buyer also purchases a different (or tied) product", Northern Pac. Ry., supra. No case has been cited to the Court or discovered by independent research wherein a tying arrangement was found to exist between identical products. As stated by Professor Pearson,
"Implicit in the definition is the requirement that the tied product be different from the tying product. If there is only one product involved, there is no tie-in, but simply a situation involving seller's selection of the best unit size. * * * Even where there are some physical differences, custom and usage may lead to the conclusion that no tie-in exists." Pearson, Tying Arrangements and Antitrust Policy, 60 Nw.U.L.Rev. 626, 627 (1965).
Or, as stated by Professor Turner,
"The requirement that they be `different' [products] obviously cannot be dropped out. Every manufactured item is a combination of various materials and components. There are obvious cases in which we would say either that there is no tie-in because the object of sale is a single product, or that if there is a tie-in, it should not be deemed illegal per se or even illegal at all. * * * That the products are often or even `normally' produced and sold separately is not * * a wholly satisfactory test." Turner, supra at 67-68.
It is necessary to "take into account the fact that the antitrust laws too are supposed, among other things, to protect and encourage progressiveness and innovation, which means that there must be some room for the innovating combination of elements, `normally' produced and sold separately, into new single products." Id. at 68.
ABC relies on Columbia Broadcasting Sys., Inc. v. Amana Refrigeration, Inc., 295 F.2d 375 (7th Cir.1961), cert. denied, 369 U.S. 812, 82 S. Ct. 689, 7 L. Ed. 2d 612 (1962), and on Times-Picayune, supra. In Amana, plaintiff CBS sued the sponsor of one of its network programs for monies due in which action defendant counterclaimed for treble damages for alleged Clayton Act violations. Amana alleged that CBS had violated Section 2(a) of the Clayton Act, 49 Stat. 1526 (1936), 15 U.S.C. § 13(a) (1964), by granting quantity discounts to other sponsors including Amana's competitors, and that CBS had violated Section 3 of said Act, 38 Stat. 731 (1914), 15 U.S.C. § 14 (1964),[14] by requiring, as a condition of network broadcasts, that Amana "purchase network time" over a specified group of television stations, 51 in number, which included all of the stations owned and operated by CBS and certain affiliated stations, and, further, that CBS refused "to sell network time" of Amana's choice unless the latter agreed to sponsor a program, "The Phil Silvers Show", in which CBS had a financial interest. The District Court had dismissed the counterclaim for failure to state a claim upon which relief could be granted. While the affirmance by the *642 Appellate Court was based primarily on its interpretation of the word "commodity" in the applicable statutes, it is significant that it found that transaction could not be accurately characterized as a sale of television time or as merely a contract for services.
"While the CBS Network Rate Card #11, attached to the initial answer as Exhibit I, and incorporated by reference in the counterclaim, discloses that the time duration of the broadcast is used to measure its cost to the sponsor we are of the opinion that the reasonable inferences to be drawn from the allegations concerning the written agreements do not admit of the transaction being accurately characterized as a `sale' of television `time' as it is labeled by Amana nor as merely a `services' contract as argued by CBS. Although both services and time are involved we conclude that in its essence the contract alleged is a purchase by Amana of the privilege of having itself identified as sponsor of the program broadcast and making use of the permissible portion thereof for advertising its products." 295 F.2d at 377-378. (Emphasis added.)
While there has been criticism of the decision by commentators, such criticism has been directed to the narrow definition of a commodity rather than to the characterization of the type of transaction involved herein, and Amana is still authoritative as to both definitions. Tri-State Broadcasting Co. v. United Press Int'l, Inc., 369 F.2d 268 (5th Cir. 1966).[15] Kemper's attempt to characterize the language of Amana, quoted above, as "outright dicta" and "completely inconclusive" seems hardly warranted. CBS in its brief in the Appellate Court specifically argued that not only were "commodities" not involved but that there was no tie-in as only one package of services was contracted for. Brief for Appellee, pp. 53-66, Columbia Broadcasting Sys., Inc. v. Amana Refrigeration, Inc., supra. Nor, on the basis of such criteria as have been suggested, even if we assume that the transaction can be characterized as sales of stations or television time, is it unreasonable to find, not only in Amana but in the instant case, that only one product is involved.[16] These criteria of separability, laid down in United States v. Jerrold Electronics Corp., 187 F. Supp. 545, 559 (E.D.Pa.1960), aff'd per curiam, 365 U.S. 567, 81 S. Ct. 755, 5 L. Ed. 2d 806, rehearing denied, 365 U.S. 890, 81 S. Ct. 1026, 6 L. Ed. 2d 200 (1961), may be summarized as follows: (1) Did competitors of the seller offer all the components of the alleged "product" separately and not exclusively as a single package? (2) Was the number of components of *643 the product variable "so that hardly any two versions of the alleged product were the same?" (3) Was the purchaser charged for each component and not a lump sum for the total product? And (4) did the seller offer similar components for sale separately?
It is not disputed that ABC's competitors, the other two national networks, offered programs over their network stations, rather than over one individual station. Where the program is not a network program, the station itself is free to sell the broadcast time on the program directly to advertisers in either the national, regional, or local markets.
Nor was there such a variance in the number of components as would indicate a separability of products. ABC offered a going lineup to all prospective purchasers. While the number may have increased as additional stations agreed to carry the program, in the instant case Kemper was free to reject or accept such additions. Furthermore, the stations were free to accept or reject the program. "Evening Report" was not a new program or program series that had not been cleared at the time of the commencement of negotiations between Kemper and ABC. It began as a commercial program series in September 1961, and by the time negotiations commenced in 1962 it was being broadcast over a cleared lineup of 99 stations under the partial sponsorship of various advertisers. The said negotiations amounted to nothing more than the proposed purchase by Kemper "of the privilege of having itself identified" as one of the sponsors of a currently televised program and the privilege of "making use of the permissible portion thereof" for advertising purposes. Columbia Broadcasting Sys., Inc. v. Amana Refrigeration, Inc., supra 295 F.2d at 378. While it may have been technically feasible to black out Kemper's commercials over those stations which it alleges it did not want, those blacked-out stations would have continued to broadcast "Evening Report" regardless of whether Kemper ever entered into a sponsorship agreement with the network. To the extent that variances may have existed in the number of stations carrying different network programs on the three networks, they lack significance in view of the right, at least of non-affiliated stations, not to clear a particular program so that the exact number clearing a particular program is not a matter within the exclusive control of the network.
Passing now to the third of the suggested criteria, Kemper was charged on the basis of individual time charges for an ordered station lineup. However, the ordered station lineup was demanded by Kemper. The then-current offering sheet set forth a total price per broadcast segment or a lump sum for the total product.[17]
Finally, as to whether ABC offered stations separately, it seems clear that additional stations were offered to sponsors already advertising on a particular program as such additional stations were cleared, as was done in the present case. However, even the stations which ABC owned were offered as part of a lineup for network programs, and the product we are considering involves a network program, not national spot sales or sales on the local market.
It cannot be concluded from the foregoing that separate products are involved herein; indeed, the conclusion must be to the contrary. Furthermore, the Court in Jerrold, supra, noted that the attitude of competitors "while relevant, is hardly conclusive"; that certainly some purchasers were interested in the completed product rather than in constructing it from individual components; and that "it was the job the system was designed to accomplish which dictated that each system be `custom made' in the sense that there were variations * * * *644 [which] in turn, explains determining cost on a piece by piece, rather than a lump sum, basis." 187 F.Supp. at 559.
"It is apparent that, as a general rule, a manufacturer cannot be forced to deal in the minimum product that could be sold or is usually sold. On the other hand, it is equally clear that one cannot circumvent the anti-trust laws simply by claiming that he is selling a single product. The facts must be examined to ascertain whether or not there are legitimate reasons for selling normally separate items in a combined form to dispel any inferences that it is really a disguised tie-in." Ibid.
An examination of the economic facts of the television industry clearly lead to the conclusion, assuming Amana to be incorrect in its characterization and the transaction to be analogous to a sale of station time or station time plus program, that the packaging of station time and program, or multiple station times, is a reasonable and economically justified requirement of the industry. Indeed, Kemper would not appear to quarrel with the principle that a network presupposes a grouping of individual stations.[18] Rather, it complains that it was not permitted to make its own selection of what the group or package should contain, including the right to subtract as well as add to that package. Both the interests of the viewing public and the economics of the industry require that a network broadcast encompass a telecast over at least a minimum number of stations reaching every part of the country.[19] If Kemper is correct in its argument that a network cannot compel a sponsor to accept the network lineup as part of its sponsorship of a particular program, such an argument would affect a network of 2 stations as well as a network of 130 stations. As stated by Professor Pearson in commenting on the earlier opinion herein (221 F. Supp. 848),
"The court may have been justified in denying the motion to dismiss, but the broad language indicates that a tying arrangement results whenever the size of the package is larger than the purchaser wants. This would indeed be a startling antitrust principle if it means that the network must offer to negotiate 140 different contracts for the sponsorship of a program." Pearson, supra at 627.
If Kemper is correct in its assertion, a like argument can be applied to other advertising media. An advertiser on nation-wide media can demand that his *645 advertisement be published or displayed only in those areas where his business so warrants, and may recover treble damages to the extent he may have been charged for any unwanted publication or display.[20]
Network broadcasting on a national basis is necessary to provide the public varied, high-quality television on a continuous basis. High production costs make purely local telecast prohibitively expensive and local audiences are not sufficient to justify the high cost to the advertiser, and drive him to competing media. Network broadcasts spread high program costs over a much larger audience, the only way the presentation of such programs can be accomplished. Moreover, unless such programs are carried on stations reaching nearly every part of the country, major programs will be unavailable to important segments of the television public in contravention of the duty of the industry to operate in the public interest.
From an economic standpoint, a minimum undertaking by network advertisers would appear to be essential in order to assure the continuing availability and the reasonable cost of the ingredients involved in network television. Where, as here, a program is carried 5 days a week, a change in the station lineup from day to day decreases the value and attractiveness of the program to the individual sponsor and to the stations involved and creates technical difficulties.
"When two or more advertisers are sponsoring a program or program series, certain problems arise if the lineup of stations is different for the individual advertisers. Unordered stations must be `cued' by electronic signal to delete the commercial message in the program or program segment for which they are not ordered. In connection with programs having different days of the week (e. g., day-time `strip' programs) arrangements must be made with the advertiser or advertisers to make the program available to unordered stations on a sustaining basis, whenever possible. If opening and closing `billboards' are used, they must take into account the fact that all of the sponsors may not have their messages on all of the stations. More important, individual stations that are not ordered by all or the majority of the advertisers may be reluctant to accept the program." F.C.C., Network Broadcasting, Report of the Network Study Staff to the Network Study Committee, H.R.Rep. No. 1297, 85th Cong., 2d Sess. 501 (1957).
Kemper argues that it was feasible for ABC to "black out" Kemper's commercials over the "unwanted" stations and has submitted evidence bearing on the cost which would have been incurred. However, assuming the correctness of Kemper's charge that the station lineup constituted a tying arrangement, ABC would have been compelled to "black out" *646 the commercials on a similar basis for other sponsors. It is the overall economic impact which is relevant.
Kemper's further argument that there was a tying arrangement between a "sale" of the sponsorship of the program over the stations desired by Kemper and a sale to it of broadcast time for the program over the stations it allegedly did not desire is more verbal legerdemain than legal analysis. The program and its distribution or broadcast constitute one inseparable product. As was stated some years ago:
"A device by which some networks and stations are seeking to prevent program imbalances is the `package' program, selected, written, casted and produced by the network or station itself, and sold to the advertiser as a ready-built package, with the time specified by the station or network. In order to get a particular period of time, the advertiser must take the package program which occupies that period. This practice, still far from general, appears to be a step in the direction of returning control of programs to those licensed to operate in the public interest." Federal Communication Commission, Public Services Responsibility of Broadcast Licensees 13 (1946).
No claim is made that Kemper could not obtain sponsorship of "Evening Report" unless it agreed with ABC to sponsor some other unrelated program. Under Amana, any such an arrangement would clearly be a tie-in of the privilege of identification and use with respect to one program with the privilege of identification and use with respect to another unrelated program.
In consideration of the foregoing, I can only conclude that the Amana characterization of the type of transaction involved herein is correct, and that what Kemper purchased was "the privilege of having itself identified as sponsor of the ["Evening Report"] broadcast and making use of the permissible portion thereof for advertising its products." I do not believe that a sale of time, or station-time, or network and station services properly characterizes the transaction. However, even if it may be so characterized, the sales involved were the proper components of one product under the authorities heretofore cited.
Furthermore, even assuming a separability of productsi. e., sponsorship and use over 95 wanted stations as distinct from sponsorship and use over 35 unwanted stations, I find that Kemper has failed to prove a "forced purchase". As already noted, the gravamen of a cause of action based upon a tying arrangement under Section 1 of the Sherman Act "is the forced purchase of a second distinct commodity with the desired purchase of a dominant `tying' product, resulting in economic harm to competition in the `tied' market." Times-Picayune Publishing Co. v. United States, supra 345 U.S. at 614, 73 S.Ct. at 883. Or, as stated in Osborn v. Sinclair Ref. Co., 286 F.2d 832, 836 (4th Cir. 1960), cert. denied, 366 U.S. 963 (1961), 81 S. Ct. 1924, 6 L. Ed. 2d 1255, "a seller may attempt to persuade a buyer to purchase his products rather than those of his competitors, and such salesmanship efforts do not run afoul of the anti-trust laws, unless the sale of one product (the tying product) is made under an agreement, arrangement or condition under which the buyer must also purchase another (the tied) product." (Emphasis added.) A tying agreement is in essence "the compulsory joining of two `separate' articles." Dehydrating Process Co. v. A. O. Smith Corp., 292 F.2d 653, 655 (1st Cir.), cert. denied, 368 U.S. 931, 82 S. Ct. 368, 7 L. Ed. 2d 194 (1961).
It is important to note that this is not a case of an outright refusal to sell a tying product unless the tied product is also purchased. The alleged tie-in was accomplished, according to the complaint (¶ 27), not by a refusal to "sell" less than 130 stations but was "effected by ABC informing Kemper that it would charge a rate for the broadcast time on the 95 desired stations that far exceeded *647 the rate for the broadcast time on the total of 130 stations which included both the desired 95 stations and the undesired 35 stations." The rate for the 95 stations that Kemper wanted, as alleged in said paragraph of the complaint, "was unreasonable, excessive [and] unrelated to any cost differential to ABC."
To establish an illegal tying arrangement through pricing differentials, it must be shown: (a) that Kemper, in order to obtain the relatively small number of stations which it desired, was compelled to pay a price substantially as high as the price charged for a much larger package of stations which included the desired stations;[21] (b) that the price differential cannot be satisfactorily explained by quality or desirability differences or legitimate cost justifications including not only distribution costs but all other proper bases of quantity discount; and (c) that because of this differential Kemper selected the larger package. United States v. Loew's, Inc., 189 F. Supp. 373, 386, modified on other grounds, 371 U.S. 38, 83 S. Ct. 97, 9 L. Ed. 2d 11 (1962). Other factors, which I will mention hereinafter, are also significant in any such determination. Furthermore, it must be borne in mind that the so-called coercion was allegedly practiced many months before the contract was finally negotiated and that concessions were made by ABC after the alleged coercion was practiced. We are asked to focus our attention on the initial package offer of $22,000 by Mr. Scherick of ABC on January 25, 1962, the Kemper "order" letter of May 4, 1962 and ABC's counterproposal of May 10, 1962, culminating in the meeting of May 18, 1962.
The $22,000 offer (per segment for 52 segments) of January 25, 1962, was for 99 stations that had cleared to carry the program and was not broken down into separate components of time, program and networking charges but was based roughly on a 50 per cent plus discount on time charges, without discount on the program and networking charges.
At the April 27, 1962 meeting, ABC further agreed that if it could clear the additional 28 stations requested by Kemper the latter would have to pay additional time charges not in excess of $3,000 or a total price for 127 stations of $25,000 (per segment for 39 segments). It is important to bear in mind that both the $22,000 and $25,000 figures represented a substantial mark-down from the rate card, as noted in the Silver Report of which mention has been made. When Kemper submitted its totally unexpected and contradictory "order" letter of May 4, at a time when ABC had every right to believe it had a firm agreement, there appears to be little question that Kemper, while discarding the less costly and, to it, less desirable stations, utilized the same discount rates with respect to the desired stations as had been employed in fixing the original package offers. Indeed, if the original package of 99 stations is considered, Kemper was ordering the 67 included stations for substantially less than $22,000. ABC's refusal to accept such an "order" was both "legally and economically proper." United States v. Loew's, supra, 189 F.Supp. at 397. What was *648 involved, of course, was a series of "back and forth discussions" with order and acceptance letters "replete with conditions." However, if ABC's letter of May 10, accepting what it had believed was the true understanding of the parties, may be considered along with what transpired at the May 18 meeting, as a refusal to "sell" only the stations which Kemper wanted except at rate-card rates without any special discount, the undisputed fact is that Kemper refused to negotiate. Whatever its motive may have been, whether it was influenced by the fact that it would incur no extra cost by taking the unwanted stations, is beside the point. Having failed to negotiate a price for the stations it wanted, it cannot employ hindsight to arrive at the cost figure which would have emerged from such negotiations. Certainly no clear showing has been made that the rate-card rates were unreasonable or unrealistic or arbitrary or that they were not based on valid criteria.[22] They were certainly not designed for the negotiations involved herein or for any particular programthey formed the basis for the offering sheets and for Kemper's ordering letters.[23] When a seller has valid individual unit prices for the components of his packages he may revert to such prices when the buyer rejects the package, even though said prices are substantially higher than the average price per unit for all the components of the package. "Since this action involves contracts which are alleged to be in violation of the Sherman Act, we are not here concerned, except as corroborative and background information, with abortive negotiations which broke down before * * * contracts were arrived at. It is the contract, and not incomplete negotiations which, under the issues posed by the pleadings, must be examined in order to reach a determination as to the legality or illegality of the transactions." United States v. Loew's, supra, 189 F.Supp. at 380. Since ABC had valid individual unit prices for the components of the package, Kemper's complaint would more properly be directed to its claim that the discount from such unit prices inherent in the package offer was not applicable to the selected components. Any price differential may be satisfactorily explained not only by quality or desirability differences or legitimate cost justifications but also by all other proper bases of quantity discount. But Kemper never attempted to negotiate any discount but merely assumes ex post facto what such discount would have been. It is interesting to note that at the time the contract was finally entered into, the ABC offering sheet made no provision for any special discounts for the package, the gross time charges being only subject to discounts as provided by ABC's then current rate card. Kemper never made any effort to negotiate for a selected group of stations on the basis of this offering sheet of June 13, 1962 issued approximately two months before the contract was executed. Indeed, it never attempted to negotiate a price for sponsorship of the lineup attached to the May 4th letter. Kemper recognized, as stated in the Frank letter of July 26, 1962, that ABC's program would "deliver a considerably larger number of advertising impressions for the dollars available than any other offered by any of the three networks within reach of *649 our budget." Sponsorship over the "undesired" stations was a matter of very slight consequence to Kemperinsofar as the lineup aspects of the negotiations were involved, it was concerned only with (a) the clearance of its 41 "key markets"; (b) the clearance of the 28 additional markets that it wanted (which included some of the 41 key markets); and (c) submitting a sponsorship order based upon an ordered station lineup spelling out the precise stations it was ordering, as distinguished from the then-going lineup. Mr. Kemper's letter of April 25, 1962 to Mr. Hagerty, the Kemper interoffice memoranda of April 18, May 21, May 24, June 28, July 13, July 18, and July 27, 1962, the "ABC Evening Report Terms of Agreement" of July 3, 1962, and the written communications between Kemper and the Frank Agency, especially the letter of July 26, 1962, clearly indicate that the "undesired" stations formed such a minor and inconsequential factor in the negotiations that they were never even worthy of comment, and certainly never worthy of negotiation. There is neither documentary nor other evidence that the matter of "undesired" stations (other than additions to the then-going lineup) was ever discussed after the meeting of May 18, 1962. Nor was this because ABC had shut the door against further negotiations. Kemper did not want to become involved with the problems and additional costs inherent in having its commercials blacked out over approximately one-third of the stations then carrying the program; it did not want to lose visual identification with the newscaster; it did not want to pay any price in excess of that set forth in the May 10th letter. Furthermore, Kemper did not want to share the time with other sponsors possibly utilizing the time of the "undesired" stations. At the meeting on May 18, among the matters discussed were the products of possible co-sponsors and not "pushing" the program to specific advertisers. And at the meeting between De Mark and Mr. Kemper on May 23, 1962, it was decided that "we should buy 1 night a week and `be on by ourselves.'" Of course, to the extent that Kemper was induced to accept the package by its desire to exclude sponsorship by competitors or others over the unwanted stations, there was no tie-in or block-booking.
The original package offer was made by Scherick of the New York office but Kemper did not see fit to go back to him and renegotiate on the basis of its own selection. I conclude that there was no refusal to renegotiate on the part of ABC. The offer which Kemper made in its letter of May 4th was, as already noted, not a reasonable one and ABC's rejection was economically and legally justified. Kemper never made any other offer for its own selection. I do not agree with its present conclusion that further negotiations would have culminated only in the fixing of an "unreasonable" figure. Kemper's burden of proof cannot be satisfied by conjecture or by a disregard of the documentary evidence reviewing the entire period of the negotiations.
I conclude, as already indicated, that only one product was involved herein as a matter of lawwhether we denominate the "product" as the privilege of having the sponsor identified as sponsor and making use of the permissible portion of the broadcast for advertising its products or whether we denominate it as the sale of an economically and reasonably justifiable combination of components. I further conclude that even were two distinct products involved, the necessary element of coercion, economic or otherwise, has not been proven.
In view of the foregoing, it is not necessary to pass on Kemper's motion for summary judgment. Even were the Court to find the necessary elements of a tying of separate and distinct products and of coercion, economic or otherwise, compelling such a tie-in, there are triable issues of fact as to whether ABC had sufficient economic power to impose the tie-in sale and whether such tie-in substantially restrained competition, if any, in the tied product so that a not insubstantial *650 amount of interstate commerce was affected.
Accordingly, Kemper's motion for summary judgment is denied, and ABC's cross-motion for summary judgment is granted.
It is so ordered.
NOTES
[1] Judge Cooper, of course, had before him only the complaint, and stated:
"For purposes of such a motion, all the material allegations in the complaint are deemed true. Further, in determining the merits of the motion, it must be borne in mind that, `* * * a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.'" Id. at 849. (Emphasis by Judge Cooper.)
[2] The Court recognizes "that summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot", Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473, 82 S. Ct. 486, 491, 7 L. Ed. 2d 458 (1962), (footnote omitted) and that the Court must look at the record on summary judgment in the light most favorable to the party opposing the motion. However, where a single issue may be dispositive of the claim of anti-trust illegality, and particularly where, as in the instant case, voluminous exhibits, depositions and affidavits have been submitted, summary judgment may be proper. Crest Auto Supplies, Inc. v. Ero Mfg. Co., 360 F.2d 896 (7th Cir. 1966).
[3] "The primary function of the networks, however, is as a sales agent, arranging for the interconnection of television stations, to provide simultaneous broadcast of programs and commercials, selling time on the interconnected facilities to national advertisers and arranging the sale of programming to advertisers to fill the noncommercial segments of the time sold. Almost all network income comes from these sales of time and programs. Major network expenses are the cost of arranging the interconnection of affiliates, the cost of maintaining a news and public affairs department, and the cost of administration. Payments to affiliated stations are on a percentage basis. If the station is not sold to the advertiser as part of the desired network it receives no compensation." Blake & Blum, Network Television Rate Practices: A Case Study in the Failure of Social Control of Price Discrimination, 74 Yale L.J. 1339, 1344 (1965). (Footnote omitted.)
[4] "A network is not a common carrier and each therefore had the right in the absence of concerted action to make such contracts for the distribution of its programs as it chose. Plaintiff [non-affiliate] had no inherent right to set its own rate to an advertiser and in all other respects to use the facilities of the radio network, nor does the court have power to compel defendants [the networks] to deal with the plaintiff on such terms. Plaintiff misconceives the function of a network, which buys time from the stations and sells to the advertisers its facilities and the services of those stations as an aggregate. Not only are the networks not common carriers, but it would be cumbersome if not impractical for them to furnish programs if they did not have authority to deal independently with the advertising concerns instead of leaving the rates to be determined individually by the different stations which they serve. Such control by a network, operating as a single coordinating agency, would seem to be at least desirable in order that it might compete with other networks and advertising media and to assure a more reasonable distribution to every station of the income which the network as a whole may receive." Federal Broadcasting System, Inc. v. American Broadcasting Co., 167 F.2d 349, 351-352 (2d Cir.), cert. denied, 335 U.S. 821, 69 S. Ct. 43, 93 L. Ed. 375 (1948).
[5] The term "spot sale" has acquired several meanings in the television industry. One meaning refers to all non-network sales of station time while it has also been interpreted to mean those commercials not accompanied by programming. It is generally concluded that this latter type of advertising is less valuable than sponsorship of a particular program since television audiences usually decrease in that period between programs and because the sponsor is not identified with a particular program. Blake & Blum, supra note 3. at 1343 n. 13.
[6] "Network affiliation is highly prized by stations, and all but a very few are affiliated with at least one of the three networks. Stations lacking network affiliation are less profitable than affiliates and their failure rate is higher. The networks select affiliates on the basis of their ability to provide the widest possible coverage without substantial duplication. * * *
A network affiliate which is offered network programming and advertising may refuse to carry or `clear' the program, may offer to clear it at a different time, or may accept it. Despite the number of alternatives legally open to affiliates, the networks obtain a high rate of station acceptance for their programs." Blake & Blum, supra note 3, at 1343. (Footnotes omitted.)
[7] Beebe (in Chicago) apparently was not too clear about what Scherick (in New York) had offered Gunn. Scherick's offer was a package price of $22,000 per segment for 2 segments per week for 26 weeks, not $20,000 for 5 segments per week, or $22,000 for 3 segments per week for 13 weeks
[8] The list of unwanted stations had increased to 32 stations by May 4, and possibly as early as April 27th.
[9] Trude's affidavit of December 20, 1966, to the effect that Miss Crisafulli's computations were not reflected in the May 4 letter is not persuasive. In explaining the package time rate of $18,750.00 set forth in the May 4 letter, he states that this was reached by taking the discounted (47½ per cent) figure of $15,750.00 for the going lineup of 99 stations incorporated in the $22,000 ABC offer and adding to it the similarly discounted figure of $3,166 for 15 pending stations desired by Kemper to reach a figure of $18,916 which was subsequently modified to reflect $3,000 for the 15 pending stations and no charge for 13 "non-clear" stations which Kemper wanted, or $18,750.00. However, if his statement were correct it would mean that Kemper's offer in the May 4 letter was for 127 stations (99 going lineup plus 15 pending and 13 non-clear) whereas it was for 95 stations, or at most for 114 for which a charge was to be made. It does not appear likely that the $18,750.00 was reached without consideration of the discounted cost of the 15 pending and 13 non-clear stations (which formed part of Miss Crisafulli's computations) since the May 4 letter provided that the $18,750.00 charge would "be reduced by the package rate of any station not clearing," which would have included the pending and non-clear stations.
[10] According to Miss Crisafulli's figures, the discounted time charges of the 32 unwanted stations in the then-going lineup amounted to $2,871.23, whereas similar charges for the 28 additional stations amounted to $5,688.88.
[11] ABC, during the period relevant hereto, did not have any policy or practice that any TV station would not be available unless ordered as a part of a group of stations, or that any discount would not be available unless certain stations or a minimum number of stations were ordered, and it did not authorize its sales agents to impose such practice or procedure. It did have the policy and practice of refusing an order or denying a discount unless the sponsor ordered a sufficient number of stations such that the charges made by ABC for such stations reached a specified minimum sum.
[12] In Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656, 660, 81 S. Ct. 365, 367, 5 L. Ed. 2d 358 (1961), the Court, in reversing the summary dismissal of a private anti-trust suit alleging violation of § 1 of the Sherman Act, said that "to state a claim upon which relief can be granted under that section, allegations adequate to show a violation and, in a private treble damage action, that plaintiff was damaged thereby are all that the law requires."
[13] The per se rule is not binding "as to any set of facts not basically the same as those in the cases in which the rule was applied." United States v. Jerrold Electronics Corp., 187 F. Supp. 545, 556 (E. D.Pa.1960), aff'd per curiam, 365 U.S. 567, 81 S. Ct. 755, 5 L. Ed. 2d 806, rehearing denied, 365 U.S. 890, 81 S. Ct. 1026, 6 L. Ed. 2d 200 (1961).
[14] The fact that Amana was brought under § 3 of the Clayton Act, rather than under § 1 of the Sherman Act, would not seem to affect the weight to be given to the Court's characterization of the sponsorship contract. Indeed, the District Court, Court of Appeals, and Supreme Court had authority to find that Amana's counterclaim stated a cause of action under the Sherman Act, if the facts warranted such relief. Nagler v. Admiral Corp., 248 F.2d 319 (2d Cir. 1957).
[15] Judge Geller, in the State Court action between the parties, recognized the character of a sponsorship contract as defined in Columbia Broadcasting Sys., Inc. v. Amana Refrigeration, Inc., 295 F.2d 375 (7th Cir. 1961), cert. denied, 369 U.S. 812, 82 S. Ct. 689, 7 L. Ed. 2d 612 (1962):
"Its essential characteristic is that it is a form of advertising and damages for a breach thereof should be governed by the rule applicable to advertising contracts generally. Moreover, the subject mattercommercial minutes or timeis perishable, since, if not sold in time, it has vanished and is of no value to anyone. Furthermore, there has been no showing that there is a market or market value for commercial television minutes in the same sense as there is a market and market value for goods and commodities." 48 Misc.2d at 407, 265 N.Y.S.2d at 88.
[16] "We may agree with the plaintiff that the compulsory joining of two `separate' articles is a per se violation of the act. This statement, however, solves nothing. Articles, though physically distinct, may be related through circumstances. The sound business interests of the seller or, phrasing it another way, a substantial hardship apart from the loss of the tie-in sale may be such a circumstance. It would not be thought, for example, that a one-legged man could insist on purchasing only a left shoe. Whatever may be meant by per se, we must first consider what may be fairly treated by a seller as inseparable." Dehydrating Process Co. v. A. O. Smith Corp., 292 F.2d 653, 655 (1st Cir. 1961), cert. denied, 368 U.S. 931, 82 S. Ct. 368, 7 L. Ed. 2d 194 (1961).
[17] It is important to distinguish those cases where no true unit price existed at the time of the negotiations or where such unit price was fictitious or developed purely for the particular negotiations involved. In the instant case, ABC had the unit rates published and available to all potential advertisers.
[18] ABC was certainly entitled to obtain the greatest possible dissemination of the program it had produced.
"[I]f the primary purpose of the contract is lawful, e.g., to protect one in the fruits of his labor, and if the arrangement was actuated by or could be explained on the basis of legitimate business justification as opposed to the desire to increase market control through economic leverage, then the court will generally hold any incidental restraint of trade, not harmful to competition of the public, to be lawful. Dehydrating Process Co. v. Smith (C.A. 1 Cir. 1961) 292 F.2d 653." Denison Mattress Factory v. Spring-Air Co., 308 F.2d 403, 408 (5th Cir. 1962).
[19] "Is the `must or minimum buy' requisite for the running of a network? Yes, is the unanimous reply of network managing executives. ABC President Robert Kinter asserted `It is axiomatic that a minimum economic base must be maintained if the operation of a network is to be supported.' Robert Sarnoff of NBC put it in these words:
The must buy policy provides for use of a national network on a national basis. It is essential to networking, and each network has worked out its own formula on the matter. * * * The must buy stations * * * provide basic national circulation. They form a reasonable and logical minimum-purchase unit for national-marketing purposes.
These needs are not imaginary. It is apparent that the national television network as presently constituted could not continue to exist if it were unable to sell the time of more than a small proportion of its affiliated stations to any advertiser. Without a minimum group, fragmentation would result; the networks would be unable to meet staggering interconnection costs and national programming would be impossible." 39 Notre Dame Law. 719, 721 (1964). (Footnotes omitted.)
[20] "Private enforcement under the Robinson-Patman and Sherman Acts raises the possibility of a proliferation of treble damage suits against all forms of mass communication. The chaos and injury to the advertising medianational television, local stations, magazines, newspapers that might result from being required to defend and perhaps pay damages in a multitude of suits may cripple some sectors of each media. The number of potential suits might be reduced if claimants who have received some discount reductions are held to be barred from recovering damages. Nevertheless, the prospect of subjecting all media to private suits for activities that have long been established modes of business seems unfair and unnecessary; it could be avoided through a judicial or congressional decision that only damages incurred after the declaration of illegality will be held actionable. Thus, networks or other advertising media wishing to avoid liability need only comply with the provisions of the legislation ultimately held to invalidate quantity advertising discounts. If such a path is taken, a discriminatory practice that for too long a time has been permitted to stifle the growth of new products and new sources of advertising will be eliminated." Note, Antitrust Implications of Network Television Quantity Advertising Discounts, 65 Colum.L.Rev. 1213, 1255 (1965).
[21] Even if it were found that ABC demanded the full unit or rate-card rate per station for Kemper's selected list without any discount whatsoever, the differential between those rates and the average package rate would not appear to have been unreasonable in light of United States v. Loew's. In that case, in four instances Associated Artists indicated a willingness to permit selectivity at a price substantially higher than the average price per title charged for the package as a whole. In one of these contracts referred to in the note at 189 F. Supp. 373, 391, the station was told they could select films at $4,000 or $5,000 per title but instead they bought the packages of 58 films at an average cost of $1,300 per title. Another similar package offer carried an average price of $175 per picture and an offer of selectivity at $600 per picture was rejected by the station. The Court held that since the stations could have selected films out of the package at a price which was not unreasonable these contracts were not block-booked.
[22] The network station rates for ABC's affiliated stations which are set forth in each affiliation agreement and form the basis for the payments ABC makes to said affiliates when they broadcast programs sponsored by network sponsors have a direct relation to the rate card furnished to advertisers, for each station's network station rate is the same as its Class "A" hourly rate set forth in the rate card. Class "A" is prime evening time; the rates to advertisers for other time periods is a percentage of the Class "A" rate. The rates for less than one hour of broadcast time are expressed in terms of a percentage of the applicable hourly rate. For example, the rate card time charges for a quarter-hour prime time for a program like "Evening Report" are 40 per cent of the Class "A" hourly rates of the stations clearing the program.
[23] See note 17, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609510/ | 81 N.W.2d 639 (1957)
FAIRMONT FOODS COMPANY, Plaintiff and Respondent,
v.
Leslie R. BURGUM, Attorney General of the State of North Dakota, and Harold L. Anderson, State's Attorney of Burleigh County, North Dakota, Defendants and Appellants.
No. 7597.
Supreme Court of North Dakota.
February 21, 1957.
*641 Leslie R. Burgum, Atty. Gen., A. C. Bakken, Jr., First Asst. Atty. Gen., John Hjellum, Sp. Asst. Atty. Gen., for appellants.
Hyland & Conmy, Bismarck, Flansburg & Flansburg, Lincoln, Neb., for respondents.
SATHRE, Judge.
The plaintiff brings this action for a declaratory judgment declaring Chapter 303 of the Session Laws of 1955 of North Dakota unconstitutional and void and for a restraining order or temporary injunction enjoining the defendants from taking any steps or instituting any action or bringing any proceedings of any kind for the enforcement of said Chapter 303 until the final determination of this action. An order to show cause was served on the defendants why such temporary injunction should not be issued and at such hearing an injunction pendente lite was issued by the trial court.
When the temporary injunction was issued it was agreed by the parties that the defendants demur to plaintiff's complaint and that the issues be submitted to the trial court on briefs. The trial court overruled the demurrer. The defendants did not answer but elected to stand on their demurrer, and the trial court rendered judgment holding said Chapter 303 to be unconstitutional and void. From this judgment the defendants have appealed to this court and demand a trial de novo.
The Statute challenged is as follows:
"An Act
"Relating to unfair trade practices in the dairy industry.
"Be It Enacted by the Legislative Assembly of the State of North Dakota:
"§ 1. Unfair Trade Practices in the Dairy Industry.
"1. As used in this section the term `dairy products' includes milk, cream, butter, cheese, cheese food, ice cream, frozen desserts, ice milk, sherbet, and any other edible products manufactured or processed which has any of such products as its principal ingredients.
"2. Each of the practices described in this subsection is declared to be an unfair trade practice. It shall be unlawful for any person to be engaged in such practices. No person who is a dealer in or a vendor of dairy products, for sale to a retailer or who sells dairy products to any person for retail sales shall:
"a. Give or extend discounts on dairy products sold to retail outlets, except for standard printed public discounts which fairly represents costs savings which may be passed on to the consumer.
"b. Furnish, give, lend, sell, or rent any advertising materials or matter except materials or matter advertising the vendor's own products, providing that not more than one-third of the space or cost in the advertising material or matter be used to identify the retailer.
"c. Make payments of money, credit, gifts, or loans to retail outlets as rental for the storage or display of dairy products on the premises where they are offered for sale.
*642 "d. Loan or underwrite loans except that vendors can help retailers buy dairy refrigeration, storage, display and selling equipment, when the loan is for no more than ninety percent of the purchase price, secured by a chattel mortgage bearing five percent interest rate and payable in not more than thirty-six months.
"e. Furnish, sell, give, lend, or rent any equipment to a retail outlet. Except that a vendor may sell for cash or terms as heretofore explained under subsection (d), dairy refrigeration display and storage equipment, the selling price of which shall be the cost to the vendor plus at least ten percent to cover transportation and installation costs, less one percent per month depreciation but in no event shall it be less than fifty dollars per unit. Subsection (e) shall not apply to coin vending machines where the product vended is consumed on the premises.
"f. Maintain or make repairs of any equipment owned by a retail outlet, except that used exclusively for dairy products, charging comparative, competitive commercial fees and charges for the service and parts.
"g. Extend or give credit to any retail outlet in excess of thirty days payable fifteen days thereafter.
"h. Give any gift of money, merchandise, services or materials of any value to any retail outlet, except bona fide charities, except such services heretofore specifically permitted.
"3. Nothing in this section shall be interpreted to prohibit the operation of a retail outlet by a person who is also a dealer in or a vendor of retail products for sale to a retailer or for retail sales or to prohibit the use by him in such retail outlet any equipment or advertising or miscellaneous matter owned by him provided that such retail outlet is under direct control and management of the dealer.
"4. Nothing in this section shall be interpreted to prohibit the giving away of merchandise to be consumed on the premises.
"5. For the purpose of this section any subsidiary or affiliate corporation, cooperative, officer, director or partner of a corporation, a cooperative, or partnership which is a dealer in or a vendor of dairy products shall be deemed to be a dealer in or vendor of dairy products.
"§ 2. All contracts and agreements made in violation of this Act shall be void. All contracts and arrangements in effect on the date this Act becomes effective and in violation of this Act shall be void within six months.
"§ 3. Any person who shall violate any of the provisions of this Act shall be guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars or by imprisonment in the county jail for not more than thirty days, or by both such fine and imprisonment.
"§ 4. The attorney general shall be responsible for the enforcement of this Act. Prosecution of violators of this Act shall be under the supervision of the state's attorney of the county in which the violation occurred.
"Approved March 11, 1955."
The appellants contend that the trial court erred in holding said Chapter 303 unconstitutional. They argue that the practices prohibited by said Chapter are unfair; that they have a direct tendency to create a monopoly and to stifle competition; and that the inhibitions contained in the statute are reasonable regulations of unfair trade practices under the police power of the State.
The complaint of the plaintiff-respondent alleges that it is a foreign corporation and that it has complied with and is authorized *643 under the laws of the State of North Dakota to carry on business therein. The complaint alleges further that the Attorney General of the State of North Dakota and the State's Attorney of Burleigh County are expressly responsible for the enforcement of this Statute and this action is brought against them as officers of the State.
The complaint alleges further:
That the plaintiff is and has been for many years engaged in this State in the business of manufacturing, processing, selling, and distributing dairy products including milk, cream, butter, cheese, ice cream, frozen desserts, sherbets and other edible products having some of such articles in their principle ingredients.
That the plaintiff is extensively engaged in the manufacture, distribution and sale of its products to retail dealers scattered throughout the entire State of North Dakota including dealers in Burleigh County, North Dakota; that in carrying on its business throughout the State and in Burleigh County it engages in the following transactions, dealings, agreements and contracts with its retail dealer customers; in a large number of instances it has furnished and is furnishing to retail customers signs advertising plaintiff's products for such retail customers for display, on which in some cases the advertising material identifying the retail customer of his business covers less than one-third of the space or cost of such sign and in other cases more than one-third of the space or cost of the sign is devoted to advertising material and matter used to identify such retail customer; and that as to one character of sign or the other the plaintiff is clearly in violation of Section 1, subd. 2, subsec. b of the Act above referred to, but owing to the ambiguity in the wording of the Section plaintiff is unable to say as to which of such signs it is in violation.
That on occasions plaintiff makes loans of money to retail dealer customers, without the security of a chattel mortgage on dairy refrigeration, storage, display or selling equipment, at the plaintiff's customary rate of six per cent per annum, when the financial credit alone or security other than that prescribed by statute of such customer, in the judgment of the plaintiff, warrants such a loan, and that Section 1, subd. 2, subsec. d of the Act above referred to declares such loans illegal and denies the plaintiff the right to make any further loans without the security of such a chattel mortgage as is required by statute.
That at the present time it has existing a great number of contracts between itself and its retail dealer customers involving the various kinds of transactions described in the statute, and that all of such contracts and arrangements now in force are declared illegal and void by Section 2 of said Act, and that all contracts and agreements of similar character which plaintiff in the course of its business, would make in the future with its retail dealer customers are declared by Section 2 of said Statute to be illegal and void.
The complaint further alleges that said Chapter 303 is unconstitutional and void in that it is arbitrary and unreasonable, has no rational relation to the prevention of any offense or evil and is not in the interest of the public health, safety, morals, or welfare; that it deprives plaintiff of its liberty of contract, impairs the obligation of its existing contracts and deprives plaintiff of its property without due process of law all in violation of Section 13, Article 1 of the Constitution of the State of North Dakota providing that no person shall be deprived of life, liberty and property without due process of law; and in violation of Section 16, Article 1 of the Constitution of the State of North Dakota providing that no law impairing the obligation of contract shall ever be passed; and in violation of the 14th Amendment to the Constitution of the United States providing that no state shall deprive any person of life, liberty or property without due process of law or deny to any person the equal protection of the law.
*644 The rule is well settled that one may not attack the constitutionality of a statute unless he can show that he is injured thereby. We quote the following from 16 C.J.S., Constitutional Law, § 76, pp. 234-235.
"One may attack the constitutionality of a statute only when and as far as it is being, or is about to be, applied to his disadvantage; and to raise the question he must show that the alleged unconstitutional feature of the statute injures him and so operates as to deprive him of a constitutional right."
And in the case of Asbury Hospital v. Cass County, 72 N.D. 359, at page 392, 7 N.W.2d 438, 456, this court held:
"It is an elementary rule repeatedly announced with practical unanimity by the courts of this country, including the Supreme Court of the United States and this Court, that a person can question the constitutionality of a statute only when and in so far as it is sought to be applied to his disadvantage."
The first question for consideration is whether or not the respondent is injuriously affected by the operation of the statute challenged. The appellants having elected to stand on their demurrer in this action thereby admit the truth of all facts well pleaded in the complaint. We are of the opinion that the complaint alleges facts which sufficiently show that the plaintiff-respondent has been injuriously affected in its business operations by the provisions of the statute challenged. The inquiry then follows whether the rights of the respondent thus affected are such as are protected by the constitutions of the State and of the United States.
The appellants in this case have not pointed out any vice or injurious consequence to the public resulting from the contracts or transactions of the respondent which would require preventive legislation under the police power of the state. They have not pointed to any practice by the respondents which would stifle competition or create a monopoly in the dairy industry. The trade practices prohibited by said Chapter 303 have been followed for many years in the past and the dairy industry has expanded and become an important economic factor in the state.
Respondent's complaint states that at the present time it has a great number of existing contracts between itself and retail dealer customers involving the various kinds of transactions described in the Statute all of which contracts are now in force; but under the provisions of Section 2, of said Chapter 303 are illegal and void.
Under Subdivision 2, Subsection d, of Section 1 of said Chapter 303 it is unlawful for a wholesaler to loan or underwrite loans to a retailer except that vendors may help retailers to buy dairy refrigeration, storage, display, and selling equipment, when the loan is for no more than ninety percent of the purchase price, secured by a chattel mortgage bearing interest at five percent and payable in not more than thirty-six months. Under the statute quoted the wholesaler is prohibited from extending credit without taking a chattel mortgage and is limited to a rate of interest less than the statutory contract rate. It would be illegal and in violation of said statute to extend credit for more than thirty-six months regardless of the financial ability of the retailer to whom such credit was extended.
Subdivision 2, Subsection g, Section 1 of said Chapter makes it illegal to:
"extend or give credit to any retail outlet in excess of thirty days payable fifteen days thereafter."
Subdivision 2, Subsection c, of said Statute makes it unlawful to:
"Make payments of money, credit, gifts, or loans to retail outlets as rental for the storage or display of dairy products on the premises where they are offered for sale."
The appellants argue that the dairy industry is affected with a public interest and that *645 the provisions of Chapter 303 are reasonable regulations of trade practices in the dairy industry under the police power of the State.
The general rule as to the enactment of legislation under the police power of the State is stated in 16 C.J.S., Constitutional Law, § 195, pp. XXX-XXX-XXX as follows:
"In order that a statute may be sustained as an exercise of the police power, the law must, in fact, be a police law, and the courts must be able to see that the enactment has for its object the prevention of some offense or manifest evil or the preservation of the public health, safety, morals, or general welfare, that there is some clear, real, and substantial connection between the assumed purpose of the enactment and the actual provisions thereof, and that the latter do in some plain, appreciable, and appropriate manner tend toward the accomplishment of the object for which the power is exercised."
"Determination by a legislature as to what constitutes a proper exercise of its police power is not final and conclusive, but is subject to supervision by the courts." Paramount Picture v. Langer, D.C., 23 F. Supp. 890, 896.
"The question in each case is whether the legislature has adopted the statute in exercise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression or spoliation of a particular class." Holden v. Hardy, 169 U.S. 366, 398, 18 S. Ct. 383, 390, 42 L. Ed. 780.
"A state may not, under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them." Burns Baking Co. v. Bryan, 264 U.S. 504, 513, 44 S. Ct. 412, 413, 68 L. Ed. 813, 32 A.L.R. 661.
"If the means employed have no real, substantial relation to public objects which government may legally accomplish,if they are arbitrary and unreasonable, beyond the necessities of the case,the judiciary will disregard mere forms, and interfere for the protection of rights injuriously affected by such illegal action." Chicago, B. & Q. Ry. Co. v. Illinois, 200 U.S. 561, 593, 26 S. Ct. 341, 350, 50 L. Ed. 596.
With reference to the liberty of contract the rule is stated as follows: in 16 C.J.S., Constitutional Law, § 210, p. 1067:
"The liberty to contract, as guaranteed by the various constitutions, includes the right of parties to incorporate into their contracts, otherwise valid, such terms as may be mutually satisfactory to them, the right to mortgage property, the right to fix a price for personal services, and the right to decline to enter into a contract."
In the case of State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914, 920, this court held unconstitutional a statute requiring photographers to take an examination and procure a license in order to follow their occupation. We quote from the opinion:
"The regulatory statute enacted in the exercise of the police powers must be reasonable. Its real purpose must be to protect the public health, morals or general welfare, and it must be reasonably required and suited to attain that purpose. It cannot masquerade as an exercise of the police power and arbitrarily invade personal rights or private property. It cannot disregard the constitutional guaranties."
It is necessary that the Statute such as the one under consideration here, in order to be valid, must be aimed at some evil or sinister purpose such as injury to competition, destruction of competition or creation of a monopoly. The Supreme Court of the United States so held in the case of Fairmount *646 Creamery Co. v. Minnesota, 274 U.S. 1, 47 S. Ct. 506, 508, 71 L. Ed. 693. The Supreme Court of Minnesota had upheld a statute prohibiting any person engaged in the business of buying milk and cream or butterfat to discriminate between localities by paying a higher price in one locality than in another after making due allowance for the difference in cost of transportation. The Supreme Court of the United States reversed this decision and held the Statute unconstitutional, the court stating:
"As the inhibition of the statute applies irrespective of motive, we have an obvious attempt to destroy plaintiff in error's liberty to enter into normal contracts, long regarded, not only as essential to the freedom of trade and commerce, but also as beneficial to the public."
The court said further:
"The real question comes to this: May the state, in order to prevent some strong buyers of cream from doing things which may tend to monopoly, inhibit plaintiff in error from carrying on its business in the usual way heretofore regarded as both moral and beneficial to the public and not shown now to be accompanied by evil results as ordinary incidents? Former decisions here require a negative answer. We think the inhibition of the statute has no reasonable relation to the anticipated evil-high bidding by some with purpose to monopolize or destroy competition. Looking through form to substance, it clearly and unmistakably infringes private rights, whose exercise does not ordinarily produce evil consequences, but the reverse."
It is true, of course, that the legislature may, under the police power of the state, enact fair and reasonable regulations governing trade practices employed by those engaged in an industry affected with a public interest; but such regulations must not be arbitrary and discriminatory so as to interfere with legitimate property rights. Such regulations must have a real and substantial relation to some objectionable activity which is detrimental to the general welfare of the public. The governing principle to be followed by legislatures in the enactment of regulatory statutes is stated in Chicago, B. & Q. Ry. v. State of Illinois, supra, as follows:
"If the means employed have no real, substantial relation to public objects which government may legally accomplish,if they are arbitrary and unreasonable, beyond the necessities of the case,the judiciary will disregard mere forms, and interfere for the protection of rights injuriously affected by such illegal action."
The respondent states in its brief that it "is not involved with the provisions of Section 1, subd. 2, subsecs. a, c, f, and h, as in its business those sections are not violated." Since those provisions are not challenged it is not necessary to determine their validity and we refrain from doing so. This leaves for consideration subsections b, e, d, and g, of Section 1, subd. 2.
It is the contention of appellants that the practices prohibited by said subsection restrict competition and tend to create a monopoly. Subsection b, prohibits the wholesaler from furnishing, giving, lending, selling or renting to a retailer any advertising materials or matter except material or matter advertising the wholesaler's own products, providing that not more than one third of the space or cost of the advertising material or matter be used to identify the retailer. This subsection prohibits not only the furnishing of signs or advertising material, but also the renting, lending, or selling on any terms whatsoever any such advertising. The wholesaler cannot under any circumstances furnish advertising material, no matter how reasonable the rate, except within the limitation of the statute. There is no showing in the record that the transactions prohibited by *647 this section bear any relation to the public health, morals, or general welfare.
Subsection c, prohibits payments by a wholesaler of money, credit, gifts or loans to retailers as rental for the storage or display of dairy products on the premises where they are offered for sale. Under this subsection the products of the wholesaler may be sold by a retailer at his place of business but he cannot accept payment for storage or display of the products of the wholesaler.
Subsection d, prohibits a wholesaler from making loans or underwriting loans to a retailer when the loan is for more than ninety percent of the purchase price; and where a loan is made it cannot be made for more than thirty-six months and must be secured by a chattel mortgage bearing interest at five percent.
It is difficult to see that the trade practices prohibited by subsection d, would stifle competition or tend to create monopolies. It would rather do the opposite. Except for the inhibitions in the statute the wholesaler could extend credit on more liberal terms to a retailer who might need financial assistance and thus enable him to continue in business. Any loan made by a wholesaler to a retailer on the strength of the credit of the retailer or secured by mortgage on any other class of property than the special dairy refrigeration equipment, is illegal under said section. It is not specified in the statute, nor is there any evidence in the record that such a loan bears a relation to any injurious trade practice shown to exist in the dairy industry.
Subdivision g, of said Chapter 303 prohibits wholesalers from giving credit to any retailer in excess of thirty days payable in fifteen days thereafter. This provision clearly is a restriction upon a wholesaler's right to extend credit to a retailer in accordance with legitimate business practices.
It appears that the respondent has numerous existing contracts between itself and retail dealer customers involving the various kinds of transactions, all of which contracts under the provisions of Section 2 of said Chapter 303 are illegal and void if the validity of the statute is sustained.
The trade practices prohibited by subsections b, d, e, and g, of said Chapter 303 are not in themselves objectionable. They are legitimate business transactions between wholesalers and retailers. There are no relevant facts in the record showing that these practices have had a tendency to restrict competition or to create monopolies. Neither is there any evidence in the record that the practices prohibited bear any reasonable relation to any vice or evil affecting the public health, morals, or general welfare.
The provisions of said Chapter 303 challenged by respondent are all-inclusive condemnations of all acts prohibited without specifying that such acts are connected with any unjust discrimination, or with any agreement restricting competition, or creating a monopoly. We think the following statement from the opinion of the Supreme Court of the United States in the case of Tyson & Bros. etc. v. Banton, 273, U.S. 418, 47 S. Ct. 426, 432, 71 L. Ed. 718, is applicable to the issues in the instant case.
"It is not permissible to enact a law which, in effect, spreads an all-inclusive net for the feet of everybody upon the chance that, while the innocent will surely be entangled in its meshes, some wrongdoers also may be caught."
We arrive at the conclusion that subdivisions b, d, e, and g, of Section 1, subd. 2, Chapter 303, 1955 Session Laws of North Dakota, are arbitrary and unreasonable restrictions upon lawful business practices; that no showing has been made that said sections have any reasonable relation to practices restricting competition or creating monopolies in the dairy industry; that the enforcement thereof would result in the impairment of respondent's right of contract and property rights, and, that the statutes challenged are violative of Sections 13, and *648 16 of the Constitution of the State of North Dakota.
The judgment of the district court held Chapter 303 Session Laws of 1955 unconstitutional in its entirety. Since we have not passed on the validity of certain parts of said Chapter the judgment of the district court is modified to conform to this opinion and as so modified it is affirmed.
GRIMSON, C. J., and JOHNSON, BURKE and MORRIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609438/ | 664 So.2d 1303 (1995)
REGIONAL TRANSIT AUTHORITY
v.
Donald LEMOINE and State Farm Insurance Company.
Donald LEMOINE
v.
Johnnie WARNER and Regional Transit Authority.
Nos. 93-CA-1896, 93-CA-1897.
Court of Appeal of Louisiana, Fourth Circuit.
November 16, 1995.
Rehearing Denied January 17, 1996.
*1304 Law Offices of Tonry & Ginart, Michael C. Ginart, Jr., Chalmette, for Appellant, Lemoine.
Berrigan, Litchfield, Schonekas, Mann & Clement, Charles F. Wartelle, New Orleans, for Appellees, RTA and Warner.
Before BARRY, BYRNES, and LANDRIEU, JJ.
BARRY, Judge.
Donald Lemoine's truck struck the rear of a Regional Transit Authority bus which was stopped partially in Lemoine's travel lane. RTA sued Lemoine and State Farm Insurance Company, his insurer, for damages. State Farm reconvened against the RTA bus driver, Johnnie Warner, for stopping illegally on a street and against RTA for improper supervision and instruction of Warner. In a separate suit Lemoine sued Warner, RTA, Transit Management of Southeast Louisiana, Inc. (TMSLI), Warner's employer, and Progressive Casualty Insurance Company, TMSLI's insurer. Lemoine alleged that the bus was halfway parked in a traffic lane without emergency lights during a rainstorm and he could not see the bus before the collision. RTA and Warner reconvened against Lemoine and third-partied State Farm. The cases were consolidated and the appeals have been consolidated.
After a bifurcated trial the jury concluded that Warner and TMSLI were not at fault. The trial judge ruled that RTA was not at fault. Judgment was rendered against Lemoine and State Farm and their claims were dismissed. RTA's settlement with State Farm was acknowledged.
Lemoine's appeal asserts:
1) the jury instruction to disregard the opinion testimony of a fact witness was erroneous;
2) it was improper to allow Kennedy Johnson to testify because Johnson's current address was not listed in a supplemental answer to an interrogatory;
3) the trial court should have instructed the jury as to the application of 828 M.C.S. § 38-242.01;
4) the trial court and the jury erred by not finding the bus driver, his employer and RTA at fault.
TESTIMONY
It was stipulated that Johnnie Warner was in the course and scope of his work as a bus *1305 driver employed by TMSLI at the time of the accident and the bus was owned by RTA. Outside of the jury's presence it was stipulated that State Farm settled with RTA for $2,270.03 for damages to the bus plus interest and paid Lemoine $8,660.75 under his collision coverage for damage to his truck.[1] The jury interrogatories did not cover property damage and the jury was told only the stipulated amount of damage to the truck and the bus.
Donald Lemoine, an electrician, testified that October 13, 1989 was a payday and he stopped and consumed more than three beers before 6:00 p.m. when he picked up his son, Nicky. He was driving a Chevy S-10 and it was raining and getting dark. His dim lights and windshield wipers were on. Lemoine turned into the left lane of northbound traffic on General Meyer Ave. (a four lane-two way street) and was traveling at 30-35 m.p.h.. The car in front of him was traveling at 20-25 m.p.h. and caused a spray which obstructed his vision. He moved into the right lane to pass the car. Nicky hollered "Daddy" and Lemoine turned to look at his son. Thereafter, all Lemoine remembered was waking up in the hospital. He did not see the warning lights of the stopped bus or the construction barriers farther down General Meyer.
Nicky Lemoine (11 years old at the time of the accident) testified by videotaped deposition that it was raining and dark as his father changed from the left to the right lane. Nicky looked up, saw something black, and screamed. His father's truck hit the bus. Nicky did not notice prior to the accident whether the bus had lights and said: "[I]f the lights were on, we would have never hit it, because we would have seen it." Nicky testified that the bus was "kind of in the road and kind of not," but it was "mainly in the road." The bus driver returned to the bus and turned on the lights. Nicky also did not see the warning lights for the construction project which he knew was about two blocks ahead.
Johnnie Warner, an RTA bus driver for four years, testified that he relieved another driver on the outbound route and started the inbound route about 7:35 p.m. The bus lights were on. There were two passengers on the bus when he stopped at about 7:40 p.m. on General Meyer near the corner of Roselyn Park Place to use the comfort station on that route, a Chevron Service Station across the street. He pulled the bus off the roadway as far as possible without bogging down because of a down slope to a drainage ditch. Warner put on the hand brake, placed the bus in neutral, and turned on the hazard lights. According to Warner, the bus was eight or nine inches in the right lane of traffic. Warner stated that the pictures at trial (dated January 19, 1993) showed the shoulder of the road after it had been upgraded, not as it looked on the night of the accident. He explained that he could not drive across the double yellow lines to go over to the service station. He could not park farther down the street because of time constraints. He was away from the bus three to four minutes. Warner testified that he left the bus running pursuant to instructions in pamphlets or drivers' alerts circulated daily with more current information than the manual (which stated that the bus should have been shut down). Warner walked across General Meyer to the restroom. While he was in the bathroom, he heard a crash. He went outside and saw a truck that had crashed into the bus' left rear bumper.
Theresa Savoie, who lived on the corner of General Meyer and Roselyn Park Place, testified that she and her grandson went outside after the crash and saw that a truck hit a bus which was partly in the right lane of General Meyer. She said that the RTA bus had no lights until the driver returned; however, on cross-examination she did not know whether lights were on inside the bus. Ms. Savoie said that one-fourth or more of the bus was in the street. She had seen buses stopping there because the drivers used the Chevron *1306 restroom. She said that some drivers pulled off the street completely and used flashers and some did not. Ms. Savoie stated that buses continue to park there because of the comfort station. She has complained to the RTA about the practice to no avail. Ms. Savoie said that there were construction barricades extending into a lane of traffic during the resurfacing of Huntley Dr. (the next cross street and traffic light) at the time of the accident. Ms. Savoie noted that General Meyer was re-surfaced in 1990 or 1991 after the accident.
Mrs. Gloria Lemoine, Donald Lemoine's girlfriend at the time of the accident and wife at the time of trial, testified that Nicky called her immediately after the accident from a nearby house. She went to the scene and did not see lights on the bus. She said that one-third of the bus was on the street. After Lemoine left in the ambulance, she saw red lights flashing on the back of the bus.
Kennedy Johnson, a bus passenger, stated that he was on the bus when the accident happened. The driver drove the bus onto the shoulder and left for about five minutes. The engine was running and the lights were on when the bus was struck. He saw the emergency lights flashing. Johnson also saw flashing lights ahead because of the construction work about 1½ blocks away. Johnson said that there was enough room for the S-10 truck to pass the bus which extended 13 or 14 inches into the right lane of traffic.
Julius Sasso was driving in the right lane on General Meyer and testified that he saw the accident. Sasso was traveling 25-30 m.p.h. (the speed limit was 35 m.p.h.) and Lemoine passed him in the left lane. Lemoine moved back into the right lane to go around a slower moving vehicle in the left lane when he struck the bus. Sasso watched Lemoine accelerate, hit the brakes, and skid into the bus. Sasso stopped to help. He stated that the bus was in the right lane and a vehicle had to move into the left lane to pass the bus and the construction work. From two to three blocks away Sasso could see the bus' lights as well as the construction barricades located in the right lane.
Officer Paul Schubert, accident reconstruction expert, testified that he reviewed the police accident report, went to the scene at the end of July, 1992, took measurements, obtained manufacturers' dimensions on the bus and the truck, and observed RTA buses pull onto the shoulder at the accident location. He was not aware that General Meyer had been re-surfaced. Officer Schubert referenced RTA's photo exhibits of the accident scene taken on January 19, 1993. Based on his measurements the right northbound lane of General Meyer was nine feet, nine inches wide, the left lane was nine feet, ten inches wide, and the shoulder was seven feet, seven inches wide. Lemoine's Chevy S-10 truck was five feet, two inches wide and the RTA bus was eight feet, six inches wide. Therefore, there was a slightly over eight feet open in the right street lane if Lemoine drove to the edge of the shoulder. Officer Schubert concluded that Lemoine's truck had sufficient room to pass the bus in the right lane.
Dr. Culicchia, Lemoine's neurosurgeon, testified that he was called by an emergency room physician at JoEllen Smith Hospital where Lemoine was brought from the accident scene. He had Lemoine transferred to Meadowcrest Hospital where Lemoine was admitted at 3:45 a.m. on July 14, 1989. Lemoine was combative and had a .12 blood alcohol level. Dr. Culicchia stated that Lemoine had a drinking problem. On February 25, 1990 he fell in his bathroom, hit his head and was rushed to the hospital. At that time he had a .362 blood alcohol level, an amount which most people could not survive.
A/E No. 1OPINION TESTIMONY
Lemoine argues that the trial court erred by instructing the jury not accept the lay opinion of Ms. Savoie. Ms. Savoie testified that she saw buses stop at the accident location all the time. She stated:
Some bus drivers pull completely off the shoulder. Some bus drivers don't. They stay in the street. I know that because I used to work in my yard all the time. I have seen this happen many, many times *1307 that the buses do not pull off in a safe zone.
RTA objected and was overruled. The court stated: "A witness is allowed to express a witness' statement." The trial court further explained to the jury:
Ladies and gentlemen, let me clarify something for you. I previously indicated to you what an expert witness is. This is a fact witness. A fact witness may not state an opinion, so any opinion that a fact witness testifies to is not admissible evidence and you should disregard opinions given by fact witnesses, whether it be Miss Savoie or any other fact witness.
Ms. Savoie testified that some drivers put on emergency flashers when they stopped and some did not. Later she stated: "It aggravates me that the bus drivers are so negligent in the safety of other people that they do not pull off the road...."
Ms. Savoie's opinion testimony does not clearly fall under La.C.E. art. 701 which allows the limited testimony of a lay witness as to an opinion or inference that is rationally based on the witness' perception and helpful to an understanding of his testimony or the determination of a fact at issue. The trial court is vested with broad discretion in the administration of the article. Comments (b) to C.E. art. 701. Young v. Armadores de Cabotaje, S.A., 617 So.2d 517 (La.App. 4th Cir.1993), writs denied, 625 So.2d 170 and 171, cert. denied, ___ U.S. ___, 114 S.Ct. 1067, 127 L.Ed.2d 386 (1994), cited by Lemoine, is not on point. In Young longshoremen were allowed to testify as to the safety of the stow (the determinative factual issue) based on their experience.
Regardless, the trial court overruled RTA's objection to Ms. Savoie's testimony. The court did not curtail Lemoine's questioning of Ms. Savoie, who testified about her observations and opinions about negligent bus drivers not pulling completely off the road. She expressed aggravation at the drivers' "negligence" as to the safety of others (without any objection).
There was no abuse of the trial court's discretion and this assignment has no merit.
A/E NO. 2JOHNSON'S TESTIMONY
Lemoine argues that Kennedy Johnson, a passenger on the bus, should not have been allowed to testify because his current address was not provided in a supplemental answer to an interrogatory as required by La.C.C.P. art. 1428. The trial court is vested with much discretion to control trial proceedings. La.C.C.P. art. 1631. See Bush v. Winn-Dixie of Louisiana, Inc., 573 So.2d 508 (La.App. 4th Cir.1990), writ denied, 578 So.2d 930 (La.1991); McAuliffe v. Cashio, 508 So.2d 1028 (La.App. 5th Cir.1987). Only upon a showing of an abuse of that discretion should an appellate court intervene. Simoneaux v. Humedicenters, Inc., 93-2044 (La. App. 4 Cir. 8/30/94); 642 So.2d 318.
When the defendants (RTA, TMSLI, and Warner) called Johnson as a rebuttal witness on the second day of trial, Lemoine objected partially on the basis that the defendants did not provide Johnson's current address for deposition purposes. Lemoine argued that the defendants obtained Johnson's correct address subsequent to providing his last known address (wrong address) in response to an interrogatory. The defendants conceded that they had Johnson's address several months before trial, but did not intend to call him as a witness until Nicky Lemoine stated in his deposition testimony on June 2, 1993 that the bus lights were not on. The case was called for trial June 2, 1993, all counsel stated that they were ready to proceed, and the matter was held open until June 15, 1993 for jury selection. Johnson was called to testify on June 16, 1993.
The trial court noted that Johnson had been timely disclosed as a witness and Lemoine was put on notice on the first day of trial when the court read the list of witnesses. Counsel had the opportunity to depose Johnson overnight. The trial court declared that it would hear Johnson's testimony and entertain motions for a new trial or a judgment notwithstanding the verdict if the testimony caused injustice. No motions were filed.
*1308 Johnson was timely disclosed as a witness, his last known address provided, and he was named on the first day of trial. We find no abuse of the trial court's discretion. This assignment has no merit.
A/E No. 3JURY INSTRUCTION
Lemoine assigns as error the trial court's refusal to instruct the jury pursuant to 828 M.C.S. § 38-242.01 and its conclusion that La.R.S. 32:296 gave the bus driver the right to stop the bus under facts of this case. The court's conclusions would fall more properly under Lemoine's fourth assignment of error. In brief Lemoine states that the jury instructions were not transcribed and he is "unable to show what the court did instruct the jury." Lemoine contends that the trial court's transcribed comments before and after the jury charge show that the instructions pursuant to 828 M.C.S. § 38-2402.01 were not given. Therefore, our review is limited to whether an instruction relating to the ordinance should have been added to the jury charge.
Lemoine contends that the jury was improperly charged, the verdict should be reversed, and this Court should make a de novo determination under Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). We note that an erroneous jury instruction would only affect the jury verdict as to TMSLI and Warner and not the trial court's decision as to RTA.
A jury instruction as a whole must reflect the applicable law in light of the pleadings and facts of the case. Girvan v. New Orleans Public Service, Inc., 94-0681 (La.App. 4 Cir. 11/30/94), 646 So.2d 481, writ denied, 94-3169 (La. 3/10/95), 650 So.2d 1178. The adequacy of the instruction is determined in light of the instructions as a whole. Sons v. Delaune, 634 So.2d 1212 (La.App. 1st Cir.1993), writ denied, 94-0729 (La. 5/6/94); 637 So.2d 1050. The discovery of an error in a jury instruction does not justify a trial de novo without measuring the gravity and degree of the error and considering the instructions as a whole and the circumstances of the case. Kennedy v. St. Charles General Hospital Auxiliary, 630 So.2d 888 (La.App. 4th Cir.1993), writ denied, 94-0269 (La. 3/18/94); 634 So.2d 863. When deciding whether an error in the jury instruction constitutes reversible error, an appellate court must consider if the erroneous instruction probably contributed to the jury verdict. Kibble v. B.P.O. Elks Lodge # 30, 640 So.2d 267 (La. App. 4th Cir.1993), writ denied, 94-0922 (La. 5/20/94); 641 So.2d 204.
According to the transcript Lemoine requested a jury instruction relating to M.C.S. § 38-242.01 which provides (according to the proffered copy):
It shall be unlawful to park any truck tractor, semitrailer, bus, school bus or freight-carrying vehicle in the following areas unless actively engaged in loading or unloading:
(a) In an RD, RM or RS Residential District as defined by the Comprehensive Zoning Ordinance of the City of New Orleans.
Lemoine also proffered a zoning map which showed the accident location is zoned RS2.
The trial court determined that the quoted section related to overnight parking or parking a "semi-truck" or "big bus" during the day in a residential neighborhood, but not whether a bus could stop briefly. The court concluded that the governing ordinances and laws were set forth in the jury charge and did not add the additional charge relating to § 38-242.01.
After the jury instructions were given, Lemoine again requested that the ordinance be given, but the court stood by its previous reasons. The court noted that § 38-242.01 related to a parked vehicle. The court declared that reading § 38-242 (the preceding section which prohibited parking a vehicle on a street for longer than twenty-four hours) with § 38-242.01 showed that the section did not apply under these facts.
828 M.C.S. § 38-242.01 is not on point because the RTA bus was not parked, but had stopped briefly on a shoulder for the *1309 driver to use the restroom. The trial court did not err by refusing to give the additional instruction. This assignment has no merit.
A/E No. 4MANIFEST ERROR
Lemoine argues that the court and the jury manifestly erred by finding that RTA, TMSLI, and Warner were not negligent. He contends that the exceptions of La.R.S. 32:296, which gives the RTA bus the right to stop on the shoulder according to the trial court, do not apply. La.R.S. 32:296 provides:
No person shall stop, park, or leave standing any unattended vehicle on any state highway shoulder when such stopping or parking on the highway shoulder shall obstruct the flow of traffic or is a hazard to public safety, unless such stopping, parking, or standing is made necessary by an emergency, except:
(1) In those areas designated as parking areas by the Department of Transportation and Development, or
(2) By any public utility personnel or public utility equipment engaged in the operation of the utility business, public vehicles owned by public bodies which are engaged in the conduct of official business, or privately-owned vehicles which are engaged in services authorized by the local governing authority.
Lemoine argues that leaving an unattended vehicle partially in a travel lane violates La.R.S. 32:141A, which provides that "outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway...." Lemoine submits that Warner was negligent per se and should be found at fault.
However, a violation of a statute, which constitutes negligence per se, is actionable only when it is shown that the violation was the legal cause of the accident. Poland v. Glenn, 623 So.2d 227 (La.App. 2d Cir. 1993), writ denied, 629 So.2d 1171 (La.1993). Negligent conduct is a cause-in-fact if it is considered a substantial factor in bringing about the harm. Armand v. Louisiana Power & Light Co., 482 So.2d 802 (La.App. 4th Cir.1986), writ denied, 484 So.2d 669 (La. 1986). To prove liability under a duty-risk analysis, the plaintiff must establish that the defendant's conduct was the cause-in-fact of the resulting harm, that the defendant owed a duty to the plaintiff which was breached and the risk of harm was within the scope of protection afforded by the duty breached. Campbell v. Louisiana Department of Transportation and Development, 94-1052 (La. 1/17/95); 648 So.2d 898.
Here the triers of fact concluded that Warner's conduct (assuming arguendo it constituted a statutory violation) was not the cause of the accident. Lemoine's admitted intoxication and actions, which violated his duty to use reasonable care in the operation of his vehicle, Campbell, 648 So.2d at 898, and his duty to exercise greater care when changing lanes, Averna v. Industrial Fabrication and Marine Service, Inc., 562 So.2d 1157 (La.App. 4th Cir.1990), caused the collision.
According to its reasons for judgment the trial court believed the testimony of Sasso, Johnson and Warner that the flashers of the bus were turned on. The court accepted the testimony of Warner, Savoie and Johnson that the bus was partially blocking the right lane of traffic (not less than 9 nor more than 25 inches). The court considered the weather, the time of day, the lack of daylight, and the partial blocking of the roadway. The court decided that the bus did not create an unreasonable risk of harm to motorists on General Meyer and was not the proximate cause of the accident.
The court noted that Lemoine was intoxicated at the time of the accident and more probably than not his intoxication was severe. Lemoine admitted that he drank more than three beers before getting into his truck to pick up his son. Dr. Culicchia stated that Lemoine had a drinking problem and his blood alcohol level was .12. The court noted that the intoxication was a major cause of the accident. Lemoine did not have his bright lights on, changed lanes without observing if the lane was clear, attempted to pass a car in the rain, and was exceeding a reasonable rate *1310 of speed under the circumstances. The court concluded that Lemoine's actions constituted the cause-in-fact and proximate cause of the accident (the risk of harm was within the scope of the protection afforded by Lemoine's duty which was breached) and apportioned all the fault to Lemoine.
The jury found that Warner (and therefore TMSLI) was not negligent. Implicit in that finding was a conclusion that Lemoine caused the accident and was completely at fault.
Deference is owed to the factfinder, but appellate courts have a constitutional duty to review facts. "[T]he reviewing court may not merely decide if it would have found the facts of the case differently. Rather, notwithstanding the belief that they might have decided it differently, the court of appeal should affirm the trial court where the latter's judgment is not clearly wrong or manifestly erroneous." Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112 (La. 7/5/94), 639 So.2d 216, 221. Although this Court may have decided differently, we find no manifest error.
The judgment is affirmed.
AFFIRMED.
NOTES
[1] The stipulation at the beginning of trial outside of the jury's presence listed the amount of damage to the truck to be $8,660.75. The trial court told the jury that the stipulated amount of damage to the truck was $8,860.75. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609447/ | 21 So.3d 797 (2008)
JASON JAMAAL EDMUND
v.
STATE.
No. CR-06-0866.
Court of Criminal Appeals of Alabama.
March 28, 2008.
Decision of the Alabama Court of Criminal Appeals Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609480/ | 21 So. 3d 829 (2009)
SMITH
v.
STATE.
No. 4D08-5141.
District Court of Appeal of Florida, Fourth District.
November 12, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609462/ | 664 So. 2d 16 (1995)
Milton A. NORVILLE, PH.D. d/b/a East Shores Psychological Services and Comprehensive Homecare, Inc., Appellant,
v.
BELLSOUTH ADVERTISING AND PUBLISHING CORPORATION, Appellee.
No. 95-1203.
District Court of Appeal of Florida, Third District.
November 8, 1995.
Rehearing Denied December 20, 1995.
Phillips & Phillips, and David P. Phillips, Lauderdale Lakes, for appellant.
Howard W. Mazloff, Miami, for appellee.
Before BASKIN, COPE and GERSTEN, JJ.
PER CURIAM.
Appellant, Milton A. Norville, Ph.D. (Norville), d/b/a East Shores Psychological Services and Comprehensive Homecare, Inc., appeals a writ of execution to satisfy a default judgment in favor of appellee, Bell South Advertising and Publishing Corporation (Bell South). We reverse.
Bell South filed suit against "Milton A. Norville, Ph.D. d/b/a East Shores Psychological Services and Comprehensive Homecare, Inc." Bell South's complaint characterized the appellant as "a corporation doing business in North Miami." Because the appellant failed to file an answer to the complaint, the trial court entered a default judgment in favor of Bell South.
After entering the default judgment, the trial court held that Bell South could recover against Norville's noncorporate property. While Norville challenges execution against his personal property, he neither challenges the propriety of the default judgment nor seeks to have the judgment set aside.
Entering a judgment against a nonparty is fundamental error. Alger v. Peters, 88 So. 2d 903 (Fla. 1956) (en banc); see Chase v. Turner, 560 So. 2d 1317 (Fla. 1st DCA 1990); Pan Am. Bank of Miami v. Osgood, 383 So. 2d 1095 (Fla. 3d DCA), rev. denied, *17 392 So. 2d 1377 (Fla. 1980); Moretto v. Staub, 370 So. 2d 1220 (Fla. 3d DCA 1979); Board of Pub. Instruction of Dade County v. Feller, 219 So. 2d 737 (Fla. 3d DCA), cert. denied, 225 So. 2d 917 (Fla. 1969).
As stated by the Florida Supreme Court, "[i]t is so fundamental to our concept of justice that a citation of supporting authorities is unnecessary to hold that the rights of an individual cannot be adjudicated in a judicial proceeding to which he has not been made a party and from which he has literally been excluded by the failure of the moving party to bring him properly into court." Alger, 88 So.2d at 906.
Here, nothing in the complaint indicated Bell South intended to sue Norville as an individual. To the contrary, the language of the case caption shows that Bell South sued the business conducted by Norville in his professional capacity. Bell South's failure to sue Norville individually protects Norville's personal assets from execution pursuant to the judgment against Norville's corporation. See Harris v. Martin, 606 So. 2d 1212 (Fla. 5th DCA 1992) (holding that judgment against party "as trustee" was not against party individually).
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609457/ | 664 So. 2d 662 (1995)
Sherry GORUM, Plaintiff,
v.
LOUISIANA HOSPITAL ASSOCIATION EMPLOYEE BENEFIT TRUST, Defendant.
No. 95-468.
Court of Appeal of Louisiana, Third Circuit.
November 2, 1995.
*663 Roger G. Burgess, Lake Charles, for Sherry Gorum.
Randall Louis Champagne, Lafayette, Cathryn Simpson Long, Baton Rouge, for La. Hospital Association Employee Benefit Trust.
Christopher M. Trahan, Lake Charles, for TMG Life Ins. Co.
Before THIBODEAUX, WOODARD and KNIGHT[*], JJ.
KNIGHT, Judge.
The plaintiff-in-intervention, TMG Life Insurance (TMG), appeals, requesting that this court reverse the trial court's grant of an exception of no right of action raised by the defendant-in-intervention, Louisiana Hospital Association Employee Benefit Trust (LHAEBT). Upon review of the record, we find that the trial court in its judgment erroneously granted an exception of no cause of action. We reverse the trial court judgment granting the exception of no cause of action as to TMG and remand the case with instructions.
FACTS
On February 14, 1991, Amber Gorum was seriously injured in a go-cart accident. Amber is the step-daughter of the plaintiff, Sherry Gorum, and the natural daughter of Glendon B. Gorum, Sherry's husband. At the time of the accident Sherry worked for the West Calcasieu-Cameron Hospital and was enrolled in the LHAEBT health insurance benefits plan through her employer. Glendon was insured by Association Life Insurance Company (Association) through his employer and kept Amber insured under that policy as required in his April 8, 1985 divorce decree.
On February 5, 1992, Sherry filed suit alleging that the LHAEBT plan covered Amber, that it was indebted to her for medical and hospital bills incurred by Amber and that she had filed a claim which LHAEBT had refused to pay. LHAEBT denied that Amber was covered by the policy.
Association paid over $300,000.00 in medical benefits on behalf of Amber. Association's successor in interest, TMG, filed a petition of intervention in this suit on January 31, 1994. TMG alleged that LHAEBT was Amber's primary insurer at the time of the accident and that LHAEBT should reimburse TMG for benefits owed by LHAEBT as the primary policy. Alternatively, TMG alleged that LHAEBT provided co-equal coverage and thus, owes reimbursement for half of Amber's medical and hospital expenses.
LHAEBT filed a peremptory exception of no right of action contending that it is a benefits plan established pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 USC § 1001, et seq., and that the civil enforcement provisions of ERISA precludes a right of action by TMG. The trial court in its opinion on the exception stated, "[a]s to the exception of No Right of Action ..., the Court finds that the exception should be maintained. The trust is an ERISA plan, ... TMG is not a proper party to intervene in this matter." However, the judgment signed by the trial court on December 21, 1994, provided:
IT IS ORDERED, ADJUDGED AND DECREED, that the Peremptory Exception of no Cause of action filed by the Louisiana Hospital Association Employee Benefit Trust against TMG Life Insurance Company be and same is hereby granted;
(Emphasis added.)
IT IS ORDERED, ADJUDGED AND DECREED, that the claims of TMG Life Insurance Company, which are presently pending before this Court, be and the same are hereby dismissed, with prejudice....
TMG appeals, urging as error improper granting of an exception of no right of action. We address TMG's assignment along with the erroneous trial court judgment.
*664 EXCEPTION
Where the opinion or reasons for judgment and the judgment contradict each other, the judgment prevails. Edwards on behalf of Edwards v. Saul, 93-1802 (La.App. 4 Cir. 5/26/94); 637 So. 2d 1258, writ denied, 94-1729 (La. 10/14/94); 643 So. 2d 161; Watts v. Aetna Cas. and Sur. Co., 574 So. 2d 364 (La.App. 1 Cir.), writ denied, 568 So. 2d 1089 (La.1990). Therefore, the trial court judgment signed in this case granting a peremptory exception of no cause of action prevails. Although a peremptory exception of no cause of action can be recognized by the trial court sua sponte, La.Code Civ.P. art. 927, a review of the record indicates that the court did not intend to do so. More important, though, is the fact that such an exception is not supported by the record. TMG states a cause of action in its petition, since an ERISA plan may be sued for failure to pay benefits owed. Accordingly, we reverse the granting of the exception of no cause of action and the dismissal of TMG's case with prejudice.
However, a peremptory exception of no right of action may be noticed by either the trial or appellate court sua sponte where the record supports such an action. La.Code Civ.P. art. 927. The exception is appropriate when the plaintiff does not have an interest in the subject matter of the suit or legal capacity to proceed with suit in a particular case. Moyers v. Altmann, 594 So. 2d 6 (La. App. 3 Cir.1992). "The main function of a peremptory exception of no right of action is to raise the question of whether a remedy afforded by law can be invoked by a particular plaintiff." Id. at 8. Since LHAEBT is an ERISA plan, article 927 must be read in conjunction with 29 USC § 1132(a), which sets out those persons empowered to bring a civil action, namely a participant, a beneficiary, a fiduciary of the plan and the Secretary of Labor. In particular, section 1132(a)(1)(b) provides that a participant or beneficiary may bring a civil action to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.
In addition, federal case law has held that since ERISA contains no anti-assignment provisions with regard to health care benefits of ERISA-governed medical plans, that ERISA health care benefits are assignable. Hermann Hosp. v. MEBA Medical & Benefits Plan, 845 F.2d 1286 (5th Cir.1988); Misic v. Building Service Employees' Health, 789 F.2d 1374 (9th Cir.1986). Citing these cases as authority, the court in Allstate Insurance Company v. Operating Engineers Local 324 Health Care Plan, 742 F. Supp. 952 (E.D.Mich.1990), found that a subrogee of an ERISA participant has standing to sue pursuant to 29 U.S.C. § 1132.
In its exception, LHAEBT alleges that TMG does not fit in the categories of participant, beneficiary or assignee of a participant or beneficiary and thus, has no right of action. TMG in its petition of intervention alleged that it was the successor in interest to Association, and that at the time of her accident Amber was covered by two group insurance plans, namely LHAEBT and Association. TMG also alleged that it had paid benefits in excess of $300,000.00 and was continuing to pay benefits. Finally, TMG alleged that LHAEBT was the primary insurance coverage for the injuries received by Amber or, in the alternative, alleged the two insurance policies provided coverage on an equal basis and thus, should have made payments on an equal basis. Nowhere in its petition does TMG allege that it is either a participant or a beneficiary of the plan or an assignee or subrogee thereof.
Although TMG failed to allege sufficient facts in its petition to give it a right of action, it must be given the opportunity to amend its petition to do so. La.Code Civ.P. art. 934 provides that:
When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.
TMG alleges in its appellate brief that it is a subrogee of the LHAEBT beneficiary, Amber. TMG also alleges that the insurance *665 policy taken out by Amber's father covering Amber gave TMG subrogation rights against LHAEBT when TMG paid benefits owed by LHAEBT. Since a subrogee of an ERISA plan beneficiary may bring a civil action for benefits, had TMG pleaded this in its petition it would have stated a right of action. Therefore, we remand this case to allow TMG an opportunity to amend its petition pursuant to La.Code Civ.P. Art. 934. However, since this case comes before us on a peremptory exception of no right of action, we do not reach or express an opinion as to the merits of this case.
DECREE
The granting of the exception of no cause of action is reversed. The case is remanded to the trial court in order to allow the plaintiff-in-intervention an opportunity to amend its petition to sufficiently state a right of action. Costs are assessed to defendant-in-intervention/appellee, LHAEBT.
REVERSED AND REMANDED WITH INSTRUCTIONS.
NOTES
[*] Judge William N. Knight of the Thirty-first Judicial District participated in this decision as judge pro tempore by appointment of the Louisiana Supreme Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609477/ | 664 So. 2d 551 (1995)
Dianne Stanford SOILEAU, Plaintiff-Appellee,
v.
Louis A. SOILEAU, Defendant-Appellant.
No. 95-578.
Court of Appeal of Louisiana, Third Circuit.
November 2, 1995.
Eric LaFleur, IDB, Ville Platte, for Dianne Stanford Soileau.
*552 John Blake Deshotels, Ville Platte, for Louis A. Soileau.
Before YELVERTON, DECUIR and PETERS, JJ.
DECUIR, Judge.
This is an appeal from a trial court's ruling granting use of a vehicle to Dianne Stanford Soileau, the estranged spouse of Louis A. Soileau. We affirm.
FACTS
Dianne Stanford Soileau and Louis Soileau physically separated on or about September 16, 1994, and formally filed for divorce on September 22, 1994. In addition, Dianne filed a rule to show cause why she should not be placed in possession of a 1993 Mercury Tracer for her use until the community property is properly partitioned.
Dianne was the only witness to testify at the hearing on the rule. She indicated that the parties had owned a Spectrum automobile, which they traded in on the Tracer at issue in this case. Dianne testified further that Louis used money he had obtained as back payment of Veterans Administration benefits to purchase the car for her. She indicated that Louis had bought the vehicle for her and told her that he was doing so because she deserved it.
Apparently, after the separation, Louis reconsidered. He used a key in his possession to remove the car from the parking lot of Dianne's place of employment while she worked inside. Since he also owned a Ford Truck, Dianne filed the rule at issue here to recover the Tracer so that she too might have transportation pending partition of the property.
Louis offered no evidence at the hearing. He contended that Dianne's own testimony indicated that the Tracer had been purchased with his separate funds and that she had failed to prove a donation of the vehicle. The trial court disagreed, finding that the vehicle had been donated and was therefore part of the community. The trial judge ordered that Dianne be placed in possession of the Tracer with the condition that she first provide proof of insurance. Defendant lodged this suspensive appeal.
DISCUSSION
On appeal, Louis contends that the trial court exceeded its authority under La.R.S. 9:374 in assigning for the exclusive use of a spouse the separate movable of the defendant spouse. We disagree.
Louisiana law states that title to motor vehicles may be transferred between the parties in accordance with the provisions of the Civil Code even though they have not complied with the Vehicle Certificate of Title Law (La.R.S. 32:701 et seq.). Touchet v. Guidry, 550 So. 2d 308 (La.App. 3 Cir.1989). Under the provisions of the Civil Code, the manual gift of a corporeal movable accompanied by real delivery is not subject to any formality. La.Civ.Code art. 1539; Samanie v. Samanie, 599 So. 2d 514 (La.App. 4 Cir.), writ denied, 605 So. 2d 1149 (La.1992). Therefore, ownership between parties can change without a transfer of title.
In this case, the trial court concluded that Louis Soileau intended to give, and in fact did give, the Mercury Tracer to Dianne. The title was not in the record and its contents are immaterial to the trial court's determination. The standard for our review of the trial court's ruling is set forth in Rosell v. ESCO, 549 So. 2d 840 (La.1989). That opinion does not allow us to disturb reasonable evaluations of credibility and reasonable inferences of fact where there is a conflict in the testimony even though we may feel that other inferences are as reasonable. Id. As long as there is a reasonable factual basis for the finding of the trial court, we may not reverse even though we might have weighed the evidence differently. The factfinder's choice between two permissible views of the evidence cannot be manifestly erroneous or clearly wrong. See Canter v. Koehring Co., 283 So. 2d 716 (La.1973).
The trial judge had the opportunity to observe the demeanor and tone of the lone witness. Dianne testified that Louis gave her the Tracer because she deserved it. She further testified that a community vehicle was traded in as part of the purchase price of *553 the Tracer. Louis offered no evidence to rebut either of these statements. The trial court found that a donation by manual gift had taken place. We find no error in that conclusion.
Accordingly, defendant's contention that the trial court's ruling erroneously awarded Louis' separate property to Dianne is without merit. The trial judge properly concluded that the Tracer was not separate property.
Dianne Soileau contends that this appeal is frivolous and requests that Louis Soileau be cast for costs and attorney's fees. Despite appellant's less than adequate presentation at the trial level, we cannot say that this appeal was so lacking in merit as to be deemed frivolous. Appellee's request for attorney's fees is therefore denied.
For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are assessed against defendant-appellant, Louis Soileau.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922459/ | 756 A.2d 954 (2000)
2000 ME 156
SAGA COMMUNICATIONS OF NEW ENGLAND, INC. d/b/a WMGX
v.
Lori VOORNAS.
Supreme Judicial Court of Maine.
Submitted on Briefs March 6, 2000.
Decided August 10, 2000.
*956 James G. Goggin, Christopher McLaughlin, Verrill & Dana, Portland, for the plaintiff.
Robert W. Kline, Portland, for the defendant.
Panel WATHEN, C.J., and CLIFFORD, RUDMAN, SAUFLEY, ALEXANDER, and CALKINS, JJ.
WATHEN, C.J.
¶ 1 Plaintiff Saga Communications of New England, Inc. d/b/a WMGX ("Saga") appeals from an order entered in the Superior Court (Cumberland County, Mills, J.) denying its motion to stay the proceedings and compel arbitration. The underlying action involves a claim that Lori Voornas breached her agreement not to compete with Saga and that she misappropriated Saga's trade secrets. Saga argues on appeal that it was entitled to arbitration pursuant to the employment agreement between it and Voornas and that the Superior Court erred in finding that it waived that right. We agree that Saga has waived arbitration and we affirm the judgment.
¶ 2 The relevant facts may be summarized as follows: From at least August of 1996 when she signed a three-year contract of employment, Lori Voornas was an on-air radio announcer and co-host of the morning show broadcast by Saga's radio station WMGX in Portland. Voornas's contract came up for renewal in the summer of 1999, but she declined to renew, choosing instead to leave Saga's employment on August 31st. Voornas's separation triggered a noncompete agreement contained in her employment contract. Under the terms of this agreement, Voornas was precluded for a period of six months from performing services as an on-air announcer for any radio station in a 75-mile radius that was in competition with Saga with regard to format or targeted audience. A list of competing stations was attached to the contract, though the noncompetition agreement applied to any competing station whether listed or not. The noncompete provision was to expire on March 1, 2000.
¶ 3 Shortly after leaving Saga and well before March 1st, Voornas began employment with Citadel Communications Corporation,[1]*957 a communications company that owns several radio stations in Portland that compete with Saga and WMGX.[2] Voornas, however, did not immediately return to the air, but instead undertook general promotional activities for Citadel. When Saga learned in October about Voornas's employment and activities, it commenced the present suit against her.
¶ 4 From the first filing, this case has been litigated at a frenetic pace. On the day that Saga filed its complaint, it also moved for a temporary restraining order and preliminary injunction, and asked that its motion be expedited. At that time, Saga sought only injunctive relief for the alleged breach of the noncompetition agreement. On November 3rd, the court ordered an expedited schedule; the next day, Saga amended its complaint to add a second count alleging misappropriation of trade secrets. Though Saga requested damages and injunctive relief for this count, it continued to ask only for injunctive relief on its noncompete claim. The day after Saga amended its complaint, Voornas filed her opposition to Saga's request for injunctive relief and moved to dismiss. A hearing was scheduled for November 8th, following which the court denied Saga's request for injunctive relief, ruling that Saga had failed to show a likelihood of success on the merits and that it had failed to show it would be irreparably harmed absent an injunction.[3]
¶ 5 Ten days after this hearing, Voornas moved for a summary judgment. Saga answered her motion on the merits nearly a month later, asking, in part, that the court grant a summary judgment against Voornas. At around the same time, Saga filed a notice of deposition for Voornas, with the deposition scheduled for December 27th. On December 20, 1999approximately two months before the expiration of the noncompete periodVoornas appeared on-air for WCLZ (now WPNT), a radio station that is owned by Citadel and that was one of the competitors listed in the noncompetition agreement. That same day, Saga filed a renewed motion for temporary restraining order and preliminary injunction. A hearing was held three days later, and the court denied Saga's motion, again ruling that Saga had failed to show it would suffer irreparable injury.
¶ 6 It was only at this point in the proceedings that Saga first indicated its intention to invoke the binding arbitration clause contained in Voornas's contract. Saga demanded that Voornas voluntarily submit their dispute to arbitration pursuant to her employment agreement. Voornas refused, and Saga responded with yet another expedited motion, this time seeking to stay the proceedings and compel arbitration pursuant to 14 M.R.S.A. § 5928 (1980). Voornas objected to the demand for arbitration, and on January 26th, the court denied Saga's motion. Saga now appeals from this order pursuant to 14 M.R.S.A. § 5945(1)(A) (1980) ("appeal may be taken from an order denying an application to compel arbitration under section 5928").[4]
*958 ¶ 7 We review the denial of a motion to compel arbitration for errors of law and for facts not supported by substantial evidence in the record. See Iowa Grain Co. v. Brown, 171 F.3d 504, 509 (7th Cir.1999); Orthopedic Physical Therapy Ctr., P.A. v. Sports Therapy Ctr., Ltd., 621 A.2d 402 (Me.1993). Although motions to compel arbitration usually revolve around the question of "the existence of the agreement to arbitrate," the parties agree that under the contract between Voornas and Saga their dispute should have been arbitrated. See 14 M.R.S.A. § 5928(1) (1980). Voornas, however, argues that Saga waived its contractual right to demand arbitration by repeatedly and persistently attempting to gain its remedy in the courts.[5] When, as in the present case, the facts upon which waiver is based are not in dispute, the determination of whether a party has waived its contractual right to arbitration is a question of law which we review de novo. See Doctor's Assoc., Inc. v. Distajo, 107 F.3d 126, 130 (2nd Cir.1997) (Distajo II).
¶ 8 Saga puts forth two arguments in opposition to a finding of waiver. First, Saga argues that the plain language of the contract prevents a finding of waiver no matter show extensive its litigation of the dispute. In support of this provision, Saga points to Rule 37 of the National Rules for the Resolution of Employment Disputes (National Rules), published by the AAA and incorporated into the arbitration clause by reference. Subsection (a) of this rule states that: "No judicial proceeding by a party relating to the subject matter of the arbitration shall be deemed a waiver of the party's right to arbitrate." This provision is unambiguous and its interpretation is therefore a question of law that we review de novo. See Town of Lisbon v. Thayer Corp., 675 A.2d 514, 516 (Me.1996).
¶ 9 While it is true that "every clause of a contract [should] be given meaning if possible," this rule of construction does not compel the result urged by Saga. See Orthopedic Physical Therapy Ctr., 621 A.2d at 403. Other courts that have reviewed this clause have refused to find that it creates the type of blanket protection urged by Saga. See S & R Company of Kingston v. Latona Trucking, Inc., 159 F.3d 80, 86 (2nd Cir.1998) (citing cases). These courts have noted that this clause is intended to protect the arbitration right of the party that seeks provisional application to the courts in order to preserve the status quo. See id. In this sense, however, this clause "does not alter the ordinary analysis undertaken to determine if a party has waived its right to arbitration" because under that analysis litigation to maintain the status quo pending arbitration would not be held to constitute a waiver even in the absence of the "no waiver" clause. See id. at 86. Furthermore, granting the "no waiver" clause the broad reach that Saga suggests would only serve to undermine a court's ability to control the proceedings before it while potentially allowing "the losing party to test[] the water before taking the swim." See id. (quoting Home Gas Corp. v. Walter's of Hadley, Inc., 403 Mass. 772, 532 N.E.2d 681, 685 (1989)); Doctor's Assoc., Inc. v. Distajo, 66 F.3d 438, 456 n. 12 (2nd Cir. 1995) (Distajo I).
¶ 10 Saga next argues that, even if it could waive the arbitration clause, there can be no finding of waiver under the facts of the present case. The Federal Arbitration Act, codified at 9 U.S.C. § 1 et seq., governs the current case. The FAA applies to "contract[s] evidencing a transaction involving commerce" and requires that in such cases, arbitration clauses "shall be valid, irrevocable, and enforceable, *959 save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2 (1999). "[T]he creation of an employment relationship which involves commerce is a sufficient `transaction' to fall within section 2 of the Act." Dickstein v. duPont, 443 F.2d 783, 785 (1st Cir.1971); see also Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 401, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967); Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 200-01, 76 S. Ct. 273, 100 L. Ed. 199 (1956) (holding FAA did not apply where employee was not engaged in activities that affect interstate commerce). In the present case, Voornas was hired to perform as a radio announcer; such a contract affects interstate commerce and the FAA applies. See, e.g., Maye v. Smith Barney, Inc., 897 F. Supp. 100, 105 (S.D.N.Y.1995) (holding employees in Smith Barney's purchasing department to be in an employment relationship involving commerce).
¶ 11 The FAA created a strong federal policy in favor of arbitration; where it applies, it preempts all state rules that are applicable only to arbitration clauses, leaving only those rules generally applicable to contracts. See KKW Enterprises, Inc. v. Gloria Jean's Gourmet Coffees Franchising Corp., 184 F.3d 42, 50 (1st Cir.1999). Indeed, in evaluating an arbitration agreement, "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability."[6]Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983). As a consequence, waiver is not to be lightly inferred. Leadertex, Inc. v. Morganton Dyeing & Finishing Corp., 67 F.3d 20, 25 (2nd Cir.1995); Shinto Shipping Co. v. Fibrex Shipping Co., 572 F.2d 1328, 1330 (9th Cir.1978). In evaluating whether waiver has occurred, each case must be evaluated upon its specific facts; there are no bright line rules. See S. & R. Co. of Kingston, 159 F.3d at 83; Menorah Ins. Co. v. INX Reinsurance Corp., 72 F.3d 218, 222 (1st Cir.1995).
¶ 12 Although courts that have addressed the issue of waiver are not in agreement over all elements required to find a waiver, there is universal agreement that the party now seeking to compel arbitration must, at the least, have undertaken a course of action inconsistent with its present insistence upon its contractual right to arbitration. See, e.g., P.P.G. Indus., Inc. v. Webster Auto Parts, Inc., 128 F.3d 103, 109 (2nd Cir.1997). "[A] party may, by engaging in litigation, implicitly waive its contractual right to arbitrate." Navieros Inter-Americanos, S.A. v. M/V Vasilia Express, 120 F.3d 304, 316 (1st Cir.1997). The relevant question is whether the parties have litigated "substantial issues going to the merits" of the arbitrable claims without any indication that, despite the dispute's presence in court, a party intends to exercise its contractual right to arbitration. See Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324, 326 (5th Cir.1999); Rush v. Oppenheimer & Co., 779 F.2d 885, 887 (2nd Cir.1985); Sweater Bee by Banff, Ltd. v. Manhattan Indus. Inc., 754 F.2d 457, 463 (2nd Cir. 1985). Such litigation does not need to involve dispositive motions, though many courts finding waiver have noted the presence of such motions. See S. & R. Co. of Kingston, 159 F.3d at 84; Caribbean Ins. Serv., Inc. v. American Bankers Life Assurance Co. of Florida, 715 F.2d 17, 19-20 (1st Cir.1983) (holding that party waived its right to arbitration by entering into a stipulation providing for an expedited trial); Com-Tech Assoc., 938 F.2d at 1576 (holding that party opposing arbitration was forced to litigate a partial summary *960 judgment motion filed contemporaneously with the motion to compel arbitration). Essentially, the party now seeking to compel arbitration must have demonstrated a "preference for litigation" over arbitration. See P.P.G. Indus., Inc., 128 F.3d at 109.
¶ 13 The filing of a complaint with a request for temporary injunctive relief is not necessarily the litigation of substantial issues going to the merits. This is particularly true when the request for injunctive relief is contemporaneous with the demand that the court compel arbitration. See Com-Tech Assoc. v. Computer Assoc. Int'l, Inc., 938 F.2d 1574, 1577 (2nd Cir.1991); Erving v. Virginia Squires Basketball Club, 468 F.2d 1064, 1066 (2nd Cir.1972). Indeed, in most cases, a preliminary injunction or like measure "preserve[s] the status quo until trial can result in a final determination of the rights of the parties." 2 FIELD, MCKUSICK & WROTH, MAINE CIVIL PRACTICE § 65.2 at 108 (2d ed. 1970).
¶ 14 Saga argues that its motions for injunctive relief were nothing more than attempts to maintain the status quo. This characterization is disingenuous. On the facts of this case, both of Saga's motions for injunctive relief, but particularly its second motion, litigated substantial issues going to the merits of its breach of contract claim against Voornas. Saga did not request damages for the breach. Thus, the primary issue before the court was whether Voornas's activities constituted a breach of the noncompete agreement that should be enjoined. Saga's second motion was not filed until the end of December,[7] with only two months remaining in the non-compete period, thus effectively litigating the propriety of enjoining Voornas during that time period.
¶ 15 The two motions for injunctive relief did not, however, litigate substantial issues going to the merits of Saga's trade secrets claim against Voornas. This count was not mentioned in the motions, and, in any case, a request for an injunction would have preserved the status quo of the trade secrets count pending trial by preventing the alleged misappropriation until the propriety of Voornas's actions could be determined. Our review of the record reveals, however, that Voornas moved for a summary judgment on both counts of the complaint well before Saga's request for arbitration.[8] Saga answered Voornas's motion on the merits while again failing to indicate that Voornas was defending herself before the wrong tribunal. Indeed, in responding to this motion, Saga requested that the court enter a summary judgment against Voornas. In the particular context of the present case, Saga has litigated substantial issues going to the merits of both its claims just as surely as if it had moved for a summary judgment itself.[9] Saga voluntarily choose to initiate the present action in the courts. It did so without informing Voornas that she should conserve her defense lest she soon be required to change forums. Voornas's motion for a summary judgment was *961 a reasonable response of a diligent and vigorous defense given no notice that, in attempting to gain a swift disposition of this dispute, she was expending her energy in the wrong forum. Saga's actions are inconsistent with its current insistence upon its arbitration rights.
¶ 16 Saga argues, however, that Voornas has not been prejudiced and, absent that prejudice, there can be no waiver even if it demonstrated a preference for litigation over arbitration. It is true that a majority of the federal courts have required a demonstration of prejudice as the sine qua non of waiver.[10]See Menorah Ins. Co. v. INX Reinsurance Corp., 72 F.3d 218, 221 (1st Cir.1995); Leadertex, Inc. v. Morganton Dyeing & Finishing Corp., 67 F.3d 20, 25 (2nd Cir.1995); Fraser v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 817 F.2d 250, 252 (4th Cir.1987); Lawrence v. Comprehensive Business Serv. Co., 833 F.2d 1159, 1164-65 (5th Cir.1987); Ritzel Communications, Inc. v. Mid-American Cellular Tel. Co., 989 F.2d 966, 969 (8th Cir. 1993); Hoffman Constr. Co. of Oregon v. Active Erectors and Installers, Inc., 969 F.2d 796, 798 (9th Cir.1992); Morewitz v. West of England Ship Owners Mut. Protection and Indemnity Ass'n, 62 F.3d 1356, 1366 (11th Cir.1995). Other courts have adopted a "totality of the circumstances" test[11] in evaluating waiver; under this test, prejudice is considered, but waiver can be found even in its absence. See Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1489 (10th Cir. 1994); National Found. for Cancer Research v. AG Edwards & Sons, Inc., 821 F.2d 772, 777 (D.C.Cir.1987).
¶ 17 It is unnecessary in the present case to determine whether waiver could be found even absent prejudice as we are unable to agree with Saga that Voornas has not been prejudiced. "[P]rejudice... refers to the inherent unfairness in terms of delay, expense, or damage to a party's legal position that occurs when the party's opponent forces it to litigate an issue and later seeks to arbitrate that same issue." Distajo II, 107 F.3d at 134.
Prejudice can be substantive, such as when a party loses a motion on the merits and then attempts, in effect, to relitigate the issue by invoking arbitration, or it can be found when a party too long postpones his invocation of his contractual right to arbitration, and thereby causes his adversary to incur unnecessary delay and expense.
Kramer v. Hammond, 943 F.2d 176, 179 (2nd Cir.1991). Although delay alone, or expenses that would have also been incurred in arbitration, are not enough to support a finding of prejudice, see Sweater Bee by Banff, Ltd., 754 F.2d at 463; Hibbard Brown & Co. v. ABC Family Trust, 772 F. Supp. 894, 896 (D.Md.1991), prejudice can be found even though only a short time has passed before arbitration is demanded; the proper focus is on the effect of the delay upon the party opposing arbitration. See American Express Fin. Advisors, Inc. v. Zito, 45 F. Supp. 2d 230, 234 (E.D.N.Y.1999); Navieros Inter-Americanos, S.A., 120 F.3d at 316 (holding a delay of a month "long and prejudicial" where expedited schedule meant delay "lasted from the filing of the complaint to the eve of trial").
*962 ¶ 18 Saga indicated its intention to change forums for the first time in January, approximately two and a half months after it filed the complaint in this case. Though the time was short on the calendar, it was long and prejudicial in terms of its effect upon Voornas and her legal position. In those two and a half months, the parties labored under an expedited schedule, producing as many filings as usually occur over a more protracted time period. In addition to defending Saga's two motions, Voornas litigated a motion to dismiss and a motion for summary judgment, neither of which would have been necessary had Saga been timely in its demand for arbitration.
¶ 19 Furthermore, Saga's breach of contract claim was significantly impaired by the denial of its second motion for injunctive relief; at that point, it was unlikely that the Superior Court could act in time to grant injunctive relief during the noncompete period. We need not now decide whether Saga could impress upon the court the necessity of granting it injunctive relief beyond the noncompete period except to note that "[h]istorically, the Maine courts have taken a conservative attitude toward injunctions, holding the injunction to be `an extraordinary remedy only to be granted with utmost caution when justice urgently demands it and the remedies at law fail to meet the requirements of the case.'" ANDREW M. HORTON & PEGGY L. MCGEHEE, MAINE CIVIL REMEDIES § 5.1, at 5-2 to 5-3 (1991) (citing R. WHITEHOUSE, EQUITY PRACTICE § 563 (1900), quoted in Bar Harbor Banking & Trust Co. v. Alexander, 411 A.2d 74, 79 (Me.1980)). Saga therefore asks through its request for a new forum that it be allowed to revive a weakened claim, thus forcing Voornas to relinquish her current favored position in this dispute. The strong federal policy in favor of arbitration was not intended to provide litigants with successive opportunities to prevail through continued revisitation of the same issue in different forums, particularly when those litigants are running from an unfavorable result in the courts. See Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 390 (7th Cir.1995).
¶ 20 Finally, Saga's own appellate brief demonstrates that Voornas would be prejudiced by compelling arbitration at this time. Saga was aware of the imminent expiration of the noncompete period when it filed its appeal and was concerned that the passage of March 1st might render its appeal moot. See, e.g., Halfway House, Inc. v. City of Portland, 670 A.2d 1377, 1380 (Me.1996). Saga therefore argued that an arbitral panel would have the power to extend the contractual noncompete period should it determine that Voornas's conduct warranted the injunctive remedy Saga so assiduously seeks.[12] Were it not for Saga's attempt to first test the judicial waters before seeking an arbitral forum, however, there would be no need to discuss an arbitrator's ability to grant an extension of the noncompete period. Had Saga demanded arbitration from the beginning of this action, almost four months would have remained before the expiration of the noncompete period. Voornas would now be faced with a possible arbitral extension of the noncompete time period solely because of Saga's own delay in seeking to enter that forum. That Saga found the courts less congenial than it had hoped is not sufficient reason to force Voornas into a forum that Saga now believes is more pliable to its wishes than the one it initially and voluntarily entered. Saga has chosen its forum and may not now seek to escape the consequences of that decision.
The entry is:
Judgment affirmed.
NOTES
[1] Though Saga repeatedly based parts of its arguments before the Superior Court on Citadel's actions and "unjust enrichment." Citadel has never been made a party to this action.
[2] Several Citadel stations were listed as competitors under the noncompete agreement.
[3] The court also denied Voornas's motion to dismiss at that hearing.
[4] Section 5945 is an exception to the final judgment rule. See Maine Cent. R. R. Co. v. Bangor & Aroostook R. R. Co., 395 A.2d 1107, 1112-13 (Me.1978). Saga's appeal was expedited upon its request, but due to Saga's delay in requesting arbitration, we were unable to decide this case prior to the expiration of the six month non-compete period, which expired on March 1st. Saga did not file its notice of appeal until February 9, 2000, and though we granted Saga's request that the appeal be expedited, even under that expedited schedule, the reply briefs were due one day prior to the expiration of the non-compete period, with the case scheduled for conference six days later.
[5] Saga does not dispute that the Superior Court was the proper forum for a determination of whether it has waived arbitration. See Doctor's Assoc., Inc. v. Distajo, 66 F.3d 438, 456 (2nd Cir.1995) (holding that courts may decide the issue of waiver when the party seeking to compel arbitration has already participated in litigation on the dispute); Jones Motor Co. v. Chauffeurs Local No. 633, 671 F.2d 38, 43-44 (1st Cir.1982).
[6] Maine has adopted a similar strong policy favoring the enforcement of arbitration clauses. See J. M. Huber Corp. v. Main-Erbauer, Inc., 493 A.2d 1048, 1050 (Me.1985); Westbrook Sch. Comm. v. Westbrook Teachers Ass'n, 404 A.2d 204, 207-08 (Me.1979).
[7] Although Saga claimed that the Superior Court invited a renewed motion if Voornas went on the air, the record does not reveal such a request.
[8] Voornas also filed a motion to dismiss; this motion litigated substantial issues going to the merits of the breach of contract claim, see Teltronics Serv., Inc. v. LM Ericsson Telecomm., Inc., 642 F.2d 31, 34 (2nd Cir.1981), but not to the merits of the trade secrets claim: Voornas's motion was filed the day after Saga's amended complaint and did not address the newly added trade secrets count.
[9] The filing of these motions would necessarily appear in a different light if Voornas and not Saga had filed the complaint in this case. Saga would then be unwillingly brought to court, and Voornas could not escape arbitration merely by filing a substantive motion. Likewise, Voornas could not be said to have been reasonable in her expenditure of time and effort on a motion for summary judgment if Saga had attempted to compel arbitration from the beginning of the case. The crux of the present case, and the essential difference from those situations, is that Saga made a free choice of forum to resolve its dispute and only sought to escape that choice after significant litigation had ensued.
[10] Though this is the majority position, there are differences of opinion regarding how this requirement is approached; the First Circuit has recently questioned whether prejudice may be merely one of several factors, whereas the Fifth Circuit, in addition to requiring that the non-movant show prejudice, also requires that party to overcome a presumption against a finding of waiver. See Menorah, 72 F.3d at 221; Walker v. J.C. Bradford & Co., 938 F.2d 575, 577 (5th Cir.1991).
[11] The Seventh Circuit stands on its own in holding that the commencement of the litigation process creates a rebuttable presumption that waiver has occurred; prejudice is then examined to determine whether the presumption has been rebutted. See Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 390-91 (7th Cir.1995).
[12] Because we conclude that Saga has waived its right to arbitrate, we assume without deciding that the arbitrator could issue the relief Saga requests. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609504/ | 664 So. 2d 925 (1995)
THE FLORIDA BAR, Complainant,
v.
Freeman KING, Respondent.
No. 84623.
Supreme Court of Florida.
September 14, 1995.
Rehearing Denied December 20, 1995.
John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee; and Alisa M. Smith, Bar Counsel and David M. Barnovitz, Co-Bar Counsel, Fort Lauderdale, for complainant.
James O. Walker, III of the Law Offices of James O. Walker, III, Pompano Beach, for respondent.
PER CURIAM.
This attorney-discipline case is before the Court on petition of attorney Freeman King, who seeks review of a referee's recommendation that he receive a five-year suspension for his handling of a case. We have jurisdiction based on article V, section 15 of the Florida Constitution.
We approve the referee's findings of fact, but find that the referee's recommendation of a five-year suspension cannot stand because Rule Regulating the Florida Bar 3-5.1(e) prohibits suspension for a specific time period of more than three years. We impose a three-year suspension on King because that sanction serves the purposes of attorney discipline.
King was admitted to The Florida Bar in October 1980. In November 1994, the Bar filed a four-count complaint accusing King of misconduct in connection with his representation *926 of Charles Baldwin. Baldwin had spoken with King in late 1992 about a lawsuit involving Baldwin and his company, CSB Construction, Inc. The suit, which named Baldwin and his company as defendants, was filed on December 3, 1992.
The referee made these findings of fact:
Count 1 concerns an extension of time that King received to file an answer to the complaint. King failed to file an answer by the extension date, January 8, 1993. The court entered a default judgment against the defendants on January 12, 1993, based on King's failure to file any papers in the litigation. (Although not in the referee's findings, the record shows that King filed an answer and a counterclaim on January 13, 1993.)
Count 2 deals with a motion for summary judgment that opposing counsel filed. King did not appear at a hearing on the motion, and the court entered an order of summary final judgment against Baldwin and his company. King later asked the court to excuse his clients from summary judgment, but the court found that King's neglect and failure to attend the noticed hearing were inexcusable.
In Count 3, the referee found that King was notified that the plaintiff had scheduled depositions for his clients. King did not notify his clients of the depositions, and neither they nor King attended.
Count 4 concerns King's failure to initiate communications that would keep his clients adequately informed about his representation and his failure to respond to his clients' requests for status reports about his representation.
In Counts 1, 2, and 3, the referee found King guilty of violating Rule Regulating the Florida Bar 4-1.1 (lawyer shall provide competent representation to a client) and Rule 4-1.3 (lawyer shall act with diligence in representation of a client). In Count 4, the referee found King guilty of violating Rule 4-1.4(a) (lawyer shall inform client of status of representation and promptly comply with reasonable requests for information) and Rule 4-1.4(b) (lawyer shall explain matter to the extent reasonably necessary to permit client to make informed decisions about the case).
King's disciplinary history includes a public reprimand for his indemnification of clients who suffered a monetary loss; a grievance committee admonition for findings including lack of diligence and inadequate client communication; and a ninety-day suspension for misconduct including trust account violations.
Based on King's disciplinary record and the violations in the instant case, the referee recommended a five-year suspension. He also recommended that King be required to pay at least $864.15 in costs and allowed the Bar to file a supplemental statement of costs at a later date.
King has filed a petition challenging the referee's findings, determination of guilt, and recommended sanction. He contends that although he and Baldwin discussed the lawsuit, the two did not have an attorney-client relationship. He asks this Court to remand the case for a determination of when Baldwin paid a cash retainer. King argues that unless the referee finds on remand that Baldwin paid a retainer, there is no attorney-client relationship and no basis for a finding of misconduct and imposition of sanctions.
King argues that a contract for employment as an attorney must be supported by consideration. Baldwin claims to have paid King a cash retainer in December 1992. King says Baldwin could not have retained him then because he was out of the office during much of December due to illness and hospitalization. King says Baldwin did not pay any retainer until February 1993, when Baldwin gave him an $800 check (for which there were insufficient funds).
King acknowledges that he took actions in connection with the suit against Baldwin and his company, but says they do not support an attorney-client relationship. We disagree. King wrote a letter to opposing counsel on December 7, 1992, that says "this office has been retained by Charles Baldwin." He talked on the phone with opposing counsel about securing an extension of time in which to file an answer. He wrote opposing counsel on January 13, 1993, and thanked him for *927 agreeing to the extension of time because King could not "file an Answer on behalf of my client" within the appropriate time frame. And King filed an answer and counterclaim in which he identified himself as the attorney for defendants Baldwin and CSB Construction.
We need not resolve any factual disputes over when King and Baldwin met and whether Baldwin paid a cash retainer. The record shows that King took action on behalf of Baldwin and his company and King identified them as his clients.
A fee is not necessary to form an attorney-client relationship. Dean v. Dean, 607 So. 2d 494, 500 (Fla. 4th DCA 1992) (also explaining that payment of fee is not required to create attorney-client privilege), review dismissed, 618 So. 2d 208 (Fla. 1993). If a fee were required to establish an attorney-client relationship, a lawyer could never perform work pro bono for a client.
Courts have also recognized that while lawyers are entitled to charge for their services, they cannot simply abandon a case once they have provided services without compensation. Atilus v. United States, 406 F.2d 694, 696 (5th Cir.1969); see also Brown v. Vermont Mut. Ins. Co., 614 So. 2d 574, 579-80 (Fla. 1st DCA 1993) ("Once an attorney has appeared in pending litigation to represent a party, that attorney cannot withdraw from the case pursuant to discharge by the client without leave of court granted by order after due notice to both the attorney and client.").
King's actions establish an attorney-client relationship. Once he began representing Baldwin and his company, he could not simply stop representing his clients without following the procedures for withdrawal described in Rule 4-1.16(d) (requiring withdrawing lawyer to take steps to protect a client's interest). King did not try to protect his clients' interest, as shown, for example, by his failure to respond to notices for depositions and by allowing the entry of summary final judgment.
We find support in the record for the referee's findings and, accordingly, uphold the findings.
Both Baldwin and the Bar agree that the referee's recommended five-year suspension exceeds the length of suspension allowed by Rule 3-5.1(e) ("No suspension shall be ordered for a specific period of time in excess of 3 years."). Thus, we must decide the appropriate sanction for King.
The sanction in a bar disciplinary case must serve three purposes: the judgment must be fair to society, it must be fair to the attorney, and it must sufficiently deter other attorneys from similar misconduct. Florida Bar v. Wasserman, 654 So. 2d 905, 907 (Fla. 1995). In addition, this Court may consider an attorney's disciplinary history. Id. at 908.
King has been sanctioned three times since 1990. First, he receive a public reprimand and probation for neglect in 1990. Second, he received a grievance committee admonishment for neglect in 1991. Third, he received a ninety-day suspension and three years' probation in 1994 for separate, numerous grievances including lack of diligence, inadequate client communications, incompetent representation, trust account violations, and misrepresentations.
King has shown a pattern of neglecting clients and seriously affecting their interests. In addition, the misconduct in the instant case occurred while he was on probation for the 1994 case. Under the circumstances, a three-year suspension is the appropriate sanction for King. This sanction serves the purposes of attorney discipline and reflects our concern with King's disciplinary history.
King is hereby suspended from the practice of law for three years. The suspension will be effective thirty days from the filing of this opinion so King can close out his practice and protect the interests of existing clients. If King notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. King shall accept no new business from the date this opinion is published until the suspension is completed. The costs of these proceedings are taxed against King and judgment is entered in the *928 amount of $1,338.92,[1] for which sum let execution issue.
It is so ordered.
GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur.
NOTES
[1] The costs include $836.65, as listed in the referee's final report, and $502.27, as listed in the Bar's supplemental statement of costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609643/ | 42 F.Supp. 89 (1941)
PRIESS
v.
UNITED STATES.
No. 192.
District Court, E. D. Washington, N. D.
December 10, 1941.
Tustin & Chandler, of Spokane, Wash., for plaintiff.
Lyle Keith, U. S. Dist. Atty., of Spokane, Wash., for defendant.
SCHWELLENBACH, District Judge.
In this action plaintiff asks judgment for the amount of interest paid by him under protest on the deficiency assessments levied against him on his income taxes for the years 1936-1939 inclusive. The facts are not in dispute. In plaintiff's returns during each of these years he reported as income on his single premium life insurance annuities, with death benefit contract 3% of the consideration paid for the annuity part of the insurance policies. These returns were made in conformity with the interpretation placed upon the Statute by the Internal Revenue Bureau (General Counsel Memorandum 6395). Thereafter, on January 8, 1940, defendant, through its Internal Revenue Bureau, adopted a new interpretation of Section 22(b) (2) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev. Code § 22(b) (2) (General Counsel Memorandum 21716). Under this interpretation it was held that such single premium life insurance annuities, with death benefit contracts, were not annuity contracts but contracts for the payment of the interest or earnings on a certain fund. Under the new interpretation, plaintiff's income for tax purposes during each of the years mentioned was substantially increased. Thereafter, a deficiency assessment was imposed, 26 U.S.C.A. Int.Rev.Code, § 271. Included in such deficiency as a part of the tax was interest at the rate of 6% per annum from the date prescribed for the payment of the tax to the date the deficiency was assessed. 26 U.S.C.A. Int.Rev.Code, § 292. Plaintiff paid the principal of the deficiency without objection but he paid the interest portion of the deficiency under protest and this action is to compel the refunding of such interest.
*90 It is conceded that, in making his returns and in paying his taxes during the period mentioned, plaintiff complied fully with the requirements of the defendant and the defendant's interpretation of the Statute. Plaintiff's theory in this case is that, as to him, the collection of interest constituted a penalty. He makes this contention on the basis that he neither borrows nor lends money. He has retired from business. All of his funds are invested. He spends his income for personal living expenses, traveling expenses and donations to charity. He, therefore, argues that the retention of the money which he should have paid during each of the involved years was of no value to him and that, therefore, he should not be penalized by being compelled to pay for the use of it since he was without fault.
To this contention, defendant answers that this Court has no authority to render judgment on recovery of either taxes or interest collected in pursuance of an Act of Congress enacted in pursuance of its constitutional authority. Jackson Furniture Company v. McLaughlin, 9 Cir., 85 F.2d 606; United States v. Globe Indemnity Company, 2 Cir., 94 F.2d 576.
To my mind, this is a complete answer. The Statute is plain and unambiguous. It reads: "Interest upon the amount determined as a deficiency shall be assessed at the same time as the deficiency, shall be paid upon notice and demand from the collector, and shall be collected as a part of the tax, at the rate of 6 per centum per annum from the date prescribed for the payment of the tax * * *." 26 U.S.C.A. Int.Rev.Code § 292.
Clearly, in the light of the Statute and the ruling of the Circuit Court of Appeals of the Ninth Circuit, Jackson Furniture Company v. McLaughlin, supra, it does not lie within my power to undo the action of the Commissioner in which he was following the plain, simple mandate of the Statute.
However, plaintiff makes a forceful and an appealing argument on the basis that he is being penalized when he was in fact innocent of wrongdoing. So forcible and so appealing is plaintiff's argument that I feel constrained to examine closely the question as to whether this is a penalty.
It is evident that the Congress, in providing interest on deficiency assessments, did not consider such interest to be a penalty. This is shown by the fact that, in two separate sections of the Act apart from the interest on deficiency section, the Congress provided for penalties. In 26 U.S.C.A. Int.Rev.Code § 291, there is provided the penalty for failure to file a return. In 26 U.S.C.A. Int.Rev.Code § 293, there are provided penalties for deficiencies due to negligence or intentional disregard of rules and regulations and for deficiencies due to fraud with intent to evade the tax. The legislative intent to distinguish between penalty and interest is clear.
Plaintiff, in his brief, states that he has been unable to find any cases dealing directly with this question. There are a number of cases which, on careful analysis, will be seen to deal with precisely the same question raised by the plaintiff here. These are cases involving the bankruptcy statute, 11 U.S.C.A. § 93, subd j, which prohibits the allowance of debts to the United States or any state or subdivision thereof as a penalty or forfeiture. These cases involved the question of interest provisions in taxing statutes where the rate of interest was in excess of the legal rate allowed by the statutes of the state where the taxpayer lived. It was the contention in those cases that, since the legislature of the state had determined that money in that particular state was worth only a certain percent of interest for its use, that any taxing statute which required the payment of more than the statutory interest rate was not interest but was a penalty and, therefore, not allowable as a credit in the bankruptcy court. We should remember, at this point, that plaintiff contends that the use of the money was of no value to him and, therefore any charge for its use should be classed not as interest but as a penalty. Keeping this argument in mind, the pertinency of the bankruptcy cases is apparent. A number of the District Courts have upheld plaintiff's contention and have reduced the allowances to the amount of the statutory interest rate. In re Ashland Emery & Corundum Co., D.C., 229 F. 829; In re Denver & R. G. W. R. Co., D.C., 27 F.Supp. 983; In re 168 Adams Building Corporation, D.C., 27 F.Supp. 247.
However, in the case of Unemployment Reserves Commission of California v. Meilink, 116 F.2d 330, the Circuit Court of Appeals for the Ninth Circuit just a year *91 ago passed upon this question fully and squarely. It based its decision on the decision of the Supreme Court of the United States in the case of United States v. Childs, 266 U.S. 304, 45 S.Ct. 110, 111, 69 L.Ed. 299. It quotes at length from the opinion in the Childs case. Included in such quotations are the following:
"Besides, the federal statute is precise, and it is made peremptory by the distinction between `penalty' and `interest,' and if it may be conceded that the use of the latter word would not save it from condemnation if it were in effect the former, it cannot be conceded that 1 per cent. per month 12 per cent. a year gives it that illegal effect, certainly not against legislative declaration that is within the legislative power, there being no ambiguity to resolve. * * * The tax in this case is one on income; a burden imposed for the support of the government. Interest is put upon it and so denominated, distinguished from the 5 per cent. as penalty, clearly intended to compensate the delay in payment of the tax the detriment of its nonpayment, to be continued during the time of its nonpayment compensation, not punishment."
In his very carefully considered opinion in the Unemployment Reserve Commission case, Judge Wilbur reviews the decisions on the question in the various circuit courts of appeals and points out that only one circuit is at variance with the rule enunciated in United States v. Childs, supra. There can be no doubt but that the decision in this case must be controlled by the decision of the Supreme Court in United States v. Childs, supra, and of the Circuit Court of Appeals in Unemployment Reserves Commission of California v. Meilink, supra.
In the conclusion of his brief, plaintiff appeals strongly upon the basis of justice and fairness and, in effect, asks me to disregard the provision of the Statute. The answer to that argument is that if assessment of interest charge against this plaintiff is unfair, it is because he occupies a position which is occupied by such a small percentage of our population that Congress could not be expected to legislate specially for them. The number of persons in plaintiff's position for whom the use of money is of no value is negligible. Furthermore, the point which plaintiff overlooks is that interest is charged not only because of the value to the one who uses it but also as compensation to the one who has been deprived of the use of it.
The action must be dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609372/ | 21 So.3d 819 (2009)
IN RE DOE.
No. 2D09-5293.
District Court of Appeal of Florida, Second District.
November 18, 2009.
Decision Without Published Opinion Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922390/ | 756 A.2d 353 (1999)
In re FIRST INTERSTATE BANCORP CONSOLIDATED SHAREHOLDER LITIGATION.
C.A. No. 14623.
Court of Chancery of Delaware, New Castle County.
Submitted: July 12, 1999.
Decided: August 26, 1999.
*355 Joseph A. Rosenthal, Esquire, of Rosentahl, Monhait, Gross & Goddess, P.A., Wilmington, Delaware; of Counsel, Arthur N. Abbey, Esquire (argued), Joshua N. Rubin, Esquire, of Abbey, Gardy & Squitieri, LLP, New York, New York; James C. Strum, Esquire, of Chimicles, & Tikellis LLP, Wilmington, Delaware; of Counsel, Jonathan M. Plasse, Esquire, of Goodkind Labaton Rudoff & Sucharow LLP, New York, New York, Attorneys for Plaintiff and the Class.
Steven J. Rothschild, Esquire, Robert S. Saunders, Esquire (argued), Michele Morgan-Kelly, Esquire, of Skadden, Arps, Slate, Meagher & Flom, LLP, Wilmington, Delaware; Attorneys for Defendants First Interstate Bancorp, William S. Randall and William E.B. Siart.
Jon E. Abramczyk, Esquire, of Morris, Nichols, Arsht & Tunnell, Wilmington, Delaware; of Counsel: Richard H. Borow, Esquire, David Siegel, Esquire, of Irell & Manella LLP, Los Angeles, California; Attorneys for Defendants John E. Bryson, Jewel Plummer Cobb, Ralph P. Davidson, Myron DuBain, Don C. Frisbee, George M. Keller, Thomas L. Lee, William F. Miller, Steven B. Sample, Forrest N. Shumway, Richard J. Stegemeier and Daniel M. Tellep.
OPINION
LAMB, Vice Chancellor.
I. INTRODUCTION
Before me is a petition for fees pressed by the stockholder plaintiffs and their counsel premised on the well-recognized principle that where (i) meritorious litigation is filed, (ii) an action producing a benefit to the corporation or its stockholders is taken by the defendants before judicial *356 resolution is achieved, and (iii) the resulting benefit is causally related to the litigation, then the plaintiff or his counsel is entitled to an award of attorney's fees and expenses. United Vanguard Fund v. TakeCare, Inc., Del.Supr., 693 A.2d 1076, 1079 (1997) ("TakeCare I"). Plaintiffs seek an award of $7.5 million, inclusive of expenses. For the reasons discussed herein, I determine that plaintiffs' counsel are entitled to an award of fees, in the amount of $1,953,661.86, inclusive of their reasonable out-of-pocket expenses.
II. BACKGROUND
This consolidated litigation began in October 1996 in relation to the then ongoing efforts of Wells Fargo & Co. ("Wells Fargo") to acquire First Interstate Bancorp ("First Interstate"). The factual background and procedural history of the litigation are discussed in detail in earlier opinions of this court. See In re First Interstate Bancorp Consolidated Shareholder Litig., Del. Ch., 729 A.2d 851 (1998) ("First Interstate II"), and Wells Fargo & Co. v. First Interstate Bancorp, Del. Ch., Cons.C.A. No. 14623, 1996 WL 32169, Allen, C. (Jan. 18, 1996) ("First Interstate I"). I will assume the reader's familiarity with these opinions.
Major aspects of the plaintiffs' Third Amended and Supplemental Class Action Complaint ("Third Amended Complaint") were rendered moot in January 1996 when the defendant directors of First Interstate dropped their determined opposition to Wells Fargo's hostile proposals, abandoned the proposed "white knight" merger agreement between First Interstate and First Bank System, Inc. ("FBS") previously approved by them, and entered into a merger agreement with Wells Fargo. Plaintiffs contend that this series of actions resulted in a benefit to the First Interstate stockholders measured in the billions of dollars.
Judging that they had accomplished their principal objectives in the litigation, plaintiffs' lead counsel undertook to explore with Wells Fargo's counsel the possibility of a "mootness" dismissal of the complaints and an agreement to pay an attorneys' fee. Discussions took place but no agreement was reached because plaintiffs' counsel, as a group, were unable to agree that the remaining "non-moot" claims should be abandoned as worthless. Among other things, those claims attacked the authorization of severance packages to officers and employees of First Interstate and the terms of a settlement reached between First Interstate and FBS pursuant to which FBS was paid $250 million in connection with the termination of the First Interstate/FBS merger agreement. Thus, further litigation ensued, led by those counsel who objected to the abandonment of the claims. Eventually, those claims were dismissed. See In re First Interstate, Del. Ch., 729 A.2d 851. This fee petition, made in connection with the moot claims, followed.
III. DISCUSSION
The grant or denial of counsel fees lies within the sound discretion of the court. Chrysler Corp. v. Dann, Del.Supr., 223 A.2d 384, 386 (1966). Defendants argue strenuously that the litigation was not "meritorious" when filed and that the actions of the defendant First Interstate directors, said to have mooted the plaintiffs' claims, were not caused by the litigation. They also argue that, in any event, the causal relationship between the litigation and the resulting increase in value to the stockholders was so attenuated that the amount of that "benefit," however measured, is not an appropriate reference point for determining a reasonable fee. Rather, they urge, any fee paid should be calculated on a quantum meruit basis, compensating only for the time reasonably and productively spent on the litigation effort.
I will address each of these points. Before doing so, however, it is necessary to resolve a more basic dispute. If a fee is to be paid, where will the money come from *357 to pay it? The issue is important because, if the recovery can be obtained only from the "common fund" represented by the increased consideration paid to the First Interstate stockholders, then no recovery is possible because that fund was disbursed to them several years ago. In contrast, if an award can be recovered from First Interstate, a source of recovery exists.
A. The Source of Payment for a Fee Award
The "common fund" and the "corporate benefit" doctrines are, of course, two commonly recognized exceptions to the general, so-called American Rule, under which a prevailing party is responsible for the payment of its own counsel fees. "Under the common fund doctrine, a litigant who confers a common monetary benefit upon an ascertainable class is entitled to an allowance for fees and expenses to be paid from the fund or property which his efforts have created. Alternatively, the corporate benefit doctrine comes into play when a tangible monetary benefit has not been conferred," but some other valuable benefit is realized by the corporate enterprise or the stockholders as a group. In re Dunkin' Donuts Shareholders Litig., Del. Ch., Cons.C.A. No. 10825, 1990 WL 189120, Chandler, V.C., mem. op. at 7 (Nov. 27, 1990) (citations omitted). Plaintiffs contend that their litigation efforts either gave rise to a common fund on the basis of which fees may be awarded or, alternatively, benefited First Interstate shareholders "on the entity level" so as to justify an award of fees against the corporation. They also argue that grounds exist to estop First Interstate from denying its liability to pay whatever fee may be awarded.
Before turning to these issues, I first note that uncertainty over the nature of the "benefit" and its relation to the litigation may be expected to occur primarily in moot cases. Where a case has been litigated to a conclusion or settled, the nature of the "benefit" and its causal connection to the litigation is ordinarily clear.[1] In moot cases, these issues may be less easily resolved. Compare Rosenthal v. Burry Biscuit Corp., Del. Ch., 209 A.2d 459, 460 (1949) ("benefit" and causation clear where suit challenging issuance of option mooted by action directly and specifically canceling option) with United Vanguard Fund, Inc. v. TakeCare, Inc., Del. Ch., 727 A.2d 844, 852-57 (1998) ("TakeCare II") ("indirect and tangential relationship between the litigation and the resulting transaction" claimed to have resulted in substantial benefit). As may be inferred from TakeCare II, identifying the "benefit" claimed and the relation of that benefit to the claims asserted in the litigation can be a particularly nettlesome task where stockholder litigation is (i) brought in the midst of a fluid course of events, such as an ongoing takeover contest, and (ii) rendered "moot" when the defendants take action that brings the contest to a conclusion on terms satisfactory to the stockholder plaintiffs but before any result is obtained in the litigation. See In re Dunkin' Donuts, Del. Ch., Cons.C.A. No. 10825; In Re Anderson Clayton Shareholders' Litig., Del. Ch., C.A. No. 8387, mem. op., 4-5, 1988 WL 97480, Allen, C. (Sept. 19, 1988).
Moreover, it is helpful to bear in mind that the identification of the benefit and the appropriate source of funds for the payment of attorneys' fees does not turn on the characterization of the underlying litigation as direct (i.e. individual or class) or derivative. Here, for example, a prominent claim rendered moot by the defendants' actions related to the First Interstate rights plan. Such a claim, when asserted by stockholders not themselves participating in a proxy contest or tender *358 offer, is usually regarded as derivative in nature. Moran v. Household Int'l, Inc., Del. Ch., 490 A.2d 1059, 1070 (1985), aff'd., Del.Supr., 500 A.2d 1346 (1985); but see In Re Gaylord Container Corp. Shareholders Litig., Del. Ch., 747 A.2d 71, 76-83 (1999) (suggesting that such claims are more appropriately characterized as direct, not derivative). From this, one might suppose that the benefit conferred here was also derivative in nature and that fees should be paid out of the corporate treasury. Nevertheless, there is ample authority for the proposition that litigation similar to this may result in an award of fees out of the consideration paid to stockholders, rather than the corporate treasury. See, e.g., TakeCare II, Del. Ch., 727 A.2d at 847 n. 2 (noting that, pursuant to stipulation, funds were withheld from the total consideration paid to stockholders as a source to pay fee award); In re Dunkin' Donuts, Del. Ch., Cons.C.A. No. 10825, mem. op. at 6 (to facilitate transaction, acquirer agreed to be responsible for fees and expenses up to a stated sum). Conversely, there is authority for the proposition that where individual or class litigation results in the conferral of an unquantified benefit on the stockholders as a whole, the corporation may be liable to pay fees. Richman v. DeVal Aerodynamics, Inc., Del. Ch., 185 A.2d 884, 886 (1962).
In Richman, Chancellor Seitz specifically rejected reliance on distinctions based on the nature of the claims asserted where plaintiffs sought to recover fees from the corporation for litigation brought by them individually. He stated:
It is settled law in this jurisdiction that where a basis in law for recovery of fees is established, the characterization of a suit as derivative or representative is immaterial, the assets of the corporation being a fund belonging to the stockholders in common. Mencher v. Sachs (Del.), 164 A.2d 320. The question that remains then is whether plaintiff by his suit conferred such benefits either on the corporation or the stockholders as will permit recovery of expenses from the corporation.
185 A.2d at 885. It should be equally true that, where a claim is made to recover fees from a common fund created as the result of litigation, the characterization of the suit is immaterial, the only question being whether (to paraphrase Chancellor Seitz's observation in Richman) plaintiff by his suit conferred such benefits on the stockholders entitled to share in that fund as will permit recovery of expenses therefrom.
1. Is This a Common Fund Case?
The answer to this question is both "no" and "yes." Plaintiffs claim, in part, to base their fee petition on the creation of a sizeable common fund. But, in the circumstances of this case, I am unable to identify a "fund" resulting from plaintiffs' litigation efforts. This is not to say that the stockholders, as a group, were not benefited by the litigation. Nor is it to say that the benefit to them is not reflected in the increased takeover consideration received by them in the Wells Fargo transaction. Rather, I mean only to say that I cannot ascertain, with any degree of confidence, even an approximate amount reflecting the value conferred on those stockholders by the litigation.[2] In similar circumstances, *359 this court has refused to award a fee based on a percentage of the benefit claimed to have been conferred, preferring, instead, to rely on notions of quantum meruit as the standard for calculating fees. See, e.g., In re Dunkin' Donuts, Del. Ch., Cons.C.A. No. 10825; In re MacMillan, Del. Ch., C.A. No. 9909; TakeCare II, Del. Ch., 727 A.2d 844. In that sense, this is not a common fund case.[3]
At the same time, if it were possible to do so at this late date (and it is not), it would be appropriate to pay whatever fee might be awarded on a quantum meruit basis out of the consideration flowing to the First Interstate stockholders in the Wells Fargo takeover, rather than out of the corporate treasury. And, in that sense, this is or was a common fund case.
2. Is This a Corporate Benefit Case?
By their action, the plaintiffs were not seeking damages, or monetary relief. Primarily, their complaint sought injunctive relief constraining the operation of certain aspects of the First Interstate/FBS merger agreement and compelling the defendant directors to act in accordance with their fiduciary duties in responding to the hostile takeover effort mounted by Wells Fargo. Ultimately, the directors acted to abandon the First Interstate/FBS merger agreement and to enter into a superior merger agreement with Wells Fargo. Assuming, for the purpose of this argument, some causal relationship between the litigation and these actions, the litigation may be seen to have benefited the First Interstate stockholders, as a whole, in some unquantifiable, but nonetheless real, sense. The barriers to the superior offer were overcome and the First Interstate rights plan used in a way to achieve the optimal outcome. Plaintiffs argue that, under the authority of Richman, such a benefit may support an award of fees from the corporate treasury.
Defendants argue, strenuously, that plaintiffs cannot shoehorn their fee petition into the "corporate benefit" mold. Defendants rely on In re Dunkin' Donuts for *360 the proposition that "[b]ecause the Company was not the beneficiary of Plaintiffs' litigation, it should not be required to satisfy any award to Plaintiffs." They also distinguish Richman on the ground that in that case "the benefit caused by the plaintiffs' litigation was the prevention of wasteful transactions by the corporation clearly a benefit to the corporation rather than its stockholders, justifying an award of fees against the corporation."
I do not read In re Dunkin' Donuts to preclude an award of fees to plaintiffs from the corporate treasury. The fundamental rationale relied on in In re Dunkin' Donuts to deny an award of fees to Kingsbridge was its status as a defeated competing bidder for control of the corporation. Del. Ch., Cons.C.A. No. 10825. Thus, at page 19, the opinion states: "I cannot say that [Kingsbridge] directly conferred a benefit upon the stockholder class in the same sense as the class plaintiffs, for the simple reason that Kingsbridge's efforts were not aimed at securing a sale of Dunkin' Donuts to the highest bidder. Rather, Kingsbridge's lawsuit was but one element of its strategy to acquire the target.... It is ... Kingsbridge's position as a bidder for control of Dunkin' Donuts that undercuts its claim for fees and expenses." Later, at page 20, it is observed that "[t]his Court has never compensated a shareholder for costs incurred in litigation related to [its] attempt to acquire a corporation." The court also determined that fee shifting in the case of defeated bidders was unnecessary and undesirable as a matter of policy. Id. at 21-24. Finally, to the extent the decision in In re Dunkin' Donuts reflects a determination that the winning bidder, who had acquired 100% of Dunkin' Donuts for cash, should not have to bear the litigation expenses of others involved in the takeover contest, those concerns are not present (or at least less important) here for the following reasons, among others: (a) the fee application at issue is not made by a competing bidder, (b) the acquisition of First Interstate was for stock, not cash, and thus, the current stockholders of Wells Fargo are, in some substantial degree, former stockholders of First Interstate or their successors in interest, and (c) as will be discussed infra, there is some evidence suggesting that Wells Fargo expected that First Interstate would be required to pay a fee to plaintiffs' counsel. Together, these factors convince me that In re Dunkin' Donuts does not preclude a fee award from First Interstate.
I also do not agree with defendants' reading of Richman. In that case, a majority of the stockholders, who opposed certain actions proposed to be taken by the board of directors, made a demand for the calling of a special meeting of stockholders in accordance with the bylaws at which meeting they proposed to enlarge the board of directors and fill the newly created seats. Del. Ch., 185 A.2d 884. When the president refused to act, they brought an action to compel him to call the special meeting and to enjoin the board from taking the threatened actions until the meeting could be held. Chancellor Seitz granted the relief and awarded fees to be paid by the corporation. He found the corporate treasury an appropriate source from which to pay fees, not (as defendants argue) because the proposed transactions were "wasteful" or because the corporation benefited, but because the benefit inured to the class of stockholders in general and "the benefits accruing to the class were such as to require, in equity, payment by the class as a whole." Id. at 886. The fee was taken from the corporate treasury as a convenient substitute for payment by the stockholders themselves, "the assets of the corporation being a fund belonging to the stockholders in common." Id. at 885.
3. Other Equitable Considerations
I conclude from my review of the record on this petition that plaintiffs' counsel had some understanding, engendered by their communications with counsel for Wells Fargo, that the corporate entities would pay whatever fee was awarded. In my *361 opinion, in the unusual circumstances of this case, this understanding on the part of plaintiffs' counsel is enough to overcome the apparent lack of equity in requiring that an award of fees be paid out of the corporate treasury following a successful takeover. In re Dunkin' Donuts, Del. Ch., Cons.C.A. No. 10825, mem. op. at 23 (stating, in case of competing cash tender offers, that "shifting legal fees to the successful competing bidder appears inconsistent with the principle underlying the common fund and corporate benefit doctrines that the benefited class should foot the bill of whoever causes the benefit to be conferred.")
In his declaration, Mr. Abbey, co-lead counsel for plaintiffs, states, as follows:
During our discussions on January 30, 1996, Mr. [Paul] Saunders told me that Wells Fargo was interested in having the litigation dismissed as moot, and that if that were accomplished, he believed that his client would be willing to pay a reasonable counsel fee for plaintiffs' counsel's services in the litigation.... Mr. Saunders asked me to make a demand for attorneys' fees in connection with the settlement, and I responded by giving him an "opening demand" of $7,250,000.
On the same day, Mr. Saunders sent me by fax a copy of the Litigation section of the then-current version of the Joint Proxy Statement/Prospectus being prepared by Wells Fargo and First Interstate.... [That draft] included the following language in connection with the shareholder litigation:
"Wells Fargo and First Interstate are currently negotiating with the plaintiffs in these actions to settle such stockholder class and derivative suits. Such settlement may involve the payment of attorneys' fees by First Interstate."
Declaration of Arthur N. Abbey in Support of Application for Fees (undated), at ¶¶ 4-6. The final proxy statement, issued some months later, stated: "While there can be no assurance that any of these actions will ultimately be settled, any such settlements may involve the payment of plaintiffs' attorneys' fees by First Interstate." Id. at 8.
Mr. Abbey does not dispute that no agreement was ever reached to settle the case, or to resolve it on the basis of a "mootness dismissal."[4] He does, however, declare, as follows:
I understood from our discussions on January 30, 1996 and thereafter, from Mr. Saunder's fax transmission of the draft, and from the final language of the Joint Proxy Statement/Prospectus that plaintiffs' counsel's compensation would be paid by First Interstate, or by Wells Fargo as its successor by merger, and not by the First Interstate stockholders or anybody else.
Id. at paragraph 8.
Mr. Saunders recalls having a conversation with Mr. Abbey on January 30, 1996, on the subject of "settlement of the case on a `mootness' basis" and the payment of attorneys' fees but does not "recall telling Mr. Abbey that Wells Fargo was interested in having the litigation dismissed as moot, or that [Mr. Saunders] believed that if a mootness dismissal were accomplished Wells Fargo would be willing to pay plaintiffs' counsels' fee." Paul C. Saunders 5/18/99 Aff. at ¶ 2. Mr. Saunders also states that he did not make any settlement proposal to Mr. Abbey and did not "tell Mr. Abbey that Wells Fargo would pay an award of attorneys' fees," either on January *362 30, 1996 or on February 6, 1996, the date of their only other contemporaneous discussion of the possibility of settlement. Id. at ¶ 3. Mr. Saunders does acknowledge sending Mr. Abbey the draft language from the proxy statement. These settlement discussions broke down when plaintiffs could not, as a group, come to agreement on a basis on which to resolve the litigation.
On this record, it obvious that there was never any agreement among the parties relating to the source of payment of fees. The preliminary settlement discussions necessarily related to the disposition of the litigation. Any discussion about the payment of fees was, concededly, secondary to and dependent upon an initial agreement to resolve the case. It is also clear that no agreement was ever reached relating to the settlement or disposition of the litigation because certain of plaintiffs' counsel determined to continue the action.
Nevertheless, it is also clear to me that plaintiffs' counsel had some reason to believe that the corporate entities would pay whatever fee might ultimately be awarded with respect to the "moot" claims. Perhaps most importantly, the language of the proxy materials issued in connection with the Wells Fargo/First Interstate merger gave them some reason to rely upon this as being true. I also infer that neither First Interstate nor Wells Fargo proceeded in that merger with the understanding that the corporate entities would not be liable to pay whatever fees might ultimately be awarded. The proxy statement disclosure, although imprecise and conditional, is sufficient to prove that the parties to the merger had no such fixed view. No affidavit evidence contradicts this inference.
4. Conclusion
I conclude that First Interstate, or its successor by merger, should be held responsible for the payment of fees to plaintiffs' counsel. I recognize that, in cases where plaintiffs' litigation efforts result in or contribute to the creation of a fund distributed to a class, it is generally appropriate that any fee award should be paid out of that fund. This is, perhaps, particularly so where the litigation is part of an ongoing process by which the corporate entity is acquired and its shareholders paid for their shares. Nevertheless, fee shifting is an equitable device and, as the circumstances presented here demonstrate, is not properly or easily confined to rigid, predictable circumstances. Here, it is more fair to require First Interstate to pay a fee to plaintiffs' counsel than to deny them any fee at all. Because no other source of payment is available, this court will regard the assets of First Interstate as "being a fund belonging to the stockholders in common" (Richman, Del. Ch., 185 A.2d at 885) from which it is appropriate to pay plaintiffs' counsel a fee. Because Wells Fargo itself benefited from plaintiffs' support of its position during the litigation and for the other reasons already articulated in this opinion, this result should not cause Wells Fargo, as the acquirer of First Interstate, the sort of prejudice recognized in In re Dunkin' Donuts.
B. The Litigation Was Meritorious
As this court recently said, "[i]n assessing whether a lawsuit was meritorious when filed, the standard the Court will look to is whether the claim would have been able to withstand a motion to dismiss. Chrysler Corp. v. Dann, Del.Supr., 223 A.2d 384, 387 (1966)." TakeCare II, Del. Ch., 727 A.2d 844, 851. Here, at least some of the claims asserted in plaintiffs' Third Amended Complaint survived a motion to dismiss. This satisfies the requirement of meritoriousness.
C. Defendants Have Not Rebutted the Presumption of Causation
Defendants argue with great conviction and some persuasiveness that their actions throughout the course of the takeover contest were unrelated in any degree to this litigation. Undoubtedly there were *363 many factors influencing their actions, including many more important than this litigation. The plaintiffs do not contend otherwise. Nevertheless, I conclude that the defendants' proof and arguments do not overcome the presumption that there was some causal connection between this litigation and the actions taken by them that rendered it moot.
The presumption of causation is a heavy one "and it is to be expected that defendant will not often be able to satisfy it." TakeCare II, Del.Ch., 727 A.2d at 853. This is particularly true where, as here, the litigation was actively pursued and headed toward an early resolution. Working cooperatively with Wells Fargo, which also initiated litigation in this court in aid of its hostile takeover efforts, plaintiffs undertook substantial discovery, including extensive document production and review and thirty depositions at locations around the country. They and Wells Fargo also successfully defended against the motion to dismiss and were preparing for an early trial when their claims became moot. In the circumstances, I am unable to rely upon defendants' conclusory statements to find that the litigation had no causal relationship to the abandonment of the FSB/ First Interstate merger and the related authorization of the Wells Fargo/First Interstate merger agreement.
Litigation is frequently used to influence the outcome of takeover contests. In particular, litigation brought on behalf of the stockholders of a takeover target, when actively pursued, can serve a useful monitoring function, mediating between the interests of the hostile suitor and the defensive activities of the board of directors. While I cannot read the minds of the First Interstate directors, I must conclude from the record that they were aware of the status of this and the Wells Fargo litigations and were influenced to some degree by the recognition that they would be called to account by this court in those litigations for any failure to fulfill their fiduciary duties. In the circumstances, while other factors, especially the overriding economic considerations presented by the competing offers, undoubtedly played a large role in the directors' decision making, I cannot conclude that the litigations played none.
D. The Amount of the Fee Award
As stated, supra, notes 2 and 3 and accompanying text, plaintiffs are unable to show their entitlement to a fee award based on a percentage of the benefit claimed to have been conferred. Rather, I conclude that quantum meruit is the appropriate standard for calculating fees in this case. "When an unquantifiable benefit is involved, the quantum meruit approach gives the court a more equitable means of determining a reasonable fee." In re Dunkin' Donuts, Del.Ch., Cons.C.A. No. 10825, mem. op. at 17. In performing that analysis, I will "consider the work the attorneys performed to achieve the benefit, the amount and value of attorney time required for that purpose, taking into account the experience of counsel and the contingent nature of the case." In re Diamond Shamrock Corp., Del. Ch., C.A. No. 8798, 1988 WL 94752, Jacobs, V.C., mem. op. at 12 (Sept. 14, 1988).
Plaintiffs' role in the litigation involved the efforts of lawyers from fifteen different law firms. For work performed through January 31, 1996,[5] they together report spending a total of 3,886.45 in attorney time and 1,189.1 hours of paralegal time. Defendants object that this compilation of time spent includes (i) time devoted to dismissed claims (which, they argue could not have been "meritorious" when filed), time spent on litigation pending in other courts, namely companion litigation filed in California, even after the California cases were stayed, by counsel who never *364 appeared in this court, and (iii) time spent in this litigation wastefully or redundantly.
Considered as a whole, I find that the information submitted by plaintiffs' counsel is sufficient for me to reach a judgment about the amount of fees to be paid on a quantum meruit basis. In general, I reject the defendants' argument that I should disregard time devoted to any aspect of the litigation that proved to be a dead end. For example, I do not agree that all time devoted to pleadings prior to the Third Amended Complaint should be disregarded simply because none of the claims asserted in those earlier pleadings (notably the Revlon claims) survived the motion to dismiss. Rather, I agree with plaintiffs that time spent on those earlier pleadings, to some measure, contributed to the final pleading, which did survive the motion to dismiss. I also reject the suggestion that all of the time reportedly spent by those law firms involved in the California litigation but not formally part of these consolidated cases must be disallowed. Obviously, time spent in connection with the pleadings and motion practice (including briefing and court appearances) in those cases produced no benefit to the class and will not be compensated. Just as clearly, time spent on discovery matters, such as document review and depositions did produce a benefit because those efforts were coordinated with the efforts of Delaware counsel and, according to the record before me, were largely non-duplicative. Adjusting the reported hours to eliminate non-compensable time spent in the California litigation, I arrive at rough totals of time devoted to the matter by attorneys and paralegals, respectively, of 2,928 and 912 hours. Using the average hourly rates for lawyers and paralegals derived from the record, these hourly totals have a nominal value of approximately $1,025,000.[6]
Defendants argue that this figure is inflated due to redundant or excessive charges. Overall, my review of the record leads me to conclude that, in the context of this very intense and fast-paced litigation, lead counsel made a satisfactory effort to fulfill their obligation to coordinate the activities of plaintiffs' counsel in order to reduce or avoid duplication and waste. No doubt there was some overstaffing of depositions and some redundant effort by the small army of lawyers involved. There are also some charges for services that, by the standard of the general legal market, appear to be excessive.[7] Nevertheless, where multiple lawsuits are consolidated, involving a number of plaintiffs and law firms, it is unreasonable to expect that the ensuing litigation will be handled as efficiently as would be true if only one complaint were filed and one law firm engaged. Thus, on this record, I will not discount the fee award for waste or duplication.
I am, however, cognizant of the fact that plaintiffs have shown only a relatively weak correlation between their efforts and the outcome or benefit claimed. Moreover, while certain claims made in their Third Amended Complaint survived the motion to dismiss, they did so, in substantial measure, only because so-called Unocal claims generally involve "questions of fact to be decided at trial, not on the pleadings." First Interstate I, Del.Ch., Cons.C.A. No. 14623, mem. op. at 15, citing In re Santa Fe Pacific Corp. Shareholder Litig., Del.Supr., 669 A.2d 59, 72 (1995). *365 This says nothing about whether plaintiffs would have prevailed at trial, a point hotly contested by defendants who argue forcefully the independence and diligence of the First Interstate board of directors. In my view, the relative weakness of the proof on the issues of merit and causation should be taken into account in awarding a fee.
I must also consider counsels' professional standing and the contingent nature of their undertaking here. Although several of the law firms involved are not well known to the court, lead counsel and several of the other firms who together account for the lion's share of the billable time are known to be successful and experienced practitioners in this court. They undertook their role as champion of the interests of the First Interstate stockholders without any promise of payment or guarantee of success. It is consistent with the public policy of this State to reward this sort of risk taking in determining the amount of a fee award. United Vanguard II, supra, Del. Ch., 727 A.2d at 855.
On balance, in the exercise of my discretion, I conclude that an award of $1,750,000 adequately compensates plaintiffs' counsel for their work in this matter. They will also be awarded their reasonable out-of-pocket expenses, totaling $203,661.86. The parties are directed to submit no later than September 3, 1999, a proposed form of order implementing this decision and containing whatever additional provisions may be necessary to ensure that a final, appealable order is entered disposing of any claim that may remain (including the so-called "moot claims"). If necessary, counsel for the plaintiffs should arrange a teleconference with all interested parties for September 2, 1999 to resolve any matters as to which agreement cannot be reached.
NOTES
[1] See, e.g., Sugarland Indus., Inc. v. Thomas, Del.Supr., 420 A.2d 142 (1980); but see Chrysler Corp. v. Dann, Del.Supr., 223 A.2d at 387-88 (court rejected argument that modification of corporate incentive compensation plan agreed to in stipulation of settlement of litigation conferred no benefit on corporation).
[2] The difficulty encountered in quantifying the "fund" created by the litigation is due, in significant part, to the fact that the litigation was played out in the context of a hotly contested battle for control of First Interstate. Many factors operated independently of the litigation to influence the outcome and the final price paid by Wells Fargo as the winning bidder. Equally important, the litigation itself did not result in an injunction or judgment. Thus, the causal relationship between the litigation, the outcome and the amount of any increased consideration caused by the litigation is too attenuated to state clearly. This conclusion or observation is not unlike that reached in In re Dunkin' Donuts, Del. Ch., Cons.C.A. No. 10825; In re Anderson Clayton, Del. Ch., C.A. No. 8387; In Re MacMillan, Inc. Shareholders Litig., Del. Ch., C.A. No. 9909, 1989 WL 137936, Jacobs, V.C. (Nov. 16, 1989), and numerous other decisions of this court.
[3] To award fees on the basis of the "common fund" exception, it would seem to be necessary to identify the source and amount of the fund claimed to have been created. The source of the fund claimed is straightforward. The argument is made that, due in part to plaintiffs' litigation efforts, the stockholders of First Interstate received greater value in the acquisition of their shares then would otherwise have been the case. Thus, the "fund" is some part of the total consideration paid by Wells Fargo to acquire the First Interstate stock. Leaving aside issues of causation, this is essentially the same argument made, and accepted, in TakeCare I, Del.Supr., 693 A.2d 1076, and II, Del. Ch., 727 A.2d 844, and in Dunkin' Donuts, Del. Ch., Cons.C.A. No. 10825, among many other cases.
Ascertaining the amount of the fund is more difficult. Plaintiffs suggest that the amount of the "fund" created by their litigation efforts can be measured one of two ways: first, as the difference in value between the market capitalization of First Interstate on October 16, 1995, the day before the announcement of Wells Fargo's original proposal and the aggregate value of the merger consideration as of January 23, 1996, the day the merger agreement with Wells Fargo was approved, or approximately $3.5 billion; or second, they suggest that the "fund" can be measured as the difference between the overall value of the original Wells Fargo proposal as of October 17, 1995, and the value of the aggregate merger consideration as of January 23, 1996, or approximately $1.4 billion. I am not convinced that either of these measures adequately reflects the value of whatever "fund" might be thought to have been created by the litigation. On a per share basis, the first measures the entire "premium" between the unaffected First Interstate market price and the value of the final Wells Fargo proposal. Yet the litigation had nothing to do with Wells Fargo making a premium offer. The second, in substantial part, reflects the fact that during the pendency of the Wells Fargo exchange offer the market price of its shares increased, thus making greater the value of the Wells Fargo shares being offered in exchange. Again, I do not regard the litigation as having anything to do with that increase in value. I also do not think it is appropriate to measure the "fund" by reference to the difference in value between the First Interstate/FBS merger and the Wells Fargo deal, if only because the evidence strongly suggests that the latter would not have been approved by the First Interstate stockholders.
[4] In their letter to the court dated July 12, 1999, plaintiffs' counsel characterize the procedural steps taken in this litigation in February 1996, i.e. the defendants' stipulation to plaintiffs' motion for class certification and plaintiffs' acquiescence in defendants' motion for summary judgment, as evidencing "cooperative step[s] in furtherance of dismissal of the litigation." Defendants hotly contest that either of these actions is reflective of any agreement between the parties. I conclude that there was no agreement among the parties relative to these actions.
[5] I generally agree with defendants' argument that time spent after January 31, 1996, could not have contributed to the benefit conferred on the class. Rosenthal v. Burry Biscuit Corp., 209 A.2d 459 at 461.
[6] The average hourly rates derived from the Second Supplemental Affidavit of James C. Strum, dated May 7, 1999, are $308 for lawyers and $133 for paralegals or law clerks. These rates "represent the range of hourly rates customarily charged by premier defense firms in litigation of this kind." Sonet v. Plum Creek Timber Co., Del. Ch., C.A. Nos. 16639 and 16931, 1999 WL 608849, Jacobs, V.C., mem. op. at 11 (Aug. 10, 1999). They will usually be regarded as amply compensating counsel, where fees are awarded on a quantum meruit basis, in litigation conducted on a non-expedited schedule. Id.
[7] A few examples of excessive or duplicative billing are found at pages 36-38 of defendants' February 3, 1999 brief in opposition to the fee petition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609526/ | 664 So.2d 746 (1995)
Kermit EAST, Plaintiff-Appellee,
v.
CRYING EAGLE CONSTRUCTION, Defendant-Appellant.
No. 95-560.
Court of Appeal of Louisiana, Third Circuit.
November 22, 1995.
Writ Denied February 16, 1996.
*747 Robert Thomas Jacques Jr., Lake Charles, for Kermit East.
Charles M. Jarrell, Opelousas, for Crying Eagle Construction.
Before THIBODEAUX and WOODARD, JJ., and KNIGHT [*], J. Pro Tem.
WOODARD, Judge.
Defendant-employer, Crying Eagle Industrial Contractors, Inc., appeals the award of worker's compensation benefits to plaintiff-employee, Kermit East, asserting: (1) that the administrative hearing officer committed manifest error in finding that East was injured while in the course and scope of his employment with Crying; and (2) that the trial court erred in awarding East recovery of medical expenses he incurred at the VA hospital in Houston, Texas.
FACTS
East alleges that he injured himself June 30, 1993, while in the course of his employment with Crying Eagle, when he and another employee, Michael Faulk, were unloading angular plates at a PPG plant in Lake Charles, Louisiana. He subsequently sought medical evaluation and treatment at the VA hospital in Houston, where he underwent disc surgery.
When Crying Eagle refused him the necessary forms to file for worker's compensation benefits, East filed suit for the appropriate benefits and medical expenses. On January 30, 1995, the hearing officer found that East had been injured while in the course and scope of his employment and that the medical expenses East incurred at the VA hospital in Houston were recoverable.
Crying Eagle appeals that judgment.
LAW
As a threshold requirement, a worker in a compensation action must establish "personal injury by accident arising out of and in the course of his employment." La.R.S. 23:1031(A), as quoted in Bruno v. Harbert Intern., Inc., 593 So.2d 357, 360 (La.1992) (emphasis in original). An accident is defined in La.R.S. 23:1021(1) as "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration."
A worker's compensation claimant has the burden of proving, by a preponderance of the evidence, his disability and its causal connection with his employment accident. Proof by a preponderance of the evidence has been attained when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Patterson v. GNB Battery, Inc., 569 So.2d 640 (La.App. 2 Cir.1990), writ denied, 573 So.2d 1134 (La.1991). For an employee to prevail in his claim, he must prove by a preponderance of the evidence that his employment somehow caused or contributed to his disability, but it is not necessary that the exact cause be proved. Walton v. Normandy *748 Village Homes Ass'n, Inc., 475 So.2d 320 (La.1985); Patterson, 569 So.2d 640.
Louisiana courts have consistently interpreted the work-related accident requirement liberally and view the question from the worker's perspective. Bruno, 593 So.2d 357. It is well-settled jurisprudence that an accident exists when heavy lifting or other strenuous effort cause or contribute to an injury, or accelerate its occurrence because of a pre-existing condition. Id. Moreover, the worker's testimony alone may be enough to discharge his burden of proof, provided that the following is observed: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) circumstances following the incident corroborate the worker's testimony. Id. The worker's testimony may be corroborated by the testimony of fellow workers, spouses, or friends, as well as by medical evidence. Id.
An administrative hearing officer's determinations as to whether the worker's testimony is credible and as to whether the worker has discharged his burden of proof are factual findings not to be disturbed on appellate review unless that finding was clearly wrong or manifestly erroneous. Id. An appellate court's power to reverse a lower court's factual findings under the manifest error-clearly wrong standard is governed by the general principles enunciated by the Louisiana Supreme Court in Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989):
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder [sic] can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder [sic] would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder's [sic] finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. [Citations omitted.]
ASSIGNMENT OF ERROR NUMBER ONE
Crying Eagle contends that East's testimony was substantially discredited by its own inconsistencies, and because it was contradicted by other testimony and by objective evidence. Thus, Crying Eagle asserts that the administrative hearing officer committed manifest error in finding that East was injured while in the course and scope of his employment. We affirm the hearing officer's ruling as it applies to this assignment of error.
Crying Eagle points out that Michael Faulk, East's fellow co-worker, Troy Edwards, his supervisor, Art Little, the project manager, and Fred Tucker, one of the owners of the company, all testified that East did not promptly tell them that he had been injured on the job.
In her detailed reasons for judgment, the hearing officer notes problems with East's case: company records do not reflect that he was working with angular plates on the date in question, or that Michael Faulk was working on the same job with East that week; East did not give a history of a work accident in the initial treatment of his injury; and he did not disclose that he had previously been treated over a period of years for a pre-existing back problem.
Notwithstanding, the hearing officer also finds inconsistencies and discrepancies in the testimony and evidence adduced on behalf of the Crying Eagle. For example, conflicting testimony was presented: as to when fellow employees and company personnel first learned of East claiming that his injury was work-related; as to whether loans by the company to East were merely personal or were in lieu of compensation; and as to what was said, and who said what, in an exchange in the company coffee room between East *749 and company personnel concerning his disability and its onset.
Ultimately, the hearing officer bases her decision to award benefits on her assessment of the character and credibility of East, as she states in her cogently expressed reasons for judgment:
The court does not take any of these discrepancies lightly and finds in favor of Mr. East primarily because the court believes his testimony. The court found Mr. East to be forthcoming, not evasive in any manner, and basically credible. The court believes that Mr. East did experience some back problems prior to the incident in question, as reflected in Dr. Guidry's records, but that those problems did not prevent him working heavy manual labor. The court believes that Mr. East did experience an incident while unloading the andular [sic] plates ..., and that Michael Faulk was with him even though the company time sheets do not show Mr. Faulk working that job that week. The court believes that either that day, or within a couple of days, Mr. East mentioned the incident to Mr. Edwards, in the presence of Michael Faulk, but essentially told Mr. Edwards not to worry about it as it would be taken care of through the VA hospital. The court believes Mr. East probably downplayed the incident because he thought it would be taken care of through the VA and because he wanted to stay in good standing with his employer. The court believes the employer was aware of the possibility of a workers' compensation claim and loaned Mr. East money because it was simpler to handle the situation the way Mr. East suggested and give him some financial assistance. The court believes the only reason Mr. East failed to tell anyone about seeing Dr. Guidry [was] because he saw Dr. Guidry to get prescription medication because of a substance abuse problem and knew this would reflect badly on him. However, most importantly, the court does believe Mr. East injured himself at work and that he is entitled to workers' compensation benefits.
The hearing officer was very careful to fairly consider all evidence adduced at trial, evidence that is both favorable and unfavorable to the respective parties, and to comprehensively weigh that evidence with all its implications. Her ultimate ruling for East comports with jurisprudential strictures to interpret the work-related requirement liberally and from the worker's perspective. Her determination that East suffered an injury on the job is supported by his testimony, as well as other testimony and objective evidence. Her belief in the credibility of East's testimony, which she specifically found not to be so internally inconsistent as to be implausible, and in East's general believability as a witness, is also supported by the record. Her finding that the testimony of those witnesses on behalf of the Crying Eagle was also inconsistent and did not fatally impugn East's claims but, in some aspects, actually conduced to his favor, is amply demonstrated in the record and is entitled to great deference.
Thus, we conclude that the hearing officer was not clearly wrong in finding that East proved by a preponderance of the evidence that he suffered an injury from an accident caused by heavy lifting in the course and scope of his employment.
ASSIGNMENT OF ERROR NUMBER TWO
In this assignment of error, Crying Eagle asserts that the trial court erred in awarding East recovery of medical expenses incurred at the VA hospital in Houston, Texas. We affirm the hearing officer's ruling.
According to Crying Eagle, these expenses are not recoverable because an employer is not responsible for the costs of treatment received from out of state physicians. However, the statute in question, La.R.S. 23:1203(A), actually reads, in pertinent part, that "the employer shall furnish all necessary... medical and surgical treatment, ... and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services. All such ... treatment shall be performed at facilities within the state when available." (Emphasis supplied.)
The hearing officer did not elaborate on this aspect of the award in her reasons for *750 judgment. As Crying Eagle made the same argument in its post-hearing brief that it makes on appeal, and the hearing officer nevertheless awarded recompense, we can assume that she found that the treatment East received at the VA hospital in Houston was treatment not available within Louisiana. Indeed, Crying Eagle does not claim in its brief that the treatment received in Houston was available in Louisiana. Additionally, when East notified Crying Eagle that he proposed to obtain treatment in Houston, it did not object, nor does it claim that it was prejudiced in any way by his action.
Crying Eagle cites Nelson v. Highland Ins. Co., No. 25706 CA (La.App. 2 Cir. 3/30/94); 634 So.2d 941, for support. However, we find that case does not apply to our case, as in the former the court affirmed the hearing officer, who had sustained a motion for summary judgment, under a de novo standard of review, whereas the judgment under review here was not rendered in a summary judgment proceeding, and therefore the de novo standard of review does not apply to our case. As stated above, it is the manifest error standard that applies to this case, and the hearing officer did not manifestly err in ruling as she did on this matter.
Moreover, the Nelson court stated that the parties involved would both be best served when an injured worker receives the most convenient and economically feasible medical treatment. We must agree, and the import in East's brief is that this is what he did. This is not refuted by Crying Eagle.
We do not find that the hearing officer abused her discretion. Therefore, we find this assignment of error without merit.
CONCLUSION
For the reasons stated, the judgment of the administrative hearing officer is affirmed. Defendant-appellant, Crying Eagle Industrial Contractors, Inc., is cast with all costs of this appeal.
AFFIRMED.
NOTES
[*] Judge William N. Knight of the Thirty-first Judicial District Court participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609532/ | 81 N.W.2d 745 (1957)
Paul L. WOODSIDE, Plaintiff and Respondent,
v.
Frank R. LEE, United States Smelting, Refining and Mining Co., a foreign corporation, and all persons unknown claiming any estate or interest in, or lien or encumbrance upon the property described in the complaint, Defendants,
Frank R. Lee, Defendant and Appellant.
No. 7560.
Supreme Court of North Dakota.
March 18, 1957.
*746 E. A. Tannas, Crosby, E. J. McIlraith, Minot, for defendant and appellant.
R. H. Points, Crosby, Higgins & Donahue, Bismarck, for plaintiff and respondent.
BURKE, Judge.
Plaintiff brought this action to determine adverse claims to a quarter section of land located in Divide County. The defendant, Frank Lee, answered, alleging that he was the owner of a valid oil and gas lease upon the described property. The action was dismissed as to the defendant, United States Smelting and Refining Co., and the issues between the plaintiff and the defendant Lee were tried to the district court. The court found for the plaintiff and judgment was entered decreeing that the defendant, Lee's, lease had terminated and quieting title to the described land in the plaintiff, subject only to a mineral interest held by the defendant, United States Smelting and Refining Co. The defendant, Lee, has appealed and demanded a trial anew in this court.
There are two main issues presented upon this appeal. The first is whether an oil and gas lease from the plaintiff to the defendant Lee, expired by its own terms one year from the date of its execution. The second is whether the plaintiff is estopped by his conduct to assert that such lease had terminated.
The lease in question is what is referred to in the oil industry an "unless" lease. The provisions in this lease relating to termination are as follows:
"If operations for drilling of a well for oil or gas are not commenced on said land on or before one year from this date, this lease shall terminate as to both parties, unless the lessee shall, on or before one year from this date, pay or tender to the lessor or for the lessor's credit in the Farmer's State Bank at Crosby, N. D. or its successor or successors, which bank and its successors are lessor's agents, and which shall continue as the depository regardless of changes in the ownership of the land, the sum of Sixteen and No/100 Dollars which shall operate as a rental and cover the privilege of deferring the commencement of operations for drilling of a well one year from said date. In like manner and upon like payments or tenders the commencement of operations for the drilling of a well may be further deferred for like periods successively during the primary term of this lease."
The generally accepted construction of the provisions for the termination of an "unless" lease is that the "unless" clause does not state a condition subsequent upon which the lease may be forfeited but states a common-law or special limitation upon which the interest of the lessee terminates immediately. Summers Oil and Gas, Perm. ed. secs. 337, 452; 58 C.J.S., Mines and Minerals, § 200; Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27; Valentine Oil Co. v. Powers, 157 Neb. 71, 59 N.W.2d 150; Kugel v. Young, 132 Colo. 529, 291 P.2d 695.
Upon failure of the lessee to commence drilling operations within the limited time, such a lease terminates ipso facto without any notice or demand upon the part of the lessor unless delay rentals are paid as provided by the lease. 58 C.J.S., *747 Mines and Minerals, § 203, p. 491; 24 Am. Jur. (Gas & Oil, sec. 77) 585, 586; Summers Oil and Gas, Perm. ed. secs. 337, 451, 469; Phillips Petroleum Co. v. Curtis, 10 Cir., 182 F.2d 122; Richfield Oil Corp. v. Bloomfield, 103 Cal.App.2d 589, 229 P.2d 838; Kugel v. Young, 132 Colo. 529, 291 P.2d 695; Amos v. Waggoner, 229 La. 134, 85 So.2d 58; Valentine Oil Co. v. Powers, 157 Neb. 71, 59 N.W.2d 150; Lewis v. Grininger, 198 Okl. 419, 179 P.2d 463; Copeland v. Lampton, Tex.Civ.App., 125 S.W.2d 1110.
The oil and gas lease with which we are here concerned was executed on April 27, 1950. Under its terms the lease would terminate one year thereafter unless within that year the lessee commenced drilling operations or paid a delay rental of $16. No drilling operations were commenced nor was there any payment or attempt to make payment of delay rentals on or before April 27, 1951. It follows from what has been said above that the lease terminated on the expiration of that day.
However, the lessee's agent mailed to the lessor a bank draft in the sum of $8, dated May 17, 1951. This draft was received by the lessor but was never cashed by him or returned to the lessee. In the following year and prior to April 27th the lessee mailed another bank draft in the sum of $8 to the lessor. This draft was received by the lessor but it was not cashed or returned to the lessee. This action was commenced prior to the time the third year's delay rental would have been due, had the lease remained in force. The reason that the bank drafts received by the lessor were in the sum of $8, instead of $16 as called for in the lease, was because a forged deed purporting to convey one half of the lessor's mineral interests had been placed of record in Divide County. It is undisputed that other drafts in the sum of $8 had also been sent to a subsequent grantee of the interest described in the forged deed. There is no question but that the lessee, in good faith attempted to distribute the rental payments in accord with the mineral interests as shown by the record.
Lessee contends that his good faith attempts to pay and the lessor's acts in failing to notify him that he was rejecting the belated payment in an insufficient amount and his retention of the drafts for an unreasonable length of time entitle the lessee to some relief. The lessee states that the acts of the lessor are a waiver of his right to declare a forfeiture or estop him from asserting that the lease terminated. As has been pointed out no question of forfeiture is involved. The lessor is not asking a forfeiture of the lease but is seeking its enforcement.
Upon the question of estoppel, the trial court's memorandum opinion clearly and accurately sets forth the principles of law applicable and reaches what in our opinion is a correct conclusion. We therefore quote and adopt the following language from that opinion:
"It will be observed that in all cases where estoppel has been applied against the lessor that the lessor was guilty of conduct which gave rise to equitable considerations. The basic concept of estoppel requires a representation and reliance thereon to the detriment of the injured party. See Commercial Credit Corp. v. Dassenko, 77 N.D. 412, 43 N.W.2d 299; Sailer v. Mercer County, 75 N.D. 123, 26 N.W.2d 137. Thus, there are numerous cases where the lessor in accepting delay rentals induced the lessee to commence drilling operations at great expense. Obviously the retention of rentals in such a situation relied on by the lessee to the extent that he thereafter commenced the drilling of a well creates a change in his position. In the case at bar, however, there are no equitabe considerations whatever which may be raised in favor of the lessee defendant, Lee. He has done nothing in reliance on the tenders which were made other than to make further tenders all of *748 which have been refused by the lessor, the plaintiff. The court holds that the tender of an inadequate amount by a bank draft which the recipient refuses to cash, absent reliance thereon by the lessee to his detriment, does not create an estoppel so as to reinstate an oil and gas lease which had already terminated. Vaughan v. Doss, 219 Ark. 963, 245 S.W.2d 826; 1 Oil and Gas Reporter 250. See also 5 A.L.R.2d 993."
The judgment of the district court is affirmed.
GRIMSON, C. J., and JOHNSON, SATHRE and MORRIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609553/ | 664 So.2d 1094 (1995)
D.B. and J.B., Her Husband, Appellants,
v.
CCH-GP, INC., Appellee.
No. 94-04339.
District Court of Appeal of Florida, Second District.
December 8, 1995.
John M. Cooney of Anderson, Moss, Parks & Sherouse, P.A., Miami; and Robert L. Parks of Haggard & Parks, P.A., Coral Gables, for Appellants.
Gail Leverett Parenti of Parenti, Falk, Waas & Frazier, Coral Gables for Appellee.
*1095 SCHOONOVER, Acting Chief Judge.
The appellants, D.B. and J.B., her husband, challenge a summary judgment in favor of the appellee, CCH-GP, Inc. We reverse.
On May 24, 1993, the appellants filed an action seeking damages sustained as a result of D.B.'s contracting the AIDS virus (Acquired Immune Deficiency Syndrome) as a result of a blood transfusion she received while in a hospital in May or June of 1985. When it was discovered that the blood was sold to the hospital by the appellee, an amended complaint adding the appellee as a party defendant was filed on January 3, 1994. That part of the appellants' complaint pertinent to this appeal alleged generally that the appellee owed a duty to D.B., that it was negligent because it failed to identify and exclude donors at high risk for AIDS because it failed to test and screen donated blood for HIV (Human Immunodeficiency Virus), and that because of its negligence, D.B. contracted AIDS.
The appellee moved for a summary judgment on the ground that the statute of limitations barred the appellants' cause of action. The appellee alleged that D.B. either knew or with the exercise of reasonable diligence could have known that she had contracted the AIDS virus within four months of her hospitalization, and therefore, the four year statute of limitations had expired. The trial court granted the appellee's motion and the appellants filed a timely notice of appeal from the final summary judgment.
A motion for summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla.R.Civ.P. 1.510(c). Additionally, the burden is on the party moving for a summary judgment to demonstrate conclusively that the nonmoving party cannot prevail. Snyder v. Cheezem Dev. Corp., 373 So.2d 719 (Fla. 2d DCA 1979). If the record reflects, as it does in this case, the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper. Snyder. See also Moore v. Morris, 475 So.2d 666 (Fla. 1985).
The statute of limitations begins to run from the time the cause of action accrues. § 95.031, Fla. Stat. (1993). See Bauld v. J.A. Jones Constr. Co., 357 So.2d 401 (Fla. 1978). A cause of action accrues when the last element constituting the cause of action occurs. § 95.031(1). See Bauld. In a negligence action the last element occurs, and thus the cause of action accrues, when the plaintiff knew, or through the exercise of due diligence should have known, of the invasion of his or her legal rights. Keller v. Reed, 603 So.2d 717 (Fla. 2d DCA 1992).
Although the evidence presented to the trial court concerning D.B.'s knowledge or due diligence in discovering that she had contracted the AIDS virus was conflicting and would support a finding that she knew or should have known at a time more than four years from when she commenced her action, the same evidence would support a contrary result. The appellee, accordingly, did not carry its burden of establishing it had a right to a summary judgment. We reverse and remand for further proceedings.
Reversed and remanded.
FRANK and PARKER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/315798/ | 489 F.2d 443
Tommy THOMPSON, Plaintiff-Appellant,v.Honorable Harry K. GALLAGHER, Mayor for the City ofPlaquemine, Louisiana, Defendant-Appellee.
No. 73-1415.
United States Court of Appeals, Fifth Circuit.
Dec. 28, 1973, Rehearing Denied Feb. 13, 1974.
William E. Rittenberg, New Orleans, La., Melvin L. Wulf, Leon Friedman, ACLU, New York City, for plaintiff-appellant.
Joseph B. Dupont, Sr., Plaquemine, La., for defendant-appellee.
Before TUTTLE, DYER and MORGAN, Circuit Judges.
LEWIS R. MORGAN, Circuit Judge:
1
Tommy Thompson served in the United States Army for 22 months before being discharged under other than honorable conditions on May 14, 1970. He went to work for the City of Plaquemine, Louisiana, on December 16, 1971, as custodian at the city diesel plant. Five weeks later, the city council passed the following ordinance:
2
Resolved, that any person employed by the City of Plaquemine or by the Emergency Employment Act, if said person is a veteran, must have an Honorable Discharge and must be a man of good character.
3
The day after the ordinance was passed, the City of Plaquemine fired Thompson because his employment violated the ordinance. Thompson sued the Mayor of Plaquemine under 42 U.S.C. 1983, charging that his dismissal violated his rights under the due process and equal protection clauses of the Fourteenth Amendment, that it was a bill of attainder and that it was an ex post facto law. Jurisdiction was asserted under 28 U.S.C. 1331, 1343, 2201 and 2202. Thompson sought a declaration that the ordinance as applied to him is unconstitutional, an injunction restraining the mayor from applying the ordinance to him, and an order reinstating him to his position at the power plant, with compensation for wages lost as result of the dismissal.
4
After a hearing on the merits, the District Court for the Middle District of Louisiana entered judgment for the defendant on the ground that the dismissal pursuant to the ordinance violated none of Thompson's rights. Thompson appeals.
I.
5
The first question we must consider is whether Thompson's interest in his job is protected by the Fourteenth Amendment.1 Faced with the question of whether a state government as employer must comply with the requirements of due process in its employment practices, some courts have concluded that since a job with the government is neither life, liberty nor property, courts may not review the hiring and firing of government personnel. See, e.g., Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46 (1950), aff'd. by an equally divided court, 341 U.S. 918, 71 S.Ct. 699, 95 L.Ed. 1352 (1951), Jenson v. Olson, 353 F.2d 825, 828 (8 Cir., 1965), and Orr v. Trinter, 444 F.2d 128, 133 (6 Cir., 1971).
6
The intellectual progenitor of all these cases is McAuliffe v. Mayor of City of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892). Judge (later Justice) Holmes summarily rejected a policeman's complaint that he had been fired because he exercised his rights under the First Amendment, saying simply,
7
the petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. 155 Mass. at 220, 20 N.E. at 517.
8
Notwithstanding Holmes' distinguished imprimatur, we feel that this reasoning does not come to grips with the question in cases such as this. The real question is whether the Fourteenth Amendment's prohibition against governmental actions which violate due process of law reaches a government's actions as employer. We feel that it does.
9
The Fourteenth Amendment is a general prohibition against arbitrary and unreasonable governmental action. It no longer suffices to say that although a government may not deprive someone of a right arbitrarily, it may do so in the case of a privilege. Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). The right-privilege distinction has been rejected as a method of analysis in Fourteenth Amendment cases, because the question is not whether a person has a right to something denied by the government, but whether the government acted lawfully in depriving him of it. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), and cases cited therein at 539, 91 S.Ct. at 1589, 'One may not have a constitutional right to go to Baghdad, but the government may not prohibit one from going there unless by means consonant with due process of law.' Homer v. Richmond, 110 U.S.App.D.C. 226, 292, F.2d 719, 722 (1961), cited in Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 894, 81 S.Ct. 1743, 6 S.Ed.2d 1230 (1961).
II.
10
In the context of public employment, the question of whether employment is protected by the Fourteenth Amendment usually arises when an employee is dismissed for actions which may be characterized as the exercise of some other specifically defined constitutional right. In Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956), a tenured professor was dismissed from his position at Brooklyn College for asserting his Fifth Amendment privilege against self-incrimination at a Congressional hearing. The court held the dismissal invalid both because it punished assertion of constitutional rights and because 'constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.' 350 U.S. at 556, 76 S.Ct. at 640. Slochower was reaffirmed recently in Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971).
11
As precedent for the latter proposition, the court relied on Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 97 L.Ed. 216 (1952), in which certain staff and faculty members of the Oklahoma Agricultural and Mechanical College were fired for refusing to take an oath disclaiming membership in certain allegedly subversive organizations. The court invalidated the dismissals, holding that the oath lumped together innocent and knowing activity, and as such was an assertion of arbitrary power. 344 U.S. at 191, 73 S.Ct. 215.
12
In Hobbs v. Thompson, 448 F.2d 456 (5 Cir., 1971), this court invalidated sections of the city charter and ordinances of Macon, Georgia, which restricted electioneering activities of that city's firemen. We held there that the statutory scheme was overbroad and interfered with the firemen's First Amendment rights. In doing so, we specifically relied on the proposition in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811, that "the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.' Keyishian v. Board of Regents, (385 U.S. 589, 605-606, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967)).' 448 F.2d at 474.
13
This case differs somewhat from the Weiman-Slochower-Pickering line of cases since it involves no constitutional right other than the right to be free from arbitrary and unreasonable government action. But the same reasoning applies. Just as a public employee does not give up his First Amendment rights when he begins receiving a pay check from the government, neither does he give up his right to due process of law. The Fourteenth Amendment stands for the proposition that the government must act, when it acts, in a manner which is neither arbitrary nor unreasonable. This stricture is in addition to those which restrict the government from acting in a manner which impinges on freedom to speak or associate, or to be free from self-incrimination. It is one which most certainly applies not only to the government as policeman but also to the government as employer. Public employees are every bit as protected by the Fourteenth Amendment's safeguards as is the rest of the populace. Grausam v. Murphey, 448 F.2d 197 (3 Cir., 1971), Buckley v. Coyle Public School System, 476 F.2d 92 (10 Cir., 1973), Fitzgerald v. Hampton, 152 U.S.App.D.C. 1, 467 F.2d 755 (1972).
III.
14
Having determined that Thompson's dismissal must be evaluated according to Fourteenth Amendment standards, we turn now to the question of whether the city's dismissal of him violates due process or equal protection. Thompson was dismissed pursuant to a city ordinance forbidding the employment by the city of any veteran not having an honorable discharge from the armed forces. The ordinance thus creates two different classifications. First, it divides the employees of the city into veterans and non-veterans. In addition, it distinguishes between veterans with honorable discharges and those with other than honorable discharges.
15
Thompson attacked the ordinance on both equal protection and due process grounds. In many cases, of which this is one, it makes little difference which clause of the Fourteenth Amendment is used to test the statute in question. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The question is whether the challenged statute is a rational means of advancing a valid state interest. A regulation not reasonably related to a valid government interest may not stand in the face of a due process attack. Likewise, a classification which serves no rational purpose or which arbitrarily divides citizens into different classes and treats them differently violates the equal protection clause.
16
Although it is proper for a city to create different classes of citizens and treat them in different manners, the classifications thus created must serve a rational and valid governmental purpose. Thus, we are faced with two questions. Is there a valid governmental interest at stake in this case? Does the ordinance bear a rational relationship to the fulfillment of those interests?
17
In an effort to determine what interest of the City of Plaquemine was at stake in this ordinance, we have listened to oral argument, read the briefs presented by both parties, and examined the entire record, including the transcript of the trial held in district court. The defendant seems to feel that there are three interests which the ordinance is intended to fulfill.
18
The first is that persons with other than honorable discharges should not be employed by the city. The district court apparently accepted this as a valid justification for the ordinance, stating,
19
The burden is upon the plaintiff to prove his case and everyone who has testified in this case has testified that this ordinance was passed because first they felt that no one with a Dishonorable Discharge or a Discharge under other than honorable conditions should work for the City of Plaquemine. I personally would wholeheartedly agree.
20
Of course, to state that persons with other than honorable discharges should be fired because a person with other than an honorable discharge is unfit to be a city employee is totally circular. The question is, what is it about a person with other than an honorable discharge that makes him unfit to be a city employee.
21
It was suggested at trial that the ordinance was an effort to comply with the Emergency Employment Act of 1971, P.L. 92-54, 85 Stat. 146, which provided funds to the city for Thompson's wages of $350.00 per month. The act, insofar as it is relevant here, authorized financial assistance for federal, state and local governmental units to hire people particularly affected by high unemployment. Congress was particularly concerned about low-income persons, migrants, those from socio-economic backgrounds generally associated with high unemployment, young persons entering the labor force, persons recently separated from military service, and others likely to have trouble finding jobs. Governmental units seeking assistance under the act must submit to the Secretary of Labor applications which describe the programs to be instituted. The act further provides that these applications must include
22
. . . assurances that special consideration in filling public service jobs will be given to unemployed or underemployed persons who served in the Armed Forces in Indochina or Korea or after August 5, 1964 in accordance with criteria established by the Secretary (and who have received other than dishonorable discharges); . . . P.L. 92-54 7(c)(4).
23
Thus, the act provides preferences for veterans with 'other than dishonorable discharges.' The Plaquemine ordinance, however, requires the discharge of veterans with other than honorable discharges. Thompson has an undesirable discharge under other than honorable conditions. This is clearly demonstrated by the record in this case, although Thompson's attorney, at the beginning of the trial, stipulated that he had a dishonorable discharge. An undesirable discharge is not an honorable discharge, but neither is it a dishonorable discharge. Thompson's dismissal not only fails to further the purposes of the act, it actually subverts them. As a veteran who has received other than a dishonorable discharge, Thompson is actually entitled to a preference under the act. Thus, the employment act cannot provide any justification for the ordinance which led to Thompson's dismissal.
24
Finally, the appellee appears to argue that the characteristics which cause a person to receive other than an honorable discharge from the military are characteristics which hinder that person's effectiveness as a city employee. This rationale is stated in the appellee's brief in the following manner:
25
Certainly, the fact that a person does not get an honorable discharge from the armed forces conotes, if not criminality, at least antisocial character. The City undoubtedly has an interest in not hiring persons with such character . . .. it cannot be gainsaid that the exclusion of persons with criminal and/or strongly antisocial character will not, in the long run, operate to create a better serving, more efficient and more reliable service.
26
We agree that the city has an interest-- indeed, a very strong interestin maintaining the quality of its work force and assuring that its employees perform their tasks as well as possible. Of the three governmental interests advanced by the appellee, this is the one that may be considered for the purposes of Fourteenth Amendment analysis.
IV.
27
The next question, therefore, is whether the classifications in question are reasonably related to the city's interest in maintaining the quality of its work force. First, we consider the distinction between veterans with honorable discharges and other veterans.
28
Numerous factors which have absolutely no relationship to one's ability to work as a custodian in a power plant may lead to other than honorable discharges from the military, including security considerations, sodomy, homosexuality, financial irresponsibility and bed-wetting. The point is not that some or all of these considerations must, as a matter of due process, be excluded from consideration of fitness to hold the position of power plant custodian. However, a general category of 'persons with other than honorable discharges' is too broad to be called 'reasonable' when it leads to automatic dismissal from any form of municipal employment. We have no hesitancy in calling the ordinance which bars that class of persons from city employment, without any consideration of the merits of each individual case, irrational.
29
In addition, the statute distinguishes between veterans and non-veterans. By eliminating veterans with other than honorable discharges, the city eliminates veterans with those characteristics which lead to other than honorable discharges. Yet there is no effort to 'weed out' civilians who have the same characteristics. We have been directed to no ordinance limiting city employment to those who are financially responsible, or who are good security risks, or who have never committed sodomy, or who do not wet their beds. There has not even been a showing that the city excludes convicted felons from employment. This is not to imply that any or all of these restrictions would be valid. On that question we express no opinion. The point is only that the ordinance being challenged might stand in a very different light if it were part of a general comprehensive scheme which enumerated characteristics deemed to be conducive to competent performance as a city employee, and which excluded all those who lacked those characteristics. That is not what we have here. As it now stands, the Plaquemine ordinance subjects veterans to standards to which non-veterans are not subjected. It also disqualifies veterans who have received other than honorable discharges, in spite of the fact that a veteran may receive a discharge for a wide range of reasons, many of them totally unrelated to performance as a city employee. By no stretch of the imagination could such a scheme be called rational.
30
The cause is reversed and remanded to the district court for proceedings not inconsistent with this opinion.
1
The Fourteenth Amendment states, in part, '. . . nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1609620/ | 21 So.3d 813 (2009)
TORO
v.
STATE.
No. SC09-1885.
Supreme Court of Florida.
October 15, 2009.
Decision Without Published Opinion Mandamus dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609654/ | 249 Minn. 32 (1957)
81 N.W. (2d) 265
RONALD C. WITT
v.
JOHN BLOMQUIST, INC.
No. 36,924.
Supreme Court of Minnesota.
February 8, 1957.
*33 Clinton W. Redlund and T.F. Quinn, for appellant.
Thomas J. Burke, for respondent.
THOMAS GALLAGHER, JUDGE.
Action to recover $1,000 alleged to have been paid defendant, John Blomquist, Inc., a real estate agency in St. Paul, by Theodore G. Burns as earnest money upon the latter's purchase of a house belonging to plaintiff, Ronald C. Witt, which the latter had authorized defendant to sell.
Defendant denied receiving this sum in cash and alleged that the earnest money was represented by a worthless note for $1,000 executed by Burns, which defendant offered to endorse without recourse and to assign to plaintiff. Plaintiff denied that he had authorized defendant to receive anything but cash as earnest money on the sale. He offered no evidence to show that he had been damaged by defendant's actions, claiming that defendant's violation of the obligation imposed upon it by the agency agreement in accepting the note as described had caused plaintiff to suffer liquidated damages in that amount.
Based upon the evidence outlined, and upon the jury's determination that defendant had accepted the note without plaintiff's knowledge, the trial court made findings to the effect that defendant had induced plaintiff to execute the earnest money contract by representing that the $1,000 earnest money payment acknowledged therein had been paid by the purchaser in cash, and in consequence that plaintiff had been damaged in the sum of $1,000. Judgment against defendant for this amount was subsequently entered in plaintiff's favor.
On this appeal from such judgment, defendant contends that plaintiff, having failed to establish that he had been actually damaged by defendant's actions, was not entitled to judgment against the defendant in any amount.
*34 1. We believe that in the absence of a showing that plaintiff had been damaged by defendant's actions judgment should have been ordered in the latter's favor. The principles applicable to any agency contract of this kind are well established. The agent is bound to exercise reasonable care, skill, and diligence in performing the transaction entrusted to him and is responsible for any loss resulting from his failure to do so. N.P. Ry. Co. v. Minnesota Transfer Ry. Co. 219 Minn. 8, 16 N.W. (2d) 894; Erickson v. Reine, 139 Minn. 282, 166 N.W. 333. Any actions or omissions by the agent in violation of the duties imposed upon him by his contract of employment render him responsible to his principal for any loss or damages sustained by the latter as a result. Lake City Flouring-Mill Co. v. McVean, 32 Minn. 301, 20 N.W. 233; Restatement, Agency, §§ 385, 399. In an action by a principal against his agent for violation of the agent's duties, the principal can recover substantial damages, whether in tort or contract, only by establishing that such violation of duty caused him actual loss or that the violation resulted in the unjust enrichment of the agent. Lehman v. Hansord Pontiac Co. Inc. 246 Minn. 1, 74 N.W. (2d) 305; Smith v. Vosika, 166 Minn. 18, 208 N.W. 1; cf. Tarnowski v. Resop, 236 Minn. 33, 51 N.W. (2d) 801. It would follow that a recovery of damages on any theory applicable here cannot be sustained since the evidence does not establish that the principal suffered actual loss.
2. Our conclusion is not in conflict with the rule that, where earnest money has been paid to an agent by a purchaser of real estate pursuant to the terms of a contract which provides that the earnest money shall be forfeited to the vendor in the event the purchaser fails to perform the contract, and where such provision cannot be construed as a penalty, the vendor is entitled to retain such earnest money as liquidated damages if the purchaser does fail to complete the transaction. McGuckin v. Harvey, 177 Minn. 208, 225 N.W. 19; Chapman v. Propp, 125 Minn. 447, 147 N.W. 442. It does not appear that this rule has ever been extended to hold that an agent who, without authority, accepts other than cash as the earnest money thereby becomes liable to the vendor to the extent of the *35 earnest money receipted for in the contract but not actually paid in, in the absence of evidence establishing that the vendor was damaged because of such actions on the part of the agent.
Here, the record indicates that the purchaser was without cash and had no financial responsibility. It is obvious that the earnest money contract would not have been executed had defendant insisted on the cash rather than the note. This being true, it would follow that the acceptance of the note by defendant and the execution of the contract therefor did not place plaintiff in any worse position than if the contract had not been signed at all. Of course, had plaintiff submitted evidence showing that, because of defendant's actions as described, he had suffered damages by withdrawing his property from the market; by surrendering possession thereof to the purchaser; or by making other purchases in the belief that his property had been sold with a $1,000 cash payment as earnest money, his recovery for any damages resulting would unquestionably be authorized. The absence of evidence to establish that any of such situations did result or that any other damages had been sustained because of defendant's actions would seem to effectively eliminate plaintiff's right to recover here.
3. Plaintiff relies upon Lowrance v. Swaffield, 123 S.C. 331, 116 S.E. 278; Holloway v. Thiele, 116 Cal. App. (2d) 68, 253 P. (2d) 131; and Paul v. Grimm, 165 Pa. 139, 30 A. 721, in support of his contention that the earnest money contract in itself establishes his right to liquidated damages in the amount of the earnest money provided for therein. The cited cases are distinguishable. In Lowrance v. Swaffield, supra, the agent had received a check for $200 but had acknowledged receipt of $200 in cash. The evidence established that the check was good and would have been paid at any time up to trial had the agent presented it for payment. His failure to do so formed the basis of vendor's recovery against him. In Holloway v. Thiele, supra, the agent had collected $3,500 in cash as earnest money but had thereafter returned it to the purchaser without the vendor's consent. There it was held that the cash immediately became the property of the vendor and that by returning it to the purchaser *36 without the former's consent the agent had caused the vendor damages to the amount thereof. In Paul v. Grimm, supra, the agent consummated a sale of real estate wherein worthless bonds were accepted by him in lieu of the cash provided for in the contract. Obviously, the agent's acts in completing the sale for the worthless bonds formed the basis for that action. It is clear that the fact situations in the cases relied upon by plaintiff differ essentially from those in the instant case.
The judgment appealed from is reversed.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609664/ | 281 N.W.2d 892 (1979)
204 Neb. 57
Bill B. SVOBODA, Appellee and Cross-Appellant,
v.
Thomas D. JOHNSON and Ruth M. Johnson, Appellants and Cross-Appellees.
No. 42031.
Supreme Court of Nebraska.
July 17, 1979.
*895 David E. Cording, Hebron, for appellants.
Leonard J. Germer and Lance J. Johnson, Bruning, for appellee.
Heard before KRIVOSHA, C. J., McCOWN, BRODKEY, and HASTINGS, JJ., and WHITEHEAD, District Judge.
BRODKEY, Justice.
Plaintiff, Bill Svoboda, instituted this action in the District Court for Thayer County, seeking an order granting to himself, other adjoining landowners, and the general public, an easement by prescription for the use of a roadway across defendants, Thomas and Ruth Johnson's property; and also for an order establishing an easement for a waterline under and across the same property. He also sought an order for the removal of a gate built by defendants across the same property, and a permanent injunction to prevent the defendants from interfering with the easements sought.
After the trial to the court without a jury, the District Court entered its findings and orders on February 21, 1978. The trial judge found that by prescription the plaintiff had a waterline easement and a private roadway easement for his own and his invitees' use over defendants' property. He also ordered that the defendant remove the gate across the roadway and that the defendant should be enjoined from interfering in any way with the plaintiff's use of the easements. The court also found that the plaintiff failed to prove that a public easement existed over defendants' property. Defendants then perfected this appeal, and the plaintiff cross-appealed from the District Court's finding that the plaintiff failed to prove an easement for the use of the general public.
For the purpose of visualizing the various tracts of land involved in this case, and for a better understanding of the issues involved, we have prepared a plat reflecting the evidence introduced during the trial with reference to these matters.
[See following illustration.]
*896
Plaintiff and defendants are the owners of neighboring tracts of land located in and near Hebron, Nebraska. Plaintiff Svoboda owns the property as shown on the plat referred to. Defendants, Thomas and Ruth Johnson, are the owners of tracts 4 and 4 A. Tract 4 A is the property upon which the plaintiff seeks to establish the prescriptive easements. Both the plaintiff and defendants trace the ownership of their respective properties to one J. E. Shearer, who in 1910 purchased an 80-acre tract of land containing all of the property east of U. S. Highway No. 81, except for the lot on the northwest corner of the plat. J. E. Shearer operated a gravel pit on this property until sometime in the early 1940's. Access to the gravel pit was obtained by a roadway which entirely occupied tract 4 A. Before J. E. Shearer died in 1950, he sold tract 4 to one Herb Braasch who built a service station on the tract, the building being located approximately 10 feet from the boundary line between tracts 4 and 4 A. Traffic entering or leaving from the service station crossed over tract 4 A, although there is no evidence in the record that express permission was ever obtained from J. E. Shearer or his heirs. In October of 1974, the defendants became the owners by purchase of tract 4, including the service station upon the land.
J. E. Shearer died in 1950. His estate (or his heirs) sold separate tracts of land located in the gravel pit area to various purchasers. In 1962, plaintiff's father bought the property shown on the plat. He used the land for raising horses. In November of 1976, the senior Svoboda made a gift of that property to his son, Bill B. Svoboda, the plaintiff herein. Tract 4 A served as the only road for the senior Svoboda and the plaintiff to gain access to their property. Also, plaintiff's father, in 1962, installed a waterline under tract 4 A to service his property. Other adjoining landowners were also using tract 4 A for access to their properties.
It appears that defendant, Thomas Johnson, built a carwash operation behind his service station, but experienced difficulty with water draining off of tract 4 A, the roadway. In contacting the city of Hebron for assistance in improving the drainage off of tract 4 A, he discovered that J. E. Shearer's estate, or decedent's heirs, still owned tract 4 A. In November of 1975, Johnson purchased tract 4 A and received a warranty deed for the land signed by decedent's heirs, his three sons, and their wives. Thereafter, in March of 1977, Johnson built a fence across tract 4 A with a 14-foot gate in it. The gate was never locked and the plaintiff has been able to open the gate to drive back to his property without interference by the defendants.
*897 Shortly after the gate was erected, plaintiff Svoboda contacted the defendant, Thomas Johnson, to obtain a permanent easement across tract 4 A. Johnson refused to give plaintiff a permanent easement, offering instead a year's lease. At that time Svoboda stated that he claimed a permanent easement over tract 4 A.
Tract 4 A ends near the barn located on plaintiff's property, to the east of defendants' property. Plaintiff's property is bounded on the south by a county road as shown on the plat. There is evidence in the record that the soil is sandy, that the surface has gullies, and that in bad weather it would be impossible to drive onto the Svoboda property without prior preparation of the land for a road, although a road from the county road was never considered because plaintiff had been using the road on tract 4 A and a new road was not needed. Svoboda testified that it would be impractical and would necessitate the expenditure of money to build a road across his property from the county road to the barn.
The defendants have advanced four arguments in an attempt to defeat the plaintiff's claim of an easement by prescription. Defendants contend the plaintiff failed to prove: (1) That his use of tract 4 A was "exclusive;" (2) that his use was exercised under a "claim of right;" (3) that the plaintiff's use was by "permission;" and (4) that the plaintiff did not perform any acts which would bring his claim of right to the defendants' attention or knowledge.
We conclude the evidence in the record establishes that an easement was created in favor of plaintiff's father because of his use of the road for over 10 years, and that easement was by law transferred to the plaintiff when his father subsequently gave him the property. Further, the defendants, as purchasers of tract 4 A, took tract 4 A subject to that easement, and should be restrained from doing any acts which would interfere with the plaintiff's full use of the easement as it existed at the time the defendants bought tract 4 A. Polyzois v. Resnick, 123 Neb. 663, 243 N.W. 864 (1932).
The general rules applicable to prescriptive easements are well settled in Nebraska, and are set out in Jurgensen v. Ainscow, 155 Neb. 701, 53 N.W.2d 196 (1952), as follows: "The use and enjoyment which will give title by prescription to an easement is substantially the same in quality and characteristics as the adverse possession which will give title to real estate. It must be adverse, under a claim of right, continuous and uninterrupted, open and notorious, exclusive, with the knowledge and acquiescence of the owner of the servient tenement, for the full prescriptive period. * * *
"To prove a prescriptive right to an easement, all the elements of prescriptive use must be generally established by clear, convincing, and satisfactory evidence.
* * * * * *
"The prevailing rule is that where a claimant has shown open, visible, continuous, and unmolested use of land for a period of time sufficient to acquire an easement by adverse user, the use will be presumed to be under a claim of right. The owner of the servient estate, in order to avoid the acquisition of the easement by prescription, has the burden of rebutting the prescription by showing the use to be permissive. * * *
"It is presumed, however, that every man knows the condition and status of his land; and if anyone enters into open and notorious possession of an easement therein under a claim of right, the owner is charged with knowledge thereof. * * *." [Citations omitted.] Thus there are six elements which must be established by clear and convincing evidence before an easement by prescription will be found to exist.
First, the claimant's use must be continuous and uninterrupted for the required period of time. Cannot v. Bowden, 189 Neb. 97, 200 N.W.2d 126 (1972). The claimed easement must have been exercised whenever there was any necessity to do so and with such frequency that the owner of the servient estate would have been apprised of the right being claimed against him. The plaintiff testified that his father *898 consistently used tract 4 A on a day-to-day basis from the date they bought their property in 1962, and that fact was obvious and known to the Shearers. Under section 25-202, R.R.S.1943, an action for the recovery of title or possession of lands can only be bought within the 10 years after the cause of action shall have accrued. Even disregarding the possibility that when the plaintiff's father bought his property from the Shearers, tract 4 A was already subjected to an easement by necessity, the right to bring an action for ejectment would have commenced in 1962 and would have been barred in 1972.
The second element required to be established by the claimant is that the use was open and notorious so that the owner will learn of the use, assuming that he keeps himself informed about the condition of his property. Again the plaintiff's undisputed testimony, that both he and his father used tract 4 A on a day-to-day basis from the date the senior Svoboda bought his property in 1962, establishes such an open and notorious use.
The third element to be proved is that claimant's use was exclusive. In Jurgensen v. Ainscow, supra, we stated that: "The term `exclusive use,' however, does not mean that no one has used the driveway except the claimant of the easement. It simply means that his right to do so does not depend upon a similar right in others. See, 17 Am.Jur., Easements, § 64, p. 976; Thompson v. Bowes, 115 Me. 6, 97 A. 1, 1 A.L.R. 1365; Annotation, 111 A.L.R. pp. 223, 224." See, also, Hopkins v. Hill, 160 Neb. 29, 68 N.W.2d 678 (1955).
Although the plaintiff claims the public in general has also acquired an easement in tract 4 A, he still maintains that his use was for the purpose of obtaining ingress and egress to his property, and was not dependent upon the use made of tract 4 A by the public. The evidence shows that the public's use was primarily confined to the portion of tract 4 A adjacent to the service station on tract 4. The public has used tract 4 principally for obtaining passage into the service station or the carwash at the rear of the station, although neighboring property owners, to a limited extent, used the road for access to their properties.
The fourth element required to prove a prescriptive easement is that the claimant's use was under a claim of right, such that there is no recognition of the right of the owner of the servient tenement to stop the use. In Barnes v. Milligan, 196 Neb. 50, 241 N.W.2d 508 (1976), we quoted from 3 Am.Jur.2d, Adverse Possession, § 96, p. 177, with reference to the meaning of "claim of right," as follows: "`Terms such as "claim of right," "claim of title," and "claim of ownership," when used in this connection, mean nothing more than the intention of the disseisor to appropriate and use the land as his own to the exclusion of all others, irrespective of any semblance or shadow of actual title or right. * * * Thus, "claim of right" means no more than "hostile" and if possession is hostile it is "under a claim of right."'"
In Purdum v. Sherman, 163 Neb. 889, 81 N.W.2d 331 (1957), we discussed what constitutes a claim of right as follows: "It can readily be seen that the intent with which the claimant first took possession of the disputed tract is not ordinarily of too much significance. The title of the true owner is lost by his inaction. It would seem, therefore, that when the possession of the land of another, no matter what the intention may have been in making the first entry, amounts to that which the law deems as adverse to the true owner and such possession continues for the statutory period of limitation of 10 years, the adverse holding ripens into ownership in the absence of explanatory circumstances affirmatively showing the contrary such as occupancy under a lease, an easement, or a permissive use. City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1. See Annotation, 97 A.L.R. 14." In Barnes v. Milligan, 200 Neb. 450, at 456-457, 264 N.W.2d 186, at 190-191 (1978), we stated, in pertinent part, as follows: "The intent may be either actual or presumed, or inferred from the circumstances. In most cases it is *899 inferred from the circumstances. * * * As the cases make clear, actual assertion of claim of ownership is not necessary."
Although there is no evidence the plaintiff or his father ever asserted a claim to an easement over tract 4 A, in haec verba, Dail Shearer, the son of J. E. Shearer who owned tract 4 A before his death, testified that he knew the plaintiff and his father had used tract 4 A as a road since buying their property in 1962; and also that plaintiff's father placed a waterline under tract 4 A in 1962, extending to his property. We conclude that plaintiff's claim was under a "claim of right."
The fifth element which must be established in order to create an easement by prescription is that the claimant's use was adverse. In Fischer v. Grinsbergs, 198 Neb. 329, 252 N.W.2d 619 (1977), we stated: "As long ago as 1912, this court stated in Marjerus v. Barton, 92 Neb. 685, 139 N.W. 208 (1912), that if a person proves uninterrupted and open use for the necessary period without evidence to explain how the use began, the presumption is raised that the use is adverse and under claim of right, and the burden is on the owner of the land to show that the use was by license, agreement, or permission. The presumption of adverse use and claim of right, when applicable, prevails unless it is overcome by a preponderance of the evidence. Butts v. Hale, 157 Neb. 334, 59 N.W.2d 583 (1953); Jurgensen v. Ainscow, supra." (Emphasis supplied.)
Dail Shearer testified that he had never required anyone to obtain permission to use tract 4 A, nor had he tried to keep anyone off the tract. Defendants argue that a presumption of adverse use by the plaintiff cannot arise because the evidence shows the use by all persons who used the tract was open and visible. Defendants also argue that if no presumption of adverse use has arisen, then, relying upon Scoville v. Fisher, 181 Neb. 496, 149 N.W.2d 339 (1967), the implied permission of the Shearer family must be found, because the plaintiff never informed the defendants or their predecessors in title of their adverse claim.
We believe that the defendants' reliance on Scoville v. Fisher, supra, is misplaced. The plaintiff in Scoville sought to establish an easement over the defendant-owner's lot. The lot was used by the public generally for parking and turning their vehicles around. This court found the use of the lot was permissive and not adverse, and stated the rule to be that a way may be acquired by one person over unenclosed land of another by user or prescription, but it generally requires some circumstances or act in addition to, or in connection with, the use of the way to indicate the use has been claimed as a right and has not been regarded by the parties merely as a privilege revocable at the pleasure of the owner of the soil. In that case we stated: "We are not unmindful of the general rule stated in Jurgensen v. Ainscow, 155 Neb. 701, 53 N.W.2d 196, to the effect that a presumption of adversity arises when there has been open, visible, continuous, and unmolested use for the prescriptive period of 10 years. The same contention was made in Stubblefield v. Osborn, supra [149 Neb. 566, 31 N.W.2d 547]. The general rule must be interpreted in the light of the facts of each case. * * * Here we have unenclosed land with no defined pathway across it. * * *." (Emphasis supplied.) Stubblefield v. Osborn, 149 Neb. 566, 31 N.W.2d 547 (1948), involved an easement over certain unplatted islands in the Platte River, used for hunting purposes. In that case this court recognized the relevancy of evidence of a well-defined road or trail over unenclosed land, stating: "One of the defendants testified that the road down to the river * * * was just a trail through the pasture, angling through the brush with several turns, terminating at the river, and was not a well-defined road; and that he saw no signs of a road leading from the premises to that point. This testimony was rebutted to the effect that the tracks to the river from the Bolton premises were eight to ten inches deep, or from four to six inches deep; that there was not more than one path, and that the plaintiffs always used the same path in going down to the *900 river." For other reasons, however, the court found in Stubblefield that the original entry and use by the claimants was permissive, and affirmed the trial court in denying an injunction. We conclude that even though land may be unenclosed, where there is a well-defined path or roadway thereon, the rule as to a presumption of adverse use applies, and places the burden on the landowner to establish that the use by the claimant of the prescriptive right was permissive. See, also, 25 Am.Jur.2d, Easements and Licenses, § 46, p. 457.
In the instant case, there is conflicting testimony as to whether or not tract 4 A was enclosed or at least partially enclosed. There is overwhelming evidence that tract 4 A was a well-defined roadway used by the plaintiff to enter onto his property, using the entire length of tract 4 A for that purpose. It is also clear that the public used only the first 25 to 30 feet for entering or exiting from the service station located on tract 4.
We find that the plaintiff's use was not permissive by defendants or their predecessors in title, and that there exists in this case a presumption of adverse use by the plaintiff. Because of such presumption of adverse use, there was no need for the plaintiff to make any specific, overt statements to the defendants, claiming the right to travel over their property. Defendants have failed to rebut this presumption.
Finally, in Hopkins v. Hill, 160 Neb. 29, 68 N.W.2d 678 (1955), we held that acquiescence on the part of the owner is necessary in order to acquire a prescriptive easement, and that acquiescence means, "passive assent or submission, quiescence, consent by silence. See, Dartnell v. Bidwell, 115 Me. 227, 98 A. 743, 5 A.L.R. 1320; Davis v. Wilkinson, 140 Va. 672, 125 S.E. 700; Jurgensen v. Ainscow, supra.
"If such user has been for the requisite time open, notorious, visible, uninterrupted, and undisputed under claim of right adverse to such owner, he is charged with knowledge of such user and his acquiescence in it is implied. See, 2 Thompson Real Property (Perm.Ed.), § 512, p. 94, cases under note 18, also § 510, p. 89; Hester v. Sawyers, 41 N.M. 497, 71 P.2d 646, 112 A.L.R. 536." The evidence in the record clearly established "acquiescence" by the defendants or their predecessor in title to the use by the plaintiff of the roadway and waterline.
Plaintiff also argues that he is entitled to an "easement by necessity" under the evidence in this case. However, he has introduced no evidence in the record as to the cost of establishing a road over his own property, or outlet to the county road, nor the comparison of that cost to the value of his property, which would undoubtedly be necessary to determine the necessity for an easement over tract 4 A. See Badura v. Lyons, 147 Neb. 442, 23 N.W.2d 678 (1946). However, since we have found that plaintiff has established his right to a prescriptive easement for his and his invitees' benefit, we need not further discuss that issue.
The trial court found that no easement had been created over tract 4 A for the benefit of the public. Plaintiff has cross-appealed with reference to this issue claiming that the District Court erred in its finding, and argues that a public highway may be established either by prescription or by implied dedication. We have no quarrel with the general rule, but our examination of the record convinces us that the evidence upon this issue is not so clear and convincing as to warrant the finding of a public easement and that the decision of the trial court, based upon conflicting evidence, was correct.
In Pierce v. Rabe, 177 Neb. 745, 131 N.W.2d 183 (1964), which was an action brought to procure an injunction enjoining the defendants from erecting and padlocking gates or interfering with plaintiff's right to use a road extending east and west through defendant's land, we stated: "`While the law requires this court, in determining an appeal in an equity action involving questions of fact, to reach an independent conclusion without reference to the findings of the district court, this court *901 will, in determining the weight of the evidence, where there is an irreconcilable conflict therein on a material issue, consider the fact that the trial court observed the witnesses and their manner of testifying."
An independent review of the evidence in the record convinces us that the trial court was correct in granting plaintiff a prescriptive right over and across tract 4 A, and also in establishing a waterline easement under tract 4 A, and in its issuing a permanent injunction prohibiting interference with those rights. No errors otherwise appearing in the record, we conclude that the judgment of the trial court must be affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609668/ | 81 N.W.2d 588 (1957)
164 Neb. 38
ALLSTATE INSURANCE COMPANY, a corporation, Appellee,
v.
Sebastian ENZOLERA, Appellant.
No. 34079.
Supreme Court of Nebraska.
March 8, 1957.
*589 Louis T. Carnazzo, Joseph A. Troia, Paul J. Garrotto, Omaha, for appellant.
Mecham, Stoehr, Rickerson & Sodoro, John A. Rickerson, Omaha, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
YEAGER, Justice.
This is an action in replevin by Allstate Insurance Company, a corporation, plaintiff and appellee, against Sebastian Enzolera, defendant and appellant. The case was tried to the court, a jury having been duly waived. The judgment was in favor of the plaintiff and against the defendant. A motion for new trial was duly filed and by the court overruled. From the judgment and the order overruling the motion for new trial the defendant has appealed. The assignments of error are that the judgment is contrary to law; that the judgment is contrary to the evidence; and that the evidence is insufficient to sustain the allegations of plaintiff's petition.
*590 In order to properly understand the matters presented for review on this appeal it appears necessary to review the background of the controversy. In doing so an effort will be made to respect the chronology of events as they occurred.
The first step in this chronology is a certificate of title to a Chevrolet automobile bearing number 0234946F54Y issued by the Department of Highways, Division of Motor Vehicles, of the State of Delaware, to one James V. Matha on February 8, 1954. This certificate is in evidence without any challenge as to its authenticity or as to foundation for its admission. This is true as to all other exhibits in the bill of exceptions. The basis upon which the certificate was issued does not appear. No facts have been disclosed showing, or from which a legal inference could flow, that any irregularity was involved in the issuance of the certificate.
Thereafter James V. Matha, on March 11, 1954, in San Diego, California, sold the automobile to one Fred Richter for $1,950. The transfer was made to Richter on the basis of the Delaware certificate of title. Matha signed in blank a form of assignment on the back of the certificate. He also gave Richter a bill of sale. He also signed in blank his registration card from the State of Delaware. At the same time on the basis of these documents Richter made application for a certificate of ownership and for a registration card from the Department of Motor Vehicles of the State of California. The application was accepted and the certificate and card were issued. They were not issued on that date but were issued on March 29, 1954. In the presentations of the parties no significance is attached to this delay.
On March 21, 1954, the automobile was stolen from the garage of Richter in San Diego, California. On discovery of the theft Richter notified the agent of the plaintiff herein. The plaintiff was his insurance carrier. This particular automobile had not been directly insured but by the terms of a policy of insurance on another automobile theft insurance attached to this one.
The insurance was paid to Richter by the plaintiff and Richter transferred his title to plaintiff. Apparently thereafter, on or about April 29, 1954, the plaintiff obtained an assignment of the certificate of ownership from Richter and thereafter on May 11, 1954, received a certificate of title from the State of California.
On April 5, 1954, James V. Matha obtained a Nebraska certificate of title from the county clerk of Otoe County, Nebraska. This certificate was issued to him on the basis of a duplicate copy of a certificate which had been issued to him by the clerk of courts of Portage County, Ohio, on February 23, 1954. By recital on the face of the certificate it appears that the original had been issued to him on February 5, 1954.
On April 6, 1954, James V. Matha sold the automobile to the defendant and on the basis of the certificate which Matha had obtained from the county clerk of Otoe County, the defendant obtained a certificate of title from the county clerk of Sarpy County, Nebraska.
On the facts as outlined and the law, the plaintiff contends that Richter had title and the right to possession of the automobile at the time it was stolen and that as successor to those rights the plaintiff is entitled to recover it. It urges that nothing has taken place which has in any wise impaired that right.
On the other hand the defendant insists that he is an innocent purchaser for value and that on the evidence and law he is entitled to be adjudged the true owner and title holder of the automobile.
On the record made it must be assumed that, there being no evidence to the contrary, Richter became the owner of the automobile with an unimpaired title thereto and that thereafter while he was the owner of the same it was stolen from him. *591 He obtained his possession and title pursuant to a certificate of title issued to Matha in the State of Delaware which insofar as the record is concerned was regular in form and substance. Also there is no evidence that it was not issued on proper authority. On the basis of this certificate, assigned to Richter by Matha, and the purchase of the automobile, Richter was duly issued a certificate of title and a registration certificate by proper authority in the State of California. The regularity of the issuance of this certificate under the laws of California is not brought into question. The sufficiency of the transfer of the Delaware certificate within the meaning of the laws of that state is raised, but it is not pointed out how that did or could impair the right of Richter to obtain in good faith a certificate of title in California under the laws of California to an automobile, the title to which was not at that time in any wise impaired.
In the light of these facts and well-established principles of law neither the thief nor anyone taking through him took or could take any title to the automobile. Richter remained the owner with the right to recover possession of it wherever found, subject however to the right of a transferee to take it instead, in case Richter had transferred his title and interest. It should be said here that the defendant does not contend herein that the right of Richter to recover, if he had such right, has not passed to the plaintiff.
The rule applicable is the following, as stated in State ex rel. Sorenson v. Nebraska State Savings Bank, 127 Neb. 262, 255 N.W. 52: "Generally, a thief can acquire no title to stolen property, nor can title to personal property be acquired through another's larceny or theft." See, also, Snyder v. Lincoln, 150 Neb. 580, 35 N.W.2d 483. This case was before the court again in 153 Neb. 611, 45 N.W.2d 749, and 156 Neb. 190, 55 N.W.2d 614, but there was no departure from the foregoing pronouncement.
The defendant urges that this rule is not controlling in the case at bar. In effect he urges that the certificate of title provisions of the Nebraska Motor Vehicle Act and the decisions of this court protect him against the claims of the plaintiff.
Section 60-105, R.S.Supp.1955, provides in part: "No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, * * * sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer's or importer's certificate duly issued, in accordance with the provisions of this act."
In interpretation and application of section 60-105, R.R.S.1943, which contained the same substance as this provision, the following was said in Loyal's Auto Exchange, Inc. v. Munch, 153 Neb. 628, 45 N.W.2d 913, 915: "A subsequent purchaser for value of the automobile, who obtains the certificate of title by complying with the statutory requirements relating thereto, obtains the title and ownership thereof. His title and ownership are superior to any rights which the first purchaser may have."
The defendant herein, as pointed out, obtained a Nebraska certificate of title to this automobile and on the basis of this statute and this interpretation he insists that his title is secure. His insistence however is without merit.
It is to be observed that the recognition required by the statutory provision and the decision is a certificate "duly" issued. This term implies, we think, that the issuance must be based upon a proper background of authority. If there could be any doubt as to this it has been removed by the later decisions of this court.
In Snyder v. Lincoln, 156 Neb. 190, 55 N.W.2d 614, 616, in explanation in part of what was said in Loyal's Auto Exchange, Inc. v. Munch, supra, it was said: "We *592 did not say that the possession of a certificate of title was an absolute muniment of title. A thief with a certificate of title to a stolen automobile does not divest the owner of his right to take it wherever he can find it. A certificate of title is essential to convey the title to an automobile, but it is not conclusive of ownership. It is simply the exclusive method provided by statute for the transfer of title to a motor vehicle. It conveys no greater interest than the grantor actually possesses." See, also, Terry Bros. & Meves v. National Auto Ins. Co., 160 Neb. 110, 69 N.W.2d 361; Burns v. Commonwealth Trailer Sales, 163 Neb. 308, 79 N.W.2d 563.
It is clear that Matha did not obtain his certificate of title in the manner provided by statute. Section 60-106, R.R.S. 1943, as amended by the laws of 1953, contains the provision applicable in the present instance, as follows: "If a certificate of title has not previously been issued for such motor vehicle in this state, such application, * * * shall be accompanied by * * * a certificate of title, a court order issued by a court of record, * * * or an assigned registration certificate, if the law of the other state from which such motor vehicle was brought into this state does not have a certificate of title law. The county clerk shall retain the evidence of title presented by the applicant and on which the certificate of title is issued." Within the meaning of this statute Matha, at the time he obtained his Nebraska certificate, had no valid indicia of a right to receive a certificate of title under the laws of Nebraska.
As has been pointed out this automobile was registered on the basis of a document which came from Ohio. The State of Ohio at the time had a certificate of title law, but the document presented by Matha was not a certificate of title. As shown on its face it was a duplicate issued 18 days after a certificate which, so far as known here, was proper and in due form.
Apparently a true certificate of title issued pursuant to the Ohio statutes may be relied upon as evidence of title and of the right and power to convey an automobile. Significantly though this is not true of a duplicate certificate.
Section 4505.08, Page's Ohio Revised Code Annotated, provides for the issuance of certificates of title. It contains no restrictions upon the title represented by the certificate. Section 4505.12 provides for the issuance of duplicate certificates in the event originals are lost or destroyed. This section contains the following: "Said certified copy and all subsequent certificates of title issued in the chain of title originated by said certified copy shall be plainly marked across their faces `duplicate copy,' and any subsequent purchaser of said motor vehicle in the chain of title originating through such certified copy acquires only such rights in the motor vehicle as the original holder of said certified copy himself had."
Permission for the issuance of duplicate certificates and transfer of automobiles based thereon in this state is also found in the statutes of this state. Section 60-112, R.R.S.1943. The Nebraska statutes do not put a purchaser who buys an automobile and takes through a duplicate certificate on notice of possible impairment of title in the same manner as is done under the Ohio statute, but such purchaser is not left without warning. Section 60-112, R.R.S.1943, with respect to purchases pursuant to duplicate certificates, contains the following: "Any purchaser of such motor vehicle may at the time of such purchase require the seller of the same to indemnify him and all subsequent purchasers of such motor vehicle against any loss which he or they may suffer by reason of any claim or claims presented upon the original certificate."
It becomes apparent therefore that neither under Ohio nor Nebraska statutes could the defendant contend that he obtained the paramount title to the automobile *593 in question. He took it subject to the valid title which, as disclosed by the evidence, was, at the time he obtained it, in Richter. This being true, and it being made to appear that title was duly transferred to the plaintiff, the judgment of the district court should be and is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609671/ | 348 Mich. 8 (1957)
81 N.W.2d 386
BURNS
v.
FOSTER.
Docket No. 63, Calendar No. 47,044.
Supreme Court of Michigan.
Decided February 28, 1957.
Burney C. Veum, for plaintiffs.
D.D. Moorhead, for defendant.
KELLY, J.
Plaintiffs purchased in 1931 a 50-foot lot in Sault Ste. Marie, and in 1936 constructed a home 47 feet in width on said lot. In the spring of 1937 plaintiffs landscaped not only the 50 feet they purchased but an additional 3 feet of an adjoining lot (defendant's lot 15). While the property was purchased by the plaintiffs as tenants by the entireties, the husband is referred to as the plaintiff herein, representing both parties.
Defendant purchased this adjoining lot in 1953 and when plaintiff's right to ownership of the 3 feet in dispute was challenged by defendant in 1955, plaintiff brought this suit in chancery asking injunctive relief against trespass.
Defendant appeals from a decree of the circuit court for the county of Chippewa holding that plaintiff's *10 acts of ownership for more than 15 years constituted adverse possession, vesting title in plaintiff.
Plaintiff's lot 16 and defendant's lot 15 (Robert D. Perry's Addition, Amended Plat) have 50-foot frontages on the north side of East Spruce street and a depth of 145 feet to an alley in the rear. Defendant's lot is to the west of plaintiff's, and when plaintiff purchased his lot the 2 lots to the west were vacant and the lot to the east, namely lot 17, had a residence thereon owned by Herbert E. Fletcher.
Plaintiff's testimony that he never intended to claim more than he purchased, namely lot 16, is as follows:
"Q. Did you receive this property by deed?
"A. I did.
"Q. And you are only claiming then up to the boundaries of lot 16, is that your testimony, that you received by deed?
"A. Well I wouldn't say that exactly, if there was a mistake made in the survey and I have owned the property 25 years, I don't know.
"Q. What property are you claiming, lot 16?
"A. That's right.
"Q. Are you claiming any additional property?
"A. Wait a minute.
"Q. How do you claim any property you don't have a deed to?
"A. Well we have been there that long. We have never been disputed there before.
"Q. When you went into possession, Mr. Burns, was it your intention to claim more than lot 16?
"A. No, that is why we had it surveyed.
"Q. Then really all you claim or intended to claim was lot 16, is that right?
"A. At that time, yes.
"Q. Are you claiming it now?
"A. That is for my attorney to say.
"Q. That is for you to decide, Mr. Burns,
"A. I don't know."
*11 Plaintiff testified that surveyor Colwell made a survey establishing his lot lines prior to his landscaping in 1937. Plaintiff's architect and landscaper and, also, surveyor Colwell died prior to trial. Whether surveyor Colwell established plaintiff's lot lines depends solely upon plaintiff's word, as he had no written instrument or record to sustain such fact.
Appellant contends that the trial court "relied heavily in its opinion" on the line plaintiff contended was established by surveyor Colwell, and this is sustained by the statement in the trial court's opinion that: "The failure of the county surveyor, Colwell, to run a correct line has resulted in this litigation."
Appellee's application for a building permit was filed with the city of Sault Ste. Marie and attached thereto was a drawing, or ground plan, which establishes that appellee asked permission to build his house and attached garage so that the garage would extend to the lot line separating his property from Mr. Fletcher's property on the east, and extending the house to within 3 feet of his lot line on the west. The westerly line, as established by appellee in his application, did not include the 3 feet of property now in dispute.
Plaintiff's application for building permit was rejected by the building inspector because of the city's requirement that a building should not be constructed within 5 feet of the lot lines. To meet this objection plaintiff obtained, from lot owners Fletcher on the east and Dr. Cameron on his west, letters, which plaintiff presented to the zoning board on August 28, 1935. Mr. Fletcher's letter stated:
"It is my understanding that Mr. J. Alfred Burns is about to build a residence adjoining our residence on Spruce street on the west and that his plans are *12 drawn so that it will necessitate placing his garage up to our west line which will be satisfactory to us."
Dr. Cameron's letter confirmed the fact that plaintiff intended to build 3 feet from his west lot line. That letter read:
"It is my understanding that Mr. J. Alfred Burns is about to build a residence adjoining our property on Spruce street, on the west and that his plans are drawn so that it will necessitate placing his house up to 3 feet of our east line, which will be satisfactory to us."
Because of the letters presented along with the application for a building permit, the zoning board approved plaintiff's request for such building permit.
Dr. Cameron's letter to the zoning board was written on the "Burns Department Stores" stationery. Plaintiff was president of said store. Plaintiff denied that he ever asked Dr. Cameron's permission to build closer to his lot line than the ordinance allowed, and testified:
"Q. As long as this is on this subject, Mr. Burns, is that your signature?
"A. That's right.
"Q. And the defendant's exhibit E is a request for a building permit? Now in connection with obtaining this and your signature, did you ask permission of either of the lot owners to build that close?
"A. I have permission from this lot owner right here to build right up here on the line.
"Q. That would be the one east?
"A. Yes.
"Q. How about the one lying to the west?
"A. I don't remember. I bought that property before Dr. Cameron did. I had a deal with the Baptist Church. I went by the Colwell line.
"Q. You never did get permission from Dr. Cameron?
"A. No, I never did."
*13 Dr. William F. Murtaugh testified that in 1936 he was a joint purchaser on contract of lot 15; that while plaintiff was in Dr. Cameron's office he had a telephone conversation with both Dr. Cameron and plaintiff and that in said conversation he "told Mr. Burns as far as I was concerned with the consent of Dr. Cameron, he could have the use of that property while building, and if the zoning board would give him permission to build a little closer to the line, it was all right with me. I knew Mr. Burns. I thought we were going to be all together, O.K., that was all."
Dr. Cameron was deceased at time of trial. His widow, Marie Cameron, who jointly with her husband purchased lot 15, testified:
"Q. A question has come up as to Mr. Burns' use of a portion of lot 15 that lies west of his house, and I wonder, Mrs. Cameron, can you tell us whether or not Mr. Burns had permission to use that property?
"A. He did."
Margaret Evelyn Murtaugh, the wife of Dr. William Murtaugh who at one time owned lot 15, testified that her father owned lot 15 before he deeded same to her husband, which would have been sometime during the years 1936 to 1938; that she was present in her father's home when plaintiff had a conversation with Dr. Cameron, and she testified:
"Q. As near as you can remember, what was the substance of the conversation?
"A. Well, it was that Mr. Burns wanted to see about having some extra space and he didn't have the proper space for his home, and he talked to my dad. Dad didn't want to sell it and we, they refused to sell it but he gave him the permission to use it."
Defendant testified that he purchased lots 15 and 14 immediately adjacent to plaintiff's property on *14 the west; that prior to purchase he visited the plaintiff and showed him a drawing of his proposed home and dental clinic and that plaintiff had no objection to these buildings; that he asked plaintiff: "Where is your lot line and he (plaintiff) said my lot line does not go this far. I am on your property and with that the conversation drifted to casual remarks and I left." Plaintiff denied that he had had this conversation with defendant.
Rudolph Larson, at one time county surveyor of Chippewa county, established the true and correct line separating plaintiff's lot 16 from defendant's lot 15, and testified that plaintiff's house was built 3 feet from the true line.
Determination of what acts or uses are sufficient to constitute adverse possession depends upon the facts in each case and to a large extent upon the character of the premises. Barley v. Fisher, 267 Mich 450. Plaintiff claims adverse possession from 1937 when he landscaped 3 feet beyond his lot into defendant's lot. At that time and from then until 1953 when defendant purchased the lot adjoining plaintiff's, the lot was vacant property.
It is elementary that the burden of proving adverse possession rests upon the party who alleges it; strict construction of the doctrine is applied, and such possession must rest upon clear and positive proof, not inference. Conner v. Detroit Terminal Railroad Co., 183 Mich 241.
Adverse possession must be established by clear and cogent proof of possession that is actual, visible, open, notorious, exclusive, continuous and uninterrupted for the statutory period of 15 years,[*] hostile and under cover of claim of right. Stevenson v. Aalto, 333 Mich 582.
*15 Plaintiff did not establish his claim of adverse possession by clear and positive proof.
To make good a claim of title by adverse possession, the true owner must have actual knowledge of the hostile claim or the possession must be so open, visible, and notorious as to raise the presumption of notice to the world that the right of the true owner is invaded intentionally.[**] A mere permissive possession, or one consistent with the title of another, can never ripen into a title by adverse possession. Doctor v. Turner, 251 Mich 175; Seifferlein v. Foerster, 218 Mich 179.
The record in this case does not disclose that the present true owner had actual knowledge of plaintiff's hostile claim, but, to the contrary, discloses that plaintiff made known to the true owner that he only claimed title to 3 feet beyond his building and not 6 feet as he now claims in this action, and that the previous true owners of lot 15 (Dr. Cameron, et al.) gave plaintiff the right to use said lot while it was not improved.
Plaintiff's proof in regard to the so-called "Colwell line" is negated by plaintiff's application for building permit, and plaintiff fails to offer satisfactory proof as to how he knew his true lot line in 1936 and then extended the lot line 3 feet into defendant's property in 1937.
Plaintiff made no claim that he paid taxes on any property other than lot 16.
The decree of the lower court is reversed, the injunction is dissolved, and plaintiff's claim to any part of lot 15 is dismissed. Costs to defendant.
DETHMERS, C.J., and SHARPE, SMITH, EDWARDS, VOELKER, CARR, and BLACK, JJ., concurred.
NOTES
[*] See CL 1948, § 609.1 (Stat Ann § 27.593). REPORTER.
[**] The italicized portion of this sentence was added by sua sponte amendment on November 12, 1957. REPORTER. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609676/ | 81 N.W.2d 177 (1957)
163 Neb. 759
Robert FULTON, Plaintiff in Error,
v.
The STATE of Nebraska, Defendant in Error.
No. 34089.
Supreme Court of Nebraska.
February 15, 1957.
*178 Dwight Elliott, Loren G. Olsson, Scottsbluff, for plaintiff in error.
Clarence S. Beck, Atty. Gen., Homer Kyle, Asst. Atty. Gen., Lincoln, for defendant in error.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, WENKE, and BOSLAUGH, JJ.
YEAGER, Justice.
This is a criminal action wherein, in the district court for Scotts Bluff County, Nebraska, Robert Fulton, plaintiff in error, who will hereinafter be referred to as the defendant, was charged by information in the name of the State of Nebraska with the crime of rape. He was convicted on a trial to a jury and sentenced to serve a term of 3 years. A motion for new trial was filed which was overruled. The defendant has brought the case here for review by petition in error. By the petition he contends that the judgment and sentence were erroneous and that the judgment should be reversed.
The substance of the assignments of error is: (1) That the evidence is insufficient to sustain the charge; (2) that the court erred in giving one instruction requested by the State; and (3) that the court erred in refusing to give two instructions requested by the defendant.
The rules for the determination of whether or not the evidence in a prosecution for rape is sufficient to sustain a conviction are not doubtful or difficult of understanding. One of these rules is the following: "In a prosecution for rape, competent evidence must show beyond a reasonable doubt not only that defendant committed the act charged but that he did so under such circumstances that every element of the alleged offense existed, and where the evidence fails to meet that test, it is insufficient to support a conviction." Cascio v. State, 147 Neb. 1075, 25 N.W.2d 897, 899.
Another rule is the following: "The general rule is that where carnal knowledge is accomplished after a woman yields because of fear caused by threats of immediate great bodily injury or death, *179 the consummated act is rape." Cascio v. State, supra.
Another rule is the following: "The degree of force required is relative, depending upon the particular circumstances, but in any such case it must be sufficient to subject and put the dissenting woman within the power of the man, and thus enable him to have carnal knowledge of her, notwithstanding good-faith resistance on her part." Cascio v. State, supra. See, also, Brockman v. State, 163 Neb. 171, 79 N.W.2d 9, 10.
Still another rule is the following: "Where competent evidence is adduced to support every element of the offense charged in a criminal prosecution, it is ordinarily for the jury to determine if the offense has been established by evidence beyond a reasonable doubt." Brockman v. State, supra. See, also, Starnes v. State, 148 Neb. 888, 29 N.W.2d 795.
The prosecutrix gave testimony positively, the important details of which are, that around 5:30 a. m. on January 1, 1956, the defendant came to her home where she was with her two children; that the children were respectively of the ages of about 2 years and 1 month; that he entered without invitation and that his presence was not discovered until she heard him in the house; that he possessed himself of a gun which he found in the house which he threatened to use unless she acceded to his demands; that he forcibly and against her resistance removed her clothing which consisted of a robe and pajamas; that he threw her upon a bed or couch and attempted to force accession; that he choked her and placed his knee upon her stomach; that as a consequence of all this her power of resistance was overcome and he had intercourse with her; and that after the act and before he left the house she went to a neighbor's house and called attention to the occurrence in her home.
The defendant testified in his own behalf. He admitted that he had intercourse with the prosecutrix at the time and place charged in the information. He testified however that it was with consent and without resistance on the part of the prosecutrix.
Under the evidence adduced and the controlling legal principles there was presented a question of fact to be determined by the jury. The jury by its verdict resolved that question in favor of the State and against the defendant. No reason is apparent why the action of the jury should be disturbed.
As pointed out, the refusal to give two instructions is assigned as error. The first one to which attention is directed is No. 1. The defendant insists that the following portion of it should have been given: "The charge made against the defendant is in its nature a most heinous one and well calculated to create strong prejudice against the accused, and the attention of the jury is directed to the difficulty, growing out of the nature of the unusual circumstances connected with the commission of such a crime, in defending against the accusation of rape. It is your duty to carefully consider all of the evidence in the case and the law as given to you by the court in arriving at what your verdict will be in this case."
In Reynolds v. State, 27 Neb. 90, 42 N.W. 903, 20 Am.St.Rep. 659, this court did condemn as prejudicial error the refusal to give an instruction containing substantially the same context as the first sentence of the foregoing quotation. The holding in that case had special reference to this context.
We do not think, however, in the light of the instructions given, that there was any prejudicial error in the refusal to give this portion of the tendered instruction. The directly condemnatory statement in Reynolds v. State, supra, appears in a syllabus point. The true effect of the holding when read with the opinion, we think, was to say that the attention of the *180 jury must be called to the responsibility involved in the consideration of such a case, but it did not amount to an exaction that any particular formula should be employed so long as a properly admonitory instruction was given. To the extent that it appears to exact the giving of an instruction in this particular language it is overruled.
We think that the instructions in this case and particularly instruction No. 18 were sufficient. Instruction No. 18 in pertinent part is as follows: "Consider the importance of your function as jurors. You are the sole judges of the facts. Your decision on these facts is final. Thus, your position is of grave importance in the proper functioning of the court in the administration of justice. Your primary desire must be to reach a fair and just conclusion only from facts and circumstances in evidence. A consideration of facts and circumstances in evidence excludes sympathy or prejudice in reaching a conclusion."
The other instruction which the court refused to give on request of the defendant was one which, if given, would have permitted the jury in the event of failure to find the defendant guilty of rape to find him guilty of assault if the evidence was sufficient to sustain a charge of assault. We conclude that the refusal to give this instruction was not erroneous.
The court said in Torske v. State, 123 Neb. 161, 242 N.W. 408, 413: "Where the evidence is insufficient to support a finding of a lesser degree than that charged in the information, it is not error to refuse to give an instruction defining the lesser offense." See, also, Fager v. State, 49 Neb. 439, 68 N.W. 611; Schultz v. State, 89 Neb. 34, 130 N.W. 972, 33 L.R.A.,N.S., 403, Ann.Cas.1912C, 495.
On the record of the evidence made at the trial the jury could properly have found the defendant guilty only of the crime with which he was charged or that he was not guilty. In the true aspect of the case there was no room for departure from this. The evidence was incapable of supporting any other or different finding.
The instruction given at the request of the State to which objection is made is instruction No. 10. It relates to testimony of the prosecutrix and of the defendant as to earlier sexual intercourse between these two parties. Their veracity is brought into question. The second paragraph of the instruction relates to this. It is as follows: "You must first decide whether or not such was forcibly and against her will, and you are further instructed that the law extends to all women, regardless of whether a woman may have previously consented to intercourse with a man, yet if she subsequently refuses to consent to intercourse, and he forces her he is guilty of rape. It is no defense that the complaining witness may have had previously submitted, if on the date as alleged in this complaint, she was forced to have intercourse with the defendant against her will."
Nothing has been found in this paragraph of the instruction which may be regarded as misleading or in any wise contrary to law. By the instruction as it is analyzed the jury was told that it was the judge of the credibility of the two witnesses, but even if it found that the prosecutrix had consented to intercourse on a previous occasion or previous occasions that could not be regarded as a defense in this case, notwithstanding such a finding, if it should be so found, if it found beyond a reasonable doubt that on the occasion in question the defendant had intercourse with the prosecutrix by force and against her will.
No prejudicial error having been found in the record the judgment of the district court is affirmed.
Affirmed.
CHAPPELL, J., participating on briefs.
*181 CARTER, WENKE, and BOSLAUGH, JJ. (dissenting).
This is a prosecution on a charge of rape. The defendant was convicted and sentenced to serve 3 years in the penitentiary. We are in agreement with what is said in the opinion affirming the judgment except as it relates to the sufficiency of the cautionary instruction given and the overruling of Reynolds v. State, 27 Neb. 90, 42 N.W. 903, 904, 20 Am.St.Rep. 659.
The defendant requested a cautionary instruction which in part stated: "The charge made against the defendant is in its nature a most heinous one and well calculated to create strong prejudice against the accused, and the attention of the jury is directed to the difficulty, growing out of the nature of the unusual circumstances connected with the commission of such a crime, in defending against the accusation of rape." The trial court refused to give this portion of the tendered instruction and purported to cover the subject by an instruction reading as follows: "Consider the importance of your function as jurors. You are the sole judges of the facts. Your decision on these facts is final. Thus, your position is of grave importance in the proper functioning of the court in the administration of justice. Your primary desire must be to reach a fair and just conclusion only from facts and circumstances in evidence. A consideration of facts and circumstances in evidence excludes sympathy or prejudice in reaching a conclusion. It includes, however, a careful application by you of all the law contained in these instructions. Thus, it will be your duty to read these instructions after you retire and to use them as a guide in all your deliberations. Let your verdict reflect a deliberate judgment free from any influence other than the law and all facts and circumstances in evidence." We find no fault with this instruction as far as it goes. In our opinion, however, it does not cover the purpose of the requested instruction to which the defendant is entitled under the law of this state where a proper request is made therefor.
We submit that the instruction given by the trial court does not contain the substance of the rejected instruction. It fails to caution the jury that prejudice was liable to be aroused against the accused because of the heinous nature of the crime charged in the information, or to call attention to the difficulty growing out of the nature and unusual incidents of the crime of defending against an accusation of rape, however innocent the defendant may be. In Reynolds v. State, supra, the court said: "The fact that the charge itself will frequently raise a clamor among ignorant and easily biased persons has been recognized by fair-minded judges and law-writers from the time of Chief Justice Hale, at least, until the present time. * * * He [Chief Justice Hale] says: `I only mention these instances that we may be the more cautious upon trials of offenses of this nature, wherein the court and jury may with so much ease be imposed upon, without great care and vigilance.'" The refusal to give such an instruction upon request has constituted prejudicial error in this state since Reynolds v. State, supra, adopted in 1889. The lack of cases dealing with the rule in this state evidences its general application and acceptance over the years.
We point out that although the testimony of a prosecutrix must be corroborated to some extent, yet essential elements of the crime are necessarily supported only by her uncorroborated testimony. Many reasons exist why such uncorroborated evidence should be most carefully scrutinized and the jury cautioned about permitting prejudice to creep into their deliberations. It is a fact, well known to fair-minded judges and lawyers, and others as well, that the evidence of a prosecutrix in this type of case is often influenced by a stricken conscience, a fear of inquiry and discovery, or possible pregnancy. Arguments of counsel are not ordinarily effective in securing for *182 the defendant the careful and impartial consideration of such evidence to which he is entitled. An instruction by the court is much more likely to do so. The rule is one for the protection of the innocent and can afford no comfort to the guilty. The overruling of Reynolds v. State, supra, insofar as it conflicts with the present case, eliminates the necessity for giving any such cautionary instruction in the future, with or without request. It, in fact, has the effect of eliminating any necessity for a cautionary instruction in any type of case under any and all circumstances, whether requested or not. It destroys the beneficent purposes of a rule bordering on a substantial right in this type of case, which has stood as a protection to the innocent for almost 70 years. No reason is given in the opinion for this departure from the time-honored rule. For aught the opinion shows, there has been no consolidation of thought or reason by the majority as to why this landmark of the criminal law of this state should be so inconsiderately stricken down. No change of condition is pointed out, no failure of its purpose noted.
We submit that such changes in our criminal law for the asserted reason that the refusal of the tendered instruction does no prejudicial harm to the defendant is a mere speculation as to what effect the jury might have given to it. In determining that the refusal could have no prejudicial effect upon the jury, the court usurps the duty of the jury to apply it to the evidence. It amounts to a declaration that trial courts may hereafter with impunity disregard the substantial rights of a defendant in this type of case. This long-established rule had for its objective the protection of the innocent against prejudice and resulting injustice. It conforms to the purposes of the law to see that justice is done in all cases and to alleviate the danger that innocent persons may suffer because the jury may be swayed by matters inducing other than a fair and impartial consideration of the evidence before it. The abrogation of the rule, in our opinion, is a backward step in the development of the judicial process and can only result in less assurance of a fair and impartial trial in this type of case.
We have searched the record in vain for evidence that the requested instruction was otherwise covered by the trial court in his instructions to the jury. We find nothing that even remotely refers thereto. The refusal to give the requested instruction is not cured by other instructions, either singly or as a whole. We unqualifiedly reject any contention made that the instructions as a whole were sufficient or that their sufficiency in other respects can by any process of reasoning justify an affirmance of the present case.
We submit that it was prejudicial error for the trial court to refuse to give the requested cautionary instruction, and that the judgment should be reversed and the cause remanded for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922396/ | 756 A.2d 366 (2000)
Bradley K. SWEET, Appellant,
v.
UNITED STATES, Appellee.
No. 94-CF-191.
District of Columbia Court of Appeals.
Argued October 27, 1998.
Decided May 25, 2000.
*368 Mindy A. Daniels for appellant.
Ann L. Rosenfield, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher, and Thomas J. Tourish, Jr., Assistant United States Attorneys, were on the brief, for appellee.
Before WAGNER, Chief Judge, and SCHWELB, and REID, Associate Judges.
WAGNER, Chief Judge:
Following a jury trial, appellant, Bradley Sweet, was convicted of two counts of assault with intent to kill while armed (AWIKWA) (D.C.Code §§ 22-501, -3202 (1989)), two counts of possession of a firearm during the commission of a crime of violence (PFCV) (D.C.Code § 22-3204(b) (1989)), two counts of carrying a pistol without a license (D.C.Code § 22-3204(a) (1989)), one count of first-degree murder while armed (premeditated) (D.C.Code §§ 22-2401, -3202 (1989)) and two counts of obstruction of justice (D.C.Code §§ 22-722(a)(3), -722(a)(1) (1989)). These charges arose out of an assault on Marcia Watson and her nephew, Edgar Watson, on October 17, 1991 and the subsequent murder of Marcia Watson on November 29, 1991. In the same trial, Sweet was also convicted of multiple offenses in a consolidated case related to the murder of a corrections officer, Ronald Richardson, on October 7, 1991. The offenses for which he was convicted in the Richardson case included conspiracy to commit first-degree murder while armed (premeditated) and felony murder while armed (D.C.Code §§ 22-2401, -3202), obstruction of justice (D.C.Code § 22-722(a)(1)), assault with intent to commit obstruction of justice while armed (D.C.Code § 22-722(a)), possession of a firearm during the commission of a crime of violence, and carrying a pistol without a license.[1] Sweet argues for reversal on the grounds that the trial court erred in: (1) permitting the government to introduce other crimes evidence that he was a hit man who had committed prior murders at the behest of co-defendant, Tony Hammond; (2) denying severance of improperly joined charges; (3) denying his motion to suppress statements; (4) precluding the admission of decedent, Marcia Watson's hearsay statements which exculpated Sweet and implicated someone else; (5) improperly admitting hearsay statements of his co-defendants as declarations against penal interest; and (6) amending the indictment by use of a verdict form which broadened the charges. Sweet also contends that various offenses merge, an argument which the government concedes in part. We reverse and remand for a new trial on the grounds that Sweet was substantially prejudiced by the improper admission of other crimes evidence.
I. Factual Background
A. The Richardson Murder
On October 7, 1991, Ronald Richardson, a corrections officer, was scheduled to testify as a complaining witness in the trial of Michael Page, who was charged with kidnaping two correctional officers, including Richardson, from a halfway house. Richardson was gunned down in front of his home as he left to meet with the prosecutor on the morning of trial. His daughter heard about a dozen shots, and from her window, saw three men in the middle of the street, one of whom stuck a gun down his pants. She observed the men enter a *369 burgundy colored Dodge Caravan, which was parked in front of her father's car, and drive away. She spotted her father on the ground and called the police. Richardson had sustained multiple gunshot wounds from which he died.
Eric Pleasant, co-defendant Terry Pleasant's cousin, read about Richardson's murder in the newspaper and recognized the name of Michael Page in the account.[2] Eric had seen his cousin, Terry, with Tony Hammond, Chester Wright and Sweet, and he had associated with them occasionally. Shortly after Richardson's murder, Terry informed Eric that "we got one around your way," which Eric understood to mean that they had murdered someone. Eric asked Terry if he was referring to the corrections officer, and Terry responded, "Yeah." Eric knew that Terry drove a burgundy Caravan at the time of the murder, and later Terry informed Eric that he had driven the car to the scene of the murder. Eric knew a police deputy chief and spoke to him later about the crime. The deputy chief had Eric "debriefed" by Detective Will. Detective Will conveyed information about the case to Detective Gregory who applied for a warrant for Terry Pleasant's arrest. Terry Pleasant was arrested the next day. After his arrest, Eric spoke with Chester Wright who informed him that Terry should be home soon because he did not kill Richardson. When Terry was released from jail, Eric spoke to him about the comment. Terry responded, "Man, Chester Wright and Bradley [Sweet] better take their beef, because he wasn't going to take it."
B. The Assaults on Marcia Watson and Edgar Watson
The evidence showed that on October 17, 1991, shortly before 8:00 p.m., Edgar Watson, the fourteen-year-old nephew of Marcia Watson, saw his aunt in the area of Stanton Terrace speaking to Sweet. Terry Pleasant, who was also in the area, talked to Edgar Watson. Edgar did not hear the conversation between Sweet and his aunt, but she told him afterwards that it was about money she owed Sweet. Edgar remained on the street with his aunt, who was "hustling." Later, Sweet returned to the area and shot Marcia and Edgar Watson. Edgar ran. As he looked back, he saw his aunt cover her head as Sweet stood over her shooting. A man who lived in the area, who knew Marcia Watson, heard the shots and saw her kneeling by a car. He also heard her crying out, "Why you all doing this to me, Bradley." Marcia and Edgar were taken to the hospital. Ballistic tests determined a bullet recovered from the Marcia Watson shooting was fired from the same weapon as a bullet recovered in connection with the Richardson homicide. Her sister, who was visiting, asked who shot her, and Watson, who had tubes in her mouth, wrote on a piece of paper that "Bradley shot me. Don't tell." When she was able to speak, Marcia Watson stated repeatedly that, "I know I'm going to die."
While she was still in the hospital, Marcia Watson told police Detective Giardino that Sweet shot her and her nephew, and she identified Sweet's photograph from a photo array that the detective showed her. She gave the detective a written statement in which she explained that Sweet was angry with her because she owed him. money for drugs and that he had discussed it with her before the shooting. In her statement, Marcia Watson described how a bullet struck her causing her to fall, how Sweet stood over her smiling, his face illuminated by the streetlight, and continued shooting her in the face even though she was begging him for her life. Edgar Watson identified Sweet's photograph as looking like the person who shot him. Sweet was arrested on November 4, 1991 in connection with the Watson shootings.
*370 C. The Murder of Marcia Watson
On November 27, 1991, Marcia Watson spoke with police Detective Linda King, whom she encountered on the corner of Stanton Terrace and Alabama Avenue. Ms. Watson informed King that she had some information about "everything that's going on in Stanton Terrace." They arranged to meet the following day. When Ms. Watson came into the area the next day, she spotted someone and left hurriedly. The following day, November 29, 1991, Marcia Watson and Selenna Winston went to a corner on Stanton Terrace to sell drugs. When they reached Stanton Terrace and Frederick Avenue, Watson remarked that she did not know why she was standing there because it was where she had been shot. Watson then saw Sweet approaching and said, "Oh, my God, not again." Winston testified that she saw Sweet run up to Marcia Watson and shoot and kill her.
Kevin Watson, Marcia Watson's cousin, and Kevin Frye were arrested in connection with this murder. After his arrest, Kevin Watson provided information to the police about the Richardson murder. He said that while at Terry Pleasant's house one Saturday in October 1991, Tony Hammond, with whom his sister, Michelle Watson was involved in selling drugs, pressed them to confirm an address and license plate at 58th and Blaine Streets. That was the location where decedent Richardson lived and was later killed. According to Kevin Watson, Pleasant had given Hammond a piece of paper with the address on it just before Hammond made the request. Kevin and Michelle Watson went to that location and confirmed the information. The next Monday, Kevin Watson learned about the murder of the corrections officer at that location. Hammond later admitted to him that as soon as he and Michelle confirmed the information, Hammond "and his man" staked out the location and waited all day Saturday and Sunday for the officer. Kevin Watson said he was present with Terry Pleasant and Michelle Watson later when Sweet described how he and Chester Wright had shot Richardson. Kevin Watson also testified that he spoke with his cousin Marcia Watson about the murder before she was shot on October 17, 1991.
While in jail, Sweet admitted to Kevin Frye that he shot Marcia Watson because she knew about some homicides, and she was on drugs and might talk. Sweet described to Frye how he shot Marcia Watson. He also told Frye that he took a "bet" from Tony Hammond to kill the corrections officer and that a lawyer had provided the officer's address. Hammond described for Frye the details concerning how they laid in wait for the officer in shifts. Sweet told Frye that he "popped [Richardson] a tune," meaning that he murdered him.
Michelle Watson testified that she overheard Sweet describe how he and Chester Wright murdered the corrections officer. Two days after the murder, she heard Sweet bragging to Terry Pleasant about his role in the murder. Sweet said he shot Richardson in the body and that Wright shot him in the head. Michelle Watson also said that Tony Hammond told her that Sweet and Chester Wright killed the corrections officer, and Hammond went to the scene after the shooting and saw them there, along with Wright. Hammond said that he knew it would be done right because Sweet was with them. Michelle Watson also spoke with Chester Wright who described where he and Sweet had shot Richardson, which was consistent with Sweet's account.
II.
Sweet argues that the trial court erred in admitting other crimes evidence. Specifically, he contends that the trial court erred in allowing the government to introduce his admission that he had "crushed" (killed) people before for Tony Hammond. He argues that the trial court failed to make the requisite findings for admission of this other crimes evidence under Drew *371 v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964), and provided no cautionary instruction for the evidence, which he contends was more prejudicial than probative. Relying on (William) Johnson v. United States, 683 A.2d 1087 (D.C.1996) (en banc), cert. denied, 520 U.S. 1148, 117 S.Ct. 1323, 137 L.Ed.2d 484 (1997), the government argues that the challenged evidence was not subject to the strictures of Drew because it was admissible as substantial proof of the crime charged or so closely intertwined with evidence of the crime charged as to be admissible.
Other crimes evidence is inadmissible to prove that a defendant was predisposed to commit the crime charged, and such evidence is deemed presumptively prejudicial unless it can be shown to be admissible for a substantial and legitimate purpose, including for example, motive, intent, absence of mistake or accident, common scheme or plan or identity. Johnson, supra, 683 A.2d at 1092 (citing Drew, supra, 118 U.S.App.D.C. at 15-16, 331 F.2d at 89-90). Even if this test is met, the evidence should be excluded "if the danger of unfair prejudice that it poses substantially outweighs its probative value." Id. at 1101 (citing United States v. Conners, 825 F.2d 1384, 1390 (9th Cir.1987)). However, relevant evidence of other crimes is not subject to the Drew analysis when "the evidence is direct proof of the crime charged, [and] it must surmount only the final hurdle that all evidence of whatever sort must clear, i.e., the evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice it poses." Id. (citing Drew, 118 U.S.App.D.C. at 16, 331 F.2d at 90). Here, the trial court indicated that it did not view this evidence as subject to a Drew analysis, apparently accepting the government's argument that the evidence explained why one of the alleged co-conspirators in the murder of the corrections officer approached Sweet to commit the offense.[3] On appeal, the government does not argue the admissibility of the evidence under Drew and its progeny. It takes the position that the evidence was admissible under Johnson, supra, "either as direct and substantial proof of the charged crime or as closely intertwined with the charged crime."
Sweet was charged, along with Tony Hammond, Terrence Pleasant and Michael Page, with conspiracy to commit first-degree murder while armed of Ronald Richardson and obstruction of justice to prevent Richardson from testifying as a complaining witness in the case of United States v. Michael Page, No. F 326-91, which was scheduled for trial in Superior Court the morning that Richardson was killed. At one time the police thought that Sweet was a witness, rather than a participant in Richardson's murder, and in an interview, Sweet told the police that Hammond and Pleasant had tried to solicit him to commit the murder.[4] When the detective asked Sweet why they had tried to solicit him to commit the murder, Sweet responded to that he had "crushed [killed]" for Hammond before. On appeal, Sweet challenges the admission of this evidence through the testimony of a police detective at trial as well as the prosecutor's remarks concerning it in opening statement and closing argument. In opening statement, the prosecutor included in his remarks the following:
You're going to listen and hear the witnesses in this case describe how this *372 investigation unfolded and how we will know at the end of this trial that Bradley Sweet was a hit man, a paid killer to do this job.
* * * *
One of Tony Hammond's closest associates was Terrance Pleasant. Another associate was Chester Wright and another close associate is ... Bradley Sweet. Brad Sweet said that Tony Hammond was willing to put up $20,000 and a kilo of cocaine to kill the corrections officer. Terry Pleasant, according to Bradley Sweet, had come to Bradley and asked him to do the murder. Bradley called it a bet. Will you take the bet? Bradley said the reason they came to [him] is because I've crushed for Tony before and so he knew that I would get the job done.
Detective Gregory testified at trial that Sweet told him that Pleasant and Hammond had offered him $20,000 and a large amount of cocaine to "take a bet" to kill the correctional officer, and Sweet explained that a bet was a contract to kill someone. According to the detective's testimony, when he questioned Sweet about why Pleasant and Hammond would come to him, Sweet explained that he had "crushed [meaning kill] for them before." The officer also stated that Sweet said that he turned the offer down because there would be too much heat for killing a cop. In response to questioning by defense counsel concerning how he remembered the conversation without notes, the detective explained that it was the first time as a detective that anyone had told him that he had killed before. The prosecutor summarized this evidence inclosing argument:
You know from the testimony of Detective Gregory that this man is a self-proclaimed hit man that he crushes people for Tony Hammond; that that's what he used to do. And you know he used to do that until he was finally arrested in December of 1991 when he finally was locked up and held, ladies and gentlemen. And he admitted to Detective Gregory, of course, they came to me because I used to do this kind of thing for them all the time. I crushed for Tony Hammond. That's what I do. But this one was too hot. I didn't want to do it and then he went into a detailed description of how this murder actually occurred.
The trial court concluded, and the government argues on appeal, that this evidence does not fall within the strictures of Drew. Drew is inapplicable ... where the "`evidence (1) is direct and substantial proof of the charged crime, (2) is closely intertwined with the evidence of the charged crime, or (3) is necessary to place the charged crime in an understandable context.'" Bonhart v. United States, 691 A.2d 160, 164 (D.C.1997) (citing Johnson, supra, 683 A.2d at 1098). "While it is the general rule that a confession to be admissible must relate to the offense charged, it is equally true that it may include other offenses when there can be no separation of the relevant and irrelevant parts or when `the two crimes are so connected as to be part of a general scheme.'" Settles v. United States, 615 A.2d 1105, 1109 (D.C.1992) (quoting Robinson v. United States, 61 U.S.App.D.C. 370, 371, 63 F.2d 147, 148, cert. denied, 289 U.S. 749, 53 S.Ct. 697, 77 L.Ed. 1494 (1933)) (quoting Borum v. United States, 61 U.S.App.D.C. 4, 6, 56 F.2d 301, 303, cert. denied, 285 U.S. 555, 52 S.Ct. 459, 76 L.Ed. 944 (1932)) (other citations omitted). Relying primarily on Johnson, Bonhart and Settles, the government contends that Sweet's statements concerning his involvement in prior crimes with his co-conspirators was closely intertwined with the charged offense and necessary to place the offense charged in context, and therefore, not subject to the requirements of Drew. However, in each of the cases relied upon by the government, unlike the case before the court, the relationship of the statements to the charged offense makes their admissibility *373 readily apparent as a brief review of each will show.
In Johnson, the appellant was convicted of killing his partner in a drug operation. 683 A.2d at 1090. The decedent's keys and portable telephone were missing after the murder. Minutes later, calls were placed to a nearby Maryland apartment where decedent's son, girlfriend, and her brother resided and which was used as a production center for the narcotics operation. Id. at 1091. Less than one hour later, the apartment was entered without force, a pistol and drugs were taken from a closet, and the two boys were shot with the same weapon as decedent was. Id. at 1091, 1094. We held that Drew did not apply because "the evidence of the Maryland killings was such direct proof of appellant's guilt of the instant charge that the two occurrences could not be said to be independent of one another. . . ." Id. at 1096. The evidence of the uncharged Maryland crimes fell into the non-Drew categories, i.e., direct and substantial proof of the charged offense. Id. at 1098.
In Bonhart, the defendant was charged with felony destruction of property, arson, second-degree murder and felony murder, 691 A.2d at 161. He contended on appeal that the trial court erred in admitting other crimes evidence that he had sold drugs for years to the decedent who died in a fire which appellant had set. The other crimes evidence consisted of testimony that two days before the fire, defendant had threatened to burn the decedent's apartment down if he and his companion did not pay defendant the money they owed him for a recent drug sale. We upheld the admission of the evidence as falling within two of the non-Drew categories, i.e., as evidence intertwined with the arson and as substantial proof of the crime charged. Id. at 164. The facts surrounding the drug dealing and debt were intertwined with the defendant's threat of arson, which he carried out two days later, and proof of his involvement in the crime.
Finally, in Settles, the defendant was convicted of second-degree murder while armed for shooting his twelve-year-old nephew. 615 A.2d at 1106. He challenged on appeal the admissibility of testimony concerning his drug use on the day of the murder under Drew. As to Settles' statements concerning his own drug use, we held that the admission of defendant's statements that he was high and "kinda mellow" at the time of the shooting was proper to explain the circumstances surrounding the charged offense. Id. at 1110. Settles' explanation of how he tried to shoot his nephew in the shoulder to wound him following an argument because he was nervous and high "is the type of contemporaneous evidence of the circumstances surrounding the charged offense that is properly introduced without the Drew safeguards as what might be referred to as "pure" Toliver evidence."[5]Id. at 1109 (citing (James) Johnson v. United States, 596 A.2d 980, 986 & n. 13 (D.C.1991), cert. denied, 504 U.S. 927, 112 S.Ct. 1987, 118 L.Ed.2d 585 (1992)). This challenged evidence was essential to the jury's understanding of Settles' explanation of his state of mind at the time of the shooting. Id. at 1110.
The other crimes evidence which Sweet challenges here does not fall into any of the three non-Drew categories outlined in (William) Johnson, i.e., direct proof of the crime charged, closely intertwined with the evidence of the charged offense, or necessary to place the crime charged in an understandable context. See (William) Johnson, supra, 683 A.2d at 1098. Evidence that Sweet had killed other people in the past on behalf of Hammond was not direct proof that he killed or conspired to kill the corrections officer at Hammond's behest. See id. Nor was the evidence of past murders closely intertwined with evidence of the current conspiracy to murder Richardson. The prior murders about which Sweet boasted did *374 not purport to be related to, or connected with, the murder of the corrections officer. Finally, Sweet's statement that he had "crushed" before for Hammond was not necessary to the jury's understanding of the events surrounding the conspiracy to murder Richardson. According to the government's evidence, Richardson was murdered to keep him from testifying in the case against Michael Page. There was no evidence that these events were associated with any of the past killings which Sweet claimed to have undertaken on behalf of Hammond or any of the others involved. Conspiracy to murder Richardson, according to the evidence, arose out of Hammond's desire to silence Richardson as a witness in a case against Michael Page. Thus, the claimed prior murders about which Sweet boasted, were independent of the crimes charged and not necessary to prove them.
"The impropriety of admitting prejudicial evidence of a defendant's other crimes merely to prove criminal disposition is well recognized." Bonhart, supra, 691 A.2d at 164. "Since the likelihood that juries will make such an improper inference is high, courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose." (William) Johnson, 683 A.2d at 1092 (citing Drew, supra, 118 U.S.App.D.C. at 15-16, 331 F.2d at 89-90). Absent any showing of any legitimate purpose for admission of the evidence either under Drew's exception or as non-Drew evidence, it is difficult to conclude that the evidence was not offered to prove predisposition to commit the charged offense. Indeed, that is the way the government used the evidence of Sweet's admissions to prior contract killings in opening statement and in closing argument. The prosecutor identified Sweet as a "self-proclaimed hit man" who kills people for Tony Hammond, "who used to do this all the time" until his arrest. Absent any legitimate purpose, evidence that the accused murdered other people in the past at the behest of Hammond was highly likely to lead the jury to infer improperly that Sweet once again carried out the contract killing on behalf of Hammond for which he was on trial in this case. Even assuming that this evidence were relevant as non-Drew evidence, the danger of unfair prejudice would seem to outweigh any probative value.[6]See (William) Johnson, supra, 683 A.2d at 1099 (citing FED. R EVID. 403, now followed by this court). We conclude, therefore, that it was an abuse of discretion for the trial court to admit the evidence. This evidence lacked legitimate probative value and the danger of unfair prejudice was substantial, requiring reversal.
III.
Since we reverse for the reasons stated in part II of this opinion, we address only those remaining claims which will arise upon retrial. First, Sweet argues that the offenses were misjoined. He contends that the joined offenses were not of the same or similar character, connected together nor a part of a common plan. Rule 8(a) permits joinder of offenses in the same indictment for a defendant which are "of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Super. Ct.Crim. R. 8(a). Sweet contends that the Richardson charges and Watson charges do not meet the test for joinder under Rule 8(a).[7] In *375 support of this argument, he points out that the Richardson murder involved a planned assassination by three assailants outside the victim's home, while the Watson incident involved a lone gunman in a known drug distribution area.
We start with the proposition that Rule 8(a) is construed broadly in favor of initial joinder. Coleman v. United States, 619 A.2d 40, 46 (D.C.1993) (citation omitted). The government argues that joinder was proper based upon that portion of the rule which permits joinder of crimes which are "connected together." "Two crimes are connected together within the meaning of the rule if `proof of one crime constitutes a substantial portion of proof of the other.'" Id. (quoting United States v. Montes-Cardenas, 746 F.2d 771, 775 (11th Cir.1984)) (other citations omitted). Here, there was evidence that the same gun used in the Richardson shooting was used in the assault on Marcia Watson, who was later killed by the same man who had shot her once before. These circumstances demonstrate that the offenses are connected together within the meaning of the rule because of the overlapping of proof. See id. (proof that defendant possessed a knife which appeared to be used in two joined robberies overlapped with proof of charge of carrying a dangerous weapon); Void v. United States, 631 A.2d 374, 379-80 (D.C.1993) (evidence that fruits of one crime were used to carry out a later crime may be sufficient to meet the "connected together" requirement for joinder). There is a further connection in that the indictment alleges that Sweet's motive for shooting and killing Watson was to prevent her from providing information to law enforcement authorities concerning the Richardson murder. The evidence at trial showed that Sweet admitted to Frye that he had shot Watson and her nephew because Watson knew something about some homicides and that she might talk because of her drug problem. We conclude that there is a substantial connection between the charged offenses to support joinder under Rule 8(a).[8]
Sweet argues that the offenses should have been severed under Super. Ct. Crim. R. 14 even if the offenses were properly joined. Rule 14 provides for relief from prejudicial joinder where the defendant or government would be prejudiced thereby. Under the rule, severance should be granted
"unless (1) the evidence as to each offense is separate and distinct, and thus unlikely to be amalgamated in the jury's mind into a single inculpatory mass, or (2) the evidence of each of the joined crimes would be admissible at the separate trial of the others."
Void, supra, 631 A.2d at 379 (quoting Cox v. United States, 498 A.2d 231, 235 (D.C. 1985)) (quoting Bridges v. United States, 381 A.2d 1073, 1075 (D.C.1977), cert. denied, 439 U.S. 842, 99 S.Ct. 135, 58 L.Ed.2d 141 (1978)) (other citations omitted). Sweet contends that the evidence of the crimes in the Richardson murder was not admissible for any legitimate purpose with respect to the other crimes. Specifically, he argues that: (1) the government did not need the evidence of the Richardson murder to establish motive or identity in the Watson incidents because of the availability of Watson's statements identifying *376 him as the perpetrator and providing another motive for the shooting; (2) evidence that the same gun used to shoot Richardson and assault Watson initially was of minimal relevance because Watson had identified Sweet as her assailant in the unsuccessful murder attempt; and (3) the evidence was not admissible in separate trials.
Mutual admissibility of evidence in separate trials is determined generally by applying a Drew analysis. Roper, supra, 564 A.2d at 731. However, the Drew analysis is not required where the evidence is "not independent of the crime charged and the evidence is direct proof of the crime charged. . . ." (William) Johnson, supra, 683 A.2d at 1101. Here, evidence of the Richardson murder was related to the first attempt on Watson's life and her subsequent murder. There was evidence that Sweet admitted that he shot Watson because she had information about some homicides, and Sweet was afraid that she would talk. In addition, the weapon used was the same in the Richardson murder as in the subsequent initial shooting of Watson. Such evidence was direct proof of the Richardson homicide and the Watson shootings.[9]See (Phillip H.) Johnson v.. United States, 701 A.2d 1085, 1092-93 (D.C.1997); see also Bonhart, supra, 691 A.2d at 164.
Sweet also contends that any probative value of the evidence was outweighed by its prejudicial effect. The danger of unfair prejudice must be substantial to warrant the exclusion of relevant evidence. (William) Johnson, supra, 683 A.2d at 1099. That determination is left to the sound discretion of the trial court. See (Phillip H.) Johnson, supra, 701 A.2d at 1092-93. We find no abuse of discretion here. See id.
IV.
Sweet argues that the trial court erred in denying his motion to suppress statements, including those he made to the police and before the Grand Jury, which he contends were obtained in violation of his Fifth and Sixth Amendment rights. He contends that the government obtained his testimony before the Grand Jury without providing him with warnings that he was a suspect. He claims that the government obtained statements related to the Richardson murder knowing that he was represented by counsel in the related Watson case and knowing that his motive for cooperation was to obtain a bargain in the Watson case with which he was charged.
The events which relate to this argument occurred as follows. Sweet was arrested on November 4, 1991 in connection with the assaults on Marcia and Edgar Watson. Sweet admits that he was given Miranda[10] warnings at the police station. At that time Detective Gregory, who was leading the investigation into the Richardson murder, tried to interview Sweet about it. However, Sweet declined, stating that he wanted the case involving the Watson charges dismissed in exchange. The detective informed Sweet that any deal would have to be made through the U.S. Attorney's office. The following day, Sweet was appointed counsel to represent him on the AWIKWA charges. Sweet again informed the detective that he would not talk about the Richardson murder unless the AWIKWA case was dismissed. Detective Gregory gave the same response that he gave earlier, adding that the U.S. Attorney would not even talk to him until he had provided information which could be verified. The detective further informed Sweet that he was not being arrested for murder and would not be questioned *377 about the AWIKWA charges. The detective again advised Sweet of his Miranda rights, and Sweet waived them. Sweet then told the detective that Terry Pleasant had approached him two days before the murder to kill the corrections officer to prevent him from testifying against Michael Page, a friend of Tony Hammond's. According to Sweet's statement, Hammond offered him $20,000 cash and a kilo of cocaine to do the job, but Sweet declined because there was too much heat in killing a corrections officer. The detective asked him why Hammond would make the request of him, and Sweet responded that he had "crushed" (killed) for Hammond before. Sweet then explained how Pleasant and Wright described how they killed Richardson and the weapons they used. He said that Terry Pleasant offered him some of the money afterwards because of their friendship.
The third contact occurred when Sweet was brought to meet with an Assistant United States Attorney who was prosecuting Terry Pleasant for the Richardson murder. Sweet provided the Assistant with the same information he had given to Detective Gregory, and Sweet testified before the Grand Jury, providing the same information previously given. Sweet was released on bond on November 18, 1991. Marcia Watson was killed on November 29, 1991. The next day, Detective Gregory contacted Sweet and requested his help in the case. Sweet said that he had seen a newspaper account about Watson's murder, and he was concerned that he would be arrested. The detective assured him that he would not be, and Sweet met with him. The detective did not advise Sweet of his rights at this time. Sweet told the detective that Tony Hammond and Chester Wright killed Watson to prevent her from talking to the police about the Richardson murder. On December 18, 1991, Sweet was arrested for the Watson murder. On January 8, 1992, the U.S. Attorney's office requested him to take a polygraph exam in connection with the Richardson murder to clear himself. Although Sweet originally agreed to take the exam on January 29, 1992, he later refused to do so.
Sweet argues that once counsel was appointed for him, the government should have ceased communications with him unless his counsel was present. Although acknowledging that police are not barred from interrogating represented defendants in unrelated subsequently charged offenses, he contends that the police could not do so here without violating his Sixth Amendment right because: (1) his objective in providing the information was to secure dismissal of offenses charged in the case in which he was represented by counsel; and (2) the charged Watson case and the uncharged Richardson murder were related at the time he was arrested initially. Specifically, he contends that by the time the police contacted him on November 4, 1991, he had already been identified by the Watsons as the person who shot them, the police had information from Eric Pleasant that he was one of three assailants in the Richardson murder, and bullet and shell casings from the AWIKWA and the Richardson murder matched. The government argues that the police did not interrogate Sweet about the facts in the AWIKWA case and that it did not suspect him in the Richardson case at the time the statements were obtained. The record supports the government's position.
Sweet concedes that the Sixth Amendment right to counsel is offense specific and therefore "cannot be considered to be an invocation of the Fifth Amendment right to counsel for all future prosecutions." See In re A.L.M., 631 A.2d 894, 899-900 (D.C.1993) (citing McNeil v. Wisconsin, 501 U.S. 171, 177-78, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)). The Sixth Amendment right provides that "`in all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.'" McNeil, 501 U.S. at 175, 111 S.Ct. 2204. Thus, "[i]t can not be invoked for all future prosecutions, *378 for it does not attach until a prosecution is commenced," that is "`at or after the initiation of adversary judicial criminal proceedingswhether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" Id. (quoting United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984)) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) (plurality opinion)). Thus, the police can initiate discussion with the defendant about crimes unrelated to the one for which he is in custody. See A.L.M., 631 A.2d at 897 (citations omitted). That is what occurred here. Sweet's right to counsel had attached in the AWIKWA case involving Watson, but no prosecution had been initiated against him in the Richardson case.
However, Sweet argues that his efforts to obtain a deal in the AWIKWA case in exchange for providing information related to the Richardson murder creates an exception to the "offense-specific" requirement. In A.L.M., we recognized that there may be circumstances where the offense of arrest and an uncharged offense may be so interrelated as to preclude interrogation on the uncharged offense. 631 A.2d at 900; see also United States v. Martinez, 972 F.2d 1100 (9th Cir.1992) (exception exists where the pending charge is so inextricably intertwined with the crime under investigation that the right to counsel in the former cannot be isolated from the latter); United States v. Mitcheltree, 940 F.2d 1329, 1341 (10th Cir. 1991) (recognizing the exception for a planned and impermissible interference with the right to counsel). We are not persuaded on this record that the factors warranting an exception are present. The record does not show that there was any known relationship between the assault on Marcia Watson and the Richardson murder at the time that the police questioned Sweet. Rather, it appears that the police did not learn of Sweet's involvement in the Richardson crime until after he had testified before the grand jury. There were apparently unrelated victims, who met their fates in different locations. At the time, there was no reason for the government to know of Sweet's involvement in the Richardson murder, particularly while Sweet purported to be able to identify others actually responsible for the crimes. Nor is there evidence that the police engaged in improper conduct in order to circumvent his Sixth Amendment right to counsel.[11] Finally, the police and the prosecutor gave Sweet Miranda warnings, and he waived his right to counsel. On this record, there is no showing that the government violated Sweet's Fifth or Sixth Amendment right to counsel.
V.
Sweet argues that the trial court erred in denying him the opportunity to present certain hearsay statements which exculpated him and showed that someone else committed the offense. Sweet does not challenge on appeal the admissibility of Watson's statements elicited by the government. He contends that once the trial court allowed them in on the issues of identity, Sweet's motive and Marcia Watson's state of mind, it was error not to permit him to present the exculpatory statements she made to others in which she identified someone else as her attacker. Specifically, Sweet, contends that the court erred in declining to permit the testimony of Shanora Barnes to the effect that Watson told her that Terry Pleasant shot her. Sweet also complains that the trial court allowed testimony that Watson was afraid of him, but did not allow evidence that she had told her sister that she *379 was afraid of Tony Hammond and fearful because Terry Pleasant was snooping around the hospital after she was shot. The government objected to this evidence on hearsay grounds.
Watson's statements were admissible under various exceptions to the hearsay rule. In this jurisdiction, we have held that a defendant waives his confrontation rights to object to the hearsay statements of a witness when the preponderance of the evidence shows that he procured the witness' silence by murdering him or her. Devonshire v. United States, 691 A.2d 165, 168-69 (D.C.), cert. denied, 520 U.S. 1247, 117 S.Ct. 1859, 137 L.Ed.2d 1060 (1997) (citations omitted). In Devonshire we expressed agreement with the Fifth Circuit's position that:
[W]hen confrontation becomes impossible due to the actions of the very person who would assert the right, logic dictates that the right has been waived. The law simply cannot countenance a defendant deriving benefits from murdering the chief witness against him. To permit such a subversion of a criminal prosecution "would be contrary to public policy, common sense, and the underlying purpose of the confrontation clause," ... and make a mockery of the system of justice that the right was designed to protect.
691 A.2d at 168 (quoting United States v. Thevis, 665 F.2d 616, 630 (5th Cir.1982)). This rule which provides for the waiver of objection by the party who causes the witness' absence cannot logically "strip the government of its hearsay objections." United States v. Houlihan, 92 F.3d 1271 (1st Cir.1996). The waiver is based on the defendant's misconduct in procuring the witness' absence. Under those circumstances, the defendant cannot complain about the admission of the witness' hearsay statements. We agree with the First Circuit that "[i]t is only the party who wrongfully procures a witness' absence who waives the right to object to the adverse party's introduction of the witness' prior out-of-court statements." Id. at 1283 (citations omitted).
At trial, the government objected to the admission of Marcia Watson's statements to her sister, Shanora Barnes and Aishah Logan-El. Sweet did not argue at trial or on appeal that Watson's hearsay statements come within any exception to the hearsay rule. Therefore, we reject his argument on this issue.
VI.
We need address only briefly Sweet's remaining claims. He argues that statements of the severed co-defendants were improperly admitted into evidence. Although he concedes that the court made the requisite inquiry into the unavailability of the witnesses, he contends that the error occurred because the court failed to engage in any fact-intensive inquiry to determine whether the declarations were against penal interest.[12]See United States v. Hammond, 681 A.2d 1140 (D.C.1996). In Hammond, this court remanded the case to the trial court for a "fact-intensive inquiry" to "determine whether each of the statements, and each of the incriminating references to one or more third parties, was truly self-inculpatory as to the declarant" as required by Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 *380 L.Ed.2d 476 (1994). Id. at 1146. The government does not dispute that a Williamson inquiry is required,[13] and such an inquiry must be conducted at any retrial. The government contends that even assuming that the trial court failed to make an appropriate inquiry, the error was harmless beyond a reasonable doubt. See United States v. Lang, 904 F.2d 618 (11th Cir.), cert. denied, 498 U.S. 924, 111 S.Ct. 305, 112 L.Ed.2d 258 (1990). In light of our disposition of the case, we need not address the government's harmless error argument.[14]
For the foregoing reasons, we reverse and remand with instructions to vacate Sweet's convictions and for further proceedings consistent with this opinion.
Reversed and remanded.
SCHWELB, Associate Judge, concurring.
I concur in the judgment and, with the single caveat set forth below, I join the opinion of the court.
Over defense objection, the prosecutor was permitted to introduce into evidence testimony that Marcia Watson made statements to third parties tending to inculpate Sweet. The court sustained objections, however, to exculpatory testimony proffered by the defense to the effect that Ms. Watson identified Terry Pleasant, and not Bradley Sweet, as the shooter. As a result, the jury may have received the impression that Ms. Watson's version of events was consistently inculpatory of Sweet when, if the prospective defense witnesses were to be credited, the contrary would be true. Such an impression may be inaccurate and unfair.
Under these circumstances I do not believe that, on retrial, Sweet should be foreclosed from arguing for the admission of Ms. Watson's alleged exculpatory statements for the purpose of impeaching her inculpatory statements. I do not read the majority's opinion as precluding such a defense contention.
NOTES
[1] Sweet was charged in the indictment for Richardson's murder along with co-defendants, Navarro Hammond (Tony), Chester Wright (Man), Terrence Pleasant (Terry), and Michael Page. The co-defendants' motion to sever was granted by the trial court, and Sweet was tried separately.
[2] Since the Pleasants have the same last name, for convenience, they are referred to sometimes in this opinion by their first names.
[3] In explaining the evidence which the government sought to elicit about Hammond's solicitation of Sweet to murder Richardson, the prosecutor explained to the court that the government has no interest in bringing out any other murders that Bradley Sweet did except for the purpose of his own description of why they came to him and asked him to do the hit, because he had done this kind of thing before for them. And so he was the logical person that they would go to this time.
[4] At the time, Sweet was attempting to persuade the police to get the charges dropped related to the first shooting of Marcia Watson.
[5] See Toliver v. United States, 468 A.2d 958, 961 (D.C.1983).
[6] The trial court did not conduct an analysis of whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Even if the evidence is relevant as direct proof of the crime charged and not subject to the requirements of Drew, it must still overcome this hurdle. (William) Johnson, supra, 683 A.2d at 1101. The trial court is usually in a better position to make this assessment.
[7] Sweet was tried separately from his co-defendants in the consolidated case involving the murder of Ronald Richardson. There is no challenge under Super. Ct.Crim. R. 8(b), which governs joinder of defendants in a single indictment.
[8] The charges in this case might well qualify for joinder as crimes of the same or similar character. Offenses are considered to be of the same or similar character for purposes of joinder under the rule "where the counts in the indictment `allege the same general kinds of crimes.'" Roper v. United States, 564 A.2d 726, 729 (D.C.1989) (quoting Winestock v. United States, 429 A.2d 519, 524 (D.C.1981)). The crimes involved here are of the same general type. Unquestionably, the murder charges and related weapons offenses have common elements, which is one of the factors for consideration in determining the similar character of the crimes. See id. at 730. The offenses against both victims were motivated by a desire to silence them.
[9] We reject Sweet's argument that evidence that the victim, Watson, offered another or additional reason for Sweet attempting to kill her somehow eliminates the connection between the other evidence bearing upon the issue.
[10] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[11] The record discloses no support for Sweet's claim that the government misled him into believing that he was a witness, instead of a target in the Richardson murder, and therefore, his statements should be suppressed. In any event, the right to counsel does not attach simply because an individual is the focus of an investigation. See Whittlesey v. State, 340 Md. 30, 665 A.2d 223, 232 (1995).
[12] The statements which Sweet challenges on appeal are:
1) Michelle Watson's testimony that she asked Tony Hammond who really killed the corrections officer when she [gave] conflicting accounts of bragging between appellant and an individual named David Sledge: Tony told her it was appellant and Wright and that he knew appellant would get the job done . . .; 2) Chester Wright's statement to Michelle that he and appellant killed the officer as well as details of appellant's involvement...; 3) Eric Pleasant's testimony that Terry Pleasant confessed he was driving the van but others did it and 4) that Chester Wright told Eric Pleasant that Terry felt that because appellant and Wright killed the man, they better "take the beef" for it.
[Appellant's brief, pp. 46-47].
[13] The government contends that Sweet's trial counsel never requested the court to conduct a Williamson inquiry.
[14] We need not address Sweet's claims of merger, some of which the government concedes, since the issue can be addressed adequately, if necessary, after retrial. Sweet also argues that his conviction for assault with intent to kill Edgar Watson with intent to kill Marcia Watson must be reversed because the indictment alleged a theory of transferred intent for this offense, while the verdict form and the instructions permitted a finding of guilt on a different theory. We need not address this issue because any confusion between the indictment and the verdict form can be and should be avoided on retrial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922365/ | 756 A.2d 711 (2000)
In re Appointment of DISTRICT ATTORNEY.
Appeal of Board of Elections of Lackawanna County and County Commissioners of Lackawanna County.
Commonwealth Court of Pennsylvania.
Argued March 8, 2000.
Decided July 17, 2000.
As Amended July 20, 2000.
*712 Joseph A. O'Brien, Scranton, for appellants.
Brian J. Cali, Dunmore, for appellee, Lackawanna County Republican Party.
Bradley K. Moss, Philadelphia, for appellee, Andrew Jarbola.
Before DOYLE, President Judge, COLINS, J., McGINLEY, J., SMITH, J., PELLEGRINI, J., FLAHERTY, J., and LEADBETTER, J.
McGINLEY, Judge.
The Lackawanna County Commissioners (Commissioners) and the Lackawanna County Board of Elections (Board of Elections) seek review of the appointment of Andrew J. Jarbola, Esquire (Jarbola) as district attorney by the Court of Common Pleas of Lackawanna County (common pleas court) for the remainder of the term of the former district attorney, Michael J. Barrasse, Esquire (Barrasse), which expires on December 31, 2001.
On November 2, 1999, Barrasse, Lackawanna County's district attorney, was elected to the common pleas court. On January 3, 2000, Barrasse resigned as district attorney and assumed the office of Judge. In accordance with Section 206(b) of the Lackawanna County Home Rule Charter (Lackawanna Charter), the Lackawanna County Republican Party (Republican Party) submitted a list of three individuals to the common pleas court to fill *713 the vacancy in the office of district attorney. 335 Pa.Code § 1.2-206(b). On January 11, 2000, the Commissioners scheduled a special election for April 4, 2000[1] to fill the vacancy.
On January 18, 2000, the common pleas court appointed Jarbola as district attorney for the remainder of Barrasse's term, which expires on December 31, 2001. On January 18, 2000, the Republican Party requested an injunction and declaratory relief against the Commissioners and the Board of Elections. In particular, the Republican Party requested the common pleas court to enjoin the Board of Elections from holding a special election on April 4, 2000, and thereby avoid any violation of the Pennsylvania County Code[2] and the Pennsylvania Election Code.[3]
On January 25, 2000, the Commissioners and the Board of Elections appealed to the Commonwealth Court the January 18, 2000, appointment and challenged Jarbola's appointed term. The Commissioners and the Board of Elections received an expedited argument before the Court en banc. On February 14, 2000, the Commissioners and the Board of Elections rescheduled the special election for November 2, 2000,[4] during the general election.[5]
On appeal,[6] the Commissioners and the Board of Elections contend that the common pleas court lacked the authority to appoint Jarbola for the remainder of Barrasse's term,[7] pursuant to Section 1404 of the County Code (Section 1404), 16 P.S. § 1404.
Our analysis begins with the statutory framework set forth at Section 1404:
If any vacancy shall occur in the office of district attorney, either by death, resignation, removal from office or from the county, or otherwise, the judges of the court of common pleas shall supply such vacancy by the appointment of a competent person to fill the office during the balance of the unexpired term. (emphasis added).
16 P.S. § 1404. In addition, Section 602 of the Election Code mandates that county officers[8] be elected at municipal elections held in odd-numbered years. 25 P.S. § 2752.
These statutory provisions directly conflict with Sections 206(b) and (c) of the Lackawanna Charter which provide:
(b) If a vacancy occurs, the executive committee of the political party of the person elected to the office in question shall submit a list of three persons to the judges of the court and bank [sic] within five (5) days of the vacancy. The court shall appoint one of the three (3) persons recommended to temporarily fill the vacancy.
*714 (c) A special election according to the Laws of the Commonwealth of Pennsylvania shall be held at the next primary municipal or general election to permanently fill the vacancy.
335 Pa.Code § 1.2-206(b) and (c).[9]
The Commissioners and the Board of Elections contend that, despite the conflict, the Lackawanna Charter supersedes state law. The Commissioners and the Board of Elections assert that the General Assembly has not precluded a county from enacting a home rule charter at variance with state law.
However, the Pennsylvania Constitution is of paramount importance and must control. Pursuant to Article IX, Section 1 of the Pennsylvania Constitution, the general law pertaining to local government "shall be uniform as to all classes of local government regarding procedural matters." Article IX, Section 2 of the Pennsylvania Constitution provides that "[a] municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time."
The Home Rule Charter and Optional Plans Law, (HRC & OPL), 53 Pa.C.S. §§ 2901-3171, authorized counties to utilize home rule charters to establish a local government framework. Section 2962 of the HRC & OPL pertains to limitation of municipal powers. Specifically, a municipality is prohibited from exercising "powers contrary to, or in limitation or enlargement of, powers granted by statutes which are applicable in every part of this Commonwealth." 53 Pa.C.S. § 2962(c)(2). Additionally, uniform statutes "applicable in every part of this Commonwealth shall remain in effect and shall not be changed.... Statutes shall supersede any municipal ordinance ... on the same subject." 53 Pa.C.S. § 2962(e).
Our Pennsylvania Supreme Court has treated the removal of a city employee as a municipal matter controlled by the charter. In re Addison, 385 Pa. 48, 122 A.2d 272 (1956). The Court reasoned that the administration of Philadelphia's civil service had no bearing upon Pennsylvania residents outside of the Philadelphia area. In re Addison, 385 Pa. at 56, 122 A.2d at 275. On the other hand, a statute may negate a home rule charter when the conflict involves a matter of statewide magnitude, such as the regulation of firearms. Ortiz v. Commonwealth of Pennsylvania, 545 Pa. 279, 681 A.2d 152 (1996).
In the present controversy, the Republican Party argues that the district attorney represents the Commonwealth's interests in criminal cases, and there must be uniformity throughout Pennsylvania regarding guidelines on how vacancies are filled for this elected position.
Our Pennsylvania Supreme Court addressed a similar issue in Cali v. City of Philadelphia, 406 Pa. 290, 177 A.2d 824 (1962). Therein, Richardson Dilworth (Dilworth) was elected mayor of Philadelphia in November 1959. Dilworth's four-year term began on the first Monday of January 1960, and was scheduled to end on the first Monday of January 1964. Dilworth resigned on February 12, 1962. Pursuant to the Philadelphia Home Rule Charter (PHRC) a vacancy in a mayor's unexpired term was to be filled during the next municipal or general election. As a result, the city solicitor suggested that a primary election be held in 1962 to nominate a candidate for the vacancy. Anita Cali and James Burns sought to enjoin the City of Philadelphia from conducting the primary and the Court of Common Pleas of Philadelphia County agreed. The question for the Pennsylvania Supreme Court *715 was whether the PHRC or the Election Code[10] controlled.
Our Supreme Court reasoned that the home rule charter must not violate "the Constitution of the United States, or the Constitution of Pennsylvania, or the Enabling Act of 1949, or the Election Code...." Cali, 406 Pa. at 306, 177 A.2d at 832. Additionally, our Supreme Court stated:
It is unnecessary to decide whether the election of a Mayor of Philadelphia is of State-wide [sic] concern or purely a local matter which is of no concern to citizens of Pennsylvania at large. It will suffice to say that the Charter is subordinate to the Enabling Act, and if they conflict the Enabling Act takes precedence and prevails.
Id. at 312, 177 A.2d at 835.
Like in Cali, the County Code and the Election Code are of statewide importance. It is of no concern that the district attorney is a local county office which may or may not have powers of statewide impact.[11] The County Code and the Election Code take precedence over the Lackawanna Charter. We must conclude that the common pleas court had the authority to appoint Jarbola as district attorney for Barrasse's unexpired term.[12]
Accordingly, we affirm.
*716 ORDER
AND NOW, this 17th day of July, 2000, the order of the Court of Common Pleas of Lackawanna County in the above-captioned matter is affirmed.
LEADBETTER, Judge, concurring.
I concur in the result reached by the majority and its analysis of the merits in this case. I write separately because I believe that the administrative order entered by the court of common pleas may not be reviewed in our appellate jurisdiction. The order appealed here serves not to adjudicate questions of fact or issues of law, but instead directs the appointment of Andrew Jarbola to fill the vacancy in the office of district attorney. Since there were no adversary proceedings below, the legal issue which appellants seek to raise here cannot have been brought to the attention of the common pleas court, let alone addressed by it.
Even a cursory examination of the rules of appellate procedure reflects numerous provisions inconsistent with the concept of direct review of non-adjudicatory, administrative orders.[1] More fundamentally, the essence of appellate review is the examination of the record below in order to evaluate claims of error. Where there have been no proceedings of record below, no fact-finding and no opinion in support of the order, it will be impossible in most cases to undertake meaningful review. Indeed, as the majority notes at footnote 6, "This court's review is limited to a determination of whether the trial court committed legal error and whether the findings were supported by the evidence." This scope of review makes no sense whatever when we are asked to review an order confirming a discretionary appointment.[2]
Simply put, we are being asked to review the action of the court of common pleas not in the manner that appellate courts review trial court decisions, but in the manner that courts review the actions of parties before themby making a de novo determination whether the action violated some legal right of appellant. This exercise ordinarily involves both fact-finding and application of law to the facts. For this reason, I believe that challenges to administrative orders can properly be addressed only in proceedings under our original jurisdiction[3], in which the parties will be clearly defined and necessary factual determinations can be made.
That being said, however, we are presented here solely with an issue of law ripe for our disposition. All interested persons have appeared before this court. The case is highly time-sensitive, and of obvious public importance. I believe it is appropriate under these unique circumstances to treat this matter as though it had been filed as an action for declaratory judgment in our original jurisdiction. Accordingly, I would do so and would decide the question of law in accordance with the majority.
*717 PELLEGRINI, Judge, dissenting.
I respectfully dissent. I disagree with the majority that home rule charter communities are not free to change the method of filling a vacant elected office contained in a particular municipal or county code that governed the particular municipality or county before it adopted home rule. To so hold is at variance with Article IX of the Pennsylvania Constitution granting home rule to local governments as well as its implementing legislation, the Home Rule and Optional Plans Law (Home Rule Law).[1] Moreover, under the majority's rationale, most home rule charters will become illegal because most have provisions that are at odds with various provisions contained in the county or city code governing their affairs prior to adopting home rule including those that changed to a county executive-council form of government. Having said all that, though, the majority's outcome may, nonetheless, be correct depending on the type of charter Lackawanna County adopted.
In 1977, Lackawanna County, a county of the third class,[2] adopted a home rule charter pursuant to the provisions of the Home Rule Law. Section 206 of the Lackawanna County Home Rule Charter[3] dealt with the filling of vacancies for any elected office. This provision provided, among other things, that:
(a) The office of any elected officer shall become vacant upon death, resignation, removal, forfeiture, failure to assume such office after election thereto within forty-five (45) days after scheduled commencement of the term thereof or mental disability to perform the duties of the office.
(b) If a vacancy occurs, the executive committee of the political party of the person elected to the office in question shall submit to the judges of the court en banc within five (5) days of the vacancy. The court shall appoint one of the three (3) recommended to temporarily fill the vacancy.
(c) A special election according to the Laws of the Commonwealth of Pennsylvania shall be held at the next primary municipal or general election to permanently fill the vacancy.
On January 3, 2000, the Lackawanna County District Attorney, Michael J. Barrasse (Barrasse), resigned from his position to assume the office of judge of the court of common pleas. In accordance with its home rule charter, the Lackawanna County Republican Party submitted to the trial court three names of individuals to fill the vacancy. The Lackawanna County Commissioners (Commissioners) scheduled a special election for April 4, 2000, to fill the vacancy. On January 18, 2000, the trial court appointed Andrew J. Jarbola (Jarbola) to fill the vacancy and act as district attorney for the remainder of Barrasse's term which expires on December 31, 2001. The Commissioners and the Board of Elections appealed Jarbola's appointment by the court of common pleas as well as challenged the appointment for the entire unexpired term.
The majority finds that the trial court acted properly in appointing Jarbola as district attorney for the remainder of the unexpired term because Section 602 of the Election Code, 25 P.S. § 2752,[4] as well as *718 Section 1404 of the County Code, 16 P.S. § 1404,[5] precludes Lackawanna County voters from adopting a method of replacing municipal officers from appointive to elective. Because Section 1404 of the County Code requires the common pleas court to appoint a district attorney for the entire unexpired term, the majority affirms the trial court. I disagree with the majority because I do not believe that all home rule charter communities are not necessarily bound by their underlying municipal or county codes and are not bound to hold elections to fill vacancies in municipal election years.
I.
A.
While at first blush it appears to be controlling, I believe the majority's reliance on Cali v. City of Philadelphia, 406 Pa. 290, 177 A.2d 824 (1962), for its holding that a home rule county charter cannot change the method of filling a vacancy in the office of district attorney, is misplaced. In Cali, the office of mayor of Philadelphia became vacant and the question was when the election was to be held to fill the vacancyin the next general or municipal election, whichever came first, as provided in the then-recently adopted Philadelphia Home Rule Charter or only at the next municipal election as provided for in Section 602 of the Election Code, one of the provisions at issue here. Finding that Section 18 of the First Class City Home Rule Act, 53 P.S. § 13133,[6] prohibits a provision in a charter that is at variance with statutes "applicable in every part of the Commonwealth," and because Section 602 of the Election Code was applicable in every part of the Commonwealth and provided that municipal elections be held in odd years, our Supreme Court determined that all elections to fill vacancies could not take place in even-numbered years.[7]
*719 However, the Supreme Court's holding in Cali is not controlling because it involved a different home rule enabling act and a different home rule constitutional provision. The Philadelphia Home Rule Charter was enacted pursuant to the now repealed 1922 Amendment to Article XV, Section 1 of the Constitution of 1874,[8] as well as the specific limitations of powers contained in the First Class City Home Rule Act that, while similar to the ones here, are different in material aspects.
A new start in home rule in Pennsylvania occurred as a result of the Constitutional Convention of 1968. It proposed, and the voters adopted, Article 9, Section 2 of the Pennsylvania Constitution.[9] Unlike the 1922 Amendment which only gave home rule to cities at the discretion of the General Assembly, Article 9, Section 2 mandated that home rule be implemented in Pennsylvania for all local government. The impetus for this provision was that the manner in which cities were governed at the local level should be determined at the local level, albeit with some restrictions. As required by this provision of the Pennsylvania Constitution, the General Assembly implemented home rule by the enactment of the Home Rule Law, a completely different Act than the First Class Home Rule Act at issue in Cali. Unlike Section 13 of the First Class Home Rule City Act, the limitation of powers section in the Home Rule Law has a provision specifically dealing with what local home rule communities are proscribed from doing in the area of elections. That provision provides that home rule communities have no power or authority regarding "[t]he registration of electors and the conduct of elections." 53 Pa.C.S. § 2962(c)(5).
I would interpret this provision to mean that home rule communities cannot deal only with how the election is "conducted."[10] Implicitly, this provision recognizes *720 that nothing prohibits home rule communities from scheduling elections for vacancies as they see fit. This interpretation is confirmed by Article IX, § 4 of the Pennsylvania Constitution that provides home rule counties can fill vacancies in a manner different than previously provided. See I. B., infra. To hold otherwise would mean that local home rule communities could not go from an appointive system of filling those vacancies to an elected system because an office would then be vacant for years, a result at variance with the whole idea of home ruleto let individual communities decide on how they are going to be governed.
B.
Having more serious ramifications, though, is the majority's reliance on Section 1404 of the County Code as prohibiting an alternative method of electing to fill a vacancy rather than having judges make the appointment. When the General Assembly enacted Section 2961 of the Home Rule Law, 53 Pa.C.S. § 2961, it gave home rule charter communities the broadest powers and specifically required the presumption that those communities had the power to undertake the action they desired to take, and unless it was specifically denied, the action should be upheld. 53 Pa. C.S. § 2961 provides:
A municipality which has adopted a home rule charter may exercise any powers and perform any function not denied by the Constitution of Pennsylvania, by statute or by its home rule charter. All grants of municipal power to municipalities governed by a home rule charter under this subchapter, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the municipality.[11] (Emphasis added).
See also Fraternal Order of Police, Fort Pitt Lodge No. 1 v. City of Pittsburgh, 165 Pa.Cmwlth. 83, 644 A.2d 246 (1994), petition for allowance of appeal denied, 544 Pa. 637, 675 A.2d 1253 (1996).
However, while the General Assembly wanted the powers it granted in the Home Rule Law to be liberally construed in favor of the municipality, in Section 2962 of the Home Rule Law, 53 Pa.C.S. § 2962, it sets forth the "powers denied" to local governments when enacting their home rule charters or implementing ordinances. The "powers denied" at issue here are those contained in subsection (c)(2) that prohibit a home rule community from exercising "powers contrary to or in limitation ... of powers granted by statutes which are applicable in every part of this Commonwealth," and in subsection (e) which provides that "statutes that are uniform and applicable in every part of this Commonwealth shall remain in effect and shall not be changed ... Statutes shall supersede any municipal ordinance ... on the same subject." 53 Pa.C.S. § 2962(e). (Emphasis added).
The majority appears to interpret those provisions to mean that a provision contained *721 in a county or city code that was applicable to the particular class of county (or, for that matter, a particular class of city), e.g., county of the second class, that governed the operation of that county prior to the adoption of home rule, is a matter of "statewide importance." Because a law affecting a class or classes of counties is of "statewide importance," it holds that any home rule charter provision at variance with one of the applicable codes is illegal under Section 2962 of the Home Rule Law. Accordingly, it holds that because Section 1404 of the County Code, 16 P.S. § 1404, provides that the common pleas court is to fill the vacancy for the entire unexpired term, Section 206 of the Lackawanna Home Rule Charter must be struck down because it is at variance with the County Code.
While what happens in any county is of "statewide importance," because all of our counties and municipalities are joined for the Commonwealth, the Home Rule Law provides in no uncertain terms for something very different: as long as a law is not applicable everywhere, nothing prohibits a home rule charter from varying the terms of that law. In this case, while named the County Code, it is not applicable in "every part of the Commonwealth." Section 102 of the County Code, 16 P.S. § 102, specifies that the County Code, including Section 1404, does not apply to counties of the first or second class. In effect, it is a code for counties of the second class A through eighth class. Because Section 1404 is not applicable "in every part of the Commonwealth," to change the method of filling the county vacancy in the Lackawanna County Home Rule Charter from a board of judges to an election is permissible, and Section 206 of the Lackawanna Home Rule Charter does not violate Section 2962 of the Home Rule Law. Fraternal Order of Police, Fort Pitt Lodge No. 1.[12]
Not only does the Home Rule Law allow the filling of the vacancy in the office of district attorney by election, so does Article IX, § 4 of the Pennsylvania Constitution entitled "County government" which provides:
County officers shall consist of commissioners, controllers or auditors, district attorneys, public defenders, treasurers, sheriffs, registers of wills, recorders of deeds, prothonotaries, clerks of the courts, and such others as may from time to time be provided by law.
County officers, except for public defenders who shall be appointed as shall be provided by law, shall be elected at the municipal elections and shall hold their offices for the term of four years, beginning on the first Monday of January next after their election, and until their successors shall be duly qualified; all vacancies shall be filled in such a manner as may be provided by law.
County officers shall be paid only by salary as provided by law for services performed for the county or any other governmental unit. Fees incidental to the conduct of any county office shall be payable directly to the county or the Commonwealth, or as otherwise provided by law.
Three county commissioners shall be elected in each county. In the election of these officers each qualified elector shall vote for no more than two persons, *722 and the three persons receiving the highest number of votes shall be elected. Provisions for county government in this section shall apply to every county except a county which has adopted a home rule charter or an optional form of government. One of the optional forms of county government provided by law shall include the provisions of this section. (Emphasis added).
As can be seen, this Article provides that all vacancies shall be filled in such a manner as may be provided by law, but then goes on to provide that this and other provisions of the Constitution shall not apply to counties which have adopted home rule charters or optional plans. Because the Constitution makes the filling of vacancies "in a matter provided by law" such as Section 1404 of the County Code not applicable to home rule counties, it is obvious that the Constitution recognized that if it was not a "power denied" by the General Assembly in the Home Rule Law, home rule counties could provide for the manner in which a county office would be filled.
The net effect of the majority's holding is that most home rule county charters would, in some way, be infirm because most have provisions that are at variance with the County Code. For example, several counties, including Erie, Lehigh and Northampton, have adopted a council-mayor form of government.[13] Yet under the majority's rationale, this would be illegal because Section 401 of the County Code, 16 P.S. § 401, provides that in each county, there shall be three county commissioners, as well as what is known as other row officers, elected by the qualified electors of the county. While this is but one example, most, if not all, home rule county or city charters have similar examples because one of the main reasons that cities and counties adopted home rule charters is to change their form of government and their method of operation set forth in those codes that previously governed them.
I would hold that nothing prohibits a home rule charter from containing a provision changing the method for filling an unexpired term different from that contained in Section 1404 of the County Code unless it was an optional plan county. Unfortunately, though, we do not know if Lackawanna is an optional plan county.
II.
Prior to enacting a home rule charter,[14] a municipality or county has to present to the voters whether a Home Rule Government Study Commission should be formed, and if the electorate desires to do so, then to have the voters elect the members of that Commissionin effect, a local "constitutional" convention. The purpose of the Commission is to study and recommend to the voters whether the form of local government should remain the same or whether another form should be adopted. Under Section 2923 of the Home Rule Law, 53 Pa.C.S. § 2923, the Commission may recommend four options, but only two are relevant here:[15]
1) That a referendum shall be held to submit to the electors the question of adopting one of the optional plans of government authorized by this subpart to be specified by the commission.
*723 2) That a referendum shall be held to submit to the electors the question of adopting a home rule charter as prepared by the commission and as authorized by this subpart.
All of the parties and the common pleas court presented this case to this Court as if it did not matter which type of home rule charter was adopted, and that is the way the majority decided the case. However, whether the Government Study Commission recommended to the voters to adopt a home rule charter prepared by them or an optional plan may be controlling as to how the district attorney vacancy is to be filled and for what term.
The analysis set forth in Part I assumed that the Lackawanna County electorate adopted a home rule charter prepared by the Commission and recommended for adoption pursuant to Section 2963(2) of the Home Rule Law, 53 Pa.C.S. § 2963(2).[16] If, instead, Lackawanna County adopted, pursuant to Section 2923(1) of the Home Rule Law, 53 Pa.C.S. § 2923(1), the only county optional plan and the one required to be set forth as one of the optional plans by Article IX, Section 9 of the Pennsylvania Constitution, then I would agree that the trial court had the authority to appoint a district attorney to fill a vacancy, but for reasons other than those given by the majority.
The optional county plan is contained in subchapter F of chapter 30 of the Home Rule Law. Section 3091, 53 Pa.C.S. § 3091, provides that "the form of government provided in this subpart shall be known as the `Optional County Plan' and shall, ... govern any county the voters of which have adopted this plan pursuant to this subpart." After enumerating the county officers, Section 3092(b), 53 Pa.C.S. § 3092(b), goes on to provide that:
County officers, except for public defenders, who shall be appointed as provided by law, shall be elected at the municipal election and shall hold their offices for the term of four years, beginning on the first Monday of January next after their election, and until their successors are duly qualified. Vacancies shall be filled in the manner provided by law. (Emphasis added).
Under the optional home rule charter, the vacancies for county officers, including the district attorney, are to be filled "in the manner provided by law." Under Section 1404 of the County Code, the manner as provided by law is that the common pleas court is to fill the vacancy for the unexpired term. The only argument that would militate against this interpretation is that the "manner as provided by law" is construed to be a home rule charter provision such as contained in Section 206 of the Lackawanna County Home Rule Charter. However, Section 2971 of the Home Rule Law, 53 Pa.C.S. § 2971, provides that:
Upon the adoption by the electors of any of the optional plans of government as set forth in this subpart, the municipality shall thereafter be governed by the plan adopted and by the provisions of general law applicable to that class or classes of municipality except as otherwise provided in this subpart. Until the municipality adopts another form of government, the plan adopted and the provisions of general law applicable to that class or classes of municipality shall be law. All statutes affecting the organization, government and powers of the municipality which are not inconsistent or in conflict with this subpart shall remain in full force until modified or repealed.
Because the general law applicable to classes of counties remains in effect, then *724 pursuant to the County Code, a vacancy for the position of district attorney is to be filled for the remainder of the term by an appointment by the court of common pleas.
Nothing in the Lackawanna County Home Rule Charter sets forth whether Lackawanna County adopted an optional plan or home rule charter prepared by a Government Study Commission. At first glance, the home rule charter appears to be one that was drafted by the Charter Commission,[17] but when asked at oral argument, one of the parties stated that Lackawanna County was an optional plan county. Because it is not certain if Lackawanna County has adopted an optional plan or changed its "form of government" since its charter was initially adopted, I would vacate the trial court's order and, because of the participation of all the judges of the Court of Common Pleas of Lackawanna County in this matter, retain jurisdiction and hold a hearing to make such a determination.
Judge FLAHERTY joins in this dissenting opinion.
NOTES
[1] The date of the special election coincided with the date of the primary election already scheduled for April 4, 2000.
[2] Act of August 9, 1955, P.L. 323, as amended, 16 P.S. §§ 101 to 2902.
[3] Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600 to 3591.
[4] The Commissioners and the Board of Elections delayed the special election because the April 4, 2000 date was less than a month from the March 8, 2000 en banc argument before the Commonwealth Court.
[5] Lastly, the Commonwealth Court granted the Lackawanna County Democratic Party's application for leave to intervene. We note that the intervenor filed a brief in support of the appeal by the Board of Elections and argued that the home rule charter supersedes the Pennsylvania County Code, that a special election will not violate the Pennsylvania Constitution, and that the special election provisions are not prohibited by the Pennsylvania Election Code.
[6] This Court's review is limited to a determination of whether the trial court committed legal error and whether the findings were supported by the evidence. In re McElhatton, 729 A.2d 163 (Pa.Cmwlth.1999).
[7] This appeal challenges only the term for which Jarbola was appointed.
[8] Article IX, Section 4 of the Pennsylvania Constitution lists a district attorney as a county officer.
[9] Although the Lackawanna Charter states that a vacancy is filled by the submission of three names, neither the County Code nor the Election Code promulgates any such procedure. Because this issue is not before us, we need not address it.
[10] The Election Code provided that city officers must be elected at the municipal election in odd-numbered years.
[11] We note that district attorneys are limited to geographical areas despite their performance of sovereign duties for state government. Pennsylvania Gamefowl Breeders Association v. Commonwealth of Pennsylvania, 122 Pa.Cmwlth. 52, 551 A.2d 361, 363 (1988). It is well-established that district attorneys are considered county officers for jurisdictional purposes and not Commonwealth officers. Id. (citing Schroeck v. Pennsylvania State Police, 26 Pa.Cmwlth. 41, 362 A.2d 486, 490 (1976)). Thus, this Court does not have original jurisdiction with respect to civil actions against district attorneys.
[12] The dissent raises the following issues: (1) Whether the prohibitions in Section 2962 of the HRC & OPL, limiting the power of the home rule community, are inapplicable. (2) Whether the type of home rule charter adopted was unspecified by the parties or the common pleas court. As to the first issue, because the County Code does not apply to counties of the first class or second class under Section 102 of the County Code, 16 P.S. § 102, the dissent asserts that Section 1404 is inapplicable throughout the Commonwealth. However, with respect to Pennsylvania's first class county, all Philadelphia county officers were abolished by Article IX, Section 13(a) of the Pennsylvania Constitution. Moreover, the Second Class County Code, Act of July 28, 1953, P.L. 723, as amended, 16 P.S. § 4404, reflects identical language to that of Section 1404. The dissent argues a distinction without a difference. We must reiterate and emphasize that the County Code, although not applicable in every part of the Commonwealth, applies specifically to Lackawanna County, a fourth class county. See 114 The Pennsylvania Manual § 6-12 (1999) and Section 210(4) of the County Code. When a vacancy occurs there must be uniformity throughout the Commonwealth in filling the vacancy. Section 1404 provides that uniformity and mandates that a vacancy in the district attorney's office is to be filled for the unexpired term by the judges of the court of common pleas. With respect to the dissent's generalization that the majority jeopardizes other home rule charters, this decision simply recognizes that statutes of statewide concern prevail if there is a conflict, and at the same time, recognizes a municipality's authority to conduct local affairs. This Court's decision in no way prevents a local government from adopting and implementing a home rule charter, but where a conflict exists between powers granted, a local government, under an adopted form of home rule, is restrained from violating the Constitution, the Enabling Act or the Election Code. As to the second issue, the dissent recognizes two types of home rule charters, i.e. one suggested by the government study commission or an optional prepackaged form of home rule charter. If Lackawanna County adopted the latter plan, then the dissent agrees that the common pleas court was authorized to fill the vacancy in the district attorney's office, but for different reasons than the majority. It is noteworthy that this issue was not raised previously. Issues not preserved below "are waived and cannot be raised for the first time on appeal." Pa. R.A.P. No. 302(a). Assuming arguendo, that this issue regarding the type of charter was properly raised, the argument is meritless because, whether the charter is "hand-crafted" or an optional plan, its provisions may not supersede constitutional provisions or statutes of statewide magnitude.
[1] For instance, Pa. R.A.P.1921 contemplates the composition of the record on appeal from a lower court and states that "[t]he original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases." Rule 1925 requires "the judge who entered the order appealed from ... shall forthwith file ... an opinion, of the reasons for the order." Pa. R.A.P.1925. Rule 908 provides that parties in the trial court are the parties on appeal. Finally, Rule 302(a) mandates that issues not raised in the trial court may not be raised for the first time on appeal.
[2] Moreover, where there have been no parties below, the appellants will necessarily have been non-parties, and unless some other non-party moves to intervene, there will be no appellees, or else the appellees will be whomever the appellant chooses to serve with his notice. This will frequently pose significant problems in ascertaining both that those who appear have the requisite standing and also that all-real parties in interest are represented before the appellate court.
[3] See 42 Pa.C.S. § 761. Where appropriate, an original action could also be filed in the Pennsylvania Supreme Court pursuant to 42 Pa.C.S. § 721, or pursuant to that court's King's Bench powers.
[1] 53 Pa.C.S. §§ 2901-3171.
[2] The 1999 Pennsylvania Manual denominates Lackawanna County as a county of the third class.
[3] 335 Pa.Code § 1.2-206.
[4] Act of June 3, 1937, P.L. 1333, 25 P.S. § 2752. Section 602 of the Election Code provides:
The municipal election shall be held biennially on the Tuesday next following the first Monday of November in each odd-numbered year. All judges of courts of record of the various judicial districts and counties, and all counties, city, borough, township, ward, school district, poor district and election officers shall be elected at the municipal election. Judges may be elected at the municipal election.
[5] Act of August 9, 1955, P.L. 323, 16 P.S. § 1404. That section provides:
If any vacancy shall occur in the office of district attorney, either by death, resignation, removal from office or from the county, or otherwise, the judges of the court of common pleas shall supply such vacancy by the appointment of a competent person to fill the office during the balance of the unexpired term.
[6] Section 18 of the First Class City Home Rule Act provides:
No city shall exercise any powers or authority beyond the city limits except such as are conferred by an act of the General Assembly, and no city shall engage in any proprietary or private business except as authorized by the General Assembly. Notwithstanding the grant of powers contained in this act, no city shall exercise powers contrary to, or in limitation or enlargement of, powers granted by acts of the General Assembly which are
(a) Applicable to a class or classes of cities on the following subjects:
(1) Providing for the filing and collection of municipal and tax claims or liens and for the sale of real or personal property in satisfaction thereof;
(2) Providing for the exercise of the power of eminent domain and the procedure for the condemnation of property for public purposes;
(3) Providing for the assessment of damages and benefits for property taken, injured or destroyed;
(4) Providing methods for the incurring or increasing of indebtedness;
(5) Providing for the annexation or exclusion or detachment of territory;
(6) Regulating public schools;
(7) Providing for the personal registration of electors;
(8) Limiting rates and fixing subjects of taxation;
(9) Providing for the assessment of real or personal property and persons for taxation purposes.
(b) Applicable in every part of the Commonwealth.
(c) Applicable to all the cities of the Commonwealth, including, but not limited to, those acts providing for the disability compensation of police officers and firefighters. 53 P.S. § 13133.
[7] There was also a challenge in Cali that Article VIII, Section 3, now renumbered as Article VII, Section 3, of the Pennsylvania Constitution precluded the filing of a vacancy at a non-municipal election. This provision in relevant part provided:
All elections for judges of the courts for the several judicial districts, and for county, city, ward, borough, and township officers, for regular terms of service, shall be held on the municipal election day; namely, the Tuesday next following the first Monday of November in each odd-numbered year, but the General Assembly may by law fix a different day, two-thirds of all the members of each House consenting thereto: Provided, That such elections shall be held in an odd-numbered year
Section 602 of the Election Code appears to merely implement this provision of the Constitution; yet our Supreme Court in Cali held that this constitutional requirement that all city officers must be elected for regular terms of service at municipal election in an odd-numbered year only governed for regular terms of service and did not cover special elections to fill a vacancy.
[8] The 1922 Amendment to Article XV, Section 1 of the Constitution of 1874 provided:
Cities or cities of any particular class may be given the right and power to adopt their local charters and to exercise the powers and authorities of local self-governments, subject however, to such restrictions, limitations and regulations as may be imposed by the legislation.
[9] Home rule in Philadelphia was granted pursuant to a 1922 Amendment to Article 9, Section 2 of the Pennsylvania Constitution provides:
Municipalities shall have the right and power to frame and adopt home rule charters. Adoption, amendment or repeal of a home rule charter shall be by referendum. The General Assembly shall provide the procedure by which a home rule charter may be framed and its adoption, amendment or repeal presented to the electors. If the General Assembly does not so provide, a home rule charter or a procedure for framing and presenting a home rule charter may be presented to the electors by initiative or by the governing body of the municipality. A municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time.
[10] Article VII, Section 6 of the Pennsylvania Constitution entitled "Election and registration laws" deals with the conduct of elections and provides:
All laws regulating the holding of elections by the citizens, or for the registration of electors, shall be uniform throughout the State, except that laws regulating and requiring the registration of electors may be enacted to apply to cities only: Provided, That such laws be uniform for cities of the same class, and except further, that the General Assembly shall, by general law, permit the use of voting machines, or other mechanical devices for registering or recording and computing the vote, at all elections or primaries, in any county, city, borough, incorporated town or township of the Commonwealth, at the option of the electors of such county, city, borough, incorporated town or township, without being obliged to require the use of such voting machines or mechanical devices in any other county, city, borough, incorporated town or township, under such regulations with reference thereto as the General Assembly may from time to time prescribe. The General Assembly may, from time to time, prescribe the number and duties of election officers in any political subdivision of the Commonwealth in which voting machines or other mechanical devices authorized by this section may be used.
Presumably, this prohibition in the Home Rule and Optional Plans Law did so to make sure that home rule cites did not change election laws applicable to only their class of cities.
[11] The provisions for county home rule seem to have been "tacked-on" to the Home Rule Law, and where the term municipality is used in a general sense, that term generally applies also to counties.
[12] In Delaware County v. Middletown Township, 511 Pa. 66, 511 A.2d 811, 813 (1986), our Supreme Court held that "the adoption of a home rule charter acts to remove a municipality from the operation of the code provisions enumerating the powers of that particular class of municipality. Whereas, previously, the law held that municipalities were merely agencies instituted by the sovereign and exercising only those powers specifically granted to them, see, e.g., Philadelphia v. Fox, 64 Pa. 169 (1870), under the present Constitution and implementing legislation, `[a] municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time.' Pa. Const. Art. 9, § 2. See also 53 P.S. § [2952]."
[13] See 325 Pa.Code, § 1-3.2 (Erie County); 339 Pa.Code, § 1.2-201 (Lehigh County); and 348 Pa.Code, § 1.3-301 (Northampton County).
[14] Under Section 2902, 53 Pa.C.S. § 2902, "home rule charter" is defined as:
A written document defining the powers, structure, privileges, rights and duties of the municipal government and limitations thereon. The charter shall also provide for the composition and election of the governing body, which in all cases shall be chosen by popular elections.
[15] Under this provision, the Commission can also recommend that the form of government shall remain unchanged or recommend other action as it deems advisable consistent with its functions as set forth in the Act.
[16] The majority contends that this "issue" was not raised and thus waived. With due respect, this is not an "issue" but a fact needed to answer the issue raised by the parties. However, if the type of charter is an "issue," and because it is an "issue" not raised and cannot be reached, then the appointment order should be vacated because all the parties referenced provisions of the Home Rule Law dealing with "handcrafted charters." Because we are "adrift at sea" without this information, it is best to vacate and have the trial court make that determination.
[17] Not only does the Lackawanna County Home Rule Charter vary the method of filling vacancies but, among other things, the charter consolidates certain duties of the row offices required by Article IX, Section 4 of the Pennsylvania Constitution, as well as the optional plan contained in the Home Rule Law. In noting that 70 jurisdictions have adopted home rule charters including six counties, the 1999 Pennsylvania Manual lists Lackawanna County as having a home rule charter and not an optional plan. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922371/ | 756 A.2d 439 (2000)
TECHNICAL LAND, INC., Appellant,
v.
FIREMEN'S INSURANCE COMPANY OF WASHINGTON, D.C., Appellee.
No. 97-CV-1518.
District of Columbia Court of Appeals.
Argued April 22, 1999.
Decided July 27, 2000.
*440 Christopher Conte, with whom Stanley L. Lipshultz, Silver Spring, MD, was on the brief, for appellant.
Craig D. Roswell, Baltimore, MD, for appellee.
Before TERRY and RUIZ, Associate Judges, and KERN, Senior Judge.
RUIZ, Associate Judge:
This appeal raises a novel issue concerning the type of interestother than one based on legal or equitable title that is insurable. We hold that an insurable interest in property can be shown when a party stands to benefit economically from a unique property or to suffer loss from its destruction, and that Technical Land should have the opportunity to make the necessary showing.
I.
The relationships among the various entities in this appeal are somewhat involved and complicated by legal and bankruptcy procedures, so we describe them in some detail. Technical Land, Inc., the plaintiff-appellant, is a District of Columbia corporation in which William Moore and Judith Deitz Moore are the sole stockholders. Techniarts Video International, Inc. (TVII), also owned and operated by the Moores, had a Use Agreement which allowed it to occupy the property at 1631 Kalorama Road. Techniarts Engineering (Techniarts) is a partnership owned by the Moores which owned equipment that was damaged by water when pipes burst at the building on 1631 Kalorama Road. The subject of this appeal is Technical Land's insurance claim concerning damage to the *441 building itself, not to Techniarts' equipment.[1]
Techniarts had a business relationship with 1631 Kalorama Associates, the owners of the property at 1631 Kalorama Road, for the purpose of building and developing a motion picture studio on the premises.[2] On December 11, 1991, Techniarts filed suit against Kalorama Associates and obtained a judgment in the amount of $131,055.13. See Techniarts Video, Inc. v. 1631 Kalorama Assocs., 572 A.2d 1051 (D.C. 1990). The Moores, on behalf of Techniarts, executed on the judgment and received a Marshal's Deed for the property at 1631 Kalorama Road on September 30, 1992. On December 10, 1992, the Moores obtained a Superior Court order substituting Technical Land as the owner of the property.[3] The revised Marshal's Deed to Technical Land was dated January 7, 1993.
On April 1, 1993, a creditor of 1631 Kalorama Road Associates filed an action in the Superior Court against, inter alia, Technical Land, questioning the validity of the January 7, 1993 Marshal's Deed. After Technical Land filed for bankruptcy, the creditor's action was transferred to the United States Bankruptcy Court for the District of Columbia.[4] On February 25, 1994, while the litigation contesting the validity of the Marshal's Deed to Technical Land was pending, TVII negotiated a Use Agreement with the Trustee for the Bankruptcy Estate of 1631 Kalorama Associates.
The Use Agreement, approved by the Bankruptcy Court on March 16, 1994, recognized that the right to ownership and possession of the premises was in dispute, but wished "to maximize the value of the property." Until the ownership dispute was resolved, the premise was to be "operated as a motion picture and television production facility." It gave the Trustee exclusive control over the property, including authority to sell the building, but gave TVII the right to use all of the space in the building. In exchange, TVII was responsible for maintenance, payment of utilities and operating expenses. With respect to insurance, the Use Agreement provided:
The Trustee has in place liability and property and casualty insurance at this time. TVII shall in addition maintain its own liability insurance with the estate as loss payee in an amount of not less than $1,000,000 and shall be responsible for insurance of all its own equipment.
The Parties will cooperate in attempting to obtain building insurance that is less expensive in light of the occupancy status of the building.
In June 1994, the Bankruptcy Court declared the Marshal's Deed to Technical Land invalid,[5] but Technical Land, with *442 the permission of TVII under the Use Agreement, continued to occupy the building until August 1995, when Technical Land vacated the premises upon expiration of the Use Agreement between the Trustee and TVII.
On December 10, 1993, the same day Technical Land had obtained the Superior Court order assigning the Marshal's Deed from TVII to Technical Land, and some six months before the deed was invalidated by the Bankruptcy Court, Technical Land acquired property insurance on the property at 1631 Kalorama Road from appellee, Firemen's Insurance, pursuant to an order of the Bankruptcy Court.[6] The policy covered property damage up to $335,000 per incident, less the amount subject to the co-insurance provision of the policy. It did not cover damage to equipment or loss of business income. Technical Land was the only insured named in the policy.
Technical Land moved into 1631 Kalorama Road on February 28, 1994,[7] and immediately discovered significant water damage.[8] The Moores promptly contacted Firemen's Insurance to file a claim. On March 6, 1994, William Moore met with Gerald Kaplan, the adjuster assigned to Technical Land's damage claim, at the property. Following this meeting, the Moores conducted emergency repairs to the building at a cost of $125,515.94, which they borrowed from their Techniarts partnership.[9] A second loss occurred on June 20, 1994, when a water valve in the heating and air conditioning system burst, damaging the areas that had just been repaired. After receiving notice of the second loss, Firemen's Insurance canceled the policy on July 5, 1994, and returned the premium to Technical Land.
Technical Land's claim for the first loss was denied on June 28, 1994. The letter of denial stated that Technical Land lacked an insurable interest in the property, and that Moore had failed to mention that the prior owner and Trustee for the Bankruptcy Estate of 1631 Kalorama Associates had a policy with Aetna Insurance providing coverage for the building.
Technical Land sued Firemen's Insurance for breach of the contract of insurance and failure to timely pay its claims after Firemen's Insurance refused to indemnify Technical Land for water damage to the building located at 1631 Kalorama Road. Following a two-day bench trial, the trial court ruled in favor of Firemen's Insurance after concluding, inter alia, that Technical Land did not have an insurable interest in the property.[10] Technical Land *443 appeals from this judgment, arguing that the trial court erred in the factors it considered in deciding that Technical Land did not have an insurable interest in the property. We note that Technical Land belatedly made the precise argument upon which we rule, and, therefore, the trial court did not make the relevant findings of fact and conclusions of law. Nonetheless, Technical Land sufficiently presented to the trial court a factual basis for its claim that it had an insurable interest. Thus, we reverse and remand for trial court consideration of the applicable factors we set out in this opinion.
II.
When the trial court sits as factfinder, its factual findings are accorded considerable deference and are reviewed under a "clearly erroneous" standard. See Davis v. United States, 564 A.2d 31, 33 (D.C.1989) (en banc); see also D.C.Code § 17-305(a) (1997 Repl.) (a judgment may not be set aside unless it appears "plainly wrong or without evidence to support it"). Where the matter under review is a question of law, however, this court exercises de novo review. See United States v. Felder, 548 A.2d 57, 61 (D.C.1988). Whether a person has an insurable interest is a question of fact. See Anderson v. State Farm Fire & Cas. Co., 397 N.W.2d 416, 417 (Minn.Ct.App.1986). Although Firemen's Insurance contends that Technical Land is seeking review of the trial court's finding of fact that Technical Land did not have an insurable interest, Technical Land maintains that the trial court's finding that it had no insurable interest in the property is wrong as a matter of law because the trial court did not consider the appropriate factors. We agree with Technical Land and review the trial court's ruling de novo. See Felder, 548 A.2d at 61-62.
Technical Land's principal argument on appeal is that the trial court incorrectly considered that an insurable interest in the property could be based only on Technical Land's judgment lien or the Marshal's Deed that was eventually invalidated. To support this contention, appellant details case law from other jurisdictions that an insurable interest in property is determined not only by legal or equitable title, but also by an insured's economic interest in the property measured by the potential for pecuniary benefit or loss that may result from the use of or damage to that property. See, e.g., Hawkeye-Security Ins. v. Reeg, 128 Ill.App.3d 352, 83 Ill. Dec. 683, 470 N.E.2d 1103, 1105 (1984); Miller v. New Jersey Ins. Underwriting Ass'n, 82 N.J. 594, 414 A.2d 1322, 1325 (1980). We do not read the trial court's ruling as narrowly as appellant suggests.[11] Rather, the trial court reasoned that because Technical Land could show no economic interest in the property itself, the only insurable interest it might have would be through its judgment lien or Marshal's Deed.[12] However, because the Marshal's *444 Deed was declared invalid by the Bankruptcy Court, the trial court concluded that Technical Land was left without an insurable interest. The question before this courtone of first impressionis whether Technical Land had an insurable interest in the property other than through legal or equitable title.[13]
A. Insurable interest.
Before exploring the limits of an insurable interest, we review a few basic principles. It has been noted that in most states it is "axiomatic" that a valid insurance contract must be based on an insurable interest. See Lumbermens Mutual Ins. Co. v. Edmister, 412 F.2d 351, 353 (8th Cir.1969); see also Metropolitan Police Retiring Ass'n v. Tobriner, 113 U.S.App.D.C. 168, 170, 306 F.2d 775, 777 (1962) (describing insurance as "contractual security" against loss through "destruction or impairment of an insurable interest").[14] Some jurisdictions require that the insurable interest exist at the time the contract of insurance is executed, see Wilbanks & Wilbanks, Inc. v. Cobb, 269 Ark. 936, 601 S.W.2d 601, 603 (1980), some jurisdictions require that the insurable interest exist at the time of loss, see Universal C.I.T. Corp. v. Foundation Reserve Ins. Co., 79 N.M. 785, 450 P.2d 194, 195 (1969), and a number of other jurisdictions require that an insurable interest must exist both when the contract is created and at the time of loss, see Providence Washington Ins. Co. v. Stanley, 403 F.2d 844, 848 (5th Cir.1968); G.M. Battery *445 & Boat Co. v. L.K.N. Corp., 747 S.W.2d 624, 626 (Mo.1988). See generally 3 LEE F. RUSS & THOMAS F. SEGALLA, COUCH ON INSURANCE § 41:15 (3d ed.1995) (explaining that jurisdictions differ on whether an insurable interest must exist at the time of contract formation, at the time of loss or at both contract formation and loss).[15] Property insurance is a contract of indemnity, not a wagering contract, and one without an insurable interest in property incurs no redeemable loss by its destruction. See Hilltop Bowl Inc. v. United States Fidelity & Guar. Co., 259 F. Supp. 649, 652 (W.D.La.1966). A policy reason for defining with concreteness the basis for an insurable interest is that the insurable interest rule exists, at least in part, to discourage illicit uses of insurance. See Miller, 414 A.2d at 1324.
It is well settled that an insurable interest in property is "not necessarily synonymous with absolute property rights." Anderson, 397 N.W.2d at 418. See also Reeg, 83 Ill. Dec. 683, 470 N.E.2d at 1105 (explaining that an insurable interest is "not necessarily equated with clear title"); Miller, 414 A.2d at 1325 (noting that an insurable interest "need not rise to the level of legal or equitable title"); Edmister, 412 F.2d at 353 (explaining that an insurable interest need not be "a fee simple holding or an absolute ownership of property"); 43 AM. JUR.2d Insurance § 943 (1999) (stating that "an insurable interest in property does not necessarily imply a property interest in, or a lien upon, or possession of, the subject matter of the insurance, and neither the title nor a beneficial interest is requisite to the existence of such an interest"). In general, an insurable interest exists when a party has "such a relation or concern with the subject matter insured that [the party] will derive pecuniary benefit or advantage from its preservation or suffer pecuniary loss or damage from its destruction." Edmister, 412 F.2d at 353; see also G.M. Battery & Boat Co., 747 S.W.2d at 626; Anderson, 397 N.W.2d at 417; Reeg, 83 Ill. Dec. 683, 470 N.E.2d at 1105; 43 AM.JUR. 2d Insurance § 943 (1998) (citing cases); RUSS & SEGALLA, supra, § 41:11. It is essential, however, that there be a nexus between the loss to the insured and the damage to the insured property for the interest to be insurable. See Edmister, 412 F.2d at 354. Thus, a party has no insurable interest unless "by the destruction of the property, [the party] will suffer a loss, whether [the party] has or has not any title to, lien upon, or possession of the property itself." Anderson, 397 N.W.2d at 417 (internal quotations and citation omitted); see also Glens Falls Ins. Co. v. Sterling, 219 Md. 217, 148 A.2d 453, 456 (1959) (without proof of actual pecuniary loss, insured is not entitled to indemnification under fire insurance policy). The burden of establishing the existence of an insurable interest rests on the insured. See Northern Ins. Co. v. Fischer, 103 A.2d 581, 583 (D.C.1954); see also 44 AM.JUR. 2d Insurance § 1927 (1982).
B. Technical Land's interest in the property.
Applying these principles, in order to establish that it had an insurable interest (other than through property rights), Technical Land must show that it suffered a direct pecuniary loss from the water damage to the insured property, the building itself. As the trial court noted, the Trustee for the Estate of 1631 Kalorama Associates had control of the property and *446 the right to sell it. Thus, the Trustee had the most commonly-recognized insurable interest because it suffered a direct financial loss after water damaged the building, thereby decreasing its value. The Use Agreement gave TVII the right to use the property and to contract with studio users; Technical Land was not a party to the agreement.[16]
It is undisputed that TVII, and through TVII, Technical Land, held use of the property rent-free under the Use Agreement. At most, Technical Land had a "mere license to occupy" the building by virtue of its association with TVII. Although Technical Land benefitted from the Use Agreement because it was able to use the building at 1631 Kalorama Road, occupancy alone is insufficient to establish an insurable interest. See Boston Ins. Co. v. Beckett, 91 Idaho 220, 419 P.2d 475, 479 (1966); see also Edmister, 412 F.2d at 354 (status as tenants and fact that insured dwelling was used as business headquarters insufficient to constitute an insurable interest); Anderson, 397 N.W.2d at 418 (insured who stored personal property rent free in garage owned by ex-wife had no insurable interest because he had no risk of direct pecuniary loss through damage or destruction of the garage itself);[17]cf. CLS Mortgage, Inc. v. Bruno, 86 Wash. App. 390, 937 P.2d 1106, 1108-09 (1997) (under Washington statute defining "insurable interest" as "any lawful and substantial economic interest in the safety or preservation" of the insured property, neither occupancy nor two percent ownership of property owner's assets, without specific ownership in the property, satisfies insurable interest requirement); Miller, 414 A.2d at 1326 (former owners had insurable interest based on their continued possession even after foreclosure for failure to pay taxes).
Expenditures to repair the water damage to the building could constitute an insurable interest. See Bohn v. Louisiana Farm Bureau Mut. Ins. Co., 482 So. 2d 843, 853 (La.Ct.App.1986). Technical Land did not make the emergency repairs, however; they were made by TVII. Pursuant to the Use Agreement, it was TVII, not Technical Land, that was responsible for "ordinary maintenance" and, at TVII's option, "to advance up to $100,000.00 for repairs and maintenance of the building."
At trial, Technical Land maintained that even though the Marshal's Deed was invalidated, it still had an economic interest in the property in the form of a judgment lien. However, it was Techniarts that sued 1631 Kalorama Road Associates to obtain a judgment lien. Moreover, it was only after Techniarts executed the lien and obtained the Marshal's Deed that the Moores substituted Technical Land as the owner of the property. On these facts, it would be Techniarts, not Technical Land, that had an outstanding judgment lien on the property.[18]
*447 Technical Land also contends that because it paid taxes on the property, it therefore had an insurable interest. See Miller, 414 A.2d at 1325 (parties who possessed property, collected rents and paid taxes on the property had an insurable interest). The record, however, shows only that Technical Land was billed for property taxes after obtaining the Marshal's Deed, not that it actually paid the taxes. As the Marshal's Deed was voided ab initio, it would follow that the obligation to pay taxes based on that deed would be set aside. Thus, the above factors, singly or in conjunction, do not support Technical Land's having an insurable interest in the building.[19]
Technical Land cites Asmaro v. Jefferson Ins. Co., 62 Ohio App. 3d 110, 574 N.E.2d 1118 (1980) (per curiam), in support of its claim that these factors do not preclude it from establishing that it had an insurable interest in the property. In Asmaro, the Ohio Court of Appeals addressed whether Asmaro, Inc., which owned a business operated in a building destroyed by fire, had an insurable interest in the building. See id. at 1120. The court held that Alaa Asmaro, the owner of the building and the sole stockholder of Asmaro, Inc., although he had an insurable interest, could not recover because he was not the named insured on the policy. Asmaro, Inc., the named insured, was held to have an insurable interest, even though it did not have a property interest, on the basis of its economic relationship to the property. See id. at 1121. The court concluded that Asmaro, Inc., had an insurable interest in the building because its business was a neighborhood grocery store, dependent on walk-in customers, that would suffer a loss if it were forced to relocate by damage to the building. See id. Thus, the court found an insurable interest based on the fact that the location of the building was integral to the success of the business.
We agree with the Asmaro court's reasoning that where economic loss to a tenant is closely tied to the unique traits of a particular property, it can form the basis for an insurable interest. In this case, Technical Land argues that its insurable interest derives from the fact it was created to operate the studio housed in the insured property and derive profits therefrom, and that it could not do so as a result of the water damage to the building.[20] There was evidence presented to the trial court that the studio at 1631 Kalorama Road was unique to the Washington metropolitan area, and that Technical Land *448 suffered economic loss due to its inability to relocate to another site with similar facilities in time to perform its contractual obligations. The matter is complicated, however, by the fact that appellant did not make the Asmaro argument to the trial court. Indeed, Technical Land did not make this precise argument in its brief on appeal, but raised it for the first time at oral argument.[21] Although claims not raised in the trial court will not ordinarily be considered on appeal, see D.D. v. M.T., 550 A.2d 37, 48 (D.C.1988) (citing Miller v. Avirom, 127 U.S.App.D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967)), we distinguish between claims and arguments in support of a claim, see Mills v. Cooter, 647 A.2d 1118, 1123 n. 12 (D.C.1994) (noting that parties are not limited to precise arguments made in the trial court). Here, Technical Land did claim before the trial court that it had an insurable interest and argued that it had a "reasonable expectation, based upon a real or legal right, of benefit to be derived from the continued existence of the property and of loss or liability from its destruction." Anderson, 397 N.W.2d at 418 (quoting Ben-Hur Mfg. Co. v. Firemen's Ins. Co., 18 Wis. 2d 259, 118 N.W.2d 159, 161-62 (1962)). We are therefore satisfied that the point has been adequately preserved for appellate review.
As the trial court noted, "there is no question that Technical Land lost income because of its inability to use the property during the time it was damaged." Although we cannot say the trial court erred in not making factual findings concerning the alleged uniqueness of the property in question to Technical Land's business and in finding that Technical Land had no insurable interest in 1631 Kalorama Road based on the precise arguments made to it, we remand the case for the trial court's consideration of the facts in light of the claimed uniqueness of the property and the relationship between Technical Land's loss and the property's unique traits.[22] Accordingly, the judgment in favor of Firemen's Insurance is
Reversed and remanded.
NOTES
[1] Neither Techniarts nor TVII is a party in this case.
[2] The property at 1631 Kalorama Road had been a skating rink, and was converted to house a large sound stage, a smaller television studio, and assorted support and storage spaces.
[3] The Moores had just formed Technical Land in September 1992 with the intent of operating a motion picture and television studio on the 1631 Kalorama Road property under the trade name "Kalorama Studios."
[4] 1631 Kalorama Associates, which was also in bankruptcy, similarly contested the validity of the January 7, 1993, Marshal's Deed naming Technical Land as the owner of the building.
[5] The Bankruptcy Court declared that the marshal's sale was illegal and void, and passed no title, see Wiswall v. Sampson, 55 U.S. (14 How.) 52, 68, 14 L. Ed. 322 (1852), because it purported to sell property that was in custodia legis. See Jarvis v. Technical Land, Inc. (In re Technical Land Inc.), 172 B.R. 429, 432 (Bankr.D.C.1994). The Bankruptcy Court also permitted Technical Land to apply to the Receivership Court to reinstate the judgment and the Marshal's Deed, but there is no evidence that the Moores took such action. The Bankruptcy Court's decision was affirmed by the United States District Court. See Jarvis v. Technical Land, Inc. (In re Technical Land Inc.), 175 B.R. 792 (D.D.C.1994).
[6] In December 1993, the bankruptcy litigation involving Technical Land was still pending, and Technical Land, as debtor in possession which asserted an ownership interest in the building at 1631 Kalorama Road, was required to obtain property insurance naming Technical Land as the insured party, including "general comprehensive, public liability" insurance.
[7] Although Technical Land became the owner of 1631 Kalorama Road on January 7, 1993, it did not immediately take possession of the property because the building was occupied by another creditor of 1631 Kalorama Associates, Ralph D. Kaiser Co., and Technical Land had to file a legal action to obtain possession of the building.
[8] On January 18, 1994, the water pipes had burst after the former occupant failed to maintain the heat over the Martin Luther King, Jr. holiday weekend.
[9] According to the Moores, these repairs were crucial because Technical Land had entered into a contract with MTV for a televised interview with President Clinton scheduled for April 20, 1994.
[10] The trial court also held that Firemen's Insurance did not act in bad faith in not paying the claim and in not completing its coverage inquiry more quickly; Technical Land's appeal is limited to the breach of contract issue.
Firemen's Insurance had also defended on the grounds that even if Technical Land had an insurable interest in the building, that interest was not covered by the policy, and that recovery was in any event limited to the face amount of the policy less 90% coinsurance. The trial court did not reach those defenses and they are not before us. See infra notes 20, 22.
[11] It is evident from the trial court's order of December 26, 1995, denying Firemen's Insurance's motion for summary judgment that the court recognized that Technical Land could have an insurable interest even without the Marshal's Deed. The court stated that although the Bankruptcy Court declared the Marshal's deed void, the lack of a deed did not "necessarily require the conclusion that [Technical Land] had no insurable interest in the insured property thereafter."
[12] In its conclusions of law after the bench trial, the trial court stated:
There is no question that Technical Land lost income because of its inability to use the property during the time it was damaged. Also, TVII undoubtedly sustained damage to its property. However, the policy did not insure against lost income or damaged equipment. The policy only insured the building. The question presented, then, is whether Technical Land had an insurable interest in the building. The court concludes that it did not.
With the property in bankruptcy, the Trustee had control of the property, and the right to sell it. Indeed, under the Use Agreement, the Trustee was ordered to obtain insurance for the property. The only insurable interest Technical Land could have had in the property would have been through its judgment lien or the Marshal's deed.
Technical Land purportedly obtained a lien on the property by virtue of a judgment in an action in which Techniarts sued 1631 Kalorama Associates for breach of contract and obtained a $131,055.13 judgment. The Moores, as the sole partners in Techniarts, obtained a Marshal's Deed on the property, which was transferred to Technical Land. On June 2, 1994, that deed was declared null and void by the Bankruptcy Court. Jarvis v. Technical Land, Inc., 172 B.R. 429 (Bankr.D.C. 1994) (Teel, J.). The United States District Court affirmed Judge Teel's decision in Jarvis v. Technical Land, Inc., 175 B.R. 792 (D.D.C. 1994) (Sporkin, J.) The Bankruptcy Court concluded that prior to the foreclosure sale, the property was taken into custodia legis by the Receiver; therefore, no interest in the property could have been transferred by the Marshal's Deed. Thus, the Moores never obtained a judgment lien because their judgment was entered after the Receiver was appointed, and they did not obtain leave of the Receivership Court before attaching the judgment lien. Jarvis, supra at 430, 432-33.
The Bankruptcy Court did not leave Technical Land without an equitable remedy. By its order of June 2, 1994, the court directed Technical Land to apply to the Receivership Court in the pending case of Ralph D. Kaiser Co. v. Lamb, No. 91-CA-2993 (D.C.Super. Ct., filed Mar. 1, 1991), to reinstate the judgment and Marshal's Deed. However, there is to date no record of such an application, and plaintiff has failed to produce evidence to the contrary.
Technical Land has also attempted to establish insurable interest based on the Use Agreement. That contention fails, however, because the Use Agreement was between TVII and the Trustee in Bankruptcy. Technical Land was not a party to it. Moreover, TVII cannot recover on the instant insurance policy because it was not a party to the policy.
[13] Technical Land does not contest the validity of the Bankruptcy Court's order voiding the Marshal's Deed, but instead contends in its brief on appeal that "the validity of legal title is not determinative of its insurable interest in the property." Appellant also does not argue that because the Marshal's Deed was valid at the time the insurance was procured and at the time of the first loss, and Technical Land reasonably believed at those times that it owned the property, Technical Land had an insurable interest in the property. It remains an open question, therefore, whether the after-the-fact invalidity of an otherwise sufficient deed necessarily destroys an insurable interest absent any other evidence of an economic stake in the property at issue. See Nelson v. New Hampshire Fire Ins. Co., 263 F.2d 586, 588-89 (9th Cir.1959) (no insurable interest where the claimant holds the insured property under void conveyance); see also Miller, 414 A.2d at 1326 (former owners had insurable interest based on their continued possession even after foreclosure for failure to pay taxes).
[14] Neither party disputes that an insurable interest is necessary, although no District of Columbia statute or case law is cited to us in this respect, and we have found none.
[15] In this case, Technical Land had obtained an order entitling it to a Marshal's Deed to the insured property at the time the insurance contract was executed in December 1993 and had the Marshal's Deed at the time of the first claimed loss in January 1994. The second claimed loss occurred on June 20, 1994, after the Bankruptcy Court declared the Marshal's Deed null and void on June 2, 1994; that decision was affirmed by the U.S. District Court on December 30, 1994. See supra note 5. There is no indication in the record that the Bankruptcy Court's order invalidating the Marshal's Deed was stayed during pendency of the appeal to the U.S. District Court.
[16] There is no evidence in the record of a written sublease or contract between TVII and Technical Land for use of the studio.
[17] Technical Land attempts to discount Edmister by claiming that the Eighth Circuit misapplied Missouri law in holding that tenant status is insufficient to confer an insurable interest. We read Edmister more narrowly, to hold that a tenant does not have an insurance interest based on loss to a business operation undisclosed to the insurer, where, under Missouri statutory law, an insurer must pay the stated value of the property, regardless of actual loss to the insured. See Edmister, 412 F.2d at 354. Morever, the Missouri Supreme Court case cited by appellant to show that a tenant has an insurable interest stands for the narrower proposition that a lessee of a building who bound itself to obtain property insurance payable to the owner and was held to pay damages for breach of this covenant has an insurable interest in the property. See G.M. Battery & Boat Co., 747 S.W.2d at 625-26.
[18] Technical Land urges us to consider TVII's interests in the Use Agreement and Techniarts' lien in determining whether Technical Land had an insurable interest. Although TVII, Techniarts and Technical Land were related through the Moores' ownership and were operated by the Moores for complementary purposes, we do not lightly ignore the existence of separate legal entities. Only Technical Land was named as the insured party under the Firemen's Insurance policy.
[19] Technical Land also argues that Firemen's Insurance is estopped from denying insurance coverage because, at the time it procured the insurance, Technical Land reasonably believed it had a valid deed to the property and fully disclosed the title dispute to Firemen's Insurance. See McGehee v. Farmers Ins. Co., 734 F.2d 1422, 1424-25 (10th Cir.1984) (insurer estopped from denying insurable interest of insured's son where insured father fully disclosed that he held title to the property, but the son lived in the home at the time he procured the insurance); cf. Edmister, 412 F.2d at 355-56 (refusing to find an insurable interest where former property owner misled insurance company regarding state of title). This claim is unavailing. At the time Firemen's Insurance insured the property, Technical Land had a valid Marshal's deed. Moreover, while Technical Land may have disclosed the title dispute when it obtained coverage, it failed to disclose the subsequent decision of the Bankruptcy Court declaring the Marshal's Deed invalid.
[20] Technical Land claims that its business was impaired as a result of water damage to the building and to Techniarts' television production equipment housed in the building. The trial court found that the "Firemen's policy did not insure against lost income or damaged equipment." Technical Land has not appealed that finding of the trial court. We do not understand it to be asserting a claim for lost profits or damaged equipment, however, but for damage to the property, based on its economic, business-related interest in the building. The scope of coverage under the contract of insurance has not been briefed before this court and is not before us. See supra note 10. In this appeal we address only whether the nature of Technical Land's relationship to the insured building constitutes an insurable interest.
[21] Technical Land cited Asmaro in its brief, but argued that Asmaro stands for the proposition that an entity, like Technical Land, affiliated with an individual or organization with a property right, such as TVII, holds an insurable interest if it has a financial stake in the property. We disagree with that reading of Asmaro's holding. See supra note 18.
[22] The trial court might also need to rule on the issue of coverage. See supra notes 10, 20. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922377/ | 756 A.2d 913 (2000)
In re M.W. and D.W.
District of Columbia, Appellant.
Nos. 99-FS-906, 99-FS-907, 99-FS-1084 and 99-FS-1085.
District of Columbia Court of Appeals.
Argued June 27, 2000.
Decided August 3, 2000.
*914 Mary T. Connelly, Assistant Corporation Counsel, with whom Robert R. Rigsby, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellant.
Lewis Franke for appellee, T.B.
Before WAGNER, Chief Judge, and STEADMAN and FARRELL, Associate Judges.
FARRELL, Associate Judge:
This appeal by the District of Columbia from the dismissal of a neglect petition presents the sole issue of whether a "sibling" for purposes of D.C.Code § 16-2301(9)(E) (1997) (partly defining a "neglected child") includes a child who is neither the biological nor the adopted brother or sister of the children alleged to be neglected. We hold that it does not, and affirm the order dismissing on that ground.
I.
On August 27, 1998, the District filed petitions alleging that D.W. and M.W., thirteen and ten year old boys, respectively, were neglected children in that each was "in imminent danger of being abused by his guardians, and said child's cousin, who was also under the care of said child's guardians, [had] been abused." The guardians, L.B. and T.B., were alleged to have been the caregivers of D.W. since the child was five, and of M.W. since he was approximately a month old. They were similarly alleged to have had custody of the cousin, S.T., until November 11, 1997, when she was brought to the hospital where she died of injuries, at the age of two. According to the petitions, the District of Columbia Medical Examiner had determined that "the injuries were nonaccidental, and ... that [S.T.'s] death was a homicide." The District of Columbia sought an adjudication that D.W. and M.W. were neglected children under D.C.Code § 16-2301(9)(E), which defines a "neglected child" to include a child "who is in imminent danger of being abused and whose sibling has been abused."
Although § 16-2301(9) provides additional definitions of a neglected child, the District acknowledged that it had "petitioned no other allegations of neglect and [was] prepared to proceed to trial on the Section 16-2301(9)(E) allegation" alone. It requested an in limine ruling by the court that S.T. was a "sibling" of D.W. and M.W. because she was their cousin and had "lived in the same home as [they did] in the full time care of [L.B. and T.B.] from September to November 11, 1997." The *915 District contended that "related children living in the same home under the full time care of the same care providers constitute siblings under the common meaning of [§ ] 16-2301(9)(E)." The Superior Court rejected this interpretation of the statute and dismissed the petitions, concluding that D.W. and M.W. "do not constitute `siblings' of the deceased minor, [S.T.], under D.C.Code § 16-2301 [(9)](E)."
II.
The issue before us is one of statutory interpretation. On appeal the District poses the issue (somewhat differently than it did in the trial court) as whether "sibling[s]" within the meaning of § 16-2301(9)(E) "include children who are living together permanently, on a long-term basis, or indefinitely, with the same primary custodians."[1] The District points out (correctly) that the neglect statute does not define "sibling," and asserts that the term "has no plain meaning" as a matter of common usage and, "[e]ven if it did, rules of statutory construction require that the term be liberally construed to effectuate the abuse and neglect statute's broad purpose of protecting all of the District's children from abuse and neglect."
In only one other published opinion have we discussed, briefly, the meaning of the term "sibling" as used in § 16-2301(9)(E). In re S.G., 581 A.2d 771 (D.C.1990), concerned children who were biological halfsiblings. Although the issue of whether they were siblings within the statutory meaning was not presented, we had occasion to state that courts elsewhere "have treated half-siblings as siblings" and noted that "one definition of sibling, probably the most appropriate here, includes `one of two or more persons having one common parent.'" Id. at 778 n. 10 (quoting WEBSTER'S NEW COLLEGIATE DICTIONARY 806 (1970)).[2] The present case, of course, involves allegedly neglected children who have no parent in common with the third child in question, but the District is correct that the S.G. court did not intend to define the reach of "sibling."
When interpreting the language of a statute, "this court examines the plain meaning of the language used and, `absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.'" In re G.G., 667 A.2d 1331, 1334 (D.C.1995) (citations omitted). The District's initial argument that the term "sibling" has no plain meaning in ordinary usage is unconvincing. The common understanding of the word, reflected in nearly all dictionary definitions, is of a brother or sister, i.e., "one of two or more persons born of the same parents or ... sometimes having one parent in common." WEBSTER'S NEW WORLD COLLEGE DICTIONARY 1331 (4th ed.1999). See also, e.g., WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2110 (3rd ed.1986); THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1675 (3rd ed.1992). Thus, if instead of employing the word "sibling," section 16-2301(9)(E) had said "brother or sister," the District would not plausibly be able to argue that the terms include the class of any children living together permanently with the same caregivers, without further limitation. That would stretch the meaning of brother or sister beyond recognition. The District has not persuaded us that by using the word "sibling" the legislature meant to convey more than the normal understanding of that word.
*916 The District fixes upon the term "parent" used by dictionaries in defining "sibling" (i.e., persons having "one or both parents in common") and points to that term's dictionary definition as including, broadly, a "guardian" and/or a "protector," not just a biological parent. See, e.g., WEBSTER'S II NEW COLLEGE DICTIONARY 798 (1995). But it is illogical to suppose that when a dictionary defines term A by reference to term B (and other terms), it necessarily incorporates all of B's definitions, even the broadest. The fact that "parent," in life and the law, may connote more than a biological or adoptive relationship[3] tells us nothing about the customary meaning of "sibling." More significant, in any case, is the way the terms are used in the neglect statute itself. In keeping with its protective purpose, the statute draws no distinction between "parent," "guardian," or "other custodian" in specifying the persons who may be charged with neglecting a child, so as to require state intervention.[4]See § 16-2301(9) (passim). Even with respect to "abused" children, as we have seen, the class is defined liberally to include a child not himself or herself abused but in "imminent danger" of such treatment "and whose sibling has been abused." If the legislature meant "sibling" to be read broadly to include any child residing permanently with the same custodian one would expect it to have made that explicit just as it did in equating "parent" with "custodian" (and, to a lesser extent, abused child with child in imminent danger of abuse). It did not. The implication is that, as elsewhere in the District of Columbia Code, the legislature did not intend "sibling" to extend as far as the District would have it do. See, e.g., D.C.Code §§ 22-4101(10)(A) & -4120(a)(2) (1996) (permitting enhanced punishment for crimes of sexual abuse where the victim was under 18 years old and the defendant "had a significant relationship to the victim," and defining "significant relationship" to include "[a] parent, sibling, aunt, uncle, or grandparent, whether related by blood, marriage, or adoption" (emphasis added)).[5]
The District cites no legislative history supporting its broad interpretation, nor have we found any. Although the neglect statute is remedial and thus to be "liberally construed to achieve that end," In re T.W., 732 A.2d 254, 258 (D.C.1999), that principle does not allow us to engraft a definition on the statutory term inconsistent with its ordinary meaning and dictated by nothing in the statute or its genesis. Indeed, since abuse of a sibling under § 16-2301(9)(E) stands as something of a proxy for actual abuse of the child allegedly neglected (as well as providing critical proof of the "imminent danger" of abuse to that child), it is natural to assume that the legislature meant the relationship between these children to be just as close as "sibling" normally denotes.[6]
*917 We also are not persuaded by the District's argument that refusal to construe the term broadly will endanger "the increasing numbers of children who are not biological siblings and do not live with their biological parents, but, rather, live together in the ... long-term ... custodial care of the same primary care-givers." If that concern is justified, then the District should meet no obstacle in obtaining a statutory clarification of the meaning of the term by the Council of the District of Columbia.[7] And it is debatable in any case whether the District has only § 16-2301(9)(E) at its disposal when confronting neglect based primarily on abuse of other children in the household. See, e.g., § 16-2301(9)(B) (neglected child defined broadly as one "without proper parental care or control ... necessary for his or her physical, mental, or emotional health").
In summary, the trial court correctly ruled that the child S.T. is not a sibling within the meaning of § 16-2301(9)(E). The order dismissing the neglect petition is, therefore,
Affirmed.
NOTES
[1] The District thus no longer attaches significance to the fact that the boys were alleged to be related to S.T. as cousins. We take the case on that basis, although we agree with the District that the fact that the children may have been cousins has no importance to the statutory analysis.
[2] In other contexts, specifically in determining relationships under the laws of intestacy, our local statute provides that "[t]here is no distinction between the kindred of the wholeand the half-blood." D.C.Code § 19-315 (1997).
[3] In this jurisdiction, "[a] final decree of adoption establishes the relationship of natural parent and natural child between the adopter and the adoptee for all purposes." D.C.Code § 16-312(a).
[4] is defined broadly to mean:
a person or agency, other than a parent or legal guardian:
(A) to whom the legal custody of a child has been granted by the order of a court;
(B) who is acting in loco parentis; or
(C) who is a day care provider or an employee of a residential facility, in the case of the placement of an abused or neglected child.
[5] Cf. also D.C.Code § 32-1415(b)(3)(C) (1998) (prohibiting appointment as receiver of a nursing home or community residence facility of "[a] parent, child, grandchild, spouse, sibling, first cousin, aunt, or uncle of one of the facility's residents, whether the relationship arises by blood, marriage, or adoption"). Strictly speaking, this case does not require us to decide whether "sibling" for purposes of § 16-2301(9)(E) includes an adopted brother or sister, although that would be a natural understanding of the term.
[6] Further suggesting a restrictive reading is that, as we emphasized in In re S.G., supra, "[t]he plain language of [§ 16-2301(9)(E) ] requires the government ... to establish both the abuse of the sibling and imminent danger to the child before a finding of neglect may be made." 581 A.2d at 778 (emphasis added).
[7] We note that the Council has amended the Prevention of Child Abuse and Neglect Act of 1977, D.C.Code §§ 6-2101 et seq. (1995), to require the District to make reasonable efforts "to preserve and reunify the family" of a child removed from the home, except that these efforts are not required in the case of a parent who has committed specified acts upon the child or "a sibling or another child" (emphasis added). D.C. Law 13-136, § 201(c), 47 D.C.Reg. 2850 (2000). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/12463/ | 117 F.3d 262
UNITED STATES of America, Plaintiff-Appellee,v.William CARTER, Defendant-Appellant.
No. 96-30882.
United States Court of Appeals,Fifth Circuit.
July 8, 1997.
William Carter, Pensacola, FL, pro se.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before WIENER and PARKER, Circuit Judges, and LITTLE,* District Judge.
PER CURIAM:
1
William Carter ("Carter") appeals the district court's denial of his 28 U.S.C. § 2255 motion, arguing that under the Supreme Court's decision in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), his conviction for use of a firearm in connection with the commission of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1), should be reversed. We agree and reverse the conviction.
FACTS AND PROCEEDINGS BELOW
2
Pursuant to a plea agreement, Carter pleaded guilty in 1992 to conspiracy to possess with intent to distribute cocaine and to use of a firearm in connection with the commission of a drug trafficking crime. He did not plead to, nor was he charged with, the statute's alternative, that is, carrying a firearm in connection with the commission of a drug trafficking crime.
3
At the plea hearing Carter affirmed the following version of the facts as presented by the Government, and such is the totality of the facts presented at the plea hearing regarding the location and use of the firearm.
4
The United States would show that throughout the aforedescribed drug trafficking offense, a Ruger semiautomatic pistol, model P-85, 9 millimeter, bearing serial No. 30598514, was located in the passenger compartment of the defendant's, William Carter's, automobile. The United States would introduce evidence to show that both defendant Carter and Fennidy had access to the weapon, and that defendant Fennidy was the lawful owner of the handgun....
5
In 1996, Carter filed a § 2255 motion arguing that under Bailey, the facts did not support his § 924(c)(1) conviction for "use" of a firearm in connection with a drug transaction. The district court relied on its findings in Carter's driving companion's (Keith Fennidy's) § 2255 action that the firearm was on top of the car's console and was therefore used in the drug transaction in that it was "displayed." The district court denied Carter's § 2255 motion.
6
The district court entered its final judgment on May 14, 1996 and Carter filed a notice of appeal on June 3, 1996. He proceeds in forma pauperis, arguing that under Bailey, there was an insufficient factual basis upon which to accept his guilty plea. The district court did not consider the notice of appeal as a request for a certificate of appealability ("COA") and thus never granted or denied a COA.DISCUSSION
A. The COA after Lindh
7
As an initial matter, we must address the applicability of the COA requirement created by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1214, in light of the Supreme Court's decision in Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). In Lindh, the Supreme Court held that AEDPA's amendments to the chapter of Title 28 which includes, inter alia, the COA requirement, apply only to cases filed after the AEDPA's effective date. "[T]he new provisions of chapter 153 generally apply only to cases filed after the Act became effective." Lindh, --- U.S. at ----, 117 S.Ct. at 2068.
8
The AEDPA amended 28 U.S.C. § 2253 to require a COA before an appeal may proceed in a § 2255 or a § 2254 action. By deciding that the chapter containing the new COA requirement applies only to cases filed after the AEDPA's effective date, Lindh overruled our previous holdings in United States v. Orozco, 103 F.3d 389 (5th Cir.1996), and Drinkard v. Johnson, 97 F.3d 751 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997), and their progeny, regarding the applicability of the COA requirement to § 2254 and § 2255 appeals. Following Lindh, we hold that § 2255 appellants are not subject to this COA requirement unless their § 2255 petitions were filed in the district court after the AEDPA's effective date of April 24, 1996. Because Carter's § 2255 petition was filed in the district court prior to the AEDPA's effective date, Carter is not subject to the COA requirement.1
B. Carter's Conviction after Bailey
9
Having determined that Carter need not have a COA as a prerequisite to an appeal to this court, we must now consider whether his conviction stands under a post-Bailey understanding of "use" of a firearm in connection with the commission of a drug trafficking offense. See 18 U.S.C. § 924(c)(1); United States v. McPhail, 112 F.3d 197 (5th Cir.1997) (holding that Bailey applies retroactively to cases on collateral review).
10
A court cannot accept a guilty plea unless there is a sufficient factual basis for the plea. United States v. Armstrong, 951 F.2d 626, 629 (5th Cir.1992). The factual basis must appear in the record and must be sufficiently specific to allow the court to determine if the defendant's conduct was within the ambit of that defined as criminal. United States v. Adams, 961 F.2d 505, 508 (5th Cir.1992); Armstrong, 951 F.2d at 629. The district court's acceptance of a guilty plea is a factual finding reviewable under the clearly erroneous standard. Id.
11
Relief from a formal or technical violation of Rule 11 is not available in a § 2255 collateral attack, but instead is available only upon a showing of prejudice. Id. There is obvious prejudice to Carter in entering a plea of guilty to a crime which, based on the facts in the record, he did not actually commit. See Id.
1.
12
Carter was convicted of "using" a firearm and was not charged with "carrying" a firearm in relation to a drug trafficking crime. Thus, the requirements for "carrying" a firearm under § 924(c) do not apply to Carter. See United States v. Garcia, 86 F.3d 394, 403 (5th Cir.1996) (in applying Bailey, refusing to address whether facts might have upheld conviction under "carry" prong of § 924(c) because defendant was charged only with "use"), cert. denied, --- U.S. ----, 117 S.Ct. 752, 136 L.Ed.2d 688 (1997).
13
A conviction under § 924(c) requires that the defendant (1) used or carried a firearm, (2) during and in relation to a drug-trafficking offense. See 18 U.S.C. § 924(c). Prior to Bailey, § 924 was regarded as merely requiring evidence that the "firearm was available to provide protection to the defendant in connection with his engagement in drug trafficking." United States v. Ivy, 973 F.2d 1184, 1189 (5th Cir.1992). In Bailey, the Supreme Court reversed the § 924(c) convictions of two defendants, one of whom had a gun in his car trunk and the other of whom had a gun in a closet along with crack cocaine. The Court held that a conviction for "use" of a firearm requires that the evidence be sufficient to "show active employment of the firearm" by the defendant. Bailey, --- U.S. at ----, 116 S.Ct. at 506. The Court explained that "use" includes "brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Id. at ----, 116 S.Ct. at 508. In addition, the "silent but obvious and forceful presence of a gun on a table can be a 'use.' " Id. However, "[a] defendant cannot be charged under § 924(c)(1) merely for storing a weapon near drugs or drug proceeds." Id. " '[U]se' cannot extend to encompass [the] action" of "conceal[ing] a gun nearby to be ready for an imminent confrontation." Id. at ----, 116 S.Ct. at 508. The gun must be disclosed or mentioned by the defendant. Id. In sum, in order to convict a defendant for a § 924(c)(1) violation on a "use" theory, the government must present evidence sufficient to show active employment of the firearm. Bailey, --- U.S. at ---- - ----, 116 S.Ct. at 508-09. It is no longer enough to show that the defendant merely stored a weapon near drugs or drug proceeds to establish that the defendant used the weapon during or in relation to drug trafficking activities. Id.; McPhail, 112 F.3d at 199.
2.
14
As previously stated, there must be a factual basis to support a district court's acceptance of a guilty plea, see Fed.R.Crim.P. 11(f); United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir.1984), and as such, the proper approach is to review the district court's acceptance of a guilty plea for clear error.
15
At the plea hearing, the government offered that a semiautomatic pistol "was located in the passenger compartment of the defendant's, William Carter's, automobile" and that the "defendant Carter ... had access to the weapon." No other facts related to the firearm were recited. Under the Supreme Court's exposition of the statutory term "use" in Bailey, such a factual basis is an insufficient basis for the acceptance of a guilty plea to this offense since the mere location inside an automobile does not, without more, equate with the "use" of a firearm in relation to a drug trafficking offense. See McPhail, 112 F.3d at 199 (holding that insufficient under Bailey that weapon stored near drugs or drug proceeds to establish "use"); United States v. Hall, 110 F.3d 1155, 1159-1161 (5th Cir.1997) (holding that evidence insufficient to sustain "use" conviction where firearm on floor of room in which defendant was located, drugs were on table in room, but no evidence that defendant disclosed, displayed, mentioned or actively employed firearm in any way).
CONCLUSION
16
For the foregoing reasons, we conclude that there is not a factual basis for Carter's plea of guilty to the use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). When a plea has been accepted in violation of Rule Fed.R.Crim.P. 11(f), our practice is to reverse, vacate and remand for entry of a new plea. See Hall, 110 F.3d at 1162. Accordingly, the judgment of the district court is REVERSED, Carter's 18 U.S.C. § 924(c)(1) conviction is REVERSED, his sentence is VACATED, and this case is REMANDED for further proceedings.
*
District Judge of the Western District of Louisiana, sitting by designation
1
Of course, in keeping with our evolved consistency of treatment of the new COA requirement for both § 2254 and § 2255 actions, the Court's pronouncement in Lindh extends to § 2254 appeals as well. See, e.g., United States v. Youngblood, 116 F.3d 1113 (5th Cir.1997) (making uniform the practice that a petitioner must apply to the district court for a COA prior to making such a request of this court in both § 2255 and § 2254 actions); see also Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir.1997) (same); Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir.1997) (same). Such consistency and uniformity is the only logical approach for a sound, orderly practice for this circuit. Thus, § 2254 litigation is also subject to the COA requirement only when a § 2254 petition is filed in the district court after the AEDPA's effective date of April 24, 1996 | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1609575/ | 664 So.2d 1310 (1995)
Clayton W. CHEDVILLE, through his duly appointed curator, Everett Louis Chedville, Everett Louis Chedville and Laverne Mcclendon Chedville, Individually
v.
INSURANCE COMPANY OF NORTH AMERICA, Plaquemines Parish School Board, Plaquemines Parish, Louisiana, Virginia Surety Company and Romel E. Barthelemy.
No. 95-CA-0170.
Court of Appeal of Louisiana, Fourth Circuit.
November 16, 1995.
*1311 Sidney J. Angelle, Keith M. Matulich, Lobman, Carnahan and Batt, Metairie, for Appellants.
George LaMarca, Law Offices of Donald T. Giglio, New Orleans, for Appellees.
Before BARRY, BYRNES, and LANDRIEU, JJ.
BYRNES, Judge.
On October 21, 1993 the trial court granted in part a motion for summary judgment in favor of the Plaquemines Parish School Board, Romel E. Barthelemy, Insurance Company of North America, and Cigna Property & Casualty Insurance Company by awarding them reimbursement from The Roman Catholic Church for the Archdiocese of New Orleans, St. Jude Catholic School, and the Catholic Mutual Relief Society of America, of funds contributed towards settlement in the sum of $300,000.00. Attorney's fees and the costs associated with the defense of the Defendant, Romel E. Barthelemy were not awarded. The cross motion for summary judgment of The Roman Catholic Church for the Archdiocese of New Orleans, St. Jude Catholic School, and the Catholic Relief Society of America was denied. The Archdiocese, St. Jude, and Catholic Mutual appealed. Their appeal is not based on a contention that there were genuine issues of material fact.
On September 28, 1989, plaintiff Clayton W. Chedville sustained severe injuries when he was struck by a school bus driven by Romel E. Barthelemy. Prior to trial plaintiff settled his claim against the defendants for approximately $1.5 million which has been paid. CIGNA, on behalf of itself and INA, contributed $500,000.00 and Catholic Mutual contributed $400,000.00 in cash and purchased an annuity for $599,159.00 on behalf of St. Jude and the Archdiocese, but the parties reserved their rights to the have the court reapportion their contributions among themselves.
St. Jude School owned the bus along with The Roman Catholic Church of Archdiocese of New Orleans. At the time of the accident, the Plaquemines Parish School Board operated and maintained the bus and employed the driver, Romel E. Barthelemy.
It is undisputed that Barthelemy was working solely within the course and scope of his employment with the School Board at the time of the accident. At the time of the accident, the bus was being used to transport public school students.[1]
The School Board had a $1,000,000.00 liability policy with CIGNA and a $1,000,000.00 *1312 umbrella policy issued by INA. St. Jude and the Archdiocese had a certificate from The Catholic Mutual Relief Society of America, Inc. which provided an EXCESS AUTO LIABILITY ENDORSEMENT of $300,000.00 and an EXCESS LIABILITY CERTIFICATE of $10,000,000.00. The Archdiocese, St. Jude's School, and The Catholic Mutual Relief Society of America, Inc. appealed, arguing primarily that: (1) Catholic Mutual is not an insurer, but a self-insurance fund of the Roman Catholic Church; (2) that there is no statutory requirement mandating that coverage on a vehicle be considered primary to another policy covering a driver in the face of conflicting language in the policies.
The authorities cited by the trial court are not applicable to the facts of this case. LSA-R.S. 22:1406D(1)(c) which provides for the priority of coverage applies only to uninsured motorist coverage. There is no question of uninsured motorist coverage in the instant case. Comberrel v. Basford, 550 So.2d 1356 (La.App. 5 Cir.1989) is inapposite for the same reason as it is based on LSA-R.S. 22:1406D.
The Catholic Mutual "Excess Auto Liability Coverage" provides that:
PERSONS/ORGANIZATIONS COVERED
The following persons/organizations are covered under this form:
(1) The Protected Person(s) for any covered auto.
(2) Anyone else while using with your permission a covered auto you own, hire or borrow....
(3) Anyone liable for the conduct of the Protected Person(s) or permissive user described above is also covered, but only to the extent of that liability.
The CIGNA policy provides:
For any covered "auto" you own, this Coverage Form provides primary insurance. For any covered "auto" you don't own, the insurance provided by this Coverage Form is excess over any other collectible insurance ... [Emphasis added.]
This language quoted from the CIGNA policy is equivalent to language contained in the Aetna policy in Thomas v. Neeb-Kearney & Co., Inc., 334 So.2d 465, 466 (La.App. 4 Cir.1976): "With respect to a hired automobile or a non-owned automobile, this insurance shall be excess insurance over any other valid and collectible insurance available to the insured." The Thomas court specifically found that: "There is no conflict of insurance clauses in the matter before this court." In Thomas the employer of the driver of the vehicle carried the Aetna policy. The owner of the vehicle had a Liberty Mutual policy that provided that: "If the insured had other insurance against a loss covered by this policy, the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability of all valid and collectible insurance." Id. The Thomas court concluded that: "Liberty Mutual simply has the primary policy on the owned vehicle ... Aetna has the excess coverage because as to it the truck-tractor is literally a hired or non-owned vehicle." (Emphasis added.) Id. Juan v. Harris, 279 So.2d 187 (La.1973), dealt with facts and policy provisions that were virtually identical to those in Thomas and reached the same result.
Although the CIGNA policy contained a provision equivalent to the Aetna provision in Thomas, The Catholic Mutual Excess Auto Liability Coverage contains the following "excess" language not found in the vehicle owner's Hartford policy in Thomas, nor in the equivalent Employer's policy in Juan:
If other valid and collectible coverage or insurance is available to you covering a loss also covered under this form, other than the coverage or insurance that is specifically in excess of coverage afforded by this form, the coverage afforded by this form shall be in excess of and shall not contribute with, such other coverage or insurance. Nothing herein shall be construed to make this form or the Certificate to which this form is attached subject to the terms or conditions of such other coverage or insurance. [Emphasis added.]
*1313 The Thomas and Juan decisions were based on the language contained in the conflicting policies, not upon any statutory or public policy requirement that the vehicle owner's policy be treated as necessarily providing primary coverage.
The trial court found that implicit in LSA-R.S. 32:900(B)(2) mandating omnibus coverage in auto insurance policies is an expression of public policy to the effect that the vehicle owner's policy be primary based on the following statement found in Hearty v. Harris, 574 So.2d 1234, 1237 (La.1991): "At the heart of this statutory scheme is the decision to attach the financial protection to the vehicle rather than to the operator." However, the sentence that preceded the sentence quoted from Hearty by the trial court explains the public policy behind omnibus coverage requirement as one designed to create a "comprehensive scheme for the protection of the public from the damage caused by motor vehicles." As the effectuation of this policy is not impaired where the apportionment of the loss among insurance companies does not reduce the amount available to compensate the injured parties for their injuries; and as LSA-R.S. 32:900(B)(2) is silent on the question of which coverage is primary, the trial court should have based its decision on the language of the policies. Therefore, we do not find that the Catholic Mutual excess auto coverage is primary coverage per se just because it was held by the vehicle owner.[2]
The CIGNA and INA policies contain provisions that state that under the facts of this case they are excess above any other "collectible insurance." Catholic Mutual argues that: "Because Catholic Mutual is not an `insurer,' any liability it may have must be secondary to liability of CIGNA and INA."
Catholic Mutual contends that it is not an insurer, because it merely administers a self-insurance program of the Roman Catholic Church in the United States and that St. Jude and the Archdiocese were participants in that program. It is uncontested that the only entities eligible to participate in the program are those federal tax-exempt entities of the Catholic Church listed in the annual Official Catholic Directory. Catholic Mutual contends that the "Catholic Church is the `one economic family' organization." "Insurance necessarily involves two elements: a risk of loss to which one party is subject and a shifting of that risk to another party; and distribution of risk among similarly situated persons." 44 C.J.S. Insurance Sec. 2 at 74. It is safe to assume that many and perhaps most if not all of the "tax-exempt entities of the Catholic Church" listed in the Official Catholic Directory are legally separate, distinct incorporated entities. The fact that Catholic Mutual is a not for profit company does not mean that it does not provide insurance. We find that it can best be described as a mutual insurance organization or the equivalent. The fact that the organization is not open to the public at large does not make it any less a mutual insurance organization. The fact that the risk is spread among related organizations does not negate the fact that a reallocation and spreading of the risk does in fact occur among those organizations. Catholic Mutual does not contend that each organization contributes an amount that corresponds exactly to its losses and administrative expenses. It is uncontested that St. Jude and the Archdiocese pay premiums to Catholic Mutual, regardless of how they are denominated. The Catholic Mutual "policies" read and function just like insurance policies. More importantly, we note that the Catholic Mutual Excess Auto Liability Coverage provides:
The Ultimate Net Loss payable for coverage as provided by this form shall be excess of $200,000.00. Self Insured Retention *1314 for any one accident, subject to the limit of liability as shown on the certificate declarations page....
When the Catholic Mutual "policy" states that its coverage is excess of the $200,000.00 "Self Insured Retention" it can only mean that it is providing insurance over a $200,000.00 self-insured amount. If the policy were true self-insurance there would be no reference to a "Self Insured Retention." Thus the "policy" distinguishes between an amount for which the entity is truly self-insured and the amount which is covered by Catholic Mutual.
The trial court found that there were two primary coverages, i.e., Catholic Mutual's Excess Auto Liability Coverage for $300,000.00 and CIGNA's policy. It was stipulated that CIGNA was responsible for the first $200,000.00 of plaintiff's losses which confirms the fact that its policy was providing primary coverage. The next level of coverage should be apportioned according to the formula set forth in Graves v. Traders & General Insurance Company, 252 La. 709, 214 So.2d 116 (1968), for dealing with situations such as this where to give effect to the provisions of both coverage would render neither liable, a result that is clearly not intended and contrary to public policy. Following Graves we would use a ratio of eight to three based on CIGNA's $800,000.00 of coverage remaining after it paid the first $200,000.00 for which it is solely responsible and Catholic Mutual's Excess Auto Liability Coverage of $300,000.00. This would bring the total to $1,300,000.00 thereby exhausting both the CIGNA and Catholic Mutual Excess Auto Liability Coverage, leaving $199,159.00 to apportion between the remaining INA and The Catholic Mutual Excess Liability Coverage Form.
The pertinent provisions of the Catholic Mutual Excess Liability Coverage Form provide:
COVERAGE
We agree to pay on your behalf that amount of loss and loss expense resulting from any occurrence which exceeds the amount of loss and loss expense payable by the underlying coverage as shown, but our obligation hereunder shall not exceed the limit of liability stated in Item 4 of the Excess Liability Declarations.
* * * * * *
Underlying Coverage means all certificates or policies listed in the schedule of underlying coverage, including all endorsements attached thereto, plus applicable limits of any other underlying protection (whether insurance or self-insurance including deductible) collectible by you. This definition also is intended to include any self-insured retention endorsement.
Catholic Mutual argues that its coverage only comes into play after all underlying coverage has been exhausted. Catholic Mutual argues that the underlying coverage includes the $1,000,000.00 CIGNA coverage, the $300,000.00 Catholic Mutual Excess Auto Liability Coverage and the $200,000.00 self-insured retention for a total of $1,500,000.00 which must be exhausted before the Catholic Mutual Excess Liability Coverage can be called upon. However, the $200,000.00 self-insured retention was covered by CIGNA when it agreed to be responsible for the first $200,000.00 of liability. This reduced the remaining Cigna coverage to $800,000.00, not $1,000,000.00. To allow Catholic Mutual to add the $200,000.00 already paid by CIGNA on again at the back end to bring the threshold up to $1,500,000.00 before the Catholic Mutual excess policy kicks in, instead of $1,300,000.00 would be double counting.
Thus we are still faced with the problem of apportioning coverage between INA and the Catholic Mutual Excess Coverage. The INA Commercial Umbrella Liability Form provides that:
If other valid and collectible insurance is available to the insured for a loss we cover under this policy, this policy is excess of and will not contribute to the other insurance except if the other insurance is written *1315 as excess insurance over the insurance provided by this policy. When both this insurance and the other insurance apply to a loss on the same basis, whether primary, excess, contingent, or any other basis, then we will share with that other insurance by the following method:
a. If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach, each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first.
b. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers.
We find that both the INA and Catholic Mutual coverage are excess and therefore apply on the "same basis" as that phrase is used in the INA policy. Therefore, as INA has $1,000,000.00 of coverage and Catholic Mutual has $10,000,000.00 of coverage, Catholic Mutual according to the Graves formula must contribute $10 towards the remaining $199,159.00 of the settlement total for every $1 that INA is required to pay, i.e., Catholic Mutual must contribute $181,053.64 and INA must pay $18,105.36. The result is that Catholic Mutual is entitled to substantial reimbursement.
DECREE
For the foregoing reasons, that portion of the judgment of the trial court ordering the Roman Catholic Church for the Archdiocese of New Orleans, St. Jude Catholic School, and the Catholic Relief Society of America (Catholic Mutual) to reimburse CIGNA, et al., $300,000.00 is reversed.
It is further ordered that CIGNA reimburse Catholic Mutual, et al., $800,000.00 for funds contributed towards settlement with the plaintiff, together with legal interest from the date of settlement entered herein until paid.
It is further ordered that INA reimburse Catholic Mutual, et al., $18,105.36 for funds contributed towards settlement with the plaintiff, together with legal interest from the date of settlement entered herein until paid.
It is further ordered that St. Jude and the Archdiocese be dismissed from these proceedings.
That portion of the judgment of the trial court denying the request of CIGNA, et al., for attorney's fees and costs is affirmed.
AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.
NOTES
[1] By motion for summary judgment St. Jude and the Archdiocese asked to be dismissed from this litigation. This request was not granted by the trial court in its judgment, and the matter was not discussed in the trial court's reasons for judgment. The record provides no basis for finding either St. Jude or the Archdiocese directly negligent or vicariously liable for the actions of the bus driver. There is no allegation that either was an insurer of the driver. They are entitled to be dismissed.
[2] Catholic Mutual counters with the policy argument that it was the negligence of the driver that caused the accident; that at the time of the accident he was employed by the School Board and was acting solely in that capacity; and that it is the better policy to hold the tortfeasor and his employer and their insurers primarily responsible, rather than the innocent owner of the vehicle. Where as in this case the implementation of such a policy would cause no reduction in recovery to the injured party, such an approach might have merit in those instances where resort to policy language and the jurisprudence provide no guidance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/96335/ | 199 U.S. 194 (1905)
UNION REFRIGERATOR TRANSIT COMPANY
v.
KENTUCKY.
No. 84.
Supreme Court of United States.
Argued October 13, 16, 1905.
Decided November 13, 1905.
ERROR TO THE COURT OF APPEALS OF THE COMMONWEALTH OF KENTUCKY.
*196 Mr. William H. Field and Mr. Alexander P. Humphrey for plaintiff in error.
Mr. Henry L. Stone, with whom Mr. Samuel B. Kirby and Mr. Robert W. Bingham were on the brief, for defendant in error.
*201 MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.
In this case the question is directly presented whether a corporation organized under the laws of Kentucky is subject to taxation upon its tangible personal property, permanently located in other States, and employed there in the prosecution of its business. Such taxation is charged to be a violation of the due process of law clause of the Fourteenth Amendment.
Section 4020 of the Kentucky statutes, under which this assessment was made, provides that "All real and personal estate within this State, and all personal estate of persons residing *202 in this State, and of all corporations organized under the laws of this State, whether the property be in or out of this State, .. . shall be subject to taxation, unless the same be exempt from taxation by the Constitution, and shall be assessed at its fair cash value, estimated at the price it would bring at a fair voluntary sale."
That the property taxed is within this description is beyond controversy. The constitutionality of the section was attacked not only upon the ground that it denied to the Transit Company due process of law, but also the equal protection of the laws, in the fact that railroad companies were only taxed upon the value of their rolling stock used within the State, which was determined by the proportion which the number of miles of the railroad in the State bears to the whole number of miles operated by the company.
The power of taxation, indispensable to the existence of every civilized government, is exercised upon the assumption of an equivalent rendered to the taxpayer in the protection of his person and property, in adding to the value of such property, or in the creation and maintenance of public conveniences in which he shares, such, for instance, as roads, bridges, sidewalks, pavements, and schools for the education of his children. If the taxing power be in no position to render these services, or otherwise to benefit the person or property taxed, and such property be wholly within the taxing power of another State, to which it may be said to owe an allegiance and to which it looks for protection, the taxation of such property within the domicil of the owner partakes rather of the nature of an extortion than a tax, and has been repeatedly held by this court to be beyond the power of the legislature and a taking of property without due process of law. Railroad Company v. Jackson, 7 Wall. 262; State Tax on Foreign-held Bonds, 15 Wall. 300; Tappan v. Merchants' National Bank, 19 Wall. 490, 499; Delaware &c. R.R. Co. v. Pennsylvania, 198 U.S. 341, 358. In Chicago &c. R.R. Co. v. Chicago, 166 U.S. 226, it was held, after full consideration, that the taking of private property *203 without compensation was a denial of due process within the Fourteenth Amendment. See also Davidson v. New Orleans, 96 U.S. 97, 102; Missouri Pacific Railway v. Nebraska, 164 U.S. 403, 417; Mount Hope Cemetery v. Boston, 158 Massachusetts, 509, 519.
Most modern legislation upon this subject has been directed (1) to the requirement that every citizen shall disclose the amount of his property subject to taxation and shall contribute in proportion to such amount; and (2) to the voidance of double taxation. As said by Adam Smith in his "Wealth of Nations," Book V., Ch. 2, Pt. 2, "the subjects of every State ought to contribute towards the support of the Government as nearly as possible in proportion to their respective abilities; that is, in proportion to the revenue which they respectively enjoy under the protection of the State. The expense of Government to the individuals of a great nation is like the expense of management to the joint tenants of a great estate, who are all obliged to contribute in proportion to their respective interest in the estate. In the observation or neglect of this maxim consists what is called equality or inequality of taxation."
But notwithstanding the rule of uniformity lying at the basis of every just system of taxation, there are doubtless many individual cases where the weight of a tax falls unequally upon the owners of the property taxed. This is almost unavoidable under every system of direct taxation. But the tax is not rendered illegal by such discrimination. Thus every citizen is bound to pay his proportion of a school tax, though he have no children; of a police tax, though he have no buildings or personal property to be guarded; or of a road tax, though he never use the road. In other words, a general tax cannot be dissected to show that, as to certain constituent parts, the taxpayer receives no benefit. Even in case of special assessments imposed for the improvement of property within certain limits, the fact that it is extremely doubtful whether a particular lot can receive any benefit from the improvement does not invalidate the tax with respect to such lot. Kelly v. Pittsburgh, *204 104 U.S. 78; Amesbury Nail Factory Co. v. Weed, 17 Massachusetts, 53; Thomas v. Gay, 169 U.S. 264; Louisville &c. R.R. Co. v. Barber Asphalt Co., 197 U.S. 430. Subject to these individual exceptions, the rule is that in classifying property for taxation some benefit to the property taxed is a controlling consideration, and a plain abuse of this power will sometimes justify a judicial interference. Norwood v. Baker, 172 U.S. 269. It is often said protection and payment of taxes are correlative obligations.
It is also essential to the validity of a tax that the property shall be within the territorial jurisdiction of the taxing power. Not only is the operation of state laws limited to persons and property within the boundaries of the State, but property which is wholly and exclusively within the jurisdiction of another State, receives none of the protection for which the tax is supposed to be the compensation. This rule receives its most familiar illustration in the cases of land which, to be taxable, must be within the limits of the State. Indeed, we know of no case where a legislature has assumed to impose a tax upon land within the jurisdiction of another State, much less where such action has been defended by any court. It is said by this court in the Foreign-held Bond case, 15 Wall. 300, 319, that no adjudication should be necessary to establish so obvious a proposition as that property lying beyond the jurisdiction of a State is not a subject upon which her taxing power can be legitimately exercised.
The argument against the taxability of land within the jurisdiction of another State applies with equal cogency to tangible personal property beyond the jurisdiction. It is not only beyond the sovereignty of the taxing State, but does not and cannot receive protection under its laws. True, a resident owner may receive an income from such property, but the same may be said of real estate within a foreign jurisdiction. Whatever be the rights of the State with respect to the taxation of such income, it is clearly beyond its power to tax the land from which the income is derived. As we said in Louisville *205 &c. Ferry Co. v. Kentucky, 188 U.S. 385, 396: "While the mode, form and extent of taxation are, speaking generally, limited only by the wisdom of the legislature, that power is limited by principle inhering in the very nature of constitutional Government, namely, that the taxation imposed must have relation to a subject within the jurisdiction of the taxing Government." See also McCulloch v. Maryland, 4 Wheat. 316, 429; Hays v. Pacific Mail S.S. Co., 17 How. 596, 599; St. Louis v. Ferry Co., 11 Wall. 423, 429, 431; Morgan v. Parham, 16 Wall. 471, 476.
Respecting this, there is an obvious distinction between the tangible and intangible property, in the fact that the latter is held secretly; that there is no method by which its existence or ownership can be ascertained in the State of its situs, except perhaps in the case of mortgages or shares of stock. So if the owner be discovered, there is no way by which he can be reached by process in a State other than that of his domicil, or the collection of the tax otherwise enforced. In this class of cases the tendency of modern authorities is to apply the maxim mobilia sequuntur personam, and to hold that the property may be taxed at the domicil of the owner as the real situs of the debt, and also, more particularly in the case of mortgages, in the State where the property is retained. Such has been the repeated rulings of this court. Tappan v. Merchants' National Bank, 19 Wall. 490; Kirtland v. Hotchkiss, 100 U.S. 491; Bonaparte v. Tax Court, 104 U.S. 592; Sturges v. Carter, 114 U.S. 511; Kidd v. Alabama, 188 U.S. 730; Blackstone v. Miller, 188 U.S. 189.
If this occasionally results in double taxation, it much oftener happens that this class of property escapes altogether. In the case of intangible property, the law does not look for absolute equality, but to the much more practical consideration of collecting the tax upon such property, either in the State of the domicil or the situs. Of course, we do not enter into a consideration of the question, so much discussed by political economists, of the double taxation involved in taxing the property from *206 which these securities arise, and also the burdens upon such property, such as mortgages, shares of stock and the like the securities themselves.
The arguments in favor of the taxation of intangible property at the domicil of the owner have no application to tangible property. The fact that such property is visible, easily found and difficult to conceal, and the tax readily collectible, is so cogent an argument for its taxation at its situs, that of late there is a general consensus of opinion that it is taxable in the State where it is permanently located and employed and where it receives its entire protection, irrespective of the domicil of the owner. We have, ourselves, held in a number of cases that such property permanently located in a State other than that of its owner is taxable there. Brown v. Houston, 114 U.S. 622; Coe v. Errol, 116 U.S. 517; Pullman's Car Co. v. Pennsylvania, 141 U.S. 18; Western Union Telegraph Co. v. Massachusetts, 125 U.S. 530; Railroad Company v. Peniston, 18 Wall. 5; American Refrigerator Transit Company v. Hall, 174 U.S. 70; Pittsburg Coal Company v. Bates, 156 U.S. 577; Old Dominion Steamship Company v. Virginia, 198 U.S. 299. We have also held that, if a corporation be engaged in running railroad cars into, through and out of the State, and having at all times a large number of cars within the State, it may be taxed by taking as the basis of assessment such proportion of its capital stock as the number of miles of railroad over which its cars are run within the State bears to the whole number of miles in all the States over which its cars are run. Pullman's Car Co. v. Pennsylvania, 141 U.S. 18.
There are doubtless cases in the state reports announcing the principle that the ancient maxim of mobilia sequuntur personam still applies to personal property, and that it may be taxed at the domicil of the owner, but upon examination they all or nearly all relate to intangible property, such as stocks, bonds, notes and other choses in action. We are cited to none applying this rule to tangible property, and after a careful examination have not been able to find any wherein the question *207 is squarely presented, unless it be that of Wheaton v. Mickel, 63 N.J. Law, 525, where a resident of New Jersey was taxed for certain coastwise and seagoing vessels located in Pennsylvania. It did not appear, however, that they were permanently located there. The case turned upon the construction of a state statute, and the question of constitutionality was not raised. If there are any other cases holding that the maxim applies to tangible personal property, they are wholly exceptional, and were decided at a time when personal property was comparatively of small amount, and consisted principally of stocks in trade, horses, cattle, vehicles and vessels engaged in navigation. But in view of the enormous increase of such property since the introduction of railways and the growth of manufactures, the tendency has been in recent years to treat it as having a situs of its own for the purpose of taxation, and correlatively to exempt at the domicil of its owner. The cases in the state reports upon this subject usually turn upon the construction of local statutes granting or withholding the right to tax extra-territorial property, and do not involve the constitutional principle where invoked. Many of them, such, for instance, as Blood v. Sayre, 17 Vermont 609; Preston v. Boston, 12 Pickering, 7; Pease v. Whitney, 8 Massachusetts 93; Gray v. Kettel, 12 Massachusetts, 161, turn upon the taxability of property where the owner is located in one, and the property in another, of two jurisdictions within the same State, sometimes even involving double taxation, and are not in point here.
One of the most valuable of the state cases is that of Hoyt v. Commissioners of Taxes, 23 N.Y. 224, where, under the New York statute, it was held that the tangible property of a resident actually situated in another State or country was not to be included in the assessment against him. The statute declared that "all lands and all personal estate within this State" were liable for taxation, and it was said in a most instructive opinion by Chief Justice Comstock that the language could not be obscured by the introduction of a legal fiction about the *208 situs of personal estate. It was said that this fiction involved the necessary consequence that "goods and chattels actually within this State are not here in any legal sense, or for any legal purpose, if the owner resides abroad;" and that the maxim mobilia sequuntur personam may only be resorted to when convenience and justice so require. The proper use of legal fiction is to prevent injustice, according to the maxim "in fictione juris semper aequitas existat." See Eidman v. Martinez, 184 U.S. 578; Blackstone v. Miller, 188 U.S. 189, 206. "No fiction," says Blackstone, "shall extend to work an injury; its proper operation being to prevent a mischief or remedy an inconvenience, which might result from a general rule of law." The opinion argues with great force against the injustice of taxing extra-territorial property, when it is also taxable in the State where it is located. Similar cases to the same effect are People v. Smith, 88 N.Y. 576; City of New Albany v. Meekin, 3 Indiana, 481; Wilkey v. City of Pekin, 19 Illinois, 160; Johnson v. Lexington, 14 B. Monroe, 521; Catlin v. Hull, 21 Vermont, 152; Nashua Bank v. Nashua, 46 N.H. 389.
In Weaver's Estate v. State, 110 Iowa, 328, it was held by the Supreme Court of Iowa that a herd of cattle within the State of Missouri, belonging to a resident of Iowa, was not subject to an inheritance tax upon his decease. In Commonwealth v. American Dredging Company, 122 Penna. St. 386, it was held that a Pennsylvania corporation was taxable in respect to certain dredges and other similar vessels which were built, but not permanently retained outside of the State. It was said that the non-taxability of tangible personal property located permanently outside of the State was not "because of the technical principle that the situs of personal property is where the domicil of the owner is found. This rule is doubtless true as to intangible property such as bonds, mortgages and other evidences of debt. But the better opinion seems to be that it does not hold in the case of visible tangible personal property permanently located in another State. In such cases it is taxable within the jurisdiction where found and is exempt *209 at the domicil of the owner." The property in that case, however, was held not to be permanently outside of the State, and therefore not exempt from taxation. The rule, however, seems to be well settled in Pennsylvania that so much of the tangible property of a corporation as is situated in another State, and there employed in its corporate business, is not taxable in Pennsylvania. Commonwealth v. Montgomery &c. Mining Co., 5 Pa. County Courts Rep. 89; Commonwealth v. Railroad Co., 145 Pa. St. 96; Commonwealth v. Westinghouse Mfg. Co., 151 Pa. St. 265; Commonwealth v. Standard Oil Co., 101 Pa. St. 119. The rule is the same in New York. Pacific Steamship Company v. Commissioners, 46 How. Pr. 315.
But there are two recent cases in this court which we think completely cover the question under consideration and require the reversal of the judgment of the state court. The first of these is that of the Louisville &c. Ferry Co. v. Kentucky, 188 U.S. 385. That was an action to recover certain taxes imposed upon the corporate franchise of the defendant company, which was organized to establish and maintain a ferry between Kentucky and Indiana. The defendant was also licensed by the State of Indiana. We held that the fact that such franchise had been granted by the Commonwealth of Kentucky did not bring within the jurisdiction of Kentucky for the purpose of taxation the franchise granted to the same company by Indiana, and which we held to be an incorporeal hereditament derived from and having its legal situs in that State. It was adjudged that such taxation amounted to a deprivation of property without due process of law, in violation of the Fourteenth Amendment, as much so as if the State taxed the land owned by that company; and that the officers of the State had exceeded their power in taxing the whole franchise without making a deduction for that obtained from Indiana, the two being distinct, "although the enjoyment of both are essential to a complete ferry right for the transportation of persons and property across the river both ways."
The other and more recent case is that of the Delaware &c. *210 Railroad Co. v. Pennsylvania, 198 U.S. 341. That was an assessment upon the capital stock of the railroad company, wherein it was contended that the assessor should have deducted from the value of such stock certain coal mined in Pennsylvania and owned by it, but stored in New York, there awaiting sale, and beyond the jurisdiction of the Commonwealth at the time appraisement was made. This coal was taxable, and in fact was taxed in the State where it rested for the purposes of sale at the time when the appraisement in question was made. Both this court and the Supreme Court of Pennsylvania had held that a tax on the corporate stock is a tax on the assets of the corporation issuing such stock. The two courts agreed in the general proposition that tangible property permanently outside of the State, and having no situs within the State, could not be taxed. But they differed upon the question whether the coal involved was permanently outside of the State. In delivering the opinion it was said: "However temporary the stay of the coal might be in the particular foreign States where it was resting at the time of the appraisement, it was definitely and forever beyond the jurisdiction of Pennsylvania. And it was within the jurisdiction of the foreign States for purposes of taxation, and in truth it was there taxed. We regard this tax as in substance and in fact, though not in form, a tax specifically levied upon the property of the corporation, and part of that property is outside and beyond the jurisdiction of the State which thus assumes to tax it." The decision in that case was really broader than the exigencies of the case under consideration required, as the tax was not upon the personal property itself but upon the capital stock of a Pennsylvania corporation, a part of which stock was represented by the coal, the value of which was held should have been deducted.
The adoption of a general rule that tangible personal property in other States may be taxed at the domicil of the owner involves possibilities of an extremely serious character. Not only would it authorize the taxation of furniture and other *211 property kept at country houses in other States or even in foreign countries, of stocks of goods and merchandise kept at branch establishments when already taxed at the State of their situs, but of that enormous mass of personal property belonging to railways and other corporations which might be taxed in the State where they are incorporated, though their charters contemplated the construction and operation of roads wholly outside the State, and sometimes across the continent, and when in no other particular they are subject to its laws and entitled to its protection. The propriety of such incorporations, where no business is done within the State, is open to grave doubt, but it is possible that legislation alone can furnish a remedy.
Our conclusion upon this branch of the case renders it unnecessary to decide the second question, viz: Whether the Transit Company was denied the equal protection of the laws.
It is unnecessary to say that this case does not involve the question of the taxation of intangible personal property, or of inheritance or succession taxes, or of questions arising between different municipalities or taxing districts within the same State, which are controlled by different considerations.
We are of opinion that the cars in question, so far as they were located and employed in other States than Kentucky, were not subject to the taxing power of that Commonwealth, and that the judgment of the Court of Appeals must be reversed, and the case remanded to that court for further proceedings not inconsistent with this opinion.
MR. JUSTICE WHITE concurred in the result.
MR. JUSTICE HOLMES: It seems to me that the result reached by the court probably is a desirable one, but I hardly understand how it can be deduced from the Fourteenth Amendment, and as the Chief Justice feels the same difficulty, I think it proper to say that my doubt has not been removed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1922406/ | 756 A.2d 896 (2000)
Kenneth N. HAMMOND, Appellant,
v.
DISTRICT OF COLUMBIA BOARD OF PAROLE, Appellee.
No. 99-SP-83.
District of Columbia Court of Appeals.
Argued May 25, 2000.
Decided July 17, 2000.
*897 Peter H. Meyers, Washington, DC, appointed by this court, for appellant.
Mary L. Wilson, Assistant Corporation Counsel, with whom Robert Rigsby, Interim Corporation Counsel at the time the motion was filed, and Charles L. Reischel, Deputy Corporation Counsel, filed a motion for summary affirmance in lieu of a brief.
Before SCHWELB and WASHINGTON, Associate Judges, and BELSON, Senior Judge.
BELSON, Senior Judge:
Appellant Kenneth Hammond appeals the trial court's order denying his petition for writ of habeas corpus, filed pursuant to D.C.Code § 16-1901 (1999 Supp.), in which he asserted that his due process rights were violated when following his successful challenge of the D.C. Parole Board's initial parole revocation order the Board imposed a longer set-off, i.e., the period of time which must pass before it would next consider releasing him on parole. He contends that the Board's actions in imposing a longer set-off triggered a presumption of vindictiveness, and that the Board did not rebut the presumption by setting forth objective information concerning conduct on his part after the first parole revocation hearing that justified the imposition of a longer set-off. The government, assuming the applicability of a presumption of vindictiveness, contends the presumption was overcome when the Board noted that appellant's credibility was "shot" as a result of his testimony at his second parole revocation hearing. Because we are not persuaded that the government has overcome the presumption, we reverse.
I.
Appellant was released on parole by the D.C. Parole Board in April 1996. In August 1997, appellant was arrested in Maryland on charges of second-degree rape and second-degree sexual offense, arising out of an incident in which his girlfriend alleged he had raped her. On January 6, 1998, appellant pled guilty to second-degree assault, a misdemeanor, and the following day a parole violation warrant issued by the D.C. Parole Board was executed against him. At his parole revocation hearing, he was found to have committed four parole violations: (1) failure to obey all laws while on parole; (2) failure to report his Maryland arrest to his parole officer; (3) failure to meet with his parole officer on one occasion; and (4) failure to participate in an outpatient drug program, a special condition of his parole. Based on these findings, on February 25, 1998, the Parole Board issued an order revoking appellant's parole, and ordered that he be reconsidered for parole on the set-off date of January 7, 2000.
On March 18, 1998, appellant filed a pro se petition for writ of habeas corpus. In *898 response to a show cause order issued by the trial court, the Parole Board submitted a memorandum to the court conceding that it had erred in failing to provide a written explanation for its imposition of a set-off that was longer than that recommended by the guidelines, and indicated that upon dismissal of the petition, a new revocation hearing would be scheduled. Based on this submission, the trial court denied and dismissed appellant's petition, and the Parole Board scheduled a new revocation hearing. At the second revocation hearing, the hearing official concluded that appellant had committed only two violations failure to obey all laws and failure to meet with his parole officer and recommended a set-off date of April 7, 1999. Disagreeing with the recommended disposition, Board Chair Margaret Quick recommended a set-off date of January 6, 2001, noted the presence of three countervailing factors, and added the comment: "Subject's credibility is shot. This testimony is different from his previous hearing on at least one allegation. Subject was convicted on a charge stemming from two allegations of rape. Subject was not adhering to his special condition and reporting requirements." On September 16, 1998, the Parole Board issued an order revoking appellant's parole and ordering a set-off date of January 6, 2001, as recommended by Ms. Quick. The three countervailing factors identified by Ms. Quick were cited on the revocation order as reasons for the Board's decision. These factors were "prior record of violent behavior," "opportunity but little effort to engage in productive programming or work," and "needs programming to remain crime-free in the community."
On December 10, 1998, the Board issued a third parole revocation order, specifying only the "failure to obey all laws" violation, because the evidence on the other remaining violation was insufficient.[1] The third revocation order specified the same set-off date January 6, 2001 as the second revocation order, and cited the same three countervailing factors.
II.
In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court applied the due process clause to a trial court's imposition of a longer sentence on the appellant, after the appellant's conviction following a retrial which had been necessitated by the reversal on appeal of the appellant's initial conviction. The Court held that "Due process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." Id. at 725, 89 S.Ct. 2072. The Court continued,
In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.
Id. at 726, 89 S.Ct. 2072. "In sum, the Court [in Pearce] applied a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence." United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982).
The District of Columbia, in its brief to this court, assumed arguendo that the Pearce presumption applies to parole determinations *899 and did not provide any authority or argument to the contrary. A number of federal courts of appeals have extended the Pearce presumption to encompass parole determinations. See, e.g., Marshall v. Lansing, 839 F.2d 933 (3rd Cir.1988); Kindred v. Spears, 894 F.2d 1477 (5th Cir.1990); Bono v. Benov, 197 F.3d 409 (9th Cir.1999). As the Third Circuit stated in Marshall, supra,
We believe that the logic of Pearce and its progeny applies with equal force to the facts of this case. Just as a sentencing judge might resent a challenge to an underlying conviction which he himself had overseen, so too might the Commission look unkindly upon a successful court challenge to its [decisions], thus supplying a motive for retaliation.... [W]here a prisoner's challenge could be viewed as an assault on the Commission's much-valued discretion, such a challenge could provide an additional motive for retaliation.
839 F.2d at 947 & n. 19. We have found no cases where a reviewing court has declined to apply the Pearce presumption in a parole case, and the Supreme Court has never addressed this issue. We are convinced by the logic of those courts that have applied the Pearce presumption in parole cases, and thus we will apply it here.
III.
Under Pearce, the presumption of vindictiveness arises "whenever a judge imposes a more severe sentence upon a defendant after a new trial" and the reasons for doing so do not "affirmatively appear." 395 U.S. at 726, 89 S.Ct. 2072. Subsequent cases have limited the application of the presumption to circumstances "where its objectives are thought most efficaciously served," Alabama v. Smith, 490 U.S. 794, 798, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (quotations and citations omitted) "those in which there is a reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority," id. at 799, 109 S.Ct. 2201 (quotations and citations omitted). Thus, the presumption does not apply where sentencing was entrusted to the jury, Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), or where the increased sentence was imposed by a superior court after the defendant exercised his right to a new trial de novo after conviction in an inferior court, Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), or where the first sentence was based on a guilty plea which was subsequently vacated and followed by a trial, Smith, supra.
For the presumption to apply, the harsher sentence here, the longer setoff must be issued in response to a successful appeal to a higher authority. Bono, supra, 197 F.3d at 416.[2] Appellant asserts that a presumption of vindictiveness arose when the Parole Board issued the second order revoking his parole, imposing a longer set-off. See United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982).
The sequence of events that led to the issuance of the second revocation order began when appellant filed his first petition for habeas corpus. In response to the trial court's show cause order, the Parole Board submitted a memorandum to the court indicating that it would vacate appellant's parole revocation order and hold a second hearing. Appellant's petition is not in the record, nor is the Board's memorandum, except for some pages appellant attached to his second petition for habeas corpus. One of these pages makes clear, however, that the Board conceded one of appellant's allegations that the Board had erred in failing to offer an explanation *900 for the imposition of a set-off that was outside the guidelines. We can infer only that it was based on this concession, and the accompanying promise to conduct another hearing, that the trial court discharged the show cause and denied appellant's habeas corpus petition.
Although the court did not reverse appellant's initial parole revocation order, the Board's concession to the court and subsequent rehearing anticipated and preempted such a reversal. Because these events occurred in response to appellant's exercise of his right to appeal specifically, his contention that the Board had erred in failing to explain its imposition of a setoff that was outside the guidelines we conclude that appellant's exercise of that right was successful.[3] Thus, there is a causal link between appellant's successful filing of a habeas corpus petition and the second revocation hearing and order. Because the second revocation order imposed a longer set-off while finding fewer parole violations, there is a "reasonable likelihood" that the longer set-off was the product of actual vindictiveness, and the presumption of vindictiveness applies.
IV.
"Where the presumption of vindictiveness applies, the burden shifts to the government to rebut that presumption." Bono, supra, 197 F.3d at 420 (citing Wasman v. United States, 468 U.S. 559, 568, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984)). In order to overcome the presumption of vindictiveness, "the factual data upon which the increased [set-off] is based must be made part of the record," Pearce, supra, 395 U.S. at 725, 89 S.Ct. 2072, and the data must reflect "objective information concerning identifiable conduct on the part of [the parolee] occurring after the time of the original ... proceeding." Id. at 726, 89 S.Ct. 2072. The government points to discrepancies in appellant's testimony between the first and second revocation hearings as supporting a longer set-off, as evidenced by Ms. Quick's comment on appellant's credibility.[4] It is to the records of these hearings that we must turn to determine whether they provide objective information sufficient to rebut the presumption.
The charge of failure to obey all laws while on parole was sustained after both hearings. On this charge, the record of the first hearing shows that appellant denied the rape charge and admitted assaulting the complainant, and said the offense occurred between himself and his girlfriend. The record of the second hearing states, "Denies involvement." The alleged conduct to which appellant's denial appears to apply is provided at the top of the same page of the hearing report: "Arrested and charged w/ 2 cts. rape and sexual offense in Montgomery Cty, Md." Because appellant's denial is more reasonably seen as applying to the rape charges, which were nolle prossed, than to the assault charge on which he was convicted and which is not listed on the hearing report, the record regarding this charge does not provide an objective basis for questioning appellant's credibility at the second hearing.
On the charge of failure to report his Maryland arrest to his parole officer, the record of the first hearing states, "Admits... says he was not allowed use of phone." The record of the second hearing states, *901 "Denies. States he called from Mont. Co Jail. Case worker gave him permission & this is how P.O. found out about arrest." The record also states, "Field sheet doesn't reflect how PO found out about arrest." This violation was sustained as a result of the first hearing but, significantly, no finding was entered as a result of the second hearing. Since neither of appellant's versions was corroborated, the record provides no objective basis for finding that appellant's testimony was less credible at the second hearing than at the first hearing.
On the charge of failure to meet with his parole officer, the record of the first hearing states, "Deny receiving letter but admits to not reporting 2/10/97." The record of the second hearing states, "States he may have missed this date" regarding his failure to appear on 2/10/97 and "Denies. Letter sent to old address." regarding his failure to report on 2/24/97. Both violations were sustained as a result of the first hearing, and only the second violation was sustained as a result of the second hearing. Because appellant's testimony was essentially unchanged between the two hearings, the record regarding this charge does not support a finding that appellant's credibility was diminished at the second hearing.
On the charge of failure to participate in an outpatient drug program, the record of the first hearing states, "Admits." The record of the second hearing states, "Denies," and cites D.C. Jail records that show appellant was not released until noon on the scheduled date. This violation was sustained as a result of the first hearing and not sustained as a result of the second hearing. Although appellant changed his testimony at the second hearing, this change might have been prompted by the availability of jail records which suggest that it was not possible for him to participate in the program on the scheduled date. There does not appear to be an objective basis in the record for questioning the credibility of his failure to admit the violation on that occasion.
In sum, there does not appear to be objective support in the record for the increased set-off date imposed by the Board following appellant's successful challenge to his first parole revocation order. Furthermore, the result of the administrative process for appellant after a second hearing and two additional revocation orders was that of four violations originally found, only one was finally sustained. Accordingly, we remand the case to the trial court with instructions to order the Parole Board to vacate appellant's set-off date and hold a parole reconsideration hearing forthwith.[5]
Reversed and remanded.
NOTES
[1] The other violation failure to meet with his parole officer was based on records from appellant's parole officer and could not be confirmed because the parole officer was no longer employed by the Board, having been arrested on bribery charges.
[2] Although Bono uses the language "reversal by a higher authority," it does not appear that outright reversal is required, simply success by the parolee. See Pearce, supra, 395 U.S. at 725, 89 S.Ct. 2072 (condemning "vindictiveness against a defendant for having successfully attacked his first conviction").
[3] If the Board had ordered a new hearing sua sponte, rather than in response to appellant's habeas corpus petition, the presumption would not apply. See, e.g., Kindred, supra, 894 F.2d at 1480; Weaver v. Maass, 53 F.3d 956, 960 (9th Cir.1995).
[4] Chairman Quick's comment was not included in the second revocation order. That order, instead, listed the three "countervailing factors" listed above (page 3, bottom) as justification for the imposition of a set-off date outside the guidelines. There is no evidence that these three countervailing factors reflect conduct occurring after the time of the original revocation hearing. Certainly the first countervailing factor prior record of violent behavior does not reflect recent conduct.
[5] "When a court has already remanded a case to an administrative agency for failure to explain adequately its decision, and the agency, on remand, again fails to provide a reasoned basis for its conclusions, a reviewing court can set aside the agency's decision so that it comports with a more readily apparent conclusion." Marshall, supra, 839 F.2d at 945 (citing Greyhound Corp. v. ICC, 215 U.S.App. D.C. 322, 668 F.2d 1354 (1981)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609743/ | 348 Mich. 88 (1957)
81 N.W.2d 667
PEOPLE
v.
MORRISON.
Docket No. 92, Calendar No. 46,925.
Supreme Court of Michigan.
Decided February 28, 1957.
*89 Thomas M. Kavanagh, Attorney General, Edmund E. Shepherd, Solicitor General, and Daniel J. O'Hara, Assistant Attorney General, for the people, confessing error.
SHARPE, J.
Upon leave granted, defendant, Roderick J. Morrison, appeals from a judgment and sentence of the circuit court for the county of Sanilac and from an order denying his motion for leave to file a delayed motion for a new trial. The essential facts necessary to a decision of the issue involved are as follows: On August 30, 1954, the prosecuting attorney of Sanilac county filed an information against defendant charging him with fraudulently obtaining the sum of $1,300 from the State Bank of Croswell by representing that he was the owner of a certain Packard car which was free and clear of any mortgage, lien or claim from anyone else, it appearing that at the time the said loan was obtained, the Yale State Bank held a mortgage on said car. The prosecution in this case is brought by virtue of the authority contained in CL 1948, § 750.218 (Stat Ann § 28.415).
On September 23, 1954, defendant was arraigned and pleaded guilty to the charge laid in the information, however before sentence was passed, and upon invitation of the circuit judge, defendant made the following statement:
"Mr. Morrison: Quite a few things, a series of events. I was manager of a plant in Yale, Michigan, general manager. Conditions became such that the plant did practically nothing as far as employment *90 was concerned. They couldn't afford the rate of money I was receiving, and they had to lay me off. I had debts and was buying a house, furniture and automobile and I came upon a small item which looked profitable for manufacturing and I asked information from the persons who had the patent rights on it to manufacture it and they did and I asked a number of stockholders and organized a corporation. We were promised items for delivery and manufacture on the first day of May. The promise fell through and I received letters from the person threatening to repossess my house and the car and the furniture and I had a nervous breakdown, sir. I was aware of what I did, but I did it and I was sick at the time, not mentally ill, but under much duress and all those things, that since have taken place that happened before. I did not avert them by what I did. I went to the Croswell Bank and notified them that the car was already mortgaged at the Yale State Bank and the promise that I was to pay off the money due on the automobile and I was granted the loan. I told the Yale State Bank that I was going to mortgage the car in the Croswell Bank and they talked back and forth and agreed it could be done but I didn't use the money to pay the other bank. I used the money to pay other bills."
On October 11, 1954, defendant was sentenced to the State prison of southern Michigan for a term of 2-1/2 to 10 years. On April 25, 1955, defendant filed an application for leave to file a delayed motion for a new trial in which he claimed that he did not actually plead guilty to the offense set forth in the information. Subsequently this motion was denied by the trial judge, and upon application to the Supreme Court leave to appeal was granted.
We note that neither the prosecuting attorney of Sanilac county nor defendant has filed briefs in this cause, but the attorney general has filed a brief in which the claim is made that defendant's statement *91 of the facts negated his plea of guilty and it thereupon became the duty of the trial judge to vacate such plea.
In People v. Widmayer, 265 Mich. 547, 550, defendant was charged with obtaining money under false pretenses. We there said:
"The rule of law is well established that, to sustain a conviction, `The false pretenses must refer to some existing fact, and statements concerning what would occur in the future are not a sufficient basis for the charge.' People v. Segal (syllabus), 180 Mich. 316."
In the case at bar the information charged a false and fraudulent pretense that defendant's car tendered as security for the loan was free of any mortgage or lien. It also appears that when arraigned defendant informed the court that the Croswell bank knew that the car had already been mortgaged to the Yale bank. The statement made by defendant to the bank to the effect that as soon as he received the loan he would pay the Yale bank was a promise of something that he would do in the future. In our opinion such statement made to the trial court negated his plea of guilty and under such circumstances it became the duty of the trial court to refuse to accept a plea of guilty.
The judgment is reversed and the cause remanded to the circuit court of Sanilac county for further proceedings.
DETHMERS, C.J., and SMITH, EDWARDS, VOELKER, KELLY, CARR, and BLACK, JJ., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609730/ | 248 Minn. 571 (1957)
81 N.W. (2d) 94
STATE
v.
SIGMUND STAR, ALSO KNOWN AS SIGGIE STAR.
No. 36,979.
Supreme Court of Minnesota.
February 1, 1957.
*572 Silver, Goff, Ryan & Wallace and Allen H. Aaron, for appellant.
Miles Lord, Attorney General, George M. Scott, County Attorney, C. Paul Jones, First Assistant County Attorney, and Harlan Goulett and Bruce C. Stone, Assistant County Attorneys, for the State.
THOMAS GALLAGHER, JUDGE.
Defendant, convicted of third degree burglary, appeals from an order denying his motion (1) for judgment notwithstanding the verdict upon the ground that the evidence was insufficient to sustain it or (2) for a new trial because of newly discovered evidence.
Defendant's principal contention is that the testimony of Edward A. Pec, an admitted accomplice, was not sufficiently corroborated by other evidence to meet the requirements of M.S.A. 634.04, which provides that: "A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, * * *."
The crime, a break-in and theft of a substantial quantity of cigarettes and coffee from Ennen's grocery store, 109 North Seventh Street, Minneapolis, was committed during the late evening of July 5 or the early morning of July 6, 1954. Defendant's trial commenced November 28, 1955. Pec, a twice-convicted felon, there testified that Morris Reznick and the defendant were involved with him in the crime. In a sworn statement made subsequent to the trial, Reznick, who did not testify therein, admitted his participation in the crime with Pec but denied that defendant had been involved in any way.
Pec testified that shortly after midnight of July 5, 1954, in response to a call from defendant, he had driven his car to defendant's home, 903 Logan Avenue North, where defendant and Reznick had *573 then transferred thereto some cartons of cigarettes, which, defendant then informed him, had just been stolen by Reznick and defendant from Ennen's; that the three had then driven in Pec's car to the home of Frank Ferraro, 355 Lake Owasso Boulevard, in Ramsey County, where the cigarettes had been placed in Ferraro's basement by Pec and Reznick while defendant remained in the car; that thereafter the three had returned to and entered Ennen's through its Seventh Street door which was unlocked and had removed therefrom a quantity of coffee which they had taken to defendant's garage; that the three had then again returned to Ennen's to remove additional coffee, but that while he waited outside of the store for Reznick and defendant on this occasion, he had observed them suddenly emerging and running rapidly in different directions, Reznick across Seventh Street and defendant down the alley adjacent to Ennen's; that he had then driven away quickly, going to defendant's home, where he had deposited the coffee which had already been placed in the car and thereafter had returned to his own home.
Ray Clark, a police patrolman covering the streets near Ennen's, testified that he first discovered the break-in at about 2:15 to 2:30 a.m. July 6, 1954. Presumably, it was his presence shortly prior thereto at Ennen's Glenwood Avenue door which frightened away the participants in the crime. However, no testimony was submitted by Officer Clark or any witness other than Pec that defendant had been seen at or near Ennen's on this occasion nor at Ferraro's when the cigarettes were delivered there a short time later.
Testimony of a private detective, Stanley Tolle, was to the effect that his regular duties consisted of patrolling the area near Ennen's each night; that at about 2:15 to 2:20 a.m. July 6, 1954, he had observed a man running rapidly across Seventh Street near Ennen's; that after he had apprehended him he had been informed by the man that his name was Reznick; that thereafter he had placed Reznick in a taxicab to permit him to go home; that the cab had proceeded south on Hennepin Avenue from Seventh Street; that after he had released Reznick he had driven past Ennen's and there had learned from police officer Clark about the break-in; that he had then proceeded *574 to Kilroy's restaurant at 1105 Plymouth Avenue North about 5 minutes from Ennen's for the purpose of eating; that there he had observed Reznick and another party, whom he did not identify, about 2:30 or 2:40 a.m.; that he had then apprehended Reznick and taken him back to Ennen's where shortly before 3 a.m. he had turned him over to Officer Clark.
The cab driver testified that Reznick had first requested transportation to a south Minneapolis address but that when nearing Sixteenth and Hennepin he had changed it and requested that he be driven north on Lyndale and later that he be let out near Plymouth Avenue and either Knox, Logan, or Morgan Avenue North. These points are about six blocks from Kilroy's and about five blocks from the home of defendant.
Defendant testified in his own behalf to the effect that he had not participated in the crime; that Reznick was an old friend of his and that, in the early hours of the morning of the crime, Reznick had come to his home and awakened him from sleep and told him of being involved in a fight; that he had then said to Reznick that it was time for him (defendant) to go to work and that he would tell his wife that he was leaving and that he and Reznick would "go down and have a cup of coffee together"; that thereupon he had gone to Kilroy's with Reznick; that upon entering Kilroy's Reznick had immediately been apprehended by a policeman; and that thereafter he had gone on to his employment which consisted of purchasing potatoes or fruit from the Morrison Fruit Company in Minneapolis and thereafter transporting such merchandise by truck into Iowa for sale. Defendant's testimony insofar as it related to the instances which occurred at his home was corroborated by his wife, who also testified that in his work it was customary for defendant, when home, to leave about 3 or 4 a.m. for his work.
Defendant was not arrested or charged with the crime until June of 1955. Police officers arresting him testified that, when they then had questioned him as to his whereabouts on July 6, 1954, he had answered that he had been in Iowa for the purpose of delivering *575 potatoes and that he had denied being in Kilroy's cafe with Reznick that day.
Reznick did not testify at the trial. Shortly thereafter he submitted a sworn statement to the effect that only he and Pec had been involved in the burglary; that defendant had taken no part therein; that just prior thereto he had parked his car near Morgan and Plymouth Avenue North in Minneapolis and had met Pec nearby; that thereupon with Pec he had proceeded to Ennen's in Pec's car where the burglary was committed between the hours of 11 p.m. July 5, 1954, and 1 a.m. July 6, 1954; that after he had been first apprehended by Tolle as above described he had taken a cab from Seventh Street and Hennepin Avenue and directed the cab driver to proceed south, but that later he had changed such directions and ordered the cab driver to take him to the vicinity of Morgan and Plymouth Avenue North; that he had there taken his car and driven about for a while and later had called upon defendant at the latter's home; that he had then told defendant that he had been in a fight and that he and defendant had then gone to Kilroy's for coffee; that while there he had been arrested by Tolle; and that he had not met defendant until approximately one and one-half hours after the crime had been committed.
It is the state's contention that under § 634.04 evidence that defendant was in the company of Reznick at Kilroy's shortly after the crime and evidence that defendant's testimony as to his whereabouts July 6, 1954, was at variance with statements which police officers testified he had made to them at the time of his arrest constituted sufficient corroboration of the testimony of Pec to sustain defendant's conviction.
1. In construing § 634.04 we have pointed out that the reason for requiring that the testimony of an accomplice be bolstered by corroborative evidence is that such testimony is from one admittedly corrupt and therefore likely to have been submitted in the hope of clemency. State v. Rasmussen, 241 Minn. 310, 63 N.W. (2d) 1; State v. Jackson, 198 Minn. 111, 268 N.W. 924. We have repeatedly held that the required corroboration must, independent of the testimony *576 of the accomplice, tend to convict the accused and not merely show the commission of the crime or the circumstances thereof. State v. Scott, 203 Minn. 56, 279 N.W. 832; State v. Baker, 161 Minn. 1, 200 N.W. 815.
2. Such corroborative evidence, of course, may be circumstantial in nature and may relate to the conduct of the accused, such as evidence of his presence at the scene of the crime, or evidence of his association with one known to have participated therein at about the time the crime was committed under suspicious circumstances. State v. Rasmussen, supra; State v. Demopoulos, 169 Minn. 205, 210 N.W. 883. Suspicious circumstances may relate to the unseasonableness of the hour of such presence or association without reasonable explanation therefor; or to the subsequent false denial by the accused that he was thus present or had thus been in association with a participant in the crime. State v. Rasmussen, 241 Minn. 310, 63 N.W. (2d) 1; 22 C.J.S., Criminal Law, § 812, p. 1405.
3. The evidence relied upon by the state as corroborative here does not appear to come within the above principles or the rule clearly expressed in State v. Rasmussen, supra. When the state rested, there was nothing, other than the testimony of Pec, which in any way linked defendant to the crime. No one else testified that anyone but Reznick was seen running from the scene. There was no testimony that any part of the stolen property was ever discovered in defendant's possession. Only Pec testified that defendant was present when the cigarettes were delivered to Ferraro's. When Reznick was arrested by Tolle, no attempt was made to apprehend defendant. Tolle made no observation of the man with Reznick, apparently under the belief that only the latter was involved in the crime. Defendant took the stand in his own behalf and admitted his presence with Reznick at Kilroy's but submitted a reasonable explanation thereof. When the close proximity of Kilroy's to defendant's residence and the requirements of defendant's early working hours in his employment are taken into consideration, it would seem that his explanation for the occasion of his presence with Reznick at Kilroy's is as consistent with his innocence as with his *577 guilt. See, State v. Elsberg, 209 Minn. 167, 295 N.W. 913; State v. Pauley, 210 Iowa 192, 230 N.W. 555; Privett v. Commonwealth, 233 Ky. 471, 26 S.W. (2d) 3; People v. Kress, 284 N.Y. 452, 31 N.E. (2d) 898.
4. Evidence that defendant had falsely stated to the police officers arresting him that he had been in Iowa on July 6, 1954, and had falsely denied to them that he was in Kilroy's with Reznick that date was submitted as indicative of circumstances sufficiently suspicious to constitute the corroboration required under § 634.04 within the rule expressed in State v. Rasmussen, supra. Defendant denied making such statements, but in any event, a close scrutiny of the officers' testimony does not establish that he had made false replies to their questions. They testified that, when asked where he had been July 6, 1954, defendant had replied that he was in Iowa delivering potatoes. This is consistent with his testimony as to the reason for his early rising that date, and there is nothing to show that he did not make the Iowa trip. The officers testified further that, when asked if he had been with Reznick "the evening of July 6th or the day of July 6, 1954," (italics supplied) defendant had replied, "no, that he was out of town." Since Reznick was in custody prior to the day or evening of July 6, 1954, this reply was not demonstrated to have been false. The officers testified that, when asked if he had been in Kilroy's July 6, 1954, defendant had replied that he "definitely wasn't in there that night because he was out of town." If defendant did travel to Iowa July 6, 1954, it would follow that this reply was not demonstrated to be false. Such questions and answers were submitted some 11 months after July 6, 1954. At such late date it would not seem reasonable to expect that defendant would remember every detail of his whereabouts on the prior date. In justice it can scarcely be held that such evidence is of sufficient weight to constitute the corroboration required by § 634.04.
When it is considered in conjunction with Reznick's sworn statement that defendant did not participate in the crime and that Reznick and Pec alone committed it, it would seem clear that a new trial should be granted so that a jury may have the opportunity of hearing *578 and considering Reznick's testimony before finally determining the guilt or innocence of the defendant.
Reversed and new trial granted.
DELL, CHIEF JUDGE (dissenting).
Considering the evidence as a whole and the reasonable inferences to be drawn therefrom, I am of the opinion that under such cases as State v. Rasmussen, 241 Minn. 310, 63 N.W. (2d) 1, the testimony of the accomplice was sufficiently corroborated to satisfy M.S.A. 634.04. As I see it there was a fact question involved which the jury had a right to decide as it did. What importance was to be attached to the sworn statement made by Reznick subsequent to the trial and whether it was of such probative force as to require a new trial, presented questions which the trial court was in a far better position to decide than this court. In a memorandum attached to the order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, the court stated:
"The Court is of the opinion that the defendant had a fair trial; that it was free from the slightest taint of bias or prejudice, and that the verdict was justified by the evidence. To grant a new trial upon the entire record in this case, including the so-called newly discovered evidence, would not, in the opinion of this Court, be in the interests of justice."
In my opinion, on the record before us, the lower court was justified in refusing to set aside the conviction and I therefore dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609758/ | 275 Wis. 57 (1957)
PEDEK, Respondent,
vs.
WEGEMANN and another, Appellants.
Supreme Court of Wisconsin.
January 9, 1957.
February 5, 1957.
*60 For the appellants there was a brief by Suel O. Arnold, James T. Murray, and Dougherty, Arnold & Philipp, all of Milwaukee, and oral argument by Mr. Arnold.
For the respondent there was a brief and oral argument by Alvin L. Zelonky of Milwaukee.
CURRIE, J.
The defendants first seek on this appeal to have the complaint dismissed on the ground that the two findings of causal negligence against Wegemann should be set aside, and, failing this, that it should be held that the negligence of Pedek is as a matter of law equal to, or greater than, the negligence of Wegemann. If these issues should be decided adversely to defendants' contentions, then *61 a new trial is requested on the following grounds: (1) Failure to submit a requested question in the special verdict inquiring as to whether Pedek was negligent in attempting to pass in the intersection; (2) inflammatory remarks of Pedek's counsel in the argument to the jury; (3) denial of defendants' request made during the course of trial for a further medical examination of Pedek; (4) refusal of the trial court to permit defendants' counsel to show that certain medical bills of Pedek had been paid by the city of Milwaukee; and (5) excessive damages.
Defendants urge that there was no duty upon Wegemann to have signaled his intention to make a left turn because he was not apprised of the approach of Pedek from his rear due to absence of lights on the motorcycle. Sec. 85.175 (1), Stats., provides, "... No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement." (Emphasis supplied.)
In Swartz v. Sommerfeldt (1956), 272 Wis. 17, 74 N. W. (2d) 632, we held that a motorist is relieved from giving a signal of intention to make a left turn unless he can or shall have seen a car approaching from his rear. In view of the facts of the instant case, we consider this holding requires modification. The operator of a motor vehicle should not be relieved from the statutory duty to signal a left turn if he should have been apprised of the approach of a vehicle from his rear by exercise of either the sense of sight or sound. Wegemann testified that before attempting the left turn he heard the roar of Pedek's motorcycle and brought his own car to a momentary stop in the intersection because of it and then, not seeing anything to the rear, he started to make his left turn. The jury would have been well warranted in concluding that, having heard the roar of the motorcycle, Wegemann should have been apprised that it was approaching from his rear.
*62 The testimony was in sharp conflict as to whether Wegemann flashed a signal of intention to turn left by operating his directional lights. Defendants contend that the finding of the jury, that Wegemann was negligent in failing to give an appropriate signal of his intention to turn left, is against the great weight and clear preponderance of the evidence. This argument is entirely beside the point because a finding of a jury must be sustained on appeal if there is any credible evidence to support it. See Home Savings Bank v. Gertenbach (1955), 270 Wis. 386, 392, 71 N. W. (2d) 347, 72 N. W. (2d) 697, and cases cited therein.
In addition to finding Wegemann negligent with respect to failing to signal a left turn, the jury also found him negligent with respect to his position upon the highway immediately before turning to the left. Pedek's testimony supports such finding. This testimony is as follows: As Wegemann proceeded north toward the intersection his car was eight to 10 feet east of the yellow line marking the center of North Downer avenue. When 10 feet south of the south curb line of the intersection, Wegemann commenced a left turn. Pedek attempted to bring his motorcycle to a stop but collided with the Wegemann car within the intersection about three or four feet to the west of the center of the intersection.
Sec. 85.17 (2), Stats., required that Wegemann should have made his left turn "from the traffic lane immediately to the right of and next to the center of the highway," and that he should have passed "immediately to the left of the center of the intersection, passing as closely as practicable to the left of the center of the intersection." On the basis of Pedek's testimony not only did Wegemann fail to make the turn from the traffic lane next to the center line of the street, but he also "cut" the corner.
Defendants advance the further argument that it was error to have submitted such question in the verdict as to *63 Wegemann's position on the highway because the complaint failed to allege this as one of the grounds of negligence with which Wegemann was charged. No objection was made to the receipt of the testimony establishing Wegemann's position on the highway immediately prior to the collision. Before arguments to the jury, the trial judge called counsel into his chambers and submitted the special verdict to them so that counsel might voice any objections to the form of the verdict or suggestions for change. Counsel for defendants then made this statement:
"We will state, for the purpose of the record, we have no objection to the form of the questions proposed by the court. We do, however, object to any question relating to the negligence of Wegemann being included in the verdict on the ground that in our opinion, there is no credible evidence to sustain any finding by the jury of such negligence."
Such statement by defendants' counsel must be deemed a waiver of any right now to attack on this appeal the submission in the verdict of the question relating to Wegemann's position on the highway. Briggs Transfer Co. v. Farmers Mut. Automobile Ins. Co. (1953), 265 Wis. 369, 372, 61 N. W. (2d) 305. If counsel had timely objected to the inclusion of such question in the verdict on the ground that it was without the scope of the pleadings, plaintiff's counsel would have been apprised of such objection in time to have moved that the complaint be amended to conform to the proof adduced at the trial.
Defendants advance the further argument that the negligence of Pedek must be deemed equal to or greater than that of Wegemann. This same contention was urged on the former appeal and decided adversely to defendants. Pedek v. Wegemann (1956), 271 Wis. 461, 464, 74 N. W. (2d) 198. We do not consider that there was sufficient variation in the testimony on this second trial from that given at *64 the first trial to warrant a different determination on this point.
We now pass on to consideration of defendants' assignments of error that are contended require the granting of a new trial.
Defendants urge that error was committed by the refusal of the trial court to include in the special verdict a question inquiring as to whether Pedek was negligent in attempting to pass in the intersection. It is our conclusion that the refusal of such request was proper in the light of all of the evidence adduced bearing on this point.
Pedek testified that, when Wegemann commenced to make his left turn at a point 10 feet south of the south line of the intersection, Pedek was then 75 feet to the rear of Wegemann's car. The width of the intersection north and south was but 30 feet. Pedek was then traveling 40 to 50 miles per hour. Wegemann testified that he was traveling 20 to 22 miles per hour as he approached the intersection. If both vehicles had continued at these respective speeds through the intersection, the motorcycle would not have overtaken and passed the Wegemann car until the latter had cleared the intersection.
Pedek further testified that as soon as he saw Wegemann commence to make the left turn Pedek applied his brake and the motorcycle skidded, and that the impact occurred three to four feet west of the center line of the intersection. While Pedek placed the left side of the Wegemann car some eight to 10 feet east of the yellow center line of North Downer at the time it commenced its left turn, Wegemann testified that as he approached the intersection the left wheels of his car were but a foot or a foot and a half east of such center line. Wegemann further testified that upon hearing the roar of the motorcycle he brought his car to a complete stop a foot or two south of the center of the intersection *65 while it was still east of the imaginary center line. According to Wegemann, he then had barely started his car up to continue the left turn when the motorcycle "flashed by" and the two vehicles collided.
It is undisputed that a skid mark made by the motorcycle extended back 58 feet in length from the point of impact. The north end of such skid mark was three or four feet to the west of the center line of the intersection while the south end was two feet to the east of the center line of North Downer. The greater portion of such 58 feet of skid mark necessarily extended south of the south line of the intersection. This clearly establishes that Pedek, before entering the intersection, was attempting to stop his motorcycle and negatives any voluntary attempt on his part to pass the Wegemann automobile in the intersection.
During the course of plaintiff's argument to the jury the following incident occurred:
"Mr. Zelonky: You have heard the uncontradicted testimony of the doctors here, and you can rest assured that if this man isn't permanently disabled and crippled for the remainder of his life, the insurance company would have had not one, but fourteen doctors up here testifying that that is not a fact. In fact, Doctor Schmidt who examined this man at the request of the insurance company, never came in and testified.
"Mr. Arnold: Object to that, if the court please, and ask that the jury be instructed to disregard that remark.
"The Court: That is not part of the evidence.
"Mr. Zelonky: It is part of the testimony. Testimony of Mr. Pedek was that he was examined by the doctor.
"The Court: There is nothing in the record to show Doctor Schmidt was subpoenaed and requested to come in. The court will instruct the jury to disregard that statement.
"Mr. Zelonky: I can assure you then, they would have had fourteen doctors down here to testify to the contrary, irrespective of what doctor it is."
*66 Defendants urge that this was improper argument of such a prejudicial nature as to require a new trial. Apparently the objection voiced by defendants' counsel at the time of argument only went to the remark regarding Dr. Schmidt's failure to testify, and the trial judge instructed the jury to disregard such remark. We can observe nothing so prejudicial in the nature of the argument made as to require the directing of a new trial.
Defendants during the course of trial called to the stand some witnesses who had observed certain facts relating to the accident. Apparently defendants' counsel, in his argument to the jury, had commented upon the failure of plaintiff to subpoena such witnesses. Defendants charge that plaintiff's counsel in that part of his rebuttal argument dealing with this matter made a highly prejudicial inflammatory remark. So that we may consider such issue in its proper perspective we quote from the record as follows:
"Mr. Zelonky: So what happens? You heard the testimony of the witnesses here. I knew their testimony before the trial, and I will ask you members of the jury, and I stated this in the beginning, in my opening statement, so it isn't an afterthought, because Mr. Arnold said itI said to you there isn't a witness who could shed any light on the accident, and I still stand back of that statement, and that is why we didn't subpoena them. An insurance company with all of its millions can subpoena as many as they want.
"Mr. Arnold: If the court please, I object to that argument as being improper.
"The Court: Sustain the objection." (Emphasis supplied.)
The italicized sentence appearing in the above-quoted extract from the rebuttal argument of plaintiff's counsel was improper and cannot be condoned. It is unfortunate that the trial court did not go further than merely sustaining the objection to the remark by openly expressing the court's disapproval, and instructing the jury to disregard the remark. *67 However, inasmuch as such remark was only directed to a comparatively minor side issue of no particular materiality to the questions of the special verdict which the jury were required to answer, we cannot believe that the same resulted in prejudice to the defendants. We, therefore, do not consider a new trial should be directed because of it.
During the course of the trial defendants requested the trial court to order that Pedek submit to a medical examination by a physician of defendants' choice, which request was denied. The complaint alleged upon information and belief that Pedek would be unable to pursue his usual employment in the future because of his injuries sustained in the accident, and that he would suffer partial permanent disability from such injuries. Furthermore, before the first trial Pedek had at defendants' request submitted to a medical examination by Dr. Schmidt. Defendants contended that they were unable to call Dr. Schmidt as a witness at the second trial because of illness but no affidavit to that effect was filed. The record fails to disclose when defendants first learned of Dr. Schmidt's illness. The trial court held that defendants had failed to establish surprise as a ground for justifying their request that Pedek be ordered to submit to a medical examination during the course of trial. With this conclusion we agree. We find no abuse of discretion on the part of the trial court in denying the request.
There was received in evidence as an exhibit a subrogation agreement between Pedek and his employer, the city of Milwaukee, whereby the city was to participate in the amount to be recovered by Pedek in the action in the event of an outcome in Pedek's favor. It was stipulated by counsel that such exhibit should not go to the jury. Later, while Pedek was on the stand, he was asked by defendants' counsel as to whether Exhibit 6 consisted of bills rendered by Pedek's attending physician and Pedek answered in the affirmative. *68 Defendants' counsel then asked "You didn't pay those bills yourself?" This question was objected to by plaintiff's counsel. The trial court ruled in the absence of the jury that defendants would be accorded the right to use the subrogation agreement to show the jury that the city had an interest in the litigation to the extent of being reimbursed for expenditures made to or in behalf of Pedek, but that the objection to the materiality of the question as to who paid the particular medical bills covered by Exhibit 6 was sustained. While defendants possessed the right to show the interest of the city in the outcome of the litigation under our decision in Johannsen v. Peter P. Woboril, Inc. (1952), 260 Wis. 341, 51 N. W. (2d) 53, a question inquiring as to who paid a particular medical bill was not the proper way of establishing such interest. Even if it were, the sustaining of the instant objection certainly was not prejudicial to defendants in view of the ruling that defendants might use the subrogation agreement to establish such interest.
We come now to the issue raised that the damages found by the jury for permanent injuries, future pain and suffering, and future loss of earnings, in the sum of $30,000, are excessive.
Pedek was thirty-six years old at the time of the accident and his life expectancy was then 31.07 years according to the American Experience Table of Mortality set forth in sec. 314.07, Stats. His monthly salary from the Milwaukee police department immediately prior to the accident was $369.60 per month. Pedek's injuries consisted of a cranial injury with multiple fractures of the skull, a cerebral concussion, and multiple contusions and abrasions to the scalp and left forehead. Part of the fracture line was still visible in an X ray taken of his skull seven months after the accident. Approximately four years after the accident Pedek was experiencing headaches, dizziness, insomnia, and occasional nosebleeds. When he bends over he becomes faint and blacks *69 out easily. Sometimes these blackouts occur while straining at stool in the bathroom. There is competent medical testimony in the record that there is some permanent brain damage that causes these disabilities. He has permanently lost his sense of smell and his sense of taste has been permanently impaired.
The attending physician testified that the only work Pedek could undertake in the future was light work for short periods of time which would not necessitate any bending or undue stress or strain. During 1955 the Milwaukee police department attempted to have Pedek do some office work at one of the police stations but after two days he was forced to give it up because of headaches. The department then had him take a further medical examination and he was again certified as being on disability.
In view of the foregoing evidence we cannot find that the damages for permanent disability are excessive. We also find that the figure of $13,000 for approximately four years' loss of earnings between the date of accident and time of trial is supported by the evidence.
By the Court.Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609754/ | 275 Wis. 290 (1957)
ESTATE OF STECK:
OTTERSON, Executrix, Appellant,
vs.
FRASER, Executor, and others, Respondents.[*]
Supreme Court of Wisconsin.
February 7, 1957.
March 5, 1957.
*292 For the appellant there was a brief by Joseph J. O'Day, attorney, and A. W. Schutz of counsel, both of Milwaukee, and oral argument by Mr. Schutz.
For the respondent executor there was a brief by Churchill, Duback & Churchill of Milwaukee, and oral argument by Paul H. Duback.
For the respondent Marine National Exchange Bank there was a brief by Kaumheimer, Alt & Likert of Milwaukee, and oral argument by George H. Likert, Jr.
For the respondent remaindermen, except as below entered, there was a brief by Shaw, Muskat & Paulsen and R. J. Schimmel, attorneys, and F. H. Prosser of counsel, all of Milwaukee.
For the respondent minor remaindermen Patricia Ann Otterson and Mary Frances Otterson there was a brief and oral argument by O. A. Grootemaat of Milwaukee, guardian ad litem.
MARTIN, C. J.
Vincent Steck died February 16, 1954, at the age of seventy-eight, leaving his widow as his sole survivor. On September 18, 1951, he had executed a trust agreement (predated September 17, 1951) with the Marine National Exchange Bank, transferring to said bank securities *293 appraised at his death at $283,006.44. These assets remained in the sole possession of the trustee. The trust agreement provided that the net income therefrom was to be distributed to the donor as long as he lived, and upon his death to the donor's wife during her lifetime, subject to his power of appointment reserved therein to be exercised by his will. It also gave the trustee the right to invade the corpus on behalf of the widow if that should be deemed necessary to provide for her reasonable care and support. Upon the widow's death the remaining trust assets were to be distributed equally to remaindermen consisting of nieces and nephews of Vincent Steck and two grandnieces of his wife.
The trustee was given broad powers of administration and investment. The donor reserved the power of revocation and modification and a measure of control over investments during his lifetime. The donor subsequently executed two amendments to the trust agreement which are not material here.
On September 18, 1951, after execution of the trust agreement, Vincent Steck executed his last will and testament in which he gave to his wife certain personal property and effects, exercised the power of appointment reserved to him under the trust agreement to the extent of giving her the sum of $15,000, and specifically declined to exercise such power with respect to the balance of the trust estate. The remainder of his estate was designated as his "residuary estate" and was devised to the Marine National Exchange Bank, as trustee of the trust referred to, to be added to and become a part of the corpus of said trust. With respect thereto it was stated in paragraph 4 of the will:
"It is not my intention that `my residuary estate' shall be received by said Marine National Exchange Bank as a testamentary trustee or upon a testamentary trust, but the devise and bequest of `my residuary estate' is made to the aforesaid trust of September 17, 1951, as a distinct legal entity already in existence at the time of the execution of this will."
*294 The will was admitted to probate April 8, 1954, at which time the widow testified as to proof of heirship and H. Morley Fraser was appointed executor. On April 28, 1954, Martha Steck filed her election not to take under the will. On June 4, 1954, she filed her petition for amendment of proof of will alleging that the trust instrument was testamentary in character and should be admitted as Vincent Steck's last will and testament and that the will already admitted should stand as a codicil thereto.
Basically it is appellant's contention that the trust instrument was executed in accordance with the requirements of the statute of wills and thus is a valid testamentary disposition. The question presented is not whether the trust created by Vincent Steck may be interpreted as testamentary, but whether it can be interpreted as an inter vivos trust, which is what Vincent Steck expressly intended it to be. If his intention can be carried out we must do so.
Appellant relies upon Warsco v. Oshkosh Savings & Trust Co. (1924), 183 Wis. 156, 196 N.W. 829, where it was held that to constitute a valid trust there must be an alienation of the donor's property in such a way as to cause a benefit to accrue to a cestui que trust unless prevented by a condition subsequent resulting from a lawful revocation of the trust. In that case the agreement was held not to constitute a valid conveyance in trust because the donor had retained full dominion over the trust res, the trustee being a mere agent to hold the property.
After the decision in that case, sec. 231.205, Stats., was enacted, which provides:
"Any instrument declaring and creating a trust shall not, when otherwise valid, be held to be an invalid trust or an attempted testamentary disposition of property because the grantor or creator of the trust reserved to himself, to be exercised by him during his lifetime, the right to revoke, amend, alter, or modify the trust instrument in whole or in *295 part, or to require that sums from the trust principal be paid to or used for him either at his request or in the discretion of the trustee. Nothing in this section shall be construed as altering or changing in any way the existing law or rules of law relating to the taxation of transfers of property in trust."
It is argued that the statute did not have the effect of changing the rule since the holding of the Warsco Case was reaffirmed in 1945 by Tucker v. Simrow, 248 Wis. 143, 145, 21 N. W. (2d) 252, and appellant quotes therefrom the following language:
"The doctrine of Koppelkam v. First Wisconsin Trust Co. 240 Wis. 254, 3 N. W. (2d) 350, and Warsco v. Oshkosh Savings & Trust Co. 183 Wis. 156, 196 N.W. 829, is to the effect that, where substantially entire control of the property disposed of is retained by the person making the deposit until his death, a testamentary disposition has been attempted and any document making such disposition must satisfy the statute governing execution of wills."
In that case Mrs. Simrow gave to her bank a paper containing instructions to pay to specified persons, in case of her death, the amounts in her savings and checking accounts. There was no contention that these instructions constituted a trust. The position of the appellant was that they constituted a valid contract between the bank and Mrs. Simrow for the benefit of third persons, in the nature of the creation of a joint account or the deposit of certificates of deposit jointly payable to the depositor and a third person. The court held that the instructions did not constitute such a contract but were attempted testamentary dispositions, ineffective because their execution did not comply with the statute of wills. We cannot interpret the language quoted above as having any effect on the rules relating to trusts, since the document in the Simrow Case was in no sense a trust instrument and sec. 231.205, Stats., was neither involved nor considered.
*296 Appellant's argument that sec. 231.205, Stats., if held to change the rule of the Warsco Case, is unconstitutional, has no merit.
In creating the trust Vincent Steck reserved to himself during his lifetime the income therefrom and the right to revoke, amend, alter, or modify the trust instrument in whole or in part. The reservation of such powers is permitted by sec. 231.205, Stats., and the trust is not to be deemed testamentary on that ground. In addition the donor reserved the power of appointment by will and the right to subject to his approval the trustee's recommendations with respect to the retention, sale, or other disposition of the trust estate.
Appellant cites Restatement, 1 Trusts, p. 175, sec. 57 (2), where it is stated:
"Where the settlor transfers property in trust and reserves not only a beneficial life estate and a power to revoke and modify the trust but also such power to control the trustee as to the details of the administration of the trust that the trustee is the agent of the settlor, the disposition so far as it is intended to take effect after his death is testamentary and is invalid unless the requirements of the statutes relating to the validity of wills are complied with."
At page 179 the following comment is made on subsection (2):
"The rule stated in subsection (2) is applicable, however, only where the settlor reserves such power of control that the transferee is his agent. The intended trust is not testamentary merely because the settlor reserves power to direct the trustee as to the making of investments or the exercise of other particular powers, or power to appoint a substituted trustee."
As found by the trial court, the trust agreement gave to the trustee broad and extensive administration and investment powers. Paragraph 9 thereof states that "The trustee in its administration hereunder shall have full and complete *297 authority to do any and all things necessary for the orderly and efficient administration of the trust estate, and without limiting the generality thereof by the following enumeration, shall, to that end, be clothed with the absolute rights, powers, and discretions:" To retain indefinitely all trust assets, to invest and reinvest without restriction, to permit trust funds to remain uninvested, to carry any and all of the assets in its own name, to vote stock, to borrow money, to lease or exchange property, to pay, settle, or compromise claims against the trust estate, etc.
The donor required only that upon the trustee's periodic analyses of the assets it should communicate to him its recommendations based thereon in writing "and the donor may within thirty days thereafter by notice in writing to the trustee prescribe the investment thereof and/or instruct the trustee in respect of the retentions, sales, and dispositions if any so recommended." If the donor should fail to so prescribe or instruct the trustee, the trustee was to put its recommendations into effect.
This instrument was drawn by competent legal counsel. It would do violence to the words used therein to say that the investment control so reserved by the donor made the trustee his mere agent. The donor did not retain the power to deal with the trust as he pleased; his control over the investments was limited to approval or disapproval of the trustee's recommendations. Even where the powers conferred on the trustees by the trust instrument were to be exercised only upon written instructions of the settlor, in Stouse v. First Nat. Bank (Ky. 1951), 245 S. W. (2d) 914, 918, 32 A. L. R. (2d) 1261, 1267, the validity of the trust was upheld under the rule of the Restatement. It was there said:
"Reservation by the settlor of power to approve investments likewise has been held not to impart testamentary character to a trust. [Citing cases.]
*298 "Both Scott and Bogert recognize that the degree of reserved control is the determining factor in the question of whether an instrument creates a valid trust or only a mere agency. See Scott on Trusts, sec. 57.2; Bogert on Trusts and Trustees, secs. 103, 104.
"We are of the opinion that the power reserved by [the settlor] to control the trustees in their administration of the trust, which power could be exercised only within the limits and in accordance with the terms of the trust instrument, was not of such a degree as to reduce the trustees to the status of agents."
Nor does the reservation by the donor of the power of appointment make the trust invalid. The trustee's powers were no more affected thereby than by the donor's retention of the power to revoke.
The trust created by Vincent Steck contained all the necessary elements defined in Sutherland v. Pierner (1946), 249 Wis. 462, 467, 24 N. W. (2d) 883, as follows:
"(1) A trustee, who holds the trust property and is subject to equitable duties to deal with it for the benefit of another; (2) a beneficiary, to whom the trustee owes equitable duties to deal with the trust property for his benefit; (3) trust property, which is held by the trustee for the beneficiary."
Marine National Exchange Bank, an experienced corporate fiduciary, received the trust principal upon execution of the trust agreement, accepted the duties of management therein conferred, and exercised them for the benefit of the donor for approximately two and one-half years before his death. This was no mere "illusory device;" it was in every sense an active trust, taking effect and serving a proper purpose during the life of the donor. The fact that the trust instrument also contained testamentary provisions does not change its character from that of an inter vivos trust to that of a last will and testament.
*299 "The mere fact that the agreement provided for disposition of the trust property upon the settlor's death was not regarded as a circumstance of any importance in view of the creation of rights during his lifetime. See 1 Bogert, Trusts and Trustees, sec. 103; 1 Scott, Trusts, p. 338, sec. 57.1." Koppelkam v. First Wisconsin Trust Co. (1942), 240 Wis. 254, 257, 3 N. W. (2d) 350.
Appellant contends that because the will bequeaths the residue of Vincent Steck's estate to the trustee, the trust was incorporated in the will by reference. This is exactly what the testator did not do, expressly stating in his will that it was not his intention that the residue should be received by the trustee as a testamentary trustee but as the trustee of a "distinct legal entity already in existence." To apply the doctrine of incorporation by reference in this situation would be to ignore that expressed intent.
It is further contended that to hold this trust instrument a valid inter vivos trust is to open the door to fraud upon the widow. The argument has no place here. As stated by the trial court, "There has been no allegation by the petitioner that any fraud existed in the execution of the trust instrument in question and the court can find no evidence to sustain such finding had the allegation been made." In establishing the trust Vincent Steck provided that his widow should receive the entire income from its assets, almost $12,000 yearly, and the right to invade the corpus should her needs require it. This hardly evinces an intention to deprive his wife of her just share in his estate, even though, as the trial court commented, "he may have had some apprehension and concern as to the manner in which she was to receive the same."
The fact that the widow received less at his death under the trust than she would have if he had disposed of all his personal property by will is not in itself indicative of fraud on her.
*300 "... the amount of proof necessary to stamp such a transfer as fraudulent depends in every instance upon the particular facts existing in each case." Sederlund v. Sederlund (1922), 176 Wis. 627, 634, 187 N.W. 750.
There is neither allegation nor proof of fraud and the trust being otherwise valid, the determination of the trial court must stand.
By the Court.Order affirmed.
NOTES
[*] Motion for rehearing denied, with $25 costs, on May 7, 1957. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609752/ | 90 So. 2d 118 (1956)
Lennie Lee JOYNER, Petitioner,
v.
CITY OF LAKELAND, Florida, a Municipal Corporation, Respondent.
Supreme Court of Florida. Division A.
October 24, 1956.
*119 John W. Stanford of Oxford & Oxford, Lakeland, for petitioner.
J. Hardin Peterson, Jr., Lakeland, for respondent.
HOBSON, Justice.
This matter arises upon a petition for certiorari seeking review of an order of the circuit court affirming a judgment of the municipal court of the City of Lakeland, Florida, finding petitioner guilty of possessing lottery paraphernalia.
Although certiorari must be denied under the circumstances here disclosed, we have seen fit to depart in this case from our custom of denying certiorari without opinion, in view of the importance of the matter presented to the administration of criminal justice.
On March 25, 1955, a search warrant was issued reading as follows:
"In the Municipal Court of the City of Lakeland, Florida.
"City of Lakeland, Florida, a Municipal Corporation,
Plaintiff,
vs.
John Doe
Defendant.
"SEARCH WARRANT
"In the name of and by Authority of the State of Florida
"To: E.T. Pickett Jr. , A police officer of the City of Lakeland, Florida.
"Whereas, C.B. Wallis of the City of Lakeland, Florida has this day made oath before me, stating as follows:
"1. That he is a citizen of the City of Lakeland, Florida.
"2. That he has reason to believe and does believe that John Doe has in his possession, unlawfully, and/or for the purpose of sale in the City of Lakeland, Polk County, Florida, intoxicating liquor, (which County has heretofore voted against the sale of intoxicating liquor,) or on which the revenue tax of the State of Florida *120 has not been paid; and that said intoxicating liquor is located at 524 West Memorial Blvd., in the City of Lakeland, Polk County, Florida.
"3. That the aforesaid belief of affiant is based on the following facts: C.B. Wallis did on the 23rd day of March, 1955 purchase one half pint of untaxed whiskey from John Doe upon the premises of 524 West Memorial Blvd. and did pay him $1.00 (one dollar) in US monies for said * * * half pint of untaxed whisky. Said 524 West Memorial Blvd. being a one story wood frame dwelling house painted white with open front porch and black asphalt shingle roof. Said house has an unpainted front screen door and is located on the South side of the street and faces North. Said house is the fourth house on the South side of the street East of intersection of N. Texas Ave. and West Memorial Blvd. contrary to the ordinances of the said City in such case made and provided and against the peace and dignity of said City.
"4. J.W. McPhail a Police Officer of the City of Lakeland, Polk County, Florida, having made application for the issuance of a Search Warrant to search the said John Doe and/or the said premises, which premises the affiant believes that the said John Doe has in his control and possession, for the purpose of entering said premises and searching said John Doe and/or said premises for the said intoxicating liquor therein and thereon.
"These are therefore, to command you to apprehend and search the said John Doe, and to enter and search the said premises in the possession of or occupied by the said John Doe and to seize any and all intoxicating liquor found in the unlawful possession of the said John Doe or upon said premises for the purpose of sale in said City and County, or on which the revenue tax of the State of Florida has not been paid, and bring the said John Doe together with any intoxicating liquor so found before me to be dealt with according to law.
"I expressly authorize that this warrant may be executed by being served either in the day-time or the nighttime as the exigencies of the case demand and require.
"Given under my hand this 25 day of March A.D. 1955.
" /s/ James S. Welch
Municipal Judge of the City of
Lakeland, Florida"
On April 2, 1955, this warrant was executed and return was made as follows:
"Inventory
"State of Florida,
County of Polk
City of Lakeland.
"Received this Search Warrant on the 2 day of April, A.D., 1955 and served same upon the 2 day of April, A.D., 1955, by reading the contents thereof to Lennie Lee Joyner upon said premises and explaining the contents of said search warrant, and also furnishing to him a copy thereof; and after searching said premises as directed by and described in said search warrant, there was found thereon the following articles, to-wit: Five pads with Lottery Numbers on the pads. Fourteen sheets of paper With Lottery Numbers on them. $191.00 in Paper Money and $17.55 in Silver Money. Said articles were seized under and by virtue of said search warrant and taken into the possession of the undersigned; that said articles so seized are inventoried as above stated and said inventory is made a part of this return, a copy of said inventory was left with the said Lennie Lee Joyner
*121 "Witness my hand and sworn to this the 2 day of April, A.D., 1955.
"s/ E.T. Pickett, Jr.
A Police Officer, City
of Lakeland, Florida
"Subscribed and sworn to before me, this 2 day of Apr, 1955.
s/ A.M. Davis, Clerk
Notary Public, in and for Said State
and County. Municipal Judge-Clerk-City
of Lakeland, Florida."
Petitioner first contends that the search warrant quoted above does not sufficiently describe the place to be searched, in that paragraph three of the warrant does not actually show that the place to be searched is in the city of Lakeland, Florida. Of course, the second paragraph of the warrant makes clear reference to that city, and reading the two paragraphs together there could be little doubt in the mind of the officer to whom the warrant was delivered for execution that the place to be searched was within the city of Lakeland. The warrant should be read as a whole, Lowrey v. U.S., 8 Cir., 161 F.2d 30, certiorari denied, 331 U.S. 849, 67 S. Ct. 1737, 91 L. Ed. 1858. In Bonner v. State, Fla., 80 So. 2d 683, 684, we stated in part: "`Any designation or description known to the locality that points out the place to the exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies the constitutional requirement.'" It is evident that the warrant here under consideration meets this test.
Petitioner next urges that the facts recited in the search warrant are insufficient to show that probable cause existed to believe the house to be searched was being used for any unlawful purpose within the jurisdiction of the municipal court of Lakeland. He contends that because of the use of the word "premises" in the warrant it is impossible to determine where the alleged unlawful sale occurred, i.e., whether inside or outside of the house. Referring again to the search warrant, we note that while the purchase of untaxed whiskey was alleged to have taken place "upon the premises of 524 West Memorial Blvd." this general statement is immediately qualified by the words "Said 524 West Memorial Blvd. being a one story wood frame dwelling house painted white with open front porch and black asphalt shingle roof." Thus the "premises" are defined as being for practical purposes the house, which is specifically described. The case of Rignall v. State, 134 Miss. 169, 98 So. 444, 445, relied upon by petitioner is distinguishable on its facts in that the warrant was merely to search the "premises" of a person "without other description, and without any words of limitation as to occupancy or use, or otherwise, and without any designation of the county in which such premises are located * * *." And see the subsequent case of Matthews v. State, 134 Miss. 807, 100 So. 18, in which the Rignall case was distinguished and limited. We are of the opinion that the factual recitation in this warrant is sufficient to show probable cause.
It is next argued by petitioner that the search warrant must contain a command that the search be made forthwith. This contention is based upon F.S. § 933.07, F.S.A. which provides in part as follows: "The judge or magistrate * * shall thereupon issue a search warrant * * * to any * * * police officer * * * commanding the officer or person forthwith to search the property described in the warrant". (Emphasis supplied.) The words of command in the warrant under consideration, however, follow verbatim the language required by F.S. § 923.12, F.S.A., which prescribes the form of a search warrant, and reads in part: "These are, therefore, to command you * * *."
It is next contended that the warrant was rendered invalid by the lapse of time of eight days between its issuance and execution. Whether or not this delay in execution was unreasonable was a matter within the sound discretion of the municipal *122 judge, who is not shown to have abused it. Although we have not before passed upon this matter, it has been frequently decided by the federal courts and on the basis of the federal decisions we are inclined to hold, as we do, that the delay of eight days was not unreasonable. See Dixon v. U.S., 5 Cir., 211 F.2d 547, and cases therein cited; United States v. Fitzmaurice, 2 Cir., 45 F.2d 133; and Elrod v. Moss, 4 Cir., 278 F. 123. See also 79 C.J.S., Searches and Seizures, § 83, page 899.
It is next contended that in the execution of a search warrant an officer may not seize unlawful articles in plain sight, where the search warrant commands seizure of entirely different articles and does not mention the articles actually seized. Here the search warrant commanded the officer "to seize any and all intoxicating liquor". Upon executing the search warrant, the officers found no intoxicating liquor. Four bolita pads, however, were found exposed on the top of a table, and in the course of the search the petitioner stated that he did not have any whisky on the premises but he had bolita, and asked the officers "not to bother it". Thus in the course of a search, under a valid warrant, issued upon probable cause, the officers discovered a crime being committed in their presence. It is well settled that under these circumstances the officers have authority to seize articles not described in the search warrant, where such articles are contraband and possession of them is unlawful. Harris v. U.S., 331 U.S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399. Compare Gildrie v. State, 94 Fla. 134, 113 So. 704, wherein the search warrant under which the search was conducted was invalid in that no description of the things to be seized was given either in the affidavit or in the warrant, and the search was therefore unreasonable and invalid from its inception. The situation disclosed by this record is exactly that contemplated by the Harris case, and we hold that no error has been shown in the ruling of the trial court upon this point. See also 79 C.J.S., Searches and Seizures, § 83, page 903, and Annotation, 169 A.L.R. 1419.
It is next contended that the return and inventory on the search warrant in this case is insufficient as a matter of law. F.S. § 933.12, F.S.A., requires the officer to make affidavit that the inventory contains a true and detailed account of all property taken under the warrant. The inventory herein does not contain such a statement. We have not before had occasion to consider the point here raised, but the federal courts have held that the preparation of a return is merely a ministerial act and that a defect therein does not make the warrant defective. Rose v. U.S., 6 Cir., 274 F. 245, certiorari denied, 257 U.S. 655, 42 S. Ct. 97, 66 L. Ed. 419. See also 79 C.J.S., Searches and Seizures, § 84. Moreover, the record shows that in this case the search and seizure were made in the presence of the petitioner, and that a copy of the inventory was given to him.
Finally, petitioner contends that a search warrant commanding the search of a dwelling house must contain a recital of a finding by the issuing magistrate that the sworn proof, or affidavit, supporting the search warrant has been furnished by a credible witness. F.S. § 933.18, F.S.A., requires that no warrant for the search of any private dwelling shall issue except upon sworn proof by affidavit of some credible witness, but nowhere does it require a finding by the issuing magistrate that the witness making the sworn proof is credible. Certainly, if the magistrate has reason to doubt the credibility of the witness, no warrant should issue. Therefore, implicit in the very issuance of a warrant is a finding by the issuing magistrate that the proof was furnished by a credible witness. We see no reason to require more than this, and the legislature apparently did not.
Certiorari is denied.
DREW, C.J., THOMAS, J., and ROWE, Associate Justice, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609757/ | 90 So. 2d 65 (1956)
231 La. 1
CHARLES TOLMAS, Inc.
v.
POLICE JURY OF THE PARISH OF JEFFERSON.
No. 42255.
Supreme Court of Louisiana.
June 29, 1956.
Rehearing Denied September 28, 1956.
*66 Gerson Z. Tolmas and A. P. Schiro, III, New Orleans, for appellant.
Frank H. Langridge, Dist. Atty., Gretna, for appellee.
PONDER, Justice.
This is a suit to set aside an expropriation by the Police Jury of the Parish of Jefferson of plaintiff's property for a proposed road under the provisions of section 3369 et seq. of the Revised Statutes of Louisiana of 1870, LSA-R.S. 48:492 et seq., and for damages in the sum of $4,526.49 sustained by the plaintiff as a result of the taking; in the alternative plaintiff asks that the amount of $2,000 awarded for the property by the Police Jury be increased to $15,000. From a judgment denying plaintiff's demands as to the setting aside of the expropriation but allowing special damages in the amount of $1,625, the plaintiff has prosecuted this appeal.
*67 On February 16, 1940, the plaintiff-appellant herein purchased a triangular portion of ground fronting Metairie Road in the Parish of Jefferson having a frontage of 204 feet front on Metairie Road, 193 feet, 1 inch front on 42nd Street, and 65 feet 11 inches on the third side of the triangle. During the summer of 1945 plaintiff corporation (Charles Tolmas, Inc.) decided to develop its property by constructing thereon certain commercial stores and in pursuance thereof had drawn certain plans and specifications. In the latter part of October 1945 appellant began the actual construction by removing the stumps, grading the property and digging trenches to lay foundations necessary for the said build. On December 3, 1945 the Police Jury adopted Ordinance No. 904 under the provisions of Section 3369 et seq. of the Revised Statutes of Louisiana of 1870 authorizing a jury of freeholders to trace and lay out a road or roads at the dead-end of 42nd Street, Bonnabel Place, so as to connect same with Metairie Road and to further lay out an additional road to widen 42nd Street from the point of the triangle known as Square 105, to Metaire Road. On Tuesday, January 22, 1946, at midnight, the appellant received a letter from the defendant signed by Mr. Errol E. Buckner stating that the Jury of Freeholders would meet on the site of the property on Thursday, January 24, 1946, at 3:30 p. m. "to determine the amount of land to be acquired by the Parish to enable it to re-direct 42nd Street." This letter further read: "Inasmuch as this project is expected to require some of the ground you own between 42nd Street and Metairie Road, you are advised that there will be a meeting * * *." On the morning of Wednesday, January 23, 1946, by special delivery mail, appellant replied to Mr. Buckner advising him of receipt of the letter of January 22nd, and stating that his (appellant's) attorney, Mr. Louis Yarrut, was out of town and would return on Monday and asked postponement of the meeting of the Jury of Freeholders until that time. No reply was received by the appellant. On Thursday, January 24, 1946, the Jury of Freeholders met and approved a road as laid out by the Parish Engineer and placed a value thereon in the sum of $2,000. On Friday, January 25, 1946, the next day, the Police Jury met, without any notice being given to appellant, and adopted Ordinance No. 908 which approved and adopted the recommendations of the Jury of Freeholders expropriating all of plaintiff's property. On the evening of Monday, January 28, 1946, at 8 o'clock, the appellant Charles Tolmas, president of plaintiff corporation, received an anonymous phone call telling him that the trenches that were dug on his property preparatory to pouring the concrete for the foundation which was scheduled to take place on the morning of January 29th, were filled in. Mr. Tolmas testified that he supposed vandals had done this damage and he had his son, an attorney, phone the sheriff and report the damage. On Tuesday, January 29, 1946, Mr. Tolmas received a phone call from his electrician telling him that the construction work on this ground was being levelled by two bulldozers and several tractors. Immediately Mr. C. Tolmas went to the scene with his wife and two sons and found that a deputy sheriff, who ordered him off of the property at gun-point, was supervising the demolition and levelling of the construction on orders of the Police Jury. At the time this occurred, there was a warehouse and toolhouse constructed on the property, the steel reinforcing rods were in place ready for the foundation to be laid, 43,000 bricks were on the lot for the construction with wheelbarrows and tools and the forms were all in place ready for the pouring of the concrete that morning. The ground was completely levelled by the bulldozers and tractors and the tools and construction were ploughed under. The only publication of the adoption of Ordinances No. 904 and 908 appeared in the Jefferson Democrat on February 9, 1946, some eleven days after the physical taking of the property. On February 15, 1946 the Police *68 Jury sent through the regular mails a letter addressed to the appellant informing it of the taking and enclosed a check for $2,000. This check was promptly returned by the plaintiff-appellant and suit was filed to set aside the expropriation on March 1, 1946.
We are not impressed with the manner in which the Police Jury sought to expropriate this property and the speed and haste in which it was accomplished. It must be emphasized that the first and only notice given to appellant was on Tuesday, January 22, 1946, at midnight and this notice stated that a portion of the ground was sought to be expropriated and a meeting of the Jury of Freeholders would be held on Thursday, January 24, 1946, at 3:30 p. m. The Police Jury met, without notice to the appellant on Friday, January 25th and resolved by Ordinance 908 to take all of the property owned by appellant by expropriation. Without notice to the appellant, this body dispatched bulldozers and tractors to the property on January 28th and 29th to demolish the construction that had already been begun. Appellant contends that the taking was illegal and unconstitutional because he was not timely notified of the meeting of the Police Jury as well as the meeting of the Jury of Freeholders.
It is to be noted that in Revised Statutes, § 3369 et seq. no provision is made for notice to the landowner and opportunity to appear before the jury of freeholders concerning the laying out of a road. In the case of Police Jury of St. Martin Parish v. Kidder, 4 La.App. 296, it was held in regard to these sections of the Revised Statutes that the law on the subject intends that the owner must have timely notice since the Constitution in Article 1, Sections 2 and 6LSA guarantees this procedure. Although in the Kidder case the landowner received no notice whatsoever, the opinion points out that under the law not only must he be furnished notice of the meeting of the jury of freeholders but notice also of the meeting of the police jury for the reasons as stated by the court: "these sections of the Revised Statutes contemplate notice to the owner and opportunity for him to appear before the jury of freeholders concerning the course of the road and the damage to be paid on account of the same, before the right-of-way can be taken for the road. And as the police jury has power under the law to revise, correct or change the recommendations of the jury of freeholders, as to the course of the road, also as to the amount of damages which should be allowed on said account, the owner must have notice and opportunity to also appear before them at the time the report of the jury of freeholders is being considered and before acting thereon." This pronouncement is logical and sound for it may well be that the recommendations of the jury of freeholders would be altered, changed, or entirely rejected. The Constitution, Articles 1, Sections 2 and 6 assures that the essential elements of due process of law are notice and an opportunity to be heard. It is basic law that the essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. 12 Am.Jur., Constitutional Law, sec. 573, pp. 267, 268; Mongogna v. O'Dwyer, 204 La. 1030, 16 So. 2d 829, 152 A.L.R. 162. The following language found in Dupuy v. Tedora, 204 La. 560, 573, 15 So. 2d 886, 890, is pertinent herein, viz.:
"The `due process of law' provision in the Constitution is designed to exclude oppression and arbitrary power from every branch of the government. `"Due process of law" in judicial proceedings, means a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the conduct and enforcement of private rights.' See Due Process of Law, in 13 Words & Phrases, Perm. Ed., p. 584. It means that no person shall be deprived of life, liberty, property, or of *69 any right granted him by statute, unless the matter involved shall first have been adjudicated against him upon trial conducted according to established rules regulating judicial proceedings. It forbids condemnation without a hearing."
The appellee contends that the notice of January 22, 1946 was sufficient. In this we cannot agree. The testimony in the record shows that some members of the jury testified that they were under the impression that the letter of January 23, 1946, written by Mr. Charles Tolmas to Mr. Buckner asking for a postponement, was answered and had they known that it was not answered they may not have proceeded in such haste. Mr. Holtgreve was not called to testify although it is alleged that he had several conversations with Mr. Tolmas. Mr. Buckner likewise was not called to testify and although defendant's counsel stated in argument that every effort was made to locate him this seems highly improbable in view of the fact that this case was in litigation and set for trial on many occasions over a period of ten years. Mr. Charles Tolmas denied receiving any other notice or communication whatsoever and neither Mr. Holtgreve nor Mr. Buckner, whom the jurors testified they instructed to answer Mr. Tolmas, were produced as witnesses to rebut this damaging testimony. It is worthy of note that in the case of Police Jury of Parish of St. James v. Borne, 198 La. 959, 5 So. 2d 301 (although the decision is not in point herewith) that two notices were given the landowner, one to attend the meeting of the Jury of Freeholders, and one to appear before the meeting of the Police Jury. We think this in line with the intendment of the law.
Another reason advanced by appellant that the taking is unconstitutional, null and void, and of equal importance as the lack of notice, is the allegation that there was no payment prior to the taking in plain violation of Article 1, Section 2 of the Constitution of 1921. This section of the Constitution provides: "No person shall be deprived of life, liberty or property, except by due process of law. Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid." (Italics mine.) Article 2629 of the LSA-Civil Code also provides: "This price ought to be paid to the owner before the expropriation, that is to say, before he has delivered the possession, or it has been finally taken from him, in case of resistance." Article 2634 of the LSA-Civil Code provides that the value of the property shall be deposited with the sheriff, before the property can be taken.
In the case of Bickham v. City of Shreveport, 156 La. 648, 651, 101 So. 8, 9, cited and relied upon by appellant, this Court stated:
"The fact that the city has the right to expropriate the property, or that property which might have been expropriated cannot be recovered if once taken (the owner being then restricted to a claim for its value), does not legalize such a taking thereof against the will of the owner. Under the Constitution of this state property expropriated must be paid for in advance of the taking. Const.1921, art. 1, § 2; Const.1898, art. 167. The taking of property for levee purposes is the only exception to this rule. Const.1921, art. 16, § 6, p. 115."
This same ruling was reiterated in De Bouchel v. Louisiana Highway Commission, 172 La. 908, 135 So. 914. In State ex rel. Cotting v. Sommerville, 104 La. 74, 28 So. 977, 982, relying on the provisions of Article 167 of the Constitution of 1898, this Court declared, "that `private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.' * * * A court is bound to assume that the deprivation of a right secured to a person by constitutional guaranty works him per se an irreparable injury." *70 Many years ago in the case of Police Jury of Jefferson v. D'llemecourt, 7 Rob. 509 it was held by this Court that Arts. 489, 2604-2611 of the Civil Code prescribing the mode of expropriation, and forbidding it without indemnity to the owner, have a constitutional sanction, and cannot be violated by parochial or state legislation.
The record herein shows that the Police Jury on January 25, 1946 met and adopted an ordinance to expropriate this property and set the damages at $2,000. On January 28th and January 29, 1946 the Police Jury took actual, physical possession with resistance from the owner, appellant herein. No payment was made until February 15, 1946 when a check was sent through the regular mails to appellant, which was promptly returned. It must, therefore, be concluded that the constitutional provision set out in Article 1, Section 2 of the Constitution of 1921 has not been complied with and the taking is therefore illegal, null and void and must be set aside.
It is the settled rule of this Court that proceedings for the expropriation of private property for public use are in derogation of common rights and all the formalities prescribed by law must be strictly observed. Mayor, etc., of City of Jefferson v. Delachaise, 22 La.Ann. 26; Calcasieu & S. Ry. Co. v. Witte, 224 La. 1091, 71 So. 2d 854.
After reading the record in this case it does not appear that there was any necessity for the taking or that the property has ever been used for the purpose for which it was supposedly taken. However, it is not necessary to pass on this point in view of our conclusions set forth above.
For the reasons assigned, the judgment of the lower court is reversed and set aside; the expropriation proceedings are annulled and set aside and the plaintiff, Charles Tolmas, Inc., is decreed to be the owner of the following described property: A certain triangular portion of ground situated in the Parish of Jefferson, State of Louisiana, being the Northwest corner of original Square No. 105 in the Town of Bath, which said triangular piece or portion of ground measures 204' front on Metairie Road, 193'1" front on Street coming to a point on one side with Metairie Road and 65'11" on the other side line dividing it partly from property now or formerly of R. C. Lawes, the whole as per sketch of survey made by C. A. Roberts, Civil Engineer and Surveyor, dated November 12, 1923, a blue print of which is annexed to an act passed before Bus Rouen, Notary Public, dated December 20, 1923. All legal costs to be paid by the defendant.
McCALEB, J., dissents and will assign written reasons.
SIMON, J., dissents.
FOURNET, C. J., absent.
McCALEB, Justice (dissenting).
I think the trial judge correctly concluded that this case is controlled by Fuselier v. Police Jury of Parish of Iberia, 109 La. 551, 33 So. 597, 599. There, as here, the police jury, proceeding under Sections 3368 and 3369 of the Revised Statutes of 1870 (now R.S. 48:491-493), appointed a jury of freeholders to lay out a parish public road and assessed as damages $35 per acre to the owners of the land over which it passed. This action was approved by the police jury and it ordered the appropriation of the land over which the road was to pass, directing payment of the damages to the owners. The plaintiff resisted the taking and proposed occupation of her land for road purposes and brought suit for annulment of the appropriation proceeding, and for an injunction restraining the police jury in the premises. Upon denial of the relief sought in the district court and the Court of Appeal, the case reached this Court on certiorari. In affirming the rulings of the *71 courts below, this Court found that Sections 3368 and 3369 of the Revised Statutes of 1870 authorized the appropriation of such lands as reasonably necessary for the laying out of public parish roads upon the payment to landowners of the damages to be assessed by a jury of freeholders and that the sections were not in conflict with Articles 2626 through 2641 of the Civil Code which deal with the expropriation of property by public bodies and certain corporations impressed with the public interest. In resolving thus, the opinion pointed out that, in the appropriation of lands needed for a parish road, the police jury acquires only the use of the soil for the public purpose or a mere servitude, as distinguished from a taking by expropriation, which vests an indefeasible title or estate in the public body exercising the right. It was observed:
"In the one case, where complete expropriation is had under the articles of the Code, it would seem that the fee, itself, of the land, so far as the purpose for which it is wanted is concerned, is taken, while in the other, to wit:the laying out of a public road under Rev. St. § 3369, the fee remains altogether in the owner of the soil. Civ.Code, art. 658; Bradley v. Pharr, 45 La.Ann. 426, 12 So. 618, 19 L.R.A. 647."
In addition, the Fuselier opinion fully answers the questions raised by plaintiff in this case anent the constitutionality of Sections 3368 and 3369 of the Revised Statutes of 1870. It states:
"The owner, over whose lands a public road is ordered laid pursuant to the authority of Rev.St. § 3369, has no just cause of complaint on the score of the ex parte character of the proceedings. He may have `his day in court.' He is not bound irrevocably by the action of the police jury, nor by that of the jury of freeholders appointed to lay out the road and assess the damages. Section 3370, Rev.St. (now R.S. 48:494), gives him the right to go into court and contest the action taken, and jurisprudence has recognized and vindicated this right. See authorities hereinbefore cited."[1] (Words in parenthesis mine).
The Fuselier case has been cited with approval by this Court on numerous occasions and the correctness of the decision, has been upheld despite vigorous attack. See Police Jury of Evangeline Parish v. Thibodeaux, 158 La. 573, 104 So. 372 and dissent of O'Niell, C. J., therein. The importance of the Fuselier decision to the case at bar cannot be gainsaid. Since it holds that a taking under Sections 3368 and 3369 is a legislative appropriation and not a judicial expropriation (see 18 Am.Jur. verbum "Eminent Domain", sections 310 and 311), it exposes the error of the Court of Appeal's opinion in Police Jury of St. Martin v. Kidder, 4 La.App. 296 (heavily relied on by the majority), to the effect that notice to the landowner of the proceedings (both of the jury of freeholders and the police jury) is essential in order to render the statute constitutional. Obviously, the Kidder case would rewrite the statute, as it neither provides for nor requires the service of notice or citation.
But, even so, this case is clearly distinguishable from the Kidder case in that, there, no notice at all was given of any of the proceedings whereas, here, plaintiff admittedly received written notice from the jury of freeholders that his property was to be taken. The contention that the notice of the meeting of the jury of freeholders was too short in point of time to be effective does not impress me and the majority's resolution that plaintiff should have had another notice from the police jury, prior to its consideration of the action of the jury of freeholders, finds no support in law, being *72 borrowed from dictum to that effect in the Kidder case. Certainly, no requirement for this latter notice is to be found in the statute. Indeed, it is not seen that any further action of the police jury is contemplated after it has appointed the jury of freeholders.
The majority also hold that the appropriation of plaintiff's property was null and void for the reason that it was violently taken prior to payment therefor in contravention of Section 2 of Article 1 of our Constitution. Conceding that the police jury acted prematurely in taking possession of the land on January 28, 1946, I think it clear that its possession was illegal only during that period of time when the constitutional mandate for prepayment of compensation had not been metthat is, prior to February 15, when plaintiff was tendered the amount assessed as damages by the jury of freeholders. See Ouachita Parish School Board v. Clark, 197 La. 131, 1 So. 2d 54, where the court held that the fact that property was illegally appropriated by a public body does not operate as a bar to subsequent expropriation proceedings. See also Carrollton R. Co. v. Avart, 9 La. 205; Gay v. New Orleans Pacific Ry. Co., 32 La. Ann. 277 and New Orleans Ry. & Light Co. v. Lavergne, 138 La. 949, 70 So. 921.
The majority holding seems to be that failure to pay compensation in advance of the taking was fatal to the proceedings and that subsequent compliance by a tender of payment cannot restore their legality. But the cases relied on do not sustain the ruling.
Bickham v. City of Shreveport, 156 La. 648, 101 So. 8, stands for the proposition that the right to expropriate does not legalize the taking of property without payment in advance therefor. It does not stand for the proposition that such taking may not become lawful upon subsequent expropriation proceedings and payment of just compensation.
In De Bouchel v. Louisiana Highway Commission, 172 La. 908, 135 So. 914, the Court properly held unconstitutional, null and void a statute authorizing the highway commission to take possession of property before expropriation and payment, in the event the owner and the commission should not agree upon the price thereof, since such legislation authorized action in direct contravention of a constitutional provision.
And State ex rel. Cotting v. Sommerville, 104 La. 74, 28 So. 977, merely granted to relator, whose property had been appropriated by two railroad companies, the right to appeal suspensively from an order of the district court dissolving an injunction on bond enjoining the railroad companies from taking possession of relator's property without expropriation proceedings and payment of compensation. In other words, the court simply recognized the right of a private citizen to enjoin an unlawful appropriation of his property.
But where, as in the instant case, all the legal requirements for appropriation have been met, I cannot accede to an invalidation of the entire proceedings merely because possession was taken prematurely and illegally.
Since it is my view that the proceedings were conducted in conformity with Sections 3368 and 3369 of the Revised Statutes of 1870, it would seem to follow that plaintiff is entitled, in addition to the damages assessed by the jury of freeholders, to such damages it has sustained as a result of the violent taking of his premises on January 28, 1946. However, by reversing the judgment of the district court in its entirety, it is evident that the majority feel (although it is not stated in the opinion) that, since the taking was illegal and tortious, no liability may be imposed upon the police jury as it is not responsible for the offenses of its agents and employees while they are engaged in the performance of governmental functions. In thus concluding, the majority have apparently overlooked the fact that *73 the police jury neither appealed nor answered the appeal taken by plaintiff. Consequently, this Court is without jurisdiction to alter, against plaintiff's interest, the judgment in its favor for $1,625 granted by the district judge.
For the foregoing reasons, I respectfully dissent.
On Motion to Correct the Decree.
PER CURIAM.
In our original decree we reversed and set aside the judgment of the District Court, declared the attempted expropriation proceedings null and void, and held plaintiff to be the owner of the property in dispute.
In a motion to correct the decree, the plaintiff has called our attention to the fact that our decree is silent as to that part of the District Court's judgment which awarded plaintiff damages in the sum of $1,625, and that defendant has neither appealed from the judgment nor answered the appeal. Plaintiff asks that our decree be amended by a per curiam so as to affirm the money judgment, or, in the alternative, that we grant a rehearing in order to consider awarding the full amount of damages claimed by plaintiff.
As the defendant has neither appealed nor answered the appeal, we are without authority to disturb that part of the judgment which awarded plaintiff damages in the sum of $1,625. Code of Practice, Articles 592 and 888; Nurdin v. Bounanchaud, 152 La. 853, 94 So. 420; Schwandt v. Nunez, La.App., 71 So. 2d 583; Freeman v. World Ins. Co., La.App., 61 So. 2d 892.
Our decree is accordingly amended so as to add thereto an additional decree affirming that part of the judgment of the District Court which awards plaintiff damages in the sum of $1,625. The alternative application for rehearing is denied.
NOTES
[1] Cross v. Police Jury, 7 Rob. 121; Fusilier v. Police Jury, 6 La.Ann. 670; Police Jury of Jefferson v. D'llemecourt, 7 Rob. 509; Zenor v. Parish of Concordia, 7 La.Ann. 150. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609748/ | 249 Minn. 99 (1957)
81 N.W. (2d) 282
WALLACE T. BRUCE, INC.
v.
HAROLD VERNON NAJARIAN AND ANOTHER.
No. 36,912.
Supreme Court of Minnesota.
February 21, 1957.
*100 Carl F. Dever, for appellant.
Samuel Saliterman and James P. Larkin, for respondents.
NELSON, JUDGE.
Plaintiff, a Minnesota corporation, commenced its action against defendants November 21, 1955, to recover for labor, work, and material furnished during the month of November 1953 for the improvement of the homestead of defendants in constructing thereon a garage and a porch. It was alleged that these items were furnished at the defendants' special instance and request; that defendant Harold Vernon Najarian, to show his good faith, on January 1, 1954, executed a promissory note in the amount of $852.43 payable at the rate of $30 per month with interest at 6 percent per annum; and that defendant paid $90 on the note and defaulted. Relief was *101 sought for the balance with interest and for such other relief as the court deemed just and equitable.
Defendants alleged that the note was accepted by plaintiff as full payment and that plaintiff thereby waived its right to acquire a lien on the premises; that since plaintiff failed to file its statutory mechanic's lien, all lien rights of plaintiff, if any did exist, have expired. Defendants further alleged that defendant Harold Najarian was adjudicated a bankrupt in the United States District Court, 4th Division, State of Minnesota, and that plaintiff's claim was listed in schedule A-3 of said proceedings as an unsecured creditor and that plaintiff had notice. Defendants finally prayed that all proceedings under plaintiff's action be stayed for a period of one year from the date of adjudication and upon discharge in bankruptcy that plaintiff's action be dismissed with prejudice.
Plaintiff's action was not commenced until November 21, 1955. Plaintiff served its notice of motion for summary judgment dated December 29, 1955, demanding relief under Minnesota Rules of Civil Procedure, Rule 56, upon the grounds that the joint answer of the defendants contained no genuine issue of fact pertaining to any defense that would defeat plaintiff's claim; defendants moved for summary judgment claiming no genuine issue existed as to any material fact and therefore defendants were entitled to summary judgment in their favor as a matter of law.
The court below, on January 16, 1956, entered its order denying plaintiff's motion for summary judgment, staying all proceedings for 12 months from the date of the adjudication. The order provided that after defendant has obtained his discharge in bankruptcy the action may then proceed to trial and further denied all relief prayed for by defendants in their countermotion. From this order only, plaintiff appeals.
Plaintiff asserts that it has a constitutional right to a lien against the homestead of defendants; that accepting a note from the defendants upon the terms it did, only as evidence of the good faith of the defendants in meeting the payment of the indebtedness, is not a bar *102 to the enforcement of its claim under Minn. Const. art. 1, § 12, which in 1888 was amended as follows:
"* * * Provided, however, that all property so exempted shall be liable to seizure and sale for any debts incurred to any person for work done or materials furnished in the construction, repair or improvement of the same, and provided further, that such liability to seizure and sale shall also extend to all real property for any debt incurred to any laborer or servant for labor or service performed."
Plaintiff claims that it is entitled to perfect its lien under Minn. Const. art. 1, § 12, prior to the discharge in bankruptcy of defendant; that under the various provisions of the Bankruptcy Act, § 67 (11 USCA, § 107), if the state law gives a lien or a priority, it will be recognized; and that nothing contained in the Bankruptcy Act prevents enforcement of plaintiff's right, under the constitutional amendment of 1888, of its lien for debts incurred, for services or materials so furnished in the repair or improvement of defendants' homestead; that the homestead improvements having been requested by defendants and furnished by the plaintiff in good faith within the exceptions of the Bankruptcy Act, § 67, the local law of the place where the property is situated governs as to whether or not there is an enforcible lien.
Plaintiff assigns error as follows: "The Court erred in staying further proceedings in the matter until after respondent Harold Vernon Najarian had obtained his discharge in bankruptcy."
The legal issues to be met are whether the state court, in which plaintiff commenced its action, may, without a hearing on the merits, issue an order that will deprive it as a creditor of the right to perfect its lien against the exempt property of the defendants prior to the discharge in bankruptcy, providing the debt incurred was for work done or materials furnished in the repair or improvement of defendants' homestead and subject to the provisos of Minn. Const. art. 1, § 12, the action brought being one to recover an in personam judgment which the plaintiff may have docketed and imposed as a lien upon the bankrupt's homestead.
*103 Defendants contend that no authority exists by statute or otherwise in Minnesota for establishing that the order of the court below, entered herein for a stay of proceedings, is one from which an appeal may be taken to this court citing Supreme Court Rule VIII(3) (b), (222 Minn. xxxiii), which provides that the statement in appellant's brief concerning the order sought to be reviewed "must make it appear, in cases of appeal, that the order sought to be reviewed is appealable." They further contend that, since it is the duty of the plaintiff to establish its right to appeal, its appeal should be dismissed unless this duty is met.
In face of the stay of proceedings effective until after defendant obtains his discharge in bankruptcy, the remedy of the creditor who has not yet perfected the necessary lien under Minn. Const. art 1, § 12, to support its lien claim is in fact completely destroyed by the discharge in bankruptcy when and if obtained. See, H.E. Westerman Lbr. Co. v. Raschke, 172 Minn. 198, 215 N.W. 197.
1. M.S.A. 605.09 provides that an appeal may be taken to the supreme court by the aggrieved party in the following cases:
"(3) From an order involving the merits of the action or some part thereof;
* * * * *
"(5) From an order which, in effect, determines the action, and prevents a judgment from which an appeal might be taken;
* * * * *
"(7) From a final order, affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment."
The question is whether the plaintiff as a creditor being protected on his debt by Minn. Const. art. 1, § 12, as to certain lien rights has been prejudiced by the order entered by the court below. For an order to be appealable under § 605.09(3), which allows an appeal from an order involving the merits, the order must finally determine the action or some positive legal right of the appellants relating thereto. It can hardly be denied that the order appealed from involves the merits of some part of the plaintiff's action if not the *104 merits of the action itself. Unless plaintiff obtains relief from the order staying the proceedings in the instant case and is permitted to perfect his lien prior to the discharge in bankruptcy, under the rules announced in H.E. Westerman Lbr. Co. v. Raschke, supra, his claim would be completely destroyed. Thus whether there exists a right to appeal either under subsection (5) or subsection (7) of the appeal statute need not be considered since it seems apparent that the order is appealable under subsection (3) thereof. It seems clear that plaintiff's rights have been prejudiced to the extent of involving the merits of either the action itself or some part thereof. There is therefore involved, a positive legal right of the plaintiff relating thereto. Chapman v. Dorsey, 230 Minn. 279, 41 N.W. (2d) 438, 16 A.L.R. (2d) 1015; Seeling v. Deposit Bank & Trust Co. 176 Minn. 11, 222 N.W. 295; Peterson v. Darelius, 168 Minn. 365, 210 N.W. 38; In re Jones, 33 Minn. 405, 23 N.W. 835. The order, unless vacated, operates as an adjudication upon the merits and will do so unless plaintiff is permitted to perfect his lien before defendant Najarian is granted his discharge in bankruptcy. While neither party has submitted an identical case in point, we must conclude that the order entered below is, as its provision for a stay of proceedings, operative upon the merits, and therefore an appealable order under § 605.09(3).
2. We must consider the effect of defendants' claim that the note given plaintiff for the debt was accepted as a full payment for any indebtedness for work, labor, service, and materials furnished in the improvement of defendants' homestead and that the plaintiff thereby waived its right to file or claim a lien on the premises. The mere fact that defendant gave his note as evidence of the indebtedness is not on its face material. The liability of this property to seizure and sale for the debt existed from its inception under Minn. Const. art. 1, § 12. The principle involved is the same whether the debt is a lien on specific property, or whether, as in this case, the property is subject to seizure and sale for the debt, for through all the mutations of the evidence of it the debt remained the same, unless it is established that the note taken was in fact taken in absolute payment *105 of the debt. As stated in Nickerson v. Crawford, 74 Minn. 366, 77 N.W. 292, the constitutional provisos applicable to the present situation are clearly self-executing and require no legislation to carry them into effect. This court there held that the direct effect of the constitutional provisos was to make property, which is exempt from seizure and sale for other debts, liable to seizure and sale for debts of the kinds enumerated therein to the same extent, and in the same way, as if no exemption law existed. Commenting further this court said that the debt involved may be a lien under some statute, but, so far as the constitution is concerned, debts of the enumerated classes only become liens on a homestead when reduced to judgment and docketed; and then they become liens on the homestead in the same manner as on any other real estate of the debtor. As was said in that case, this is the common practice in this state, and, so far as an examination had carried the court at that time, of every other state having similar constitutional or statutory provisions.
In the Nickerson case the defense contended that the constitutional amendment of 1888 made debts of the specified classes liens on the otherwise exempt property and that the only remedy which the legislature had provided as against the homestead was to enforce the lien under the provisions of the mechanic's lien law. It was held therein that the constitution furnishes no basis for any such claim; that it merely provides that the otherwise exempt property shall be subject to seizure and sale for such debts. Mr. Justice Mitchell, speaking for the court, said that (74 Minn. 370, 77 N.W. 293):
"Neither by the constitution nor by any statute is the creditor restricted to any particular form of remedy for the collection of his debt out of the homestead or other exempt property. The constitution leaves him to seize and sell it as he might any other property under the general statutes of the state, which would be by obtaining and docketing an ordinary money judgment, and then selling the property on execution."
In Bagley v. Pennington, 76 Minn. 226, 227, 78 N.W. 1113, 1114, we held that "On the clearest principles, there can be no doubt that such a lien [under the amendment of Minn. Const. art. 1, § 12] can *106 be acquired as well by levying an attachment as by docketing a judgment." Gregory Co. v. Cale, 115 Minn. 508, 133 N.W. 75, 37 L.R.A. (N.S.) 156; Swaney v. Hasara, 164 Minn. 416, 205 N.W. 274; Hasey v. McMullen, 109 Minn. 332, 123 N.W. 1078.
Those questions are controlled by the provisions of the constitution. The amount of the exemptions shall be determined by law. The effect of the provisos contained in Minn. Const. art 1, § 12, was to place exempt property upon the same basis, as to liability for debts of the owner incurred in its improvement or repair, as other property. Therefore, as to the class of debts mentioned therein, there is no exemption at all.
Two remedies are open to the creditor, either to proceed in compliance with the mechanic's lien statute or to proceed under Minn. Const. art. 1, § 12, to obtain and docket his judgment under the methods available, the lien then becoming effective through the judgment obtained immediately upon the docketing thereof. The creditor may in his action to recover for the payment of labor and material for which the homestead is liable set forth all the facts in the complaint so that it may appear of record that the homestead is subject to the payment of the judgment if recovered. The judgment may be enforced by special execution and, even though the judgment record may not disclose that the particular property is liable for its payment, that fact may be established by extrinsic evidence on application for a special writ of execution, or other proceedings, if and when the right to resort to the land or the homestead is asserted.
Since the amendment to the constitution in 1888, homesteads are subject to mechanic's liens to the same extent as other real estate.[1]
*107 3. The authorities indicate that the owner may waive his homestead right in all or any part of his homestead by some act evidencing an unequivocal intention to do so.
"Every lien against the property of a person obtained by * * * legal or equitable process or proceedings" is made subject to nullification where the requirements of the Bankruptcy Act, § 67(a), (11 USCA, § 107[a]), are otherwise fulfilled. Liens that result from judicial proceedings under the Bankruptcy Act are: Liens by attachment, judgment, levy of execution, garnishment, and creditor's bill. Common types of statutory liens which may be contrasted under the act are: Employees' liens; contractors', materialmen's, and mechanics' liens; landlords' liens; liens for taxes and debts owing to the sovereign authority. 4 Collier, Bankruptcy (14 ed.) par. 67.12.
The intent has thus been clearly expressed by Congress that the subdivision into which former §§ 67(c) and 67(f) have been merged shall be given very wide scope. Courts have rather uniformly construed the phrases "liens obtained through legal proceedings" and "lien created by or obtained in or pursuant to any suit or proceeding at law or in equity" in a very liberal manner. Section 67(a) of the Bankruptcy Act invalidates a judicial lien obtained within four months before the filing of a petition in bankruptcy (a) if at the time the lien was obtained the debtor was insolvent, or (b) if the lien was sought and permitted in fraud of the act.
Section 67(b) of the Bankruptcy Act preserves statutory liens not affected by § 67(c), even though they arise or are perfected while the debtor is insolvent and within four months of bankruptcy. Section 67(b) permits perfection of such liens after bankruptcy.
A lien unenforcible because not perfected under the local statute does not become viable merely by virtue of the debtor's precipitation into bankruptcy. A statutory lien, such as a mechanic's lien may be perfected, notwithstanding the pendency of bankruptcy proceedings. See, 4 Collier, Bankruptcy (14 ed.) par. 67.12.
A statutory requirement that an inchoate lien shall cease unless proceedings in court be commenced within a limited period does not convert such a lien, perfected in the statutory manner within *108 four months of bankruptcy, into a lien acquired by judicial proceedings, as defined in, and subject to nullification, under § 67(a) of the act.
It has uniformly been held that mechanic's liens are not liens obtained in or pursuant to the judicial proceedings dealt with in § 67(a) of the Bankruptcy Act, notwithstanding statutory requirements with respect to filing of notice and institution of suit to preserve and enforce such claims. Accordingly, both under preexisting law and the Bankruptcy Act of 1938 the validity of a mechanic's lien is unimpaired by the sole fact that the lien is inchoate, if there is perfection of the lien through the filing of notice, or the institution of proceedings to enforce the lien, within four months of the bankruptcy of the debtor. Nor are such liens apt to be fraudulent encumbrances within the condemnation of § 67(d) although acquired during the debtor's insolvency. Such liens were consequently sustained even under the act of 1898 either because nowhere invalidated or because embraced within the saving language or purport of § 67(d). 4 Collier, Bankruptcy (14 ed.) par. 67.22.
4. The applicable lien law of a state is determinative of the validity and extent of liens in all respects in which the Bankruptcy Act does not specifically and positively provide otherwise.
The requirement that a notice or statement of such lien be filed of record does not have the effect of making the lien one obtainable by legal proceedings and therefore subject to nullification under § 67(a). See, In re Kerby-Dennis Co. (7 Cir.) 95 F. 116; see, also, 4 Collier, Bankruptcy (14 ed.) par. 67.12.
The applicable lien law in the state is thus determinative of priority as among liens placed in the same category by the Bankruptcy Act.
By express reference to "statutory liens in favor of employees, contractors, mechanics, * * * or other classes of persons," § 67(b) of the Bankruptcy Act comprehensively covers every type of mechanic's lien statute, irrespective of requirements with respect to perfection and enforcement.
*109 A suit in a nonbankruptcy court to foreclose a mechanic's lien, commenced before a petition in bankruptcy is filed against the debtor, may be prosecuted to judgment without interference from the bankruptcy court. However, an action to enforce such a lien cannot be instituted after the filing of the petition in bankruptcy, or if instituted, cannot be continued without consent of the bankruptcy court. Collier expresses the view that it would seem that a trustee in bankruptcy may not, over proper objection, proceed by summary process to recover property not in the bankrupt's possession against which third parties are asserting mechanic's liens and that notwithstanding the prescription of a single method of enforcement of a mechanic's lien by the statute creating it, the lien may nevertheless be enforced in bankruptcy proceedings.[2] The proper method to perfect a lien after bankruptcy is generally considered in 4 Collier, Bankruptcy (14 ed.) par. 67.26. The author emphasizes that the general rule in bankruptcy is that the filing of the petition freezes the rights of all parties interested in the bankrupt estate. Exceptions only emphasize the rule. Whatever disagreement in opinion there may have been in the matter prior to the Bankruptcy Act of 1938, it was made clear by that act that statutory liens may be valid if they arise before bankruptcy although they are perfected after bankruptcy if the perfection is within the time permitted by and in accordance with the requirements of applicable law, except for the important qualification added by the amendment of 1952 in § 67(c) regarding statutory liens on personalty not accompanied by possession. Subsection (b) of the act, subject to the aforesaid qualification, adopts the theory, however, that the local law should determine the susceptibility of such liens to perfection after bankruptcy. Notice to the bankruptcy court, however, should be adequate in cases where required. A distinction may be drawn between perfecting or enforcing a lien after bankruptcy, as permitted by § 67(b), and continuing or renewing a lien which is fully perfected at bankruptcy.
*110 Section 67(b) of the act has no application to nonstatutory liens. It furnishes no authority for perfection of any contractual, equitable, or common-law lien after the commencement of bankruptcy proceedings. See, 4 Collier, Bankruptcy (14 ed.) par. 67.26.
It seems clear that the right to obtain a lien against exempt property under the self-executing provisos of Minn. Const. art. 1, § 12, for recovery of payment for work done or materials furnished in the construction, repair, or improvement of the homestead does not come under the classification of liens obtained and perfected by legal proceedings limited to four months preceding the filing of the bankruptcy petition, and while the bankrupt is insolvent, upon property of the bankrupt which is exempt and are nullified by § 67(a) of the act, even though the lien does not come into being until a judgment in personam has been obtained against the debtor and docketed with the clerk. Clearly the local law of the place where the property is situated governs as to whether there is a lien or not. The constitutional provisos being self-executing, if the creditor is entitled to the lien, he may acquire it within the four-month period before the filing of the petition in bankruptcy or he may acquire it afterwards, and if perfected before the discharge in bankruptcy, it becomes effective as a lien pursuant to the constitutional mandate.
5. In Lockwood v. Exchange Bank, 190 U.S. 294, 23 S. Ct. 751, 47 L. ed. 1061, there was involved the effect of the general exemption of property from levy or sale authorized by Georgia Const. art. 9, § 1, the exemption being "realty, or personalty, or both, to the value in the aggregate of sixteen hundred dollars." By art. 9, § 3, of that constitution, a debtor was vested with power to waive or renounce in writing this right of exemption "except as to wearing apparel and not exceeding three hundred dollars worth of household & kitchen furniture and provisions." The mode of enforcement of that waiver of exemption was provided in Code of Georgia 1895, § 2850. The questions presented and determined in the Lockwood case are determinative in the present proceeding. The court answered the very question involved in the instant case in reversing the judgment of the United States District Court and directing that court to overrule *111 the exceptions to the trustee's assignment of homestead and exemption, and to withhold the discharge of the bankrupt, if he be otherwise entitled thereto, until a reasonable time has elapsed for the excepting creditor to assert, in a state tribunal, his alleged right to subject the exempt property to the satisfaction of his claim.
In a later decision by the United States Supreme Court in Chicago, B. & Q.R. Co. v. Hall, 229 U.S. 511, 516, 33 S. Ct. 885, 887, 57 L. ed. 1306, 1310, affirming 88 Neb. 20, 128 N.W. 645, the court recognized the rule laid down in the Lockwood case regarding rights acquired in exempt property by contract or by waiver of exemption stating that:
"The liens rendered void by § 67f are those obtained by legal proceedings within four months. The section does not, however, defeat rights in the exempt property acquired by contract or by waiver of the exemption. These may be enforced or foreclosed by judgments obtained even after the petition in bankruptcy was filed, under the principle declared in Lockwood v. Exchange Bank, 190 U.S. 294." See, 3 Remington, Bankruptcy (4 ed.) § 1317.
In the Lockwood case, supra, the bankrupt had nothing but exempt property, and the bank held waivers. The bankruptcy court sustained the objections of the bank to the setting apart of the property as exempt in that case and proceeded to administer it to determine rights as between the bankrupt and the bank. The court in the Lockwood case held that this course was not authorized by the act. The rule laid down in that case is so well recognized, over the years, by the lower courts that the citation of later affirmations of the rule is uncalled for.
If an application is made to withhold the bankrupt's discharge to give time to a creditor holding a waiver to assert his right against exempt property in the state court, the bankruptcy court may inquire into the validity of the waiver. It is then only incumbent upon it to ascertain whether a prima facie waiver exists. The proper practice on such an application is to withhold a discharge pending determination in the state courts of the rights of creditors holding waivers. 3 Remington, Bankruptcy (4 ed.) § 1317.
*112 Illustrative cases in Minnesota are H.E. Westerman Lbr. Co. v. Raschke, 172 Minn. 198, 215 N.W. 197; Gregory Co. v. Cale, 115 Minn. 508, 133 N.W. 75, 37 L.R.A. (N.S.) 156; Nadeau v. Ball, 179 Minn. 6, 228 N.W. 168; Keys v. Schultz, 212 Minn. 109, 2 N.W. (2d) 549.
Most of the authorities cited in cases involving the right to liens against the homestead or the creditor's exempt property (see Westerman case) relate to cases where the bankrupt waived his right to exemptions or where the creditor was given access to the exempt property because his claim was for the purchase price. We believe those authorities are appropriate and furnish a reliable guide to our inquiry in the instant case which involves the same principles. Lockwood v. Exchange Bank, supra, is controlling and this court so held in the Westerman case.
In the Westerman case this court rendered a homestead available to a creditor against whom it was not exempt in a suit where the bankruptcy court withheld discharge and said (172 Minn. 199, 215 N.W. 198): "Our constitution gives such a creditor a right which he may protect from destruction by the bankruptcy act. He is required to make application to the bankruptcy court to withhold the discharge until the lien is created." Since a claim for such debts does not amount to a lien upon the homestead under Minn. Const. art. 1, § 12, even though the provision is self-executing, but requires that the lien arising out of such debt must be created either by an attachment, by an acknowledgement filed, by docketing a judgment against the debtor, or by filing a mechanic's lien, therefore in the absence of a lien so established, a discharge in bankruptcy will release the debtor, and the creditor cannot obtain judgment thereon later in order to have the property sold. However, where there is a lien in existence, the discharge destroys only the personal liability of the bankrupt but not the creditor's right to resort to the property subject to the lien. So it is clear that the remedy of a creditor, who has not acquired the necessary lien to support his claim under Minn. Const. art. 1, § 12, is completely destroyed by the discharge in bankruptcy. It is equally clear that the creditor's claim in the case *113 at bar, as there involved, must be reduced to a lien prior to the discharge of the bankrupt or it is lost. H.E. Westerman Lbr. Co. v. Raschke, supra, and cases therein cited.
The rule of exemption as heretofore discussed and established pervades the entire Bankruptcy Act and must be read into every other section and provision thereof. Steele v. Buel (8 Cir.) 104 F. 968; see, In re Boyd (N.D. Iowa) 120 F. 999.
Prior to the amendment of the Minnesota constitution in 1888, it was held that a mechanic or materialman could not acquire a lien on a homestead except by special contract amounting to a waiver of the exemption. It is now provided by Minn. Const. art. 1, § 12, "that all property so exempted shall be liable to seizure and sale for any debts incurred to any person for work done or materials furnished in the construction, repair or improvement of the same." The provisos therein have since been held self-executing without legislative action. However, this does not, as has already been said, give a specific lien without some appropriate action taken on the part of the lien claimant and when this is done the debt becomes a lien upon the homestead in the same manner that other debts become liens. The lien of a judgment upon a homestead so acquired may be enforced by execution unaffected by debtor's discharge in bankruptcy. If obtained and docketed before the debtor's discharge, the lien will remain, even though the personal liability of the judgment debtor is thereafter discharged; and such judgment may be enforced by execution against the homestead the same as other property. Keys v. Schultz, supra; Nadeau v. Ball, supra; H.E. Westerman Lbr. Co. v. Raschke, supra; 9 Dunnell, Dig. (3 ed) § 4210.
We come to the conclusion that whether the creditor obtains and perfects his lien under the mechanic's lien statute or under Minn. Const. art. 1, § 12, the form of the lien when so obtained is not affected or controlled by the bankruptcy law and does not come under the classification of liens obtained by judicial proceedings nullified by the Bankruptcy Act, § 67(a). In both instances a right has been fixed as well as a remedy afforded, and it makes no difference *114 that one choice of method is not dependent on the other. In re Purvis (S.D. Miss.) 293 F. 102.
In In re Hassler (D. Minn.) 204 F. 139, an application was made by the trustee and the attorney for the bankrupt for an order staying an execution sale of the homestead of the bankrupt under judgments docketed December 9, 1912, adjudication of the bankrupt having been made on September 27, 1912. Judgments had been obtained on suits to recover for materials sold for the repair of the bankrupt's homestead and which were so used. It did not appear that a mechanic's lien had been filed pursuant to statute, the creditor relying on Minn. Const. art. 1, § 12. The court held that the debts were not at the time of the adjudication liens upon the property of the bankrupt. The claims had been scheduled by the bankrupt, were provable debts, and stood to be discharged if the bankrupt succeeded in obtaining a discharge before the liens were obtained and docketed under the constitutional provision. The court took the view that under the circumstances, the judgments having been docketed after the adjudication, the attempt on the part of the creditor to enforce the judgment by a sale of the homestead ought to be stayed, and it was ordered that proceedings upon the executions be stayed until 12 months after the date of the adjudication, or, if within that time the bankrupt applied for a discharge, then until after the question of such discharge was determined. The 12-month stay would have expired September 27, 1913. While the order staying the proceedings was entered April 4, 1913, a note following that case states that the court thereafter, on June 30, 1913, vacated its order staying the proceedings in the state court, on the authority of Lockwood v. Exchange Bank, supra.
To enable a creditor to obtain a judgment in a state court to enforce his rights, a bankruptcy court will postpone a discharge of a debtor for a reasonable time but will not itself take jurisdiction to administer the exempt property or to enforce claims arising from a waiver of exemptions. Brown Shoe Co. v. Schaefer, 242 Ala. 310, 6 So. (2d) 405. See, Bankruptcy Act, § 6 (exemptions), and § 67(a).
*115 In determining the bankrupt's claim to his exemption, the bankruptcy court is guided by the state exemption statute, and it will be bound by the decisions of the state court of last resort construing that statute. The status as to exemptions is fixed as of the date of the filing of the petition in bankruptcy. See, 40 Va. L. Rev. 87, 88, and cases cited.
While the liens rendered void by § 67(a) of the act are those obtained by legal proceedings within four months, it has nevertheless been the rule since the advent of the Lockwood case, supra, that this section does not defeat rights in the exempt property acquired by contract or by waiver of the exemptions. These may always be perfected and enforced in the state courts even after the petition in bankruptcy was filed and thus the right of a bankrupt to void a lien does not extend to a lien waiving the homestead exemption. We conclude, therefore, that likewise it does not extend to plaintiff's constitutional right in this state to obtain and perfect the lien which he seeks against the exempt property of the bankrupt. Such a lien, whether a promissory note has been executed to show good faith of payment thereof or not, when acquired or perfected before discharge, is neither voided by an adjudication in bankruptcy nor destroyed by a discharge therein.
Section 67(a) of the Bankruptcy Act does not affect a lien paramount to the homestead. Any discussion as to insolvency, the four-month period, or other elements of § 67(a) is mere surplusage, where a waiver lien, or other lien paramount to an exemption claimed and allowed in bankruptcy proceedings, is sought to be enforced in a state proceeding.[3]
The local law of the place where the property is situated governs as to whether there is a lien or not and whether the property of the bankrupt is subject to a lien is determined by the local law of the place where it is situated, under the Bankruptcy Act. In re Caplan (D. Md.) 23 F. (2d) 680.
Plaintiff, as appellant, upon the record submitted herein, is entitled to a vacation of the stay of proceedings entered by the court *116 below so that it may proceed to a trial on the merits, and, if entitled to recover on its claim, may reduce its claim to a lien against the homestead of defendants prior to a discharge of the debtor bankrupt.[4] The plaintiff, however, will be required to make application to the bankruptcy court to withhold the discharge of the bankrupt until its lien rights have been perfected.
That part of the order of the court below which provided for a stay of proceedings is vacated in its entirety; otherwise the order denying all motions for summary judgment therein stands affirmed.
Affirmed in part, reversed in part.
NOTES
[1] Curran v. Nash, 224 Minn. 571, 29 N.W. (2d) 436, 174 A.L.R. 411; Anderson v. Johnson, 208 Minn. 152, 293 N.W. 131; In re Estate of Peterson, 198 Minn. 45, 268 N.W. 707; Landy v. Martin, 193 Minn. 252, 258 N.W. 573; Aase v. Langston, 175 Minn. 161, 220 N.W. 421; Gale v. Hopkins, 165 Minn. 177, 206 N.W. 164; Hasey v. McMullen, supra; Lindberg v. Johnson, 93 Minn. 267, 101 N.W. 74; Nickerson v. Crawford, supra.
[2] 4 Collier, Bankruptcy (14 ed.) par. 67.22.
[3] See, 40 Va. L. Rev. 93, 94.
[4] Lockwood v. Exchange Bank, supra; In re W.C. Allen & Co. (W.D. Va.) 134 F. 620; In re Brumbaugh (D. Pa.) 128 F. 971. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441656/ | 2 A.3d 74 (2010)
NAMA HOLDINGS, LLC
v.
WORLD MARKET CENTER VENTURE, LLC.
No. 407, 2010.
Supreme Court of Delaware.
August 2, 2010.
Decision without published opinion Appeal Dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922422/ | 756 A.2d 84 (2000)
Daniel Carl ESTER
v.
COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant.
Commonwealth Court of Pennsylvania.
Submitted on Briefs January 28, 2000.
Decided April 26, 2000.
Publication Ordered July 21, 2000.
*85 Marc A. Werlinsky and Timothy P. Wile, Asst. Counsel In-Charge, King of Prussia, for appellant.
Dan W. Susi, Erie, for appellee.
Before: SMITH, Judge, LEADBETTER, Judge, NARICK, Senior Judge.
LEADBETTER, Judge.
On October 4, 1998, Daniel Carl Ester was cited for violating N.C. Gen.Stat. § 20-138.1(a)(2)[1], North Carolina's drunk driving statute. On February 11, 1999, Ester pled guilty to the offense. North Carolina and Pennsylvania are both members of the Drivers' License Compact of 1961 so North Carolina reported the conviction to Pennsylvania, as required by Article III of the Compact.[2] Pursuant to Article IV of the Compact, 75 Pa.C.S. § 1581, the Pennsylvania Department of Transportation treated the out-of-state conviction as if Ester had been convicted under 75 Pa.C.S. § 3731, Pennsylvania's statute prohibiting driving under the influence.[3]
*86 Ester appealed the suspension to the Common Pleas Court of Erie County. President Judge Michael Palmisano of Erie County heard the appeal de novo, and reversed the suspension. Judge Palmisano found that Ester was convicted under a North Carolina statute that required a blood alcohol content of 0.08% or higher, while Pennsylvania's comparable statute, 75 Pa.C.S. § 3731, requires a blood alcohol level of at least 0.10%.[4] He concluded that "the twenty percent (20%) difference in blood alcohol concentration necessary for a conviction under the North Carolina statute is substantially different so as to nullify the suspension." Department of Transportation, Bureau of Driver Licensing, v. Ester, slip op. at 2 (citation omitted).
Judge Palmisano noted the existence of 75 Pa.C.S. § 1586 in his opinion, but did not consider it relevant to his conclusion. The statute states, in relevant part:
The fact that the offense reported to the department by a party state may require a different degree of impairment of a person's ability to operate, drive or control a vehicle than that required to support a conviction for a violation of section 3731 shall not be a basis for determining that the party state's offense is not substantially similar to section 3731 for purposes of Article IV of the compact.
75 Pa.C.S. § 1586.[5] The statute is exactly on point. Ester argues, however, that "The term `different degree of impairment' relates to the descriptive violation of various drunk driving statutes, not the per se violation of drunk driving statutes for a specific blood alcohol level." Appellee's brief, at 8. This argument is not convincing. First, different blood alcohol levels are clearly different degrees of impairment. Second, the Court's duty is not to compare North Carolina's statute to Pennsylvania, but, as noted above, to compare North Carolina's statute to Article IV(a)(2) of the compact, which does not use a specific blood alcohol level in its description.[6] Thus, the correct comparison is never between blood alcohol levels, but between Article IV's description and the state law.
Our court has previously held in Golinsky v. Department of Transportation, Bureau of Driver Licensing, 724 A.2d 1006 (Pa.Cmwlth.1999) that a North Carolina conviction under N.C. Gen.Stat. § 20-138.1 is a proper basis for a license suspension in Pennsylvania under Article IV. The recently enacted 75 Pa.C.S. § 1586 reinforces this conclusion.
Therefore, we hold that N.C. Gen.Stat. § 20.138.1(a)(2) is substantially similar to Article IV(a)(2) of the Driver's License Compact. The order of the Court of Common Pleas of Erie County is reversed, and the suspension of Ester's operating privileges is reinstated.[7]
*87 ORDER
AND NOW, this 26th day of April, 2000, the order of the Court of Common Pleas of Erie County in the above captioned matter is reversed, and the suspension of Ester's operating privileges is reinstated.
NOTES
[1] "20-138.1 Impaired driving
(a) Offense.A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more."
[2] "The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee...." 75 Pa.C.S. § 1581, Article III.
[3] "The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to Article III of this compact, as it would if such conduct had occurred in the home state in the case of convictions for ... (2) driving a motor vehicle while under the influence of intoxication liquor or a narcotic drug or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle;" 75 Pa.C.S. § 1581(a)(2), Article IV.
[4] As the Supreme Court observed in Petrovick v. Department of Transportation, Bureau of Driver Licensing, 559 Pa. 614, 741 A.2d 1264 (1999), the "substantial similarity" envisioned by the Compact as enacted "does not call for a direct comparison of Pennsylvania's statute to the out-of-state statute," but rather whether the two state statutes are "`of a substantially similar nature' to Article IV(a)(2)." Petrovick, 559 Pa. at 618-19, 741 A.2d at 1266. The Supreme Court has already completed half of this task by determining that Pennsylvania's 75 Pa.C.S. § 3731(a)(1) is substantially similar to Article IV(a)(2) of the Compact. Id. at 559 Pa. 621-23, 741 A.2d at 1268. Our task is then to determine whether North Carolina's statute is substantially similar to Article IV(a)(2) of the Compact.
[5] This provision is applicable because Ester's conviction, North Carolina's report and the suspension hearing occurred after its effective date (12/21/98). See Petrovick, 741 A.2d at 1269.
[6] See footnote 4, supra
[7] The Department also formulates an evidentiary argument. However, based upon our interpretation of 75 Pa.C.S. § 1586, we need not address this issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922432/ | 756 A.2d 707 (2000)
Joseph TONGEL, an individual; Fraternal Order of Police, Fort Pitt Lodge No. 1
v.
CITY OF PITTSBURGH.
Appeal of Joseph Tongel.
Commonwealth Court of Pennsylvania.
Argued June 5, 2000.
Decided July 7, 2000.
William H. Difenderfer, Pittsburgh, for appellant.
Hugh F. McGough, Pittsburgh, for appellees.
Before McGINLEY, Judge, LEADBETTER, Judge, and RODGERS, Senior Judge.
RODGERS, Senior Judge.
Joseph Tongel (Appellant) appeals from the order of the Court of Common Pleas of Allegheny County (trial court) quashing as untimely Appellant's petition to review and vacate an arbitration award. We affirm.
By letter dated December 22, 1998, Appellant was terminated from his employment as a City of Pittsburgh police officer for admittedly taking cash for his own use from a possible crime scene. Pursuant to Section 19-6 of the Working Agreement between the City of Pittsburgh and the Fraternal Order of Police, Fort Pitt Lodge No. 1 (Working Agreement), Appellant appealed his discharge and elected to proceed before a tripartite arbitration board comprised of a City designee, an FOP designee and a neutral member who served as board chairman. Arbitration commenced on February 2, 1999 and, with the parties' consent, the arbitration panel continued its deliberations on February 18, 1999. The parties agreed that Chairman Michael E. Zobrak would write the arbitration award.
Chairman Zobrak issued a letter dated February 22, 1999, informing the parties as follows: "In accordance with the provisions of the Collective Bargaining Agreement, I hereby issue the following determination in the above-captioned case: The grievance is denied." R.R. 7a (emphasis *708 in original). In the letter, Chairman Zobrak cited the facts that Appellant knew what he was doing when he took the money and he did not express remorse until after he was confronted by federal investigators. Chairman Zobrak concluded by stating that he "will expand on these positions in my full award." Id.
On March 12, 1999, a fifteen-page document entitled "Decision In Discharge Grievance" was issued, signed by the three panel members. The first paragraph of this document states that the parties were notified of the panel's decision by letter of February 22, 1999 and that the document explains in detail the reasoning applied by the panel to reach its determination. R.R. 9a.
On April 12, 1999, Appellant filed a petition to vacate the arbitration award. On May 9, 1999, the City filed a motion to quash the petition on the grounds that it was filed beyond the thirty-day appeal period provided by Section 5571(b) of the Judicial Code.[1] The City averred that the final award was issued February 22, 1999, in accordance with Section 19-8 of the Working Agreement. In relevant part, Section 19-8 states that "the Arbitration Board's decision must be issued in writing within five working days of the hearing, and a supporting opinion, if one is requested, may be issued within thirty days of the hearing." R.R. 80a.
The trial court found that the binding arbitration award was issued February 22, 1999 and that Appellant's petition, filed fifty days after the entry of that award, was untimely. The trial court granted the City's motion to quash by order dated November 8, 1999.
On appeal to this Court, Appellant acknowledges the mandatory language of Section 19-8, but argues that until the March 12, 1999 decision was issued, he was not able to determine whether he had sufficient grounds to appeal under the narrow certiorari scope of review.[2] Appellant contends that if the February 22, 1999 letter is held to trigger the running of the appeal period, grievants will routinely file appeals in order to preserve their rights until a "full decision" informs them whether grounds for appeal exist. Appellant also maintains that allowing the appeal period to begin with the issuance of the "full decision" would not prejudice the City.
Appellate review of a trial court's order granting a motion to quash an appeal as untimely is limited to determining whether the trial court abused its discretion or committed an error of law. Fraternal Order of Police, White Rose Lodge No. 15 v. City of York, 708 A.2d 855 (Pa. Cmwlth.1998). In the present case, the language of the parties' Working Agreement unambiguously requires the arbitrators' decision to be issued in writing within five working days. The February 22, 1999 letter definitively informed Appellant that the grievance was denied and set forth the basis for the panel's determination, i.e., Appellant's misconduct. In addition, Section 19-12 of the Working Agreement permits the five-day time limitation set forth in Section 19-8 to be extended by written consent of the parties; as the City observes, this section provides grievants the opportunity to delay a decision without filing a protective appeal. Thus, we reject Appellant's contention that the bargained for provisions of the Working Agreement leave grievants no alternative other than to flood the courts with unnecessary appeals.
We conclude that the trial court neither erred as a matter of law nor abused it *709 discretion in quashing Appellant's petition as untimely. Accordingly, we affirm.
ORDER
NOW, July 7, 2000, the order of the Court of Common Pleas of Allegheny County in the above matter is affirmed.
NOTES
[1] 42 Pa.C.S. § 5571(b).
[2] The narrow certiorari scope of review, applicable to arbitration awards involving police or fire personnel, limits courts to reviewing questions concerning: 1) the jurisdiction of the arbitrators; 2) the regularity of the proceedings; 3) an excess of the arbitrator's powers; and 4) deprivation of constitutional rights. Pennsylvania State Police v. Pennsylvania State Troopers' Association (Betancourt), 540 Pa. 66, 656 A.2d 83 (1995). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922439/ | 756 A.2d 731 (2000)
STATE
v.
Chester R. BRIGGS.
No. 99-145-C.A.
Supreme Court of Rhode Island.
July 17, 2000.
*732 Present WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Jane M. McSoley, Aaron L. Weisman, Stephen G. Dambruch, Randall White, Providence, for Plaintiff.
John F. Cicilline, Bristol, Marie T. Roebuck, Providence, for defendant.
OPINION
BOURCIER, Justice.
Chester R. Briggs stands indicted for the February 19, 1997, murder of Patricia Jacques. Following a pretrial hearing, a Superior Court trial justice granted Briggs's motion to suppress statements made by Briggs when questioned by members of the Rhode Island State Police at the New Hampshire State Police Headquarters, and to suppress introduction at trial of evidence found in a trash bag seized from a dumpster on property Briggs owned in New Hampshire. The state appeals.
The defendant Briggs appeals from the denial of his motion to suppress certain other statements he made prior to being questioned at the New Hampshire State Police Headquarters, and additionally contends that the trial justice erred in applying Rhode Island law when passing upon the various motions.
*733 Facts and Procedural History
On Wednesday, February 19, 1997, at 11:52 p.m., Tiverton rescue personnel were called to the scene of a shooting at 149 Nanaquacket Road in Tiverton, Rhode Island. There, Patricia Jacques (Mrs. Jacques), was discovered lying fatally shot near the property's adjacent stables. During a search of the crime scene, a handwritten note addressed to "Chester" was found. The note contained the defendant's fax number and requested an explanation concerning the return of money belonging to the victim. The ensuing homicide investigation revealed that Mrs. Jacques previously had entrusted approximately $80,000 to the defendant for safekeeping. The investigation further revealed that the defendant visited Mrs. Jacques's residence on the night before the murder and left a note indicating that he probably would return the next day. In addition, two witnesses saw a pickup truck similar to one owned by the defendant leave the general crime-scene area shortly after they heard gunshot sounds.
Two days later, on February 21, 1997, members of the Rhode Island State Police and the Tiverton Police decided to visit and speak with the defendant at his residence at 111 Kaime Road in Chichester, New Hampshire. Upon arriving in New Hampshire, the Rhode Island police were joined by a member of the New Hampshire State Police, and they went to the defendant's residence. Once there, they encountered Robert Courtemanche (Courtemanche), a neighbor and tenant of the defendant, who lived at 109 Kaime Road. Courtemanche told the police that Briggs was not home.
Shortly thereafter, the police, while waiting for Briggs to return, observed Courtemanche drive away in the defendant's pickup truck. They followed him for approximately fifteen miles to a multidwelling tenement house, also owned by the defendant, in Pittsfield, New Hampshire.[1] There they observed Courtemanche remove a white trash bag from the back of the defendant's pickup truck and throw it into a dumpster located in the property's parking lot. After Courtemanche left, the police immediately seized the bag and then followed Courtemanche back to Chichester.[2]
Soon afterward, at approximately 7 p.m., the defendant arrived home accompanied by a friend, Norman Cease (Cease). Detective Corporal Elwood Johnson, Jr.,[3] (Detective Johnson), Detective Nicholas Tella (Detective Tella) of the Rhode Island State Police and a member of the New Hampshire State Police greeted the defendant and offered him their condolences on the loss of his friend, Mrs. Jacques. After the detectives told him that they were conducting a homicide investigation and that they wanted to ask him some questions, the defendant invited the detectives into his home.
Inside his home, the defendant told the police that on February 18, 1997, he had been to the Jacques's home to give Mrs. Jacques $5,000. He revealed that she had called him the next day (the morning of her murder), and he volunteered to show the police his telephone caller ID box. He informed them that he kept a gun in the house and allowed the police to inspect it. Approximately fifteen minutes later, the detectives asked the defendant to accompany them to the New Hampshire State Police Headquarters (police station) for questioning. The defendant readily agreed. The defendant and the police then left the defendant's home in three *734 separate vehicles. The New Hampshire state trooper drove alone to the police station. Cease and the defendant drove in Cease's vehicle, and the Rhode Island detectives, in a third car, followed Cease and the defendant.
At the police station, they were met by Corporal Russell Conte (Corporal Conte) from the New Hampshire State Police. The defendant was brought into a small room, and Cease remained in the hallway. Before the questioning began, the defendant was informed that he was a suspect in the Jacques homicide investigation and was read his Miranda rights.[4] He read aloud the Miranda rights transmissions to the Jacques household, clothing, and a pair of new, but mud-covered, sneakers. police form, and then initialed and signed the form indicating that he understood all his Miranda rights. He additionally signed two written police consent forms in which he consented to the search of both his residence and his pickup truck. Subsequently, the defendant was questioned for approximately twelve to thirteen hours, six and three-quarter hours of which were tape-recorded.
During the course of the questioning, the defendant casually and readily explained his relationship with the victim and her two children, Ronald and Robin Seavey. Apparently, he met Mrs. Jacques some sixteen or seventeen years earlier, when her son Ronald was placed with him in foster care after becoming a ward of the State of New Hampshire. He explained that Mrs. Jacques and her husband previously had suffered financial difficulties and had given him approximately $100,000 of their assets to conceal from their creditors and from the Internal Revenue Service. Once their financial difficulties had been cleared, the defendant said he began returning their money to them at various intervals. He stated that he had returned the final installment of $5,000 in cash on the night before the murder by leaving it, and a note, in an envelope under the front seat of Mrs. Jacques's car. He claimed that Mrs. Jacques called him on the following day to thank him. The defendant stated that he first learned that she had been murdered when Ronald called him at approximately 10:30 p.m., on Thursday, February 20, 1997, the day after the murder.
During the course of the questioning by Detectives Johnson and Tella, they made numerous references to the defendant's sexual orientation and habits, his closet homosexuality, and his alleged sexual relationship with Ronald when Ronald was a minor.
At the suppression hearing, Detectives Johnson and Tella conceded that the majority of their unrecorded conversations with Briggs did, in fact, relate to sexual matters. The taped and recorded portion of the questioning also reveals that the detectives again asked the defendant many questions relating to those same matters. Such questions included: what kind of sex he participated in, with whom did he have sex, and whether he and Ronald were circumcised. During the thirteen hours of questioning, however, the defendant repeatedly denied any involvement in the murder and made numerous statements intended to exculpate himself from the homicide.
The record also reveals that the questioning of the defendant took place in a small room containing only a table, several chairs and a telephone. Although several breaks of varying duration were taken during the questioning, the defendant never was left alone, and when he went to the bathroom, he always was accompanied by an officer. Briggs's bathroom visits, it appears, actually were prompted by suggestion of the police. During the questioning, the defendant was offered food and drink, but he declined it. As the questioning progressed, the defendant, several times, began to inform the detectives that he was tired; however, at no time did he ever request a break or ask them to interrupt or to stop the questioning, and there is no evidence in the record to show that *735 the defendant ever asked for an attorney. His one request was to make a telephone call, and that request readily was granted.
It appears from the tape recordings of the questioning that the defendant always assumed that he would be released at the conclusion of the questioning, and he went so far as to offer to allow the Rhode Island State police detectives to sleep over at his house in New Hampshire before returning to Rhode Island.
At his pretrial motion hearing, the defendant moved to suppress all the statements that he made both while at his home and when later questioned at the police station. In addition, he moved to suppress the admission of the contents of the trash bag that the police had seized from the dumpster in the parking lot of the Pittsfield property that he owned. The defendant asserted that New Hampshire law, certainly favorable to him, should be applied by the trial justice in determining his suppression motions.
After the hearing on the suppression motion and after listening to the tape-recorded questioning and the arguments of counsel, the trial justice determined that he would apply Rhode Island law in ruling on the motions. He then granted the defendant's motion, suppressed all the statements the defendant made at the police station, and precluded admission at trial of the contents of the trash bag. He denied, however, the defendant's motion to suppress all his non-police-station statements. These appeals followed.
Additional facts will be provided as needed.
Analysis
1. The Defendant's Statements
(a) Choice of Law
The defendant asserts that the trial justice erroneously applied Rhode Island law in determining the admissibility of the statements that he made both at his residence (the non-police-station statements), as well as at the New Hampshire State Police headquarters (the police station statements). The defendant, apparently believing that the state would not be able to meet New Hampshire's higher standard of proof in determining the admissibility of his statements, contends that the law of that jurisdiction should have been applied.[5] He contends that his constitutional rights were violated when he made his statements in New Hampshire, and that New Hampshire had a greater interest in the outcome of the hearing because the statements were taken in that state, where he, the decedent's children, and many of the witnesses in the case resided. Consequently, he asserts that the trial justice should have applied New Hampshire law in determining the admissibility of his statements. We disagree.
We have stated previously that "the procedural law of the forum state applies even if a foreign state's substantive law is applicable." Israel v. National Board of Young Men's Christian Association, 117 R.I. 614, 620, 369 A.2d 646, 650 (1977). In the present case, the trial justice determined that Rhode Island law controlled the admissibility of the defendant's statements.[6]*736 In State v. Pailon, 590 A.2d 858, 863 (R.I.1991), we said that the reliability and concomitant admissibility of a confession is an evidentiary matter that is governed by the evidentiary laws of the forum.
Likewise, in this case, the admissibility of the defendant's statements was an evidentiary matter and concern; consequently, the law of the forum applied and the trial justice did not err when he applied Rhode Island law. See Pailon, 590 A.2d at 863; State v. Bello, 417 A.2d 902, 905 n.3 (R.I.1980) ("proving the admissibility of the evidence, as opposed to elements of the substantive crime, the standard of proof in this jurisdiction is `clear and convincing evidence' and not `beyond a reasonable doubt,'" quoting State v. Gianoulos, 122 R.I. 67, 73 n.2, 404 A.2d 81, 84 n.2 (1979)). See also John Bernard Corr, Criminal Procedure and the Conflict of Laws, 73 Geo.L.J. 1217, 1217 (1985); Wayne R. LaFave et al., 3 Criminal Procedure, § 10 (2d ed.1999).
(b) Suppression of the Statements
In this case, the defendant filed motions to suppress all the statements he gave while at his home and while in custody at the police station. The trial justice denied his motion to suppress the statements he made to the police at his home, but granted his motion to suppress all the statements he made at the police station.
We have stated that:
"In reviewing a trial justice's decision on a motion to suppress a confession that is claimed to be involuntary, we perform a two-step analysis. First, we review the trial justice's findings regarding the historical facts relevant to the voluntariness of the challenged confession. Next, we apply those historical facts and review the trial justice's determination as to the voluntariness of the challenged confession de novo." State v. Humphrey, 715 A.2d 1265, 1273 (R.I.1998) (citing Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996); State v. Campbell, 691 A.2d 564, 569 (R.I.1997)).[7]
In doing so, "we accord deference to the trial court's factual findings concerning the historical events pertaining to the confession by using a `clearly erroneous' standard of review." State v. Brouillard, 745 A.2d 759, 762 (R.I.2000) (quoting State v. Carter, 744 A.2d 839, 845 (R.I.2000)).
"We will reverse a trial justice's findings on a motion to suppress only if (1) his or her findings concerning the challenged statements reveal clear error, and (2) our independent review of the conclusions drawn from the historical facts establishes that the defendant's federal constitutional rights were denied." State v. Garcia, 743 A.2d 1038, 1044 (R.I.2000) (citing Humphrey, 715 A.2d at 1273). "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the basis of the entire evidence is left with the definite and firm conviction that a mistake has been committed." Humphrey, 715 A.2d at 1273 (quoting State v. Baton, 488 A.2d 696, 701 (R.I. 1985)).
At the conclusion of the evidentiary hearing, the trial justice ruled that the statements the defendant made while in his driveway and later in his home were admissible because they were given voluntarily *737 and at a time when he was not in custody. However, he suppressed all of the statements the defendant gave at the police station, finding that those statements were given involuntarily while he was in custody.
(i) The Non-Police-Station Statements
The defendant appeals from the trial justice's denial of his motion to suppress the non-police-station statements. He contends that the trial justice erred in denying the motion because he made those statements while in a custodial setting and had not been given Miranda warnings. He asserts that because the police considered him a suspect from the moment that they first met him, he was in custody at that point and his constitutional rights were violated when the police proceeded to take his statements.
"A person is seized or under arrest for Fourth Amendment purposes if, in view of all the circumstances, a reasonable person would believe that he or she was not free to leave." State v. Diaz, 654 A.2d 1195, 1204 (R.I.1995) (citing State v. Griffith, 612 A.2d 21, 23 (R.I.1992)). "In making this determination, a court may consider the following factors: (1) the extent to which the person's freedom is curtailed; (2) the degree of force employed by the police; (3) the belief of a reasonable, innocent person in identical circumstances; and (4) whether the person had the option of not accompanying the police." Diaz, 654 A.2d at 1204 (citing Griffith, 612 A.2d at 23-24).
Applying these factors to the present case, the record reveals that the trial justice correctly determined that the defendant was not in custody when he first met and talked with the police at his house; consequently, he was not entitled to any Miranda warnings at that time. Although the police may have suspected the defendant of having murdered Mrs. Jacques when they encountered him at his home, "an investigating officer's unarticulated plan has no bearing on whether a person is in custody at a particular time." Diaz, 654 A.2d at 1204-05 (citing Stansbury v. California, 511 U.S. 318, 324, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293, 299 (1994) (per curiam)). "The lack of any communication concerning the murder investigation is crucial because the only relevant inquiry is how a reasonable person would have understood his or her situation." Id.
In denying the motion to suppress the non-police-station statements, the trial justice found that the defendant personally invited the police officers into his house, and he later voluntarily admitted that he owned a weapon and showed it to at least one officer. In addition, the trial justice found that the defendant had voluntarily offered to show the police his telephone caller I.D. box, and had willingly agreed to go to the police station with them to answer more questions. In view of these findings, we conclude that the trial justice did not err in denying the defendant's motion to suppress his non-police-station statements.
(ii) The Police Station Statements
The state asserts on its part that the trial justice erred in suppressing the defendant's police station statements, contending that the defendant was not in custody when he gave his statements while at the New Hampshire State Police Headquarters. Second, it asserts that even if the defendant had been in custody, he gave those statements freely and voluntarily and after he was given his Miranda warnings.
In reviewing whether the defendant was in custody when he gave his statements while at the police station, the trial justice considered the length and duration of the questioning; the small size of the room in which the questioning took place; the fact that the defendant was never left alone and the fact that, other than on those few occasions when he used the bathroom, he did not leave the room. He found that *738 "[t]he questioning began harmlessly enough, but soon thereafter started to escalate in tone and aggressiveness and style * * * ." The trial justice found that although the defendant was read and understood his rights:
"the defendant was cajoled, demeaned, threatened with prosecution for obstruction and child molestation. He was consistently called a liar. Impliedly, his job was threatened. He was yelled at, and on occasions, the Detectives swore at the defendant. The officers were persistent in their questioning of the defendant's sexual preference and his overall sex life."
After reviewing the totality of the circumstances the trial justice found that "the defendant was in custody during the course of thirteen hours of interrogation," and he concluded that "any and all statements made during that period of time were involuntarily promulgated, due to the fact that the conduct of the police was inherently coercive, impairing and depriving this defendant's right of freedom of choice."
"Having reviewed the trial justice's determination as to the historical facts relevant to the voluntariness of a confession, this Court undertakes a second analysis and exercises its independent judgment in determining whether those historical facts establish a deprivation of constitutional rights." Humphrey, 715 A.2d at 1274 (citing Miller v. Fenton, 474 U.S. 104, 110, 106 S. Ct. 445, 449, 88 L. Ed. 2d 405, 411 (1985)).
"Both the Rhode Island and the Federal Constitutions bar the use in a criminal trial of a defendant's involuntary statements." Griffith, 612 A.2d at 25 (citing State v. Amado, 424 A.2d 1057, 1061 (R.I.1981)). "A determination of voluntariness must be made on the basis of all facts and circumstances, including the behavior of the defendant and the behavior of the interrogators, and the ultimate test `is whether the defendant's statements were the "product of his free and rational choice" * * * or the result of coercion that had overcome the defendant's will at the time he confessed.'" Id. (quoting Amado, 424 A.2d at 1062). "A statement is involuntary if it is extracted from the defendant by coercion or improper inducement, including threats, violence, or any undue influence that overcomes the free will of the defendant." Humphrey, 715 A.2d at 1274 (citing Griffith, 612 A.2d at 25).
"However, while more subtle methods, though sometimes harder to perceive, are equally to be condemned when they trammel on the rights of those in custody * * * it may take a discerning eye to tell those that are fundamentally unfair from those which are no more than permissible instances in which the police have played the role of a `midwife to a declaration naturally born of remorse or relief, or desperation, or calculation.'" People v. Tarsia, 405 N.E.2d 188, 192 (N.Y.1980) (citing Culombe v. Connecticut, 367 U.S. 568, 576, 81 S. Ct. 1860, 1864, 6 L. Ed. 2d 1037, 1043 (1961)). "`The mere fact that that admissions are made by an accused after a long period of interrogation by a police officer does not necessarily mean those admissions are involuntary.'" State v. LaPointe, 678 A.2d 942, 961-62 (1996). See also People v. Croney, 503 N.Y.S.2d 608, 609 (N.Y.App.Div.1986) (determining that, although not inconsequential, the voluntariness of an interrogation that lasted almost twelve hours "d[id] not, without more, render the confession defectively obtained").
In the present case, after reviewing the record and after carefully listening to the recorded tapes, we cannot say that the trial justice clearly was wrong when he determined that the defendant was in custody at the time that he gave his statements at the police station. However, after applying the law to the historical facts found by the trial justice, we conclude that the trial justice erred when he excluded all of the statements made by the defendant *739 at the police station. The record reveals that the defendant properly was informed of his rights under Miranda, that he fully understood his rights, and that he executed a voluntary and intelligent written waiver of those rights. The record additionally reveals, as the trial justice correctly noted, that the police did question the defendant for almost thirteen hours and that the questioning does appear to have escalated "in tone and aggressiveness and style." As the recorded tapes disclose, on several occasions, the defendant also informed the officers that he was tired, but nevertheless, they continued to question him.
Those factors alone, while not to be condoned, do not serve to automatically overcome the voluntariness of the defendant's statements. However, when, in response to a question the defendant informed the officers that "I'm so tired now, I can't really think," and, when the officers thereafter escalated the tone of their questioning and began to ask increasingly sexually explicit questions of little or no relevance, they then overstepped the defendant's constitutional barrier and stepped over the line of propriety. From that point on, his answers no longer were voluntary. We conclude that the trial justice erred when he proceeded to exclude the defendant's entire statement given at the police station. We discern that the defendant's statements before question 1261, page 186, clearly were voluntary. Because those statements were untainted by the officers' later improprieties, they should not have been suppressed, and the trial justice clearly erred in doing so. While a baby's bath water may get dirty, that fact alone does not justify throwing out the baby with the dirty water.
2. The Trash Bag
(a) Choice of Law
The defendant also asserts that the trial justice improperly applied Rhode Island law in determining the admissibility of the evidentiary contents of the trash bag. He asserts that New Hampshire has a greater interest than Rhode Island in the application of its law to this issue. He contends that under New Hampshire law, he has automatic standing to challenge the seizure,[8] and that New Hampshire law provides him with greater protections while placing a heavier burden of proof on the actions of the state. He then asserts that the New Hampshire case of State v. Westover, 666 A.2d 1344 (N.H. 1995) controls the outcome of this case.[9]
In resolving conflict-of-laws issues, this jurisdiction has adopted the "`interest-weighing approach'" and employs five guidelines in making such determinations. Victoria v. Smythe, 703 A.2d 619, 620 (R.I.1997) (per curiam). Those guidelines *740 are: "(1) [p]redictability of results[,] (2)[m]aintenance of interstate and international order[,] (3)[s]implification of the judicial task[,] (4) advance of the forum's governmental interest[, and] (5)[a]pplication of the better rule of law." Id. at 620-21 (quoting Woodward v. Stewart, 104 R.I. 290, 300, 243 A.2d 917, 923 (1968)).
At the suppression hearing, the trial justice conducted an interest-weighing analysis to determine which jurisdiction's law applied to the defendant's motion to suppress the contents of the trash bag. In concluding that Rhode Island law was applicable, the trial justice adopted the findings that he had made earlier when ruling on the defendant's motion to suppress the statements the defendant made to the state police detectives. There he found:
"one, that the place of the injury, that is to say, the murder of Patricia Jacques, took place in Rhode Island and was allegedly committed by this defendant; two, that Mrs. Jacques was a resident of the State of Rhode Island, residing in Tiverton; three, that the trial of this case will be held within the jurisdiction of Rhode Island; four, that Chester Briggs, the defendant, had at least a friendly relationship with the victim, Patricia Jacques, in the State of Rhode Island; five, that the State of Rhode Island has an interest in apprehending those who commit crimes within its borders and prosecuting those accused according to its laws; six, that many of the State's witnesses, such as police, medical examiner and various others either reside or are employed, or at the least were here when this homicide took place."
It is clear to us that the trial justice carefully analyzed the record evidence before him in finding that Rhode Island had the most significant interest in the outcome of this case. In viewing this analysis in light of the guidelines employed in Victoria, we conclude that the trial justice did not err when he applied Rhode Island law in ruling upon the constitutional validity of the police seizure of the trash bag.
(b) Suppression of the Trash Bag
The record reveals what we conclude to be the relevant facts concerning the trial justice's decision on the defendant's motion to suppress the evidence found in the trash bag. The defendant owned at least four residential properties in New Hampshire: his home in Chichester, the neighboring house where Courtemanche lived, and two properties in Pittsfield, a town located about fifteen miles from Chichester. One of the Pittsfield properties was a multidwelling tenement that had a communal dumpster in its parking lot. The defendant rented the dumpster from a private company for use by his tenants. At least two other people, namely, the defendant and Courtemanche, also used the communal dumpster. They did so because the Town of Chichester did not have a municipal garbage pickup service and they had to make arrangements for the disposal of their own trash.[10]
The defendant and Courtemanche both placed their trash in a communal trash can in the defendant's barn in Chichester. They mutually agreed that whenever one of them would travel to Pittsfield, that person would dispose of all their accumulated trash into the communal dumpster at the multidwelling tenement. Such accumulated trash included any overflow trash that the defendant may have placed in the bed of his pickup truck. The defendant permitted Courtemanche to use his pickup truck when he was not using it, and facilitated this use by leaving the keys to the pickup truck either in the ignition or in the ashtray. Courtemanche used the defendant's truck to run errands and to dispose of trash into the defendant's dumpster.
*741 On February 21, 1997, Courtemanche took the defendant's pickup truck to Pittsfield to run some errands. After discovering a trash bag in the bed of the pickup truck, Courtemanche drove to the defendant's tenement property and threw the bag into the communal dumpster. The police, who had been following Courtemanche, then seized the trash bag from the dumpster.
The defendant, in seeking to suppress the admission of the trash bag and its contents, asserted that the police seized the evidence in violation of his Fourth Amendment protections. After an evidentiary hearing, the trial justice granted that motion. The state appeals.
The state contends that the trial justice erred in suppressing the trash bag evidence. It asserts that because the defendant had abandoned the trash bag property, he retained no standing to challenge its taking and search by the police. In addition, the state avers that when the defendant left the trash bag contents out for disposal, he gave up any and all reasonable expectation of privacy in the trash bag or its contents. Many persons had ready access to the dumpster, and Courtemanche, as well as the defendant's other tenants, had ready access to the trash bag and its contents in an open and unlocked dumpster some fifteen miles from where the trash originated and had been discarded.
"Upon review of a trial justice's decision on a motion to suppress, deference is given to the findings of the trial justice, and those findings shall not be disturbed unless they are clearly erroneous." State v. Ortiz, 609 A.2d 921, 925 (R.I.1992) (citing In re Kean, 520 A.2d 1271, 1276 (R.I.1987); In re John, 463 A.2d 174, 176 (R.I.1983)). We have stated previously that:
"The proponent of a motion to suppress has the burden of establishing that the challenged seizure violated his own Fourth Amendment rights. * * * It is not enough for a defendant seeking to suppress evidence to show that a Fourth Amendment violation has occurred, rather some personal infringement must be established. * * * To determine whether a defendant should be allowed to assert infringement of his Fourth Amendment rights, we examine whether the individual had a legitimate expectation that those rights would be safeguarded." State v. Wright, 558 A.2d 946, 948 (R.I.1989).
In Rhode Island, "we employ a two-step process to determine from the record `whether a legitimate expectation of privacy sufficient to invoke Fourth Amendment protection exists.'" State v. Jimenez, 729 A.2d 693, 696 (R.I.1999) (per curiam) (quoting Wright, 558 A.2d at 948). "First we determine whether the defendant `exhibited an actual (subjective) expectation of privacy' and if that expectation is established, then we consider `whether, viewed objectively,' the defendant's expectation was reasonable under the circumstances." Id. (quoting Wright, 558 A.2d at 948-49). "Usually, the second part of the test, i.e., whether the asserted expectation of privacy was objectively reasonable, is the most disputed." Commonwealth v. Krisco Corp., 653 N.E.2d 579, 582 (1995). "This element is highly dependent on the particular facts involved and is determined by examining the circumstances of the case in light of several factors." Id. The relevant factors that are considered include:
"possession or ownership of the area searched or property seized, prior use of the area searched or property seized, the ability to control or exclude others' use of the property, and legitimate presence in the area searched." Wright, 558 A.2d at 949.
This Court previously has not addressed the issue of a warrantless search and seizure of garbage; thus, we will look to other jurisdictions for guidance.
"Whether a warrantless search and seizure of garbage is constitutionally reasonable depends on whether the defendant *742 had a legitimate expectation of privacy in the garbage." State v. Yakes, 226 Wis. 2d 425, 595 N.W.2d 108, 110 (1999) (citing Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L.Ed 2d 30 (1988)). "In garbage cases, Fourth Amendment reasonableness turns on public accessibility to the trash." United States v. Long, 176 F.3d 1304, 1308 (10th Cir.), cert. denied ___ U.S. ___, 120 S. Ct. 283, 145 L. Ed. 2d 237 (1999) (citing Greenwood, 486 U.S. at 41, 108 S. Ct. at 1629, 100 L.Ed.2d at 37).
"[W]hether the Fourth Amendment's protections are invoked to protect the sanctity of the home or of commercial property, the touchstone of the inquiry into the objective reasonableness of an expectation of privacy is whether the governmental intrusion infringes upon the personal and societal values the Fourth Amendment protects." United States v. Hall, 47 F.3d 1091, 1094 (11th Cir.), cert. denied 516 U.S. 816, 116 S. Ct. 71, 133 L. Ed. 31 (1995) (citing Oliver v. United States, 466 U.S. 170, 182-83, 104 S. Ct. 1735, 1743-44, 80 L. Ed. 2d 214, 227 (1984)). See also Yakes, 595 N.W.2d at 110 (stating that "[w]hile both residential and commercial property are protected from unreasonable searches and seizures by the Fourth Amendment * * * the factors probative of an objectively reasonable privacy expectation differ depending on the nature of the property").
"The fact that the test of the legitimacy of an expectation is the same in both the residential and commercial sphere does not mean, however, that the factors which tend to be of probative value in resolving the inquiry when the governmental intrusion involves a residence, are to be accorded the same weight when the inquiry is directed at the legitimacy of a privacy expectation in commercial property." Hall, 47 F.3d at 1095. "In order for persons to preserve Fourth Amendment protection in the area immediately surrounding [their] residence, they must not conduct an activity or leave an object in the plain view of those outside the area." Id. (citing United States v. Dunn, 480 U.S. 294, 316, 107 S. Ct. 1134, 1147, 94 L. Ed. 2d 326, 344-45 (1987) (Brennan, J., dissenting)). "The occupant of a commercial building, in contrast, must take the additional precaution of affirmatively barring the public from the area." Hall, 47 F.3d at 1095. See also Yakes, 595 N.W.2d at 111 (concluding that "`the owner of commercial property has a reasonable expectation of privacy in those areas immediately surrounding the property only if affirmative steps have been taken to exclude the public.'") (Emphasis added.) In the commercial context, the "failure to exclude the public takes on increased significance when the asserted expectation of privacy is in discarded garbage." Hall, 47 F.3d at 1096. The reason for this is because "[s]ociety does not recognize a reasonable expectation of privacy in `trash left for collection in an area accessible to the public.'" Long, 176 F.3d at 1308.
An instructive case in the context of the search and seizure of residential garbage is United States v. Redmon, 138 F.3d 1109 (7th Cir.1998), cert. denied 525 U.S. 1066, 119 S. Ct. 794, 142 L. Ed. 2d 657 (1999). There, the defendant lived in a townhouse with an attached garage, and he shared a common driveway with his neighbor. A municipal ordinance prohibited residents from placing garbage on the curbside for collection, so the defendant customarily placed his garbage cans outside his garage on the common driveway. Finding that the defendant did not have an objectively reasonable expectation of privacy in his garbage cans, the Seventh Circuit Court of Appeals stated that:
"[t]he paths to the front doors passing near the garbage cans without any obstruction were open to use by friends and guests of himself and his neighbors, as well as solicitors, strangers, postal people, and a myriad of others including animals, and even snoops * * *." Redmon, 138 F.3d at 1114.
*743 In the present case, the trial justice relied upon People v. Edwards, 71 Cal. 2d 1096. 80 Cal. Rptr. 633, 458 P.2d 713 (1969), to find that the defendant had a reasonable expectation of privacy in the seized trash bag. That reliance was misplaced. Assuming, without deciding, that the defendant even had standing to challenge the search and seizure of the trash bag in the first instance, we conclude that he did not have an objectively reasonable expectation of privacy in its contents.
In Edwards, the police searched a trash can that was located only a few feet from the back door of the defendant's home. Edwards, 80 Cal. Rptr. 633, 458 P.2d at 718. The contents of the trash can were "not visible without `rummaging' in the receptacle." Id. The defendants were the sole residents of the property. Id. After reviewing these particular facts and circumstances, the California Supreme Court concluded that the defendants exhibited an expectation of privacy that was reasonable. Id. Edwards is readily distinguishable from the present case.
In this case, the trash bag was thrown into a communal dumpster in the parking lot of a multidwelling tenement about fifteen miles from the defendant's residence. The defendant had a specific arrangement with Courtemanche concerning the disposal of each other's trash. The defendant specifically knew that if he placed trash in the bed of his pickup truck, Courtemanche, in accordance with their agreement, probably would throw the trash into the unlocked and open communal dumpster in Pittsfield, where it would be available to anyone curious enough to look into the dumpster and to take the bag for whatever reason they might have for doing so. Nevertheless, notwithstanding this knowledge, the defendant, placed the contested trash bag into the bed of his pickup truck. In doing so, he effectively abandoned his subjective expectation of privacy, and any expectation of privacy that later he asserted was objectively unreasonable.[11]
Even if the defendant had retained a subjective expectation of privacy while the trash bag remained in the bed of the pickup truck, that expectation became unreasonable after Courtemanche threw it into the communal dumpster.[12] The record indicates that defendant was the absentee landlord of the multidwelling property in Pittsfield, where the dumpster was located. Assuming that this does not require him to "take the additional precaution of affirmatively barring the public from the area" in order to preserve his Fourth Amendment protection, Hall, 47 F.3d at 1095, the fact that so many people had access to the dumpster dissipates any expectation of privacy that he may have had before the trash bag was dumped. Such people included *744 the tenants in the property, as well as the tenants' guests, solicitors, strangers, postal people, animals; indeed, on at least three occasions, even the police had access to the property.[13]See Redmon, 138 F.3d at 1114; see also Long, 176 F.3d at 1308. In addition, the private company that collected the trash also had access to the communal dumpster. Consequently, we conclude that the defendant had no objectively reasonable expectation of privacy in the disputed and disposed of trash bag, and that the trial justice erred in suppressing its contents.
For all the foregoing reasons, the state's appeal is sustained in part and denied in part. Its appeal from the trial justice's order as it concerns suppression of that portion of the defendant's February 21-22, 1997, statement given while at the New Hampshire State Police Headquarters, beginning with questions and answers Nos. 1 through 1260, is sustained. Its appeal from the trial justice's order as it concerns suppression of all questions and answers noted after question 1260 contained in the defendant's statement is denied.
The state's appeal from the trial justice's order suppressing admission of the trash bag and its contents is sustained.
The defendant's appeal from the trial justice's order denying his motion to suppress the statements he made to the Rhode Island State Police at his home at 111 Kaime Road in Chichester, New Hampshire, on February 21, 1997, and his request that all of his motions to suppress be decided in accordance with applicable New Hampshire law are denied.
The papers in this case are remanded to the Superior Court for further proceedings in accordance with this opinion.
NOTES
[1] The record indicates that the police were unaware that the defendant owned the tenement property at the time that they witnessed Courtemanche dispose of the trash bag.
[2] A subsequent search of the trash bag revealed documents in the defendant's name, records of fax transmissions to the Jacques household, clothing, and a pair of new, but mud-covered, sneakers.
[3] Detective Johnson since has been promoted to Detective Sergeant.
[4] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[5] Under New Hampshire law, the state has a higher burden of proof in determining the admissibility of a defendant's statement than that of Rhode Island. In New Hampshire, the law requires proof beyond a reasonable doubt. See State v. Sullivan, 130 N.H. 64, 534 A.2d 384, 387 (1987) (reiterating that the state has the burden to prove the voluntariness of a statement "beyond a reasonable doubt" before it may be admitted). Rhode Island law, however, requires only that the state prove the voluntariness of a statement by clear and convincing evidence. See State v. Nardolillo, 698 A.2d 195, 200 (R.I.1997) (requiring the state to "first prove by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily waived his constitutional rights expressed in Miranda * * *").
[6] In making this determination, the trial justice employed an interest-weighing approach. Because we conclude that the admissibility of these statements is controlled by Rhode Island evidentiary law, we need not comment on that analysis.
[7] "A `confession' is an individual's statement admitting all the elements of a crime. Distinct from a confession, an `admission' is a statement admitting some facts relevant to proof of a crime but not the crime itself. In terms of admissibility, there is generally no difference between an admission and confession.
"Exculpatory statements are those that deny wrongdoing. Although treated differently from admissions or confessions at common law, because of their frequent contemporary use for impeachment constitutional doctrine treats exculpatory statements as admissions." Edward J. Imwinkelried et al., 2 Courtroom Criminal Evidence § 2302 (3d ed.1998).
Thus, although the defendant never actually confessed, the standard of review for confessions is applicable to his admissions and exculpatory statements.
[8] The defendant cites to State v. Sidebotham, 124 N.H. 682, 474 A.2d 1377, 1379 (1984) for support of this proposition. However, that case appears to require only "that `automatic standing' be afforded to all persons within the State who are charged with crimes in which possession of an article or thing is an element." Id. (Emphasis added.) For purposes of a Fourth Amendment challenge and assuming that the defendant still "possessed" the trash bag after it was thrown into the dumpster, its contents certainly did not constitute an element of the crime of murder; consequently, the New Hampshire "automatic standing" doctrine does not appear to be available to the defendant.
[9] In State v. Westover, 140 N.H. 375, 666 A.2d 1344, 1348 (1995), the New Hampshire Supreme Court stated that "[w]hen a person abandons a possession * * * he or she gives up the right to be secure from unreasonable searches of that possession" and that a finding of abandonment is "`a question of fact based upon evidence of a combination of act and intent.'" In addition to a subjective determination of intent, the New Hampshire Court stated that "[a]lso relevant to a determination of abandonment are `where and for what length of time the property is relinquished and the condition of the property.'" Id. (quoting O'Shaughnessy v. State, 420 So. 2d 377, 379 (Fla.Dist.Ct.App.1982)). However, because we conclude that Rhode Island law applies in determining the admissibility of the contents of the trash bag, we need not conduct a Westover analysis.
[10] The trash disposal arrangements for the defendant's other Pittsfield tenants was not in evidence.
[11] "The issue in all abandonment cases is whether the accused has relinquished his reasonable expectation of privacy in the property by his conduct and not whether he has abandoned property in the property law sense." John Wesley Hall, Jr., 1 Search and Seizure § 13.3 (3d ed.2000).
"The distinction between abandonment in the property-law sense and abandonment in the constitutional sense is critical to a proper analysis of the issue. In the law of property, the question * * * is whether the owner has voluntarily, intentionally, and unconditionally relinquished his interest in the property so that another, having acquired possession, may successfully assert his superior interest. * * * In the law of search and seizure, however, the question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of the Fourth Amendment. * * * In essence, what is abandoned is not necessarily the defendant's property, but his reasonable expectation of privacy therein." Id. at 732 n. 32 (citing City of St. Paul v. Vaughn, 306 Minn. 337, 237 N.W.2d 365, 370-71 (1975)).
[12] We note here that, there is no evidence of any state action until the police removed the trash bag from the communal dumpster. See State v. Guido, 698 A.2d 729, 733 (R.I.1997) (acknowledging that "[t]he Fourth Amendment exclusionary rule is `based upon the deterrence of illegal police or prosecutorial actions, [and] it is not triggered by the actions of private persons however egregious they may be,'" quoting State v. Pailon, 590 A.2d 858, 861 (R.I.1991)).
[13] On February 16, 1997, the Pittsfield, New Hampshire, police responded to three separate complaints concerning apartment No. 6, located in the defendant's tenement building served by the dumpster in question. The first was a noise complaint, and was made by the occupant of apartment No. 4. The second and third complaints involved two domestic dispute incidents between a tenant of the defendant and that tenant's visiting boyfriend. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609617/ | 21 So.3d 99 (2009)
FORD MOTOR COMPANY, Petitioner,
v.
Joan HALL-EDWARDS, Individually and as Personal Representative of the Estate of Lance Crossman Hall, Respondents.
No. 3D08-3220.
District Court of Appeal of Florida, Third District.
October 21, 2009.
*100 Carlton Fields, and Wendy F. Lumish and Cristina Alonso, Miami, for petitioner.
Denney & Barrett, and Richard L. Denney, Oklahoma; Gustavo Gutierrez; Kaster & Lynch, and Bruce Kaster, Ocala; Alters, Boldt, Brown, Rash & Culmo, and Kimberly L. Boldt, Boca Raton, for respondents.
Before COPE, LAGOA, and SALTER, JJ.
SALTER, J.
Ford Motor Company seeks a writ of certiorari quashing an interlocutory circuit court "Order Determining Public Hazard Pursuant to Florida Statute § 69.081." The respondent, plaintiff below, sued Ford following the death of her son in 1997. Her son was a passenger in a 1996 Ford Explorer in a "rollover" traffic accident.
We grant the petition and quash the order because (1) the trial court departed from the essential requirements of law and (2) the order causes irreparable harm to Ford that should not await determination via a later and plenary appeal.
The Case and Motion
The respondent's lawsuit was filed in 1999. In 2007, this Court reversed a jury verdict and judgment against Ford because the trial court permitted, over objection, "testimony referencing other rollover accidents involving the Ford Explorer without requiring a showing of substantial similarity between those accidents and Hall's." Ford Motor Co. v. Hall-Edwards, 971 So.2d 854, 856 (Fla. 3d DCA 2007), review denied, 984 So.2d 1250 (Fla.2008). In three later cases here, we have considered (and in two of them, quashed) orders after remand, noting that "[t]his case appears to have gone astray after we reversed and remanded."[1]Ford Motor Co. v. Hall-Edwards, 997 So.2d 1148, 1152 (Fla. 3d DCA 2008).
This latest petition relates to a motion, hearing, and order after the case was remanded for a new trial. The respondent filed a "Notice of Public Hazard Pursuant to § 69.081 and Motion to Prevent the *101 Court from Entering Order Concealing Public Hazard" and noticed the motion for a one-hour evidentiary hearing. The motion asked the trial court to make a finding that "the Ford Explorer" is a "public hazard" under section 69.081, Florida Statutes (2008),[2] and to "enter no order concealing the `public hazard' from the public and prevent Ford Motor Company from concealing any information related to the Ford Explorer, including but not limited to trade secrets and other protected, confidential, and/or privileged documents." (Footnote added).
At the time the motion was filed, the trial court did not have pending before it a request by Ford to limit disclosure of case-related documents. The respondent also acknowledges that she is bound by the terms of a confidentiality order entered in federal multi-district litigation (MDL) involving Ford Explorer rollover lawsuits and pending in the United States District Court for the Southern District of Indiana. The record does not disclose any motion by the respondent in the MDL case to vary the terms of that order based on the allegedly-applicable Florida "public hazard" law.
Ford repeatedly asked the respondent to disclose any witnesses, documents, or other evidence to be relied upon by the respondent at the hearing on her motion. Two days before the hearing, the respondent provided Ford's counsel a listing, allegedly of 223 other Ford Explorer lawsuits, a graph showing deaths nationwide and in other countries (not previously produced), deposition excerpts from other cases (including the federal MDL case), and the affidavit of a statistician who had not previously been listed as a witness. Ford moved to strike the respondent's motion and notice on a number of grounds (including the alleged unconstitutionality of section 69.081).
At the hearing, the trial court declined to hear Ford's witnesses. A review of the transcript of the hearing discloses that it was not an evidentiary hearing in any traditional sense of that term, but rather a lengthy colloquy between the respondent's counsel and the trial court, a limited amount of questioning directed by the court to Ford's counsel, and then a review by the court of documents that were not authenticated or introduced into evidence.[3] Nonetheless, the trial court found that it had previously heard sufficient evidence of the dangerousness of the Ford Explorer (presumably in the hearing on the respondent's motion to amend the complaint to add a claim for punitive damages and regarding the admissibility of "other similar incident" evidence), and it therefore granted the respondent's motion. The trial court's order on the notice and motion found "Ford Explorer Models UN 46, UN 105, and UN 150"[4] to be "public hazards" under section 69.081, which "have caused and are likely to cause additional injury to the motoring public." The order also *102 found that the statute was constitutional. Ford's petition to this Court followed.
The Statute
Section 69.081, captioned "Sunshine in litigation; concealment of public hazards prohibited," prohibits a court from entering an order or judgment concealing "a public hazard or any information concerning a public hazard" or "any information which may be useful to members of the public in protecting themselves from injury which may result from the public hazard." A party seeking confidentiality for such information, including trade secrets, must file a motion and show good cause for the request, at which point the court "shall" examine the disputed information or materials in camera.[5]
The statute does not invite notices or motions simply to determine that a particular "device, instrument, person, procedure, product, or condition [of a device, etc.]" is a public hazard. As the caption and contents of the provision make clear, and as it pertains to this record, the statute governs attempts by a litigant to avoid disclosure of specific information or documents to the public. See Goodyear Tire & Rubber Co. v. Schalmo, 987 So.2d 142 (Fla. 2d DCA 2008).
The statute also does not address an important aspect of the record here, in which a federal court with jurisdiction over the MDL case has entered a confidentiality order by which the respondent admits she is bound. The respondent and the trial court apparently believed that the MDL court need not be advised of, and need not grant consent to, the respondent's attempt to alter the federal confidentiality order. Nor does the statute suggest what happens when the allegedly-confidential documents sought to be disclosed on "public hazard" grounds are subject to the attorney-client privilege or work product doctrine. The respondent's motion expressly asked the state trial court to apply the statute so as to prevent Ford from concealing information including "trade secrets and other protected, confidential, and/or alleged privileged documents." These questions might have been considered if the respondent made such a motion with respect to particular categories of documents rather than in a vacuum devoid of such details.
The Second District has held in a similar case that the parties must be afforded an opportunity to present evidence when the statute is sought to be invoked in this fashion. E.I. DuPont De Nemours & Co. v. Lambert, 654 So.2d 226 (Fla. 2d DCA 1995).
Analysis
First, Florida's Sunshine in Litigation Act, § 69.081, Fla. Stat. (2008), is applicable only if the trial court has entered a confidentiality order, or if there is a pending motion by the defending party for a confidentiality order. See id. § 69.081(3); Goodyear Tire & Rubber Co. v. Jones, 929 So.2d 1081, 1084 (Fla. 3d DCA 2005). The trial court has never entered a confidentiality order in this case, nor is there a pending motion for a confidentiality order filed by Ford. The respondent's motion under section 69.081 should have been summarily denied.
Second, the respondent acknowledges that she is bound by a confidentiality order entered by the United States District Court for the Southern District of Indiana in MDL litigation. Florida's Sunshine in Litigation Act does not override the terms *103 of the federal court order. If the respondent wishes to have relief from the federal order, she must apply to the federal district court.
Third, the respondent failed to provide Ford with adequate notice of (a) those documents the respondent sought to have examined in camera pursuant to the statute and (b) those witnesses and documents that would be relied upon by the respondent at the noticed evidentiary hearing to demonstrate that the Ford Explorer is a public hazard. The trial court did not conduct a formal, trial-like evidentiary hearing at which each side was permitted to offer evidence, make objections, and create a traditional evidentiary record. The respondent did not prepare, file, or serve a witness and exhibit list or a designation of specific testimony sought to be introduced. Testimony, deposition excerpts, and documents were not offered, admitted, or catalogued into the record of the hearing. The hearing transcript plainly demonstrates that Ford was not afforded the basic elements of reasonable notice of the evidence to be offered, a chance in court to object to the admissibility of deposition testimony and exhibits, and then a chance to present its own case in opposition. Lambert, 654 So.2d at 228.
Fourth, the respondent's motion and the order are overbroad, covering three model types and eleven model years (1990-2000), though the vehicle involved in the lawsuit was only one of the model types and model year 1996. These infirmities are, both individually and collectively, a departure from the essential requirements of law.
We also find irreparable injury that should not await review until a plenary appeal. The label "public hazard" is not to be affixed to an allegedly-dangerous product "like you would buckle a collar on a bird dog or paste a tag on an express package that is being forwarded to a friend."[6] Attention to a proper evidentiary hearing and due process are plainly required. Such a label has significant and far-reaching consequences in a day when court orders can make it around the world before the sun sets on the day they are filed. The respondent's counsel, who include lawyers and firms involved in many other lawsuits against Ford, wasted no time in disseminating the order. The statute was intended to preclude the concealment of specific information about a "public hazard," not simply to provide a tactical pejorative for counsel to use in other cases.
Finally, although Ford has raised and preserved substantial questions regarding the constitutionality of the statute, both on its face and as applied, we decline to address those issues because of the well-settled principle of judicial restraint applicable to constitutional claims. Here, as in North Florida Women's Health & Counseling Services, Inc. v. State, 866 So.2d 612, 640 (Fla.2003), "resolution of those claims is unnecessary for the disposition of this case."
Conclusion
For all these reasons, we grant the petition and quash the circuit court "Order Determining Public Hazard Pursuant to Florida Statute § 69.081" dated November 19, 2008.
Petition granted.
NOTES
[1] Ford Motor Co. v. Hall-Edwards, 990 So.2d 1073 (Fla. 3d DCA 2008) (denying a petition for prohibition following the trial court's denial of a motion to disqualify); Hall-Edwards, 997 So.2d 1148 (granting a petition for prohibition regarding privileged documents and work product); Ford Motor Co. v. Hall-Edwards, 5 So.3d 786 (Fla. 3d DCA 2009) (granting a petition for certiorari, without prejudice, regarding plaintiff's amendment to add a claim for punitive damages). The quotation appears in the second of these cited cases, 997 So.2d at 1152.
[2] Subsection (2) of the statute defines "public hazard" to mean "an instrumentality, including but not limited to any device, instrument, person, procedure, product, or a condition of a device, instrument, person, procedure, or product, that has caused and is likely to cause injury."
[3] The respondent maintains that Ford was invited to put on evidence and did not. Because the hearing was an evidentiary proceeding in name only, Ford correctly complained that it did not know what evidence the plaintiff had actually introduced, what matters had been considered by the trial court, and what exhibits were in the record.
[4] These codes represent Ford Explorer model years 1990-94 (UN 46); 1995-97 (UN 105); and 1998-2000 (UN 150). The vehicle involved in this case was, as noted, a 1996 Ford Explorer.
[5] Subsection (4) of the statute, though not implicated in this proceeding, also invalidates agreements or contracts concealing public hazards or information useful to the public in protecting themselves from injury that may result from the public hazard.
[6] Lee v. Sas, 53 So.2d 114, 116 (Fla.1951). Justice Terrell referred to slushy evidence about an alleged lien rather than an allegedly-defective product, but his description is apt. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609680/ | 81 N.W.2d 124 (1957)
DeRicci Powers HELLER, Plaintiff and Respondent,
v.
William E. HELLER & John Alsop, as Guardian ad litem for William E. Heller, Defendants and Appellants.
No. 7556.
Supreme Court of North Dakota.
February 11, 1957.
*126 Lanier, Lanier & Knox, Fargo, for appellants.
Nilles, Oehlert & Nilles, Fargo, for respondent.
BURKE, Judge.
In February 1954, plaintiff sued the defendant for divorce. On December 17, 1954, the District Court of Cass County entered its order fixing and allowing the plaintiff temporary alimony and support money for her and the small child of the parties in the sum of $200 per month for each month from and after March 1954. Notice of the entry and docketing of this order was served upon defendant's attorney on December 21, 1954. On April 1, 1955, the defendant served upon the plaintiff and her attorneys a notice of appeal from the order of December 17, 1954. On April 4, 1955, the defendant served a Notice of Motion to modify the order of December 17, 1954. This motion was denied upon June 8, 1955. On June 21, 1955, the plaintiff appealed from the order denying this motion. On August 4, 1955, pursuant to a motion by the plaintiff, a judgment was entered against the defendant for the total amount of temporary alimony and support money then past due and unpaid in the sum of $3,600. On September 22, 1955, defendant appealed from this judgment. All three appeals were argued together.
At the outset of our consideration of these appeals we are confronted with a jurisdictional question. The appeal from the order of December 17, 1954, was not taken until April 1, 1955. Notice of the entry of this order was served on December 21, 1954. Thus more than 60 days elapsed between the service of notice of the entry of the order and the appeal therefrom. The time for taking an appeal from an order is limited to 60 days. Section 28-2704, NDRC 1943. This limitation is jurisdictional and unless an appeal is taken within the limited time it is ineffectual for any purpose. Heald v. Strong, 24 N.D. 120, 138 N.W. 1114; Lake Grocery Co. v. Chiostri, 31 N.D. 616, 154 N.W. 533; Peterson v. Wolff, 68 N.D. 354, 280 N.W. 187. The appeal from this order must therefore be dismissed.
Upon the appeal from the order denying the motion to modify the order of December 17, it is urged that the trial court failed to give adequate consideration to the ability of the defendant to pay and to the plaintiff's ability to support herself; and that the reaffirmance of the award of December 17, constituted an abuse of judicial discretion.
At the hearing upon the motion to modify, affidavits as to the financial status and the health of the parties were presented to the court. In addition to the affidavits certain audit reports and an appraisal were also received in evidence.
These show that the defendant owns one third interest in an estate which is described as the Heller Trust. The property of the Trust consists of several tracts of real property which have a value in excess of $130,000. In 1953, the gross rental income from this property was $26,644.30 and the net income $16,968.55. In 1954, the gross income was $29,305.13 and the net was $15,960.55. In addition to his interest in the Heller Trust the defendant also owns an undivided half interest in a dairy farm of 1115 acres located in the Red River Valley near Fertile, Minnesota. As of December 13, 1954, the dairy herd comprised 49 cows, 8 heifers, 20 calves and two bulls. According to an audit report submitted, the livestock had a value of $7,000 and the land and buildings a value of $23,500. The total farm assets were stated to be $30,521 and the liabilities $27,591.62 leaving a net worth *127 of the farm as an asset in the sum of $2,929.88.
It is interesting to note, however, that the depreciation schedule for this farm shows buildings and equipment which cost in excess of $17,000 and 39 milk cows which cost $11,490 or over $290 a head. To us this indicates that the valuation of $7,000 which is now placed on 69 head of dairy stock and the valuation of $23,500 now placed upon the buildings and equipment and 1,100 acres of land can only be considered as ultra conservative.
The defendant has been mentally ill for several years. He has been treated in hospitals specializing in the care of the mentally disturbed. At times he has shown improvement and at other times relapses. Whether he ever again will be able to engage in his profession as a lawyer is very doubtful.
The plaintiff owns 83 acres of land located near Fargo which were given to her by the defendant. The crop rental income from this land is $500 a year and the rental of the tenant house thereon amounts to $320 a year. In addition the plaintiff has an income of $1,154 a year from investments. Thus her total income is $1,974 a year.
The plaintiff is emotionally unstable and while her case is probably not as aggravated as that of the defendant she also has received institutional treatment for mental or nervous disorders. It appears from the record that the small child of the parties of which the plaintiff has custody needs regular medical care.
There can be no doubt that the parties are confronted with an exceedingly difficult problem. They are both ill and in need of costly medical care. The ability of either to earn any substantial sums is doubtful. Each has an expectancy of many years of life. The welfare of a small daughter is also at stake. These considerations point up the advisability of keeping the income producing assets of the parties intact and in limiting the allowance for support to one which can be paid out of defendant's income.
The statute which authorizes an award of temporary support pendente lite is Section 14-0523, NDRC 1943. It vests the court with discretionary power to require the payment of any money necessary for support or to prosecute or defend the action. The main considerations in making an allowance for support money are the needs of one party and the ability of the other to pay. 27 C.J.S., Divorce, § 212, p. 906. In Bailey v. Bailey, 22 N.D. 553, 557, 134 N.W. 747, we said: "* * * all she is entitled to is to be placed on an equality, * * * so far as the ability to prosecute or defend the action * * *."
It was urged by defendant that he should not be required to pay support money because he is indebted to the Heller Trust in the sum of $3,790. This contention cannot be sustained. Defendant's first duty is to his family and we have no doubt from reading the record that defendant can make arrangements with the Heller Trust to pay or defer the payment of this indebtedness without materially impairing his income producing assets or his ability to pay the support ordered.
The defendant also states that he would like to devote all of his income to a long and expensive treatment which he believes would completely rehabilitate him. He states that if the plaintiff's income is not sufficient to support her and the child of the parties, that she has well-to-do relatives who will see that they are well cared for. Such a proposal completely ignores the fact that it is statutory duty of the husband and father to support his wife and child. Sections 14-0703, 14-0908, NDRC 1943. The wife cannot be compelled to rely upon contributions from her relatives, which may or may not be grudgingly made. The income of both parties must be devoted equitably in so far as it *128 will reach, to the support of the whole family.
Our consideration of the record in this case raises a serious question in our minds as to whether the total income of the parties is sufficient to provide the support, care and treatment that is reasonably necessary and desirable for the whole family. In this situation all we can do is to approve an award which in our opinion will divide what income there is upon a basis which we consider fair and equitable.
As has been pointed out the income of the plaintiff is in round figures $2,000 a year. That of the defendant is $5,300. The total is $7,300. We think it fair to allow each of the parties $3,500 a year and to the plaintiff who has custody of the child the additional $300 for her support. Thus the defendant should pay to plaintiff monthly support at the rate of $1,800 a year, or $150 each month. We therefore direct that the order of the district court allowing support at the rate of $200 a month be modified accordingly.
The next question which confronts us is whether this modification can apply to installments of support money which were past due and unpaid under the original order at the time defendant made his motion for modification. Upon this question there is considerable contrariety of opinion in the reports of decisions. The weight of authority, numerically, favors the view that the right to such past due installments vests in the party entitled thereto under the order and that therefore they are not subject to modification upon motion made subsequent to their due date. The other view which is supported by substantial and well reasoned authority is to the effect an order of modification may be made effective retrospectively as well as prospectively. See Annotation, 94 A.L.R. 331; Nelson on Divorce, 2d ed. Chapter 17, Sec. 17.05. In Nelson on Divorce it is stated: (2d ed. Ch. 17, 17.05 pp. 423, 424) "The minority view, holding past-due as well as future installments subject to change by the court, seems to be much more in accord with reason than the majority rule." We are in accord with this statement at least in so far as it relates to temporary alimony where the award is for support alone and is not concerned with a property division. This distinction is emphasized in Duss v. Duss, 92 Fla. 1081, 111 So. 382. In that case the court said that there is a marked distinction between an award of permanent alimony and an allowance of support pendente lite as there is no absolute or vested right in a party to receive or collect temporary alimony. We therefore direct that the modification heretofore ordered be made applicable retrospectively as well as prospectively.
Our decision that the original order may be modified with respect to past due installments brings within the scope of this decision the contention that it was error for the court to make its original order of December 17, 1954, relate back to March 1, 1954. We think this contention is sound for the obvious reason that at the time of the application the plaintiff had received support from some source during the period from March to December so that an allowance for support during that period was not necessary. In Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 12 A.L.R.2d 1051, this court had under consideration an award of $419.24 for hospital and medical expenses which were incurred six months prior to the application for support money. In that case the court said that the defendant should have paid and could have been compelled to pay this expense as a part of his duty to support his wife but held that the trial court erred in including the item in its allowance for temporary support, because it was not necessary for plaintiff's support to pay a debt incurred six months prior to the application for the award. The expenses incurred by the plaintiff for her support, prior to her application for an allowance for support, fall into the same category and for that reason the order of the district court must *129 be further modified by striking the provisions of the order which made it retroactive to March 1, 1954. As amended the order will provide for an allowance of $150 a month after December 17, 1954.
It follows that the judgment appealed from must be amended to conform to the order of the district court as modified by this court. The case is remanded to the district court for further proceedings in conformity with this opinion.
GRIMSON, C. J., and JOHNSON, SATHRE and MORRIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609716/ | 81 N.W.2d 892 (1957)
James E. MILLARD, Plaintiff and Respondent,
v.
Raymond V. BAKER, d/b/a Bakertrux, Frank Wurnig, d/b/a Wurnig Bottling Company, Stanley G. Scott, Falls Distributing Company, a partnership, John T. Nelson, John T. Nelson, Jr., and Harvey L. Anderson, Defendants,
of which Frank Wurnig, d/b/a Wurnig Bottling Company is Appellant.
No. 9571.
Supreme Court of South Dakota.
March 25, 1957.
Boyce, Warren, Murphy & McDowell, Sioux Falls, for defendant and appellant, Frank Wurnig.
Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiff and respondent.
RUDOLPH, Judge.
Plaintiff brought this action against several defendants to recover damages sustained in an automobile accident. The jury returned a verdict for plaintiff against the defendants Wurnig, Baker and Scott. The defendant Wurnig has appealed.
The facts so far as here material are as follows: Baker operating his business under the name of "Bakertrux" owned a fleet of motor trucks and maintained a pool of drivers to operate them. The truck involved in the accident was a truck owned by Baker and operated by Scott, a driver from the Baker pool. However, it appears that Baker had a method of doing business whereby he leased his trucks to those wanting service, under an agreement which provided that the lessee would employ and pay the driver of the leased truck. Wurnig *893 had used the service of Baker on a number of occasions prior to the trip here concerned which was a trip to Minneapolis to return a load of goods to Wurnig who lived at Winner. The accident occurred in Iowa, and in that state the owner of a motor vehicle is liable for any negligence of a driver if the motor vehicle is driven with the consent of the owner. Other than the issue of Scott's negligence the important issue at the trial was whether Scott was the employee of Baker or Wurnig. The court instructed the jury on this issue, and under these instructions the only basis for Wurnig's liability was an employer-employee relationship between Wurnig and Scott. The court further instructed the jury that under the laws of Iowa Baker was liable for any negligence of Scott, Baker being the owner of the truck and it being driven with his knowledge and consent. Under the verdict of the jury, therefore, we have this situation with respect to the parties; Scott was held liable because of his negligence, Wurnig was held liable as the employer of Scott and Baker was held liable under the Iowa law simply by virtue of his ownership of the truck.
As stated above Wurnig is the only appellant. Respondent has moved to dismiss the appeal because the notice of appeal was not served upon Baker.
SDC 33.0703 requires that the notice of appeal be served upon the "adverse party". It has long been established in this state that every party whose interest in the subject matter is adverse to or will be affected by a reversal or modification of the judgment appealed from is an "adverse party", within the meaning of SDC 33.0703. Hence a codefendant whose interest will be affected by a reversal of a judgment appealed from by another defendant must be served with notice of appeal. Crouch v. Dakota, W. & M. R. R. Co., 22 S.D. 263, 117 N.W. 145; Union Bond & Mortgage Co. v. Brown, 64 S.D. 352, 266 N.W. 720; Union Bond & Mortgage Co. v. Brown, 64 S.D. 596, 269 N.W. 472; Wallace v. Brende, 66 S.D. 582, 287 N.W. 328.
The answer to the motion to dismiss, therefore, lies in a determination of whether the interest of Baker will be affected by a reversal of the judgment. As the matter now stands, if Baker is compelled to pay the judgment he will be entitled to indemnity from Wurnig. The rule is set forth in Restatement, Restitution, Sec. 96, as follows: "A person who, without personal fault, has become subject to tort liability for the unauthorized and wrongful conduct of another, is entitled to indemnity from the other for expenditures properly made in the discharge of such liability." In Comment "a" to said Sec. 96, it is stated that the rule applies where by statute the owner of a motor vehicle, without fault, is made liable for the negligence of another who drives the motor vehicle with the owner's permission. And in 42 C.J.S., Indemnity, § 21, p. 598, it is stated, "* * * the owner of a motor vehicle who has been subjected to liability to a person injured through its operation, under a statute imposing such liability by virtue of his ownership, is, although the statute does not so provide, entitled to be indemnified by the wrongdoer."
In the Minnesota case of Lunderberg v. Bierman, 241 Minn. 349, 63 N.W.2d 355, 360, 43 A.L.R.2d 865, Bierman had left a car with Lunderberg to be repaired. An employee of Lunderberg negligently injured another employee while testing the car. Bierman's liability to the injured person was imposed by statute. The court held that Bierman was entitled to indemnity from Lunderberg. The court said, "The active negligence was that of Ilstrup [the employee]. As to Mrs. Bierman, that negligence is imputed to Lunderberg Motor under the doctrine of respondeat superior. Ilstrup's negligence, insofar as the rights of Mrs. Bierman are concerned, is that of Lunderberg Motor." See also Rozmajzl v. Northland Greyhound Lines, 242 Iowa 1135, 49 N.W.2d 501.
*894 It follows that a reversal of the judgment against Wurnig will adversely affect Baker in that he will lose his right to be indemnified by Wurnig should he be compelled to pay the judgment. Under the cases above cited the failure to serve Baker is fatal to the entire appeal.
The motion to dismiss the appeal is granted.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611071/ | 166 N.W.2d 785 (1969)
STATE of Iowa, Appellee,
v.
Michael Alan FREESE, Appellant.
No. 53163.
Supreme Court of Iowa.
April 8, 1969.
*786 Scalise, Scism, Gentry & Brick, by Robert B. Scism, Des Moines, for appellant.
Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and Raymond A. Fenton, County Atty., for appellee.
SNELL, Justice.
Defendant has appealed from the judgment following a jury verdict of guilty of illegal possession of narcotic drugs, i. e. marijuana, in violation of section 204.2, Code of Iowa.
On appeal defendant claims reversible error in the admission of evidence obtained without a search warrant and the sufficiency of admissible evidence to convict. The problems will be considered together.
Miles Joseph Goodwin was the lessee and occupant of a small apartment. He and defendant had worked at the same place and were acquainted. Defendant needed a place to stay. Goodwin told defendant it was all right if he moved in with him. Defendant moved in and was there about two weeks. He paid $20 toward the rent.
There was testimony that defendant was planning a "pot party" in the apartment. Goodwin testified that defendant had borrowed and used a small medicine bottle, talked about its contents and asked Goodwin if he wanted to try some. "By trying some he meant smoke some. I said I am a baby to that stuff; that's the exact words." He also testified:
"I didn't see Mike Freese put that substance in there. He told me he put it in. * * *
"I went to Officer Stanley and told him there was marijuana in the apartment. I told him I'd heard there would be a party in the apartment. I heard this at the pancake house. I didn't give any advice to Officer Stanley as to where to go in the apartment. I did tell him what to look for. * * *
"On February 1, 1968, some police officers came to my apartment. They had a conversation with me in regard to searching the apartment. I gave my consent. Mr. Freese was there at the time. They went in and searched. I was not present. I was down in the patrol car. * * *
"I gave officers permission to enter my apartment. I was there when they entered the apartment just until the door was answered. I went down and waited in Officer Stanley's car. Stanley had radioed the other officers."
Defendant testifying in his own behalf told of his activities during the day of January 31, 1968. We quote from the record:
"I returned to the apartment between 11:00 and 12:00 sometime. I went directly to bed, on the floor. Shortly after I was awakened by a knock on the door. I asked who it was, and the man said `Police Officers.'
"Q. Did you open the door? A. At that time, no. I asked again. I had just woke up, and he said `Police Officers. We want to see you,' and then I opened up the door.
"Q. Did the police officers ask to come in? A. At that time, yes.
*787 "I said they could come in. They did not advise me of the reason they were there at that time. About five minutes passed before they did. This was between 12:00 and 1:00, I don't know exactly, the morning of February 1. I observed the police searching my apartment. I asked them what they were looking for, I believe Sgt. Backstrom told me. What they found wasn't mine. I don't know whose envelopes or vial they are. I don't know personally what's in State Exhibit 1. I don't smoke marijuana or use it in any form. * * *
"I did not put that substance identified as marijuana in that vial. It is not a fact I was going to have a pot party. I never invited anyone up there to have a pot party. I did not invite Mr. Goodwin to smoke marijuana with me. I let the police in willingly. I never noticed the vial on the window sill. * * *"
Six police officers testified for the state. They testified as to consent to and entry into the apartment. They had no search warrant. The officers looked around. They saw and took possession of some green plant substance on the coffee table. Defendant was placed under arrest and advised of his constitutional rights. What this green plant substance was does not appear. Continuing the officers found a plastic jar in the bathroom window still containing a substance thought to be marijuana. The state chemist after analysis testified that the substance was marijuana. Further discussion of the testimony is unnecessary.
I. Standing to object to admissibility of evidence seized as a result of illegal search and seizure is not limited to an owner or tenant. However, there is a difference between having standing to challenge the admissibility of evidence seized and merit in the objection. Here defendant had standing to object but there was no merit in his objection. See State v. Moore, Iowa, 156 N.W.2d 890 and authorities cited therein.
II. The burden of demonstrating that evidence has been illegally procured normally devolves upon the accused in a motion to suppress such evidence but where the prosecution relies upon consent to an otherwise illegal search and seizure it has the burden of proving by clear and convincing evidence that the consent was voluntary. State v. Shephard, 255 Iowa 1218, 1222, 124 N.W.2d 712, and State v. Polton, 259 Iowa 435, 143 N.W.2d 307.
The question is one of fact to be decided upon its own circumstances. State v. Shephard, supra, loc. cit. 1223, 124 N.W. 2d 712; see also State v. Collins, Iowa, 152 N.W.2d 612, 615.
In this case, as in State v. Moore, supra, there are two questions. Was there consent to enter the apartment and, if so, may someone other than defendant give consent? As we did in Moore, we now hold that here there was no illegal search and seizure.
The evidence is undisputed that Miles Goodwin, who rented the apartment, gave his consent to an entrance and search of the apartment. The defendant himself admitted the officers, and allowed the search. There was no forcible entry.
Our holdings are in accord with the United States Court of Appeals for our circuit.
In Wright v. United States, 389 F.2d 996, 998, the United States Court of Appeals, Eighth Circuit, had this same question before it. We quote:
"This leads us to the critical legal issue which is whether a joint tenant or resident of an apartment has authority to consent to the entry and search thereof. This court and other courts have held that where there are multiple lawful residents of a premises, any one of such persons may give permission to enter and that if incriminating evidence is found, it may be used against all. In Drummond v. United States, supra, [350 F.2d 983] we cite supporting *788 authorities and summarize the applicable law as follows:
"`One having equal authority over premises may authorize a search of them. [Citations]'
"We adhere to the position taken in the cases just cited and hold that the officers entered the apartment and took the evidence sought to be suppressed with the voluntary consent of Summers and that Summers had a lawful right to occupy and use the apartment and permit others to enter it.
"Defendant relies upon landlord and tenant cases such as Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed. 2d 828, and hotel clerk cases like Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856. Such cases are readily distinguishable from joint occupancy cases like our present case for the reasons pointed out in Drummond, supra, and Maxwell v. Stephens, 8 Cir., 348 F.2d 325, 336-338.
"Defendant's contention that there can be no valid search without a warrant, absent an emergency situation, is refuted by United States v. Rabinowitz, 339 U.S. 56, 64, 66, 70 S.Ct. 430, 434, 435, 94 L.Ed. 653. In that case the Court, among other things, holds:
"`Assuming that the officers had time to procure a search warrant, were they bound to do so? We think not, because the search was otherwise reasonable, as previously concluded. * * *
"`The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.'"
III. As stated supra, Division II, the question is one of fact to be decided upon its own circumstances. Here, officers were alerted that there was marijuana in an apartment. The lessee gave his permission to enter and search the apartment. The defendant admitted the police officers, and permitted them to search the apartment, after they had "explained the nature of our business there and asked if we could look around." There was no evidence the officers in any way entered the room by breaking or forcing their way into the apartment. Nothing improper appears.
IV. It is well settled that, once lawfully admitted, police officers do not need to close their eyes as to what is in plain view. As stated in State v. Moore, supra, "If without a search warrant and without an unlawful entry officers are not required to close their eyes and need not walk out and leave articles seen." See also State v. Peterson, Iowa, 155 N.W.2d 412.
In State v. Shephard, supra, this appears:
"* * * if the party who has possession or control of the premises and property voluntarily consents to a search, the right of privacy is not invaded and the fact the search may disclose evidence tending to incriminate an absent party who may have an equal right to possession or control does not affect the reasonableness or legality of the search. For a full discussion of the authority for another to consent to a search and seizure see anno: 31 A.L.R.2d 1078." (loc. cit. 1227 of 255 Iowa, loc. cit. 717 of 124 N.W.2d) See also State v. Moore, supra.
Defendant's complaints are without merit.
The case is
Affirmed.
All Justices concur, except RAWLINGS, J., who dissents, and BECKER, J., who concurs in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609836/ | 249 Minn. 80 (1957)
81 N.W. (2d) 705
STATE EX REL. NADINE JAROSZEWSKI
v.
OLGA MAE PRESTIDGE AND ANOTHER.
CHARLES WILLIAM HALLER, A MINOR, BY CHARLES HEMPERLEY, HIS GUARDIAN AD LITEM, AND ANOTHER, INTERVENORS.
No. 36,723.
Supreme Court of Minnesota.
February 21, 1957.
*81 Samuel Saliterman and James P. Larkin, for appellants.
Joseph L. Nathanson and Philip J. Levy, for respondent.
George Scott, County Attorney, and Theodore R. Rix, Assistant County Attorney, for intervenors.
FRANK T. GALLAGHER, JUDGE.
Appeal from an order of the district court in habeas corpus proceedings instituted in the District Court of Hennepin County by respondent Nadine Jaroszewski to obtain custody of her 11-year-old son living with appellants, Olga Mae Prestidge and Henry Thomas Prestidge, in Minneapolis. Proceedings were held before the Honorable Levi M. Hall, who on June 24, 1955, made the findings of fact and conclusions of law directing appellants to deliver custody of the child to respondent from which appeal was taken.
The appeal to this court required a de novo determination here pursuant to M.S.A. 589.30. On July 7, 1955, an order was made by this court appointing the Honorable Paul W. Guilford, retired judge of the District Court of Hennepin County, to hear and report all evidence in said matter without findings of fact. Pursuant to *82 that order testimony was adduced before said referee by both parties, and on October 7, 1955, the referee certified a transcript of the testimony to this court. The matter was placed upon the calendar for oral argument March 5, 1956. Prior thereto respondent filed with this court a motion to strike from appellant's reply brief matters relating to alleged newly discovered evidence and to suppress the same and in the alternative asking that in the event the motion be denied that respondent be given additional time to meet the newly discovered evidence contained in appellant's reply brief. That motion was also heard on March 5, 1956.
On that date both parties appeared through their counsels, at which time it was made to appear by representations of the attorneys for the appellants that the respondent and her husband were in the process of getting a divorce; that they did not reside together and did not maintain a home to which the child might be taken in the event that respondent prevailed in this action. These representations presented a situation materially at variance with the evidence adduced before the referee, Paul W. Guilford, relating to respondent's circumstances at that time. The respondent represented that if given an opportunity to meet the claims of appellants by supplementary hearing, evidence would establish that she had a proper home in which to raise the child. The offer of proof submitted by the respective parties presented a conflict in an important issue in this case and the court thereupon, on March 20, 1956, appointed the Honorable Lars O. Rue, a retired judge of the District Court of Hennepin County, as referee with directions to take supplementary testimony regarding the present marital status of the respondent, also whether or not she intended to reside with her husband and whether divorce proceedings were pending, and such additional evidence as might touch upon the subject of whether the respondent maintains a fit and proper home in which the minor child might reside. Thereafter the referee certified a transcript of the testimony presented in connection with that hearing.
On July 10, 1956, upon the petition to this court of Olga Mae Prestidge, one of the appellants, Charles Hemperley was appointed *83 guardian ad litem of said minor and was authorized and directed to appear and represent the minor in this action.
A brief resume of the facts relevant to our determination shows that respondent comes from a home broken by the death of her father when she was ten years old, necessitating her living with brothers and sisters. She was first married during 1942 in Arizona at the age of fifteen years to Elmore W. Haller, and a son, Terry Louis, not involved in these proceedings, was born of that marriage. On October 30, 1944, she separated from her husband and went to Chicago, where she became acquainted with William Andert, son of appellant, Olga Mae Prestidge. Although the evidence is conflicting, she testified that she was pregnant at that time by her husband, Elmore Haller, and she so advised Andert. A few days after meeting Andert she came with him to Minneapolis to stay with Andert's mother and stepfather, the appellants. Respondent and Andert represented that they were married and lived together for a few months as husband and wife. In February 1945, she went on to California and saw her husband, Haller, who had instituted divorce proceedings. She remained with her mother in Califorina until the child concerned in these proceedings was born September 23, 1945. A short time afterward respondent went to Washington, D.C., with the child and stayed with a Mrs. Charles Jones who took care of the baby until respondent returned to appellants' home in Minnesota, approximately six weeks later. After about a month or two in Minnesota, respondent left the baby with appellants and went to California for about six weeks and then to Amarillo, Texas, where she married one Hughes. She then came to Minnesota for her baby and returned to Texas. She and her new husband then moved to Rock Island, Illinois, where both worked and someone took care of the baby. Hughes left her shortly thereafter and she wrote to appellants telling them of her troubles. William Andert then came to Rock Island and took the baby back to appellants in Minnesota with the apparent understanding that the boy would be returned when respondent was able to take care of the child and had a home for him. The child has resided with appellants from November, *84 1946, has gone under the name of Charles Prestidge, and until recently has believed appellants were his mother and father.
From 1946 until 1951 respondent worked at various jobs in various cities. She began dancing in night clubs in about 1951 and traveled "coast to coast" until finally becoming more or less established in Cleveland, Ohio, where she is now employed at the Gay Nineties night club. Respondent's dancing is characterized as "interpretive dancing," which involves body contortions but not the removal of clothing.
The evidence establishes a somewhat loose moral life on the part of respondent during the entire period considered here, and the police records of Cleveland indicate she was investigated for soliciting for the purpose of prostitution. The evidence also establishes she was married and divorced twice since she left the child with appellants in 1946, making a total of four marriages and divorces. There is also evidence that she held herself out as the wife of a fifth man. At the time this proceeding was begun in district court and during the hearing before the first referee, she maintained that she was "very happy" with her fourth husband, Jaroszewski. The record shows, however, that after that hearing she began suit for divorce, which has now been procured.
Respondent saw her child about three times from 1946 to 1948. In the latter year she began a suit for custody but did not carry it through. She did not see the child again from that time until 1951, and from 1951 to the present she has not seen him except in connection with these proceedings. Her explanation for this was to the effect that she thought appellants had established custody in the 1948 suit which she did not complete. She did make inquiries occasionally concerning his welfare during the 1946 to 1956 period. She made some attempts to regain the child in 1946, 1947, 1948, and 1951. Each time, however, she acquiesced in appellants' reasoning that she had no home for the child and no sure means of taking care of him. Although the respondent said she made between $125 and $150 a week as a dancer, she did not contribute financially to the *85 child's care. She testified that the letters sent by her containing money were returned unopened.
At the time this suit was originated the respondent had quit dancing and was selling Avon products. She has since returned to dancing. Her hours would require someone to care for the child from 9 p.m. until 4 a.m.
The appellants, although their family history with their own two children is not without fault, have maintained a satisfactory home for the child herein concerned as well as another child of a relative a little girl whom they have raised as brother and sister. Testimony in this regard was adduced from their church pastor and neighbors. The child involved herein is healthy, well adjusted, and progressing normally in school, except for some recent disturbances possibly caused by this litigation. The Prestidges would have to be regarded as a family in a rather low income bracket, but Mr. Prestidge has held a job steadily with General Mills since 1934, excepting a five-year period when he engaged in farming. The child testified he liked the Prestidges, called them "Mom" and "Dad," and said he wanted to remain with them.
The legal issues raised by the respondent are: (1) Whether this court has jurisdiction to award custody of the minor child to appellants; and (2) whether the evidence is such as to justify the court in depriving respondent of the custody of her child.
1. In connection with the first issue, respondent reasons that the child takes the domicile of his mother, which is presumably Ohio, and that only the state of domicile can determine custody. She cites State ex rel. Larson v. Larson, 190 Minn. 489, 252 N.W. 329, and State ex rel. Carlson v. Hedberg, 192 Minn. 193, 256 N.W. 91, in support of her position.
The Larson case, supra, involved a habeas corpus proceeding in district court upon the petition of a divorced wife challenging the right of her divorced husband to the custody of the minor child of the parties. Although the parties were married in Minnesota they were later domiciled in Iowa, where the divorce was granted. The Iowa court awarded custody of the child alternately to each *86 parent for six months out of each year. After the divorce decree was entered, the mother returned to Minnesota and reestablished a domicile in Duluth while the father remained in Iowa. At the expiration of one of the six-month residence periods of the child in Minnesota with its mother, the latter first refused to surrender the child to its father, but after some delay, occasioned by a hearing on an order to show cause, she surrendered the child. Before the father could remove the child to Iowa, the mother served on him a writ of habeas corpus challenging his right of custody. At a hearing pursuant to the writ, the trial court made an award of custody of the child to the mother. From that decree the father appealed, contending among other things that our court had no jurisdiction over the minor child. In that case this general rule and an exception to it were stated (190 Minn. 491, 252 N.W. 330):
"* * * A proceeding to determine custody of a minor child partakes of the nature of an action in rem, the res being the child's status or his legal relationship to another. Except where necessary as a police measure * * *, it would seem that the only court which has power to fix, to change, or to alter this status is the court of the state in which the minor child is domiciled."
We held there that, during the six-month period in which the child was domiciled in Minnesota, living with her mother, our court had jurisdiction to determine its custody and was not bound by the full faith and credit clause of the constitution to give effect to the Iowa decree.
In the Carlson case, supra, decided about four months after the Larson case, a county court in Wisconsin had appointed a general guardian of the persons and estates of two minor orphan children domiciled in Wisconsin, whose parents died while they were domiciled in Wisconsin. The children were brought to Minnesota and were left there with a Mr. and Mrs. Hedberg, who later petitioned for guardianship of the children. In a contest between the Hedbergs and the Wisconsin general guardian, the court awarded custody to the general guardian after stating the rule that the only state which had jurisdiction to appoint a guardian was the state *87 where the child was domiciled. The court based its decision entirely upon its holding that the court in Wisconsin, where the children were domiciled, had jurisdiction to appoint a general guardian over the children, and upon its determination that the welfare of the children did not require that a guardian be appointed for the children in Minnesota.
It will be noted that the fact situations in both the Larson and Carlson cases are different from the one at bar and that in both those cases the general rule above referred to was not used to achieve the result respondent contends for here, namely, to deny this court power to make a determination on the merits in a custody proceeding because the child, although a resident, is, allegedly, not a domiciliary of Minnesota.
In the instant case we have a situation where the child involved has resided continuously in Minnesota for more than ten years. There has never been an award of custody of the child by any foreign state. The courts are nearly unanimous in holding that, where there is no outstanding judicial award of custody by a foreign court, the court has power to make an award of custody of children present in the state in furtherance of the welfare of the children even though the children may be domiciled without the state. Annotation, 4 A.L.R. (2d) 16.
In In re Adoption of Pratt, 219 Minn. 414, 18 N.W. (2d) 147, this court determined that notwithstanding the fact that the domicile of an illegitimate child was in Tennessee nevertheless the child being lawfully in Minnesota the court could appoint a guardian of the person of the minor child and could render an adoption decree in favor of residents of Minnesota. This court said in that case that the jurisdiction of the state extends to all persons within its territorial limits, regardless of the place where they are domiciled; and explained that from earliest times infants and other persons who lacked the physical and mental capacity to protect themselves or their property had been accorded special protection. This court said there that the state possesses this protective power as an attribute of its sovereignty and exercises the power in the *88 manner provided by statute. It then went on to say that since the duty of protection extends to all unfortunate and helpless persons the necessity of exercising the state's protective power depends upon the presence of such persons within its territorial limits and not on the place of their domicile or their ownership of property within the state, citing Bliss v. Bliss, 133 Md. 61, 104 A. 467. It further stated that in some cases the broad statement is made that a guardian of the person of an infant may be appointed only at the place of the child's domicile, which is an expression of the rule that ordinarily the appointment of a guardian should be made at the infant's domicile. That rule, however, according to the Pratt case, cannot be followed to the extent that a state may not exercise jurisdiction to appoint a guardian for a resident child, whose domicile is in another state, where the welfare of the child requires such action.
The later case of In re Guardianship of Kowalke, 232 Minn. 293, 299, 46 N.W. (2d) 275, 281, showed there was no inconsistency between the Larson and Carlson cases and the Pratt case by pointing out that the rule of the Larson case included the exception, "Except where necessary as a police measure," that the Pratt case came within this exception, and also that the appointment of a temporary guardian did not alter status.
Thus it appears that proceedings, such as temporary guardianship, which do not alter status can be determined in a state of residence. In re Adoption of Pratt, supra. The rule laid down in that case is also in accordance with the rule in Restatement, Conflict of Laws, § 150, which is as follows:
"A temporary guardian can be appointed in any state in which a defective person or a child is found. "Comment:
"a. Distinction between temporary guardianship and status. The appointment of a temporary guardian under the rule stated in this Section does not create a status, first, because the court has no jurisdiction over the status of the ward (see § 149), and secondly, because the relation is in its nature local and temporary. In so far *89 as it affects the child, a temporary guardian is similar to a custodian appointed under § 148."
As indicated above, a custody determination does not necessarily purport to alter status and therefore can be determined in a state of residence. Restatement, Conflict of Laws, § 148, provides that in any state into which the child comes, upon proof that the custodian of the child is unfit to have custody of the child, the child may be taken from him and given to another person. Comment a provides: "This action will be effective within the state."
In State ex rel. Ashcroft v. Jensen, 214 Minn. 193, 7 N.W. (2d) 393, involving a somewhat similar fact situation for jurisdictional purposes, this court took jurisdiction and denied custody to the mother even though the question of jurisdiction apparently was not argued.
It is our opinion, under the particular circumstances here, that this court has jurisdiction to determine custody of the child involved.
2. We next come to the question whether the evidence is such as to justify this court in leaving custody of the child with the appellants. The law to be applied in the determination of custody requires that the welfare and best interests of the child be the basis of the decision. 6 Dunnell, Dig. (3 ed.) § 2800; 14 Dunnell, Dig. (3 ed.) § 7297; 8 Dunnell, Dig. (3 ed.) § 4133, and cases cited.
However, it is fundamental that parents have a natural right to the child and in order to deprive a parent of custody in favor of a third person there must be grave reasons shown. Factors to establish such grave reasons would be neglect, abandonment, incapacity, moral delinquency, instability of character, or inability to furnish the child with needed care. State ex rel. Nelson v. Whaley, 246 Minn. 535, 75 N.W. (2d) 786. There is a presumption that a mother is a fit and suitable person to care for her child and the burden is on the contestant to overcome that presumption. State ex rel. Platzer v. Beardsley, 149 Minn. 435, 183 N.W. 956.
While it will serve no useful purpose to go into all the details of the varied matrimonial life and activities of the respondent in the *90 case at bar, it is our opinion that the welfare of the child involved will be best served by granting custody to the appellants. It is always difficult for a court to decide that a natural mother shall be deprived of the custody of her child. However, under the facts and circumstances here, we feel that it will not be for the best interests of the child at his tender age to take him away from the home and environment, church and school connection, which he has known up to now, and place him in the custody of respondent.
The record shows that he has been raised and cared for by appellants since he was a few months old; that they still desire to have him live with them; and that the boy seems happy and contented with his present home and environment. We believe that a serious emotional upset could result if a transfer of custody were made at this time. One of the considerations in our decision is the fact that there has been no satisfactory showing of a stable home or proper environment if custody were given to the respondent, nor has there been any convincing showing that her type of work and life have changed sufficiently so that the child should now be placed in her custody.
We realize that respondent has apparently not had the advantage of a sound and secure home during her own childhood and adolescence, which factor may have influenced her life. While her numerous divorces, her somewhat questionable moral life, and her type of work may not, standing alone, be sufficient to determine our decision, the combination of them all demonstrates an instability of character which leaves grave doubts as to her ability at present to furnish the child with the needed care and home he requires, although her persistence through the years in attempting to regain control of the child demonstrates some affection which cannot be overlooked.
Respondent questions the court's right to utilize the report of the Hennepin County probation office. On oral argument the question of the report of the Hennepin County welfare agency was discussed and the court requested that the reports be filed in this court. While we considered the record here, in itself, sufficient for our determination of this case, this court did refer to an investigation made in *91 Oregon in the State ex rel. Ashcroft v. Jensen case, supra, a custody case where the court was chiefly concerned in the welfare of a child.
Reversed.
JUDGE THOMAS GALLAGHER took no part in the consideration or decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609840/ | 249 Minn. 205 (1957)
81 N.W. (2d) 789
DWIGHT E. CONNOR AND ANOTHER
v.
TOWNSHIP OF CHANHASSEN.
No. 36,953.
Supreme Court of Minnesota.
March 8, 1957.
*206 Bowen & Bowen, for appellant.
John A. Fahey, for respondents.
MURPHY, JUSTICE.
This is an appeal from a declaratory judgment action in which the plaintiffs, Dwight E. Connor and his wife, Gladys Z. Connor, sought to have the Zoning Ordinance for the Township of Chanhassen declared unconstitutional.
The plaintiffs own certain land in the township of Chanhassen upon which Mr. Connor operates a shop for sharpening lawn mowers and other types of general repair work. In 1952, the plaintiffs had to *207 destroy their building pursuant to condemnation proceedings commenced by the State of Minnesota to acquire a highway right-of-way. The zoning ordinance was passed in March 1952, and according to its terms, Mr. Connor's shop constituted a nonconforming use of the land. However, any lawful use of the land at the time the ordinance was adopted could be continued, even though it was a nonconforming use, as long as it was not extended to occupy a greater area of land, was not moved to another part of the land, or was not rebuilt after being 50 percent or more destroyed. M.S.A. 366.18. Mr. Connor petitioned the town board to rezone his premises as a business district. This petition was not granted but the board indicated that it would permit him to rebuild his shop and continue to operate it in the same manner as he had in the past. Mr. Connor did rebuild his shop and has been operating it ever since.
The zoning ordinance provided for the division of the township of Chanhassen into six districts, but the whole township was originally designated as a farm-residence district. After an amendment, this designation meant that land and buildings in the community could be used for (1) general farming or gardening; (2) commercial greenhouses and nurseries; (3) stands for the sale of agricultural products produced on the premises; (4) stockraising and dairying; (5) golf courses; (6) airports, cemeteries, and gun clubs; (7) one or two family dwellings; (8) public parks; (9) churches and schools; (10) colleges, libraries, or community buildings; and (11) offices of professional persons when located in the dwelling. After a later amendment, three sections of the township were zoned for industrial purposes. Business establishments could of course be built in the industrial zone.
Even though the plaintiffs have not been interfered with in the continuing of their business in the rebuilt shop, they are technically violating the ordinance and thus subjecting themselves to the possibility of being fined $100 a day while the violation continues. It was to eliminate this possible liability and to improve the marketability of the property that the plaintiffs brought this action to have the zoning ordinance declared invalid and unconstitutional.
*208 The plaintiffs commenced their first action in September 1953, but it was dismissed in September 1954, upon their own motion. They then commenced the present action for the same cause the following day. The trial court found for the plaintiffs, holding that the zoning ordinance is an unreasonable, arbitrary, and capricious exercise of the police power, and that therefore the ordinance is unconstitutional. The trial court placed special emphasis on the facts that the plaintiffs' business was inoffensive and not a nuisance and that this is a rural rather than an urban community.
1. The first issue in this case is whether there is a justiciable controversy between the parties here so as to permit the bringing of a declaratory judgment action. It is clear from the record that the respondents are violating the terms of the ordinance. Mr. Connor destroyed his old shop and rebuilt it on a different portion of his land. Section 11(a) of the ordinance reads in part as follows:
"* * * nor shall any such non-conforming use be extended to occupy a greater area of land than that occupied by such use at the time of the adoption of this plan; * * *."
Section 11(f) provides that the owner of the building or land in or upon which a violation of the regulations has been committed is subject to a $100 fine for each day that the violation continues. The plaintiffs claim that the ordinance is wholly unconstitutional and invalid. They are entitled to know whether they are subject to this considerable fine, regardless of the fact that the town board told them that they could continue operating their rebuilt shop. State ex rel. Smith v. Haveland, 223 Minn. 89, 25 N.W. (2d) 474, 174 A.L.R. 544.
The township asserts that a declaratory judgment action was an incorrect method to raise the question brought up on this appeal. The claim is that the plaintiffs should have exhausted their administrative remedies by seeking a review by writ of certiorari of the town board's action in failing to grant a petition to rezone the plaintiffs' property. M.S.A. 555.01 provides in part:
*209 "Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed."
Section 555.02 provides:
"Any person * * * whose rights, status, or other legal relations are affected by a * * * municipal ordinance, * * * may have determined any question of construction or validity arising under the * * * ordinance, * * * and obtain a declaration of rights, status, or other legal relations thereunder."
In Montgomery v. Minneapolis Fire Dept. Relief Assn. 218 Minn. 27, 15 N.W. (2d) 122, this court quoted with approval from an article by Professor Borchard in 18 Minn. L. Rev. 239, stating that the general purpose of the Declaratory Judgments Act is to afford an alternative remedy which can be used whether or not further relief is or could be claimed. In a suit to test the validity of a municipal ordinance, this court held that a declaratory judgment action was proper, quoting with approval the following rule: "The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate." Barron v. City of Minneapolis, 212 Minn. 566, 569, 4 N.W. (2d) 622, 624. We are presented here with a controversy as to legal rights which requires judicial interpretation and are of the view that the declaratory judgment action was an appropriate remedy. Notes 5 and 29 following § 555.01 in 36 M.S.A. pp. 58 and 64; Arens v. Village of Rogers, 240 Minn. 386, 61 N.W. (2d) 508.
2. The township claims that the dismissal in the first case brought by the Connors concerning the validity of the zoning ordinance was in effect a dismissal on the merits. This contention may be disposed of readily. Rule 41.01(2) of the Rules of Civil Procedure states in part: "Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice." The order did not specify either that it was with or without prejudice, and so under Rule 41.01(2) it was a dismissal without prejudice and not a dismissal on the merits. 2 Youngquist & Blacik, Minnesota Rules Practice, p. 359.
*210 3. The board of supervisors of a town in a county bordering on a county containing a city of the first, second, or third class is authorized by § 366.10 to submit to the voters of the town the question whether or not the board shall adopt zoning regulations. That procedure was followed here, and the voters of the township of Chanhassen so authorized the board.
"* * * Under its police power, the governing body of a village or municipality, in the interests of public health, safety, morals, or general welfare, may restrict an owner's use of his property for commercial or annoying occupations deemed undesirable to the community as a whole." State ex rel. Howard v. Village of Roseville, 244 Minn. 343, 347, 70 N.W. (2d) 404, 407.
See, also, State ex rel. Beery v. Houghton, 164 Minn. 146, 204 N.W. 569, 54 A.L.R. 1012, affirmed, 273 U.S. 671, 47 S. Ct. 474, 71 L. ed. 832.
"Insofar as zoning ordinances are concerned, it has frequently been held that what best furthers public welfare is a matter primarily for determination of the legislative body concerned * * *." State ex rel. Howard v. Village of Roseville, 244 Minn. 347, 70 N.W. (2d) 407.
See, also, Kiges v. City of St. Paul, 240 Minn. 522, 62 N.W. (2d) 363; State ex rel. Beery v. Houghton, supra.
This court held in State ex rel. Howard v. Village of Roseville, supra, that even when the reasonableness of the zoning ordinance is debatable, it is not the function of the courts to interfere with the discretion of the legislative body on such matters; if the regulation is not clearly unreasonable and arbitrary, and if it operates uniformly on all persons similarly situated in the particular district, which was not itself selected arbitrarily, it will be upheld. State v. Modern Box Makers, Inc. 217 Minn. 41, 13 N.W. (2d) 731.
In State ex rel. Beery v. Houghton the court said (164 Minn. 150, 204 N.W. 570):
"* * * With the crowding of population in the cities there is an active insistence upon the establishment of residential districts from *211 which annoying occupations and buildings undesirable to the community are excluded."
That case involved the validity of an ordinance of the city of Minneapolis which excluded four-family flat buildings from a designated district, but the statement quoted applies as well to the instant case. The township of Chanhassen, which has a population of 1,795, is largely argicultural and has numerous lakes. It is located on the edge of a large and expanding metropolitan area. The township government may well anticipate the effects of the inevitable overflow into its area, the first evidences of which are already apparent, and it may be expected to use the protective measures which §§ 366.10 to 366.18 provide to determine the future character of the area in a manner it deems will be in the best interests of the public welfare of the community. It was certainly within the discretion of the town board to determine that the township of Chanhassen is to remain a rural-residential community where its inhabitants may enjoy use or ownership of property free from the hazards of indiscriminate uses of land which might depreciate the value of surrounding property and impair its livability.
"* * * It is presumed that the legislative body investigated and found conditions such that the legislation which it enacted was appropriate." Dennis v. Village of Tonka Bay (8 Cir.) 156 F. (2d) 672, 674.
Merely because the town board provided in the original ordinance that the entire township was classified as farm-residential does not make the ordinance so arbitrary as to render the ordinance unconstitutional. A municipality on the periphery of a large metropolitan center may constitutionally pass a one-use ordinance in order to retain its residential character. Valley View Village v. Proffett (6 Cir.) 221 F. (2d) 412; Village of Old Westbury v. Foster, 193 Misc. 47, 48, 83 N.Y.S. (2d) 148, 150.
In sustaining the validity of a zoning ordinance, the United States Supreme Court in Village of Euclid v. Ambler Realty Co. 272 U.S. 365, 389, 47 S. Ct. 114, 118, 71 L. ed. 303, 311, 54 A.L.R. 1016, 1025, said:
*212 "* * * Such laws may also find their justification in the fact that, in some fields, the bad fades into the good by such insensible degrees that the two are not capable of being readily distinguished and separated in terms of legislation. In the light of these considerations, we are not prepared to say that the end in view was not sufficient to justify the general rule of the ordinance, although some industries of an innocent character might fall within the proscribed class."
The power to declare a zoning ordinance unconstitutional should be exercised only when there is no reason whatsoever to support the determination of the legislative body or when the determination is clearly erroneous and such error appears from facts which cannot be controverted. City of Los Angeles v. Gage, 127 Cal. App. (2d) 442, 274 P. (2d) 34.
4. In support of the contention that the ordinance as adopted is unconstitutional, the plaintiffs assert that the regulations do not conform to § 366.14 which provides that the regulations "shall be made in accordance with the comprehensive plan." It is contended that the zoning of sections as commercial or business districts is necessary to establish comprehensive zoning. The plaintiffs point out that the industrial districts established by the amended ordinance created an area in the southern tier of sections not suitably located for business available to the use of residents in the township area.
The comprehensive plan, as far as the record in the case before us is concerned, is found in the zoning regulations themselves in light of the purpose of the regulations as expressed in § 366.14 which provides that the regulations shall promote the "health, morals, convenience, order, prosperity, or welfare of the present and future inhabitants of any such town, including * * * lessening congestion in streets or roads * * *; securing safety from fire and other dangers; * * * preventing, on the one hand, excessive concentration of population and, on the other hand, excessive and wasteful scattering of population or settlement;" with a view to facilitating and conserving "provisions for transportation, water flowage, water *213 supply, drainage, sanitation, educational opportunities, recreation, soil fertility, * * * and protection of both urban and non-urban development."
A comprehensive plan, as used in restrictive enactments relating to zoning ordinances, has been defined as "a general plan to control and direct the use and development of property in a municipality or a large part thereof by dividing it into districts according to the present and potential use of the properties." Miller v. Town Planning Comm. 142 Conn. 265, 269, 113 A. (2d) 504, 505. The reasonableness of a zoning regulation may depend upon the suitability of its particular provisions as applied to the character of the area involved. While the general purposes must relate to health, safety, morals, and general welfare of the community, its provisions may deal with the problem of conserving and encouraging the most appropriate use of the land throughout the community. Duffcon Concrete Products v. Borough of Cresskill, 1 N.J. 509, 64 A. (2d) 347, 9 A.L.R. (2d) 678.
It appears from an examination of the authorities as well as the language used in § 366.14 that the term "comprehensive zoning" does not necessarily mean a plan which makes allowances for the establishment of districts to be set aside for various commercial and professional purposes which provide a defined area with complete business and professional service. The term comprehends that the ordinance shall take the place of and include within its provisions the numerous ordinances which were formerly enacted independently and included such subjects as "Tenement House Codes," "Sanitary Codes," "Fire Zone" provisions, and parts of "Building Codes," as well as provisions with reference to codes relating to restrictions with reference to height, proportion of parcels that must be kept open, and unbuilt yard lines, etc. 1 Metzenbaum, Law of Zoning (2 ed.) p. 15.
The reasonableness of a zoning ordinance must be judged by the circumstances in each particular case. We cannot say that the ordinance here, which is designed to deal with an area that has its own character and its own particular problems and potentials, is unreasonable. *214 Village of Euclid v. Ambler Realty Co. 272 U.S. 365, 47 S. Ct. 114, 71 L. ed. 303, 54 A.L.R. 1016.
5. Section 11(a) of the ordinance provides that "the lawful use of any land or building existing at the time of the adoption of this plan may be continued, although such use does not conform to the regulations" and goes on to provide that no such nonconforming use "of land shall be enlarged or increased, nor shall any such nonconforming use be extended to occupy a greater area of land than that occupied by such use at the time of the adoption of this plan; nor shall any such non-conforming use be moved to any other part of the parcel of land upon which the same was conducted at the time of the adoption of this plan." This provision was apparently intended to comport with § 366.18 which provides that the regulation "shall not prohibit the continuance of the use of a building for any trade or industry for which such building was used at the time the resolution took effect or the alteration of or addition to any existing building or structure for the purpose of carrying on any prohibited trade or industry within the zone where such structures are located."
The plaintiffs had a vested right to the business conducted on the premises together with its goodwill. This vested interest exists as a right protected by U.S. Const. Amend. XIV; Minn. Const. art 1, § 7, independent of the regulations and statute above noted. The State of Minnesota has taken by eminent domain one-fourth of the one-acre tract on which the plaintiffs operated their business. The building in which the business was conducted was located in the condemned area. To continue their business the plaintiffs moved their operations to the remaining property, and the question arises as to whether or not they may be permitted to continue such business there in view of the fact that section 11(a) provides that the nonconforming use may not be moved to any other part of the parcel of land.
We are presented with the question as to whether the fortuitous exercise of the sovereign right of eminent domain may operate to bring into play the prohibition of section 11(a) of the ordinance so *215 as to deprive the plaintiffs of their vested interest in the use of the premises for the purpose of carrying on an established business. It is true the plaintiffs were compensated by the state for the property taken from them; but it does not follow that such compensation included the loss of their business with its goodwill. There is nothing in the record to warrant the assumption that the price paid for condemnation included as well the compensation to plaintiffs for the loss of the right to continue their business. "The state, on taking land for a public use, is not required to pay the owner for expense of removing his business to another place, or for damage from interruption of business and good will." 6 Dunnell, Dig. (3 ed.) § 3050; Banner Milling Co. v. State, 240 N.Y. 533, 148 N.E. 668, 41 A.L.R. 1019; Minneapolis-St. Paul Sanitary Dist. v. Fitzpatrick, 201 Minn. 442, 277 N.W. 394, 124 A.L.R. 897.
The sovereign right of eminent domain which authorizes the taking of property for public use also contemplates compensation for such taking. The police power, however, which is authority for the ordinance in question, operates in the interest of public welfare by restricting an individual in the use of his property with no provision for compensation for loss. State ex rel. Beery v. Houghton, 164 Minn. 146, 204 N.W. 569, 54 A.L.R. 1012.
In O'Connor v. City of Moscow, 69 Idaho 37, 202 P. (2d) 401, 9 A.L.R. (2d) 1031, the Supreme Court of Idaho considered a zoning ordinance which provided that a change of ownership of an existing type of business would be deemed a new or additional business which would deprive the purchaser of the right to continue to operate the property as a nonconforming use. The plaintiff who had been operating a business of the type, continuance of which after sale was proscribed by the ordinance, desired thereafter to sell his business and lease the premises in connection therewith, but was unable to do so because of the ordinance. He brought suit for declaratory judgment to have said provision of the ordinance declared invalid. It was held that that particular provision of the ordinance was an arbitrary and unreasonable exercise of the police power and *216 was an unconstitutional denial of due process of law. The court said (69 Idaho 41, 202 P. [2d] 403, 9 A.L.R. [2d] 1035):
"An ordinance which prohibits the continuation of existing lawful businesses within a zoned area is unconstitutional as taking property without due process of law and being an unreasonable exercise of the police power."
A right to conduct a business, together with the right to the goodwill thereof, is property within the due process clause of the constitution. See, 12 Am. Jur., Constitutional Law, §§ 651, 655; State v. Cowen, 231 Iowa 1117, 1123, 3 N.W. (2d) 176, 180.
This court has held that goodwill may be regarded as personal property incident to the business to which it is attached and may be a subject of substantial value because of the reasonable expectation of its continuance. 15 Dunnell, Dig. (3 ed.) § 7850; 8 Id. § 4045; Aldrich v. Wetmore, 52 Minn. 164, 172, 53 N.W. 1072, 1074; Johnson v. Bruzek, 142 Minn. 454, 172 N.W. 700; Haugen v. Sundseth, 106 Minn. 129, 118 N.W. 666. The police power, as expressed in an ordinance, is subordinate to the constitution which is the supreme law of the land. U.S. Const. art. I, § 10; Id. art. VI; Minn. Const. art. 1, § 7, 16 C.J.S., Constitutional Law, § 196; 12 C.J., Constitutional Law, § 440.
We think that section 11(a) of the ordinance insofar as its interpretation would deny the plaintiffs the right to continue the operation of their business on the remainder of their property constitutes an unreasonable police regulation restricting the right of use of the plaintiffs' property for business purposes contrary to the provisions of the constitution. 12 Am. Jur., Constitutional Law, §§ 652, 655; 16 C.J.S., Constitutional Law, § 196; see, also, State v. Chicago, M. & St. P. Ry. Co. 68 Minn. 381, 71 N.W. 400, 38 L.R.A. 672; U.S. Const. Amend. XIV; Minn. Const. art. 1, § 7.[1]
*217 Nor can it be fairly argued that the plaintiffs might retain their business and goodwill by moving their operations to a location in the southern tier of sections in the township where such activity is permitted. The fixit-shop operated by the plaintiffs, which is a small mechanical repair shop given over principally to repair and servicing lawn mowers and appliances, is essentially a neighborhood business, the value of which depends upon its immediate location in the neighborhood where the customers reside.
6. Each case where the validity of a zoning provision is called into question must be determined on its own particular facts. Marblehead Land Co. v. City of Los Angeles (S.D. Cal.) 36 F. (2d) 242, affirmed (9 Cir.) 47 F. (2d) 528; Forbes v. Hubbard, 348 Ill. 166, 180 N.E. 767; Hitchman v. Township of Oakland, 329 Mich. 331, 45 N.W. (2d) 306.
We hold accordingly that where condemnation by the state results in the taking of a part of a small tract of land, which part included a building used in a business which was a nonconforming use under local ordinance, such intervening event of taking does not give effect to prohibition of the ordinance so as to deprive the owner of the right to continue the operation of such business on the remaining portion of the tract.
Judgment as to the constitutionality of the ordinance is reversed and modified so as to provide for judgment for the plaintiffs in accordance with this opinion.
NOTES
[1] This holding is consonant with State er rel. Howard v. Village of Roseville, supra. We are protecting here an existing nonconforming use. In the Howard case we held that after adoption of the ordinance a nonconforming use could not be extended or enlarged. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609849/ | 90 So.2d 78 (1956)
231 La. 36
C. R. McCAULEY et al.
v.
ALBERT E. BRIEDE & SON et al.
No. 42964.
Supreme Court of Louisiana.
June 29, 1956.
Rehearing Denied September 28, 1956.
*79 Paul V. Cassisa, New Orleans, for appellants.
LeBlanc & Summers, Abbeville, Henry B. Curtis and Luther E. Hall, Jr., New Orleans, for appellees.
FOURNET, Chief Justice.
This is a proceeding by neighboring residents and property owners[1] to enjoin the establishment and operation of a mortuary in Square 2281 in the City of New Orleans, now zoned "B-Residential" and bounded by Elysian Fields Avenue, Pleasure, Frenchmen and Lafreniere Streets, on the ground that the Special Use section of the City Zoning Ordinance, under which a request by the landowner, R. L. Montgomery, was approved, permitting special use of the property for a mortuary,[2] is unconstitutional, null and void. Named as defendants are Albert E. Briede & Son, Inc., morticians, and the City of New Orleans. The district judge, after hearing arguments on exceptions of no right or cause of action filed by both defendants, as well as testimony adduced on return of the rule, rendered judgment in favor of defendants, ordering that the rule be discharged and the preliminary injunction denied. On plaintiffs' application we issued alternative writs of prohibition and mandamus, with a stay order, and ordered the case before us on certiorari, and the matter is now here for consideration.
According to allegations of the petition and information in the record, the basic zoning ordinance of the City of New Orleans prohibits operation of a mortuary in the B-Residential District here involved, and prior to October 20, 1955, authorized "Undertaking establishments" only in F-Commercial and G-Commercial districts, as therein defined; on that date (October 20, 1955) Article XXV of the Zoning Ordinance, known as the "Special Use" section, was amended by Ordinance 495 M.C.S. which added "mortuaries" to the list of establishments as to which the City Council may, by special permit, authorize the location. A public hearing conducted by the City Planning Commission on November 23, 1955, with reference to issuance of the special permit sought by the landowner, resulted in an unfavorable recommendation by the said Commission to the City Council;[3] thereafter the City Council held a public hearing on the subject, following which, on February 2, 1956, by a vote of 5 to 2 with no members absent, it disapproved the report of the City Planning Commission and changed the use *80 classification of the property, as sought in the petition of the landowner.
In denying the application for preliminary writ of injunction the District Judge assigned written reasons in which he observed that a mortuary is not a nuisance per se and under our jurisprudence its construction cannot be enjoined on the speculative averment that it will become a nuisance in fact; he held that "since plaintiffs are not personally discriminated against by the particular application of the `Special Use' section of the City's Zoning Ordinance involved herein, they are not proper parties to raise issue of its constitutionality," but found that even if they were proper parties, the provisions of the Section, as applied in this case, satisfy the requirements of due process, are not arbitrary or capricious, and constitute a proper exercise of the city's police power.
The section of the zoning law (Municipal Ordinance 18,565 C.C.S., adopted July 3, 1953) under attack, Article XXV, is designated "Special Use Regulations," and provides in pertinent part (as amended) that "The Council of the City of New Orleans may, by special permit and subject to such protective restrictions that are deemed necessary, authorize the location * * * of any of the following buildings or uses * * * in any district from which these are prohibited * * * by this Ordinance: * * * Cemeteries, mausoleums or mortuaries * * *;"[4] following which list is the declaration that "Before issuance of any special permit for any of the above buildings or uses, the following conditions shall be complied with * * *," among these being (a) public hearing before the Planning Commission, following notice and publication in conformity with procedure for hearings on changes and amendments as prescribed elsewhere in the Ordinance, and (b) study and report by the City Planning Commission to the Council, which must be made within 45 days after the public hearing, regarding effect on character of the neighborhood and upon traffic conditions, public utility facilities, and other matters pertaining to the public health, safety, and welfare. Following receipt of such report (and "no action shall be taken upon any application * * * until and unless the report of the City Planning Commission has been filed"), a final yea and nay vote shall be taken on the proposal by the *81 Council in accord with procedure set out elsewhere, but "If the City Planning Commission recommends against the issuance of the special permit, then it may be issued only by an affirmative two-thirds (2/3) vote of the Council."
The plaintiffs' charge that the above section is unconstitutional is founded on their contention that it fails to prescribe any uniform rule or standard to guide the City Council, as an administrative agency, in deciding when a particular special permit is to be granted or denied, but, on the contrary, it authorizes the City Council to grant or withhold the permit according to its arbitrary and uncontrolled discretion. In support are cited the cases of State ex rel. Dickson v. Harrison, 161 La. 218, 108 So. 421; City of Baton Rouge v. Shilg, 198 La. 994, 5 So.2d 312; Bultman Mortuary Service, Inc., v. City of New Orleans, 174 La. 360, 140 So. 503; Hourgette v. City of Gretna, 18 La.App. 336, 137 So. 344. They also contend that the "Special Use" section is void because of the equal protection clauses of the Fourteenth Amendment, U. S. Constitution, and Article 1 of the Louisiana Constitution of 1921-LSA.
Counsel for the defendants assert that the District Court's judgment should be maintained since the ruling that the plaintiffs have not sufficient interest to attack the ordinance on constitutional grounds is "eminently correct," in view of the fundamental principle of constitutional law that before an individual has such interest he must allege and prove that he personally is injured by the operation of the law; moreover, that equal protection of the laws is had when all persons similarly situated are affected alike; and that the plaintiffs have not alleged nor attempted to show that the City Council abused its discretion or acted in a hostile, arbitrary or unreasonable manner.
While it is generally true that the constitutionality of a statute or ordinance is open to attack only by a person whose rights are affected thereby, and that such person must show that enforcement of the law would be an infringement of his rights, it is incorrect to say that the plaintiffs fail to qualify in that respect. Unless the "special use" is lawfully permitted, each plaintiff has a right to have his property retain the characteristics appropriate to the classification of B-Residential, with uses restricted to those imposed by the ordinance, and, as an adjoining property owner, he has an interest in seeing that the zoning ordinance, in so far as it affects him, is not changed by an illegal process.
In this State, by constitutional provision "All municipalities are authorized to zone their territory; to create residential, commercial and industrial districts, and to prohibit the establishment of places of business in residential districts * * *" Art. 14, Sec. 29, La.Const. of 1921. Zoning measures find their justification in the police power, exerted in the interest of the public. In order to relieve individual owners from unnecessary hardship in the way of strict enforcement, as well as to protect the zoning regulation against attack on the ground of unreasonable interference with private rights, and, at times, on the basis of substantial public service and convenience from the use as well as absence of danger or annoyance to nearby property owners and residents, it is usual for zoning ordinances to provide for zoning boards of appeal, review or adjustment to vary the application of provisions, in accordance with rules therein contained and subject always to appropriate conditions and safeguards. 58 Am.Jur. 1046-1047, Verbo Zoning, Sec. 196; Annotation, 164 A.L.R. at page 17. In the ordinance under consideration, the procedure to obtain a special permit is initiated by application to the City Planning Commission, whose power is recommendatory or advisory only, its action being subject to approval or reversal by the governing body of the municipality, the City Council. It is recognized, according to McQuillin's Law of *82 Municipal Corporations, that municipal legislative bodies may reserve to themselves the power to grant or deny licenses or permits,[5] "where they do so by an ordinance containing a rule or standard to govern them;"[6] since it is a fundamental rule,[7] fully applicable to zoning ordinances, "that an ordinance must establish a standard to operate uniformly and govern its administration and enforcement in all cases, and that an ordinance is invalid where it leaves its interpretation, administration or enforcement to the unbridled or ungoverned discretion, caprice or arbitrary action of the municipal legislative body or of administrative bodies or officials * * *. A zoning ordinance cannot leave the exercise of property rights to the caprice, whim or esthetic sense of a special group of individuals * * *."[8] (Emphasis in the above, and in following quotations, is supplied.)
The same authority informs us further that "zoning ordinances cannot be varied by municipal or zoning boards or officials unless the law authorizes it. Exceptions can be allowed only in particular situations specified in the zoning ordinance. Furthermore, variances or administratively granted exceptions cannot be authorized by such bodies or officials except on grounds established by a zoning statute or ordinance; * * * the fundamental rule that ungoverned and unbridled discretion cannot be vested in either legislative or administrative bodies or officials, or in anyone, is applicable to variances; a uniform rule or standard to govern their grant or denial in all cases must be established by a zoning ordinance."[9] "Thus, a zoning ordinance that fails to establish a sufficiently adequate and definite guide to govern officials with respect to grant of variances, exceptions or permits is void. It has been said that varying applications of a zoning ordinance, to be valid, must be so defined and limited that both citizens and the zoning board may know with certainty their rights, privileges and powers under the ordinance. Indeed, unrestricted discretion as to what uses might be made of the properties in a community would not only be contrary to sound social policy but clearly unconstitutional. * * *"[10]
It is clear that the provisions of Article XXV of the Zoning Ordinance of the City of New Orleans fail to meet the above requirements. The record discloses that the Planning Board found as a fact that granting of the special use would have an adverse effect on traffic conditions "with particular emphasis on adjacent minor streets and the Gentilly Boulevard-Elysian Fields Avenue intersection," as well as that the proposed use was inappropriate, and recommended "That the petition as submitted be denied because of the adverse effects on the character of the neighborhood, traffic conditions, and general welfare as contained in the Analysis" notwithstanding which the City Council, without assigning any reasons, *83 reversed the Planning Board and authorized the granting of a special permit. While it is true that this was done following a public hearing (as to which there was no requirement), nevertheless such consideration is of no importance in view of the failure of the zoning measure to establish a rule or standard to govern the officials charged with its administration, and to operate with uniformity in all cases. The City Council has been given no "yardstick" to go by and may approve or disapprove a request for a special permit at its whim; and further, by a mere two-thirds vote, unsupported by reasons, the members are empowered to disregard the adverse recommendation of the City Planning Commission. To allow the granting or refusal of special permits by officials without any standard to guide them denies equal protection of the law and is invalid.[11]
We therefore conclude that Article XXV of the Zoning Law of New Orleans, designated Special Use Regulations, is unconstitutional, null and void. So considered, the City Council is without authority to grant the special use permit for a mortuary in this residential area.
For the reasons assigned the writs are made peremptory; the judgment of the lower court is annulled and set aside and it is now ordered, adjudged and decreed that Article XXVSpecial Use Regulations of Municipal Ordinance 18,565 C.C.S., adopted July 3, 1953, as amended, be declared unconstitutional, and that the action of the City Council on Petition No. 46-55 by R. L. Montgomery, granting the request for a special use as a mortuary establishment of Lots 1 through 5 and 19 through 26, Square No. 2281, Third District of New Orleans, be declared null and void; and accordingly, the District Judge is hereby ordered to issue a preliminary injunction as prayed for and in accordance with law, restraining and prohibiting Albert E. Briede & Son, Inc., from constructing or conducting a mortuary on the said premises; it is further ordered that the case be remanded to the lower court for proceedings on the merits, according to law and consistent with the views herein expressed; all costs of this Court to be borne by respondents, all other costs to await final determination of the matter.
NOTES
[1] The plaintiffs are C. R. McCauley, Joseph Ventola, Paul Bordlee and Victor Vicello.
[2] The "Special Use Request" contained the explanation that "The intended mortuary establishment is to be operated by Albert E. Briede & Son, Inc., who are obliged to relinquish the [present] location at 1160 Camp Street to the Mississippi River Bridge Authority and which establishment having to be re-located, has a contract to acquire the particular property shown on the attached plan."
[3] The reasons given by the City Planning Commission in recommending denial of the request were that "Because of the adverse effect on traffic conditions with particular emphasis on adjacent minor streets and the Gentilly Boulevard-Elysian Fields Avenue intersection, together with the inappropriate use of the property in the petition, your advisory Commission recommends denial."
[4] The word "mortuaries" was added in the amendment adopted October 20, 1955, Ordinance No. 495, Mayor Council Series. A complete list of buildings and uses presently designated for special use regulation is as follows:
"1. Any public building erected, or leased and used by any official agency of a Municipal, Parish, State or Federal Government.
"2. Hospitals, clinics and institutions, except institutions for criminals; provided, however, that such buildings may occupy not over fifty (50) per cent of the total area of the lot or tract and will not have any serious and depreciating effect upon the value of the surrounding property; and, provided, further, that the buildings shall be set back from all required yard lines heretofore established by this Ordinance, an additional distance of not less than one (1) foot for every foot of building height, over that required in the respective district, and that offstreet parking space will be provided.
"3. Airports, landing fields, or landing strips for aircraft.
"4. Cemeteries, mausoleums or mortuaries.
"5. Greenhouses.
"6. Nurseries and truck gardens.
"7. Roadside stands, commercial amusement or recreational developments for temporary or seasonal periods.
"8. Extraction of sand, gravel, shells, top soil and other natural resources.
"9. Parking lots on land not more than three hundred (300) feet from the boundary of any shopping, commercial or industrial district, under such conditions as will protect the character of surrounding property.
"10. Drive-in theatres in an F or G Commercial District or in the S-Suburban District.
"11. Filling stations, tourist courts and trailer parks in S-Suburban Districts.
"12. Radio or television broadcasting towers and stations.
"13. Public or other non-profit welfare agencies."
[5] In the subject Ordinance, the City Council has power to grant or deny special permits which effect a change in the use classification of property.
[6] 8 McQuillin, Municipal Corporations (3 Ed. 1950) 421, Sec. 25.217; emphasis supplied.
[7] See City of Baton Rouge v. Shilg, 198 La. 994, 5 So.2d 312, and authorities there cited to the effect that a statute or ordinance vesting arbitrary discretion in a public official without prescribing fixed and definite rules or specific conditions for the official's guidance is unconstitutional.
[8] Id. at 109-110, Sec. 25.62.
[9] The distinction at times made between variances and special uses, or permits for special uses under zoning ordinances, i.e., that the former relate to unnecessary hardship and the latter to uses authorized on the basis of substantial public service and convenience from the use. is unimportant in so far as the legal principle under discussion is concerned.
[10] Op. cit. supra, note 6, at 287-288, Sec. 25.165; see, to the same effect, Sec. 25.233.
[11] Id. at 419, Sec. 25.216, and cited authorities; also at 454, Sec. 25.241. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4515785/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Guillermo Puente v. Alicia Marie Puente
Appellate case number: 01-18-00583-CV
Trial court case number: 2018-34059
Trial court: 280th District Court of Harris County
Guillermo Puente has filed a Motion to Remove Filings From Website, in which he
requests that “all filings made in the above styled cause number be removed from the website.”
His motion is DISMISSED because this court lacks jurisdiction to hear motions in this appeal
due to the expiration of the court’s plenary power. See TEX. R. APP. P. 19.1(a), 19.3.
Justice’s signature: /s/ Gordon Goodman
Acting individually
Panel consists of: Chief Justice Radack and Justices Goodman and Countiss.
Date: March 12, 2020 | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1609756/ | 42 F. Supp. 830 (1942)
BERNHEIMER et al.
v.
VURPILLOT.
No. 1402.
District Court, E. D. Pennsylvania.
January 14, 1942.
Thomas Raeburn White and White & Staples, all of Philadelphia, Pa., for plaintiffs.
Philip H. Strubing and Evans, Bayard & Frick, all of Philadelphia, Pa., for defendant.
BARKSDALE, District Judge.
This is a civil action instituted by the plaintiffs, against the defendant, for damages for personal injuries alleged to have been sustained by the plaintiffs as the result of the negligent operation of an automobile by the defendant, in this District. The complaint alleges that the "plaintiffs are both citizens of the German Reich, temporarily residing in the Commonwealth of Pennsylvania", and that defendant is a citizen and resident of this district. The citizenship of the defendant, as thus alleged, is admitted by defendant's answer, and the citizenship and residence of the plaintiffs as thus alleged is not denied by the defendant.
The action was instituted on February 28, 1941, a time when the United States and Germany were not at war. While this action was still pending and undetermined, a state of war between the United States and Germany was recognized by resolution of the Congress of the United States on December 11, 1941. This action having been now matured, and having been set for trial at an early date in this court, the defendant comes and moves the court to strike the case from the trial list on the ground that the plaintiffs are alien enemies and therefore not entitled to avail themselves of the judicial processes of the courts of the United States.
The defendant's counsel relies upon the very recent case of Ex parte Don Ascanio Colonna, 62 S. Ct. 373, 86 L. Ed. ___, decided by the Supreme Court January 5, 1942. This was a case where the petitioner, the Royal Italian Ambassador, sought leave to file in the Supreme Court a petition for writs of prohibition and mandamus, seeking to regain the possession of a vessel and its cargo of oil, then in possession of the United States District Court for the District of New Jersey, upon the ground of the sovereign immunity of the Italian Government from suit. The Supreme Court refused to entertain petitioner's application, a state of war between the United States and the Italian Government then being in existence. The Court said:
"After the motion was filed, there occurred on December 11, 1941, the declaration that the United States is at war with Italy. Section 2(b) of the Trading with the Enemy Act, 40 Stat. 411 [50 U.S.C.A. *831 Appendix § 2(b)], defines `enemy' to include the government of any nation with which the United States is at war. Section 7(b) contains the following provision, 40 Stat. at page 417 [50 U.S.C.A. Appendix § 7(b)]:
"`Nothing in this Act shall be deemed to authorize the prosecution of any suit or action at law or in equity in any court within the United States by an enemy or ally of enemy prior to the end of the war, except as provided in section ten hereof (which relates to patent, trademark and copyright suits) * * * And provided further, That an enemy or ally of enemy may defend by counsel any suit in equity or action at law which may be brought against him.'
"This provision was inserted in the act in the light of the principle recognized by Congress and by this Court that war suspends the right of enemy plaintiffs to prosecute actions in our courts."
Plaintiff's counsel, resisting the motion, contends that the Trading with the Enemy Act and the common law, while denying the processes of our courts to an enemy government, or an enemy subject when resident in enemy country, do not deny the processes of our courts to a peaceful, law-abiding citizen of an enemy nation resident in the United States, citing Krachanake v. Acme Manufacturing Co., 175 N.C. 435, 95 S.E. 851, L.R.A.1918E, 801, Ann.Cas.1918E, 340, and Speidel v. N. Barstow Co., D.C., 243 F. 621.
The question here presented, to my mind, is not a simple one. The principle, that one nation can, and usually does, during time of war, deny the processes of its courts to citizens of enemy countries, is an ancient one. Indeed, there seems to be no doubt that one nation may confiscate, for its own uses, the debts owed by its citizens to alien enemies during time of war, although it is doubtful whether this right has been exercised in modern times. However, it has long been customary for one nation to deny to citizens of an enemy nation the assertion of their peacetime rights, during the existence of a state of war, when such would be of assistance to the enemy nation in the prosecution of war. "We suspend the right of the enemy, says Mr. Chitty, to the debts which our traders owe to him, but we do not annul the right. We preclude him during war from suing to recover his due, for we are not to send treasure abroad for the direct supply of our enemies in their attempt to destroy us, but with the return of peace we return the right and the remedy." Hanger v. Abbott, 6 Wall. 532, 536, 537, 18 L. Ed. 939. It may be stated generally that in time of war no nation will permit a citizen of an enemy country to use its courts in any way which might be hurtful to it, or helpful to the enemy, in the prosecution of the war.
But it has been held that a citizen of an enemy country peaceably residing in this country during time of war may maintain a purely personal action here, where no possible benefit could inure to the enemy nation thereby. Krachanake v. Acme Mfg. Co., supra. See note "Alien enemies as litigants.", L.R.A.1918E, 809.
In the case of Porter v. Freudenberg, 1915, 1 K.B. 857, 866-880, Lord Reading undertook "to examine the law relating to proceedings in the King's Courts by or against alien enemies during a state of war", and to review the authorities pronounced during the Napoleonic wars and the Crimean War. Lord Reading concluded that "Alien enemies have no civil rights or privileges unless they are here under the protection and by permission of the Crown: Blackstone 21st ed., vol. 1, c. 10, p. 372." He was of the opinion that the matter of residence was of great importance, holding not only that an enemy subject residing in an enemy country had no right to maintain an action in a British court, but also that not even a British subject could maintain an action in a British court if he voluntarily resided and did business in enemy country in time of war. On the other hand, he was of the opinion that an enemy subject might be permitted to maintain an action in the British courts if he peaceably resided in British territory under the protection of, and by permission of, the Crown. However, this right depended upon the permission of the Crown, as he recognized "the ancient rule of the English common law that an alien enemy, unless with special license or authorization of the Crown, has no right to sue in our courts during the war".
I think it may be assumed here that plaintiffs are in this country by the permission of, and possibly under the protection of, our Government, but there still remains to be determined in the situation existing at present, whether or not there is "license or authorization", on the part of our Government for these plaintiffs to maintain an action in our courts. It is, therefore, necessary to examine the attitude of this nation *832 as a sovereign toward German subjects, and particularly these plaintiffs, now resident in this country.
Under the definition of "enemy", as set out in the Trading with the Enemy Act, supra, these plaintiffs do not fall within that category unless included by proclamation of the President. I find no proclamation as yet proclaimed by the President under the terms and authority of the Trading with the Enemy Act, and I am therefore of the opinion that the provisions of that Act have no application to this action at this time.
However, by proclamation of the President of the United States on December 8, 1941, No. 2526, pursuant to Section 21 of Title 50 of the United States Code, 50 U. S.C.A. § 21, "all natives, citizens, denizens or subjects of Germany being of the age of fourteen years and upwards who shall be within the United States * * * are termed alien enemies * * *." This proclamation further sets out that all alien enemies shall be liable to restraint, or to give security, or to remove and depart from the United States, and provides by reference strict regulations for their conduct.
Shortly after our entry into the war with Germany and Austria-Hungary in 1917, there were similar proclamations which included the following, the language being substantially identical in both proclamations: "* * * and so long as they shall conduct themselves in accordance with law, they shall be undisturbed in the peaceful pursuit of their lives and occupations and be accorded the consideration due to all peaceful and law-abiding persons, except so far as restrictions may be necessary for their own protection and for the safety of the United States; and towards such alien enemies as conduct themselves in accordance with law, all citizens of the United States are enjoined to preserve the peace and to treat them with all such friendliness as may be compatible with loyalty and allegiance to the United States." 40 United States Statutes at Large, Part 2, page 1650, as to Germany, and 40 United States Statutes at Large, Part 2, page 1772 as to Austria-Hungary.
In the Presidential Proclamation of December 8, 1941, although there is a recital that the proclamation includes directions as to "the conduct to be observed on the part of the United States to all natives, citizens, denizens or subjects of Germany * * *", no such provision as that above quoted from the Proclamation of 1917 is therein contained.
In permitting a citizen of Austria-Hungary, resident in this country, to maintain his suit in 1918, the Court, in Krachanake v. Acme Mfg. Co., supra, based its holding, in large measure, upon that provision of the 1917 Proclamation quoted above.
I cannot escape the conclusion that omission of such a provision is of paramount significance. In the 1917 Proclamation, it is provided that alien subjects shall "be accorded the consideration due to all peaceful and law-abiding persons, except so far as restrictions may be necessary for their own protection and for the safety of the United States; * * *" In the 1941 Proclamation, German subjects, including these plaintiffs, are denominated as alien enemies, and the provision that they be accorded the consideration due to all peaceful and law-abiding persons is significantly omitted.
I find no other Presidential Proclamation nor Act of Congress bearing on this subject.
In the light of well recognized rules of construction, the omission of the above quoted provision of the 1917 Proclamation from the 1941 Proclamation must be construed as the deliberate intent on the part of our Government at this time to impose greater restrictions upon subjects of enemy countries resident here than were imposed in 1917. It is entirely reasonable to assume that this action was well considered. Our enemies have declared that this is Total War, while in 1917-1918 some of the amenities of civilization were preserved. It is only natural that our Government should grant fewer privileges now than in 1917 to citizens of countries which have declared that it is their deliberate purpose to altogether destroy us and our allies.
It therefore seems to me that the privilege of prosecuting their cause of action must be denied to these plaintiffs at this time. Their right of action should not be prejudiced, but it is my conclusion that this action must be stayed for the duration of the War or until these plaintiffs are accorded the privilege of prosecuting their cause of action, either by Act of Congress, or by Proclamation of the President, who has the power under 50 U.S.C.A. § 21 to "direct the conduct to be observed, on the part of the United States" toward aliens. An order will be entered accordingly. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609763/ | 81 N.W.2d 915 (1957)
164 Neb. 85
Matter of the Application of FERGUSON TRUCKING COMPANY, Inc., etc.
FERGUSON TRUCKING COMPANY, Inc., Artesia, New Mexico, Appellee,
v.
ROGERS TRUCK LINE, Sidney, Nebraska, et al., Appellants.
No. 34063.
Supreme Court of Nebraska.
March 22, 1957.
*917 Martin, Davis & Mattoon, Sidney, J. Max Harding, Lincoln, for appellants.
Robert S. Stauffer, Vincent A. Ross, Cheyenne, Wyo., John P. Peetz, Jr., Sidney, William M. Siegenthaler, Artesia, N. M., for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
SIMMONS, Chief Justice.
This is an appeal from the Nebraska State Railway Commission, hereinafter referred to as the commission. The commission granted a certificate of convenience and necessity to Ferguson Trucking Company, a corporation, hereinafter called applicant. A number of certificate holders protested the granting of the certificate. Only a part of them offered evidence before the examiner. They will be referred to as the protestants or by name. Protestants' assignments of error will be set out as they are determined herein.
We affirm the order of the commission.
The authority granted the applicant was for: "SERVICE AUTHORIZED: (1) Machinery, equipment, materials and supplies used in connection with the discovery, development, production, refining, manufacture, processing, storage, transmission, and distribution of natural gas and petroleum and their products and by-products; and (2) Machinery, materials, equipment and supplies used in or in connection with the construction, operation, repair, servicing, maintenance and dismantling of pipe lines, including the stringing and picking up thereof.
"ROUTE OR TERRITORY AUTHORIZED:
Between points and places within the state of Nebraska over irregular routes. * *."
The application of Ferguson Trucking Co., Inc. was filed February 24, 1955. Protests were filed by Peake, Inc., Charles D. Doher, Wheeler Transport Service, Inc., *918 Rogers Truck Line, L. E. Whitlock Truck Service, Inc., Burel F. Kinney, Walter A. Joy, Lewis Coombes, Joy and Coombes, and Herbert L. Johnson.
The matter was set for hearing before an examiner at Sidney, Nebraska, on April 15, 1955. Appearances were made for protestants Rogers, Whitlock, Kinney, Joy, Coombes, and Johnson. Also an appearance was made for Wilbur F. Gettel "as intervenor in opposition." The transcript shows no pleading by or in behalf of Gettel.
On April 16, 1955, the second day of the hearing, applicant moved for a continuance to a future date to be fixed by the commission.
Protestants resisted on the basis of noncompliance with rule 4.6 of the commission. There was considerable argument about additional absent witnesses for the applicant, protestants offering evidence out of order, and matters of that kind. Finally the examiner continued the hearing on his own motion. The hearing was later set for July 21, 1955. The hearing proceeded at that time.
Protestants assign the order of continuance as prejudicial error. They contend that it is in violation of rule 4.6 of the Nebraska State Railway Commission. That rule is: "Any party who desires a continuance shall, immediately upon receipt of notice of the hearing, or as soon thereafter as facts requiring such continuance come to his knowledge, notify the Commission in writing of said desire, stating in detail the reasons why such continuance is necessary. Any such party may be required to submit affidavits in support of such request. The Commission, in passing upon a request for a continuance, shall consider whether such request was promptly made. For good cause shown, the Commission may grant such a continuance and may at any time order a continuance on its own motion. Only under exceptional circumstances will requests for continuance of a hearing be considered unless submitted at least seven days prior to the hearing date."
We think it patent that the rule applies generally to applications made to the commission, as such, for a continuance prior to the beginning of a hearing. We find nothing in the rule that makes it applicable to ordinary motions for continuances during a hearing before an examiner.
We find nothing in the record that would sustain a finding of prejudice to the protestants based upon the continuance granted. Protestants argue that due to the rapid fluctuation of the oil industry that the evidence submitted at the first hearing was of no value when the record was finally completed. The evidence which they state was of "no value" was that of the applicant. On July 21, 1955, at the request of counsel for some of the protestants and by agreement with counsel for the applicants and other protestants, the matter was again continued. Hearings were again had on August 15 and 16, 1955. No claim of prejudice is shown because of that continuance. We find no merit in the assignment.
Section 75-230, R.R.S.1943, provides as follows: "Subject to section 75-237, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found that the applicant is fit, willing and able properly to perform the service proposed, and to conform to the provisions of sections 75-222 to 75-250 and the requirements, rules and regulations of the State Railway Commission thereunder, and that the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied."
Section 75-225, R.R.S.1943, provides that an examiner is authorized to hold hearings, administer oaths, and make recommendations.
The examiner reported to the commission that, in his opinion, the applicant was fit, willing, and able to properly perform the proposed service. He further reported *919 that the applicant had failed to prove that a present or future public need exists for the proposed service and recommended that the application be denied. This recommendation was based on his finding that neither the present nor future public convenience and necessity required the service. Applicant filed exceptions to the examiner's report specifically directed to the finding as to public convenience and necessity, and asked that the examiner's report be overruled and that the application be granted.
The commission considered the matter and held: "The conclusions of the Commission differ from those of the Examiner in his report and recommendation. It is the opinion of the Commission that the evidence adduced at the hearing on the subject application substantiates a finding that the services of presently authorized oil field equipment carriers are not adequate to fulfill the transportation requirements of an expanding oil and gas industry in Nebraska. The Commission is of the opinion that the present and future public convenience and necessity require the service proposed by the instant application."
The commission then found that the present and future public convenience and necessity required the proposed service and that the applicant was fit, willing, and able properly to perform the proposed service. It ordered the issuance of the certificate.
Motions for reconsideration were filed by protestants and overruled.
The commission findings as to both the fit, willing, and able qualifications of the applicant, and as to public convenience and necessity, are challenged here.
Both findings of the commission are substantially in the language of the statute.
In In re Application of Hergott, 145 Neb. 100, 15 N.W.2d 418, we held that the failure of the commission to find a willful failure to comply with the provisions of the act rendered the order irregular and void. The order involved was set aside. The requirement of "willful failure" was specified in the act (now section 75-238, R.R.S.1943).
We are now asked to extend the effect of that decision so as to require a finding of basic facts in the order as a foundation for the finding of the ultimate fact required by the statute. Because of the absence of a finding of basic facts we are urged to hold the commission's order to be void.
The contentions of the protestants in that regard are best set out in Saginaw Broadcasting Co. v. Federal Communications Comm., 68 App.D.C. 282, 96 F.2d 554, 559.
There the court held: "In discussing the necessary content of findings of fact, it will be helpful to spell out the process which a commission properly follows in reaching a decision. The process necessarily includes at least four parts: (1) evidence must be taken and weighed, both as to its accuracy and credibility; (2) from attentive consideration of this evidence a determination of facts of a basic or underlying nature must be reached; (3) from these basic facts the ultimate facts, usually in the language of the statute, are to be inferred, or not, as the case may be; (4) from this finding the decision will follow by the application of the statutory criterion."
The court then held: "* * * findings of fact, to be sufficient to support an order, must include what have been above described as the basic facts, from which the ultimate facts in the terms of the statutory criterion are inferred."
The court in reaching this conclusion relied on a number of decisions of the United States Courts which are discussed somewhat at length in the opinion. The court also referred to "decisions of state courts" which supported its conclusion. The decision cited and quoted from is Kewanee & Galva Ry. Co. v. Illinois Commerce Comm., 340 Ill. 266, 172 N.E. 706.
*920 However, in the recent case of Antioch Milling Co. v. Public Service Co., 4 Ill. 2d 200, 123 N.E.2d 302, 305, the Supreme Court of Illinois held that the decision above cited was "based on an express statutory command" and refused to set aside an order where specific findings of fact were not made, there being no statute requiring such findings.
We find no statute in Nebraska that makes such a requirement as protestants urge upon us. Protestants cite none. In 146 A.L.R. 209 and following, is a note which indicates something of the confusion of issues that would follow the adoption of such a rule.
In Saginaw Broadcasting Co. v. Federal Communications Comm., supra, the court held: "When a decision is accompanied by findings of fact, the reviewing court can decide whether the decision reached by the court or commission follows as a matter of law from the facts stated as its basis, and also whether the facts so stated have any substantial support in the evidence. In the absence of findings of fact the reviewing tribunal can determine neither of these things. * * * a reviewing court cannot properly exercise its function upon findings of ultimate fact alone, but must require also findings of the basic facts which represent the determination of the administrative body as to the meaning of the evidence, and from which the ultimate facts flow."
We have found no such difficulty in our review of the records on appeal from the commission. We decline to undertake to place such a requirement on the commission.
Protestants assign error in the finding of the commission that applicant was fit, willing, and able to perform the service in that it was made "without knowing who owned or controlled said applicant corporation." This information was not furnished by applicant in the authorized form provided by the commission. The application did have attached to it a certified copy of its articles of incorporation. The articles recite the authorized capital stock of the corporation, the amount of the capital stock with which it shall commence business, and that its president had subscribed for 2,248 shares and named the other two incorporators as shareholders, each of whom had subscribed for one share of stock. The sufficiency of the application was not challenged by protestants in their pleadings.
Applicant's president testified that he held all but two shares of the outstanding stock; that the stockholders and directors had not changed since the organization of the corporation; that he was then negotiating a sale of a minority of the stock; and that if the sale were completed the directors and officers of the corporation would not be changed. This testimony stands unchallenged. The assignment is without merit.
This brings us to protestants' assignments of error directed to the sufficiency of the evidence to sustain the commission's order. The rule is: "Courts are without authority to interfere with the findings and orders of the Nebraska State Railway Commission except where it exceeds its jurisdiction or acts arbitrarily." Application of Johnson (Johnson v. Peake), 163 Neb. 18, 77 N.W.2d 670, 671.
The challenge is directed to three alleged insufficiencies of the evidence: (1) That there was no showing that the proposed service of applicant would serve a useful purpose responsive to a public demand or need; (2) that the applicant failed to prove that the alleged need could not be served as well by existing carriers; and (3) that no consideration was given to the effect of the grant of the application upon the services of existing carriers.
We state the evidence which was before the commission, and consider and determine each of these matters.
The certificate granted the applicant involves the movement of heavy commodities and equipment used in the oil industry, and *921 particularly that of drilling and production. Some of the commodities so involved can be moved by standard light and heavy duty equipment. Other commodities require specially built equipment designed to move large and quite heavy articles. It involves also the movement of oil drilling rigs and accessory supplies and articles. The movement of an oil rig from one location to another does not involve merely the loading, hauling, and unloading of the heavy equipment. It seems that the carrier is expected to supply and does supply personnel and some of the machinery on trucks that is used in tearing down, loading, and re-erecting a rig at a new location. It is a specialized service requiring expensive equipment and trained personnel. It not only involves trained employees, but employees that are reasonably compatible and able to work with shipper employees. It is a type of common carrier service that requires prompt service to the shipper. Because of the fact that a drilling contractor never is certain when he may strike oil or a dry well, he accordingly is often unable to determine in advance the exact time when shipper service will be required. Likewise, due to meeting lease requirements as to starting of drilling time, contractors are often required to dismantle, move, and set up rigs in a quite expeditious time. Delays in any event are expensive. The evidence is that it costs a drill operator from $600 to $1,000 a day for the time a rig is not in operation while moving from location to location. The evidence also is that from 12 to as high as 20 of these trucks of all descriptions are necessary to expeditiously move a big rig at one time.
Several of the major oil companies are now operating in the Cheyenne, Kimball, and Banner County area. The oil production is an expanding business in those counties. Applicant's evidence is that several of these companies had requested that it secure a certificate so that it could serve them in Nebraska as it had in other states.
The applicant is a New Mexico corporation. It holds interstate authority in eight states. It maintains a terminal at Fort Morgan, Colorado. It proposes to locate a terminal at Kimball, Nebraska, and has new and proper equipment available for Nebraska use. There is no question about the ability of applicant to serve the Nebraska shippers based on financial worth, equipment, and trained employees. Several shippers testified to satisfactory service that they have had from applicant in other states and as to their desire that it be granted a Nebraska certificate.
Three of the protestants offered testimony in opposition to the granting of the certificate.
Joy has headquarters at Falls City in southeastern Nebraska. He has four regular employees and four trailers which he owns. He testified that he had on lease six other tractors and trailers but that he had never seen them. He testified that during the hearing he had verbally leased a terminal at Kimball but had never seen the leased property. It is obvious that he cannot furnish the specialized extensive equipment service which shippers have a right to expect.
Whitlock maintains a terminal at Sterling, Colorado. He has rendered satisfactory carrier service in Nebraska. His witness frankly stated that there is not enough business in Nebraska to justify the expense of establishing a terminal in this state. Sterling is over 30 miles from Sidney and 85 miles from Kimball, Nebraska. Obviously he does not presently propose to put himself in a position to render the full, prompt, and efficient service that the shippers require. He brings his own situation fairly within the scope of our holding in Application of Dalton (Dalton v. Kinney), 160 Neb. 516, 70 N.W.2d 464.
The other and principal protestant is Rogers. The testimony shows that he has his headquarters and terminal at Sidney with yards at Kimball and Harrisburg. It appears that Rogers has the equipment, the resources, the experience, and trained employees required to move the large rigs *922 in a satisfactory manner. Rogers' testimony is that in slack periods as much as 40 percent of his equipment is idle and that in peak periods sometimes 10 to 15 percent of his equipment is idle.
Shippers testified as to extensive, expensive delays in Rogers' service caused by the fact that the required equipment was in use for others. Rogers' evidence is that he is giving adequate service from his standpoint. It is obvious that he is not fully rendering the prompt efficient service that the industry requires. Rogers does not indicate a willingness to increase his equipment to the place where he can give the requisite prompt service that peakload demand requires.
Shippers testified that the volume of business in the industry and its demands were such that more than one fully adequate carrier in the field was a necessity. One shipper went to the extent of saying that his company might find it necessary to purchase equipment for its own needs unless additional common carrier service were made available.
This evidence develops another situation. It appears that the commission fixes the rates for the service here involved, but that it is done on a credit basis by the carrier. Both Whitlock and Rogers testified that they have found it necessary to establish the credit ratings of prospective shippers and that they deny common carrier service to shippers whose credit ratings are not satisfactory to them. There is evidence that Whitlock had advised one shipper that it would not serve him. Whether this was because of a credit or a personal problem is not at all certain.
There is also evidence that Rogers had denied common carrier service to one shipper. It appears that the dispute arose over what was a proper charge. Rogers stated there was a long delay in receiving payment of a large account. Whatever the cause, that shipper has been denied common carrier service by Rogers.
By statute a common carrier is defined as: "* * * any person who or which undertakes to transport passengers or property for the general public in intrastate commerce by motor vehicle for hire, whether over regular or irregular routes, upon the highways of this state; * * *." Section 75-223, R.S.Supp., 1955.
We have held: "* * * at common law, so far as its vocation is concerned, a common carrier is one which holds itself out to the public as a carrier always open to employment for the transportation of persons or freight, and that it will carry for all persons indiscriminately." State ex rel. Winnett v. Union Stock Yards Co., 81 Neb. 67, 115 N.W. 627, 630. See, 13 C.J.S., Carriers, § 3, p. 25; 9 Am.Jur., Carriers, § 4, p. 430.
Carriage for all persons indiscriminately is implicit in the statutory definition of a common carrier.
We recognize the rule stated in State ex rel. Board of Railroad Com'rs v. Lischer Bros., 223 Iowa 588, 272 N.W. 604, 607, that: "* * * a common carrier does not cease to be such by refusing to carry for shippers whose ability to pay is doubtful." That issue is not here.
The commission was confronted with a situation where the certified carrier or carriers were electing to set up their own standard as to whom they would serve and whom they would not serve. It is apparent that indiscriminate service to all persons was not available. This situation bears directly on the question of public convenience and necessity.
The protestants rely on our holding in In re Application of Canada, 154 Neb. 256, 47 N.W.2d 507, and Edgar v. Wheeler Transport Service, Inc., 157 Neb. 1, 58 N.W.2d 496. In those cases we found that the record did not sustain a finding that the present and future public convenience and necessity demanded the service of an additional carrier in the field. Here the *923 record sustains such a finding by the commission.
That finding is within the jurisdiction of the commission's power and duty. It made the finding. The record sustains it. It is not for us to set it aside.
Finally, protestants contend that the order of the commission must be set aside for failure to give consideration to the effect of the grant of the application upon the service of existing carriers. Such consideration is inherent in the order of the commission. Obviously the grant of the certificate to the applicant and its entry into competitive service might well be determined by the commission to be the cause of protestants improving a service which the commission could find from the evidence was not entirely satisfactory.
The declared policy of section 75-222, R.R.S.1943, is, in part, to regulate transportation "in the public interest," and to promote "efficient service" without "undue preferences or advantages, and unfair or destructive competitive practices." The declared policy does not condemn competition. It does condemn "unfair or destructive competitive practices."
As we read this record the decision of the commission is reasonably reconcilable with the declared legislative policy of this state.
Protestants' contention resolves itself down to the position that they are entitled to have and maintain a monopoly to render the service here involved. On the showing here, it is that Rogers is entitled to that monopoly. Heretofore we observed that Whitlock had brought itself fairly within the scope of our decision in Application of Dalton (Dalton v. Kinney), supra. Rogers, also, due to its policy of selectivity of shippers and no declared willingness either to improve its service or fully and promptly meet the service required in this industry, placed itself where the commission could have found that it also was within the scope of Application of Dalton (Dalton v. Kinney) so as to justify the issuance of a certificate to applicant. We concluded the opinion in Application of Dalton (Dalton v. Kinney) with this holding: "We also held in In re Application of Richling, 154 Neb. 108, 47 N.W.2d 413, 415: `Furthermore, the statute requires that the finding that applicant is fit, willing, and able to perform the proposed service, and that such service is or will be required by the present or future public convenience and necessity, must be sustained by evidence showing that the granting of the certificate was not arbitrary or unreasonable.' The evidence here meets that test." [160 Neb. 516, 70 N.W.2d 466.]
The holding is applicable here.
Protestants rely on our decision in In re Application of Effenberger, 150 Neb. 13, 33 N.W.2d 296, 299. Material distinctions exist in that case from the instant one. There the commission was considering an application for a certificate to permit a carrier to enter into a competitive common carrier status in the carrying of passengers over fixed routes on regular schedules. There inheres in such service certain monopolistic characteristics that are generally recognized in the regulation of such public utilities. That element does not exist to that extent in the regulation of common carriers such as are here involved.
There as here we followed the rule that the determination of the issues presented rests with the railway commission and that "[its] findings and orders will not be interfered with on appeal if any reasonable basis exists upon which they can be supported." In re Application of Effenberger, supra.
There as here we were reviewing a determination of the commission to grant an application. The last two paragraphs of our opinion in the Effenberger case are quite applicable here and with this quote we conclude this opinion: "This court has no power to regulate public utilities. Its function *924 on appeal is limited to an examination of the jurisdiction of the railway commission over the subject matter and a determination of whether or not the order made by the railway commission is reasonable as distinguished from arbitrary action. The policy or wisdom of its action cannot be reviewed by the courts where the foregoing requirements to lawful action are found to exist.
"We are of the opinion that the action of the railway commission in the present case has evidentiary support in the record and constitutes a proper exercise of the powers vested in the railway commission by the Constitution and laws of this state. Under such circumstances this court is without authority to interfere with the result."
Affirmed. | 01-03-2023 | 10-30-2013 |
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