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https://www.courtlistener.com/api/rest/v3/opinions/1609856/ | 90 So.2d 906 (1956)
INTERNATIONAL COMPANY, Inc., a Florida corporation, Appellant,
v.
The CITY OF MIAMI BEACH, a municipal corporation duly organized and existing under the laws of State of Florida, and David Topp, as Zoning Inspector of the City of Miami Beach, Florida, Appellees.
Supreme Court of Florida. Special Division B.
November 28, 1956.
Patton & Kanner, Miami, for appellant.
Ben Shepard, Miami, and Joseph A. Wanick, Miami Beach, for appellees.
THOMAS, Justice.
The appellant owns a tract in the City of Miami Beach on which are located two hotels and an apartment building, and also a parking lot, cabanas, and swimming pools for the use of its patrons. In the hotels are cocktail lounges and in one of them a coffee shop.
This litigation was precipitated by the action of an inspector of the Zoning Department when he ordered the appellant to remove or change the language of a sign displayed by the appellant near the sidewalk at the entrance to the hotel. In his decree the chancellor held that maintenance of the sign constituted a violation of Sec. 5 of Ordinance No. 289 and that the pertinent provisions of the ordinance were constitutional. He dismissed the bill of complaint by which the appellant sought an injunction against interference by the city with its use of the sign.
Under the ordinance, which is a comprehensive regulation of zoning in the city, coffee shops and cocktail lounges are expressly permitted as "accessory uses" for tenants of hotels but only when they have no entrances from the outside of the building. The reason for the restriction is obvious. In the district where appellant's property is located, buildings may be erected only for use as hotels and as multiple family dwellings or apartments, with accessory buildings. We have upheld zoning generally in the Miami Beach area where the principal consideration was aesthetics on the showing that because of the very nature of the place restrictions that had no relevancy to health, safety and morals, could be imposed because the general welfare of the community depended upon preserving its beauty. City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364.
Under Chapter 9837, Laws of Florida, Sp.Acts of 1923, the City of Miami Beach was granted authority which, of course, must be exercised within constitutional limitations, *907 to designate what areas should be limited to residential use and what to commercial use. By placing appellant's property in the former category, its use for commercial purposes at once became inhibited.
One of the principal purposes of Ordinance No. 289, supra, was the preservation of the attractiveness of the city, which could be done so long as the restraints imposed did not constitute deprivation of property without due process of law by an improper exercise of the police power.
But in resolving the conflict of police power versus property rights in the present litigation, we do not have the simple question whether or not, the accessory uses we have described being legal, the appellant may maintain the offending sign.
The hotel business is properly conducted at the location, but the accessory uses were approved only as incidents to the hotel as accommodation of its guests. Each of the accessory uses could be independent businesses and legally operated in a commercial area. None of them could be independently operated in the area where the hotel is located.
The sign occupies a prominent position in front of the hotel. It extends inward from the inner edge of the sidewalk and rests on top of a wall so that it is visible for a considerable distance. In bold letters and figures passers-by may see "3-Hours Free Parking" and in words less conspicuous "Coffee Shop," "Cocktail Lounge," "Dining Room," and "Leave your car at front door with attendant." In the center of the sign appear the name of the hotel and the words "`Patrons Only.'"
It seems to us that the effect, if not the purpose, of the sign is to attract persons who are not guests of the hotel and to create patronage the same as if the cocktail lounges and coffee shop were independent commercial enterprises. As we construe the sign it transforms accessories into principals and, if allowed to exist, will serve as an instrument to circumvent and undermine the zoning regulations.
We think the chancellor correctly decided the case and the decree is therefore
Affirmed.
DREW, C.J., ROBERTS, J., and OGILVIE, Associate Justice, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1500663/ | 301 S.W.2d 181 (1957)
W. J. McCAULEY, Appellant,
v.
CONSOLIDATED UNDERWRITERS, Appellee.
No. 6085.
Court of Civil Appeals of Texas, Beaumont.
March 21, 1957.
Rehearing Denied April 17, 1957.
*182 McDaniel & Hunt, Center, for appellant.
Ramey, Calhoun, Brelsford & Hull, Tyler, for appellee.
Judgment Reversed, 304 S.W.2d 265.
HIGHTOWER, Justice.
This is an appeal from an order of the district court of Shelby County, Texas, setting aside its judgment, under the Workmen's Compensation Act, Vernon's Ann. Civ.St. art. 8306 et seq., previously rendered, by default, in the plaintiff's favor and said plaintiff, as appellant herein, has assigned nine points of error which may properly be considered under the following propositions:
(1) The court's action in vacating the default only on motion was void, as it was done six months after the original judgment, at a subsequent term of court, in contravention of Rule 329-b, Sec. 5, Texas Rules of Civil Procedure, relating to new trial, finality of judgments, bill of review. (2) That the order of remand having been for want of jurisdiction, the State court, therefore, had jurisdiction at the time of default and that such judgment was proper and being valid in every respect could only have been attacked by bill of review. (3) That the attorneys for appellant, owning a one-third interest in the judgment, were not joined as parties in the motion to vacate.
The plaintiffs' case for total and permanent incapacity was filed on the 7th day of November, 1955, in the district court of Shelby County, November, December term, and process was completed on the defendant the following day. Within twenty days thereafter, the defendant filed a petition for removal of the case in and to the United States District Court for the Eastern District of Texas, Beaumont Division. On November 19, 1955 defendant also filed his answer in the Federal Court, and both the petition and answer stated a diversity of citizenship as grounds for removal. A copy of this petition was thereafter filed in the State court on or about November 19, 1955.
On December 5, 1955, the same being appearance day in the State court, the plaintiff took a default judgment in the amount of $8,647.64, as the defendant had filed no answer therein.
On the 18th day of June, 1956, the Federal Court, acting upon plaintiff's motion, remanded the cause to the State court and, thereafter, on the 3rd day of July, 1956, the State court, acting upon the motion of defendant, and over the objection of the plaintiff, entered its order setting aside and vacating the default judgment previously rendered, said order stating, as reasons and ground therefor, "that said judgment was rendered without jurisdiction for the sole reason of the removal procedure * * *."
The State court's action, as is this appeal, was governed by title 28 U.S.C.A. as amended, *183 § 1446, paragraphs (a) and (e) thereof, which are as follows:
"(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action."
"(e) Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded." (Italics ours.)
We believe the sole question is whether the State court was justified, by reason of the foregoing rule of procedure, to set aside the judgment by default, under the facts as herein stated, for want of jurisdiction at the time of its rendition. If so, then it matters little that the attorneys, who owned a one-third interest, contingent upon final recovery under the judgment, were not joined as parties defendants, and it appears that the primary question is determined by the following language in Bridgman v. Moore, Tex.Com.App., 143 Tex. 250, 183 S.W.2d 705, 707: "The court has not only the power but the duty to vacate the inadvertent entry of a void judgment at any time, either during the term or after the term, with or without a motion therefor." See cases there cited; Ingram v. Ingram, Tex.Civ.App., 249 S.W.2d 86; 25 T.J. p. 551; Towns v. Towns, Tex.Civ. App., 290 S.W.2d 292. That it is an essential element of jurisdiction that a court have the authority and power to enforce its judgment, see: White v. White, 142 Tex. 499, 179 S.W.2d 503; Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063; Withers v. Patterson, 27 Tex. 491, 494.
Prior to 1949, the old law, 28 U.S.C.A. § 72, was controlling of this problem in appellant's favor. It was then the law that the defendant, when petitioning for removal, must assume the consequences if the case is remanded and he has not preserved his rights in the State court, because if the case was remanded, as in the case at bar, for want of jurisdiction, the Federal Court was regarded as never having had jurisdiction, and consequently a default judgment had in the State court, pending the hearing on the petition for removal, was valid as the remand of the case was determinative that the State court had never lost jurisdiction; Yankaus v. Feltenstein, 244 U.S. 127, 37 S. Ct. 567, 61 L. Ed. 1036; Metropolitan Casualty Insurance Co. v. Stevens, 312 U.S. 563, 61 S. Ct. 715, 85 L. Ed. 1044.
We believe the case of Hopson v. North American Ins. Co., 1951, 71 Idaho 461, 233 P.2d 799, 802, 25 A.L.R. 2d 1040, to be identically in point, and, as relating to the case at bar, we quote:
"By providing in Section 1446 that taking such procedural steps effects the removal of the cause to the Federal Court, which is not found in the earlier Act, Congress has thereby expressly effected the removal of the cause to the Federal Court irrespective of the ultimate determination of the question as to whether or not it is removable; it is not thereafter in the State court for any purpose until and unless the cause is remanded; for that reason the State court is expressly prohibited from proceeding further until and unless it is so remanded; under Sec. 72 the removal was never accomplished unless it was a cause removable; under the present Act removal is accomplished and jurisdiction attaches in the Federal Court even though it may be subsequently determined that it should be and is thereafter remanded. Removability is no longer a criterion which gives or denies validity to the proceedings in the State court while a petition for removal to the Federal Court is pending; any such proceedings in the State court under the present *184 act are not sanctioned; they are prohibited.
"Apparently to overcome the endless and multiple litigation and resulting severe hardships which arose under Section 72 as construed, the amendment was prompted not only for the purpose of removing from the State court the authority in any event to pass upon the question of removability but also for the purpose of effectuating the removal by following all the statutory steps as effectively as if the cause had originally been filed in the Federal Court, thus voiding any further proceedings in the State court until and unless the cause is remanded."
Appellant interestingly argues:
"The defendant is seeking to hide behind Section 1446(e). Before 1446(e) can help them, it must have complied with Section 1446(a). No petition can comply with Sec. 1446(a) unless the suit is removable under Sec. 1441. No suit is removable under Sec. 1441 unless the Federal Court would have had original jurisdiction under Sec. 1332 of Title 28. No Federal District Court can have jurisdiction under Section 1332 or any other Federal Statute unless authority for such statute is found in Article III, Section 2, U.S. Constitution. That Section does not provide Federal Court jurisdiction in a suit controlled by state law and between citizens of the same state. Therefore, the Federal Court could never have jurisdiction in this case, and the State court could not be deprived of jurisdiction by the unauthorized attempt to remove. Sec. 1446(e) must be read with the remainder of the section, together with Sections 1441 and 1332 of Title 28 U.S.C.A., and with Article III, Sec. 2, Constitution of the United States. The construction appellee seeks to have placed on Title 28, Sec. 1446(e) would render it unconstitutional as applied to this case. It is an established rule of law that the courts will not construe or apply a statute in an obnoxious and unconstitutional manner if the statute can be given another construction which is constitutional. In any case, a defendant's right to removal, if he has such a right, is purely statutory and only comes into operation when the statute has been complied with."
Paragraph 2 of defendant's petition for removal was as follows:
"This action is one of a civil nature over which the Districts Courts of the United States have original jurisdiction, being an action by the plaintiff against petitioner for Workmen's Compensation benefits. The matter in dispute exceeds $3,000.00, exclusive of interest and costs. At the time of the commencement of this action and at all times material hereto, plaintiff was and is a resident and citizen of the State of Texas, and defendant, a reciprocal insurance company organized under the laws of the State of Missouri, was and is a resident and citizen of the State of Missouri, with its principal office in Kansas City, Missouri."
Appellant appears to contend that inasmuch as a diversity of citizenship did not in fact exist, that, Paragraph (a) of Sec. 1446, as a prerequisite procedural step, was not complied with, and that the Federal Court did not, therefore, take jurisdiction to even consider the merits of appellee's allegations respecting diversity of citizenship in the above portion of the petition for removal. He does not question that appellee timely filed its petition and bond in the Federal Court, or that it failed to comply with all other procedural requirements of Sec. 1446, and the fact remains that all such steps were complied with other than that it failed to establish a diversity of citizenship as alleged.
When appellee's petition and bond were filed, the jurisdiction of the Federal Court attached for the purpose of determining the correctness of the allegations of such petition, and at such time the jurisdiction of the district court was automatically abated pending such determination and the question of whether the cause was removable was one for the consideration of the Federal Court, and was not to be determined or ignored by the State court; Stoll *185 v. Hawkeye Cas. Co., 4 Cir., 185 F.2d 96, 22 A.L.R. 2d 899; Tucker v. Kerner, 7 Cir., 186 F.2d 79, 23 A.L.R. 2d 1027; Allen v. Hatchett, 91 Ga.App. 571, 86 S.E.2d 662.
Appellant has established that on several prior occasions appellee sought removal on similar grounds in other similar causes, and that in each instance its petitions were denied for want of jurisdiction and it seems to us, in effect, that by reason thereof, appellant contends that appellee would somehow now be estopped to argue that the Federal Court ever acquired, or the trial court ever lost, jurisdiction in the case at bar, or at least by reason of these former proceedings that we are empowered to disregard the plain import of Sec. 1446, supra. We believe such contention to have been fully determined by all the foregoing reasoning and authorities.
We hold that under 28 U.S.C.A. § 1446, a case is removed from the jurisdiction of the State court upon a compliance with the procedural steps therein set forth for all purposes until and unless it is subsequently remanded to such State court; that until and unless the case is remanded no valid proceedings can be taken in the State court at any time following the filing of such petition and bond and giving notice thereof to all adverse parties and filing a copy of the petition with the clerk of the State court, as was done in the case at bar. Furthermore, that any action so taken in the State court thereafter and prior to remanding the cause to such State court is void and that the trial court correctly vacated the default judgment upon appellee's motion and circumstances as reflected by the judgment record.
All other contentions urged by appellant have been considered; however, the conclusions reached herein dispose of such contentions, and we deem it unnecessary to discuss them.
The order and judgment of the district court of Shelby County vacating and setting aside the default judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609872/ | 90 So.2d 916 (1956)
PROFESSIONAL INSURANCE CORPORATION, Appellant,
v.
William Alpheus CAHILL, Appellee.
Supreme Court of Florida, Division B.
December 5, 1956.
*917 Boggs, Blalock & Holbrook, Jacksonville, for appellant.
S. Perry Penland, Jacksonville and Porter W. Ingram, New Smyrna Beach, for appellee.
O'CONNELL, Justice.
This is a proceeding in the nature of certiorari under Fla.Supreme Court Rule 14, 31 F.S.A., brought by the defendant in the court below, Professional Insurance Corporation. The defendant seeks review by this Court of an interlocutory order of the circuit court striking one of the defenses filed by defendant.
The plaintiff Cahill, respondent here, was employed on July 1, 1948, as a salesman by the petitioner insurance company. The terms of employment were evidenced by a written contract, which contract provided that it could not be waived or modified except in writing, executed by a duly constituted officer of the insurance company. For his services plaintiff was to receive commissions on the premiums from the policies sold. In event the contract was terminated after he had written a certain volume of business, which he did, plaintiff was to receive renewal commissions on policies renewed for the first time at one half the rate otherwise payable for the balance of the first insurance year on policies written by him.
Cahill terminated the contract on September 1, 1951. Subsequently he filed this suit in chancery for an accounting of sums he claimed due him for renewal commissions.
In his bill of complaint Cahill claims that the written contract executed on July 1, 1948 was modified orally by the parties about September 1, 1948. He claims that under the agreement as so modified he was obligated to perform extra services of an executive nature, which are not specifically alleged, and that after the termination of his employment he was to receive full renewal commissions for the full year following the termination of the contract and then renewal commissions at one half the rate as provided in the contract.
In its answer, the defendant insurance company, denied the existence of the oral agreement and asserted several affirmative defenses. One of these, affirmative defense number 2, asserts that the alleged oral agreement was void because of the provision of the contract requiring modification to be in writing executed by a duly constituted officer, and then sets forth that Cahill did perform other services, i.e. (1) assisting other agents and straightening out troubles for which he was paid $25 per week and (2) organizing and directing community health drives for which he received an overwriting commission on all insurance sold on these drives in addition to the regular commissions on insurance sold by him. This defense also set forth the sums of money Cahill had earned in the years 1949, 1950 and 1951 and alleged that he had been amply compensated for his services under both the written and the alleged oral agreement.
Cahill moved to strike this affirmative defense number 2 and the chancellor did so. It is the order striking this defense which is complained of by the insurance company. We are called upon to decide whether the chancellor erred in striking this defense.
The rule is well settled that an executory or parol agreement will not be permitted to abrogate or modify a written or *918 sealed instrument, but this rule is not without exceptions. A written contract or agreement may be altered or modified by an oral agreement if the latter has been accepted and acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it. Moses v. Woodward, 1933, 109 Fla. 348, 140 So. 651, 141 So. 117, 147 So. 690. This case cited impressive authorities from other jurisdictions and was used as authority for the same holding in Carter Realty Co. v. Carlisle, 1934, 113 Fla. 143, 151 So. 498, and Tussing v. Smith, 1936, 125 Fla. 578, 171 So. 238. In the recent case of Judson J. Harris d/b/a Harris Refrigeration Co. v. Air Conditioning Corp., Fla. 1955, 76 So.2d 877, this Court adhered to the same ruling, citing the above authorities. An oral modification under these circumstances is permissible even though there was in the written contract a provision prohibiting its alteration except in writing. 17 C.J.S., Contracts, § 377 c., p. 867.
Although the plaintiff may be able to prove that the contract in question was modified orally, under an exception to the general rule, nevertheless this does not prevent the defendant from alleging and proving that the terms of the agreement as modified, if it was, were different from the version pleaded by the plaintiff.
Further, since the authorities above cited indicate that a written contract may be modified by parol where the oral modification has been accepted and acted upon by the parties in such manner as to work a fraud on either party to refuse to enforce it, it is material that defendant be able to plead that plaintiff was compensated for the additional services involved. If plaintiff has been compensated according to the agreement between them for the extra work it does not appear that there would be any fraud practiced on him.
We should state here, however, that we do not consider the allegations of the defense in question relating to the sums earned by the plaintiff in the years specified to be material. On a motion directed to them specifically they should be stricken.
We therefore hold that defendant should be given the right to plead its version of the employment for the extra services rendered by plaintiff and its version of the compensation agreed to be paid for such extra services, and that such compensation was paid, just as plaintiff is allowed to plead and prove, if he can, that the written contract was modified by parol and that he was not compensated for the services rendered under the contract as modified.
Accordingly the order appealed from is quashed with directions that further proceedings be had herein not inconsistent with this opinion.
DREW, C.J., and THOMAS and ROBERTS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609878/ | 81 N.W.2d 194 (1957)
163 Neb. 798
Dora GIACOMINI, Executrix of the Estate of George T. Giacomini, deceased, and Dora Giacomini, Appellants,
v.
Carrie GIACOMINI, George H. Lee Company, Inc., a Corporation, etc., Appellees.
No. 34051.
Supreme Court of Nebraska.
February 22, 1957.
*195 M. L. Donovan, John P. Dalton, Omaha, for appellants.
Thomas P. Leary, Omaha, for appellees.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
CHAPPELL, Justice.
Plaintiff, Dora Giacomini, as executrix of the estate of George T. Giacomini, deceased, and individually as his widow and sole devisee in his will, brought this action against defendant, Carrie Giacomini, sister of George T. Giacomini, deceased, seeking a decree finding and adjudging that a resulting trust existed against described real estate known as the Lee Building in Omaha and against defendant as title holder thereof to the extent of an undivided one-half interest in favor of plaintiff and the George T. Giacomini estate. Plaintiff prayed for a decree quieting title thereto in her, together with an accounting of rental income from the premises, and equitable relief. The George H. Lee Company, Inc., was made a party defendant because it was a tenant in the premises. By order of court it has been paying its monthly rentals therefor to the clerk of the district court since November 1, 1954. Such defendant, hereinafter designated as Lee Company, is not otherwise interested or involved in this litigation. The parties otherwise directly interested *196 or involved will be designated as plaintiff and defendant, or by their first names. George T. Giacomini, deceased, will be designated as George, and his father, George Giacomini, will be designated as George, Sr.
Plaintiff's alleged right of recovery was substantially as follows: That for more than 20 years prior to the death of George's mother, Mary, on September 17, 1931, she and her daughters, Marie and Carrie, were each the record title holders of an undivided one-third interest in the Lee Building. However, plaintiff alleged that when Mary executed her last will on February 8, 1926, devising to Marie and Carrie each an undivided one-half interest to her undivided one-third interest in the Lee Building, it was orally understood and agreed that if George survived Mary he was to receive equal portions of Mary's estate with Marie and Carrie, which would have given George an undivided one-ninth interest in the Lee Building, and Marie and Carrie each an undivided four-ninths interest therein, although upon Mary's death record title thereto was to vest in Marie and Carrie. It was alleged that upon Mary's death and under the terms of her will duly probated record title to the Lee Building vested in Marie and Carrie until Marie's death July 17, 1947, but that theretofore from September 17, 1931, George had been in open, continuous, adverse possession of his alleged one-ninth interest in such premises until his death October 9, 1954. Also, it was alleged that on July 5, 1932, when Marie executed her last will devising an undivided one-half interest in the Lee Building and her estate to Carrie, it was orally understood and agreed that if George survived Marie he was to receive equal portions of her estate with Carrie, including an undivided one-half interest in the Lee Building, although the record title to such premises was to vest in Carrie. It was alleged that from and after Marie's death and the probate of her will, Carrie and George adopted and carried out a described plan for equalizing a division of Marie's estate in accord with the aforesaid agreement, and that from July 17, 1947, George was in open, continuous, and adverse possession of his undivided one-half interest in the premises until his death. However, it was alleged that from and after George's death Carrie had attempted to repudiate and disclaim the trust relationship theretofore participated in by her.
Defendant Carrie answered, denying generally and specifically denying that she, Mary, Marie, or any of them ever held the Lee Building under any oral agreement or otherwise as trustee for George or that there was any consideration whatever for any such an alleged agreement. Defendant alleged substantially that she, Mary, and Marie purchased the Lee Building from the Lee Company on January 2, 1912, received a warranty deed thereto, and paid the entire consideration therefor; that Mary's undivided one-third interest therein was devised to Marie and Carrie equally by Mary's last will duly probated, which gave George a legacy of $1,000, made him a conditional residuary legatee and devisee of her entire estate, and nominated George and Marie as executors; and that Marie's will, duly probated, which made George a conditional residuary legatee and devisee of her entire estate and nominated George and Carrie as executors, devised Marie's undivided one-half interest in the Lee Building to Carrie.
Defendant alleged that George was proponent of both such wills; that he served respectively as executor in both estates wherein he listed the Lee Building as exclusively a part of the assets of both estates and took possession thereof as executor; that he filed petitions for final decrees in both estates and participated in so transferring and delivering the Lee Building first to Marie and Carrie and then to Carrie, in conformity with the wills; that in Mary's estate he was paid the bequest of $1,000 and signed a complete release of all claims against the estate; that he never filed any claim in either *197 estate asserting that he had any interest in the Lee Building; and by reason of said acts and conduct both George and plaintiff were barred and estopped in this collateral action from making any claim to the premises. Defendant alleged that she and her predecessors in interest, as owners, and her tenant the Lee Company, as lessee, had been in possession of the Lee Building ever since January 2, 1912, and denied that George ever had any possession thereof adversely or otherwise, but had always been simply the paid agent of Mary, Marie, and Carrie, or the survivor of them, and entrusted as such to manage the property and negotiate leases therefor; and that he always represented himself in writing and otherwise to be such agent, which barred him and his representative from making any claim to the subject matter of such agency. Defendant alleged that plaintiff's claimed cause of action was barred completely by the statute of frauds, the statute of wills, the statute of limitations, and the laches of plaintiff and George; that defendant and her immediate grantors always had an unbroken chain of title to, ownership, and possession of the Lee Building by themselves under the warranty deed from the Lee Company for more than 23 years; and that plaintiff should be put upon strict proof of every material allegation of her petition by clear, unequivocal, and convincing evidence, as required by law. Defendant prayed for dismissal of plaintiff's petition. Plaintiff's reply was a general denial.
After a trial upon the merits, whereat voluminous evidence was adduced, the trial court rendered a decree which found and adjudged the issues generally in favor of defendant Carrie and against plaintiff, primarily upon the ground that plaintiff had failed to prove by clear, satisfactory, and convincing evidence as required by law that either a resulting or constructive trust should be impressed in favor of plaintiff and George's estate upon the "West two-thirds (W 2/3) of Lot Three (3), Block One Hundred Fifty-one (151), Original City of Omaha, * * * otherwise known as the George H. Lee Building at 1115 Harney Street, Omaha, Nebraska." It also found that under the evidence, even had any legal or equitable interest been established by plaintiff, the failure of George to bring an action to establish the same during his lifetime, and the laches of George and plaintiff, were sufficient to preclude equity from granting the relief sought. It further found that defendant Carrie had not by any plea of laches, estoppel, or waiver, relieved plaintiff from the legal burden of establishing her claim by a preponderance of evidence clear, satisfactory, and convincing in character. It ordered the rental income theretofore paid by Lee Company to the clerk of the district court to be paid forthwith to Carrie or her attorney. Thereafter plaintiff's motion for new trial was overruled and she appealed, assigning in effect that the findings and judgment of the trial court were not sustained by the evidence but were contrary thereto and contrary to law. We conclude that the assignments should not be sustained.
At the outset plaintiff assigned and argued that defendant, having pleaded laches, estoppel, and waiver, had admitted the facts alleged in plaintiff's petition. The contention has no merit under the pleas presented in this case. In such respect, plaintiff relied upon Anderson v. Anderson, 155 Neb. 1, 50 N.W.2d 224, 229, wherein we held: "`"Facts alleged in a petition to which the defendant in his answer pleads a waiver, an estoppel, or a matter to avoid will be treated as admitted, though the answer also contains [his] general denial."'" Such holding was simply a general rule applicable and controlling the particular situation presented in that case, which is entirely distinguishable from that presented in the case at bar. Here we have no technical plea of waiver as such, so only the questions of laches and estoppel in pais are presented.
The general rule is that: "More than one defense may be interposed to the *198 same cause of action, provided they are not inconsistent with each other; they are not inconsistent unless the proof of one necessarily disproves the other." Colbert v. Miller, 149 Neb. 749, 32 N.W.2d 500.
In Blodgett v. McMurtry, 39 Neb. 210, 57 N.W. 985, which presented comparable issues with regard to estoppel, this court held: "A plea of estoppel may be joined with a general denial when the averments by way of estoppel are not inconsistent with such denial." In the opinion it is said: "We have been unable to find any case holding that a plea of estoppel in pais cannot be joined with one amounting to a traverse, where the two are not in their natures inconsistent. Here they are not inconsistent."
In Webber v. Ingersoll, 74 Neb. 393, 104 N.W. 600, this court held: "An answer setting up the statute of limitations is not a technical plea of confession and avoidance. Whether an answer of a supposed estoppel is so or not depends upon the nature of the matter alleged in the plea." Plaintiff cites no authority for her contention that a plea of laches constitutes a plea of confession and avoidance. In such respect, under the pleadings at bar, it appears to be generally analogous to a plea of the statute of limitations. Baxter v. National Mtg. Loan Co., 128 Neb. 537, 259 N.W. 630, cited with approval in Watson Bros. Transp. Co. v. Red Ball Transf. Co., 159 Neb. 448, 67 N.W.2d 475.
With regard to a plea of the statute of limitations, the opinion in Webber v. Ingersoll, supra, said: "In effect, if not in form, the plea is that the plaintiff ought not to have or maintain his suit, because the facts out of which a cause therefor is alleged to have accrued are not averred to have taken place or did not in fact occur, if at all, within the period of limitation before the action begun. This plea is quite consistent with the contention that they did not take place at all, and the two issues may be and usually are tried as one. If the plaintiff fails to prove the existence of the requisite facts, he, of course, fails to recover; but if he proves them, and it appears that their occurrence was too remote in time, he also fails." With regard to a plea of estoppel, that opinion said: "As to estoppels, there are several varieties of them. An estoppel, for instance, may consist of a waiver by which the plaintiff has foregone or abandoned a previously subsisting and valid cause of action; and a plea of such an estoppel of necessity confesses the existence of the facts, the effect of which, it is alleged, was afterwards waived. But there are other estoppels which arise out of the very transaction and circumstances upon which the plaintiff relies as affording him a ground of recovery, and a plea of such an estoppel, so far from confessing and seeking to avoid, amounts to a practical denial of the plaintiff's cause of action. And there is still another kind, in which it is averred that the conduct of the plaintiff since the alleged accrual of his supposed cause of action has been such as to lead the defendant to believe that it did not exist or would not be asserted, and that the latter has conducted his affairs accordingly, and that therefore, whether the plaintiff has a good cause of action arising out of the facts alleged by him or whether he has not, is immaterial, because he ought not in good conscience to be permitted to assert it. * * * In this last case, if the matter alleged in estoppel is sustained by sufficient proof, there is no occasion to inquire whether the averments of the plaintiff are true or false; but, if the defendant fails in his proof, the plaintiff must still establish the truth of his averments, unless it is admitted otherwise by the plea of estoppel." The first kind of estoppel aforesaid appeared in Anderson v. Anderson, supra. The last two kinds appear in the case at bar, and the statements with regard thereto are applicable and controlling here.
On appeal to this court, actions in equity such as that at bar are triable de novo under the rule promulgated in Wiskocil *199 v. Kliment, 155 Neb. 103, 50 N.W.2d 786, and other authorities too numerous to cite.
In Restatement, Trusts, ch. 12, p. 1249, it is said: "A resulting trust arises where a transfer of property is made under circumstances which raise an inference that a person making a transfer or causing a transfer to be made did not intend the transferee to have the beneficial interest in the property transferred. A constructive trust is imposed not because of the intention of the parties but because the person holding the title to property would profit by a wrong or would be unjustly enriched if he were permitted to keep the property. A constructive trust unlike an express trust or resulting trust, is remedial in character."
It is now well established as a general rule that the burden of proof is upon one seeking to establish and enforce either a resulting or constructive trust to prove the same by a preponderance of evidence which is clear, satisfactory, and convincing in character. Holbein v. Holbein, 149 Neb. 281, 30 N.W.2d 899; Peterson v. Massey, 155 Neb. 829, 53 N.W.2d 912.
In 23 C.J., Executors and Administrators, s. 372 p. 1158, citing Veeder v. McKinley-Lanning Loan & Trust Co., 61 Neb. 892, 86 N.W. 982, and other authorities, we find the general rule that: "If an executor or administrator receives property in his representative capacity, he is estopped afterward to deny that it is property of the estate." In the cited opinion we said: "It must be borne in mind that the administrator acted with full knowledge of all the facts regarding his alleged equitable title. He deliberately chose the course of conduct adopted and followed, and now to permit him, or those claiming under him, to deny the title of the estate and claim through another source, is to invite and sanction a course of wrongdoing contrary to law and good morals. * * * The administrator must be held to be estopped by his own acts from now setting up a claim to the property in his own right."
In 33 C.J.S., Executors and Administrators, § 128, p. 1084, citing authorities, it is said: "A personal representative who takes possession of property in his fiduciary capacity is generally estopped to deny the title of his decedent or to set up an adverse title to the injury of those beneficially interested in the estate." Also, in Annotation, 146 A.L.R. 1182, citing Overlander v. Ware, 102 Neb. 216, 166 N.W. 611, 612, and other authorities, it is said: "Estoppel to assert against a decedent's estate a claim antedating the decedent's death has been held to arise from statements or conduct on the part of the claimant inconsistent with such assertion."
In Overlander v. Ware, supra, this court said: "If Clark had believed, when Kelly died, that under the contract he was the owner of all the property, it is natural to suppose that he would have at once made claim to it upon that ground, as he was in duty and law bound to do if such was his claim. Instead, he makes application that letters of administration be granted, and permits the estate to be administered before asserting his rights. * * * The attitude of Clark in participating in the administration proceedings, and in permitting final decree therein without asserting his rights to any part of the estate except the 80 acres, estops him from asserting ownership of the entire estate. As to that portion of the estate, it amounts to an election on his part to take as heir and not as owner."
The foregoing rules and statements are applicable and controlling here, and in the light thereof, we have examined the record, which, summarized, fairly discloses the following: George, Sr., died intestate on June 25, 1900. He left a large estate consisting of personal property and various parcels of real estate in Omaha, including the west half of Lot 3 and all of Lot 4 in Block 41; Lot 6 in Block 89; and Lot 8 *200 in Block 104, which he had owned for many years. His heirs at law were Mary, his widow, who never remarried; Anna, a married daughter sometimes designated as Mrs. E. E. Huntley; Marie, and Carrie, daughters who never married; and George, a married son. In that connection, George's first wife divorced him on January 2, 1903, for nonsupport, and he subsequently married Dora, the plaintiff, on September 1, 1936. Mary was administratrix of the estate of George, Sr. Under the statute of descent and distribution then in force, the property owned by him at the time of his death descended in equal shares to his four children, subject only to a life estate in a one-third interest by Mary, his widow. Subsequently it will be observed that George, Marie, and Carrie each acquired an undivided one-third interest in the real estate heretofore described, which was a part of their father's estate. It should also be noted here that the Lee Building; Lot 14, Block 1, Field Crest Addition to Omaha, the home of Mary, Marie, and Carrie on Walnut Street; Lot 5, Block 89; Lot 1, Block 57; Lot 4, Block 174, in Omaha; and other property unimportant here, were never owned by and never were any part of the estate of George, Sr.
In that connection, the record conclusively shows that on January 2, 1912, some 12 years after the death of George, Sr., the Lee Building was purchased from the Lee Company by Mary, Marie, and Carrie for $32,000, subject to a mortgage for $15,000, and as named grantees they then received a warranty deed thereto. They paid the entire consideration therefor, including the mortgage. George never paid any part thereof and was not a party thereto except that a final statement in purchase thereof designated him as rental agent. The Lee Company has been in possession of such premises as lessee ever since January 2, 1912, under numerous leases executed by it as lessee, and by Mary, Marie, and Carrie during Mary's lifetime, or by Marie and Carrie during Marie's lifetime, or by Carrie after Marie's death, as lessors. George generally negotiated such leases as the paid agent respectively for his mother and sisters, and his name appeared thereon as "George T. Giacomini, Agent," as it did in his bank account from 1924 to 1949, when it was closed after all property originally a part of his father's estate had been sold and George's salary as managing agent thereof had ceased. One such lease with Lee Company executed in 1951 designated Carrie and George "parties of the first part" as lessors, but upon discovery thereof by Carrie and notice to George, who made no known objection thereto, an extension thereof was duly executed by Carrie only upon condition that it should be understood that "parties of the first part" appearing in such lease referred only to Carrie as sole owner and lessor, with insurance payable to her only in case of loss. George was never in possession or had any right to possession of the Lee Building as lessor or owner. It was always understood that George, in dealing with the Lee Company, was only managing agent for his mother and sisters, to whom the rentals therefor were always paid. George never collected the Lee Building rentals. As a matter of fact, there is no evidence that George during his lifetime ever claimed to anyone, even his wife, the plaintiff here, that he owned any interest in the Lee Building. Plaintiff so admitted in her own testimony when she said: "And George never talked business to any living sole (sic) only his sister. He didn't tell anybody he owned the Lee Building or he didn't." Also, sometime after 1950, plaintiff told Carrie's niece, Mabel, that although George had never told her so, she thought that George owned part of the Lee Building. However, when Mabel called Carrie's attention to that conversation, she replied: "Marie and I owned it, and now I own it since Marie died."
Theretofore, Mary had purchased the residence property on Walnut Street in Omaha, where after 1918 Mary, Marie, and Carrie made their home during Mary *201 and Marie's lifetimes, and where Carrie, 86 years old at the time of trial, still lived. Plaintiff makes no claim to any interest in that property, and George never did. In 1907 Marie and Carrie purchased Lot 1, Block 57, in Omaha, and sold it in 1944, yet plaintiff makes no claim that George ever had any interest in that property, and George never did. Concededly, he did not receive and was not entitled to receive any part of the proceeds of that sale. In 1935 Marie and Carrie purchased Lot 5, Block 89, in Omaha. In 1945 both such lot and adjacent Lot 6, Block 89, were sold for $35,000. Concededly at that time George had no interest in Lot 5, but he did then own an undivided one-third interest in Lot 6, which was originally a part of his father's estate. After appraisal of Lot 6 for $15,000, George was concededly allowed and paid $5,000 by Marie and Carrie for his one-third interest in Lot 6, but George, without any complaint, was allowed nothing for any interest in Lot 5, which belonged to Marie and Carrie.
On January 13, 1949, Carrie executed a will, subsequently revoked, which among other things gave George all of her real estate, including the Lee Building, if he survived her, together with all income from her bonds, stocks, and securities, until his death.
Subsequently, on February 23, 1949, after Marie's death, George was very ill, so upon advice of counsel, in order to facilitate administration of his estate, George and plaintiff, as husband and wife, executed a survivorship deed to themselves as joint tenants, thereby conveying an undivided one-third interest in and to the west half of Lot 3 and all of Lot 4, Block 41, and Lot 8, Block 104, in the city of Omaha, which were properties originally a part of the father's estate. However, no claimed interest in the Lee Building was included in that survivorship deed. Subsequently, when the west half of Lot 3 and all of Lot 4 in Block 41 were sold in 1949, after Marie's death, for $8,000, George then concededly owned only an undivided one-third interest therein. However, without any necessity and without any request or demand by George, he received from Carrie $4,000, which was one-half of the proceeds of the sale. The difference was a gift to him by Carrie. Also, when Lot 8, Block 104, was sold in 1949 for $36,000, George concededly owned only a one-third interest therein. However, without any necessity and without any request or demand by George, he received $18,000 from Carrie, which was one-half of the proceeds of that sale. Again, the difference was a gift to him by Carrie.
When George, Sr., died in 1900, his son George was a druggist. Thereupon George sold out his business and never again had any steady employment outside the family. He supported himself with income from his own properties or interests therein, and by receiving a salary until 1949 for the management of the property and interests then belonging to his mother and sisters, for whom George acted as agent. The amount of his compensation as such agent depended upon the amount of rents collected, and such salary was either deducted by him from rents collected by him or was otherwise paid directly to him.
After his divorce George sought the intimate society of women. At least one of them threatened him with lawsuits. In that connection, plaintiff offered in evidence several conveyances of George's interests in described properties which he owned or had received from his father's estate. Such conveyances, beginning in 1910 and ending August 3, 1935, were either from George to Marie and Carrie, or from Marie and Carrie back to him for only nominal considerations. Plaintiff claimed that they were attempts by George to protect himself against liability to that woman by making himself judgment proof. Be that as it may, on February 15, 1933, Carrie, with aid of George's counsel, obtained a written release from any liability by George to that named woman who had threatened to sue him for *202 breach of promise, claiming "that an intimate relationship has existed between her and George T. Giacomini, of Omaha, Nebraska, for many years past." The consideration for such release was a cash payment of $1,740, and a promissory note given for a like amount, due in one year and signed by George, Marie, and Carrie. In that connection, thereafter on August 3, 1935, more than a year before plaintiff Dora married George, all of his claimed interest in all of his property theretofore conveyed to Marie and Carrie had been conveyed back to George by them and there were no further title transactions between George and his sisters. It is interesting to note that although plaintiff claims that George had an interest in the Lee Building during that period of time, no mention was ever made of it in any of such conveyances aforesaid. Also, there is no clear, satisfactory, and convincing evidence of any agreement between George and Mary, Marie, and Carrie or any of them that George was to ever have or own any interest in the Lee Building or even that he had ever claimed to them or any other person that he owned any interest therein.
Mary, the mother, died testate on September 17, 1931. George, Marie, Carrie, Anna, and Anna's daughter Mabel, survived her. Insofar as important here, Mary's last will gave her daughter Anna $2,500, and her granddaughter Mabel $1,000. It devised her undivided one-third interest in the Lee Building to Marie and Carrie equally, or to the survivor of them, but George was to receive Mary's one-third interest if neither Marie nor Carrie survived testatrix. Mary's will devised to Marie and Carrie each an undivided one-half interest in Lot 14, Block 1, Field Crest Addition to Omaha, the home on Walnut Street, upon like survivorship terms and conditions. It devised all of her other separate property as follows: An undivided one-fourth interest to Anna and an undivided three-fourths equally to Marie and Carrie upon like survivorship terms and conditions. It gave George a legacy of $1,000, and appointed George and Marie as executors. George himself prepared and filed the petition for probate of her will. Thereafter it was admitted to probate and such executors were appointed. Their inventory of Mary's estate, duly prepared, signed, acknowledged, and filed by them, listed, among other things, "An undivided one-third (1/3) interest in and to the West Two-Thirds (2/3) of Lot Three (3), in Block One Hundred and Fifty-one (151), Original City of Omaha, Douglas County, Nebraska," (the Lee Building) as belonging to Mary at the time of her death.
Anna was not satisfied with the provisions of Mary's will, so by way of compromise and settlement on June 23, 1932, she received the $2,500 legacy and a special warranty deed from Marie and Carrie to the south half of Lot 4, Block 174, original city of Omaha, in full and complete satisfaction of any and all claims which she then or thereafter had against Mary's estate. Also, on April 28, 1932, Anna, her husband, and George, conveyed to Marie and Carrie their undivided one-half interest in Lot 6, Block 89, and the west one-half of Lot 3, and all of Lot 4, in Block 41, original city of Omaha, which was property originally in their father's estate.
However, thereafter on August 3, 1935, Carrie and Marie deeded back to George a one-third interest in such described property. In that connection, the Lee Building was not in any manner involved in such transactions, and no claim for any interest therein was ever filed by George in Mary's estate. Rather, the final decree rendered therein assigned to Marie and Carrie each an undivided one-half interest in and to Mary's undivided one-third interest in the Lee Building, which resulted in Marie and Carrie each owning an undivided one-half interest therein. Such decree also approved the bequest of $1,000 to George who, on June 21, 1932, prepared, signed, and filed a receipt for payment thereof to him, which stated, "the same being payment in full of *203 any and all sums due him under the will of Mary Giacomini, deceased, and in full payment of any and all claims of the undersigned against said estate." The executors were finally discharged on September 7, 1932. In that connection, defendant testified that George subsequently received his share and more of that portion of all properties which were originally a part of his father's estate, because it belonged to him. However, the evidence clearly establishes that such division did not include but specifically excluded any interest in the Lee Building, the home on Walnut Street, and all other property which was subsequently purchased by and belonged to Mary, Marie, and Carrie, or the survivor of them.
Marie died testate July 17, 1947. Her will, executed July 5, 1932, gave $1,000 to Mabel, her niece, and $500 to her sister Anna if she survived testatrix, otherwise it became a part of Marie's estate. The residuary clause gave all of Marie's property to Carrie if she survived testatrix, otherwise to George. The petition for probate was filed by George and Carrie, who were nominated as executors. Marie's will was admitted to probate and such executors were appointed. Thereafter, George and Carrie duly prepared, signed, acknowledged, and filed a typewritten inventory of Marie's estate, listing therein among other things: "An undivided one-half interest in West Two-Thirds of Lot 3, Block 151, City of Omaha, being 1115 Harney Street, Omaha," (the Lee Building) as belonging to Marie at the time of her death. Previously, at the request of and for the benefit of counsel for the estate, a list of property belonging to Marie at the time of her death was made out by George in his own handwriting. It recited, among other things: "Invoice of the Estate of Marie Giacomini Deceased. Real Estate * * * W 2/3 Lot 3Block 1511115 Harney St1/2 Int." Also, with regard to its preparation, counsel for Marie's estate testified that in talking with George: "I asked him on the Lee Building at 1115 Harney, who owned it, and he said Marie owned a half of it and Carrie owned a half of it." Further, no claim for any interest in the Lee Building was ever filed by George in Marie's estate, and the final decree therein gave the residue of Marie's property, including Marie's undivided one-half interest in the Lee Building, to Carrie, whose title thereto was then complete. The executors were discharged on April 19, 1948.
George died testate on October 9, 1954, when he was 81 years old. His will, executed September 4, 1947, gave his sister Anna $100 if she survived him, otherwise it was given to her daughter Mabel. It gave $100 to Carrie if she survived him, otherwise it was given to her niece Mabel. The residue of his estate, without description thereof, was given to plaintiff, his wife, who was named executrix. His will was duly probated and plaintiff was so appointed on December 15, 1954, after which plaintiff's second amended petition was filed herein.
At the time of trial Carrie was the only one of the immediate family surviving. The family was renowned for longevity. The mother, Marie, Carrie, and George were always affectionately, unselfishly, and loyally devoted to each other, with never a difference or controversy. Every day of his life that he was able to do so, George went to see his mother and sisters, or telephoned to them while they lived. He continued to do so with Marie and Carrie after his mother's death, and with Carrie after Marie's death. He acted as their agent in the management of their properties, and was paid a salary by them for doing so, until the properties originally belonging to their father's estate were finally sold in 1949. Years before that Carrie gave George a car. Over the years he needed more money than they were paying him, and when he asked for it, they gave it to him. He became ill about 6 years before his death and gradually got weaker and weaker until his death on October 9, 1954. Nevertheless, he was able on Friday and Sunday before his death to drive his car over to see *204 Carrie, and he did so. Carrie paid all of his hospital bills over a period of 3 months in 1949. For many years Carrie and Marie had each given him $25 for Christmas, and after Marie's death in 1947, Carrie continued to give him $50 each Christmas until his death. Shortly before his death, Carrie gave him $250 to have his car repaired.
During her lifetime, Marie generally handled all financial transactions for herself, Mary, and Carrie. In that connection, monthly rentals for the Lee Building were always paid to Mary, Marie, and Carrie, or the survivor of them. There is evidence that after 1942 when they were so paid, Marie would make a remittance to George of as much as one-ninth thereof. The last five of such monthly payments were consolidated as one and paid by Carrie on December 14, 1947. Plaintiff argued that payment of such portions of the Lee rentals, together with other related facts and circumstances, established that George respectively owned first an undivided one-ninth interest, then an undivided one-half interest in the Lee Building itself, as claimed by plaintiff. We do not agree. As we view it, such contention was not established by a preponderance of clear, satisfactory, and convincing evidence. In that connection, it will be noted that the amount of George's compensation as managing agent depended upon the amount of rentals collected, which he either deducted from the rents collected by him, or he was paid by Marie if Marie and Carrie collected it. Under the circumstances presented in this case, it is only logical to conclude that such payments made by Marie were compensation to George for his services as managing agent of the Lee Building. In other words, he had a compensatory interest in the Lee Building rentals but none in the building itself. To hold otherwise would be purely speculative and conjectural.
It was admitted by Carrie that beginning on March 8, 1948, after George's income had been reduced and plaintiff and George needed money, Carrie began giving George one-half of the monthly Lee rentals as a gift, and after George's income as agent had terminated in 1949, when the last properties belonging to his father's estate had been sold, George was ill and needed money, so Carrie continued until the time of his death to give him one-half of the monthly Lee rentals as a gift. Carrie's unswerving devotion to and her prior charitable treatment of George, her only brother, together with other related evidence, gives such testimony credibility. True, it appears that in 1949, 1950, and 1951 George paid part of the taxes upon and some expenses for maintenance of the Lee Building, in order to help Carrie and get credit therefor in his income tax returns. However, it is established by a preponderance of the evidence that all such payments made by Carrie to George were gifts because he needed money; that he never in his life-time had any agreement with or made any claim to Marie or Carrie or anyone else that he owned any interest in the Lee Building itself; and that he never had any such interest.
For reasons heretofore stated, we conclude that the judgment of the trial court should be and hereby is affirmed. All costs are taxed to plaintiffs.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609880/ | 90 So.2d 456 (1956)
Rafael LOPEZ, as Executor of the Estate of Joseph Anthony Lopez, Jr., Appellant,
v.
Dorothy N. LOPEZ, Appellee.
Supreme Court of Florida. Division B.
November 7, 1956.
Mitchell, Smith & Mitchell, Atlanta, Ga., and Evans, Mershon, Sawyer, Johnston & Simmons, Miami, for appellant.
Anderson & Nadeau and Shutts, Bowen, Simmons, Prevatt & Julian, Miami, for appellee.
O'CONNELL, Justice.
This is an appeal from a final decree holding that a widow was entitled to contribution *457 from her deceased husband's estate of a sum equal to one half of the balance due on two purchase money mortgages and notes executed by the wife and her deceased husband on lands purchased and held by them in an estate by the entireties, one half of the interest paid by her on the mortgages and one half of the real estate taxes for the year in which the husband died.
Joseph A. Lopez and Dorothy N. Lopez were husband and wife. They purchased two pieces of realty in Florida. In each purchase the title was taken in the name of the husband and wife, in the entirety, and a purchase money mortgage and note was executed by both for a part of the purchase price.
The husband, whose executor is appellant here and was defendant below, died. The wife, the plaintiff below and appellee here, became the owner of the two pieces of land by operation of law. She filed a claim against the estate of her husband for one half of the unpaid balance of the mortgages and notes as the balance existed on the husband's death. The claim was objected to and she then filed this suit in chancery asking that her husband's estate be required to pay her one half of the sums due on the mortgages and notes at her husband's death, one half of the interest paid by her thereon since the husband's death and one half of the real estate taxes paid by her on said property for the year 1953. Her husband died in October 1953. The circuit court rendered a decree granting the wife the relief prayed for and the executor appeals.
The wife did not pay off and discharge the mortgages and notes, nor did the mortgagees file a claim against the estate for the sums due on the mortgages and notes.
This is a case of first impression in Florida.
The principal questions to be decided by us are whether (1) a right of contribution, and (2) whether a right to exoneration, exist in favor of a surviving spouse and against the estate of a deceased spouse as to a purchase money mortgage and note executed by both the husband and wife on an estate by the entireties property.
We do not think either of such rights exist and therefore hold that the decree of the chancellor was error.
We can find no decision rendered by this Court on this subject. Nor did counsel for the parties, in able briefs cite any cases from this jurisdiction. There appear to be two lines of authority on the question. We are free to choose that course which we feel accords best with our regard for the rights of those holding property in an estate by the entireties.
The plaintiff wife contends that we should follow the rule that contribution is to be allowed in circumstances such as we have here, as said rule is laid down in the case of Cunningham v. Cunningham, 1930, 158 Md. 372, 148 A. 444, 67 A.L.R. 1176. In this case the issue was whether a surviving spouse was entitled to exoneration from the debt of a purchase money mortgage executed by both spouses. The Court held she was not entitled to exoneration, but was entitled to contribution. It reached this conclusion on the theory that the obligation of the note and mortgage was to be considered separate and apart from the nature of the security; that the husband and wife were joint and equal principals as to the obligation; that as between joint and equal principals the right of contribution exists and therefore the wife was entitled to contribution of one half of the mortgage debt from the husband's estate. The court ignored that the property was held in an estate by the entireties, ignored the nature of such an estate, disregarded the fact that the husband's estate had neither benefited nor been enriched unjustly by the mortgage debt, and did not consider that the wife had not in fact paid the mortgages for which she claimed contribution.
*458 The plaintiff wife also relies on the cases of Commerce Union Bank v. Weis, 1944, 27 Tenn. App. 433, 181 S.W.2d 764 but in that case the land was in the wife's name alone. It is not decisive of the question before us.
She also relies on the case of In re Kershaw's Estate, 1945, 352 Pa. 205, 42 A.2d 538, and In re Dowler's Estate, 1951, 368 Pa. 519, 84 A.2d 209, which cases proceed on the same theory as in the case of Cunningham v. Cunningham, supra.
Plaintiff also cites the case of Magenheimer v. Councilman, 1919, 76 Ind. App. 583, 125 N.E. 77, wherein an administrator paid a mortgage executed by his decedent and the widow on estate by entirety property. He settled with the widow, she paying one half of the mortgage sum, after which both litigated. The widow claimed she should have paid nothing on the mortgage, and the administrator claimed she should pay the whole sum due. The court held that the widow had to pay one half of the mortgage sum. The court followed the theory that the husband was a joint and equal principal on the note and that death did not change his obligation. The court apparently held that the wife being a joint and equal principal and having benefited from payment of the mortgage should contribute. It merely said she should not complain at being required to contribute.
The principle of equitable contribution is held not to entitle a surviving spouse to contribution from the estate of the deceased spouse, for the sums due on a mortgage executed by both spouses on property held in an estate by the entireties in the following cases: Ratte v. Ratte, 1927, 260 Mass. 165, 156 N.E. 870; In re Dell's Estate, 1935, 154 Misc. 216, 276 N.Y.S. 960; Geldart v. Bank of New York & Trust Co., 1924, 209 App.Div. 581, 205 N.Y.S. 238; Robinson v. Bogert, 1946, 187 Misc. 735, 64 N.Y.S.2d 152.
These cases proceed, in general, on the theory that the nature of the obligation of the deceased spouse is to be considered in light of the incidents of ownership of the property which is security for the debt, that the husband and wife each simultaneously own the whole of the estate, and that the burden of the mortgage debt follows the security. They also consider that inasmuch as the personal estate of decedent is not enriched or benefited by the debt, the survivor should not be entitled to contribution.
The case of Ratte v. Ratte, supra, makes clear the significance of the manner in which the title to property involved is held since in that case contribution was allowed on a mortgage debt on property held by the spouses as tenants in common, but was not allowed on property held in an estate by the entireties, although both spouses had each executed the one mortgage and note for which both properties were security.
The doctrine of equitable contribution is applied to prevent one of two, or more, joint obligors being required to pay more than his share of a common burden, or to prevent one obligor from being unjustly benefited or enriched at the expense of another. See 13 Am.Jur. Sec. 3, p. 6, for a definition of equitable contribution.
We do not consider the purchase money mortgages and notes involved in this cause to be a common burden. We construe that the husband and wife were each obligated for the whole of the debt, since each is considered to have purchased and owned the whole estate. Their interests were not divisible. Ashwood v. Patterson, Fla. 1951, 49 So.2d 848.
When one of the tenants by the entirety dies, the surviving tenant receives no new or greater estate than already possessed, but the interest of the deceased tenant ceases. It is in our opinion unconscionable and inequitable to allow the law to take from one his interest in lands, yet hold him responsible for a part of the purchase price thereof which remains unpaid.
*459 We reason that the debt of a purchase money mortgage in such a case as before us, in order to be consistent with our holdings on the nature of an estate by the entirety, must be considered as between the tenants themselves as being a debt being owed wholly by the wife, and simultaneously wholly by the husband. Since in the purchase of said lands each tenant is said to have acquired the whole estate therein, it is consistent that the debt incurred would be considered to be the whole debt of each.
Under this reasoning it would follow that just as the surviving tenant acquires no new estate on the death of the deceased tenant, likewise the surviving tenant would incur no new burden or obligation by the death of the one.
It is clear to us that in a case such as here, the estate of the decedent receives no benefit or enrichment which, in equity, requires or justifies contribution being made to the surviving spouse. On the other hand the survivor received all of the estate for which the obligation was incurred and cannot be heard to complain.
We hold then that because in such mortgages and notes as we have here, each spouse, as between themselves, is obligated to pay the full amount thereof, such burden not being a common burden, but a burden borne wholly by each on the whole estate which each holds, simultaneously with the other, and because there is no benefit or enrichment to the deceased, or his estate, a surviving spouse is not entitled to contribution from the estate of the deceased spouse on a purchase money mortgage executed by both spouses for the purchase of lands, title to which is taken in an estate by the entireties.
We do not hold that the right to equitable contribution does not lie in any case where there is a mortgage, other than for purchase money, executed by both spouses on estate by the entireties property for there well may be cases where the principle would and should apply.
The payment of interest on the mortgage and taxes on the lands in question are also settled adversely to plaintiff by our deciding that the survivor is not entitled to contribution.
We point out that although we have considered the matter before us solely on the question of whether contribution should be allowed, we understand that contribution is allowed only when the party seeking contribution has made payment of the obligation in question. Ratte v. Ratte, supra. While the right to contribution arises at the time of creation of the relationship which creates it, it is only a contingent right until payment is made by the complaining party. 13 Am.Jur., Contribution, Sec. 7, pp. 10-11.
Although the wife had apparently paid periodic payments of principal and interest on the mortgages, she sought to recover not only these sums, but all the sums unpaid on the mortgages and notes at the time of her husband's death. In effect we must construe that she sought to exonerate the properties from the balances due on the mortgage debts and sought contribution for the sums she had actually paid. However, even if the principle of exoneration is involved, it is well settled that this principle does not apply to a purchase money mortgage executed by both spouses on estate by the entireties property. Cunningham v. Cunningham, supra; Bardner v. Waldman, R.I. 1955, 111 A.2d 922; and In re Staiger's Estate, 1929, 104 N.J. Eq. 149, 144 A. 619.
For the reasons above expressed the final decree appealed from is reversed.
DREW, C.J., and THOMAS and ROBERTS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609883/ | 229 Miss. 170 (1956)
90 So.2d 190
POOLE
v.
McCARTY, et al.
No. 40244.
Supreme Court of Mississippi.
November 5, 1956.
Hannah, Simrall & Aultman, Hattiesburg, for appellant.
McFarland and McFarland, Bay Springs, for appellees.
*172 McGEHEE, C.J.
This case is here on demurrer to a bill of complaint wherein the appellant Leroy A. Poole was the complainant and the appellee Emette E. McCarty and others were named as defendants. The demurrer was sustained, but the bill of complaint was not dismissed. The decree sustaining the demurrer allowed an appeal to this Court "to settle the principles of law involved."
The bill of complaint alleged that on December 7, 1954, the appellee Emmette E. McCarty was the owner of the surface of something more than two hundred acres of land located in Smith County, Mississippi, which is particularly described in the bill of complaint.
It was further alleged that on the date aforesaid Emette E. McCarty had the right under the laws of the United States of America (Sections 1033 to 1039 inclusive, Title 7 U.S.C.A.) to purchase from the Federal Farm Mortgage Corporation all of the interest in the oil, gas and minerals in and under said land then owned by the said Federal Farm Mortgage Corporation; that Emette E. McCarty entered into a written contract with the complainant Leroy A. Poole whereby it was agreed that Poole should purchase for and on behalf of McCarty the mineral interest owned by the said Federal Farm Mortgage Corporation, and pay to it the purchase price thereof, which was to be thereafter fixed by the said *173 corporation, and that McCarty was to then convey to Poole 90% of the said mineral interest; that Poole performed his duties as required of him under said written contract; and that this resulted in the Federal Farm Mortgage Corporation making an offer during the month of May 1955 to the said McCarty to sell to him its mineral interest for the sum of $240,000.
The bill of complaint further alleges that as soon as the complainant Poole learned of the fact that such an offer had been made to McCarty by the Federal Farm Mortgage Corporation he, the said Poole, offered to pay the said sum of $240,000 for and on behalf of the said McCarty, but that the latter refused to carry out his part of the contract and refused to permit the complainant to pay the said sum of $240,000 to the Federal Farm Mortgage Corporation, but paid the same himself and then declined to execute the necessary conveyance to the complainant Poole for the 90% of the said mineral interest.
The bill of complaint also alleges that the complainant "is ready, able and willing to pay the said sum of $240,000 to McCarty which the latter had paid to the Federal Farm Mortgage Corporation for the said mineral interest.
A copy of the written contract entered into between Poole and McCarty on December 7, 1954, is made an exhibit to the bill of complaint. It recites the ownership of the land by McCarty, and that one-half of the oil, gas and mineral interest has theretofore been reserved by the Federal Land Bank or the Federal Farm Mortgage Corporation of New Orleans and that McCarty is desirous of employing Poole to recover said interest for him; that the party of the second part, Poole, "will pay at his option, the amount necessary to purchase said undivided oil, gas and mineral interest for the first party on the lands above described an will handle all negotiations in the name and for the benefit of the said party of the first *174 part; and that the party of the first part agrees to give and grant unto the second party an undivided 90% interest in the oil, gas and minerals that may be thus acquired." Finally the contract provided that: "It being understood and agreed that this option shall continue for a period of 90 days from and after this date, including any optional time which the First parties may have to re-purchase said mineral interests from the present owner, and it being further understood that neither party shall be bound to exercise said option unless the price to be paid for the re-purchase of such oil, gas and mineral interest shall be agreeable to the Second Party, but in the event the Second Party does elect to purchase such interests, then this option shall be in full force and binding on the First Parties to execute such instrument or instruments as may be necessary to convey to the Second Party such mineral interests as set forth above. This contract in no way affects any mineral or royalty interest presently owned by First Party."
It is argued that the last above quoted provision of the contract, when taken in connection with the remaining provisions thereof hereinbefore mentioned, means that the complainant Poole had an option which was to continue for a period of ninety days from and after a price might be fixed by the Federal Farm Mortgage Corporation for the sale of the said mineral interest owned by it. Hence the complainant alleged that he was entitled to a specific performance of the said contract as actually written so as to require McCarty and his vendees, who are alleged to have known of the rights of the complainant in the premises, to convey to the complainant a 90% interest in the oil, gas and mineral interest purchased by McCarty from the said Federal Farm Mortgage Corporation on its offer of May 1955 to him, upon the payment by Poole to McCarty of the $240,000 which had been paid by the latter to the said corporation for its interest in said minerals.
*175 However, it is to be noted that the contract does not provide that the option shall continue for a period of ninety days from and after the Federal Farm Mortgage Corporation fixed a price at which it was willing to sell said mineral interest, but provides that "This option shall continue for a period of ninety days from and after this date, including any optional time which the first party may have to repurchase said mineral interest from the present owner, * * *
(Hn 1) We are asked to order a specific performance of the contract which was thus made an exhibit to the bill of complaint. We are of the opinion that the contract as written expired ninety days after date or in March 1955 by its terms as set forth in the contract as written; that we are not authorized to substitute for the parties the words "for a period of ninety days from and after a price is fixed on the minerals by the Federal Farm Mortgage Corporation" in lieu of the words "for a period of ninety days from and after this date, including any optinal time which the first party may have to repurchase said mineral interest from the present owner, * * *" It is not alleged that when the said corporation fixed the price of $240,000 for the said mineral interest in May 1955 that it gave to McCarty any optional time thereafter within which he could purchase the said minerals, and even if such allegation had been made it is provided in effect that the "period of ninety days from and after this date" should include, and not exclude, any optional time that the said corporation may have given to McCarty to purchase the said mineral interest after the price therefor had been fixed.
In the case of Bradley v. Howell, 161 Miss. 346, 134 So. 843, this Court on Suggestion of Error said: "* * * The province of courts in respect to contracts extends not a single step farther than the enforcement thereof as made by the parties, and courts must be careful that they go no farther. If the court should fail in enforcement, it *176 would be only failure or ommission; but, if upon any procedure or pretext the court should go farther and make a contract between parties which they themselves never made or agreed upon and thereupon enforce the same as made by the court, this would be oppression."
To the same effect are the cases of Goff v. Jacobs, 164 Miss. 817, 145 So. 728; Hartford Fire Insurance Company v. Williams, 149 Miss. 123, 115 So. 199; American Bankers Insurance Company v. White, 171 Miss. 677, 158 So. 346; Greenfield v. Supervisors Dist. No. 3 of Perry County, Mississippi, 205 F.2d 323; Hines Motor Company v. Hederman, 201 Miss. 859, 30 So.2d 70; World Fire & Marine Insurance Company v. King, 188 Miss. 237, 191 So. 665; and 12 Am. Jur., Section 228, p. 749.
(Hn 2) Time is of the very essence of an option and we are therefore of the opinion that the complainant was not entitled to the specific performance of the contract as written, the option therein provided for having expired long prior to May 1955, and we do not think that any error was committed by the trial court in sustaining the demurrer.
Affirmed and remanded.
Hall, Kyle, Holmes and Gillespie, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/56880/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 1, 2007
No. 07-11382 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00327-CR-MHS-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR FRANCISCO GONZALEZ,
a.k.a. Jose Miranda-Miranda,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 1, 2007)
Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Hector Francisco Gonzalez appeals his sentence of 70 months of
imprisonment for entering the United States after having been deported. See 8
U.S.C. §§ 1326(a), (b)(2). Gonzalez argues that the district court clearly erred
when it found that Gonzalez’s offense commenced in 2001 for purposes of
calculating his criminal history and imposed an unreasonable sentence. We affirm.
Gonzalez argues that the district court erred when it found that his illegal
reentry to the United States commenced in 2001. He argues that this error
increased his criminal history category from III to V based on the number of
relevant past convictions, see United States Sentencing Guidelines § 4A1.2(e)
(Nov. 2006), and led to a more punitive sentencing range of 70 to 87 months of
imprisonment, as opposed to a range of 46 to 57 months. Gonzalez contends that
the district court should have relied on his statement to the Bureau of Immigration
and Customs Enforcement investigators that his most recent reentry was in
February 2005 instead of the Social Security records of Gonzalez’s reported
income between 2001 and 2003.
We review the application by a district court of the Sentencing Guidelines
de novo and findings of fact for clear error. See United States v. Wilks, 464 F.3d
1240, 1242 (11th Cir. 2006).
The district court did not clearly err when it determined that Gonzalez’s
most recent illegal reentry occurred in 2001. Gonzalez reported income between
2
2001 and 2003 and, during the sentencing hearing, admitted entering the United
States in 2001. Although Gonzalez offered evidence that he left in 2004 and
reentered in 2005, the district court did not clearly err when it discredited that
evidence and found that the crime commenced in 2001.
Gonzalez also argues that his sentence of 70 months of imprisonment was
unreasonable. We review a sentence for reasonableness and that review is
deferential. United States v. Talley, 431 F.3d 784, 785–88 (11th Cir. 2005).
“[T]he party who challenges the sentence bears the burden of establishing that the
sentence is unreasonable in the light of both [the] record and the factors in section
3553(a).” Id. at 788. “When we review a sentence for reasonableness, we do not,
as the district court did, determine the exact sentence to be imposed.” Id. “We
must evaluate whether the sentence imposed by the district court fails to achieve
the purposes of sentencing as stated in section 3553(a).” Id. “[W]hen the district
court imposes a sentence within the advisory Guidelines range, we ordinarily will
expect that choice to be a reasonable one.” Id.
Gonzalez’s sentence of 70 months of imprisonment was reasonable. The
sentence was within the advisory Guidelines range and below the statutory
maximum sentence. Both the sentencing order and the transcript of the sentencing
hearing establish that the district court sentenced Gonzalez after careful
3
consideration of Gonzalez’s arguments in favor of mitigation, the Guidelines, and
the sentencing factors of section 3553(a).
Gonzalez’s sentence is
AFFIRMED.
4 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1609920/ | 90 So.2d 719 (1956)
AMERICAN LIFE INSURANCE CO. et al.
v.
Claude SHELL.
6 Div. 958.
Supreme Court of Alabama.
September 13, 1956.
Rehearing Denied November 29, 1956.
*720 Noble J. Russell, Decatur, and Deramus, Fitts, Johnston & Mullins, Birmingham, for appellants.
Hare, Wynn & Newell, Birmingham, and Ling & Bains, Bessemer, for appellee.
STAKELY, Justice.
This is a suit for libel by Claude Shell (appellee) against the American Life Insurance Company and its President, Thomas W. Wert (appellants), for publishing the following alleged defamatory matter by writing it in a letter to the plaintiff and sending a copy thereof to a Mr. Forsyth, a business associate of the plaintiff. The letter is as follows.
"American Life Insurance Company
"Birmingham 3, Alabama
"September 20, 1952
"Thomas W. Wert "President
"Mr. Claud Shell "Bueno Vista Hotel "Biloxi, Mississippi
"Dear Sir:
"On September the 4th, I wrote you that I had been informed that you stated to one Forsyth, that after you brought the $15,000.00 suit against the American Life we paid you $10.00 in settlement of the suit, but that this check was blind and we passed to you under the table $15,000. You have not replied to my letter.
"Now if you or anyone else makes the statement that we paid you any sum whatsoever than the $10.00 check, directly or indirectly you are an infamous liar and a cowardly cur and knew you were lying when such statement was made.
"Yours etc.,
"/s/ Thos. W. Wert."
The case went to the jury on Counts AA as amended, BB as amended and CC as amended. Count AA as amended alleges that the letter made the basis of the law suit was published at Mt. Pleasant, Texas, where it was read by one Forsyth. In addition to alleging that Forsyth read the alleged libelous letter, a copy of which is attached to and made a part of Count AA as amended, the plaintiff further alleges in Count AA as amended that he suffered special damage to his earning capacity and his reputation was impaired.
In Count BB as amended plaintiff adopts all of Count AA as amended and adds thereto certain allegations with respect to an alleged cancellation by one Forsyth of an agency contract which Forsyth allegedly had entered into with an insurance company of which plaintiff was general agent.
Count CC as amended is substantially the same as Count AA as amended except that Count CC as amended seeks to set up publication in Birmingham, Alabama.
All three of the counts on which the case went to the jury contained allegations showing that the word "we" in the letter referred to Thomas W. Wert and American Life Insurance Company, a corporation. In each count it was further alleged that "It was known to said Forsyth when he received said copy of said letter that the plaintiff had made the statement that `we' (meaning Thomas W. Wert or the American Life Insurance Company or both) had paid him a sum other than said $10.00 check directly or indirectly. * * *"
*721 Trial of the case resulted in a verdict for the plaintiff in the sum of $35,260. There was a motion for a new trial which the court overruled. The appeal here is from the judgment and the ruling of the court on the motion for a new trial.
I. It is argued by the appellants that the epithets applied to the plaintiff in the complaint were conditional, being prefaced with the statement, "Now if you or anyone else makes the statement that we paid you any sum whatsoever than the $10.00 check * * *." It is the position of the appellants that the charge being conditional in its form, there is no actionable quality in the charge.
Our investigation fails to show any Alabama case which throws any light on the question here presented and there are only a few cases so far as we can ascertain where the courts have dealt with the subject. The appellants rely on a case decided in 1842, McKee v. Ingalls, 4 Scam. 30, 5 Ill. 30. We feel, however, that the rule stated in 53 C.J.S., Libel and Slander, § 9, p. 47 is the rule which we should apply. We quote the rule as follows.
"In conditional form. Where the charge is conditional in its form, the actionable quality of the imputation depends on the facts assumed in the conditional clause; and, if defendant makes the charge to depend on a fact which he has stated conditionally but which is known to be true, it is equivalent to a direct charge and actionable."
In all of the counts on which the case was tried it is alleged as follows: "And plaintiff avers that it was known to the said Forsyth when he received said copy of said letter that the plaintiff had made the statement that `we' (meaning Thomas W. Wert or the American Life Insurance Company or both) * * *.", had paid him a sum other than said $10 check directly or indirectly. Accordingly, we consider that in view of the context alleged, which is that Forsyth knew the charge to be true, it is a plain assertion that the plaintiff was "an infamous liar and a cowardly cur and knew you (the plaintiff) were lying when such statement was made." Clark v. Zettick, 153 Mass. 1, 26 N.E. 234; Ruble v. Bunting, 31 Ind.App. 654, 68 N.E. 1041. Although we are dealing here with a question of pleading, it may be well to note in order that the case may be better understood that the court not only required the plaintiff to plead that the condition was met but also required proof tending to show that the condition was met and so charged the jury in the oral charge.
Upon a careful consideration of the matter we, therefore, are of the opinion that the court was not in error in overruling the demurrer to the foregoing counts of the complaint which raise the point that the charge was conditional and therefore not actionable.
II. Plaintiff's evidence tended to show that when Forsyth, who is referred to in the letter which is made the basis of the suit, got a copy of this letter, he terminated his business association with the plaintiff, whereby the plaintiff claims to have suffered a great business loss. This claim for special damages is set up in Count BB as amended.
The proof of the plaintiff tended to show that on May 1, 1952, a written contract was executed between Southern States Life Insurance Company on the one hand and Claude E. Shell (plaintiff here) on the other, designating Shell as General Agent for Southern States Life Insurance Company and agreeing to pay him 75% of commissions on the type of insurance therein described. On September 4, 1952, there was executed a written contract wherein the Southern States Life Insurance Company was the company and Claude E. Shell was the General Agent and C. M. Forsyth, the agent, and specifying therein that C. M. Forsyth, the agent, would be paid a commission equaling 60% of the same commissions on the same type of insurance when and as produced by Forsyth, thereby *722 leaving to Shell his over-riding commission of 15% of premiums of insurance as produced by Forsyth under the aforesaid contract of September 1952. It is claimed that as a proximate consequence of the publication of the aforesaid libel, Forsyth cancelled the aforesaid written contract of September 4, 1952, thereby depriving the plaintiff of the over-riding commission of 15% of all insurance premiums upon insurance when and as produced by Forsyth under said contract. This is the loss which the defendants claim to be conjectural and speculative in nature and for that reason not recoverable and of which the court allowed proof.
Forsyth testified in the case. His testimony tends to show the circumstances upon which it could be calculated with reasonable accuracy what the plaintiff would have earned under his agency contract. The testimony of Forsyth tended to show that he had taken the same crew of men who were serving him at the time he terminated his relationship with the plaintiff and put them to work selling insurance for another insurance company, the Anchor Life Insurance Company, under circumstances which were substantially the same, thereby proving by actual results what was capable of being produced by the agency force which was lost to the plaintiff as the result of the wrongful act of the defendants. His testimony tended to show that the $250,000 of premiums income which he did produce in the next six months was almost exactly the same which he and his crew of men could have produced under the agency contract with the plaintiff had it not been cancelled.
The various elements which made up the substance of Forsyth's testimony were brought out, including the names of the salesmen, the clauses in the policies, the type of prospects who would be approached and the sales commissions. It was shown that Forsyth and his crew specialized in selling what is termed "military insurance". In this type of insurance on proper authorization the government deducted the amount of the premiums from the pay of the man in the service and sent in the premiums. It was shown that 2,750 applications were procured of a potential premium income of about $300,000, which would be $120 a year per policy or $10 per month. This type of insurance had a ready sale and when all of the men in some particular camp had been solicited the crew started working again on that camp when a new group of men came into the camp. It was shown that this type of insurance was sold for the Anchor Life Insurance Company and was comparable to the type of insurance sold by Southern States Life Insurance Company, because the policies were substantially the same, the territory was comparable and the conditions for the sale of such insurance were in other respects comparable.
Upon a careful consideration of the matter we feel satisfied that the proof was admissible to give the jury a basis upon which the amount of plaintiff's loss could be estimated. If the testimony of the plaintiff was believed by the jury, the jury had the right to find that the defendants by their wrongful act destroyed the plaintiff's life insurance agency and having done this cannot then claim that the plaintiff cannot recover what he lost under the contract just because the very act of destruction by the defendants made it difficult for the plaintiff to prove what he would have made of the agency. It is true that damages may not be determined by mere speculation or conjecture, but evidence tending to show the extent of the damages as a matter of just and reasonable inference, should be admissible where the fact of damage has been proved. Wilson v. Stocks, 231 Ala. 58, 163 So. 606.
In support of the views which we have expressed, we call attention to the case of Story Parchment Co. v. Paterson Parchment Co., 282 U.S. 555, 51 S.Ct. 248, 250, 75 L.Ed. 544. In this case the Supreme Court of the United States, speaking through Justice Sutherland, laid down the rule of damages where the defendants' *723 wrongful act has made it difficult for the plaintiff to show with reasonable certainty the amount of his loss. The court spoke as follows.
"Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise. [Citing cases]. As the Supreme Court of Michigan has forcefully declared, the risk of the uncertainty should be thrown upon the wrongdoer instead of upon the injured party. Allison v. Chandler, 11 Mich. 542, 550-556. That was a case sounding in tort, and at page 555 the court, speaking through Christiancy, J., said:
"`But shall the injured party in an action of tort, which may happen to furnish no element of certainty, be allowed to recover no damages (or merely nominal), because he cannot show the exact amount with certainty, though he is ready to show, to the satisfaction of the jury, that he has suffered large damages by the injury? Certainty, it is true, would thus be attained; but it would be the certainty of injustice. * * *
"`Juries are allowed to act upon probable and inferential, as well as direct and positive proof. And when, from the nature of the case, the amount of the damages cannot be estimated with certainty, or only a part of them can be so estimated, we can see no objection to placing before the jury all the facts and circumstances of the case, having any tendency to show damages, or their probable amount; so as to enable them to make the most intelligible and probable estimate which the nature of the case will permit.'
"* * * Cases will often occur in which it is evident that large damages have resulted, but where no reliable data or element of certainty can be found by which to measure with accuracy the amount. Rejecting the view that in such cases the jury should give only nominal, that is, in effect, no damages, leaving the injured party without redress, the court said ([Gilbert v. Kennedy, 22 Mich. 117, at] page 130):
"`To deny the injured party the right to recover any actual damages in such cases, because they are of a nature which cannot be thus certainly measured, would be to enable parties to profit by, and speculate upon, their own wrongs, encourage violence and invite depredation. Such is not, and cannot be the law, though cases may be found where courts have laid down artificial and arbitrary rules which have produced such a result.' * * *"
The decision thereafter states that such damages include those which:
"`Cannot be ascertained by a fixed rule, but must be matter of opinion and probable estimate. And the adoption of any arbitrary rule in such a case, which will relieve the wrongdoer from any part of the damages, and throw the loss upon the injured party, would be little less than legalized robbery.
"`Whatever of uncertainty there may be in this mode of estimating damages, is an uncertainty caused by the defendant's own wrongful act; and justice and sound public policy alike *724 require that he should bear the risk of the uncertainty thus produced. * * *.' "* * * `The constant tendency of the courts is to find some way in which damages can be awarded where a wrong has been done. * * *'"
The next quotation from the opinion states another highlight of the modern rule which has been quoted in practically every modern review and text:
"`The rule that damages, if uncertain, cannot be recovered, applies to their nature, and not to their extent. If the damage is certain, the fact that its extent is uncertain does not prevent a recovery.'"
See also McCormick on Damages (1935), p. 97 et seq.; 33 Amer.Jur. 188; Washington Times v. Bonner, 66 App.D.C. 280, 86 F.2d 836, 110 A.L.R. page 393; Harris v. National Union of Marine Cooks, 116 Cal.App.2d 759, 254 P.2d 673; Ditus v. Beahm, 123 Colo. 550, 232 P.2d 184; 25 C.J.S., Damages, § 28, p. 495; 15 Am.Jur. p. 410; Restatement of the Law of Torts, Vol. III, p. 316; Restatement of the Law of Torts, Vol. IV, § 912, p. 574.
The appellants cite the cases of Union Refining Co. v. Barton, 77 Ala. 148 and Deslands v. Scales, 187 Ala. 25, 65 So. 393, but we do not regard these cases as authority here because the evidence in those cases did not furnish sufficient basis for estimating the damage sustained with reasonable certainty. These cases were quoted in the case of Lambert v. Jefferson, 34 Ala. App. 67, 36 So.2d 583, 589, where the court, quoting from 15 Amer.Juris, § 157, p. 573, said: "`According to the weight of authority, however, a recovery may be had for such losses where they are reasonably certain in character * * *.'"
We do not consider that the court was in error in admitting the testimony of Forsyth because it gives a basis for a reasonable certainty on which the jury could estimate the loss which Shell sustained when his agency contract with Forsyth was destroyed.
III. It is earnestly contended by the appellants that Forsyth could not give his opinion on the loss which plaintiff sustained when the contract which he had with Forsyth was destroyed. We find no merit in this contention. From our examination of the record we think that Forsyth sufficiently stated the facts on which he based his opinion.
In Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633, 637, 53 A.L.R. 840, it is said:
"Hypothetical questionsmeaning questions designed to elicit the opinion of an expert witness on a given condition or state of facts of which he has no personal knowledgemust of course be based upon a hypothetical statement of that condition or state of facts, which must correspond with the facts in evidence, or with one phase of such facts. Parrish v. State, 139 Ala. 16, 43, 36 So. 1012. But this rule has no application to questions calling for the opinion or conclusion of an expert who has personal knowledge of the subject of the inquiry."
See also Watson v. Hardaway-Covington Cotton Co., 223 Ala. 443, 137 So. 33; Malone-McConnell Real Estate Co. v. J. B. Simpson Audit Co., 197 Ala. 677, 73 So. 369.
IV. Did the evidence make out a case against the corporate defendant? The court held that the jury had the right to infer that the libelous letter was written within the scope of the authority of the President of the corporation, Thomas W. Wert. And further had the right to infer that the action of Thomas W. Wert was ratified by the corporation. In so ruling we consider that the court acted correctly.
The defendant Thomas W. Wert testified as a witness in the case. His testimony showed that he had written the alleged libelous letter and mailed it in Birmingham and sent one copy to Forsyth in Texas and another copy to the defendant in care of *725 the Southern States Life Insurance Company. At the time Thomas W. Wert was President of the company and his testimony showed that the writing of the letter was in effect a corporate action written to protect and advance the company's interest. Its nature and the subject which it treated and the purpose it was written to accomplish were all business and corporate in character. He further testified that the letter was not personal. It is our judgment that this letter and the two letters which preceded it and the advertisement in newspapers which followed it, show that it was the act of the President in support of the corporation's position and advancement of its business. He testified that he wrote the letter in the office of the President of the American Life Insurance Company during office hours and on company stationery, using the company's postage. In answer to questions propounded him by his attorney he answered as follows:
"A. I don't think I ever met Mr. Shell over two or three times in my recollection.
"Q. Did you have a thing in the world against him? A. Not on earth.
* * * * * *
"Q. Are you referring to the suit by Powell against the American Life Insurance Company? A. Yes, sir.
"Q. I am asking you if the reference you made which the jury heardaccusing you or insulting you, you are referring to the suit of Powell against American Life filed by Wilkinson and Skinner? A. Yes, sir.
* * * * * *
"Q. To whom were you referring (in your letter of September 20th), when you said, `we'? A. The American Lite and myself."
His testimony showed that Shell had been State Manager of the American Life Insurance Company in Mississippi. He had built up a debit of $15,000 a month. The company cancelled his contract and would not pay Shell what he considered they owed him. He employed attorneys and sued for his money. He sued the American Life Insurance Company and nobody else but the American Life Insurance Company. He was notified by his lawyers that the case had been compromised for $2,500 and he executed a release for $2,500, his lawyers deducting their fee and paying him the balance. This was on February 1, 1950. Shell received a letter written by the President of the American Life Insurance Company, Thomas W. Wert, on September 4, 1952. We set out the letter as follows:
"Sept. 4, 1952
"Mr. Claude E. Shell "Buena Vista Hotel "Biloxi, Mississippi
"Dear Mr. Shell:
"This morning I was informed that a Mr. C. M. Forsyth, a former agent of ours, made a statement to our Mr. Coffman and our Mr. Craven, on August the 30th, about 9:30 P.M. in the Alps Cafe in Mt. Pleasant, Texas, in substance that you had told him that you had once brought a suit against this Company for $15,000.00 and that to settle the matter we gave you a check for $10.00 but that it was merely a blind and we passed to you under the table $15,000.00 cash.
"While I can't bring myself to believe that you made such a statement, I would like to know if you made such a statement or anything like it.
"As you know the only payment we made was the $10.00 and I first refused to give that amount and if you would so far forget yourself and make the statement then your income tax return will show it and our records would show an outgo of that amount.
"Now unless this matter is immediately cleared up I propose to have the Income Tax people to have Mr. Forsyth brought to Birmingham and testify under oath whether *726 you made the statement and if you did why you didn't make a return of it.
"Yours very truly,
"Copy to Shell "C/o Southern States "Forsyth at 108 E. 3rd St., Mt. Pleasant, Texas."
Shell did not reply to this letter and on September 20, 1952, Mr. Wert wrote the letter made the basis of this suit. There was an advertisement in the Decatur paper showing why Thomas W. Wert wrote the letter.
At this point we refer to the case of Choctaw Coal & Mining Co. v. Lillich, 204 Ala. 533, 86 So. 383, 385, 11 A.L.R. 1014, a case of libel against a corporation. In the case here referred to the libelous words were not written by the defendant or on its stationery or in its behalf. The defendant had a typewritten list of coal miners absent from work on the previous day which the defendant had entitled "Employees Not Working July 18." One Verg West, the defendant's assistant mine superintendent, took a piece of chalk or some paint and wrote on the board above the sheet the words, "List of Slackers." As shown by the facts stated above, the foregoing case differs in many respects from the case at bar. However, in the Choctaw case, supra, the opinion states:
"Had the company been advised of the writing, and that it was done by its servant in its behalf, its failure to repudiate the act with reasonable promptness would no doubt have amounted to approval and ratification."
In the case at bar the defendant corporation ran newspaper advertisements rehashing the controversy with Shell and reaffirming that it was false for anyone to claim that he had been paid more than $10 to settle a case which was based on the position that the American Life Insurance Company had frozen him out of the insurance debit which he had developed in Mississippi.
Thomas W. Wert testified expressly that after a directors' meeting he had authority to publish the advertisement which contained a photostatic copy of the check to the plaintiff and directly described what the advertisement calls a false attack on the company by Claude E. Shell and his attorneys. The publication of these advertisements actually amounts to a ratification. It seems to us that they served the dual purpose not only of ratification of what Wert did but demonstrate that his action in the first place was corporate in character. 13 A.L.R. 1143; Wells v. Payne, 141 Ky. 578, 133 S.W. 575; Interstate Transit Lines v. Crane, 10 Cir., 100 F.2d 857.
V. We do not consider that the verdict is against the weight of the evidence in the matter of damages. The jury had the right to find under the evidence that the defendants put the plaintiff out of business, a business which he was able to establish by contract as the result of a lifetime of experience at the head of this type of agency force. In 35 A.L.R.2d 259 et seq., there is a collection of libel verdicts held excessive and not excessive. It seems to us that the libel in the case at bar could be regarded as more vicious and attended with a greater money loss than some of the verdicts upheld in the foregoing compilation of authorities. We do not consider that the court erred in overruling the motion to set aside the verdict and grant the defendants a new trial.
There are many, many assignments of error in this case but what we have said in our judgment covers the rulings of the court which are the bases of these various assignments. And so we have not felt that it was necessary to make express reference to the various assignments.
It results that the judgment of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609925/ | 90 So.2d 565 (1956)
Luther D. MILLER, Plaintiff-Appellee,
v.
CITY OF SHREVEPORT et al., Defendants-Appellants,
Jack P. F. Gremillion, Attorney General of the State of Louisiana, Third-Party Defendant-Appellee.
No. 8548.
Court of Appeal of Louisiana, Second Circuit.
October 25, 1956.
Rehearing Denied November 29, 1956.
Writ of Certiorari Denied January 21, 1957.
*566 William L. Murdock, James W. Hammett, Robert E. Eatman, Shreveport, for appellants.
Booth, Lockard, Jack & Pleasant, Shreveport, for appellee.
Ferdinand A. Cashio, Sp. Asst. Atty. Gen., Shreveport, George M. Ponder, First Asst. Atty. Gen., Baton Rouge, for third-party appellee.
GLADNEY, Judge.
This action was brought by Luther D. Miller under the Uniform Declaratory Judgments Act, LSA-R.S. 13:4231-4246, for the purpose of securing a decree declaring the petitioner to be entitled to retirement in the classification of Chief of Police, effective December 1, 1954, and ordering his name to be placed on the Police Pension roll. Following trial there was judgment for plaintiff, and defendants, the City of Shreveport and the Board of Trustees of the Police Pension and Relief Fund, have appealed.
Undisputed facts disclose Luther D. Miller served as a member of the Shreveport Police Department from March 9, 1926, until November 26, 1951, at which time he retired and was placed on the pension rolls in compliance with the statutory provisions and rules and regulations in effect at that time, which entitled him to retirement after twenty years of consecutive service. In the early part of the year 1954 the office of Chief of Police of the City of Shreveport was vacated by reason of the fatal shooting of Chief E. G. Huckabay, who was killed in line of duty, and the then Commissioner of Public Safety, A. B. Morris, sought the return of Miller to the Police Department of the City of Shreveport. Accordingly, on March 9, 1954, appellee was employed as Chief of Police and thereafter passed mental and physical examinations required for that position. His appointment was officially approved by the Civil Service Board and the City Council of the City of Shreveport. Appellee served in this official capacity until December 1, 1954, at which time he resigned pursuant to a request by the newly elected Commissioner of Public Safety. During Miller's service as Chief of Police, after March 9, 1954, pension payments which he had been receiving were discontinued and he began regular contributions to the pension fund in line with his position and salary as Chief of Police. After his resignation on December 1, 1954, Miller applied to the Board of Trustees of the Police Pension and Relief *567 Fund for a pension based on the salary in effect as of the date of his late retirement. When this request was refused, this action was brought.
Appellee's demands are opposed on several grounds, enumerated in the following order:
(1) That plaintiff, due to his age, was ineligible for a new membership in the fund, and was therefore, ineligible for retirement as Chief of Police;
(2) That plaintiff was ineligible for retirement as Chief of Police because his employment in that capacity was not of sufficient duration;
(3) That if the alteration of plaintiff's prior pension status is predicated on Act 248 of 1954, LSA-R.S. 33:2240, said act would unconstitutionally divest interested parties of vested rights; and
(4) That the Board of Trustees of the Police Pension and Relief Fund has never recognized a change in plaintiff's established pension status.
The foregoing objections to the relief sought by appellee were determined adversely to appellants and constitute the principal assignments of error charged against the decision appealed to this court.
The first contention made by appellants is that at the time appellee was employed as Chief of Police he was ineligible for pension benefits due to his age of forty-nine years. The Pension and Relief Fund maintained by the City of Shreveport for the benefit of its Police Department was originally provided for in Act 290 of 1914. This statute has been amended on numerous occasions and was incorporated in the Louisiana Revised Statutes of 1950. See: LSA-R.S. 33:2221-2242. An amendment to Act 290 of 1914, Act 343 of 1940, § 1, LSA-R.S. 33:2240, provided:
"Persons eligible for appointment to the police department shall be between the ages of twenty-one and thirty-five years. No person shall be employed in the department without first submitting to a physical examination by the municipal physician. If not pronounced physically fit by the physician, the applicant shall not under any conditions be eligible for benefits from the fund. The physician shall make a written report of each applicant examined to the commissioner of public safety and to the board immediately upon examination.
"This Section does not apply to those persons who were regular members of the department on July 31, 1940."
It is conceded that Luther D. Miller was a regular member of the Police Department of the City of Shreveport on and prior to July 31, 1940, but it is argued no provision was made for re-employment of terminated employees after the age of thirty-five years, and, therefore, because Miller was over that age on March 9, 1954, he was ineligible for any change of his existing pension status.
The express provision that the section of the statute has no application to those persons who were regular members of the department on July 31, 1940, would seem to be sufficient to dispose of appellants' contention. They would construe the act as excluding terminated employees who had reached the age of thirty-five years, even though such employees were regular members of the department on July 31, 1940. This view calls for a narrow construction which we think should not be adopted.
"Laws creating the right to pensions must be liberally construed with the view of promoting the objects of the law-making body; and their force and effect are not to be confined to the literal terms of the statute." 70 C.J.S., Verbo Pensions, § 2, pp. 425, 426. Doubt, if there be any, as to the construction of LSA-R.S. 33:2240 was entirely removed by Act 248 of 1954, which reads in part:
*568 "Persons eligible for first appointment to the police department shall be between the ages of twenty-one and thirty-five years at the time of such original appointment, and shall be subject to re-employment after the age of thirty-five years. * * *"
Appellants take the position that the 1954 statute should be construed so as to have prospective effect only since it was not in effect at the time of Miller's employment on March 9, 1954, and, therefore, his status is governed by the legislation adopted in 1940.
In our opinion Act 248 of 1954 was remedial in nature and is, therefore, entitled to a liberal construction. The law is so stated in 50 American Jurisprudence, Verbo Statutes, § 392, pp. 415, 416:
"It is a general rule of law that statutes which are remedial in nature are entitled to a liberal construction, in favor of the remedy provided by law, or in favor of those entitled to the benefits of the statute. This is true of a curative statute having a remedial purpose, or statutes seeking the correction of recognized errors and abuses, remedying defects in earlier acts, or implying an intention to reform or extend existing rights." 50 Am.Jur. Verbo Statutes, § 392, pp. 415, 416.
Statutes which are purely remedial in their nature are not subject to the rule that laws are presumed to operate prospectively and not retrospectively. Oil Well Supply Company v. Red Iron Drilling Company, 1946, 210 La. 222, 26 So.2d 726. Such statutes will be given a retroactive effect in the absence of language showing contrary intention. General Motors Acceptance Corporation v. Anzelmo, 1953, 222 La. 1019, 64 So.2d 417. See also Dowie v. Becker, 1921, 149 La. 160, 88 So. 777 and Bowen v. Board of Trustees of Police Pension Fund, La.App.1954, 76 So.2d 430. As pointed out in Bowen v. Board of Trustees of the Police Pension Fund, supra, it is essential for the legislature to alter the regulations and requirements of the pension system to keep abreast with actuarial science. Such legislation is, of course, remedial in character.
We are of the opinion that Miller was not disqualified by LSA-R.S. 33:2240 because he was over thirty-five years of age when he re-entered the service on March 9, 1954.
Secondly, it is argued that the employment of appellee as Chief of Police was not of sufficient duration to comply with a resolution of the Board of Trustees which became effective December 12, 1946. The resolution provided:
"That in the future, no member of the Department should be retired in any classification under which he had not been in the employment of the same for a period of six months prior to retirement, and not then until the applicant has been duly certified by the Civil Service Board as an officer of the Police Department."
Although unquestionably Miller was employed as Chief of Police on March 9, 1954, and served as such until his resignation on December 1, 1954, a period of eight months and twenty-one days, it is argued that his regular appointment as Chief of Police did not become effective until June 7, 1954, when appellee was formally and regularly appointed as Chief of Police and the appointment approved by the members of the City Council. We do not so interpret the resolution which only prohibits retirement in any classification except where the employment therein has been for six months and the applicant has been duly certified by the Civil Service Board. In the instant case Miller had commenced his employment on March 9, 1954, and subsequent thereto had passed all requirements to render him eligible for continuing in that employment. Had he been disqualified for failing to meet any of the conditions, of course, his employment could necessarily *569 have been terminated. It is our conclusion that Miller was employed as Chief of Police for more than six months prior to the termination of his employment as Chief of Police.
Thirdly, appellants argue that when Miller severed his employment with the Police Department in 1951 and was thereinafter the recipient of a pension from the Board of Trustees based upon his status as of that time, his rights became vested and could not thereafter be changed. Defendants allege in paragraph twenty-five of their answer:
"Now pleading in the alternative, your appearers aver that if LSA-R.S. 33:2221 to 2242, Act No. 290 of 1914, as amended, or any portion thereof, authorizes a change in the amount of pension benefits received by a pensioner, upon his employment and subsequent separation from the department, from an amount based upon the salary he received at the time of his first retirement to an amount based upon the salary he received at the time of his second separation, then, and in that event, said act is unconstitutional in that it divests the vested rights of the parties and is contrary to and violative of the provisions of Article IV, Section 15, of the Constitution of the State of Louisiana of 1921, LSA and Article I, Section 10 of the Constitution of the United States."
In compliance with LSA-R.S. 13:4241 the Attorney General of the State of Louisiana was made a party to this action and appearing herein in response to the above paragraph of the answer has denied that the statute, as amended, or any portion thereof, is unconstitutional, and has cited appropriate authorities to sustain his position.
In Bowen v. Board of Trustees of The Police Pension Fund, La.App.1954, 76 So. 2d 430, 435, one of the questions raised was whether an increase in the term of service required under the Police Pension and Relief Fund statute applicable to New Orleans violated State and Federal Constitutions relating to due process, vested rights, and equal protection. When plaintiff, Bowen, joined the police force, the statute required only sixteen years of active continuous service to qualify for benefits. In 1944 by Legislative enactment the term of active continuous service was increased to twenty years. The Orleans Court of Appeal affirmed a judgment denying relief to plaintiff who made application for retirement pension upon completing only sixteen years of such service. He asserted his rights were vested and fixed and could not be altered by legislative changes. The court rejected this assertion, declaring the statute did not violate the above constitutional provisions. The decision quoted approvingly from Talbott v. Independent School District, 230 Iowa 949, 299 N.W. 556, 137 A.L.R. 234, to the effect:
"`"But underlying all retirement systems of the class we are now discussing is the legislative object, as well as that of the member employee, that a substantial reserve be built up so that the actuarial soundness of the plan cannot be questioned. This factor is an important one in the relation between state, city, and county, as employer, and the employee member, with respect to retirement pay. If a direct attack on it, such as has been made in the present case, is justified, or a weakness in it manifested through actual trial is found to exist, the remedy or relief rests clearly within the relation between employer and employee contemplated by the legislative system for retirement pay. The Legislature may from time to time, within the confines of that established relattion, alter, change, amend, and render intact the actuarial soundness of the system so as to strengthen its fibres in any way it sees fit. Changes in details, such as length of service required, contributions needed, and age *570 requirements, to keep the fund on sound actuarial practices, are essential. Flexibility in component parts is a paramount necessity to guard against changed conditions and to permit keeping abreast with actuarial science."'" (Emphasis supplied.)
Appellants cite in support of their petition, Meyer v. Board of Trustees, 199 La. 633, 6 So.2d 713, but this case is not authority for this proposition for it did not involve the validity of a change in pensioners' rights. The only issue in that case was whether a clause in the statute denying appeal to the courts from a ruling of the Board of Trustees was constitutional. Such a provision was held unconstitutional and the court reversed the Board of Trustees on a question of fact allowing recovery of a pension by the widow.
It is entirely wholesome and necessary to the proper operation of pension and retirement funds that legislative changes be permitted in order to keep the fund on sound actuarial practices and without which the continuity of the system would be most uncertain. We hold that Act 248 of 1954 was remedial legislation and, therefore, is constitutional and the contentions to the contrary made by appellants are not well founded.
Finally, appellants seem to contend plaintiff is ineligible to participate in the benefits of the pension fund because he has never been approved by the Board for participation. The evidence discloses that when plaintiff became Chief of Police on March 9, 1954, payments to him of the benefits as formerly received by him from the pension fund ceased, and thereafter there was regularly deducted from Miller's pay as Chief of Police, and remitted to the Board of Trustees, the required contribution in pay, predicated upon employment as Chief of Police. Although it was shown it was the practice and apparently the duty of the Chief of Police to make up the list of those new members who became eligible for the pension fund, and such a list with deductions was reported by Miller, the fact remains that the Board of Trustees accepted the deductions without making any effort to question the indicated change in Miller's pension status. Miller was clearly entitled to a change in his pension status and fully met all requirements to obtain such. Thus, it would appear that the failure of the Board to take any affirmative action with reference to his status is not controlling.
Appellee urges strongly a special plea of estoppel which we surmise the trial court found unnecessary to pass upon. It is correctly stated that the evidence conclusively shows Miller passed all mental and physical tests required for entering the service, and likewise his status was approved by the Civil Service Board. He made all of the required payments and contributions to the Police and Pension Fund. Notwithstanding the aforementioned acts, the Board of Trustees of the Police Pension and Relief Fund did not act upon the pension status of appellee. This failure to take action might be construed as a waiver by the Board of its right to object, but we prefer not to favor an estoppel herein, but rather to rest our decision on the grounds heretofore mentioned.
It follows from our findings that plaintiff was eligible for re-employment when he was called back into service and that having met all the conditions and requirements for reinstatement upon the pension rolls and retirement upon a pension status, in conformity with his employment, the judgment from which appealed should be and is hereby affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/98556/ | 239 U.S. 99
36 S.Ct. 33
60 L.Ed. 165
SOUTHERN RAILWAY COMPANY, Piff. in Error.,v.SAMUEL J. CAMPBELL.
No. 53.
Argued November 4, 1915.
Decided November 15, 1915.
Messrs. John K. Graves and L. E. Jeffries for plaintiff in error.
Messrs. John G. Capers and William G. Sirrine for defendant in error.
[Argument of Counsel from page 100 intentionally omitted]
Mr. Justice Hughes delivered the opinion of the court:
1
This suit was brought by Samuel J. Campbell against the Southern Railway Company to recover damages for the wrongful forfeiture of the plaintiff's mileage book. The company sought to justify the forfeiture under its tariff regulations, which had been duly filed with the Interstate Commerce Commission. The defense was overruled by the statute court. 94 S. C. 95, 77 S. E. 745.
2
The admitted facts are these: On November 20, 1910, Mr. Campbell, being the owner of a thousand-mile coupon book, or mileage book, purchased another milegage book of the same sort from the agent of the Southern Railway Company at Greensboro, North Carolina, and thereupon presented both books to the agent of the company and obtained, in exchange for coupons, two 'mileage exchange tickets' to Greenville, South Carolina. With these tickets he and his wife traveled to Greenville, the tickets being accepted by one of the company's collectors. A few days later he presented his mileage books to the agent of the company at Greenville and obtained, for the proper number of coupons, two exchange tickets to Greensboro. When he presented these tickets for the transportation of himself and his wife, the ticket collector asked if he had mileage books, and required him to produce them. Upon looking at the books, the ticket collector returned one of them to Mr. Campbell, but forfeited the other, which contained unused coupons for 600 miles. The exchange ticket, which had been issued for the coupons taken from the book, was also forfeited, and the ticket collector demanded and received payment in cash of the fare for the plaintiff's wife.
3
The tariff regulations and conditions which related to mileage books, or mileage tickets, and were filed with the Interstate Commerce Commission, were as follows:
4
'Exchange requirement.—Mileage coupons (except as noted below) will not be honored for passage on tranins or steamers or in checking baggage (except from nonagency stations and agency stations not open for the sale of tickets), but must be presented at ticket office and there exchanged for continuous passage ticket, which continuous passage ticket will be honored in checking baggage and for passage when presented in connection with the mileage ticket.
5
'Non-transferable.—If a mileage ticket or ticket issued in exchange for coupons therefrom be presented to an agent or conductor by any other than the original purchaser, it will not be honored, but will be forfeited, and any agent or conductor of any line over which it reads shall have the right to take up and cancel such ticket or tickets.'
6
A jury was waived, and the case was submitted to the trial judge upon a stipulation that if judgment went for the plaintiff he should recover the value of the mileage book ($12) and $25 damages. Judgment was entered accordingly.
7
We are not concerned with the reasonableness of the rule; that, if challenged, would be a question for the Interstate Commerce Commission. The question now is as to the application of the rule. Nor need we consider the right of the ticket collector to demand payment for the transportation of the plaintiff's wife. The case, as the state court said, turns upon the right to forfeit the mileage book with its unused coupons.
8
The condition expressed in the rule is that the mileage book, or mileage ticket, as it is termed, shall be presented by the original purchaser. The plaintiff was the original purchaser and presented it. The company seeks to construe the rule as if it read that the mileage book should be forfeited if presented by the original purchaser for the transportation of a person other than himself. The rule does not so read. It was not made a ground of forfeiture that the original purchaser asked for more than he was entitled to get. For example, when the plaintiff presented his books at the station to procure tickets for himself and wife in exchange for coupons, it could not be said that he forfeited either of the books, or both, because he asked too much. He was in no different position when he produced the books before the conductor, with the tickets which the company's agent had given him in exchange for coupons. He was still the original purchaser, and the provision for forfeiture when the mileage book is presented by someone else does not hit the case.
9
We cannot say that the state court denied a Federal right when it held that railway company strictly to its own terms.
10
Judgment affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1609941/ | 229 Miss. 347 (1956)
90 So.2d 678
MALLEY
v.
OVER THE TOP, INC., et al.
No. 40297.
Supreme Court of Mississippi.
November 26, 1956.
Grayson B. Keaton, Picayune; Morse & Morse, Poplarville, for appellant.
*349 Eaton, Cottrell & Galloway, Gulfport, for appellee.
GILLESPIE, J.
The attorney-referee held appellant's claim compensable under the Workmen's Compensation Act. The Commission reversed the order of the attorney-referee and denied compensation, and on appeal to the circuit court, the Commission was affirmed.
On June 18, 1954, while employed by Over The Top, Inc., one of the appellees, appellant struck a table corner, injuring her coccyx. Conservative treatment failed and appellant under went an operation on August 6, 1954 for the removal of the coccyx. The orthopedic surgeon who performed the operation, after three post-operative examinations, *350 discharged appellant as being able to return to work on September 14, 1954, to which date compensation was paid, but which payment was suspended on that date. No one contends that appellant is not disabled, and we need not discuss the evidence in that regard except as may be necessary in considering whether her disability after September 14, 1954 resulted from the accident on June 18, 1954.
(Hn 1) The principal question is whether the Commission has substantial evidence to support its finding that appellant's disability after September 14, 1954 was not the result of the injury sustained by her on June 18, 1954. Appellant testified that before the date of the injury she worked regularly, was in good health, and suffered no low-back pain or pain in the coccyx area; that since the injury she had suffered low-back pain and pain in the area of the operation site; that she could not sit or stand without pain and was totally disabled from doing work for her employer, and she was unable to do any housework. She testified that prior to her injury she had undergone two operations, one for the removal of her female organs. Five other lay witnesses testified that appellant was in good health before the accident and has been disabled from doing any work since the date of the accident. Appellant's physician, who examined her on September 27, 1954, and subsequently treated her, attributed the pains causing her disability to the injury. He stated that he could determine that the pain came from the coccyx area because injection of procaine blocking the nerves to that area caused the pain to cease; but other medical testimony was to the effect that this test was not conclusive unless referral pain, or additional pathology, was ruled out. Appellant's physician, however, arrived at his opinion as to the cause of the pain without having made sufficient examination to determine that she was suffering from diseases of her internal organs.
*351 Five specialists and the employer's company physician testified for appellees. Three specialists in orthopedic surgery, including the one who performed the operation for the removal of the coccyx, after examination of the appellant, testified that in their opinion the operation was successfully performed, and the operative scar was well healed, and there was no abnormal mass at the operation site. These specialists testified that they made certain tests as well as a physical examination of the operative site and studied x-rays. They found no pathology relative to the sacrum or coccygeal zone and were of the opinion that from the orthopedic standpoint the removal of the coccyx had been adequately performed with good functional results. They found no disability insofar as the injury and operation was concerned which would prevent the patient from active occupation or that would cause pain such as appellant suffered. One of these specialists testified that pathology in the pelvic area, or female trouble, could cause the pain of which appellant complained, and he sent her to an internal medicine specialist for further examination.
The specialist in internal medicine testified that he made an examination of the appellant, at which time appellant complained of soreness in the region of the injury and in her back; a pelvic examination was done; that this examination revealed the uterus had been partially removed; that the cervix was grossly eroded, friable, and swollen; that manipulation of these parts produced the identical pain of which appellant complained, both in the region of the coccyx and in the low-back; that while he would not assert the disease of the female organs as being the only answer to appellant's pains, that his findings in that area were "pretty conclusive as far as I am concerned." The substance of this specialist's testimony was that appellant's complaints were referrable to the disease of the female organs.
*352 A specialist in gynecology made a pelvic examination of the appellant on December 22, 1954. He testified that the uterus had been surgically removed; that the cervix was markedly hypertrophed to the extent that it was three to three and one-half times its normal size, showed lacerations and inflammation with bleeding from several areas; that what appellant was actually complaining of was low-back ache when he examined her, and that he was able, by manipulation of the cervix, to produce the back pain of which she was complaining; that his examination revealed that the cervix was chronically diseased sufficient not only to give discomfort but pain; that he was of the opinion that the disease of the pelvic area had existed for a period of months or probably more than a year. He testified that if a competent orthopedic specialist saw appellant and assured him that there were no orthopedic conditions which attributed to her backache, he would be willing to say that the greatest percentage of her pain was coming from the chronic cervicitis.
The company physician, by means of a statement introduced by agreement, stated that he treated appellant in 1941 for nervous indigestion; that she had been operated on for female trouble in 1946; that in 1947 he treated appellant for indigestion, weakness and nervousness, and in 1948 for a kidney infection and for cramping in her stomach and backache and nervousness; in 1949 several treatments for minor injuries to her fingers; that he treated appellant in 1952 for diabetes, nervous indigestion, weakness, backache and kidney trouble, and again in 1952, for nervous indigestion, weakness, backache and kidney trouble, and again in the same year for a stiff neck, and at which time her kidneys showed pus, and in September 1953, witness operated on her for a gland abscess of the vagina. Appellant was treated by this physician after her injury and he sent her to New Orleans for an operation by an orthopedic surgeon. *353 After the operation for the removal of her coccyx, he found no evidence of any residual effects of the surgery or the accident.
We are of the opinion that the finding of the Commission that there was no causal connection between her disability and the injury is supported by substantial evidence. We do not think that it can be said, as contended by appellant, that her testimony was strong, clear and convincing, nor that the testimony of appellees was negative and weak. The Commission had a right to find to the contrary. Cf. Morris v. Art's Army Store, 85 So.2d 581.
Nor do we find that this is a case for the application of the rule laid down in Reyer v. Pearl River Tung Company, 219 Miss. 211, 68 So.2d 442, wherein it was said that the inability of doctors to put their fingers on the exact physical cause should not result in casting the claim overboard. In the present case, not only did the testimony of the physicians fairly demonstrate that neither the operation nor the injury was the probable cause of the disabling pain, but went further and showed that the disease revealed by the pelvic examination was the probable cause of the pain.
(Hn 2) Appellant contends that the findings of the attorney-referee were supported by sufficient evidence and that we should hold that the attorney-referee is the fact finder and that the review before the Commission should be limited to questions of law. We held in Railway Express Agency v. Hollingsworth, 221 Miss. 688, 74 So.2d 754, that the attorney-referee is a facility for conducting the business of the Commission and that for all practical purposes, the Commission is the actual trier of facts. Section 18, Chapter 354, Laws of 1948 (Code of 1942, Sec. 6998-24) states: "The commission shall have full power and authority to determine all questions relating to the payment of claims for compensation. The commission shall make or cause to be made *354 such investigation as it deems necessary, and upon application of either party, or upon its own iniative, shall order a hearing, and shall make or deny an award and file the same in its office."
It is true that the statute provides "That for the purpose of conducting hearings and making decisions upon claims, the attorney-referee or attorney-referees appointed by the commission shall have the authority of a commissioner." Sec. 41, Chapter 354, Laws of 1948 (Code of 1942, Sec. 6998-47). It does not provide that the attorney-referee is to have the authority of the Commission. Our view that the Commission is the trier of facts is fortified by the provisions of the third paragraph of Sec. 37 of the Act (1942 Code, Sec. 6998-43) wherein it is stated: "Because cumulative experience is conspicuously essential to the proper administration of a workmen's compensation law, it is declared to be in the public interest to continue Workmen's Compensation Commissioners in office as long as efficiency is demonstrated." No such provision is made with reference to attorney-referees.
There is considerable force to the argument that the attorney-referee is in a better position to decide disputed questions of fact because he hears the witnesses and observes their demeanor. On the other hand, the cumulative experience of the three commissioners representing diverse interests and their expertise in their particular field of endeaver may have been among the considerations that prompted the legislature to vest in the Commission full power and authority to decide all questions relating to the payment of claims for compensation.
We are of the opinion that it was the intention of the legislature to make the Commission the trier of facts. Otherwise, the Commission would be performing appellate jurisdiction when only one of the Commissioners is required to be an attorney. If we should adopt appellant's contention, the attorney-referee would be the trial tribunal *355 with the Commission, the circuit court and this Court all performing appellate functions. It is manifest to us that such was not the intention of the legislature. (Hn 3) Accordingly, we hold that the Commission itself is the trier of facts and any question of fact decided by it is conclusive on appeal if it is supported by substantial evidence. It follows that the judgment should be and is affirmed.
Affirmed.
Roberds, P.J., and Kyle, Arrington and Ethridge, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609945/ | 90 So.2d 781 (1956)
William Murphy THORNE
v.
Mattie Lee PARRISH.
8 Div. 881.
Supreme Court of Alabama.
November 15, 1956.
*782 Jesse A. Keller, Florence, for appellant.
C. E. Carmichael, Jr., Tuscumbia, for appellee.
SIMPSON, Justice.
This is an appeal from a judgment of the circuit court in a personal injury action. The single count submitted to the jury charged simple negligence. The defendant filed pleas of the general issue and contributory negligence.
A timely motion for new trial was overruled. Several grounds of the motion for new trial and the appellant's assignments of error pertain to the admission of evidence on the subject of insurance. This question arose while a witness for the defendant was being cross examined by the plaintiff. In that connection the record discloses the following:
"Cross Examination
"By Mr. Carmichael: [Attorney for plaintiff]
* * * * * *
"Q. Who have you given a statement to before concerning this wreck?
"Defendant objects, that is immaterial and irrelevant whether he has ever given a statement.
"By Mr. Carmichael: I want to show it to impeach the witness' testimony, I want to show that he has given another statement.
"Objection overruled.
"Defendant reserves an exception.
"By the Court: Go ahead.
"By Mr. Keller: [Attorney for defendant] Just a moment, your honor, please. (A conference took place at the Judge's Bench between the Attorneys and the Judge, out of the hearing of the jury and the Court Reporter.)
"By the Court: Go ahead with the questions, and you make your objections, and I will rule on them at the proper time.
"Q. Have you ever given another statement in regard to this accident? A. Yes sir, I sure have.
"Q. Who did you give that statement to? A. That day or the next one, it was an insurance company, I don't know his name. [Emphasis supplied.]
"By the Court: You don't have to use his occupation, if you know his name you may say.
"Defendant objects and moves to exclude that testimony and at this point *783 we move for a mistrial, we ask that the jury be excluded, your honor.
"Objection and motion overruled.
"Defendant reserves an exception.
"Q. Now, Mr. Holt. * * *
"By Mr. Keller: We want the record to show that prior to the time that Mr. Carmichael asked this question that counsel for the defendant requested that the jury be excluded. The court denied the motion and the defendant excepted. The question involved was who he had given a statement to.
"By Mr. Carmichael: That is all."
It should be presently observed that the plaintiff did not at any time during the trial attempt to impeach the witness with the statementif indeed it would have been permissible. It is clear to us that the plaintiff's sole purpose in asking to whom the statement was made, knowing that the statement was made to an insurance adjuster, was to convey the idea to the jury that the defendant was covered by insurance.
Then plaintiff's counsel's closing argument to the jury where he stated, "after they collect $30,000 Murphy Thorn [def.] and I will still be friends" could well have been interpreted to meanin connection with the previous cross examination of witness Holtthat the plaintiff's attorney and the defendant were friends and would still be friends after the jury gave the plaintiff $30,000 of the defendant's money because the defendant was indemnified.
It is prejudicial error to allow testimony to show or tending to show that a party is indemnified in any degree or fashion by an insurance company. Pearson v. Birmingham Transit Company, 264 Ala. 350, 87 So.2d 857; Colquett v. Williams, 264 Ala. 214, 86 So.2d 381; Standridge v. Martin, 203 Ala. 486, 84 So. 266; Watson v. Adams, 187 Ala. 490, 65 So. 528.
When insurance is injected into the case during the questioning of witnesses, our cases hold that the prejudicial error may be eradicated. Colquett v. Williams, supra; Wagnon v. Patterson, 260 Ala. 297, 70 So.2d 244; Cannon v. Scarborough, 223 Ala. 674, 137 So. 900. The error on that point was cured in the Colquett case by later evidence showing that the insurance belonged to a person not a party to the suit. The prejudicial errors caused by irresponsive answers about insurance in both the Wagnon and Cannon cases were cured by prompt exclusion of the testimony by the trial judge and adequate instructions to the jury to the effect that insurance was not to be considered in their verdict.
But with reference to an argument made by counsel emphasizing the existence of insurance carried by his opponent covering the transaction, this Court has taken the position that the influence is ineradicable. Pearson v. Birmingham Transit Company, supra; Colquett v. Williams, supra; Edwards v. Earnest, 206 Ala. 1, 89 So. 729, 22 A.L.R. 1387; Standridge v. Martin, supra.
Colquett v. Williams, supra [264 Ala. 214, 86 So.2d 386], is similar to the instant case in two respects. Both cases had prejudicial evidence relative to insurance elicited from a witness and also improper argument to the jury. The prejudicial testimony of the witness in the Colquett case, which error was cured as indicated above, was "* * * I can't call his name right nowan insurance adjuster. * * *'" The improper argument in the Colquett case, which was held to be ineradicable was, "* * * `whose money is the boy trying to get?' * * *" and "* * * `wouldn't you feel that the people you paid to protect you should take care of this child in some way?'"
The evidence elicited from the witness in the instant case was "it was an insurance company, I don't know his name." The prejudicial effect of the above evidence was in no sense attempted to be cured or eradicated by the trial judge by excluding the evidence from the jury and giving proper instructions. Instead, the trial judge emphasized *784 the fact of insurance by refusing a timely motion to exclude the evidence and by saying, "You don't have to use his occupation, if you know his name you may say." (Emphasis supplied.)
The effect of counsel's improper argument to the jury, "after they collect $30,000 Murphy Thorn and I will still be friends" in the instant case, when considered along with the prejudicial evidence regarding insurance must perforce work a reversal of the case. The motion for a new trial should have been granted.
The errors pointed out above make it unnecessary to consider the other assignments of error.
Reversed and remanded.
GOODWYN, MERRILL and SPANN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609947/ | 275 Wis. 1 (1957)
ESTATE OF FULLER: ARCHER, Plaintiff,
vs.
HENRY and others, Defendants. [Two appeals.]
Supreme Court of Wisconsin.
January 9, 1957.
February 5, 1957.
*4 For the plaintiff there was a brief by Ruediger & Joanis and Hale, Skemp, Hanson & Schnurrer, all of La Crosse, and oral argument by Quincy H. Hale.
For the defendants there were briefs by Bosshard & Arneson and Johns, Roraff, Pappas & Flaherty, all of La Crosse, and oral argument by Daniel T. Flaherty, and Philip G. Arneson.
BROWN, J.
We recognize that the findings of the trial court must be affirmed unless contrary to the great weight and clear preponderance of the evidence and undue influence is not to be proved but by clear, convincing, and satisfactory *5 evidence. Estate of Miller (1953), 265 Wis. 420, 425, 61 N. W. (2d) 813, and cases there cited. Will of Winnemann (1956), 272 Wis. 643, 645, 76 N. W. (2d) 616. The credibility of witnesses and the weight to be given their testimony are matters for the trial court. Will of Winnemann, supra. So are the inferences to be drawn from the evidence.
Many witnesses testified that they considered Miss Fuller incompetent at times when they observed her in the hospital both before and after the execution of the will. The hospital records on the days surrounding July 5, 1955, have frequent entries that Miss Fuller was disturbed or disoriented. But, "it is elementary that the question of competency is to be determined as of the time of the execution of the will." Estate of Wegner (1925), 185 Wis. 407, 414, 201 N. W. 826; Estate of Kesich (1944), 244 Wis. 374, 383, 12 N. W. (2d) 688. The test of testamentary capacity has frequently been stated and was recently repeated in Will of Klagstad (1953), 264 Wis. 269, 271, 58 N. W. (2d) 636:
"... the general rule recognizing that the test of mental competency is whether the testator had sufficient active memory to comprehend, without prompting, the condition of his property, his relations to those who might be beneficiaries, and to hold these things in mind long enough to perceive their relations to each other and to be able to form some rational judgment in relation to them."
The trial court filed a memorandum opinion quoting this test and analyzing the evidence which led him to the conclusion that at the time Miss Fuller executed her will, July 5, 1955, she had testamentary capacity. Significant extracts from that opinion, which we have checked against the record, are:
"While the testimony of the nurses on duty at other times is not to be disregarded, nevertheless, more weight must necessarily be given to the testimony of those of the professional *6 staff of the hospital that were on duty at the time of the execution of the disputed document on July 5th.
"In this regard, the court must therefore consider the testimony of nurse Mrs. Genevieve Wrobel. It was the general conclusion of the court from the testimony of this witness that she considered the deceased at the particular time in question competent. Her testimony was that the deceased was alert at that time. It would seem to the court, although not mentioned in briefs, that one of the important factors was the fact that deceased had just rested prior to the arrival of Judge RUEDIGER and the subscribing witnesses. Shortly after 3 p. m. July 5th, this witness had rolled down the bed of the deceased and she had rested until shortly before the arrival of the subscribing witnesses. This rest undoubtedly contributed to the general mental competency of the deceased at this very important time. She had rested and after resting, was sitting up in bed awaiting the arrival of the necessary people that she might transact her last business. She was so mentally competent at that particular time that she knew Judge RUEDIGER whom she hadn't seen in many years....
"It is true that there were some witnesses who visited the deceased who testified that upon such visit the deceased was incompetent. As a general proposition, however, none of these witnesses were as closely associated with the deceased as the subscribing witnesses and thus were not in a position to as accurately appraise the competency of the testatrix as were the subscribing witnesses. It is further noted that some of these were relatives and their testimony must obviously be considered in light of their interest in the outcome of this contest.
"It is, therefore, incumbent upon the court to give considerable weight to the testimony of the subscribing witnesses in respect to mental competency of the deceased.
"The attorney who prepared the contested Exhibit No. 1 is an able, competent, experienced attorney. His extensive practice in probate court, his drafting and execution of 1,500 to 2,000 wills, places his testimony in a position of being entitled to considerable weight on this question. His testimony was direct and positive to the effect that at the time the deceased executed the will in question, that she was of sound mind and memory. She was of such sound mind that *7 she even recalled knowing the attorney whom she had not seen in many years. She was also of such sound mind that she was able to supply an apparent omission from the will which the attorney had neglected to read to her. It would seem that with an attorney of such extended experience that had such an attorney entertained any question as to the mental competency of the deceased, that he was in an excellent position to call in a couple or at least one doctor from the hospital staff where the will was executed to examine the testatrix upon the execution of such important document in order to have such evidence available at trial. The opinion of the attorney as to the competency of the testatrix obviously was so positive as to dismiss this procedure from his mind as being unnecessary. The testimony of the other two subscribing witnesses is also entitled to great weight. Both of these witnesses were old friends of the deceased and were frequently with the deceased for a period up to forty-five years. They were in an excellent position to know the deceased both during good health and compare such impressions of the deceased with their impressions of the deceased on her deathbed and at the time of the execution of the contested will. They also had an opportunity, by several visits to the hospital, to become well acquainted with the condition of the deceased at that time. Both of these witnesses testified that the deceased was competent at the time of the execution of this document. It is significant that these two witnesses were not just two people who were called in for the purpose of witnessing a document but were instead two people who probably, more than any other persons in the world with the exception of Leota Archer, and the medical profession, who could appraise the condition of the deceased. Their judgment as to competency was based on the background of close companionship of many years. It is true that an attempt at impeachment of their testimony was made by one of the attorneys for the contestants, and certainly this evidence is entitled to consideration. However, the statements of the attorney were disputed and the court is inclined to accept as the true beliefs of the subscribing witnesses, those statements made by such witnesses in the court while under oath. The long and close association to the deceased of these two subscribing witnesses, their frequent visits to the hospital, and *8 their lack of interest in the outcome of the lawsuit entitles their testimony to great weight.
"The court in arriving at this opinion cannot discard the fact that just prior to the execution of the document, deceased had rested for a period. That at the time of the execution she recognized the attorney whom she had not seen in years, transacted other business with reference to her property, corrected the attorney while he read the will to her, then when the work was done again laid down in her bed, glad that she had finally taken care of her affairs."
The record convinces us that testamentary capacity was not lacking at the time the will was executed. Certainly the trial court's conclusion of competency is not contrary to the great weight and clear preponderance of the evidence.
The next question is whether the will is the product of undue influence exerted upon Miss Fuller by Miss Archer.
The elements necessary to be proved by clear, satisfactory, and convincing evidence before an affirmative answer can be given to the question are well established and have been repeated by this court as recently as Will of Winnemann, supra. They were accurately stated by the trial court in its memorandum opinion as follows:
"1. A person unquestionably subject to undue influence.
"2. A disposition to influence unduly for the purpose of procuring improper favor.
"3. Opportunity to exercise such influence and effect the wrongful purpose.
"4. A result clearly appearing to be the effect of the influence."
1. As to the first element, the undisputed evidence showed that Miss Fuller had been a teacher of Latin, an accomplished scholar, a superintendent in the Aurora school system, and a business woman accustomed to manage her numerous rental properties and capable of doing so. There is no hint that before she went to the hospital she was susceptible to undue influence and after her entry into the hospital the *9 record does not disclose that her character or disposition changed.
2. Does the evidence prove a disposition on the part of Miss Archer to exert undue influence? Appellants regard with suspicion amounting to conviction the efforts Miss Archer made to validate Miss Fuller's testamentary dispositions, what they describe as Miss Archer's failure to notify them of Miss Fuller's condition, and Miss Archer's effort to keep them away by a "No Visitors" sign on the door of the hospital room. The "dead man's statute," sec. 325.16, prevented Miss Archer from testifying whether or no these activities were at the request of Miss Fuller who, surely, was dependent on others to carry out any wishes she may have had. The trial court could only infer whether Miss Archer's efforts to have a will properly executed were services in Miss Fuller's behalf or were persistent attempts to secure the disposition of property which she had induced Miss Fuller to make. In its memorandum opinion the trial court says:
"Certainly the testimony of witnesses that Leota Archer influenced deceased is a conclusion not well founded but rather a conclusion which is confused with the behavior pattern of a person who is in the presence of his closest friend and tempered with the respect and admiration each had for such friendship. It does not seem probable that a woman of the education and experience of the deceased would not be aware of any undue influence being exercised upon her by her friend after almost twenty-five years of constant association. If such were the case, this friendship would not have continued for such a period.
"The evidence is certainly clear that these two women were in almost constant attendance of each other for more than twenty years. It is difficult for the court to imagine a closer friendship than the one which existed here between these two women. They worked together, they lived together, they shared expenses, they took vacations together, in fact, they were almost constantly in presence of each other. This friendship was so very close and strong that it even spilled *10 over to the parents of these two women who also shared a close friendship. The friendship of these two women is not something which only developed in recent years but, instead, existed long prior to the time that deceased had acquired the extensive property now contained in her estate.
"The behavior of Leota Archer during the hospitalization of the deceased, in the opinion of the court, is merely a manifestation of her deep love and devotion for her friend. She behaved and acted in a manner indicative of the lives they had spent together. It was Leota Archer who took charge of affairs in the hospital because it was the natural thing for her to do. She was merely fulfilling her role as devoted friend. While most of the relatives (cousins) stated they were on a friendly basis with deceased, the court is of the opinion that none of them enjoyed any degree of as close friendship but merely the acquaintanceship of cousins who have very little in common with deceased other than such relationship. Their association with deceased was very little and almost negligible compared to that of Leota Archer over the past twenty-five years. This lack of close friendship on the part of the relatives and the strong friendship of the deceased and Leota Archer was admitted by several of the objectors.
"Can the actions of Leota Archer then be, under the circumstances, construed to constitute a disposition to influence? The court is of the opinion that the answer to this question is `No.'"
In our opinion this conclusion is not contrary to the great weight and clear preponderance of the evidence and it must be sustained.
3. Opportunity to influence the testatrix is conceded but in respect to it the trial court says:
"Certainly there was an opportunity to influence deceased. It is to be noted, however, that there was in almost constant attendance, both day and night, a special nurse. The opportunity to influence is thus confined to a few short intervals each day when the special nurses were out of the room. None of these nurses noted any such behavior on the part of Leota Archer."
*11 4. Finally, does the will itself clearly appear to be the result of undue influence? On this subject the trial court well said:
"The result of the disposition of the property certainly does not appear to be the effect of undue influence. The most important person in the life of deceased was Leota Archer. Deceased then gives her property to such person. A contrary disposition would be better evidence of an effect of undue influence. The direct heirs of deceased had all gone before, leaving only collateral heirs. To now give her property to what some contestants even admit to be the person closest to her was only the natural result of almost a lifetime of constant companionship in both work and play."
We must sustain the trial court's conclusion that appellants have failed to prove by clear and convincing and satisfactory evidence that the Fuller will is the product of respondent's undue influence upon the testator.
Therefore the judgment admitting the will to probate must be affirmed.
The trial court denied respondent's motion for permission to tax costs against the sixteen objectors. Sec. 324.11, Stats., gives the court discretion to order costs to be paid out of the estate or by the losing party. While we are sure that the trial court correctly determined the merits of the action, we do not consider the objections to the probate of the will so lacking in merit as to constitute the denial of respondent's motion an abuse of discretion. The order of denial is affirmed.
Respondent's brief exceeds 50 pages and she has moved for permission to tax costs for it in its entirety under sec. 251.264, Stats. Permission is granted.
By the Court.Judgment affirmed. Order denying taxation of costs in trial court against losing parties affirmed. Permission given respondent to tax costs for her entire brief. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1609979/ | 21 So.3d 442 (2009)
Joan BEAUREGARD
v.
STATE of LA, through the DOTD, Et Al.
No. CA 09-271.
Court of Appeal of Louisiana, Third Circuit.
October 7, 2009.
Daniel Elmo Broussard, Jr., Broussard, Bolton, Halcomb, & Vizzier, Alexandria, LA, for Plaintiff/Appellee, Joan Beauregard.
John Albert Ellis, Assistant Attorney General, LA. Dept. of Justice, Monroe, LA, for Defendant/Appellant, State of LA, through the DOTD.
Brandon Ashley Sues, Lottie L. Bash, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Third Party/Appellee, City of Alexandria.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
GREMILLION, Judge.
The State of Louisiana, Department of Transportation and Development (State), appeals the judgment in favor of the third-party defendant, the City of Alexandria (City). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2006, Joan Beauregard filed suit against the State urging that she was injured when she fell due to a three inch drop-off between sections of the sidewalk and street at the entrance of the Starlight Baptist Church located in Alexandria, Louisiana. In its answer, the State named the City as a third-party defendant asserting that should it be found liable, it should be indemnified by the City because the City owned the sidewalk.
In June 2008, the City filed a peremptory exception of no cause of action urging that no solidary obligation existed between the State and the City and, therefore, the State could not have a claim of indemnification against it. Following a September 2008 hearing, the trial court allowed the State ten days within which to amend its *443 pleadings to state a cause of action against the City. The State timely filed an amended third-party demand. The City thereafter filed a motion to strike the supplemental and amending third-party demand and a peremptory exception of no cause of action. The City again argued that the State again failed to provide any legal basis upon which it could have a claim for indemnification against the City. The trial court granted the City's motion to strike and exception of no cause of action and dismissed the State's claims against the City with prejudice. The State now appeals. Its sole assignment of error is that the trial court erred in maintaining the City's exception of no cause of action.
STANDARD OF REVIEW
In Kinchen v. Livingston Parish Council, 07-0478, p. 2 (La.10/16/07), 967 So.2d 1137, 1138 (quoting Fink v. Bryant, 01-0987, pp. 3-4 (La.11/29/01), 801 So.2d 346, 348-49), the supreme court set forth the role of an appellate court in reviewing a trial court's sustainment or denial of a peremptory exception of no cause of action:
The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether [the] plaintiff is afforded a remedy in law based on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. In reviewing a trial court's ruling sustaining an exception of no cause of action, the appellate court and this Court should subject the case to de novo review because the exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. (Citations omitted.)
Accordingly, we must determine whether the State has set forth any facts indicating that it would have a valid claim of indemnification against the City.
INDEMNIFICATION
The practice of filing a third-party demand for indemnification is nearly extinct in Louisiana following the 1996 amendments of La.Civ.Code art. 2324 abolishing solidarity among tortfeasors and instituting a system of comparative fault. See La.Civ.Code art. 2323. A solidary obligation is not only not presumed, but only arises if parties conspire "to commit an intentional or willful act" or if parties agree to be solidarily bound from a "clear expression of the parties' intent." La.Civ. Code arts. 2324 and 1796. A review of the State's original third-party demand and its amended third-party demand reveals no indication of either. There is no allegation of an agreement between the State and the City to be bound solidarily nor is there any allegation of a jointly committed intentional act. The State's only allegations, in its original and supplemental third-party demand, are that the City is the owner of the street and sidewalk in question and is responsible for its repair and upkeep and that the City will be unjustly enriched if the State is found *444 liable and has to pay damages to Beauregard.
The State's brief advances no valid argument in support of its contention that it is due indemnification from the City. Its claim that the City has been unjustly enriched at its expense is unfounded, particularly in light of the fact that the State has yet to be found liable for Beauregard's injuries.
CONCLUSION
The judgment of the trial court dismissing the State's third-party demand is affirmed. All costs of this appeal are assessed against the defendant-appellant, the State of Louisiana, Department of Transportation and Development.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2082774/ | 75 Ill. App. 3d 350 (1979)
393 N.E.2d 1287
SRI CORP., Plaintiff-Appellee,
v.
FIRST NATIONAL BANK OF ROCK ISLAND, Trustee, Defendant-Appellee. (JUDSON E. MILLS, Defendant-Appellant.)
No. 78-408.
Illinois Appellate Court Third District.
Opinion filed August 17, 1979.
*351 Stewart R. Winstein and Dorothea O'Dean, both of Rock Island, for appellant.
Herbert M. Spector, of Spector, Tappa, Kopp and Nathan, of Rock Island, for appellee SRI Corp.
Robert Eagle, of Eagle and Eagle, of Rock Island, for appellee First National Bank of Rock Island.
Judgment affirmed.
Mr. PRESIDING JUSTICE STOUDER delivered the opinion of the court:
Plaintiff, SRI Corp., filed a complaint against First National Bank of Rock Island and Judson Mills seeking a declaration of rights respecting a land-trust agreement and a joint-venture agreement. The complaint requested the court to determine that under such agreements an addendum to a lease had been properly approved under the terms of the agreements. A counterclaim filed by Judson Mills requested a determination that the addendum had not been properly approved and requested that the parties be prevented from executing the addendum.
The facts are substantially undisputed.
On April 1, 1961, a partnership was formed by the name of River Realty. The purpose of the partnership was to purchase and develop a parcel of land in downtown Rock Island, Illinois. The partnership was formed by the execution of a written partnership agreement.
The real estate was acquired and on March 2, 1964, River Realty, a partnership, entered into a lease with William R. Smith wherein the latter agreed to rent a large hotel to be erected on the property. The rent was to be based upon a percentage of gross room rentals and sales, with a monthly minimum.
In June 1964, River Realty, in order to raise additional capital, entered into a joint-venture agreement with 26 other individuals, trusts and corporations. River Realty contributed the land to the joint venture *352 and the other venturers contributed the capital necessary for the construction of the hotel. Pursuant to the agreement, River Realty owned 50 percent of the joint venture and the remaining 50 percent was owned in varying amounts by the aforementioned individuals, trusts and corporations.
The joint-venture agreement included two provisions that dealt specifically with a proposed lease of the property and the management and control of the property:
"6. Leases * * * Said lease shall be in such form and substance, as shall be approved in writing by the holders of a majority of the beneficial interest in said land trust.
* * *
8. Majority Control. The holders of the majority of the beneficial interest in said Land Trust, or any agent or agents designated in writing by them, shall have the management of said property and the control of the selling, renting and handling thereof, and the Land Trustee shall be authorized to act in respect thereto and in all respects upon the written direction of the holders of the majority of the beneficial interest in said Land Trust."
On June 27, 1964, a land trust was established pursuant to the terms of the joint venture agreement. The hotel property was placed in trust with the First National Bank of Rock Island acting as trustee. The trust agreement provided:
"* * * First National Bank of Rock Island will deal with said real estate only when authorized to do so in writing and that (notwithstanding any change in the beneficiary or beneficiaries hereunder) it will on the written direction of the beneficiaries holding a majority of the beneficial interest in the trust, or will on the written direction of such other person or persons as shall be from time to time named by the beneficiaries holding a majority interest in the trust, make deeds for or otherwise deal with the title to said real estate * * *."
Pursuant to the trust agreement and the establishment of the land trust, the subject property was deeded in trust to the First National Bank of Rock Island. The deed gave the trustee full power and authority to leave the property, renew or extend leases, or to change or modify leases and the terms and provisions thereof.
A Sheraton Motor Inn was subsequently constructed on the property and leased to William R. Smith pursuant to the original lease.
In 1967 Smith transferred all his interest in the Sheraton of Rock Island, including his rights with respect to the lease to SRI Corp., the present tenant in the property and the plaintiff in this case.
On April 6, 1967, the defendant, Judson Mills, entered into an *353 agreement with one of the original partners of River Realty to purchase his partnership interest. After Judson Mills purchased his interest in River Realty, he signed several documents as a partner in River Realty and in preparing his annual income tax returns would take a deduction based on an income loss incurred by the partnership, River Realty.
Since 1967, SRI Corp. has operated the hotel. It ran into financial difficulty and proposed an amendment to the original lease which would provide for an elimination of the monthly minimum rentals and the percentage rentals for a four-year period of time.
Written directions to the trustee, First National Bank of Rock Island, to amend the lease as proposed were signed by all the joint venturers, including all the partners of River Realty except the defendant, Judson Mills. Defendant Mills owned 10 percent of River Realty.
Because of Mills' refusal to join in the directions to the trustee, the trustee, on advice of counsel, took no action awaiting a legal determination of the matter. The present action was then filed to determine whether or not the trustee, First National Bank of Rock Island, should follow the written directions to amend the lease.
The court held that the partnership known as River Realty could and did act with respect to its 50-percent beneficial interest in the joint venture by the agreement of a majority of the members of the partnership. The court also concluded that only a majority of the owners of the beneficial interest in the joint venture need concur in the directions to the trustee. Finally, the court concluded the directions to the trustee properly authorized the addendum to the lease and directed that it should be executed by the trustee.
The principal assertion of error by the defendant Mills made on this appeal is his claim that River Realty, a partnership, could only approve and participate in the directions of the parties to the joint venture by the unanimous agreement of the partners of River Realty.
As we have noted above, River Realty was initially established pursuant to a written agreement of the then partners. Mills acquired his interest from one of the partners, and it also appears that other partners also sold and assigned their interests in the partnership at various times subsequent to the initial agreement. Since Mills did not sign the partnership agreement, it is his contention that the partnership existed by virtue of oral agreements between the partners, thus making certain provision of the Uniform Partnership Act applicable (Ill. Rev. Stat. 1977, ch. 106 1/2, pars. 1 through 43).
Defendant Mills calls our attention to several provisions of the Uniform Partnership Act which he asserts require the unanimous action of all of the partners in dealing with the beneficial interest in the joint venture.
*354 Section 29 of the Uniform Partnership Act (Ill. Rev. Stat. 1977, ch. 106 1/2, par. 29) provides:
"The dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business."
Section 41 of said Act (Ill. Rev. Stat. 1977, ch. 106 1/2, par. 41) provides:
"(1) When any new partner is admitted into an existing partnership, or when any partner retires and assigns * * * his rights in partnership property to two or more of the partners, or to one or more of the partners and one or more third persons, if the business is continued without liquidation of the partnership affairs, creditors of the first or dissolved partnership are also creditors of the partnership so continuing the business."
Section 18 of the Uniform Partnership Act (Ill. Rev. Stat. 1977, ch. 106 1/2, par. 18) provides:
"Rights and duties of partners inter se.
* * *
(h) Any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners; but no act in contravention of any agreement between the partners may be done rightfully without the consent of all the partners."
1 We fail to see how these provisions of the Uniform Partnership Act support Mills' contention that unanimous action of the partners is required. The statute recognizes both that partnerships may continue even though the members may have changed and also recognizes that the will of the majority of the partners may constitute partnership action unless contrary to some provision of the agreement requiring otherwise. This view finds specific support in other provisions of the Uniform Partnership Act.
Section 27(1) of the Uniform Partnership Act (Ill. Rev. Stat. 1977, ch. 106 1/2, par. 27(1)) provides:
"A conveyance by a partner of his interest in the partnership does not of itself dissolve the partnership, nor as against the other partners in the absence of agreement, entitle the assignee, during the continuance of the partnership to interfere in the management or administration of the partnership business or affairs, or to require any information or account of partnership transactions, or to inspect the partnership books; but it merely entitles the assignee to receive in accordance with his contract the profits to which the assigning partner would otherwise be entitled."
Section 23(2) of the Uniform Partnership Act (Ill. Rev. Stat. 1977, ch. 106 1/2, par. 23(2)) provides:
*355 "A continuation of the business by the partners or such of them as habitually acted therein during the term, without any settlement or liquidation of the partnership affairs, is prima facie evidence of a continuation of the partnership."
2 Mills acquired his interest in the partnership sometime after the partnership originated. In the purchase agreement which Mills signed he agreed to hold the partner who was selling his interest harmless "from any and all liabilities which may rise hereafter in the continuation of the operation of the partnership." This language clearly contemplates a continuation of the partnership.
3 As to the partnership agreement, paragraph 10 provides that if a partner desires to sell his interest, he should give the other partners the first option to purchase. Paragraph 11 provides for mandatory purchase by the remaining partners in the event of the death of one of the partners and paragraph 13 provides that the partnership agreement is to be binding on the heirs, devisees, legatees and personal representatives of the parties. Paragraph 3 of the agreement specifically provides "All partnership action shall be by majority vote, providing, however, that said partnership shall not be dissolved except by a three-fourths vote, * * *." Thus, the partnership agreement contemplates that the membership of the partnership might change, but change in membership should not work a dissolution of the partnership.
After Mills acquired his interest in the partnership, he assented to the conditions of the partnership agreement by his conduct and his rights and obligations are governed by the terms of the partnership agreement. As between parties the question of the existence of a partnership relation is one of intention to be gathered from all the facts and circumstances. Kurtz v. Kurtz (1956), 10 Ill. App. 2d 310, 134 N.E.2d 609.
According to 59 Am.Jur.2d Partnership § 33, at 956 (1971):
"The duties and obligations of partners arising from a partnership relation are regulated by the express contract as far as they are covered thereby. While a written agreement is not necessary, where it does exist it constitutes the measure of the partners' rights and obligations. The written agreement, or `partnership articles' as it is usually called, may include practically any provision desired. And while the rights and duties of the partners in relation to the partnership are governed by the Uniformed Partnership Act, the Uniform Act also provides that such rules are subject to any agreement between the parties."
4 We believe the provision authorizing partnership action by a vote of the majority is unambiguous and clearly expressive of the intent of the agreement. It is consistent with all of the other provisions of the partnership agreement.
*356 Even if the language of the partnership agreement authorizes partnership action by a vote of the majority, Mills nevertheless argues that when the partnership agreement, the joint-venture agreement, and the agency agreement authorizing the bank to act in behalf of the joint venture are considered together with the conduct of the parties, the concurrence of all of those interested in the joint venture, whether as members of the River Realty partnership or otherwise, is required. In particular, he points to the fact that the joint-venture agreement and the agency agreement were signed by each of the then members of the River Realty partnership as well as each of the owners of the remaining 50 percent beneficial interest in the joint venture and land trust.
5 It does not follow in our opinion that the fact that all of the members of River Realty signed the agreements constituted adoption of a provision contrary to the express language of the partnership agreement. There is no particular significance to all parties joining in an undertaking when the action might have been taken by some other number of participants, since it may be inferred that such was done merely to indicate the general agreement of all of the parties to the basic understanding and agreement.
Mills suggests that there being 10 members of the River Realty partnership, six members of the partnership plus the concurrence of one of the other owners of the beneficial interest in the joint venture could control the conduct of the joint venture. He suggests that this power in a minority is somehow unfair or against public policy. We are unaware of any support for this position and in terms of power of a minority, the view proposed by Mills would even be more unfair. If unanimous action were required, then one owner of say one percent or less of the beneficial interest in the joint venture could exercise a veto power over the wishes of the other 99 percent interest in the venture.
At the time this project was commenced, the relationship between the parties was so established that approval of a majority of the partners of River Realty would be required for any action to be taken by or in behalf of the joint venture. We find nothing improper or illegal in this plan. All of the documents, i.e., partnership agreement, joint-venture agreement and land-trust agreement, contemplate action by majorities in the conduct of the enterprise.
For the foregoing reasons the judgment of the circuit court of Rock Island County is affirmed.
Judgment affirmed.
SCOTT and BARRY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1737366/ | 727 N.W.2d 35 (2006)
STATE
v.
FARR (ABRAHAMSON, C.J., AND PROSSER, J., DISSENT)
No. 2006AP0094-CR
Supreme Court of Wisconsin
December 5, 2006.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304613/ | McAMIS, J.
Manrice Sadikoff instituted this suit to recover an attorney fee incurred in successfully defending a tort action which, the hill alleges, defendant, under its public liability policy, had engaged to defend on his behalf. The question is whether the Chancellor correctly held that the injury for which complainant was sued in the tort action was covered by the policy. The Company appeals from a judgment for $1,350.00 insisting that it was warranted in refusing to defend because the injury out of which the suit arose falls within a policy exception hereinafter quoted. The assignments attack the reasoning as well as specific findings of the Chancellor but the ultimate and controlling question is whether the policy should be construed to cover the particular injury in question.
On October 30, 1947, the date of the policy, Sadikoff, doing business as O. & M. Service Station, operated a service station at 110 East 11th Street in Chattanooga. Oh the rear of the same lot he also operated a parking lot. The policy describes the insured’s business as ‘‘Gasoline Service Station” and obligates the insurer to pay insured’s legal liability to others resulting from bodily injuries or death: ‘£ Occurring within or upon the premises described in Item 2 of the Declarations, including the sidewalks or other ways immediately adjacent thereto used or occupied by the insured for the purpose described *4in Item 3 of the Declarations, excluding, however, accidents arising out of or in connection with Automobile Parking Lots, Repair Shops, Confectionery Stores, Lunch Rooms, Restaurants, Sales Agencies and similar operations.”
We have italicized the language relied upon as excepting the present case from liability! Another provision obligated the Company to investigate and defend actions brought against the insured.
While the policy was in force and effect, Mrs. Shoick, the plaintiff in the tort action, left her car in complainant’s parking lot above mentioned while she went to engage a room at a nearby hotel. Her intention was to leave her car overnight if she could obtain a room. After engaging a room but after the filling station had closed for the night, she returned to her car with a companion to remove some articles from it. While her companion was so engaged she went to the office of the filling station for the purpose of paying the parking fee so that she could leave the next morning before the filling station opened for the day. Finding the door locked she went to the rear window to see if anyone was in attendance and fell into an unlighted and unguarded grease pit sustaining injuries for which she sued complainant.
It will be remembered that, under the terms of the policy above quoted, indemnity was to be afforded for injuries occurring on the described premises while used or occupied by the insured for the purpose described under Item 3 which, in turn, described the business of insured as “Gasoline Service Station”. We think the purpose of the exception was to make clear that even though an injury should occur on the premises at 110 East 11th Street it would not be covered by the policy unless it arose out of the operation of the insured’s filling station *5business or, as expressed affirmatively in the exception, if the injury should result from an £ ‘ accident arising out of or in connection with Automobile Parking Lots”, etc. So, the question is: Did Mrs. Shoick’s injuries arise out of the operation of the filling station or of the parking lot? The question is to be resolved upon a construction and application of the term, “arising out of or in connection with”, and, as counsel agree, without the benefit of prior judicial construction of the clause or any similarly worded policy provision.
However, the term “arising out of” has been applied in at least one other field of legal liability.
In Hendrix v. Franklin’ State Bank, 154 Tenn. 287, 290 S. W. 30, a workmen’s compensation case, the term “arising out of employment” was construed as referring to the origin of the cause of injury. To the same effect is Mayor and Aldermen of Town of Tullahoma v. Ward, 173 Tenn. 91, 114 S. W. (2d) 804, 807, where the court again approved the Michigan definition: “An injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.”
By cognate reasoning we think an accidental injury arises out of and in connection with a business only if there is apparent to the rational mind a causal connection between the injury and the maintenance of the premises for the purposes of the business or some act incident to the operation of the business. It would not be a question of what caused the injured person to come upon the premises but a question of whether the act or condition causing the injury arose out of the maintenance of the premises or the prosecution of the business.
*6The cause of Mrs. Shoick’s fall was the maintenance of an unguarded and unlig’hted grease pit in connection with the business activities covered by the policy. It was not maintained in connection with the excepted operation of-the parking lot or on a part of the premises used for that purpose. It is true Mrs. Shoick would not have fallen into the pit if she had not parked in the parking lot. But the grease pit was not on the parking lot and, so far as appears, there was no occasion for a customer of the lot to go near the pit. The presence of Mrs. Shoick near the pit was the condition which made her fall possible — not the cause.
The insuring clause and the exception should not be considered separately but as parts of a whole, construing any ambiguities against the insurer to ascertain the intention of the parties as disclosed by the language used in the policy. Colley v. Pearl Assur. Co., 184 Tenn. 11, 195 S. W. (2d) 15.
"When so construed we think it is apparent that the intention of the parties was to afford protection to the insured where the injury arose out of or in connection with the business of operating a gasoline service station. The exception was designed to protect the Company from liability for injuries growing out of some act of the insured in connection with the excepted pursuits even though the act giving rise to suit may have occurred on the premises described in the policy.
The Chancellor based his decision upon the further ground that the Company was obligated to defend because the complaint in the tort action indicated a case covered by the policy. We do not find it necessary to decide the point in view of the above construction of the exception clause.
*7We find no error and the decree will be affirmed with costs.
Hale, J., and Brown, Sp. J., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1737369/ | 727 N.W.2d 374 (2006)
2007 WI App 19
SNYDER
v.
EBERTS[1].
No. 2006AP276.
Wisconsin Court of Appeals.
December 6, 2006.
Unpublished opinion. Affirmed in part, reversed in part.
NOTES
[1] Petition for Review Filed | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2860907/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00336-CV
Southwest-Tex Leasing Company, Inc., d/b/a Advantage Rent-A-Car and d/b/a Premier
Parking; and Walker Resources, Inc., Appellants
v.
Elton Bomer, Commissioner of Insurance; and Texas Workers' Compensation
Insurance Facility, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. 96-00656, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING
This case arises out of a dispute over a workers' compensation insurance policy.
Southwest-Tex Leasing Company, Inc., doing business as Advantage Rent-A-Car and Premier Parking,
along with Walker Resources (collectively "Advantage") appeals the trial court's judgment affirming a
decision of the Commissioner of Insurance ("Commissioner"). We will affirm the judgment of the trial
court.
BACKGROUND
On March 25, 1991, Advantage applied to the Texas Workers' Compensation Insurance
Facility for workers' compensation coverage. (1) Liberty Mutual Insurance, acting as a servicing company
for the Facility, issued a policy to Advantage. Because Advantage did not have an experience rating at the
time it applied for insurance, Liberty Mutual did not base its estimated premium on an experience modifier. (2)
Instead, Liberty Mutual based its estimate on the Texas Assigned Risk Rating Program (ARRP factor). (3)
Liberty Mutual then issued an insurance policy effective March 31, 1991, which included the ARRP
endorsement.
After Liberty Mutual issued the policy, the Texas Department of Insurance (TDI) calculated
Advantage's experience rating (also called an "experience modifier") to be 1.33. The Facility instructed
Liberty Mutual to include the 1.33 experience modifier and a forty-five percent surcharge (4) in the policy,
effective retroactively to March 31, the date of issuance of the policy. In accordance with the Facility's
instructions, Liberty Mutual issued the new endorsement and deleted the ARRP endorsement. This change
in policy terms caused Advantage's premiums to increase. When asked to pay the adjusted amount at the
end of the policy year, Advantage refused. The parties agree that the difference between the two premiums
is $128,141.
Advantage asked the Facility to review Liberty Mutual's actions. The Facility decided
Liberty Mutual handled the policy correctly. Advantage then appealed the Facility's decision to the
Commissioner, who has authority to review the Facility's decisions. See Tex. Ins. Code Ann. art. 5.76-2,
§ 2.08. After an evidentiary hearing, an administrative law judge ("ALJ") proposed affirmance of the
Facility's decision. See Tex. Gov't Code Ann. § 2001.062(c) (West Supp. 1997). The Commissioner
adopted the ALJ's recommendation. Advantage appealed to the district court, which affirmed the
Commissioner's decision. See Tex. Gov't Code Ann. § 2001.171 (West Supp. 1997). Advantage now
appeals, by eleven points of error, the district court's judgment upholding the Commissioner's decision.
DISCUSSION
The Administrative Procedure Act defines the scope of our review of the Commissioner's
order. Tex. Ins. Code Ann. art. 1.33A; see Tex. Gov't Code Ann. §§ 2001.001 - .902 (West Supp.
1997) ("Administrative Procedure Act" or "APA"). We may reverse the order only if Advantage's
substantial rights have been prejudiced because the Commissioner's findings or conclusions are: (A) in
violation of a constitutional or statutory provision; (B) in excess of the agency's statutory authority; (C)
made through unlawful procedure; (D) affected by other error of law; (E) not reasonably supported by
substantial evidence; or (F) arbitrary or capricious. APA § 2001.174(2). Advantage contends certain
findings and conclusions are generally "erroneous" or are supported by "no evidence." We construe
Advantage's points of error as complaining that the findings and conclusions are affected by "error of law"
or not supported by "substantial evidence." See id. § 2001.174(2) (D) & (E).
In point of error one, Advantage argues the Commissioner erred in adopting Finding of
Fact 8 because it is not supported by substantial evidence. Finding of Fact 8 reads as follows:
On April 29, 1991, TDI promulgated an experience rating modification of 1.33 for
Advantage. At TDI's instruction, Liberty Mutual, on May 15, 1991, issued an
endorsement that added the 1.33 experience modifier and the 45 percent surcharge
required by TDI rules, and deleted the ARRP factor, effective March 31, 1991.
Substantial evidence is that which reasonable minds could have viewed as supporting the finding. See
Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988). In evaluating
the record, we do not substitute our judgment for the Commissioner's. Id. We are concerned only with
the reasonableness of findings, not their correctness. Id. at 117. Advantage carries the burden of
demonstrating an absence of substantial evidence. Id. at 116.
We conclude the finding is properly supported. A witness for Advantage testified that the
modifier was promulgated six to eight weeks after the effective date of the policy. Furthermore, an
experience rating form file-marked with an April 29, 1991, date is attached in the record to an affidavit of
the Facility's custodian of records. The form reflects that Advantage was assigned an experience modifier
of 1.33 to be effective March 31, 1991. A letter admitted in evidence also establishes that TDI
corresponded with the Facility about the proper course of action to take when a risk whose premium is
originally calculated with an ARRP factor subsequently receives an experience rating. Liberty Mutual's
deletion of the ARRP factor and addition of the experience modifier and surcharge was in accordance with
the TDI letter. We hold these documents and the testimony of Advantage's witness constitute substantial
evidence because they reasonably support Finding of Fact 8. Accordingly, we overrule point of error one.
In its second point of error, Advantage argues Finding of Fact 9 is not supported by
substantial evidence. Finding of Fact 9 reads, "Advantage paid the assessed premiums and did not cancel
its policy, but did not agree to or sign the endorsement." Advantage admits it paid the premium it originally
contracted for and admits it did not cancel its policy. Advantage argues, however, that the finding does
not specify the endorsement to which it refers. Advantage does not explain how the alleged lack of
specificity affects the validity of the Commissioner's decision.
In any event, the finding of fact undoubtedly refers to the experience modifier/surcharge
endorsement, which caused the dispute, not the endorsements to which Advantage admits it originally
agreed. We must construe the Commissioner's order reasonably and harmoniously as a whole in order
to give effect to the intent reflected in the order. See All Star Sheet Metal and Roofing, Inc. v. Texas
Dept. of Ins., 935 S.W.2d 186, 188 (Tex. App.--Austin 1996, no writ). Finding of Fact 8, which
immediately precedes Finding of Fact 9, references only the experience modifier/surcharge endorsement.
The two findings, when read in the context of the dispute and when read in order, establish that the
Commissioner referenced the experience modifier/surcharge endorsement in Finding of Fact 9. We,
therefore, reject Advantage's argument about the lack of specificity in the finding. We further hold that the
finding is supported by substantial evidence because none of the evidence presented at trial shows
Advantage ever agreed to application of the experience modifier/surcharge endorsement. We overrule
point of error two.
In point of error six, Advantage argues the Commissioner committed an error of law in
adopting Conclusion of Law 4, which reads as follows: "Advantage's policy specifically referred to the
Department's manuals and was not ambiguous concerning their applicability." Advantage contends the
contract was ambiguous as to whether it was subject to TDI rules. We review the Commissioner's
determination of this legal issue de novo. See In re Humphreys, 880 S.W.2d 402, 404 (Tex.), cert.
denied, 115 S. Ct. 427 (1994); Texas Workers Compensation Ins. Facility v. State Bd. of Ins., 894
S.W.2d 49, 52 (Tex. App.--Austin), judgment withdrawn and appeal dism'd, 910 S.W.2d 176 (Tex.
App.--Austin 1995, no writ).
The policy stated "[t]he premium for this policy will be determined by our Manuals of
Rules, Classifications, Rates and Rating Plans." The Texas Amendatory Endorsement included in the policy
defined "our manuals" as "manuals approved or prescribed by the State Board of Insurance." The contract
was not ambiguous and was clearly subject to TDI manuals. The Commissioner did not commit an error
of law in so concluding and we overrule point of error six.
In point of error eight, Advantage contends Conclusion of Law 6 is not supported by
substantial evidence. Conclusion of Law 6 states, "The Department's Experience Rating and ARRP
manuals support the Facility's retroactive application of an effective date to an experience modifier." The
Commissioner interprets TDI rules as allowing the retroactive application of an experience modifier that
is calculated after the effective date of the policy. The Commissioner's interpretation of the TDI rules is
evidenced in the record by (1) the letter from TDI to the Facility discussing the consequences of
retroactively applying an experience modifier and surcharge, and (2) the fact that the Commissioner argued
for such an interpretation before the ALJ. The Commissioner relies upon Rule IV(3)(a) of the "Experience
Rating Manual," which was admitted in evidence and was quoted in Finding of Fact 16. Because both the
rule and the Commissioner's interpretation of it are reflected in the record, we hold Conclusion of Law 6
is supported by substantial evidence. Accordingly, we overrule Advantage's eighth point of error.
In its ninth and tenth points of error, Advantage contends the Commissioner committed an
error of law in adopting Conclusions of Law 7 and 8. The conclusions read as follows:
7. Under the Department's ARRP Manual, when an experience modifier is applied, the
ARRP factor is to be deleted.
8. The Facility and Liberty Mutual properly applied the experience rating modification
and surcharge to Advantage's policy and deleted the ARRP factor.
Advantage essentially contends the Commissioner erred in upholding the deletion of the ARRP factor in
accordance with TDI rules, because, according to Advantage, the contract did not provide for the deletion
of the ARRP factor.
The policy requires deletion of the ARRP factor upon retroactive application of the
experience modifier to the inception date of the policy. The contract expressly refers to the ARRP manual.
As discussed above, the record reveals that the Commissioner interprets the manual as requiring the
deletion of the ARRP factor when an insurer makes the kind of modification the Facility made here. The
specific rule upon which the Commissioner relies states:
The Assigned Risk Rating Program (ARRP) is a retrospective rating plan which shall apply
to an assigned risk policy, if the audited total standard premium in Texas is at least
$25,000 and an experience rating modification is not applicable as of the effective date of
the policy. This program shall not apply to any policy made subject to an experience rating
modification as of the effective date of the policy.
The Commissioner's interpretation of TDI rules is entitled to deference by the courts. Turner Bros.
Trucking v. Commissioner of Ins., 912 S.W.2d 386, 390 (Tex. App.--Austin 1995, no writ). Nothing
indicates that the exclusionary language is to be applied only when TDI promulgates an experience modifier
before the issuance of a policy. It is reasonable, therefore, for the Commissioner to apply the exclusionary
language even when a modifier is promulgated after the issuance of a policy but applied retroactively.
Advantage argues we should not defer to the Commissioner's interpretation of the rules
because the rules conflict with other contract provisions. In support of its argument, Advantage quotes the
ARRP endorsement, which states:
This endorsement determines the assigned risk rating program premium for the insurance
provided during the rating plan period by this policy. The rating plan period is the one year
beginning with the effective date of the policy.
* * *
We determine your standard premium based upon authorized rates, including any rate level
differential, loss constants, minimum premiums and any experience rating modification
which may apply after the effective date of the policy. (Emphasis added.)
According to Advantage, these provisions suggest the ARRP factor was to apply throughout the term of
the policy with no exception because they did not provide for the deletion of the ARRP factor under any
circumstances. (5)
We conclude the policy provisions can be harmonized with the Commissioner's
interpretation of the rules. Neither party disputes that the ARRP endorsement "determines the assigned
risk rating program premium." The endorsement, however, is silent as to whether it can be deleted from
the policy or how the Facility should determine the premium after the ARRP endorsement is deleted from
the policy. Moreover, the cancellation provision suggesting that the ARRP factor and an experience
modifier may sometimes apply simultaneously does not contravene the applicable rule. Such a situation
may arise when an experience modifier is promulgated and applied after the effective date of the policy.
The facts of this case are different from such a situation because the experience modifier was applied, albeit
retroactively, on the effective date of the policy. Reading the rules and the contract provisions
conjunctively, we conclude the terms of the policy are consistent with the TDI rules. Because the rules (1)
supported the deletion of the ARRP endorsement, (2) were incorporated into the policy, and (3) did not
contradict other policy terms, the Commissioner did not err in concluding the Facility properly deleted the
ARRP endorsement. We, therefore, uphold the Commissioner's Conclusions of Law 7 and 8 and overrule
Advantage's points of error nine and ten.
In points of error three, four, five, and seven, Advantage argues the Commissioner erred
in adopting Findings of Fact 22, 24, and 25 as well as Conclusion of Law 5. The findings read:
22. Given that the Facility provided the only opportunity to purchase workers'
compensation insurance and was required to provide that insurance, it is equitable
that Advantage's policy be subject to the Facility's rules and manuals.
24. Advantage needed to have workers' compensation coverage and would have
accepted coverage whether the policy had originally been issued with the ARRP
factor or with the experience modifier and surcharge.
25. Equity does not favor the granting of Advantage's appeal.
Conclusion of Law 5 reads:
In In Re the Appeal of Major Brand Oil, Inc. from a Decision of the Texas Workers'
Compensation Insurance Facility, Docket No. 454-93-308 (TDI Order issued Jan. 19,
1994), the Commissioner concluded that the Facility's practice of retroactively applying
experience modifiers was justified by its rules and by the traditional meaning of "effective
date" in the insurance industry.
The Commissioner's ultimate decision of law does not expressly rest upon any single finding of fact. We
hold that the findings and conclusions discussed in relation to Advantage's other points of error and the
remaining unchallenged findings support the Commissioner's decision. In other words, Findings of Fact
22, 24, and 25 and Conclusion of Law 5 are not essential to the resolution of this dispute. Irrelevant
findings and conclusions are not fatal to an otherwise properly supported order. See Texas Rivers
Protection Ass'n v. Texas Natural Resource Conservation Comm'n, 910 S.W.2d 147, 155 (Tex.
App.--Austin 1995, writ denied). Consequently, we overrule Advantage's points of error three, four, five,
and seven.
In point of error eleven, Advantage contends there is not substantial evidence supporting
Conclusion of Law 9, which states "Advantage's appeal should be denied." Advantage argues the point
in conjunction with points six through ten. Point of error eleven does not present anything for review that
is not already presented by the other points of error. Insofar as the point constitutes an attempt to raise
points without discussion of pertinent facts and relevant authorities, we decline to review it. See Tex. R.
App. P. 74(f); Ferguson v. DRG/Colony N., Ltd., 764 S.W.2d 874, 887 (Tex. App.--Austin 1989, writ
denied).
CONCLUSION
Because Advantage has not established a deficiency in the Commissioner's order, we affirm
the district court's judgment.
Jimmy Carroll, Chief Justice
Before Chief Justice Carroll, Justices Kidd and B. A. Smith
Affirmed
Filed: April 17, 1997
Publish
1. The Texas Workers' Compensation Insurance Facility is a private, non-profit, unincorporated
association of insurers authorized to write workers' compensation insurance in Texas for employers who
are unable to obtain coverage through private insurance companies. See Tex. Ins. Code Ann. art. 5.76-2,
§§ 2.02(2), 4.02(b) (West Supp. 1997). After the Facility determines a company is entitled to coverage,
it calculates premiums in accordance with rules promulgated by the Texas Department of Insurance
("TDI"), formerly known as the State Board of Insurance. See id. art. 1.02(a), 5.76-2, §§ 4.02(b),
4.05(a). The Facility then contracts with one of its member insurers or another eligible entity to become
a servicing company for the Facility. See id. art. 5.76-2, § 4.02(b). A servicing company issues and
services insurance policies for the Facility. Id. art. 5.76-2, § 1.01(15). The Facility and not the servicing
company is the insurer. See Maintenance v. ITT Hartford Group, Inc., 895 S.W.2d 816, 818 (Tex.
App.--Texarkana 1995, writ denied) (pertaining to the Texas Workers Compensation Commission
Assigned Risk Pool, the statutory predecessor to the Facility). A servicing company is liable only as a
reinsurer. Id. The Insurance Code directs servicing companies to issue policies on forms prescribed by
the Facility and dictates that the policies are to be treated exclusively in accordance with rules adopted by
the TDI. See id. art. 5.76-2, § 4.02(a), (b). The TDI has approved several manuals setting forth premium
guidelines. Although these manuals are not published in the Texas Register, they are part of the rules
promulgated by TDI. See id. art. 5.96(a) (West Supp. 1997); see also Texas Workers Compensation
Ins. v. Personnel Servs., 895 S.W.2d 889, 891 n.2 (Tex. App.--Austin 1995, no writ).
2. Normally, two factors are used to assess risk in the calculation of workers' compensation insurance
premiums: (1) employees are classified according to the risk of the work performed and (2) employers
are rated according to their safety records in terms of claims filed. See Aetna Casualty & Surety v. State
Bd. of Ins., 898 S.W.2d 930, 932 n.3 (Tex. App.--Austin 1995, no writ).
3. The ARRP factor is designed to adjust retroactively premiums after the policy expires to reflect the
insured's actual losses during the life of the policy. Rules pertaining to the ARRP factor are set forth in a
TDI manual entitled "Texas Workers Compensation Assigned Risk Rating Program." According to the
manual, the ARRP factor applies only to risks not assigned an experience rating "as of the effective date
of the policy."
4. The TDI's "Mandatory Tabular Surcharge Plan," set forth in another TDI rule, prescribes adding a
forty-five percent premium surcharge for risks assigned a 1.33 experience modifier.
5. Advantage also contends we should construe the policy terms strictly against the Facility, the insurer.
Advantage cites National Fire Ins. Co. of Pittsburgh v. Clemtex, Inc., 807 S.W.2d 824 (Tex.
App.--Houston [14th Dist.] 1991, writ denied) for support. In Clemtex, the court upheld a judgment that
a general liability insurer was not entitled to recover additional premiums based upon an experience rating
assigned to the insured after the inception of the policy. The court so held in the face of TDI rules allowing
an insurer to increase premiums based on an experience rating assigned after the effective date of the
policy.
We recognize that, generally, insurance contracts are construed against the insurance company, the
drafter in most cases. See, e.g., Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 666 (Tex. 1987). The
court in Clemtex relied upon this principle when the court construed the contract in favor of the insured.
See Clemtex, 807 S.W.2d at 826. We do not agree that this general rule of contract construction applies
in this case or that the Clemtex decision is dispositive.
One important difference between Advantage's policy and the policy at issue in Clemtex is that the
latter did not incorporate the applicable TDI rules. The court noted this fact in holding the insurer could
not supplant the contract provisions with contradictory TDI rules not even mentioned in the contract. In
the instant case, the TDI rules were clearly incorporated in the contract. Therefore, Clemtex is inapposite
to this case.
More importantly, the insurance contract that is the subject of this dispute is not one written in the
ordinary private insurance setting, as was the contract at issue in Clemtex. The Facility, although not a
state agency, is essentially an arm of the State. Compare Turner Bros. Trucking, 912 S.W.2d at 391
(holding the Facility had certain powers, despite fact that statute did not expressly confer those powers,
because Facility does not derive power solely from statute) with American Home Assur. v. Texas Dept.
of Ins., 907 S.W.2d 90, 95 n.8 (Tex. App.--Austin 1995, no writ) (treating Facility as "state agency" for
purposes of deciding whether tax revenues were used for private purposes). The Facility is a statutory
creature created to serve an important public purpose, namely to provide workers' compensation insurance
for those who are otherwise unable to obtain it. As a tool of the State, the Facility is powerless to write
or enforce contracts that contravene TDI rules. See Turner Bros. Trucking, 912 S.W.2d at 391. It
follows that any provision in a policy written by or for the Facility is invalid if it contradicts TDI rules in
effect at the time the policy is written. We note our previous decision in Texas Workers Compensation
Commission v. State Board of Insurance, wherein we required the Facility to honor a contract despite
TDI rules that contradicted the terms of the contract. See 894 S.W.2d at 55. That case differs from the
instant one because the contract at issue in our previous decision was written before the contradictory rules
were promulgated. In this case, the TDI rules were promulgated before the contract was issued and the
rules are specifically referenced in the contract. Therefore, even if we were to hold the contract provisions
conflicted with the TDI rules, we would not conclude that the contract provisions superseded the rules.
In other words, the fact that this case involves a unique quasi-public relationship rather than the typical
private relationship dictates that we disregard the general rule of contract construction espoused in Clemtex
and attempt, instead, attempt to harmonize the contract with the Commissioner's reasonable interpretation
of TDI rules.
ording to their safety records in terms of claims filed. See Aetna Casualty & Surety v. State
Bd. of Ins., 898 S.W.2d 930, 932 n.3 (Tex. App.--Austin 1995, no writ).
3. The ARRP factor is designed to adjust retroactively premiums after the policy expires to reflect the
insured's actual losses during the life of the policy. Rules pertaining to the ARRP factor are set forth in a
TDI manual entitled "Texas Workers Compensation Assigned Risk Rating Program." According to the
manual, the ARRP factor applies only to risks not assigned an experience rating "as of the effective date
of the policy."
4. The TDI's "Mandatory Tabular Surcharge Plan," set forth in another TDI rule, prescribes adding a
forty-five percent premium surcharge for risks assigned a 1.33 experience modifier.
5. Advantage also contends we should construe the policy terms strictly against the Facility, the insurer.
Advantage cites National Fire Ins. Co. of Pittsburgh v. Clemtex, Inc., 807 S.W.2d 824 (Tex.
App.--Houston [14th Dist.] 1991, writ denied) for support. In Clemtex, the court upheld a judgment that
a general liability insurer was not entitled to recover additional premiums based upon an experience rating
assigned to the insured after the inception of the policy. The court so held in the face of TDI rules allowing
an insurer to increase premiums based on an experience rating assigned after the effective date of the
policy.
We recognize that, generally, insurance contracts are construed against the insurance company, the
drafter in most cases. See, e.g., Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 666 (Tex. 1987). The
court in Clemtex relied upon this principle when the court construed the contract in favor of the insured.
See Clemtex, 807 S.W.2d at 826. We do not agree that this general rule of contract construction applies
in this case or that the Clemtex decision is dispositive.
One important difference between Advantage's policy and the policy at issue in Clemtex is that the
latter did not incorporate the applicable TDI rules. The court noted this fact in holding the insurer could
not supplant the contract provisions with contradictory TDI rules not even mentioned in the contract. In
the instant case, the TDI rules were clearly incorporated in the contract. Therefore, Clemtex is inapposite
to this case. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1922473/ | 756 A.2d 58 (2000)
COMMONWEALTH of Pennsylvania, Appellee,
v.
Matthew McMULLEN, Appellant.
Superior Court of Pennsylvania.
Submitted May 24, 2000.
Filed July 6, 2000.
*60 Craig S. Bory, Boyertown, for appellant.
Mark C. Baldwin, Asst. Dist. Atty., Reading, for Com., appellee.
Before McEWEN, President Judge, LALLY-GREEN, J. and HESTER, J.
*59 HESTER, J.:
¶ 1 Matthew McMullen appeals from the September 9, 1999 judgment of sentence of forty-eight hours to twenty-three months incarceration and associated mandatory fines following his conviction of driving under the influence as a minor. For the following reasons, we affirm.
¶ 2 On July 13, 1998, Appellant was involved in a one-car accident. Appellant lost control of his vehicle, left the roadway, struck a vehicle, and drove into a residence. The Muhlenberg township police department responded to the accident. Officer Michael Travis interviewed Appellant and noticed he had glassy eyes and an odor of alcohol on his breath. Appellant admitted he had ingested some alcoholic beverages that evening. Appellant consented to a blood alcohol test. The test indicated Appellant's blood alcohol content ("BAC") was .105.
¶ 3 On July 16, 1999, Appellant was charged with driving under the influence of alcohol[1] and driving under the influence of alcohol as a minor.[2] A jury trial commenced on September 1, 1999, and concluded on September 3, 1999. The jury acquitted Appellant of driving under the influence of alcohol but convicted him of driving under the influence of alcohol as a minor. On September 9, 1999, Appellant was sentenced to a term of incarceration of forty-eight hours to twenty-three months and ordered to pay the costs of prosecution and supervision, a fine, participate in forty-eight hours of community service and pay restitution.
¶ 4 Appellant filed a notice of appeal to this Court on September 27, 1999. Pursuant to an order of the trial court, Appellant filed a concise statement of matters complained of upon appeal on October 6, 1999. The trial court filed its opinion on December 1, 1999. In his appeal, Appellant raises four issues, challenging the constitutionality of 75 Pa.C.S. § 3731(a)(4)(ii). These sections provide:
§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined.A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances:
(1) While under the influence of alcohol to a degree which renders the person incapable of safe driving.
(2) While under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to a degree which renders the person incapable of safe driving.
(3) While under the combined influence of alcohol and any controlled *61 substance to a degree which renders the person incapable of safe driving.
(4) While the amount of alcohol by weight in the blood of:
(i) an adult is 0.10% or greater; or
(ii) a minor is 0.02% or greater.
¶ 5 Initially, Appellant asserts that 75 Pa.C.S. § 3731(a)(4)(ii) is unconstitutional on its face in violation of the Fourth and Fourteenth amendments to the United States Constitution. Our Supreme Court recently enunciated our standard of review for claims questioning the constitutionality of a statute:
The standard of review we apply to the court's conclusion is exacting. A statute will be found unconstitutional only if it clearly, palpably and plainly violates constitutional rights. Under well-settled principles of law, there is a strong presumption that legislative enactments do not violate the constitution. Further, there is a heavy burden of persuasion upon one who questions the constitutionality of an Act.
Commonwealth v. MacPherson, 561 Pa. 571, 580, 752 A.2d 384, 388 (2000) (citations omitted). Our Supreme Court also has outlined the requirements for a due process challenge where a statute is alleged to be void for vagueness.
As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. The principle [sic] aspect of the doctrine is the requirement that legislation establish minimal guidelines to govern law enforcement for, without such minimal guidelines, a criminal statute might permit a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilictions (sic).
Commonwealth v. Mikulan, 504 Pa. 244, 251, 470 A.2d 1339, 1342-43 (1983) (citations omitted).
¶ 6 Appellant alleges that § 3731(a)(4)(ii) does not clearly identify what conduct is prohibited. Additionally, Appellant states the statute allows an impermissible amount of police discretion, which could potentially lead to arbitrary enforcement. We disagree. 75 Pa.C.S. § 3731(a)(4)(ii) is a zero-tolerance statute. It is intended to prohibit, deter, and punish minors who consume alcohol and then operate a motor vehicle. The minor confronted with this statute is put on notice that operating a motor vehicle after consuming even a small amount of alcohol can lead to criminal liability.
¶ 7 We also fail to see how this statute could be applied arbitrarily. Minors convicted under this statute must have a BAC of .02 or greater. The Commonwealth has an affirmative duty to prove this fact using scientific methods. The only discretionary aspect involved is whether the arresting officer has probable cause to request the individual to submit to a breathalyzer or a blood test. Objective criteria such as glassy eyes, slurred speech, or alcoholic odors serve as the basis for requesting a field sobriety test. The field sobriety test is then employed to determine whether or not to request a BAC test. The statute is sufficiently definite with no danger of arbitrary or discriminatory enforcement.
¶ 8 Secondly, Appellant asserts that 75 Pa.C.S. § 3731(a)(4)(ii) does not "bear a reasonable and substantial relationship to accomplishing the allowable purpose for which it was enacted in violation of article I, section II of the Pennsylvania Constitution." Appellant's brief at 11. We disagree with the premise of Appellant's argument as well as his conclusion.
¶ 9 Initially, we note the proper standard to be applied to this constitutional claim. Where a statute affects a fundamental right or includes a suspect class, a heightened level of scrutiny must be applied. *62 Smith v. Coyne, 555 Pa. 21, 27, 722 A.2d 1022, 1025 (1999). Intermediate scrutiny is applied to important rights and sensitive classifications. Id. Where neither of the aforementioned conditions are present, a `rational basis' test determines the constitutionality of the statute. Id. It is settled law in Pennsylvania that the privilege to operate a motor vehicle is not a fundamental right and age is not a suspect class. Kimel v. Florida Board of Regents, 528 U.S. 62, ___, 120 S. Ct. 631, 645, 145 L. Ed. 2d 522 (2000) (age classifications do not trigger strict scrutiny analysis); Norris v. Wood, 336 Pa.Super. 305, 485 A.2d 817, 820-21 (1984). Further, the Commonwealth's police powers in matters pertaining to the regulations of alcoholic beverages is particularly broad. Mikulan, 504 Pa. at 246, 470 A.2d at 1340.
¶ 10 Accordingly, we consider Appellant's claims under the `rational basis' standard of review. Appellant concedes the fact that the Commonwealth has a valid interest in reducing the risk related to excessive drinking and driving. However, Appellant questions whether § 3731(a)(4)(ii), which prohibits driving with a BAC of .02, has a rational relation to achieving that goal. Specifically, Appellant argues that § 3731(a)(4)(ii) denies individuals due process because it can lead to the criminal convictions of persons who did not meet the legislative standard for intoxication of .10 as set forth in § 3731(a)(4)(i).
¶ 11 We must apply the two-step rational relationship test to this Constitutional question. Commonwealth v. Strunk, 400 Pa.Super. 25, 582 A.2d 1326 (1990); citing Meier v. Anderson, 692 F. Supp. 546, 552 (E.D.Pa.1988) aff'd, 869 F.2d 590 (3rd Cir.1989). The first question is "whether the challenged statute seeks to promote any legitimate state interest or public value." Id. at 1328. The second prong of the analysis evaluates whether the statute is reasonably related to accomplishing that articulated state interest or interests. Id.
¶ 12 It is clear to this Court, as it was to the trial court, that there are legitimate state interests promoted by § 3731(a)(4)(ii). The legislature intended to deter and discourage underage drinking. Underage drinking and driving result in a high number of fatalities every year, not only throughout Pennsylvania, but throughout the United States. Nearly one-third of all deaths of fifteen to twenty-year-old persons result from motor vehicle crashes and approximately thirty-five percent of these fatalities are related to alcohol.[3] By setting a low BAC threshold, the legislature sought to reduce teenage traffic injuries and also exercise its police powers in order to "attempt, halt, or at least retard the senseless slaughter of and injury to innocent people upon our roadways caused by drunk drivers." Mikulan, 504 Pa. at 248, 470 A.2d at 1341. These interests are promoted by the zero-tolerance statute.
¶ 13 We next consider whether this legislative enactment is reasonably related to the goal of deterring underage drinking and driving. Initially, we note that the constitutionality of § 3731(a)(4)(i) has been tested numerous times on the basis that the .10 figure is arbitrary and irrational. In Mikulan, supra, our Supreme Court resolved this issue and determined that the .10 figure was rational and constitutional. We must determine whether the.02 figure associated with § 3731(a)(4)(ii) is arbitrary or irrational. In reaching our conclusion, we need not compare (a)(4)(i) to (a)(4)(ii), as Appellant suggests, but instead we evaluate (a)(4)(ii) independently.
¶ 14 Appellant presented expert testimony at trial regarding the medical effect of alcohol on individuals. Appellant's expert witness testified that available scientific *63 and medical evidence does not support a finding of intoxication when an individual's BAC is .02%. Further, the expert opined that at a BAC of .02%, the effects of alcohol are minimal and would not significantly impair a minor or an adult's ability to drive. While we agree with Appellant's position that the record contains no evidence that this minimal amount of alcohol has an effect on an individual, we cannot agree that this statute is irrational or arbitrary.
¶ 15 The trial court exhaustively discussed the rationale behind (a)(4)(ii), and we adopt it:
Minors, unlike adults, are not allowed to consume alcoholic beverages. The legislature had the power, if it so desired, to set a .00 level, for zero tolerance. However, by setting a .02 level, Pennsylvania is virtually enacting a zero tolerance law, due to variances in the alcohol testing instruments. Therefore, the .02 figure is not arbitrary. Further, pursuant to the National Highway Systems Designation Act of 1995, starting in 1999, Federal Highway funds will be withheld from states that do not apply zero tolerance laws to persons under age 21, set a BAC of .02 or less, and establish.02 as a per se offense without having to prove intoxication. See 23 U.S.C.A. § 410.
The legislature's interest in reducing teenage traffic fatalities is also rationally related to the zero tolerance law. It has been proven that states with some type of zero tolerance laws have experienced a drop in the number of nighttime fatal crashes involving young drivers. In comparison states without zero tolerance laws experienced an increase. One study showed that states with zero tolerance laws reduced the number of nighttime fatal crashes involving young drivers by 16 percent, while states without zero tolerance experienced a 1 percent increase. Since is (sic) has been established that Section 3731(a)(4)(ii) is rationally related to a legitimate state interest, it therefore does not violate the Defendant's due process rights under the Pennsylvania Constitution or the Constitution of the United States.
Trial Court Opinion, 12/1/99, at 8-9 (citations omitted) (emphasis added).
¶ 16 In his third allegation of error, Appellant argues that § 3731(a)(4)(ii) creates an unconstitutional mandatory and permissive presumption in violation of the Fifth Amendment to the United States Constitution and the Due Process Clause of the Pennsylvania Constitution. Appellant's brief at 13. Appellant argues that § 3731(a)(4)(ii) employs a presumption of intoxication once the Commonwealth offers proof that an individual's BAC was .02 or higher. Appellant asserts that the prosecution need not prove that there was intoxication and driving at the same time, only that the per se intoxication of .02 or higher occurred. Appellant further argues that the Due Process Clause requires the state to persuade the finder of fact beyond a reasonable doubt that the BAC at the time of driving relates to some scientific standard. Appellant concludes that § 3731(a)(4)(ii) relieves the Commonwealth from proving an element of the crime beyond a reasonable doubt.
¶ 17 We disagree. 75 Pa.C.S. § 3731(a)(4)(ii) created a separate and distinct offense from 75 Pa.C.S. § 3731(a)(1). Conviction under § 3731(a)(4)(ii) requires proof beyond a reasonable doubt that the actor drove, operated, or was in actual physical control of a motor vehicle while his BAC was .02 or greater. The Commonwealth is not required to produce evidence of intoxication as part of a § 3731(a)(4)(ii) prosecution. There is no language in the statute whereby a BAC of.02 is deemed to be per se intoxication.
¶ 18 Appellant contends that because the heading of the statute implies an allegation of driving while intoxicated, a conviction based on a BAC of .02 creates an unconstitutional presumption of intoxication. The plain language of § 3731 *64 criminalizes driving while under the influence of alcohol or controlled substances. An individual can be convicted under this stature if intoxicated, if a controlled substance was taken that substantially impairs the ability to drive, if the BAC is .10 or greater, or if the BAC is .02 or greater and the actor is under the age of twenty-one. While some individuals may have a false, preconceived idea of the conduct prohibited by § 3731, this fact does not render the statute unconstitutional.
¶ 19 Lastly, Appellant argues his conviction under § 3731(a)(4)(ii) must be reversed because "the statutory presumptive inference set forth in subsection (A.1) on which the convictions was [sic] based is constitutionally invalid." Appellant's brief at 15. We are not able to address the merits of this claim due to the fact it is not properly before us. In his brief in support of motion to dismiss count II, Appellant failed to raise this claim. Further, Appellant did not argue this point at the September 1-2, 1999 oral argument on the motion to dismiss.
¶ 20 This issue was presented to the trial court after sentencing on September 13, 1999, in the form of a motion to amend Appellant's motion to dismiss. The trial court denied the motion on the same day without hearing argument on the merits of the issue. It is well established that issues not raised during trial may not be raised on appeal. Commonwealth v. Edmondson, 553 Pa. 160, 718 A.2d 751 (1998). Accordingly, we may not consider this issue on appeal.
¶ 21 Judgment of sentence affirmed.
NOTES
[1] 75 Pa.C.S. § 3731(a)(1).
[2] 75 Pa.C.S. § 3731(a)(4)(ii).
[3] National Highway Traffic Safety Administration, U.S. Department of Transportation. "The Facts: Zero Tolerance." (May 1998). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2450394/ | 733 S.W.2d 175 (1987)
Joe Angel CORDOVA, Appellant,
v.
The STATE of Texas, Appellee.
No. 69096.
Court of Criminal Appeals of Texas, En Banc.
March 11, 1987.
*177 Will Gray, Houston (court-appointed), for appellant.
John B. Holmes, Jr., Dist. Atty., Winston E. Cochran, Jr. and Keno Henderson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
TEAGUE, Judge.
Joe Angel Cordova, hereafter referred to as appellant, appeals his conviction for capital murder, i.e., the murder of Masel Williams which was elevated to capital murder because appellant committed the offense of murder while in the course of committing and attempting to commit the offense of robbery of Williams, which was the aggravating circumstance that made the offense capital murder. Pursuant to the affirmative answers to the special issues that the jury answered, the trial court sentenced appellant to death by lethal injection. We affirm.
Appellant, through counsel, presents to us eleven reasons why this Court should set aside the trial court's judgment of conviction and sentence of death. We will overrule each of them, and affirm.
In six "points of error",[1] counsel asserts that the trial court erred in not granting his challenges for cause made as to prospective jurors Kucera, Bair, Kruse, Guest, Sullivan, and Link; in three points of error, counsel asserts that the trial court erred in sustaining the State's challenges for cause as to prospective jurors Sims, Detorre, and *178 Hampton; in one point of error, counsel asserts that the trial court's charge to the jury at the punishment stage of the trial was deficient; and in his last point of error counsel complains of the prosecuting attorneys' arguments that were made at the punishment stage of the trial.
Appellant does not challenge the sufficiency of the evidence, either as to guilt of the capital murder of Williams or as to the jury's answers to the special issues that were submitted to it at the punishment stage of the trial. Nevertheless, because of some of appellant's points of error, we will briefly highlight for the reader some of the facts of the case.
Shortly after midnight on February 27, 1982, appellant, Richard Segura, Edward Gamino, David Mendoza, and Paul Guillory, appellant's fifteen-year-old nephew, left a lounge located in Houston, after apparently ingesting some of the spirits that the lounge owner sold, and thereafter, in Segura's automobile, drove around in the northeast part of Houston. While doing this, they all apparently, either expressly or implicitly, singularly or collectively, agreed to commit a robbery in a convenience store. Appellant, who was then armed with a shotgun, was described as being "crazy drunk". After the group located what they considered "a good place to rob," appellant, armed with the shotgun, and Guillory went inside the store but because they saw a patrolling police car they decided not to commit the robbery and left the store only to find that Segura, who had remained inside of the automobile which he had driven to the store, and who could have also seen the patrolling police car, had driven off in the car leaving the rest of the group stranded on the outside of the store. The group, sans Segura, with appellant still armed with the shotgun, then commenced walking down Little York Road where they encountered a person later identified as Williams, the deceased, who was then in a telephone booth using a telephone.
Williams' wife, Seina, testified that Williams left their residence in their black Cadillac automobile around 9:00 p.m. on the night in question to go and shoot pool. Rather than go and shoot pool, however, Williams went to June Evans', his girlfriend's residence. Williams soon left Evans' residence to visit his mother. For reasons not clearly reflected in the record, Williams left Evans' residence in her 1979 Buick automobile, which had personalized license plates, "J Evans". At approximately 2:30 a.m. in the morning in question, Williams telephoned Evans from a telephone booth informing her that he had locked the car keys to her car inside of the car and needed Evans to bring him another set of keys. We are not apprised how Williams arrived at that location or how he managed to lock the car keys inside of Evans' car. When Evans inquired where he might be, Williams told her he did not know. Evans testified that she then heard noises in the background and also heard Williams state, "Man, where am I?" Williams then said to Evans: "Hardy and Little York." Evans then put Williams on hold so that she could go and see if she could find someone to take her to Williams' location. After successfully finding someone, Evans returned to the telephone, picked it up, but after putting the receiver to her ear she heard nothing since the line was then dead. Evans and a neighbor soon thereafter went to the intersection of Hardy and Little York but they saw neither Williams nor her vehicle. Evans later recovered her automobile in Laredo, sans a back window, which had been broken out since she had last seen her vehicle.
We now return to the location where Williams was last heard from.
While in the telephone booth, and using the telephone, presumably speaking to Evans, Williams, while holding the telephone, saw appellant's group, apparently walking near where he was situated. He did not know any of the group. He called them over to the telephone booth where he was and asked them if they "knew where [he] was," but someone in the group told him he did not know the name of the street on which they were then standing. Someone in the group then asked Williams if he would give them a ride. Williams told that *179 person that he could not do so because he had locked the car keys inside of the car. At this time, appellant "threw down" on Williams with his shotgun, after which Williams hung up the telephone. Soon thereafter, Mendoza, using the shotgun, broke out one of the back windows to Evans' automobile, thus enabling the group to get inside of Evans's vehicle, after which they stole the vehicle. Thereafter, the group, with Williams, then left that location. When appellant pointed the shotgun at Williams, Williams realized that his life might be in danger. Williams began pleading, "Please don't kill me." When appellant demanded that Williams turn over to him what money he had, Williams responded: "I ain't got no money, I just like you are, I need a job too." Thereafter, the group, with their kidnapped victim Williams, with appellant driving, went to a location on Mohawk Street, where a short distance from the street, but in a very wooded area, Williams soon met his death. Williams, who was then alone with appellant, was shot at close range with the shotgun by appellant, which caused Williams' death.
The group then left that location, and Williams' almost nude body, and went to the residence of one Ramos where appellant sold the shotgun to Ramos for $100.
After selling the shotgun to Ramos for $100, the group, now consisting of appellant, Guillory, and Mendoza, soon thereafter drove into Mexico in Evans' automobile. The record reflects that after the group left Ramos' house, appellant, who was then driving Evans' car, let Gamino out near the residence of a person who was Gamino's friend. After the group returned to a Texas border crossing location, due to the border guards becoming suspicious of them, appellant fled but was subsequently arrested in Houston. Apparently, Guillory and Mendoza were arrested by border patrol agents and later returned to Houston.
Williams' almost nude body was found the next morning by, strange as fate might have it, Guillory's brother. The police were notified.
Careful police investigation, with assistance from Guillory, Mendoza, and Gamino, together with oral incriminating admissions by appellant, caused the police to reconstruct what had happened to Williams on the night and morning in question, which we have above highlighted.
Appellant did not testify and presented no evidence at either the guilt or punishment stages of the trial.
The State established at the punishment stage of the trial that the then almost thirty-one-year-old appellant previously had been convicted of the felony offenses of robbery by assault and burglary of a building, for which he served time in the Department of Corrections.
In points of error numbered one through six inclusive, appellant's counsel asserts that the trial court erred in not sustaining his challenges for cause as to prospective jurors Kucera, Bair, Kruse, Guest, Woods, and Link. We disagree.
Appellant claims that his challenge for cause as to prospective juror Kucera should have been sustained because Kucera's "personal experiences would have affected both his consideration of the evidence and his deliberations." We disagree.
In Barrow v. State, 688 S.W.2d 860, fn. 1 (Tex.Cr.App.1985), this Court recently reaffirmed the proposition that "The key to the analysis of the propriety of all rulings upon challenges for cause is not the use or lack of use of a single word but the import of the voir dire of the veniremen taken as a whole." Also see Jernigan v. State, 661 S.W.2d 936, 942, fn. 8 (Tex.Cr.App.1983).
Kucera's voir dire taken as a whole reflects that Kucera, who had previously served as a juror in a murder case and in another criminal case in which the only defensive issue was apparently the defendant's insanity, almost immediately told the trial judge that he did not know of any reason why he could not be a fair and impartial juror if selected as a juror to hear this case and also, again almost immediately, told a prosecuting attorney that he could follow the statutory scheme in answering the special issues if he found appellant guilty of capital murder, and would *180 answer the special issues either in the affirmative or negative depending on the evidence that had been presented. When asked by the prosecuting attorney, "Anything that you can think of that might cause you not to be a fair and impartial juror in this case?", Kucera responded: "I don't know. There's only one thing. I am in a neighborhood where we have had a rash of burglaries in the last two or three years and got so bad that we couldn't depend on the city police over there. We have had to get the constable over there and we're paying extra money over there to get that in there and the burglaries have stopped." Kucera also testified that he could set aside his feelings that resulted from what he had vicariously experienced, "I imagine so." When examined by defense counsel, Kucera, who stated that his residence had not been one of those in his neighborhood burglarized, and who never stated that he personally had been the victim of a criminal act, detailed the criminal break-ins and robberies that some of his neighbors had sustained. Kucera admitted that the above "might influence [him] ... in considering the evidence in this case since it involves an allegation of robbery." When counsel for appellant succeeded in getting Kucera to admit that he could not be a fair and impartial juror because of the above, counsel then challenged Kucera for cause. The prosecuting attorney then reexamined Kucera. Kucera testified that "I would say our neighborhood problems are not as paramount as they were because we do have the protection over there. I would say the evidence would be what I would have to stand on there." Kucera then testified that he "believed" that he could be a fair and impartial juror. The trial judge then denied the challenge. Defense counsel then continued to examine Kucera, after which Kucera testified that "Each case would be [judged] on its own merits, just as in our neighborhood over there, that each case was a little different deal there ... I would listen to the law on that and be governed by the law on the case ... [Before answering questions], I would go back to the evidence that was submitted on that." Kucera again stated that even though what had happened in his neighborhood would still be in his mind, he believed that he "probably could be" a fair and impartial juror, and that in any event he would judge the case "on the merits of the case." Defense counsel thereafter used one of his peremptory strikes on Kucera.
We agree with the State that we must first decide whether Kucera "demonstrated either a bias against the appellant as a person or a bias against some phase of the law upon which the appellant is entitled to rely," (page 2 of State's brief), because a juror is subject to challenge for cause by the defendant if he has a bias or prejudice against the defendant or if he has a bias or prejudice against any phase of the law upon which the defendant is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor. See Art. 35.16(a)(9), supra, and 35.16(c)(2), supra. We answer the questions in the negative.
We find that the voir dire examination of Kucera taken as a whole does not reflect or indicate that Kucera had any personal feelings against appellant, who he testified he did not know. He never stated that he would hold appellant responsible, either directly or indirectly, for what had occurred in his neighborhood, or that he would consider what had occurred in his neighborhood in deciding appellant's guilt or the answers to the special issues, or that he would not follow the law as given by the trial judge in deciding guilt or the special issues on punishment. Furthermore, at no time did Kucera state that his vicarious experience would prevent him from giving appellant the presumption of innocence, or that such would cause him to lessen the State's burden of proof on guilt or on the special issues, nor did he ever express the belief that his vicarious experience caused him to form the opinion that appellant was then guilty or that if he voted to find appellant guilty that his vicarious experience would cause him to automatically answer the special issues in the affirmative, resulting in the trial court assessing the sentence of death. In sum, at no time did *181 Kucera expressly state that his vicarious experience would influence or affect him in deciding appellant's guilt, or in answering the special issues in the event there was a finding that appellant was guilty of capital murder, or in following the trial court's instructions to the jury on the law of the case. In short, a careful reading of the voir dire examination of Kucera does not reflect or indicate that his vicarious experience "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). Whatever "effect" the vicarious experience might have had on Kucera, he never testified that such would cause him to be unwilling or unable to obey the law or follow the oath of a juror. The testimony of Kucera, when taken as a whole, does not reflect or indicate that he was disqualified, as a matter of law, from serving as a juror in this case. E.g., Ex parte Russell, 720 S.W.2d 477 (Tex.Cr.App.1986); Mann v. State, 718 S.W.2d 741 (Tex.Cr.App.1986); Peters v. State, 575 S.W.2d 560 (Tex.Cr. App.1979); Anderson v. State, 633 S.W.2d 851 (Tex.Cr.App.1982); Barefoot v. State, 596 S.W.2d 875 (Tex.Cr.App.1980). Although not cited in either the State's or appellant's brief, we find that this Court's recent decision of Holloway v. State, 666 S.W.2d 104 (Tex.Cr.App.1984), in which this Court reversed the trial judge's judgment and sentence in a non-capital felony case because the trial judge erroneously failed to sustain the defendant's challenge for cause to a prospective juror, though similar factually to Kucera's voir dire examination, is easily distinguishable.
There, the prospective juror stated that her residence had recently been burglarized by an unknown burglar or burglars. She stated that she was not sure how that personal experience would affect her if she were selected as a juror. She also testified that she did not know, because of her experience, whether she could presume the defendant innocent. She further testified that she might find the defendant guilty because of her experience, "I hope I wouldn't, but I don't know"; "I don't know whether I would or not." She lastly testified that because of what had happened to her she might lessen the State's burden of proof. Given what we have set out, the challenger in that cause, who had the burden of proof, clearly demonstrated for the record through the juror's answers that she could not be a fair and impartial juror, or that her personal experience was such that it would have prevented or substantially impaired the performance of her duties as a juror in accordance with the trial court's instructions on the law and her oath as a juror. As easily seen, what occurred in Holloway, supra, and what occurred here makes the two cases easily distinguishable. Appellant's first point of error is overruled.
We next address appellant's counsel's complaint that his challenge for cause as to prospective juror Bair should have been sustained because Bair "showed his bias in favor of the death penalty which would have affected both his consideration of the evidence and his deliberations." We must again disagree with appellant's counsel.
The voir dire examination of Bair reflects that Bair first told the trial judge that he "strongly advocated the death penalty," and based on conversations that he had had with persons who had served time in the penitentiary he had concluded that all "three to five time losers" rightfully deserve to receive the death penalty. Bair, however, also told the trial judge that because he might find someone guilty of capital murder did not mean that he would automatically answer the special issues in the affirmative. Bair further told the trial judge that if the State failed to prove the appellant's guilt beyond a reasonable doubt he would vote to find the appellant not guilty. During one of the prosecuting attorneys voir dire examination, Bair told the prosecuting attorney, inter alia, what he had told the trial judge. When examined by one of appellant's attorneys, Bair told counsel that "If the man is guilty, walked in [to court?] and said, `To hell with it,' then yes, I do [believe that person should be sentenced to death]," thus demonstrating that he wanted such a defendant not to *182 come before him and display an air of arrogance or lack of remorse. However, Bair never stated that he would require appellant or anyone else to testify and demonstrate the fact that he was repentant or remorseful over what he had done. Bair also told defense counsel that he had some strong views regarding why he thought our parole system and the criminal justice system in general were fouled up. Bair further made it known to counsel he was concerned about persons who had been victims of criminal acts, which is understandable. Notwithstanding his strong, and probably erroneous legal views, Bair also testified that he could set aside his strong feelings and possibly erroneous legal views if selected as a juror in appellant's case. He testified that he would have no problem "segregating" his strong feelings and beliefs in deciding the appellant's guilt or answering the special issues on punishment in the event appellant was found guilty. Bair also testified that his beliefs would not cause him to lessen the State's burden of proof, "They have still got to jack up, stand up and say we know, we have, we showthey have to." Appellant's challenge for cause was overruled by the trial judge, after which his counsel used a peremptory strike on Bair.
We also observe, although the record is not as clear as it could have been, that after Bair was excused, and after he left the courtroom, he exclaimed to four other prospective jurors who were seated outside the courtroom that "he really wanted to fry the guy"; that "the defendant was so scared that he couldn't even swallow"; that he thought "that the defense lawyer was a real slick lawyer." By agreement, the four prospective jurors who heard what Bair had stated to them were excused by the cautious trial judge.
Much of what we have stated regarding appellant's first point of error is applicable here. We agree with the State that "Bair, like Kucera, was the kind of venireman for whom peremptory strikes were designed." We are unable to state, as a matter of law, that Bair's views, as stated on the record, are such to allow us to conclude that they would have prevented him from performing his duties as a juror in accordance with the law and his oath as a juror, had he been selected as a juror.
Was Bair shown to be biased against the law, as a matter of law? Recently, in Clark v. State, 717 S.W.2d 910, 917 (Tex. Cr.App.1986), this Court reaffirmed the following principles of law: "When a prospective juror is shown to be biased against the law, as a matter of law, he must be excused when challenged for cause, even if he states that he can set his bias aside and be a fair and impartial juror. Anderson v. State, supra. If the juror states that he believes that he can set aside any biases he may have, and the trial court overrules a challenge for cause, its decision will be reviewed in light of all of the answers the prospective juror gives. Anderson v. State, supra." In Clark, supra, this Court, quoting from Pierson v. State, 614 S.W.2d 102 (Tex.Cr.App.1981) (On original submission), held that "Under Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980), prospective jurors who have serious attitudes, but who nonetheless state that they can honestly determine the facts and abide by the law, may not be excluded from jury service" under the principle of law stated in Witherspoon v. Illinois, supra. Also see Mays v. State, 726 S.W.2d 937 (Tex.Cr.App.1986).
After having reviewed Bair's in court voir dire examination in its entirety, we are unable to conclude that counsel for appellant established as a matter of law that Bair was subject to a challenge for cause.
What effect, however, do the statements that Bair made outside of the courtroom, that were introduced into evidence through unobjected to hearsay testimony of a witness, have on the above? Unobjected to hearsay has now been held by a majority of this Court to have probative value. See Chambers v. State, 711 S.W.2d 240 (Tex.Cr.App.1986). Thus, in light of Chambers, supra, we cannot ignore the out-of-court statements that Bair made, notwithstanding the fact that they came into evidence through hearsay testimony. We must thus decide whether as a matter *183 of law Bair's in-court testimony combined with his out-of-court statements caused him to be subject to a challenge for cause by appellant. We answer the question in the negative. The trial judge, who heard and witnessed Bair's in-courtroom voir dire examination, is the same person who was made aware of Bair's out-of-court statements. By again denying appellant's challenge for cause he undoubtedly concluded that Bair was not subject to a challenge for cause because he had a bias or prejudice against appellant. We find Bair's statement "he wanted to fry the guy" could be interpreted not to mean that he had prejudged appellant's guilt or in the event that appellant was found guilty of capital murder that he had not already decided that the answers to the special issues should be answered in the affirmative. Given the ambiguity of what Bair's out of court statement, that "he wanted to fry the guy," might mean, we believe that this is a situation where we must defer to the trial judge. E.g. Wainwright v. Witt, supra. Given the fact that the trial judge saw and heard Bair in the courtroom, and later heard what Bair had stated outside the courtroom, and denied the reurged challenge for cause, we are unable to conclude that Bair left the trial judge with the definite impression that he would not be able to faithfully and impartially follow the trial court's instructions on the law and his oath as a juror if he had been selected as a juror. Bair was not as a matter of law subject to a challenge for cause. The trial judge did not err in not granting appellant's challenge for cause. Appellant's second point of error is overruled.
In his third point of error, counsel for appellant asserts that prospective juror Kruse was subject to a challenge for cause because Kruse demonstrated during his voir dire examination "his bias in favor of the death penalty which would have affected both his consideration of the evidence and his deliberations." Again, we must disagree with counsel.
Kruse, who apparently previously served as the jury foreman in a criminal case, first told the trial judge that he did not know of any reason why he could not be a fair and impartial juror. Kruse next told one of the prosecuting attorneys, among other things, that he would assess the death penalty if it were established that the crime committed was shown "to be very violent or possibly mass [murder]." Kruse told one of appellant's attorneys that in the event that he found a defendant guilty of capital murder he would "possibly" assess the death penalty; that he would "not necessarily" assess the death penalty if he found a person guilty of capital murder; "I don't have anything against voting for capital punishment, but I [also] don't have anything against voting for life imprisonment, depending on the violence of the crime"; "To me there are different violences involved in a crime." Kruse then gave counsel examples of how he viewed violent crimes differently even though each example he gave was committed in a violent manner. Thus, Kruse made it clear that he would not place all crimes committed in a violent manner in the same category.
Given the totality of the voir dire examination of Kruse, we are unable to hold as a matter of law that the trial judge erred in not sustaining counsel's challenge for cause. Although Kruse testified in a general way that his views for the death penalty "would influence his considerations of the evidence in any murder case," a careful reading of the entire, and remaining, voir dire examination of Kruse leads us to the inescapable conclusion that Kruse was not prohibited, as a matter of law, from serving as a juror in this cause. Kruse was not subject to a challenge for cause. Appellant's third point of error is overruled.
Appellant's counsel asserts in his fourth point of error that prospective juror Guest was subject to his challenge for cause because "his bias in favor of the death penalty would have affected both his consideration of the evidence and his deliberations." Again, we must disagree with counsel.
Guest was shown to be the type of prospective juror who basically believes that if a defendant were found guilty of a crime he should be punished in accordance with *184 the Biblical admonition, "an eye for an eye and a tooth for a tooth". In that regard, Guest basically believed that if one person murdered another person, then that person forfeited his life by his act of murder. Guest also testified that "if [a person] is found guilty, punishment should be given [and,] [i]f it called for death, yes, sir, I feel like, you know, punishment should be given if it called for death." Guest further stated that he would not automatically vote to impose the sentence of death in every capital murder case: "I feel like there are exceptions to everything"; "I feel like that he can be put out of society without being killed but in most cases, yes, I feel like that he should be put to death but there are exceptions." Guest also stated that he could put his strong feelings aside if selected as a juror: "Just because I say an eye for an eye, a tooth for a tooth doesn't mean that I cannot be fair ... to my fellow man"; I feel like that I can be fair in my judgment whether he was either guilty or not ..."; "He's innocentin my books he's innocent until it's proven without a reasonable doubt that he is guilty ... And if he is found guilty, I feel like that, you know, he should be put to death ..." Guest later clarified his last statement when he stated that he would not automatically vote to assess the death penalty if he found someone guilty of capital murder but would make that decision based upon "the evidence given to [him]."
Nevertheless, Guest responded to the following question by appellant's attorney, "But if he's convicted of the offense of capital murder, you would vote for the death penalty?," as follows: "Yes, sir, I would say so, yes, sir." Thus, without more, Guest was probably then subject to a defense challenge for cause.
However, but thereafter, Guest told one of the prosecuting attorneys several times that "If the court instructed him to set [his] feelings aside and base [his] decision to these questions based solely on the evidence," he was capable of doing that, and that he would answer the special issues "solely on the evidence and nothing else." "Question by prosecuting attorney: So if the State did not bring you sufficient evidence that proved that the answers to these questions should be yes, you could say no, is that fair? A: Yes, sir. Q: Even though you knew the defendant was going to get life? A: Yes, sir."
The record reflects that appellant's counsel did not seek to further question Guest. The trial judge overruled his challenge for cause after the above questions were asked and answered.
Viewing the entire voir dire examination of Guest, we conclude that he was not disqualified, as a matter of law, from serving as a juror.
Although a juror might express strong feelings for imposing the sentence of death, if he also unequivocally states that he could set aside those feelings and follow the trial court's instructions on the law and would base his verdict or his answers to the special issues on the evidence adduced, such person is not disqualified as a matter of law from serving as a juror in a capital murder case in this State. See Anderson, supra. Where the prospective juror states that he believes that he can set aside any influences he may have, and the trial court overrules the defendant's challenge for cause, the trial court's decision will be reviewed in light of all the answers the prospective juror gives. Anderson v. State, supra. After having carefully reviewed the voir dire examination of Guest, we conclude that the trial court did not err in overruling appellant's challenge for cause. Appellant's fourth point of error is overruled.
Appellant's counsel asserts in his fifth point of error that the trial court erred in not sustaining his challenge for cause as to prospective juror Sullivan. He asserts that Sullivan could not consider the minimum punishment of five years' imprisonment if the jury found the appellant guilty of the lesser included offense of murder. Once again, we must disagree with appellant's counsel.
Sullivan, who had previously served as a juror in a criminal case, almost immediately told the trial judge that she did not know of anything that would cause her to be other *185 than a fair and impartial juror if selected as a juror in this cause, and would decide both the appellant's guilt and, if she found appellant guilty, the answers to the special issues solely upon the evidence adduced. In fact, Sullivan's responses to the trial judge reflect that her decisions in resolving any disputed facts or issues would be strongly affected by the evidence that was presented to her.
In response to one of the prosecuting attorney's questions, Sullivan made it clear that she was very much in favor of the death penalty, but she also made it clear, at least implicitly, that she would not automatically vote to impose the death penalty merely because she had voted to find someone guilty of capital murder. Sullivan also made it clear that she was very much in favor of the presumption of innocence and believed that the State had the burden to prove its case beyond a reasonable doubt. It is obvious to us from her answers that when one of counsel for appellant questioned Sullivan regarding the possibility of finding the appellant guilty of the lesser included offense of murder and assessing the minimum punishment for that offense, counsel's questions were not as clear as they should have been. Reading the questions from a cold record, we find that they are not very well articulated. However, when one of the prosecuting attorneys again questioned Sullivan on this subject, Sullivan made it clear for the record that she would be able to consider imposing the minimum punishment for the offense of murder if she found a defendant guilty of that offense. Neither of appellant's attorneys sought to further question Sullivan after she gave her last expression on the subject.
A prospective juror who demonstrates a bias against a phase of the law upon which the defendant is entitled to rely is subject, as a matter of law, to a challenge for cause under Article 35.16(c)(2), V.A.C.C.P. E.g., Jordan v. State, 635 S.W.2d 522 (Tex.Cr. App.1982), and Barrow v. State, supra, in which this Court reversed where it was established as a matter of law that the prospective jurors could not consider the minimum punishment for the hypothetical lesser included offense of murder that they were given. Here, however, Sullivan's final response clearly demonstrates that she could consider the minimum punishment for the lesser included offense of murder. Viewing her voir dire in its entirety, we find that Sullivan did not demonstrate an inability to consider the full range of punishment, including the minimum punishment, for the lesser included offense of murder. Also see Williams v. State, 622 S.W.2d 116, 121 (Tex.Cr.App.1981) (Teague, J., dissenting opinion). The trial court did not err in denying appellant's challenge for cause. His fifth point of error is overruled.
In his sixth point of error, appellant's counsel asserts that the trial judge erred in sustaining the State's challenge for cause as to prospective juror Sims. We again must disagree with counsel.
Almost immediately, Sims made it known to all that because of her religious beliefs she was strongly against the death penalty: "I don't think I could give the death penalty to anyone ... I just don't believe in it... I don't believe in the death penalty." She also stated that she could not participate in a proceeding where the death penalty might result; that she could not find someone guilty of capital murder if a possible punishment was death; that she would vote "no" to one of the special issues regardless of the evidence so that the death penalty could not be assessed. When examined by one of appellant's attorneys, Sims again made her views known: "I just said I don't think I could sentence anybody to death. That's what I am saying." Sims, however, did state that if selected as a juror she would try to fairly and impartially decide appellant's guilt, "I can find [him] guilty." However, when it came to answering the special issues, Sims again stated, "I just wouldn't be able to, you know, to say that [he] was to die, that is what I was talking about," thus making it clear for the record that her religious views would cause her to answer at least one of the special issues in the negative to prevent the death penalty from being assessed, "I couldn't answer [the special issues] fair, I don't think."
*186 We find and hold that Sims' views on the death penalty were such that they would have prevented or substantially impaired the performance of her duties as a juror if she had been selected as a juror in this cause. See Clark v. State, supra.
Before a prospective juror is qualified to sit as a juror, that person must unequivocally demonstrate for the record that he or she would not disregard his oath or the trial court's instructions on the law in deciding both guilt and punishment. Thus, a prospective juror who unequivocally demonstrates for the record that he could fairly decide the issue of guilt, but would not be able to decide the issue of punishment or answer special issues fairly and impartially based upon the evidence, is a disqualified, as a matter of law, prospective juror. Thus, the prospective juror must be able to fairly and impartially judge and decide not just one issue; he or she must be able to fairly and impartially judge and decide both the defendant's guilt as well as the punishment to be assessed, or, in capital murder cases, the answers to the special issues. In this instance, even if we assume that Sims could have been a fair and impartial juror in deciding appellant's guilt, we are still confronted with the fact that she stated that her religious views regarding the death penalty would have prevented her from serving as a fair and impartial juror in answering the special issues. Sims was thus subject to the State's challenge for cause and the trial judge did not err in sustaining the State's challenge for cause. Appellant's sixth point of error is overruled.
Appellant's counsel asserts in his seventh point of error that the trial court erred in sustaining the State's challenge for cause as to prospective juror Detorre, in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). He also asserts in his eighth point of error that the trial judge erred in sustaining the State's challenge for cause as to prospective juror Hampton, also in violation of Witherspoon v. Illinois, supra. We again must disagree with appellant's counsel.
Because the two points of error are virtually identical, we will consolidate them for review purposes.
Much of what we have previously stated regarding appellant's sixth point of error, regarding prospective juror Sims, is applicable to our following disposition of appellant's seventh and eighth points of error, which we will overrule.
In Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985), the Supreme Court modified its opinion of Witherspoon v. Illinois, supra, upon which appellant's counsel relies, which had held that potential jurors may be excused for cause only when their opposition to the death penalty is such that they would automatically vote against a sentence of death or would be impaired in the task of determining the defendant's guilt. Witt, supra, however, held that the proper test is not whether the record shows with unmistakably clarity that that person would automatically vote against the death penalty, but is instead whether the juror's views on capital punishment would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." 469 U.S. at 424, 105 S.Ct. at 852. Witt, supra, also made it clear that the trial judge's determination that a potential juror is impermissibly biased is a factual finding. Also see Darden v. Wainwright, 477 U.S. 187, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986). However, as we pointed out in Clark v. State, supra, at 915, this does not mean that the trial judge's decision is either not reviewable or is entitled to a presumption of correctness by an appellate court. Instead, "We review such decision with our eyes focused upon the entire written transcription of the voir dire interrogation of the challenged prospective juror who is held by the trial judge subject to or not subject to a challenge for cause by one of the parties."
Detorre first told the trial judge that even if she were convinced that the answers to the special issues had been established beyond a reasonable doubt she would not answer them in the affirmative because of her beliefs regarding the death penalty. *187 She also told the trial judge that she could not set her beliefs aside and base her answers solely on the evidence. She told one of the prosecuting attorneys that because of her beliefs, if selected as a juror in this cause, she did not think she would be a fair and impartial juror because her beliefs regarding the death penalty would influence her verdict. Detorre did state, however, that she "might go with capital concerning a [defendant who killed] a young child." However, when examined by one of appellant's attorneys, Detorre affirmatively stated for the record that her beliefs against the death penalty would prevent her from judging the appellant's guilt, but that she would "try" to not let those beliefs interfere with her decision. She then stated unequivocally and rather plainly that she simply could not participate in the decision making process of the punishment stage of a capital murder case knowing that the death penalty might result if she answered the special issues in the affirmative. Nevertheless, she stated that she would "try" to answer the issues correctly. However, when asked the following, "Do you think that you would let your feelings affect your deciding a fact, whether or not something occurred? You could disbelieve something simply because of your feelings, or you would follow the law and if something was believable as far as the first part of the case, you would return a true verdict that reflected the truth. Can you do that?", Detorre responded: "I think what it boils down to, probably not." Soon thereafter, the trial judge sustained the State's challenge for cause.
Hampton, who was only questioned without objection by the trial judge, initially told the trial judge that because of her feelings about the death penalty she thought that it might be impossible for her to answer the special issues in the affirmative, even if the State proved to her satisfaction beyond a reasonable doubt that the questions should be answered in the affirmative: "I can't say yes. I would have to say no." She also stated that the State could never present sufficient evidence that might cause her to answer the special issues in the affirmative. She told the trial judge that because of her beliefs she could not take the juror's oath if selected. She further stated to the trial judge that she could not envision a case where she could answer the special issues in the affirmative.
We find that both Detorre and Hampton were not only excludable under the more stringent disqualification test set out in Wainwright v. Witt, supra, but were also excludable under the more liberal disqualification standard set out in Witherspoon v. Illinois, supra.
In Witherspoon, supra, the Supreme Court held that a juror was subject to being challenged for cause only if he made it unmistakably clear that he would automatically vote against the imposition of the death sentence without regard to any evidence that might be developed at the trial, or that his attitude toward the death penalty was unmistakably clear that such would prevent him from making an impartial decision as to the defendant's guilt or his punishment or in answering the special issues.
In Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980), the Supreme Court also stated that a prospective juror may be challenged for cause only if his views on the death penalty were unmistakably clear that such would prevent or substantially impair the performance of his duties as a juror in accordance with the trial court's instructions and his oath as a juror. It also held, however, that the State may insist that prospective jurors will consider and decide the facts impartially and would conscientiously apply the law as charged by the court.
In Wainwright v. Witt, supra, the Supreme Court lessened the standard for disqualification that it had framed in Witherspoon v. Illinois, supra, and promulgated the standard that it is only when the juror's views are such that they would prevent or substantially impair the performance of his duties as a juror in accordance with his oath and the trial court's instructions that the juror is subject to being challenged for cause.
*188 Either expressly or implicitly, the record reflects or indicates that both Detorre and Hampton's beliefs regarding the death penalty make it unmistakably clear that such would prevent or substantially impair the performance of their duties if they had been selected as jurors. Contrary to counsel for the appellant, we find that both Detorre and Hampton unequivocally demonstrated on the record that they would automatically vote against the imposition of the death penalty without regard to any evidence that might have been developed at appellant's trial, either on the issue of guilt or on the special issues. There is no ambiguity in what both Detorre and Hampton stated. There is also no ambiguity in our holding that appellant's points of error are overruled.
Appellant's counsel asserts in his ninth point of error that the trial court erred in denying his challenge for cause as to prospective juror Link. Once again we must disagree with appellant's counsel.
Link, whose residence had been twice burglarized, first told the trial judge that he had no objections to the death penalty being assessed one convicted of capital murder. Our reading of Link's entire voir dire examination leads us to the conclusion that Link would have been a more than acceptable juror for the prosecution. When questioned by one of appellant's attorneys, Link also stated that he believed that the death penalty was an appropriate punishment, "[I]n some cases ... I feel that it is probably applicable in many, but not all, and particularly violent crimes against a person, maybe not necessarily resulting in the death of that person may be appropriate." Link expressed dissatisfaction with the fact that even though he was aware as a citizen that some defendants who had been convicted of capital murder, who he believed had had fair trials and their convictions had been affirmed, which conclusion apparently came from what he had read and heard, none had not been executed by the authorities.[2]
Link, however, also stated that before he would vote to impose the death penalty it would be necessary for the State to present him with "a sufficiently good case." He also stated that appellant could rest assured that "he would receive a fair hearing on punishment from me." We believe that the following answer that Link gave might best summarize what he was trying to tell counsel for appellant: "I have no particular qualms about applying the death penalty [or imposing a life sentence], but I also do not feel that [either] has to be applied." Link also stated that if appellant were found guilty of capital murder, it was his "personal opinion that [he, Link,] could answer both of the questions independent of that guilty assessment." When Link was questioned regarding his view that he would not give much, if any, weight to intoxication or age as mitigating circumstances, he stated that he did not "necessarily find youth to be an excuse or a mitigating circumstance for the perpetration of a violent crime." Link also expressed the view that he did not consider intoxication to be an adequate excuse for committing the offense of capital murder. However, Link also testified that he would not rule out a defendant's youthfulness or his intoxication at the time of the commission of the offense as mitigating factors or circumstances; he simply would not give them "much weight". As previously pointed out, appellant was thirty years of age when he committed the murder of Williams and had twice been sent to the penitentiary for at least two felony offenses. Given appellant's age, we are at a loss to understand how his chronological age, standing *189 alone, might have been a migitating factor or circumstance in how the jury might have decided the answers to the special issues.
In Texas, voluntary intoxication is no defense to the commission of a criminal wrong. See V.T.C.A., Penal Code, Section 8.04(a). However, such may become mitigating evidence to the penalty attached to the offense for which the defendant is being tried if the intoxication caused temporary insanity. See Section 8.04, supra.
Appellant's challenge for cause was denied, and, because appellant had exhausted his peremptory strikes, Link became the twelfth juror. A request by one of appellant's attorneys for additional peremptory strikes was denied by the trial court.
Based upon the above views that Link had, regarding youth and intoxication as mitigating factors, appellant's counsel asserts that in light of Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982); and Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978), Link was incapable of following the law and his challenge for cause should have been sustained. We once again must disagree with appellant's counsel.
Our understanding of both Eddings, supra, and Lockett, supra, is that the Supreme Court did not mandate that a prospective juror must give any amount of weight to any particular fact that might be offered in mitigation of punishment, nor has our research to date revealed where this Court has ever laid down such a requirement. We believe that when properly read, Eddings, supra, and Lockett, supra, merely held that the fact-finder must not be precluded or prohibited from considering any relevant evidence offered in mitigation of the punishment to be assessed, or in answering the special issues. The decisions of the Supreme Court, and of this Court, do not, however, require an affirmative instruction that the fact-finder must give any specified weight to a particular piece of evidence, as appellant's counsel appears to contend. The amount of weight that the fact-finder might give any particular piece of mitigating evidence is left to "the range of judgment and discretion" exercised by each juror. See Adams v. Texas, supra, 448 U.S. at 46, 100 S.Ct. at 2526. Under our capital punishment scheme and procedures, mitigation is given effect by whatever influence it might have on a juror in his deciding the answers to the special issues. Also see Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976).
Here, Link explicitly stated that he would consider evidence of intoxication and the appellant's age as mitigating circumstances, but he did not personally believe or think they were entitled to much, if any, weight. Thus, Link effectively agreed to follow the law. He never testified that he would not consider intoxication and age as mitigating evidence or circumstances, nor did he state that he would not consider such in deciding the special issues. The trial court's denial of appellant's challenge for cause did not constitute error. Appellant's point of error is overruled. Also see our discussion post regarding appellant's tenth point of error, which asserts that the trial judge was obligated to give the jury an affirmative instruction on intoxication as a mitigating circumstance.
Appellant's counsel asserts in his tenth point of error that "The trial court committed reversible error in refusing to charge the jury that intoxication could be considered by it in mitigation of punishment." Once again, we must disagree with counsel.
At trial, counsel objected to the charge on punishment, "because it fails to instruct the jury to affirmatively consider intoxication and any other mitigating factors raised by the evidence at either stage of the trial in answering the special punishment issues." His objections were overruled.
Much of what we have previously stated under our discussion involving prospective juror Link is applicable here.
Although the issue has been presented in many different forms, this Court has consistently rejected the contention that the Texas statutory capital murder scheme and the Fifth, Eighth, and Fourteenth Amendments to the Federal *190 Constitution require that the trial court give an affirmative instruction that the jury must consider or apply mitigating evidence in their deliberations. As previously pointed out, we find nothing in either Eddings, supra, or Lockett, supra, that would mandate the giving of a general or special instruction on mitigating evidence. E.g., Demouchette v. State, 731 S.W.2d 75 (Tex. Cr.App.1986). Also see Quinones v. State, 592 S.W.2d 933, 947 (Tex.Cr.App.1980), in which this Court held that no such affirmative instruction was necessary because "The jury can readily grasp the logical relevance of mitigating evidence to the issue of whether there is a probability of future criminal acts of violence. No additional charge is required."[3]
In reference to appellant's counsel's contention in his tenth point of error, that the jury should have been affirmatively instructed on voluntary intoxication as a mitigating factor on punishment, counsel does not point out where in the record appellant presented sufficient or any evidence that might have raised the issue of temporary insanity caused by intoxication, and our reading of the record has yet to reveal where the issue of temporary insanity by reason of voluntary intoxication was raised by the evidence. We assume that counsel is referring to the testimony that depicted appellant as being "crazy drunk" during the morning when he murdered Williams.
Section 8.04(b) of the Penal Code, however, only provides as follows: "Evidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried." Neither the statute nor our case law construing the statute permits the inference that merely where one presents evidence that he was intoxicated or "crazy drunk" when he committed the crime that this automatically means that when the individual committed the crime he was then temporarily insane by reason of voluntarily ingesting a known or unknown quantity of a liquid or solid intoxicating substance into his body, and our research has yet to reveal any legal or scientific authority that would support such a conclusion.
In Sawyers v. State, 724 S.W.2d 24 (Tex. Cr.App.1986), eight members of this Court approved the majority opinion that held that before it is necessary for the trial court to affirmatively instruct the jury on voluntary intoxication as mitigating evidence at the punishment stage of the trial, in accordance with the provisions of V.T. C.A., Penal Code, Section 8.04, it is first necessary that the defendant establish that the intoxication rendered him temporarily insane, i.e., his voluntary intoxication caused him (1) not to know his conduct was wrong or (2) it caused him to be incapable of conforming his conduct to the requirements of the law he violated.
Also see Hart v. State, 537 S.W.2d 21 (Tex.Cr.App.1976), in which this Court held that where the evidence showed that the defendant was merely voluntarily intoxicated, such did not require the submission of an affirmative instruction on temporary insanity caused by voluntary intoxication.
We have carefully read the record in this cause in order to see if there is any evidence that might have raised the issue of temporary insanity caused by intoxication, but have yet to find any such evidence, and, as mentioned, counsel for appellant does not direct our attention to any place in the record where the evidence might be interpreted to mean that appellant was *191 temporarily insane by reason of voluntary intoxication when he murdered Williams.
The trial court did not err in failing to affirmatively instruct the jury at the punishment stage of the trial in accordance with counsel for appellant's wishes. Appellant's tenth point of error is overruled.
In his eleventh and last point of error, appellant's counsel complains of statements that the prosecuting attorneys made when they argued to the jury at the punishment stage of the trial. We find that both sides during their jury arguments actually either encouraged or discouraged the jury to consider mercy or sympathy for the appellant in answering the special issues.
The prosecuting attorney who led off for the State told the jury in his argument that appellant's attorneys "will be asking you for mercy and they will be asking you to look at mitigation in this case. I am asking you as well as all the people involved in this case [are asking you] to follow your oath and base your decision not on emotional appeal, but on the facts of the case." No objection was made by either of appellant's attorneys to this argument. Thereafter, one of appellant's attorneys argued: "You can consider mercy [in deciding the special issues]." Appellant's other counsel thereafter argued with an analogy to Jesus Christ: "I am not here to ask for mercy, as [the prosecuting attorney] suggested. And you are not here to base your opinion on mercy unless we all forget that in ten days we will celebrate the birthday of a person who was executed nineteen hundred eightytwo years ago. He was shown no mercy, and I am not suggesting Joe Angel Cordova [appellant] compares in two words to [Jesus Christ], but the principles are the same." The other prosecuting attorney, in his closing remarks, argued that "the first thing that caught me or caught my attention was this idea of, we are not asking for mercy. This is exactly what I thought they were asking for. Throughout the entire voir dire, the whole questioning, the whole purpose of voir dire was to see if you could set aside your personal feelings and decide this case based upon the law and the evidence. But yet, [the defense attorneys] kept bringing up the idea of stick to your feelings." It was then that one of appellant's attorneys voiced an objection, arguing in his objection that "The jurors are to take their feelings into consideration in determining these issues." The trial judge did not rule on the objection, he, instead, merely instructed the jury that "The jury has been charged on the law and they will determine the facts, they will deliberate and decide those as they see fit."
Given the above, it is highly questionable whether what appellant's counsel says is error has been properly preserved for review. It is now axiomatic that the failure of a defendant to timely and properly object to the argument of the prosecutor relegates him to the rule that unless the argument of the prosecutor is so prejudicial that no instruction could cure the harm, the failure to object waives any error. See, for example, Losada v. State, 721 S.W.2d 305 (Tex.Cr.App.1986). He must also pursue that objection until he obtains a ruling from the trial judge. See Verret v. State, 470 S.W.2d 883, 886 (Tex.Cr.App.1971).
We will assume, however, that the issue is properly before us for review.
We find that the objected to argument should have been overruled.
We find that in principle what was stated in Mann v. State, 718 S.W.2d 741 (Tex.Cr. App.1986), is applicable here.
There, the issue concerned whether jurors were disqualified because of their "emotional" feelings about the death penalty. The majority opinion held that "a person may be challenged for cause based on his views on capital punishmentwhether those views be `intellectual' or `emotional' if those views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" The majority opinion also pointed out that when he questioned a venireman, "the prosecutor wanted to know if, as required by the oath under Article 35.22, the veniremember could base his decision on the evidence and not permit feelings alone about the death penalty generally or in relation to the defendant to change his vote." The disqualified jurors *192 had stated that "despite evidence proving that the death penalty was warranted, if they felt, emotionallynot based upon evidence, but strictly upon their feelings that the defendant should not be given the death penalty, they would not answer the issues affirmatively." The majority opinion then points out the fine distinction between the prospective juror who, notwithstanding his emotions, would not reject the State's favorable evidence or would have a reasonable doubt as to the guilt of the defendant or the answers to the special issues simply on emotions, which does not disqualify him from serving in a capital murder case, and the prospective juror who states that his emotions would cause him to essentially ignore the proven facts or the law, which causes him to be subject to a State's challenge for cause. In other words, if a prospective juror makes it known that his emotions or feelings about the death penalty would control his deliberations and his answers to the special issues, despite evidence beyond a reasonable doubt that is contrary to those emotions and feelings, that person is subject to a challenge for cause by the State. Otherwise, he is not.
In this instance, we believe that the prosecuting attorneys, in both the opening argument that one of the prosecuting attorneys made, as well as the objected to argument, they were simply attempting to remind the jurors what they had told both sides during voir dire examination, that they would be fair and impartial in deciding the answers to the special issues, and would decide the special issues on the basis of the evidence and not their emotions. In short, although we find that they could have better articulated what they were attempting to say to the jurors, the prosecuting attorneys were doing nothing more than simply reminding the jurors of the above fine distinction, were also urging the jurors not to let their emotions and feelings cloud their judgments, and not be enslaved by their emotions in deciding the special issues. We find that this type argument, although it could have been better articulated, is permissible. E.g., Alejandro v. State, 493 S.W.2d 230, 231-232 (Tex.Cr. App.1973).
Appellant's last point of error is overruled.
Having carefully reviewed all of appellant's points of error, and not having found any that would legally warrant this Court setting aside the trial court's judgment and sentence, the trial court's judgment and sentence are affirmed.
ONION, P.J., and CLINTON and CAMPBELL, JJ., concur in the result only.
NOTES
[1] Cautious appellate counsel for appellant, who was also one of appellant's attorneys at trial, has phrased his contentions as "points of error" rather than "grounds of error". This is understandable. Prior to the promulgation of the new Rules of Appellate Procedure which became effective September 1, 1986, such were labeled "grounds of error". See Tex.R.Crim.Pro. 301; Art. 40.09(9), V.A.C.C.P. Since then, they are to be referred to as "points of error". See Tex.R.App.Proc. 74(d); 210(b). Although appellant's appellate brief was filed prior to September 1, 1986, we will consider his contentions as "points of error" rather than "grounds of error."
[2] We pause to point out that shortly after Link became a juror in this cause, and during appellant's trial, Texas ended its 18 year moratorium on executions, when on December 7, 1982, it executed Charlie Brooks, Jr., see Brooks v. State, 599 S.W.2d 312 (Tex.Cr.App.1979). We cannot, of course, state that had Link known what was soon to take place, when he was questioned on voir dire, that this would have affected any of the answers he gave. However, given the fact that Brooks' execution received an enormous amount of publicity, it would have been virtually impossible for Link not to have been aware of same, and the fact that Link did serve as a juror in this cause, and voted in such a manner as to cause the death penalty to be assessed, we doubt that it would have had any effect on him.
[3] The trial court's charge to the jury at the punishment phase of the trial included an instruction "that in determining each of these Special Issues you may take into consideration all of the evidence submitted to you in the full trial of the case, including both the guilt and punishment phases." We find and hold that this instruction sufficiently instructed the jury, albeit indirectly, that it could consider any mitigating evidence in determining the answers to the special issues. This instruction clearly permitted the jurors to give whatever weight they desired to any mitigating evidence that was then properly before them for their consideration. Thus, the jurors were not prohibited or precluded from considering appellant's age or his intoxication at the time of the commission of the offense. The weight to be given to those items was left strictly to their discretion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611124/ | 166 N.W.2d 705 (1969)
Florence M. BUTLER, Appellant,
v.
MINNEAPOLIS POLICE RELIEF ASSOCIATION, Respondent.
No. 41257.
Supreme Court of Minnesota.
March 14, 1969.
*706 Sydney Berde, St. Paul, for appellant.
Glenn D. McCarty, Minneapolis, for respondent.
Heard before KNUTSON, C. J., and NELSON, SHERAN, PETERSON, and FRANK T. GALLAGHER, JJ.
OPINION
SHERAN, Justice.
Appeal from an order granting defendant's motion for involuntary dismissal and the judgment entered pursuant thereto and from an order denying plaintiff's motion for a new trial.
Plaintiff, Florence M. Butler, is the widow of William C. Butler, who had been employed for 31 years by the Minneapolis Police Department at the time of his death on January 14, 1957. On January 21, 1957, plaintiff made written application to defendant association for the widow's pension provided for by L.1953, c. 127, § 6,[1] and Article X, Section 2, of defendant's bylaws.[2] She renewed her request on February 4, 1957. Approximately 2 weeks later defendant, in a letter dated February 14, 1957, denied the application on the grounds that (1) at the time of his death and for some years prior thereto plaintiff and her husband had been "living apart"; (2) he did not contribute to her support; and (3) she was not dependent on him for support. No further action was taken by plaintiff until the present action was commenced on October 27, 1964.
To establish her right to pension benefits, plaintiff must meet and comply with the terms, conditions, and requirements established by L.1953, c. 127, § 6, and defendant association's articles of incorporation and bylaws as they existed on January 14, 1957, the date her husband died.
"* * * That the law in force when the claim to pension arises governs the right to the pension is settled by Gibbs v. Minneapolis Fire Department Relief Assn., 125 Minn. 174, 145 N.W. 1075, Ann.Cas.1915C, 749." State ex rel. Krake v. Minneapolis Fire Dept. Relief Assn., 205 Minn. 54, 55, 284 N.W. 884, 885.
1. In our opinion, plaintiff was not "residing with" her husband at the time of his death.
*707 William Butler and plaintiff were married on August 1, 1928, in Minneapolis. They lived together as man and wife from the time of their marriage until late 1935 or early 1936, when Mr. Butler left the marital residence to live at the home of his mother. In the fall of 1937 plaintiff and Mr. Butler commenced living together again and continued to do so for approximately 12 years until March 1949, when Mr. Butler again removed himself from the home. From March 1949 to the date of his death, Mr. Butler stayed with his mother at 1810 Newton Avenue North, Minneapolis, and plaintiff resided at 4414 17th Avenue South, Minneapolis.
State ex rel. Livingston v. Minneapolis Fire Dept. Relief Assn., 205 Minn. 204, 285 N.W. 479, dealt with a similar problem. In that case Livingston, retired on pension from the Minneapolis Fire Department, died. His surviving wife applied for a pension. She and Livingston had lived together as husband and wife from the time of their marriage until a few months after his retirement a period of about 23 years. Then, in 1913, Livingston left the marital domicile. He died on January 10, 1936. The parties stipulated that at the time of his death Livingston was not residing with the applicant for the widow's pension. This court there stated (205 Minn. 206, 285 N.W. 480):
"* * * That she was residing with him at the time of his death is the only matter in dispute, and the facts with respect thereto are settled by the stipulation of the parties that she did not reside with him at that time. The only question then is what effect, if any, does that have on her right to a pension. * * * Under the 1913 statute, a wife who had not deserted her husband pensioner was entitled to a pension. That definition was abandoned. The 1933 law has adopted a definition which requires that the wife reside with the pensioner at the time of his death. The language of the statute, `that when a service pensioner * * * dies, leaving, a widow, who was his legally married wife, residing with him,' is plain that the wife must have resided with the fireman pensioner at the time of his death. The change in the statute was adopted as a matter of legislative policy, the wisdom of which it is not for us to determine. The statute should be construed as it reads and effect given to the clear meaning of its language. It is clear that relator cannot qualify as a wife who resided with the pensioner at the time of his death. Hence she is not entitled to a pension."
Plaintiff had not lived with Mr. Butler for more than 7 years 9 months immediately prior to the date of his death. qualify under any meaning of the statute requiring her to be "residing with" Mr. To us, it is clear that plaintiff cannot Butler at the time of his death.
Plaintiff contends that the provisions of the applicable statute and of Article X, Section 2, of the association's bylaws, which exclude from the definition of "widow" a wife who deserted or was not dependent, manifest an intent that all widows (eligible on the basis of the fact and time of marriage) who did not desert and who were dependent should receive a pension. In our judgment, this is true only if the wife who did not desert and was dependent was "residing with" the pensioner or active association member at the time of his death.
2. Plaintiff's claim is also barred by the 6-year statute of limitations. Minn.St. 541.05.
The statute of limitations commences to run against a cause of action from the time the cause of action accrues or can be commenced. Ganser v. Ganser, 83 Minn. 199, 86 N.W. 18. With respect to a pension, the statute starts running when the claim for the pension is formally rejected. Dillon v. Board of Pension Com'rs. 18 Cal.2d 427, 116 P.2d 37, 136 A.L.R. 800; see, also, Lund v. Minneapolis Fire Dept.
*708 Relief Assn., 137 Minn. 395, 163 N.W. 742; 40 Am.Jur., Pensions, § 38; Annotation, 136 A.L.R. 809.
Plaintiff was advised on February 14, 1957, that her application for pension had been denied. At this date, her cause of action accrued and the statute of limitations started running. Plaintiff took no further action to enforce her claim until October 27, 1964. This was an elapsed time of more than 7 years 8 months. Thus, her claim was barred by the statute of limitations.
Affirmed.
NOTES
[1] L.1953, c. 127, § 6, provided in part: "The association shall grant pensions or benefits payable from the policemen's pension fund to any member or to any widow or to any child under 18 years of age or any member from the time and for the following purposes:
"When a service pensioner, disability pensioner, or deferred pensioner, or an active member of a relief association dies, leaving
"(1) a widow, who was his legally married wife, residing with him, and who was married while or prior to the time he was on the payroll of the police department; * * *."
[2] "The term `widow' shall not include the surviving wife who has deserted a police officer or pensioner, or who has not been dependent upon him for support, nor shall it include the surviving common law wife of such police or pensioner." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/96350/ | 199 U.S. 372 (1905)
JACK
v.
KANSAS.
No. 54.
Supreme Court of United States.
Argued November 8, 1905.
Decided November 27, 1905.
ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.
*374 Mr. W.H. Rossington, Mr. Charles Blood Smith, Mr. J.T. Pringle and Mr. R.B. Gillerly submitted for plaintiff in error.
Mr. Edwin A. Austin, with whom Mr. C.C. Coleman, Attorney General of the State of Kansas and Mr. Otis E. Hengate were on the brief, for defendant in error.
*379 MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court.
The Supreme Court of Kansas has held in this case that the statute under which the plaintiff in error was sentenced to be imprisoned for a contempt of court was a valid statute, and did not violate either the constitution of the State or of the Federal Government.
One portion of the statute in question has already been passed upon by this court and decided to be a valid provision as construed by the state court. Smiley v. Kansas, 196 U.S. 447. The decision in that case has no application to the section involved herein.
It is contended on the part of the plaintiff in error that the court below denied to him the protection of section 10 of the bill of rights of the constitution of Kansas, and also denied to him the benefit of the provision of the Fifth Amendment to the Constitution of the United States, that no person should be compelled, in any criminal case, to be a witness against himself, and also that he has been deprived of the benefit of the Fourteenth Amendment. We are bound by the decision of the Supreme Court of Kansas that the statute in question violated no provision of the constitution of that State, and that it was a valid statute so far as that instrument was concerned. This doctrine is familiar, and a few of the many cases upon the subject are cited in Smiley v. Kansas, 196 U.S. supra.
It has been so frequently held, as not to warrant the citation of many authorities, that the first ten amendments to the *380 Federal Constitution operate on the National Government only, and were not intended to, and did not, limit the powers of the States in respect to their own people. Spies v. Illinois, 123 U.S. 131; Brown v. New Jersey, 175 U.S. 172, 174. That portion of the Fifth Amendment, therefore, already cited, has no application in a proceeding like this, in a state court, under a state statute.
The plaintiff in error, however, contends that the denial of his claim of right to refuse to answer the questions was in violation of the Fourteenth Amendment to the Constitution of the United States, and deprived him of his liberty without due process of law. This, in reality, is the sole question in the case. He contends that the immunity granted by the state statute, while enforcing the giving of testimony which may incriminate the party interrogated, as a violator of that statute, is not (and could not be) broad enough to provide immunity from prosecution under the Federal anti-trust statute, and that compelling him to answer questions under such circumstances, which might incriminate him as a violator of the Federal anti-trust statute, and upon his refusal condemning him to imprisonment, deprived him of his liberty without due process of law, within the meaning of the Fourteenth Amendment, and the statute is therefore void. The state statute could not, of course, prevent a prosecution of the same party under the United States statute, and it could not prevent the testimony given by the party in the State proceeding from being used against the same person in a Federal court for a violation of the Federal statute, if it could be imagined that such prosecution would be instituted under such circumstances. Is this fact fatal to the proceeding? We think not. Assuming for this purpose that if the statute failed to give sufficient immunity from prosecution or punishment, it would violate the Fourteenth Amendment, and that an imprisonment by virtue of the statute would be depriving the witness of his liberty, without due process of law, we come to an examination of the extent of the immunity in this case.
*381 The question has been before this court in cases somewhat similar to this, although they arose under Federal statutes. In Counselman v. Hitchcock, 142 U.S. 547, the immunity provided for by section 860 of the Revised Statutes was held not to be broad enough to enable the prosecution to insist upon an answer from the witness. In the subsequent case of Brown v. Walker, 161 U.S. 591, the statute there involved was held to afford complete immunity to the witness, and he was therefore obliged to answer the questions that were put to him, although they might tend to incriminate him. In that case it was contended, on the part of the witness, that the statute did not grant him immunity against prosecutions in the state courts, although it granted him full immunity from prosecution by the Federal Government. This contention was held to be without merit. While it was asserted that the law of Congress was supreme, and that judges and courts in every State were bound thereby, and that therefore the statute granting immunity would probably operate in the state as well as in the Federal courts, yet still, and aside from that view, it was said that while there might be a bare possibility that a witness might be subjected to the criminal laws of some other sovereignty, it was not a real and probable danger, but was so improbable that it needed not to be taken into account.
The Supreme Court of Kansas has held in this case that in the proceeding under the section in question the witness can only be asked material questions relating to information regarding any alleged violation of the statute relating to transactions within the State, and that it would not be material, and consequently not permissible, to ask a witness in relation to matters of interstate commerce, which might constitute a violation of the Federal anti-trust act. Therefore, the opinion continued, if in the course of an examination properly made, in regard to transactions within the State, information should incidentally be given which might possibly be used in a prosecution under the Federal act; such possible prosecution did not operate as a reason for permitting the witness to refuse to *382 answer; that it could not be presumed that under such circumstances any Federal prosecution would ever take place, and that it was, within the reasoning of Brown v. Walker, supra, a danger so unsubstantial and remote that it was not necessary (as it was impossible) for the statute to provide against it. We regard this as a sound view. We do not believe that in such case there is any real danger of a Federal prosecution, or that such evidence would be availed of by the Government for such purpose. We think the legal immunity is in regard to a prosecution in the same jurisdiction, and when that is fully given it is enough. The principles underlying the provision itself have been thoroughly treated in the above cited cases, and it would be out of place to here renew their discussion.
We are of opinion that no Federal right of the plaintiff in error has been violated, and the judgment of the Supreme Court of Kansas must, therefore, be
Affirmed.
MR. JUSTICE BREWER and MR. JUSTICE McKENNA dissented. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2587811/ | 205 P.3d 102 (2009)
226 Or. App. 604
STATE
v.
BAGUIAO.
Court of Appeals of Oregon.
March 19, 2009.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610029/ | 249 Minn. 24 (1957)
81 N.W. (2d) 89
ADDISON MILLER, INC.
v.
COMMISSIONER OF TAXATION.
No. 36,908.
Supreme Court of Minnesota.
February 8, 1957.
Oppenheimer, Hodgson, Brown, Baer & Wolff and J.R. Oppenheimer, for relator.
Miles Lord, Attorney General, and Arthur C. Roemer, Special Assistant Attorney General, for respondent.
FRANK T. GALLAGHER, JUDGE.
Certiorari to the Board of Tax Appeals upon the relation of Addison Miller, Inc.
This case involves a relationship between two business entities, one named Addison Miller Company, the other named Addison Miller, Inc.
It appears from the record that prior to 1938 Addison Miller, Inc., hereinafter referred to as the corporation, was engaged in the business *25 of performing certain services for railroad companies, such as laying tracks, maintenance work on railroad tracks, cleaning and otherwise servicing railroad cars, and operating ore docks, etc.
In the year 1937 a partnership was formed by the same persons with the partners having the same shares of ownership as they had as stockholders in the corporation. Essentially the partnership engaged in the same activities as the corporation, and it further appears that for practical purposes the corporation ceased carrying on such business. It also appears that the contracts under which the corporation was performing the services for the railroad companies were renegotiated by the railroads with the partnership. The equipment necessary to perform these various services continued to be owned by the corporation. It was stipulated by the parties to this suit that during the taxable years in question the corporation rented this equipment to the partnership for an amount equivalent to the annual depreciation allowable for Federal and state income tax purposes. It was further stipulated that during these taxable years, namely, the years 1940 and 1942 through 1947, the partnership was indebted to the corporation in an average amount each year from $310,602.56 to $208,894.47. These amounts were carried on the partnership books as an open account due the corporation. It was pointed out on oral argument by the attorney for the corporation that what actually had happened was that the partnership just used the money from the corporation as it was needed.
The commissioner of taxation, under M.S.A. 290.34, subd. 1, increased for Minnesota income tax purposes the amount of income by way of rent for the equipment to the corporation and also increased the corporation's gross income by way of interest, which increase was measured by four-percent simple interest on the average amount of indebtedness due the corporation each year from the partnership. It was stipulated that the indebtedness was subject to oral agreement between the corporation and the partnership that no interest was to be charged upon the amounts owing from time to time; that no interest was ever in fact paid to the corporation; and that there was never at any time an interest obligation upon *26 which the corporation could have successfully maintained a suit and recovered judgment against the partnership. As the commissioner had entered a separate order for each of the years involved determining and assessing additional income tax against the corporation for the above-mentioned years, the corporation appealed from each of the seven orders of the Minnesota Board of Tax Appeals. Inasmuch as all of the seven cases involved the same facts and legal principles, varying only as to the amount involved for each year, they were consolidated for hearing before that board. The Board of Tax Appeals affirmed the commissioner's order for each of the seven cases and wrote a memorandum which was applicable to each of the cases.
On certiorari to this court it is the contention of the corporation that: (1) The order in each of the cases was not in conformity with the law; (2) that the findings of fact for each of the cases were contrary to and not sustained by the evidence.
1. With respect to the first assignment of error, § 290.34, subd. 1, reads as follows:
"Conducting business in such a way as to create losses or improper net income. When any corporation liable to taxation under this chapter conducts its business in such a manner as, directly or indirectly, to benefit its members or stockholders or any person or corporation interested in such business or to reduce the income attributable to this state by selling the commodities or services in which it deals at less than the fair price which might be obtained therefor, or buying such commodities or services at more than the fair price for which they might have been obtained, * * * the commissioner of taxation may determine the amount of its income so as to reflect what would have been its reasonable taxable net income but for the arrangements causing the understatement of its taxable net income or the overstatement of its losses, having regard to the fair profits which, but for any agreement, arrangement, or understanding, might have been or could have been obtained from such business."
The Board of Tax Appeals in its memorandum interpreted this statute to mean that when either one of four circumstances are present *27 the commissioner may determine the amount of the corporation's income as was done in this case. We here set forth the first two of those circumstances only as the third and fourth are not involved in this case. Viewed as interpreted by the board, the statute would read as follows:
CONDUCTING A BUSINESS IN SUCH A WAY AS TO CREATE
LOSSES OR IMPROPER NET INCOME.
When any corporation liable to taxation under this chapter conducts its business in such a manner as, directly or indirectly,
1. to benefit its members or stockholders or any person or corporation interested in such business or
2. to reduce the income attributable to this state by
(a) selling the commodities or services in which it deals at less than the fair price which might be obtained therefor, or
(b) buying such commodities or services at more than the fair price for which they might have been obtained.
It is the position of the corporation that this statute would apply only if there was a buying or selling of commodities or services in which the corporation deals. It then contends that such buying or selling is not involved in this case. On the other hand, the Board of Tax Appeals takes the view that the buying or selling of commodities or services is not necessary to the operation of this statute, inasmuch as the powers given the commissioner under § 290.34, subd. 1, may be exercised under No. 1 as interpreted by the Board of Tax Appeals.
We cannot subscribe completely to the board's view because its No. 1 and No. 2 when read in context in the original act set forth above are all in one sentence, and (a) and (b) apply to the whole sentence. On the other hand we are still of the opinion that the wording of the statute does apply to the facts presented in this case.
The corporation argues that the relationships involved here are those of lessor-lessee and debtor-creditor and that such relationships are entirely different from vendor-vendee relationships. The applicability of this statute could hardly turn on the necessity of finding a vendor-vendee relationship. The reason for this is that no one could argue that a corporation could avoid the effects of the statute *28 by merely giving away its commodities or services to its shareholders because the relationship thus created was that of donor-donee rather than vendor-vendee. In other words, it could not reasonably be said, where service and commodities had been given to the shareholders, that a sale had not taken place but merely a gift had been made and thus avoid the statute. For example, if the corporation were making desks, could it claim that a sale had not taken place if it gave them to the partnership, which in turn might sell them at a profit to a wholesaler? We think not because from a practical standpoint transactions are just not handled in that manner in the business world.
In the case at bar the partnership was able to commence and carry on business with the free use of corporation's money and land;[1] and was also able to have the necessary equipment to carry on the business by merely paying what was allowable on the corporation's tax returns as depreciation for such equipment. Who could say (even though the relationship technically created was that of lessor-lessee and debtor-creditor) that this corporation was not performing a valuable service for the partnership? The word "services" is not a simple word with a simple meaning leaving no room for construction but is a word with a multiplicity of meanings. Walling v. Public Quick Freezing & Cold Storage Co. (S.D. Fla.) 62 F. Supp. 924. It may be said that the word varies in meaning according to the context in which it is found. Further, it would be impracticable to attempt a definition which would form a test for every case that might arise. Journal Pub. Co. v. State Unemployment Comp. Comm. 175 Ore. 627, 155 P. (2d) 570. It has also been stated that the term "services" involves more than mere labor and signifies much more than merely the act of performing labor and may include, as well, expenditures, materials, and things furnished. People v. McCord, 15 Cal. App. (2d) 136, 59 P. (2d) 587.
We feel that the word "services" as used in this particular statute is broad enough to cover the particular services that the corporation was rendering its shareholders in this case, namely, that of allowing *29 them to use its money and land for nothing; and allowing them to rent the equipment necessary to carry on their business for the same amount the corporation was allowed to take as depreciation on such equipment. For these reasons we hold with respect to the corporation's first assignment of error that the orders of the Board of Tax Appeals affirming the commissioner's orders were in conformity with the law, and the Board of Tax Appeals must be affirmed in this respect.
2. In regard to the corporation's second assignment of error it is contended that the orders of the Board of Tax Appeals are not supported by the evidence. These orders affirmed the orders of the commissioner. Section 290.34, subd. 1, as cited above, empowers the commissioner to make a determination of what the corporation's income would have been without the arrangement causing the understatement of its taxable net income. In doing this the commissioner must take into consideration the fair profits the corporation could have or might have obtained in the absence of such an agreement. Section 271.06, subd. 6, makes the orders of the commissioner prima facie valid in every case.
The facts show that the partnership was indebted to the corporation during the following years in the following amounts:
1940 $208,894.47
1942 $294,012.02
1943 $310,602.56
1944 $247,572.45
1945 $220,384.38
1946 $261,151.13
1947 $303,336.47
With respect to the amounts of these indebtednesses the commissioner raised the income of the corporation in the following amounts for the following years:
1940 $ 8,355.78
1942 $11,760.48
1943 $12,424.10
*30 1944 $ 9,902.90
1945 $ 8,815.37
1946 $10,446.04
1947 $12,133.46
These increases were measured by applying a rate equal to four percent, simple interest, to the average of the beginning and ending of indebtedness for each of the years.
With respect to the rent it appears that the actual rent paid, based on the depreciation as shown on the corporation's tax returns, was in the following amounts for the following years:
1940 $31,943.47
1942 $56,969.22
1943 $76,907.76
1944 $90,801.23
1945 $96,212.34
1946 $58,796.94
1947 $46,669.08
The commissioner raised the income attributable to the corporation by increasing the above rents for the following years in the following amounts:
1940 $ 968.61
1942 $ 1,695.93
1943 $ 1,763.50
1944 $ 1,566.52
1945 $ 1,174.56
1946 $ 892.43
1947 $ 687.12
There is opinion testimony in the record by an employee of the partnership that similar rents could not have been obtained from a third party. He testified that the equipment was scattered over 110 locations between Chicago, Portland, and Seattle and that it would have been out of the question to collect the equipment and then rent it. However, there is no testimony in the record on behalf of the corporation that it could not have received more rent if it had *31 been willing to enter into an arrangement with a third party under which it would have assigned its contracts to such a stranger and let such a stranger use its money. Rather it appears to us that any stranger or third party offered such an arrangement as was furnished the partnership in the instant case would have paid at least what the commission here assessed.
We cannot say that the determination of the Board of Tax Appeals is arbitrary and unreasonable in affirming an increase of rental ranging from 1.2 percent to 3.1 percent, nor can we say, as contended by the corporation, that a four-percent interest charge on the sums of money involved in this case is unreasonable because these sums were carried on the partnership books as an open account. The undisputed fact is that the partnership used this money and paid no consideration for it. Thus it must be said that the order of the Board of Tax Appeals in this respect must also be affirmed.
Affirmed.
JUDGE THOMAS GALLAGHER took no part in the consideration or decision of this case.
NOTES
[1] The reason for this is that land may not be depreciated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610187/ | 865 So.2d 280 (2004)
STATE of Louisiana, Appellee
v.
Tommy L. LINGEFELT, Sr., Appellant.
No. 38,038-KA.
Court of Appeal of Louisiana, Second Circuit.
January 28, 2004.
Bertha M. Hillman, Louisiana Appellate Project, Thibodaux, for Appellant.
William R. Coenen, Jr., District Attorney, Penny Douciere, K. Douglas Wheeler, Assistant District Attorneys, for Appellee.
Before GASKINS, DREW and MOORE, JJ.
*281 GASKINS, J.
The defendant, Tommy L. Lingefelt, Sr., was charged with the offenses of: (1) manufacture of methamphetamine; (2) conspiracy to manufacture methamphetamine; and (3) possession of marijuana with intent to distribute. A jury found him guilty as charged on the first two counts, and guilty of the lesser and included offense of simple possession of marijuana on the third count. On the first count, the court imposed a sentence of 22 years at hard labor without benefits plus a fine of $50,000. On the second count, the court imposed a sentence of 10 years at hard labor, with five of those years to run consecutively with the sentence on count one. For the possession of marijuana, the court imposed a sentence of six months to be served concurrently with the other two sentences. The defendant filed a timely motion for reconsideration of sentence, which was denied. He now appeals.
FACTS
The defendant manufactured methamphetamine with his sons and other individuals at two residences in Richland Parish. He was arrested when the authorities investigated his son, James Thomas, and an associate, James Thornhill, following their purchase of items used in the manufacturing process. The police searched Thornhill's vehicle and found the items, as well as methamphetamine and marijuana on Thornhill.
Based on details learned from that investigation, including information that the defendant had sent Thomas and Thornhill to purchase the materials, the police executed search warrants at the residences where the defendant and one of his sons lived. The search disclosed items needed to manufacture and use methamphetamine. They included an anhydrous ammonia tank and snorting straws, as well as two holes in the ground in which to hide buckets. Starting fluid and pseudoephedrine pills were found in a bucket in the defendant's bedroom, as were coffee filters. Five glass jars containing pseudoephedrine tablet residue were found in or near the buckets. Starting fluid and a container holding methamphetamine were found in the living room of the defendant's house. Two wooden spoons, used to mix pseudoephedrine and lithium, were also found inside the defendant's bedroom closet. The police found lithium batteries and recovered marijuana and marijuana seeds. The marijuana found in the defendant's bedroom weighed 122 grams.
The defendant made an out-of-court statement in which he admitted possession of the items by claiming he was holding them for someone else to cook. However, Thornhill testified at trial that he visited the defendant once or twice a week during the 18 months before his arrest, and the defendant kept the anhydrous ammonia tank to use in cooking methamphetamine. Thornhill explained that the defendant cooked methamphetamine at his trailer and at his house. He kept the materials for cooking in two buckets that he hid in a hole in the ground. The defendant usually cooked batches using 800 pseudoephedrine pills. Thornhill had seen the defendant going through the cooking process during the four days prior to his arrest. Thornhill also testified that on the day of their arrests, he and James Thomas went to buy the other items needed for the manufacturing process for the defendant.
William Henley, another associate of the defendant, testified at trial that he had seen the defendant cooking methamphetamine two to three times per week during the 18 months before the arrests. He also testified that on the day of the arrest, the defendant had already begun to soak pseudoephedrine pills, the first step in the *282 cooking process, and thus was "in the manufacturing process."
JURY INSTRUCTION
The defendant argues that the trial court erred in denying his objection to the state's proposed jury instruction.
During voir dire, trial and final argument, defense counsel maintained a theme that the defendant could only be found guilty of attempted manufacture. The state requested a special jury charge to define certain "technical" terms included in the statutory definition of manufacturing. The proposed instruction used the Webster's Collegiate Dictionary's definitions of "preparation," "compound," and "process." The court gave the requested special instruction to the jury.
The defense objected that the definition of "manufacture" meant a finished product had been achieved, rather than including the steps in the process. However, the defense's desired definition would not be in accord with the statute involved. The statutory definition of manufacture, La. R.S. 40:961(24), does not use the term "finished product"; it does use the phrase "production, preparation, propagation, compounding, or processing." Nor does the definition of production, La. R.S. 40:961(34), use the term "finished product."
La. C. Cr. P. art. 807 provides that the state and the defendant have the right to submit special charges for the jury. A requested special charge shall be given if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. The jurisprudence also requires that a requested instruction must be supported by the evidence. State v. Craig, 95-2499 (La.5/20/97), 699 So.2d 865, 869, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997).
The charge as given was accurate. As given to the jury, the instruction tracked the statutory language and came directly from a recognized dictionary. It was pertinent and supported by the evidence, including the facts that the defendant had started to soak his pseudoephedrine tablets and had procured other supplies to be used in the cooking process. There is no explanation of the defendant's claims that the instruction was overly broad or prejudicial.
This assignment of error lacks merit.
EXCESSIVE SENTENCE
The defendant asserts that the sentences imposed were excessive. He argues that the trial court did not give adequate consideration to all the sentencing guidelines in that only three of the 20 factors listed in La. C. Cr. P. art. 894.1 applied to him.
Prior to imposing sentence, the trial court reviewed a presentence investigation (PSI) report. The defendant was 51 years old at the time of sentencing. After reciting the evidence presented at trial, the court discussed the defendant's criminal history, which included convictions for reckless operation of a vehicle, speeding, resisting an officer, disturbing the peace, hit and run, simple burglary and DWI. Probation on the simple burglary was revoked when the defendant was convicted of possession of marijuana with intent to distribute. The court also reviewed his social history. He was the ninth of 13 children; his parents worked at various jobs, including farming. The defendant quit school in the seventh grade, but obtained a GED and a small engine certificate. He worked for a tree service and a gas station.
The defendant had three children from a marriage which ended in divorce in 1974. He married again, had two more children, and divorced in 1986. He lived with a *283 third woman from 1987 until 1999 and had two more children. All seven of his children were adults at the time of sentencing.
Information from the Richland Parish Sheriff's Department indicated the defendant had been manufacturing methamphetamine for approximately 20 years. He involved his family in the drug business and even bragged about how he had taught them the business. He had been heard in jail telling fellow inmates that when he got out he would start cooking again because it was easy money.
The court then reviewed a letter from the defendant and listened to him tell an elaborate story of cooking methamphetamine undercover at the request of the police, of his efforts to help people get off methamphetamine, and of the police's efforts to set him up. He denied having any prior dealings with crystal methamphetamine at any time in his life. He said the police were after him and that everything was a lie. He also disputed portions of his criminal record. The court noted that two of defendant's sons had pled guilty to drug charges in connection with this case.
The court found a high probability that the defendant would commit another crime if granted probation. He was in need of lengthy correctional treatment in a custodial environment. A lesser sentence would deprecate the seriousness of the offense. The court believed manufacture and conspiracy to manufacture methamphetamine were very serious offenses because the drug was ruining the lives of people in the parish and within the judicial district. The court found the defendant had been persistently involved in criminal activity. The defendant was a leader and organizer of his family and other young people in conspiring to manufacture and in manufacturing methamphetamine. The defendant had made money from his ongoing drug activities which threatened serious harm in the parish. The court felt the defendant contemplated or should have contemplated that his criminal conduct would cause or threaten serious harm to those who would be taking the drugs and learning how to manufacture them. There was no excuse or justification for the defendant's criminal conduct. Imprisonment would not entail excessive hardship on his dependents.
The jurisprudence holds that 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).
A trial court has broad discretion to sentence within the statutory limits. State v. Mandosia, 36,827 (La.App.2d Cir.4/9/03), 842 So.2d 1252. Absent a showing of manifest abuse of that discretion an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.
Here, the evidence demonstrated that the defendant had a history of involvement in the drug trade, including a prior conviction for possession with intent. The evidence showed that he had cooked methamphetamine many times, in fairly large batches, and he intended to do so again upon his release from confinement. He engaged in these activities for the economic benefit, without regard to the harm caused to those he supplied with drugs. He involved several young persons in his enterprise, including family members who now have convictions due to their association with him. Although he possessed a relatively large quantity of marijuana, he garnered a relatively light sentence for it. The sentences are lawful and are affirmed.
*284 This assignment of error is meritless.[1]
CONCLUSION
The defendant's convictions and sentences are affirmed.
AFFIRMED.
NOTES
[1] The defendant filed a pro se brief in which he alleged that his Fourth Amendment rights were violated because the searches were conducted without probable cause. This claim is waived when it is not raised prior to trial. La. C. Cr. P. art. 703. However, we note that the searches were conducted pursuant to warrants and there was testimony that prior to the warrants being issued, the police were given information that the drug-related offenses occurred on the defendant's property. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610283/ | 39 So.3d 1255 (2010)
Charlene M. BIFULCO, Petitioner,
v.
PATIENT BUSINESS & FINANCIAL SERVICES, INC., Respondent.
No. SC09-172.
Supreme Court of Florida.
June 24, 2010.
*1256 Frederick C. Morello and Michael G. Howard of Frederick C. Morello, P.A., Daytona Beach, FL, for Petitioner.
Thomas J. Leek and Kelly Victoria Parsons of Cobb Cole, Daytona Beach, FL, for Respondent.
Mark L. Zientz, Miami, FL, on behalf of Florida Workers' Advocates; and John C. Davis, Tallahassee, FL, on behalf of National Employment Lawyers Association, Florida Chapter, as Amici Curiae.
POLSTON, J.
In this case, we review the decision of the Fifth District Court of Appeal in Bifulco v. Patient Business & Financial Services, Inc., 997 So.2d 1257 (Fla. 5th DCA 2009), on the ground that it expressly and directly conflicts with the decision of the First District Court of Appeal in Kelley v. Jackson County Tax Collector, 745 So.2d 1040 (Fla. 1st DCA 1999), and the decision of the Third District Court of Appeal in Osten v. City of Homestead, 757 So.2d 1243 (Fla. 3d DCA 2000).[1] The issue is whether workers' compensation retaliation claims brought against the State under section 440.205, Florida Statutes (2004), are subject to the presuit notice requirements of section 768.28(6), Florida Statutes (2004).[2] For the reasons expressed below, we hold that the presuit notice requirements of section 768.28(6) do not apply to causes of action brought against the State under section 440.205.[3]
I. BACKGROUND
Patient Business & Financial Services (PBFS) is a nonprofit corporation established solely to perform billing services for Halifax Hospital Medical Center, which is a special taxing district of the State of Florida. Bifulco, 997 So.2d at 1257. Charlene Bifulco worked for PBFS as an admitting registrar from July 2002 until May 2004, when her employment was terminated. Bifulco filed suit against PBFS, alleging that she was fired in retaliation for filing a workers' compensation claim in violation of section 440.205, Florida Statutes. Id. The trial court granted summary judgment in favor of PBFS, concluding that Bifulco's "failure to provide presuit notice pursuant to section 768.28(6), Florida Statutes[,] was fatal to [her] claim." Id. In doing so, the trial court relied on the decision of the First District in Kelley, which affirmed the dismissal with prejudice of a complaint for retaliatory discharge under section 440.205 because the plaintiff had not complied with the presuit *1257 notice requirements of section 768.28(6). The First District in Kelley held that "[a]n action for retaliatory discharge under section 440.205 is clearly a `tort' within the meaning of section 768.28 and presuit notice is therefore required. Scott v. Otis Elevator Co., 524 So.2d 642 (Fla.1988) (holding that retaliatory discharge is tortious in nature)." Kelley, 745 So.2d at 1040-41.
On appeal, the Fifth District reversed the trial court's summary judgment. Bifulco, 997 So.2d at 1258. The Fifth District explained its reasoning for holding that the presuit notice requirements of section 768.28(6) are inapplicable to claims under section 440.205:
The sole purpose for the enactment of section 768.28 was to waive sovereign immunity for breaches of common law torts. Trianon Park Condo. Ass'n, Inc. v. City of Hialeah, 468 So.2d 912, 917 (Fla.1985). The condition precedent of presuit notice, created by section 768.28, was only intended to apply to suits for which immunity was waived by enactment of the statute, to wit: common law torts. A claim for violation of section 440.205, although perhaps tort-like in nature, is not a claim sounding in common law tort.
Id. Because Bifulco was not required to provide presuit notice to PBFS, the sole basis for the trial court's summary judgment was reversed. Stating that Kelley was "wrongly decided," the Fifth District acknowledged conflict with the First District in Kelley and the Third District in Osten.[4] We granted review to resolve this conflict.
II. ANALYSIS
Section 440.205 of the Workers' Compensation Law creates a cause of action for employees who are subject to retaliatory treatment by their employers for attempting to claim workers' compensation. Smith v. Piezo Tech. & Prof'l Adm'rs, 427 So.2d 182, 183-84 (Fla.1983). Specifically, section 440.205 provides the following:
No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law.
Section 440.02(16)(a), Florida Statutes (2004), defines "Employer" to include "the state and all political subdivisions thereof [and] all public and quasi-public corporations therein." And section 440.03, Florida Statutes (2004), provides that "[e]very employer and employee as defined in s. 440.02 shall be bound by the provisions of this chapter." Therefore, under the plain language of the Workers' Compensation Law, actions for workers' compensation retaliation are authorized against the State and any of its subdivisions, as employers. By enacting chapter 440, the Legislature waived sovereign immunity for workers' compensation retaliation claims when the State and its subdivisions are acting as employers. See Maggio v. Fla. Dep't of Labor & Employment Sec., 899 So.2d 1074, 1078-79, 1081 (Fla.2005) (explaining that the Florida Civil Rights Act's inclusion of the State as an "employer" subject to liability was "a waiver of sovereign immunity independent of the waiver contained in section 768.28").
Moreover, the Legislature's choice not to refer to section 768.28 within chapter 440 is additional evidence that claims brought under section 440.205 are not subject to the presuit notice requirements of *1258 section 768.28(6). When the Legislature has intended particular statutory causes of action to be subject to the requirements of section 768.28(6), it has made its intent clear by enacting provisions explicitly stating that section 768.28 applies. See, e.g., § 556.106(2)(a), Fla. Stat. (2004) ("Any liability of the state and its agencies and its subdivisions which arises out of this chapter shall be subject to the provisions of s. 768.28."); § 45.061(5), Fla. Stat. (2004) ("This section shall not be construed to waive the limits of sovereign immunity set forth in s. 768.28."); § 351.03(4)(c), Fla. Stat. (2004) ("Nothing in this subsection shall be construed to nullify the liability provisions of s. 768.28."); § 393.075(3), Fla. Stat. (2004) ("Nothing in this section amends, expands, or supersedes the provisions of s. 768.28."); § 395.50(5)(b), Fla. Stat. (2004) ("The provisions of this section do not supersede the provisions of s. 768.28.").
Similarly, in several instances, the Legislature has chosen to make the requirements of section 768.28(6) applicable by waiving sovereign immunity through reference to section 768.28 rather than through the definitions within a statutory cause of action. See, e.g., § 252.944, Fla. Stat. (2004) ("The commission and the committees are state agencies, and the members of the commission and committees are officers, employees, or agents of the state for the purposes of s. 768.28."); § 455.32(5), Fla. Stat. (2004) ("The provisions of s. 768.28 apply to each such corporation, which is deemed to be a corporation primarily acting as an instrumentality of the state....").
By contrast, the Legislature has made no indication that it intends the presuit notice requirements of section 768.28(6) to apply to causes of action brought under section 440.205. Instead of waiving sovereign immunity in such actions by referring to section 768.28, the Legislature chose to create liability through its specific and clear definition of "employer," which includes the State and its subdivisions. Because the Legislature did not refer to section 768.28 or its subsections within chapter 440, and explicitly authorized retaliatory discharge actions when the State is the employer, it is apparent that the Legislature intended to waive sovereign immunity in retaliatory discharge actions, independent of the waiver and notice provisions contained in section 768.28.
III. CONCLUSION
Because chapter 440 contains a waiver of sovereign immunity independent of the waiver contained in section 768.28, we hold that the presuit notice requirements of section 768.28(6) do not apply to retaliatory discharge actions brought against the State under section 440.205. Accordingly, we approve the holding of the Fifth District in Bifulco and remand for further proceedings. We also disapprove the decision of the First District in Kelley and the decision of the Third District in Osten to the extent they are inconsistent with this opinion.
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, LABARGA, and PERRY, JJ., concur.
NOTES
[1] We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
[2] There have been no changes to section 440.205 or section 768.28(6) since the claims arose in the case under review or the conflict cases.
[3] Bifulco also seeks review of the Fifth District's decision to affirm the trial court's summary judgment in favor of Patient Business & Financial Services on Bifulco's private whistle-blower claim. We decline to address this issue, which is beyond the scope of the conflict. See Kasischke v. State, 991 So.2d 803, 815 (Fla.2008).
[4] In Osten, the Third District explicitly agreed with and followed the First District's reasoning and holding in Kelley. Osten, 757 So.2d at 1244. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3041972/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-1633
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Robert D. Strong, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: March 12, 2007
Filed: March 30, 2007
___________
Before MELLOY, SMITH, and BENTON, Circuit Judges.
___________
PER CURIAM.
Robert D. Strong was convicted of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). Although Strong had at least three previous violent
felony convictions, the district court did not originally sentence him as an armed
career criminal because, at the time, the court believed that Blakely v. Washington,
542 U.S. 296 (2004), precluded it from finding facts relative to Strong's prior offenses.
On appeal, we affirmed Strong's conviction but reversed and remanded with
instructions to resentence Strong as an armed career criminal, finding that Strong's
prior convictions were violent felonies. United States v. Strong, 415 F.3d 902, 908
(8th Cir. 2005) (Strong I). In reaching this conclusion, we rejected the argument that
Almendarez-Torres v. United States, 523 U.S. 224 (1998), no longer had precedential
value. Strong, 415 F.3d at 906–07.
After Strong's petition for writ of certiorari was denied by the Supreme Court,
Strong v. United States, ___ U.S. ___, 126 S. Ct. 1121 (2006), the district court,
following our instructions, resentenced Strong as an armed career criminal. Strong
again appeals and again questions the continuing validity of Almendarez-Torres. For
the reasons stated in Strong I, we reject Strong's argument. Accordingly, we affirm the
judgment of the district court.1
______________________________
1
The Honorable Jean C. Hamilton, Chief Judge, United States District Court for
the Eastern District of Missouri.
-2- | 01-03-2023 | 10-13-2015 |
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
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<STRONG><CENTER>NO. 03-9<A NAME="1">7</A>-00<A NAME="2">352</A>-CV</CENTER>
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<STRONG></STRONG><CENTER><A NAME="3">City of Lockhart</A>, Appellant</CENTER>
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<P><STRONG><CENTER>v.</CENTER>
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<P><STRONG><CENTER><A NAME="4">David and Gloria Reyes</A>, Appellees</CENTER>
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<SPAN STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF <A NAME="5">CALDWELL</A> COUNTY, <A NAME="6">207TH</A> JUDICIAL DISTRICT</CENTER>
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<P><SPAN STYLE="font-size: 11pt"><STRONG><CENTER>NO. <A NAME="7">95-0-273</A>, HONORABLE <A NAME="8">DON B. MORGAN</A>, JUDGE PRESIDING </STRONG></SPAN><STRONG></CENTER>
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PER CURIAM
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<P> Appellant and appellees have filed a joint motion asking this Court to vacate the district
court's judgment and remand the cause to the district court for a disposition in accordance with the terms
of a settlement agreement. The motion is granted.</P>
<P> The judgment of the district court is vacated and the cause is remanded to the district court
for entry of judgment in accordance with the settlement agreement. Tex. R. App. P. 43.6. </P>
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<P>Before Justices Powers, Aboussie and B. A. Smith</P>
<P>Judgment Vacated and Cause Remanded on Joint Motion</P>
<P>Filed: December 18, 1997</P>
<P>Do Not Publish</P>
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</HTML> | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2441700/ | 5 A.3d 629 (2010)
COOK
v.
STATE.
Nos. 228, 2010, 284, 2010.
Supreme Court of Delaware.
September 14, 2010.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610326/ | 39 So.3d 1153 (2009)
Katrenia THOMPSON
v.
WACHOVIA BANK, NATIONAL ASSOCIATION.
No. 2080578.
Court of Civil Appeals of Alabama.
December 4, 2009.
*1154 Kenneth J. Lay and Jessica Powers Davis of Legal Services Alabama, Inc., Birmingham, for appellant.
Greggory M. Deitsch, R. Ryan Daugherty, and Jennifer M. Miller of Sirote & Permutt, P.C., Birmingham, for appellee.
BRYAN, Judge.
Katrenia Thompson ("Katrenia"), one of the defendants below, appeals from a partial summary judgment in favor of Wachovia Bank, National Association ("Wachovia"), the plaintiff below. We reverse and remand.
On October 1, 2007, Wachovia sued Katrenia and her siblings, Terrell Jones and Wanda Mitchell, in the Jefferson Circuit Court, stating a claim of ejectment. As the factual basis of its claim, Wachovia alleged that it had foreclosed on a mortgage on a home located at 2600 15th Street West in Birmingham ("the property"); that it had purchased the property at the foreclosure sale; that it had subsequently demanded that the mortgagors, Katrenia, Jones, and Mitchell, surrender possession of the property within 10 days; and that Katrenia, Jones, and Mitchell had not surrendered possession of the property within 10 days after Wachovia's demand for possession. As relief, Wachovia sought possession of the property; a determination that Katrenia, Jones, and Mitchell had forfeited their statutory right of redemption by their alleged failure to surrender possession of the property within 10 days after Wachovia had made its demand; and *1155 damages for the alleged wrongful detention of the property by Katrenia, Jones, and Mitchell after the foreclosure sale. Wachovia subsequently amended its complaint to add Cary Thompson as an additional defendant and to allege that Cary Thompson was also an occupant of the property and that he also had failed to surrender possession of the property in response to Wachovia's demand.
Katrenia and Mitchell, acting pro se, sent the trial court letters in response to Wachovia's complaint. Neither Jones nor Thompson responded to the complaint. On December 4, 2007, the trial court entered a default judgment in favor of Wachovia and against all the defendants; however, because Katrenia and Mitchell had responded to Wachovia's complaint by sending the trial court letters, the trial court subsequently set aside the default judgment with respect to them.
On April 1, 2008, Wachovia moved the trial court for a partial summary judgment against Katrenia and Mitchell insofar as Wachovia claimed (1) that it was entitled to possession of the property and (2) that Katrenia and Mitchell had forfeited their statutory right of redemption by failing to vacate the property within 10 days after Wachovia had demanded possession. In support of the motion, Wachovia submitted an affidavit signed by Kimberly Ralston in which she stated that she was an agent of Wachovia who had knowledge concerning the account of Katrenia, Jones, and Mitchell; that Ameriquest Mortgage Company, which had held a mortgage on the property, had assigned its rights under the mortgage to Wachovia; that Wachovia had foreclosed the mortgage on September 24, 2007; that Wachovia had become the owner of the property by virtue of its purchasing the property at the foreclosure sale; that Wachovia, on September 25, 2007, had sent Katrenia, Jones, and Mitchell a letter demanding that they surrender possession of the property within 10 days in accordance with § 6-5-251, Ala.Code 1975; and that Katrenia, Jones, and Mitchell had failed to surrender possession of the property.[1] The affidavit also authenticated copies of the foreclosure deed conveying the property to Wachovia and the letter demanding possession of the property, which were attached to the affidavit.
On May 8, 2008, Katrenia, now represented by an attorney, filed an amended answer asserting as an affirmative defense that "[Wachovia] is without legal title to the property due to defective notice, defective sale, and wrongful foreclosure. Therefore, said foreclosure sale and deed are void and due to be set aside and held for naught."
On May 9, 2008, the trial court entered a partial summary judgment against Katrenia and Mitchell due to their failure to file any evidence in opposition to Wachovia's partial-summary-judgment motion. However, that same day, Katrenia's attorney filed a Rule 56(f), Ala. R. Civ. P., affidavit in opposition to Wachovia's partial-summary-judgment motion in which he stated *1156 that he needed discovery to obtain evidence to prove that the foreclosure was not valid. On May 14, 2008, Katrenia moved the trial court to set aside the partial summary judgment entered against her on May 9 on the ground that she had not received notice of the hearing on the partial-summary-judgment motion, and, on May 29, 2008, the trial court granted that motion. The trial court also granted Katrenia leave to conduct discovery regarding the validity of the foreclosure.
On August 14, 2008, Katrenia filed a response to Wachovia's partial-summary-judgment motion in which she asserted that Wachovia had failed to establish that it was entitled to possession of the property because, she said, it had not proved that it had properly foreclosed the mortgage on the property. Specifically, she asserted that Wachovia had not properly foreclosed the mortgage because, she said, the mortgage required that Wachovia give her notice of the default in payment of the debt secured by the mortgage, notice of the acceleration of that debt, and notice of the foreclosure and Wachovia had failed to give her such notice. In addition, she asserted that Wachovia was not entitled to possession of the property because she had not received a demand for possession from Wachovia following the foreclosure. Katrenia supported her response to Wachovia's partial-summary-judgment motion with an affidavit in which she stated that she had not received notice of the default in the payment of the debt, notice of the acceleration of the debt, notice of the foreclosure, or a demand for possession of the property before she was served with process in Wachovia's ejectment action.
In addition to her affidavit, Katrenia submitted a copy of an adjustable-rate promissory note ("the promissory note") dated November 8, 2005, in which only Jones and Mitchell had promised to pay Ameriquest principal in the amount of $60,000 together with interest; a mortgage ("the mortgage") dated November 8, 2005, in which Katrenia, Jones, and Mitchell had granted Ameriquest a mortgage on the property in order to secure the payment of the promissory note; a letter sent by attorney J. Steven Mobley ("the Mobley letter") by facsimile transmission to Specialized Loan Servicing, LLC, the entity authorized by Wachovia to service the mortgage, on March 5, 2007; and an agreement between Jones and Mitchell, on the one hand, and Specialized Loan Servicing, on the other, dated March 7, 2007 ("the forbearance agreement"). The Mobley letter stated that Mobley represented Jones; that Jones had learned that Specialized Loan Servicing had scheduled a foreclosure sale of the property for March 19, 2007; and that Jones had not been aware that the mortgage was in default until he received a letter dated February 16, 2007, from the law firm of Sirote & Permutt. The Mobley letter requested that the foreclosure sale be suspended so that Jones could make arrangements to pay the past-due payments on the mortgage. The forbearance agreement evidenced an agreement by Specialized Loan Servicing to suspend the foreclosure sale in consideration of Jones's and Mitchell's agreeing to pay the past-due mortgage payments in 12 installments. Jones and Mitchell also agreed that they had received the notice of default and the notice of the foreclosure sale required by the mortgage and that, if they defaulted in making the payments due under the forbearance agreement, Specialized Loan Servicing could sell the property at a foreclosure sale without giving them any further notice.
Thereafter, the trial court held a hearing on Wachovia's partial-summary-judgment motion. At the hearing, Wachovia argued that, although Katrenia denied being given *1157 the notice required by the mortgage as a prerequisite to foreclosure, the mortgage provided that notice to any of the mortgagors constituted notice to all of them and that Wachovia had given Jones and Mitchell the notice required by the mortgage as a prerequisite to foreclosure. Katrenia then moved the trial court for a continuance of the hearing so that she could obtain affidavits from Jones and Mitchell, and the trial court granted her motion. Thereafter, Katrenia filed affidavits signed by Jones and Mitchell in which they denied receiving any notice that Wachovia was accelerating the debt or foreclosing the mortgage and denied receiving a demand for possession of the property. Wachovia moved the trial court to strike the affidavits of Mitchell and Jones, but the trial court did not rule on that motion.
Following another hearing on Wachovia's partial-summary-judgment motion, the trial court entered an order granting that motion. In pertinent part, that order stated:
"The said mortgage requires the following notice be given in the event of default in payments and acceleration of the mortgaged indebtedness:
"`22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant in this Security Instrument.... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to accelerate and sale. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by Applicable Law....
"`If Lender invokes the power of sale, Lender shall give a copy of a notice to Borrower in the manner provided in Section 15. . . .' (emphasis added [by trial court]).
"Section 15 of the said November 8, 2005 mortgage provides the following:
"`15. Notices. All notices given by Borrower or Lender in connection with this Security Instrument must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail and when actually delivered to Borrower's notice address if sent by other means. Notice to any one Borrower shall constitute notice to all Borrowers, unless Applicable Law expressly require otherwise. The notice address shall be the Property Address unless Borrower has designated a substitute notice address by notice to Lender. Borrower shall promptly notify Lender of Borrower's change of address.' (emphasis added [by trial court]).
"On June 10, 2007, certified mail notice was attempted on Defendants Terrell Jones and Wanda Mitchell at the Property Address, that the said note and mortgage was in default due to the failure of the said Defendants to pay the March 1, 2007 installment payment and *1158 all monthly payments accruing since that date. The said letter included all the items of notice required by Paragraph 22 of the said mortgage cited hereinabove. The said letter was returned by the U.S. Postal Service marked `unclaimed' after three attempted deliveries on May 18, 23 and June 3, 2007.
"On July 10, 2007, a second attempted certified mail notice was made on Defendants Terrell Jones and Wanda Mitchell at the said Property Address, notifying them of the default in payments and intent to accelerate the debt. The said letter stated that a failure to cure the default by remitting $4,806.07 by August 12, 2007 could result in acceleration of the entire debt and the commencement of foreclosure proceeding. However, after three attempts on July 11, 16 and 26, 2007, this certified letter was returned as well, marked `Unclaimed' to the sender, Specialized Loan Servicing, LLC. On August 17, 2007, the law firm, Sirote & Permutt, PC issued first class mail to Defendants Terrell Jones, Wanda Mitchell and Kat[re]nia Thompson directed at two addresses, 3320 Ridge Manner Drive, Apt #2 and 2600 15th Street West, the Property Address. The August 17, 2007 letter purportedly notified [Katrenia, Jones, and Mitchell] that the assignee of the mortgage, Plaintiff Wachovia Bank, NA, accelerated the debt and the amount needed to cure the default would be $66,164.09. The said August 17, 2007 letter was also a notice to the Defendants that Plaintiff was invoking the power of sale by instituting foreclosure proceedings and a date for the foreclosure, September 24, 2007, was specified in the said letter. The foreclosure sale was conducted on that said date, which is also the date of the execution of the Foreclosure Deed.
"In this regard, the August 17, 2007 attorney letter, sent by First Class Mail, was different in content from the previous notices, which were attempted to be delivered by certified mail by the holder's authorized representative, Specialized Loan Servicing, Inc. The previous notices were notices of intent to accelerate the debt unless the arrearage specified in the letter was paid, under terms and conditions defined in Paragraph 22 of the said mortgage. The notice further stated that a possible consequence of failing to cure the default would be the institution of foreclosure proceedings. However, the August 17, 2007 attorney letter was the notice of intent to foreclose. While not adequate notice of intent to accelerate, the letter does meet the requirements of notice to exercise the power of sale. Paragraph 22 specifically provides, `If Lender invokes the power of sale, Lender shall give a copy of a notice to Borrower in the manner provided in Section 15.' Section 15 provides that notice to one Borrower is considered to be notice to all when delivered to the Property Address, or to any alternative address for which Borrowers have previously notified [the Lender] to direct notices, and when the subject of the notice is the Lender's intent to exercise its power of sale. The record before the Court is that [Katrenia, Jones, and Mitchell] did not apprise [Wachovia] of any alternative address and in fact, the affidavit of Katrenia Thompson positively avers that she resides at the said property address and has so resided continuously since February 22, 1995 when her mother passed away and [Katrenia] moved into the residence to care for her elderly father, Joseph Jones.
"These correspondences from [Wachovia] and/or its authorized representative are not the only notices that [Katrenia, Jones, and Mitchell] received regarding *1159 their default on the said note and mortgage and of the intent of [Wachovia] and/or its predecessors in interest to take action under the terms of the said mortgage.
"The Court has reviewed correspondence from the law offices of J. Steven Mobley to an entity named Specialized Loan Servicing, dated March 5, 2007, 4 days after [Jones and Mitchell's] failure to make their March 1, 2007 installment payment. The said letter makes specific reference to the note and mortgage referenced hereinabove and of the circumstances whereby said indebtedness was created. The letter states:
"`Mr. Jones and his sisters were to pay an equal amount on the mortgage which would allow Kat[re]nia Thompson to live in their deceased parents' home. The letter dated February 16, 2007, from the law office of Sirote & Permutt was the first indication that the mortgage on the property was not being paid by Kat[re]nia Thompson.'
"Counsel for Defendants, in the March 5, 2007 correspondence, requested that a sale of the said mortgaged property, scheduled to take place on March 19, 2007, be `set aside until such time as an affordable plan to get current with past due mortgage payments can be implemented....'
"Defendants' counsel's efforts bore fruit in that on March 7, 2007, a new agreement was reached styled: Repayment Agreement (Foreclosure) By and Between Specialized Loan Servicing, LLC and Terrell Jones and Wanda Mitchell. The said agreement referenced a loan number, ... which was referenced in the June and July 2007 certified letters notifying Defendants of post-March 1, 2007 defaults in payments of the said loans. The Court is thus satisfied that the March 7, 2007 agreement pertains to the same note and mortgage agreements that are before it in this action.
"The said agreement recites that foreclosure proceedings had begun on February 2, 2007, but that the loan servicing firm, as authorized representative of the holder of the mortgage, was willing to forebear on exercising its principal's right under the note and mortgage, under the terms and conditions specified in the March 7, 2007 agreement.
"The said agreement provided the following with regard to the Defendants' admissions and future notice of the Lender's exercising its power of sale:
"`2. Borrower's Admissions. Borrower hereby admits that the amounts owed by the Borrower to the Servicer as stated above are fully accurate and valid charges under the Loan Documents and Borrower has no defenses, offsets, or counterclaims of any nature whatsoever to the enforceability of the Loan Documents, such stated amounts, and the pending foreclosure proceeding. . . .
"`6. Status of Default. The parties acknowledge that the Borrower has been notified of Borrower's default under the Loan Documents, that the loan has been accelerated, if applicable, and that a 30-day demand letter was mailed to the Borrower on December 19, 2006. The demand letter and all foreclosure notices already issued shall remain in full force and effect until such time as the Borrower becomes completely current in Borrower's loan payments, fulfills all of Borrower's obligations pursuant to this agreement, and cures all of Borrower's default(s) under the Loan Documents. In the event of Borrower's default pursuant to the terms of this Agreement, the Premises may be *1160 sold at a foreclosure sale for the unpaid balance of the monies due Servicer at the earliest available date, without further notice to Borrower.' (emphasis added [by trial court]).
"The said agreement was signed by Defendants Terrell Jones and Wanda Mitchell on March 14, 2007, and by Specialized Loan Servicing, LLC on March 30, 2007.
"[Katrenia] argues in opposition to [Wachovia's] motion for summary judgment that the foreclosure process, by which [Wachovia] acquired a foreclosure deed and the immediate right to possession thereunder, was defective in that Defendants did not receive proper notice of acceleration under the terms and conditions of the said mortgage.
"The Court finds that [Wachovia's] complaint does not seek recovery of the accelerated amount of its debt, but possession along with damages for wrongful retention of possession of the said real property since the time of default and foreclosure. Whether there is defective notice to accelerate the debt, the Court finds to be irrelevant to this action.
"The notice to which the Court's attention is directed is the notice to exercise the power of sale, that is, the notice to institute foreclosure proceedings which is the means by which [Wachovia] seeks the remedy of ejectment of Defendants from possession. Under the terms of the mortgage, said notice to one of the Borrowers is considered to be notice to all Borrowers. Defendant Kat[re]nia Thompson being one of the 3 Borrowers, notice to Defendant Mitchell and Defendant Jones, constitutes constructive notice to Defendant [Katrenia] Thompson.
"The March 7, 2007 forbearance agreement between [Wachovia's] authorized representative, Specialized Loan Servicing, LLC, and two of the Defendants, Terrell Jones and Wanda Mitchell, modif[ies] the notice terms of the said mortgage note by specifying that the notice which said Defendants had already received dating back to December 19, 2006 `shall remain in full force and effect' and that no further notice would be required in the event of a default under the terms of the said March 7, 2007 forbearance agreement.
"Defendant Kat[re]nia Thompson had constructive notice through the notice provided to her co-mortgagees, Defendants Jones and Mitchell, by operation of the terms of the March 7, 2007 forbearance agreement, and she had actual notice through the August 17, 2007 first class letter mailed to the Property Address, which is the address specified in the notice provisions of the instrument itself to which official notice is to be sent. The only way that some other address would have been proper, under the terms of the said mortgage, would be had Defendant [Katrenia] Thompson advised [Wachovia] or its authorized representative, Specialized Loan Servicing, LLC, of an alternative address. Defendant [Katrenia] Thompson's affidavit does not so state.
"Since notice to one Defendant is deemed sufficient as notice to all Defendants under the terms of the said note, the Court finds that there is no defect in the notice to exercise its power of sale with reference to Defendant [Katrenia] Thompson.
". . . .
"The foregoing matters and authority having been considered by the Court, the following is hereby ORDERED:
"1. There being no genuine issue as to the existence of a material fact and as a matter of law [Wachovia] is entitled to a judgment, motion for summary judgment *1161 is rendered in favor of the Plaintiff [Wachovia] and against the Defendant Kat[re]nia Thompson regarding possession and the forfeiture of her right of redemption. Motion for summary judgment is hereby GRANTED."
Following entry of the order granting its partial-summary-judgment motion, Wachovia moved the trial court to certify that order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., and the trial court did so. Katrenia moved the trial court to alter, amend, or vacate the partial summary judgment pursuant to Rule 59(e), Ala. R. Civ. P.; however, the trial court denied that motion. Katrenia then timely appealed to the supreme court, and the trial court stayed execution on the partial summary judgment on the condition that Katrenia pay a supersedeas bond in the amount of $5,000. The supreme court subsequently transferred Katrenia's appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.
On appeal, Katrenia asserts that the partial summary judgment entered by the trial court is void because, she says, the trial court lacked subject-matter jurisdiction over Wachovia's ejectment action. Although Katrenia did not challenge the trial court's subject-matter jurisdiction while the action was in the trial court, "`"subject-matter jurisdiction may not be waived; a court's lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu."'" M.B.L. v. G.G.L., 1 So.3d 1048, 1050 (Ala.Civ.App.2008) (quoting S.B.U. v. D.G.B., 913 So.2d 452, 455 (Ala.Civ.App.2005), quoting in turn C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala. Civ.App.2003)). Our review of a challenge to a trial court's subject-matter jurisdiction is de novo. M.B.L. 1 So.3d at 1050.
Katrenia asserts that the trial court lacked subject-matter jurisdiction over Wachovia's ejectment action because, she says, Wachovia did not have the right to immediate possession of the property on the date it commenced its ejectment action, a right that, Katrenia says, was necessary to confer subject-matter jurisdiction on the trial court. Katrenia argues that Wachovia did not have the right to immediate possession of the property on the date it commenced its ejectment action because it commenced its action on October 1, 2007, less than 10 days after it allegedly sent Katrenia, Jones, and Mitchell a letter on September 25, 2007, demanding that they surrender possession of the property within 10 days pursuant to § 6-5-251, Ala.Code 1975. Katrenia bases her argument that Wachovia did not have the right to immediate possession of the property until the expiration of 10 days after its demand on the language of § 6-5-251(a), which states that, following a foreclosure sale, "[t]he possession of the land must be delivered to the purchaser [of the property at the foreclosure sale] or purchaser's transferees by the debtor or mortgagor if in their possession or in the possession of anyone holding under them by privity of title, within ten (10) days after written demand for the possession has been made by, or on behalf of, the purchasers or purchaser's transferees." (Emphasis added.) Wachovia, on the other hand, argues that, despite the language of § 6-5-251(a), it had the right to immediate possession of the property as soon as it purchased the property at the foreclosure sale on September 24, 2007.
Neither party has cited a case directly on point. In Jones v. Butler, 286 Ala. 69, 237 So.2d 460 (1970), the purchaser at a foreclosure sale brought an ejectment action against the mortgagor in possession, and the supreme court stated that when "the original mortgage and foreclosure deed, or certified copies of the record *1162 thereof, were introduced in evidence, coupled with proof of demand for possession, and failure to deliver possession, such introduction made out a prima facie case for [the plaintiff who brought the ejectment action]." 286 Ala. at 71, 237 So.2d at 462 (emphasis added). Based on § 6-5-251(a) and the quote from Jones v. Butler, we conclude that Wachovia did not have a right to immediate possession of the property until 10 days after it made demand for possession of the property on September 25, 2007, and that its ejectment claim did not accrue until Katrenia, Jones, and Mitchell failed to deliver possession 10 days after Wachovia made that demand for possession. Thus, when Wachovia commenced its ejectment action on October 1, 2007, its ejectment claim had not yet accrued; that claim did not accrue until Katrenia, Jones, and Mitchell failed to deliver possession of the property by October 5, 2007. Consequently, the issue before us is whether Wachovia's commencement of its ejectment action four days before its ejectment claim accrued deprived the trial court of subject-matter jurisdiction. Neither party has cited an Alabama case directly addressing this issue. However, in Blumberg v. USAA Casualty Insurance Co., 790 So.2d 1061 (Fla.2001), the Florida Supreme Court held that the proper remedy for the premature filing of an action is the abatement or staying of the action until it accrues. 790 So.2d at 1065. We find that holding persuasive. Therefore, we conclude that Wachovia's commencing its ejectment action four days before its ejectment claim accrued did not deprive the trial court of subject-matter jurisdiction over Wachovia's ejectment action. Therefore, we will address the merits of the partial summary judgment entered by the trial court.
"This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce `substantial evidence' as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12. `[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989)."
Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).
Katrenia argues, among other things, that the trial court erred in granting Wachovia's partial-summary-judgment motion because, she says, Wachovia failed to establish the absence of a genuine issue of material fact regarding whether she was notified of the foreclosure sale.
In her affidavit, Katrenia denied receiving notice of the September 24, 2007, foreclosure sale. The trial court concluded that Katrenia had received constructive notice of the September 24, 2007, foreclosure because (1) Jones and Mitchell had agreed in the forbearance agreement that *1163 they had received notice of the previously scheduled March 19, 2007, foreclosure sale; (2) Jones and Mitchell had agreed in the forbearance agreement to waive any notice of another foreclosure sale if they defaulted in paying the payments due under the forbearance agreement; and Section 15 of the mortgage provided that notice to one of the mortgagors was notice to all. However, because Katrenia was not a party to the forbearance agreement, she did not agree to waive her right to notice of the September 24, 2007, foreclosure sale pursuant to the mortgage. Thus, despite Jones's and Mitchell's waiver of notice of the September 24, 2007, foreclosure sale, Wachovia was still obligated by the mortgage to effect notice of that foreclosure sale on Katrenia in accordance with the mortgage. Accordingly, the trial court erred insofar as it concluded that Wachovia effected constructive notice of the September 24, 2007, foreclosure sale on Katrenia by virtue of Jones's and Mitchell's entering into the forbearance agreement.
Sections 22 and 15 of the mortgage provide that Wachovia could effect notice of the September 24, 2007, foreclosure sale on Katrenia by sending a notice of that foreclosure sale to Katrenia, Jones, or Mitchell by first-class mail addressed to the property or to any other address designated by them. The trial court concluded that Wachovia had effected such notice on Katrenia by virtue of a letter dated August 17, 2007 ("the August 17 letter"), which the law firm of Sirote & Permutt sent to Katrenia, Jones, and Mitchell by first-class mail addressed to the property. However, the record neither contains a copy of the August 17 letter nor contains any pleading or affidavit purporting to submit the August 17 letter to the trial court. It is well settled that, in ruling on a summary-judgment motion, a trial court may consider only material that is properly before it upon submission of the motion. See Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000) ("A trial court decides a motion for summary judgment upon a consideration of whatever materials are submitted in support of or in opposition to the motion. The trial court cannot consider any facts not of judicial notice except those facts evidenced by materials contained in the trial court record upon submission of the motion for summary judgment." (citations omitted)). Because the August 17 letter was not properly before the trial court upon submission of the partial-summary-judgment motion, the trial erred in concluding that, on the basis of that letter, Wachovia had effected notice of the September 24, 2007, foreclosure sale on Katrenia.
Because Katrenia denied receiving notice of the September 24, 2007, foreclosure sale and Wachovia failed to submit evidence proving that it had effected such notice in accordance with the notice provisions of the mortgage, a genuine issue a material fact exists regarding whether Wachovia properly effected notice of the September 24, 2007, foreclosure sale on Katrenia. Consequently, a genuine issue of material fact exists regarding whether that foreclosure sale was valid and whether Wachovia had the right to possession of the property. Therefore, we reverse the partial summary judgment and remand the action for further proceedings consistent with this opinion.[2]
REVERSED AND REMANDED.
THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.
NOTES
[1] In pertinent part, § 6-5-251 provides:
"(a) The possession of the land must be delivered to the purchaser or purchaser's transferees by the debtor or mortgagor if in their possession or in the possession of anyone holding under them by privity of title, within ten (10) days after written demand for the possession has been made by, or on behalf of, the purchasers or purchasers transferees.
". . . .
"(c) Failure of the debtor or mortgagor or anyone holding possession under him or her to comply with the provisions of this section forfeits the right of redemption of the debtor or one holding possession under the debtor."
[2] Because Katrenia's argument that a genuine issue of material fact exists regarding whether Wachovia effected proper notice of the September 24, 2007, foreclosure sale on her disposes of the appeal, we pretermit discussion of the other issues she has raised regarding the merits of the partial summary judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610360/ | 39 So.3d 1196 (2010)
THE FLORIDA BAR, Complainant,
v.
Shari Nicole HINES, Respondent.
No. SC08-2297.
Supreme Court of Florida.
June 10, 2010.
*1197 John F. Harkness, Jr., Executive Director, and Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, Tallahassee, FL, and Lorraine Christine Hoffman, Bar Counsel, The Florida Bar, Sunrise, FL, for Complainant.
Kevin P. Tynan of Richardson and Tynan, P.L.C., Tamarac, FL, for Respondent.
PER CURIAM.
We have for review a referee's report recommending that respondent, Shari Nicole Hines, be found not guilty of professional misconduct. The Bar seeks review and asserts that Hines should be subject to a rehabilitative suspension. We have jurisdiction. See art. V, § 15, Fla. Const.
As more fully explained below, we disapprove the referee's recommendation that Hines be found not guilty of violating Rule Regulating the Florida Bar 4-5.3(b), governing a lawyer's responsibilities with respect to nonlawyers associated with a lawyer. That rule provides that the lawyer must make reasonable efforts to ensure that the conduct of a nonlawyer associated with a lawyer is compatible with the professional obligations of the lawyer. We conclude that Hines violated this rule by allowing a nonlawyer, whom she neither employed, supervised, nor controlled, to have signatory authority over an escrow account she opened to handle real estate closings, resulting in misappropriation by that nonlawyer of funds held in trust in the escrow account. We accordingly remand this matter to the referee for a recommendation as to the appropriate discipline.[1]
STATEMENT OF CASE AND FACTS
On December 10, 2008, The Florida Bar filed a complaint against Hines, alleging that in the course of acting as attorney and closing agent in a real estate transaction involving Paramount Lending Group (Paramount), Hines failed to appropriately supervise a nonlawyer title processor, Ida Ocasio, and the nonlawyer principal of Paramount, John Mohan, and improperly permitted Mohan to have signatory authority over the escrow account she opened to handle all closings she transacted through Paramount. The complaint further alleged that as a result of Hines' actions, Ocasio, Mohan, or both were able to steal the proceeds of a residential real estate transaction, resulting in harm to the parties involved.
*1198 Before the referee, the parties stipulated to the following facts. Prior to November 2007, part of Hines' law practice included real estate transactions, and she was introduced to Paramount Lending Group and its principal, Mohan. In late November 2007, Hines began accepting potential real estate closings from Paramount. During the course of this business relationship, Hines assumed responsibility for two closings that were generated by Paramount, the second of which was a residential real estate transaction between Alyce and Frederick Droege, the sellers, and George Melendez, the buyer. Prior to the closings, Hines relocated her law office to the same building as Paramount and became a tenant of Paramount, and she opened a new escrow account for all transactions with Paramount. Hines allowed Mohan shared signatory authority over this escrow account. However, because she recognized the inherent danger of allowing a nonlawyer access to an escrow account maintained in her name as an escrow agent and Florida lawyer, she placed caps on the amounts of money that Mohan could access or control in the escrow account.
On or about December 17, 2007, Hines was contacted by Ocasio and was advised that the Droege transaction needed to close that day in Orlando, Florida, pursuant to the closing instructions provided by the lender. As a result of this conversation, Hines forwarded, via Federal Express, ten blank, signed escrow account checks to Ocasio to be used for the closing. The closing was conducted by Ocasio on December 18, 2007, with all parties executing the required closing documents. Hines did not attend the closing and did not see, review, or approve the closing documents before the closing. The HUD-1 closing statement executed by all parties to the closing indicated that the Droeges' mortgage on the property in the amount of $34,714.10 was to be satisfied and that the Droeges were to be paid the sum of $128,802.68 as their proceeds from the sale. After executing their closing documents, the Droeges were given, by Ocasio, an escrow account check drawn in their favor in the amount of $128,802.68. The Droeges deposited this check into their account at SunTrust. They were advised that there would be a ten-day hold on the check but that $10,000 would be credited immediately and available for their use. The Droeges wrote checks against this $10,000. On December 24, 2007, the bank advised the Droeges that the check was being dishonored because a stop payment order had been issued. It was subsequently determined that Mohan had placed the stop payment order and that he had misappropriated the Droeges' sale proceeds, as well as the required mortgage payoff to his own use by electronically transferring these funds to his own bank account. Hines was made aware of the stop payment order on or about December 27, 2007, and was able to recover the sum of $45,000 from Mohan and wire this sum to the Droeges on or about January 2, 2008. After discovering that Mohan had misappropriated the funds, Hines reported the matter to the criminal authorities, who initiated a successful criminal action against Mohan. Hines also reported the problem with the Droege transaction to her underwriter, Attorney's Title Insurance Fund. On February 28, 2008, the Fund satisfied the Droeges' mortgage and sent them a check in the amount of $83,802.68. This check, when coupled with the $45,000 previously wired to them by Hines, completed the restitution owed to the Droeges as a result of the theft of the proceeds from their original escrow check.
Undisputed testimony at the final hearing also established the following. At the time of the Droege closing, Hines had *1199 nearly ten years of experience as a lawyer and, in fact, she ran her own title agency from 2002 until 2005. Hines and Mohan had agreed that Mohan would provide Hines with all of Paramount's title work and that Hines would conduct closings for Paramount. Hines was to receive $300 per closing and Mohan promised about thirty closings a monthan annual income of approximately $108,000. As to her role as escrow agent, Hines testified that she opened the escrow account at issue "specifically for the Paramount transactions" and that she kept the checks for this account in her office, which was locked.
Based on the evidence presented and the stipulation of the parties, the referee concluded that the Bar failed to present clear and convincing evidence that Hines had violated the rules as alleged in the complaint. The referee stated:
At the core of the Bar's presentation was the fact that the Respondent had placed a non-lawyer on her escrow account as a signatory and that this decision ultimately provided the vehicle by which Mr. Mohan engaged in criminal conduct. The referee was presented with no evidence or case law indicating that it was unethical for an attorney to have a non-lawyer signatory on an escrow account. In fact, the Respondent pointed to a Florida Bar Ethics Opinion that specifically sanctioned such action. See Fla. Ethics Opinion 64-40. Furthermore, the referee finds that at the time of Respondent's decision to make Mr. Mohan a signatory on the account, she had no reason not to trust him and there were no warning signs that he might engage in criminal activity until he had stolen the money.
Having recommended that Hines be found not guilty of any rule violations, the referee recommended that no discipline be imposed and that each party bear its own costs. The Bar seeks review of the referee's findings and recommendations as to guilt and her recommendation as to discipline and costs.
ANALYSIS
Although the Bar contends that the referee erred in making various factual findings, we find no merit to these challenges. Additionally, as noted, the material facts were stipulated, and the referee adopted the stipulated facts in her report. Accordingly, we approve the referee's findings of fact.
The Bar also challenges the referee's recommendations that Hines be found not guilty of violating rules 4-1.1, 4-5.3(b) and (c), and 4-8.4(a) and (d).[2] Given the stipulated material facts, our review of the referee's recommendations in this regard is de novo. See Fla. Bar v. Pape, 918 So.2d 240, 243 (Fla.2005) (stating that where there are no genuine issues of material fact and the only disagreement is whether the undisputed facts constitute unethical conduct, the referee's findings present a question of law that the Court reviews de novo); Fla. Bar v. Cosnow, 797 So.2d 1255, 1258 (Fla.2001) (stating that whether the attorney's admitted actions constitute unethical conduct is a question of law).
Despite the Bar's arguments to the contrary, we conclude that although Hines' conduct in this case reflected poor judgment in several respects, it did not constitute a violation of rules 4-1.1 (lawyer shall *1200 provide competent representation); 4-5.3(c) (lawyer shall review and be responsible for work product of paralegals and legal assistants); 4-8.4(a) (lawyer shall not violate rules, assist or induce another to do so, or do so through actions of another); or 4-8.4(d) (lawyer shall not engage in conduct in connection with practice of law that is prejudicial to administration of justice). However, we disapprove the referee's recommendation that Hines be found not guilty of violating rule 4-5.3(b) (with respect to nonlawyers associated with lawyer, lawyer must make reasonable efforts to ensure that nonlawyer's conduct is compatible with professional obligations of lawyer).
In this case, Hines' role in the transaction was as a title attorney, a closing agent, and an escrow agent. She was providing legal services and, as closing and escrow agent, owed a fiduciary duty to all of the principal parties involved. See Fla. Bar v. Joy, 679 So.2d 1165, 1167 (Fla. 1996). This Court has stated that absent an express agreement, the law implies from the circumstances that an escrow agent undertakes "a legal obligation (1) to know the provisions and conditions of the principal agreement concerning the escrowed property, and (2) to exercise reasonable skill and ordinary diligence in holding and delivering possession of the escrowed property (i.e., to disburse the escrowed funds) in strict accordance with the principals' agreement." Id. Additionally, a closing agent has a duty to supervise the closing in a "reasonably prudent manner." Askew v. Allstate Title & Abstract Co., 603 So.2d 29, 31 (Fla. 2d DCA 1992) (quoting Fla. S. Abstract & Title Co. v. Bjellos, 346 So.2d 635, 636 (Fla. 2d DCA 1977)) (stating that a title insurance company acting as a closing agent has a duty to supervise a closing in a reasonably prudent manner).
Rule 4-5.3(b)(1) provides:
(b) Supervisory Responsibility. With respect to a nonlawyer employed or retained by or associated with a lawyer or an authorized business entity as defined elsewhere in these Rules Regulating The Florida Bar:
(1) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer. . . .
In this case, Hines' professional obligations as a lawyer included holding and delivering possession of the escrowed funds in strict accordance with the principals' agreement and supervising the closing in a reasonably prudent manner. By allowing Mohan, a nonlawyer whom she neither employed, supervised, nor controlled, essentially unfettered access to the funds held in the escrow account, Hines failed in her responsibility to ensure that she had "in effect measures giving reasonable assurance" that Mohan's conduct would be compatible with those professional obligations. In fact, when it comes to the area of funds held in trust by a lawyer, we conclude that a reading of rule 4-5.3 in its entirety leads to only one reasonable conclusion. A lawyer may permit a nonlawyer to have authority or control over such funds only if that nonlawyer is employed by or under the direct supervision and control of the lawyer.
The Florida Bar ethics advisory opinion relied upon by the referee does not support the broad conclusion that it is not unethical for an attorney to have a nonlawyer signatory on an escrow account. Both *1201 the 1964 and the revised 1987 advisory opinions are predicated upon facts involving nonlawyer employees of the lawyer. The 1964 opinion approved the practice of a law firm office manager drawing checks on the firm's trust account, and the revised 1987 version clarified that "properly authorized and supervised nonlawyer employees" may be signatories on lawyers' trust accounts. See Fla. Bar Comm. on Prof'l Ethics, Op. 64-40 (1964); Fla. Bar Comm. on Prof'l Ethics, Op. 64-40 (reconsideration) (1987). We do not read these opinions as authorizing a lawyer to permit a nonlawyer, nonemployee to have essentially unfettered access to funds held in trust by the attorney, whether in an IOTA trust account or an escrow account in the attorney's name. There is a critical distinction between an attorney's office manager and a person who is neither employed by, responsible to, nor otherwise under the supervision and control of the lawyer as here.
Although the ethics opinions of The Florida Bar are not binding on this Court, nevertheless the intent of the ethics opinion for lawyers is clear:
The Committee continues to be of the view that is permissible for a trusted nonlawyer employee to draw checks on the trust account upon proper authorization and under appropriate supervision. Attorneys are cautioned, however, that they remain ultimately responsible for compliance with all rules relating to trust accounts and client funds, and that they are subject to discipline for an employee's misconduct involving client funds.
Fla. Bar Comm. on Prof'l Ethics, Op. 64-40 (reconsideration) (1987) (emphasis added). In this case, Hines stipulated that she recognized the "inherent danger" of allowing Mohan signatory authority on the account. Hines abdicated her responsibility as a lawyer and her fiduciary obligation to the parties involved in this closing when she allowed Mohan access to the funds held in the account. This failure provided Mohan, whom she neither employed, supervised, nor controlled, with the opportunity to misappropriate client funds, which were held in trust in the escrow account.
Accordingly, while we approve the referee's recommendations regarding the other rule violations charged, we disapprove the referee's recommendation as to rule 4-5.3(b). Because the referee did not reach the issue of sanctions, we remand this case to the referee for a hearing and recommendation as to the appropriate sanction, including consideration of a rehabilitative suspension.
It is so ordered.
QUINCE, C.J., and PARIENTE, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.
LEWIS, J., concurs in result.
NOTES
[1] We approve the referee's findings of fact and her recommendation that Hines be found not guilty of violating rules 4-1.1 (lawyer shall provide competent representation); 4-1.15 (lawyer shall comply with trust account rules); 4-5.3(a) (paralegals and legal assistants must work under direction or supervision of lawyer); 4-5.3(c) (lawyer shall review and be responsible for work product of paralegals and legal assistants); 4-8.4(a) (lawyer shall not violate rules, assist or induce another to do so, or do so through actions of another); and 4-8.4(d) (lawyer shall not engage in conduct in connection with practice of law that is prejudicial to administration of justice).
[2] The Bar does not specifically challenge the referee's recommendation that Hines be found not guilty of violating rules 4-1.15 (lawyer shall comply with trust account rules) and 4-5.3(a) (paralegals and legal assistants must work under direction or supervision of lawyer). Thus, the referee's recommendation of not guilty as to those rules is approved. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611092/ | 533 So.2d 922 (1988)
Richard W. FIELDS, Appellant,
v.
Florence S. FIELDS, Appellee.
No. 88-1643.
District Court of Appeal of Florida, Second District.
November 16, 1988.
*923 Andrew J. Rodnite, Jr., of Park, Smith, Dayton & Bugg, P.A., Clearwater, for appellant.
Thomas P. Colclough of Wallace, Finck, Boake & Colclough, St. Petersburg, for appellee.
PARKER, Judge.
Richard Fields, the husband, appeals the trial court's nonfinal order awarding temporary alimony support to his wife, Florence Fields, in the amount of $1,000 per week. Although the husband alleges two errors by the trial court, we address the one which is dispositive and reverse.
Sometime after the wife filed a petition for dissolution of the parties' marriage, she sought an award of temporary alimony for support and attorney's fees. At the temporary support hearing, the testimony revealed that the parties had been married for twenty years. The husband was employed out of the state of Florida. For more than one year preceding the filing of the wife's petition, the husband sent to the wife his entire weekly paycheck of approximately $1,200, from which the wife would pay the household bills, and thereafter send the husband $200 per week for his out-of-pocket expenses. For the last four months before the support hearing, the husband ceased sending his weekly salary to the wife and initially provided the wife $200 per week and eventually $175 per week. The parties' financial statements revealed that the wife had a weekly net income of approximately $91.35 with expenses of $1,000 per week, while the husband's net earnings were approximately $984 per week with weekly expenses of $905.
At the hearing, the wife corroborated her figures and explained that checks that she had drawn for her household expenses had bounced because the husband had removed $8,500 from their joint bank account and had substantially reduced his weekly payments to the wife. The husband was unable to attend the hearing, and his request for a continuance so that he could attend the hearing was denied by the trial court.
At the conclusion of the hearing, the trial court ordered the husband to pay $1,000 a week support to the wife. We find that was error for two reasons. First, *924 from the record it appears as though the court did not apply the appropriate test as stated in Luskin v. Luskin, 492 So.2d 783, 784 (Fla. 4th DCA 1986) (quoting Vickers v. Vickers, 413 So.2d 788, 789 (Fla. 3d DCA 1982)) that "[t]he proper standard to be applied in awarding temporary support is a balancing of `needs as fixed by the parties' standard of living, on the one hand, and the ability to pay on the other.'" As conceded by the wife on appeal, the court apparently was influenced by the fact that the husband had been sending the wife his $1,200 weekly paycheck during the first year of their separation from which she would pay all their mutual bills and then send him $200 per week for his own expenses. This would certainly explain the court's automatic award of $1,000 per week to the wife. However, the previous course of conduct of the parties is not the correct standard for assessing a temporary support award. Vickers. Second, even without considering the husband's expenses as he attested in his affidavit, his net weekly salary of $984 does not sustain the present award since it exceeds his earnings. See Herr v. Herr, 463 So.2d 447 (Fla. 4th DCA 1985) (court may not authorize temporary support award in excess of party's ability to pay).
The temporary support order is therefore reversed, and the case remanded for the trial court to apply the appropriate test set out above for entering an award of support pending the dissolution of the parties' marriage. In arriving at a proper award using the correct standard, the trial court is directed to consider the financial circumstances of the parties at two separate points in time. First, the court must examine the parties' finances as they existed at the time of the temporary alimony hearing to determine what was a proper award at that time and apply that award prospectively to the second point in time, which refers to the time of the hearing on remand. Stated differently, if the appropriate amount at the time of the original hearing was less than $1,000 per week, the court should credit the husband with any excess amount that he paid for support until the date of the hearing on remand. If the parties' situation has changed on remand, the trial court then must assess the proper support amount based on those changed circumstances to be effective from the date of the hearing on remand.
REVERSED AND REMANDED.
CAMPBELL, C.J., and SCHEB, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610149/ | 348 Mich. 16 (1957)
81 N.W.2d 363
BROWN
v.
BRODSKY.
Docket No. 11, Calendar No. 46,984.
Supreme Court of Michigan.
Decided February 28, 1957.
Donald Wm. Sargent and Walter A. Kuck, for plaintiff.
Louis A. Gottlieb (Samuel H. Rubin and Phyllis Rubin, of counsel), for defendants Brodsky.
CARR, J.
In the summer of 1951, plaintiff, a building contractor, entered into a written agreement with defendant Herman Brodsky for the construction of a residence on a lot owned by the latter. The building was to be erected in accordance with blueprints and specifications submitted by Brodsky, and in conformance with building codes. Plaintiff undertook to do the work on a time and material basis, subject to the condition that the price of the residence should not exceed $24,000, the maximum total to be paid to plaintiff, including a 10% building fee, to be the sum of $26,400. It was further specified that in the event that the cost of the residence was less than $24,000, Brodsky agreed to pay plaintiff 1/2 of the difference between the actual cost and the price fixed.
*18 Apparently there was no dispute with reference to the plans and specifications submitted by Brodsky, and plaintiff proceeded with the project until December, 1951, when he terminated his connection with the work, and Brodsky completed the building at a total cost, as it is claimed, of approximately $33,000. In May, 1952, plaintiff instituted the present suit in equity seeking a declaratory decree, an accounting, a money decree, and incidental injunctive relief. Plaintiff referred in his pleading to the contract above mentioned, stating that there were certain "additional parol agreements." He alleged also that at the direction of defendants Herman Brodsky and Dina Brodsky he procured one Harold Watts to install necessary plumbing at an agreed price of $4,435.68, that said undertaking was performed by Watts, that the defendants Mr. and Mrs. Brodsky made changes and alterations in the plans from time to time, and that because of their conduct he was unable to continue the work. He further alleged that he had expended a total of $13,196 under the contract, and that he had received $9,500 to apply thereon. Further averments indicated that some question had arisen as to whether he was liable to Watts for the plumbing bill, and he asked that, if liability on his part was found, the court enter a decree against defendants Brodsky for the amount of such liability.
Plaintiff specifically set forth as the items of his claim of right to a money decree against defendants Brodsky the difference between the amount expended by him and the sum that he admitted having received, such difference being $3,696, 10% of the total cost of construction of the residence when finally completed, amounting to $3,300, and 1/2 of the difference between $20,000 and $24,000, or the sum of $2,000, making in the aggregate $8,996, for which he asked a decree. The last-named item in the claim was based on the assertion that had he been permitted *19 to proceed with the construction in accordance with the contract he could, and would, have completed the building for the sum of $20,000.
The bill of complaint further alleged that defendants Brodsky had executed a mortgage on the property to the Equitable Life Assurance Society of the United States, which corporation plaintiff joined as a party defendant without seeking relief in any form against it. Watts was also made a defendant, and he filed an answer asking that the court enter a judgment in his favor against either the plaintiff or defendants Brodsky. The latter defendants in their answer denied plaintiff's claims with reference to the reasons why he severed his connection with the project, alleging that he did so voluntarily, averred that he had not performed his agreement, and, in terms, asserted a claim for damages. By amendment to the answer it was alleged that under the facts set forth in the bill of complaint plaintiff was not entitled to equitable relief.
The case was set for trial before the circuit judge. Counsel for plaintiff made his opening statement substantially in accordance with the averments of the bill of complaint, stating the specific items for which plaintiff sought recovery, including any amount that might be found due from him to defendant Watts, with reference to which a declaratory decree was sought. The court was asked to construe the building agreement and the "additional parol contract with the defendants."
Following the statement counsel for defendants Brodsky moved to dismiss the bill of complaint on the ground that said statement and the averments of the pleading were insufficient to indicate the right to equitable relief, and that plaintiff had an adequate remedy at law. After discussion of the situation the trial judge concluded that the motion was well-founded. It further appearing that the Equitable Life Assurance *20 Society of the United States had been improperly joined as a defendant, the order entered dismissed the suit as to it, and as to the other defendants the equitable action was dismissed subject to transfer to the law side of the court,[*] plaintiff being given 20 days from the date of the order to file and serve appropriate pleadings. A motion for a rehearing was made and denied. Plaintiff has appealed from the order, claiming that under the facts alleged by his counsel in the opening statement and in his bill of complaint he was entitled to seek a declaratory decree under the provisions of the statute,[] and relief by way of an accounting and decree for money due him, that defendant Watts had not moved to dismiss the case, that defendants Brodsky had asserted a counterclaim for damages, and that, generally, the trial judge was in error in ordering the transfer to the law side of the court.
The motion to dismiss was apparently based on the averments of the bill of complaint as well as on the opening statement of counsel for the plaintiff. It fairly appears from each that defendant Watts has a cause of action against plaintiff or against the Brodskys, or possibly the right to sue them together in an action at law. Plaintiff does not assert that Watts is indebted to him in any way. If he pays the plumbing bill then his right of recourse against defendants Brodsky may be asserted in an appropriate law action. The principle is well settled that the statutory proceeding for a declaratory judgment or decree was not designed as a substitute for other legal actions. Washington-Detroit Theatre Co. v. Moore, 249 Mich 673, 678 (68 ALR 105); Abel v. Wayne County Sheriff, 320 Mich 616, 621, and prior decisions there cited; School District No. 1, Fractional, *21 v. School District of the City of Lansing, 331 Mich 523. In City of Detroit v. Wayne Circuit Judges, 339 Mich 62, to which counsel for appellant direct attention, the controversy came before this Court on an application for writs of prohibition and mandamus to restrain the defendants from proceeding further in a case instituted in the Wayne circuit court involving the validity of ordinances providing for off-street parking facilities and for the issuance of revenue bonds. Because of the nature of the controversy this Court on the application for the writs passed on the merits of the questions raised. The decision is no authority for the claim advanced by appellant in the case at bar.
The law side of the court is the proper forum in which to determine the question as to the rights of the parties with reference to the plumbing contract. The fact that Watts did not move to dismiss does not alter the situation. Neither is it material that defendants Brodsky asserted in their answer to the plaintiff's bill of complaint a counterclaim for damages. Obviously such claim is a proper one for consideration in a legal action in which the parties concerned, or either of them, may request a trial by jury. It is also significant that, following the filing of their answer, said defendants by amendment thereto denied plaintiff's right to seek equitable relief. In any event, the parties may not by consent confer jurisdiction on the court. Shane v. Hackney, 341 Mich 91, 98, and prior decisions there cited.
The suggestion that a declaratory decree with reference to the interpretation of the contract is requisite is obviously not tenable. The writing into which the parties entered is not ambiguous. It indicated with particularity what the respective parties undertook to do. It does not appear that any part of the original undertaking rested in parol, and neither the bill of complaint nor the opening statement of *22 plaintiff's counsel indicates that such was the situation. Precisely what it is that the court is asked to interpret does not appear. Issues as to what was actually done by the parties may be tried in an appropriate law action.
As before noted, plaintiff, in his bill of complaint as well as in the opening statement of his counsel, asserted with particularity the items of his claim for a money decree. The facts averred do not suggest the necessity for an accounting with reference thereto. Plaintiff does not concede liability on his part to the defendants, and we think that defendants Brodsky, by their amendment to the answer to the bill of complaint and by their motion to dismiss, have, in practical effect, abandoned their suggested counterclaim. In any event, as before pointed out, the claims of the parties may properly be considered in a law action.
As the situation now stands there is no claim on the part of plaintiff of the existence of mutual credits or demands. Jurisdictional requirements essential for the maintenance of a suit in equity for an accounting are not present here. Terranova v. Cottrell Block Construction Co., 302 Mich 417; Marshall v. Ullmann, 335 Mich 66. In the case of Seremetis v. Cook, 327 Mich 450, the factual situation presented serves to differentiate it from the case at bar. Accepting as correct the material facts set forth in the bill of complaint and in the opening statement of plaintiff's counsel, the proper protection of plaintiff's rights does not require the granting of equitable relief by way of an accounting.
In his bill of complaint plaintiff characterized certain conduct of defendants Brodsky as "fraudulent." No facts are averred, however, tending to establish actionable fraud. The statement in question must be regarded as a mere conclusion of the pleader. It does not appear that in the opening statement of *23 counsel any claim of fraud was advanced or any assertion made that proof would be offered tending to establish conduct of such character. It does not appear that the jurisdiction of equity is here properly invoked on that ground.
The trial judge correctly held that the parties to the case should be left to their appropriate legal remedies. The order from which the appeal has been taken is affirmed, subject to the provision that plaintiff may have 20 days from and after the filing of this opinion in which to file and serve appropriate pleadings for the trial of his cause of action at law. Defendants Brodsky may have costs.
DETHMERS, C.J., and SHARPE, SMITH, EDWARDS, VOELKER, KELLY, and BLACK, JJ., concurred.
NOTES
[*] See CL 1948, § 611.2 (Stat Ann § 27.652). REPORTER.
[] PA 1929, No 36 (CL 1948, § 691.501 et seq. [Stat Ann § 27.501 et seq.]). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3033406/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-3977
___________
Ana Laura Rodriguez, *
*
Petitioner, *
* Petition for Review of an Order
v. * of the Board of Immigration
* Appeals.
John Ashcroft, Attorney General of the *
United States, * [UNPUBLISHED]
*
Respondent. *
___________
Submitted: January 7, 2004
Filed: January 27, 2004
___________
Before RILEY, McMILLIAN, and SMITH, Circuit Judges.
___________
PER CURIAM.
Ana Laura Rodriguez, a citizen of Guatemala, petitions for review of an order
of the Board of Immigration Appeals (BIA) affirming an Immigration Judge’s (IJ’s)
denial of Rodriguez’s application for asylum, withholding of removal, and relief
under the Convention Against Torture. After careful review of the record, we deny
the petition because the evidence does not compel reversal. See Navarijo-Barrios v.
Ashcroft, 322 F.3d 561, 562 (8th Cir. 2003). Rodriguez failed to produce evidence
that the guerrillas who attempted to recruit her did so on account of any particular
political opinion that she held, see INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992);
Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir. 2003), and the government
presented evidence of changed conditions in Guatemala, including the peace accords
ending the civil war and overt political participation by the former guerrillas, see
Melecio-Saquil v. Ashcroft, 337 F.3d 983, 986-87 (8th Cir. 2003).
In addition, we conclude that Rodriguez’s claims for withholding of removal
and relief under the Convention Against Torture fail. See Francois v. INS, 283 F.3d
926, 932-33 (8th Cir. 2002) (finding that substantial evidence supporting denial of
request for asylum also supported denial of withholding of deportation, because
standard for withholding is more onerous); 8 C.F.R. § 208.16(c)(2) (claimant must
establish torture more likely than not if removed to proposed country of removal).
Accordingly, we deny the petition.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4515800/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
RISPENS SEEDS, INC., UNPUBLISHED
March 12, 2020
Plaintiff/Counterdefendant/Third-
Party Plaintiff-Appellee,
v No. 347079
Kalamazoo Circuit Court
BAILEY FARMS, INC., LC No. 2016-000052-CK
Defendant/Counterplaintiff-
Appellant,
and
SYNGENTA SEEDS, LLC, formerly known as
SYNGENTA SEEDS, INC.,
Third-Party Defendant-Appellee.
Before: MURRAY, C.J., and METER and K. F. KELLY, JJ.
PER CURIAM.
In this contract dispute between agricultural merchants, plaintiff Rispens Seeds sued
defendant Bailey Farms on theories of breach of contract and account stated after Bailey Farms
refused to pay a portion of a seed bill for seedless watermelons and their corresponding pollenizers.
Bailey Farms filed a countercomplaint, claiming breach of express and implied warranties and
breach of contract on the basis that the watermelons, when planted as instructed, showed a high
instance of a watermelon disease called “hollow heart.” The trial court granted summary
disposition to Rispens Seeds and entered judgment in favor of Rispens Seeds in the amount of
$53,413.36. Bailey Farms now appeals as of right. We affirm.
I. BACKGROUND
Bailey Farms is a Michigan corporation engaged in commercial farming operations
involving seedless watermelons. Rispens Seeds is an Illinois corporation that sells seeds, plants,
-1-
and related products to commercial growers. Among the products that Rispens Seeds distributes
is a pollenizer plant, SP-6, used for pollination of seedless watermelon. SP-6 is manufactured by
Syngenta Seeds, a Delaware limited liability company with its principal place of business in
Minnesota. Syngenta has since developed a new pollenizer, SP-7, which it markets as producing
larger flowers and more pollen than SP-6.
For the 2015 growing season, Bailey Farms purchased several varieties of watermelon
seeds as well as SP-6 seeds from Rispens Seeds. At issue in this case is Bailey Farms’ planting of
“Exclamation” and “Captivation” seedless varieties of watermelon. According to Bailey Farms’
president, Howard Bailey, Rispens Seeds advised him to plant SP-6 with seedless watermelon at
a 1:3 ratio. Bailey Farms followed this directive and, according to Bailey Farms, its Captivation
and Exclamation crops experienced unprecedented levels of hollow heart. After providing the
watermelon seeds as well as those for the SP-6 pollenizer, Rispens Seeds sent Bailey Farms
invoices for the products. Bailey Farms paid some, but not all, of the balance owing on the
products it purchased from Rispens Seeds, indicating that the reduction in price was because of
the hollow-heart issue.
Rispens Seeds filed the current lawsuit seeking payment of the outstanding balance on
theories of breach of contract and account stated. Bailey Farms filed a countercomplaint, claiming
breach of express and implied warranties and breach of contract on the basis that SP-6, used as
recommended by Rispens Seeds, caused the hollow-heart issues. The trial court granted summary
disposition to Rispens Seeds on its claims as well as Bailey Farms’ counterclaims.1 In granting
summary disposition under MCR 2.116(C)(10), the trial court concluded (1) that Bailey Farms
failed to present sufficient causation evidence to support its theory that SP-6 caused hollow heart
and (2) that contractual disclaimers and limitations on liability precluded Bailey Farms’ claims.
The trial court entered judgment in favor of Rispens Seeds in the amount of $53,413.36, which
included interest calculated according to a provision in the invoices sent by Rispens Seeds to
Bailey Farms. This appeal followed.
II. ANALYSIS
A. CAUSATION
Bailey Farms first argues that the trial court erred by granting summary disposition to
Rispens Seeds on the basis that Bailey Farms offered insufficient evidence to support its theory
that SP-6, used as directed by Bailey Farms, caused hollow heart. “We review de novo a trial
court’s grant or denial of summary disposition.” Tomra of North America, Inc v Dep’t of Treasury,
325 Mich. App. 289, 293-294; 926 NW2d 259 (2018). “A motion for summary disposition under
MCR 2.116(C)(10) tests the factual sufficiency of a claim, and is appropriately granted when,
except as to the amount of damages, there is no genuine issue as to any material fact, and the
moving party is entitled to judgment as a matter of law.” Id. at 294.
1
The trial court also dismissed Rispens Seeds’ third-party complaint against Syngenta Seeds, LLC,
as moot. The claims against Syngenta are not at issue on appeal.
-2-
In responding to a motion for summary disposition, a party bearing the burden of proving
causation must “set forth specific facts that would support a reasonable inference of a logical
sequence of cause and effect.” Skinner v Square D Co, 445 Mich. 153, 174; 516 NW2d 475 (1994).
Causation may be shown circumstantially, but “[t]o be adequate, a [party’s] circumstantial proof
must facilitate reasonable inferences of causation, not mere speculation.” Id. at 164. “[T]he
evidence need not negate all other possible causes,” but “this Court has consistently required that
the evidence exclude other reasonable hypotheses with a fair amount of certainty.” Craig ex rel
Craig v Oakwood Hosp, 471 Mich. 67, 87-88; 684 NW2d 296 (2004) (internal citation and
quotation marks omitted). “Our case law requires more than a mere possibility or a plausible
explanation.” Id. at 87. In other words, “litigants do not have any right to submit an evidentiary
record to the jury that would allow the jury to do nothing more than guess.” Skinner, 445 Mich. at
174.
Briefly stated, the crux of Bailey Farms’ counterclaims and defenses is that SP-6 caused
hollow heart in Bailey’s fields when used at the recommended ratio of 1:3. Maintaining that
Rispens warrantied the performance of SP-6 at a 1:3 ratio, Bailey Farms contends that the failure
of SP-6 to perform as promised supports counterclaims for breach of warranties and breach of
contract, and that it constitutes a defense to Rispens Seeds’ claims for breach of contract and
account stated. According to Bailey Farms, it presented sufficient causation testimony in the form
of expert deposition testimony from Bailey, expert deposition testimony from Walter Edwin Kee,
an affidavit from Kee, and information that Syngenta released a new product, SP-7, that improves
upon SP-6. We disagree and conclude that the trial court did not err by granting summary
disposition to Rispens Seeds.
In support of its theory that SP-6 used at a 1:3 ratio causes hollow heart, Bailey Farms first
offered testimony from Bailey about his observations of hollow heart in his fields. Bailey testified
that the hollow heart occurred in fields where he planted Exclamation and Captivation
watermelons and SP-6 at a 1:3 ratio when SP-6 was the only pollination source. Bailey stated that
hollow heart did not appear to the same degree in fields where SP-6 was used at a higher ratio or
where other pollination sources were present. Bailey testified, however, that hollow-heart was not
an issue with another variety of seedless watermelon planted at a 1:3 ratio with SP-6. Still, Bailey
maintained that SP-6 inadequately pollinated the seedless watermelons, given that, although he
had experienced some hollow-heart in other years, 2015 was the first year he used SP-6 and,
despite no change in farming practices, hollow heart spiked in that year. Nevertheless, Bailey
could not explain how pollen affected watermelon physiologically; he did not engage in any
scientific testing regarding his opinions on the cause of hollow heart; and he did he know whether
researchers had identified the cause of hollow heart. Bailey averred that other farmers had issues
with SP-6, but he could not provide any scientific analysis of those farms.
For his part, Kee, a vegetable crop specialist at the University of Delaware, testified that
his research included applied research on watermelon-crop yields and quality, but he never
researched hollow heart in Michigan or conducted testing on SP-6. Kee did not consider himself
an expert on seedless watermelon genetics or on inedible pollenizers. Kee testified that hollow
heart is a complex issue that could be caused by “a lot of different factors,” including
overfertilization, nutritional deficiencies, high temperature, excessive moisture, and certain
pesticides. According to Kee, hollow heart is usually caused by an interaction of a combination
-3-
of factors. Indeed, another expert, Alan Walters, agreed that hollow heart arises from a number of
factors and how they interrelate.
In attempting to identify SP-6 as a cause of hollow heart among all the possibly
contributing causes of hollow heart at Bailey Farms in 2015, Kee testified that it was his
understanding—and the basis for his opinion—that hollow heart occurred at lower rates in Bailey
Farms’ fields with more SP-6 or seeded watermelons as another source of pollination, suggesting
that “more pollen” “reduced the hollow heart.” Notably, however, he also acknowledged that he
could not “identify if, in fact, the SP-6 was a cause of hollow heart in Bailey’s fields in 2015.” He
indicated that he still had a “couple of questions” and that “more research” was needed. More
fully, Kee’s causation testimony was as follows:
My opinion is through the process of elimination that there’s something
about that one pollinator that he used that year, SP-6. Now—I’ve shared with Mr.
Bailey and [Bailey Farms’ attorney]—I cannot say that there’s something wrong
with SP-6. What I can say is that there is something that happened that happened
[sic] here. I guess let me rephrase that. I don’t know what’s wrong with SP-6, if
anything, but there might be something wrong.
And that if I was handling this situation out in a field in Delaware without
legal representation involved yet, I would have all the parties in the field talking
and thinking about the possibility of why there is an excessive amount of hollow
heart in a field. And we would have gone through all of those factors that I went
through and then the focus would be on what about this pollinator? Was it a mix-
up in the distribution? Was there something wrong in the production? What could
have happened that made the correlation between SP-6 and the high incident of
hollow heart[?]
And please understand, I’m posing those as questions to be asked. I’m not
saying this is definitely it. I’m just saying that would be the next line of concern in
trying to figure out what happened here.
* * *
I’m giving the opinion that SP-6 is possibly correlated to the problem and
that—that further investigation needs to be looked into that seed lot, what happened
in the greenhouse, all those kind of questions. And I arrived at that through the
process of elimination that the other factors don’t point towards the high incident
of hollow heart that happened here. [emphasis added.]
In other words, Kee opined that “there might be something wrong SP-6, but there might not be
something wrong with SP-6.” Although attempting to discount some other possible factors, Kee
also agreed that he could not offer an opinion on the cause of hollow heart at Bailey Farms with
“a reasonable degree of scientific certainty.”
More generally, Kee did not testify that SP-6 was inherently defective or always caused
hollow heart. To the contrary, Kee testified that his observations of commercial fields where SP-
-4-
6 was used in Delaware generally showed “good production,” the “fields looked good,” and the
farmers seemed happy with SP-6. Kee had not done any research to determine whether there was
something wrong with the SP-6 pollenizers themselves. Kee also indicated that the proper planting
ratio for SP-6 was 1 to 3. Rather than identify something wrong with SP-6 at the “seed level” or
the amount of SP-6 recommended, Kee appeared to be concerned with whether there could have
been a problem with “specific seed lots” sent to Bailey Farms or whether “something happened”
to the seeds. As an example, Kee queried whether there had been some sort of “mix-up” at the
greenhouse. Kee also described factors that could impact the effectiveness of a pollenizer.
According to Kee, the effectiveness of SP-6—or any pollenizer—could be affected by
management of the farmer, the transplant producer, problems with the bees transferring pollen
between the pollenizer and the watermelon, and environmental factors such as nutrient
deficiencies, temperatures, and rainfall levels. Kee admitted that, even if pollination causes hollow
heart, it cannot be assumed that hollow heart is caused by a problem with the pollenizer plant.
Kee later offered an affidavit attempting to explain some of his opinions at his deposition.
For instance, Kee averred that he reviewed his deposition testimony, and that, by his testimony, he
“meant that [he] did not have any opinion as to whether or not something was wrong or some
defect existed with SP-6 generally, not as to whether I could draw my conclusion that SP-6 failed
to sufficiently pollinate melons at Baily Farms in 2015, leading to Bailey Farms’ hollow heart that
year.” He also averred that he had “reviewed additional materials” and that his opinion that SP-6
at a 1:3 ratio was “the only factor that could have caused hollow heart” in Bailey Farms’ fields
“remain[ed] the same.”
Assuming that these witnesses could be properly qualified as experts on the causes of
hollow-heart in seedless watermelons in Bailey Farms’ fields in 2015, taken as a whole, their
testimony provides evidence of, at most, a correlation between hollow-heart and Bailey’s use of
SP-6. Although Kee’s affidavit more definitely asserts that it was his opinion that SP-6 was the
only factor that could have caused hollow heart at Bailey Farms in 2015, the affidavit did not create
a material question of fact regarding causation. A party cannot contrive to establish a factual issue
by relying on an affidavit contrary to an unfavorable deposition. See Dykes v William Beaumont
Hosp, 246 Mich. App. 471, 479-482; 633 NW2d 440 (2001). This rule applies, not only to a party’s
deposition testimony, but also to opinions by experts. See id. As applied in this case, given Kee’s
deposition testimony to the effect that he could not identify SP-6 as a cause with a reasonable
degree of scientific certainty and that SP-6 was only a possible cause warranting further
investigation, Bailey Farms cannot attempt to create a material question of fact by submitting a
contradictory affidavit in which Kee attempts to more definitely identify SP-6 as an actual cause.
Without the affidavit, Kee and Bailey could say only that hollow heart occurred in fields
where Bailey planted SP-6 and that SP-6 may be a cause of the issue. “[T]estimony that only
establishes a correlation between conduct and injury is not sufficient to establish cause in fact.”
Teal v Prasad, 283 Mich. App. 384, 392; 772 NW2d 57 (2009). “It is axiomatic in logic and in
science that correlation is not causation. This adage counsels that it is error to infer that A causes
B from the mere fact that A and B occur together.” Craig ex rel Craig, 471 Mich. at 93. In short,
without more, the simple fact that hollow heart occurred in fields with a SP-6 usage at a 1:3 ratio
is not sufficient to establish SP-6 as a cause in fact of the hollow heart that Bailey Farms
experienced in 2015. Accordingly, the testimony provided is insufficient to overcome the motion
for summary disposition.
-5-
As a final attempt to establish a question of causation, Bailey Farms notes that Syngenta
has released a new pollenizer, SP-7, which improves on SP-6 insofar as SP-7 has larger flowers
and more flowers, and it flowers earlier than SP-6. As a general matter, however, evidence of a
subsequent design change typically may not be used to prove the existence of a defect in a previous
design. Phillips v J L Hudson Co, 79 Mich. App. 425, 426; 263 NW2d 3 (1977). In any event,
given Bailey Farms’ failure to identify any particular defect in SP-6 that caused hollow heart, it
cannot logically be concluded on the facts of this case that SP-7 was created to remedy a defect in
SP-6 that caused hollow heart or that, more specifically, there was a causal connection between
this unidentified defect in SP-6 and hollow heart at Bailey Farms in 2015. In other words, that
Syngenta subsequently released a better product is not evidence that the previous product was
deficient.
Therefore, because Bailey Farms failed to establish a material question of fact on the issue
of causation, we affirm the trial court’s grant of summary disposition to Rispens Seeds. Therefore,
it is unnecessary for us to address the trial court’s ruling in regard to the parties alleged contract.
B. INTEREST
Next, Bailey Farms argues that the trial court erred by calculating interest on the claim
using the interest rate set forth in the Rispens Seeds’ invoices rather than applying MCL 600.6013.
More specifically, Bailey Farms asserts that, even if the parties contracted for a choice of
substantive law other than Michigan, MCL 600.6013 should apply because it is procedural. We
review choice-of-law questions de novo. In re Bibi Guardianship, 315 Mich. App. 323, 328; 890
NW2d 387 (2016).
The Rispens Seeds invoices provide for an interest rate of 18% per year, apparently
applying an Illinois provision to reach that conclusion. Rather than calculating interest under the
invoices, Bailey Farms asserts that the trial court should have calculated interest in keeping with
Michigan’s prejudgment interest statute, MCL 600.6013. Bailey Farms, however, does not
identify what provision of MCL 600.6013 the trial court should have applied, nor does Bailey
Farms address what prejudgment interest is generally permitted in Illinois.
Moreover, several documents in the lengthy chain of documentation between Bailey
Farms, Rispens Seeds, and Syngenta purport to apply Minnesota law “without regard to any
conflict of law provision.” Likewise, under the Rispens Seeds invoices, Illinois law governs the
“rights, duties, obligations, performance, enforcement and substantive and procedural issues
arising out of this Contract.” Although “[a] court usually applies its own local law rules
prescribing how litigation shall be conducted even when it applies the local law rules of another
state to resolve other issues in the case,” Restatement Conflict of Laws, 2d § 122 (1971), where
the parties specifically contract to the procedural rules of another state, the procedural rule may
govern. See OrbusNeich Med Co, Ltd, BVI v Boston Science Corp, 694 F Supp 2d 106, 114 (D
Mass, 2010).
Bailey Farms’ argument regarding the interest provisions of the judgment amounts to an
entire two paragraphs of their brief. In short, Bailey Farms states only that, because MCL 600.6013
is procedural, it should apply over the invoices. Under the unique factual circumstances of this
case, this argument is insufficient to warrant our review. Specifically, Bailey Farms failed to
-6-
present any particularized argument as to the relevant portions of MCL 600.6013 or the choice-of-
procedural-law provision—issues which are necessary to address in deciding this issue. “It is not
sufficient for a party simply to announce a position or assert an error and then leave it up to this
Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his
arguments, and then search for authority either to sustain or reject his position.” Wilson v Taylor,
457 Mich. 232, 243; 577 NW2d 100 (1998) (internal citation and quotation marks omitted). An
appellant’s failure to properly address the merits of his assertion of error constitutes abandonment
of the issue. Yee v Shiawassee Co Bd of Comm’rs, 251 Mich. App. 379, 406; 651 NW2d 756 (2002).
Accordingly, we are unable to conclude that the trial court’s interest calculation was erroneous.
Affirmed.
/s/ Christopher M. Murray
/s/ Patrick M. Meter
/s/ Kirsten Frank Kelly
-7- | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1610150/ | 39 So.3d 1285 (2010)
Carlton JACKSON, Appellant,
v.
Betty Holmes ANTHONY, Appellee.
No. 1D09-6175.
District Court of Appeal of Florida, First District.
July 23, 2010.
Mary W. Colon of Smith Thompson Shaw Manausa, Tallahassee, for Appellant.
Stephen Marc Slepin of The Maddox Horne Law Firm, Tallahassee, for Appellee.
PER CURIAM.
On September 18, 2008 a trial was held on an action for specific performance of a contract. After the trial, but prior to the filing of the judgment, Defendant filed a Motion to Admit and Consider Newly Discovered Evidence on December 8, 2008. The trial court filed a judgment in Plaintiff's favor with the Clerk on July 2, 2009. On July 9, 2009, Defendant filed a Motion for Rehearing. The Motion for Rehearing and the still-pending Motion to Admit and Consider Newly Discovered Evidence were both denied by order entered on August 26, 2009. On September 14, 2009, Appellant filed a Motion for Attorney Fees and Costs in the trial court. This motion was denied on November 10, 2009, because the judge found that it was untimely filed. The Motion for Fees was filed seventy-two days after the trial court filed its judgment with the clerk, and nineteen days after the trial court entered its order denying the motions to Admit and Consider Newly Discovered Evidence and for Rehearing.
*1286 Appellant now appeals the trial court's denial of the Motion for Attorney's Fees and asserts that the motion was timely. He argues the judgment filed with the clerk did not constitute a "judgment" for purposes of Florida Rule of Civil Procedure 1.525 because at the time the judgment was filed, his previously filed Motion to Admit and Consider Newly Discovered Evidence was still pending. He also asserts that his post-judgment Motion for Rehearing tolled the time limit for his Motion for Attorney's Fees. We disagree.
Florida Rule of Civil Procedure 1.525 provides:
Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.
(Emphasis added).
Appellant failed to file his motion for attorney's fees within 30 days of the filing of the judgment with the clerk. A motion for rehearing does not toll the 30-day time limit in rule 1.525. See Manimal Land Co. v. Randall E. Stofft Architects, P.A., 889 So.2d 974 (Fla. 4th DCA 2004); Clampitt v. Britts, 897 So.2d 557 (Fla. 2d DCA 2005).
Likewise, a post-trial Motion to Admit and Consider Newly Discovered Evidence, does not toll the 30-day time limit. The filing of the judgment with the clerk signals that the judicial labor has come to an end. Appellant's prejudgment request to consider more evidence does not stay the filing of the judgment. Such a motion is merely a request that the court devote more judicial labor to the case. Counsel was put on notice that the court considered the judicial labor at an end. Therefore, the judgment filed in this case constituted a "judgment" as contemplated by rule 1.525 and the 30-day time limit for the motion for attorney's fees began to run from the date of its filing.
AFFIRMED.
DAVIS, CLARK, and WETHERELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610161/ | 865 So.2d 473 (2003)
Carl E. FALLIN
v.
CITY OF HUNTSVILLE.
CR-01-0193.
Court of Criminal Appeals of Alabama.
January 31, 2003.
Rehearing Denied March 14, 2003.
Certiorari Denied May 16, 2003.
*474 Charles H. Pullen, Huntsville, for appellant.
Walter A. Record III, Huntsville, for appellee.
Alabama Supreme Court 1021024.
SHAW, Judge.
Carl E. Fallin was convicted in the municipal court of the City of Huntsville ("the City") of third-degree harassment, a violation of § 13A-11-8(a)(1)(b), Ala.Code 1975, as adopted for enforcement by the City of Huntsville, Ordinance § 18-1 of the Huntsville Code of Ordinances 1982. Fallin appealed that conviction to the Circuit Court of Madison County. Following a trial de novo, Fallin was again convicted of harassment in the third degree, and he was sentenced to three months in the Huntsville city jail. That sentence was suspended for one year: Fallin was ordered to complete 240 hours of community service at 20 hours per month in the Madison County Work Release Program; was ordered to pay various fines and court costs; and was ordered to serve the balance of his sentence on supervised probation.
The evidence adduced at trial indicated the following. On April 9, 2001, Fallin met with James Embry, the principal of Lee High School in Huntsville, to discuss Fallin's objections to the process used to select varsity cheerleaders.[1] When Embry refused to change the process to allow Fallin's daughters to make the varsity cheerleading squad, Fallin told him that "the blood would be on [his] hands." (R. 48.) Later that same day, Fallin went to the school gymnasium, where cheerleading coach Gail Johnson was conducting a getacquainted meeting on the balcony. Fallin's younger daughter announced that she was quitting cheerleading because of the way she and her sister had been treated. After his daughter's announcement, Fallin began yelling and pointing at Johnson. He said that he was taking both of his daughters out of cheerleading and that the coach was crazy and dangerous to children. He took three or four steps toward Johnson and the cheerleaders, and they backed away. He then made the following statements to the coach: "This isn't over"; "I'll have my foot up your butt"; and "I'll be on you like white on rice." (R. 154.) Fallin left after the mother of one of the other cheerleaders told him to leave the gymnasium. Fallin testified that he had *475 meant by his statements that the principal was responsible for any harm to the children and that he intended to seek additional remedies from school management regarding the cheerleading situation. Fallin was charged with third-degree harassment.
I.
Fallin first contends that the trial court erred in denying his motion for a judgment of acquittal, made at the close of the City's case. Specifically, he argues that the motion should have been granted because, he says, his statements did not constitute "fighting words" and, therefore, he claimed, could not support a conviction for harassment.
The complaint charged Fallin with violating "city ordinance 18-1 adopting [C]ode of Alabama, [§] 13A-11-8(a)(1)(b)." (C. 5.) Section 13A-11-8, Ala.Code 1975, provides, in pertinent part:
"(a)(1) Harassment. A person commits the crime of harassment if, with intent to harass, annoy or alarm another person, he or she either:
"a. Strikes, shoves, kicks, or otherwise touches a person or subjects him or her to physical contact.
"b. Directs abusive or obscene language or makes an obscene gesture towards another person."
Historically, this Court has held that the "abusive or obscene language" provision of Alabama's disorderly conduct and harassment statutes was limited to "fighting words." See, e.g., Conkle v. State, 677 So.2d 1211 (Ala.Crim.App.1995); R.I.T. v. State, 675 So.2d 97 (Ala.Crim.App.1995); B.E.S. v. State, 629 So.2d 761 (Ala.Crim. App.1993); Robinson v. State, 615 So.2d 112 (Ala.Crim.App.1992). "[Fighting words] by their very utterance provoke a swift physical retaliation and incite an immediate breach of the peace." Skelton v. City of Birmingham, 342 So.2d 933, 936-37 (Ala.Crim.App.), remanded on other grounds, 342 So.2d 937 (Ala.1976). "`The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.'" Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), quoting State v. Chaplinsky, 91 N.H. 310, 320, 18 A.2d 754, 762 (1941). The words "`must be sufficiently offensive to raise a probability of physical retaliation by the addressee or someone acting in his interest.'" B.E.S., 629 So.2d at 765, quoting A.L.I. Model Penal Code § 250.4 at 365-66 (1980). However, each of those cases, and indeed, nearly all of the published cases in Alabama, were authored before the Alabama Legislature's 1996 amendment to the harassment statute.[2]
The 1996 amendment added subsection (a)(2) to § 13A-11-8, Ala.Code 1975. Section 13A-11-8(a)(2) provides that "[f]or purposes of this section, harassment shall include a threat, verbal or nonverbal, made with the intent to carry out the threat, that would cause a reasonable person who is the target of the threat to fear for his or her safety." (Emphasis added.)
In Conkle, this Court, with Presiding Judge Taylor and Judge Long filing special concurrences, Judge Patterson concurring in the result, and Judge Cobb dissenting, stated that the words "I'm going to get you, little girl. You're as good as dead," spoken by the appellant from his car as he drove past the complainant, did not constitute harassment. Conkle, 677 So.2d at 1213. However, that case was *476 decided before the 1996 amendment of the harassment statute by the Alabama Legislature.
Indeed, Judge McMillan, who authored the opinion of the Court in Conkle, stated, "under current law in Alabama, a verbal threat alone, in circumstances that would not cause public disorder or unrest by being likely to start a fight, does not constitute an offense." Conkle, 677 So.2d at 1219 (emphasis added). Judge Long, in his special concurrence, stated:
"I am troubled that our laws will countenance an intentional threat that places another person in reasonable fear for his or her safety. It seems peculiar to me that while our anti-stalking law recognizes the real harm caused by a credible threat when made in conjunction with repeated following or harassing behavior, there is no law comprehending the harm caused by a credible face-to-face threat standing alone. See § 13A-6-90 et seq., Ala.Code 1975. Even more peculiar, under § 13A-8-11(b)(1), a communication by telephone or mail, made with the intent to alarm another person, is considered a criminal act. Thus, apparently it is illegal to threaten someone over the telephone, but perfectly legal to threaten to kill someone in person. This court, however, does not write the laws."
677 So.2d at 1219. Judge Cobb, in her dissent in Conkle, wrote, "If, upon further review, the majority remains successful, then the question of affording our citizenry protection from substantial threats of violence should be addressed by the Alabama Legislature as has been done in other states." Conkle, 677 So.2d at 1220.
We conclude that the Alabama Legislature, in enacting the 1996 amendment to the harassment statute, appears to have done exactly as several members of this Court in Conkle prevailed on it to do. The Alabama Supreme Court recognized this in Ex parte N.W., 748 So.2d 190, 193 (Ala.1999), as a part of a discussion concerning whether harassment was a lesser offense to the offense of menacing. In a footnote, the Court stated:
"We note that there is some ambiguity as to whether § 13A-11-8(a)(2) is merely a clarification of subsection (a)(1), requiring the prosecution to establish the elements of (a)(1), or is a completely separate definition of the offense, requiring only the establishment of the elements in (a)(2). Because only subsection (a)(1) contains the traditional language identifying the elements of a criminal offense`A person commits the crime of harassment if ...'we adopt the former construction for the purposes of this appellate review."
748 So.2d at 193 n. 3. Therefore, we hold that a person commits the crime of harassment if, with the intent to harass, annoy, or alarm another person, he or she strikes, shoves, kicks, or otherwise touches that person or subjects him or her to physical contact; directs abusive or obscene language or makes an obscene gesture towards that person; or makes a threat against that person, verbally or nonverbally, with the intent to carry out the threat, that would cause a reasonable person who is the target of the threat to fear for his or her safety. Thus, we conclude that, in certain situationsi.e., where the words or actions are manifested in the form of a threata person may commit the crime of harassment even if the words do not rise to the level of "fighting words." We note that abusive or obscene language must still amount to "fighting words" in those situations where the language is merely offensive or distasteful, but does not constitute a threat.
We are now faced with the type of situation contemplated by the Legislature when it drafted the amendment to § 13A11-8. *477 Here, viewing the testimony in the light most favorable to the State, as is the standard of review when an appellant has challenged the sufficiency of the evidence, the record indicates that Fallin, a large man, was yelling at Johnson, waving his arms and pointing his finger at her as he approached her, saying that she was crazy and that she was a threat to the cheerleaders in her care. The record further indicates that as Fallin approached Johnson, he said, "This is not over yet ... I'm going to put my foot so far up your butt that it will be like white on rice." (R. 154.) Johnson testified that she was placed in fear and that she thought she was going to have to fight "because [Fallin] kept coming at [me]." (R. 156.) Subsection (a)(2) provides that the state of mind of a reasonable person in the same situation in which the victim finds himself or herself is the governing standard.[3] In the present case, although it was undisputed that Fallin remained at least 10 feet from Johnson, that he made no moves as if to strike her, and that he had nothing in his hands with which to cause her harm, Johnson's testimony clearly satisfies the elements of harassment under the statute as it reads today. Johnson testified that she was "afraid for [her] safety" (R. 195), that she and the cheerleaders began retreating, and that she thought she might have to "defend [her]self" (R. 156). Johnson further stated that during the confrontation she was "visibly shaking ... [a]nd [that she] was terrified." (R. 198.) Whether Johnson's fears were reasonable[4] was a question for the jury; it was for the jury to render a verdict based on the evidence presented at trial and the law as defined by the trial court.
Additionally, we note that the fact that the complaint did not specifically list § 13A-11-8(a)(2) as the statute being violated is not fatal. As a clarification of subsection (a)(1), and not a separate offense, subsection (a)(2) would not have to be listed in the complaint.[5] See Ex parte N.W., supra.
The trial court gave a jury instruction containing the language of subsection (a)(2), and Johnson testified that Fallin's words and actions placed her in fear for her safety. Whether Fallin intended to harass, annoy, or alarm Johnson; whether he intended to carry out his threats; and whether it was reasonable for a person in Johnson's position to have been placed in fear for her safety were questions that were properly submitted to the jury. Therefore, the trial court properly denied Fallin's motion for a judgment of acquittal.
II.
Fallin also contends that the trial court erroneously allowed prior statements *478 made by him to be introduced into evidence. In a pretrial motion in limine, Fallin asked the trial court to exclude evidence of a prior statement that he had made to Principal Embry the morning of the incident; that motion was denied. At trial, Principal Embry testified that Fallin had asked him to use his daughters' cheerleading scores from the previous year, thus justifying their being placed on the cheerleading squad for the upcoming year. Principal Embry testified that when he told Fallin that he could not do that because it would not be fair to use different criteria for some girls to determine who made the cheerleading squad, Fallin became visibly displeased and left his office. Principal Embry testified, over Fallin's objections, that Fallin said "that the blood would be on my hands. And if I didn't go along with his suggestions, that the blood would be on my hands." (R. 48.)
Rule 404(b), Ala.R.Evid., provides, in pertinent part:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...."
Evidence indicating that on the day of the incident and at the conclusion of a conversation about Johnson and the cheerleading squad, Fallin had stated "the blood is on [Embry's] hands" if he did not allow Fallin's daughters' cheerleading scores to be graded differently in order to allow them to be on the squad was clearly admissible to show Fallin's intent, an essential element of the crime of harassment. Fallin cites Hunter v. State, 802 So.2d 265 (Ala.Crim.App.2000), to support his contention that the statements were inadmissible. However, Hunter is easily distinguishable from the facts here. In Hunter, evidence was introduced concerning an uncharged, dissimilar, and unrelated robbery that had occurred two weeks prior to the robbery for which Hunter was charged. This Court held that that evidence was not admissible to prove intent because it "did not logically lead to an inference that Hunter, because he had allegedly committed the prior robbery, had the prerequisite intent to commit the now-charged crimes at the time they were committed." Hunter, 802 So.2d at 270. Here, unlike the evidence complained of in Hunter, the statements Fallin made to Principal Embry logically lead to an inference that Fallin had the prerequisite intent to seek Johnson out and confront her, which he did that same day. The trial court did not err in allowing the statements into evidence.
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.
NOTES
[1] Both of Fallin's daughters were junior varsity cheerleaders, but they had not been selected for the varsity squad.
[2] The trial court also correctly noted this fact when Fallin cited many of these cases in his motion to dismiss the complaint and during the arguments on his motion for a judgment of acquittal.
[3] Johnson stated that she was not moved by Fallin's words to attack him. However, an actual attack or retaliation has never been a requirement for a conviction, even one based solely on the use of "fighting words."
[4] The only other people in the gymnasium were the cheerleaders and some of the mothers. We note that several of those witnesses stated that they feared Fallin and had backed away from him. One of the witnesses testified that she began to move toward Fallin as he approached Johnson and the cheerleaders because her daughter was in the group of cheerleaders standing near Johnson. (R. 123.) That same witness testified that the mother of another cheerleader actually confronted Fallin, ordered him to leave the gym, and then telephoned the police. This testimony certainly lends credence to the jury's apparent finding that Johnson's fears were reasonable.
[5] The fact that the ordinance was enacted before the 1996 amendment is irrelevant because § 18-1, Huntsville Code of Ordinances 1982, contains "now existing or hereafter enacted" language sufficient to encompass the 1996 amendment to § 13A-11-8(a), Ala.Code 1975. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4515813/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 12, 2020
Plaintiff-Appellant,
v No. 349080
Cass Circuit Court
DAMEON MICHAEL OUERT, LC No. 16-010347-FH
Defendant-Appellee.
Before: MURRAY, C.J., and METER and K. F. KELLY, JJ.
PER CURIAM.
In this interlocutory appeal, plaintiff appeals by delayed leave granted1 the trial court’s
order granting a new trial. A jury convicted defendant of first-degree home invasion, MCL
750.110a(2), and lying to a police officer, MCL 750.479c(2)(c). The trial court sentenced
defendant to concurrent sentences of 4 to 20 years’ imprisonment for his conviction of first-degree
home invasion, and two to five years’ imprisonment for his conviction of lying to a police officer.
We reverse.
This case arises out of a home invasion that occurred in November 2016. The eyewitness
testified that she was home alone when she started to hear “the [back] door rattling, like moving,
and then [she] heard, like—it sounded like scratching noises on the door.” She then “heard the
big, like, a couple bumps like a shoulder was hitting the door, and then a boom where the door
actually came open.” She “ran out into the kitchen,” but realized that “it was the doorway to the
back room where the door was.” The eyewitness identified defendant as the individual who broke
into the house. She testified that defendant wore a white shirt, black gloves, and “pajama pants
that looked like jeans.” The eyewitness was able to identify defendant because he was a family
friend.
1
People v Ouert, unpublished order of the Court of Appeals, entered September 24, 2019 (Docket
No. 349080).
-1-
Officer Thorn Lewis of the Dowagiac Police Department responded to the home invasion
call, and eventually went to defendant’s residence to speak with him. Defendant’s residence was
“probably a minute or two away” driving distance from the victim’s house, and “was easy to walk
to” from the victim’s house. When Officer Lewis and his partner arrived at defendant’s house,
Officer Lewis noticed that defendant wore “pajama pants that looked almost like blue jeans.”
Officer Lewis’s partner testified that he told defendant that they were investigating a home
invasion, and that an eyewitness identified defendant. Defendant denied any involvement, but he
was ultimately arrested.
As we previously noted, a jury convicted defendant of first-degree home invasion and lying
to a police officer. After trial, defendant moved the trial court for a new trial on the basis that he
received ineffective assistance of counsel because defense counsel did not object to the admission
of purported other-acts evidence. However, the trial court appeared to grant defendant’s motion
on the basis that the other-acts evidence should have been excluded as irrelevant and unfairly
prejudicial. Thus, we will address both the basis for the motion and the trial court’s decision.
This Court reviews a trial court’s decision to grant or deny a motion for a
new trial for an abuse of discretion. An abuse of discretion occurs when a trial
court’s decision falls outside the range of reasonable and principled outcomes. A
mere difference in judicial opinion does not establish an abuse of discretion.
A trial court’s factual findings are reviewed for clear error. MCR 2.613(C).
Clear error occurs if the reviewing court is left with a definite and firm conviction
that the trial court made a mistake. MCR 2.613(C) provides that regard shall be
given to the special opportunity of the trial court to judge the credibility of the
witnesses who appeared before it. And appellate courts need not refrain from
scrutinizing a trial court’s factual findings, nor may appellate courts tacitly endorse
obvious errors under the guise of deference. [People v Johnson, 502 Mich. 541,
564-565; 918 NW2d 676 (2018) (quotation marks and citations omitted).]
Determining whether a defendant received ineffective assistance of counsel is a mixed question of
fact and constitutional law. People v Head, 323 Mich. App. 526, 539; 917 NW2d 752 (2018).
In order to receive a new trial on the basis of ineffective assistance of counsel, defendant
“must show both that counsel’s representation fell below an objective standard of reasonableness,
and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Smith v Spisak, 558 U.S. 139, 149; 130 S. Ct. 676; 175
L. Ed. 2d 595 (2010) (quotation marks and citation omitted); see also People v Trakhtenberg, 493
Mich. 38, 51; 826 NW2d 136 (2012). Accordingly, a defendant must “identify the acts or omissions
of counsel that are alleged not to have been the result of reasonable professional judgment.”
Strickland v Washington, 466 U.S. 668, 690; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). “The court
must then determine whether, in light of all the circumstances, the identified acts or omissions
were outside the wide range of professionally competent assistance.” Id. Secondly, defendant
must show a reasonable probability that, “but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694. “Because the defendant bears the burden of
demonstrating both deficient performance and prejudice, the defendant necessarily bears the
-2-
burden of establishing the factual predicate for his claim.” People v Carbin, 463 Mich. 590, 600;
623 NW2d 884 (2001).
For purposes of appeal, we assume that defense counsel’s failure to object to the other-acts
evidence was unreasonable, satisfying the first prong for an ineffective assistance of counsel claim.
However, defendant did not establish that there is a reasonable probability that, but for defense
counsel’s alleged error, the outcome of the proceedings would have been different. See People v
Jackson, 313 Mich. App. 409, 431; 884 NW2d 297 (2015). Removing the other-acts evidence from
consideration still left the jury with the eyewitness’s testimony about defendant breaking into the
home while she was present, and that defendant was wearing black gloves when he entered the
home. Moreover, a police officer testified that defendant was wearing pajama bottoms similar to
those described by the eyewitness. Although defendant told the officer that he was at home all
day and was not involved, “a jury is free to believe or disbelieve, in whole or in part, any of the
evidence presented.” People v Perry, 460 Mich. 55, 63; 594 NW2d 477 (1999). With this
testimony and the circumstantial evidence of the gloves to prove defendant’s intent, absent the
other-acts evidence, there was still enough significant evidence to convict defendant of first-degree
home invasion and lying to a police officer. Accordingly, there was not a reasonable probability
that the outcome of the proceedings would have been different absent the other-acts evidence.
With respect to the trial court’s grant of a new trial on the basis that the other-acts evidence
should have been excluded, a trial court may grant a new trial “on any ground that would support
appellate reversal of the conviction or because it believes that the verdict has resulted in a
miscarriage of justice.” See MCR 6.431(B). However, assuming this evidence qualifies as other-
acts evidence, we apply the plain error rule to unpreserved issues of evidentiary error. See People
v Carines, 460 Mich. 750, 764; 597 NW2d 130 (1999). For the reasons already stated, the
admission of the other-acts evidence did not amount to an outcome-determinative error requiring
reversal.
The trial court’s order granting a new trial is reversed. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Patrick M. Meter
/s/ Kirsten Frank Kelly
-3- | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1610290/ | 739 F.Supp. 1472 (1990)
Bianca ROMERO, Plaintiff,
v.
MASON AND HANGER-SILAS MASON COMPANY, INC., a Kentucky Corporation, et al., Defendants.
No. CIV 89-1274-SC.
United States District Court, D. New Mexico.
May 17, 1990.
*1473 Richard Rosenstock, and Asenath Kepler, Santa Fe, N.M., for plaintiff.
George Cherpelis, Timothy L. Salazar, Peggy A. Hardwick, Cherpelis Vogel and Salazar, Albuquerque, N.M., for defendants.
MEMORANDUM OPINION AND ORDER
CAMPOS, District Judge.
This case is before the Court on a Motion to Remand filed by Plaintiff. For the reasons contained in this Opinion, the Motion will be granted and the case will be remanded to state court.
On October 10, 1989 Plaintiff filed her complaint in Rio Arriba County District Court against her former employer, Defendant Mason and Hanger-Silas Mason Company, Inc. ("Mason and Hanger"), and three of her supervisors, Defendants Tommy Hook ("Hook"), Leonard Carter ("Carter") and Robert Everhart ("Everhart"). Mason and Hanger provides security services to Los Alamos National Laboratory ("LANL"). Plaintiff was employed as a security inspector by Mason and Hanger at LANL. Plaintiff's Complaint alleges that in 1985 she was subjected to what she believed to be sex harassment by a male supervisory official and filed a complaint about this with Hook. She thought her complaint was not adequately handled and verbally complained further about that. *1474 Subsequently, she alleges that she was subjected to a three year campaign of harassment by various male supervisors which was ratified by the Defendants. Plaintiff alleges further that during the summer of 1988 Plaintiff sent a memorandum to Defendants regarding a male supervisor who had engaged in conduct regarding the assignment of personnel which she felt was incompetent and placed the security of LANL and the inspectors on duty in danger. She asked Everhart to take corrective action, but she alleges that instead, in retaliation for having alleged a breach of security, for having sought an investigation into that incident, and as part of the long standing campaign of retaliatory harassment directed against her since the time she complained of sexual harassment in 1985, she was terminated in August 1988. Allegedly the reasons proffered by the Defendants to justify her termination were pretext designed to conceal the retaliatory animus behind the decision.
Plaintiff has alleged three causes of action: intentional infliction of emotional distress; wrongful or retaliatory discharge; and intentional interference with contractual relations. She alleges damages for aggravation of a pre-existing ulcer condition causing pain and suffering, severe emotional distress, embarrassment and humiliation, as well as economic loss in the form of lost wages and benefits, impaired earning capacity, and so forth.
On November 16, 1989 Defendants timely removed Plaintiff's Complaint pursuant to 28 U.S.C. §§ 1441(a) and (b) and 1446. The grounds for removal were stated as follows:
As an employee of Mason and Hanger, the plaintiff was subject to a collective bargaining agreement containing a grievance and arbitration procedure covering discharge from employment. The grievance and arbitration procedure culminates in final and binding arbitration. Actions seeking damages on loss of employment from a position covered by the collective bargaining agreement are subject to the exclusive jurisdiction of the federal court system, and plaintiff's claim for loss of employment is completely preempted by the Labor Management Relations Act.
Notice of Removal, ¶ 4. Defendants allege this Court has jurisdiction under 29 U.S.C. § 185. This is known as § 301 of the Labor Management Relations Act of 1947 ("§ 301"), 61 Stat. 156, which provides in pertinent part:
Suits for violations of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties without respect of the amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185(a).
Plaintiff was subject to the terms of a collective bargaining agreement between Mason and Hanger and the union.[1] The agreement at Article 4(b)(2) gives Mason and Hanger the right "to discharge employees for just cause." Following her termination, Plaintiff filed a union grievance pursuant to Article 7 of the agreement which was denied by Mason and Hanger apparently on procedural grounds.
Defendants assert that Plaintiff's state law claims are subject to complete preemption under § 301. The United States Supreme Court recently discussed the propriety of removal of state law claims pursuant to § 301. Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The Court described the issue as:
whether respondents' state law complaint for breach of individual employment contracts is completely pre-empted by § 301 ... and therefore removable to Federal District Court.
*1475 Id. at 388, 107 S.Ct. at 2427. The Court outlined the removal analysis. The case must be one that could have been filed in federal court. If diversity is lacking, there must be a federal question presented on the face of the well-pleaded complaint. This "well-pleaded complaint rule" makes the plaintiff the master of the claim. By exclusive reliance on state law, the plaintiff can avoid federal jurisdiction. Id. at 392, 107 S.Ct. at 2429.
Federal preemption ordinarily is raised as a defense to a complaint and does not convert a state claim into a federal one, and such a case is not removable to federal court. Id. at 392-93, 107 S.Ct. at 2429-2430. However a "corollary", known as the "complete preemption doctrine," exists:
On occasion, the Court has concluded that the preemptive force of a statute is so `extraordinary' that it `converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.' [citation omitted] Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law. [citation omitted]
The complete pre-emption corollary to the well-pleaded complaint rule is applied primarily in cases raising claims pre-empted by § 301 of the LMRA....
Id. at 393, 107 S.Ct. at 2430. When such a claim is stated, the case is removable to federal court irrespective of whether the federal claim appears on the face of the complaint. Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 560, 88 S.Ct. 1235, 1237, 20 L.Ed.2d 126 (1968); Local No. 57 v. Bechtel Power Corp., 834 F.2d 884, 886 (10th Cir.1987), cert. denied, 486 U.S. 1055, 108 S.Ct. 2822, 100 L.Ed.2d 923 (1988).
Not all state law claims brought by unionized employees against their employers are completely preempted by § 301 and transformed into federal claims. The Court must look at whether the claims are "founded directly on rights created by collective-bargaining agreements," Caterpillar, Inc. 482 U.S. at 394, 107 S.Ct. at 2431, or "substantially dependent on analysis of a collective-bargaining agreement." Id., quoting Electrical Workers v. Hechler, 481 U.S. 851, 859, n. 3, 107 S.Ct. 2161, 2166, n. 3, 95 L.Ed.2d 791 (1987); see also, Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1915, 85 L.Ed.2d 206 (1985). If so, the case is removable to federal court. However, if a plaintiff asserts state-created legal rights that exist independently of a labor agreement and plaintiff's claims do not rely on the provisions of a collective bargaining agreement, then complete preemption does not apply to the claims and they should be remanded to the state court. See Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 407, 108 S.Ct. 1877, 1882, 100 L.Ed.2d 410 (1988) (state law claim for retaliatory discharge independent of collective bargaining agreement, no preemption). The mere fact that a plaintiff could or even did bring a claim under § 301 or file a grievance under the union agreement will not necessarily preempt a separate state tort or contract action in state court. Caterpillar, Inc., supra, 482 U.S. at 394-95, 107 S.Ct. at 2430-31; Lingle, 486 U.S. at 409-10, 108 S.Ct. at 1883-84; Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 564-66, 107 S.Ct. 1410, 1415-16, 94 L.Ed.2d 563 (1987).
WRONGFUL OR RETALIATORY DISCHARGE CLAIM.
Plaintiff alleges she was fired wrongfully and in retaliation for complaining about safety violations and about sexual harassment. New Mexico recognizes this cause of action where an employee has been discharged in retaliation for doing something that public policy encourages. Vigil v. Arzola, 102 N.M. 682, 686-90, 699 P.2d 613, 617-21 (1983), rev'd on other grounds, 101 N.M. 687, 687 P.2d 1038 (1984); Chavez v. Manville Products Corp., 108 N.M. 643, 777 P.2d 371, 375 (1989).
In Lingle, the Supreme Court held a claim for retaliatory discharge under Illinois law was not preempted by § 301. The elements of the tort did not require the *1476 trier of fact to interpret any term of a collective bargaining agreement.
Each of these purely factual questions pertains to the conduct of the employee and the conduct and motivation of the employer. Neither of the elements requires a court to interpret any term of a collective-bargaining agreement. To defend against a retaliatory discharge claim, an employer must show that it had a nonretaliatory reason for the discharge [citation omitted]; this purely factual inquiry likewise does not turn on the meaning of any provision of a collective-bargaining agreement. Thus, the state-law remedy in this case is `independent' of the collective bargaining agreement in the sense that matters for § 301 preemption purposes: resolution of the state-law claim does not require construing the collective-bargaining agreement.
Lingle, 486 U.S. at 407, 108 S.Ct. at 1882. Even though the state law analysis might involve the same factual considerations as the factual inquiry under the collective bargaining agreement of whether there was just cause for the discharge, that did not make the state law claim dependent on the union contract. Id. at 408-410, 108 S.Ct. at 1882-84. Accord, Pantoja v. Texas Gas & Transmission Corp., 890 F.2d 955 (7th Cir. 1989) (retaliatory discharge claim for filing federal lawsuit not preempted by federal labor law). Moreover, it is permissible that the trier of fact may have to make reference to the collective bargaining agreement to aid in determining damages. Id. 486 U.S. at 413, n. 12, 108 S.Ct. at 1885, n. 12.
Defendants in this case argue that the Court (or trier of fact) must necessarily interpret the terms of the collective bargaining agreement in deciding the retaliatory discharge claim because each of the alleged public policies is articulated in provisions of the agreement. For example, Plaintiff alleges violation of the policies regarding the right to complain of class-based discrimination, harassment and unsafe working conditions, and regarding fair dealing between employees and employers. (Complaint, ¶ 22). Article 7 of the union contract, containing a grievance and arbitration procedure, gives employees the right to complain. Article 21 recognizes the company's obligation not to tolerate any type of discrimination. Article 20 refers to the health and safety of employees. Finally, Article 4 which articulates the company's management rights provides for the company's right to assign work and to maintain security.
Defendants' argument is not persuasive. Plaintiff has not alleged a violation of the policies contained in the collective bargaining agreement. She relies only on violation of alleged policies of the State of New Mexico.[2] After Lingle it is irrelevant whether resolution of a state law claim implicates the same factual analysis as would a grievance filed under a collective bargaining agreement. A state law claim is "independent" of a labor contract and not preempted where "resolution of the state law claim does not require construing the collective bargaining agreement." Smolarek v. Chrysler Corp., 879 F.2d 1326, 1330 (6th Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 539, 107 L.Ed.2d 537 (1989) (quoting Lingle). Furthermore, it is well established that a proffered defense that an employer's conduct was authorized or required by a collective bargaining agreement is not a basis to allow removal of a state claim of retaliatory discharge. In reversing the district court and ordering remand to state court, the Smolarek court, citing Caterpillar Inc. v. Williams, supra, 482 U.S. at 398-99, 107 S.Ct. at 2432-33, stated:
Chrysler may, in its own defense, assert that its treatment of Smolarek was allowed or required by the terms of the collective bargaining agreement and therefore was not based on Smolarek's handicap. The assertion of a defense requiring application of federal law does not support removal to federal court....
Smolarek, 879 F.2d at 1333.
The Court concludes that resolution of Plaintiff's retaliatory discharge claim will *1477 not require the trier of fact to construe the collective bargaining agreement, and therefore that such claim is independent of the labor contract between the union and the company and not completely preempted by § 301.[3]
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM.
A similar analysis applies in the case of the tort of intentional infliction of emotional distress. The standard is that Plaintiff must prove she suffered severe emotional distress as a result of Defendants' extreme and outrageous conduct, and that such conduct was intentional or reckless. Newberry v. Allied Stores, Inc., 108 N.M. 424, 773 P.2d 1231, 1239 (1989); Dominguez v. Stone, 97 N.M. 211, 214, 638 P.2d 423, 426 (Ct.App.1981). The conduct challenged by Plaintiff relates to an alleged three year campaign of harassment stemming from her complaint about sexual harassment by a male supervisor. The harassment allegedly continued and intensified after Plaintiff made a written report about what she believed to be incompetent assignment of personnel which caused a security threat.
Defendant again argues that Plaintiff will have to present evidence requiring an analysis of the collective bargaining agreement. Article 4 reserves to the company the right to determine internal security policies, to assign work, to discipline and discharge employees, to determine personnel by which operations shall be conducted and generally to carry out the company mission. Defendants' assertion that Plaintiff must establish that the collective bargaining agreement did not authorize the conduct at issue is incorrect. At most, Defendants might defend on the basis that they were in compliance with the terms of the union contract.
Articles 20 and 21 recognize the company's obligations to fulfill health and safety responsibilities as well as responsibilities to ensure a working environment free of discrimination. Article 7 contains the procedure for employees to file grievances. Defendants claim that Plaintiff must prove the company exceeded merely carrying out its contractual duties under Articles 20 and 21, and must address her own responsibilities under Article 7 to grieve any contract violation, any question of interpretation or application of the contract, and her "obligation" to submit to binding arbitration. This too is incorrect. Once again Defendants have pointed to possible defenses they might assert to Plaintiff's tort claim for intentional infliction of emotional distress rather than to matters that must be proved by Plaintiff.
In Farmer v. United Brotherhood of Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977), the Supreme Court held a state law claim for emotional distress against a union was not preempted by the National Labor Relations Act. See also, Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987) (emotional distress claim under FELA for failure to provide a safe work place not precluded by arbitration provisions of Railway Labor Act); Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966) (defamation claim not preempted). The Ninth Circuit has stated:
Like the tort of defamation, intentional infliction of emotional distress hinges on state of mind, causation and injury. It requires extreme and outrageous behavior.... The collective bargaining agreement does not envision such behavior, and its grievance mechanism is not equipped to redress it. In reviewing whether there was just cause to suspect [plaintiff], the grievance committee would have no authority to decide whether [the company] had acted outrageously.... Moreover, it could provide no remedy for such behavior.
Tellez v. Pacific Gas and Electric Co., Inc., 817 F.2d 536, 539 (9th Cir.), cert. denied, 484 U.S. 908, 108 S.Ct. 251, 98 L.Ed.2d 209 (1987). As in Lingle, supra, *1478 proof of an emotional distress claim depends on showing motivation or state of mind, and typically will not require interpretation of the terms of a collective bargaining agreement.
The Court concludes that resolution of Plaintiff's tort claim for intentional infliction of emotional distress will not require the trier of fact to construe the collective bargaining agreement, and that such claim is independent of the labor contract between the union and the company. Therefore, it is not preempted by § 301.
INTERFERENCE WITH CONTRACT RELATIONS CLAIM.
This is a claim against the three individual Defendants, Hook, Carter and Everhart for allegedly "intentionally and improperly interfer[ing] with the performance of the employment contract existing between Plaintiff and Mason and Hanger by inducing or otherwise causing Mason and Hanger to terminate its contract with Plaintiff for the improper reasons alleged above." Complaint, ¶ 25. Plaintiff also alleges that the individual Defendants "were not acting for a bona fide corporate or organizational purpose and said Defendants were not serving the corporate interest in good faith by acting out of such wrongful motivation." Complaint, ¶ 24.
To prove this claim, Plaintiff must show the individual Defendants intentionally and improperly interfered with the performance of the contract that existed between herself and her employer by inducing the employer to terminate her. Restatement (Second) of Torts, § 766 (1977). Determination of whether a defendant acted improperly depends on consideration of the factors set forth in Restatement, § 767 (the state of mind factors). Defendants argue, however, that this cause of action places the existence and terms of the contractual relationship created by the collective bargaining agreement at the center of Plaintiff's proof. She must prove the existence of the contract, that certain terms of the contract were not performed and that the Defendants' acts had no justification or, as Plaintiff alleged, were taken for no bona fide corporate or organizational purpose.
Not all contract-related claims are preempted. For example, where plaintiffs alleged breach of an employment contract that arose independently of the union contract, that claim was not preempted. Caterpillar, Inc., supra. And where plaintiff union members claimed breach of contract premised on an alleged violation of an employee policy book promulgated by the employer, their claim was not preempted by any federal labor law. Montano v. Zia Co., No. CIV-84-866-JC, USDC, DNM (Order of July 21, 1987).
Plaintiff argues that its interference claim is based not on interference with the union contract, but rather on interference with an implied contract, implied from personnel policies, practices, actions, communication and written procedures promulgated by the company. Plaintiff argues that the implied contract was created by written and/or oral promises outside of the labor contract. They include the issuance of an employee discipline policy setting forth the offenses which merit discipline and limiting the type of discipline the company may impose for a particular offense, an Affirmative Action Plan, and other written procedures and rules promulgated by the company which are not part of or incorporated into the labor contract. New Mexico recognizes implied contracts. Kestenbaum v. Pennzoil Co., 108 N.M. 20, 766 P.2d 280, 284 (1988), cert. denied ___ U.S. ___, 109 S.Ct. 3163, 104 L.Ed.2d 1026 (1989) (implied contract may be created through means other than an employee handbook or manual, such as oral statements, personnel policies, actions, communications, practices or procedures).
The Complaint does not allege the existence of the written union contract as the source of Plaintiff's contractual rights. If it did, then Defendants' arguments might have some merit. Even though Plaintiff does not allege the existence of an implied contract, it is not for this Court to test the sufficiency of the claim. The Court concludes that the Third Cause of Action does not rely on the existence or terms of, or require the analysis of the collective bargaining agreement and is sufficiently independent *1479 of it so that the claim for intentional interference with contract relations is not completely preempted by § 301.
ORDER
For the reasons contained in this Opinion, Plaintiff's Motion to Remand shall be and is hereby GRANTED. It is, therefore,
ORDERED, ADJUDGED AND DECREED that this case shall be remanded in its entirety to the First Judicial District Court, County of Rio Arriba, State of New Mexico, and it is further
ORDERED, ADJUDGED AND DECREED that pursuant to 28 U.S.C. § 1447(c) Defendants shall pay to Plaintiff just costs and any actual expenses, including attorney fees incurred as a result of this removal. The local rules of this Court regarding the award of costs and attorney fees will apply.
NOTES
[1] This agreement is titled: "AGREEMENT between MASON & HANGER SILAS MASON CO., INC. hereinafter referred to as THE COMPANY and LOS ALAMOS PROTECTIVE FORCE LOCAL NO. 69 affiliated with THE INTERNATIONAL GUARD UNION OF AMERICA both of which are collectively hereinafter referred to as THE UNION 1985-1989".
[2] This Court must not decide whether Plaintiff's claim has merit under state case law, or even whether she has properly stated a claim under state law. Smolarek v. Chrysler Corp., 879 F.2d 1326, 1331 (6th Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 539, 107 L.Ed.2d 537 (1989).
[3] The question of whether a state claim is subject to the complete preemption doctrine is different from the question of whether the defense of preemption has merit. See Caterpillar, Inc., 482 U.S. at 397-98, 107 S.Ct. at 2432-33. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610293/ | 865 So.2d 272 (2004)
STATE of Louisiana, Appellee
v.
Greg D. BLACKSON, Appellant.
No. 38,044-KA.
Court of Appeal of Louisiana, Second Circuit.
January 28, 2004.
*273 Sonny N. Stephens, Winnsboro, McKeithen, Ryland & Champagne, by Dina F. Domangue, for Appellant.
*274 William R. Coenen, Jr., District Attorney, Johnny R. Boothe, Penny Wise Douciere, Assistant District Attorneys, for Appellee.
Before BROWN, GASKINS and CARAWAY, JJ.
CARAWAY, J.
After a bench trial, Greg D. Blackson was convicted of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. For the conviction, Blackson was sentenced to twelve years at hard labor without benefit of parole, probation or suspension of sentence and a $1,000 fine. Urging various claims of error, Blackson appeals his conviction. We affirm.
Facts
On January 31, 2001, Blackson and Recardo Bell got into a verbal altercation in front of Bell's home on Carter Street in Winnsboro, Louisiana. The contradictory evidence showed that the argument ensued after Blackson stopped his vehicle to drop Bell off. After "exchanging words" with Bell, Blackson got back into his car and was driving away when Bell threw a half-full beer bottle at the car, breaking the rear passenger window. Blackson drove on but returned shortly to confront Bell about the broken car window. Testimony showed that Blackson had a gun which he waved around while arguing with Bell.
After Winnsboro City police officers arrived at Bell's home, they were dispatched to Blackson's trailer home in response to Blackson's complaint against Bell. When Lieutenant Bruce McCarthy and Officer Chris Shaw arrived at Blackson's trailer, Blackson informed them that Bell had broken his car window. Blackson admitted to Officer Shaw that he had returned to Bell's home with a gun. Blackson then retrieved the gun from the mobile home, claiming that it belonged to his wife.
Thereafter, both Blackson and Bell went to the police station and made formal complaints. In the complaint signed by Blackson, he described his confrontation with Bell as follows, "I went around turn around to come back and I stopped and ask what the problem was and he pull a gun I got my gun." Blackson was initially charged with aggravated assault for which he entered a guilty plea in city court. When it was later discovered that Blackson had a prior 1994 felony conviction for possession of cocaine, he was arrested for possession of a firearm by a convicted felon. After Blackson's conviction on this charge, this appeal ensued.
Discussion
Appellant's counsel has failed to brief and/or argue the assignments of error numbered three, four, seven, eight, nine, and ten. Therefore, this court considers those assigned errors abandoned. URCA Rule 2-12.4; State v. Schwartz, 354 So.2d 1332 (La.1978).
In his first assigned error, Blackson argues that the evidence was insufficient to convict him because the state failed to prove his previous felony conviction.[1] Incorporated within this argument is Blackson's separate but related claim that the state's proof of the previous conviction through the testimony of Franklin Parish Sheriff, Steve Pylant, was unduly suggestive and impermissible. Finally, Blackson also asserts as error the lack of sufficient evidence of his possession of a firearm.
*275 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. 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 the trier of fact'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. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255.
Possession of a firearm by a convicted felon requires proof of: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the ten-year cleansing period; and (4) general intent to commit the offense. La. R.S. 14:95.1; State v. Ball, 31,515 (La.App.2d Cir.12/9/98), 733 So.2d 1, citing, State v. Husband, 437 So.2d 269 (La.1983).
To prove the prior conviction and that the ten-year time period had not passed, the state submitted certified copies of court minutes, guilty plea and sentencing transcripts of the 1994 Franklin Parish proceedings entitled State Versus Greg Blackson. Blackson's first-offender pardon demonstrated that his firearm rights were not reinstated. Additionally, the state presented the testimony of Sheriff Pylant identifying Blackson as the same defendant who was previously convicted of possession of cocaine. The state conducted the following colloquy with Sheriff Pylant:
Q. Do you know the defendant in this case, Greg Blackson?
A. Yes, sir.
Q. How long have you worked at the Sheriff's Office?
A. Since 1982.
Q. I'm going to show you minutes of Court from December 7th 1994; March 14th 1995; and a transcript of sentencing from March 14th, 1995 in Docket Number 94-309F, State Versus Greg Blackson. Are you familiar with the person who was charged in that case?
A. Yes, sir.
Q. Is that person in the courtroom today?
A. Yes sir.
Q. Can you point him out to the Judge?
A. Yes, sir. Sitting to the right of Mr. Kramer.
Q. So this is the same Greg Blackson who is charged here today?
A. Yes, sir.
At this point, the state offered the minutes and sentencing transcript from the prior offense into evidence without objection. The defense did not cross examine the sheriff.
*276 Blackson argues that Sheriff Pylant's testimony was insufficient to establish his identity as the same Greg Blackson convicted in 1994 because it failed to establish Sheriff Pylant's personal knowledge of this previous conviction. Blackson also argues that showing the transcript, entitled "State Versus Greg Blackson," to the sheriff was unduly suggestive and failed to prove his independent knowledge of Blackson's prior criminal conviction.
In the area of establishing a defendant's previous conviction identity, courts have recognized various methods of proof including testimony of witnesses, expert opinion evidence comparing fingerprints, or photographs in the records. State v. Brown, 514 So.2d 99 (La.1987); State v. Curtis, 338 So.2d 662 (La.1976); State v. Thomas, 27,504 (La.App.2d Cir.11/1/95), 662 So.2d 798; State v. Morris, 99-3075 (La.App. 1st Cir.11/3/00), 770 So.2d 908, writ denied, 00-3293 (La.10/12/01), 799 So.2d 496, cert denied, 535 U.S. 934, 122 S.Ct. 1311, 152 L.Ed.2d 220 (2002). Additionally, the defendant's name, driver's license number, sex, race, and date of birth have been held to be sufficient evidence for the state to establish the identity of the defendant as the same person previously convicted of another felony. State v. Westbrook, 392 So.2d 1043 (La.1980); State v. Gillam, 03-0369 (La.App. 4th Cir.6/18/03), 850 So.2d 804. The mere fact, however, that the defendant on trial and the person previously convicted have the same name does not constitute sufficient evidence of identity. State v. Curtis, supra; State v. Gillam, supra.
The courts have also approved of the use of testimony from a rural parish clerk of court and a deputy sheriff identifying defendants from their personal knowledge as the same individuals convicted of previous offenses. State v. Augillard, 371 So.2d 798 (La.1979); State v. Evans, 506 So.2d 1283 (La.App. 2d Cir.1987).
This case is similar to the noted jurisprudence. Here, Sheriff Pylant testified that he worked in the Franklin Parish Sheriff's office since 1982 and became sheriff in 1996. The evidence shows that both Blackson and his parents all grew up in Franklin Parish, a small rural parish. The 1994 conviction occurred in the Fifth Judicial District, of which the parish comprised a part. Sheriff Pylant stated that he not only knew the defendant but was familiar with his 1994 conviction. The witness testified from personal knowledge that the individual convicted in 1994 and Blackson were one and the same person. Blackson presented no contrary evidence. Accordingly, we find this evidence adequate to establish the defendant as the same person convicted in 1994. This identification evidence along with the documentary evidence described above was sufficient to prove the prior felony conviction element and that the ten-year cleansing period had not elapsed. Therefore, we find the evidence sufficient to show that Blackson was a convicted felon within the ambit of the present offense.
As to Blackson's possession of a firearm, his statements both to the police and in his voluntary complaint against Bell constituted admissions that he possessed a gun. Blackson's actions in obtaining a gun from his wife's trailer during the investigation demonstrated that he had access to the gun. Finally, the state presented the testimony of two witnesses, Bell and Shedrick Coleman, who testified that Blackson had a gun during his confrontation with Bell. On this basis, we find the evidence sufficient to prove that Blackson possessed a firearm.
Blackson next urges that the use of same evidence to convict him of aggravated assault arising out of the same incident *277 and the instant offense impermissibly subjected him to double jeopardy.
The Fifth Amendment to the United States Constitution, as well as Article 1, § 15 of the Louisiana Constitution of 1974, prohibit placing a person twice in jeopardy of life or limb for the same offense. Likewise, La.C.Cr.P. art. 591 provides:
No person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 77 or ordered with the express consent of the defendant.
Double jeopardy provisions protect an accused not only from a second prosecution for the same offense, but also multiple punishments for the same criminal act. State v. Lefeure, 00-1142 (La.App. 5th Cir.1/30/01), 778 So.2d 744, 750, writ denied, 01-1440 (La.9/21/01), 797 So.2d 669, citing, State v. Jackson, 96-661 (La.App. 5th Cir.4/9/97), 694 So.2d 440, 448, writ denied, 97-1050 (La.10/13/97), 703 So.2d 609, writ denied, 97-1255 (La.10/13/97), 703 So.2d 612.
The two tests used by Louisiana courts when examining double jeopardy violations are the "distinct fact" or the Blockburger[2] test and the "same evidence test."[3] The Blockburger test determines whether each crime requires proof of an additional fact which the other does not. State v. Lefeure, supra. The "same evidence" test evaluates whether the evidence required to support a finding of guilt of one crime would also have supported a conviction for the other crime. The test depends on the evidence necessary for conviction, not all of the evidence introduced at trial. State v. Lefeure, supra. Although the Louisiana Supreme Court has accepted both tests, it has principally relied on the "same evidence" test to evaluate double jeopardy claims. State v. Lefeure, supra, citing, State v. Miller, 571 So.2d 603, 606 (La.1990).
An accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy. State v. Nichols, 337 So.2d 1074 (La.1976); State v. Gordon, 00-1013 (La.App. 5th Cir.11/27/01), 803 So.2d 131, writ denied, 02-0362 (La.12/19/02), 833 So.2d 336, writ denied, 02-0209 (La.2/14/03), 836 So.2d 134.
Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery. La. R.S. 14:36. Aggravated assault is an assault committed with a dangerous weapon. La. R.S. 14:37. As discussed above, possession of a firearm by a convicted felon requires proof of the possession, a previous conviction of an enumerated felony, the absence of the ten-year cleansing period and the general intent to commit the offense. La. R.S. 14:95.1
In the instant case, although the facts of both cases are intertwined, the constitutional prohibition against double jeopardy is not violated. Utilizing the "same evidence" test, the evidence needed to support Blackson's conviction for aggravated assault would not have secured a conviction for possession of a firearm by a convicted felon. For the aggravated assault conviction, the state had to prove that either Blackson attempted to use intentional force or violence upon Bell or place him in apprehension of being harmed while using a dangerous weapon. For the instant *278 offense, the state had to prove that Blackson possessed a firearm and had previously been convicted of a felony within the last ten years. Clearly, the evidence required for conviction of each separate offense would not have supported a conviction for the other crime. Furthermore, under the Blockburger test, each offense requires proof of an additional fact which the other does not require. The charge of possession of a firearm requires a previous conviction of an enumerated offense while aggravated assault requires proof of an attempted battery or the intentional placing of another in reasonable apprehension of receiving a battery. Clearly, under this test as well, double jeopardy safeguards are not implicated here.
In his final assignment of error, Blackson contends that his trial counsel was ineffective in failing to file a motion to suppress the inculpatory statements made by him in response to direct interrogation by police officers or to object to their admissibility during trial on the ground of voluntariness. Blackson also contends that his counsel fell below the constitutional standard for effectiveness, both in failing to object to or conduct cross-examination of the identification testimony of Sheriff Pylant, and in failing to file post-trial motions.[4]
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 such an application 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 is also an accepted vehicle to raise such a claim. Id. However, when the record is sufficient, we may resolve this issue on direct appeal in the interest of judicial economy. 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.
A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
To establish that his attorney was ineffective, the defendant first must show that 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.
Second, the defendant must show that 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. The 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; State v. Roland, supra.
Here, Blackson's claim for ineffective assistance of counsel falls short of the standard required under Strickland. Because we have both determined that the evidence *279 was sufficient to support the conviction and that no double jeopardy rights were violated, Blackson's counsel's failure to file post-trial motions or object regarding these issues could not have resulted in prejudice to Blackson.
We have likewise found no merit in Blackson's claim regarding the admissibility of Sheriff Pylant's testimony. Blackson's claim that his counsel's failure to cross-examine Sheriff Pylant "severely prejudiced" him and amounted to "no advocacy whatsoever" qualifies as those types of general and conclusory charges which are insufficient to prove a claim of ineffective assistance of counsel. State v. Outley, 629 So.2d 1243 (La.App. 2d Cir. 1993), writ denied, 94-0410 (La.5/20/94), 637 So.2d 476; State v. O'Neal, 501 So.2d 920 (La.App. 2d Cir.1987), writ denied, 505 So.2d 1139 (La.1987). Moreover, because counsel otherwise conducted extensive cross-examination of other witnesses, there is a strong presumption that the conduct of counsel falls within the wide range of reasonable professional assistance to which this court grants great deference. State v. Roland, supra; State v. Outley, supra.
We likewise find no merit in Blackson's claim regarding his counsel's decision not to file a motion to suppress the inculpatory statements made by the defendant to Lieutenant McCarthy and Officer Shaw. Blackson's specific argument is that counsel should have raised the issue of admissibility of these statements because he was not given his Miranda warnings prior to divulging information about his possession of a firearm to the police. The record clearly indicates that Blackson initiated the contact with police by calling in a complaint against Bell for the broken car window. When the officers arrived, they conversed with Blackson about Bell's alleged crime. The general rule is that Miranda warnings are not required until a citizen is deprived of his liberty in a significant way, such as when he is forbidden from leaving the officers' presence. State v. Thompson, 399 So.2d 1161 (La.1981); State v. Lambert, 98-0703 (La.App. 4th Cir.11/17/99), 749 So.2d 739, writ denied, 00-1346 (La.1/26/01), 781 So.2d 1258. Additionally, Miranda warnings are not a prerequisite to admissibility of statements taken by officers during non-custodial, general, on-the-scene investigations, conducted to determine the facts and circumstances surrounding a possible crime, absent a showing that the investigation has passed the investigatory stage and has focused on the accused. State v. Weeks, 345 So.2d 26 (La.1977); State v. Jackson, 452 So.2d 1250 (La.App. 2d Cir.1984), writ denied, 457 So.2d 17 (La.1984).
In this case, the record shows that the police came to Blackson's house to investigate a crime other than the crime for which he has now been convicted. As such, any inculpatory statements made by Blackson occurred during a non-custodial, general investigation. In fact, the evidence shows that at the time of the subject conversation, the police officers themselves were unaware of any previous felony conviction for Blackson. Finally, there is no indication of a reasonable probability of a different outcome if Blackson had been successful in the suppression of this evidence at trial. Blackson's own admission of his use of the gun in the written complaint and the eyewitness testimony of the state's witnesses regarding his possession of the gun served as sufficient evidence of the possession element for the conviction.
Conclusion
For the foregoing reasons, we affirm Blackson's conviction and sentence.
AFFIRMED.
NOTES
[1] Despite the lack of a motion for post-verdict judgment of acquittal, this court may review a sufficiency of the evidence argument. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.
[2] Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)
[3] State v. Steele, 387 So.2d 1175 (La.1980).
[4] Although Blackson lists numerous other claims for ineffective assistance of counsel in his assignments of error, only three specific claims are argued in brief. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610419/ | 739 F.Supp. 1069 (1990)
Robert N. TAYLOR and Marion P. Taylor, Plaintiffs,
v.
OMAHA PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.
Civ. A. No. 89-649-N.
United States District Court, E.D. Virginia, Norfolk Division.
June 21, 1990.
*1070 H. Thomas Padrick, Jr., William B. Harvey, Anderson, Lee & Norris, Virginia Beach, Va., for plaintiffs.
George H. Heilig, Jr., Heilig, McKenry, Fraim and Lollar, Norfolk, Va., for defendant.
MEMORANDUM
WALTER E. HOFFMAN, Senior District Judge.
The parties in this action stipulated, in the Final Pretrial Order entered April 6, 1990, to all of the facts relied upon in reaching a decision on this case. These stipulations are recited below.
FACTS
1. The Plaintiffs, Robert N. Taylor and Marion P. Taylor are husband and wife, who own real property located at 908 Cavalier Drive, Virginia Beach, Virginia, as tenants by the entireties with the right of survivorship.
2. The Defendant Omaha Property and Casualty Insurance Company, ("Omaha"), is a Delaware corporation authorized to transact business in Virginia. Omaha offers the standard flood insurance policy ("SFIP") coverage in return for a premium, pursuant to the National Flood Insurance Program ("NFIP") of 1968. The NFIP is administered by the Federal Emergency Management Agency ("FEMA").
3. The Plaintiffs have had flood insurance coverage since on or about April 5, 1984 to the present. The Plaintiffs' flood insurance coverage has always been administered by the Defendant, and the insurance policies have been issued by the Defendant.
4. The Plaintiffs have paid the Defendant in full for all flood insurance premiums on said insurance coverage since on or about April 5, 1984 to the present.
5. The Plaintiffs have made three insurance claims since 1984 on their flood insurance policy to the Defendant due to a continuous flooding problem which occurs in and around Broad Bay of Virginia Beach which the Plaintiffs' property abuts, and which has flooded the Plaintiffs' property.
6. The Defendant has paid all three claims which were in the nature of flood damage to the interior of the Plaintiff's house.
7. As a result of these continuing flood problems, the Taylors proceeded to make reasonable repairs/alterations of a permanent nature to protect the Plaintiff's property from further damage, commencing in June of 1988.
8. The Plaintiffs raised the framework of the house up four feet from its previous elevation. The total expenses for such elevation was $49,156.63, which included the value of the Plaintiffs' own labor at the prevailing federal minimum wage rates.
9. On or about May 24, 1989, the Plaintiffs submitted to the Defendant's authorized agent, Insurance Center, Inc., a claim on the Plaintiffs' flood insurance policy for $49,156.63, and the Defendant denied the claim. However, the $49,156.63 is a reasonable amount for the repairs and/or alterations carried out by the Plaintiffs.
10. The action filed herein was within one year after the date of the mailing of the notice of disallowance, as is required by 42 U.S.C. § 4053 and pursuant to the terms of the flood insurance policy.
11. This Court has proper jurisdiction of the parties, and the parties have been properly identified and served.
12. The parties stipulated that the Plaintiffs did not receive any actual notice, including, but not limited to, new policies, endorsements, or the like reflecting that their flood insurance policy had been amended or at variance with Exhibit J-1, except premium notice bills.
No testimony was taken in this case nor other evidence presented. Two versions of the Standard Flood Insurance Policy were introduced as joint exhibits at argument of this case on May 2, 1990.
The parties further stipulated in open court that if the insurance contract designated *1071 Exhibit J-1 is controlling, the repairs made by the Plaintiffs would be covered, and the Plaintiffs would be entitled to recover the amount stipulated. If the insurance contract designated Exhibit J-2 is applicable, however, the repairs would not be covered under that contract, and the Plaintiffs would take nothing.
No stipulation or evidence shows any attempt by the Defendant to notify the Plaintiffs that the SFIP had been administratively amended during the term of their coverage or that coverage under renewal policies was any different than the original policy that the Plaintiffs received. The Defendant contends that publication of the amendments to the SFIP in the Federal Register, at 51 Fed.Reg. 30,290 (Aug. 25, 1986), is constructive notice to the Plaintiffs of the changes in coverage.
DISCUSSION
This Court is not called upon to interpret the relevant contracts but only to determine which contract represents the agreement between these parties for flood insurance coverage.
This Court is not persuaded that Federal Crop Ins. Corp. v. Merrill Bros., 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947), controls the notice requirements in this case. While those who deal with the government are expected to know the law, id. at 384, 68 S.Ct. at 3, the appearance of flood insurance coverage changes in the Federal Register does not give legal notice of their contents to these plaintiffs.
This case is distinguishable from Federal Crop in that the Taylors' contract is with a private insurance company. No agency of the federal government is a party to the contract or to this action. Merrill Bros., on the other hand, had contracted for crop insurance with the wholly government-owned corporation created by the Federal Crop Insurance Act. That entity accepted applications for crop insurance subject to the terms of its regulations.
The same distinction can be made between this case and Riverside Bldg. Supply Inc. v. Federal Emergency Management Agency, 723 F.2d 1159 (4th Cir.1983), in which the plaintiff's policy of flood insurance was issued directly by FEMA. FEMA was, therefore, a party to the insurance contract.
Zumbrun v. United Services Auto Ass'n, 719 F.Supp. 890 (E.D.Cal.1989) is also inapposite. The Defendants cite Zumbrun for the proposition that "policies insured by FEMA, are interpreted under a uniform federal common law standard." Id. at 897. Therefore, an anomaly would be created if provisions of flood insurance policies issued by private insurance companies were interpreted differently from those issued directly by FEMA. That fact is not disputed. As this case does not involve interpretation of the flood insurance policy, however, Zumbrun is not helpful. This Court's only task is to determine which policy applies.
The federal common law which applies under both versions of the SFIP, as confirmed by court decisions in most circuits, includes general insurance law principles. The SFIP is legally treated as an insurance policy and as such, is a contract governed by basic contract rules. See Sodowski v. National Flood Ins. Program, 834 F.2d 653, 655 (7th Cir.1987), cert. denied, 486 U.S. 1043, 108 S.Ct. 2035, 100 L.Ed.2d 619 (1988); Brazil v. Giuffrida, 763 F.2d 1072, 1074-75 (9th Cir.1985); United States v. Parish of St. Bernard, 756 F.2d 1116, 1121 (6th Cir.1985), cert. denied, 474 U.S. 1070, 106 S.Ct. 830, 88 L.Ed.2d 801 (1986); Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 135 (1st Cir.1984); Hanover Bldg. Materials v. Guiffrida (sic), 748 F.2d 1011, 1013 (5th Cir.1984); Drewett v. Aetna Casualty & Sur. Co., 539 F.2d 496, 498 (5th Cir.1976).
In this circuit, the Court of Appeals has acknowledged a duty "upon an agent, when renewing expiring policies, to inform the insured of basic change in the protection provided." It held, however, that "there is no requirement that he point out every formal change and linguistic revision." Carva Food Corp. v. Equitable Fire and Marine Ins. Co., 261 F.2d 254, 259 (4th Cir.1958). In Carva Food, the Fourth Circuit affirmed this Court's judgment *1072 for the insurance company, holding that a change in phraseology does not necessarily constitute a change in the true intention of both of the parties. Id. The change in that renewal policy was "a linguistic revision by which [the insurance company] re-expressed its unchanging intention." Id. The case at bar is distinguishable in that the amendment to Article VIII, Section H made a substantive change in coverage. This conclusion is supported by the parties' stipulation that the Plaintiffs' claim is recoverable under Exhibit J-1, but not under Exhibit J-2.
"Where an insurance company purports to issue a policy as a renewal policy without fairly calling the insured's attention to a reduction in the policy coverage, it remains bound by any greater coverage in the earlier policy." Bauman v. Royal Indemnity Co., 36 N.J. 12, 23, 174 A.2d 585, 590 (1961). In support of this proposition, the Supreme Court of New Jersey cites decisional law from state courts in Arkansas, Arizona, Louisiana, Minnesota, Missouri, New York, and Pennsylvania, as well as the District Court of Colorado, and the Courts of Appeal for the Eighth and Tenth Circuits. Id. 174 A.2d at 590-91.
The New Jersey court held that "[a]bsent notification that there have been changes in the restrictions, conditions or limitations of the policy, the insured is justly entitled to assume that they remain the same and that his coverage has not in anywise been lessened." Id. 174 A.2d at 592. It recognized the insurance company's
undoubted right, by appropriate alteration in the terms of its policies, to exclude ... coverage in later renewals but, in such event, common fairness as well as legal duty dictated that it call the lessened coverage to the attention of the insured so that they might suitably protect themselves. This might readily have been done in simple fashion; for example, it might have attached to the renewal policies or forwarded with them, slip notices to the effect that there had been language alterations and that the renewal policies were not intended to provide [the same coverage]....
Id.
The Court of Appeals for the Tenth Circuit has held similarly:
While the renewal of an insurance policy constitutes a separate contract to be governed by general contract principles, it is the general rule that an insurance company is bound by the greater coverage in an earlier policy where the renewal contract is issued without calling to the insured's attention a reduction in policy coverage. This policy was set forth, but in different terms [in an earlier opinion by the same court] ... "When a renewal policy is issued, it is presumed, unless a contrary intention appears, that the parties intended to adopt in the renewal policy, the terms, conditions and coverage of the expiring policy."
Government Employees Ins. Co. v. United States, 400 F.2d 172, 175 (10th Cir.1968) (emphasis added), quoting Pearl Assurance Co. v. School Dist. No. 1, 212 F.2d 778, 782 (10th Cir.1954).
In Government Employees, the Tenth Circuit held that the requirement to call an insured's attention to a change in coverage was not met by transmitting a new policy contract and instructing the insured to carefully read the contract. Id. It was, however, satisfied by the inclusion of a "short, separately attached boldly worded modification." Id.
The parties have stipulated that the Taylors never received copies of renewal policies or endorsements. Omaha presented no evidence that these were sent. Indeed, the evidence in this case is void of any attempt by Omaha to call the Taylors' attention to the change in coverage under the amended renewal policy (Exhibit J-2).
Omaha, at one time, seemingly recognized an obligation to notify policyholders of changes in coverage, as evidenced by the Notice at the conclusion of the original policy issued to the Taylors (Exhibit J-1). It reads: "NOTICE: The terms of the Standard Flood Insurance Policy were amended effective October 1, 1983. Since the new policy represents the coverage provided *1073 to you under the National Flood Insurance Act, the following coverage limitations and policy provisions are being brought to your attention." The Taylors reasonably could expect similar notification of subsequent changes in renewal policies, such as those made by the August 1986 amendments which became effective January 1, 1987.
Also, FEMA's intention that notice of changes in coverage be given to flood insurance policyholders is evidenced by the same publication on which the Defendant relies. During the period allowed for comments to the proposed administrative changes in 1986, a private insurance company participating in the write-your-own program of the NFIP suggested handling the amendments to the SFIP in a way that would avoid the need for printing new policy forms to reflect the changes. FEMA stated that, despite the expense and complications of doing so, printing new policy forms was "the best way to proceed to assure that policyholders receive notice of the changes to their flood insurance coverage." 51 Fed.Reg. 30,300 (1986). For the express purpose of allowing time for new policy forms to be printed, FEMA delayed until January 1, 1987 the effective date of SFIP changes that restricted coverage. Id. This entire discussion and FEMA's resulting concession evinces FEMA's intention that policyholders not have their flood insurance coverage diminished without notice.
All of this leads to the inescapable conclusion that because Omaha failed to bring the change in coverage to the attention of the Taylors in any way, the greater coverage of the prior policy applies. The Taylors, therefore, are entitled to reimbursement for the repairs and alterations that they made in reliance on the flood insurance policy to which they originally subscribed. As stipulated by the parties, because the earlier policy (Exhibit J-1) applies, the Plaintiffs will recover the total expense of elevating the framework of their house, $49,156.63.
Plaintiffs are also entitled, as a matter of federal law, to prejudgment interest on this award. West v. Harris, 573 F.2d 873, 882 (5th Cir.1978). "Fair compensation to the plaintiff for his loss covered by the insurance policy issued by the defendant can only be achieved by including the award of prejudgment interest as a mandatory element of damages." Id. at 883.
The interest is to be calculated from the time the Plaintiffs should have received reimbursement for their expenses under the coverage of their policy. Id. The applicable policy provided that losses were payable within 60 days after the insureds file their proof of loss. Exhibit J-1 at Article VIII, Section K. The Plaintiffs filed their proof of loss on May 24, 1989. The Defendant denied the Plaintiffs' claim on June 14, 1989. The prejudgment interest, therefore, will be calculated from June 14, 1989, the date of denial.
"As a matter of convenience and practicality, the amount of interest should be determined at the rate allowed by the law of the forum state." Id. at 884. The annual rate of interest for prejudgment interest is set by Virginia statute at eight percent (8%). Va.Code Ann. § 6.1-330.54 (1988). Interest, therefore, shall be computed on the sum awarded at an annual rate of eight percent (8%) from June 14, 1989 through June 21, 1990, the date of judgment, and thereafter at the legal rate, according to federal law.
Because FEMA is not a party to this contract or in this action, the Court does not discuss any issues between FEMA and Omaha, who apparently have contracted together. Policy coverage, contract construction, and eligibility for reimbursement of claims paid under this order have not been treated.
CONCLUSION
For the reasons stated, judgment is entered in favor of the Plaintiff against the Defendant in the amount of Forty-Nine Thousand, One Hundred Fifty-Six Dollars and Sixty-Three Cents ($49,156.63), plus interest and costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610535/ | 39 So.3d 1281 (2010)
Rosemarie FERRERA, Appellant,
v.
STATE of Florida, Appellee.
No. 5D09-4286.
District Court of Appeal of Florida, Fifth District.
July 23, 2010.
James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Appellant Rosemarie Ferrera appeals the summary denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion relates to Ferrera's violation of probation ("VOP") proceeding on a charge of exploitation of the elderly, a first degree felony. As a result of the proceeding, the trial court found Ferrera in violation of a condition of her probation, revoked the probation, and sentenced Ferrera to nineteen years in prison. We find that Ferrera should have been granted leave to amend her motion, and reverse.
Ferrera's motion stated five generic claims of ineffective assistance of counsel. The trial court aptly noted in his denial order that to pass the first threshold for facial sufficiency in this context, a defendant's motion must identify the specific acts or omissions of counsel alleged to have been deficientand that mere conclusory allegations are not sufficient to meet this burden. Kennedy v. State, 547 So.2d 912, 913 (Fla.1989). Rather than deny the motion as facially insufficient, and grant Ferrera an opportunity to amend as required by Spera v. State, 971 So.2d 754 (Fla.2007), the trial court denied the motion with prejudice and attached a transcript of the VOP proceeding in an attempt to demonstrate that Ferrera's general claims were refuted by the record. Ironically, the transcript demonstrates a potentially viable claim.
The record shows that the State offered Ferrera a ten-year prison sentence if she admitted the violation, and that her *1282 lawyer misadvised her that eleven and a half years was the maximum sentence she could receive if found to have violated her probation.[1] Ferrera had a viable defense to the VOP charge, although the trial judge did not find her witnesses to be credible. But, given that Ferrera in reality faced a possible prison sentence of thirty years, she may well have weighed the risks of accepting the plea differently if she had been accurately counseled by her attorney. Ferrera's generic claim that her attorney failed to adequately discuss the facts of the case with her could be amended to state this potentially viable claim.
Accordingly, we reverse the order on appeal and remand with directions that Ferrera be granted leave to amend her motion.
REVERSED AND REMANDED WITH DIRECTIONS.
GRIFFIN, SAWAYA and LAWSON, JJ., concur.
NOTES
[1] For reasons not clear to us, Ferrera's counsel believed that because Ferrera had originally received a fifteen-year probationary sentence, and had already served three and a half years of that sentence, the trial judge could only impose the balance of the probationary periodeleven and a half yearsif Ferrera was found in violation of her probation. Of course, the law generally allows the trial court to impose any sentence that could have originally been imposed on the charge, up to the statutory maximum penalty, upon finding a willful and substantial violation of probation. § 948.06(2)(e), Fla. Stat. (2007); Woods v. State, 879 So.2d 651, 653 (Fla. 5th DCA 2004). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/96351/ | 199 U.S. 382 (1905)
McCUNE
v.
ESSIG.
No. 61.
Supreme Court of United States.
Submitted November 9, 1905.
Decided November 29, 1905.
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
*383 Mr. W.E. Cullen for appellant.
Mr. George Turner, Mr. F.H. Graves and Mr. W.G. Graves for appellees.
*386 MR. JUSTICE McKENNA delivered the opinion of the court.
Suit in equity to establish title in appellant to an undivided one-half of northwest quarter of section 6, township 25 north, range 30 east, Washington meridian 2, and for accounting of rents and profits and for partition between appellant and appellees.
It was originally brought in the Superior Court in and for Lincoln County in the State of Washington. A demurrer was filed to the amended complaint and a petition to remove the suit to the Circuit Court for the District of Washington, Eastern Division, on the ground that the suit involved the construction of sections 2291 and 2292 of the Revised Statutes of the United States, and of all statutes of the United States relating to homesteads. The suit was removed. In the Circuit Court a motion was made to remand, which was denied. The demurrer was sustained, and appellant, electing to stand upon her bill, it was decreed that she had no right, title or interest in the land. 118 Fed. Rep. 273. The decree was affirmed by the Circuit Court of Appeals. 122 Fed. Rep. 588.
The facts as exhibited by the bill of complaint are that appellant is the daughter of William McCune, deceased, and his wife, Sarah McCune, now Sarah Donahue, and the stepdaughter of Daniel Donahue, who appears as her guardian ad litem. William McCune and his wife Sarah settled on the land in controversy, it being a part of the public domain and subject to settlement under the homestead laws. On the fourth of April, 1884, McCune filed a claim to the land as a homestead in the proper land district. In the same year he died intestate, *387 leaving surviving as his only heirs appellant and his wife Sarah. They continued to reside on the land until December 17, 1889, upon which day the mother of appellant made the required proof of full compliance with the homestead laws, and on the sixth of March, 1891, a patent was issued to her. In the year 1892 she, having become Mrs. Donahue, sold and conveyed the land to appellees, who went into possession of it and have been in possession of it ever since. The value of the land is sixty-four hundred dollars. The patent recites:
"Whereas there has been deposited in the General Land Office of the United States a certificate of the register of the land office at Spokane Falls, Washington, it appears that, pursuant to the act of Congress approved May 20, 1862, `to secure homesteads to actual settlers on the public domain,' and the acts supplemental thereto, the claim of Sarah Donahue, formerly the widow of William McCune, deceased, has been established and duly consummated, in conformity to law, for the south half of the northeast quarter and the lots numbered one and two of section six, in township twenty-five north of range thirty-eight of Willamette meridian in Washington, containing one hundred and sixty-three and eighty-four hundredths of an acre, according to the official plat of the survey of the said land, returned to the General Land Office by the surveyor general:
"Now know ye, that there is, therefore, granted by the United States unto the said Sarah Donahue the tract of land above described, to have and to hold the said tract of land, with the appurtenances thereof, unto the said Sarah Donahue and to her heirs and assigns forever."
The action of the lower courts on the motion to remand and on the merits are attacked by appellant to a certain extent on the same ground, to wit, that the laws of Washington determine the title of the parties, not the laws of the United States. The interest in McCune, acquired by his entry, it is contended, was community property, and passed to appellant under the laws of the State. Sections 4488, 4489, 4490 and *388 4491 of the statutes of Washington provide that property and pecuniary rights owned by either husband or wife before marriage, or that acquired afterwards by gifts, bequests, devise or descent, shall be separate property. Property not so acquired or owned shall be community property, and, in the absence of testamentary disposition by a deceased husband or wife, shall descend equally to the legitimate issue of his or their bodies. 1 Ballinger's Codes. Relying on these provisions the argument of appellant is, and we give it in the words of her counsel:
"When William McCune entered this land he had not the legal title, but he had an immediate equitable interest and the exclusive right of possession until forfeited by failure to carry out the terms of his entry. United States v. Turner, 54 Fed. Rep. 228.
"The terms of his entry were carried out. The patent issued by reason of his entry. The state legislature had the right to direct to whom that equitable right and interest should pass. If the rights and interests under that entry had been forfeited, the state law would have no effect upon the title to the land. That equitable interest ripened, and was confirmed by the patent."
But this is begging the question. What interest arose in McCune by his entry, who could upon his death fulfil the conditions of settlement and proof, and to whom and for whom title would pass, depended upon the laws of the United States. Bernier v. Bernier, 147 U.S. 242. The motion to remand was rightly overruled. On the merits we think the ruling of the lower courts was also right. Hutchinson Investment Co. v. Caldwell, 152 U.S. 65. Hoadley v. San Francisco, 94 U.S. 4, and other cases relied on by appellant, are not in point.
Chapter five, Title XXXII, of the Revised Statutes provides who may enter public lands as a homestead and the conditions to be observed as to entry and settlement. By sections 2291 and 2292 it is provided as follows:
"SEC. 2291. No certificate, however, shall be given, or patent *389 issued therefor, until the expiration of five years from the date of such entry; and if at the expiration of such time, or at any time within two years thereafter, the person making such entry; or if he be dead, his widow; or in case of her death, his heirs or devisee; or in case of a widow making such entry, her heirs or devisee, in case of her death, proves by two credible witnesses that he, she, or they have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit, and makes affidavit that no part of such land had been alienated, except as provided in section twenty-two hundred and eighty-eight, and that he, she, or they will bear true allegiance to the Government of the United States; then, in such case, he, she, or they, if at that time citizens of the United States, shall be entitled to a patent as in other cases provided by law. . . .
"SEC. 2292. . . . In case of the death of both father and mother, leaving an infant child or children under twenty-one years of age, the right and fee shall inure to the benefit of such infant child or children. . . ."
It requires an exercise of ingenuity to establish uncertainty in these provisions. They say who shall enter and what he shall do to complete title to the right thus acquired. He may reside upon and cultivate the land, and by doing so is entitled to a patent. If he die his widow is given the right of residence and cultivation, and "shall be entitled to a patent as in other cases." He can make no devolution of the land against her. The statute which gives him a right gives her a right. She is as much a beneficiary of the statute as he. The words of the statute are clear, and express who in turn shall be its beneficiaries. The contention of appellant reverses the order of the statute and gives the children an interest paramount to that of the widow through the laws of the State.
The law of the State is not competent to do this. As was observed by Circuit Judge Gilbert: "The law of the State of Washington governs the descent of land lying within the State, but the question here is whether there had been any *390 descent of land." And, against application of the state law, the learned judge cited Wilcox v. Jackson, 13 Pet. 498, 517, and Bernier v. Bernier, supra. In the former it was said that whenever the question is whether title to land which had been the property of the United States has passed, that question must be resolved by the laws of the United States, but that whenever, according to those laws, the title shall have passed, then, like all other property in the State, it is subject to state legislation. In Bernier v. Bernier it was said that the object of sections 2291 and 2292 was "to provide the method of completing the homestead claim and obtaining a patent therefor, and not to establish a line of descent or rules of distribution of the deceased entryman's estate." See Hall v. Russell, 101 U.S. 503. And hence it was decided that Mrs. Donahue took the title free from any interest or right in the appellant under the laws of the State.
Against the effect of the patent conveying title to Mrs. Donahue, appellant invokes the doctrine of relation. It is admitted "that the title to the real estate in the case at bar passed and vested according to the laws of the United States by patent." But, it is contended, that a beneficial interest having been created by the state law in McCune when the title passed out of the United States by the patent, it "instantly dropped back in time to the inception or initiation of the equitable right of William McCune, and that the laws of the State intercepted and prevented the widow from having a complete title without first complying with the probate laws of the State." This, however, is but another way of asserting the law of the State against the law of the United States, and imposing a limitation upon the title of the widow which section 2291 of the Revised Statutes does not impose. It may be that appellant's contention has support in some expressions in the state decisions. If, however, they may be construed as going to the extent contended for, we are unable to accept them as controlling.
Decree affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1610576/ | 533 So.2d 1005 (1988)
Farrell CASANOVA, et al.
v.
Ann BALLARD, et al.
No. 87 CA 0788.
Court of Appeal of Louisiana, First Circuit.
October 12, 1988.
Rehearing Granted for Limited Purpose, Otherwise Denied November 30, 1988.
Writs Denied February 17, 1989.
*1006 Phillip Hager, New Orleans, for plaintiffappellant Farrell Casanova, et al.
Robert Kleinpeter, Baton Rouge, for defendant-appellee Ann Ballard.
J. Wayne Anderson, New Orleans, and Arthur Macy, Hammond, for LP & L, appellee.
Before WATKINS, SHORTESS, SAVOIE, LANIER and CRAIN, JJ.
CRAIN, Judge.
Farrell Casanova and James Walker were injured when the television antenna which they were attempting to install adjacent to a mobile home came into contact with an overhead 13,800 volt bare electrical transmission line. The antenna was intended for the use of Casanova's daughter and son-in-law who planned to move into the mobile home which was located in Ballard's Trailer Court in the rural area of Arcola, Louisiana. Casanova and Walker instituted this action against Ann Ballard, D/B/A Ballard's Trailer Court and Louisiana Power and Light Company (LP & L). LP & L instituted a third party action against Ballard seeking indemnity or contribution. The State of Louisiana, through the Department of Health and Human Resources, on behalf of Lallie Kemp Charity Hospital intervened seeking reimbursement for hospitalization, medical services and supplies rendered and furnished to plaintiffs.
After trial on the merits, judgment was rendered in favor of defendants. From this judgment plaintiffs appeal alleging that the trial court erred in failing to determine fault or negligence on behalf of defendants. DHHR did not appeal the dismissal of their intervention nor answer plaintiffs' appeal. Consequently, the judgment as to them is final.
NEGLIGENCE OF LP & L AND BALLARD
Ballard's Trailer Court was developed in 1973 by Fred Ballard, now deceased. The *1007 mobile home park was designed in an oval shape, encircled by a driveway. Water, sewerage and electrical lines were to run down the center of the oval in an east-west direction with mobile homes parked perpendicular to the utility lines. After obtaining a servitude agreement from Ballard, LP & L installed overhead electrical transmission lines dissecting the mobile home park in an east-west direction. There is some question as to whether the electric transmission lines dissected the property into two equal parts. However, the location and placement of the power-lines was apparently approved by Mr. Ballard.
The electrical distribution lines running through the mobile home park consisted of a 13,800 volt bare (uninsulated by wrapping or covering) primary conductor and a triplex (insulated by wrapping) secondary line.
The National Electric Safety Code (NESC) requires at minimum a 20 foot vertical clearance over driveways and streets and at minimum an eight foot clearance over the tops of buildings and structures for the installation of bare electric wires conducting 13,800 volts of electricity.
At the point of contact the primary line was approximately 24.47 feet above ground and fifteen feet above the top of the mobile home. The height of the television antenna was 25.95 feet. At the time of the accident, the mobile home was parked directly under the overhead electrical transmission lines and LP & L was aware of its location.
The liability, if any, of LP & L must be determined under a duty-risk analysis. Electric transmission companies have a continuing duty to "exercise the utmost care to reduce hazards to life as far as practicable." Hebert v. Gulf States Utilities Co., 426 So.2d 111, 114 (La.1983). They are not required to guard against circumstances which are not reasonably foreseeable. Hebert, 426 So.2d at 114.
It is uncontested that the overhead installation of highly energized bare wire in compliance with the NESC is common industry practice. However, under certain facts and circumstances the practice of insulation by isolation in compliance with the NESC is insufficient to protect the public from the hazards associated with the transmission of electricity. Wooten v. Louisiana Power & Light Co., 477 So.2d 1142 (La.App. 1st Cir.1985).
The evidence indicates that there is a frequent turnover of residents in mobile home parks, that these residents install television antennas adjacent to their mobile homes, and that television antennas installed in rural areas are frequently at least 25 feet in height. Thus, it is readily foreseeable that during the installation of a television antenna, the antenna may come into contact with a highly energized bare electric transmission line located directly above the mobile home, resulting in the electrocution of the installers. LP & L was aware that mobile homes were parked directly under the bare, highly energized electric wire. The employee who connected the service was aware that this particular trailer was parked under the transmission line. However, no corrective action was taken to prevent the type injury that occurred. The injuries incurred by plaintiffs are within the scope of the risk which the duty was designed to prevent.
Ballard had previously allowed mobile homes to be parked under the electric transmission lines and was aware that the mobile home in question was parked under the power line when the accident occurred. Further, she knew or should have known of the hazards presented by this condition. The duty of a landowner is to "act reasonably in view of the probability of injury to others". Thomas v. State Department of Revenue, 393 So.2d 416, 417 (La.App. 1st Cir.1980). The injuries suffered by plaintiffs are within the scope of the risk the duty was designed to protect.
After careful review of the record we find the trial court was clearly wrong in failing to find defendants were negligent.
NEGLIGENCE OF PLAINTIFFS
The actions of plaintiffs were a substantial cause of the accident which resulted in their injuries. Plaintiffs were aware that the electric transmission lines were *1008 located directly above the mobile home. They alleged at trial that they were only aware of the insulated secondary lines, not the bare primary line. However, they stated that they thought they could avoid contact with the lines and proceeded to erect the antenna in close proximity thereto.
A person has the duty to exercise ordinary care for his own safety. See Soileau v. South Central Bell Telephone Co., 406 So.2d 182 (La.1981). This plaintiffs failed to do. After a careful review of the record we find that the trial court was not clearly wrong in finding plaintiffs negligent. We apportion 70% negligence to Casanova and Walker, 15% negligence to LP & L and 15% negligence to Ballard. Contrary to the argument of LP & L we do not find that the evidence warrants a finding of greater negligence on the part of Ballard than LP & L.
DAMAGES
When the record is complete and the trial court has rejected plaintiffs' demands we are empowered to award damages. La.C. C.P. art. 2164; Jones v. P.K. Smith Chevrolet-Olds, Inc., 444 So.2d 1372 (La.App. 2d Cir.1984).
a) Casanova
Casanova was admitted to Lallie Kemp Hospital on August 20, 1983, with third degree burns of the feet, hands, back and abdomen. He underwent numerous surgical procedures for debridement of the wounds, skin grafts and amputation of the big toe of the right foot. He was treated extensively to the time of trial for decubitus ulcers of the lower extremities related to the accident. Casanova had a prior history of diabetes which affected the healing process and there is a possibility that the right leg may require amputation in the future.
Dr. William Black, neuropsychologist, stated that plaintiff suffered from post traumatic stress syndrome and moderate to significant diffuse cortical dysfunction. He was unable to state with any certainty, however, whether the diffuse cortical dysfunction was primarily attributed to the accident or to drug abuse, uncontrolled diabetes or two myocardial infarctions which predated the accident. Casanova was approximately 57 years old at the time of trial and had been retired since 1973.
After considering the evidence we find that an award of $200,000 is appropriate for the general damages sustained by plaintiff. We also award plaintiff $29,669.40 for medical expenses.
b) Walker
Walker was approximately 27 years old at the time of the accident. He was admitted to Lallie Kemp Hospital on August 20, 1983, for third degree burns of both feet and minor burns on both hands and chest. He was transferred to Baton Rouge General Hospital on September 1, 1983. Thereafter, he underwent several surgical procedures, including amputation of the right great toe and a portion of the left great toe, skin grafts and debridement. He was discharged from medical care in July, 1984. He has a 15% loss of function in the right foot and 5% in the left. He is limited in performing recreational and occupational activities requiring squatting, ladder climbing, lifting of greater than 35 pounds or standing for more than four hours at a time.
Walker alleged neurological and psychological damage in addition to the damages sustained to the lower extremities. However, these were not proved by a preponderance of the evidence.
Plaintiff seeks damages for past and future loss of earnings. Walker has an eleventh grade high school education and received vocational training as a mechanic and welder. In 1981, Walker earned $21,290; in 1982, $4,638; in 1983, $12,419; and in 1984, $11,780. Walker worked sporadically after the accident. Subsequent to the accident he was hospitalized for alcohol and drug addiction allegedly caused by dependence to pain medication. He subsequently was incarcerated, in his words, for the attempted strangling of his wife, and was paroled after serving 8 months in prison. He violated parole and was serving 2 ½ years in prison at the time of trial.
*1009 After considering the evidence we award plaintiff $16,362.87 for medical expenses and $100,000 for general damages and loss of past and future income.
DECREE
The judgment of the trial court is reversed in part and rendered in favor of plaintiffs against defendants. Plaintiffs are 70% at fault, respectively, and defendants are 15% at fault, respectively. The medical expenses and damages awarded are reduced accordingly, with legal interest due on plaintiff's award from date of judicial demand until paid. The third party demand of LP & L against Ballard is recognized for the 15% of the damages attributed to Ballard's negligence. LP & L and Ballard are cast equally for costs.
REVERSED AND REMANDED.
SHORTESS, J., concurs in the majority treatment of liability but dissents as to what I feel is the inadequate award to Walker.
LANIER, J., dissents. The findings of fact of the trial court are not clearly wrong. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/885875/ | file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-616%20Opinion.htm
No. 00-616
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 33N
RICHARD STEVENS and BETTY STEVENS,
Plaintiffs and Appellants,
v.
DEPARTMENT OF NATURAL RESOURCES
AND CONSERVATION, ARTHUR (BUD)
CLINCH, Director,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
Honorable Ted O. Lympus, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Richard and Betty Stevens, pro se, Somers, Montana
For Respondent:
Thomas G. Bowe, Special Assistant Attorney General, Helena, Montana
Submitted on Briefs: November 30, 2000
Decided: February 22, 2001
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Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c) Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issues by this Court.
¶2 Richard and Betty Stevens (the Stevenses), appearing pro se, appeal from the order of
the Eleventh Judicial District Court dismissing their suit against the Montana Department
of Natural Resources and Conservation (DNRC) and its Director, Bud Clinch (Clinch).
We affirm the order of the District Court.
FACTUAL BACKGROUND
¶3 The Stevenses own a parcel of land in Flathead County that abuts a natural wetland
known as Altenburg Slough. Sometime between December 1993 and March 1994, the
owners of an adjacent parcel dredged material from the slough to create access for stock
watering and recreation. At the time, DNRC determined that the dredging was not an
"appropriation of water" and the owners of the adjacent parcel did not need a DNRC
permit for the dredging.
¶4 The Stevenses brought suit against their neighbors, alleging that the dredging was
interfering with their irrigation water right. After discovery, the neighbors filed a motion
for summary judgment. The District Court granted the motion on the grounds that the
Stevenses presented no evidence of a causal connection between the dredging of the
slough and the alleged drop in water level on their property. The Stevenses appealed to
this Court which affirmed in a noncitable opinion. See Stevens v. Medore, 1999 MT 118N.
¶5 Meanwhile, in August 1996, the owners of the adjacent parcel filed for bankruptcy. The
Stevenses presented a $100,000 claim in bankruptcy court for compensation for
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interference with their water right. After finding that the owners of the adjacent parcel
were not acting negligently or tortiously and that they were not diverting water from the
slough, the United States Bankruptcy Court, District of Montana, disallowed the
Stevenses' claim. The Stevenses appealed this order to the United States District Court,
which affirmed on September 16, 1998.
¶6 On February 1, 2000, the Stevenses filed the present action against DNRC and Clinch
in the Eleventh Judicial District Court, Flathead County. The gravamen of their complaint
is that they were injured when DNRC failed to prevent the dredging back in 1993.
Respondents filed motions to dismiss, pursuant to Rule 12(b)(6), M.R.Civ.P., on the
grounds that the suit was barred by the statute of limitations, insufficiency of service of
process and other grounds. The District Court granted the motion with prejudice.
ISSUE
¶7 The sole issue on appeal is whether the District Court erred when it granted defendants'
motions to dismiss.
STANDARD OF REVIEW
¶8 Whether the district court properly granted a Rule 12(b)(6), M.R.Civ.P., motion to
dismiss presents a question of law. Missoula YWCA v. Bard, 1999 MT 177, ¶ 3, 295
Mont. 260, ¶ 3, 983 P.2d 933, ¶ 3 (citing Williams v. Zortman Mining, Inc. (1996), 275
Mont. 510, 512, 914 P.2d 971, 972). This Court reviews questions of law to determine
whether the district court's application or interpretation of the law is correct. Missoula
YWCA, ¶ 3. When reviewing a district court's dismissal for failure to state a claim upon
which relief can be granted, we will construe the complaint in the light most favorable to
the plaintiff, with all factual allegations taken as true. Missoula YWCA, ¶ 3. This Court
will affirm the dismissal only if we find that the plaintiff is not entitled to relief under any
set of facts which could be proven in support of the claim. Missoula YWCA, ¶ 3.
DISCUSSION
¶9 The Stevenses' complaint is styled as an action in tort. It alleges that § 85-2-302, MCA,
required that their neighbors receive a permit from the DNRC prior to dredging and that,
by not requiring them to obtain a permit, DNRC tortiously aided in an unauthorized
appropriation of water-in violation of its statutory duty. Their complaint actually makes
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very few factual allegations. It alleges that the neighbors did not possess a valid water
right when they began dredging the slough; that in May 1993, DNRC issued a letter
stating that Stevenses' neighbors did not need a DNRC permit to dredge; and that DNRC
allowed this letter to be used in court as evidence that the neighbors did not need a DNRC
permit.
¶10 According to the complaint, the events giving rise to this action occurred in 1993 and
1994. The statutory period for bringing a tort action is within three years of the wrongful
act. Section 27-2-204, MCA. The present action was not commenced until February 2000-
well beyond the statutory limit for doing so. We conclude, therefore, that the Stevenses'
claim is barred by the applicable statute of limitations and that, even construing the
complaint in the light most favorable to them, the Stevenses have failed to state a claim for
which relief may be granted.
¶11 Finally, subsequent to the filing of briefs in this appeal and apparently in response to
the District Court's determination that Clinch was not properly served, the Stevenses
attempted to issue an amended summons to Clinch. They then filed with this Court a
Request for Judicial Notice of Law which included a copy of the amended summons and
additional argument. These filings do not alter our conclusion that the District Court
correctly determined the suit is barred by the statute of limitations.
¶12 The order of the District Court is affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
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https://www.courtlistener.com/api/rest/v3/opinions/1610604/ | 11 So.3d 961 (2009)
CRUZ
v.
STATE.
No. 4D07-3980.
District Court of Appeal of Florida, Fourth District.
July 9, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611099/ | 166 N.W.2d 923 (1969)
The STATE of Iowa for the use of the CITY OF DUBUQUE, Appellee,
v.
Robert Joseph McCLOSKEY, Appellant.
No. 53157.
Supreme Court of Iowa.
April 8, 1969.
*924 C. J. May, Jr., Dubuque, for appellant.
William A. Conzett, Dubuque, for appellee.
GARFIELD, Chief Justice.
Defendant was charged in the municipal court of the City of Dubuque with a traffic violation by "running a red light" in the city, hitting another vehicle, contrary to a city ordinance. He pleaded not guilty, was found guilty after trial and fined $35 and costs. Defendant attempted to appeal to the district court as section 762.43 Code 1966 permits. (The Dubuque municipal court exercises the jurisdiction conferred on justice of peace courts in such criminal matters as this. Code section 602.15.)
The city filed motion in the district court to dismiss defendant's appeal to it on the grounds: (1) notice of the appeal was not given, if at all, within 20 days after entry of the judgment, in accordance with section 762.43; and (2) defendant paid the fine and costs to the clerk of the municipal court on October 26, 1967, the day they were assessed, this was a satisfaction of the judgment, and defendant thereby waived his right of appeal.
Defendant's resistance to the city's motion just referred to alleged: (1) he advised *925 his counsel immediately after entry of the judgment and before paying it of his intent to appeal and counsel did not warn defendant of the consequences of such payment nor prevent his doing so; (2) his counsel advised him at least six times they had 30 days to perfect the appeal when in fact only 20 days are allowed; (3) defendant never intended to waive his right to appeal; and (4) his payment of the fine and late filing of his notice of appeal to the district court were caused by having ineffective counsel.
Following a hearing on the city's motion to dismiss the appeal, at which both parties were represented by counsel, the district court ruled the appeal was not taken within the time or in the manner provided by statute, payment of the fine and costs terminated the right of appeal, defendant's counsel was not ineffective, the district court was without jurisdiction to entertain the appeal to it and, without asserting jurisdiction, the appeal was dismissed.
Defendant appealed to this court from such dismissal and gave notice to the city and the clerk of the district court the appeal would be submitted, pursuant to Court Rule 15 (page 3004 Code 1966) on the transcript filed here under Code section 793.6. Since this manner of submitting the appeal obviously accords with the desire of defendant and his counsel, we entertain and decide it on such record. Being without the benefit of briefs has, of course, required added effort from us.
I. Code section 762.43 provides:
"Appealhow taken. The justice rendering a judgment against the defendant must inform him of his right to an appeal therefrom, and make an entry on the docket of the giving of such information, and the defendant may thereupon take an appeal, by giving notice orally to the justice that he appeals, or by delivering to the justice, not later than twenty days thereafter, a written notice of his appeal, and in either case the justice must make an entry on his docket of the giving of such notice."
As stated, with an exception not here applicable, the municipal courts exercise the jurisdiction conferred on justice courts in prosecutions for the violation of city ordinances. Section 602.15.
Further, section 602.44 provides: "In class `D' actions, appeals shall be taken to the district court as provided in the case of appeals from justice courts." Class "D" actions in municipal courts include "all criminal actions for the violation of city ordinances." Section 602.25.
It is thus clear, concededly so, the time allowed by statute for giving notice of appeal to the district court from the judgment of the municipal court was 20 days after entry thereof. This judgment entry and the municipal court docket both recite, as section 762.43 requires, defendant was informed of his right of appeal and the appeal bond was fixed at $100.
The judgment was entered October 26, 1967. There is no record or claim the judge of the municipal court was given notice orally that defendant appealed. The only purported notice of appeal was a written one filed with the clerk of the municipal court November 24, 1967, the 29th day after entry of the judgment. See Zick v. Haugh, Iowa, 165 N.W.2d 836. (The appeal bond was dated November 22nd. We do not find time of filing the bond appears.)
We have held compliance with rule 335, Rules of Civil Procedure which provides appeals to this court must be taken within 30 days after entry of the judgment (or ruling on a motion for new trial or for judgment notwithstanding the verdict) is mandatory and jurisdictional. Appeals not taken within such time are therefore dismissed. Zick v. Haugh, supra, and citations. It would seem a similar rule should apply to the appeal to the district court here and that court should be affirmed.
However, at this point we must consider section 762.49 which provides: "Dismissal of appeals prohibited. No appeal from the *926 judgment of a justice of the peace in a criminal case shall be dismissed."
This statute was considered in City of Denison v. McCord, 251 Iowa 1322, 105 N. W.2d 485, where a defendant paid his fine and costs in mayor's court the day they were assessed and gave notice of appeal to the district court nine days later. The city filed motion in the latter court to dismiss the appeal on the ground such right had been waived by voluntary payment of the judgment. Defendant resisted the motion on the ground the mayor extorted such payment by abuse, threats and denying his right to consult counsel. The trial court dismissed the appeal. We reversed and remanded the matter for a hearing to determine whether the fine was paid voluntarily and the right to appeal waived. "If it was not, the cause could not be dismissed and must stand for trial de novo in the district court."
The disposition of the McCord case seems to indicate that if the fine was paid voluntarily the right to appeal would thereby be waived and the district court could dismiss the appeal notwithstanding section 762.49, quoted supra. This conclusion is strengthened by this from the opinion (page 1327 of 251 Iowa, pages 485-487 of 105 N. W.2d): "As a general rule courts are agreed that by the voluntary payment of a fine a judgment is satisfied and the right to appeal is waived. (citations)."
In City of Denison v. McCord no question was raised as to the taking of the appeal to the district court within the time and in the manner provided by statute. Here it clearly appears no appeal was taken within such time nor, for that matter, in the required manner.
We think the provision of 762.49, supra, "No appeal from the judgment * * * shall be dismissed", fairly implies there is a valid appeal, taken within the time and substantially in the manner required by statute. The effect of a contrary holding would be to nullify these vital requirements such as are usually held essential to the jurisdiction of a court to which an appeal is taken.
The legislature could hardly have intended to specify when and how the appeal is to be taken and also provide that an appeal not so taken must stand. The construction we give 762.49 harmonizes it with 762.43 and renders both effective. See in this connection Rath v. Rath Packing Co., 257 Iowa 1277, 1288-1289, 136 N.W.2d 410, 416-417, and citations.
Since our view is that substantial compliance with the requirements of 762.43 as to taking the appeal is essential to the jurisdiction of the district court, we may observe nothing in the record shows the appeal was taken "by delivering to the justice (municipal court judge) * * * a written notice of his appeal, * * *." All that appears is a notice of appeal filed with the clerk of the municipal court.
Further, the notice referred to was not addressed to anyone. We have held several times a notice of appeal in a criminal case must be addressed to the party to whom it is to be given and failure so to do renders it fatally defective. State v. Fees, 250 Iowa 163, 165, 93 N.W.2d 103, 104 and citations; State v. McCune, 259 Iowa 386, 144 N.W.2d 401; State v. Birchall, Iowa, 150 N.W.2d 715.
II. We think, too, defendant's payment of the fine and costs here terminated his right of appeal. It is not claimed such payment was involuntary nor illegally coerced as in City of Denison v. McCord, supra, 251 Iowa 1322, 105 N.W.2d 485. This conclusion is supported not only by the implication referred to supra in the McCord opinion but also by Bell v. Great Atlantic and Pacific Tea Co., 257 Iowa 241, 243, 132 N.W.2d 358, 359-360 and cases there cited. See also In re Estate of Hoyt, 182 Iowa 876, 166 N.W. 297.
After citing three previous Iowa decisions, the Bell opinion continues: "These cases leave no doubt that a voluntary payment, *927 even of a cost judgment, is an acquiescence in the judgment below and waives the right of appeal.
"II. Nor do we think it material whether the judgment is paid before, at the time of, or after, taking the appeal. If paid before, there remains nothing to appeal from; if paid after, the appeal is lost by acquiescence and waiver."
III. Regarding the allegation in defendant's resistance to plaintiff's motion to dismiss his appeal to the district court that the cause of his payment of the fine and late filing of the notice of appeal was his representation by ineffective counsel, nothing in the record indicates counsel knew or should have known defendant intended to pay the fine or that there was any need to warn him of the consequences of so doing.
We may assume, as the resistance asserts, counsel incorrectly advised defendant 30 days, rather than 20, were allowed for the appeal. It is sufficient to say we think the district court was not compelled to entertain the appeal, if it could do so, not taken within the time allowed by statute due to the mistaken belief of counsel as to the time. The number of appeals to this court not taken within the time or in the manner provided by statute or rule, and are accordingly dismissed here, is surprising.
We find no sufficient ground to disturb the judgment appealed from.
Affirmed.
All Justices concur except BECKER, J., who takes no part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610759/ | 11 So.3d 1138 (2009)
Joe REED, Husband of and Dorothy Reed
v.
ST. CHARLES GENERAL HOSPITAL.
Dorothy Reed
v.
St. Charles General Hospital.
Dorothy Reed
v.
St. Charles General Hospital.
Dorothy Reed
v.
St. Charles General Hospital.
Dorothy Reed
v.
St. Charles General Hospital.
Dorothy Reed
v.
St. Charles General Hospital.
Nos. 2008-CA-0430, 2008-CA-0431, 2008-C-0570 to 2008-C-0573.
Court of Appeal of Louisiana, Fourth Circuit.
May 6, 2009.
*1140 Russ M. Herman, James C. Klick, Herman, Herman, Katz & Cotlar, LLP, New Orleans, LA, for Eugene Reed, Frank Day, Sunny Day Collins, and Clyde Donald Day, Individually and as Legally Designated Heirs of and on Behalf of the Estates of Joseph and Dorothy Reed.
Guy C. Curry, Suzanne Ford LaNasa, Curry & Friend, PLC, New Orleans, LA, for Louisiana Patient's Compensation Fund/Louisiana Patient's Compensation Fund Oversight Board.
Stephen M. Pizzo, Craig R. Watson, Blue Williams, L.L.P., Metairie, LA, for St. Charles General Hospital.
(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN).
PAUL A. BONIN, Judge.
Mr. Joe Reed entered St. Charles General in 1985 and received a transfusion of blood contaminated with the human immunodeficiency virus (HIV). The virus did not manifest itself for several years during which time Mr. Reed, unknowingly but tragically, communicated the virus to his wife, Dorothy Reed.
*1141 On November 12, 1988 Mr. Reed died of AIDS, acquired immune deficiency syndrome. His wife's death from AIDS followed on May 1, 1995.
Mr. and Mrs. Reed instituted these legal proceedings for compensation against the hospital and others. After their deaths, their children continued their parents' litigation and sought compensation for the deaths of their parents. After almost 20 years of litigation, the children asked the district court to approve their petitions to settle their claims against the hospital so that they could obtain payments from the Patient's Compensation Fund. The district judge approved the petitions. The PCF objects.
For the following reasons, we affirm in part, reverse in part, and remand the claim of Joe Reed to the district court for trial of damages in excess of the $100,000 settlement, pursuant to La. R.S. 40:1299.44(C)(5)(a).
1 Statement of the Case
The Reeds jointly and simultaneously instituted suit against St. Charles General Hospital in the Civil District Court and filed a medical malpractice claim with the PCF on September 14, 1988. At that time, the PCF[1] advised that St. Charles General Hospital ("St. Charles General") was a qualified healthcare provider under the Medical Malpractice Act. During the course of the pending lawsuit, the Reeds urged several theories of liability against St. Charles General, and also challenged the constitutionality of the Medical Malpractice Act ("Med Mal Act") and related statutory provisions. After the deaths of the Reeds, their children were substituted as the parties plaintiff and by the tenth amending and supplemental petition sought recovery for the wrongful deaths of their parents against St. Charles General. St. Charles General was acquired by Tenet HealthSystems Hospitals, Inc., which was substituted as the party defendant.[2]
This is the third time our court has visited this case. We review the two earlier visits in some detail as they bear upon and guide our decision.
The first occasion was on direct appeal. Reed v. St. Charles General Hosp., 602 So.2d 784 (La.App. 4th Cir.1992). We refer to this matter as Reed I. Among several other issues this court addressed in Reed I was a lower court judgment that had granted the exception of prescription filed by St. Charles General. In reversing the judgment, our court noted that the trial court had erred in two respects: first it had failed to allow the plaintiffs an opportunity to amend their petition to plead facts "relating to the third category of contra non valentem, as well as to add additional parties or cause of action"; and, second, it had failed "to hold the requisite evidentiary hearing (requested by Mrs. Reed) under Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094, 1104 (La.1985)." Reed, 602 So.2d at 786. The case was then remanded to the district court.
The second occasion, almost ten years later, came to this court on an application for supervisory relief. Reed v. St. Charles General Hosp., 01-1148 (La.App. 4 Cir. 3/27/02), 815 So.2d 319. Reed II, as we refer to the second visit, treated the trial court's denial of St. Charles General's reurged exception of prescription. Our court then decided the prescription issues *1142 pertaining to Joe Reed's claim separately from Dorothy Reed's claim.[3]
This court decided in Joe Reed's case that the applicable prescriptive period for his claim, a "patient's action in strict liability arising out of a defective blood transfusion,... was not governed by the statute establishing the three-year prescriptive period for medical malpractice claims, but rather general tort prescriptive periods. Williams v. Jackson Parish Hosp., 00-3170 (La.10/16/01), 798 So.2d 921." Reed p. 4, 815 So.2d at 321. However, because of the language of the version of La. R.S. 9:2797 which applied to Joe Reed's case, it was necessary for the trier of fact to determine "whether as of the date of Mr. Reed's transfusion, HIV could be detected by appropriate medical or scientific laboratory tests before a determination could be made with respect to prescription of Mr. Reed's claim." Id. (emphasis supplied). This court then remanded the exception of prescription as to Joe Reed's claim to the trial court.
As to the trial court's denial of the exception of prescription as to Dorothy Reed's claim, this court determined that because she had not been St. Charles General's "patient", as defined by La. R.S. 40:1299.41(A)(3), she was definitionally excluded from the applicability of the Medical Malpractice Act and, therefore, the general prescriptive period for delictual actions was applied to Dorothy Reed's claim. Our court further found that her lawsuit was timely filed. Reed, p. 5, 815 So.2d at 322.
Reed II also noted that despite the passage of ten years since the remand in Reed I directing a Sibley hearing on the constitutionality issues "the Reeds had not pursued their claim".
This third visit to our court has its beginnings in two distinct petitions for settlement approval filed by the Reeds' heirs in late 2007 to settle the wrongful death and survival action claims regarding each parent against St. Charles General. St. Charles General answered the petition pertaining to Joe Reed unqualifiedly and agreed with the petitioners that the Med Mal Act applied. However, St. Charles General, while not objecting to the petition for settlement pertaining to Dorothy Reed, did not agree that the Med Mal Act applied in her case.
The PCF responded by filing a petition to intervene, an exception of prematurity, an exception of prescription, a request for subpoena duces tecum, and a motion to continue hearing in the Joe Reed matter. The PCF responded by filing near identical pleadings mutatis mutandis as well as an exception of no cause or no right of action in the Dorothy Reed matter.
The trial court denied the petitions to intervene,[4] overruled the exceptions of prematurity[5] and of prescription,[6] quashed the subpoena duces tecum, denied the motions to continue conditionally, and overruled the exception of no cause or no right of action as to Dorothy Reed's claim.[7] Over the objections of the PCF, the trial court approved both settlement petitions.
The PCF filed four separate applications for supervisory relief and also filed motions for devolutive appeal from all of the *1143 signed judgments.[8] The PCF has assigned twenty-six errors by the trial court for our consideration. The four writ applications and the two appeals have been consolidated.
2 Standing of the PCF
Before specifically addressing the assignments of error filed by the PCF, we first determine its standing to object to the petitions for settlement. The PCF is a creature of the Legislature. La. R.S. 40:1299.41(A)(5), (19), and (20), (I) and (J); La. R.S. 40:1299.42; La. R.S. 1299.43(A)(4), (C) through (J), and La. R.S. 40:1299.44.
In Williams v. Kushner, 549 So.2d 294, 296 (La.1989) the Louisiana Supreme Court noted:
The legislature had the power to establish the fund and provide a supplemental recovery for those more seriously injured by medical malpractice.... The fund is not a negligent party and does not have the status of an Article 2315 defendant.
This determination by the Supreme Court is instructive and dispositive in the resolution of the issues presented by the objections of the PCF. The Med Mal Act, La. R.S. 40:1299.41 et seq., in which the duties and obligations of the PCF are treated, provides in Subsection (I) in pertinent part that
Nothing in this Part shall be construed to make the patient's compensation fund liable for any sums except those arising from medical malpractice....
The Med Mal Act has provisions, on the other hand, which prevent the PCF from challenging certain aspects of settlements entered into between the patient and the health care provider. For example, La. R.S. 40:1299.44(C)(5)(e) provides:
In approving a settlement or determining the amount, if any, to be paid from the patient's compensation fund, the trier of fact shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars.
Another pertinent example of a critical restriction on the PCF is set forth in La. R.S. 40:1299.44(C)(6):
Any settlement approved by the court shall not be appealed. Any judgment of the court fixing damages recoverable in any such contested proceeding shall be appealable pursuant to the rules governing appeals in any other civil court case tried by the court.
3 No Cause of Action as to Dorothy Reed
The PCF argues that the trial court erred in overruling its exception of no cause or right of action to the petition for settlement of Dorothy Reed's claim. The petition to settle her claim alleged that the Med Mal Act applied to her claim. St. Charles General did not agree with that assertion, although it agreed to the settlement. This exception asserted the position of the PCF that, since Dorothy Reed had not been a "patient" of St. Charles General, the Med Mal Act does not apply. If the Med Mal Act does not apply, then her heirs are not entitled to claim any payment from the PCF.
Because the Med Mal Act "is special legislation in derogation of the rights of tort victims, it must be strictly construed against limiting the victim's rights against the tortfeasor." Ginn v. Woman's *1144 Hospital Foundation, Inc., 02-1913, p. 10 (La.4/9/03), 842 So.2d 338, 344 (citations omitted).
The Supreme Court in Williamson v. Hospital Service District No. 1 of Jefferson, 04-0451, p. 5 (La.12/1/04), 888 So.2d 782, 786 reiterated the point:
This court has, without exception, emphasized that the MMA and its limitations on tort liability for a qualified health care provider apply strictly to claims "arising from medical malpractice," La.Rev.Stat. 40:1299.41(I), and that all other tort liability on the part of the health care provider is governed by general tort law. [citations omitted] In Sewell [,v. Doctors Hosp., 600 So.2d 577 (LA.1992)], we explained:
The Medical Malpractice Act's limitations on the liability of a health care provider are special legislation in derogation of the rights of tort victims. As such, the coverage of the Act should be strictly construed. These limitations apply only in cases of liability for malpractice as defined in the Act. Any other liability of the health care provider to the patient is not subject to these limitations. (all emphasis supplied)
The Med Mal Act in effect at the time of the blood transfusion defined "malpractice" at La. R.S. 1299.41(A)(8):
"Malpractice" means any unintentional tort or breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, and also includes all legal responsibility of a health care provider arising from defects in blood, tissue, transplants, medicines, or from defects in or failures or prosthetic devices, implanted in or used on or in the person of a patient. (emphasis supplied)
The applicable version of La. R.S. 40:1299(A)(3) defined a "patient" as "a natural person, who receives or should have received health care from a licensed health care provider, under contract, expressed or implied."
Mrs. Dorothy Reed was not a "patient" and therefore is not covered by the Med Mal Act.[9] This is precisely what we held in Reed II when we found that Mrs. Reed's claim was not prescribed because her claim was not within the coverage of the Med Mal Act:
Based on the definitions provided under La. R.S. 40:1299.41, we find that Mrs. Reed does not fall within the parameters of the definition of "patient". She did not receive health care from St. Charles General. Dorothy Reed was injured, and later died as a result of "patient care" extended to her husband, and not direct healthcare afforded to her. Notwithstanding the date of filing, Mrs. Reed's claim would not fall under the medical malpractice laws since she was never a patient of St. Charles General. We cannot justify holding a person accountable for potential illness when they had not been ill, had no direct interaction with the health care provider and had no inclination that they may be ill because of their interaction with a loved one who had been given health care. Therefore, the prescriptive period for delictual actions applies to Mrs. Reed's claim.
Reed v. St. Charles Gen. Hosp., 01-1148, p. 5, 815 So.2d at 322.
*1145 Mrs. Reed's claimants urge us to consider our court's decision in Clark v. Baird, 97-1025 (La.App. 4 Cir. 5/20/98), 714 So.2d 840. In Clark the patient had been stuck accidentally with a contaminated needle by her physician. She contracted Hepatitis C. Her husband intervened in the suit, alleging that his wife unknowingly sexually transmitted Hepatitis to him. The health care provider excepted to the husband's intervention on the grounds that he must first submit to a medical review panel pursuant to the Med Mal Act. This court decided that the Med Mal Act did not apply to the husband:
[The intervenor] clearly does not fall within the Malpractice Act definition of patient. He neither received health care from defendants, nor did he have an express or implied contract with defendants. He had no relationship with the defendants whatsoever.
Clark, 97-1025 p. 11, 714 So.2d at 845. Reed II, and our holding today, are consistent with the Clark decision.[10]
In line with the Supreme Court jurisprudence, we emphasize that Dorothy Reed's claim is covered by the general tort law. There is no authority for us to extend the Med Mal Act to persons whose rights have not been restricted by its express provisions.
The PCF filed peremptory exceptions of no cause of action and no right of action to the petition to settle Dorothy Reed's claim. La. C.C.P. art. 927(A)(5) and (6). We find that the exception of no cause of action is an appropriate pleading in Dorothy Reed's case because of the application of the principle of the "law of the case".
The "law of the case" principle bars the plaintiffs from reasserting the applicability of the Med Mal Act. Law of the case is "... a doctrine whereby an appellate court will not reconsider its prior rulings on an issue in a subsequent appeal in the same case." Roccaforte v. Nintendo of America, Inc., 05-239, p. 8 at fn.4 (La. App. 5 Cir. 11/29/05), 917 So.2d 1143, 1148. Generally, when an appellate court considers arguments made in supervisory writ applications or responses to such applications, the court's disposition on the issue considered becomes the "law of the case," foreclosing relitigation of that issue either in the trial court on remand or in the appellate court on a later appeal. See, Easton v. Chevron Indus., Inc., 602 So.2d 1032, 1038 (La.App. 4th Cir.1992). "The doctrine also applies to previous decisions on writ applications as well as full appellate proceedings." Roccaforte, supra.; see also Andry v. Murphy Oil, U.S.A., Inc., 05-0126, p. 18 (La.App. 4 Cir. 6/14/06), 935 So.2d 239, 251.
Applying the "law of the case" doctrine, we conclude that in this case no cause of action for payment from the PCF can be stated because Dorothy Reed, we have already determined, was not a patient and therefore her claim was not within the scope of the Med Mal Act. La. R.S. 40:1299.41(I), as earlier observed, provides that "[n]othing in this Part shall be construed to make the patient's compensation fund liable for any sums except those arising *1146 from medical malpractice." (emphasis supplied).
On the one hand, recovery for Dorothy Reed's claim is not limited by the "caps" of the Med Mal Act. On the other hand, she cannot avail herself of the funds in the PCF.[11]
The PCF must have the opportunity to object at this stage of the proceedings to protect the integrity of its fund.[12] Our conclusion in this regard is guided by the Louisiana Supreme Court case of Bennett v. Krupkin, 01-0209 (La.10/16/01), 798 So.2d 940. In Bennett, a health care provider filed an exception of prematurity alleging the Med Mal Act was applicable and that the plaintiffs first needed to send their case to a medical review panel. Without objection by the plaintiffs or the health care provider, the trial court permitted the PCF to intervene in the malpractice action. Subsequently, the PCF filed a motion for summary judgment claiming the physician did not purchase the appropriate insurance coverage prior to the loss and, as such, was not a "health care provider" as defined under the Med Mal Act. It argued the Act was not applicable. The plaintiffs filed a motion for summary judgment asserting that there was insurance coverage for the loss and the Med Mal Act applied under the facts. The trial court granted the physician's exception of prematurity, and reserved the plaintiffs' rights to pursue a malpractice claim under the Med Mal Act upon completion of the medical review panel process. The trial court also granted partial summary judgment in favor of the plaintiffs and denied the PCF's motion for summary judgment finding that there was appropriate insurance coverage for the alleged malpractice. When the PCF filed a motion for new trial, the plaintiffs opposed it, for the first time, arguing the PCF lacked standing to raise the issues. The trial court denied the motion and the Louisiana First Circuit Court of Appeal dismissed the appeal of the PCF stating that it was unable to find any statutory or jurisprudential basis for allowing the PCF to appeal.
In Bennett, the Louisiana Supreme Court granted supervisory writs to determine whether the PCF could appeal a trial court's ruling granting an exception of prematurity filed by a health care provider when the health care provider and the plaintiff have not challenged the judgment granting the exception. In concluding that the PCF could appeal the trial court's ruling, the Supreme Court recognized that under the Med Mal Act, the PCF has the responsibility and authority to manage and defend the fund, citing Louisiana Revised Statutes 40:1299.44(A)(5)(b), 40:1299.44(D)(2)(a) and 40:1299(D)(2)(b)(x). The Supreme Court relied on the procedural articles pertaining to intervenors and their right to appeal, holding:
Article 1091 provides that "[a] third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by: ... (3) Opposing both plaintiff and defendant." La. C.C.P. art. 1091. Article 2086 provides that "[a] person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken." La. C.C.P. art.2086. As a party who could have, and did, intervene in the trial court, the Board *1147 has a right to appeal under La. C.C.P. art.2086. Finally, Article 2083 provides in part that "[a]n appeal may be taken from a final judgment rendered in causes in which appeals are given by law..." La. C.C.P. art.2083. The judgment granting Dr. Krupkin's exception of prematurity was a "final judgment." Further, La. R.S. 40:1299.44(D)(2)(b)(x) specifically gives the Board the authority to defend the Fund from all claims due to the negligence of a non-covered health care provider, which, in our view, includes opposing an exception of prematurity filed by a doctor on the grounds that the doctor is a "non-covered health care provider."
The Board clearly has an interest in this action to claim that Dr. Krupkin is not a qualified health care provider, in that, if Dr. Krupkin is found to be a qualified health care provider, the Board could be liable for the amount of any judgment over $100,000.00. In fact, the Board is statutorily required to notify the claimant within 15 days of the receipt of the claim whether or not the named health care provider is qualified under the MMA. La. R.S. 40:1299.47(A)(3). Accordingly, the Board notified the plaintiffs and Dr. Krupkin that he was not a qualified healthcare provider based on their records and the plaintiffs then filed their suit in the district court.
Bennett, pp. 6-7, 798 So.2d at 944 (emphasis supplied).
In this case, the standing of the PCF to make its objection directly, without the need of an intervention, is clear in light of the settlement pursuant to Louisiana Revised Statute 40:1299.44(C)(5). See Koslowski v. Sanchez, 576 So.2d 470 (La.1991), overruled on other grounds, Russo v. Vasquez, 648 So.2d 879 (La.1995); Felix v. St. Paul Fire and Marine Ins. Co., 477 So.2d 676 (La. 1985).
We are mindful of jurisprudence holding that the PCF is not a party defendant and cannot participate in the proceedings absent a judgment or settlement in excess of $100,000. See Payne v. N.O. Gen. Hosp., 611 So.2d 777, 780 (La.App. 4th Cir.1992); Kelty v. Brumfield, 534 So.2d 1331, 1333-34 (La.App. 4th Cir. 1988). However, we do not view the claims of the PCF in the instant matter entirely as an objection to the actual settlement of liability between Mrs. Reed's survivors and St. Charles General. Specifically, with the filing of its exception and objection of no cause of action in response to the petition for approval of settlement of the claim relative to Mrs. Reed, the PCF objected to the settlement on the basis that the statutory requirement that the claimant be a "patient" was not satisfied under the strict requirements of the Med Mal Act and, thus, the Med Mal Act does not apply. See La. R.S. 40:1299.41(A)(3).
Applying the reasoning of Bennett, we conclude that there is nothing to bar the PCF from objecting, by an exception of no cause of action to the approval of the settlement that might result in a claim against the PCF for an amount in excess of the settlement:
... [I]n this case and at this stage, the contested issue is whether or not this case properly falls under the MMA at all, i.e., whether Dr. Krupkin met the requirements of the MMA to be deemed a qualified healthcare provider entitled to the benefits of the MMA. Nothing in the jurisprudence suggests that the Board has no right to argue its position that the health care provider is not a qualified health care provider under the MMA, even in the early stages of this type of litigation ...
*1148 * * *
The Board has asserted that Dr. Krupkin is not a qualified health care provider on numerous occasions, i.e., after the Bennetts filed their medical malpractice complaint with the Board, in its petition of intervention seeking a decision as to whether Dr. Krupkin was covered by the MMA, in its motion for summary judgment, in its opposition to Dr. Krupkin's exception of prematurity, in its Motion for New Trial on Dr. Krupkin's exception of prematurity, and in its appeal of that judgment. The Board is clearly an interested party entitled to intervene and appeal under the intervention statutes, and, in fact, has the duty to defend the Fund under La. R.S. 40:1299.44(A)(5)(b), La. R.S. 40:1299.44(D)(2)(a), and La. R.S. 40:1299.44(D)(2)(b)(x). This is particularly evident here, where the Board is the only party or entity claiming that the health care provider is not a qualified health care provider entitled to coverage under the MMA. Accordingly, we find that the Board has standing to appeal the trial court's judgment granting Dr. Krupkin's exception of prematurity.
Bennett, pp. 9-10, 798 So.2d at 946 (emphasis supplied.)
We conclude, in light of our earlier ruling, that the trial court erred in entertaining and approving the settlement for the wrongful death of Mrs. Reed under the Med Mal Act. The plaintiffs do not have a cause of action under the Med Mal Act that would warrant, or even require, the trial court's approval of the settlement. To the extent that the trial court's judgment of February 26, 2008 reserves any rights against the PCF or provides for any further proceedings against the PCF by Dorothy Reed's survivors, such provisions of the judgment are vacated. The exception of no cause of action filed by the PCF in response to the Dorothy Reed petition for settlement is sustained.
Accordingly, we grant the writ application in # 2008-C-0572 and reverse the trial court's judgment overruling the exception of no cause of action.
4 Exception of Prescription as to Joe Reed
The PCF filed an exception of prescription to the claim of Joe Reed.[13] Unlike the no cause of action exception relative to Dorothy Reed's claim, this exception is not directed to the petition for settlement, but rather to the underlying cause of action. The PCF contends that Joe Reed filed his lawsuit after the applicable prescriptive date and he therefore can have no recovery against the PCF. Joe Reed's children argue that the PCF has no standing to raise the prescription issue; the settlement of his claim with St. Charles General, they argue, mooted any prescriptive defenses.
As noted earlier, this is third time we have visited the issue of prescription regarding the claim of Joe Reed. St. Charles General previously argued that Joe Reed's claim was prescribed. In Reed I we remanded the issue because there had been no Sibley determination of the constitutionality of the Med Mal Act and its prescriptive periods. In Reed II we remanded the issue because of a factual issue concerning "detectability" of HIV in blood at the time of the transfusion in 1985.
*1149 The Louisiana Supreme Court in Koslowski, 576 So.2d at 474 held:
When the insurer has admitted liability up to the statutory maximum, the liability of the health care provider is established, and the only remaining issue is the damages, if any, owed by the patient's compensation fund. The fund cannot contest liability when there is a binding settlement for $100,000 by the health care provider, either before or after trial.
This court has consistently held that once the health care provider and the claimant agree on a settlement of $100,000.00 paid by the health care provider to the claimant, the PCF is without standing to raise prescription as a bar to further payment by the PCF. The underlying doctrinal basis for our court's rejection of the PCF's urging the exception of prescription once there has been a settlement by the health care provider of its maximum liability is set out in Kelty, 534 So.2d at 1334 "where the settlement is for the maximum amount, the statute is clear that liability is admitted." (emphasis added). Under those circumstances the only course left to the PCF is to contest the amount of damages it must pay from the Fund. See also Schwarzenburg v. Jackson, 600 So.2d 163 (La.App. 5th Cir.1992) in which the PCF was not allowed to intervene to contest liability between the time of settlement and the time of the approval of the settlement by the court.
In Rey v. St. Paul Fire and Marine Insurance Company, 95-0661 (La. App. 4 Cir. 11/16/95), 665 So.2d 109, 111, this court reiterated its holding in Kelty and held: "Thus, once the insurer has paid its policy limits, statutory liability is admitted and the [PCF] has no standing to raise the issue of prescription." The PCF has no standing to raise the exception of prescription before or after a settlement in the maximum amount of the health care provider's limited liability.[14] The PCF may raise prescription only if there is a settlement for less than the health care provider's maximum liability. See, e.g., St. Romain v. Luker, 00-1366 (La.App. 1 Cir. 11/9/01), 804 So.2d 85.
As noted in Williams v. Kushner, 549 So.2d at 296 (La.1989) the PCF "is not a negligent party and does not have the status of an Article 2315 defendant." The Supreme Court later held that the Med Mal Act "contemplates that the issue of liability is generally to be determined between the malpractice victim and the health care provider, either by settlement or by trial, ..." Stuka v. Fleming, 561 So.2d 1371, 1374 (La.1990). Prescription is a means to avoid liability. LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226. The exception of prescription was for St. Charles General alone to urge. La. C.C.P. art. 927(A)(1) and (B). Prescription prevents only the enforcement of a right by legal action, but does not terminate the natural obligation. Brumfield v. McElwee, 07-0548, p. 9 (La.App. 4 Cir. 1/16/08), 976 So.2d 234, 241.
Here the trial judge approved the settlement between St. Charles General and the *1150 claimants. "Any settlement approved by the court shall not be appealed." La. R.S. 40:1299.44(C)(6). Based upon our holdings in Kelty and Rey, we conclude that the trial judge did not err in overruling the exception of prescription filed by the PCF. The PCF had no standing to raise prescription under these circumstances.[15]
Accordingly, in writ application # 2008-C-0570, we grant the application but deny the PCF the relief that it seeks.
5 Petition for Intervention Filed by the PCF
The PCF argues that the trial court erred in refusing to permit it to intervene in the petitions for settlement. The PCF contends that its interests were indispensable to a proper adjudication of the settlement petitions and that it was entitled as a matter of statutory right to intervene because there was a constitutional challenge to the Med Mal Act.
The plaintiffs filed distinct petitions for settlement of the claims pertaining to Joe Reed and to Dorothy Reed. These petitions were filed pursuant to La. R.S. 40:1299.44(C). There is no dispute that St. Charles General was a qualified health care provider under the Medical Malpractice Act, La. R.S. 40:1299.41 et seq., and as such was eligible for the special benefits provided by the Med Mal Act. Of course, the principal substantive benefit enjoyed by a qualified health care provider under the Med Mal Act is a limitation of its liability pursuant to La. R.S. 40:1299.42. Therefore, St. Charles General's liability was limited to, or "capped" at, $100,000.00 "for all malpractice claims because of injuries to or death of any one patient" under the version of La. R.S. 40:1299.42(B)(2) in effect at the time Joe Reed was a patient at St. Charles General in 1985. The total amount recoverable if the Med Mal Act applied could not exceed $500,000.00 plus interest and costs. La. R.S. 40:1299.42(B)(1).
Any difference between the $100,000.00 limitation for St. Charles General and the maximum recovery of $500,000.00 plus interest and costs is to be paid by the PCF "pursuant to the provisions of R.S. 40:1299.44(C)." La. R.S. 40:1299.42(B)(3)(a).
Subsection C provides, inter alia, that if St. Charles General's insurer and the claimants desire to settle a claim for the limits of St. Charles General's liability policy while demanding additional excess payment, the claimant shall prepare a "petition" which includes "sufficient information to inform the other parties about the nature of the claim and the additional amount demanded." La. R.S. 40:1299.44(C)(2). A copy of this petition is to be "served" on the PCF, the health care provider and its insurer at least 10 days before filing. Id. Upon the expiration of the 10 day period, since the lawsuit was already pending in this matter, the petition was to be filed in the Civil District Court. La. R.S. 40:1299.44(C)(1).
Subsection C(3) provides that the PCF may either agree to the settlement demanded or "may file written objections to the payment of the amount demanded. The agreement or objections to the payment demanded shall be filed within twenty days after the petition is filed." (emphasis added). There is no definition or further explanation of the term "objections".
Subsection C(4) requires the judge to set the date on which the petition shall be *1151 heard expeditiously and to notify the PCF, among others, "thereof as provided by law."
It is clear from the procedure set out in these subsections that the proceeding on the petition for settlement is a summary proceeding.[16] La.C.C.P. arts. 2591 et seq. It is designed to be conducted with "rapidity". The term "objections" is found in connection with exceptions. La. C.C.P. arts. 925-927.
While the PCF is not a party to the underlying lawsuit, it does have standing to file "objections" to the petition for settlement under these subsections and to further participate in the expedited hearing.
The question then becomes what, if any, harm or disadvantage has the PCF suffered by reason of the trial court's refusal to permit it to intervene in the underlying litigation. "An intervenor cannot object to the form of the action, the venue, or to any defects and informalities personal to the original parties." La. C.C.P. art. 1094. Therefore, if the PCF were to be merely an "intervenor", many of the objections otherwise available to it by way of exceptions would be unavailable under article 1094. We conclude that the trial judge was correct when she denied the intervention of the PCF to contest liability. Payne, supra.
An issue related to its motion to intervene is the contention of the PCF that it has a statutory right provided for in La. R.S. 40:1299.44(D)(2)(b)(xii), which gives it *1152 the authority to "[i]ntervene as a matter of right, at its discretion, in any civil action or proceeding in which the constitutionality of this Part [Med Mal Act], R.S. 9:5628, R.S. 9:5628.1 or any other Louisiana law related to medical malpractice as defined in this Part is challenged."
In Reed I our court remanded the case in order for the trial court to conduct a Sibley hearing to determine the constitutionality of the Med Mal Act, its limitations on liability, and its prescriptive periods. Ten years later in Reed II our court commented that the plaintiffs in the intervening years had not pursued their constitutional claims. The court implied both in its comment and in its disposition of the action, remanding the prescription issue without any mention of the claim of unconstitutionality, that the plaintiffs had abandoned their right to a Sibley hearing.
The plaintiffs attached to their brief a copy of a letter from an assistant attorney general which purports to memorialize their counsel's statement made in open court but not on the record that "the plaintiffs were dropping their challenges to the constitutionality of `all caps' and to the `peremptive' statute." In their brief they agree that their counsel "in open court, specifically stated that Plaintiffs would not challenge the constitutionality of the Medical Malpractice Act".
Moreover, our disposition of the claim of Dorothy Reed moots any constitutional challenge to the Med Mal Act as its coverage does not extend to her claim.
Finally, and most importantly, no constitutional challenge to the Med Mal Act survives the final settlement with and release of St. Charles General in Joe Reed's claim. Williams v. Kushner, supra. Expressly relying upon the holding in Williams, we held in Tipton v. Campbell, 08-0139, p. 31 (La.App. 4 Cir. 9/24/08), 996 So.2d 27, 47, writ denied, 08-2564 (La.1/9/09), 998 So.2d 720, "the limitation of the PCF's liability in this case to $400,000 is not subject to constitutional challenge." The claimants have settled and released the only party, St. Charles General, whose limitation of liability could have been challenged at the Sibley hearing. As we held in Tipton, that settlement renders their constitutional challenge moot.
For these reasons, the plaintiffs no longer have a right to contest the constitutionality of the Med Mal Act, or the related statutes delineated in subsection D(2)(b)(12), and there can be no Sibley hearing. The PCF is not entitled to intervene as a matter of right pursuant to that subsection as no issue of constitutionality survives the settlement for Joe Reed and we have determined that Dorothy Reed's claims are not subject to the limitations of the Med Mal Act and related acts.
Accordingly, in writ application # 2008-C-0573, we grant the application but deny the PCF the relief which it seeks.
6 Exception of Prematurity
The PCF filed an exception of prematurity to the petition for settlement in Joe Reed's claim.[17] The PCF argues that the trial court's consideration of the settlement petition was "premature" because (1) the PCF was not properly served with the Rule to Show Cause, (2) the trial court held the settlement approval 28 days before it considered its exceptions, (3) the settlement approval hearing date did not give the PCF adequate time to prepare, and (4) the PCF did not have the benefit of documentation it had subpoenaed.
*1153 An exception of prematurity to a petition for approval of a settlement would lie if the claimants filed their petition before the expiration of the 10-day delay provided by statute. La. R.S. 40:1299.44(C)(2); La. C.C.P. art. 926(A)(1). The evidence before us clearly establishes that the PCF received a copy of the petition on December 29, 2007; the petition was not filed with the court until January 9, 2008.
The ground for its objection in the first instance is that it was not properly served with the hearing date. This ground is properly raised by the declinatory exception of insufficiency of service of process. La. C.C.P. art. 925(A)(2). Since the PCF did not raise this exception, it is waived. La. C.C.P. art. 925(C). Moreover, counsel for the PCF appeared at the hearing for which it claims lack of proper service. That appearance itself constitutes a waiver unless specifically pleaded therein. In Re: Medical Review Panel for Claimant Brunet, 578 So.2d 1011, 1013 (La.App. 4th Cir.1991).
Reading subsections C(3) and (4) in pari materiae, we conclude that the only restriction on the trial court in setting the hearing date for consideration of approval of the settlement is that the health care provider's insurer and the PCF are afforded 20 days within which to file any objections after the petition is filed. Recalling that a copy of the petition is served on the PCF at least 10 days before its filing, this affords the PCF a minimum of 30 days within which to file its objections from the time it receives actual notice of the petition to settle.
The petition was filed on January 9, 2008 and the hearing was set for February 1, 2008. The statutorily required delay was adhered to by the trial court.
Since the petition for approval is a summary proceeding, any exceptions to the proceeding were required to be taken up before the hearing itself. La. C.C.P. art. 2593 provides:
A summary proceeding may be commenced by the filing of a contradictory motion or by a rule to show cause, except as otherwise provided by law.
Exceptions to a contradictory motion, rule to show cause, opposition, or petition in a summary proceeding shall be filed prior to the time assigned for, and shall be disposed of on, the trial. An answer is not required, except as otherwise provided by law.
No responsive pleadings to an exception are permitted.
Any delay in the trial court's consideration of the exceptions are attributable to the PCF itself in improperly seeking (and obtaining) a date for hearing on its own exceptions at a time other than the approval hearing.
The two final grounds urged by the PCF for its "prematurity" exception are that it did not have time to prepare and it did not obtain subpoenaed materials. These grounds would not render the petition premature. Additionally, the PEC has not demonstrated a particular need it was unable to meet in preparing for the approval hearing. Regarding Joe Reed's claim, the only "preparation" was to file a timely objection to a payment to his claimants from the PCF without the benefit of a trial to determine the amount of damages. La. R.S. 40:1299.44(C)(5)(a) provides that if the PCF objects to any settlement from the PCF, the court is to schedule a "subsequent trial" at a time after the PCF has had an opportunity to conduct discovery and related activities; the PCF can even demand a trial by jury at that time. The trial court properly went forward with a hearing on February 1, 2008 and the exception of prematurity was properly overruled. The petition was not premature *1154 and any objection to proper notice was waived.
Accordingly, in writ application # 2008-C-0571, we grant the application but deny the PCF the relief which it seeks.
7 The Devolutive Appeals
The PCF, in addition to its multiple applications for supervisory relief, also filed a devolutive appeal in the Joe Reed claim. We have examined each of the judgments which the PCF has included in its appeal of the Joe Reed claim. All of the judgments, with the exception of the denial of the petition to intervene, are interlocutory. La. C.C.P. art. 1841 ("A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment."). The denial of the petition to intervene is a partial final judgment under La. C.C.P. art. 1915(A)(1). It requires no designation as final in order for the PCF to appeal. La. C.C.P. art.1911.
We have already determined the merits of the ruling on the intervention in Joe Reed's claim and affirm the trial court.
As to the interlocutory judgments relative to the motion to continue the settlement hearing and the motion to quash the subpoena duces tecum, the appeals from those judgments are dismissed. Turning to the judgments devolutively appealed in the Dorothy Reed claim, we affirm the trial court's ruling on the petition for intervention and we dismiss the appeals of the interlocutory judgments.
8 Decree
The trial court's ruling in the Dorothy Reed claim overruling the exception of no cause of action filed by the PCF is reversed and the exception is sustained.[18] The Dorothy Reed claimants' settlement petition is dismissed with prejudice insofar as it seeks any payment from the PCF, and the trial court judgment is reversed and vacated insofar as it purports to reserve rights for payment from the PCF or further proceedings against the PCF.
The trial court's rulings in the Joe Reed claim overruling the exception of prescription and the exception of prematurity as well as its denial of the petition for intervention filed by the PCF are affirmed.[19]
Any appeal from any other judgment or ruling appealed from in the devolutive appeal motion filed by the PCF is dismissed as not appealable.[20]
The claim of Joe Reed is remanded for further proceedings pursuant to La. R.S. 40:1299.44(C)(5)(a), if they have not already commenced.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
NOTES
[1] PCF refers both to the formal name of the Patient's Compensation Fund Oversight Board as well as to the fund itself. We use PCF interchangeably to represent both the Board and the Fund throughout this opinion.
[2] In this opinion we reference the original name of the defendant, St. Charles General Hospital.
[3] Reed II, in addition to the separate treatment of the prescription issues, dismissed the Reeds' claim for unfair trade practices as prescribed. Reed, p. 6, 815 So.2d at 321-322.
[4] Writ application # 2008-C-0573.
[5] Writ application # 2008-C-0571.
[6] Writ application # 2008-C-0570.
[7] Writ application # 2008-C-0572.
[8] The appeal for Joe Reed is # 2008-CA-0430 and for Dorothy Reed is # 2008-CA-0431.
[9] The plaintiffs filed a "Tenth Supplemental and Amended Petition for Damages" alleging that "at all relevant times hereto, Mrs. Reed was not a patient of St. Charles, and she was neither treated by, nor received health care from St. Charles. As a result, her claims and causes of action (and those derived there from) are not subject to the provisions of the Medical Malpractice Act or to the limitation periods of La. R.S. 9:5628."
[10] The Clark decision did discuss the Third Circuit's case of Trahan v. McManus, 96-669 (La.App. 3 Cir. 2/19/97), 689 So.2d 696, which was reversed by the Supreme Court after Clark was decided. See Tranhan v. McManus, 97-1224 (La.3/2/99), 728 So.2d 1273. The Supreme Court held that "bystander" damages under La. Civil Code art. 2315.6 due to malpractice were covered by the Med Mal Act. As in Clark, Mrs. Reed's injuries were not limited to emotional distress derived from viewing the negligent act. She suffered and died from AIDS. Her injuries were physical as well as mental.
[11] St. Charles General actually settled Dorothy Reed's claims for $400,000. The settlement obviously did not limit itself to the Med Mal Act's cap for a health care provider.
[12] The available funds should not be reduced or depleted in order to pay claims of victims whose claims were not subject to the Med Mal Act's limitations on recovery.
[13] The PCF also filed an exception of prescription as to the claim of Dorothy Reed. However, because we determined that the exception of no cause of action was meritorious it is not necessary for us to consider the exception of prescription as to Dorothy Reed's claim.
[14] In accord is McGrath v. Excel Home Care, Inc., 01-1270 (La.App. 5 Cir. 3/26/02), 810 So.2d 1283,1288, wherein it was stated:
The PCF does not stand in the shoes of the Defendant. It is a creature of the legislature created solely to pay excess damages to an injured plaintiff who can prove that his excess damages were caused by the health care provider's malpractice. To allow it to raise exceptions after the payment would be to permit it to raise defenses only given to a Defendant, which is it not. See: McCrory [v. Jefferson Parish Hosp. Service District No. 2, 96-624 (La.App. 5 Cir. 12/30/96)], 686 So.2d at 1064. Thus, we find that the PCF cannot raise the exceptions at this time.
[15] See also our decision in Miller v. Southern Baptist Hosp., 00-1352 (La.App. 4 Cir. 11/21/01), 806 So.2d 10.
[16] Louisiana Revised Statute 40:1299.44(C)(1-5(a)) provides:
(1) A petition shall be filed by the claimant with the court in which the action is pending against the health care provider, if none is pending in the parish where plaintiff or defendant is domiciled seeking (a) approval of an agreed settlement, if any, and/or (b) demanding payment of damages from the patient's compensation fund.
(2) A copy of the petition shall be served on the[Louisiana Patient's Compensation Fund Oversight] board, the health care provider and his insurer, at least ten days before filing and shall contain sufficient information to inform the other parties about the nature of the claim and the additional amount demanded.
(3) The board and the insurer of the health care provider or the self-insured health care provider may agree to a settlement with the claimant from the patient's compensation fund, or the board and the insurer of the health care provider or the self-insured health care provider may file written objections to the payment of the amount demanded. The agreement or objections to the payment demanded shall be filed within twenty days after the petition is filed.
(4) As soon as practicable after the petition is filed in the court the judge shall fix the date on which the petition seeking approval of the agreed settlement and/or demanding payment of damages from the fund shall be heard, and shall notify the claimant, the insurer of the health care provider or the self-insured health care provider as the case may be, and the board thereof as provided by law.
(5)(a) At the hearing the board, the claimant, and the insurer of the health care provider or the self-insured health care provider may introduce relevant evidence to enable the court to determine whether or not the petition should be approved if it is submitted on agreement without objections. If the board, the insurer of the health care provider or the self-insured health care provider and the claimant cannot agree on the amount, if any, to be paid out of the patient's compensation fund, then the trier of fact shall determine at a subsequent trial which shall take place only after the board shall have been given an adequate opportunity to conduct discovery, identify and retain expert witnesses, and prepare a defense, the amount of claimant's damages, if any, in excess of the amount already paid by the insurer of the health care provider or self-insured health care provider. The trier of fact shall determine the amount for which the fund is liable and render a finding and judgment accordingly. The board shall have a right to request trial by jury whether or not a jury trial has been requested by the claimant or by any health care provider. (emphasis supplied).
[17] An exception of prematurity was filed in the Dorothy Reed claim, but we have not considered that exception in light of our holding on the exception of no cause of action.
[18] Writ application # 2008-C-0572 and appeal # 2008-CA-0431.
[19] Writ applications # 2008-C-0570, # 2008-C-0571, and # 2008-C-0573.
[20] Appeal # 2008-CA-0430. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610790/ | 255 Minn. 281 (1959)
96 N.W. (2d) 555
STATE EX REL. JOSEPH P. REDENBAUGH, ALSO KNOWN AS E.H. HAMILTON,
v.
DOUGLAS C. RIGG.
No. 37,580.
Supreme Court of Minnesota.
May 8, 1959.
*282 Miles Lord, Attorney General, and Charles E. Houston, Solicitor General, for appellant.
Hvass, Weisman, Peterson, King & Schwappach, for respondent.
THOMAS GALLAGHER, JUSTICE.
Douglas C. Rigg, warden of Minnesota State Prison, hereafter referred to as appellant, appeals from an order of the District Court of Washington County which discharged Joseph P. Redenbaugh, hereafter referred to as respondent, from imprisonment in the Minnesota State Prison.
In his original petition for a writ of habeas corpus, respondent alleged that he was unlawfully held in appellant's custody in that (1) the District Court of Hennepin County, before which he entered his plea of guilty to the charge of murder in the first degree on May 25, 1917, and by which he was sentenced to life imprisonment, was divested of jurisdiction at the time because, in contravention of Minn. Const. art. 1, §§ 6 and 7, and U.S. Const. Amend. XIV, he had not been informed by it of his right of counsel; (2) he had not waived his right to counsel; and (3) he had not understood the nature of the indictment against him.
On May 7, 1917, respondent had been indicted by the grand jury of Hennepin County for the murder of George Connery, a Minneapolis policeman. The indictment set forth the crime as follows:
"The said Frank McCool, alias Frank J. Curtis and John Doe [respondent], whose true name is unknown, on the 24th day of April A.D. 1917 at the City of Minneapolis in said Hennepin County, Minnesota, then and there being armed with dangerous and deadly weapons, to-wit: pistols, commonly called revolvers, a more particular description of said weapons being to the Grand Jury unknown, said revolvers being then and there loaded with gunpowder and leaden bullets, and said revolvers being then and there held in the hands of them, the said Frank McCool, alias Frank J. Curtis, and John Doe [respondent], whose true name is to the Grand Jury unknown, did then and there wilfully, *283 unlawfully, wrongfully, knowingly, feloniously and intentionally, without excuse or justification, without the authority of law, and with a premeditated design to effect the death of a human being, to-wit: one George Connery, kill and murder the said George Connery, by then and there discharging said revolvers at, against, upon and into the body and person of him, the said George Connery, and by then and there therewith and with other deadly and dangerous weapons, a more particular description of which is to the Grand Jury unknown, beating, wounding, bruising and cutting the body and person of him, the said George Connery, thereby and therewith inflicting upon the body and person of him, the said George Connery, mortal wounds, of which said mortal wounds the said George Connery thereafter died in the County of Anoka, State of Minnesota, on the 24th day of April, 1917, * * *."
At the arraignment respondent then gave his name as E.H. Hamilton. A record of the proceedings there was submitted at the hearing in the present proceedings. It disclosed that:
"* * * Defendant is present in person and County Attorney John M. Rees is also present. After stating that he had no counsel and did not desire any the defendant was duly arraigned and pleaded guilty to the charge."
This was followed by questions of the court answered by respondent relative to his education, age, and background.
On February 3, 1958, a writ of habeas corpus was issued in the present proceedings. On March 10, 1958, a hearing thereon was had in the District Court of Washington County. The trial court made findings and conclusions therein as follows:
"That at the time of his arraignment, * * * petitioner was 19 years of age * * * had a fourth grade education, and was unfamiliar with court procedure. * * * petitioner appeared before the Court without Counsel, and the Court then and there failed and neglected to advise petitioner of his right to be represented by Counsel, and that in the event he was financially unable to provide Counsel, the Court would appoint Counsel to represent him at State expense, if he desired to be so represented.
"That by reason of his youth, lack of experience and knowledge in legal proceedings, lack of education and the complicated nature of the *284 charge against him, the petitioner did not waive his right to be represented by Counsel, and that the failure and neglect on the part of the Court to advise the petitioner of his right to representation by Counsel in said legal proceedings was in violation of Minnesota Constitution, Article 1, Section 6, and statutes in this State * * * and was a denial of due process in violation of Article 1, Section 7 of the Constitution of Minnesota and the 14th Amendment to the Constitution of the United States. That by reason of said violation, the trial Court lost its jurisdiction in said matter and that the judgment of said Court herein is null and void."
1. The principal issue for determination here is whether the respondent was denied his constitutional right to counsel. To establish that there was an intelligent waiver of such right, it must appear that the accused had knowledge of the nature of the crime with which he is charged, the penalties involved in connection therewith, and his right to counsel to aid in his defense against the crime charged. If these requirements have been met, it cannot be said that the accused did not knowingly waive his constitutional rights.
2. In the present proceedings testimony was taken before a referee appointed by this court, and the trial here, of course, is de novo. State ex rel. Thomas v. Rigg, 255 Minn. 227, 96 N.W. (2d) 252. Respondent was questioned under oath with respect to his knowledge of the meaning of the indictment and the penalties involved. The following answers made by him we deem to be of significance in so far as they throw light upon what respondent understood and did not understand at the time of his plea of guilty:
"Q [Mr. Houston, counsel for appellant] Did you understand from the language used in the indictment where it said, `Frank McCool, alias Frank J. Curtis and John Doe ' The John Doe referring to you. ` whose true name is unknown, is accused by the Grand Jury of the County of Hennepin in the State of Minnesota by this indictment of the crime of murder in the first degree', did you understand that much of it?
"A Well, I understood that it was murder.
"Q And you understood it was murder in the first degree?
*285 "A Well, I had no knowledge of the distinctions at that time.
"Q You understood what the words meant, did you?
"A Well, I understood the words all right.
"Q And then it says after that, ` commited as follows:' And then it goes on to tell how the crime was committed, and this is the language, `That the said Frank McCool, alias Frank J. Curtis and John Doe, whose true name is unknown ' Referring to you. ` On the 24th day of April, a.d., 1917, at the City of Minneapolis in Hennepin County, Minnesota, then and there being ', now, you understand it so far, don't you?
"A Go ahead.
"Q ` being armed with dangerous and deadly weapons', you understand what that means?
"A That is true.
"Q `To wit: Pistols, commonly called revolvers, a more particular description of said weapons being to the Grand Jury unknown', you understand what that means?
"A Go ahead.
"Q Do you?
"A Yes. Well, that is all right.
"Q `Said revolvers being then and there loaded with gunpowder, and leaden bullets '. You understand what that means?
"A Go ahead.
"Q Do you?
"A OK.
"Q Do you understand it?
"A That is clear so far.
"Q ` and said revolvers being then and there held in the hands of them, the said Frank McCool, alias Frank J. Curtis, and John Doe ' Meaning you. ` whose true name is to the Grand Jury unknown, did then and there wilfully, unlawfully, wrongfully, knowingly, feloniously and intentionally, without excuse or justification, without authority of law and with a premeditated design to effect the death of a human being, to wit: One George Connery ', you understand what that means?
"A Well, I did not understand it in that sense at the time. I listened to it.
"Q In what sense?
*286 * * * * *
"Q When you said that you wilfully did it, do you understand what that means?
"A Yes, that is true. I understand what wilfully means.
"Q When it says you unlawfully did these things, do you understand what that means?
"A Yes, I understand that.
"Q When you said you wrongfully did it, do you understand what that means?
"A I understand that.
"Q When it says you knowingly did it, do you understand what that means?
"A I understand it all right, but it did not happen to be the things
"Q When it says you feloniously did it, do you understand what that means?
"A Yes.
"Q Intentionally, do you understand what that means?
"A I did. The point I was trying to make was
* * * * *
"Q * * * When it says that you did this act without excuse or justification, do you know what that means?
"A I do.
"Q And when it says that you did it without authority of the law, do you know what that means?
"A I do.
"Q And when it says that you did it with a premeditated design to effect the death of a human being, do you know what that means?
"A I do now.
"Q And you did not then?
"A I did not realize what that was at that time.
"Q Do you know what premeditated means?
"A I doubt that I even knew the meaning of the word premeditated at the time.
"Q Do you know what design means?
"A I do.
"Q You knew then?
*287 "A Yes, I think I knew what design meant at the time.
"Q To effect the death of a human being, do you know what that means?
"A I do.
"Q And you knew then?
"A Yes, I knew that.
"Q And you knew what they meant when they said, `George Connery'?
"A Yes.
"Q And you knew what it meant when it said that you did kill and murder the said George Connery?
"A I wonder whether I did or not.
"Q Did you have any doubt what ` kill George Connery', meant?
* * * * *
"* * * No, not kill George Connery, I had no doubts about it.
"Q * * * You did not have any doubt about what the ` kill and murder George Connery ' meant, did you?
"A Well, in view of the fact that it was an accident, I suppose I would have had considerable doubts.
"Q I am talking about what the indictment meant.
"A OK.
"Q You knew that the indictment accused you of wilfully killing George Connery with intent to kill him, you understood that, didn't you?
"A I think I pleaded guilty to that all right, yes.
"Q You knew what you were pleading guilty to?
"A I doubt it.
* * * * *
"Q * * * You understand what the indictment meant when it said that you, ` killed George Connery by then and there discharging said revolvers at, against, upon and into the body and person of him, the said George Connery', didn't you know what the language meant?
"A Yes, I knew what that meant.
"Q You knew it was true, didn't you?
"A I never denied it.
* * * * *
"Q * * * And you knew that it was true that you had effected the *288 death of George Connery by discharging a loaded firearm into his body?
"A Yes.
* * * * *
"Q And when you entered your plea of guilty, you knew that that carried with it consequences by way of imprisonment, did you not?
"A I did.
* * * * *
"Q You came up here to effect the death of Alice Dunn, didn't you?
"A I did not.
"Q How long after Connery was killed, was Alice Dunn killed?
"MR. WEISMAN: If the Court please, that is objected to as absolutely irrelevant, incompetent and immaterial. The Dunn matter has nothing to do with this whatsoever. That is another separate matter, it is not being tested here on this writ.
"THE COURT: Oh, I do not think there is any necessity to prove that this man did not know the meaning of the word `murder', he admits that, I think. Is that what the proof is going to?
"MR. HOUSTON: Well, I think that is perhaps true."
3. Other evidence before this court relates to the testimony of respondent in State v. Dunn, 140 Minn. 308, 168 N.W. 2. In that proceeding, the record there indicates respondent admitted that on April 26, 1917, two days after he had murdered George Connery, he had murdered Mrs. Alice Dunn in St. Paul for a price of $3,000. His testimony there, given on June 21, 1917, in several instances outlined his actions in causing the death of George Connery on April 24, 1917, as follows:
"Q. And what happened, if anything, on your way to Minneapolis?
"A. I was arrested again for speeding.
* * * * *
"Q. And when you were arrested at that time what occurred?
"A. Policeman Connery got in the car to take us to the station.
* * * * *
"Q. You murdered Connery by breaking his head in with your pistol, did you not?
* * * * *
*289 "A. I did not. I murdered him by shooting him.
"Q. Where?
"A. In the leg and the bullet later went up through his body, came out in his back some place.
"Q. How long did he live after you shot him?
"A. I don't know.
"Q. How long was he in your company after you shot him before you left him when you finally left him?
"A. Perhaps three-quarters of an hour or an hour or such a matter.
* * * * *
"Q. Had he received any other injuries at that time?
"A. He had, yes.
"Q. Where?
"A. He had been hit over the head.
"Q. By whom?
"A. By me.
"Q. With what?
"A. My pistol.
"Q. This pistol?
"A. This pistol right there.
"Q. Where were you when you hit him over the head?
"A. About 8 or 10 miles out of Minneapolis.
"Q. Where was it you left Connery finally?
"A. Same place.
* * * * *
"Q. At the place where his body was found?
"A. It was.
"Q. Was that where you hit him?
"A. That is where I hit him.
"Q. How many times did you hit him?
"A. Two or three times, I disremember which.
"Q. Did you fracture his skull?
"A. I don't know whether I did or not.
"Q. Did you knock his brains out with your pistol?
"A. I didn't see any.
* * * * *
*290 "Q. Did you strike Connery with the butt end, or the barrel of this? (Referring to the revolver in evidence.)
"A. The butt end.
"Q. Show how you did it.
"A. I was holding the pistol like that (witness illustrates by grasping the barrel of the revolver).
* * * * *
"Q. How many times did you strike him?
"A. I hit him two or three times."
With reference to the murder of Mrs. Dunn, to which this court refers for the purpose of establishing respondent's knowledge of the nature of his crimes and of the penalties therefor, respondent testified:
"Q. What was the original price that you were to be paid for murdering Mrs. Dunn?
"A. The original price that was to be paid was $3,000."
He also testified as follows:
"Q. Now, what was the purpose and why did you go to the McQuillan house, 793 Selby Ave. on the morning of the 26th of April, 1917?
"A. To kill Mrs. Dunn.
* * * * *
"Q. Did you go there for any other purpose?
"A. Yes, I had intended taking her diamonds or any jewelry that was in the house.
"Q. And why?
"A. To cause it to have the appearance of robbery burglary.
"Q. To have what?
"A. To cause the killing of Mrs. Dunn to have the appearance of a burglary.
"Q. To have the appearance of a burglary?
"A. And being done while the home was being robbed."
And further as follows:
"Q. You shot Mrs. Dunn three times, did you?
"A. I did.
*291 "Q. Did you strike her?
"A. I did not.
"Q. Did you inflict any injury upon Mrs. Dunn except shooting her three times?
"A. I did not."
At the same trial Katherine Irene McQuillan, who was an eyewitness to the murder of her sister, Mrs. Alice Dunn, and who was in bed with the latter at the time she was murdered by respondent, testified as follows:
"* * * I sat up in bed and I called, and I said, `Who is it,' and I didn't get any answer again, and Alice woke up and she said, `Kathy dear, you are dreaming again; lie down,' * * * and the next thing I saw was a man going into her old bedroom.
* * * * *
"* * * I said, `Alice, Alice, there is somebody in this house,' and as soon as I said Alice this man jumped right in our room, and I wanted to know who he was and what his business was, and he said, none of my business, `To be calm, be calm; he was only going to do a little shooting.' And I had Alice in my arms tight, and he came over to the bed and he hit Alice. First he shot the light in our face, a flashlight, and I had Alice tight, and when he was coming in the room I took her diamonds off because I thought he was after her diamonds, and I had them on this hand. (Right.)
* * * * *
"* * * And then he flashed the light, and as he did he hit Alice on this side of the head, and I was so tight that it hit me on this side, our two heads bumped.
"Q. You mean the hit that struck her bumped her head against yours?
"A. It bumped my head too.
"Q. Her head bumping yours?
"A. Yes, sir, and then he fired three shots one right after another, just as quick as a flash.
* * * * *
"Q. And was your sister in your arms at that time?
*292 "A. She was; I still had hold of her. He pushed me aside before he did any shooting.
* * * * *
"A. He did, but I still clung on to her, I had her by my hand.
"Q. Do you know where she was shot?
"A. She was shot in the head, and she was shot down here somewhere (indicating breast) there was a big hole; the whole side of her head was gone.
"Q. After he did this shooting what became of him?
"A. He went out."
The deputy coroner of Ramsey County testified with reference to a post mortem examination he had made of Mrs. Dunn. His testimony was to the effect that in addition to the three bullet holes he had found in her head:
"* * * The bones of the head and side and top of the head were crushed in, practically all the bones of the top of the head, the two parietal bones, the side, the frontal bone, the temperal bone and the upper part of the occipital bone were crushed in, and the brains crushed and lacerated and the bones comminuted, that is, in small pieces. * * *
"Q. Can you from your examination and your post-mortem examination, doctor, state in your opinion the cause of death?
"A. The cause of death was the laceration and hemorrhage of the brain and fractured skull and laceration of the lungs with the attendant hemorrhage.
* * * * *
"Q. Was there evidence of more than one blow being struck?
"A. No, sir.
"Q. On that wound?
"A. No, sir. That is, I couldn't say. It was just simply a crushing wound. In my opinion, it was one blow.
"Q. One blow?
"A. One heavy blow. I couldn't say positively whether there was one or two, but it was thoroughly crushed.
"Q. From what kind of an instrument?
"A. From some blunt, heavy instrument. I couldn't say."
*293 4. From the foregoing facts we cannot escape the conclusion that respondent, who at the time of trial on May 25, 1917, was guilty of two brutal murders committed within a space of two days, was quite aware of the nature of the charge against him murder in the first degree and the penalty therefor. Although his formal education was limited, it fairly appears that he was a man of intelligence, perhaps above the average, who had deliberately set out on a criminal career and who did not hesitate to hire out for murder. His statement that he did not desire any counsel, when viewed in the light of the facts outlined, in our opinion clearly compels the conclusion that respondent intelligently waived his constitutional right to counsel with full knowledge of the consequences of his actions. It would follow that the court was not divested of jurisdiction to receive his plea of guilty and to sentence him to life imprisonment for the crime of murder in the first degree.
The rules applicable in the situation presented here have been repeatedly set forth by this court. Their most recent pronouncement is in State ex rel. Thomas v. Rigg, 255 Minn. 227, 96 N.W. (2d) 252, to which reference is made in support of our conclusions here.
The order appealed from is reversed, the writ vacated, and respondent remanded to the custody of appellant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613058/ | 11 So. 3d 205 (2006)
Cleveland HOLMES
v.
MACON COUNTY BOARD OF EDUCATION and Willie C. Thomas, in his official capacity as superintendent of education of the Macon County School District.
2050967.
Court of Civil Appeals of Alabama.
December 29, 2006.
Rehearing Denied February 16, 2007.
William F. Patty of Beers, Anderson, Jackson, Patty & Van Heest, P.C., Montgomery; J. Cecil Gardner of Gardner, Middlebrooks, Gibbons, Olsen & Walker, P.C., Mobile; and Sam Heldman of Gardner, Middlebrooks, Gibbons, Olsen & Walker, Washington D.C., for appellant.
Deborah Hill Biggers, Tuskegee Institute, for appellees.
THOMPSON, Judge.
Cleveland Holmes appeals from a summary judgment entered in favor of the Macon County Board of Education and Willie C. Thomas, in his official capacity as superintendent of education of the Macon County School District (hereinafter collectively referred to as "the defendants") following the termination of his employment as a probationary principal during the 2004-2005 school year. We affirm.
On July 1, 2004, Holmes and the Macon County Board of Education entered into a "Principal Employment Contract" wherein Holmes was hired as the principal of the Tuskegee Institute Middle School. The contract provided, in pertinent part, as follows:
"The Contract Principal shall be employed as a probationary principal for a period of twelve months beginning on the 2nd day of August, 2004 and expiring on the 30th day of June 2005.... After completion of the probationary period, the board may terminate the Contract Principal for any reason or without a stated reason. The Contract Principal is not entitled to a hearing if the Contract *206 Principal is terminated at the end of the probationary period. If the Contract Principal is not terminated at the end of the probationary period, the Contract Principal shall be employed for a period of 3 years beginning the day after completion of the probationary period."
Willie C. Thomas, the superintendent, notified Holmes in a letter dated March 2, 2005, that Holmes's employment contract would not be renewed following the expiration of Holmes's probationary period on June 30, 2005. During an April 21, 2005, meeting of the Board, the Board voted unanimously not to extend Holmes's employment contract beyond the completion of the probationary period. On May 9, 2005, Thomas notified Holmes, in compliance with § 16-24B-3, Ala.Code 1975, that the Board had voted not to extend Holmes's employment contract.
On May 24, 2005, Holmes filed an action requesting injunctive relief and an expedited evidentiary hearing pursuant to § 16-24B-3(e)(2), Ala.Code 1975, for the purpose of presenting evidence in support of his allegation that his employment contract was not renewed for political and personal reasons.[1] On June 23, 2005, the defendants moved to dismiss the cause of action pursuant to Rule 12(b)(6), Ala. R. Civ. P., arguing that, given his status as a probationary principal, Holmes had failed to state a claim upon which relief could be granted.
On July 1, 2005, Holmes filed a motion for a summary judgment and a response to the defendants' motion to dismiss. In support of his summary-judgment motion, Holmes attached his own affidavit, a copy of the manual for the Professional Education Personnel Evaluation System of Alabama ("PEPE"), a copy of Holmes's May 26, 2005, PEPE evaluation, and a copy of a June 8, 2005, letter written by Holmes to Thomas objecting to the evaluation results. On August 1, 2005, the defendants filed an opposition to Holmes's summary-judgment motion and filed documents in support of their motion to dismiss, seeking to convert their motion to dismiss to a motion for a summary judgment on Holmes's claims. See American Trust Corp. v. Champion, 793 So. 2d 811, 813 (Ala.Civ.App.2001) ("When a trial court considers matters outside the pleadings in ruling on a defendant's motion to dismiss filed pursuant to Rule 12(b)(6), Ala. R. Civ. P., the motion is converted into a motion for a summary judgment.").
In support of their summary-judgment motion, the defendants attached exhibits, including the affidavit of Thomas; Holmes's probationary-employment contract for the 2004-2005 academic year; PEPE evaluation documents regarding Holmes; and copies of two grievances made in February 2005 and filed with the Alabama Education Association regarding Holmes's performance as a principal. The defendants later supplemented their response and motion for a summary judgment with a second affidavit of Thomas; additional PEPE evaluation documents regarding Holmes; and a copy of this court's decision in Gartman v. Limestone County Board of Education, 939 So. 2d 926 (Ala. Civ.App.2006).
Following a hearing, the trial court entered a detailed judgment on June 20, *207 2006, granting the defendants' motion for a summary judgment and denying Holmes's motion for a summary judgment. Holmes appealed to our supreme court, which transferred the case to this court, pursuant to § 12-2-7(6), Ala.Code 1975.
Holmes contends on appeal that the trial court erred in entering a summary judgment in favor of the defendants. He argues that he presented evidence creating a genuine issue of material fact as to whether the Board completed a mandatory evaluation of him 90 days before the end of his probationary period; he contends that such an evaluation was required before his employment could be terminated.
In granting the defendants' summary-judgment motion, the trial court found that this court's decision in Gartman v. Limestone County Board of Education, supra, holding that a probationary principal is not entitled to 90 days' notice of termination, was controlling. The trial court determined that Holmes was a probationary principal and, as such, was not entitled to 90 days' notice prior to termination of his employment. Regarding Holmes's evaluation, the trial court concluded that any delay in Holmes's evaluation was proximately caused by Holmes.
A motion for a summary judgment is properly granted where no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So. 2d 860 (Ala.1988). "When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present `substantial evidence' creating a genuine issue of material fact." Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala.1999) (quoting Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989)). "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). In reviewing a summary judgment, this court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts concerning the existence of a genuine issue of material fact against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990).
Holmes contends that § 16-24B-3(i)(1), a part of the "Teacher Accountability Act," § 16-24B-1 et seq., Ala.Code 1975 ("the Act"), requires that he be evaluated annually "in a manner prescribed by the State Board of Education." Section 16-24B-3(i)(1), Ala.Code 1975, states in its entirety that "[t]he chief executive officer, or his or her designee, shall at least annually evaluate the performance of each contract principal. The evaluation shall be performed in a manner prescribed by the State Board of Education." Pursuant to the PEPE manual published by the Alabama Department of Education, "[t]he evaluation for contract principals must be completed at least 90 days prior to the termination of the contract period."
Section 16-24B-2, Ala.Code 1975, a part of the Act, defines both contract principals and probationary principals. Section 16-24B-2(2), Ala.Code 1975, defines a "contract principal" as "only those persons hired on or after July 1, 2000, and certified for the position of principal as prescribed by the State Board of Education and who are employed by an employing board as the chief administrator of a school, including a vocational center." A "probationary principal" is defined as "[a]ny principal hired for the first time in any local school system as a principal on or after July 1, 2000." § 16-24B-2(8), Ala.Code 1975.
*208 In Gartman v. Limestone County Board of Education, supra, this court discussed the difference between a contract principal and a probationary principal while considering whether Gartman, a probationary principal, was entitled to a 90-day notice of her termination before the end of the school year pursuant to § 16-24B-3(c), Ala.Code 1975. Relying on principles of statutory construction, this court held that the Act distinguished contract principals from probationary principals and, when read as a whole, precluded the application of the 90-day notice requirement of § 16-24B-3(c) to probationary principals. In support of our holding in Gartman, we explained as follows:
"`It is a well-settled rule of statutory construction that courts ascertain the Legislature's intent in enacting a statute from the language used in the statute itself, as well as from the reason for the statute and the goals the Legislature seeks to accomplish through the statute.' Alabama Bd. of Pardons & Paroles v. Brooks, 802 So. 2d 242, 247 (Ala.Civ.App. 2001) (citing McGuire Oil Co. v. Mapco, Inc., 612 So. 2d 417 (Ala.1992)). Words used in a statute are to be given their natural, plain, ordinary, and commonly understood meaning. IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala.1992). `Further, it is well established that "`[s]ections of the Code dealing with the same subject matter are in pari materia. As a general rule, such statutes should be construed together to ascertain the meaning and intent of each.'"' State v. Amerada Hess Corp., 788 So. 2d 179, 183 (Ala.Civ.App. 2000) (quoting New Joy Young Rest., Inc. v. State Dep't of Revenue, 667 So. 2d 1384, 1387 (Ala.Civ.App.1995) (quoting in turn Locke v. Wheat, 350 So. 2d 451, 453 (Ala.1977))). 'In construing a statute, the court must consider the entire statute and not an isolated part, giving to every clause effect in light of the subject matter and purpose of the enactment.' Standard Oil Co. v. State, 55 Ala.App. 103, 111, 313 So. 2d 532, 539 (Civ.1975). `Statutory construction dictates that in construing a statute, a court must, if possible, avoid a construction that would place statutes in conflict with other statutes, and statutes should be resolved in favor of each other, when possible, so as to form one harmonious plan.' Bryce Hosp. Credit Union, Inc. v. Warrior Dodge, Inc., 50 Ala.App. 15, 21, 276 So. 2d 602, 607 (Civ.1973)."
Gartman, 939 So.2d at 929. The same principles of statutory construction relied on by this court in Gartman apply in this case.
According to Holmes, the defendants did not complete an evaluation of him as mandated in § 16-24B-3(i)(1), and, thus, he asserts, pursuant to § 16-24B-2(m), Ala. Code 1975, his employment should have been extended by at least one year.[2] However, both § 16-24B-3(i)(1) and the PEPE manual provide only for the evaluation of contract principals and not for the evaluation of probationary principals. The Act distinguishes between contract principals and probationary principals. By making this distinction, we must assume that the legislature intended to limit the application of § 16-24B-3(i)(1) to contract principals.
It is undisputed that Holmes entered into an employment contract with the Board wherein he was hired as a probationary principal for a period of one year. Because Holmes was a probationary principal, *209 he was not entitled, pursuant to § 16-24B-3(i)(1), to an evaluation 90 days prior to the termination of his contract. Accordingly, the trial court's summary judgment in favor of the defendants is due to be affirmed.
AFFIRMED.
CRAWLEY, P.J., and PITTMAN and BRYAN, JJ., concur.
MURDOCK, J., concurs in the result, without writing.
NOTES
[1] Section 16-24B-3(e)(2)a., Ala.Code 1975, provides, in pertinent part, that, when the employing board decides not to renew the principal's contract at the end of its current term, "the contract principal, by filing written notice with the chief executive officer, may request a nonjury, expedited evidentiary hearing to demonstrate that the chief executive officer's or supervisor's recommendation to nonrenew the contract was impermissibly based upon a personal or political reason...."
[2] Section 16-24B-3(m), Ala.Code 1975, states that "[i]f a contract principal is not evaluated as required by this section, his or her contract shall be extended one additional contract year for each contract year not evaluated up to three years." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1682512/ | 966 So. 2d 390 (2007)
MUSE
v.
STATE.
No. 1D06-4989.
District Court of Appeal of Florida, First District.
October 5, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610414/ | 39 So. 3d 1264 (2010)
FELDKAMP
v.
STATE.
No. SC10-1194.
Supreme Court of Florida.
June 23, 2010.
Decision Without Published Opinion Review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610841/ | 96 N.W.2d 897 (1959)
LIBERTY NATIONAL BANK OF DICKINSON, Dickinson, North Dakota, a corporation, Plaintiff and Respondent,
v.
Stasia DALY, E. F. Daly, also known as Ed. F. Daly, Chris Grenz, Rose Grenz, Emma McKeever, Leo McKeever and Elsie McKeever, Defendants,
Stasia Daly and E. F. Daly, also known as Ed. F. Daly, Defendants and Appellants.
No. 7815.
Supreme Court of North Dakota.
June 4, 1959.
*898 Murtha & Murtha, Dickinson, for plaintiff and respondent.
William E. Heller, Bismarck, for defendants and appellants.
MORRIS, Judge.
On February 18, 1952 Stasia Daly was the owner of a one-fourth interest in two lots in the city of Dickinson, Stark County, North Dakota. On that date she and her husband Ed. F. Daly executed and delivered a mortgage to The Liberty National Bank of Dickinson on all of her interest in these lots to secure a joint and several note dated February 18, 1952, due August 18, 1952, in the sum of $5,000. This note was signed by the mortgagors and also by Chris Grenz and Rose Grenz.
This action was commenced on January 17, 1958 to foreclose the mortgage. The Dalys and the Grenzes were named as defendants. The only parties served with process were Stasia Daly and her husband. Chris Grenz and Rose Grenz were residents of the state of Montana and not having been served in the state of North Dakota the action proceeded to trial without them. The answer of the Dalys sets up a general denial and a nebulous counterclaim against the plaintiff alleging an agreement on the part of the plaintiff to furnish a substantial amount of abstract business and credit to the defendants and that by reason of the failure of the plaintiff to carry out its agreement the defendants have suffered embarrassment, shame, damage to credit standing and substantial loss of wages and profits.
The answering defendants made a motion for a summary judgment of dismissal on these grounds: (1) because jurisdiction was not obtained of Chris Grenz and Rose Grenz who were indispensable parties and (2) because the action was improperly and improvidently brought and was properly justiciable in the district court of the United States. The trial court denied the motion for summary judgment. The case was then tried to the court without a jury. Pursuant to findings of fact and conclusions of law made by the court judgment was entered decreeing foreclosure of the mortgage and sale of the property described therein to pay the mortgage debt. The court also found that the defendants Stasia Daly and Ed. F. Daly had failed to prove the allegations of their answer and counterclaim or damages as claimed therein.
After the parties had rested and the trial court had announced his decision from the bench, defendants' counsel stated that he would like to reopen the case. Plaintiff's counsel objected. The court announced that the case was closed and directed the plaintiff to prepare findings of fact, conclusions of law and order for judgment. The defendants moved for a new trial on the ground that the court abused his discretion in not permitting the defendants to reopen. The court entered an order denying the motion for new trial. The defendants Stasia Daly and Ed. F. Daly have appealed from the judgment and from the order denying a new trial.
We first direct our attention to the defendants' motion for summary judgment and the two grounds upon which it was based. It is argued that Chris Grenz and Rose Grenz are indispensable parties defendant and therefore the appellants were entitled to have the action dismissed. This is an action to foreclose a mortgage which neither Chris Grenz nor Rose Grenz signed upon property in which they had no interest. The fact that they signed the joint and several note which was secured by the mortgage does not make them indispensable or necessary parties to the foreclosure. 37 *899 Am.Jur., Mortgages, Sec. 548; 59 C.J.S. Mortgages § 627i; Jones on Mortgages, Eighth Edition, Sec. 1780; Wiltsie on Mortgage Foreclosure, Sec. 414. Our conclusion in this respect is strengthened by the fact that in Section 32-1907 1957 Supplement to NDRC 1943 it is provided:
"It is the intent of this section that no deficiency judgment shall be rendered upon any note, mortgage, or contract given after July 1, 1951, to secure the payment of money loaned upon real estate or to secure the purchase price of real estate, and in case of default the holder of a real estate mortgage or land contract shall be entitled only to a foreclosure of the mortgage or the cancellation or foreclosure of the contract except as provided by sections 32-1904 and 32-1906."
Sections 32-1904 and 32-1906 permit separate actions for the recovery of deficiencies. The judgment herein rendered does not purport to bind the Grenzes. They were not indispensable parties to the rendition of the judgment against the mortgagors and the court did not err in denying the motion to dismiss the action on the ground that jurisdiction of indispensable parties had not been acquired.
In a proper case diversity of citizenship is a ground for removal of a civil action from state to federal jurisdiction. It is initiated by the filing of a petition and bond in the district court of the United States for the district and division within which the action is pending as prescribed by U.S.C.A. Title 28, Sec. 1446. No such petition and bond were filed. When the correct procedure is followed, if removal is warranted, it results not in a dismissal of the action but in its transfer from state to federal court. A motion for a summary judgment of dismissal in the state court is not a proper method of raising and presenting the question of available federal jurisdiction. The trial court did not err in denying the motion for summary judgment.
The only ground upon which the appellants seek a new trial is that the court abused its discretion in not permitting them to reopen the case. The trial court in announcing his decision from the bench after the parties had rested stated that the counterclaim involved a promise to turn over certain abstract business and that no evidence had been submitted on the issue presented by the counterclaim. Appellants' counsel stated that he would like to reopen the case, to which the plaintiff objected. The court advised him that the case was closed. Appellants' counsel made no offer of proof nor did he insert in the record any statement of what evidence he had or what he expected to prove if the case was reopened. He gave no reason or excuse for not submitting evidence on the counterclaim before he rested. In paragraph 4 of the Syllabus by the Court in Fried v. Olsen, 22 N.D. 381, 133 N.W. 1041, 1042, we said:
"Trial courts are vested with a broad discretion in permitting or refusing to permit parties to reopen their case for the purpose of introducing further proof, and their rulings on such motions will not be disturbed, where there is not a clear abuse in the exercise of such discretion."
That case has been cited in support of this point in Minneapolis Threshing Machine Company v. Huncovsky, 52 N.D. 112, 202 N.W. 280 and Charon v. Windingland, 72 N.D. 70, 4 N.W.2d 645. See also Torkelson v. Byrne, 68 N.D. 13, 276 N.W. 134, 113 A.L.R. 1213; 88 C.J.S. Trial § 105; Bancroft's Code Practice and Remedies, Sec. 1235. The burden is on the appellants to show an abuse of discretion. They have utterly failed to sustain that burden. The trial court did not err in denying the appellants' motion to reopen the case. The judgment and order appealed from are affirmed.
SATHRE, C. J., and BURKE and TEIGEN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610846/ | 166 N.W.2d 860 (1969)
Sadie A. LEMKE, Administratrix of the Estate of Otto B. Lemke, Deceased, Appellant,
v.
David MUELLER and Leslie Pechumer, Appellees.
No. 53172.
Supreme Court of Iowa.
April 8, 1969.
*861 G. W. Templeton, Garner, William Pappas, Mason City, for appellant.
Erwin L. Buck, Britt, for appellees.
MASON, Justice.
This law action for damages was brought by plaintiff Sadie A. Lemke, as administratrix of the estate of her husband, Otto B. Lemke, against defendants, David Mueller and Leslie Pechumer, as the result of a rural intersection collision between the Lemke automobile, driven by Merle Brown, and a gravel truck owned by Pechumer, driven by Mueller. Injuries sustained in this accident caused Otto Lemke's death. Pursuant to trial a jury verdict for defendants was returned and plaintiff appeals from judgment thereon.
Plaintiff assigns four errors upon which she relies for reversal. The court erred in (1) sustaining defendants' motion to suppress evidence that the highway upon which the Lemke car was traveling at the time of the collision was by custom and usage established as a through highway; (2) suppressing evidence to show the acts of the Hancock County Board of Supervisors, the county engineer and road maintenance department in maintaining the highway as a through highway, and in holding the only manner such a road can become a through highway is by formal resolution of the board and maintenance of the proper signs thereon; (3) striking the testimony of Brown as to his state of mind as he approached the intersection where the collision occurred; and (4) giving instruction 7 telling the jury this highway, known and referred to as "Old Highway 18", is not a "through" or "stop" highway.
*862 July 24, 1965, Otto Lemke and Merle Brown were on a business trip traveling west from Britt on Old Highway 18. Lemke was riding as a passenger in the front seat of his automobile. At an intersection with a gravel secondary road about two miles west of Britt the automobile collided with Pechumer's gravel truck coming from the north. "Old Highway 18", formerly U. S. Highway 18, between Britt and Wesley was a hard-surfaced road. On April 11, 1962, it was removed from the state primary road system and returned to the Hancock County secondary road system. The Hancock Board of Supervisors did not adopt a resolution or take any formal action to designate this road as a through highway, but apparently did nothing to apprise the public of the change. Plaintiff attempted to show by offer of proof that this highway was maintained as a through highway by the board, the engineer, and the road maintenance men, that the public considered it a stop or protected highway, and that officials and residents of the area, including the driver of plaintiff's vehicle, Brown, believed it to be a through highway on the date of this accident.
At that time there was no stop sign at the entrance of the gravel road from the north. Mueller, a newcomer in the vicinity, testified he had never seen a stop sign at that point, did not know Old Highway 18 was considered a through highway and had only crossed it a few times prior to the accident.
Brown testified he was going between 40 and 45 miles per hour as he approached this intersection and did not reduce his speed, he looked to the right and left but did not see defendants' truck until immediately before the impact. There was testimony a truck the size of Pechumer's approaching from the north on the gravel road could be seen for 1000 feet by a driver of an automobile coming from the east on Old Highway 18.
Mueller testified he was proceeding south at a slow speed as he came to this intersection and did not see the Lemke car until the moment they collided at or near the center of the intersection. His truck struck the Lemke car just in front of the right front door and overturned on the south side of the intersection. The Lemke car landed in the cornfield at the southwest corner of the intersection. Lemke was thrown from the automobile and incurred fatal injuries.
In her petition plaintiff charged Mueller with proximate negligence in failing to (a) keep a proper lookout, (b) have his truck under proper control, (c) yield the right-of-way and (d) stop or yield the right-of-way at the entrance to a through highway, contrary to section 321.321, Codes, 1962, 1966.
In answer to plaintiff's petition and as a complete defense defendants alleged plaintiff's decedent and Brown were negligent in failing to (1) keep a proper lookout, (2) reduce their vehicle's speed to a reasonable and proper rate when approaching an intersection of two highways, (3) yield the directional right-of-way to defendants' vehicle and (4) have their vehicle under control. Defendants also alleged the negligence of Lemke and his driver Brown was a proximate cause of the accident and plaintiff's damages.
The court submitted to the jury plaintiff's first two specifications of negligence, i. e., failure of proper lookout and control, and all defendants' specifications. No objections to the instructions, except instructions 7 and 14, appear and only the objections to No. 7 are argued here.
Prior to trial defendants moved to suppress evidence that Old Highway 18 at the time and place of this accident was by custom, usage, or informal action of the county board of supervisors a through highway because the same would be wholly incompetent, irrelevant and immaterial. They also alleged that even interrogation as to these matters would prejudice defendants, regardless of the rulings and admonition by the court and asked "the court to exercise its inherent power and discretion for the *863 orderly, fair, just conduct of the trial and to direct plaintiff's counsel not to question any witness before the jury with reference to the custom and usage with respect to the road upon which plaintiff's decedent was traveling being a through highway, nor to attempt to establish by testimony of members of the board of supervisors, county engineer, or highway patrolman with reference to any informal action or agreement by said board with respect to the stop signs remaining in place after said road was removed from the primary system, or directions to the county engineer or maintenance men with respect to the replacement of said signs, as might be necessary thereafter." Defendants further moved "to suppress any evidence * * * of custom, usage or intention to use said road as a through highway for any purposes or by any means whatsoever. That under Iowa law determination of the status of a highway, and particularly a through highway, is a matter of law and not a matter of fact to be determined by a jury."
In ruling upon the motion and plaintiff's resistance thereto the court said:
"In attempting to submit to a jury the issue of a highway and its character as a through highway an impossible and insoluable situation is created. That plaintiff here, traveling on the favored road so established by custom and usage, would be entitled to the benefit of the rules of the road pertaining to such favored highways, and specifically in this case an instruction under Code section 321.321. With respect to defendant, on the other hand, a jury question would exist as to his knowledge of the custom."
The court then reasoned:
"As [indicated] the [stop] sign had not been in place for at least a month, and, * * * perhaps five months. Consequently, the jury would have to make a finding as to whether defendant had knowledge so as to be required to yield under section 321.321 or, if the jury found he had no knowledge of such custom, then he would be entitled to the right-of-way under the general direction statute applying to the intersection of non-favored roads. The jury, therefore, could find itself in the position of having both a plaintiff and a defendant having the right-of-way under different statutes."
In resistance to defendants' motion to suppress, plaintiff's counsel stated: "I do want to apprise the Court, as far as plaintiff is concerned, while we think custom and usage is important, we think the real issue here is what the board of supervisors and the county engineer actually did in connection with this road. The fact that stop signs were constantly in place and the road was considered by them as a through highway and was held out to the public generally as a through highway, is the nub of our contention here. So while I do feel custom and usage have something to do with it, I don't want the Court to think that is the most important thing we are going on, we feel the other is stronger."
We are satisfied the court did not err in sustaining defendants' motion to suppress evidence of custom and usage for the purpose of establishing the status or character of the highway on the date of this accident.
I. A "through" highway in this jurisdiction cannot be established by usage or custom, but only by formal action of legislatively designated authorities in the manner prescribed.
The Fifty-seventh General Assembly in 1957 enacted what is now section 313.2 of the Code, which provides in part:
"Any portion of said primary road system eliminated by reconstruction or relocation shall revert to and become part of the local secondary road system, * * *."
Section 306.2(5) provides: "The term * * * `local secondary road system' shall include all those secondary roads which are not now, or may not hereafter be, included in the farm-to-market road system."
*864 Section 306.1 provides that the secondary road system shall be subdivided into farm-to-market roads and local secondary roads, and section 306.2(4) states farm-to-market roads shall include those main secondary roads which have been designated as farm-to-market roads as the law may provide. It does not appear that this road has been designated as a farm-to-market road.
A local secondary road may be established as a through highway under the provisions of section 321.236(6).
A "Through highway" means every highway or portion thereof at the entrances to which vehicular traffic from intersecting highways is required to stop before entering or crossing it and when stop signs are erected as provided in chapter 321 of the Code. Section 321.1(53).
Section 321.236 of the Code indicates how local authorities, including boards of supervisors, may designate or establish a "through" highway in their localities. It states:
"Local authorities shall have no power to enact, enforce, or maintain any ordinance, rule or regulation in any way in conflict with, contrary to or inconsistent with the provisions of this chapter, and no such ordinance, rule or regulation of said local authorities heretofore or hereafter enacted shall have any force or effect, however the provisions of this chapter shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power from: * * *
"6. Designating any highway as a through highway and requiring that all vehicles stop or yield the right-of-way before entering or crossing the same or designating any intersection as a stop intersection and requiring all vehicles to stop at one or more entrances to such intersections. * *"
Although not specifically directed, it appears such designation must be by ordinance or regulation duly adopted by local authorities. Section 321.237 provides:
"No ordinance or regulation enacted under subsections 4, 5, 6 or 8 of section 321.236 shall be effective until signs giving notice of such local traffic regulations are posted upon or at the entrances to the highway or part thereof affected * * *." (Emphasis supplied)
It is well settled that official action of local authorities, including boards of supervisors, must be in legal session and they may not act on such ordinances, resolutions, or regulations as individuals, but only as a body where records of the action may be duly preserved. Young v. County of Black Hawk, 66 Iowa 460, 464-465, 23 N.W. 923, 925; Modern Steel Structural Co. v. Van Buren Co., 126 Iowa 606, 617, 102 N.W. 536, 539; Gunn v. Mahaska County, 155 Iowa 527, 536, 136 N.W. 929, 932; Andrew v. Stuart Sav. Bank, 204 Iowa 570, 575, 215 N.W. 807, 808; Mulhall v. Pfannkuch, 206 Iowa 1139, 1143, 221 N.W. 833, 834; Beers v. Lasher, 209 Iowa 1158, 1163, 229 N.W. 821, 823, cited with approval in School District of Soldier Twp. Crawford County v. Moeller, 247 Iowa 239, 243, 73 N.W.2d 43, 45; Emmet County ex rel. Johnston v. Dally, 216 Iowa 166, 168-169, 248 N.W. 366, 367; Greusel v. O'Brien County, 223 Iowa 747, 750-751, 273 N.W. 853, 854-855; Coe v. Board of Sup'rs, 229 Iowa 798, 801, 295 N.W. 151, 153-154; and Morrow v. Harrison County, 245 Iowa 725, 739-740, 64 N.W.2d 52, 61.
Since there is nothing to show any formal steps have ever been taken by the board of supervisors to establish "Old Highway 18" as a through highway in Hancock County, we are satisfied it retained the unpreferred status of a local secondary road at the time of this accident.
In Greusel v. O'Brien County, supra, cited by defendants, plaintiff claimed an oral contract between himself and defendant county. The court stated there must be evidence showing authorization, approval or ratification of the contract by the board, while in session and acting as a board, before the county can be bound.
*865 In Young v. County of Black Hawk, supra, a verdict was directed against a physician who sought to recover from the county for certain medical services rendered on behalf of the township at the request of several members of the township board of health. The court held inter alia that a board must act as a unit and in the manner prescribed. The determination of the members individually is not the determination of the board.
In Modern Steel Structural Co. v. Van Buren Co., supra, 126 Iowa at 617, 102 N. W. at 539, the county claimed damages based on a contractor's breach of a bridge construction contract. The court stated the signing and delivery of the paper to the bridge company by two of the supervisors cannot be said to have been the act of the board. No action was ever approved by the board in session. "That the act of the individual members of a public body, even though concurred in by a majority of its members, is not official or binding upon the municipality which they represent, is too well settled for doubt or debate. (Citations)"
In Gunn v. Mahaska County, supra, plaintiff alleged an agreement with the board of supervisors to collect fines and costs due the county. This court affirmed dismissal of the petition. In doing so, it stated at page 536 of 155 Iowa, at p. 932 of 136 N.W.: "The acceptance of plaintiff's proposition was signed by the members of the board of supervisors individually, * * * [but] nothing relating thereto appears in the proceedings of the board, * * *. In these circumstances it was not to be inferred that the acceptance was by the members acting as a body in session as a board of supervisors rather than individually, * * *."
In the absence of any board resolution here David Mueller had the statutory right-of-way. Section 321.319 provides: "Where two vehicles are approaching on any public street or highway so that their paths will intersect and there is danger of collision, the vehicle approaching the other from the right shall have the right-of-way. The foregoing rule is modified at through highways and otherwise as hereinafter stated in this chapter."
Our statutes authorizing local authorities to designate "through" highways by ordinance or resolution recognize necessary certainty in determining which party has the protection of the right-of-way rule. The trial court was correct in apprehending the confusion which would result if a customary right-of-way could compete with a statutory one, especially if one of the parties were not aware of the custom, as appears to be true in the instant case.
Hoover v. Blackmore, Ohio Mun.Ct., 54 Ohio Law. Abs. 177, 87 N.E.2d 477, considers similar matter under statutes apparently identical to Iowa's. The issue there was whether the erection of a stop sign by the county engineer without adoption of an authorizing resolution by the county commissioners would deprive a driver who ran the stop sign, which had been knocked down out of sight, of the protection of the statute granting him the right-of-way. The court held that without a board resolution the stop sign did not change the right-of-way rule and the driver who failed to obey the stop sign still had the statutory right-of-way.
Mylnar v. Hall, 55 Wash.2d 739, 350 P.2d 440, involved an intersectional collision where a party urged that a road be classified as a de facto arterial (through) highway so as to avoid the rule requiring that he yield the right-of-way. The court rejected his contention that the road was a de facto arterial highway based on the fact stop signs had been erected at the intersection by the county commissioners but removed later, apparently by vandals. The court stated at page 442 of 350 P.2d: "Van Tassel road was not an `arterial highway' as that term is defined in RCW 46.04.030, since Pierce county had never passed a formal resolution designating it as such."
*866 It should be noted both the Ohio and Washington cases involved situations where the stop sign was invisible or had been removed. This was also the situation here. We need not pass on the relative duties of the parties where a stop sign is in fact present and visible but not authorized by formal action of the governing authorities. Cf. Hoover v. Blackmore, supra, 87 N.E.2d 477.
We conclude determination of the status or character of a local secondary road or highway is generally a question of law for the court, not one of fact for a jury, and evidence as to custom and usage on that issue here was irrelevant and incompetent.
II. Under his third assignment of error, striking Brown's testimony as to his state of mind as he approached the intersection where the collision occurred, plaintiff contends this evidence was admissible as bearing on whether Brown was using due care for his own safety. The court's refusal to permit the jury to consider evidence of custom and usage in recognizing Old Highway 18 as a through highway evidently gave rise to this assertion. It is conceded decedent and his driver, Brown, were engaged in a joint venture and Brown's negligence would be imputable to decedent.
Defendant alleged as the third specification of his affirmative defense decedent was negligent in failing to yield the directional right-of-way contrary to Code section 321.319 and this was a proximate cause of his fatal injuries. This was one of four specifications submitted to the jury.
We consider first plaintiff's contention as directed to this specification.
With the exception of violation of section 321.298 requiring vehicles meeting each other to give half the traveled way by turning to the right, which constitutes merely prima facie negligence, violation without legal excuse of other statutes regulating the law of the road is negligence per se or as a matter of law. Kisling v. Thierman, 214 Iowa 911, 915-916, 243 N.W. 552, 554; Florke v. Peterson, 245 Iowa 1031, 1034, 65 N.W.2d 372, 373; Cunningham v. Court, 248 Iowa 654, 664, 82 N.W.2d 292, 298; Kohler v. Sheffert, 250 Iowa 899, 905, 96 N.W.2d 911, 915; and Kroblin Refrig. X Press Inc. v. Ledvina, 256 Iowa 229, 234, 127 N.W.2d 133, 136.
"* * * [W]here it becomes material to show the mental operation of a person `or to ascertain the reasons or influences which have induced certain action or conduct on his part, such person may testify directly thereto even though such testimony may partake in some degree of the nature of a conclusion.' [Citing authorities]" Colburn v. Krabill, 232 Iowa 290, 292, 3 N.W.2d 154, 155. See also Halligan v. Lone Tree Fmrs. Exch., 230 Iowa 1277, 1286, 300 N.W. 551, 556; Williams v. Stroh Plumbing & Electric, Inc., 250 Iowa 599, 603, 94 N.W.2d 750, 754, 82 A.L.R. 2d 465; In re Estate of Allen, 251 Iowa 177, 180, 100 N.W.2d 10, 11; Brown v. Guiter, 256 Iowa 671, 677, 128 N.W.2d 896, 900; In re Estate of Malli, Iowa, 149 N.W.2d 155, 159; 1 Conrad, Modern Trial Evidence, section 145; 2 Wigmore, Evidence, Third Ed., section 581; and 31A C.J.S. Evidence § 178.
The same thought is expressed in 1 Jones on Evidence, Fifth Ed., section 200:
"It is the general rule, applicable in civil and criminal cases alike, and sustained by the great weight of authority, that whenever the motive, intention or belief of a person is in issue, the direct testimony of such person whether he is a party to the suit or not, is relevant to the issue of such motive, intent or belief, notwithstanding that his interest may tend to diminish the credit to be accorded to his testimony."
These principles assume, of course, that intent is material to be investigated.
"It remains to be noted that this sort of testimony, or any other whatever, to the fact of a person's intent or motive, is of course receivable only on the assumption *867 that the intent or motive is a fact permissible to be proved under the substantive law involved in the case. This assumption conditions the admissibility of all evidence * * * and of this sort in particular. Hence, if for any reason of substantive law the person's intent or motive is not provable at all, it is not provable by such testimony." 2 Wigmore, Evidence, supra, at page 721. Quoting Browne v. Hickie, 68 Iowa 330, 333, 27 N.W. 276, 278, in the body of the text as support.
Since violation without legal excuse of section 321.319 is negligence as a matter of law, evidence that Brown believed Old Highway 18 was by custom and usage recognized as a through highway was immaterial and irrelevant. His belief as to what was customary or usual under similar circumstances did not excuse or justify violation of a statutory standard which was negligence per se.
This from American Smelting & Refining Co. v. Wusich, 92 Ariz. 159, 375 P.2d 364, 368-369, supports our position:
"* * * [E]vidence of a custom or practice is not admissible where it is offered for the purpose of excusing or justifying conduct which violates a statutory standard, [Citations] * * * unless violation of the statute is considered to be only prima facie evidence of negligence, [Citations] * * *. Obviously, where violation of a statute is negligence per se, evidence of a custom sanctioning violations of the statute would be irrelevant on the question of the existence of negligence."
This general statement is found in Smith v. Cox, Okl., 301 P.2d 649, 651:
"* * * [I]t is settled law * * * in a majority of * * * states, that, a custom or usage repugnant to the express provisions of a statute is void, and whenever there is conflict between a custom and usage, and a statutory regulation the statutory regulation must control; [Citations] * * *." See also 25 C.J.S. Customs and Usages § 10 b, and 21 Am.Jur.2d, Customs and Usages, section 15.
Florke v. Peterson, supra, 245 Iowa at 1037-1038, 65 N.W.2d at 376, was an action for injuries resulting from an automobile-truck collision which occurred when defendant turned left at an unmarked "T" intersection just as plaintiff was attempting to pass on defendant's left, in violation of statutory ban against passing at or near an intersection.
The opinion contains this supporting statement:
"The fact that courts recognize there may be a `legal excuse' for statute violation is quite different from permitting the violator to invoke the common law rule of reasonable care or the care which a reasonably prudent man would exercise under like circumstances.
"The Ohio Supreme Court has made the distinction: `Since the failure to comply with * * * a safety statute constitutes negligence per se, a party guilty * * * cannot excuse himself from compliance by showing that "he did or attempted to do what any reasonably prudent person would have done under * * * similar circumstances." A legal excuse * * * must be something that would make it impossible to comply with the statute * * *.' Bush v. Harvey Transfer Co., 146 Ohio St. 657, 67 N.E.2d 851, 855, 856; Simko v. Miller, 133 Ohio St. 345, 13 N.E.2d 914.
"'Evidence of due care * * * does not furnish an excuse or justification for the negligence presumed to arise on proof of violation of the ordinance.' Gallichotte v. California Mutual Building & Loan Ass'n, 4 Cal. App. 2d 503, 41 P.2d 349, 351."
Plaintiff cites Langner v. Caviness, 238 Iowa 774, 28 N.W.2d 421, 172 A.L.R. 1135, to support her position. Because of the heavy reliance she places on this opinion we consider it in detail.
Plaintiffs truck and that of defendant Caviness, driven by defendant Woolums, *868 were engaged in hauling crushed rock on a county road-surfacing project. They collided in daylight on a dirt road. Plaintiff's empty truck was going north to the quarry, up a hill about 1100 feet long. The Caviness truck, loaded with rock, was going south down the hill. They collided about 250 feet south of the top of the hill.
The traveled portion of the road in the general vicinity was 20 to 25 feet wide. However, at about the point of collision the west 2½ to 4 feet of the grade had washed out to a depth of about 4 feet. The distance from the east side of the washout to the east shoulder of the road was variously given as from 10 to 19 feet. The collision occurred on plaintiff's (east) side of the road almost opposite the washed out place. Each driver charged the other with excessive speed and failure to yield the right-of-way.
Upon appeal defendants complained that the trial court had stricken from their answer allegations of a custom between truckers pertaining to the right-of-way under such circumstances as shown there. The stricken allegations (slightly paraphrased) were:
"Defendants further state that defendant Woolums, traveling down a hill with a loaded truck, approaching a narrow place in said roadway and about to meet the empty truck driven by plaintiff traveling up the hill, relied upon a well established custom long existing between truckers when working upon public works of the character upon which plaintiff and defendant Woolums were then working, known to plaintiff or by the exercise of reasonable care should have been known, that a driver of an empty truck would yield the right of way to the driver of a loaded truck when about to meet in a narrow or defective place in a highway * * * that plaintiff failed to observe said long established custom to yield to the loaded truck the right of way when approaching said narrow place and contrary thereto drove into said narrow portion of said roadway at a high rate of speed, attempting to beat said defendant's approaching truck to said narrow place or to pass therein; that said failure to so yield the right of way was negligence which contributed to the collision and the resulting damage sustained by plaintiff."
We quote from the opinion:
"Plaintiff's motion to strike the above allegations, which was sustained, stated they constitute no defense or excuse for failure to exercise the statutory care required of defendants in the operation of their truck. Defendants contend the stricken allegations properly bear on the issue of plaintiff's freedom from contributory negligence. They concede that custom or usage will not justify or excuse a negligent act. * * * Therefore, no reliance is placed on the stricken allegations as an excuse for Woolums' alleged negligence.
"* * *
"It is generally held, however, that a custom which conflicts with a statutory provision will not be enforced. Where there is such conflict, the statute must control. [Citations] * * * Accordingly, it is usually held that a custom contrary to statute or ordinance may not be shown to excuse a violation thereof. [Citations] * * *.
"* * * As stated, defendants do not contend the custom upon which they rely could excuse the negligence charged against Woolums but argue only it may be considered on the issue of plaintiff's freedom from contributory negligence.
"Plaintiff asserts the pleaded custom may not be shown for any purpose because, it is said, it conflicts with section 321. 298, Code, 1946, 5024.02, Code, 1939, which requires persons in vehicles meeting each other on the public highway to give half the traveled way by turning to the right. A violation of this requirement is prima facie evidence of negligence. [Citing authorities] * * *.
*869 "We think the custom pleaded here cannot be invoked to supersede or nullify the above statute. But it does not follow that such custom cannot be considered in determing whether plaintiff was free from contributory negligence [based upon violation of a common law duty].
"* * *
"If because of his knowledge of the pleaded custom it was apparent to plaintiff that Woolums was not going to yield half the road, the jury could properly find plaintiff should have stopped his truck, not because of any statute but by reason of his obligation to use due care. [Citations] * * *. The pleaded custom, if plaintiff knew or should have known of it, was relevant and material upon the question whether ordinary care required plaintiff to stop, reduce his speed or take some other precaution to have avoided injury. If defendant violated the statute on meeting vehicles, plaintiff was not thereby excused from exercising ordinary care on his part" (Emphasis supplied).
We believe plaintiff has failed to properly interpret the Langner opinion and to recognize it as not applicable here.
This decedent's driver was charged with violating a statute which made him negligent as a matter of law. In Langner defendants were charged with violating a statute which made them only prima facie negligent. They did not contend evidence of custom or usage was admissible to excuse to justify this violation of the statute but asserted that even though they were prima facie negligent by reason of such violation plaintiff was negligent under common law by reason of his failure to comply with the custom of an empty truck yielding the right-of-way to a loaded one about to meet in a narrow or defective place in a highway. Langner's negligence was in no way based upon a claimed violation of a statute regulating the law of the road.
The decision holds evidence of custom was admissible only as bearing on plaintiff's alleged breach of a common law duty to exercise due care in view of the known custom between truckers as constituting negligence barring his recovery. It is not authority for the proposition urged here that a custom contrary to statute or ordinance, violation of which is negligence as a matter of law, may be shown to excuse or justify violation thereof.
This is a vital distinction between that case and plaintiff's position here. Although evidence of custom was not asserted to be admissible as justifying or excusing violation of a statute which constituted only prima facie evidence of negligence, this language in the opinion actually supports the position we have taken here:
"It is generally held, however, that a custom which conflicts with a statutory provision will not be enforced. * * *. Accordingly, it is usually held that a custom contrary to statutory ordinance may not be shown to excuse a violation thereof.
"* * *
"We think the custom pleaded here cannot be invoked to supersede or nullify the above statute [section 321.298]." loc. cit. 778-779 of 238 Iowa, 423-424 of 28 N.W. 2d.
Here decedent's violation of a statute which is negligence as a matter of law is sought to be excused by showing he was following a custom in failing to yield the statutory right-of-way. The effect of so doing would be to recognize custom and usage as a legal excuse for violation of a statute which is negligence per se.
Plaintiff's contention as directed against specifications of decedent's negligence based on statutory violations cannot be sustained. The court did not err in refusing evidence of custom and usage as irrelevant on those specifications.
III. Admissibility of custom as bearing on decedent's common law duties as to lookout and control remains to be considered.
*870 As stated, the court submitted decedent's failure to maintain a proper lookout and his driver's failure to have the vehicle under control as specifications of decedent's negligence. Lookout, of course, is a common law duty. We assume at this point the specification of control was also treated as a common law duty rather than statutory, since what we have said in Division II would dispose of plaintiff's contention as to statutory control.
Langner v. Caviness and American Smelting & Refining Co. v. Wusich, both supra, support the use of custom evidence when offered for purposes other than altering the effect of a statute, i. e., as bearing on the common law duty of due care. However, neither of these cases aids plaintiff's position here.
As stated, at the hearing on the motion to suppress evidence prior to trial defendants moved "the Court to suppress any evidence with respect to the showing of custom, usage or intention of the use of said road as a through highway for any purposes or by any means whatsoever." The motion was sustained and plaintiff's counsel gave no indication whatever than that he intended to offer evidence of custom for any other limited purpose.
We set out the record:
"I do want to apprise the Court, as far as plaintiff is concerned, while we think custom and usage is important, we think the real issue here is what the board of supervisors and county engineer actually did in connection with this road. The fact stop signs were constantly in place and that the road was considered by them as a through highway and was held out to the public generally as a through highway, is the nub of our contention here. So while I do feel custom and usage has got something to do with it, I don't want the Court to think that is the most important thing we are going on, we feel the other is stronger."
It is clear reference to "the other" was to what the county board and engineer actually did in connection with this road. Counsel does not contend he indicated in any manner at the hearing on the pretrial motion that he intended to offer evidence of custom for the limited purpose of its bearing on common law lookout and control.
As a witness Brown was asked:
"Q. Mr. Brown, on July 24, 1965, as you approached this intersection where the collision occurred, what was your state of mind? A. Well, I thought I had the right of way."
Defendant's motion to strike the answer on the ground it was given before counsel had a chance to object and an objection to it as wholly immaterial, incompetent and irrelevant was sustained and plaintiff made an offer of proof covering the same matter. Even then plaintiff did not indicate evidence of Brown's state of mind or intent was offered for the limited purpose of its bearing on his obligation to use due care.
We held in Divisions I and II, supra, that evidence of custom was not admissible for the purposes of establishing Old Highway 18 as a through highway or as an excuse or justification for violation of a statute.
Error does not lie in the exclusion of evidence claimed on an inadmissible ground even though it might have been admissible had it been claimed on another and different ground. Johnson v. Rockaway Bus Corporation, 145 Conn. 204, 140 A.2d 708, 710. See also Cotney v. State, 248 Ala. 1, 26 So. 2d 603, 605, 607; In re Smead's Estate, 219 Cal. 572, 28 P.2d 348, 349; Hairgrove v. City of Jacksonville, 366 Ill. 163, 8 N.E.2d 187, 196; and Hudson v. Smith, Tex.Civ.App., 391 S.W.2d 441, 447. Where the objection has been sustained and the offeror contends that evidence which is inadmissible for the purpose previously indicated by him may be admissible as bearing on other purposes, he has a duty to so state.
*871 "Where the materiality is not apparent, the party offering it must disclose it. In In Re Repp's Estate, 241 Iowa 190, [195], 40 N.W.2d 607, 610, we quote with approval from Votaw & Hartshorn v. Diehl, 62 Iowa 676, [680] 13 N.W. 757, 18 N.W. 305, as follows: `The true rule, we think, is that, when it is apparent upon the face of the question asked the witness what the evidence sought to be introduced is, and that it is material, this is sufficient. But when this is not apparent, then the party seeking to introduce the evidence is required to state what he expects to prove, and thus make its materiality appear.'" Iowa Power and Light Co. v. Abild Construction Co., Iowa, 144 N.W.2d 303, 313.
Recent decisions of this court supporting this statement, although involving exhibits, are Olson v. Norwegian Mutual Ins. Assn., 258 Iowa 731, 737, 140 N.W.2d 91, 95; Englund v. Younker Brothers, Inc., 259 Iowa 48, 57-58, 142 N.W.2d 530, 535.
The rule is well stated in Roach v. Snedigar, 76 S.D. 63, 72 N.W.2d 427, 429-430:
"'The general principle is that the offer must be judged exclusively by its specific contents regarded as a whole. The principle leads to several consequences: (1) If the evidentiary fact desired to be offered is in itself apparently irrelevant, or otherwise dependent on other facts for its admissibility, the offer must contain a statement of the specific purpose, or of all the other facts necessary to admissibility.' Wigmore on Evidence, 3d Ed., Vol. 1, § 17(b), p. 319. See also 53 Am.Jur., Trial, § 102, p. 91.
"* * * [I]t was the duty of the appellants to make known to the trial court the limited purpose for which they claimed the excluded testimony admissible. To hold otherwise would be to require the court to cast about for reasons for which the same was offered. That should not be the burden of the court. Rather, when evidence that is apparently inadmissible is offered for a limited purpose, the proponent of the evidence should have the burden of making clear to the court his reason for the offer. The court is entitled to be advised of this fact before ruling on the offer. Further, the opponent would be in no position to make a proper objection unless he knew the limited purpose of the offer, or to request an instruction limiting the use of the evidence, if admitted, to the purpose of its admission." 88 C.J.S. Trial § 82 c contains a similar statement in substance.
Since plaintiff did not indicate in the trial court evidence of custom was being offered as bearing on decedent's obligation to use due care, the court committed no error in disallowing the evidence when its admissibility was challenged.
We recognize evidence may be clearly inadmissible for one purpose yet the same evidence may be proper and admissible for some other legitimate purpose. However, after defendant's objections had been sustained plaintiff never made known to the trial court the legitimate purpose now claimed for its admissibilty.
IV. From what we have said in Division I we must conclude there is no merit in plaintiff's complaint of the court's instruction 7. As a matter of law it appeared this road was not a through highway. In view of the many references to this road as Old Highway 18 during the trial, we think this instruction was justified and was properly given.
Affirmed.
GARFIELD, C. J., and MOORE, STUART and RAWLINGS, JJ., concur.
LARSON, SNELL, BECKER and LeGRAND, JJ., dissent.
LARSON, Justice (dissenting).
I respectfully dissent.
I agree with the reasoning and conclusion reached by the majority in Division I. *872 I also agree with the majority's announcement in Division II that, where intent is material, the mental operation of a person which induces his actions or conduct may be shown and such a person may testify as to the reasons or influences which have induced those actions or conduct. Generally, evidence as to custom may be received in motor vehicle accident cases when the state of mind of the driver is material. Jesse v. Wemer & Wemer Co., 248 Iowa 1002, 1016, 82 N.W.2d 82, 89; Langner v. Caviness, 238 Iowa 774, 778, 28 N.W.2d 421, 423, 172 A.L.R. 1135, and authorities cited therein; American Smelting & Refining Co. v. Wusich, 92 Ariz. 159, 375 P.2d 364; Alires v. Southern Pacific Co., 93 Ariz. 97, 378 P.2d 913; State v. Watson, 7 Ariz. App. 81, 436 P.2d 175; Mitchell v. Knight, Alaska, 394 P.2d 892.
It is generally held that evidence of a custom which conflicts with a statutory standard, a violation of which is negligence per se, it not relevant and material. Where there is a conflict, the statute controls. 55 Am.Jur., Usages and Customs, section 17; 25 C.J.S. Customs and Usage § 10 b; Milroy v. Chicago M. & St. P. Ry. Co., 98 Iowa 188, 197, 67 N.W. 276; 1 Blashfield Cyclopedia of Automobile Law and Practice, Perm.Ed., 458, 460, section 651. Certainly, then, evidence of custom and usage offered for the purpose of excusing one's violation of a statutory standard should be rejected. Equally well recognized in such matters is the rule that nonadmissibility of an evidential fact for one purpose does not prevent its admission for any purpose otherwise proper. Alires v. Southern Pacific Co., supra; American Smelting & Refining Co. v. Wusich, supra.
I cannot agree that, because evidence of custom and practice is inadmissible to excuse a statutory violation, it will be inadmissible for all purposes, or that it will not be material or admissible to excuse a nonstatutory charge of negligence in the same proceeding. Nor do I agree that evidence, inadmissible for one purpose, shifts the burden of proving its admissibility for other relevant purposes. To require a litigant to explain to the court the reasons he believes his evidence is material and relevant under such conditions would be a strange rule of evidence indeed.
Only two of the five specifications of negligence alleged in the case at bar would fall within the rule that evidence of mental attitude and belief could be found immaterial.
The defendants' specifications of negligence included failure to keep a proper lookout and failure to have the car under control, neither of which is statutorily defined. The court submitted all five of defendants' specifications, which included the statutory regulations in sections 321.319 and 321.288 relating to failure to yield the directional right of way and failure to reduce speed when approaching and traversing an intersection. The trial court concluded there was sufficient evidence of plaintiff negligence on the issue of lookout and control prior to the accident to submit those issues to the jury. Having done so, appellant contends it committed error in rejecting evidence of Brown's state of mind on these issues as he traversed this highway.
In Division III the majority attempts to justify the failure of the trial court to admit testimony of Brown as to the basis of his mental attitude. Obviously, these are not specifications of decedent's negligence based upon statutory violations, but relate to the common law duty to use due care under the circumstances. Thus, I cannot understand the finding of the majority that the court had no indication of why appellant wished to introduce this evidence as to custom. Plaintiff's offer of proof went to that proposition, and no court could reasonably believe it was just another effort to establish the status of Old Highway 18.
Pursuant to a hearing prior to trial, on defendants' motion that the court "suppress any evidence with respect to the showing of custom, usage or intention of the use of said road as a through highway for any purpose *873 or by any means whatsoever", the court did sustain the motion. In so doing, it said: "The Court's reasoning is that attempting to submit the issue of a highway and its character as a through highway to a jury, an impossible and insoluble situation is created. That plaintiff here, traveling on the favored road so established by custom and usage, would be entitled to the benefit of the rules of the road and pertaining to such favored highways, and specifically in this case an instruction under Section 321.321 of the Code." (Emphasis added.) It was quite evident from this ruling that the court then understood the issue involved was the availability of evidence of custom and usage to establish the status of the road, not as to its use to explain the state of mind of the driver of plaintiff's vehicle as he drove down this highway. Its ruling on the motion should have been so restricted.
Plaintiff's counsel at that time made it quite clear he deemed evidence of custom and usage "is important," but in his effort to establish the highway as a through highway he was relying chiefly on the actions of county officials. The court was well aware of these contentions, and I doubt that it intended to deny the plaintiff the right to introduce evidence of custom and usage for any other purpose in this lawsuit. If it did, I would find reversible error in that ruling.
Later in the trial when the witness Brown was asked, "As you drove down that highway going out of Britt on July 24, 1965, did you think that you were on a through highway?", the court sustained defendants' objection that it was "incompetent, irrelevant and immaterial and not within the province of this witness to be able to answer it", and when asked, "as you approached this intersection where the collision occurred, what was your state of mind?", the court sustained defendants' motion to strike Brown's answer that "Well, I thought I had the right of way", based upon the ground that "the basis that the state of mind of the witness is wholly immaterial, incompetent and irrelevant, statement of opinion, which is not the subject to opinion testimony." These rulings were wrong and, when the court admonished the jury "to give it no consideration for any purpose whatever during your deliberations", it committed reversible error. (Emphasis added.)
It cannot be rightly contended the court was not aware of the purpose of this evidence and the reason plaintiff offered evidence of custom and usage at that time. In his offer of proof Brown related his use of this highway as a resident, as a bus driver, and as an observer of that use by other persons in that locality. He testified: "Through the years that I have been using that road I have considered it a through highway and until a few years before that, it had been the only highway through there. * * * There was no change made in the stop sign situation with respect to roads intersecting old 18 when new 18 came in. I think it probably was common knowledge in the area around Britt and Hancock County * * * on July 24, 1965, that old Highway 18 was a through road. I considered it a through highway. * * * As I approached the intersection where the collision occurred * * * my state of mind was that I thought I had the right-of-way." (Emphasis added.)
It is my feeling that the court could not possibly believe this evidence of custom and usage was then being offered to prove the status of the road, that it erroneously refused this evidence and evidence of Brown's state of mind, and that this evidence was not offered for any "limited" purpose. Its purpose was obviously to meet defendants' alleged grounds of negligence, to show plaintiff's driver had used due care under the circumstances, and to show plaintiff's freedom from contributory negligence at that time and place. As bearing on plaintiff's obligation to use due care under these circumstances, it was admissible.
The majority holds, because this evidence might not have been admissible on the *874 statutory violation issue, the plaintiff has the obligation to show its admissibility on the other specifications of negligence. Although I have no quarrel with the rule that error will not lie in the exclusion of evidence offered to explain or excuse a statutory or per se violation, even though admissible on another undisclosed ground, I believe the majority has placed the burden here upon the wrong party. I believe it was defendants' burden to show why this evidence was not admissible under the specifications alleged. As I see it, when the trial court was convinced there was substantial evidence of plaintiff's negligence in addition to statutory violations, it should have permitted evidence of Brown's state of mind and its basis, with proper instructions as to its materiality. Otherwise, these other issues should not have been submitted to the jury.
The majority admits such evidence is admissible as bearing on the common law duty to maintain a proper lookout and control. How can it be said the plaintiff had to do more than call the court's attention to the materiality and relevancy of this evidence under these issues? Clearly, this was done in the case at bar.
The majority cites several cases to sustain its position that the court here was not properly advised as the grounds for admitting this state-of-mind evidence. These cases are all premised upon the assumption that the materiality is not apparent. They are not applicable here.
I am abundantly satisfied under this record that the able trial court was or should have been aware of the material purpose of this evidence and should have overruled the defendants' objections thereto. When submitting the statutory specification of failure to yield found in section 321.319, it should have given a cautionary instruction to the effect that any evidence of usage and custom could not be considered to excuse noncompliance with those statute requirements. Dugan v. Fry, 3 Cir., N.J., 34 F.2d 723, 725; Tobin v. Goodwin, 157 Wash. 658, 290 P. 215. Also see Alires v. Southern Pacific Co., supra; Vegodsky v. City of Tucson, 1 Ariz.App. 102, 399 P.2d 723; Wood v. Melton, 179 Kan. 128, 293 P.2d 252; Irwin v. Graham, 62 N.M. 72, 304 P.2d 875; Mrs. Baird's Bakeries, Inc. v. Roberts (Tex.Civ.App.), 360 S.W.2d 850. Also see 77 A.L.R.2d 1327-1343 for an annotation on custom or practice of drivers of motor vehicles as affecting the question of negligence.
Being unable to tell whether the jury here found the defendants were not negligent, or found the plaintiff's decedent and his driver Brown did not use due care under the circumstances, we should reverse the judgment and return the case for a new trial.
SNELL, BECKER and LeGRAND, JJ., join in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610437/ | 39 So.3d 1289 (2010)
Patricia C. NEEDHAM, Appellant,
v.
Matthew NEEDHAM, Appellee.
No. 2D09-545.
District Court of Appeal of Florida, Second District.
August 11, 2010.
*1290 Catherine Hanford, Clearwater, and William A. Borja, Clearwater, for Appellant.
Kevin D. Fantauzzo of Law Office of Kevin D. Fantauzzo, St. Petersburg, for Appellee.
ALTENBERND, Judge.
Patricia C. Needham appeals the final judgment of dissolution of her marriage to Matthew Needham. The primary issue both at trial and on appeal is the custody of the couple's young child. The trial court established a parenting plan under which the parents have shared parental responsibility and the husband has the greater share of the child's time. As to that issue, we affirm the trial court's order on appeal. We reverse the award of child support payable by the wife to the husband. On remand, the trial court is not compelled to change the amount of this award, but it shall re-examine the financial affidavits and consider the potential impact of an older child from another marriage who lives with the wife.
There is little need to discuss the trial court's factual determinations in this case. Procedurally, the parties used all of their allotted hearing time presenting evidence, primarily on the issue of custody. There was confusion between the two attorneys as to when and how child support would be calculated. The wife's attorney came to the hearing believing that child support was going to be determined by a hearing examiner after the trial court made a custody decision, and the husband's attorney believed the issue was an evidentiary matter for the trial court. The case had been continued once and some of the financial information was stale. Because the parties used up all of their allotted time, the trial court ordered them to submit proposed judgments, including child support calculations. The trial judge was approaching retirement and wished to resolve the matter before she left the bench. Without an additional hearing, the trial judge signed the final judgment on her last day in office.
Although the wife has raised several issues relating to child support, this court is only concerned with one aspect of that award. Throughout the record there is extensive evidence that the wife has custody of a teenage daughter from an earlier marriage. The only financial information in the record suggests that she is not receiving child support from her prior husband for this child. The final judgment made no adjustment in the award of child support to the husband in consideration of the wife's expenses associated with her teenage daughter. More important, it contains nothing to suggest that the trial court even considered the effect of the older child.
Section 61.30(11), Florida Statutes (2005), contains no specific method for the resolution of this issue, but the case law provides that the trial court has discretion to consider this factor and can abuse its discretion if it fails to adjust child support to reflect the impact of this factor under some circumstances. See, e.g., Flanagan *1291 v. Flanagan, 673 So.2d 894 (Fla. 2d DCA 1996); Ogando v. Munoz, 962 So.2d 957 (Fla. 3d DCA 2007).
From this record, we conclude that the trial court erred in failing to consider this factor. We do not hold that the trial court abused its discretion in awarding the amount of child support that it awarded. Thus, on remand, we are not compelling the trial court to adjust this amount. We are merely requiring the trial court to give due consideration to this factor in making its determination of child support. Because this matter will be resolved by a different judge on remand, we do not prohibit the trial court from considering any additional evidence that it may require to make an appropriate exercise of its discretion.
Affirmed in part, reversed in part, and remanded.
DAVIS, J., and WILLIAMS, CHARLES E., Associate Judge, Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610445/ | 865 So.2d 176 (2003)
Elvira MENJIVAR
v.
ROUSE'S ENTERPRISES, L.L.C., ABC Insurance Company.
No. 03-CA-0808.
Court of Appeal of Louisiana, Fifth Circuit.
December 30, 2003.
Edwin R. Fleischmann, Jr., Fleischmann Law Firm, Metairie, LA, for Plaintiff/Appellant.
J. Rene Williams, Lazarus, Brown & Williams, Houma, LA, for Defendants/Appellees.
Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and CLARENCE E. McMANUS.
SOL GOTHARD, Judge.
Plaintiff, Elvira Menjivar, appeals a adverse judgment of the trial court in her slip and fall action that found defendant, Rouse's Enterprises, L.L.C. (Rouse), free from any negligence. For reasons that follow, we affirm.
Mrs. Menjivar filed suit against Rouse and its insurer on February 2, 2002. The *177 original petition alleges that Mrs. Menjivar was shopping at defendant supermarket in Metairie on Sunday, April 22, 2001. As she left the store she slipped on a foreign object and fell onto her left knee, twisting her back. The matter was joined, and in due course, a bench trial on the merits was held. Subsequently, the court rendered judgment with reasons in favor of defendant. It is that judgment on appeal in this matter.
At the trial, the court heard testimony from Itza Cabajal, daughter of the plaintiff. Ms. Cabajal explained that she was walking behind her mother as they walked down the exit ramp from Rouse's Supermarket. The women had gone into the store to purchase bread and other items for their church dinner. As they walked down the ramp, Mrs. Menjivar was looking in her purse for her keys. Mrs. Cabajal stated that she saw her mother trip. Because she thought her mother caught herself and was unhurt, Ms. Cabajal continued walking. She realized her mother was hurt when she looked back and saw that her mother's knee was bleeding. Mrs. Menjivar showed her daughter the cigarette butt on which she slipped. The two women went to their church and participated in the event. Later, Mrs. Menjivar complained of back pain and the two decided to return to Rouses's to report the incident.
Yolanda Cerrato-Valladares, a friend of the plaintiff, testified that she received a telephone call from Ms. Cabajal. Ms. Cabajal explained that her mother had fallen and was now experiencing pain in her lower back and knee. Ms. Cerrato-Valladares went over to the Menjivar home and found Mrs. Menjivar lying down. She was crying and her knee was swollen. Ms. Cerato-Valladares took Mrs. Menjivar to the hospital emergency room. On the way to the hospital, the women stopped at Rouse's to report the incident and speak to the manager. The manager took the report and went out to the car to speak to Mrs. Menjivar. Ms. Cerato-Valladares testified that she pointed out to the manager that there were cigarette butts on the ramp.
Mrs. Menjivar also testified at trial. She corroborated the testimony of her daughter regarding the purpose of the shopping trip to Rouse's and the location and circumstances of the slip and fall. She further explained she was walking out of the supermarket on the handicap ramp, trying to locate her keys in her purse. She slipped and reached out for the handrail in an effort to keep from falling, but was unsuccessful. Her right leg went forward and her left knee hit the ground. She looked down and saw a cigarette butt about two inches from her shoe, which she believed caused her to slip. She stated that there were other cigarette butts and paper on the ramp. She went inside to get something for her injury and was given cotton balls, alcohol and bandages. She did not fill out a report at that time. Later, after she returned home her back was very painful. Mrs. Menjivar instructed her daughter to call her friend Yolanda (Ms. Cerrato-Valladares). The rest of her testimony corroborates that of Ms. Cerrato-Valladares regarding the condition of her back and knee, and the trip to the store to formally report the incident. Mrs. Menjivar testified that after the report was made, the women went to the hospital for treatment. The remainder of her testimony concerns the extent of her injury and treatment.
Lon Levy, the assistant manager of Rouse's, testified that he recalled the incident in which Mrs. Menjivar made a report that she slipped on a cigarette butt while walking down the handicap exit ramp. Mr. Levy accompanied Mrs. Menjivar *178 out to the scene of the slip and fall, where Mrs. Menjivar pointed to a few cigarette butts on the ground which she said caused her fall.
Mr. Levy testified that Rouse's cleans that ramp daily in the morning. He further explained that someone comes in at 5 a.m. who buffs and sweeps the floor, then cleans the bathrooms and break room. After that he goes outside and cleans the parking lot, including the handicap ramp. This usually occurs about 8 a.m. The cleaning person responsible for these duties leaves at 9 a.m. At night a crew comes in to clean up large objects left in the parking lot. Mr. Levy confirmed that the ramp on which Mrs. Menjivar slipped is swept every morning and was swept on the morning of the accident. He further testified that he personally checked the ramp that morning and found it clean.
Mr. Levy also testified that when Mrs. Menjivar first came into the store and told him of the fall, she did not want to fill out an incident report. However, she returned later in the day to fill out the report. Mr. Levy testified that the accident happened at about 9:45 a.m. at a time when the store was busy. He was running customer service at the time.
Mr. Levy testified that employees are not allowed to smoke inside of the store. There is an elevated area set up for employees to smoke outside of the store to the left of an emergency door which is not in normal use for the public. It is not in close proximity of the handicap ramp. Management checks to make sure that employees smoke only in the designated area, and Mr. Levy has never seen an employee smoke in the area where Mrs. Menjivar fell.
Contained in the record are photographs of the area introduced into the record by plaintiff. One large photo shows the ramp and the railing around it; another shows a close up view of the area below the railing on the side of the ramp. Another photo shows an area in which no obvious obstructions exist. It appears to be swept clean. The close up view does show several cigarette butts on the ground, but they are in an area under the rail, not on the actual walkway.
Defendant also introduced photos of the area of the fall and the area set aside for smoking employees.
LAW
La. R.S. 9:2800.6 provides in pertinent part as follows:
A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure *179 is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) "Constructive notice" means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
In White v. Wal-Mart Stores, Inc., 97-0393 (La.9/997), 699 So.2d 1081, the Louisiana Supreme Court explained the burden of proof imposed on a plaintiff by the above cited statute. In White, 699 So.2d at 1086 the court stated:
The statute is clear. To prove constructive notice, the claimant must show that the substance remained on the floor for such a period of time that the defendant merchant would have discovered its existence through the exercise of ordinary care.
This court, citing White, has also held that a plaintiff must make a showing that the condition existed for some time before the fall occurred. A simple showing that the condition existed is insufficient for a finding of liability and recovery. Hernandez v. National Tea, Inc., 98-950 (La.App. 5 Cir. 5/19/99), 734 So.2d 958.
In the case before us, plaintiff has made nothing more than a showing that she slipped on a cigarette butt. She has made no showing that the condition existed for some time before the fall which would support a finding of constructive knowledge of the condition on the part of the defendant. Therefore, we find the trial court was correct in its finding that plaintiff failed to meet her burden of proof, and in the judgment in favor of defendant. Accordingly, we affirm the judgment of the trial court and assess costs of this appeal to plaintiff.
AFFIRMED.
EDWARDS, J., dissents.
EDWARDS, J., Dissents.
I dissent from the majority, because in my opinion, Mrs. Menjivar proved her case under La. R.S. 9:2800.6. The evidence indicates that the ramp on which Mrs. Menjivar slipped was last cleaned at about 8:00 a.m., almost two hours before the accident. There was testimony that Rouse averages about 2500 customers per day, and employees smoked in the area, where there were no ashtrays. These facts, plus the evidence that there were "a few" cigarette butts on the ramp along with some other pieces of paper, indicates that the littered condition of the ramp existed for such a period of time that it would have been discovered had the supermarket exercised reasonable care in keeping it clean. Considering the amount of store traffic and the smoking habits of the employees, it is clear that the hazardous condition was foreseeable, that Rouse's had constructive knowledge of the condition, and once-a-day early morning sweeps are insufficient to keep the area safe from hazardous conditions. Therefore I would reverse the judgment of the trial court.
For these reasons, I respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610466/ | 7 Wis.2d 160 (1959)
OOSTERWYK and another, Appellants,
v.
CITY OF MILWAUKEE, Respondent.[*]
Supreme Court of Wisconsin.
April 6, 1959.
May 5, 1959.
*163 For the appellants there was a brief and oral argument by Gerhardus Oosterwyk of Milwaukee, pro se.
For the respondent there was a brief by Walter J. Mattison, city attorney, and Peter M. Stupar, assistant city attorney, and oral argument by Mr. Stupar.
MARTIN, C. J.
The only question involved on this appeal is whether there is sufficient evidence to support the jury's finding that the lien of $1,500 was reasonable. Appellant Oosterwyk, acting as his own attorney, dealt with many matters in his brief and oral argument which are outside the record and can have no bearing on the decision in this case.
The razing of the appellants' buildings, out of which this action arises, was done by the town of Granville pursuant to the provisions of sec. 66.05, Stats. Sub. (1) of said section provides that where, in the judgment of the inspector of buildings of a municipality, a building is so old, dilapidated, or out of repair and unrepairable, as to be "dangerous, unsafe, insanitary, or otherwise unfit for human habitation, occupancy, or use," the inspector may order the owner of the premises to raze and remove the building. The order *164 shall specify the time in which the owner shall comply therewith and shall be served on the owner in the same manner as a summons is served. Sub. (2) of the section provides that if the owner shall fail or refuse to comply within the time prescribed, the inspector shall cause such building to be razed and removed and the cost of such razing and removal shall be charged against the real estate, be a lien thereon, and be assessed and collected as a special tax.
Sec. 66.05 (3), Stats., provides that "Anyone affected by any such order shall within thirty days after service of such order apply to the circuit court for an order restraining the inspector of buildings or other designated officer from razing and removing such building or part thereof or forever be barred...."
Sub. (5) of sec. 66.05, Stats., provides for the issuance and service of an order for the removal of personal property by a certain date, and if it is not removed "the inspector may store the same, or may sell it, or if it has no appreciable value he may destroy the same." In case the property is stored the amount paid for storage shall be assessed and collected as a special tax against the real estate. The owner must be notified of the place of its storage, and if it is not claimed by him, it may be sold after six months and the proceeds, if any, after deducting the expenses of razing and removal, remitted to the circuit court with a report of the sale. Anyone affected by such order may appeal as provided in sub. (3).
The proceedings outlined by the statute were adhered to by the town of Granville in this matter. Appellants were duly served with the order of condemnation of November 2, 1950. There was no compliance with the order and no attempt by appellants to follow the provisions of sec. 66.05 (3), Stats., for a review of the condemnation order.
*165 On May 21, 1951, appellants were served with an order to remove personal property from the premises within ten days. They failed to comply.
On January 3, 1953, the buildings were razed by the town, the personal property having been removed therefrom by the building inspector.
On March 19 and 20, 1953, appellants were notified of the place where the personal property was stored and if they did not claim it within six months from January 3, 1953, it would be sold. The property was not claimed and there was no appeal from that order, as provided by sec. 66.05 (5), Stats.
Sec. 66.05, Stats., has been held constitutional. Baker v. Mueller (7th Cir. 1955), 222 Fed. (2d) 180. The remedy provided in sub. (3) of the statute being exclusive, and the appellants not having seen fit to pursue it, they are "forever barred."
The evidence as to the expenses incurred by the town of Granville in connection with the razing and removal of appellants' buildings shows the following facts: Appellants' personal property and animals were removed to the farm of Harold Guenther for storage and care. Guenther's charges therefor, covering the period January 3, 1953, to August 3, 1953, amounted to $1,583. His charges for care and feeding of the goats, sheep, and poultry were based upon charges made by the humane society for boarding animals. In August the town sold Guenther the animals and personal property for the amount of the care and storage.
The town employed four dump trucks to remove the personal property and animals from appellants' premises. It used a snowplow to push the sheds down. Six highway-department workers were employed in these operations. The debris was set afire and eight firemen and a fire truck were *166 on the scene for two to three hours. The use of the fire engine alone had a value of $500 an hour, that being the amount agreed upon between the town of Granville and the village of Bayside for use of a piece of Granville fire equipment at a Bayside fire. The town paid $209.53 for labor.
Lawrence G. Wickert, attorney for the town of Granville, testified that on the basis of $15 per hour for his professional services, the legal work he had done with respect to the razing and removal, including time necessarily spent on the several actions brought by appellants against the town in this matter, totaled $1,500 in legal fees, which Wickert was paid by the town.
There is evidence that the town invited bids for the razing of the buildings and received a bid in the amount of $994. This amount covered razing and removal only. Even if the town had accepted the bid instead of razing the buildings itself, it would still have incurred the expenses of removing and storing the personal property, as well as Wickert's legal fees.
Appellants presented no evidence whatever to show that the charges recited above were unreasonable and excessive. On the contrary, it appears that the amount of the lien is considerably less than the evidence would have warranted. We must conclude that the evidence amply supports the jury finding that the amount of the lien was reasonable, and the court properly entered judgment on the verdict.
By the Court.Judgment affirmed.
NOTES
[*] Motion for rehearing denied, with $25 costs, on June 26, 1959. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610481/ | 865 So.2d 786 (2003)
Alex M. LeGROS
v.
GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, et al.
No. CW02-1478.
Court of Appeal of Louisiana, Third Circuit.
November 12, 2003.
Writ Denied February 20, 2004.
*787 Gregory P. Marceaux, Marceaux Law Firm, Lake Charles, LA, Billy Edward Loftin, Jr., Attorney at Law, Lake Charles, LA, for Plaintiff/Respondent: Alex LeGros.
Randell E. Treadaway, Jessica G. Roux, Reich, Meeks & Treadaway, L.L.C., Metairie, LA, for Defendant/Applicant: Great American Insurance Company of New York.
Robert Edwin Torian, LaBorde & Neuner, Lafayette, LA, for Defendant/Respondent: Crick Insurance Agency, Inc.
Marshall M. Redmon, Virginia Y. Trainor, Phelps, Dunbar, L.L.P., Baton Rouge, LA, for Defendant/Respondent: U.S. Risk Brokers, Inc.
Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
WOODARD, Judge.
Great American applied to this court for a supervisory writ, alleging that it can have no liability to Mr. LeGros for damages to his fishing vessel; therefore, the trial court erred in denying its motion for summary judgment. We find no error in the trial court's decision and deny Great American's writ, accordingly.
* * * * *
The Plaintiff, Mr. Alex LeGros, a self-employed commercial fisherman, had just unloaded his catch at Don Bailey's Fish House on June 5, 2001, when his vessel, M/V MISS ANGIE, caught fire. He and some of the deck and dock hands were able to extinguish the fire but not before it caused substantial damage to the vessel's living quarters and pilothouse.
Accordingly, Mr. LeGros filed a claim with his insurance company to recover his *788 loss. It denied recovery, both, because his policy had expired three days before the fire and because he had violated the trading warranty designation of "port risk," which it claims voided the policy even before its expiration date. Mr. LeGros filed suit against The Crick Agency, Inc., (Crick), U.S. Risk Brokers, Inc. (U.S.Risk), and Great American Insurance Company of New York, f/k/a American National Fire Insurance Company (Great American).
Great American, a foreign insurance company authorized to and doing business in Louisiana, had issued Mr. LeGros a policy of limited coverage, on the vessel, from June 2, 2000 to June 2, 2001. Crick was Mr. LeGros' retail agent. Thus, he communicated directly with Crick to obtain the policy. Afterwards, Crick contacted U.S. Risk, one of the intermediate wholesale brokers with whom it had a contract, and informed it of Mr. LeGros' coverage needs. In turn, U.S. Risk communicated the information it obtained from Crick to various insurance companies with whom it contracted, seeking a company that would agree to issue Mr. LeGros a policy. Great American agreed to issue the policy, which consisted of hull insurance and protection and indemnity coverage. The policy contained the following "Trading Warranty:" "PORT RISK OUT OF COMMISSION CAMERON, LA." The policy does not define or describe the terms "trading warranty," "port risk," or "out of commission."
At the time that Mr. LeGros sought the policy on the M/V MISS ANGIE, the vessel was in port for repairs. Furthermore, he had been keeping it in port for a period of time before this because of his divorce. He alleges that he told the Crick agent that the vessel would only be in port for a couple of weeks for repairs, after which he intended to start fishing again. The Crick agent, however, alleges that Mr. LeGros knew that he was supposed to contact her before he took the vessel out of port. She was not aware that he was using it until she tried to reach him to discuss the renewal of his policy and was informed that he was unavailable because he was out fishing.
When he returned, he completed the renewal application and gave it to Crick. Crick submitted it to U.S. Risk, indicating that the delay in getting it to U.S. Risk was because Mr. LeGros had been out fishing. Facsimile records indicate that U.S. Risk passed along this information to Great American. At that time, presuming that Mr. LeGros had been using the vessel named in the policy for his fishing voyages, it told U.S. Risk that it would not be offering a renewal to Mr. LeGros and, furthermore, there was no existing coverage because the present policy was warranted "port risk." U.S. Risk informed Crick that Great American had declined to renew the policy and that it attempted to get a quote from other companies, but they declined to offer coverage. Whether Crick informed Mr. LeGros that his policy was not being renewed is disputed. The fire occurred on June 5, 2001, three days after the end of the policy term.
Mr. LeGros asserts that Great American and U.S. Risk had a duty to send him a notice that his policy was not going to be renewed and that they breached this duty. Great American moved for summary judgment, asserting that it did not have a duty to provide him with a notice of non-renewal and, even if it had renewed the policy, his breach of the trading warranty would have voided it. The trial court denied Great American's motion. Great American applied for a supervisory writ to this court.
Great American contends that it can have no liability for Mr. LeGros' loss, as a matter of law, and that the trial court *789 should have dismissed it from the case, accordingly. Specifically, it claims: (1) that its policy is exempt from the Louisiana Insurance Code; therefore, it is relieved of providing policy holders notice of non-renewal; and (2) Mr. LeGros' use of the vessel outside of its "port risk" designation was a material breach of his contract which voided the policy.
* * * * *
DUTY TO NOTIFY UNDER LOUISIANA LAW
Louisiana Revised Statutes 22:636.4(D), which is applicable to renewals of commercial insurance, provides, in pertinent part:
(1) An insurer may decide not to renew a policy if it delivers or mails to the first-named insured at the address shown on the policy written notice it will not renew the policy. Such notice of nonrenewal shall be mailed or delivered at least sixty days before the expiration date.... If the notice is mailed less than sixty days before expiration, coverage shall remain in effect under the same terms and conditions until sixty days after notice is mailed or delivered....
(2) Notice of nonrenewal shall not be required if the insurer or a company within the same insurance group has offered to issue a renewal policy, or where the named insured has obtained replacement coverage or has agreed in writing to obtain replacement coverage.
However, La.R.S. 22:636.4 is located in Part XIV of the Louisiana Insurance Code, which is entitled "The Insurance Contract." The provisions under Part XIV are explicitly limited. Specifically, the Code says that "[t]he applicable provisions of this Part shall apply to insurance other than ocean marine and foreign trade insurances."[1] (Emphasis added.) Traditional marine insurance, such as hull insurance, is considered ocean marine insurance.[2]
Nevertheless, the Louisiana Supreme Court, answering a certified question of law from the Fifth Circuit, concerning the ocean marine exclusion, stated:
This language seems to indicate that the legislature intended for the exclusions to apply to only some of the sections of Part XIV. Had the legislature intended for the exclusionary language of La.R.S. 22:611 to apply to all of Part XIV, it would have left out the "applicable provisions" language and simply stated, "The provisions of this Part shall apply to insurances other than ocean marine and foreign trade insurances."[3]
Afterwards, the court traced the history of the "direct action statute," the statute at issue in that case which is also found in Part XIV, and concluded that the statute applied to ocean marine policies notwithstanding the exclusion found in La.R.S. 22:611.[4]
Likewise, we find that the provision, requiring the insurer to send the insured a notice of non-renewal, is applicable to ocean marine insurance policies. The Louisiana insurance laws were codified in Act 195 of 1948.[5] However, as early as 1870, the U.S. Supreme Court had endorsed the *790 application of international uniform rules, practice, and laws, regarding contracts of marine insurance.[6] Achieving this uniformity required the application of federal law rather than each state's law.[7] The Supreme Court continued its endorsement of applying federal law to marine insurance contracts until 1955.[8] Thus, in 1948, when the Louisiana insurance laws were codified, there was no need to subject marine insurance policies to those laws which would have been displaced, anyway, by federal maritime law.
However in 1955, the U.S. Supreme Court abandoned its position that federal rules should uniformly apply in marine insurance matters.[9] Instead, it concluded that where there is no judicially established federal admiralty rule, courts should apply state law, instead.[10] The Fifth Circuit recently concluded that, in deciding which law should govern, even when there is a federal admiralty rule, we should consider whether it constitutes "entrenched federal precedent," whether the state's law is materially different, and evaluate the state's interest in applying its law.[11]
In the instant case, we find no federal rule which addresses the issue of an insurer's duty, or lack of, to provide notice of non-renewal of a marine insurance policy. Thus, we conclude that La.R.S. 22:636.4 applies to marine insurance policies. Furthermore, we believe that federal law would surely dictate the same result as our state law. The federal rules governing marine insurance contracts developed from the uberrimae fidei doctrine.[12] "The doctrine of uberrimae fidei in marine insurance law requires both the insurer and the assured to exercise `the highest degree of good faith' to inform each other of every fact material to the risk to be insured."[13] We cannot imagine that the doctrine of uberrimae fidei would not impose the same duty on the insurer; namely, the duty to notify its insured of its choice not to renew his policy.
It is undisputed that Great American did not send a notice, directly to Mr. LeGros, that it was not renewing his policy. Thus, whether it fulfilled its duty by disseminating the information to another party requires a determination of the agent/principal relationships, if any, among all four parties. Whether an agency relationship exists between parties is a question of fact and must be determined on the particular circumstances in each case.[14] Accordingly, this issue cannot be disposed of on summary judgment.
Nonetheless, according to La.R.S. 22:636.4, failure to provide such notice results *791 in continued coverage "under the same terms and conditions" as the previous policy. Accordingly, Great American asserts that there is no coverage under its policy because Mr. LeGros breached the "port risk" trading warranty, which voided the policy.
BREACH OF TRADING WARRANTY
Great American alleges that Mr. LeGros' violation of the "port risk" designation automatically voided the policy. Relying on Forrester v. Arco Oil & Gas Co.,[15] Great American asserts that the policy was void from the moment the vessel left port. We cannot agree. Forrester is not instructive in the instant case. In that case, the endorsement, itself, "provided that the vessel was covered only when it remained in port; once the vessel commenced voyage, the coverage would terminated [sic]."[16] The Forrester court continued, "Indisputably, the accident occurred after the vessel had left port and commenced a voyage."[17]
Thus, there are two important distinctions which render Forrester inapplicable to the instant situation. First, the policy in Forrester defined the port risk designation and, also, included the penalty for violating it. Thus, the court was construing language within the policy. In the instant case, we must determine what the law provides when the policy is silent. Secondly, the vessel in Forrester was in violation of the policy provisions at the time of the accident. Therefore, the court was not required to determine coverage in a situation where the vessel had committed a violation of the policy before the accident but was no longer in violation at the time of the accident. And, most significantly, the parties conceded that there was no coverage under the policy; thus the Forrester court did not, specifically, address the issue.[18]
Like Forrester, the other cases that the Parties cite involve an accident that happened while the vessel was in violation; thus, it was unnecessary in those cases for the courts to determine the precise effect, per se, of the respective violations.
Therefore, the facts in the instant case present a res nova issue. Although we find no cases that squarely address the effects of a previous violation of a port risk designation, when the vessel is no longer in violation at the time of the accident, the Fifth Circuit has stated, "[a] warranty as to the place where the policy stipulates the insured vessel is to be located during the period covered by the policy makes the right of the insured to recover for damages or loss dependent upon the vessel being at the stated place when the damage or loss occurred."[19] As Mr. LeGros points out, the vessel was in port at the time of the fire. Therefore, we do not find that his previous violation automatically voided his policy.
An "insurer is required to clearly express exclusions to its insuring obligations and ... any doubt or ambiguity is to be resolved against the insurer ... and in favor of what reason and probability dictate was intended by the parties with respect to coverage."[20] We find that the *792 "port risk" designation is ambiguous when read in conjunction with the "HELD COVERED CLAUSE" which states:
PROVIDED, HOWEVER, SHOULD THE VESSEL AT THE EXPIRATION OF THIS POLICY BE AT SEA, OR IN DISTRESS, OR AT A PORT OF REFUGE OR CALL, SHE SHALL, PROVIDED PREVIOUS NOTICE BE GIVEN TO THE UNDERWRITERS, BE HELD COVERED AT A PRO RATA DAILY PREMIUM TO HER NEXT RETURN TO FIRST PORT IN THE UNITED STATES.
Additionally, while Mr. LeGros' testimony was unclear regarding whether he understood what the "port risk" designation meant, he alleges that, when he applied for the policy, he informed Crick that he would be putting the vessel back in navigation in the next couple of weeks after he had completed the repairs. Whether Crick told him that he needed to notify them when the repairs were finished and before he took it on a voyage is disputed. The determination of this factual dispute bears on what the parties reasonably intended concerning coverage. In fact, ascertaining what the parties reasonably intended regarding coverage, in the instant case, will require a survey of all of the facts. Therefore, we agree with the trial court that summary judgment in Great American's favor is inappropriate.
Furthermore, even if it is ultimately determined that there is no coverage under the policy between Great American and Mr. LeGros, nevertheless, he should have the opportunity to demonstrate whether Great American's breach of its duty not to send notice of its non-renewal was a cause of his failure to obtain insurance covering the vessel at the time of the loss, therefore, contributing to damages his lack of coverage caused.
While we express no opinion on these issues, we agree with the trial court that there are mixed questions of law and fact, in dispute, in this case, making it inappropriate for a decision on summary judgment. Thus, we deny Great American's writ, finding that the trial court was correct in denying summary judgment in its favor.
CONCLUSION
We agree with the trial court that disputed issues of material fact preclude Great American's dismissal on summary judgment. Therefore, we deny Great American's writ. We tax costs associated with this writ to Applicant/Great American.
WRIT DENIED.
NOTES
[1] La.R.S. 22:611(A).
[2] See La.R.S. 22:1379(9). See also Grubbs v. Gulf Int'l Marine, Inc., 625 So.2d 495 (La. 1993).
[3] Grubbs, 625 So.2d at 503 (quoting Giannouleas v. Phoenix Mar. Agencies, Inc., 621 So.2d 1131, 1135 (La.App. 1 Cir.1993)).
[4] Grubbs, 625 So.2d 495.
[5] 1948 La. Acts No. 195. See also Grubbs, 625 So.2d 495.
[6] See, e.g., New England Mut. Marine Ins. Co. v. Dunham, 11 Wall. 1, 78 U.S. 1, 20 L.Ed. 90(1870).
[7] Dunham, 11 Wall. 1, 78 U.S. 1, 20 L.Ed. 90 (1870). See also Paula Hamilton Lee, Untying the Gordian Knot and Opening Pandora's Box: The Need for a Uniform Federal Maritime Rule of Uberrimae Fidei with Respect to Marine Insurance, 19 TUL.MAR.L.J. 411 (1995).
[8] See Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955). See also Lee, supra note 7.
[9] See Wilburn, 348 U.S. 310, 75 S.Ct. 368.
[10] Id.
[11] Albany Ins. Co. v. Anh Thi Kieu, 927 F.2d 882 (5th Cir.), cert. denied, 502 U.S. 901, 112 S.Ct. 279, 116 L.Ed.2d 230 (1991).
[12] See Lee, supra note 7.
[13] David B. Sharpe, James E. Mercante, Diane M. Butler & Todd A. Zilbert, Recent Developments in Maritime Law, 19 TUL.MAR.L.J. 301, 343 (1995) (citing Albany Ins. Co. v. Horak, 1994 AMC 273 (E.D.N.Y.1993)).
[14] Venable v. U.S. Fire Ins. Co., 02-505 (La. App. 3 Cir. 10/30/02), 829 So.2d 1179.
[15] No.CIV.A.88-777, 1989 WL 114006 (E.D.La. Sept.25, 1989). See also Forrester v. Arco Oil & Gas Co., No. CIV.A.88-777, 1991 WL 110389 (E.D.La. June 13, 1991).
[16] Forrester, 1991 WL 110389 at *1.
[17] Id. at*1.
[18] Forrester, 1989 WL 114006.
[19] Graham v. Milky Way Barge, Inc., 824 F.2d 376, 383 (5th Cir.1987) (quoting Robinson v. Home Ins. Co., 73 F.2d 3, 4 (5th Cir.1934)).
[20] Graham, 824 F.2d at 383 (quoting Benton Casing Serv., Inc. v. Avemco Ins. Co., 379 So.2d 225, 232 (La.1979)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610491/ | 865 So.2d 622 (2004)
William BURGOS, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D03-1274.
District Court of Appeal of Florida, Third District.
January 28, 2004.
Rehearing Denied February 18, 2004.
*623 Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for appellant.
Charles J. Crist, Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
Before GERSTEN, RAMIREZ, and WELLS, JJ.
WELLS, Judge.
William Burgos appeals his conviction for resisting arrest without violence. We reverse.
Burgos was arrested and charged with resisting an officer with violence, depriving an officer of means of protection, and battery on a law enforcement officer. The charges stemmed from an incident following a police dispatch to a local trailer park. According to the officers involved, when they arrived at the trailer park, they were approached by a woman who was crying hysterically and whose face was lacerated, swollen and bleeding. This woman pointed out Burgos and told the officers that Burgos, who was then standing about twenty-five feet away talking with his mother, had caused her injuries. After Burgos refused to respond to the officers' inquiries, they attempted to arrest him, only to be met by a fierce struggle during which Burgos kicked and punched them, attempted to obtain one of their handguns, and attempted to use one officer's radio as a weapon. When finally subdued and arrested, Burgos was charged with resisting an officer with violence, depriving an officer of means of protection, and battery on a law enforcement officer. He was not charged with domestic battery.
On the first day of trial, the defense moved to preclude all mention of domestic violence against the battered woman who turned out to be Burgos' girlfriend. The motion was initially granted by Judge Silverman. The trial was then transferred to Judge Deehl, who ultimately denied the motion, thereby paving the way for the state to elicit extensive and detailed testimony from the officers that the victim was hysterical, had a bleeding laceration to the eye, and had a swollen, lacerated and bleeding mouth; that the victim had stated that Burgos had hit her; and that the victim had told them that Burgos had stated *624 that "she was not going to look pretty anymore." This ruling also cleared the way for admission of a photograph depicting the victim's bloody injuries. Burgos was ultimately convicted of the lesser included offense of resisting arrest without violence.
Burgos seeks a new trial contending that this detailed evidence relating to an uncharged domestic battery offense was not relevant to the crimes charged. The state contends that even if not directly relevant to the charges relating to the arresting officers, the evidence was properly admitted because it was necessary to adequately describe the events leading up to the offenses charged and because it was inextricably intertwined with the charged offenses. See Osborne v. State, 743 So.2d 602, 602 (Fla. 4th DCA 1999) (evidence of other crimes is admissible when "relevant and necessary to adequately describe the events leading up to the crime[s charged]"); Simmons v. State, 790 So.2d 1177, 1178 n. 2 (Fla. 3d DCA 2001)("[e]vidence of an uncharged crime is inextricably intertwined with a charged offense, and therefore admissible ... `where it is impossible to give a complete or intelligent account of the crime charged without referring to the other crime'") (citation omitted). We disagree with the state's position.
Graphic descriptions of the girlfriend's injuries, hammered home by photographic evidence, and her account of threats made by the defendant were unnecessary to understanding the officers' encounter with Burgos. The officers' presence was sufficiently explained by their testimony that they were dispatched to the trailer park and that during their investigation Burgos was identified as the subject of the investigation.[1]See Porter v. State, 715 So.2d 1018, 1020 (Fla. 2d DCA 1998) (wife's statement that her husband was trying to kill her was not necessary to explain deputies' presence in light of testimony that officers were present because they had received a domestic violence call); see also, Scarboro v. State, 832 So.2d 930, 931 (Fla. 3d DCA 2002)(concluding that testimony detailing earlier criminal activity leading up to the defendant's arrest was "not necessary for the jury's understanding of the officers' own encounter with the defendant").
The testimony regarding the domestic battery also was not inextricably intertwined with defendant's altercation with the officers as there was a "clear break" between that incident and defendant's confrontation with the officers. See Porter, 715 So.2d at 1020. It certainly was possible to give a complete and intelligent account of the altercation between Burgos and the officers without delving into the details of the domestic battery.
The admission of the detailed testimony regarding the domestic battery was, therefore, error. Since we are unable to state that the error was harmless, we must reverse and remand for a new trial.
*625 Our decision to reverse on this ground makes it unnecessary to reach the remaining issues raised in this appeal, including defendant's claim that the trial court erred in denying his motions for mistrial, which were based on certain gratuitous comments made by the testifying officers and prosecutor that: prisoners teach other prisoners to use handcuffs as a claws; "there are a lot of police officers every year who are killed with their own firearms"; and that one of the officers drew her weapon because she wanted "to go home to [her] family." We agree, however, that these statements were comments upon matters extraneous to the trial and are to be avoided at the new trial.[2]
Reversed and remanded.
NOTES
[1] The state conceded as much below:
[THE STATE]: Let me make clear our position.
I think, as an officer of the court, that we can certainly state that [the previously assigned trial judge] indicated that we couldn't go into the physical injuries of the victim.
The state is not seeking to do that.
All we're asking Your Honor to allow us to do is not describe the injuries of the victim, but just to say that they [the officers] were there pursuant to a domestic call.
They arrived on the scene; they went up to the victim; she pointed out the defendant.
That's it.
We're not asking to go into any details regarding it.
[2] We do not, of course, approve the prosecutor's comment that Burgos was "acting like a caged animal" by failing to single it out in this portion of our decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611086/ | 11 So.3d 1031 (2009)
STATE of Louisiana
v.
Jason Manuel REEVES.
No. 2006-KA-2419.
Supreme Court of Louisiana.
May 5, 2009.
Rehearing Denied June 19, 2009.
*1035 Capital Appeals Project, Jelpi Pierre Picou, Jr., G. Benjamin Cohen, New Orleans, for Appellant.
James D. Caldwell, Attorney General, John F. DeRosier, District Attorney, Frederick Wayne Frey, Carla Sue Sigler, Cynthia Skerrett Killingsworth, Assistant District Attorneys, for Appellee.
TRAYLOR, Justice.[*]
On December 13, 2001, a Calcasieu Parish grand jury indicted the defendant, Jason Reeves, for the first degree murder of a four year old girl, identified as M.J.T., which occurred on November 12, 2001, in violation of La. R.S. 14:30. Reeves' first trial began with jury selection on October 27, 2003, and ended in a mistrial on November 9, 2003.
Reeves' retrial commenced with jury selection on October 12, 2004. On November 5, 2004, the jury returned a unanimous verdict of guilty as charged. After a penalty phase hearing, the same jury unanimously recommended a sentence of death after finding as aggravating circumstances: (1) the defendant was engaged in the perpetration or attempted perpetration of aggravated rape; (2) the victim was under the age of twelve years; and (3) the offense was committed in an especially heinous, atrocious or cruel manner. On December 10, 2004, after denying post-verdict *1036 motions, the trial court imposed the sentence of death in accordance with the jury's verdict.
The defendant now brings the direct appeal of his conviction and sentence to this court pursuant to La. Const. art. 5, § 5(D).[1] After a thorough review of the law and the evidence, we find that none of the arguments put forth by the defendant constitute reversible error, and affirm the defendant's conviction and sentence.
FACTS[2]
No challenge is raised to the sufficiency of the evidence used to convict the defendant of first degree murder. After our review of the record, we find the following facts to be proved beyond a reasonable doubt.
On November 12, 2001, at approximately 3:15 p.m., the Calcasieu Parish Sheriff's Office (CPSO) received a complaint of a suspicious vehicle at a school in Moss Bluff, Louisiana. The vehicle was described as a blue four-door, older model vehicle which may have been an Oldsmobile Cutlass. The driver of the vehicle, who was described as wearing a maroon t-shirt and blue jeans, was loitering in the parking lot of the school and conversing with two young female students. The complaint included the license plate number of the suspicious vehicle. A check on the license plate revealed that the defendant, Jason Manuel Reeves, was the owner of a blue Oldsmobile Cutlass, with the same license plate number, and that he had a criminal history of sexual offenses with minors.
Shortly thereafter, at 5:02 p.m., the CPSO received a 911 call from the mother of a four-year old girl, M.J.T., who had disappeared from McFatter Trailer Park in Moss Bluff.[3] The trailer park is located 3 miles from the school where the suspicious vehicle had been reported. The young girl's mother, C.T., told sheriff's deputies that she had seen a suspicious, older model, blue vehicle circling the trailer park prior to the time she realized her daughter was missing. She also remembered a red sticker in the vehicle's rear window. C.T. later identified Reeves' vehicle as the one she saw in the trailer park on November 12, 2001.
That evening, CPSO deputies went to Reeves' home and obtained permission from him, and his mother with whom he lived, to search his vehicle and home. After finding no evidence connecting Reeves to the missing girl, the deputies informed Reeves of his constitutional rights and *1037 asked him to go to the sheriff's office for further questioning. Reeves agreed and followed the deputies in his own car to the CPSO because he did not know where the sheriff's office was located.
Reeves arrived at the CPSO at approximately 10:20 p.m., was informed of his constitutional rights, and signed a form waiving them. He was initially questioned from 10:45 p.m. until 12:40 a.m.[4] Thereafter, Reeves was taken to an interview room in the detectives' area, which is a secure area.[5] Reeves was again informed of his constitutional rights and was questioned throughout the night with regard to his whereabouts and activities on November 12, 2001.
Reeves told the officers that he had finished work at approximately 3 p.m., purchased a drink at a gas station, and driven home, arriving at approximately 4 p.m. Judy Doucet, the defendant's mother, told sheriff's deputies that she specifically remembered her son arriving home around 5:00 p.m. or 5:30 p.m. Throughout questioning, Reeves continually denied any involvement with the missing girl. These statements were not recorded.
From the time M.J.T. was reported missing until sometime on November 13, 2001, individuals assisting in the search for M.J.T. recovered evidence from a creek located approximately 15 minutes from McFatter Trailer Park, near a wooden bridge on Charles Breaux Road. The victim's mother identified a pair of a child's white tennis shoes and a pair of girl's purple pants as having been worn by M.J.T. at the time of her disappearance.
On November 13, 2001, at 9:16 a.m., deputies obtained Reeves' permission to obtain his bodily substances for testing, then transported him to a local hospital where the requested samples were obtained. A nurse collected blood samples, oral swabs, pubic hair combings and fingernail scrapings from Reeves. A physical examination of Reeves at this time showed scratches on the inside of his left upper thigh, on his nose, and on his arms. He also had abrasions on both knees.
Around 11:40 a.m. on November 13, 2001, Reeves was placed under arrest on an outstanding warrant from another parish. At that time, Reeves was again informed of his constitutional rights, interrogated further, and then placed in the jail. During this interview, a detective made the statement that only two people knew what really happened to M.J.T. Reeves replied, "Yeah, me and the good Lord."[6] Despite making this statement, Reeves continued to deny involvement with the disappearance of M.J.T.
On November 14, 2001, at approximately 11 a.m., deputies took Reeves from his jail cell to the detectives' interview area where he was again Mirandized. Reeves continued to deny involvement with the missing girl but further details which had emerged in questioning were now preserved on videotape. While still maintaining he finished work around 2:30 *1038 p.m. or 3:00 p.m., he related that he had driven in the direction of the Chardele Trailer Park to visit his cousin, but turned around when he realized he did not know his cousin's trailer number. Reeves then headed back in the direction of Moss Bluff, stopping at a convenience store to purchase a Mountain Dew soft drink. He claimed he traveled along a highway toward his grandfather's house, but remembered en route that his grandfather would not be home. Reeves then claimed he turned around in the parking lot of a Moss Bluff school, speaking briefly to a woman there. He continued traveling and stopped along the way at McFatter Trailer Park to see an old friend, Kurt Leger, with whom he had worked offshore. He asked a group of children at the trailer park if they knew where his friend Kurt lived. Reeves then claimed his car overheated, so he waited for the vehicle to cool down before driving home, where he claimed to have arrived by 4:00 p.m. This statement concluded when lunch was brought to Reeves at 12:40 p.m.
At approximately 2:30 p.m. on November 14, 2001, the body of M.J.T. was found in a secluded area in some woods, 10-15 yards off a trail next to LeBleu Cemetery. The cemetery is located approximately 8.2 miles from McFatter Trailer Park.[7] A Mountain Dew soft drink bottle was recovered approximately 25 feet away from where the body was found. The little girl's body, clothed only in a purple shirt pulled up halfway and naked from the waist down, had been stabbed multiple times. M.J.T. was found lying on her back with her legs bent, with signs of sexual abuse evident. Before evidence was gathered or the body was touched, law enforcement officers videotaped the crime scene.
Interrogation of Reeves began again around 8 p.m. Former FBI Agent Don Dixon confronted Reeves with photographs of M.J.T.'s body taken at the murder scene. As a pre-arranged strategy, Agent Dixon told Reeves that a latent print found on a palmetto leaf tied him to the murder scene.[8] At 9:25 p.m., detectives began videotaping the interview, during which Reeves confessed to having the girl in his car and taking her to the cemetery. He walked with her into the nearby woods, where they sat down and watched a rabbit. Reeves whittled a piece of wood with his pocket knife. Reeves then claimed he blacked out and does not remember doing anything else to the little girl. The next thing Reeves remembers was walking toward his car parked in the cemetery's parking lot, stopping at his sister's grave, saying good-bye and that he was sorry. When he reached his car, he noticed his pants were unzipped and his knife was missing.
Reeves had requested to speak with his mother. At 10:40 p.m., the videotape was stopped when Reeves' mother arrived at the sheriff's office. One of the detectives *1039 monitored Reeves' conversation with his mother and heard Reeves say, "I did this thing. I don't know why, but I did it."[9]
Thereafter, Reeves indicated that he wanted to finish the interview because his actions had hurt his mother and the victim's family. Reeves was Mirandized again and continued his statement at 11:12 p.m. He expanded his earlier statements and acknowledged that he picked up M.J.T. to "go fool with her." He took her to the cemetery since the cemetery was a secluded place. After visiting his sister's grave and becoming very angry, Reeves took M.J.T. to the woods and started touching her on her bottom. Reeves admitted he told M.J.T. throughout the encounter that he would bring her back home and other things in an attempt to calm her down. M.J.T. became upset and asked him to stop, which further angered Reeves, who was still wielding his knife. Although he claimed he did not remember taking off M.J.T.'s pants or assaulting her, Reeves acknowledged that he was the only person who could have stabbed her. Reeves hurried out of the cemetery, fearing that M.J.T. was not alive when he left her. He does not remember anything about disposing of her pants and shoes. He does remember driving home with dirt and possibly a light smear of blood on his arms. He rinsed off his arms with the outside hose before entering his house and seeing his mother, then took a bath. The statement concluded at 11:48 p.m. Reeves was subsequently arrested for aggravated kidnaping and first degree murder.
On December 13, 2001, a Calcasieu Parish grand jury indicted Jason Reeves for the first degree murder of M.J.T. Specifically, the indictment states: "JASON MANUEL REEVES committed the offense of first degree murder in that he killed M.J.T., a female juvenile whose date of birth was March 25, 1997, with the specific intent to kill or inflict great bodily harm upon M.J.T. and was engaged in the perpetration or attempted perpetration of aggravated rape and/or M.J.T. was under the age of twelve years."[10]
At the guilt phase of this first degree murder trial, the state presented Reeves' videotaped statements to the jurors and evidence discovered through investigation. A maroon t-shirt and jeans, which the defendant had worn on November 12, 2001, were seized from his house. Reeves' mother had washed them before the police seized the items. A picture of Reeves' vehicle, admitted into evidence, shows that the vehicle is a blue four-door, older model Oldsmobile Cutlass with a red sticker on the back window.
Two girls from the Moss Bluff school testified the defendant tried to talk to them on November 12, 2001. One of the girls, and the after-care provider who spoke with Reeves that day, identified him as the person who had been at the school near where M.J.T. disappeared.
In addition, an off-duty Lake Charles city police officer testified that he saw Reeves at the cemetery at 4:40 p.m. on November 12, 2001. The officer, who was meeting with a confidential informant at the cemetery between 4:15 p.m. and 4:45 p.m., saw the defendant walking back to his car and leaving the cemetery parking lot. As Reeves drove right next to the officer in leaving the area, the two men came face-to-face with each other. The *1040 officer identified Reeves in court as the man he saw at the cemetery at 4:40 p.m. on November 12, 2001.
The state presented testimony that a man-trailing dog identified the scent of the victim inside Reeves' vehicle. The man-trailing dog also followed Reeves' scent to a wooden bridge off Charles Breaux Road, under which the pants and shoes of M.J.T. were found in a creek. At the cemetery, the man-trailing dog went toward the water, then toward the woods and over the fence from the cemetery to the area where there were wood shavings on the ground. From there, the dog went to the place where the victim was found. At that point, the dog started whining and crying, and refused to go further. At each location, the dog's handler was given no information.
The state presented expert testimony that the purple fibers from the victim's clothing matched fibers of vacuumed debris evidence from Reeves' vehicle. Hairs identified as dog hairs were found both in the defendant's vehicle and on the victim's clothing. During the recovery of evidence at the crime scene, maggots and an adult fly were recovered from the victim's body. An entomologist estimated that eggs were laid on the victim's body within one hour of her death and that the last time the eggs could have been laid considering their development was at approximately 5 p.m. on November 12, 2001.
The coroner testified that the approximate time of M.J.T.'s death was 4:30 p.m. The cause of death was found to be multiple incised stab wounds of the neck and trunk. M.J.T.'s neck had been cut nearly two-thirds of the way around.[11] In total, the victim had sixteen stab wounds, with fourteen on the front of her body and two on her back. Six of the stab wounds were in the area of the heart, while the heart itself was stabbed five times. The wounds to M.J.T.'s heart and back occurred while she was alive, although the stab wounds around her liver and mid-section occurred following death. There were long scrapes along the entire length of the victim's legs, which showed M.J.T. could have been dragged along the ground. Injuries on M.J.T.'s right hand were consistent with defensive wounds, showing that the little girl attempted to protect herself. Although she had been stabbed in the heart, the coroner believed M.J.T. would have survived for some time and would have suffered throughout the attack.
M.J.T.'s body also showed she had been brutally sodomized while she was alive. Three visible scrapes and blood were visible on her anus. The forcible widening or opening of her anus was approximately three-fourths of an inch in circumference. Her body showed blue bruising around her bottom, which the coroner stated could only occur when blood is pumping and the victim is alive. Semen was found in the victim's anus. An expert forensic analyst matched the semen obtained from a rectal swab of the victim to Reeves' DNA profile. The expert testified the probability of finding the same DNA profile from another Caucasian individual other than Reeves was calculated as 1 in 256 trillion.
After the state presented its evidence in the guilt phase, the defendant called, as a witness, an expert forensic psychologist, who testified as to his opinions regarding the reliability of the defendant's confession.
After deliberating, the jury unanimously found that the state had proven beyond a reasonable doubt that Reeves committed the first degree murder of M.J.T. After *1041 allowing the statutorily-required time period to elapse, the penalty phase of the trial began.
At the penalty phase, the state introduced Reeves' prior criminal record, which included two juvenile adjudications for simple burglary and two adult convictions for indecent behavior with a juvenile, in 1996 and 1997, respectively. The victim of the 1996 conviction, N.T., testified that when she was 15 years old, the defendant drove her in his truck to a park. He pulled her pants down as she struggled against him. N.T. stopped his assault only when she bit Reeves on the shoulder so hard that he bled. The record of the 1996 conviction shows that Reeves' victim, S.D., was a 7 year old child.
Further, the state presented testimony from a young girl, W.H., who described her encounter with Reeves on November 8, 2001, four days prior to M.J.T.'s disappearance and murder. W.H. stated that she was 13 years old on that date. She was walking to the office at Moss Bluff Middle School near the end of the school day when Reeves, walking past her in the opposite direction, grabbed her bottom. She ran quickly to the school's office to get help.
The state also presented the testimony of Detectives Zaunbrecher and Primeaux of the CPSO. Both detectives testified that on December 10, 2001, Reeves had stated, in their presence, that he would not serve life in prison. While making a slitting motion across his neck, Reeves told the detectives that he would make them wish they had given him the death penalty if he did not get it. Reeves stated, "What are they gonna do, give me thegive me life in prison twice?"[12] Further, Deputy Mandy Taggert, a CPSO transportation deputy, testified that Reeves told her that if he got out of jail, he would find another child and would kill again. Deputy Taggert stated that Reeves then began smiling and laughing after making that statement.
The defense presented testimony from an expert in forensic psychology who asserted that Reeves suffers from major depression and mixed personality disorder, with borderline and anti-social personality traits. The defense expert testified that Reeves exhibits signs of dissociative amnesia stemming from chronic post traumatic stress disorder. The expert claimed that Reeves developed these disorders after witnessing his sister's death and being sexually assaulted as a young boy. Additionally, another defense expert determined that Reeves has an aggressive attitude and is prone to verbal and physical aggression. That defense expert testified, further, that the defendant also exhibits emotional instability, volatile interpersonal relationships, anger, mood swings and impulsivity. The defense expert did not find Reeves to be psychotic, schizophrenic, delusional or prone to hallucinations, or otherwise suffering from a mental illness.
The state's forensic psychology expert countered that, from a psychiatric or psychological standpoint, he did not see a causative trigger which resulted in Reeves' criminal behavior. He did not feel that Reeves' actions in raping and murdering M.J.T. were a result of a post traumatic stress disorder. Rather, the state expert asserted that Reeves possessed the ability to discern and appreciate right from wrong. The state expert also discounted the defense expert's diagnosis of dissociative amnesia. According to the state expert, dissociative amnesia relates back to the traumatic events occurring previously in a person's life rather than to current memory lapses.
*1042 After deliberation, the jury unanimously recommended that Reeves be sentenced to death, finding the victim was under 12 years old; the murder was committed during the perpetration or attempted perpetration of an aggravated rape; and the offense was committed in an especially heinous, atrocious or cruel manner. After denying post-verdict motions, the trial court formally sentenced the defendant to death on December 10, 2004.
The defendant now appeals his conviction and sentence, raising 79 assignments of error. The court will discuss Assignments of Error 1-7 within the body of the main opinion. These claims raise questions regarding the defendant's counsel and are the only issues orally argued to this court. The remaining assignments of error, which have been determined to be without merit upon the application of well-established legal principles, are analyzed in an unpublished appendix which will comprise part of the record of this case on appeal. Finding no reversible error, we affirm Reeves' conviction of first degree murder and sentence of death.
LAW AND DISCUSSION
Assignments of Error 1-7
Attorney Issues
In these interrelated assignments of error, the defendant complains that he was unconstitutionally denied counsel of his choice when the trial court removed nonlocal counsel, who represented him at his first trial through an agreement with the local indigent defender board, and reinstated originally appointed counsel, the local chief public defender, for his retrial. This replacement occurred after non-local counsel requested the court's involvement to secure reimbursement of expenses incurred in the defense of Reeves in the first trial, and to locate funding for expert assistance and attorney expenses for the retrial. The defendant additionally asserts the removal of non-local counsel resulted in representation by counsel who had an actual conflict of interest and who was so overburdened as to be constitutionally ineffective. The defendant maintains these actions resulted in structural error in his retrial, necessitating reversal of his conviction and sentence.
Prior Jurisprudence
Before discussing the merits of these issues, a brief review of this court's jurisprudence in the area of indigent representation and funding is useful. In the past, this court has noted, in general, the chronic underfunding of indigent defense programs in most areas of the state. See State v. Peart, 621 So.2d 780, 789 (La. 1993); State v. Wigley, 624 So.2d 425, 429 (La.1993). In addition to underfunding, this court has recognized that caseload levels of attorneys working within indigent defense programs have, in certain situations, resulted in constitutionally ineffective assistance of counsel. Peart, 621 So.2d at 790. Although not applicable to this defendant's trial, the legislature recently addressed these issues in comprehensive legislation.[13] Prior to the passage of the legislature's reforms, this court, in cases reviewed by this court, set forth certain principles and remedies through its constitutional authority and inherent power to ensure that effective assistance of counsel had been provided for indigent *1043 defendants. These jurisprudential principles and suggested remedies were the guidelines used by the district court in connection with Reeves' retrial and form the framework of the district court's decisions.
State v. Peart
In 1993, in State v. Peart, supra, this court considered a multifaceted ruling made by a criminal district court judge in Orleans Parish based on that judge's examination of the defense services being provided to indigent defendants in that section of court by the public defender's office. The trial judge ruled that three statutes regarding indigent defense and its funding were unconstitutional as applied in the City of New Orleans. In addition, the trial judge ordered that the legislature provide funding for improved indigent defense services and ordered a reduction in the caseloads of those attorneys representing indigent defendants in that section of court. Peart, 621 So.2d at 783.
This court reversed the district court's ruling, finding that the statutes at issue were not unconstitutional and that the remedies ordered by the trial judge were inappropriate at that time. Id. However, in Peart, this court made several important pronouncements regarding the funding of indigent defense and the caseloads of those attorneys providing defense to the indigent, which are pertinent to the issues raised in the instant matter.
In Peart, this court held, inter alia, that a defendant may raise certain ineffective assistance of counsel claims, prior to trial, when judicial economy demands it. Id., 621 So.2d at 787. Additionally, the court held that a trial judge must make findings individually tailored to each defendant with regard to the representation he received or was receiving. Id., 621 So.2d at 788. The court also held, after a detailed review of the lack of funding and excessive caseloads of the indigent defenders in that particular section of Orleans Parish Criminal District Court, that defendants who were assigned counsel in that section received constitutionally deficient counsel. Id., 621 So.2d at 790. So finding, the court further held that a rebuttable presumption of counsel's ineffectiveness could be applied in cases arising out of that section of court. Id., 621 So.2d at 791. Finally, the court warned:
If legislative action is not forthcoming and indigent defense reform does not take place, this Court, in the exercise of its constitutional and inherent power and supervisory jurisdiction, may find it necessary to employ the more intrusive and specific measures it has thus far avoided to ensure that indigent defendants receive reasonably effective assistance of counsel.
Id., 621 So.2d at 791. The court remanded the case to the district court for retrial of the "Motion for Relief" filed on behalf of defendant, Peart, and for trial of other motions filed by indigent defendants in that section of court asserting pretrial claims of ineffective assistance of counsel. Id., 621 So.2d at 791. In fashioning a remedy, this court instructed the district court:
If the court, applying this presumption [of counsel ineffectiveness] and weighing all evidence presented, finds that Leonard Peart or any other defendant in [that section] is not receiving the reasonably effective assistance of counsel the constitution requires, and the court finds itself unable to order any other relief which would remedy the situation, then the court shall not permit the prosecution to go forward until the defendant is provided with reasonably effective assistance of counsel.
Id., 621 So.2d at 791-792.
State v. Wigley
While Peart dealt with a local public defender's office representing indigent defendants, *1044 the case of State v. Wigley, 624 So.2d 425 (La.1993), decided the same year as Peart, concerned the appointment of attorneys from the private bench to represent indigent defendants. In Wigley, the court reaffirmed that the "[u]ncompensated representation of indigents, when reasonably imposed, is a professional obligation burdening the privilege of practicing law in this state, and does not violate the constitutional rights of attorneys." Id., 624 So.2d at 426. However, in order for the appointment to be reasonable, and not oppressive, the court also held that "any assignment of counsel to defend an indigent defendant must provide for reimbursement to the assigned attorney of properly incurred and reasonable out-of-pocket expenses and overhead costs." Id., 624 So.2d at 429. The court charged the district judges with the authority to determine, in their discretion, what would constitute an unreasonable level of time that an attorney must devote to a particular case without compensation of a fee. "Such a system will strike a balance between the attorney's ethical duty to provide services pro bono publico and his or her practical need to continue to perform his or her other obligations." Id., 624 So.2d at 429.
The court in Wigley levied another charge on the district courts. While acknowledging the fact that the source of funds from which appointed counsel may be reimbursed were, at that time, limited, the court directed the district judges to make the initial determination, before counsel is appointed, that sufficient funds "to cover the anticipated expenses and overhead are likely to be available to reimburse counsel." Id., 624 So.2d at 429. Moreover, the court instructed that "[i]f the district judge determines that funds are not available to reimburse appointed counsel, he should not appoint members of the private bar to represent indigents." Id. Recognizing the harshness of this remedy, the court nevertheless maintained that "budget exigencies cannot serve as an excuse for the oppressive and abusive extension of attorneys' professional responsibilities." Id.
State v. Touchet
Peart and Wigley set forth remedies to ensure constitutionally-required assistance of counsel for indigent defendants. In addition to the right to counsel, an indigent defendant must also have a fair opportunity to present his defense. Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1092, 84 L.Ed.2d 53 (1985). This often requires the assistance of expert witnesses. When a defendant is indigent, he must obtain funding to pay for this expert assistance. However, in requesting certain types of expert assistance, the defense may be divulging important trial strategies.
In State v. Touchet, 1993-2839 (La.9/6/94), 642 So.2d 1213, the court considered whether, and to what extent, indigent defendants were entitled to ex parte hearings on their motions for state-funded expert witness services. In making its determination, the court sought to provide an indigent defendant a fair opportunity to present his defense while maintaining an adversary system. The proper balance is achieved by the court's holding:
... an indigent defendant may file a motion for expert funding ex parte. Notice of the filing of the motion should be given to the state, which may file an opposition to the hearing being held ex parte and/or to the request for funding. The trial court should first determine, in camera, either on the face of the allegations of the motion or upon taking evidence at an ex parte hearing, whether the defendant would be prejudiced by a disclosure of his defense at a contradictory *1045 hearing. If so, then the hearing on expert funding should continue ex parte. If not, then the hearing should be held contradictorily with the District Attorney....
At the hearing on expert funding, whether ex parte or contradictory, the defendant must first show a need for the funding. The defendant must show with a reasonable degree of specificity what type of expert is needed and for what purpose. In other words, the indigent defendant requesting governmental funding for the securing of expert assistance must show that it is more likely than not that the expert assistance will be required to answer a serious issue or question raised by the prosecution's or defense's theory of the case. If the defendant meets this burden, then the court is to order that the funds be provided by the state. If the defendant fails to meet this burden, and the proceedings were held ex parte, both the written reasons for denial and the record of the proceedings are to remain under seal during the pendency of the defendant's prosecution, including appellate review.
Touchet, 1993-2839 p. 14-15, 642 So.2d at 1221.
In Touchet, this court recognized that a district court must use its discretion in its decisions regarding the funding of expert assistance for indigent defendants. While noting that the state's substantial interest in protecting the public fisc demands that some form of opposition by the state be allowed, Touchet declared the district court to be an adequate guardian of the state's financial interests from frivolous requests for the funding of expert assistance. Id., 1993-2839 p. 12, 642 So.2d at 1220-1221.
State v. Citizen
Finally, the case of State v. Citizen c/w State v. Tonguis, XXXX-XXXX (La.4/1/05), 898 So.2d 325 ("Citizen") is important in this review. Although Citizen was handed down a few months after Reeves' retrial, these consolidated cases involved the separate prosecutions of two indigent capital defendants arising out of Calcasieu Parish, the same parish as Reeves' prosecution, and present an informative analysis of the mechanism for funding indigent defense prevailing at that time within that parish.
In Citizen, a parish-approved ad valorem tax constituted the largest component of the parish Criminal Court Fund, which maintained the court system and the District Attorney's Office, but not the local public defender's office. This fund operated at a surplus. By contrast, the local public defender's office was funded through court fees and an allocation of state funds and operated at a deficit. Expressing frustration at the continued lack of funding in criminal cases, and faced with appointed defense counsel's Motion to Determine Source of Funds to Provide Competent Defense, the district court in Citizen declared unconstitutional two statutes that had recently been amended to prevent the use of local parish funds to pay for appointed defense counsel. The district court further ordered the parish police jury to provide funds for appointed counsel for the two indigent capital defendants.[14]
*1046 On appeal, this court reversed, upholding the constitutionality of the statutes. The court held that the legislature, through statute, places the burden of paying indigent defense costs on the state. The fact that the legislature failed to adequately fund indigent defense programs, and had, in the amendments to the statutes at issue, eliminated an alternative source of funding from the parishes, did not "diminish any of the constitutionally guaranteed rights and freedoms of these defendants or of their attorneys." Citizen, XXXX-XXXX p. 13, 898 So.2d at 335. Further, the court held the district court erred in ordering the police jury to place funds into the court registry for court-appointed attorneys or other case-related expenses when the legislature had made unmistakably clear that the state, and not the parish, was responsible for indigent funding. Id., XXXX-XXXX p. 14, 898 So.2d at 336.
In addition to these holdings, the court reiterated, from its previous pronouncements in Peart and Wigley, that "budget exigencies" could not serve as an excuse for the oppressive or abusive extension of attorneys' professional responsibilities. Citizen, XXXX-XXXX p. 15, 898 So.2d at 336. Moreover, in order to ensure that indigent defendants are provided with their constitutional and statutory rights to counsel and to expert assistance, this court had, in the past, exercised its constitutional and inherent power and supervisory jurisdiction to impose corrective measures. In fact, the court warned previously in Peart that more intrusive measures would be contemplated if the legislature failed to act. Id.
Although the court in Citizen noted that the legislature had taken positive steps since Peart to remedy the critical state of indigent criminal defense in Louisiana, there had been, as of that time, no resolution or legislative remedy for the underfunding and overworked conditions noted in previous cases. Id., XXXX-XXXX p. 14-15, 898 So.2d at 336. Finding that further corrective measures were needed to address the immediate problems of the instant defendants, the court in Citizen altered one of the rules set forth in Wigley.
Whereas in Wigley the court maintained that a district court should not appoint private counsel for an indigent defendant until a funding source was identified for the reimbursement of, at a minimum, the appointed counsel's expenses and overhead, the court in Citizen ordered that counsel be appointed for an indigent defendant from the time of the indigent defendant's first appearance in court, "even if the judge cannot then determine that funds sufficient to cover the anticipated expenses and overhead are likely to be available to reimburse counsel." Citizen, XXXX-XXXX p. 16, 898 So.2d at 338. The court instructed that counsel appointed before a funding source was identified could subsequently file a motion to determine funding. Thereafter, if the district court determined that adequate funding was not available, this court authorized the defendant to file a motion to halt the prosecution until adequate funding became available. Id. Citizen authorized district judges, in their discretion, to prohibit the state from proceeding with a prosecution *1047 until he or she would be able to determine that appropriate funding was likely to be available thereafter. Id., XXXX-XXXX p. 16, 898 So.2d at 339.
This authority is no longer a matter of jurisprudential rule announced in Citizen. In its comprehensive revision of the statutory provisions establishing and regulating a state-wide indigent defender board, the legislature, in the Louisiana Public Defender Act of 2007, La. Acts 2007, § 307, explicitly recognized that Citizen "authorized trial judges to halt prosecutions in capital cases, upon motion of defense counsel, until adequate funding is provided to ensure an adequate defense, and it is the express intention of the legislature to ensure adequate resources, consistent with the Citizen opinion, which allow prosecutions in such cases to continue to conclusion resulting in verdicts that are fair, correct, swift, and final." La. R.S. 15:142(D). As previously noted, our decision in Citizen was rendered several months after the retrial of the instant case.
Facts Pertinent To Funding And Representation In This Case
With this jurisprudential review in mind, we turn to the facts pertinent to the issues raised in these assignments of error. The record shows that the Calcasieu Parish grand jury indicted Reeves on December 13, 2001. The district court determined that the defendant was indigent and the Calcasieu Parish Public Defender's Office was appointed to represent him. At arraignment, the Chief Public Defender of the parish, Ronald Ware, tendered a plea of not guilty on Reeves' behalf.[15] At that time, Ware informed the court that attorney David Ritchie would serve as co-counsel.[16] For several months, from January through March, 2002, Ware and Ritchie represented the defendant, filing preliminary discovery motions and appearing on his behalf at hearings.[17]
Thereafter, the Calcasieu Parish Public Defender's Office, through the parish's Indigent Defender Board, contracted with attorney Kerry Cuccia of the Capital Defense Project of Southeast Louisiana ("Capital Defense Project"), and members of his staff, to represent Reeves in his capital trial.[18] According to documents filed later under seal, the original contract contemplated that the Capital Defense Project would be paid by the parish's Public Defender's Office/Indigent Defender Board the amounts of $50,000 for attorney fees and $25,000 for expert witness fees. The amount agreed upon for expert witness fees was subsequently raised by an additional $10,000, to a total of $35,000.
Reeves' first trial, with Cuccia, Graham da Ponte and Hilary Taylor acting as counsel, and presided over by Judge Quienalty, began with jury selection on October 27, 2003 and ended on November 9, 2003, *1048 when a mistrial was declared due to the jury's inability to reach a unanimous verdict on guilt.[19]
After the trial, by letter dated November 25, 2003, Cuccia informed Ware that the defense of Reeves had been more costly than anticipated.[20] Although the local Public Defender's Office/Indigent Defender Board provided a total of $85,000 for Reeves' defense in the first trial, as agreed upon, the actual cost was $120,537.08.
In requesting reimbursement of the overage from Ware, Cuccia included a breakdown of the actual costs. None of the total amount requested included attorney fees. However, the attorneys who participated in Reeves' defense sought reimbursement from the Public Defender's Office/Indigent Defender Board of expenses, specifically mileage, lodging, meals and unspecified other expenses. In addition, the itemization of costs from the first trial reflected that the total amount requested for the overage also consisted of fees for expert witnesses, fees for general and mitigation investigation, and litigation expenses.
On January 7, 2004, soon after Cuccia's request to Ware for reimbursement, the district court set a new trial date of June 14, 2004. The district court also set motion dates for the retrial, and ordered that Cuccia and da Ponte be notified. The defense subsequently filed several motions addressing the funding issues which had arisen.[21] On February 18, 2004, defense counsel and the state participated in a telephone conference with Judge Canaday, the judge now presiding over the matter. A minute entry of February 19, 2004 reflects that Cuccia agreed to submit to the court an ex parte itemized statement of expenses from the first trial.
By letter dated February 19, 2004, Cuccia submitted to the court, under seal, an itemization of expenses and expenditures from the first trial, reflecting a balance owed the Capital Defense Project of $35,537.08. Cuccia also submitted, under seal, an estimate of $19,000 needed immediately for expert witnesses to begin work on the upcoming retrial, with a total estimate of $108,000 for both attorney expenses and expert witness fees for the retrial. None of the estimated cost of the retrial included an amount for attorneys' fees; the Capital Defense Project attorneys only estimated reimbursement of anticipated expenses.
On March 8, 2004, Cuccia filed a "Motion to Stay Proceedings For Lack Of Funds to Provide A Competent Defense," asserting that the defense was unable to prepare for trial scheduled to begin on June 14, 2004.[22] In the motion, Cuccia asserted that counsel could not prepare and present a competent defense for Reeves due to the facts that: (1) the defense *1049 was owed a significant amount of money for unpaid expenses from the first trial, and (2) had received no money with which to fund the retrial. With regard to the unpaid expenses from the first trial, Cuccia maintained that the defense had been assured that all expenses would be paid by the Calcasieu Parish Public Defender's Office. However, the defense was now informed that no funds existed for reimbursement from that source. With regard to the money for retrial, Cuccia acknowledged in the motion apparently behind-the-scenes efforts of the district judge to obtain funds, but maintained that the defense had no money to proceed. Due to this state of affairs, Cuccia moved to stay the proceedings. Exhibits to the motion were filed under seal.
Hearing On Funding Issues
On March 23, 2004, a hearing was held on the defense's funding motions. In attendance before Judge Canaday were Cuccia and da Ponte, Reeves' present counsel; Ware, Reeves' originally appointed counsel; Walt Sanchez, as counsel for Ware individually; and the state. After introducing himself and his co-counsel, da Ponte, to Judge Canaday, whom they had never before met, Cuccia submitted the matter to the court on the motion and the attachments which were provided to the court under seal.[23]
Judge Canaday stated for the record that there had been a number of informal conferences between the court and counsel concerning the funding issue, and that the judge had made no secret of the fact that the court was contemplating taking "some significant action to make some changes...".[24] After reviewing an affidavit from Ware regarding the financial standing of the Calcasieu Parish Public Defender's Office and a bank statement to which the court was privy, and reviewing the caseload and structure of the local Public Defender's Office, Judge Canaday agreed with Cuccia that "... at this time that there are not sufficient funds based on, at least, the application that was made by Defense counsel."[25]
Judge Canaday emphasized that the court had not made an independent review of the expenses submitted under seal from the first trial, nor was the court ever called upon to do so in the past, because those expenses were based on an agreement between the local Public Defender's Office/Indigent Defender Board and the Capital Defense Project.[26] At this time, however, due to the fact that the prior expenses had not been paid and because funds for future expenses and fees would have to be obtained for the retrial, Judge Canaday stated his appreciation that the matter had now been brought before the court in order for the court to take on a management role in the case, i.e. "... to view specific requests and allocation of funds that its [sic] deemed appropriate under the existing case law and Constitutional guidelines."[27]
Judge Canaday announced the court had indicated, previously and informally, that due to its fiduciary obligation to manage the retrial, the court was considering relieving Cuccia and da Ponte, who were counsel located in New Orleans, of any *1050 further responsibility for the defense of Reeves, due to the ability of qualified local counsel to represent Reeves for the retrial. Both Cuccia and da Ponte acknowledged their familiarity with the court's proposal.[28] For the record, Ware responded, when asked by the court, that there was no conflict whatsoever which would prevent the local Public Defender's Office from representing Reeves.[29]
Judge Canaday related his understanding that, in the prior trial, the representation by Cuccia and da Ponte was based on a contractual agreement between the parish's Public Defender's Office and the Capital Defense Project.[30] Based on the motions filed by these defense counsel, and their exhibits filed under seal, the court believed that the Public Defender's Office lacked the funds to advance or to maintain the same contractual relationship the Public Defender's Office formerly had with the Capital Defense Project, especially considering the nearness of the upcoming June trial date.[31]
Before making a definitive ruling, however, Judge Canaday wished to establish a record and to obtain evidence. Upon direct questioning by the court, Cuccia agreed that he had not received enough financing from the Public Defender's Office to be prepared for the June trial date.[32] Cuccia also explained that the Capital Defense Project was still owed more than $35,000 from the previous trial, and had received no assurances from the Public Defender's Office that the Capital Defense Project would receive funds in order to be ready for trial.[33]
Ware told the court that the Indigent Defender Board, as of that date, maintained a balance of approximately $18,846.50 in its Capital Defense Account.[34] When the court asked Ware if Ware would be able to fund Cuccia in the same manner as Cuccia had been funded previously, to enable Cuccia to prepare for a trial currently scheduled in two and a half months, Ware responded, "No, sir, your Honor."[35] Ware explained that, for the entirety of Cuccia's previous representation, Ware paid invoices when they were presented by Cuccia. Ware stated that his office had, in fact, paid Cuccia a total of $85,000 to this point, as agreed. However, Cuccia had contacted Ware's office, both in writing and orally, as described earlier, advising Ware and the Indigent Defender Board that Cuccia had an overrun of about $35,000.[36]
Ware testified that he told Cuccia that the Indigent Defender Board was not in a position "then or now" either to reimburse the Capital Defense Project for the money it had already expended for Reeves' first trial or to fund a retrial.[37] As Ware stated: *1051 "[a]nd as it stands now, we have a serious problem with funding any capital litigation in terms of a defense in any of the cases that are pending before this Court and this district."[38] Ware assured the court that the Indigent Defender Board and Public Defender's Office were very satisfied with the defense presented by the Capital Defense Project and would willingly reimburse Cuccia and fund a retrial if funds were available.[39]
Aware of the district court's proposed resolution of the funding dilemma, Ware objected to replacing counsel at this time due to the on-going attorney-client relationship which the Capital Defense Project attorneys had developed with Reeves. Ware acknowledged, however, "I understand all of the pitfalls and other things that are involved with this case and the other capital cases pending in this Court."[40] He candidly admitted that he did not have "an easy or ready solution" to the problem that was before the court.[41]
Both Ware and Cuccia reiterated to the court that the Capital Defense Project was not seeking attorneys' fees for its representation of Reeves. Cuccia, on behalf of the Capital Defense Project, sought only reimbursement of expenses paid for the first trial, and included travel expenses as the only counsel expense in his estimate of retrial costs.[42] Turning to the subject of expenses, Judge Canaday observed that, without going into detail regarding the information filed under seal, he felt there had been a substantial amount of money associated with travel and associated expenses for Cuccia and his staff from Reeves' prior defense. Cuccia agreed, responding:
That's correct, Your Honor. It took a lot of time and effort to travel back and forth from New Orleans here during the investigative stage of the case, and also to basically relocate the entire Defense team first to Baton Rouge for a week and then here for a week.[43]
Based on the totality of the information before him, Judge Canaday concluded that sufficient funds were not available for a retrial to begin during the month of June of 2004, as previously set.[44] Since the financial situation necessitated that the trial date be moved anyway, Judge Canaday determined it was necessary to reassess and reevaluate the financial situation regarding counsel for the retrial. Judge Canaday suggested replacing existing non-local counsel with the capital-certified Ware, the local Chief Director of the Public Defender Office, and local attorney, Charles St. Dizier, as second-chair, provided *1052 he was associate-counsel certified.[45] Before doing so, however, Judge Canaday asked to hear from Sanchez, as counsel for Ware; Cuccia and da Ponte, as existing counsel; and the prosecutor.[46]
Cuccia told the court that the Capital Defense Project stood ready to continue its representation of Reeves, provided the funds they requested to present a proper defense be provided sufficiently in advance of trial, as well as reimbursement of the more than $35,000 which was advanced out of the Capital Defense Project budget for the previous trial.[47] Cuccia explained that the overage from the previous trial occurred when counsel realized they would run short of money. Rather than delay the trial, and with the assurance from Ware that money would ultimately be available to reimburse him, Cuccia took upon himself the responsibility of paying those additional expenses out of his own budget rather than upset the trial date. Otherwise, Cuccia indicated he would have asked for a stay prior to the first trial, due to insufficient funds to continue.[48] Cuccia agreed with Judge Canaday that, since the Public Defender's Office had paid the previous invoices when submitted, there had been no prior application for an in camera determination whether the expert expenses of the first trial were appropriate or reasonable.[49] Da Ponte stated that her position was the same as Cuccia's with regard to this matter.[50]
When asked his position, the prosecutor asserted the state's view that the matter should be brought to trial as expeditiously as possible for the sake of the victim.[51] Otherwise, the state had no comment on the issue of Reeves' counsel for the retrial.
Walt Sanchez, separate counsel for Ware, objected to Ware being substituted as counsel in this case.[52] Sanchez argued that Ware could not ethically represent Reeves due to his otherwise heavy caseload, and that the re-appointment of Ware would interfere with the attorney-client relationship which Reeves had developed with the Capital Defense Project attorneys.[53] Sanchez maintained that the case could not go forward until a definite funding source was identified and that neither Ware nor the Capital Defense Project attorneys could represent Reeves until that was accomplished. According to Sanchez, there would be a violation of Peart if Ware were appointed to represent Reeves, due to his burdensome caseload as the Chief Public Defender, and there would be a violation of Wigley if the court maintained the representation of the Capital *1053 Defense Project's attorneys, because private appointed attorneys would not be assured of reimbursement of their overhead and expenses.[54]
After ascertaining that counsel had no further argument, Judge Canaday reiterated "... the Court is going to take much more significant action rather than to just stay the proceedings, as previously indicated."[55] In addition to rescheduling the trial date from June 14, 2004 to October 11, 2004, and refixing motion dates in advance of the new trial date, Judge Canaday removed Cuccia and da Ponte of the Capital Defense Project as counsel for Reeves, re-appointed Ware as lead trial counsel to represent Reeves for the upcoming motions and trial, and tentatively appointed St. Dizier as second-chair associate counsel to assist Ware.[56] The court explained:
The Court specifically notes that it was not involved in the original appointment and it's now become necessary to make significant decisions involved in not only the scheduling and hearing of this case but also with regard to funding matters because of situations involved with our Public Defenders' system.
Mr. Ron Ware who previously was assigned to a specific division no longer has that. He now has the ability to handle high-profile cases as well as cases of his choice and would indicate that whatever priority he assesses those cases is within his own province, noting that he has a staff of felony defenders that can take many of the cases that he has been assigned in order to proceed.
Him being local the hearings can be scheduled with rather short-term necessity as need be for funding issues.
The Court finds that there will be significant savings, not only with the transportation and other living expenses of out of town counsel, but additional expenses that may be saved in the close monitoring and regulating of experts as dictated under the State v. Touchet jurisprudence for the State, and Ake versusthat's spelled A-k-e.... Oklahoma jurisprudence. Further the Court has privy of the expenditures of the first trial and would set up conference with Defense counsel to go through and discuss those funding needs for the upcoming October date at Defense counsel's convenience.
The Court has also made a decision that the Public Defenders' Office, specifically Mr. Ron Ware, has an established relationship with the defendant, and it will be easy for him to walk in and take over these proceedings from the Capital Defense Project.[57]
It is this Court's position that if it is going to be called upon to secure and allocate the funding that's necessary to proceed and move this case along then it will also regulate that as the law requires.
The Court makes this decision in order to move the matter for trial. It is noted that this matter needs to be moved along, that the victims have requested that the matter be moved along, that the case has already been upset on one occasion for funding.
*1054 And the Court will seek and obtain the appropriate assistance if Defense counsel establishes that it is necessary so that the October date will be maintained.[58]
Sanchez, on behalf of Ware, objected to the court's ruling and gave notice of his intent to seek a writ of review.[59]
Ware indicated he had two additional comments which he wanted placed on the record, and which the court could consider in the nature of a request to reconsider its ruling. First, Ware stated that none of the other nine attorneys in his office had experience with defending a person accused of a crime which carried a mandatory life sentence. Consequently, he felt compelled to be involved in the trial of every case in which his office defended someone accused of a crime which carried a mandatory life sentence. Second, Ware informed the judge that the time he spends on a capital case is billed against the Capital Defense Fund Account maintained by the Indigent Defender Board, which is over and above his salary as a public defender. As Ware explained, that money would go into his office's account to fund non-capital clients.[60] Judge Canaday responded that Ware's statement about the internal accounting operations within the public defender organization were subject to its own internal ethical considerations and auditing requirements. The court did not have a comment on that aspect put forth by Ware, "as long as it's not an issue that's brought before the Court."[61]
Cuccia entered an objection, on behalf of Reeves, to the court's decision to remove him and da Ponte as Reeves' counsel.[62] However, Cuccia did not object to the court's ruling on his own behalf nor on the behalf of the Capital Defense Project. Similarly, da Ponte failed to object to the ruling on her own behalf or on behalf of the Capital Defense Project.
Judge Canaday then informed Sanchez that he could either directly seek a writ of review from the court's ruling as it now stood, or Sanchez could submit a brief on the constitutional issue regarding the attorney-client relationship in the form of a reconsideration. If the court denied the reconsideration, then the court indicated Sanchez would be allowed time to seek review of all of the issues at once, if that was what the defense deemed appropriate.[63] Sanchez asked for a clarification of the court's ruling, for the purpose of ascertaining exactly which issues the court had ruled on, for review purposes. Judge Canaday clarified that the court would remain *1055 silent on the Peart aspect of the argument because, based on what had been presented, the court did not feel that any comment was required.[64]
After being removed, Cuccia requested that the court consider his motion for reimbursement.[65] After some discussion between Cuccia, Ware, and the court, the matter was deferred to see what informal resolution could be accomplished at an Indigent Defender Board meeting scheduled for the next week.[66] Since the record is subsequently silent on the question of reimbursement of expenses for Cuccia and the Capital Defense Project, the court assumes that the matter was informally resolved with the parish Indigent Defender Board.
Counsel of Choice
In this direct appeal, Reeves argues that he was unconstitutionally denied counsel of his choice when the trial court removed Cuccia and the Capital Defense Project from representing him for the retrial and re-appointed Ware, the local Chief Public Defender. An identification of the nature of the representation of the defendant provided by Cuccia and the Capital Defense Project attorneys is necessary in order to determine precisely the constitutional rights to which Reeves was entitled.
Federal Constitutional Rights
The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." The Supreme Court has recognized the efficacy of having the assistance of counsel during the adversarial procedure of a criminal trial. Wheat v. United States, 486 U.S. 153, 158-159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988) ("... the Amendment secures the right to the assistance of counsel, by appointment if necessary, in a trial for any serious crime."), citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The assistance of counsel may be secured in various waysthe hiring of an attorney's services by the criminal defendant or by another on behalf of the defendant, the attorney's volunteering of services pro bono publico, or the court's appointment of private counsel or the public defender if the defendant is indigent.
Although "the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant...", the Sixth Amendment also encompasses "... the right to select and be represented by one's preferred attorney." Wheat, 486 U.S. at 159, 108 S.Ct. at 1697. A criminal defendant represented by an otherwise qualified attorney paid for by the defendant or paid for by someone on behalf of the defendant, or who has accepted the donation of an attorney's services, has the right to counsel of his choice. The Supreme Court has held that "the Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to *1056 represent the defendant even though he is without funds." Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624-625, 109 S.Ct. 2646, 2652, 105 L.Ed.2d 528 (1989).
However, "[t]he Sixth Amendment right to choose one's own counsel is circumscribed in several important respects." Id. The Supreme Court has stated unequivocally that a criminal defendant who has been appointed counsel has no right under the Sixth Amendment to the counsel of his choice:
The Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts. "[A] defendant may not insist on representation by an attorney he cannot afford." Wheat, supra, at 159, 108 S.Ct. at 1697.
Caplin & Drysdale, Chartered v. United States, 491 U.S. at 624, 109 S.Ct. at 2652. This distinction was again noted by the Supreme Court in United States v. Gonzalez-Lopez, 548 U.S. 140, 151, 126 S.Ct. 2557, 2565, 165 L.Ed.2d 409 (2006), where the Court held "... the right to counsel of choice does not extend to defendants who require counsel to be appointed for them."
The Supreme Court has found structural error requiring reversal, and a violation of the Sixth Amendment, where a criminal defendant has been denied his right to retained counsel of choice, or where a criminal defendant has been denied the representation of counsel of choice willing to donate his services. Gonzalez-Lopez, 548 U.S. at 150, 126 S.Ct. at 2564. Where the right to be assisted by counsel of one's choice is wrongly denied, no harmless-error analysis which inquires into counsel's effectiveness, or prejudice to the defendant, is required:
Deprivation of the right is "complete" when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received. To argue otherwise is to confuse the right to counsel of choicewhich is the right to a particular lawyer regardless of comparative effectivenesswith the right to effective counselwhich imposes a baseline requirement of competence on whatever lawyer is chosen or appointed.
Gonzalez-Lopez, 548 U.S. at 148, 126 S.Ct. at 2563.
Thus, under the Federal Constitution, a criminal defendant who has hired his own counsel, or who has counsel retained on his behalf, has a right to both effective representation and to counsel of his choice. The same is true of a criminal defendant whose counsel has volunteered his services. A criminal defendant who has been appointed counsel, whether a private attorney or a public defender, only has the right under the federal constitution to effective representation.
State Constitutional Rights
The Louisiana Constitution ensures similar rights to the assistance of counsel for a criminal defendant as those arising under the federal constitution. Louisiana Const. art. 1, § 13 provides in relevant part: "At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment." As the Supreme Court has distinguished between the extent of the federal constitutional right to counsel of choice between retained or volunteered, and appointed counsel, so too has this court distinguished between the right to counsel of *1057 choice when dealing with appointed counsel, and counsel retained or volunteering his or her services:
As a general proposition a person accused in a criminal trial has the right to counsel of his choice. State v. Leggett, 363 So.2d 434 (La.1978); State v. Mackie, 352 So.2d 1297 (La.1977); State v. Anthony, 347 So.2d 483 (La.1977). If a defendant is indigent he has the right to court appointed counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, [407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)]; State v. Adams, 369 So.2d 1327 (La.1979); City of Baton Rouge v. Dees, 363 So.2d 530 (La.1978). An indigent defendant does not have the right to have a particular attorney appointed to represent him. State v. Rideau, 278 So.2d 100 (La. 1973). An indigent's right to choose his counsel only extends so far as to allow the accused to retain the attorney of his choice, if he can manage to do so, but that right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice. State v. Jones, 376 So.2d 125 (La.1979); State v. Leggett, supra; State v. Mackie, supra.
State v. Scott, XXXX-XXXX p. 8 (La. 1/19/06), 921 So.2d 904, cert. denied, 549 U.S. 858, 127 S.Ct. 137, 166 L.Ed.2d 100 (2006), overruled in part on other grounds, State v. Dunn, XXXX-XXXX (La.1/25/08), 974 So.2d 658; citing State v. Harper, 381 So.2d 468, 470-471 (La.1980).
Similar to the federal court, this court has determined that the right to counsel of choice extends to a criminal defendant who has hired his own counsel. In addition, the right to counsel of choice extends to a defendant who has had an attorney hired for him by a collateral source. In State v. Jones, 1997-2593 (La.3/4/98), 707 So.2d 975, the defendant's father retained an attorney to represent his son. This court held that both the federal and state constitutions precluded the removal of counsel obtained through a collateral source. Id., 1997-2593 p. 3, 707 So.2d at 977.
The right to counsel of choice also extends under the state constitution to a criminal defendant for whom an attorney volunteers his legal services. State v. Sims, 2007-2216 p. 1 (La.11/16/07), 968 So.2d 721, 722 ("The right to private, nonappointed counsel of choice does not distinguish between a paid attorney and a pro bono lawyer."), citing Caplin & Drysdale, 491 U.S. at 624-625, 109 S.Ct. 2646. Although the written order accompanying the writ grant in Sims does not include the facts of the case, the court record shows that a question of the indigent status of the criminal defendant was raised immediately prior to trial. Although counsel from the public defender's office had initially been appointed to represent the defendant, immediately prior to trial, the trial judge determined the defendant did not satisfy the requirements for indigency and ordered the defendant to retain counsel. Instead, a supervising attorney at a local law school's clinical program agreed to volunteer her representation of the defendant pro bono. When the defendant appeared in court with volunteer counsel, the trial court removed volunteer counsel, ordered the defendant to hire a private, paid lawyer, and forbade the defendant from being represented by any attorney working pro bono. The court of appeal denied a writ of review. This court issued a written order, granting the defendant's writ. This court ruled that the trial court erred in removing the defendant's volunteer counsel of choice, reversed the trial court's order removing volunteer counsel and reinstated volunteer counsel's representation *1058 of the defendant. Sims, 2007-2216 p. 1, 968 So.2d at 722.
However, similar to the constitutional rights afforded under the federal constitution, under our state constitution, a criminal defendant is not entitled to choose his appointed private counsel or the appointed public defender.
Analysis
Reeves asserts on appeal that he was denied the right to counsel of his choice, that denial of this right is a structural error in his retrial, and that the re-appointment of Ware as his counsel for the retrial entitles Reeves to a reversal of his conviction and sentence, and a new trial. The defense asserts that Cuccia and da Ponte, through the Capital Defense Project, were willing to continue to represent Reeves at his retrial at no cost to the state. Considering the right to counsel of choice under federal and state law extends only to retained or volunteered counsel, the defense does not specify whether Cuccia and da Ponte were somehow retained or whether they were donating their services.
By contrast, the state argues that the nature of Reeves' initial representation by Cuccia and da Ponte through the Capital Defense Project was that of appointed counsel. Thus, the state argues, under either the federal or state constitutions, Reeves does not have the right to appointed counsel of choice. The state contends that the financial realities of the indigent defense system, and the conditions Cuccia himself placed on the continuance of his group's representation, led to the removal of Cuccia and da Ponte. In their place, the state asserts the court, in its discretion, appointed competent and qualified counsel in the person of Ware, the capital-certified local Chief Public Defender.
In order to fully comprehend the nature of the representation provided by Cuccia and da Ponte, it is necessary to understand certain aspects of the former structure of the indigent defense system in Louisiana, prior to the passage of the Louisiana Public Defender Act of 2007. Former La. R.S. 15:144 established an indigent defender board in each judicial district.[67] In order to provide counsel for indigent defendants in its judicial district, the Calcasieu Parish Indigent Defender Board selected the model of employing a chief indigent defender and such assistants and supporting personnel as the district board deemed necessary.[68] Additionally, the legislature authorized the district boards to enter into contracts with other attorneys to provide counsel for indigent defendants when necessary.[69]
*1059 Each district indigent defender board was authorized to accept, receive and use public or private grants.[70] The primary source of funding for the district boards, however, was the indigent defender fund created within each judicial district, which the district boards administered, and which was additionally composed of funds obtained through legislatively-authorized fees and direct state contributions.[71]
Another former feature of the indigent defense system was the legislature's establishment of a state-wide entity, the Louisiana Indigent Defense Assistance Board in the office of the governor, known by its acronym "LIDAB."[72] The purpose of LIDAB was to provide supplemental funds, when appropriated by the legislature, to district indigent defender boards to address specific criminal defense needs.[73] One of the specific criminal defense needs to be addressed by LIDAB was the adoption of rules for supplemental assistance for trial counsel in capital cases where the local indigent defender board was unable to provide counsel.[74] LIDAB was authorized *1060 by the legislature to develop and maintain programs to implement the guidelines for this type of supplemental assistance.[75]
The Capital Defense Project was a part of the regional capital defense program created and funded by LIDAB. As explained by defense counsel in its brief on appeal: "... Mr. Cuccia's initial involvement in the case was based through an independent capital trial office relying on staff attorneys created through Louisiana Indigent Defense Assistance Board's regional capital defense program, and not through the selection by the district court."[76] The record contains a discussion which explains the relationship even more explicitly. During a hearing on several defense motions held on September 16, 2003, prior to the first trial, Judge Quienalty, the then-presiding judge, specifically questioned Cuccia as to whether he had been hired or appointed. Cuccia responded:
Cuccia: We are an indigent counsel. We are a private non-profit organization funded by the Louisiana Indigent Defender Assistance [B]oard to primarily provide representation to indigents when there is a conflict of interest between the regular Public Defender's Office and the defendant. In this particular case, I am here with aand usually that's because there are two or more defendantsin this case, I am here with Jason Reeves because the Calcasieu Parish Public Defender's Office needed help and
Court: So, they hired you?
Cuccia: They provided the funds for all of the investigations.
Court: Okay.
Cuccia: I have notI personally have not received one penny. My program has not received
Court: I'm just trying to figure out how you got into this.
Cuccia: I just want to make sure when you say hired.
Court: Okay.
Cuccia: We're over here representing an indigent. Calcasieu Parish Public Defender's Office has funded the defense of this case.
Court: Well, did some judge appoint you?
Cuccia: Certainly Judge Minaldi [who had previously presided over the case] accepted meShe did not
Court: No, it's a very simple question. Did some judge appoint you or did you enroll at the request of our Indigent Board?
Cuccia: I volunteered at the request of the
Court: Okay.
*1061 Cuccia: Indigent Board with the approval of Judge Minaldi.
Court: Very well.
Cuccia: I don't know if she made a formal appointment or not.[77]
Cuccia maintains, and the record reflects, that the local indigent defender board funded the investigation of the case as far as it was able. Cuccia agreed to the representation, on behalf of the Capital Defense Project, at the request of the local indigent defender board. Cuccia did not receive attorneys fees from the local indigent defender board; however, the Capital Defense Project was funded, for the time period at issue, in large part, if not wholly, by the state through LIDAB and the Governor's Office.
According to Ware, the Capital Defense Project began representing Reeves on March 28, 2002. The funding hearing at which Cuccia and da Ponte were removed was held on March 23, 2004. This court takes judicial notice that, for the three year time period from July 1, 2001 through June 30, 2004, which includes the two year time period of the Capital Defense Project's involvement in Reeves' case, the Capital Defense Project of Southeast Louisiana received contracts for legal services from the Governor's office through LIDAB in the amounts of $675,000 (for Fiscal Year 07/01/01-06/30/02) and $425,000 (for Fiscal Year 07/01/03-06/30/04), for a total of $1.1 million. La. C.E. 201; see 2001/2002 Office of the Governor, Division of Administration, Office of Contractual Review Ann. Rep., "Professional, Personal, Consulting, and Social Services Contracts-Top 50 Legal Contractors 07/01/01-6/30/02;" and 2003/2004 Office of the Governor, Division of Administration, Office of Contractual Review Ann. Rep., "Professional, Personal, Consulting, and Social Services Contracts-Top 50 Legal Contractors 07/01/03-06/30/04." Post-2007 reform, the Capital Defense Project is now listed as a state-funded, regional capital conflict panel on the Louisiana Public Defender Board's website. Consequently, although not a part of the local Public Defender's Office, the Capital Defense Project, funded through LIDAB, was another arm of the indigent defense system funded by the state.[78]
With these relationships in mind, the nature of Reeves' representation by Cuccia and da Ponte becomes clear. Reeves was initially determined to be indigent and the local public defender's office was appointed as his counsel. The local district indigent defender board contracted with the Capital Defense Project, as part of LIDAB's regional capital defense program, for capital trial assistance with this case.[79] Stated another way, the state-wide supplemental assistance aspect of the state indigent defense system assisted the local arm of the state indigent defense system, which had been appointed as counsel for Reeves. Consequently, we find that the representation by the Capital Defense Project *1062 in this case was characteristic of appointed counsel.
This case is distinguishable from cases where a criminal defendant retains counsel himself or finds a collateral source willing to shoulder his representation, either through payment or a donation of services. Although the original contract between the district Indigent Defender Board and the Capital Defense Project included an amount for attorneys' fees, those attorneys' fees, if paid, would have been paid by legislatively-approved fees or direct state financing by the local district Indigent Defender Board. As it occurred, attorneys' fees were not paid through the contract, but the attorneys who represented Reeves were funded through a state-financed contract under a LIDAB program. Indeed, at the funding hearing, Ware explained the $50,000 figure for attorney fees in the original contract, as follows: "[t]hat would represent the actual attorney fees, that Mr. Cuccia and his staff would not enjoy personally but would go to his office as compensation for the time that they spent representing Jason."[80] Cuccia further explained that the additional $35,000 "was advanced out of the Capital Defense Project budget."[81]
Although defense counsel on appeal sometimes characterizes the Capital Defense Project's representation as a pro bono donation of services, trial defense counsel considered the nature of the representation to be that of appointed counsel. Cuccia told Judge Canaday:
... Although, I would point out that maybe this ismaybe we're in this case in somewhat of an odd circumstance because we did, I guess, contract with the IDB to provide this representation.
But it was only with the approval of Judge Minaldi, and specific understanding so, I always felt that there was ato a great extent, a court appointment.
I mean, a Court waswe would not have been ledJudge Minaldi wanted to pass onpass approval on it before we actually got in this case, and the arrangements that were made with the Public Defenders' Office.[82]
Sanchez, representing Ware, was correct in stating that Cuccia was a private lawyer, or at least was an attorney outside of the local public defender's staff.[83] However, Cuccia was a private lawyer who was working pursuant to a contract with the local Indigent Defender Board and who was otherwise funded by the state. Under the unique and exceptional circumstances of the interplay between the local and regional indigent defense system, the nature of Reeves' representation by Cuccia and da Ponte was characteristic of appointed counsel. As such, Reeves did not have a right to counsel of choice under either the federal or state constitutions, but only had the right to effective representation of counsel.
Having made the determination that Reeves was not constitutionally entitled to counsel of his choice, we feel we must nevertheless address whether the trial judge's removal of Cuccia and the Capital Defense Project staff, and the reappointment *1063 of Ware as counsel for Reeves, was proper. This court has previously held that the removal of counsel must be reviewed for an abuse of the trial court's great discretion. See State v. Brown, XXXX-XXXX p. 15 (La.4/12/05), 907 So.2d 1, 14, cert. denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006).
We note, primarily, the difficulty of the problem facing the district court. Cuccia's motions indicated that expenses were still owed on the first trial, and more funding, for which no source was apparent, was immediately necessary for the retrial. Indeed, Cuccia himself qualified his continued representation of the defendant when he stated:
Your Honor, our position is that we stand ready to continue with the representation of Jason Reeves, provided that we canthat the funds that we need to present the proper defense for him can providecan be provided to us sufficiently in advance of trial for us to prepare and present the type of defense that Jason Reeves is entitled to, as well as, of course, we would like the reimbursement of the $35,000 which Iwhich was advanced out of the Capital Defense Project budget.[84]
Cuccia made clear in his representations to the court that he could not continue to represent Reeves unless the financial circumstances changed and was requesting the district court's direction and intervention in resolving the matter.[85]
The record shows that all counsel participated with the district judge in discussions seeking a solution.[86] The record makes apparent that the district court's proposed solution of removing Cuccia and da Ponte and substituting Ware as appointed counsel was not a surprise to either then-current or proposed counsel. Indeed, Ware brought to the funding hearing separate counsel to represent him in his capacity as chief public defender of the district to argue against his expected substitution and reappointment. After Judge Canaday issued his ruling, neither Cuccia nor da Ponte objected to the ruling on behalf of themselves or the Capital Defense Project. Objections were lodged by Cuccia on behalf of the defendant,[87] and by *1064 Ware;[88] however, Ware's counsel made clear during argument that he would have objected to any decision of the court which resulted in Ware's appointment. Indeed, counsel for Ware made clear he would have supported the appointment of anyone other than Ware.[89]
Although Citizen gave district courts the authority to halt a prosecution until adequate funding was secured, Citizen had not yet been handed down at the time of this funding hearing. We take into consideration the fact that Reeves' initial trial had fully concluded, and the retrial was to be re-set several months into the future in any event, due to the lack of immediately-available funding. This was not a situation where counsel was substituted on the eve of trial without sufficient time to fully prepare. The district court foresaw that reappointed counsel would have adequate time to prepare a defense, especially considering that the state's entire case, with a few evidentiary exceptions, was available via the transcripts of the first trial.[90]
Moreover, the district court anticipated the appointment of qualified local counsel would facilitate prompt resolution of future funding, and other questions, that would arise in connection with the retrial. The record bears out this consideration. The district court, and everyone involved in these discussions, were well aware of the seemingly insoluble funding issues which plagued this judicial district at that time. Appointing local counsel allowed the district court to quickly set hearings for questions that arose pretrial.[91] In a status conference held on May 21, 2004, the district court indicated that every week that criminal court was to be held, the court would hold a status hearing on the Reeves case to address any impediments in a timely fashion and to resolve them.[92] In a September 15, 2004 motion hearing, the court pledged to make himself available on a "short time basis" to make certain that all defense issues were dealt with and addressed pretrial.[93]
In arguing that the desire to appoint local counsel is not a sufficient factor to overcome an attorney-client relationship, defense counsel on appeal directs us to the case of Grant v. State, 278 Ga. 817, 607 S.E.2d 586 (Ga.2005), a Georgia death penalty prosecution. In Grant, the trial court tried to impose appointed co-counsel to assist already-appointed lead counsel and to forbid volunteer attorneys from working on the case. Relying on earlier state court jurisprudence, the Supreme Court of Georgia *1065 held that the trial court failed to give proper weight to the significant relationship that existed between Grant and his lead appointed counsel and the volunteer attorneys who worked with him. Grant, 607 S.E.2d at 587.
We note, however, that the Grant case is easily distinguishable from the facts of this case. The counsel at issue in Grant were volunteering their services; thus, Grant had a federal constitutional right to counsel of his choice. Moreover, in this case we find that the desire to ensure the participation of local counsel was not the motivating factor behind Judge Canaday's ruling; rather, non-local defense counsel informed the court of their inability to proceed without a solution to the funding issue, seeking the court's intervention and direction.
We have held that counsel was appointed for Reeves. Consequently, Reeves did not have the right, under either the federal or state constitutions, to counsel of his choice. We hold that the district court's actions, in removing Cuccia and da Ponte and reinstating the appointment of Ware as counsel for Reeves, did not result in structural error in Reeves' retrial. We further find that, considering the unique and exceptional circumstances presented here, the district court did not abuse its discretion in removing Cuccia and da Ponte from representing the defendant, upon being informed that they could no longer continue their representation under then-existing conditions. We additionally find no abuse of the district court's discretion in reinstating the original appointment of the local, capital-certified Chief Public Defender as counsel for Reeves for his retrial.
Attorney-Client Relationship
In connection with the defendant's claim of a right to counsel of choice, defense counsel argues on appeal that the existing close relationship between Reeves and the attorneys of the Capital Defense Project should have been maintained. This issue was briefly raised at the funding hearing, with Ware's counsel, and Ware himself, arguing that there was a constitutional dimension to preserving an existing attorney-client relationship. However, no specific constitutional argument was made, either at the hearing, or later in a supplemental filing to the district court, despite the district court's invitation to do so.[94] After a review of the jurisprudence, we find no constitutional authority to support this aspect of the defense's argument, either in the federal or state constitutions.
The Supreme Court has rejected any claim that the Sixth Amendment guarantees a "meaningful attorney-client relationship" between an accused and his counsel. See Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610 (1983). The fact situation in Morris concerned an indigent defendant who was appointed an attorney from the public defender's office. Appointed counsel represented the defendant at preliminary hearings and supervised an extensive investigation into the case. However, shortly prior to trial, appointed counsel was hospitalized for emergency surgery and the public defender assigned a senior trial attorney in that office to take over *1066 the defendant's representation. The defendant objected at trial to his newly-appointed counsel, arguing that substitute counsel could not be as prepared as his original counsel, and refusing to aid substitute counsel in his defense. The defendant was convicted and subsequently sought federal habeas relief. Although the pro se federal habeas petition couched the alleged errors in other terms, the federal appellate court granted habeas relief, finding the Sixth Amendment guarantees a right to counsel with whom the accused has a "meaningful attorney-client relationship." Further, the federal appellate court found that the trial court abused its discretion and violated this right by denying a motion for continuance based on the substitution of appointed counsel shortly before trial. In reversing the federal appeals court ruling, the Supreme Court stated:
The Court of Appeals' conclusion that the Sixth Amendment right to counsel "would be without substance if it did not include the right to a meaningful attorney-client relationship, [citation omitted] (emphasis added), is without basis in the law. No authority was cited for this novel ingredient of the Sixth Amendment guarantee of counsel, and of course none could be."[95]
Similarly, we have found nothing in our state constitution, or in our review of state jurisprudence, which shows that a criminal defendant has a right to a particular attorney-client relationship separate from the right to counsel of choice. In Scott, supra, the defendant argued, as here, that the removal of his appointed counsel approximately one month prior to trial unconstitutionally interfered with the attorney-client relationship and violated his right to counsel of choice.[96] In Scott, a conflict developed between Scott's lead appointed counsel and second-chair appointed counsel. The district court granted lead counsel's motion and appointed new second-chair counsel over the defendant's objection. After reviewing the consistent jurisprudence holding that an indigent defendant does not have the right to choose his appointed counsel, and that lead appointed counsel had provided constitutionally-effective assistance to Scott, this court found "no interference with the attorney-client relationship and no violation of defendant's right to counsel of choice."[97] Here, we similarly find that Reeves did not have a right to choose his appointed counsel. Moreover, there is nothing in our state constitution which supports the defense's argument that a criminal defendant has a right to a particular attorney-client relationship.[98]
Consequently, there is nothing in either the federal or state constitutions which would provide Reeves with the right to maintain a particular attorney-client relationship in the absence of a right to counsel of choice.
*1067 Right to Auxiliary Services
In a related argument, defense counsel contends that Reeves was entitled to retain counsel of choice while securing auxiliary services from the state, citing to State v. Jones, 1997-2593 (La.3/4/98), 707 So.2d 975. Defense counsel's primary contention in this regard is that the district court's action, in removing Cuccia and da Ponte as counsel, and re-appointing and substituting Ware in response to Cuccia's motions for reimbursement and future funding, was neither requested nor warranted, and that less drastic options were available.
As stated previously, in Jones, the defendant's father retained counsel for his son. Although the criminal defendant did not retain counsel himself, counsel was provided to him by a collateral source; counsel was not appointed. Jones held that a defendant provided private counsel, through a collateral source, has a constitutional right to counsel of choice. In addition, the case stands for the proposition that retention of private counsel from a collateral source, at no cost to the defendant, does not remove the defendant's right to a fair trial. Thus, notwithstanding the fact that the criminal defendant has no need for appointed counsel, the defendant may still be entitled to state funding for auxiliary services, such as experts. Jones, 1997-2593 p. 4, 707 So.2d at 977. We find no violation of the precepts set forth in Jones in our review of the record of this case.
Reeves' entitlement to funding for experts was never in doubt. Reeves was declared indigent and the public defender's office was appointed to represent him. Thereafter, the public defender's office, through the district indigent defender board, contracted with a capital trial program in connection with LIDAB for Reeves' initial trial counsel. For his retrial, Reeves was represented by the local Public Defender's Office. Thus, there is no question that Reeves was entitled to state funding for expert assistance.
Moreover, the record confirms that expert assistance was afforded to him at both his first and second trials. Several motions for funding were considered in ex parte hearings and granted prior to Reeves' second trial.[99] Some of those motions involved reimbursement of experts who testified in the first trial.[100] In some cases, the expert witnesses were to be used in both trials and Judge Canaday found "[the outstanding balances were] interfering, not only with communications possibly with regard to using those experts again at a second trial, but also with Mr. Cuccia and Ms. da Ponte, as well as any other use of those experts in Louisiana defense cases." Judge Canady noted "... that many of the tests, many of the interviews, many of the expenses, will not have to be duplicated, but that there will be some additional refreshings, some reviewing of the materials, and also the appearance at [re]trial itself."[101] Ware expressed *1068 his "complete agreement with those comments."[102] The record clearly shows that Reeves was provided with expert assistance in defending himself against the charge of first degree murder and that Reeves' right to expert assistance has never been denied.
Further, we find the district court did not inject himself arbitrarily into this funding morass. This complicated and confusing situation was brought to the court's attention through defense trial counsel's motions for reimbursement and for future expenses; trial counsel properly solicited the court's aid in resolving these issues. Although defense counsel on appeal suggests the district court should have halted the prosecution going forward until adequate funds were available, as authorized by this court in Citizen, we note that Citizen had not yet been handed down at the time of this funding hearing. Even so, the record shows the district court was assured by Ware that additional funding was not available and would not be available in any foreseeable future.
The defense argued in brief, and at oral argument in this court, that the removal of Cuccia and da Ponte did not actually save the state money, since the state had to pay for St. Dizier's appointment.[103] However, the subject of the funding of St. Dizier's appointment was not raised in the district court by the defense. In fact, Ware testified at an ex parte status conference held June 22, 2004, that the IDB had sufficient funds through its Capital Defense Fund to pay St. Dizier's fee "into the next several months."[104] At a subsequent hearing, Ware explained that the Capital Defense Fund "replenishes itself each month with the monthly receipts of court cost revenue."[105] The court noted that "... the Capital Defense Fund is an ongoing account for which deposits are made on a monthly basis...."[106] For reasons not apparent from the record, Ware had not thought sufficient funds would have been available for the reimbursement of Cuccia.[107]
We note the district court fully discussed his proposed action with all counsel prior to the hearing in an attempt to reach a proper solution. There were many competing interests for the district court to consider. Paramount, of course, were the defendant's rights to a fair trial and effective counsel. The public defender's office had no solution to offer the district court, other than to suggest that someone else be appointed or that the trial be halted. Without doubt, Cuccia and da Ponte were owed reimbursement of their expenses. Future funding was, considering the lack of resources for indigent defense, necessarily, going to be an issue for the district court to address in an on-going manner, and ease of scheduling hearings to deal with the anticipated funding motions *1069 was an additional factor which the district court took into consideration. In addition, the district court also had to consider the rights of the victim's family in having this case prosecuted in a timely fashion, as well as the time limitations imposed by the Code of Criminal Procedure for bringing indicted defendants to trial.[108]
Moreover, Citizen does not stand for the proposition that ordering a halt to a trial is the only authorized remedy for a district court when adequate funds are not available to provide for an indigent defendant's constitutionally-protected right to counsel. Indeed, Citizen authorizes courts to "take other measures consistent with this opinion which protect the constitutional or statutory rights of the defendants." Id., XXXX-XXXX p. 17, 898 So.2d at 339.
Reeves was constitutionally entitled to effective counsel and a fair trial. In the circumstances presented here, we find that the solution fashioned by the district court accomplished both constitutional requirements. Reeves was appointed able and effective lead counsel in the person of the local, capital-certified, chief public defender, and able and effective associate counsel in the person of an experienced local attorney. Moreover, a third attorney who worked with the Public Defender's Office, was also enrolled as counsel for Reeves and participated in Reeves' retrial. Adequate funding was subsequently found to enable Reeves to present his defense at his retrial with expert assistance. Although the district court could have chosen a different solution from the universe of possible alternatives, we hold the measures taken by the district court here adequately protected the defendant's constitutional rights to effective appointed counsel and a fair trial.
Denial of Peart Motion
The defense contends the district court erred in re-appointing Ware at the March 23, 2004 funding hearing over his oral Peart objection, and in denying Ware's subsequent written Peart motions, based on his heavy caseload. Reeves argues he received constitutionally ineffective assistance of counsel due to Ware's heavy work load.
Facts Relevant To Peart Issue
Although the focus of the March 23, 2004 hearing was primarily the funding issue raised by defense counsel, part of the argument raised by separate counsel for Ware in support of the position that Ware should not be re-appointed to this case was that Ware's heavy caseload and administrative responsibilities would prevent him from rendering constitutionally-effective assistance of counsel. In support of this Peart argument, Ware's attorney, Walt Sanchez, proposed a stipulation as to Ware's personal pending caseload, the number of cases in which Ware would participate with other attorneys who had primary responsibility, and the administrative and supervisory duties for which Ware was responsible as Chief Public Defender. Sanchez also referred to the Rules of Professional Conduct and an ethics opinion.
At the hearing, Sanchez acknowledged that, "... given the timing of this issue, [the Peart issue] isn't full blown in front of the Court at this point."[109] After Judge Canaday ruled and substituted counsel, Sanchez specifically asked the judge if he would formally rule on the Peart issue *1070 which had been raised. The judge stated that he did not believe any comment was required on the Peart issue, based on what had been presented, and later clarified that a reconsideration of that view would only be based on "something much more substantial in black letter law."[110] At a subsequent hearing held September 15, 2004, Ware admitted that the March 23, 2004 hearing "was not a Peart issue, it was a substitution of counsel issue, so there were some references made to the Peart case and things of that sort, but it wasn't fully developed."[111]
Defense counsel raised the Peart issue in subsequent motions, hearings, and status conferences. On April 13, 2004, Ware filed a motion seeking the court's reconsideration of its March 23, 2004 order substituting counsel.[112] In addition to asking the court to reconsider its removal of Cuccia, da Ponte and Taylor as trial counsel, Ware also requested reconsideration of the portion of the court's ruling which re-appointed him as counsel, suggesting "... that current counsel will be unable to provide reasonably effective representation because of undersigned counsel's obligations to numerous other clients and his administrative duties as Executive Director of the Public Defenders' Office."[113] The district court denied the defendant's motion.[114]
Subsequently, a status conference was held on May 21, 2004.[115] At that time, Ware informed the court of his upcoming schedule as part of his continuing objection to his appointment as lead counsel to the case.[116] The district court noted that Ware made these same arguments and objections at the time of his re-appointment. The court also noted that the defense had failed to take a writ on Ware's re-appointment, and stated its belief that the defense had evidently made the strategic decision to reserve that issue for appeal. Ware did not dispute this belief.[117]
Another status conference was held on June 18, 2004.[118] Ware discussed with the court that the defense would be filing a motion to enroll an additional attorney from the public defender's office to assist with the defense of the case.[119] On June 23, 2004, a written motion to enroll Richard White, a staff attorney with the Calcasieu Parish Public Defenders' Office, was granted.[120]
Also on June 23, 2004, the defense filed a written Peart motion, asserting that Ware "has primary trial responsibility for 35 felony cases (including 1 capital rape, 5 second degree murder cases, and 10 aggravated rape cases). He is also playing a significant role in many other felony cases, that are being handled to some extent by other PDO attorneys."[121] The defense also sought to enroll separate counsel, Christine Lehmann, for the purpose of arguing the Peart motion.[122]
*1071 The district court denied the motion to enroll Lehmann as separate counsel for the Peart hearing, and declined to hear the Peart motion itself:
The Court would take notice at this time that nothing was stated in the body of this motion that was not argued or presented in court previously when new counsel was to be appointed. At that time the defendant was independently represented by Mr. Kerry Cuccia and Graham Deponte [sic]. In addition, Mr. Ron Ware and the Public Defenders' Office was independently represented by Mr. Walt Sanchez. The record speaks for itself as to the information that was presented to the Court prior to Mr. Ware and Mr. St. Dizier being appointed as counsel. It talked about caseload, it talked about a number of factors in which the Court made rulings and findings of which the Court would rely on the record at this time. Writs were not taken with regard to the Court's decision. The Court finds that this Motion to Enroll and the request for Peart information to be duplicative and moot based on the prior proceedings and determination of this Court and I will decline the appointment and I will also decline to fix a Peart proceeding in this matter.[123]
Upon Ware's request for clarification regarding the judge's refusal to fix the Peart motion for hearing, the judge stated:
Correct, until something can be demonstrated to the court in writing that would be distinguishable from what was presented at the time of appointment, I believe that was in April [sic; March] of 2004, that was distinguishable and for good cause why it was not presented there's no reason for the Court to rehash the same matters that have been discussed.[124]
Ware then explained that he was re-urging his Peart objection because, as he became more familiar with the case, he felt it was even more apparent that he could not be effective.[125] The judge stated he understood, but rejected, Ware's position, indicating anything that Ware was now saying had been said previously:
I see no reason to go back unless some new information has been obtained and that new information can be specifically given to the Court to reviewreopening an issue that you're concerned about and that there's good cause for not having that information previously. Those are the standards in order to review something that the Court feels has already been reviewed.[126]
In addition to the comments made by the court as to the merits of the Peart motion, the court noted the motion to enroll and the Peart motion were denied as having been submitted under Ms. Lehmann's signature, who was not counsel of record, but were to be made part of the proceedings as a proffer.[127]
*1072 On June 29, 2004, the defense filed a notice of its intent to seek a writ from the district court's refusal to hear the Peart motion and a writ application was subsequently filed in the court of appeal.[128] The court of appeal, in a 2-1 ruling, denied the defense's writ, stating:
There is no error in the trial court's ruling which denied the motion to enroll additional counsel for the limited purpose of litigating a Peart motion. Based thereon, we additionally find that the trial court did not err in refusing to allow the Peart motion to be filed because it was not signed by enrolled counsel.[129]
On September 3, 2004, the defense tried again, and filed another Peart motion.[130] The allegations in this motion added the information that "... despite his diligent efforts, [Ware] continues to be unable, due to his other caseload and his administrative duties, to provide fully competent and adequate representation to Mr. Reeves." The motion alleged generally that "[Ware's] personal caseload continues to be of a volume that is out of compliance with LIDAB and ABA standards for competent capital representation." Included as an exhibit was a "Declaration of Jason Reeves," requesting that Cuccia and da Ponte be placed back on the case.[131]
The state opposed the defense's Peart motion as being repetitive, pointing out that the new Peart motion was nearly identical to several previous motions filed by the defendant and ruled upon by both the district court and the court of appeal. The sole "new" issue presented in the latest motion urged the court to reinstate Reeves' former counsel for the retrial, a little over a month before Reeves' second trial was to begin, and over seven months since Ware was assigned to the case. The state urged that this latest filing was clearly a dilatory tactic, as all issues had thoroughly been fleshed out and discussed in previous motions. Further, the state noted that the defense had never sought further review from the Louisiana Supreme Court.[132]
At a hearing on the defense's second written Peart motion, held September 15, 2004, the district judge stated his appreciation of the history of the defense's Peart allegations, beginning with the March 23, 2004 hearing:
In that March of 2004 proceeding the Court I believe accepted Mr. Walt Sanchez, who appeared and made an appearance as counsel for Mr. Ron Ware. It's also noticed that Mr. Cuccia and Ms. DaPonte were present and were independent counsel for Mr. Reeves during those proceedings. In addition, the defendant was present; and, in addition, the State was present. And the Court received substantial information and argument with regard to Mr. Ware's caseload, his administrative duties, his supervisory duties, everything that is contained within the concerns espoused in the Peart motion.[133]
*1073 Judge Canaday noted that a formal, written Peart motion was submitted by the defense in June of 2004, but that he denied the motion itself based on the fact that the motion was not submitted by an attorney of record in the case. The judge noted that writs were taken from this ruling, and denied by the court of appeal.[134] Judge Canaday continued, as follows:
... on September of 2004 now the defendant has as lead counsel resubmits [sic] under his signature the same proceedings disposed of in the June 2004 and March 2004 proceedings. As stated before, the Court has taken the concerns of counsel into consideration, specifically initially at the March of 2004 reassignment proceedings and determined that the unique position of Mr. Ware would only be self-limiting. It was noted at that time Mr. Ware did not have any division assignments. He is the only capital certified public defender within Calcasieu Parish Public Defenders' office as lead counsel. He has handled other capital matters, and the other capital matters that were pending within Calcasieu Parish have been staggered to allow preparation within time constraints to Mr. Ware. Further, he has been able to pick and choose the cases he wishes to become personally involved in. It is noted that there are other felony public defenders who are assigned to specific divisions that have primary responsibility for those cases, and Mr. Ware makes those decisions on his own as to whether he wants to be involved, should appear, and supervise. The Court also notes the years of experience he has had in administrating and oversight of the Calcasieu Parish Public Defenders' Office. Further and even additionally important is the previous representation of other felony charges to this specific defendant, Mr. Jason Reeves, and the rapport and relationship that is noted by the Court in the February of 2004 trial.
Now, in totality and in looking at the standards as indicated of the facts specific, the Court would have to make this comment, that in the past six months since the reappointment the Defense team, which are three capable attorneys at this point, have effectively represented the defendant through all new areas. Motions have been filed, there's been aggressive cross-examinations, and there's been significant trial preparation both open and adversarially as well as ex parte with relations to the Court of which the record will speak for itself. The Court is clearly satisfied that there has been effective representation up to this point exceeding all Strickland v. Washington, 466 U.S. 668 [104 S.Ct. 2052] standards. I would like to note just for your concern that in this day and age it seems to be that there must be many motions and actions that are taken in order to defend all of those charged with crimes, but it is also necessary that individuals file certain motions to protect those that are even appointed to represent those defendants, and the Court acknowledges that and understands the need for those motions to be filed, Mr. Ware.
The Court will at this time as to the application of the Peart proceeding is going to deny thewill allow you to file the motion, but will deny the fixing of the motion. It is being denied as repetitious. It is also noted as res judicata and the law of the case doctrine. Nothing has changed; and, in fact, the actions of Defense counsel in the interim while these arguments and positions *1074 have been presented have demonstrated just the opposite [sic; ","] of thoroughly effective preparation. Any specifics, statistical data, that you feel the Court has not had or received will be allowed to be proffered into the record. That may be submitted since the motion is part of the record and is being denied at this time for the reasons stated....[135]
On September 24, 2004, the defense made a proffer into the record of its evidence in support of its Peart motion.[136] Three staff attorneys with the public defenders' office testified as to Ware's inability to provide training, assistance and supervision due to his heavy caseload. Ware described the administrative demands of his position, including staffing concerns that arose in his office during the time period of his re-appointment to Reeves' case. Ware testified that his caseload prevented him from providing competent representation to Reeves and the rest of his clients. Ware concluded by stating he did not think he was competent under the standards for constitutionally effective representation announced in Strickland.
In addition to this testimony, the defense proffered several exhibits into the record, including a list of Ware's cases; a listing of the mandatory life cases pending in the public defenders' office; the curriculum vitae of Dane Ciolino, the defense's expert; the ABA 10 Principles of a Public Delivery System; an ethics opinion of the American Council of Chief Defenders; and a case from a federal appellate court.
The defense took a writ to the court of appeal from the court's September 15, 2004 ruling. The court of appeal subsequently denied the writ, and a requested stay of the trial, finding the following:
There is no error in the trial court's ruling denying Defendant's September 2 [sic; September 3], 2004 Peart motion. This issue was previously raised by the Defendant, and was denied on March 23, 2004. The Defendant did not seek review of the trial court's ruling.
Further, the Defendant failed to demonstrate a significant change in circumstances, between March 23, 2004 and September 2, 2004, warranting either a hearing on his repetitive motion or the grant of relief, which was previously denied.
Additionally, the Defendant failed to submit proof regarding all of the factors enumerated in State v. Peart, 92-907 (La.7/2/93), 621 So.2d 780, which are necessary before application of a rebuttable presumption of ineffectiveness to the Public Defender's Office.
For these reasons, the Defendant's writ application is denied.[137]
Analysis
This court has previously held that "[a] claim of ineffectiveness is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on appeal." State v. Miller, XXXX-XXXX p. 25 (La.9/6/00), 776 So.2d 396, 411, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001). While it is generally true that ineffectiveness claims are considered on post-conviction, Peart held that a claim of ineffectiveness may be raised pretrial, based on counsel's ability to provide constitutionally effective counsel due to resources available and caseload concerns. In this case, the Peart motions raised pretrial dealt with the pretrial circumstances alleged, and the district court made its ruling based on those circumstances. *1075 Therefore, our analysis will evaluate the district court's pretrial ruling only. Although defense counsel on appeal has raised allegations of ineffective assistance of counsel occurring at trial,[138] those matters are relegated to post-conviction, where an evidentiary hearing may be conducted, if necessary, to determine the merits of the defendant's allegations.
In evaluating Ware's ineffective assistance claim, the district court was required to undertake a detailed examination of the specific facts and circumstances of the case. This detailed examination is necessary because there is no precise definition of reasonably effective assistance of counsel, which cannot be defined in a vacuum. Thus, of necessity, each ineffective assistance claim demands an individual, fact-specific inquiry. See Peart, 621 So.2d at 788. As stated in Peart,
... the true inquiry [for the district court] is whether an individual defendant has been provided with reasonably effective assistance, and no general finding by the trial court regarding a given lawyer's handling of other cases, or workload generally, can answer that very specific question as to an individual defendant and the defense being furnished him. Id., 621 So.2d at 788 (emphasis in original).
In reviewing a district court's decision on a claim of ineffective assistance, "we take reasonably effective assistance of counsel to mean that the lawyer not only possesses adequate skill and knowledge, but also that he has the time and resources to apply his skill and knowledge to the task of defending each of his individual clients." Peart, 621 So.2d at 789.
Procedurally, when the Peart allegations were originally raised orally, the district court determined that the defense had not made a sufficient showing for the court to make a ruling. Subsequently, the first written Peart motion was refused as not being signed by counsel of record. The second written Peart motion was denied as failing to present new or different information from the allegations already determined to be insufficient. The court of appeal, when applied to for a writ of review, found no error in these findings.
After reviewing the record and argument of counsel, we find that Ware did not provide sufficient evidence to show that his caseload was so burdensome, and the resources available to him were so limited, as to result in the delivery of constitutionally ineffective assistance of counsel. The record shows that Ware admitted that the defense's own expert indicated that Ware's caseload would not violate ABA guidelines.[139] Nor would Ware's caseload exceed the standards enunciated in the ethics opinion on which the defense relied.[140] On cross-examination, Ware admitted that he makes the decision as to those cases with which he will be involved.[141] Moreover, Ware also admitted that one of the other capital cases with which he was involved had six attorneys working on the defense.[142]
The state pointed out mistakes in the listing of Ware's caseload, including cases not going to trial when Ware had them listed, cases listed as priority cases which were not priorities, cases listed as ready *1076 for trial which were not in a posture to be tried, cases in which the defendant was not competent so could not be tried, and cases where the defendants were charged with crimes less serious than those indicated on Ware's list. The state further showed that one of the staff attorneys, whom Ware indicated needed his assistance in defending cases, had been practicing law for ten years.[143] Finally, the state revealed that Judge Canaday offered to appoint different counsel to relieve Ware's caseload burden in three other specific cases, but Ware declined.[144]
By Ware's own admission, he could select those cases, other than capital cases, for which he would represent the indigent defendants or for which he would render assistance to staff attorneys within his office.[145] Ware did not have a specific division of court for which he was responsible. Ware's caseload did not exceed ABA guidelines or the guidelines expressed in the ethics opinion proffered in evidence in support of his contention. Ware was assisted by two other attorneys in this matter. He was provided with transcripts of the first trial, attorney notes on evidence and strategy by Reeves' counsel in the first trial, and access to those attorneys should questions arise. Reeves was provided with funding for each expert witness for which the defense requested financial assistance, including scientific witnesses and a jury consultant.[146]
By contrast, the evidence submitted in Peart was much more detailed and showed, beyond doubt, the burdensome nature of the attorney's caseload and the complete lack of resources available to him in his attempt to represent his indigent clients. The public defender in Peart, Rick Teissier, presented evidence that, at the time of his appointment, he was personally handling 70 active felony cases. His clients were routinely incarcerated 30 to 70 days before he was able to meet with them. In a seven month period, Teissier represented 418 defendants. Of these, he entered 130 guilty pleas at arraignment. Teissier had at least one serious case, defined as an offense necessarily punishable by a jail term which may not be suspended (including first degree murder, second degree murder, aggravated rape, aggravated kidnapping, armed robbery and possession of heroin), set for trial for every trial date during that seven month period. Teissier's public defender's office only had enough funds to hire three investigators to assist in the investigation of 7000 cases annually in ten sections of court. Teissier presented evidence that in a routine case, he received no investigative support at all. The public defender's office had no funds for expert witnesses; its library was inadequate. Peart, 621 So.2d at 784.
We find the circumstances which were confronting Ware are easily distinguishable from the circumstances with which attorney Teissier had to contend as public defender in Peart. Moreover, our own review of the record shows *1077 that Reeves' counsel acted professionally and knowledgeably throughout the pretrial proceedings. Counsel's representation, especially when challenging the scientific evidence presented by the state, showed tremendous preparation and skill. We find no error in the district court's ruling which held that Ware failed to provide sufficient evidence to show that his caseload was so burdensome, and the resources available to him were so limited, as to result in the delivery of constitutionally ineffective assistance of counsel. See also State v. Lee, 2005-2098 p. 42-43 (La.1/16/08), 976 So.2d 109, 138, cert. denied, ___ U.S. ___, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008).
Denial of Motion for Continuance
The defense contends that the district court's denial of a motion for continuance, filed a week before trial, rendered Reeves' right to counsel "an empty formality."[147]
The record shows that the district court originally upset the date for the retrial at the March 23, 2004 hearing due to the issue of lack of funding. At that time, a new date for the retrial was set for October 12, 2004. Consequently, Ware and St. Dizier, later joined by White, had approximately six and a half months to prepare for Reeves' retrial. The record shows that the defense filed a motion for continuance on October 5, 2004;[148] and an expedited hearing on the motion was held on October 6, 2004.[149]
At the hearing, Ware and St. Dizier argued they had not had sufficient time to prepare, that the case involved complicated issues which required more analysis, that they had recently discovered a missing box of information provided by former counsel, and that, in St. Dizier's case, on-going concerns with ill and elderly parents had prevented him from completing his preparation.[150] White added that DNA test results were outstanding, but were expected within the next week.
The district court denied the defense motion for continuance, stating that the court had carefully monitored the case since its reassignment to original counsel.[151] After reciting the test for ineffective assistance of counsel in Strickland v. Washington,[152] Judge Canaday indicated that the defense fears of ineffectiveness to date were premature: "[u]p to this point the Court cannot say that there's been any deficiency nor has [sic] any specific deficiencies been pointed out, only some possibilities that may occur which may or may not be an issue further down the road."[153] The court noted the defense had aggressively challenged new issues and evidentiary matters raised by the state.[154] In acknowledging that the defense was currently in a pretrial posture, Judge Canaday commented:
*1078 While the Defense team may not feel they are ready to proceed, that is based on an internal assessment and is not consistent with the Court's review of both the adversarial proceedings as well as the ex parte proceedings of which the record will speak for themselves on a number of occasions.[155]
In reviewing the guidelines adopted by the American Bar Association relating to the performance of defense counsel, and considered by the Supreme Court in reviewing claims regarding effectiveness of counsel in a capital case, the district court found that each factor was satisfied by defense counsel.[156] Judge Canaday noted that Ware had established a relationship with the defendant, both through representation on Reeves' simple escape case and upon Ware's being reappointed to the capital representation. The district judge stated that, not only had defense counsel indicated on the record that they had discussed matters with their client on a number of occasions, defense counsel also brought to the court's attention that they had taken advantage of the unique opportunity to discuss the case with prior counsel on several occasions.[157] To the extent that the judge was aware of the defense's investigation, the district court was satisfied that a complete and thorough investigation was being conducted. Important to this consideration was the defense's knowledge of and access to the state's complete first trial and the retention of the same experts. Although the district court had been informed for the first time about the missing file box, the court believed the defense had sufficient time to develop an appropriate mitigation strategy, considering the independent work the defense had already made on those issues.[158] As far as the factor of the defense counsel's caseload, Judge Canaday deferred to the record of the March 23, 2004 hearing and the information conveyed in the proffer of September 24, 2004 as to Ware's unique position and workload.[159] Finally, the court was aware of "no stone that has been left unturned by the Defense team up to this point leading up and to jury selection and ultimately trial."[160] The district judge denied defense counsel's motion for continuance, filed a week before trial was to commence, finding the motion had no merit.[161]
This Court has consistently held that the decision whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion. La.C.Cr.P. art. 712;[162]State v. Turner, XXXX-XXXX p. 1 (La.2/8/08), 974 So.2d 12; State v. Blank, XXXX-XXXX p. 9 *1079 (La.4/11/07), 955 So.2d 90, 140, cert. denied, ___ U.S. ___, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007). Blank additionally noted that this court "generally declines to reverse convictions even on a showing of an improper denial of a motion for a continuance absent a showing of specific prejudice." Id.
We find no abuse of discretion in the district court's denial of the defense motion for continuance. Defense counsel had almost seven months to prepare for Reeves' retrial. For four and a half months of that time period, the defense additionally had available the transcripts and evidence consisting of the entire first trial presented by the state, information and materials compiled by counsel for the first trial, and the opportunity to confer with prior counsel. The testimony at the motion hearing shows that the defense availed itself of those advantages, consulting with prior counsel on more than one occasion and even requesting additional assistance from other defense entities. The record shows that the district court closely monitored the case, holding a status hearing every week to address any impediments in a timely fashion and to resolve them as they arose.[163] Thus, the district court had a more extensive knowledge of counsel-preparedness than in the typical case.[164] We find the district court carefully considered the circumstances of this case in making its ruling and we find no abuse of discretion in its denial of the defense motion for continuance. Further, in our review of the record, we find no example of specific prejudice suffered by the defendant as a result of the denial of this motion for continuance.[165]
Conflict of Interest
The defendant contends that Ware had a conflict of interest in representing him on the first degree murder charge. The basis for this contention is the fact that Ware had an actual conflict of interest in his representation of Reeves on the separate escape charge, which ultimately resulted in the reversal of that conviction. In a misleading argument, which confuses the records of each case, defense counsel on appeal cites to attorney statements found in a hearing within the escape case, and information disclosed in the Jackson hearing in the present case, as support for his contention: (1) that Ware had a conflict of interest in this case; (2) that Ware informed the court of a conflict of interest in this case; and (3) that Ware objected on the record in this case to a conflict of interest. A review of the record, and of the court of appeal's reported decision reversing Reeves' conviction on the escape charge, contradict these meritless implications.
Attempted Simple Escape Charge
While awaiting trial on the instant first degree murder charge, Reeves and another prisoner tried to escape from the *1080 Calcasieu Correctional Center.[166] Reeves was charged with attempted simple escape.[167] Ware was appointed to represent him on that charge. At that time, Cuccia and da Ponte represented Reeves on the first degree murder charge.
Within the escape matter, Ware filed a motion on Reeves' behalf for the appointment of "conflict-free counsel," asserting that the public defender's office had a conflict of interest in representing Reeves on the escape charge due to the fact that the public defender's office represented many of the inmates at the correctional center where Reeves was held.[168]
A hearing was held on Ware's motion on February 4, 2004, and the transcript of that hearing within the escape prosecution was, for unknown reasons, placed into the record of the first degree murder case.[169] At the hearing, Ware asserted that Reeves' co-defendant on the escape charge, for a period of time, as well as other prisoners housed in the facility from which Reeves tried to escape (and thus potential witnesses at the trial on the escape charge), were clients of the public defender's office.[170] Ware asserted that, if new counsel were not appointed for Reeves, the public defender's office would be put in the position of cross-examining its present or former clients while defending Reeves on the escape charge. Ware urged caution in the court's ruling on the conflict motion, knowing that a conviction on the escape charge would likely be used in the penalty phase of Reeves' pending prosecution for first degree murder. Should the escape conviction be later reversed, there might be implications for a death sentence obtained with the introduction of evidence regarding the escape conviction. After hearing the arguments of counsel, the district court denied the motion, stating that any potential conflicts with specific witnesses could be dealt with at the trial of the escape charge.[171]
During the trial on the escape charge, the state called as a witness inmate Kevin Courville, who was a former client of the public defender's office. Several attorneys in that office represented Courville on several different charges, including Ware. Ware again raised the issue of conflict of interest in the trial of the escape charge, complaining that he would have to cross-examine a former client. The district court found an actual conflict of interest, but allowed the trial on the escape charge to continue after Courville waived his attorney-client privilege. Reeves was convicted of attempted simple escape.
On appeal, the court of appeal reversed Reeves' escape conviction and vacated the sentence.[172] The Third Circuit determined that, having found an actual conflict of interest, the trial court was required to take the proper steps to protect Reeves' right to effective assistance of counsel. The appellate court held that the conflict was not the witness' to waive; rather, the only proper recourse to protect Reeves' right to effective counsel was to appoint new counsel who did not have a conflict of interest with the state's witness. The court of appeal did not reverse Reeves' *1081 conviction for attempted simple escape until after his retrial for first degree murder.
First Degree Murder Charge
At the March 23, 2004 hearing at which the district court reappointed Ware to represent Reeves in his retrial, and in hearings held thereafter, the court noted that Ware and Reeves had an attorney-client relationship based on Ware's representation of Reeves on the attempted simple escape charge.[173] At the time of his reappointment, Ware announced to the court that he knew of no conflict of interest which would prevent him from representing Reeves on the first degree murder charge.[174]
The state gave the defense pretrial written notice of its intention to use the attempted simple escape conviction as evidence of Reeves' character and propensities in the penalty phase, should a penalty phase become necessary upon Reeves' conviction on the first degree murder charge.[175] A pretrial hearing was held to determine what information the state would be allowed to admit into evidence on Reeves' prior convictions. At that time, then-defense counsel da Ponte indicated at the hearing that Ware, whose office represented three of the possible inmate witnesses on the escape charge, informed her that he was advising his clients to assert their Fifth Amendment rights and would not allow da Ponte to speak to the inmates on behalf of Reeves.[176] At the conclusion of the hearing, the district court ruled that the state's evidence of Reeves' attempted simple escape conviction would be admissible in the penalty phase of the first degree murder trial.[177]
Reeves' first trial did not hold a penalty phase because the jury failed to reach a unanimous decision on guilt. Consequently, there was no mention of the escape conviction in Reeves' first trial. Although the evidence of the escape conviction was ruled admissible prior to the retrial of Reeves' first degree murder charge, the state, perhaps anticipating the reversal of the escape conviction, refrained from introducing any evidence of that escape conviction in the penalty phase on retrial.
Analysis
As a general rule, Louisiana courts have held that an attorney laboring under an actual conflict of interest cannot render effective legal assistance to the defendant whom he is representing. State v. Cisco, 2001-2732 p. 17 (La.12/3/03), 861 So.2d 118, 129, cert. denied, 541 U.S. 1005, 124 S.Ct. 2023, 158 L.Ed.2d 522 (2004). An actual conflict of interest has been defined, as follows:
If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interest of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to the other client.[178]
The issue of conflicting loyalties may arise in several different contexts,[179] but may include the circumstance "where an attorney *1082 runs into a conflict because he or she is required to cross-examine a witness who is testifying against the defendant and who was or is a client of the attorney." Cisco, 2001-2732 p. 17, 861 So.2d at 129, citing State v. Tart, XXXX-XXXX p. 19 (La.2/9/96), 672 So.2d 116, 125, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996).
If the issue of counsel's alleged conflict of interest is raised in a pretrial setting, the district court has two options: "appoint separate counsel or take adequate steps to ascertain whether the risk of a conflict of interest is too remote to warrant separate counsel.... Failure to do one or the other in a case in which an actual conflict exists requires reversal." Cisco, 2001-2732 p. 17, 861 So.2d at 130. If the issue of counsel's alleged conflict of interest is not raised until after trial, "the defendant must prove that an actual conflict of interest adversely affected his lawyer's performance." State v. Kahey, 436 So.2d 475, 484 (La.1983). Because the prejudice to the defendant may be subtle, even unconscious, "where the conflict is real, a denial of effective representation exists without a showing of specific prejudice." Id., 436 So.2d at 485.
The first step in the analysis of an alleged conflict of interest raised either pretrial or post-trial is whether an actual conflict of interest existed. We find it to be unnecessary to determine the timing of the challenge in this case because we find that Reeves fails to prove that his counsel labored under a conflict of interest while representing him for first degree murder.[180] There was no actual conflict in Ware's representation of Reeves in the guilt phase of the first degree murder trial because Ware was not called upon to cross-examine any of his former or current clients in the state's prosecution. Furthermore, there was no actual conflict of interest in the penalty phase because the state did not present evidence of Reeves' prior conviction for attempted simple escape. Even if the state had presented evidence of this prior conviction, and a former or current client of Ware had been called to testify by the state, the district judge would have had available to him the alternative remedy of having second chair counsel, who was not similarly conflicted, conduct the cross-examination of those witnesses. See Cisco, 2001-2723, p. 25, 861 So.2d at 134.
The nature of Ware's conflict of interest in the escape trial was based on the fact that the state called, as a witness in the escape trial, a former client of Ware's. The conflict of interest in that trial had nothing to do with Ware's relationship with Reeves per se. Consequently, defense counsel on appeal cannot bootstrap *1083 Ware's conflict of interest in the escape trial, based on Ware's representation of other indigent client witnesses in that representation, to Ware's representation of Reeves on the first degree murder charge, based on an argument that "once conflicted, always conflicted." Since no actual conflict of interest ever arose in his first degree murder trial, Reeves fails to prove reversible error in this assignment of error.
Finding that none of the assignments of error raised by the defendant constitute reversible error, we now review the record to determine if the sentence of death imposed in this case is constitutionally excessive.
CAPITAL SENTENCE REVIEW
Article 1, § 20 of the Louisiana Constitution prohibits cruel, excessive, or unusual punishment. La.C.Cr.P. art. 905.9 provides that this court shall review every sentence of death to determine if it is excessive. The criteria for review are established in La. Sup.Ct. Rule 28, § 1, which provides:
Every sentence of death shall be reviewed by this court to determine if it is excessive. In determining whether the sentence is excessive the court shall determine:
(a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and
(b) whether the evidence supports the jury's finding of a statutory aggravating circumstance, and
(c) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
(a) Passion, Prejudice or any other Arbitrary Factors
The defendant argues the removal of the attorneys of the Capital Defense Project and the re-appointment of the local Chief Public Defender as his counsel in the retrial of this matter resulted in the death penalty being wantonly, freakishly and arbitrarily imposed. Our analysis of the defendant's assignments of error with regard to counsel issues, discussed in the main opinion, has found that this was not so. In other assignments of error, discussed in the unpublished appendix, the defendant urges that arbitrary factors were introduced into both the culpability and penalty phases of trial. We have analyzed each assignment of error under established principles of law and determined that each issue raised was without merit.
Further, nothing in the record suggests prejudice was an issue in the trial. Defendant, an adult white male, raped and stabbed to death a 4 year old white female child and received a sentence of death. Both the defendant and the victim were local residents in a small community. The jury which determined culpability and sentence was selected from another jurisdiction, and consisted of 7 white jurors and 5 black jurors, 7 men and 5 women. The jury venire was questioned thoroughly to discover instances of prejudicial pretrial publicity.
In the Uniform Capital Sentence Review, the district judge noted that, during specific portions of the trial, one or more jurors became visibly emotional. Despite this observance, the trial judge concluded: "[w]hile noting the brief emotional incidents, it is the Court's opinion and observation that passion, prejudice or arbitrary factors did not influence the jury in imposing sentence, but were human reaction to fact situations."[181] Our independent review *1084 of the record finds no indicia of improper passion, prejudice or arbitrariness.
(b) Statutory Aggravating Circumstances
The jury in its verdict found the following aggravating circumstances:
(A) the offender was engaged in the perpetration or attempted perpetration of aggravated rape (La.C.Cr.P. art. 905.4(A)(1));
(B) the victim was under the age of twelve years (La.C.Cr.P. art. 905.4(B)(10)); and
(C) the offense was committed in an especially heinous, atrocious, or cruel manner (La.C.Cr.P. art. 905.4(A)(7)).[182]
Pursuant to La.C.Cr.P. art. 905.3, a jury need find only one aggravating circumstance in order to consider imposing a sentence of death.[183] It is undisputed that the victim, M.J.T., was under the age of 12 years. Consequently, the evidence undeniably supports the jury's finding of that statutory aggravating circumstance, and the sentence of death is adequately supported by the existence of an aggravating factor.
Although we could end our analysis of whether the evidence supports an aggravating circumstance at this point, we find the evidence fully supports the other aggravating circumstances unanimously found by the jury, as well. Rape is defined as: "the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person's lawful consent." La. R.S. 14:41(A). Aggravated rape is defined at La. R.S. 14:42, in pertinent part:
§ 42. Aggravated rape
A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim's age shall not be a defense.
As demonstrated by the jury's verdict during the guilt phase of the trial, the state presented sufficient evidence to prove beyond a reasonable doubt that defendant was engaged in the perpetration of the aggravated rape of a child who was under the age of 12 when he killed this four year old victim. As previously stated, sufficiency of the evidence was not urged as an assignment of error in this appeal. Indeed, appellate defense counsel, during oral argument in this court, described the state's evidence against the defendant as "overwhelming." We agree.
In the guilt phase of trial, the jury learned that the defendant admitted to abducting M.J.T. and taking her to an isolated area where he began to molest her. Although he claimed that he could *1085 not recall what transpired thereafter, he admitted that he came to himself, alone, at his vehicle, with his pants unzipped and his pocket knife missing. The brutally-assaulted body of M.J.T. was found in the isolated area described by the defendant. The evidence showed she had been anally raped and repeatedly stabbed. Expert forensic analysis matched the semen obtained from a rectal swab of the victim to Reeves' DNA profile, with a statistical probability of 1 in 256,000,000,000 (trillion). In addition, fibers consistent with the victim's clothing were found in the defendant's car. A man-trailing dog alerted to the passenger side of the defendant's vehicle after receiving a scent exemplar of the victim. We find the evidence supports the jury's unanimous finding that the defendant killed M.J.T. during the perpetration or attempted perpetration of an aggravated rape.
Finally, this court "has given the statutory aggravating circumstance of heinousness a narrow construction, requiring `that to be valid there must exist elements of torture, pitiless infliction of unnecessary pain or serious bodily abuse prior to death.'" State v. Manning, XXXX-XXXX p. 67-68 (La.10/19/04), 885 So.2d 1044, 1103, cert. denied, 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005); see also State v. Brogdon, 457 So.2d 616, 630 (La.1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862 (1985). "Torture requires evidence of serious physical abuse of the victim before death." Manning, XXXX-XXXX p. 69, 885 So.2d at 1104; State v. Sonnier, 402 So.2d 650, 659 (La. 1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983). In addition, "[t]his Court has also held that the murder must be one in which the death was particularly painful and one carried out in an inhumane manner." Manning, XXXX-XXXX p. 68, 885 So.2d at 1103. A victim's "awareness of impending doom" is relevant to a finding of heinousness. Manning, XXXX-XXXX p. 70, 885 So.2d at 1104.
During the guilt phase of the trial, the jury was exposed to the exact manner in which the defendant inflicted the fatal wounds upon M.J.T. The 4 year old victim was stabbed 16 times. The victim's hands showed defensive wounds, revealing her awareness of the assault, and her attempt to protect herself. The victim's neck was cut for two-thirds of its entire circumference. M.J.T.'s legs were scraped, showing she had been dragged. Although she sustained multiple stab wounds in the heart, the coroner testified that she survived for some time despite this incredible trauma.[184] We find the evidence presented fully supports the jury's unanimous finding of the remaining statutory aggravating circumstance, *1086 and that the offense was committed in an especially heinous, atrocious or cruel manner.
(c) Proportionality to the Penalty Imposed in Similar Cases
Federal constitutional law does not require a proportionality review. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). Nonetheless, La. Sup.Ct. R. 28 § 4(b) provides that the district attorney shall file with this court a list of each first degree murder case in the district in which the sentence was imposed after January 1, 1976. This court reviews death sentences to determine whether the sentence is disproportionate to the penalty imposed in other cases, considering both the offense and the offender.
The Sentence Review Memorandum submitted by the state reveals that, since 1976, sixty-eight defendants have been charged with one or more counts of first degree murder in the Fourteenth Judicial District. Of that number, nineteen have proceeded to trial on the charge of first degree murder.[185] Of those nineteen first degree murder prosecutions, juries have returned verdicts of guilty as charged and a sentence of death on nine occasions.[186] Two of those convictions have been reversed and are awaiting retrial.[187] In six of those convictions, the death sentence has been reduced to a life sentence on appeal or on federal habeas review, or the defendant was found to be mentally retarded or incompetent to assist in his appeal.[188] One of the nine defendants who was sentenced to death has been executed.[189]
From these facts, the defendant argues that the death penalty in the Fourteenth Judicial District is imposed in a wanton and freakish manner, considering the small number of cases in which a jury in that jurisdiction actually imposes death.[190]*1087 However, we note that the vast majority of cases which have been indicted as a first degree murder in this jurisdiction involve a killing during either a robbery or a drugrelated offense.[191] Children have been the victims in only four of the sixty-eight first degree murder indictments. Only one of the cases with a child victim has facts comparable with the instant case, State v. Langley.[192] After an involved case history, Langley is currently awaiting retrial.
Given the scarcity of comparable cases in Calcasieu Parish, this court has held that we may look beyond the judicial district in which the sentence was imposed and conduct the proportionality review on a state-wide basis. A state-wide review of cases reflects that jurors find the death penalty appropriate in cases in which the victim is a young child and where the murder is committed during the perpetration or attempted perpetration of an aggravated rape. See State v. Connolly, XXXX-XXXX p. 19 (La.7/1/97), 700 So.2d 810, 823 (and cases cited therein, XXXX-XXXX p. 19 n. 11, 700 So.2d at 823, n. 11).
The Uniform Capital Sentence Report ("UCSR") and the Capital Sentence Investigation Report ("CSIR") indicate the defendant, Jason Reeves, is a white male born on January 8, 1975. He was 26 years old at the time of the offense. Defendant is unmarried and has no children or other dependents. He was living with his mother at the time he murdered M.J.T.
Reeves is one of three children born to the on-again, off-again common law union of Judy Ann Doucet and Larry Manuel Reeves. The defendant grew up in the rural community of LeBleu Settlement near Lake Charles and Iowa, Louisiana. Reeves' parents separated for a significant period of time during Reeves' early childhood, during which time his mother married Dennis Mott, whom Reeves' mother described as emotionally abusive to her and her children.
One of Reeves' siblings, Patricia Renee, was killed in a tragic accident in 1986, when Reeves was 9 or 10 years old. His other sibling, Ronald Wayne, is currently serving a life sentence at the state penitentiary for a murder he committed in 1994. Reeves was sexually abused by a friend of the family, George Reed, when he was 14 years old. Reed was charged with the aggravated rape of Reeves, but was allowed to plead guilty to aggravated crime against nature.
*1088 Reeves' parents indicated Reeves suffered from headaches and black outs from the time he was a small child but denied any mental health problems. He is of medium intelligence, with an IQ within the 70 to 100 range. Reeves dropped out of school before completing the 7th grade, where he was a below average student academically and a disciplinary problem. He has not obtained a GED. He has no other formal education or job training.
Reeves' past employment history is described in reports generally as "various labor positions" of unknown duration. For an unknown period of time, Reeves worked as a deckhand for an oil field related company. He was working as an insulator for an insulation company at the time he murdered M.J.T.
At trial, the defense presented extensive evidence of Reeves' character and behavioral disorders, both to challenge the validity of the confession and in the penalty phase as mitigation. According to an expert forensic psychologist, Reeves suffers from major depression and mixed personality disorder, with borderline and anti-social personality traits. Another defense expert related that the defendant exhibits emotional instability, volatile interpersonal relationships, anger, mood swings and impulsivity. However, Reeves does not suffer from a mental disease or defect which would prevent him from being able to distinguish right from wrong.
Reeves had a prior criminal history. The UCSR and CSIR relate that Reeves had two juvenile adjudications for burglary, one occurring June 11, 1991, and the other occurring June 17, 1991. On October 10, 1991, he was adjudicated a delinquent and sentenced to four years at a juvenile detention facility.[193] His adult record includes a conviction for indecent behavior with a juvenile, which occurred on January 3, 1996. He was sentenced to four years hard labor, with three years of the sentence suspended. His probation for this offense was revoked on May 5, 1997, when he pleaded guilty to another charge of indecent behavior with a juvenile, with this offense occurring on March 29, 1997. He was sentenced to four years and was released from incarceration on March 29, 2001, after serving the entirety of his sentence. The CSIR shows that at the time the report was completed, Reeves had two pending charges for obscenity, as well as simple battery and criminal trespass. As previously stated within this opinion, Reeves' conviction for attempted simple escape was reversed on appeal.
In the UCSR, the trial judge noted, in answer to whether the sentence is disproportional: "As to comparing this case with other cases, this is clearly the worst factual case scenario presented to this Judge to date."[194] A comparison of this case with other, similar, first degree murder cases in the state as a whole convinces this court that the death sentence imposed in this case is not a disproportionately harsh sentence, considering the offense and the offender.
DECREE
For the reasons assigned herein, the defendant's conviction and sentence are affirmed. In the event this judgment becomes final on direct review when either: *1089 (1) the defendant fails to petition timely the United States Supreme Court for certiorari; or (2) that Court denies his petition for certiorari; and either (a) the defendant, having filed for and been denied certiorari, fails to petition the United States Supreme Court timely, under their prevailing rules, for rehearing of denial of certiorari; or (b) that Court denies his petition for rehearing, the trial judge shall, upon receiving notice from this court under La.C.Cr.P. art. 923 of finality of direct appeal, and before signing the warrant of execution, as provided by La. R.S. 15:567(B), immediately notify the Louisiana Public Defender Board and provide the Board with reasonable time in which: (1) to enroll counsel to represent defendant in any state post-conviction proceedings, if appropriate, pursuant to its authority under La. R.S. 15:169; and (2) to litigate expeditiously the claims raised in that original application, if filed, in the state courts.
AFFIRMED.
NOTES
[*] Calogero, C.J., retired, recused. Chief Justice Calogero recused himself after oral argument and he has not participated in the deliberation of this case.
[1] La. Const. art. 5, § 5(D) provides in pertinent part:
(D) Appellate Jurisdiction. In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if ... (2) the defendant has been convicted of a capital offense and a penalty of death actually has been imposed.
[2] The record of this case consists of 44 volumes (hereinafter Vol. 1-44), a 4-volume supplement (hereinafter 1st Supp.Vol. 1-4), a 1-volume supplement (hereinafter 2nd Supp.), exhibits (hereinafter identified as Ex. # x), and a box labeled "All Documents Under Seal" which contains numerous documents filed under seal and transcripts of ex parte hearings. Reference in this opinion will be made to the volume number, if any; the page number within the numbered volumes and supplements; the exhibit and its identifying number; and/or any other identifying information for the documents filed under seal or ex parte.
[3] Public disclosure of the name of a juvenile crime victim, when the crime results in the death of the victim, is not prohibited by La. R.S. 46:1844(W) (which seeks to ensure the confidentiality of crime victims who are minors and victims of sex offenses). Nevertheless, throughout this opinion the victim and her family will be identified only by their initials.
[4] This initial questioning from 10:45 p.m. until 12:40 a.m. was, in fact, a polygraph examination to which Reeves agreed to submit. After taking the test, Reeves overheard or was told that he had failed. Although one of the detectives testifying at trial made a brief comment, unresponsive to questioning, about the fact that Reeves took a polygraph examination, the jury was not informed of the lie detector test's results, nor was the fact that Reeves underwent a polygraph examination otherwise disclosed. The brief mention of the fact that Reeves submitted to a polygraph examination is discussed in Assignment of Error 12 in the unpublished appendix.
[5] A key code was necessary to enter the area but not to exit.
[6] Vol. 39, p. 9549.
[7] At trial, the state presented evidence in the form of a map which showed the close proximity of the various locations involved in the case. The McFatter Trailer Park is 3 miles from the Moss Bluff school, where the defendant was seen prior to M.J.T.'s disappearance. LeBleu Cemetery is 3.8 miles from the bridge on Charles Breaux Road. The bridge is 18.3 miles from the defendant's house. The defendant's house is 8.2 miles from the cemetery. From the defendant's house to the trailer park to the cemetery is 8.2 miles.
[8] A latent handprint was found on a palmetto leaf along the trail in the woods near the cemetery, approximately 30 yards from where the body was discovered. A fingerprint examiner later examined the print and testified that the print did not have sufficient detail to make an identification. However, the expert was able to eliminate the defendant as the source of the print.
[9] Vol. 39, p. 9728.
[10] Vol. 1, p. 235. Although Reeves was initially indicted for first degree murder and aggravated kidnapping, at a status conference held on May 21, 2004, prior to the retrial, the state nol prossed docket number 20180-01, which had charged Reeves with kidnaping the victim. Vol. 11, p. 2656; Vol. 15, p. 3635.
[11] M.J.T.'s neck had a circumference of 9 ½ inches. Her neck was cut 6 1/4 inch around.
[12] Vol. 43, p. 10580.
[13] In an effort to satisfy its constitutional mandate to "provide for a uniform system for securing and compensating qualified counsel for indigents," see La. Const. art. 1, § 13, the legislature implemented statewide standards and guidelines for indigent defense through the Louisiana Public Defender Act of 2007. See Acts 2007, No. 307, eff. August 15, 2007; and La. R.S. 15:141-184. None of the provisions of the 2007 Act are at issue here.
[14] The history of the amendment of these two statutes is set out fully in Citizen, XXXX-XXXX p. 8-10, 898 So.2d at 331-333. Briefly, in State v. Craig, 1993-2515 (La.5/23/94), 637 So.2d 437, this court held that the extant version of La. R.S. 15:304, governing expenses paid by the parishes, could be used as a source of supplemental funding for counsel and expert witness fees in cases in which the resources of the local Indigent Defender Boards were exhausted. Three months after Craig was handed down, the legislature amended the statute. La. R.S. 15:304, as amended in 1994, added the following provision: "Nothing in this Section shall be construed to make the parishes ... responsible for the expenses associated with the costs, expert fees, or attorney fees of a defendant in a criminal proceeding." In the same legislation, the legislature deleted language from an earlier version of La. R.S. 15:571.11(A)(1)(a), which had formerly provided for the parish criminal court fund to pay the expenses of attorneys appointed to represent indigent persons under any public defense program.
[15] Vol. 13, p. 3141.
[16] Vol. 13, p. 3143.
[17] See Vol. 13, p. 3145. Ware represented Reeves at a hearing on the State's response to the defense motion for discovery and inspection held on March 13, 2002.
[18] An affidavit by Ronald Ware, attached as an exhibit to a motion filed under seal, indicates that Cuccia, along with other attorneys and investigators on his staff, represented the defendant beginning March 28, 2002. See Motion To Stay Proceedings For Lack Of Funds To Provide A Competent Defense, date-stamped March 25, 2004, Exhibit B-Affidavit of Ronald Ware, Box Labeled "All Documents Under Seal." The record shows that Cuccia filed a Motion to Enroll as counsel of record on April 11, 2002. Vol. 3, p. 594. The motion was granted on that same date by Judge Minaldi, who was then the presiding judge. Graham da Ponte filed a Motion to Enroll as counsel of record on July 29, 2002. Vol. 4, p. 941. The motion was granted on August 5, 2002. Id.
[19] See generally Vol. 1, p. 59-109. The court minutes from the first trial reflect that the jury deadlocked when it was unable to reach a unanimous verdict at the guilt phase; 11 jurors would have found the defendant guilty of first degree murder and 1 juror would have found the defendant guilty of second degree murder. See Vol. 1, p. 109; see also Vol. 11, p. 2632.
[20] See Motion To Stay Proceedings For Lack Of Funds To Provide A Competent Defense, date-stamped March 25, 2004, Exhibit A-Letter dated November 25, 2003 from Kerry Cuccia to Ronald Ware, Box Labeled "All Documents Under Seal."
[21] The defense filed motions entitled "Motion for New Trial Date," "Motion To Determine Source Of Funds To Provide Adequate Defense for Funding," and "Motion To Provide Funds Owed."
[22] See Motion To Stay Proceedings For Lack Of Funds To Provide A Competent Defense dated March 8, 2004, Box Labeled "All Documents Under Seal."
[23] The question whether Judge Canaday's ruling removing counsel and substituting originally-appointed counsel had a retaliatory basis is negated by the fact that Judge Canaday did not preside over Reeves' first trial and met Cuccia and da Ponte for the first time at the March 23, 2004 hearing.
[24] 1st Supp.Vol. 4, p. 817.
[25] Id.
[26] Id.
[27] Id., p. 818.
[28] Id., p. 818-819.
[29] Id., p. 819.
[30] Id., p. 819. Ware clarified the record at this point to state that the decision to contract out the case to the Capital Defense Project was actually made by the parish's Indigent Defender Board. 1st Supp.Vol. 4, p. 819-820.
[31] Id., p. 821.
[32] Id., p. 823.
[33] Id., p. 823-824.
[34] Id., p. 824.
[35] Id.
[36] Id., p. 824-825.
[37] We note that Ware testified in a funding hearing in the Citizen case held a little over a month before the hearing held in Reeves. At the January 30, 2004 hearing in Citizen, this court found "Chief Public Defender Ware underscored the problem facing the court by stating that his office currently owed close to $47,000 for capital defense and expected to owe at least an additional $150,000 in upcoming cases which he had already committed to fund." Citizen, XXXX-XXXX p. 4, 898 So.2d at 328. We know from the facts of this case that over $35,000 of the amount owed and $108,000 of the anticipated costs may have been for the Reeves case, as Ware was aware of the overage of expenditures for the first trial and the anticipated costs of retrial by Cuccia's November correspondence.
[38] 1st Supp. Vol. 4, p. 825. Although a different district judge presided in the Citizen case, this court noted that "[t]he court expressed its frustration with the continued lack of funding [for capital indigent defense in Calcasieu Parish] and the fact that it faces some version of the same funding dilemma in virtually every criminal case before it." Citizen, XXXX-XXXX p. 4, 898 So.2d at 329.
[39] 1st Supp. Vol. 4, p. 825.
[40] Id.
[41] Id.
[42] Id., p. 828.
[43] Id., p. 829. As with the retrial, the jury for the first trial was picked in Baton Rouge and transported to Calcasieu Parish for the remainder of the trial.
[44] Id., p. 829.
[45] Id., p. 829-830. Ritchie, the original second-chair appointed by the court, had been elected to a judgeship in the 14th Judicial District in the time period between the first trial and the March, 2004 hearing. Consequently, then-Judge Ritchie was not available to be re-appointed second-chair counsel for Reeves' retrial. See Vol. 17, p. 4169, 4173.
[46] 1st Supp. Vol. 4, p. 830.
[47] Id.
[48] Id., p. 831-832.
[49] Id., p. 832.
[50] Id.
[51] Id., p. 832-833.
[52] Id., p. 821-822. Sanchez's presence at the hearing supports Judge Canaday's earlier statement for the record that there had been several informal discussions by all parties about possible solutions to the lack of funding dilemma. Neither Ware, nor Sanchez, who presented argument on the issue, was surprised by Judge Canaday's proposed solution to remove non-local appointed counsel and to replace them with the capital-certified local Chief Public Defender.
[53] A stipulation was entered as to what Ware would testify was his current caseload. 1st Supp. Vol. 4, p. 833-836.
[54] Id., p. 821-823, 837-845, 850-852.
[55] Id., p. 855.
[56] Id., p. 856-857.
[57] As will be discussed later in this opinion, Reeves attempted to escape from jail while incarcerated for the instant capital murder charge. Ware represented Reeves at an earlier trial on the charge of attempted simple escape.
[58] 1st Supp. Vol. 4, p. 857-859.
[59] Id., p. 859.
[60] Id., p. 859-860.
[61] Id., p. 861.
[62] Id. In subsequent status conferences, Reeves requested and was granted the opportunity to place on the record his objection to the substitution of counsel. At a June 18, 2004 status conference, Reeves told the court:
I justI want to make it re-known that I object to myKerry Cuccia and Graham daPonte being taken off my case. They've been on it for two years and I've come to trust them and I can't see how Mr. Ware can be ready for trial in October, and I can't trust him to talk to him like I've done my other attorneys. There's noI can'tI don't trust them. I'd rather my other attorneys. Vol. 15, p. 3703.
At that time, the court noted Reeves' objection. Reeves clarified: "It's not that I don't trust him or doubt his, you know, ability to represent me in trial, I justI'm more comfortable with my other attorneys." Vol. 15, p. 3704. When the court asked: "If you had a choice you'd rather have Mr. Cuccia is what you're saying," Reeves responded, "Yes, sir." Id.
[63] Id., p. 862.
[64] Id., p. 863. Later in the hearing, Sanchez remarked that the court seemed very certain in its position to appoint Ware, trying to discover whether there was a chance Judge Canaday would reconsider his appointment of Ware on the attorney-client issue, and whether a motion for reconsideration would be successful. Judge Canaday stated: "It would probably have to be something much more substantial in black letter law more than what I'd received here in open court, Mr. Sanchez." Id., p. 876.
[65] Id., p. 864. During the ensuing discussion, Cuccia identified the motion as one which was entitled "Motion To Provide Funds Owed," filed in January. Id., p. 870.
[66] See generally, id., p. 864-876.
[67] Former La. R.S. 15:144(A) provided in pertinent part: "An indigent defender board, hereinafter referred to as the district board, shall be established in each judicial district...".
[68] Former La. R.S. 15:145(B)(2)(a) provided in pertinent part:
§ 145. Powers and duties of the judicial district indigent defender boards
B. Each district board shall select one of the following procedures or any combination thereof for providing counsel for indigent defendants:
* * *
(2)(a) The district board may employ a chief indigent defender and such assistants and supporting personnel as it deems necessary....
[69] Former La. R.S. 15:145(B)(3) provided:
§ 145. Powers and duties of the judicial district indigent defender boards
B. Each district board shall select one of the following procedures or any combination thereof for providing counsel for indigent defendants:
* * *
(3) The district board may enter into a contract or contracts, on such terms and conditions as it deems advisable, with one or more attorneys licensed to practice law in this state to provide counsel for indigent defendants.
[70] Former La. R.S. 15:145(F) provided: "The district board may accept, receive, and use public or private grants. Copies of applications for public or private grants shall be forwarded to the state board."
[71] Former La. R.S. 15:146, as it existed at the time of Reeves' trial, provided in pertinent part:
§ 146. Judicial district indigent defender fund
A. There is hereby created within each judicial district an indigent defender fund which shall be administered by the district board and composed of funds provided for by this Section and such funds as may be appropriated or otherwise made available to it.
B. (1) Every court of original criminal jurisdiction... shall remit the following special costs to the district indigent defender fund for the following violations, under state statute as well as under parish or municipal ordinance. The following costs shall be assessed in cases in which a defendant is convicted after a trial, a plea of guilty or nolo contendere, or after forfeiting bond, and shall be in addition to all other fines, costs, or forfeitures imposed:
(a) Not less than the sum of seventeen dollars and fifty cents for each offense, except a parking violation. Upon recommendation of the district board and by a majority vote of the judges of the courts of original jurisdiction within the district, this sum may be increased to not more than thirty-five dollars....
* * *
C. In addition to the funds provided for in Subsection B hereof the state shall pay to each district indigent defender board, on the warrant of its chairman, the sum of ten thousand dollars per annum.
D. The funds provided for in this Section and all interest or other income earned from the investment of such funds shall be used and administered by the district board.
[72] Former La. R.S. 15:151(A) provided:
§ 151. Indigent Defense Assistance Board
A. There is hereby established in the office of the governor the Indigent Defense Assistance Board.
[73] Former La. R.S. 15:151.2(A) provided:
§ 151.2. Powers; duties; responsibilities; limitations
A. The board may provide supplemental funds, when appropriated by the legislature for that purpose, to judicial district indigent defender boards only as authorized herein for the purposes of complying with the requirements of the Constitution of Louisiana and the Constitution of the United States of America and specific statutory provisions affording the right to counsel to indigent defendants in criminal cases.
[74] Former La. R.S. 15:151.2(D) provided in pertinent part:
§ 151.2. Powers; duties; responsibilities; limitations
D. The board shall adopt rules for providing supplemental assistance to the judicial district indigent defender boards, which address the following:
* * *
(3) Guidelines for supplemental assistance that take into account the failure of the judicial district indigent defender board to provide local counsel in capital cases.
* * *
(6) Guidelines for supplemental assistance for compensation when the judicial district indigent defender board compensates a lawyer retained to handle a specific case or cases.
* * *
(8) Guidelines for supplemental assistance that take into account capital cases, appellate cases, expert witnesses, specialized testing and other clearly demonstrated needs.
* * *
(10) Guidelines for supplemental assistance in specific capital cases for judicial district indigent defender boards which are not otherwise qualified to receive supplemental assistance....
[75] Former La. R.S. 151.2(E)(1) provided: "The board shall have authority by rule, to develop and maintain such programs as necessary to implement the guidelines for supplemental assistance."
[76] Appellant's Supplemental Brief and Response to State's Brief On Appeal, p. 11.
[77] Vol. 7, p. 1742-1744; see also 2nd Supp. p. 41-43. At the hearing on the motion to suppress identifications, held on April 17, 2002, then-presiding Judge Minaldi indicated she signed a motion to enroll Cuccia in the case, after ascertaining his awareness of the pending deadlines and motion hearings set in the case. Vol. 13, p. 3235.
[78] This relationship is made clear during a discussion at the June 22, 2004 ex parte hearing, wherein it was stated that Cuccia was involved with the capital conflict panel funded by LIDAB. June 22, 2004 Ex Parte hearing transcript, p. 31, Box Labeled "All Documents Under Seal."
[79] As previously stated, pursuant to former La. R.S. 15:145(B)(3) the district board had the authority to enter into contracts with other attorneys in order to handle specific cases.
[80] 1st Supp. Vol. 4, p. 827.
[81] Id., p. 830.
[82] See 1st Supp. Vol. 4, p. 873-874. As Cuccia told Judge Quienalty at the September 16, 2003 hearing, he was unsure if a formal appointment had been made. Under the previous indigent system, Cuccia agreed to undertake the representation at the request of the local indigent defender board with the approval of the then-presiding judge. Vol. 7, p. 1743.
[83] Id., p. 842.
[84] Id., p. 830 (emphasis added).
[85] Ware later represented at a hearing held on September 17, 2004, "that Kerry Cuccia and Ms. Graham Da Ponte' again have told me just days ago that they're willing to resume the representation, shouldshould the Peart motion be granted, or any other relief is granted. So I just want to make that a part of the record as well." The following colloquy ensued:
Court: I mean, what is that a part of?
Ware: A part of the Peart issue.
Court: I mean, are you saying without contingencies, without payment, without advancement of experts, everything that was elicited before is now changed, is that
Ware: No, sir.
Court:whatthe purpose of that comment was?
Ware: No. The thing is, nothing has changed with respect to them willing to take onor resume the representation. They're willing to come in without cost or expenses or legal fees for themselves or for their office, with thebut they do they're not going to finance the case as far as experts and other related expenses. But they're willing to resume the representation without costing the parish legal fees.
Court: As far as the statement, we'll let it be in the record, but I will refer back to the record of March of 2004 as to their position at the time that the counsel was reassigned and the reasons therefore and their position for the record at that time.
See Vol. 17, p. 4222-4224.
[86] Indeed, Ware acknowledged there was no "easy or ready solution" for the problem. Id., p. 825.
[87] Id., p. 861.
[88] Id., p. 859.
[89] Earlier in the argument, Sanchez, on behalf of Ware, addressed the court: "So we would ask the Court find another mechanism, appoint someone else or to delay this trial until funds or such appointment is available." Id., p. 844.
[90] In fact, the record shows that within two months of the hearing, the Capital Defense Project forwarded to Ware eleven boxes regarding the first Reeves trial and an outline of the contents of each box. Vol. 11, p. 2680. The boxes contained the entire guilt phase and proposed penalty phase of the first trial, all transcripts, all post-trial pleadings and the various pretrial writs which were filed. In addition, Cuccia and da Ponte supplied Ware with outlines of both the penalty phase and the guilt phase regarding "Witness Points." See letter dated May 18, 2004, stamped "Filed in Evidence" and dated 6/22/04 for the ex parte June 22, 2004 hearing, Box Labeled "All Documents Under Seal." Further, testimony at a September 15, 2004 motion hearing shows that Ware received copies of the state's opening, closing and rebuttal arguments, and portions of the voir dire of the first trial, as requested by the defense, prior to trial. Vol. 17, p. 4115-4119.
[91] See ex. Vol. 15, p. 4152.
[92] Vol. 15, p. 3648.
[93] Vol. 15, p. 4154.
[94] In its "Motion to Reconsider Order of March 23, 2004 Substituting Counsel," filed April 13, 2004, the defense argued generally that Reeves'" ... substantive right to the effective assistance of counsel, including the continuity of counsel because of the particular circumstances of this case, guaranteed to him by the 6th, 8th, and 14th Amendments to the U.S. Constitution and Article 1, Sections 2, 3, 13, 16, and 20 of the Louisiana State Constitution, has been violated because of the Court's unsolicited substitution of counsel." Vol. 11, p. 2651. The motion was denied by Judge Canaday. Vol. 11, p. 2652.
[95] Id., 461 U.S. at 13, 103 S.Ct. at 1617.
[96] Scott, XXXX-XXXX p. 7, 921 So.2d at 916.
[97] Scott, XXXX-XXXX p. 14-15, 921 So.2d at 920-921.
[98] Although in State v. Hattaway, 621 So.2d 796 (La. 1993), overruled in part on other grounds, State v. Carter, 1994-2859 (La. 11/27/95), 664 So.2d 367, this court spoke of "constitutional safeguards aimed at preserving the sanctity of the attorney-client relationship," the court was not referring to the preservation of a particular attorney-client relationship. Instead, the court was referring to the fact that an attorney-client relationship existed at a particular point in those criminal proceedings, and of the rights and prohibitions flowing from the existence of that relationship with regard to the state's attempts to communicate with a criminal defendant. Hattaway, 621 So.2d at 807.
[99] See two Ex Parte Orders signed July 19, 2004 based on Ex Parte Motion for Funds for Expert Witnesses, Box Labeled "All Documents Under Seal;" Ex Parte Motion and Order for Expert Assistance, filed September 3, 2004, motions for fingerprint expert, forensic entomologist, DNA consultant and traffic engineer granted, Box Labeled "All Documents Under Seal;" Ex Parte Motion and Order for Expert Assistance (To Be Filed Under Seal), filed September 17, 2004 motion for jury consultant granted, Box Labeled "All Documents Under Seal."
[100] See Ex Parte Order signed August 4, 2004, Box Labeled "All Documents Under Seal."
[101] Third Funding and In-Camera Proceeding Held Ex Parte, dated August 6, 2004, p. 17, Box Labeled "All Documents Under Seal."
[102] Id.
[103] We note, however, that the state did not have to pay travel expenses for St. Dizier, except to select a jury in a different jurisdiction, as he was local counsel.
[104] June 22, 2004 Ex Parte hearing transcript, p. 25, Box Labeled "All Documents Under Seal."
[105] September 15, 2004 Ex Parte Hearing, p. 13, Box Labeled "All Documents Under Seal."
[106] September 17, 2004 Ex Parte hearing, p. 6-7, Box Labeled "All Documents Under Seal."
[107] In the absence of a reason apparent on the record, we will not speculate as to the budgetary or other concerns facing the Indigent Defender Board and Ware.
[108] A capital case is instituted by indictment by a grand jury. La.C.Cr.P. art. 382(A). La. C.Cr.P. art. 578 provides that no trial shall be commenced in a capital case after three years from the date of institution of prosecution. In addition, both the state and a defendant have the right to a speedy trial. La. Const. art. 1, § 16, La.C.Cr.P. art. 701.
[109] 1st Supp.Vol. 4, p. 851.
[110] Id., p. 876.
[111] Vol. 17, p. 4190.
[112] Vol. 11, p. 2650-2651.
[113] Vol. 11, p. 2651.
[114] Vol. 11, p. 2652.
[115] See Vol. 15, p. 3629-3658.
[116] Vol. 15, p. 3642, 3649-3650.
[117] Vol. 15, p. 3651-3652.
[118] See Vol. 15, p. 3660-3706.
[119] Vol. 15, p. 3666.
[120] Vol. 11, p. 2711; Vol. 15, p. 3710.
[121] See "Peart Motion To Preclude The State From Forcing The Public Defender To Behave Unethically Towards Its Clients," Vol. 11, p. 2701-2705.
[122] Vol. 11, p. 2694-2699. This was not the first time that an attorney not of record attempted to file a Peart motion on behalf of Ware. The record shows that an even earlier Peart motion had been filed into the record by attorney Clive Stafford Smith when Ware was first appointed to represent Reeves. On April 17, 2002, the court denied this Peart motion in oral reasons, "... inasmuch as Mr. Smith is not the attorney of record and has no standing to file motions in this case." Vol. 13, p. 3160-3161.
[123] Vol. 12, p. 2805, 2812; Vol. 15, p. 3723-3724.
[124] Vol. 15, p. 3724.
[125] Vol. 15, p. 3727.
[126] Vol. 15, p. 3727-3728.
[127] Vol. 15, p. 3734. Ware signed both the motion to enroll as himself, and on behalf of Ms. Lehmann. Ware also signed the Peart motion on behalf of Ms. Lehmann.
[128] Vol. 11, p. 2714, 2722.
[129] Vol. 11, p. 2735. The dissenting judge would have allowed the enrollment of counsel for the purpose of filing and litigating the Peart motion. Id.
[130] Vol. 12, p. 2776-2785. The motion was entitled "Peart Motion To Preclude The State From Forcing The Public Defender To Behave Unethically Towards Its Clients; To Permit Enrollment of Independent Counsel For Litigating The Peart Motion; And To Reinstate Previous Trial Counsel As Appointed Counsel For Mr. Reeves."
[131] Vol. 12, p. 2786.
[132] Vol. 12, p. 2798-2816.
[133] Vol. 17, p. 4172-4173.
[134] Vol. 17, p. 4174.
[135] Vol. 17, p. 4174-4176.
[136] See generally Vol. 18, p. 4265-4346.
[137] Vol. 12, p. 2936.
[138] See Appellant's Supplemental Brief and Response to the State's Brief on Appeal, p. 12.
[139] Vol. 18, p. 4308; Defense Proffer D-C, "Affidavit of Dane Ciolino," p. 5.
[140] Vol. 18, p. 4313.
[141] Vol. 18, p. 4321.
[142] Vol. 18, p. 4320.
[143] Vol. 18, p. 4326-4329.
[144] Vol. 18, p. 4332; State Proffer 1, excerpt of "Status Conference" held August 4, 2004, p. 2-3.
[145] At the September 24, 2004 motion hearing, the court asked Ware if this type of Peart motion was pending in all of his first degree murder cases; Ware responded that it was not. Vol. 18, p. 4262.
[146] Although the district court did not authorize specific funding for a jury consultant, the district court approved a certain amount of discretionary funding which the defense could use as they saw fit. Sealed Ex Parte Status Conference, dated September 3, 2004, p. 37-43, Box Labeled "All Documents Under Seal."
[147] Appellant's Brief, p. 20.
[148] Vol. 12, p. 2926-2927.
[149] See Vol. 18, p. 4347-4398.
[150] The record established that on May 27, 2004, the defense received 11 boxes from Cuccia and da Ponte containing all of their information, documents, trial preparation and strategy from the first trial. See Vol. 11, p. 2680. Testimony at the hearing showed that a 12th box, originally looked through by White, and purporting to contain mitigation information, had been lost in transit as the boxes were shared with the Louisiana Crisis Assistance Center, which was providing additional assistance to Ware.
[151] Vol. 18, p. 4378.
[152] 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
[153] Vol. 18, p. 4380.
[154] Vol. 18, p. 4381.
[155] Vol. 18, p. 4381.
[156] Judge Canaday specifically mentioned the Supreme Court cases of Wiggins v. Smith, 539 U.S. 510, 522, 123 S.Ct. 2527, 2535-2536, 156 L.Ed.2d 471 (2003) and Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The petitioners in both of these cases had been convicted in state court of murder and sentenced to death. Each brought federal habeas claims of ineffective assistance of counsel based on counsels' failure to investigate and to present substantial mitigating evidence to their sentencing juries.
[157] Vol. 18, p. 4382.
[158] Vol. 18, p. 4383-4384.
[159] Vol. 18, p. 4385-4386.
[160] Vol. 18, p. 4386.
[161] Vol. 18, p. 4387.
[162] La.C.Cr.P. art. 712 provides: "A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor."
[163] Vol. 15, p. 3648.
[164] Vol. 15, p. 3651. The court also granted Ware an additional three weeks to prepare for pending motions. Vol. 15, p. 3745.
[165] In an attempt to show that the defendant was prejudiced by the denial of the continuance motion, defense counsel on appeal asserts that the record shows that Ware did not watch the videotaped confession in its entirety prior to trial and that, through this ineffective assistance, prejudicial material was placed before the jury. However, defense counsel is factually inaccurate. The record shows that, while Ware watched only portions of the videotape in the months prior to trial, once he was in Baton Rouge for jury selection, he watched the entire videotape. "I would start and stop and start and stop, so that's why I took it to Baton Rouge." And I said, "Well, I need to sit down and look at this tape, which I did." Vol. 40, p. 9764 (emphasis added).
[166] State v. Reeves, XXXX-XXXX p. 2-3 (La. App. 3 Cir. 11/10/04), 890 So.2d 590, 592-593.
[167] Vol. 15, p. 3581.
[168] Vol. 15, p. 3582.
[169] See Vol. 15, p. 3580-3623.
[170] Vol. 15, p. 3582-3591.
[171] Vol. 15, p. XXXX-XXXX.
[172] State v. Reeves, 2004-631 p. 9-11, 890 So.2d at 596-597.
[173] 1st Supp. Vol. 4, p. 858, Vol. 17, p. 4175.
[174] 1st Supp. Vol. 4, p. 819.
[175] Vol. 3, p. 716.
[176] 1st Supp. Vol. 4, p. 765.
[177] 1st Supp. Vol. 4, p. 769.
[178] Cisco, 2001-2732 p. 18, 861 So.2d at 130, citing Zuck v. Alabama, 588 F.2d 436 (5th Cir.1979), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979).
[179] See State v. Kahey, 436 So.2d 475, 485-486 (La.1983).
[180] In this case, Ware did not inform the court of an alleged conflict of interest pretrial in the first degree murder case. Instead, Ware asserted he had no conflict of interest in representing Reeves in this matter. However, the pretrial standard of review would also be applicable if this court found the district judge knew or should have known that the possible conflict issue existed.
The record shows that Judge Canaday presided over the hearing on the conflict motion in the attempted simple escape matter at which Ware claimed his office represented several of the inmates at the jail. Judge Canaday also presided over the trial of the attempted simple escape charge where Ware informed him that one of the state's witnesses was a former client. Judge Minaldi presided over the Jackson hearing in the first degree murder case and ruled the state's evidence of Reeves' prior conviction for attempted simple escape was admissible in evidence at a possible penalty phase in the first degree murder trial. Although defense counsel raises a question whether Judge Canaday knew or should have known that there was a possibility for a conflict of interest to arise in the retrial of the first degree murder trial, we find no actual conflict of interest ever arose.
[181] Uniform Capital Sentencing Review, Section D(6), "General Considerations."
[182] Vol. 44, p. 10879.
[183] La.C.Cr.P. art. 905.3 provides, in pertinent part, "[a] sentence of death shall not be imposed unless the jury finds beyond a reasonable doubt that at least one statutory aggravating circumstance exists and, after consideration of any mitigating circumstances, determines that the sentence of death should be imposed."
[184] The coroner's testimony on cross-examination in this regard was as follows:
Defense counsel: The wounds in the area of the heart would have killed this child very quickly?
Coroner: No, sir. That's the sad part, it wouldn't have. I think she suffered for awhile, becausethe reason I say that is because the injuries that she has involving the heart, as well as the lungsif you were to be shot in the chest with a shotgun, you have ten seconds worth of oxygen in your brain. I mean, that's without a heart. And the heart is a thick muscle. The heart is like an inner tube. If any of you have ever had a puncture proof inner tube, the heart is a lot like that, where you poke a hole in it and it has a tendency the thick muscle wall closes. So, I think that she was alive for a period of time. How long, I don't know. It all depends on the duration and the time span between the stab wounds.
* * *
Defense counsel: So, a four-year-old child with five stab wounds to the heart itself, you're saying would survive for some time?
Coroner: Yes, sir. Absolutely.
Vol. 41, p. 10224-10225.
[185] In forty-five of those cases, the defendant was allowed to plead guilty to first degree murder with a life sentence, or to a lesser-included offense. In three other cases, the bills of indictment were amended to second degree murder and proceeded to trial on that charge. Of those three second degree murder prosecutions, juries found two of the defendants guilty as charged; the other defendant was found to be not guilty.
[186] One prosecution resulted in a determination that the defendant was not guilty by reason of insanity. State v. Richard, 14th JDC Docket No. 3209-79.
[187] State v. Langley, XXXX-XXXX (La.4/14/98), 711 So.2d 651, opinion after remand, XXXX-XXXX (La.4/3/02), 813 So.2d 356, State v. Langley, XXXX-XXXX (La.App. 3 Cir. 12/29/04), 896 So.2d 200; disapproved of by, XXXX-XXXX (La.5/22/07), 958 So.2d 1160; State v. Cisco, 2001-2732 (La.12/3/03), 861 So.2d 118, cert. denied, 541 U.S. 1005, 124 S.Ct. 2023, 158 L.Ed.2d 522 (2004).
[188] State v. English, 367 So.2d 815 (La. 1979); State v. Sylvester, 400 So.2d 640 (La. 1981); State v. Perry, 420 So.2d 139 (La. 1982), cert. denied 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983); State v. Dugar, 527 So.2d 307 (La.1988); Dugar v. State, 615 So.2d 1333, 1334 (La.1993); transferred to, 1993-718 (La.App. 3 Cir. 10/5/94), 643 So.2d 870, writ denied, 1994-2712 (La.6/30/95), 657 So.2d 1019; State v. Cross, XXXX-XXXX (La.6/30/95), 658 So.2d 683, overruling recognized in State v. Juniors, 2003-2425 (La.6/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006); State v. Mitchell, 1994-2078 (La.5/21/96), 674 So.2d 250, cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996).
[189] State v. Martin, XXXX-XXXX (La. 10/17/94), 645 So.2d 190, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995).
[190] In addition, the defense contends the state has failed to include several first degree murder prosecutions in its listing of cases. We agree there are possible omissions in the state's Sentence Review Memorandum. However, these omissions do not significantly impact our analysis here, considering the dearth of comparable cases within this jurisdiction where the victim was a young child killed during the perpetration or attempted perpetration of an aggravated rape.
[191] Forty-four of the sixty-eight indictments for first degree murder involved an aspect of robbery or a drug-related offense.
[192] See State v. Giovanni, 375 So.2d 1360 (La. 1979); appeal after remand, 409 So.2d 593 (La. 1982), a husband and wife were shot in their home and the house was set afire. Their infant son perished, as well, but the evidence that the infant was also shot was inconclusive. The jury returned with a verdict of guilty as charged on three counts of first degree murder and sentenced the defendant to life. In State v. Larson, 579 So.2d 1050 (La.App. 3 Cir.1991), writ denied, 588 So.2d 1110 (La.1991), the defendant, who was babysitting a 17 month old infant, was charged with first degree murder in connection with the child's death. At trial, the defendant claimed he had tripped and fallen down stairs with the child, accounting for the child's injuries. A jury convicted the defendant of manslaughter. In State v. Trahan, 14th JDC Docket No. 10277-91, the defendant was indicted for first degree murder but was allowed to plead guilty to cruelty to a juvenile. The evidence showed the defendant suffocated the victim while holding the victim too tightly in an attempt to stop the infant from crying. In State v. Langley, supra, the state contends the defendant ejaculated into the mouth of the 6 year old victim, strangled him, then stuffed the victim's body in a closet.
[193] The CSIR additionally shows he committed the offense of possession of stolen things, for which he was adjudicated delinquent in 1989; the offense of remaining after forbidden, for which he received a disposition of six months probation in 1989; and the offense of theft, for which he was adjudicated delinquent in 1990.
[194] Uniform Capital Sentence Review, Section D(7), "General Considerations." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/674673/ | 29 F.3d 1495
Joseph Richard REDNER, Petitioner-Appellee,v.Charles S. DEAN, Sheriff of Citrus County, Florida,Respondent-Appellant,Robert A. Butterworth, Respondent-Appellee.
No. 92-3033.
United States Court of Appeals,Eleventh Circuit.
Aug. 26, 1994.
Russell W. LaPeer, Robert R. Wheeler, Landt, Trow, & LaPeer, Ocala, FL, for appellant.
Luke Charles Lirot, Clearwater, FL, Belle B. Turner, Daytona Beach, FL, for appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before ANDERSON and BIRCH, Circuit Judges, and ALBRITTON*, District Judge.
BIRCH, Circuit Judge:
1
In this habeas corpus appeal, we must decide the constitutionality of a Citrus County, Florida licensing ordinance (the "Ordinance") regulating adult entertainment establishments. The district court found the Ordinance facially unconstitutional because it lacked the procedural safeguards required for a system of prior restraint. The court therefore granted the writ of habeas corpus to the petitioner, who had been convicted of violating the Ordinance. The district court also granted the motion of the Florida Attorney General, releasing him from costs and from the responsibility for setting aside the petitioner's conviction. We affirm both of the district court's rulings.
I. BACKGROUND
2
In March 1988, the petitioner-appellee, Joseph Redner, began preparations to open an adult entertainment facility in Citrus County, Florida. Redner planned to open the facility on March 25, and by March 24, he had acquired all necessary permits and licenses. At the time, Citrus County had no ordinance specifically governing adult entertainment facilities. On March 25, however, the Citrus County Board of County Commissioners (the "Board") held an emergency session and adopted temporary Citrus County Ordinance No. 88-05, entitled the "Citrus County Adult Entertainment Ordinance."1
3
The stated purpose of the Ordinance is "to establish reasonable and uniform regulations that will protect the health, safety, morals and general welfare of the people of Citrus County, Florida." Citrus County Ordinance No. 88-05, Sec. 1-5. The Ordinance attempts to regulate adult entertainment establishments2 within Citrus County by requiring operators of such facilities to obtain a license from the County Administrator (the "Administrator").3 Id. Sec. 2-2(a).
4
In order to obtain a license, an operator must submit to the Administrator an application containing, among other things, the applicant's name, business designation, and criminal history; whether the applicant has had a previous license revoked or suspended; whether the applicant has any other licenses; and other information about the facility, including location, site plan, and a list of employees. Id. Sec. 2-3(b). The Administrator must then send copies of the application to the Sheriff, the Department of Development Services, Fire Prevention, and the Health Department, whereupon each agency conducts an investigation. Id. Sec. 2-4(a). If any of these investigations reveals that the proposed establishment will be in violation of any building, fire, health, or zoning statute, code, ordinance, or regulation, the agency must notify the Administrator. Id. Sec. 2-4(b).
5
Section 2-5(c) provides the reasons for which the Administrator may deny a license.4 The Administrator must make its decision to grant or deny a license within forty-five days of the filing of the application.5 Id. Sec. 2-5(a)(1). At the expiration of the forty-five-day time period, "the applicant may be permitted to begin operating the establishment for which a license is sought, unless and until the County Administrator notifies the applicant of a denial of the application and states the reason(s) for the denial." Id.
6
An applicant who is denied a license has fifteen days to appeal to the Board. Id. Sec. 6-1(1). Upon receipt of the notice of appeal, the Clerk of the Board "shall schedule a hearing for as soon as the Board's calendar will allow." Id. Sec. 6-1(2). "If, at the conclusion of the hearing, the Board finds that the license or permit should not have been denied ..., it shall so notify the County Administrator, who shall immediately grant ... the license...." Id. Sec. 6-1(3).6
7
In the present case, Redner refused to comply with the Ordinance and opened his adult entertainment establishment without applying to the Administrator for a license. Within four days, Redner had been charged three times with violating the Ordinance by operating an adult entertainment establishment without a license. Seeking declaratory, injunctive, and compensatory remedies, Redner immediately brought an action under 42 U.S.C. Sec. 1983 in the United States District Court for the Middle District of Florida challenging the constitutionality of the Ordinance.
8
Before the federal case went to trial, however, Redner was tried in state court for Citrus County, where he defended on the grounds that the Ordinance was unconstitutional. The court upheld the Ordinance and Redner was convicted of three counts of operating an adult entertainment establishment without a license. Redner's conviction was affirmed by the Florida Fifth Judicial Circuit Court, and the Florida Fifth District Court of Appeal denied discretionary review.
9
In February 1989, Redner's federal civil rights case went to trial in the Middle District of Florida. Refusing to interfere with the ongoing state criminal proceedings, the district court abstained from ruling on the constitutionality of the Ordinance. We affirmed the district court's abstention, but remanded the case for further proceedings concerning Redner's identical attacks on the constitutionality of the successor, permanent licensing ordinance, Redner v. Citrus County, 919 F.2d 646 (11th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 303, 116 L.Ed.2d 246, and cert. denied, --- U.S. ----, 112 S.Ct. 303, 116 L.Ed.2d 246 (1991). That case is being held in abeyance in the district court pending the outcome of this appeal.
10
In May 1991, Redner was to begin serving the sentences for his state criminal convictions. He filed a petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. The district court referred the petition to a magistrate judge, and on March 4, 1992, the magistrate judge issued a report and recommendation finding the Ordinance unconstitutional. The magistrate judge found that the Ordinance fails to provide the procedural safeguards necessary for a system of prior restraint because it does not place specific time limits on the decision-maker and does not provide for prompt judicial review. The district court adopted the magistrate judge's report and recommendation and granted Redner's petition for habeas corpus relief. The court directed the two respondents, Florida Attorney General Robert Butterworth and Citrus County Sheriff Charles Dean, to set aside Redner's convictions and discharge him from any restraint. The court also directed Butterworth and Dean to pay Redner's costs.
11
On May 28, 1992, Butterworth made a motion under Federal Rule of Procedure 59(e) to amend the civil judgment to place the responsibility for costs and for setting aside the conviction on Dean alone. The district court granted this motion. Dean timely appealed both the grant of the habeas petition and the decision to amend the judgment.7 Redner and Butterworth are the appellees.
II. DISCUSSION
A. Constitutionality Of The Ordinance
12
Dean challenges the district court's grant of Redner's motion for habeas corpus relief. He argues that the Ordinance withstands constitutional scrutiny because it contains adequate procedural safeguards. The district court's ruling that the Ordinance is unconstitutional is a question of law, which we review de novo. United States v. Osburn, 955 F.2d 1500, 1503 (11th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 223, 121 L.Ed.2d 160, and cert. denied, --- U.S. ----, 113 S.Ct. 290, 121 L.Ed.2d 215 (1992).
13
At the outset, we reject Dean's argument that the activity regulated by the Ordinance is not protected by the First Amendment. We find it well settled that nude dancing is expressive conduct entitled to some degree of First Amendment protection. In Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality opinion), eight of the nine Justices on the Supreme Court found that non-obscene nude dancing is within the outer perimeter of the First Amendment, albeit minimally so.8 When faced with a fragmented Court, we may distill the various opinions down to their narrowest grounds of concurrence to derive any binding precedent. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977); International Eateries of Am., Inc. v. Broward County, 941 F.2d 1157, 1159-61 (11th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1294, 117 L.Ed.2d 517 (1992). Based on Barnes and other Supreme Court precedent, we find it beyond dispute that the conduct regulated by the Ordinance in the instant case is entitled to some minimal degree of First Amendment protection.
14
While it enjoys some degree of First Amendment protection, however, nude dancing is not immune from governmental regulation. Even activity protected by the First Amendment can be regulated if the regulation furthers a substantial government interest and constitutes only an incidental limitation on the expressive activity. See United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968). In Barnes, for instance, the Supreme Court found that an Indiana statute requiring dancers to wear pasties and G-strings was not an impermissible infringement on the dancers' rights of freedom of expression. 501 U.S. at 567-68, 111 S.Ct. at 2461. The present case differs from Barnes in at least one important respect. While Barnes involved some incidental limitations on the conduct associated with the expressive activity, the instant case presents a complete restraint of protected expression.
15
The instant case is more analogous to another Supreme Court case, FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). FW/PBS is the Supreme Court's most recent pronouncement on the prior restraint of nude dancing. Because it dealt with a licensing scheme similar to the Citrus County Ordinance, it provides us with valuable insight.
16
In FW/PBS, the Supreme Court entertained a facial challenge to a Dallas licensing ordinance regulating sexually oriented businesses. Like the Citrus County Ordinance, the Dallas scheme regulated sexually oriented businesses with a system of zoning, licensing, and inspections. FW/PBS resulted in a plurality decision, with several concurrences and dissents; we must therefore attempt to find the narrowest ground of concurrence in the various opinions in order to derive the Court's holding. See Marks, 430 U.S. at 193, 97 S.Ct. at 993; International Eateries, 941 F.2d at 1159-61.
17
Justice O'Connor's plurality opinion, joined by Justices Stevens and Kennedy, analyzed the ordinance under Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). In Freedman, the Supreme Court held that any system of censorship that runs the risk of suppressing constitutionally protected expression must contain three procedural safeguards designed to obviate the dangers of censorship: (1) the burden of going to court to suppress the speech and the burden of proof once in court must lie with the censor; (2) any restraint prior to a judicial determination may only be for a specified brief time period in order to preserve the status quo; and (3) an avenue for prompt judicial review of the censor's decision must be available. Id. at 58-59, 85 S.Ct. at 739. In her plurality opinion in FW/PBS, Justice O'Connor found that the first of the Freedman procedural safeguards is not necessary in a licensing scheme regulating an entire business, as opposed to a scheme like that in Freedman involving the direct censorship of particular expressive material. FW/PBS, 493 U.S. at 229-30, 110 S.Ct. at 606-07. In the former situation, there is less a presumption of invalidity, and, since the applicant's entire livelihood is at stake, there is more incentive for the applicant to pursue judicial review. Id. at 229-30, 110 S.Ct. at 607. Justice O'Connor therefore found it unnecessary to place the burden of going to court on the censor and required only the second and third Freedman safeguards. Finding that these two procedural requirements were not met, Justice O'Connor held the Dallas ordinance unconstitutional.
18
Justice Brennan, joined by Justices Marshall and Blackmun, filed an opinion concurring in the judgment. Justice Brennan's concurrence differed with the plurality only in that the concurrence would have required all three of the Freedman procedural safeguards. Id. 493 U.S. at 238-39, 110 S.Ct. at 611 (Brennan, J., concurring in the judgment). Nevertheless, Justice Brennan agreed that the ordinance failed to meet these procedural requirements.
19
In FW/PBS, therefore, six Justices agreed that a licensing ordinance, such as the one in question here, must contain, at a minimum, the latter two procedural safeguards from Freedman: specified brief time limits on the decisionmaker and prompt judicial review. We therefore scrutinize the Citrus County Ordinance to determine whether it meets these constitutional requirements.
1. Time Limits On The Decisionmaker
20
The first procedural safeguard required by FW/PBS is that the expressive activity may only be restrained prior to judicial review for a specified brief time period in order to maintain the status quo. Section 2-5 of the Ordinance places a forty-five-day time limit on the Administrator's decision to grant or deny the license. We agree with other federal courts that have found similar time limits to be reasonable. E.g., Wolff v. City of Monticello, 803 F.Supp. 1568, 1574 (D.Minn.1992) (ninety days); Ellwest Stereo Theater, Inc. v. Boner, 718 F.Supp. 1553, 1571 (M.D.Tenn.1989) (sixty days). Nevertheless, two other provisions of the Ordinance create the risk that expressive activity will be suppressed for indefinite time periods.
21
First, under section 2-5, the forty-five-day time limit is illusory, in that the Administrator's failure to comply with the time limit does not necessarily allow the applicant to begin engaging in the expressive activity for which the license is sought. Section 2-5(a)(1) of the Ordinance provides that in the event the Administrator exceeds the 45-day time limit, "the applicant may be permitted to begin operating the establishment for which a license is sought, unless and until the County Administrator notifies the applicant of a denial of the application." Citrus County Ordinance No. 88-05, Sec. 2-5(a)(1) (emphasis added). Dean argues that the word "may" in the provision should be interpreted to mean "shall" because the Ordinance gives operators "an absolute right" to begin operating establishments immediately upon the expiration of the forty-five-day period. Appellant's Brief at 41. He contends that the Board has applied the provision in this manner and that we should defer to the Board's interpretation.
22
We disagree. Redner presents a facial challenge to the Ordinance, and we must analyze it as written. "The issue ... is whether the ordinance, on its face, meets the requirements of FW/PBS." Wolff, 803 F.Supp. at 1575. We cannot depend on the individuals responsible for enforcing the Ordinance to do so in a manner that cures it of constitutional infirmities. Section 2-5 says that applicants may be permitted to begin operation; it does not say "shall." We do not read this language to create an absolute right to operate at the expiration of forty-five days. On its face, therefore, section 2-5(a)(1) risks the suppression of protected expression for an indefinite time period prior to any action on the part of the decisionmaker or any judicial determination.
23
A second provision of the Ordinance also may result in the indefinite suppression of expressive activity. In the event the Administrator denies the license, section 6-1 provides the applicant fifteen days to appeal the decision to the Board. Citrus County Ordinance No. 88-05, Sec. 6-1(1). The Ordinance then directs the Clerk of the Board to "schedule a hearing for as soon as the Board's calendar will allow." Id. Sec. 6-1(2) (emphasis added). No time limit is placed on the Board. Like section 2-5, this appeal mechanism creates the risk that protected expression will be restrained for an indefinite time period prior to any form of judicial review. Thus, based on these two provisions, we find that the Ordinance fails to impose reasonable time limits on the decisionmaker, as required by Freedman and FW/PBS.
2. Prompt Judicial Review
24
The next Freedman procedural safeguard required by the Supreme Court in FW/PBS is the assurance of prompt judicial review. The Court, however, has not clarified exactly what type of judicial review is sufficient to fulfill this requirement, and our Circuit has never squarely addressed the issue in the context of a licensing ordinance.9 Nevertheless, we find that the Citrus County Ordinance is inadequate under any interpretation of "prompt judicial review" because it creates the risk that expressive activity could be suppressed indefinitely prior to any judicial review of the decision to deny a license.
25
As we noted above,10 section 6-1 of the Ordinance creates a situation where the denial of a license by the Administrator could result in the suppression of expressive activity for an indefinite period of time. After an applicant appeals to the Board, the Ordinance provides no specific time frame in which the Board must schedule a hearing or reach a decision. During this time, judicial review of the Administrator's decision would not be available because the administrative action would still be pending.
26
Dean argues that prompt judicial review is available in spite of this problem. He contends that an applicant may forgo the appellate process provided by the statute and proceed immediately to Florida state court via Florida's common-law writ of certiorari. We reject Dean's argument for two reasons. First, we find it repugnant to the principle of due process that a county ordinance could set such a trap for the unwary applicant. To hold that an aggrieved applicant who follows the appellate procedure provided by the Ordinance risks foreclosing his opportunity for prompt judicial review is a leap in logic we are unprepared to take.
27
Second, an applicant who refuses to appeal to the Board, as provided by the Ordinance, runs the risk that a state court would decline review based on failure to exhaust administrative remedies. Under Florida law, exhaustion "is a question of judicial policy, not jurisdiction." Florida Soc'y of Newspaper Editors, Inc. v. Florida Pub. Serv. Comm'n, 543 So.2d 1262, 1266 (Fla.Dist.Ct.App.), review denied, 551 So.2d 461 (Fla.1989). Nevertheless, Florida law is clear that exhaustion of administrative remedies is a prerequisite for judicial review. "Where a method of appeal from an administrative ruling has been provided, such method must be followed to the exclusion of any other system of review. Where an administrative remedy is provided by statute, relief must be sought by exhausting this remedy before the courts will act." Florida Welding & Erection Serv., Inc. v. American Mut. Ins. Co., 285 So.2d 386, 389-90 (Fla.1973).
28
Dean argues that exhaustion does not prohibit an applicant from challenging the denial of a license in court because exhaustion is not required where a party challenges the constitutionality of a rule or regulation. While Dean is correct that exhaustion is not required for constitutional attacks, his argument misses the point. It assumes that an applicant's appeal of the denial of a license will always be a constitutional attack. We can envision other, non-constitutional grounds on which an applicant would challenge the denial of a license, any of which would require exhaustion of administrative remedies. An applicant posing a non-constitutional challenge to the denial of a license would therefore be barred from the court system unless he first exhausted his administrative remedies by appealing to the Board. And once this appeal is filed with the Board, the Ordinance provides no time limit in which the Board must schedule a hearing. Since Redner poses a facial challenge to the Ordinance, it must provide procedural safeguards for all applicants, not just those who might challenge the Ordinance on constitutional grounds. We thus reject Dean's argument that the Citrus County Ordinance satisfies the procedural requirement of prompt judicial review.
29
B. The Release Of Butterworth From Responsibility
30
Dean also appeals the district court's decision to amend its judgment, thereby releasing Butterworth from costs and from the responsibility for setting aside the conviction. He maintains that the Florida Attorney General has a constitutional, statutory, and common-law duty to represent the State in this action. We review the district court's decision to amend the judgment for abuse of discretion. Cable/Home Communication Corp. v. Network Prods, Inc., 902 F.2d 829, 859 (11th Cir.1990).
31
We find no such abuse of discretion in the district court's decision. Dean confuses the Attorney General's mandatory duty to represent the State with its discretionary authority to intervene in lawsuits in which the State has an interest. The instant case does not come within the Attorney General's mandatory duty.
32
Florida statutory law requires the attorney General to "appear in and attend to, in behalf of the state, all suits ... in which the state may be a party, or in anywise interested." Fla.Stat.Ann. Sec. 16.01(4). Although Rule 4 of the Rules Governing Section 2254 Cases requires that the state attorney general be served, the advisory committee notes to that rule make clear that the attorney general "is not required to answer if it is more appropriate for some other agency to do so." 28 U.S.C. Sec. 2254 Rule 4, advisory committee notes. Here, the habeas petition involved a conviction under a county ordinance. Redner was not a state prisoner, and no state statute or state official was involved. Thus, the State of Florida is neither a party nor does it have an interest in these proceedings. For these same reasons, this case does not require Butterworth to exercise his discretionary authority under the common law to intervene in cases where public interest requires. See generally Thompson v. Wainwright, 714 F.2d 1495, 1500 (11th Cir.1983), cert. denied, 466 U.S. 962, 104 S.Ct. 2180, 80 L.Ed.2d 562 (1984). Therefore, we hold that the district court did not abuse its discretion in amending the judgment to release Butterworth from responsibility in this case.
III. CONCLUSION
33
Dean brought this appeal challenging the district court's grant of Redner's habeas corpus petition, setting aside his convictions under the Citrus County Adult Entertainment Ordinance. Dean also appeals the district court's decision to amend its judgment releasing Attorney General Butterworth from responsibility in the case. We have carefully reviewed both issues, and, finding no reversible error, we AFFIRM.
APPENDIX
ORDINANCE NO. 88-05
34
AN ORDINANCE OF CITRUS COUNTY, FLORIDA, TO BE KNOWN AS THE "ADULT ENTERTAINMENT ORDINANCE"; PROVIDING GENERAL PROVISIONS, FINDINGS OF FACT AND DEFINITIONS; PROVIDING PROVISIONS CONCERNING LICENSING ENTERTAINMENT ESTABLISHMENTS; PROVIDING PROVISIONS CONCERNING PERMITTING OF EMPLOYEES OF ADULT ENTERTAINMENT ESTABLISHMENTS; PROVIDING PROVISIONS CONCERNING REQUIREMENTS FOR ADULT ENTERTAINMENT ESTABLISHMENTS; PROVIDING CRIMINAL PROVISIONS; PROVIDING PROVISIONS REGARDING SUSPENSION AND REVOCATION OF LICENSE; PROVIDING PROVISIONS REGARDING SUSPENSION AND REVOCATION OF PERMIT; PROHIBITING ESTABLISHMENTS FROM OPERATING BETWEEN HOURS OF 2:00 A.M. AND 9:00 A.M.; PROHIBITING HOLES IN WALLS OF ADULT BOOTHS; PROHIBITING THE ALTERATION OF A LICENSE OR PERMIT; PROHIBITING FALSE STATEMENT OR FALSE INFORMATION IN APPLYING FOR A LICENSE OR PERMIT; PROVIDING FOR SEVERABILITY; PROVIDING FOR EMERGENCY ENACTMENT AND AN EFFECTIVE DATE.
35
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF CITRUS COUNTY, FLORIDA:
SECTION 1. GENERAL PROVISIONS
36
Section 1-1. Title. This Ordinance shall be known and may be cited as the "Citrus County Adult Entertainment Ordinance".
37
Section 1-2. Authority. The Adult Entertainment Ordinance is enacted under the Home Rule Power of Citrus County, Florida, in the interest of the health, peace, safety, morals, and general welfare of the people of Citrus County, and under the authority of Citrus County to regulate the sale and consumption of alcoholic beverages under the Twenty-First Amendment to the Constitution of the United States.
38
Section 1-3. Scope. The Adult Entertainment Ordinance shall be effective throughout Citrus County, Florida, except that no provision of this Ordinance that conflicts with a provision of an Ordinance of any municipality within Citrus County, Florida, shall be effective within such municipality.
39
Section 1-4. Construction. The Adult Entertainment Ordinance shall be liberally construed to accomplish its purpose of licensing, regulating and dispersing adult entertainment and related activities. Unless otherwise indicated, all provisions of this Ordinance shall apply equally to all persons, regardless of sex. Masculine pronouns, such as "he", "his", and "him", as employed in this Ordinance, shall also be construed to apply to feminine pronouns and neutral pronouns, unless the context suggests otherwise. Words used in the singular number shall include the plural number, unless the context suggests otherwise.
40
Section 1-5. Purpose. The intent of the Board of County Commissioners of Citrus County, Florida, in adopting the Adult Entertainment Ordinance is to establish reasonable and uniform regulations that will protect the health, safety, morals and general welfare of the people of Citrus County, Florida.
41
Section 1-6. Findings of Fact. Based on evidence and testimony concerning the adverse secondary effects of adult uses on the community presented at public hearings before the Board of County Commissioners of Citrus County, Florida, and on the findings incorporated in the City of Renton v. Playtime Theaters, Inc., 106 S.Ct. 925 (1986); Coleman A. Young v. American Mini Theaters, Inc., 427 US 50, 49 LEd2d 310, 96 SCt 2440, reh den (US) 50 LEd2d 155, 97 SCt 191; Summary and presentation of reports, studies and judicial opinions concerning the adverse secondary effects of adult uses on the community; Northend Cinema, Inc. v. Seattle, 90 Wash.2d 709, 585 P.2d 1153 (1978); A Report on Zoning and Other Methods of Regulating Adult Entertainment in Amarillo, Texas dated September 12, 1977; Regulation of Criminal Activity and Adult Businesses. City of Phoenix, May, 1979; Findings of the City Planning Commission for the City of New York dated January 26, 1977, Detroit's Approach to Regulating the "Adult" Uses Presented to American Institute of Planners Annual Conference, October 10, 1977; Adult Entertainment Businesses in Indianapolis. An Analysis, 1987; and a presentation by the Citrus County Sheriff detailing the potential criminal activities associated with adult uses in Citrus County.
42
(a) Establishments exist or may exist within Citrus County, Florida, where books, magazines, motion pictures, prints, photographs, periodicals, records, novelties and/or devices which depict, illustrate, describe or relate to specified sexual activities are possessed, displayed, exhibited, distributed and/or sold.
43
(b) Establishments exist or may exist within Citrus County, Florida:
44
(1) where the superficial tissues of one person are manipulated, rubbed, stroked, kneaded, and/or tapped by a second person, accompanied by the display or exposure of specified anatomical areas;
45
(2) where dancers, entertainers, performers, or other individuals, who, for any form of commercial gain, perform or are presented while displaying or exposing any specified anatomical area; or(3) where straddle dancing occurs.
46
(c) The activities described in subsections (a) and (b) occur at establishments for the purpose of making a profit, and, as such, are subject to regulation by Citrus County, Florida, in the interest of the health, safety, morals and general welfare of the people of Citrus County.
47
(d) When the activities described in subsections (a) and (b) are present in establishments within Citrus County, Florida, other activities which are illegal, immoral, or unhealthful tend to accompany them, concentrate around them, and be aggravated by them. Such other activities include, but are not limited to, prostitution, pandering, solicitation for prostitution, lewd and lascivious behavior, exposing minors to harmful materials, possession, distribution and transportation of obscene materials, sale and possession of controlled substances, and violent crimes against persons and property.
48
(e) When the activities described in subsections (a) and (b) are present in establishments within Citrus County, Florida, they tend to attract an undesirable number of transients, blight neighborhoods, adversely affect neighboring businesses, lower property values, promote crime, particularly the kinds detailed in subsection (d) and ultimately lead residents and businesses to move to other locations.
49
(f) The establishments in which the activities described in subsections (a) and (b) occur are usually constructed, in part or in whole, of substandard materials, and are usually maintained in a manner reflecting disregard for the health and safety of the occupants.
50
(g) The activities described in subsections (a) and (b) frequently occur in establishments concurrent with the sale and consumption of alcoholic beverages.
51
(h) The concurrence of the sale and consumption of alcoholic beverages with the activities described in subsections (a) and (b) leads to an increase in criminal activity, moral degradation, and disturbances of the peace and order of Citrus County, Florida.
52
(i) The concurrence of the sale and consumption of alcoholic beverages with the activities described in subsections (a) and (b) is hazardous to the health and safety of those persons in attendance, depreciates the value of adjoining property, harms the economic welfare of Citrus County, Florida, and adversely affects the public's interest in the quality of life, tone of commerce, and community environment in Citrus County.
53
(j) In order to preserve and safeguard the health, safety, morals and general welfare of the people of Citrus County, Florida, it is necessary and advisable for Citrus County, Florida, to regulate the sale and consumption of alcoholic beverages at establishments where the activities described in subsections (a) and (b) occur.
54
(k) Employees of establishments at which the activities described in subsections (a) and (b) occur engage in a higher incidence of certain types of criminal behavior than employees of other establishments.
55
(l ) Physical contact within establishments at which the activities described in subsections (a) and (b) occur between employees exhibiting specified anatomical areas and customers poses a threat to the health of both and promotes the spread of communicable and social diseases.
56
(m) In order to preserve and safeguard the health, safety, morals, and general welfare of the people of Citrus County, Florida, it is necessary and advisable for Citrus County, Florida, to regulate the conduct of owners, managers, operators, agents, employees, entertainers, performers, and customers at establishments where the activities described in subsections (a) and (b) occur.
57
(n) The potential dangers to the health, safety, morals, and general welfare of the people of Citrus County, Florida, posed by permitting an establishment at which the activities described in subsections (a) and (b) occur to operate without first obtaining a license under this Ordinance are so great as to require the licensure of such establishments prior to their being permitted to operate.
58
(o) Requiring employees of establishments at which the activities described in subsections (a) and (b) occur to obtain an adult entertainment permit before beginning to work in such establishments will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects, by preventing minors from working in such establishments, and by making it easier for health officials to control the spread of communicable and social diseases in such establishments.
59
(p) Prohibiting establishments at which the activities described in subsections (a) and (b) occur from operating within close proximity of education institutions, religious institutions, areas zoned for residential use, and parks, at which children are customarily found, will serve to protect children from the adverse affects of the activities that accompany such establishments.
60
(q) Personal advertising within close proximity of public thoroughfares poses a traffic hazard and a threat to the safety of people using those thoroughfares.
61
(r) "Straddle dancing" does not contain any element of communication, and is therefore conduct rather than expression.
62
(s) "Straddle dancing" in establishments poses a threat to the health of the participants and promotes the spread of communicable and social disease.
63
Section 1A-7. Definitions. In the Adult Entertainment Ordinance, unless the context suggests otherwise:
64
(a) "Adult Bookstore" means an establishment which sells or rents adult material, unless the adult material is accessible only by employees and either the gross income from the sale or rental of adult material comprises less than ten percent (10%) of the gross income from the sale or rental of goods or services at the establishment or the individual items of adult material offered for sale or rental comprises less than twenty-five percent (25%) of the individual items publicly displayed at the establishment as stock in trade. It is an affirmative defense to an alleged violation of this Ordinance regarding operating an adult bookstore without an adult entertainment license if the alleged violator shows that the adult material is accessible only by employees and either the gross income from the sale or rental of adult material comprises less than ten percent (10%) of the gross income from the sale or rental of goods or services at the establishment, or the individual items of adult material offered for sale or rental comprise less than twenty-five percent (25%) of the individual items publicly displayed at the establishment as stock in trade.
65
(b) "Adult Booth" means a small enclosure inside an adult entertainment establishment accessible to any person, regardless of whether a fee is charged for access. The term "adult booth" includes, but is not limited to, a "peep show" booth, or other booth used to view "adult material". The term "adult booth" does not include a foyer through which any person can enter or exit the establishment, or a restroom.
66
(c) "Adult Dancing Establishment" means an establishment where employees display or expose specified anatomical areas to others, regardless of whether the employees actually engage in dancing.
67
(d) "Adult Entertainment Establishment" means an adult theater, an adult bookstore, or an adult dancing establishment operated for commercial or pecuniary gain. ("Operated for commercial or pecuniary gain" shall not depend upon actual profit or loss. Also, "operated for commercial or pecuniary gain" shall be presumed where the establishment has an occupational license.) An establishment with an adult entertainment license is presumed to be an adult entertainment establishment.
68
(e) "Adult Material" means any one or more of the following, regardless of whether it is new or used:
69
(1) Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides, or other visual representations, or recordings, or other audio matter, which have as their primary or dominant theme matter depicting, illustrating, describing or relating to specified sexual activities or specified anatomical areas; or(2) Instruments, novelties, devices or paraphernalia which are designed for use in connection with specified sexual activities.
70
(f) "Adult Motel" means any motel, hotel, boarding house, rooming house or other place of temporary lodging which includes the word "adult" in any name it uses or otherwise advertises the presentation of films, motion pictures, video cassettes, slides or other photographic repreductions, which have as their primary or dominant theme matters depicting, illustrating or relating to specified sexual activities or specified anatomical areas. The term "adult motel" is included within the definition of "adult theater".
71
(g) "Adult Theater" means an establishment which, except as set forth in the final sentence of this paragraph, consists of an enclosed building, or a portion or part of an enclosed building, or an open-air area used for viewing by persons of films, motion pictures, video cassettes, slides, or other photographic repreductions which have as their primary or dominant theme matters depicting, illustrating or relating to specified sexual activities or specified anatomical areas. "Adult motels" are included within the definition of "adult theater". An establishment which has "adult booths" is considered to be an "adult theater".
72
(h) "Alcoholic Beverage" means a beverage containing more than one percent (1%) of alcohol by weight.
73
(1) It shall be prima-facie evidence that a beverage is an alcoholic beverage if there is proof that the beverage in questions was or is known as whiskey, moonshine whiskey, shine, rum, gin, tequila, vodka, scotch, scotch whiskey, brandy, beer, malt liquor, or by any other similar name or names, or was contained in a bottle or can labeled as any of the above names, or a name similar thereto, and the bottle or can bears the manufacturer's insignia, name, or trademark.
74
(2) Any person who, by experience in the handling or alcoholic beverages, or who by taste, smell, or drinking of such alcoholic beverages has knowledge of the alcoholic nature thereof, may testify as to his opinion about whether such beverage is an alcoholic beverage.
75
(i) "Board" means the Board of County Commissioners of Citrus County, Florida.
76
(j) "County Administrator" means the chief administrative officer or his designee.
77
(k) "Conviction" means a determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended.
78
(l ) "Department" means the Building Department, Fire Prevention Division, Health Department, Sheriff, Zoning and Permits Division, or the Department of Development Services, including the respective director, employees, and agents thereof.
79
(m) "Educational Institution" means a premises or site upon which there is an institution of learning for minors, whether public or private, which conducts regular classes and/or courses of study required for eligibility to certification by, accreditation to, or membership in the State Department of Education of Florida, Southern Association of Colleges and Secondary Schools, or the Florida Council of Independent School. The term "educational institution" includes a premises or site upon which there is a nursery school, kindergarten, elementary school, junior high school, senior high school, or any special institution of learning. However, the term "educational institution" does not include a premises or site upon which there is a vocational institution, professional institution or an institution of higher education, including a community college, junior college, four year college or university.
80
(n) "Employee" means a person who works or performs in an adult entertainment establishment, irrespective of whether said person is paid a salary or wage by the owner or manager of the premises.
81
(o) "Establishment" means a site or premises, or portion thereof, upon which certain activities or operations are being conducted for commercial or pecuniary gain. ("Operated for commercial or pecuniary gain" shall not depend upon actual profit or loss. Also, "operated for commercial or pecuniary gain" shall be presumed where the establishment has an occupational license.)
82
(p) "Inspector" means a respective employee of the Health Department, Building Department, Zoning and Permits Division, Sheriff, or Fire Prevention Division who inspects premises licensed under this Ordinance and takes or requires the actions authorized by this Ordinance in case of violations being found on licensed premises, and who also inspects premises seeking to be licensed under this Ordinance and takes or requires corrections of unsatisfactory conditions found on the premises.
83
(q) "Licensee" means any person whose application for an adult entertainment establishment has been granted and who owns, operates or controls the establishment.
84
(r) "Operator" means any person who engages in or performs any activity which is necessary to or which facilitates the operation of an adult entertainment establishment, including but not limited to the licensee, manager, owner, doorman, bartender, disc jockey, sales clerk, ticket taker, movie projectionist, or supervisor.
85
(s) "Park" means a tract of land within a municipality or unincorporated area which is kept for ornament and/or recreation and which is maintained as public property.
86
(t) "Permittee" means a person who has obtained an adult entertainment permit pursuant to SECTION 3 of this Ordinance.
87
(u) "Person" includes, but is not limited to, an individual, associations, joint ventures, partnerships estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other or any other similar entity.
88
(v) "Private performance" means the display or exposure of any specified anatomical area by an employee at an adult entertainment establishment to a person other than another employee while the person is in an area not accessible during such display to all other persons in the establishment, or which the person is in an area in which the person is totally or partially screened or partitioned during such display from the view of all persons outside the area.
89
(w) "Religious institution" means a premises or site which is used primarily or exclusively for religious worship and related activities.
90
(x) "Specified anatomical areas" means:
91
(1) less than completely and opaquely covered:
92
(A) human genitals or pubic region; or
93
(B) cleavage of the human buttocks; or
94
(C) that portion of the human female breast encompassed within an area falling below the horizontal line one would have to draw to intersect a point immediately above the top of the areola (the colored ring around the nipple). This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit, or other wearing apparel, provided the areola is not so exposed.
95
(2) human male genitals in a discernibly turgid state, even if completely and opaquely covered.
96
(y) "Specified criminal act" means:
97
(1) A criminal violation of this Ordinance;
98
(2) Any felony;
99
(3) An offense under Chapter 794, Florida Statutes (Sexual Battery);
100
(4) An offense under Chapter 796, Florida Statutes (Prostitution);
101
(5) An offense under Chapter 800, Florida Statutes (Lewdness; Indecent Exposure);
102
(6) An offense under Chapter 826, Florida Statutes (Bigamy; Incest);
103
(7) An offense under Chapter 847, Florida Statutes (Obscene Literature; Profanity); or
104
(8) An offense under an analogous statute of a state other than Florida, or under an analogous ordinance of another county or city.
105
(z) "Specified sexual activities" means;
106
(1) human genitals in a state of sexual stimulation, arousal or tumescence; or
107
(2) acts of human analingus, beastiality, buggery, cunnilingus, coprophagy, coprophilia, fellation, flagellation, masochism, masturbation, necrophilia, pederasty, pedophilia, sadism, sadomasochism, sapphism, sexual intercourse, sodomy, urolagnia or zooerasty; or
108
(3) fondling or other erotic touching of human genitals, pubic region, buttock, anus or female breast; or
109
(4) excretory functions as part of or in connection with any of the activities set forth in subsections (1) through (3).
110
(aa) "Straddle dance" also known as a "lap dance" or "face dance", means the use by an employee, of any part of his or her body to touch the genital or pubic area of a person while at the establishment, or the touching of the genital or pubic area of any employee with a person while at the establishment. It shall be a "straddle dance" regardless of whether the "touch" or "touching" occurs while the employee is displaying or exposing any specified anatomical area. It shall also be a "straddle dance" regardless of whether the "touch" or "touching" is direct or through a medium.
111
Section 1-8. Regulation of Obscenity Subject to State Law. It is not the intent of the Board to legislate with respect to matters of obscenity. These matters are regulated by state law.
112
Section 1-9. Regulation of Massage Establishments Subject to State Law. It is not the intent of the Board to legislate with respect to matters of massage establishments. These matters are regulated by state agency, the Department of Professional Regulation, Board of Massage, and by state law, Chapter 480, Florida Statutes.
113
Section 1-10. Severability. If any portion of this Ordinance, or any application thereof is declared to be void, unconstitutional or invalid for any reason, such portion or provision, or this application thereof, shall be severable from this Ordinance. The remaining portions and provisions of this Ordinance, and all applications thereof shall remain in full force and effect. No void, unconstitutional or invalid portion or proscribed provision, or application thereof, was an inducement to the enactment of this Ordinance.
SECTION 2. LICENSING PROVISIONS
114
Section 2-1. Responsibilities of Board, County Administrator and Departments. Ultimate responsibility for the administration of this Ordinance is vested in the Board. The County Administrator or his designee is responsible for granting, denying, revoking, renewing, suspending, and cancelling adult entertainment licenses for proposed or existing adult entertainment establishments. The Sheriff is responsible for verifying information contained on an application pursuant to Section 2-3(b)(1)-(5) of this Ordinance, for inspecting any proposed, licensed or non-licensed establishment in order to ascertain whether it is in compliance with applicable criminal statutes and ordinances, and for enforcing applicable criminal statutes and ordinances, including those set forth at SECTION 5 of this Ordinance. In addition, the Sheriff is responsible for reviewing permit applications, as provided in SECTION 3. The Building Department is responsible for inspecting any proposed establishment for which a license is being applied for or any licensed establishment in order to ascertain whether it complies with or is complying this Ordinance and all applicable building codes, statutes, ordinances, and regulations in effect in Citrus County, Florida. The Division of Fire Prevention is responsible for inspecting any proposed establishment for which a license is being applied for or any licensed establishment in order to ascertain whether it complies with or is complying with SECTION 4 of this Ordinance and all applicable fire codes, statutes, ordinances and regulations in Citrus County. The Health Department is responsible for any proposed establishment for which a license is being applied for or any licensed establishment in order to ascertain whether it complies with or is complying with SECTION 4 of this Ordinance and all applicable health codes, statutes, ordinances, and regulations in effect in Citrus County. In addition, the Health Department is responsible for reviewing permit applications, as provided in SECTION 3. The Zoning and Permits Division of the Department of Development Services is responsible for ascertaining whether a proposed establishment for which a license is being applied for complies with all locational requirements of this Ordinance, applicable portions of this Ordinance, all applicable zoning regulations in effect in Citrus County, and whether a licensed establishment is complying with SECTION 5 of this Ordinance and all applicable zoning regulations and land use laws in effect in Citrus County. The County Administrator is responsible for granting, denying, renewing, cancelling, suspending, and revoking permits for proposed or current permittees in accordance with SECTION 3 of this Ordinance.
115
Section 2-2. Adult Entertainment License Required: Classifications of.
116
(a) Requirement. No adult entertainment establishment shall be permitted to operate without having been first granted an adult entertainment license by the County Administrator under this Ordinance.
117
(b) Classifications. Adult entertainment establishment licenses referred to in this Ordinance shall be classified as follows:
118
(1) adult bookstore;
119
(2) adult theater; and
120
(3) adult dancing establishment.
121
(c) Single Classification of License. Any adult entertainment license for a particular adult entertainment establishment shall be limited to one classification of license.
122
Section 2-3. Application Required for Adult Entertainment License; Contents of; Application Fee; Rejection of Incomplete Application; Consent by Applicant.
123
(a) Required. Any person desiring to operate an adult entertainment establishment shall file with the County Administrator a sworn license application on a standard application form supplied by the County Administrator.
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(b) Contents of Application. The completed application shall contain the following information and shall be accompanied by the following documents:
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(1) if the applicant is:
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(A) an individual, the individual shall state his legal name and any aliases and submit satisfactory proof that he is eighteen (18) years of age; or
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(B) a partnership, the partnership shall state its complete name, and the names of all partners, whether the partnership is general or limited, and, if in existence, a copy of the partnership agreement; or
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(C) a corporation, the corporation shall state its complete name, the date of its incorporation, evidence that the corporation is in good standing, the names and capacity of all officers, directors and principal stockholders, and, if applicable, the name of the registered corporate agent and the address of the registered office for service of process;
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(2) if the applicant intends to conduct the establishment under a name other than that of the applicant, the establishment's fictitious name and the county of registration under Section 865.09, Florida Statutes (1987);
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(3) whether the applicant or any of the other individuals listed pursuant to subparagraph (1) has, within the five (5) year period immediately preceding the date of the application, been convicted of a specific criminal act, and, if so, the specified criminal act involved, the date of conviction and the place of conviction;
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(4) whether the applicant or any of the other individuals listed pursuant to subparagraph (1) has had a previous license under this Ordinance suspended or revoked, including the name and location of the establishment for which the license was suspended or revoked, as well as the date of the suspension or revocation, and whether the applicant or any other individuals listed pursuant to subparagraph (1) has been a partner in a partnership or an officer, director or principal stockholder of a corporation whose license under this Ordinance has previously been suspended or revoked, including the name and location of the establishment for which the license was suspended or revoked, as well as the date of the suspension or revocation;
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(5) whether the applicant or any other individuals listed pursuant to subparagraph (1) holds any other licenses under this Ordinance and, if so, the names and locations of such other licensed establishments;
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(6) the single classification of license for which the applicant is filing;(7) the location of the proposed establishment, including a legal description of the property site, and a legal street address;
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(8) the names of the employees for the proposed establishment, if known, or, if presently unknown a statement to that effect;
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(9) the applicant's mailing address; and
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(10) a site plan drawn to appropriate scale of the proposed establishment, including, but not limited to; (A) all property lines, right-of-way, and the location of the buildings, parking areas and spaces, curb cuts, and driveways; (B) all windows, doors, entrances and exits, fixed structural features, walls, stages, partitions, projection booths, admission booths, adult booths, concession booths, stands, counters and similar structures; (C) all proposed improvements or enlargements to be made, which shall be indicated and calculated in terms of percentage of increase in floor size.
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(c) Application Fee. Each application shall be accompanied by a non-refundable fee of Two Hundred Dollars ($200.00). If the application for a license is approved and a license is granted, the fee shall be applied as a credit towards the annual license fee required for the first year pursuant to Section 2-7 of this Ordinance.
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(d) Rejection of Incomplete Application. In the event the County Administrator determines or learns at any time that the applicant has not properly completed the application for a proposed establishment, he shall promptly notify the applicant of such fact and shall automatically reject the application.
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(e) Consent. By applying for a license under this Ordinance, the applicant shall be deemed to have consented to the provisions of this Ordinance and to the exercise by the County Administrator and the Departments of their respective responsibilities under this Ordinance.
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Section 2-4. Investigation of Application.
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(a) Upon receipt of the application properly filed with the County Administrator and upon payment of the non-refundable application fee, the County Administrator shall immediately stamp the application as received and shall immediately thereafter send photocopies of the application to the Sheriff, the Department of Development Services, Fire Prevention, and the Health Department. Each department shall promptly conduct an investigation of the applicant, application and the proposed establishment in accordance with its responsibilities summarized in Section 2-1 of this Ordinance. At the conclusion of its investigation, each department shall indicate on the photocopy of the application its approval or disapproval of the application, date it, sign it, and, in the event it disapproves, it shall so state its reasons.
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(b) A Department shall disapprove of an application if it finds that the proposed establishment will be in violation of any provision of this Ordinance or of any building, fire, health, or zoning statute, code, ordinance, or regulation. After its indication of approval or disapproval, each department shall immediately return the photocopy of the application to the County Administrator.
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Section 2-5. Grant; Denial.
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(a) Time Period for Granting or Denying License.
145
(1) The County Administrator shall grant or deny an application for an adult dancing establishment within forty-five (45) days from the date of its proper filing. Upon the expiration of the forty-five (45) day period the applicant may be permitted to begin operating the establishment for which a license is sought, unless and until the County Administrator notifies the applicant of a denial of the application and states the reason(s) for the denial.
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(2) The County Administrator shall grant or deny an application for an adult bookstore or adult theater within fourteen (14) days from the date of proper filing. Upon the expiration of the fourteen (14) day, the applicant may be permitted to begin operating the establishment for which a license is sought, unless and until the County Administrator notifies the applicant of a denial of the application and states the reason(s) for that denial.
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(b) Granting of Application for License. If each of the departments has approved of the application, the County Administrator shall grant the application, notify the applicant of the granting, and issue the license to the applicant upon payment of the appropriate annual license fee provided in Section 2-6 and 2-7, with credit as provided in Section 2-3(c).
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(c) Denying of Application for License.
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(1) The County Administrator shall deny the application for any of the following reasons:
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(A) any of the Departments, excluding the Sheriff, has disapproved of the application;
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(B) the application contains material false information;
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(C) the applicant or any of the other individuals listed pursuant to Section 2-3(b)(1) has a license under this Ordinance which has been suspended or revoked;
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(D) the granting of the application would violate a statute or ordinance or an order from a court of law which effectively prohibits the applicant from obtaining an adult entertainment establishment license.
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(2) If the County Administrator denies the application, he shall notify the applicant of the denial, and state the reason(s) for the denial.
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(3) If a person applies for a license at a particular location within a period of nine (9) months from the date of denial of a previous application for a license at the location, and there has not been an intervening change in the circumstances which will probably lead to a different decision regarding the former reason(s) for denial, the application shall be rejected.
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Section 2-6. Contents of License; Terms of License; Renewals; Expiration; cancellation.
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(a) Contents. An adult entertainment license shall state on its face the name of the licensee, the name of the establishment, the street address of the establishment, the classification(s) of the license, the date of issuance, and the date of expiration.
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(b) Terms. All licenses issued under this Ordinance shall be annual licenses which shall commence running on October 1, on which date they shall have been paid for, and shall expire on September 30 of the following year. If a license is issued after October 1, but by March 31 of the following year, the applicant shall pay the appropriate license fee. If a license is issued after March 31, but by October 1 of the same year, the applicant shall pay one-half the appropriate license fee.
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(c) Renewals. Licenses shall be renewed annually. Subject to other provisions of this Ordinance, a licensee under this Ordinance shall be entitled to a renewal of his annual license from year to year, as a matter of course, by October 1 by presenting the license for the previous year and by paying the appropriate license fee.
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(d) Expiration. A license that is not renewed under this Ordinance by October 1 of each year shall expire. An expired license may be renewed by November 30 of the same year upon presentation of an affidavit stating that no adult entertainment activity has taken place at the establishment subsequent to expiration, upon payment of the appropriate license fee, and upon payment of a penalty of ten percent (10%) of the appropriate license fee for the month of October, or fraction thereof, and an additional penalty of five percent (5%) of the appropriate license fee for the month of November, or fraction thereof.
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(e) Cancellation. All expired licenses not renewed by November 30 shall be cancelled summarily by the County Administrator.
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Section 2-7. Annual License Fees; Levy of; Regulatory in Nature.
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(a) Levy of License Fees. There are hereby levied the following annual license fees under this Ordinance for an adult entertainment establishment;
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(1) an establishment having a license for only an adult bookstore--seven hundred fifty dollars ($750.00)
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(2) an establishment having a license for only an adult theater, as follows:
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(A) having only adult booths--thirty-five dollars ($35.00) for each booth; or
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(B) having only a hall or auditorium--three dollars and fifty cents ($3.50) for each seat; or(C) having only an area outdoors designed to permit viewing by customers seated in vehicles--three dollars and fifty cents ($3.50) for each parking space; or
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(D) having a combination of (A), (B), and/or (C)--the cumulative license fee applicable to each under (A), (B), and (C);
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(E) adult motel--seven hundred fifty dollars ($750.00);
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(3) an establishment having a license for only an adult dancing establishment--seven hundred fifty dollars ($750.00);
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(4) an establishment having a license for two classifications--eight hundred dollars ($800.00);
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(5) an establishment having a license for three classifications--nine hundred dollars ($900.00).
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(b) License Fees are Regulatory in Nature. The annual license fees collected under this Ordinance are declared to be regulatory fees which are collected for the purpose of examination and inspection of adult entertainment establishments under this Ordinance and the administration thereof. The regulatory fees are in addition to and not in lieu of the occupational license taxes imposed by other Ordinances of Citrus County, Florida.
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Section 2-8. Records and Reports; Consent by Licensee.
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(a) Records and Reports. Each licensee shall keep such records and make such reports as may be required by the County Administrator and the Departments to implement this Ordinance and to carry out its purpose.
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(b) Consent. By holding a license under this Ordinance, the licensee shall be deemed to have consented to the provisions of this Ordinance and to the exercise by the County Administrator and the Departments of their respective responsibilities under this Ordinance.
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Section 2-9. Transfer of License.
178
(a) Requirements for Transfer. A licensee shall not transfer his license to another person, and thereby surrender possession, control, and operation of the licensed establishment to such other person, unless and until such other person satisfies the following requirements:
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(1) obtains an amendment to the license from the Ordinance which provides that he is now the licensee, which amendment may be obtained only if he has completed and properly filed an application with the County Administrator setting forth the information called for under Section 2-3(b)(1)-(5), and (9), and the application has been granted by the County Administrator after approval by the Sheriff's Department; and
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(2) in the event he has purchased the licensed establishment from the licensee, adduces satisfactory proof that the sale was bona fide; and
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(3) pays a transfer fee of ten percent (10%) of the appropriate annual license fee.
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(b) Effect of Suspension or Revocation Procedures. No license may be transferred pursuant to subsection (a) when the County Administrator has notified the licensee that suspension of revocation proceedings have been or will be brought against the licensee.
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(c) No Transfer to Different Location. A licensee shall not transfer his license to another location.
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(d) Attempted Improper Transfer Void; License Abandoned. Any attempted transfer of a license either directly or indirectly in violation of this Section is hereby declared void, and the license shall be deemed abandoned and shall revert to the County Administrator.
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Section 2-10. Changing Name of Establishment. No licensee may change the name of an adult entertainment establishment unless and until he satisfies each of the following requirements:
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(a) gives the County Administrator thirty (30) days notice in writing of the proposed name change;
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(b) pays the County Administrator a three dollar ($3.00) change-of-name fee; and
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(c) complies with Section 865.09, Florida Statutes (1985).
189
Section 2-11. Suspension of License.
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(a) Violation of a Building, Fire, Health, or Zoning Statute, Code, Ordinance or Regulation. In the event a Department learns or finds upon sufficient cause that a licensed adult entertainment establishment is operating in violation of a building, fire, health, or zoning statute, code, ordinance or regulation, whether federal, state of local, contrary to the respective general requirements of Section 4-1(a), (b), (c), or (d), the Department shall promptly notify the licensee of the violation and shall allow the licensee a seven (7) day period in which to correct the violation. If the licensee fails to correct the violation before the expiration of the seven (7) day period the Department shall notify the County Administrator, who shall forthwith suspend the license, and shall notify the licensee of the suspension. The suspension shall remain in effect until the Department notifies the County Administrator in writing that the violation of the provision in question has been corrected.
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(b) Illegal Transfer. In the event the County Administrator learns or finds upon sufficient cause that a licensee engaged in a license transfer contrary to Section 2-9, he shall forthwith suspend the license, and notify the licensee of the suspension. The suspension shall remain in effect until the County Administrator is satisfied that the requirements of Section 2-9(a) have been met.
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(c) Convictions for Violations of SECTION 5 of this Ordinance.
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(1) In the event three (3) or more violation of SECTION 5 of this Ordinance occur at an adult entertainment establishment within a two (2) year period, and convictions result from at least three (3) of the violations, the County Administrator shall, upon the date of the third conviction, suspend the license, and notify the licensee of the suspension. The suspension shall remain in effect for a period of thirty (30) days.
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(2) In the event one (1) or more violations of SECTION 5 of this Ordinance occur at the establishment within a period of two (2) years from the date of the violation from which the conviction resulted for which the license was suspended for thirty (30) days under subsection (c)(1), but not including any time during which the license was suspended for thirty (30) days, and a conviction results from one (1) or more of the violations, the County Administrator shall, upon the date of the first conviction, suspend the license again, and notify the licensee of the suspension. The suspension shall remain in effect for a period of ninety (90) days.
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(3) In the event one (1) or more violations of SECTION 5 of this Ordinance occur within a period of two (2) years from the date of the violation from which the conviction resulted for which the license was suspended for ninety (90) days under subsection (c)(2), but not including any time during which the license was suspended for ninety (90) days, and a conviction results from one (1) or more of the violations, the County Administrator shall, upon the date of the first conviction, suspend the license again, and notify the licensee of the suspension. The suspension shall remain in effect for a period of one hundred eighty (180) days.
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(4) The transfer of renewal of a license pursuant to this Ordinance shall not defeat the terms of subsection (c)(1)-(3).
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(d) Effective Date of Suspension. All periods of suspension shall begin sixteen (16) days after the date the County Administrator mails the notice of suspension to the licensee or on the date the licensee delivers his license to the County Administrator, whichever occurs first.
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Section 2-12. Revocation of License.
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(a) False Information. In the event the County Administrator learns or finds upon sufficient cause that a license was granted based upon false information, misrepresentation of fact, or mistake of fact, he shall forthwith revoke the license, and notify the licensee of the revocation.
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(b) Convictions for Violation of SECTION 5 of this Ordinance.
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(1) In the event one (1) or more violations of SECTION 5 of this Ordinance occur at an adult entertainment establishment which has had a license suspended for a period of one hundred eighty (180) days pursuant to Section 2-9(c)(3), and the violation(s) occur within a period of two (2) years from the date of the violation from which the conviction resulted for which the license was suspended for one hundred eighty (180) days, but not including any time during which the license was suspended for one hundred eighty (180) days, the County Administrator shall forthwith revoke the license, and notify the licensee of the revocation.
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(2) The transfer or renewal of a license pursuant to this Ordinance shall not defeat the terms of subsection (b)(1).
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(c) Effect of Revocation. If a license is revoked, the licensee shall not be allowed to obtain another adult entertainment license for a period of ten (10) years and no license shall be issued again to any other person for the location upon which the adult entertainment establishment was situated.
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(d) Effective Date of Revocation. The revocation shall take effect sixteen (16) days after the date the County Administrator mails the notice of revocation to the licensee or on the date the licensee delivers his license to the County Administrator, whichever happens first.
SECTION 3. PERMITTING PROVISIONS
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Section 3-1. Adult Entertainment Permit Required.
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(a) Subject to subsection (b), no individual may work in an adult entertainment establishment without having applied for and having been granted a temporary or permanent adult entertainment permit from the County Administrator under this Ordinance.
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(b) An individual who is to engage exclusively in performing janitorial or maintenance services at an adult entertainment establishment, or an individual who is to engage exclusively in performing barbering or cosmetology pursuant to a license issued under, respectively, Chapters 476 or 477, Florida Statutes (1985), is exempt from subsection (a).
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Section 3-2. Application Requirement for Adult Entertainment Permit; Contents of; Application Fee; Rejection of Incomplete Application; Consent by Applicant.
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(a) Required. Any individual desiring to work in an adult entertainment establishment shall file with the County Administrator a sworn permit application on a standard application form supplied by the County Administrator.
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(b) Contents of Application. The completed application shall contain the following information and shall be accompanied by the following documents:
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(1) The applicant shall state his legal name and any aliases;
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(2) The applicant shall submit satisfactory proof that he is at least eighteen (18) years of age, and a photocopy of such proof shall be retained by the County Administrator;
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(3) The applicant shall furnish a set of his fingerprints which have been taken by the Sheriff;
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(4) The applicant shall present a recent color photograph of himself which has been taken by the County Administrator;
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(5) The applicant shall state his mailing address and, if different, his address of residence;
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(6) The applicant shall reveal his driver's license number;
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(7) The applicant shall state whether he has, within the five (5) year period immediately preceding the date of the application, been convicted of a specified criminal act, and if so, the specified criminal act involved, the date of conviction, and the place of conviction;
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(8) The applicant shall indicate whether he or she has had a previous permit under this Code which has been suspended or revoked, and, if so, the date of the suspension or revocation;
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(9) Any additional information which the County Administrator deems necessary to effectuate the language and purpose of this Ordinance.
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(c) Application Fee. Each application for a permit shall be accompanied by a non-refundable fee of fifty dollars ($50.00). If the application for a permit is approved and a permit is granted, the fee shall be applied as a credit towards the permit fee required pursuant to Section 2-7 of this Ordinance.
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(d) Rejection of Incomplete Application. In the event the County Administrator determines or learns at any time that the applicant has not properly completed the application for a permit, he shall promptly notify the applicant of such fact, and shall automatically reject the application.
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(e) Consent. By applying for a permit under this Ordinance, the applicant shall be deemed to have consented to the provisions of this Ordinance and to the exercise by the County Administrator, the Sheriff and, if applicable, the Health Department, of their respective responsibilities under this Ordinance.
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Section 3-3. Temporary Permit. The County Administrator shall issue a temporary permit to an applicant on the date that the applicant properly files an application. The temporary permit shall automatically expire after fourteen (14) days.
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Section 3-4. Investigation of Application. Upon receipt of an application properly filed with the County Administrator and upon payment of the non-refundable application fee, the County Administrator shall immediately stamp the application as received and shall immediately thereafter send a fingerprint card to the Sheriff, and, if the applicant has indicated an intention to work in an adult dancing establishment, notify the Health Department of the applicant's name and address. The County Administrator, and, if applicable, the Health Department, shall promptly conduct an investigation of the applicant in accordance with their respective responsibilities under Section 2-1 of this Ordinance.
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Section 3-5. Grant; Denial.
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(a) Time Period for Granting or Denying Permit. The County Administrator shall grant or deny any application within fourteen (14) days from the date of its proper filing.
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(b) Granting of Permit. If the Sheriff, the County Administrator, and, if applicable, the Health Department, have each approved of the application, the County Administrator shall grant the application, notify the applicant of the granting, and issue a permit to the applicant.
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(c) Denying of Permit.
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(1) The County Administrator shall deny the application for any of the following reasons:
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(A) the applicant is less than eighteen (18) years of age;
231
(B) the application contains material false information;
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(C) the applicant has had a previous permit under this Ordinance which has been suspended or revoked; or
233
(D) the granting of the application would violate a statute or ordinance or an order from a court of law which prohibits the applicant from obtaining an adult entertainment permit.
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(2) If the County Administrator denies the application, it shall notify the applicant of the denial, and state the reason(s) for the denial.
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Section 3-6. Contents of Permit; Scope; Term of Permit; Renewals; Expiration; Cancellation.
236
(a) Contents. The permit shall contain the following:
237
(1) The permittee's legal name and any aliases;
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(2) The permittee's residential address;
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(3) The permittee's sex;
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(4) The permittee's birth date;
241
(5) The permittee's signature;
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(6) The color photograph of the permittee which was taken by the County Administrator;
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(7) The expiration date of the permit; and
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(8) The signature of the County Administrator.
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(b) Scope. The permit shall entitle the permittee to work in any adult entertainment establishment.
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(c) Term. All permits issued under this Ordinance shall remain valid for two (2) years from the date of issuance.
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(d) Renewal. Permits shall be renewed on or before two (2) years from the date of issuance. A permittee shall be entitled to a renewal of his or her permit, as a matter of course, upon payment of a fifty dollar ($50.00) fee.
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(e) Expiration. A permit that is not renewed on or before two (2) years from the date of issuance shall expire. An expired permit may be renewed within thirty (30) days upon presentment of an affidavit by the permittee stating that he has not engaged in any work at any adult entertainment establishment subsequent to expiration, upon payment of the permit fee of fifty dollars ($50.00), and upon payment of a penalty fee of ten dollars ($10.00).
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(f) Cancellation. All expired permits not renewed within thirty (30) days shall be cancelled summarily by the County Administrator.
250
Section 3-7. Permit Fee.
251
The fee for a permit under this Ordinance shall be fifty dollars ($50.00).
252
Section 3-8. Suspension of Permit.
253
(a) Conviction for Violation of SECTION 4 of this Ordinance. In the event a permittee commits one (1) or more violations of SECTION 4 of this Ordinance, and a conviction results from at least one (1) of the violations, the County Administrator shall, upon the date of the conviction, suspend the permit, and notify the permittee of the suspension. The suspension shall remain in effect for a period of ninety (90) days.
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(b) Effective Date of Suspension. The period of suspension shall begin sixteen (16) days after the date the County Administrator mails the notice of suspension to the permittee or on the date the permittee delivers his permit to the County Administrator, whichever happens first.
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Section 3-9. Revocation of Permit.
256
(a) Conviction for Violation of this Ordinance. In the event a permittee commits one (1) or more violations of SECTION 5 of this Ordinance within a period of two (2) years from the date of the violation from which the conviction resulted for which the permit was suspended under Section 2-8, but not including any time during which the permit was suspended, and a conviction results from one (1) or more of the violations, the County Administrator shall, upon the date of the first conviction, revoke the permit, and notify the permittee of the revocation.
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(b) Effect of Revocation. If a permit is revoked, the permittee shall not be allowed to obtain another adult entertainment permit for a period of five (5) years.
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(c) Effective Date of Revocation. The revocation shall take effect sixteen (16) days after the date the County Administrator mails the notice of revocation to the permittee or on the date the permittee delivers his license to the County Administrator, whichever happens first.
259
SECTION 4. PROVISIONS FOR ADULT ENTERTAINMENT ESTABLISHMENTS
260
Section 4-1. General Requirements.
261
Each adult entertainment establishment shall, regardless of whether it is licensed, observe the following general requirements:
262
(a) conform to all applicable building statutes, codes, ordinances, and regulations, whether federal, state or local;
263
(b) conform to all applicable fire statutes, codes, ordinances, and regulations, whether federal, state or local;
264
(c) conform to all applicable health statutes, codes, ordinances, and regulations, whether federal, state or local;
265
(d) conform to all applicable zoning regulations and land use laws, whether state or local;
266
(e) keep the adult entertainment license posted in a conspicuous place at the establishment at all times, which license shall be available for inspection upon request at all times by the public;
267
(f) opaquely cover each non-opaque area through which a person outside the establishment may otherwise see inside the establishment;
268
(g) on the first Monday of every month provide the County Administrator with a listing of all persons who are, or have been employees at the establishment since the first Monday of the previous month, and their positions.
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Section 4-2. Adult Theater.
270
In addition to the general requirements for an adult entertainment establishment contained in Section 4-1, an adult theater shall, regardless of whether it is licensed, observe the following special requirements:
271
(a) If the adult theater contains a hall or auditorium area, the area shall comply with each of the following provisions:
272
(1) have individual, separate seats, not couches, benches, or the like, to accommodate the maximum number of persons who may occupy the area;
273
(2) have a continuous main aisle alongside of the seating areas in order that each person seated in the areas shall be visible from the aisle at all times; and
274
(3) have a sign posted in a conspicuous place at or near each entranceway to the hall or auditorium area which lists the maximum number of persons who may occupy the hall or auditorium area, which number shall not exceed the number of seats within the hall or auditorium area.
275
(b) If the adult theater contains adult booths, each adult booth shall comply with each of the following provisions:
276
(1) have a sign posted in a conspicuous place at or near the entranceway which states the maximum number of persons who may occupy the booth, which number shall correlate with the number of seats in the booth;
277
(2) have a permanently open entranceway not less than two (2) feet wide and not less than six (6) feet high, not capable of being closed or partially closed by any curtain, door, or other partition which would be capable of wholly or partially obscuring any person situated in the booth;
278
(3) have individual, separate seats, not couches, benches, or the like, which correlate with the maximum number of persons who may occupy the booth;
279
(4) have a continuous main aisle alongside the booth in order that each person situated in the booth shall be visible from the aisle at all times; and
280
(5) have, except for the entranceway, walls or partitions of solid construction without any holes or openings in such walls or partitions.
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(c) If the adult theater is designed to permit outdoor viewing by persons seated in automobiles, it shall have the motion picture screen so situated, or the perimeter of the establishment so fenced, that the material to be seen by those persons may not be seen from any public right-of-way, property zoned for residential use, religious institution, educational institution, or park.
282
Section 4-3. Adult Dancing Establishment.
283
In addition to the general requirements for an adult entertainment establishment contained in Section 4-1, an adult dancing establishment shall, regardless of whether it is licensed, observe the following special requirements:
284
(a) it shall have a stage provided for the display or exposure of any specified anatomical area by an employee to a person other than another employee consisting of a permanent platform (or other similar permanent structure) raised a minimum of eighteen (18) inches above the surrounding floor and encompassing an area of at least one hundred (100) square feet; and
285
(b) any area in which a private performance occurs shall:
286
(1) have a permanently open entranceway not less than two (2) feet wide and not less than six (6) feet high, which entranceway is not capable of being closed or partially closed by any curtain, door, or other partition which would be capable of wholly or partially obscuring any person situated in the area; and
287
(2) have a wall-to-wall, floor-to-ceiling partition of solid construction without any holes or openings, which partition may be completely or partially transparent, and which partition separates the employee from the person viewing the display.SECTION 5. CRIMINAL PROVISIONS
288
Section 5-1. Operation of Establishment Without Valid Adult Entertainment License.
289
It shall be unlawful for any person to be an operator of an adult entertainment establishment where the person knows or should know:
290
(a) that the establishment does not have an adult entertainment license for any applicable classification;
291
(b) that the establishment has a license which is under suspension;
292
(c) that the establishment has a license which has been revoked or cancelled; or
293
(d) that the establishment has a license which has expired.
294
Section 5-2. Operation of Establishment Contrary to Certain Requirements.
295
(a) It shall be unlawful for any person to be an operator of an adult entertainment establishment which does not satisfy all of the general requirements of Section 4-1.
296
(b) It shall be unlawful for any person to be an operator of an adult theater which does not satisfy all of the special requirements of Section 4-2.
297
(c) It shall be unlawful for any person to be an operator of an adult dancing establishment which does not satisfy all of the special requirements of Section 4-3.
298
Section 5-3. Allowing Employee to Engage in Prohibited Acts.
299
It shall be unlawful for an operator of an adult entertainment establishment, regardless of whether it is licensed under this Ordinance, to knowingly or with reason to know, permit, suffer, or allow any employee:
300
(a) to engage in a straddle dance with a person at the establishment;
301
(b) to contract or otherwise agree with a person to engage in a straddle dance with a person at the establishment;
302
(c) to engage in any specified sexual activity at the establishment;
303
(d) to, where alcoholic beverages are sold, offered for sale, or consumed, display or expose at the establishment less than completely and opaquely covered human genitals or pubic region, less than completely and opaquely covered cleavage of the human buttocks, less than completely and opaquely covered areola and nipple of the human female breast, or human male genitals in a discernibly turgid state, even if completely and opaquely covered;
304
(e) to display or expose at the establishment less than completely and opaquely covered human genitals or pubic region, less than completely and opaquely covered cleavage of the human buttocks, less than completely and opaquely covered areola and nipple of the human female breast, or human male genitals in a discernibly turgid state, even if completely and opaquely covered, unless such employee is continuously positioned away from any person other than another employee, and unless such employee is in an area as described in Section 5;
305
(f) to display or expose any specified anatomical area while simulating any specified sexual activity with any other person at the establishment, including with another employee;
306
(g) to engage in a private performance unless such employee is in an area which complies with the special requirements of Section 4-3(b)(1) and (b)(2);
307
(h) to, while engaged in the display or exposure of any specified anatomical area, intentionally touch any person at the adult entertainment establishment, excluding another employee;
308
(i) to intentionally touch the clothed or unclothed body of any person at the adult entertainment establishment, excluding another employee, at any point below the waist and above the knee of the person, or to intentionally touch the clothed or unclothed breast of any female person; or
309
(j) subject to Section 3-1(b), to work who has not applied for and obtained a permit under this Ordinance.
310
Section 5-4. Advertising Prohibited Activity.
311
It shall be unlawful for an operator of an adult entertainment establishment, regardless of whether it is licensed under this Ordinance, to advertise the presentation of any activity prohibited by any applicable state statute or local ordinance.
312
Section 5-5. Minors Prohibited.
313
It shall be unlawful for an operator of an adult entertainment establishment, regardless of whether it is licensed under this Ordinance, to knowingly, or with reason to know, permit, suffer, or allow:
314
(a) admittance to the establishment of a person under eighteen (18) years of age;
315
(b) a person under eighteen (18) years of age to remain at the establishment;
316
(c) a person under eighteen (18) years of age to purchase goods or services at the establishment; or
317
(d) a person to work at the establishment as an employee who is under eighteen (18) years of age.
318
Section 5-6. Working at Establishment Which Does Not Have Valid Adult Entertainment License.
319
It shall be unlawful for any person to work in an adult entertainment establishment that he knows or should know is not licensed under this Ordinance, or which has a license which is under suspension, has been revoked or cancelled, or has expired, regardless of whether he has applied for and obtained a temporary or permanent permit under this Ordinance.
320
Section 5-7. Working Without Permit Prohibited.
321
(a) Subject to Section 3-1(b), it shall be unlawful for any person to work in an adult entertainment establishment, regardless of whether it is licensed under this Ordinance, if the person has not applied for and obtained a temporary or permanent permit under this Ordinance.
322
(b) Subject to Section 3-1(b), it shall be unlawful for any person to work in an adult entertainment establishment, regardless of whether it is licensed under this Ordinance, unless the person has a temporary or permanent permit in his possession while working at the establishment.
323
(c) Subject to Section 3-1(b), it shall be unlawful for any person working in an adult entertainment establishment, regardless of whether it is licensed under this Ordinance, to fail to produce a temporary or permanent permit upon demand for inspection by any law enforcement officer.
324
Section 5-8. Engaging in Prohibited Activity.
325
It shall be unlawful for any employee of an adult entertainment establishment, regardless of whether it is licensed under this Ordinance:
326
(a) to engage in a straddle dance with a person at the establishment;
327
(b) to contract or otherwise agree with a person to engage in a straddle dance with a person at the establishment;
328
(c) to engage in any specified sexual activity at the establishment;
329
(d) to, where the employee knows or should know that alcoholic beverages are sold, offered for sale, or consumed, display or expose at the establishment less than completely and opaquely covered human genitals or pubic region, less than completely and opaquely covered cleavage of the human buttocks, less than completely and opaquely covered areola and nipple of the human female breast, or human male genitals in a discernibly turgid state, even if completely and opaquely covered;
330
(e) to display or expose at the establishment less than completely and opaquely covered human genitals or pubic region, less than completely and opaquely covered cleavage of the human buttocks, less than completely and opaquely covered areola and nipple of the human female breast, or human male genitals in a discernibly turgid state, even if completely and opaquely covered, unless such employee is continuously positioned away from any person other than another employee, and unless such employee is in an area as described in Section 4-3(a);
331
(f) to engage in the display or exposure of any specified anatomical area while simulating any specified sexual activity with any other person at the establishment, including with another employee;(g) to engage in a private performance unless such employee is in an area which complies with the special requirements set forth at 4-3(b)(1) and (b)(2);
332
(h) to, while engaged in the display or exposure of any specified anatomical area, intentionally touch any person at the adult entertainment establishment, excluding another employee; or
333
(i) to touch the clothed or unclothed body of any person at the adult entertainment establishment, excluding another employee, at any point below the waist and above the knee of the person, or to touch the clothed or unclothed breast of any female person.
334
Section 5-9. Touching of Employee by Person.
335
(a) It shall be unlawful for any person in an adult entertainment establishment, other than another employee, to intentionally touch an employee who is displaying or exposing any specified anatomical area at the adult entertainment establishment.
336
(b) It shall be unlawful for any person in an adult entertainment establishment, other than another employee, to intentionally touch the clothed or unclothed breast of any employee, or to touch the clothed body of any employee at any point below the waist and above the knee of the employee.
337
Section 5-10. Exceeding Occupancy Limit of Adult Booth.
338
It shall be unlawful for any person to occupy an adult booth in which booth there are more people than that specified on the posted sign required by Section 4-2.
339
Section 5-11. Use of Restrooms or Dressing Rooms
340
Notwithstanding any provision indicating to the contrary, it shall not be unlawful for any employee of an adult entertainment establishment, regardless of whether it is licensed under this Ordinance, to expose any specified anatomical area during the employee's bona fide use of a restroom, or during the employee's bona fide use of a dressing room which is accessible only to employees.
341
Section 5-12. Hours of Operation.
342
(a) It shall be unlawful for any operator of an adult entertainment establishment to allow such establishment to remain open for business, or to permit any employee to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service, between the hours of 2:00 a.m. and 9:00 a.m. of any particular day.
343
(b) It shall be unlawful for any employee of an adult entertainment establishment to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service, between the hours of 2:00 a.m. and 9:00 a.m. of any particular day.
344
Section 5-13. Alteration of License or Permit.
345
(a) It shall be unlawful for any person to alter or otherwise change the contents of an adult entertainment license without the written permission of the County Administrator.
346
(b) It shall be unlawful for any person to alter or otherwise change the contents of an adult entertainment permit without the written permission of the County Administrator.
347
Section 5-14. False Statement or False Information in Applying for License or Permit.
348
(a) It shall be unlawful for any person applying for an adult entertainment license to make a false statement which is intended to facilitate the issuance of a license, or to provide false information which is intended to facilitate the issuance of a license.
349
(b) It shall be unlawful for any person applying for an adult entertainment permit to make a false statement which is intended to facilitate the issuance of a permit, or to provide false information which is intended to facilitate the issuance of a permit.
350
Section 5-15. Violations Subject to Criminal Prosecution.
351
Whoever violates any Section of SECTION 5 of this Ordinance may be prosecuted and punished as provided by Section 125.69, Florida Statutes (1985).
SECTION 6. MISCELLANEOUS PROVISIONS
352
Section 6-1. Appeals.
353
(1) Subject to subsection 3-1(a)(2), within fifteen (15) days of the mailing of a notice of denial of an application for a license or permit or a notice of suspension or revocation of a license or permit, the aggrieved party may file a notice of appeal with the Board.
354
(2) The notice of appeal shall be filed with the Clerk of the Board. The notice of appeal shall be accompanied by payment of a filing fee of fifty dollars ($50.00) to cover administrative costs. Upon receipt of the notice of appeal and upon payment of the accompanying fifty dollars ($50.00) filing fee, the Clerk shall schedule a hearing for as soon as the Board's calendar will allow. The Clerk shall provide the appellant with at least ten (10) days' notice of the time and place for the hearing.
355
(3) If, at the conclusion of the hearing, the Board finds that the license or permit should not have been denied, suspended, revoked, or cancelled, it shall so notify the County Administrator, who shall immediately grant or reissue the license or permit.
356
Section 6-2. Notice.
357
Any notice required under this Ordinance shall be accomplished by sending a written notification by certified mail to the mailing address set forth on the application for the license or a permit. This mailing address shall be considered the correct mailing address unless the County Administrator has been otherwise notified in writing.
358
Section 6-3. Immunity from Prosecution.
359
The County or any Department shall be immune from prosecution, civil or criminal, for reasonable, good-faith trespass upon an adult entertainment establishment while acting within the scope of its authority under this Ordinance.
360
Section 6-4. Powers of Board.
361
The Board may bring suit in the Circuit Court to restrain, enjoin or otherwise prevent the violation of this Ordinance.
362
Section 6-5. Emergency Adoption and Effective Date.
363
The Board finds that it is necessary, in order to protect the health, safety and welfare of the citizens of Citrus County, that this Ordinance become effective immediately upon its adoption. The effective date of this Ordinance shall be when a certified copy of the Ordinance has been accepted by the postal authorities of the U.S. Government for special delivery by registered mail to the Department of State.
364
DONE AND ADOPTED this 25th day of March, 1988.
365
BOARD OF COUNTY COMMISSIONERS OF CITRUS COUNTY, FLORIDA
BY: (s) Nick Bryant
NICK BRYANT, CHAIRMAN
ATTEST:
366
(s) Walt Connors
WALT CONNORS, CLERK
APPROVED AS TO FORM AND CORRECTNESS:
367
(s) James A. Neal, Jr.
368
JAMES A. NEAL, JR.
ASSISTANT COUNTY ATTORNEY
*
Honorable W. Harold Albritton, III, U.S. District Judge for the Middle District of Alabama, sitting by designation
1
A copy of the Ordinance is attached as an APPENDIX, infra
2
The Ordinance defines "Adult Entertainment Establishment" as "an adult bookstore, or an adult dancing establishment operated for commercial or pecuniary gain." Citrus County Ordinance No. 88-05, Sec. 1A-7(d). An "Adult Bookstore" is defined as "an establishment which sells or rents adult material," unless such material is accessible only to employees and constitutes a small, specified percentage of the facility's business. Id. Sec. 1A-7(a). An "Adult Dancing Establishment" is defined as "an establishment where employees display or expose specified anatomical areas to others, regardless of whether the employees actually engage in dancing." Id. Sec. 1A-7(c). The Ordinance goes on to define "Adult Material," "Specified anatomical areas," and other relevant terminology. See id. Sec. 1A-7
3
The Ordinance also requires individual employees to obtain permits. Id. Sec. 3-1(a)
4
Section 2-5(c)(1) provides that the Administrator shall deny an application for any of the following reasons:
(A) any of the Departments, excluding the Sheriff, has disapproved of the application;
(B) the application contains material false information;
(C) the applicant or any of the other individuals listed ... has a license under this Ordinance which has been suspended or revoked;
(D) the granting of the application would violate a statute or ordinance or an order from a court of law which effectively prohibits the applicant from obtaining an adult entertainment establishment license.
Id. Sec. 2-5(c)(1).
5
The time limit is 14 days for adult bookstores. Id. Sec. 2-5(a)(2)
6
The Ordinance contains other provisions regulating the operation of adult entertainment establishments. Section 4 of the Ordinance contains general provisions for adult entertainment establishments, including regulations concerning the structure and design of adult dancing facilities. Id. Sec. 4. Section 5 imposes criminal penalties for operating without licenses, allowing employees to engage in certain prohibited acts, allowing minors on the premises, and other violations of the Ordinance. Id. Sec. 5
7
Redner filed a motion arguing that Dean did not properly perfect his appeal with respect to the constitutionality of the Ordinance. We agreed to carry this motion with the case. On February 23, 1994, we denied Redner's motion to strike. After oral argument, Redner filed a motion for reconsideration, which we denied on March 18, 1994
8
Chief Justice Rehnquist, in the plurality opinion joined by Justices O'Connor and Kennedy, stated that several Supreme Court cases indicate that nude dancing "is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so." Barnes, 501 U.S. at 566, 111 S.Ct. at 2460. Justice Souter, in his concurrence, agreed with the plurality that "an interest in freely engaging in the nude dancing at issue here is subject to a degree of First Amendment protection." Id. at 581, 111 S.Ct. at 2468 (Souter, J., concurring in the judgment). The dissent, written by Justice White and joined by Justices Marshall, Blackmun, and Stevens, also agreed that nude dancing is expressive conduct within the parameters of the First Amendment. Id. at 587, 111 S.Ct. at 2471 (White, J., dissenting). Only Justice Scalia, in his concurrence, argued that the regulation of nude dancing "is not subject to First-Amendment scrutiny at all." Id. at 572, 111 S.Ct. at 2463 (Scalia, J., concurring in the judgment)
9
Our review of the relevant caselaw reveals that most courts have taken one of two tacks in interpreting the requirement of prompt judicial review. In the Freedman case itself, the Court was unclear as to exactly what type of judicial review was required. In later cases, however, the Court indicated that the statute, regulation, or ordinance itself must explicitly provide for prompt judicial review of the decision to suppress expressive activity. E.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 561-62, 95 S.Ct. 1239, 1248, 43 L.Ed.2d 448 (1975). In Southeastern Promotions, the Court reviewed a municipal board's decision to reject an application to perform the musical "Hair" at a city auditorium. Within a few days of the denial, the federal district court had held hearings on a motion for a preliminary injunction. The court denied the preliminary injunction, but within five months the district court heard the merits of the action for an injunction. Nevertheless, the Supreme Court held that the procedural safeguards of Freedman were lacking because "[t]he board's system did not provide a procedure for prompt judicial review." Id. at 561, 95 S.Ct. at 1248. The Court thus implied that a state's statutory or common-law mechanisms for review of administrative decisions does not satisfy the procedural requirements of Freedman
The second interpretation of "prompt judicial review" has been articulated most clearly by the Seventh Circuit in Graff v. City of Chicago, 9 F.3d 1309 (7th Cir.1993) (en banc), cert. denied, --- U.S. ----, 114 S.Ct. 1837, 128 L.Ed.2d 464 (1994). There, the court reviewed a Chicago licensing ordinance regulating newsstands. The ordinance made no mention of judicial review. The court stated:
As an initial matter, it is not clear why the Court in Freedman set out the apparent requirement that an ordinance such as this explicitly provide for prompt judicial review. A person always has a judicial forum when his speech is allegedly infringed. [Neither party] argues that the judiciary cannot hear challenges to this ordinance simply because it does not have a specific provision designating a review process.
Id. at 1324. The court went on to find that Illinois's common-law writ of certiorari was the appropriate method for reviewing administrative agency decisions and that such review was a sufficient procedural safeguard. Id. at 1325. The court acknowledged that Supreme Court cases seemed to reject this view, but stated that the High Court had never directly addressed the argument. Id.
Although we have never addressed the issue squarely, our Circuit seems to adhere to the first school of thought. In Central Fla. Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515 (11th Cir.1985), we struck down a city ordinance requiring permits for demonstrations. Judge Henderson's concurrence, which was specifically accepted by the majority, focused on the fact that the licensing ordinance lacked a provision for prompt judicial review. Id. at 1526-27 (Henderson, J., concurring). Likewise, in Miami Herald Pub. Co. v. City of Hallandale, 734 F.2d 666, 676 (11th Cir.1984), we struck down a city licensing ordinance on the grounds that it lacked adequate procedural safeguards, stating that "the statute furnishes no means for judicial review, prompt or otherwise, of city commission decisions." In neither case, however, did we directly confront whether Florida's statutory or common-law means of judicial review were adequate procedural safeguards.
10
See discussion supra part II.A.1 | 01-03-2023 | 04-16-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1061125/ | COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Alston and Huff
UNPUBLISHED
Argued at Chesapeake, Virginia
DWAYNE YOUNG
MEMORANDUM OPINION* BY
v. Record No. 1466-12-1 JUDGE GLEN A. HUFF
JULY 16, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Louis R. Lerner, Judge
Crystina M. Kowalczyk (The O’Brien Law Firm, on brief), for
appellant.
Victoria Johnson, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Dwayne Young (“appellant”) appeals his conviction of aggravated malicious wounding,
in violation of Code § 18.2-51.2, and use of a firearm in the commission of a felony, in violation
of Code § 18.2-53.1. Following a jury trial in the Circuit Court of the City of Hampton (“trial
court”), the trial court convicted appellant and sentenced him to thirty years in prison. On
appeal, appellant argues that
[t]he trial court erred when it found that [appellant] did not possess
the requisite Fourth Amendment privacy interest (or standing) to
make a motion to suppress the fruits of a warrantless search by law
enforcement of the [hotel] room in which he was spending the
night, when [appellant] testified that he was sharing the hotel room
with the registered guest, his girlfriend, and that he had been
invited to the room by this girlfriend and it was his intent to spend
the night with her.
For the following reasons, we affirm the judgment of the trial court.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
“On appeal from a trial court’s denial of a motion to suppress, we must review the
evidence in the light most favorable to the Commonwealth, granting to the Commonwealth all
reasonable inferences fairly deducible from it.” Sabo v. Commonwealth, 38 Va. App. 63, 69,
561 S.E.2d 761, 764 (2002) (citing Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407
S.E.2d 47, 48 (1991)). “On appeal, we consider the entire record in determining whether the trial
court properly denied appellant’s motion to suppress.” Patterson v. Commonwealth, 17 Va. App.
644, 648, 440 S.E.2d 412, 415 (1994) (citing DePriest v. Commonwealth, 4 Va. App. 577, 583,
359 S.E.2d 540, 543 (1987)). So viewed, the evidence is as follows.
On January 26, 2010, appellant struck Antoine Maxwell (“Maxwell”), who had been
walking down a street in the city of Hampton, in the head with a gun after another unknown male
had stopped Maxwell and pointed a firearm at him. After Maxwell fell to the ground due to the
blow, appellant and the unidentified male began beating and kicking Maxwell. Maxwell
attempted to flee this initial attack and was again struck in the head with a handgun and fell to
the ground. While Maxwell was on the ground, appellant and the unidentified male once more
repeatedly beat and kicked Maxwell. Maxwell managed to get up and attempted to escape the
second attack. As Maxwell was fleeing a second time, appellant shot Maxwell several times and
left him lying in the middle of the street.
Shortly after appellant left the area, two individuals stopped and called an ambulance for
assistance. Maxwell remained in a coma for three days while in the hospital and sustained
several permanent injuries as a result of the attack, including the loss of a kidney, the loss of his
left femur, which was replaced with a metal rod, and permanent scars on his abdomen. In
speaking with the police and testifying at trial, Maxwell identified appellant as one of his
-2-
assailants because he knew appellant from previous social encounters as appellant was a fellow
participant in a regular card game.
Between midnight and one o’clock in the morning on February 23, 2010, Newport News
and Hampton police officers knocked on the door of Room 21 at a hotel in Newport News and
announced, “Dwayne Young, we know you’re in there, come out.” Appellant immediately
replied that he was opening the door and stepped out of the hotel room. Once he was outside of
the room, the police officers arrested appellant based on an arrest warrant for an unrelated
charge. During the subsequent search of the hotel room, police officers found, and removed, a
Glock Model 23 .40 caliber semi-automatic firearm in a trash can in the room.1 Subsequent
testing of the firearm established that the cartridge casings recovered from the scene of the
January 26, 2010 shooting were fired from the firearm taken from the hotel room.
On March 18, 2011, appellant filed a motion to suppress the firearm and any additional
evidence found with the firearm on the grounds that the officer lacked a valid search warrant and
the consent was invalid or did not exist. At the suppression hearing on September 8, 2011,
appellant testified for the limited purpose of standing.2 Appellant stated that he was at the hotel
on February 22, 2010, with his girlfriend, Shanea Whiting (“Whiting”), who had rented the hotel
room in her name and had invited appellant to join her at the hotel. Appellant further testified
that he and Whiting were not married to each other nor was Whiting married to anyone else.
1
The basis for the search of the hotel room was not established during trial. The only
evidence in the record is appellant’s challenge made in his March 18, 2011 motion to suppress
regarding the validity of the Commonwealth’s claim that “the search was pursuant to the consent
of a third party in the room.”
2
See Chesson v. Commonwealth, 216 Va. 827, 829, 223 S.E.2d 923, 925 (1976)
(“‘[W]hen a defendant testifies in support of a motion to suppress evidence on Fourth
Amendment grounds, his testimony may not thereafter be admitted against him at trial on the
issue of guilt unless he makes no objection.’” (quoting Simmons v. United States, 390 U.S. 377,
394 (1968))).
-3-
Appellant arrived at the hotel room around 9:00 p.m. with the intent of spending the night there
with Whiting.
After hearing the evidence and arguments, the trial court denied appellant’s motion to
suppress on the grounds that appellant did not meet his burden of establishing his standing.3 On
April 24, 2012, the jury found appellant guilty, and the trial court sentenced him on July 18,
2012. This appeal followed.
II. STANDARD OF REVIEW
In reviewing a trial court’s denial of a motion to suppress, “[t]he burden is on the defendant
to show that the denial of his suppression motion, when the evidence is considered in the light most
favorable to the Commonwealth, was reversible error.” McCain v. Commonwealth, 261 Va. 483,
490, 545 S.E.2d 541, 545 (2001) (citing Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d
729, 731 (1980); Weathers v. Commonwealth, 32 Va. App. 652, 658, 529 S.E.2d 847, 850 (2000)).
On appeal, we review “de novo the trial court’s application of defined legal standards such as
whether a defendant had a reasonable expectation of privacy sufficient to permit him to raise a
Fourth Amendment challenge to a search.” Sharpe v. Commonwealth, 44 Va. App. 448, 454,
605 S.E.2d 346, 349 (2004) (citing United States v. Gordon, 168 F.3d 1222, 1225 (10th Cir.
3
Although appellant asserts, as did the trial court, that the issue is standing, this Court
has previously noted that,
[a]lthough many courts “characterize this as a question of
‘standing,’ the Supreme Court expressly rejected a standing
analysis in Rakas v. Illinois, 439 U.S. 128, 143 (1978).” Gordon,
168 F.3d at 1225 n.2. The Court has held that, “in order to
determine whether a defendant is able to show the violation of his
(and not someone else’s) Fourth Amendment rights, the ‘definition
of those rights is more properly placed within the purview of
substantive Fourth Amendment law than within that of standing.’”
Sharpe v. Commonwealth, 44 Va. App. 448, 455 n.2, 605 S.E.2d 346, 349 n.2 (2004) (quoting
Minnesota v. Carter, 525 U.S. 83, 88 (1998)).
-4-
1999)). Furthermore, we are “bound by the trial court’s findings of historical fact unless ‘plainly
wrong’ or without evidence to support them and we give due weight to the inferences drawn
from those facts by resident judges and local law enforcement officers.” McGee v.
Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (quoting Ornelas v. United
States, 517 U.S. 690, 699 (1996)).
III. ANALYSIS
On appeal, appellant asserts that the trial court erred in denying appellant’s motion to
suppress on the basis that he lacked a reasonable expectation of privacy at the time and place
searched, and thus lacked the ability to challenge the search on Fourth Amendment grounds.
Appellant specifically asserted that he had a privacy interest based on his testimony that “he was
sharing the hotel room with the registered guest, his girlfriend, and that he had been invited to
the room by this girlfriend and it was his intent to spend the night with her.”
“The Fourth Amendment . . . protects ‘the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.’” Johnson v.
Commonwealth, 26 Va. App. 674, 682, 496 S.E.2d 143, 147 (1998) (quoting U.S. Const. amend.
IV). “At a hearing on a defendant’s motion to suppress evidence allegedly obtained in violation
of the Fourth Amendment, the defendant has the burden of proving he had a reasonable
expectation of privacy in the place searched.” Sharpe, 44 Va. App. at 455, 605 S.E.2d at 349
(citing Barnes v. Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987)). Stated more
succinctly,
in order to claim the protection of the Fourth Amendment, a
defendant must demonstrate that he personally has an expectation
of privacy in the place searched, and that his expectation is
reasonable; i.e., one that has “a source outside of the Fourth
Amendment, either by reference to concepts of real or personal
property law or to understandings that are recognized and
permitted by society.”
-5-
Minnesota v. Carter, 525 U.S. 83, 88 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 143-44,
144 n.12 (1978)).
“It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a
home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573,
586 (1980). “In terms that apply equally to seizures of property and to seizures of persons, the
Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent
circumstances, that threshold may not reasonably be crossed without a warrant.” Id. at 590.
“‘The Fourth Amendment rights of a guest in a motel room are equivalent to those of the
rightful occupant of a house,’ the warrantless entry of which is presumed unreasonable.” Sharpe,
44 Va. App. at 455, 605 S.E.2d at 350 (quoting Servis v. Commonwealth, 6 Va. App. 507, 514,
371 S.E.2d 156, 159 (1988)).
The United States Supreme Court has held that an
overnight guest in a house has the same sort of expectation of
privacy that the Fourth Amendment protects, Minnesota v. Olson,
495 U.S. 91, 98-100 (1990), whereas “one who is merely present
with the consent of the householder [does] not,” []Carter, 525 U.S.
[at] 90[]. It has also held that one who is present on residential
premises only briefly and for a strictly commercial rather than
personal purpose cannot demonstrate a legitimate expectation of
privacy in those premises.
Id. at 455-56, 605 S.E.2d at 350 (first alteration in original). In so holding, the Supreme Court
addressed society’s recognition of the expectation by stating the following in Olson:
From the overnight guest’s perspective, he seeks shelter in
another’s home precisely because it provides him with privacy, a
place where he and his possessions will not be disturbed by anyone
but his host and those his host allows inside. We are at our most
vulnerable when we are asleep because we cannot monitor our own
safety or the security of our belongings. It is for this reason that,
although we may spend all day in public places, when we cannot
sleep in our own home we seek out another private place to sleep,
whether it be a hotel room, or the home of a friend. Society
expects at least as much privacy in these places as in a telephone
booth – “a temporarily private place whose momentary occupants’
-6-
expectations of freedom from intrusion are recognized as
reasonable.”
495 U.S. at 99 (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring)).
As noted by this Court in Sharpe, whether a personal overnight guest of a registered hotel
guest has a reasonable expectation of privacy in the place searched has not been addressed by the
Supreme Court of the United States or Virginia appellate courts. 44 Va. App. at 456, 605 S.E.2d
at 350. Although this Court noted the issue as well as the applicable law in Sharpe, we
“assume[d] without deciding that an overnight guest of a motel registrant may assert a privacy
interest in the motel room he is occupying.” Id. at 457, 605 S.E.2d at 350. In the present case,
we likewise assume without deciding that an overnight guest of a hotel registrant has a privacy
interest in the room he is occupying, and hold that there is no evidence beyond appellant’s
assertions and presence in the room to establish that he was in the hotel room as an overnight
guest of the registered occupant.
Although appellant claims that Whiting, his girlfriend, was the registered guest, no
evidence established the specific identity of the registered occupant. Furthermore, although
appellant asserts he intended to spend the night, there is no evidence establishing that Whiting
actually intended for appellant to do so. In addition, there was no evidence that appellant had
personal belongings in the room, that appellant was in bed when the officers arrived, the state of
appellant’s undress when he stepped out of the room, or if he had possession of a room key.
Furthermore, no other evidence was offered supporting appellant’s status as an overnight guest
of the hotel registrant.
Accordingly, we hold that under the circumstances presented in this case, appellant’s bald
assertions, without more, are insufficient to prove appellant’s status as an overnight guest and, at
-7-
most, indicate that appellant was present in the room for a period of time.4 See United States v.
Reyes-Bosque, 596 F.3d 1017, 1026-27 (9th Cir. 2010) (holding that the defendant failed to
establish his status as an overnight guest in a housing unit based on his “‘bald assertion that he
was an overnight guest . . . .’” (quoting United States v. Armenta, 69 F.3d 304, 308 (9th Cir.
1995))); Armenta, 69 F.3d at 308-09 (9th Cir. 1995) (holding the evidence – defendant’s claim
that he was an overnight guest in the home, the police officer’s statement that the defendant had
spent the night inside the home, the discovery of defendant’s wallet, baptismal certificate, and
social security card application in the home, and his attorney’s declaration that another individual
was going to testify that defendant was a guest and had run of the home – was insufficient to
establish defendant was an “overnight guest” with the permission of his host as he asserted, but
rather suggested that he was “‘legitimately on the premises’”). Because appellant failed to
establish a legitimate expectation of privacy in the hotel room, we hold that the trial court did not
err in denying appellant’s motion to suppress.
4
See United States v. Carr, 939 F.2d 1442, 1446 (10th Cir. 1991) (holding defendant
lacked a reasonable expectation of privacy since he failed to present any evidence that he was an
overnight guest of the registered guest); State v. Carter, 681 S.E.2d 688, 690-91 (Ga. Ct. App.
2009) (holding defendant did not have reasonable expectation of privacy in the registered hotel
guests room since he was merely an invitee or social guest and did not have dominion or control
over the rooms); Armour v. State, 762 N.E.2d 208, 213-14 (Ind. Ct. App. 2002) (holding
defendant lacked reasonable expectation of privacy where there was no evidence he was an
invited guest by the registered guest but was merely present in the room); State v. Gonzalez, 85
P.3d 711, 714 (Kan. Ct. App. 2004) (holding defendant did not have a reasonable expectation of
privacy in the motel room he occupied due to the lack of evidence that he was an invited
overnight guest of the registered occupant); see also United States v. Baskin, 424 F.3d 1, 3 (1st
Cir. 2005) (holding defendant failed to establish a reasonable expectation of privacy in the
registered guest’s hotel room); Lyons v. State, 942 So. 2d 247, 250 (Miss. Ct. App. 2006)
(same); Owens v. State, 269 P.3d 1093, 1097-98 (Wyo. 2012) (holding defendant failed to
demonstrate a reasonable expectation of privacy in his friend’s motel room).
-8-
IV. CONCLUSION
For the foregoing reasons, this Court holds that the trial court did not err in denying
appellant’s motion to suppress and affirm appellant’s convictions.
Affirmed.
-9- | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611091/ | 42 Wis.2d 334 (1969)
166 N.W.2d 191
HARDSCRABBLE SKI AREA, INC., and another, Respondents,
v.
FIRST NATIONAL BANK OF RICE LAKE, Appellant.
No. 160.
Supreme Court of Wisconsin.
Argued March 7, 1969.
Decided April 1, 1969.
*337 For the appellant there was a brief and oral argument by Edward J. Coe of Rice Lake.
For the respondents there was a brief by Cletus D. Howard of Eau Claire, attorney, and George P. Hoke and David W. Larson, both of Minneapolis, Minnesota, of counsel, and oral argument by Mr. Howard.
BEILFUSS, J.
The notice of appeal includes both the order of Judge KINNEY dated January 5, 1968, and the order of Judge SCHOENGARTH dated June 5, 1968. Inasmuch as the order of June 5th reconsidered the motion and the order of January 5th in toto, we deem the appeal should have been only from the order of June 5th. In any event, all the issues were fully reconsidered in the memorandum and order of June 5th.
For the past year or so this court has been somewhat concerned about a possible overuse of the motion for summary judgment and the voluminous number of appeals from orders overruling motions for summary judgment. We state emphatically that we do not mean that the motion for summary judgment should not be used, it is most appropriate in proper instances, but we are inclined toward a belief that its use has been extended *338 beyond its original purpose. Recent cases which illustrate this concern are: Becker v. La Crosse (1960), 9 Wis. 2d 540, 101 N. W. 2d 677; Becker v. La Crosse (1961), 13 Wis. 2d 542, 109 N. W. 2d 102; Peterson v. Maul (1966), 32 Wis. 2d 374, 376, 377, 145 N. W. 2d 699; Spoehr v. Mittelstadt (1967), 34 Wis. 2d 653, 663, 664, 150 N. W. 2d 502; Frew v. Dupons Construction Co. (1968), 37 Wis. 2d 676, 689, 155 N. W. 2d 595; Schandelmeier v. Brown (1968), 37 Wis. 2d 656, 658, 659, 155 N. W. 2d 659; Bank of Commerce v. Paine, Webber, Jackson & Curtis (1968), 39 Wis. 2d 30, 158 N. W. 2d 350; Schuster v. Germantown Mut. Ins. Co. (1968), 40 Wis. 2d 447, 452, 162 N. W. 2d 129.
In Zimmer v. Daun (1968), 40 Wis. 2d 627, 162 N. W. 2d 626, we stated at page 631:
"We think sec. 270.635, Stats., providing for summary judgment, does not confer a right to summary judgment but rather confers on the trial court a discretionary power to grant summary judgment when it believes summary disposition of a case is called for. The language of this section provides that `Summary judgment may be entered' as provided in the section and that `The judgment may be entered in favor of either party.' In sub. (3) it is provided that a summary judgment `may be awarded' to the plaintiff although he has not moved therefor if upon motion by a defendant it shall appear to the court that the plaintiff is entitled to such judgment. There is no requirement, however, that the court must do so."
We quote, herein, extensively from the memorandum opinion of Judge SCHOENGARTH because we agree with his conclusions and because it illustrates a situation "which the court shall deem sufficient to entitle him to a trial." It is our opinion that the quoted portion of the statute vests discretion in the trial court as to whether the case should be tried. It follows that an order denying a motion for summary judgment will not be reversed *339 until it appears that the trial court has abused its legal discretion or has not exercised it.
Portions of the memorandum opinion are as follows:
"It appears from the pleadings that the plaintiff, Casper Hagen, is the owner and operator of a ski area in the vicinity of Rice Lake, Wisconsin, and is an officer of Hardscrabble Ski Area, Inc., a Wisconsin Corporation. He also operates a motel in the City of Rice Lake. The defendant is a banking institution located in that city.
"Early in June of 1965 Hagen contacted the Small Business Administration for a loan of $50,000.00 to make improvements to Hardscrabble Ski Area, and to install equipment for making artificial snow. Sometime prior to June 17th he contacted Elmer J. Einum, executive vice-president of the defendant bank, to see if the bank would participate in the proposed loan to the extent of 10% thereof. Einum told Hagen he would present the request at the next meeting of the board of directors. On June 17th the board agreed to participate, and on June 29th Hagen submitted his application to the Small Business Administration.
"Sometime during the summer of 1965 Hagen contacted a manufacturing concern and ordered the snow-making equipment. He also made arrangements with an engineering firm to plan and supervise the installation of this equipment. He arranged for delivery of the equipment around the first of September, and for the engineers to come shortly thereafter.
"On August 19th the Small Business Administration contacted the bank indicating that in its opinion Hagen needed $85,000.00 to complete the contemplated improvements, and inquired of the bank if it wished to participate in this new loan figure to the extent of 10% thereof. The bank directors agreed to this increase in the loan and so notified the Small Business Administration.
"On August 24th the Small Business Administration approved the loan in the amount of $85,000.00 and advised the bank thereof. At that time it also informed the bank not to act on said matter until written authorization was received and the Small Business Administration forwarded the necessary documents. They were received by the bank on September 10th or 11th.
*340 "The documents and forms were turned over to the bank's attorney, G. P. Gannon, who was also a member of the board of directors, for processing and completion on September 13th.
"The snow-making equipment arrived C.O.D. early in September, and was held in storage. The engineers arrived in September to supervise the installation, but because of its being tied up in storage and later commitments, the engineers left without making the installation.
"The bank completed the documents on October 8th, and forwarded them to the Small Business Administration on that date. The Small Business Administration sent its check which was received and disbursed by the bank on October 20th. The snow-making equipment was released at that time.
"Plaintiff contends he was unable to install the equipment properly for the 1965-66 skiing season and that he suffered great financial loss by reason thereof....
". . .
"The defendant has undoubtedly properly stated the distinction between a demurrer and a motion for summary judgment when it says a demurrer raises the question as to whether the complaint sets forth a cause of action while a motion for summary judgment assumes a cause of action is alleged but raises the question as to whether the plaintiff has sufficient facts to prove or at least create an issue of fact as to his cause of action.
"It further correctly states the law to be that the ultimate question for the court to decide on a motion for summary judgment is whether there is any issue of fact to be tried in the case. Voysey v. Labisky (1960), 10 Wis. 2d 274, 103 N. W. 2d 9.
"The technique by which the trial court is to approach the problem is set forth as follows:
"`... we first examine the moving papers and documents to determine whether the moving party has made a prima facie case for summary judgment under sec. 270.635 (2), Stats., and if he has, we then examine the opposing party's affidavits and other proof to determine whether facts are shown which the court deems sufficient to entitle the opposing party to a trial. If the material facts are not in dispute and the inferences which may reasonably be drawn from the facts are not doubtful and lead only to one conclusion, then only a matter of law is *341 presented which should be decided upon the motion.' Leszczynski v. Sturges (1965), 30 Wis. 2d 534, 538, 141 N. W. 2d 261.
"It now becomes necessary for the court to examine the affidavits and other proofs of evidentiary facts produced by each of the parties in support of their respective positions.
"Defendant has supplied the affidavits of Marshall T. Brekke, G. P. Gannon, Elmer J. Einum, Francis B. Schneider, Clarence A. Sims, Warren D. Leary, Jr., Edward J. Doyle and Alfred Sockness, who were all of the officers and directors of the defendant bank at the time these transactions were transpiring, and also Edward J. Coe, their attorney in this action.
"Each and every one of the directors and officers of the bank allege specifically that he at no time between January 1, 1965, and October 20, 1965, made any comments, statements, promises, commitments or representations to Casper Hagen, or anyone else, as to when the defendant would make a loan to the plaintiffs, and if made, when it would be processed, closed or disbursed, and that he, at no time, told, advised or represented that a loan would be made to plaintiffs in time so they could purchase or install any equipment or improvements in time for use during the 1965-66 ski season.
"In his affidavit in opposition to the motion for summary judgment, Casper Hagen states the foregoing statements are not true, and that during the summer and fall of 1965 he had many conversations with Elmer J. Einum concerning the loan for snow-making equipment and T-bar lifts and that he had to have the equipment early in September, so that he would have time to install the snow-making equipment in order to make snow as soon as possible for the 1965-66 ski season. He said Mr. Einum assured him more than once that there was nothing to worry about and that at the very latest the loan proceeds would be available about the middle of September.
"Defendant points out that in an adverse examination taken of Mr. Hagen on September 19, 1967, he could not remember any promises being made to him by anyone; that he didn't remember what contacts he had with bank officials between June 17th and August 19th; that the first time he conferred with bank officials after August 19th was about September 25th; that he did not remember *342 what they talked about; that he couldn't say if any bank official promised him the loan proceeds by a particular date; that he couldn't remember which official or officials he told he had to have the equipment by a certain date; that he didn't know if such a promise was ever made. Defendant contends these answers establish beyond a doubt that plaintiffs have no evidentiary proofs sufficient to establish a prima facie case.
"Plaintiff explains these apparent contradictions between his adverse examination and his affidavit opposing summary judgment by saying at the adverse examination defendant's counsel was asking for specific dates and statements, and that he could not recall them with that exactness.
"Whatever the reason for these discrepancies in Mr. Hagen's statements, the court cannot, on a motion for summary judgment, accept only one version and ignore the other. Matters of credibility of witnesses are not to be determined upon a motion for summary judgment. Credibility is to be determined at a trial.
"The deposition of Mr. Francis R. Parks, who was Mr. Hagen's attorney during the loan negotiations, states he did not ever remember of Mr. Einum's calling him, but that he called Mr. Einum several times at Mr. Hagen's request to see what was happening.
"Mr. G. P. Gannon, director and attorney for the bank during the loan negotiations, stated he called Mr. Hagen several times between September 13th and October 8th to have him bring information to his office to enable Mr. Gannon to complete the loan documents. He stated that Mr. Hagen came to his office several times, found Mr. Gannon busy and left. He also stated he went to Mr. Park's office for necessary corporate records, but found him out of the office. He stated he requested a record of corporate authority to borrow the money, but he didn't get it until September 30th. He said he made several requests for an itemized list of personal property to be described in the security agreement, but didn't get this list until October 5th.
"In his affidavit Mr. Hagen stated Mr. Gannon never called him asking for information, and that he never received a phone call of any kind from Gannon. He said he did go to Gannon's office several times to see how the loan was coming, but he was always busy and couldn't get to see him. He stated that he supplied the corporate *343 authority to borrow as soon as it was requested, and that Gannon never asked for a list of the personal property to be described in the security agreement until early in October.
"Ruth Hagen, wife of Casper Hagen, and Peder Orsund, manager of Hardscrabble Ski Area for 15 years, each said that never at any time during this period did Casper Hagen ever receive a phone call from Mr. Einum or Mr. Gannon, to their knowledge, and that they customarily answered the business phones.
"In their affidavits both Mr. Einum and Mr. Gannon stated the reason for the delay in securing the loan proceeds was Mr. Hagen's failure to cooperate with them.
"In his affidavit Mr. Hagen stated he talked to Mr. Einum sometime after September 9th, and Mr. Einum told him the Small Business Administration papers had been on Mr. Gannon's desk for three weeks and he had not looked at them.
"Thomas Beal, manager of Briggs Transportation office where the snow-making equipment was being held C.O.D., said he went to Mr. Einum in the middle of September to see about getting the equipment out of the warehouse, and was told that `all Cap Hagen has to do to get the stuff released is to come down here and sign a couple of papers at the bank.'
"There are other statements and proofs in the record, but the foregoing are sufficient to demonstrate there are issues of fact sharply in dispute between the parties to this action.
"The defendant further contends that some of plaintiff's statements are general denials and conclusions and are not sufficient to defeat evidentiary facts on a motion for summary judgment, citing Lathan v. Journal Company (1966), 30 Wis. 2d 146, 140 N. W. 2d 417. While this is a correct statement of the law, it does not mean a denial that a specific act occurred is a general denial or conclusion. A denial that a phone call ever took place is not a general denial or conclusion. Other than by a specific denial, there may be no other way to raise issue that something didn't happen.
"The defendant contends the plaintiffs have failed to show any contract was entered into; that there was no consideration for any contract; and that in fact no contract resulted from this transaction for which plaintiffs can now claim a breach.
*344 "Although no authority in Wisconsin was cited, and the court has not been able to locate any, it appears to be the rule that a bank may sustain liability as a result of a failure to lend money in accordance with a contract into which it has entered. 7 Am. Jur., Banks, sec. 646.
"`An action against a bank for breaking its contract to lend money and requiring the applicant to remove his account from the bank sounds in contract, not in tort.' Farabee-Treatwell Co. v. Union & P. Bank & T. Co., 135 Tenn. 208, 186 S. W. 92, 10 Am. Jur. 2d, Banks, sec. 683.
"While a contract requires an offer, an acceptance and consideration, it is possible for a change of financial position to the borrower's disadvantage to constitute a consideration for a contract, if this situation is fully known to the lender. Consideration may consist of a detriment to the promisee or a benefit to the promisor. Home Savings Bank v. Gertenbach (1954), 270 Wis. 386, 71 N. W. 2d 347.
"It seems clear that the bank could have withdrawn from these negotiations on August 19th when the proposed loan was increased to $85,000.00 and its participation was increased to $8,500.00, but it chose not to do so. It is for the jury to determine if these parties, in fact, entered into a contract.
"The plaintiffs have alleged a cause of action in negligence in processing the loan after the bank had received all the necessary papers and closing documents from the Small Business Administration. The court does not construe this to be an allegation of a tort action. A contract may be breached through negligence as well as in any other manner.
"The defendant has asked the court to rule that in view of the complexity involved in the processing of this loan a period of 28 days is not so unreasonable as a matter of law as to constitute negligence on the part of the bank in processing the loan. This the court will not do. Whether this loan was processed as expeditiously as the circumstances would require is a matter to be determined by the jury.
". . .
"This court must follow the rules governing summary judgments as set forth in Peterson v. Maul (1966), 32 Wis. 2d 374, 376, 145 N. W. 2d 699:
*345 "`... Without citation of authority it can be stated that summary judgment is a drastic remedy and should not be granted if any material facts are in dispute or if the inferences which may reasonably be drawn from the facts are doubtful. It is only when the facts or the reasonable inferences drawn therefrom lead only to one conclusion as to each necessary ultimate fact that it can be said that only a matter of law is presented which should be decided upon a motion for summary judgment. That material evidentiary facts must appear with certainty; the court cannot act as a trier of disputed facts on a motion for summary judgment; it cannot pass upon the weight and credibility of disputed facts or doubtful inferences as they appear from the affidavit, other documents or pleadings.'
"The court cannot say there are no material facts in dispute, it cannot try disputed facts on a motion for summary judgment, nor can it pass upon the weight and credibility of disputed facts. All of these things obtain in the instant case."
From the foregoing it is readily apparent that the trial court gave thorough and extensive consideration to the motion for summary judgment. There has been no satisfactory showing that the trial court abused its discretion in concluding the case should be tried.
The defendant contends that, in any event, the motion should be granted to the extent that the complaint be dismissed as to Casper Hagen individually because the transactions were the acts of the corporation and not Hagen.
We must reject this contention for two reasons. First, this contention was not raised in the trial court and will not be considered here as an original issue. Second, the affidavits reveal that Hagen was required to sign the security documents individually as well as in his capacity as a corporate officer. He does have a legally recognizable personal interest.
By the Court.Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610624/ | 96 N.W.2d 417 (1959)
168 Neb. 533
Adeline K. CAMPBELL, Appellant,
v.
Lyle M. CAMPBELL, Appellee.
No. 34563.
Supreme Court of Nebraska.
May 8, 1959.
*418 Charles Ledwith, Lincoln, for appellant.
Robert Lloyd Jeffrey, Lincoln, for appellee.
*419 Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.
WENKE, Justice.
This is an appeal from the district court for Lancaster County. It involves relief asked for by appellant-plaintiff Adeline K. Campbell in a petition which she filed on Jannuary 16, 1957, in a divorce proceeding wherein, on March 10, 1950, she had been granted a divorce and awarded the custody of the parties' three minor children. The petition was filed under and pursuant to the authority granted by section 42-312, R. R.S.1943, and was for the purpose of obtaining an increase in the allowance of child support for the one minor child, a daughter then 13 years of age, who was still in appellant's custody and dependent upon her for support. The right to such increase was based on claimed changes in the circumstances of the parties since a previous order of the court had been made for that purpose on May 13, 1953.
Appellee-defendant Lyle M. Campbell, on March 4, 1957, filed an answer thereto and a cross-petition to which appellant, on April 11, 1957, filed an answer and reply. Trial was had on the issues raised by these pleadings on July 2, 1958, and, on August 13, 1958, the cause was fully submitted. Thereafter, on August 25, 1958, the trial court rendered the following decision: "On consideration of evidence and briefs, the Court finds that since the order of May 15, 1953, there has been a legal `change of circumstances affecting the parties herein and that plaintiff should be allowed the sum of $60.00 per month, beginning September 1, 1958, for the support of Joan Campbell until she becomes of legal age or until the further order of the court, together with the further sum of $100.00 for services of plaintiff's counsel, payable at $10.00 per month, and defendant should pay the costs herein."
On August 29, 1958, appellant filed a motion for new trial asking: "* * * the court for an order vacating the decision of the court of August 25, 1958 and the order entered pursuant thereto, and granting the plaintiff a new trial * * *." On September 2, 1958, the trial court, on its own motion, erroneously struck appellant's motion for new trial from the record, doing so on the basis that no final judgment had been entered (rendered).
On September 25, 1958, appellant filed another motion for new trial asking, "* * * the court for an order vacating the decision of the court of August 25, 1958 and the order entered pursuant thereto, and granting the plaintiff a new trial * * *." This motion the court overruled on October 11, 1958. Thereupon, on October 11, 1958, appellant refiled the same motion for new trial. It was again overruled on October 28, 1958. Appellant filed a notice of appeal in the district court on November 7, 1958.
"A judgment rendered or final order made by the district court may be reversed, vacated or modified by the Supreme Court for errors appearing on the record." Section 25-1911, R.R.S.1943. The judgment here sought to be modified was rendered by the trial court on August 25, 1958. See Ames v. Parrott, 61 Neb. 847, 86 N.W. 503, 87 Am.St.Rep. 536. "This court takes judicial notice of the mandatory requirements of the statute as to the necessity and time of filing a notice of appeal, and the effect of failure to comply with them." Powell v. Van Donselaar, 160 Neb. 21, 68 N.W.2d 894, 896.
Section 25-1912, R.R.S.1943, provides, insofar as here material, that: "The proceedings to obtain a reversal, vacation or modification of judgments and decrees rendered or final orders made by the district court, except judgments and sentences upon convictions for felonies and misdemeanors under the criminal code, shall be *420 by filing in the office of the clerk of the district court in which such judgment, decree or final order was rendered, within one month after the rendition of such judgment or decree, or the making of such final order, or within one month from the overruling of a motion for a new trial in said cause, a notice of intention to prosecute such appeal signed by the appellant or appellants or his or their attorney of record, * * *." "`The period of time provided for by section 25-1912, R.R.S. 1943, within which to perfect an appeal from a judgment or decree rendered in the district court, commences to run from the date of the rendition thereof, if there is no motion for a new trial filed in the case,' * * *." Ash v. City of Omaha, 152 Neb. 699, 42 N.W.2d 648. "Trial court has no inherent power, directly or indirectly, to extend time for taking appeal." Morrill County v. Bliss, 125 Neb. 97, 249 N.W. 98, 99, 89 A.L.R. 932. "The legislature having power to limit the time within which an appeal must be taken, it is essential to the jurisdiction of this court that it be taken within that time limit." Morrill County v. Bliss, supra.
This court is without jurisdiction to entertain an appeal from the rendition of a final judgment or decree by the district court unless, as provided by section 25-1912, R.R.S.1943, a notice of appeal is filed in the office of the clerk of the district court from which such appeal is being taken within 1 month after the rendition of such final judgment or decree. See, Frenchman-Cambridge Irr. Dist. v. Ferguson, 154 Neb. 20, 46 N.W.2d 692; Molczyk v. Molczyk, 154 Neb. 163, 47 N.W.2d 405. Here the notice of appeal was not filed until November 7, 1958, and thus clearly not within time to perfect an appeal from the final judgment rendered on August 25, 1958.
Section 25-1143, R.R.S.1943, provides, insofar as here material, that: "The application for a new trial must be made, within ten days, either within or without the term, after the verdict, report or decision was rendered, * * *." "The time for filing a motion for new trial begins to run from the time the decision was rendered, and not from the date it was filed or entered on the journal of the court." Molczyk v. Molczyk, supra [154 Neb. 163, 47 N.W.2d 406].
"The striking of a motion for new trial, timely filed in the district court, is the equivalent of overruling the same and finally disposing of the cause upon the merits, from which appeal may be taken to this court, * * *." Lynch v. City of Omaha ex rel. Larsen, 153 Neb. 147, 43 N.W.2d 589, 590.
Here the motion for new trial filed on August 29, 1958, was within time but the appellant did not appeal from the court's ruling of September 2, 1958, within the 1 month provided by section 25-1912, R.R.S. 1943, for that purpose. In view thereof this court is without jurisdiction to entertain the appeal. See, Frenchman-Cambridge Irr. Dist. v. Ferguson, supra; Molczyk v. Molczyk, supra; Powell v. Van Donselaar, supra. As stated in Powell v. Van Donselaar, supra: "This court cannot have jurisdiction of an appeal from the district court, unless as required by section 25-1912, R.R.S.1943, a notice of appeal is filed in the office of the clerk of the district court, and the docket fee is deposited with the clerk within 1 month after rendition of the judgment or within 1 month from the denial of a motion for a new trial timely filed in the cause."
As to the motion for new trial filed on September 25, 1958, and refiled on October 11, 1958, the following has application: "A motion for a new trial that is not filed within the time specified by statute is a nullity and of no force and effect." Ehlers v. Neal, 148 Neb. 697, 28 N.W.2d 558. See, also, Frenchman-Cambridge Irr. Dist. v. Ferguson, supra; Nebraska Nat. Bank v. Pennock, 59 Neb. 61, 80 N.W. 255; Powell v. Van Donselaar, supra. As stated in Powell v. Van Donselaar, supra: "A *421 motion for a new trial not filed within the time specified by statute is a nullity and does not enlarge the time within which a notice of appeal must be filed after the rendition of judgment in a cause."
In view of the foregoing this court is without jurisdiction to entertain this appeal and it is, therefore, dismissed.
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610625/ | 533 So.2d 321 (1988)
James Sidney CLEMONS, Appellant,
v.
STATE of Florida, Appellee.
No. 88-860.
District Court of Appeal of Florida, Fifth District.
November 10, 1988.
*322 James K. Freeland of James K. Freeland, P.A., Orlando, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
COBB, Judge.
The issue is whether the defendant below, James Sidney Clemons, was entitled to suppression of evidence (cocaine) because it was the product of a pretextual stop of the vehicle he was occupying. The trial judge denied the motion to suppress on the basis of our decision in State v. Irvin, 483 So.2d 461 (Fla. 5th DCA), review denied, 491 So.2d 279 (1986).
The trial judge interpreted Irvin to mean that a stop is valid so long as any traffic infraction actually is observed by a police officer, even though the "real reason" (i.e., motivation) for the stop is police suspicion of drug activity. This interpretation of Irvin is overly simplistic. In that case, we specifically did not decide whether the "objective basis" rule would control in a situation where "one would not ordinarily be stopped but there is an appropriate basis upon which he lawfully could be stopped." Irvin, n. 2 at 462. Such a determination was unnecessary in Irvin because of the officer's testimony in that case that the defendant's excess speed was such that "any citizen would routinely be stopped" for the offense, and there clearly was no dispute that any citizen would have been routinely stopped under the circumstances involved in that case. Irvin, n. 2 at 462.
The issue which we found unnecessary to resolve in Irvin, in regard to the controlling effect of the "objective basis" rule, has now been decided in Kehoe v. State, 521 So.2d 1094 (Fla. 1988). Therein, the Florida Supreme Court adopted the view that neither the subjective intent of the arresting officer nor the objective existence of a bare legal basis for the stop is controlling. The appropriate analysis turns on whether a reasonable officer would (not could) have stopped the car absent an additional invalid purpose.
In the instant case, there was testimony from the arresting officer that the traffic infraction (impeding the flow of traffic) was such that it would ordinarily have resulted in a stop. That testimony, however, was neither credited nor discredited by the trial judge, who felt that, pursuant to his understanding of Irvin, such a determination was unnecessary. Unlike the facts in Irvin, it is not readily apparent from the instant record that no dispute exists as to whether or not the Clemons vehicle would have been routinely stopped absent the drug suspicions of the police officers.
Accordingly, we reverse and remand for rehearing in light of the controlling legal principles enunciated in Kehoe.
REVERSED AND REMANDED.
DAUKSCH and DANIEL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610634/ | 533 So.2d 809 (1988)
Robert QUARLES, et al., Appellants,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Appellees.
Nos. 87-1670, 88-82.
District Court of Appeal of Florida, Fifth District.
July Term 1988.
October 6, 1988.
Rehearing Denied November 15, 1988.
Charles Rand of Jacobs and Goodman, P.A., Altamonte Springs and Barbara Green, Miami, for appellants.
Donald L. O'Dell of Markel, McDonough & O'Neal, Orlando, for appellee, Georgia American Ins. Co.
Thomas G. Kane of Kane & Williams, Orlando, for appellee, State Farm Mut. Auto. Ins. Co.
DANIEL, Judge.
The Quarles, as personal representatives of the estate of their son Craig, appeal the dismissal with prejudice of their amended complaint against State Farm Mutual Automobile Insurance Company and Georgia American Insurance Company.[1] The Quarles argue that the trial court erred in holding that the automobile insurance policies *810 issued by State Farm and Georgia American did not provide coverage for the accident which resulted in their son's death. We agree and reverse.
The Quarles filed suit against State Farm Mutual Automobile Insurance Company, Georgia American Insurance Company, and State Automobile Mutual Company seeking a declaratory judgment under insurance policies issued by the companies. The Quarles alleged that their son was accidently shot and killed when he received a shotgun wound to his head. At the time of the accident Craig was standing next to a 1974 Ford pickup truck conversing with the vehicle's operator, Phil Riter, Jr. The truck was equipped with a permanently affixed gun rack attached to the interior of the passenger compartment. The Quarles alleged that Riter was attempting to unload a shotgun which was located in the gun rack within the vehicle when the shotgun, while still in the gun rack, discharged unexpectedly resulting in their son's fatal injury.
The Quarles sought a declaration that they were entitled to uninsured motorist's benefits and PIP benefits from State Farm, their own insurance carrier, because their son's death was caused by an accident arising out of the use, operation or maintenance of a motor vehicle. The Quarles also sought a declaration that the liability provisions of the automobile insurance policy issued to Riter by Georgia American and a homeowner's policy issued to Riter by State Automobile provided coverage for this accident.[2] The Quarles' amended complaint against State Farm and Georgia American was ultimately dismissed on the basis that it failed to show a causal connection between the motor vehicle and the injury for purposes of automobile insurance.
The policy issued by State Farm provided PIP benefits "in accordance with the No-Fault Act for bodily injury to an insured caused by an accident resulting from the ownership, maintenance or use of a motor vehicle." The policy provided uninsured and underinsured motorist coverage for bodily injury "caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle." The policy issued by Georgia American to Riter paid damages for bodily injury for which any covered person became legally responsible because of an auto accident. The term "covered person" was defined as the insured or any family member for the ownership, maintenance or use of any auto or trailer.
The Quarles contend that the trial court erred in its determination that their amended complaint failed to establish a causal connection between the ownership, use or maintenance of the motor vehicle and the accident. Specifically, the Quarles point out that the pickup truck had a permanently attached gun rack which had been installed for the purpose of transporting firearms, the shotgun discharged while mounted in the gun rack, transportation of the gun rack was one of the truck's intended, regular uses and the truck was being used for that purpose at the time of the accident. The insurance companies contend that the trial court was correct in dismissing the Quarles' amended complaint because it is not enough that an automobile be the physical situs of the injury or that the injury occur incidentally to the use of an automobile and that for coverage to apply, there must be a showing that the automobile itself was used in some manner to cause or produce the injury. Here the insurance companies contend that the allegations in the amended complaint show that the pickup truck was not being used at the time of this incident for any purpose other than as a resting place for the shotgun.
This court has previously held that where a motor vehicle is merely the situs of an injury that could have happened anywhere, the injuries do not arise out of the "ownership, maintenance or use" of the motor vehicle. Fleming v. Hill, 501 So.2d 715 (Fla. 5th DCA 1987); American States Insurance Company v. Allstate Insurance Company, 484 So.2d 1363 (Fla. 5th DCA 1986); Reynolds v. Allstate Insurance Company, 400 So.2d 496 (Fla. 5th *811 DCA 1981). Other courts have also held that the mere fact that the insured vehicle is the situs of the injury is an insufficient nexus to allow for coverage. See, e.g., Doyle v. State Farm Mutual Automobile Insurance Company, 464 So.2d 1277 (Fla. 3rd DCA 1985); Allstate Insurance Company v. Famigletti, 459 So.2d 1149 (Fla. 4th DCA 1984); Hutchins v. Mills, 363 So.2d 818 (Fla. 1st DCA 1978); Watson v. Watson, 326 So.2d 48 (Fla. 2d DCA 1976).
Cases in which insurance coverage has been found have involved more than the insured vehicle being the situs of the accident. For example, in Government Employees Insurance Company v. Novak, 453 So.2d 1116 (Fla. 1984), the insured was in her car when she was approached by a stranger who asked her for a ride. She refused, the assailant shot her, pulled her from the car, got in it and drove away. The Florida Supreme Court noted that while the phrase "arising out of" should be read to affect broad coverage, a nexus between the motor vehicle and the injury is required. Since the obtaining of a ride or the possession of the insured motor vehicle was what motivated the attack, the court found the necessary nexus. See also Hernandez v. Protective Casualty Insurance Company, 473 So.2d 1241 (Fla. 1985); National Indemnity Company v. Corbo, 248 So.2d 238 (Fla. 3d DCA 1971).
While these cases establish the general principle that there must be a causal connection or nexus between the motor vehicle and the injury for purposes of insurance coverage, they do not address the fact pattern in this case. The parties have not cited any Florida cases involving injuries associated with permanently attached gun racks in motor vehicles and our independent research reveals none. However, the Missouri Court of Appeals in the oft-cited decision[3] of Cameron Mutual Insurance Company v. Ward, 599 S.W.2d 13 (Mo. Ct. App. 1980) has extensively reviewed cases from across the nation which involve accidental shootings and motor vehicles and has categorized them into five areas.
The first category of cases involves the motor vehicle as a "mere situs" for the accident. This occurs when the vehicle's occupant handles or plays with a gun causing it to accidentally discharge inside a moving or stationary vehicle. There is no coverage under these circumstances because there is no causal connection between the discharge of the gun and the inherent use of the vehicle. Id. See also Criterion Insurance Company v. Velthouse, 751 P.2d 1 (Alaska 1986) (no coverage where the defendant, while "horsing around" with friends, picked up a loaded shotgun in his vehicle and pointed it at one of his friends).
The second category involves discharges which occur while loading or unloading the vehicle. Courts generally view liability policies as extending coverage to the loading and unloading process. See, e.g., State Capitol Insurance Company v. Nationwide Mutual Insurance Company, 318 N.C. 534, 350 S.E.2d 66 (1986) (coverage provided where a rifle accidentally discharged while being removed by the insured from a motor vehicle as the use of an automobile includes its loading and unloading).
The third category of cases involves the use of a physical portion of the vehicle as a "gun rest" for the purpose of firing a weapon. The courts are apparently divided over whether there is coverage in these cases with some finding that the use of a vehicle as a gun rest constituted a use foreign to the vehicle's inherent use.
The fourth category of cases involves the accidental discharge of guns resting in or being removed from gun racks permanently attached to vehicles. Coverage was found to exist because the presence of the permanently attached gun racks in the vehicles established a significant causal connection between the use of the vehicles and the accidental discharge of the weapons *812 carried in the vehicles. See, e.g., Kohl v. Union Insurance Company, 731 P.2d 134 (Colo. 1986) (insured's use of his Jeep was causally related to accidental discharge of rifle where accident occurred while insured was lifting rifle out of Jeep's gun rack preparing to unload and safely store it for return journey); Transamerica Insurance Group v. United Pacific Insurance Company, 92 Wash.2d 21, 593 P.2d 156 (1979) (accident, which occurred when a rifle discharged after its muzzle had been lifted out of a gun rack when the trigger brushed against a rear bracket of the gun rack, arose out of the use of the vehicle); Reliance Insurance Company v. Walker, 33 N.C. App. 15, 234 S.E.2d 206 (1977) (coverage found when gun in a permanently mounted gun rack discharged as the driver began to insert his keys into the ignition).
The final category of cases involves the accidental discharge of guns inside a vehicle caused by the actual movement or operation of the vehicle. In these cases, the causal connection between the use of the vehicle and the resulting injury is quite clear and coverage has been found.
In the present case, the Quarles alleged that their son Craig was standing next to a pickup truck talking with Riter, the truck's owner. The truck had a gun rack permanently attached to the interior of the passenger compartment. As Riter was attempting to unload the shotgun while still in the gun rack, the shotgun discharged causing Craig's fatal injury. The facts of this case clearly fall within the fourth category of cases discussed above. The presence of the permanently attached gun rack in Riter's pickup truck established a significant causal connection between the use of the pickup truck and the accidental discharge of the shotgun. We also agree with the court in State Capitol Insurance Company v. Nationwide Mutual Insurance Company, 318 N.C. 534, 350 S.E.2d 66 (1986), that the transportation of firearms is an ordinary and customary use of a motor vehicle, especially pickup trucks. Since the requisite causal connection exists between the injuries suffered by the Quarles' son Craig and the use of Riter's pickup truck, the trial court erred in dismissing the Quarles' amended complaint against State Farm and Georgia American.
REVERSED and REMANDED for further proceedings.
SHARP, C.J., and DAUKSCH, J., concur.
NOTES
[1] We treat the dismissal of the amended complaint as a declaration of the rights of the parties. See Garcia v. Allstate Insurance Company, 327 So.2d 784 (Fla. 3d DCA 1976).
[2] The issue regarding homeowner's coverage is not involved in this appeal.
[3] See, e.g., Criterion Insurance Company v. Velthouse, 751 P.2d 1 (Alaska 1986); State Farm Mutual Automobile Insurance Company v. Smith, 107 Idaho 674, 691 P.2d 1289 (1984); State Farm Mutual Automobile Insurance Company v. Powell, 227 Va. 492, 318 S.E.2d 393 (1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610637/ | 11 So.3d 952 (2009)
SCREEN
v.
STATE.
No. 2D08-2412.
District Court of Appeal of Florida, Second District.
May 22, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610640/ | 739 F.Supp. 499 (1990)
JOHN MORRELL & CO., Plaintiff,
v.
LOCAL UNION 304A OF the UNITED FOOD AND COMMERCIAL WORKERS, AFL-CIO AND CLC; United Food and Commercial Workers International Union, AFL-CIO and CLC, Defendants,
and
Administrative Office of the United States Courts, Intervenor-Applicant.
Civ. Nos. 86-4126, 86-4132.
United States District Court, D. South Dakota, W.D.
June 28, 1990.
*500 George A. Joseph, Kirkland & Ellis, Chicago, Ill., for plaintiff.
Donald R. Shultz, Lynn, Jackson, Shultz & Lebrun, Rapid City, S.D., for defendants.
Stuart M. Gerson, Asst. Atty. Gen., Theodore C. Hirt, Lynn D. Wardle, Attys., Dept. of Justice, Civ. Div., Washington, D.C., for intervenor-applicant.
MEMORANDUM OPINION AND ORDER
BATTEY, District Judge.
NATURE AND PROCEDURAL HISTORY
On January 19, 1989, an amended judgment was entered against defendants and in favor of plaintiff in the amount of $24,600,000, plus costs. On December 2, 1988, defendants had moved the Court for an order dispensing with the supersedeas bond securing the payment of the judgment, asserting, inter alia, that the bond would cost $600,000 to $800,000 (Docket # 365). That motion was denied on January 26, 1989 (Docket # 382), and this Court ordered the defendants to file a supersedeas bond to avoid issuance of execution. To secure the judgment, defendants purchased a U.S. Treasury Bill, made out to the benefit of the Clerk of the Court, to cover the amount of the judgment, and on February 16, 1989, filed a "safekeeping receipt" as such security. The plaintiff had no objection to such an arrangement and the security was approved by this Court on February 23, 1989. As the maturity date of the bonds was nearing, this Court on January 16, 1990, ordered that the defendants continue to repurchase, in the name of the clerk, six-month Treasury Bills in the amount of the principal and interest earned, as security, and to file the safe-keeping receipt with the clerk.
On February 5, 1990, after receipt of a request and proposed order from the Clerk of Courts concerning the taking of a fee from the security money pursuant to 28 U.S.C. § 1914(b) and the notice posted at 54 Fed.Reg. 20,407 (1989), this Court filed an order to show cause as to why payment of forty-five days' interest on the security should not be paid. On April 19, 1990, the Court permitted the Administrative Office of the United States Courts to intervene. Both the defendants and the Administrative Office of the United States Courts have since made extensive submissions concerning the propriety of such a fee.
LEGISLATION CONCERNING FEES ON SECURITY PENDING APPEAL
The authority for the fee which the clerk is seeking is the notice provided by the Director of the Administrative Office of the United States Courts of the initiation of the registry fund fee of the first forty-five *501 days of interest earned on the registry deposit, printed at 54 Fed.Reg. 20,407, Thursday, May 11, 1989.[1] The effective date of the action was June 12, 1989.
The Director was given the authority to take such action by Congress, under the supervision and direction of the Judicial Conference of the United States. Under 28 U.S.C. § 604(a)(19), the Director shall perform duties as may be assigned to him by the Judicial Conference.[2] The Judicial Conference has been given the authority to set fees, and the clerk has been given the authority to collect them from the parties in a district court case, under 28 U.S.C. § 1914(b).[3]
According to the notice found at 54 Fed. Reg. 20,407, these fees can be withheld from funds held by the clerk pursuant to 28 U.S.C. § 2041[4] and Fed.R.Civ.P. 67.[5] These funds are also known as "registry funds."
DISCUSSION
Defendants' responses to the Court's order to show cause included objections based on both statutory and constitutional grounds. While the Court has considered all grounds urged, it deems it not necessary to discuss each seriatim. Certain of them will be discussed.
Defendants assert that the clerk's filing of the safekeeping receipt was not the filing of "moneys" within the meaning of 28 U.S.C. § 2041, and cannot be subject to the fee. The argument is that both section 2041 and Rule 67 tell the clerk what to do with money when it is received. Both direct the clerk to invest the money ("funds" in the case of Rule 67). When the money is already invested, the "moneys" presumably become a "thing capable of delivery" under Rule 67, something which might be called an "investment package," accepted by the Court in this case in lieu of a supersedeas bond. The question then becomes whether the clerks are entitled to withhold a fee for the deposit with the court of a "thing." Notably, the notice at 54 Fed.Reg. 20,407 states that the fee will apply to all "funds," which under Rule 67, are to be invested after deposit with the Treasurer of the United States or a designated *502 depositary. The argument is, then, that the fee as noticed does not apply in this case.
This Court rejects this argument. The only difference between this case and one where the clerk invests the money, is that the defendants made the investment in a depository which was acceptable to the Court as opposed to the clerk making the deposit as designated by the Court. The end result is the same, with the funds (for a Treasury Bill can certainly be considered funds or moneys outside the definition contemplated by Rule 67) held in the name of the Clerk. This Court considers the distinction not of consequence, and will not invalidate the fee simply because the defendants bought the Treasury Bill as opposed to the clerk having purchased it.
Defendants use two cases from 1922 and 1925 to bolster their argument that the definition of moneys under 28 U.S.C. § 2041 and Rule 67 does not include a Treasury Bill. Anderson v. United States, 282 F. 258 (8th Cir.1922); Hazeltine Research Corp. v. Freed-Eisemann Radio Corp., 10 F.2d 148 (2d Cir.1925). Neither case has dealt with the statutory language at issue in this case, although there is some similarity.
Both Anderson and Hazeltine predate the authorization permitted by 28 U.S.C. § 1914(b) and implemented by the Judicial Conference of the United States in 54 Fed. Reg. 20,407 on May 11, 1989. Therefore, the cases are not dispositive of this matter.
It is the judgment of this Court that the security, deposited on behalf of the clerk of this Court, is "moneys" within the meaning of 28 U.S.C. § 2041 and Rule 67, and therefore is subject to the fees of the clerk as noticed at 54 Fed.Reg. 20,407.
A second objection raised by the defendants is that the ministerial act of the clerk in filing the safekeeping receipt for the Treasury Bill is not the type of act the performance of which the government intended to claim a fee. Without any responsibilities or duties, say the defendants, the fee is not justified, nor was it contemplated in this instance by the Judicial Conference, the Administrative Office of the United States Courts, or this Court's previous orders. Defendants' argument is directly contradicted by the law itself, and the fact that the bill is made out in the name of the clerk (as it should have been), places the money in direct custody of the clerk.
Defendants urge that the benefit received is insignificant as compared to the fee claimed. They cite the fifth amendment, due process, equal protection, and taking issues. There is also a reference to the fee being arbitrary and capricious. The Court has examined such arguments and finds them unpersuasive.
This Court, at the special instance and request of the defendants, fashioned a remedy which would save them a $600,000 to $800,000 fee for the purchase of a supersedeas bond. This litigation is extensive as reflected in 17 volumes on file in the clerk's office, containing 446 docket entries, and a number of interlocutory appeals. Defendants alone spent $500,000 for one expert witness. The use by defendants of the services of the United States Courts has been at the very least extensive. The amount of the fee charged, forty-five days' interest ($281,450.25), on a $24,600,000 judgment pales in the face of the services provided. An argument that the clerk's duties were only those of completing a bookkeeping entry is disingenuous.
ORDER
Based upon the above and foregoing memorandum opinion, it is hereby
ORDERED that pursuant to authorization of the Judicial Conference of the United States and the Director of the Administrative Office, the clerk shall deduct from the income earned on the investment, a fee equal to the first forty-five days' income earned on the investment, amounting to $281,450.25, whenever such income becomes available for deduction in the investment so held.
IT IS FURTHER ORDERED that the defendant remit by cashier's check such *503 amount payable to "Clerk, U.S. District Court."
NOTES
[1] The summary of the notice provides as follows:
Summary: This notice is to inform all interested parties that each clerk of court, whose fee schedules are set by the Judicial Conference of the United States under the authority of 28 U.S.C. 1913, 1914, and 1930, will assess a fee for the handling of all funds deposited in noncriminal proceedings with the court and held in interest bearing accounts or instruments pursuant to 28 U.S.C. 2041 and Rule 67 of the Federal Rules of Civil Procedure. The fee will be equal to the first 45 days income earned on each deposit into the court's registry.
[2] 28 U.S.C. § 604(a)(19) reads as follows:
(a) The Director shall be the administrative officer of the courts, and under the supervision and direction of the Judicial Conference of the United States, shall:
. . . . .
(19) Perform such other duties as may be assigned to him by the Supreme Court or the Judicial Conference of the United States.
[3] 28 U.S.C. § 1914(b) reads as follows:
(b) The clerk shall collect from the parties such additional fees only as are prescribed by the Judicial Conference of the United States.
[4] 28 U.S.C. § 2041 reads in full as follows:
All moneys paid into any court of the United States, or received by the officers thereof, in any case pending or adjudicated in such court, shall be forthwith deposited with the Treasurer of the United States or a designated depositary, in the name and to the credit of such court.
This section shall not prevent the delivery of any such money to the rightful owners upon security, according to the agreement of parties, under the direction of the court.
[5] Fed.R.Civ.P. 67 provides as follows:
In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing, whether or not that party claims all or any part of the sum or thing. The party making the deposit shall serve the order permitting deposit on the clerk of the court. Money paid into court under this rule shall be deposited and withdrawn in accordance with the provisions of Title 28, U.S.C., §§ 2041, and 2042 ... or any like statute. The fund shall be deposited in an interest-bearing account or invested in an interest-bearing instrument approved by the court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919981/ | 146 N.J. Super. 297 (1977)
369 A.2d 952
LOUIS ROLLERI, JOHN SALVATO, CARMEN CALABRESE, BERNARD O'BRIEN, PATRICK CARR, JOSEPH PARISO, NATHANIEL WASHINGTON, DONALD HIGGINS, AND THEODORE UPSHAW, PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS,
v.
JOSEPH P. LORDI, PROSECUTOR OF THE COUNTY OF ESSEX, NEW JERSEY, DEFENDANT-APPELLANT AND CROSS-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued October 13, 1976.
Decided January 21, 1977.
*300 Before Judges MATTHEWS, SEIDMAN and HORN.
Mr. R. Benjamin Cohen, Assistant Prosecutor, argued the cause for appellant (Mr. Joseph P. Lordi, Essex County Prosecutor, pro se).
Mr. Michael Critchley argued the cause for respondents (Messrs. Critchley & Spiessbach, attorneys; Mr. Michael F. Spiessbach on the brief).
The opinion of the court was delivered by SEIDMAN, J.A.D.
Plaintiffs were among a number of persons who took a Civil Service examination on July 12, 1973 for the position of county detective for Essex County. They passed and their names were certified for placement upon the employment list established by the Civil Service Commission as eligible for appointment in the event of a vacancy. When the Essex County Prosecutor made no appointments thereafter to the position of county detective, other than to fill vacancies, but did appoint six persons as county investigators, also to fill vacancies in that position, plaintiffs filed a complaint in Chancery Division to enjoin him (1) from "making appointments to the position of County investigator with the Essex County Prosecutor's Office while there exists a Civil Service list of eligible candidates for the position of County detective"; (2) "to terminate the employment of anyone who has been appointed to the position of County investigator subsequent to December 10, 1974," and (3) to meet the needs for investigative personnel through the appointment of county detectives.
Following a hearing, the trial judge entered judgment that
* * * the Defendant be and he is hereby enjoined to comply with the laws of the State of New Jersey regarding appointments to the position of County Investigator or County Detective in accordance with the following:
*301 In the event that the Defendant, from and after the date of this Order, determines to fill any vacancies in his staff of County Investigators or County Detectives, he must fill such vacancies only after first exhausting the statutory maximum of allowable appointments of the position of County Detective, pursuant to N.J.S.A. 2A:157-3.
The judge further specified that the judgment was prospective only and did not affect "County Investigators of Essex County heretofore appointed by virtue of application to the Essex County Assignment Judge."
Defendant appealed. Plaintiffs cross-appealed from that portion of the judgment which in effect barred the termination of those investigators appointed subsequent to December 10, 1974.
The issue presented, seemingly of first impression, is this: Where a county prosecutor is authorized by order of the assignment judge to employ specified numbers of detectives and investigators above the statutory limit, and thereafter the permissible numbers of detectives in that county is increased by statute, is the prosecutor required to appoint detectives up to the new limit before filling any vacancies occurring among the investigators?
We shall first dispose of two matters raised preliminarily by the prosecutor, neither of which is meritorious. The contentions are that in by-passing the Civil Service Commission, plaintiffs failed to exhaust their administrative remedies; and, assuming that recourse to the courts was proper, plaintiffs should have brought an action for mandamus in lieu of prerogative writs in the Law Division, instead of seeking a mandatory injunction in the Chancery Division. It does not really matter here whether relief should have been sought in an action at law rather than in Chancery. Under our 1947 Constitution, law and equity jurisdiction merged into the Superior Court, which court possesses original jurisdiction for all causes of action. Asbestos Fibres, Inc. v. Martin Laboratories, Inc., 12 N.J. 233, 239 (1953). The Law Division and the Chancery Divison may each exercise *302 the powers and the functions of the other when the ends of justice so require. S. v. H.M., 111 N.J. Super. 553, 557 (App. Div. 1970). The Chancery Division obtained jurisdiction of the subject matter here by the filing of the complaint. It is apparent that the facts and issues would have been the same had the complaint been drawn as one in lieu of prerogative writs. The prosecutor does not suggest that a different result might otherwise have been reached. We are satisfied in the circumstances that the Chancery Division correctly proceeded to determine the controversy before it.
As for plaintiffs' alleged failure to exhaust their administrative remedies, such exhaustion is neither jurisdictional nor absolute and may be departed from where, in the opinion of the court, the interest of justice so requires. Matawan v. Monmouth Cty. Tax Bd., 51 N.J. 291, 296 (1968). Where, as here, only a question of law is in issue, to require an exhaustion of administrative remedies "would be useless delay." Nolan v. Fitzpatrick, 9 N.J. 477, 487 (1952). It does not appear to us that the resolution of the issue involved here, which would still be subject to our appellate review if decided in the first instance by the Civil Service Commission, requires any particular agency expertness.
We shall, therefore, address ourselves to the merits of the principal issue involved in this appeal. A brief introductory review of the statutes pertaining to the appointment of county detectives and investigators, and a summary of the events preceding the institution of this litigation, are necessary for a full understanding of the issue.
N.J.S.A. 2A:157-2, which is part of the County Detectives and County Investigators Act (Revision of 1951), authorizes the prosecutor in each of the counties to appoint as county detectives
* * * such number of suitable persons, not in excess of the number, and at salaries not less than the minimum amounts, in this chapter provided, * * * to assist the prosecutor in the detection, apprehension, arrest and conviction of offenders against the law. Persons so appointed *303 shall be in the classified service of the civil service and shall possess all the powers and rights and be subject to all the obligations of police officers, constables and special deputy sheriffs in criminal matters.
The additional office or position of county investigator is set forth in N.J.S.A. 2A:157-10. It is placed in the unclassified service of the Civil Service. Such county investigators, not in excess of the number, and at salaries not less than the minimum amounts, provided in the act, may be appointed by the prosecutor in each of the counties
* * * to serve at his pleasure and subject to removal by him, and to assist the prosecutor in the detection, apprehension, arrest and conviction of offenders against the law. Persons so appointed shall possess all the powers and rights and be subject to all the obligations of police officers, constables and special deputy sheriffs, in criminal matters.
Prior to its amendment by L. 1974, c. 171, § 1, effective December 10, 1974, N.J.S.A. 2A:157-3 authorized the appointment in counties of the first class (including, of course, Essex County) of not more than 30 county detectives, "of whom one may be designated chief of county detectives, 2 captains of county detectives, and not more than 6 lieutenants of county detectives." In such counties, the number of investigators to be appointed was also fixed at not in excess of 30. N.J.S.A. 2A:157-11.
The 1974 amendment increased the number of county detectives in first class counties to a maximum of 50, and, in addition to a chief of county detectives, provided for two deputy chiefs, four captains, and not more than 12 lieutenants. There was no change in the permissible number of county investigators.
Between 1966 and 1974, after the statutory maximum number of county detectives and investigators had been reached in Essex County and additional personnel were needed, the prosecutor from time to time applied to the assignment judge of the county and obtained authority to appoint detectives and investigators in excess of the statutory *304 limit. The validity of such procedure is not in dispute. See In re Application of Schragger, 58 N.J. 274 (1971); In re Application of Bigley, 55 N.J. 53 (1969); N.J.S.A. 2A:158-7; N.J.S.A. 2A:157-19. By the latter part of 1974 the appointment of 42 additional investigators and 2 additional detectives was authorized in this fashion, so that the prosecutor now had a total complement of 72 investigators and 32 detectives. After December 10, 1974, as noted earlier, only one detective and six investigators were appointed by the prosecutor, in all cases to fill vacancies which occurred.
In his oral opinion at the conclusion of the hearing, the trial judge said, in pertinent part, as follows:
* * * Bearing in mind that there is no difference between investigators and detectives, they are fungible in that context. The only difference is that one is non-civil service, and the other is civil service. The intent of the legislature in enacting the amendment was that the Prosecutor could and should if necessary have an additional fifty civil service personnel in his detective department. * * *
This Court now holds that where the legislature has authorized manpower for the Prosecutor's office in the form of county detectives, the Prosecutor must appoint up to the maximum authorized by the legislature before he can make appointments to his staff as a result of emergency law enforcement orders entered by the assignment judge. I perceive that to be the legislative intent gathered from the statutes cited and from the decisions of the New Jersey Supreme Court in the cases cited. * * *
* * * [A]s attrition takes place in staff, [the prosecutor] shall so make his appointment that they will be structured in accordance with the amount which the legislature tells him. In other words, thirty investigators and fifty detectives, and once he has done what the legislature has prescribed, then he can appoint more investigators in accordance with the assignment judge's ruling. * * *
It is evident from the foregoing that the trial judge construed the increase in the number of detectives as tantamount to a legislative determination of the Essex County Prosecutor's needs for investigative personnel, thereby, in effect, superseding or modifying the prior order of the assignment judge in that county which had increased the number of investigators beyond the statutory maximum. He also seems to have held the view that the statute was a mandate to the *305 prosecutor to appoint detectives instead of investigators, until the new maximum was reached, particularly since the two categories were "fungible" in the sense that their functions and duties were the same. We do not agree with the views expressed by the trial judge. They do not sufficiently take into account the unique position occupied by a county prosecutor and the part played by the assignment judge in the implementation of the prosecutor's duties and responsibilities.
N.J.S.A. 2A:158-4 provides that the criminal business of the State shall be prosecuted by the Attorney General and the county prosecutors. The latters' authority in such matters, in the absence of supersession by the Attorney General, is exclusive. State v. Walls, 138 N.J. Super. 445, 449 (App. Div. 1976); State v. Longo, 136 N.J.L. 589, 593 (E. & A. 1947). It is the prosecutor's function to use "all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws." N.J.S.A. 2A:158-5. To that end he is allowed a staff of assistant prosecutors, detectives and investigators. It was emphasized in State v. Winne, 12 N.J. 152, 167 (1953), that the Legislature has not "merely imposed duties of vast importance to the public on the county prosecutor," and seen to it that his office is sufficiently staffed; it has also given him "power not paralleled elsewhere in the county to incur expenses in `the detection, arrest, indictment and conviction of offenders' against the law." See N.J.S.A. 2A:158-7; Cetrulo v. Byrne, 31 N.J. 320, 325 (1960). The Legislature clearly "intended to give him dominant position and the primary responsibility for the enforcement of the criminal laws, not merely by conferring authority on him but by giving him the means of implementing such authority." State v. Winne, supra, 12 N.J. at 167.
Although the Legislature, in authorizing the appointment by the prosecutor of county detectives and county investigators, has fixed the maximum number in each category, according to the class of the county, those limits are not immutable. By providing in N.J.S.A. 2A:157-19 *306 that the statute shall not be construed "to limit the power of any prosecutor, duly conferred upon him by law, to incur expenses" in the performance of his duties, the Legislature "expressly disavowed an intent to restrain the basic statute of 1874 under which the prosecutor may go beyond the budget appropriations with the approval of the Assignment Judge." In re Application of Bigley, supra, 55 N.J. at 59. Thus, if the prosecutor needs additional investigative personnel, he may appoint them within the limitations prescribed by law and the judicial decisions. Cetrulo v. Byrne, supra, 31 N.J. at 328.
Beyond this, the Legislature as well as the courts "have long recognized the strong policy considerations which dictate that since the county prosecutor is charged with heavy enforcement responsibilities he must be given broad powers to appoint his own personnel * * *." Cetrulo v. Byrne, supra at 328. As we have seen, the Legislature established the positions of detectives and investigators. Although the powers and rights of both are identical, investigators were expressly excluded from the classified service of Civil Service. The clear legislative purpose and plan in providing for investigators was to "[afford] to the county prosecutor a confidential investigatory staff serving at his pleasure and removable at his will notwithstanding the terms of any earlier tenure enactments." Brennan v. Byrne, 31 N.J. 333, 336 (1960). We do not consider the holders of the two positions to be "fungible," as did the trial judge here. Despite the identity of duties and responsibilities among detectives and investigators, it is clear that the Legislature intended to vest in the prosecutor a great deal of latitude and discretion in the selection of his investigative staff, with the tenured position of county detective balanced by investigators serving at his pleasure in whom, as was aptly put in the statement attached to the original bill creating the position (which became L. 1931, c. 164), "he has that degree of confidence resulting from personal, intimate knowledge."
*307 We do not discern in the statutory scheme any intent to prefer detectives over investigators in the matter of appointments. This would clearly not be so where the statutory maximum has not been reached in either category. In such case, it would be absurd to hold that the appointment of investigators would have to await the filling up of all detective openings. Nor do we find any mandate that a prosecutor must appoint investigative personnel up to the full statutory limit in either category. There can be no doubt whatever, at least within the statutory maximum in each category, that the prosecutor has complete discretion to determine whether to appoint detectives or investigators, and in what numbers.
It is appropriate, at this point, to examine the role of the assignment judge in the determination of a prosecutor's needs. In re Application of Bigley and In re Application of Schragger, supra, are controlling. Bigley concluded, after a review of the legislative history, that for almost 100 years the Legislature has adhered to the policy that the ultimate determination of how much money should be provided for the discharge of the prosecutor's duties should rest with a judicial officer, and that N.J.S.A. 2A:158-7 commits to the assignment judge the authority to require a board of chosen freeholders to meet the needs of the prosecutor not provided for by the board in its regular or emergency appropriations for that office. 55 N.J. at 59. See Schragger, 58 N.J. at 277. In the performance of that responsibility,
* * * the Assignment Judge acts as a legislative agent rather than as a judicial officer. Hence he does not sit in review of the action or inaction of the freeholders but rather makes his own original determination. Nonetheless the freeholders do speak for the taxpayers who must meet the added charge, and it therefore is appropriate, notwithstanding the absence of a legislative mandate, that the prosecutor make an initial request of the freeholders unless circumstances excuse that course. For like reasons, it is appropriate that the prosecutor give notice to the freeholders of his application before the Assignment Judge so that the freeholders may communicate their views. [Bigley, 55 N.J. at 61]
*308 We made reference earlier to the authority of the prosecutor to appoint additional personnel "within the limitations prescribed by law and the judicial decisions." Cetrulo v. Byrne, supra. We noted then that in the appointment of county detectives and investigators, despite the fixing of their numbers by statute, the prosecutor may go beyond the budget appropriations with the approval of the assignment judge. Plaintiffs construe Schragger and Bigley to hold that the purposes of the assignment judge sitting as legislative agent are to evaluate the manpower, among other things, needed for the prosecutor's office, absent a specific determination made by the Legislature itself. We find no such limitation on the power of the assignment judge in either of the cited cases. In fact, Schragger clearly indicates otherwise:
* * * The Legislature need not itself fix an unalterable number of assistant prosecutors or detectives or investigators or other personnel of the prosecutor's office or their salaries. The Legislature may delegate to others the task of deciding the ultimate needs of a prosecutor. * * *
* * * Hence it is quite appropriate for the Legislature to ask a judicial officer to pass upon the monetary requirements of the prosecutor * * *. [58 N.J. at 278-279]
Here, the assignment judge, in furtherance of his responsibility as legislative agent, issued orders from time to time, prior to December 1974, authorizing the prosecutor to appoint investigative personnel above the statutory limits. Plaintiffs complain that the prosecutor "abused his discretion by appointing a grossly disproportionate number of county investigators who serve at his pleasure in comparison to civil service candidates who have complied with the Civil Service examination procedure for merit and fitness." That contention, even if meritorious, is not germane to this appeal. Apart from that which we have already said on the subject, the short answer is that, in accordance with existing law, the assignment judge made a determination of the prosecutor's needs upon the latter's application. His orders in that regard were subject to appellate review at the *309 time. It does not appear that such relief was sought by any one claiming to be aggrieved thereby. The issue cannot be raised now.
While the trial judge disclaimed any intent to review the previous orders of the assignment judge; he seems, nonetheless, to have accepted plaintiffs' argument that "the assignment judge's order is a back-up measure, to be used by the Prosecutor when the compliment [sic] of his office, provided for by the legislature, is inadequate." But his determination, whether intended or not, had the effect of superseding and modifying those orders. Therein, we believe, lies the basic flaw in the action taken by the trial judge. It was an intrusion into the prerogative of the assignment judge. We do not mean to imply that there is necessarily a continuing need for all the supernumerary investigators now that the Legislature has increased the permissible number of detectives. On the other hand, it may well be that the prosecutor requires the services of all the investigators, despite the additional county detectives. We cannot tell from the record before us what the prosecutor's personnel needs are at the present time, or how those needs are best to be fulfilled. The point we stress is that whether or to what extent the existing orders should continue to be in force is a matter that must be resolved by the agent designated by the Legislature for that purpose, i.e., the assignment judge who issued those orders, subject, of course, to appellate review, if necessary. To that end, a copy of this opinion will be forwarded to the assignment judge of Essex County for his information and such action, if any, as he may deem appropriate and necessary in the circumstances.
The judgment is reversed and the complaint is dismissed. No costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3042570/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-2955
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Matthew Glynn Arlen Hayes, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: June 21, 2007
Filed: June 27, 2007
___________
Before COLLOTON, BEAM, and BENTON, Circuit Judges.
___________
PER CURIAM.
Matthew Hayes appeals the district court’s1 denial of his motion to modify his
sentence under 18 U.S.C. § 3582(c)(2), or to issue a new commitment order directing
the Bureau of Prisons to comply with the terms of one of the alternative sentences
imposed by the district court prior to United States v. Booker, 543 U.S. 220 (2005).
After filing this appeal, Hayes filed a 28 U.S.C. § 2255 motion in the district court,
arguing that his counsel had ignored his request to pursue a direct appeal of his
sentence. The district court granted the motion to vacate the judgment and
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
resentenced Hayes. Accordingly, we find this appeal is moot, as the instant motion
sought to enforce or modify a judgment that has since been vacated. See Mills v.
Green, 159 U.S. 651, 653 (1895) (when event occurs during pendency of appeal that
renders it impossible for court – if it should decide case in favor of plaintiff – to grant
effective relief, court will dismiss appeal as moot). We therefore dismiss the appeal.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1611128/ | 166 N.W.2d 411 (1969)
184 Neb. 172
Mervin D. EVANS, Appellant,
v.
METROPOLITAN UTILITIES DISTRICT OF OMAHA, Nebraska, et al., Appellees.
No. 37021.
Supreme Court of Nebraska.
March 14, 1969.
*412 Foulks, Wall & Wintroub, Omaha, for appellant.
Cecil S. Brubaker, Herbert M. Fitle, City Atty., Schmid, Ford, Snow, Green & Mooney, Omaha, John E. Rice, Bellevue, for appellees.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ., and MORAN, District Judge.
WHITE, Chief Justice.
This is an appeal from a Douglas County district court order sustaining a demurrer to the plaintiff's petition and dismissing his petition. The action was brought as a class action on behalf of the plaintiff and other affected rate payers of the defendant Metropolitan Utilities District, hereinafter referred to as M.U.D. The petition of the plaintiff seeks a declaratory judgment of the unconstitutionality of L.B. 425 of the 1967 Legislative Session, Laws 1967, c. 47, p. 178. This bill amended former section 14-1041, R.R.S.1943, now cited as section 14-1041, R.S.Supp.1967, and created section 14-1042, R.S.Supp.1967. For purposes of this opinion, L.B. 425 will be used to refer to sections 14-1041 and 14-1042, R.S.Supp., 1967. L.B. 425 requires M.U.D. to pay 2 percent of its gross retail sales to the municipalities which its serves. The demurrer was sustained and the action was dismissed on the grounds that the cause of action stated in plaintiff's petition was derivative, and that plaintiff did not allege facts essential to his bringing the action.
On appeal, plaintiff contends: (1) That the action is direct rather than derivative, (2) that the trial court erred in determining that the plaintiff had not alleged the necessary facts essential to his bringing this action, and (3) that the trial court erred in not permitting the plaintiff to amend his petition to set forth more specifically the facts permitting him to bring the action. We affirm the trial court's order sustaining the demurrer and dismissing the action.
The plaintiff, Mervin D. Evans, is a resident of Omaha, Douglas County, Nebraska, *413 and is a user and rate payer for gas and water utilities of M.U.D. Since 1947, and pursuant to section 14-1041, R.R.S.1943, M.U.D. has been required to pay to the City of Omaha varying sums of money. L.B. 425 requires payments of 2 percent of gross retail sales of M.U.D. to be made to all municipalities which it serves. The plaintiff alleges that M.U.D. has indicated it will correspondingly increase by 2 percent the monthly bill of each water and gas consumer inside the municipalities covered by the provisions of L.B. 425.
The petition filed by the plaintiff named as defendants M.U.D., Sam Howell, treasurer of the City of Omaha, and the municipalities of Omaha, Bennington, Springfield, Fort Calhoun, Boys Town, and Bellevue. The petition prayed for an injunction freezing the 2 percent required to be paid to the municipalities until the constitutionality of L.B. 425 was determined, and upon a declaration of unconstitutionality that the money so impounded and frozen be returned to M.U.D., "upon such conditions as it (the court) may direct."
Section 25-301, R.R.S.1943, provides that, "Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 25-304. [R.R.S.1943]." Section 25-304, R.R.S.1943 is not relevant to the disposition of any issues in this case. The use of a demurrer is a proper method to object to a defect in the parties. Cunningham v. Brewer, 144 Neb. 211, 218, 13 N.W.2d 113, 16 N.W.2d 533. The demurrer filed herein specifically raised the issue that the plaintiff and all others similarly situated were not the real parties in interest.
The issue, therefore, is whether users of utilities furnished by M.U.D. are real parties in interest in an action challenging the constitutionality of a statute requiring M.U.D. to pay additional sums to municipalities in which it operates and to seek an injunction against collection of such additional funds from M.U.D., in the absence of a demand on M.U.D. to seek the same relief. We hold that they are not the real parties in interest.
In Dafoe v. Dafoe, 160 Neb. 145, 69 N.W. 2d 700 (1955), this court stated the general law defining a real party in interest. In substance, we held that a real party in interest is the person "entitled to the avails of the suit," that the person who is asserting the cause of action has a "remedial interest which the law of the forum can recognize and enforce," and that he has a "justiciable interest in the subject matter in litigation, either in his own right or in a representative capacity."
No demand was made on M.U.D. asking it to seek an injunction against the collection of the additional sums of money by the municipalities. Nor is there any allegation of a demand on M.U.D. to seek to have L.B. 425, declared unconstitutional. There is no allegation either expressly or indirectly that M.U.D. has waived the necessity for demand by indicating that it would not sue if a demand were made on it. The law in this respect is clear. The requirement of a demand to sue and a subsequent refusal or a waiver of demand by an indication on the part of the public corporation of an intent not to sue are conditions precedent to a representative or derivative suit on behalf of public corporations. See, 18 McQuillan, Municipal Corporations, s. 52.41, p. 83; Madison Metropolitan Sewer Dist. v. Committee on Water Pollution, 260 Wis. 229, 50 N.W.2d 424; Niklaus v. Abel Constr. Co., 164 Neb. 842, 83 N.W.2d 904. It seems to be quite obvious that plaintiff and the others in his class have no standing as parties to bring this suit for the simple reason that they cannot be considered real parties in interest. As far as this action is concerned they are not sui juris and neither do they have any justiciable interest in this controversy at the present time because the action exists on the part of M.U.D., and M.U.D. has not refused to bring it. Further, of course, they have no interest or right to the avails of any suit of this nature, since M.U.D. itself would be the proper party plaintiff *414 and would be entitled to all avails in the event of the successful determination that L.B. 425 is unconstitutional.
The petition of the plaintiff alleges no direct injury. By maximum inference from the allegations of the petition, plaintiffs as rate payers, have a prospective, contingent, and indirect interest because action that M.U.D. may or may not take could have an effect upon the policy or management decision of M.U.D. with respect to utility rates. It is obvious that they have no direct cause of action against M.U.D. or the other parties concerned and, therefore, cannot be the real parties in interest on the basis of having a direct cause of action for a wrong done to them individually. The petition only alleges a possibility of injury by the statement that M.U.D. has indicated that it will raise its rates by 2 percent for those parties living within the municipalities collecting the 2 percent from M.U.D. If the rates are raised, it must be on the basis of a managerial or policy decision that is not prompted or legally related or authorized in any manner by the statute sought to be declared unconstitutional. While a rate increase may be made by M.U.D., an indirect burden of 2 percent placed on the plaintiff and others in his class, the burden will then be caused by M.U.D., and not by statute.
We point out that L.B. 425 does not require that the 2 percent be passed on. It might well be determined by M.U.D., as was apparently the assumption of the Legislature in passing the statute, that the present rates were adequate; or that the 2 percent payments might be paid out of reserves; or possibly M.U.D. might have other assets or income to meet the payments. There is neither any legally probable or fixed obligation to raise rates to meet these payments. In fact, it might be argued that the only party, other than M.U.D. itself, that might suffer would be the bond holders and not the rate payers.
At the risk of belaboring this point, we note the petition of the plaintiff in no way points out how the plaintiff and others will obtain any relief by an ultimate determination that the statute is unconstitutional which will not be obtained by the determination of the M.U.D. cross-petition. It prays that the money received by the municipalities by the 2 percent charge on gross retail sales be returned to M.U.D. if the statute is declared unconstitutional and prays for the allowance of attorney's fees. The petition does not, by any recognizable standards, ask any relief for the plaintiff and others equally situated. It is abundantly clear that the trial court's action in sustaining the demurrer was correct.
The final question is whether the court erred in failing to permit the plaintiff to amend his petition. Section 25-854, R.R.S.1943, provides: "If the demurrer be sustained, the adverse party may amend, if the defect can be remedied by way of amendment, with or without costs, as the court in its discretion shall direct." This section of the statute does not declare an absolute right of amendment. Weiner v. Morgan, 175 Neb. 656, 122 N.W.2d 871; Coverdale & Colpitts v. Dakota County, 144 Neb. 166, 12 N.W.2d 764. The trial court did not abuse its discretion in refusing or failing to grant permission to amend the petition. We note in the record of this case that the plaintiff at no time requested permission to amend his petition prior to the time of filing a motion for a new trial in this case. It seems to us the reason for this failure is obvious. By cross-petition, M.U.D. in this case has effectively refuted the basic claim of plaintiff with respect to his right to bring this action. In its cross-petition it asks affirmatively for the same relief that the plaintiff purportedly seeks to secure by a direct action with reference to the unconstitutionality of L.B. 425. This being true the possibility of the plaintiff to amend his petition to allege a cause of action and stay within the same subject matter of the action is foreclosed permanently. The subject matter of plaintiff's cause of action is not that M.U.D.'s rates are unreasonably high, or any attack upon managerial policy or decision in this respect, but is instead *415 solely for a determination of the constitutionality of L.B. 425. If it subsequently is determined that the statute is unconstitutional, a decision based upon M.U.D.'s cross-petition herein, and if M.U.D. has decided not to lower its rates to correspond to the rates of users outside the different municipalities, a possibly different cause of action would be available to the plaintiff and others similarly situated against M.U.D. It is clear, of course, that such an action could not be maintained at the present time and is not available within the range of the subject matter of this action.
We point out that nothing said herein, either directly or indirectly, should be construed as a determination in any respect as to the constitutionality of L.B. 425. It has become necessary in discussing the issues in this case, arising on demurrer, to assume the unconstitutionality of this statute.
We come to the conclusion that the trial court's judgment in sustaining the demurrer and dismissing the action is correct and is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611143/ | 533 So.2d 602 (1988)
Michael PERRY, a minor, By and Through his mother and next friend, Brenda PERRY; and Brenda Perry, individually
v.
MOBILE COUNTY, et al.
No. 87-77.
Supreme Court of Alabama.
September 23, 1988.
*603 Patrick M. Sigler and Stephen C. Moore, Mobile, for appellants.
Lawrence M. Wettermark of Collins, Galloway & Smith, Mobile, for appellees Mobile County, Ala., and Mobile County Com'n.
Warren C. Herlong, Jr., and Sandy J. Grisham of Coale, Helmsing, Lyons & Sims, Mobile, for appellee M.L. Risher, individually and as Div. Engineer for the State of Ala. Highway Dept.
ON REHEARING EX MERO MOTU
SHORES, Justice.
On rehearing ex mero motu, the original opinion in this case is withdrawn and the following is substituted therefor:
This is an appeal from a summary judgment entered in favor of the defendants, Mobile County, the Mobile County Commission, and M.L. Risher, and made final pursuant to Rule 54(b), Ala.R.Civ.P. We affirm.
Michael Perry was injured in an automobile accident that occurred in the intersection of Hamilton Boulevard and Rangeline Road in Mobile County. The complaint alleged that Mobile County and the Mobile County Commission (hereinafter, both Mobile County and the Mobile County Commission will be referred to as "Mobile County") had negligently or wantonly designed, constructed, and maintained the intersection and had negligently continued to use at that intersection a flashing signal light that showed amber on one side and red on the other side. The plaintiffs alleged that, instead of this light, Mobile County should have used at this intersection a regular traffic signal with red, amber, and green lights on each side. The complaint was amended to allege negligent and wanton failure to warn of a dangerous roadway condition.
Mobile County's motion for summary judgment was granted by the trial court, but that judgment was reversed by this Court on a prior appeal because Mobile County had not complied with some of the plaintiffs' discovery requests. Perry v. Mobile County, 497 So.2d 829 (Ala.1986). On remand, after discovery had been completed, the trial court granted Mobile County's second motion for summary judgment.
*604 The evidence in the record conclusively establishes that the intersection of Hamilton Boulevard and Rangeline Road is under the exclusive control of the State of Alabama. The State owns all of the right-of-way surrounding the intersection, and the intersection was entirely designed, constructed, and maintained by the State. Yet, the appellants, relying on Jefferson County v. Sulzby, 468 So.2d 112, 114 (Ala. 1985), insist that Mobile County had a duty to warn of a dangerous condition of a roadway and a duty to keep the roadways under its control in a safe condition. The holding of Sulzby is not applicable to the facts in the instant case. It is undisputed that the intersection involved in this case, unlike that involved in Sulzby, was not under the control of the county. Consequently, Mobile County owed no duty to maintain the intersection in a safe condition, or to warn of the intersection's allegedly dangerous condition. Therefore, summary judgment was properly entered in favor of Mobile County.
The complaint was amended to add M.L. Risher as a defendant. Risher was employed by the State of Alabama Highway Department as a division engineer at the time of the accident, and the amended complaint alleged that Risher was negligent or wanton in designing and/or maintaining the intersection. It further alleged that Risher had negligently or wantonly failed to alter, modify, or change the intersection prior to the accident.
The evidence in the record is uncontroverted that Risher had no involvement with the design of the intersection; therefore, the only issue is whether Risher may be held liable for the alleged failure to alter, modify, or change the intersection prior to the accident.
After a party moving for summary judgment has made a prima facie showing that there is no genuine issue of material fact, the burden moves to the non-moving party to show by admissible evidence the existence of a genuine issue of material fact. Ala.R.Civ.P. 56(e); Horner v. First National Bank of Mobile, 473 So.2d 1025 (Ala.1985). If an affidavit is filed in opposition to a motion for summary judgment, the court should not consider it unless it is based on personal knowledge, Welch v. Houston County Hospital Board, 502 So. 2d 340 (Ala.1987). The affidavit may not consist of bare conclusory statements, but must be based on facts, Nowell v. Mobile County Health Dept., 501 So.2d 468 (Ala. Civ.App.1986). An additional requirement is that the affidavit contain information that allows more than speculative or conjectural inferences, Thompson v. Lee, 439 So.2d 113 (Ala. 1983). Where documents have been submitted, as exhibits to affidavits or otherwise, they must be admissible in evidence either as sworn or certified copies, Ala.R.Civ.P. 56(e).
In opposition to Risher's motion for summary judgment, the plaintiffs filed a motion and an affidavit that contains speculative and conclusory statements. The affidavit is not based on the personal knowledge of the affiant. It is accompanied by various documents, including computer printouts of accident reports, individual accident reports, and letters. None of these documents was certified or otherwise authenticated so as to be made admissible into evidence; therefore, they constitute inadmissible hearsay. Additionally, the affidavit referred to an accident report that is not in the record and also referred to the depositions of Michael Perry, Robert Williams, and Christopher Perry, but those depositions are not contained in the record. Under these facts, it would have been appropriate for the trial court to disregard the affidavit. However, we cannot be sure that it did, since no ruling on the matter was invoked.
The issue of admissibility of the evidence in opposition to the motion for summary judgment was raised by Risher for the first time on appeal. In response to his contention on this issue, we adopt the following language from C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2738 (1983):
"A party must move to strike an affidavit that violates Rule 56(e); if he fails to do so, he will waive his objection and, in the absence of a `gross miscarriage of *605 justice,' the court may consider the defective affidavit. This principle applies to affidavits containing evidence that would not be admissible at trial as well as to affidavits that are defective in form. The motion to strike must be timely, [and] the decision on that question is left to the discretion of the trial judge. It is clear that a motion to strike presented for the first time on appeal comes too late.
"The court will disregard only the inadmissible portion of the challenged affidavit and consider the rest of it.... [A] motion to strike should specify the objectionable portions of the affidavit and the grounds for each objection. A motion asserting only a general challenge to an affidavit will be ineffective."
The foregoing is applicable equally to those affidavits in support of a motion for summary judgment and to those in opposition to such a motion.
Since Risher did not call to the trial court's attention the fact that the affidavit was inadmissible, he waived that objection, but, after considering it, we conclude that the trial court did not err in granting summary judgment for Risher. Even considering the plaintiff's affidavit, the evidence remains undisputed that Risher acted within the scope of his authority as a division engineer of the State Highway Department when he made his determination not to install a different signal at the intersection of Hamilton Boulevard and Rangeline Road in Mobile County prior to the accident. Consequently, Risher was the "mere conduit" through which the State maintained control of the intersection. Further, in determining whether to install a different signal at this intersection, Risher was exercising his judgment or discretion. Therefore, Risher is entitled to substantive and procedural immunity for his acts performed in the furtherance of his duties with the State of Alabama Highway Department. Carter v. Board of Trustees of University of Alabama in Birmingham, 431 So.2d 529, 531 (Ala.1983); Deal v. Tannehill Furnace & Foundry Commission, 443 So.2d 1213 (Ala.1983); Hickman v. Dothan City Board of Education, 421 So.2d 1257 (Ala. 1982); Bell v. Chisom, 421 So.2d 1239 (Ala. 1982); DeStafney v. University of Alabama, 413 So.2d 391, 393-94 (Ala.1982); Gill v. Sewell, 356 So.2d 1196, 1198 (Ala. 1978); Cairl v. State, 323 N.W.2d 20, 23 (Minn.1982).
The appellants insist that Risher is subject to tort liability because, they say, he acted in bad faith or under a mistaken interpretation of law in not recommending that a different signal be installed at the intersection. The record is devoid of any evidence that Risher acted in bad faith; therefore, the only question is whether there is evidence to support the allegation that Risher acted under a misinterpretation of law.
The necessary criteria or "warrants" for the placement of a traffic signal at a given intersection are set forth in the Alabama manual on uniform traffic control devices. This manual, published by the State of Alabama Highway Department, is the guideline for traffic engineers to follow when making a recommendation on the installation of a traffic signal. The installation of all electrically operated highway traffic signals on the State highway system must be approved by the State of Alabama Highway Department. The manual contains the following language regarding all traffic engineers' considerations as a basis for the installation of a traffic signal:
"Based upon many years of traffic engineering experience, and analyses of traffic operations and other factors at signalized and unsignalized intersections, a series of warrants have been developed that define the minimum conditions under which traffic control signals should be installed. These warrants, combined with the judgment of experienced traffic engineers, shall be utilized to determine the justification for the installation of traffic control signals. It is necessary that the judgment of the experienced traffic engineer be based upon a thorough engineering study of the roadway and traffic conditions."
Risher testified that he could not make a recommendation for a regular three-color *606 signal at the intersection because the traffic volume did not warrant it. The plaintiffs submit that Risher was acting under a misinterpretation of law because, they say, he followed the literal language of the manual and did not make a recommendation based on other factors.
Risher testified that he knew that he was authorized to make a recommendation for the installation of signals at the intersection, but that he felt that such a recommendation would be rejected because it was not justified by the "warrants." Clearly, Risher was aware that his authority was not limited to the literal wording of the manual, but that he was free to exercise his judgment based on his experience as an engineer when he made recommendations. The evidence is uncontroverted that Risher was not acting under a misinterpretation of law, but was performing a discretionary function, the result of which is not to the satisfaction of the plaintiffs. Therefore, Risher is entitled to the exception from tort liability, because he was exercising his judgment or discretion in the furtherance of his duties as a division engineer for the State of Alabama; the summary judgment was, thus, also proper as to Risher.
Based on the foregoing, the judgment is due to be, and it hereby is, affirmed.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
TORBERT, C.J., and JONES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
MADDOX, J., concurs in the result.
MADDOX, Justice (concurring in the result).
I concur in the result, but I believe the rule of law in this state is stated in the following cases: Hall v. Harris, 504 So.2d 271, 273 (Ala.1987); Welch v. Houston County Hospital Board, 502 So.2d 340, 342-44 (Ala.1987); Autrey v. Blue Cross & Blue Shield of Alabama, 481 So.2d 345, 347 (Ala.1985); MJM, Inc. v. Casualty Indemnity Exchange, 481 So.2d 1136, 1140-41 (Ala.1985); Turner v. Systems Fuel, Inc., 475 So.2d 539, 541-42 (Ala.1985); Day v. Merchants National Bank of Mobile, 431 So.2d 1254, 1256-57 (Ala.1983); Butler v. Michigan Mutual Insurance Co., 402 So.2d 949, 952 (Ala.1981); Arrington v. Working Woman's Home, 368 So.2d 851, 854 (Ala.1979); Oliver v. Brock, 342 So.2d 1, 4 (Ala.1977). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2449063/ | 253 P.3d 386 (2011)
STATE
v.
WINTER.
No. 104196.
Court of Appeals of Kansas.
June 24, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612139/ | 745 F.Supp. 65 (1990)
CITIZENS TO END ANIMAL SUFFERING AND EXPLOITATION, INC., Doreen Close Lavenson, and, Mark Sommers, Plaintiffs,
v.
FANEUIL HALL MARKETPLACE, INC., Defendant.
Civ. A. No. 90-10722-T.
United States District Court, D. Massachusetts.
August 27, 1990.
*66 *67 James A. Frieden, Boston, Mass., for plaintiffs.
Edward Raymond Lev, Lynn Peterson Read, Robert Buchanan, Sullivan & Worcester, Boston, Mass., for defendant.
MEMORANDUM
TAURO, District Judge.
Plaintiffs are a non-profit corporation, Citizens To End Animal Suffering And Exploitation, and two of its members, Doreen Close Lavenson and Mark Sommers. They allege that defendant, Faneuil Hall Marketplace, Inc., infringed their First Amendment right of free expression when it arrested Lavenson and Sommers on grounds of criminal trespass for distributing literature on land leased by defendant from the City of Boston. Based upon that past action, and defendant's representation that it would arrest plaintiffs again under similar circumstances, plaintiffs seek to enjoin future interference with their freedom of expression.
I.
On June 23, 1989, the individual plaintiffs, along with others, gathered at Faneuil Hall Marketplace ("the Marketplace")[1] to distribute leaflets and protest the inhumane treatment of calves used for veal. They urged passersby not to consume *68 veal at the establishments located in the Marketplace. Plaintiffs claim that, as they and their fellow protesters were walking in a single line with pedestrian traffic on North and South Market Streets, they were stopped by defendant's security officers who allegedly had received complaints from a commercial tenant. The officers told the protesters that they could not picket or display signs on "private property."[2]
After the protesters refused to disperse, defendant's security officers summoned the Boston Police. The police responded quickly, but left without making any arrests, notwithstanding the protesters' refusal to disperse. Defendant's security officers then arrested Lavenson and Sommers for criminal trespass. The pair were handcuffed and taken to defendant's security offices, where they were detained until the Boston Police returned. Defendant swore out criminal complaints against Lavenson and Sommers in the Boston Municipal Court. These criminal proceedings were ultimately dismissed for lack of prosecution.
As a result of this incident, plaintiffs filed a five-count complaint against defendant, alleging: 1) violation of 42 U.S.C. § 1983; 2) violation of Mass.Gen.L. c. 12 § 11I; 3) false arrest; 4) malicious prosecution; and 5) abuse of process.
Presently at issue is plaintiffs' motion for a preliminary injunction, by which they seek to enjoin future interference with their freedom of expression. This motion raises issues of justiciability, state action, first amendment fora, and the propriety of injunctive relief. Each will be addressed seriatim.
II.
A federal court may only decide actual cases or controversies. See U.S. Const. art. III, § 2; Diamond v. Charles, 476 U.S. 54, 61, 106 S.Ct. 1697, 1703, 90 L.Ed.2d 48 (1986) ("Article III of the Constitution limits the power of federal courts to deciding `cases' and `controversies.'"). To present a justiciable case or controversy, the plaintiff must demonstrate "a realistic danger of sustaining a direct injury...." Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979) (citation omitted).
Plaintiffs have alleged a justiciable claim here. They wish to exercise their First Amendment rights at the Marketplace. See Letter to Michael E. Spear (Appendix B to Affidavit of Doreen Close Lavenson). Defendant arrested them for attempting to do so in the past, and filed a criminal complaint against them. At oral argument, defense counsel conceded that, if plaintiffs attempted another such protest on the premises, defendant would take the same action against them. These circumstances constitute an actual case or controversy, and justify this court's exercise of its equitable power. See Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923) ("One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough."). See also Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974). The motion for preliminary injunction, therefore, is properly before the court.
III.
Before deciding whether defendant can be enjoined from prohibiting speech on its premises, the court must undertake a two-step inquiry. First, the court must determine whether this defendant, an ostensibly private party, may be held to constitutional standards when it attempts to regulate activity on its premises. See Hudgens v. National Labor Relations Board, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976) (absence of state action precludes application of constitutional standards). If so, the court must then characterize the forum at issue, thereby setting the constitutional standards by which defendant's regulations are to be judged. See Cornelius v. NAACP Legal Defense and Educational *69 Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 3446, 87 L.Ed.2d 567 (1985) (scope of right of expression is determined by type of forum involved).
Plaintiffs contend that the public nature of the Marketplace makes the protections of the First Amendment applicable.[3] Defendant, on the other hand, argues that the Marketplace is private property to which the First Amendment does not apply. See Hudgens, 424 U.S. 507 (1976) (First Amendment inapplicable to privately-owned shopping mall).
A.
The Constitution clearly restricts the power of the government to regulate speech. See, e.g., Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 114, 93 S.Ct. 2080, 2092, 36 L.Ed.2d 772 (1973). Under certain circumstances, private parties may also be subject to these same constitutional standards. See Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 488, 15 L.Ed.2d 373 (1966) ("[c]onduct that is formally `private' may become so ... impregnated with a governmental character" that it can be regarded as governmental action). The issue, therefore, is whether defendant's actions here may be "fairly attributable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982); Ponce v. Basketball Federation of Puerto Rico, 760 F.2d 375, 377 (1st Cir.1985). Such a determination is "necessarily fact-bound," Lugar, 457 U.S. at 939, 102 S.Ct. at 2755, for "[o]nly by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961).[4]
The Supreme Court has identified several factors for courts to consider in determining whether a party is a "state actor."[5] Specifically, three areas of inquiry are relevant: 1) whether there was a sufficient nexus between the state and the private actor which compelled the private actor to act as it did; 2) whether the private actor has assumed a traditionally public function; and 3) whether there is a sufficient "symbiotic relationship" between the state and the private actor so that the state may be recognized as a joint participant in the challenged activity. See Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 841-42, 102 S.Ct. 2764, 2771-72, 73 L.Ed.2d 418 (1982); Ponce, 760 F.2d at 377; Cohen v. President and Fellows of Harvard College, 568 F.Supp. 658, 659-60 (D.Mass.1983) (Tauro, J.), aff'd 729 F.2d 59 (1st Cir.1984), cert. denied, 469 U.S. 874, 105 S.Ct. 233, 83 L.Ed.2d 161 (1984).[6]
While only one of these areas of inquiry need be satisfied in order to find *70 state action,[7] this case involves, as is shown below, both a private assumption of a traditionally public function, and a symbiotic relationship between defendant and the City of Boston.[8]
1. Public Function Analysis
In determining whether the Marketplace is a state actor because it performs a public function, "the relevant question is not simply whether a private group is serving a `public function.'" Rendell-Baker, 457 U.S. at 842, 102 S.Ct. at 2771. Rather, "the question is whether the function performed has been `traditionally the exclusive prerogative of the State.'" Id. (emphasis in original) (citations omitted).[9]
Notwithstanding the narrowness of this inquiry, defendant's conduct here is fairly construed as the performance of a "public function." As defense counsel conceded at oral argument, the lanes on which plaintiffs wish to protest are encumbered by an easement for public access.[10] Many pedestrians wholly uninterested in the Marketplace's offerings cross its lanes daily in travelling to the waterfront. Others simply stroll about the Marketplace, enjoying various shops and pushcarts, as well as the adjacent Faneuil Hall and Faneuil Hall Square. Affidavit of Robert Guerra; Affidavit of Robert O'Brien.[11] As such, the open lanes of the Marketplace are not unlike a public park which, as the Supreme *71 Court held in Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966),[12] must be "treated as a public institution subject to the command of the Fourteenth Amendment, regardless of who now has title under state law." Id. at 302, 86 S.Ct. at 490.[13]
Moreover, the pedestrian walkways here are similar to public streets,[14] the regulation of which is a "public function." Were this a case in which the City had simply authorized the Marketplace to maintain the public walkways, defendant's discharge of this duty might not be state action. See, e.g., Johnson v. Pinkerton Academy, 861 F.2d 335, 338 (1st Cir.1988) ("The maintaining of public roads would seem a classically state function, but this does not make a private contractor a state operator...."). But here, the Marketplace is acting as more than a private contractor. Its function goes beyond the mere maintenance of a public way. By prohibiting protesters from assembling in the lanes, the Marketplace is deciding who can use the public easement, and under what circumstances *72 they can use it. Rather than acting as a private contractor, therefore, the function performed by the Marketplace is more akin to that of a policeman.[15] This, it seems, is a function that has traditionally been the exclusive domain of the state.[16]
Indeed, the power to decide who can use a public easement goes beyond even that of a policeman. Unlike the policeman who merely executes decisions of policy, defendant here is actually making those policy decisions. Defendant's role is thus more like that of a legislature, which is even more clearly an exclusive state function. The essential purpose of the easement here is to ensure public access to the Marketplace. The exercise of control over the public's right to use the easement is subject to constitutional scrutiny, whether employed directly by the State or through delegation to a private party.
2. Symbiotic Relationship Analysis
Under the "symbiotic relationship" test, actions of a private party are attributable to the State only where the State "has so far insinuated itself into a position of interdependence with [the private entity] that it must be recognized as a joint participant in the challenged activity." Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 862, 6 L.Ed.2d 45 (1961). Again, notwithstanding the narrowness of this inquiry,[17] there is present here, as there was in Burton, such a substantial degree of interdependence between defendant and the City that it is fair to construe their relationship as "symbiotic."
In Burton, the Court attributed state action to a private restaurant, located in a public parking garage, that discriminated against black customers. In reaching its conclusion, the Court placed great emphasis *73 on the fact that the restaurant leased its land from the State and was located in a public facility "dedicated to public uses,"[18] and that the rent from the restaurant contributed to the support of the public facility. Burton, 365 U.S. at 723-24, 81 S.Ct. at 860-61.
This case involves many of these same indicia. First, as in Burton, defendant leases its property from the City.[19] The City continues to own the land in fee simple, having acquired it by eminent domain.
Second, the lanes between the three buildings are "dedicated to public uses." In Burton, the Court noted that the garage building in which the restaurant was situated existed for the public's benefit, pursuant to a state statute authorizing the development of "adequate parking facilities for the convenience of the public." Burton, 365 U.S. at 717, 723, 81 S.Ct. at 857, 861. Similarly, as noted above, the City of Boston here reserved an easement over the Marketplace's lanes for the public's access and passage. See supra note 10. Indeed, the City's overall purpose in leasing the premises to defendant was the rejuvination of the downtown area, all for the benefit of the community.[20]
Third, and most important, the City derives an economic benefit from defendant's policy of restrictions, at least as directly as that found in Burton.[21] In Burton, the Court concluded that the State profited from the restaurant's policy of discrimination, because the State's financial position was directly influenced by the restaurant's profits. Those profits, in turn, were enhanced by the policy of discrimination because, according to the restaurant's own argument, the restaurant would lose business if it did not discriminate. Burton, 365 U.S. at 724, 81 S.Ct. at 861. The Court found that this economic relationship was a *74 direct one, noting that "the commercially leased areas were not surplus state property, but [instead] constituted a physically and financially integral and, indeed, indispensable part of the State's plan...." Id. at 723-24, 81 S.Ct. at 861.
Like the restaurant in Burton, defendant here argues that its business would suffer if it were to permit plaintiffs to demonstrate on the premises.[22] Perhaps even more so than in Burton, this downturn in business directly affects the City's economic goals, as the Marketplace is clearly an "indispensable" part of the City's plan. The City's primary purpose in leasing the property to defendant was to revitalize the downtown area. See supra, note 20. To this end, the City depends on the ability of the Marketplace to attract business to the area. See id. Consequently, to the extent that the Marketplace fails to attract business, the City's goal of revitalizing the downtown area is frustrated. As in Burton, therefore, the City derives a direct economic benefit from defendant's policy of restricting plaintiffs' access to the premises. Accordingly, the relationship between defendant and the City is sufficiently interdependent to be considered "symbiotic."[23]
For these reasons namely, that defendant performs a "public function" and is involved in a "symbiotic relationship" with the City it is fair to attribute defendant's action to the state and, accordingly, to examine defendant's conduct with constitutional scrutiny.
B.
Under the First Amendment, a state actor may not restrict access to a forum without an appropriate governmental justification. Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 3447, 87 L.Ed.2d 567 (1985). The degree of interest a state must show to justify its restriction depends on the type of forum it is regulating. Id. There are three types of fora: 1) traditional, or "quintessentially" public;[24] 2) limited public;[25] and 3) nonpublic.[26] The more a forum resembles a traditional public forum, the greater an interest the state must show to justify restricting access. Student Government Assoc. v. Board of Trustees of University of Massachusetts, 676 F.Supp. 384, 386 (D.Mass.1987) (Tauro, J.), aff'd 868 F.2d 473 (1st Cir.1989).
If the Marketplace were either a traditional or limited public forum, defendant's restriction would have to be valid at least in terms of "time, place, and manner." See Perry, 460 U.S. at 45, 103 S.Ct. at 955 (in traditional public forum, content-based exclusions must be necessary to *75 serve compelling state interest, but content-neutral exclusions are permissible if valid regulations of time, place and manner.)[27] To be a valid regulation of time, place, and manner, the restriction must be content-neutral, narrowly tailored to serve a significant government interest, and offer ample alternative channels of communication. Id. at 37, 103 S.Ct. at 948.
Defendant's restriction does not satisfy these requirements. First, it is not "narrowly tailored." The only content-neutral interest proffered by defendant in support of its restriction is that "protests by groups of the size here involved ... during crowded periods obstruct passage by patrons of the Marketplace." Leaving aside the question of whether this is a "significant" governmental interest, defendant's policy of arresting demonstrators is not narrowly tailored to this end. There is no suggestion that defendant attempted to reduce the bulk of the demonstration by, for example, requesting that the group break up into smaller segments and spread out through other parts of the area in order to remove obstructions to the patrons' access. Nor did defendant suggest that plaintiffs could resume their demonstration during a less-crowded period. Instead, defendant simply gave plaintiffs the choice of either leaving, or being arrested.
Second, defendant's restriction is not entirely content-neutral. While defendant does offer as a justification for the restriction the removal of obstructions to passage, it also stresses the harmful effects of the particular message of plaintiffs' protest. Specifically, defendant argues that "[p]icketing targeted at specific Marketplace lessees injures their business." Presumably, then, if plaintiffs were protesting with regard to some other issue unrelated to the businesses in the Marketplace, defendant would see less reason to remove them from the premises. Defendant's justification for the restriction is thus, at least in part, tied directly to the content of the protest and, therefore, is not content-neutral.[28]
Although restrictions in a nonpublic forum need only be reasonable to be valid, see United States v. Kokinda, ___ U.S. ___, ___, 110 S.Ct. 3115, 3120, 111 L.Ed.2d 571 (1990), the Marketplace is more than a nonpublic forum. As was stated above, a nonpublic forum is one which "is not by tradition or designation a forum for public communication...." Perry, 460 U.S. at 46, 103 S.Ct. at 955. Here, however, the Marketplace has both traditional and designated characteristics of a public forum.
For example, the entire Faneuil Hall area has long been a center for public debate and expression. See supra, note 11. And, while the lanes at issue were taken by eminent domain and leased to defendant, that was done under the express condition that they maintain their historic public character.[29]
Moreover, as noted above, the City reserved a public easement over the lanes. The lanes are used for access, for strolling about the Marketplace, and as a "historic *76 pedestrian connection" to the purely and traditionally public adjoining areas. These lanes thus resemble public sidewalks. Although sidewalks are not public fora per se, see Kokinda, ___ U.S. at ___, 110 S.Ct. at 3120-3121, ("[T]he dissent is simply incorrect in asserting that every `public sidewalk' is a public forum"), the facts here establish that these lanes must be considered, at the least, as limited public fora.[30]See id. ("[T]he location and purpose of a publicly-owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum."). Because the Marketplace is at least a limited public forum, therefore, it is unnecessary to determine whether defendant's restrictions would satisfy the "reasonableness" standard applied to non-public fora.[31]
IV.
Finally, the court must decide the appropriateness of injunctive relief here. A party is entitled to a preliminary injunction if it can establish: (1) a likelihood that it will succeed on the merits; (2) that it will suffer irreparable harm in the absence of injunctive relief; (3) that the balance of harms weighs in its favor; and (4) that issuance of the decree would not adversely affect the public interest. See Vargas-Figueroa v. Saldana, 826 F.2d 160, 162 (1st Cir.1987).
For the reasons detailed in § III, supra, plaintiffs have established a likelihood of success on the merits. Plaintiffs have also demonstrated that they would suffer irreparable harm from the threatened arrest. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."); Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965). The balance of harms also weighs in plaintiffs' favor. Plaintiffs' harm is immediate and irreparable, whereas defendant will suffer, if at all, only a decrease in business. Finally, the public interest is advanced by preserving First Amendment protections over an area long associated with expressive activities.
V.
The Faneuil Hall area is no mere commercial shopping mall with a Colonial theme. Rather, it is a marketplace of ideas, expression, and community, providing a unique monument and tribute to one of this nation's most cherished centers for public debate. While the private interests of the participating entrepreneurs are important, and must be respected and protected, they can never be permitted to overshadow the fundamental purpose of this special landmark.
Accordingly, and for all of the foregoing reasons, Plaintiffs' Motion for Preliminary Injunction is hereby ALLOWED.
NOTES
[1] Faneuil Hall Marketplace, one of the nation's foremost tourist attractions, is a commercial development of restaurants, food stands, cocktail bars, boutique shops, and pushcarts offering sundry arts and crafts. It has wide, open cobblestoned lanes separating three buildings that house these commercial enterprises. There is also a large public outdoor seating area. The Faneuil Hall Marketplace Corporation holds a ninety-nine year lease for the Marketplace, which consists of the Quincy Market, North Market, and South Market buildings, and the cobblestoned lanes between them and to the west of them. See Affidavit of Robert O'Brien, ¶ 2.
Plaintiffs' protest took place on the lanes separating the three buildings. These lanes were formerly public streets known as North and South Market Streets which, in coordination with the Faneuil Hall Marketplace development, were decommissioned and closed to vehicular traffic.
[2] The characterization of this property as public or private is, of course, a central issue in determining whether plaintiffs' rights were violated. See infra.
[3] Specifically, plaintiffs contend that the First Amendment applies to the Marketplace because: (1) the underlying property is owned in fee simple by the City of Boston; (2) Faneuil Hall traditionally has been a forum for public discourse in Boston; (3) the City of Boston extensively regulates the Marketplace; and (4) the lease of the Marketplace to defendant reserved an easement for public access over the lease-hold. In addition, plaintiffs contend that defendant's agent acted "under color of state law" by arresting them.
[4] It should be noted at the outset of any such inquiry that, while the principle of "state action" may be "easily stated, the question of whether particular ... conduct is private, on the one hand, or amounts to `state action,' on the other, frequently admits of no easy answer." Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1972).
[5] These factors "are not tests in the traditional sense. More precisely, they are different methods of analyzing and appraising the facts and circumstances of a particular case." Gerena v. Puerto Rico Legal Services, Inc., 697 F.2d 447, 449, n. 2 (1st Cir.1983).
[6] The Supreme Court in Rendell-Baker, supra, considered a fourth factor, namely, the extent to which the defendant received and depended on federal funds. Rendell-Baker and its progeny make clear, however, that "receipt of government funds does not render the government responsible for a private entity's decisions concerning the use of those funds" and, therefore, it is not an independent factor to be considered. Stone v. Dartmouth College, 682 F.Supp. 106, 108, n. 1 (D.N.H.1988) (quoting Gerena, 697 F.2d at 450).
[7] See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157-66, 98 S.Ct. 1729, 1733-39, 56 L.Ed.2d 185 (1978) (implicitly recognizing that state action could be found under any alternative rationale). See also, Schneider, The 1982 State Action Trilogy: Doctrinal Contraction, Confusion, and a Proposal for Change, 60 Notre Dame L.Rev. 1150, 1177 (1985) (noting that, although it is "unclear from the Blum decision whether the Court now demands that all three `principles' ... be satisfied in a single case ... [,] [i]t would be a significant departure from precedent for the Court to now require that all three requirements be met in order to establish state action.") Cf. Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S.Ct. 2744, 2755, 73 L.Ed.2d 482 (1982) (unclear "[w]hether these different tests are actually different in operation or simply different ways of characterizing the necessarily fact-bound inquiry that confronts the Court in such a situation....").
[8] This case does not satisfy the "nexus test," however. Under the nexus analysis, a government "`can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.'" San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 546, 107 S.Ct. 2971, 2986, 97 L.Ed.2d 427 (1987), quoting Blum v. Yaretsky, 457 U.S. at 1004, 102 S.Ct. at 2786. Indeed, "the party seeking to establish that action of a private party violated the Constitution must be able to point to the specific act or actions of the government which in fact motivated the private action." Ponce, 760 F.2d at 378 (citation omitted); see also Cohen v. President and Fellows of Harvard College, 568 F.Supp. 658, 660 (D.Mass.1983) (Tauro, J.) (nexus analysis "focus[es] on whether the challenged action of the private entity was compelled or influenced by the government."). In the present case, plaintiffs have not offered evidence of such a high degree of involvement by the City of Boston in the decision by defendant to ban plaintiffs' protest.
[9] This test has proven difficult to satisfy. See, e.g., Blum, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (provision of nursing homes not an exclusively state function); Rendell-Baker, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (education of maladjusted high school students not an exclusively state function); Vincent v. Trend Western Technical Corp., 828 F.2d 563 (9th Cir. 1987) (maintenance of military equipment not an exclusively state function).
[10] See also Exhibit II, Attachment to Indenture of Lease dated as of 1974, between the City of Boston and the Boston Redevelopment Authority ("The City hereby reserves unto itself ... a perpetual, non-exclusive easement, for the benefit of and use by the general public, for reasonable, peaceful and orderly pedestrian access and passage ... over and upon the surface of such portions of former North Market Street, former South Market Street, [etc.]").
[11] Fanueil Hall, also known as "The Cradle of Liberty," is one of Boston's most significant historical buildings. It has served as the city's central political forum for over two and one-half centuries, and has long been a site of great oratory and political agitation. See generally, A.E. Brown, Faneuil Hall and Market (Lee and Shepard 1900); see also, A.J. Langguth, Patriots: The Men Who Started The American Revolution (1988) (town meetings held at Faneuil Hall to discuss Colonial response to British tyranny); C. Bahne, The Complete Guide to Boston's Freedom Trail (1990) at 27 ("Nearly every American war from 1812 to Vietnam has also been debated within these walls."). The parties do not dispute that Faneuil Hall and Faneuil Hall Square are still purely public areas.
[12] In Evans, a former Georgia Senator devised to the City of Macon a "park and pleasure ground" for whites only. The city maintained the all-white park for years, but eventually decided to desegregate the park. Consequently, several individual managers of the park brought suit against the city to preserve the Senator's intentions. As a result of this lawsuit, the city resigned as trustee of the park, and three private individuals were appointed as trustees for the purpose of maintaining a segregated park. Several black citizens intervened, arguing that the racial limitation on the park was unconstitutional.
The Court concluded that, even if the park were maintained by private trustees, it was nevertheless sufficiently "public" to justify the application of constitutional standards to it. Id. It based its decision on the fact that the park had long been maintained by the city prior to being taken over by private trustees. The Court held: "[W]here the tradition of municipal control had become so firmly established, we cannot take judicial notice that the mere substitution of trustees instantly transferred this park from the public to the private sector." Id. at 301, 86 S.Ct. at 489. And, in a discussion of parks generally, the Court noted:
The service rendered [to the community] even by a private park of this character is municipal in nature.... Golf clubs, social centers, luncheon clubs, schools such as Tuskegee was at least in origin, and other like organizations in the private sector are often racially oriented. A park, on the other hand, is more like a fire department or police department that traditionally serves the community. Mass recreation through the use of parks is plainly in the public domain, and state courts that aid private parties to perform that public function on a segregated basis implicate the State in conduct proscribed by the Fourteenth Amendment. Id. at 301-302, 86 S.Ct. at 490.
[13] The similarity of the Marketplace to a municipal park is underscored by the absence of any discernable boundaries between the Marketplace and the immediately-adjacent, public areas, such as Fanueil Hall Square. The absence of such boundaries has proven to be critical in distinguishing between purely private shopping centers and shopping centers to which the Constitution applies. See Hudgens v. NLRB, 424 U.S. 507, 513, 96 S.Ct. 1029, 1033, 47 L.Ed.2d 196 (1976) ("`The town and the surrounding neighborhood ... can not be distinguished from the Gulf property by anyone not familiar with the property lines....'"), quoting Marsh v. Alabama, 326 U.S. 501, 502-503, 66 S.Ct. 276, 277, 90 L.Ed. 265 (1946); Hudgens, 424 U.S. at 518, n. 5, 96 S.Ct. at 1035, n. 5 ("`The principle difference[] between the two centers [is] that ... Lloyd Center is much more intertwined with public streets than Logan Valley.'"), quoting Lloyd Corp. v. Tanner, 407 U.S. 551, 575, 92 S.Ct. 2219, 2232, 33 L.Ed.2d 131 (1972).
Defendant argues, unconvincingly, that the boundaries are discernable because "[t]he outdoor areas are defined by physical barriers to vehicles," and that "demonstrators apparently recognize the private nature of the Marketplace, since relatively few incidents have occurred." The first of these arguments is unavailing because barriers to vehicles do not render an area "private" where it is otherwise fully open to pedestrians. The second argument, as well, is unavailing because it merely speculates, based on mere coincidence, as to whether the public is actually aware of the boundaries.
[14] A similar analogy was drawn in Fernandes v. Limmer, 663 F.2d 619 (5th Cir.1981), in which the Fifth Circuit concluded that airport terminals, leased by private airlines from the State, were like public streets. The court reasoned that:
The parallel between public streets and the crescent-shaped central concourses of the D/FW terminal buildings, where air travelers as well as the general public may shop, dine, imbibe, and sightsee, is clear and powerful.... The analogy between these terminal concourses and public streets is further strengthened by the lack of restrictions on public access to the commercial establishments located along the crescent-shaped passageways, whether or not persons must pass through security checkpoints first.
Id. at 627.
[15] A similar distinction between a private contractor and a state actor was noted in McQueen v. Druker, 438 F.2d 781 (1st Cir.1971). In McQueen, the First Circuit found state action where the City had contracted with private parties to carry out its duty to provide for urban renewal displacees. The court concluded that the private parties were more than contractors because the function they contracted to perform was traditionally governmental. Id. at 784.
This distinction was further fleshed out in Ponce, wherein the court hypothesized:
Suppose, for example, that a municipality entered into a contractual relationship with a private developer to manage a public housing project with the result that only white individuals were accepted as tenants. Were the state or town to do nothing when confronted with the discriminatory screening policy, we might well conclude that the state's total abstention from the performance of its legislative function would be equivalent to state approval of private action. See McQueen v. Druker, 438 F.2d 781 (1st Cir.1971).
Ponce, 760 F.2d at 379.
Similarly, here, the City's abstention from the regulation of the public easement is equivalent to approval of defendant's regulation of the easement and, therefore, "state action."
[16] The Supreme Court has been quick to point out that it "has never considered [whether] the private exercise of traditional police functions [is a `public function.']" Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 163-64, n. 14, 98 S.Ct. 1729, 1737-38, n. 14, 56 L.Ed.2d 185 (1978). Moreover, those lower courts that have faced the question have not had occasion to address it squarely. See, e.g., Collins v. Womancare, 878 F.2d 1145, 1151-53 (9th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 865, 107 L.Ed.2d 949 (finding no state action on other grounds, court concluded that it was "unnecessary to reach the `public function' argument...."); Carey v. Continental Airlines, Inc., 823 F.2d 1402, 1404 (10th Cir.1987) ("citizen's arrest" in airport was not "state action."); Lee v. Estes Park, 820 F.2d 1112, 1115 (10th Cir.1987) (no state action where private party merely reports criminal activity and action is ultimately taken by state officials). But see, McQueen, 438 F.2d at 784 (the provision of public housing, "while perhaps not so traditionally governmental as parks, fire or police services, ... is today one of the major concerns of most cities....") (emphasis added).
Nevertheless, it seems clear that defendant's action here the regulation of a public wayis a "public function." One preeminent constitutional law scholar illustrates the point in this manner:
For example, deciding to cross the street when a police officer says you may is not ... a `public function;' but authoritatively deciding who is free to cross and who must stop is a `public function' whether or not the person entrusted under state law to perform that function wears a police uniform and is paid a salary from state revenues or wears civilian garb and serves as a volunteer crossing guard.
L. Tribe, American Constitutional Law § 18-5 (2d ed. 1988)
[17] See Cohen v. President and Fellows of Harvard College, 568 F.Supp. at 658 ("[T]he symbiotic relationship category is very narrow.").
[18] See Edwards v. Lutheran Senior Services of Dover, 603 F.Supp. 315 (D.Del.), aff'd without opinion, 779 F.2d 42 (3d Cir.1985) ("Rendell-Baker and Blum reaffirm that ... a court must find stronger indicia of state-private interdependence, such as location on public property...."). Id. at 321 (emphasis added).
[19] Several lower courts have also considered the fact that the property is leased from the State to be a significant indicium of state action. See, e.g., Fernandes v. Limmer, 663 F.2d 619, 626-27 (5th Cir.1981); International Society for Krishna Consciousness, Inc. v. Lee, No. 75 Civ. 5388 (S.D. N.Y.1982) (LEXIS, Genfed library, Dist. file); International Society for Krishna Consciousness v. Schrader, 461 F.Supp. 714, 717 (N.D.Texas 1978). Cf. International Society for Krishna Consciousness v. Lee 721 F.Supp. 572 (S.D.N.Y. 1989) (private airlines settled case after magistrate concluded that they could be held liable for constitutional violations in privately-leased terminal areas).
[20] For example, in the lease itself, the City expressly "recognize[d] that, in view of:
(a) The importance of the redevelopment of the Property to the general welfare of the community;
(b) The substantial financing and other public aids that have been made available by law and by the United States and the City for the purpose of making such development possible; ...
the qualification and identity of the Lessee and any Owner are of particular concern to the community and the Lessor."
Indenture of Lease between Boston Redevelopment Authority and Faneuil Hall Marketplace, Inc. ("The Lease"), dated February 21, 1975, § 14.02. In addition, in its Urban Renewal Plan, the City stated as its "Basic Goals:"
The basic goal of urban renewal action in the Downtown Waterfront Faneuil Hall Area is to stimulate and to facilitate development efforts in the area, by eliminating those severe conditions of blight, deterioration, obsolescence, traffic congestion and incompatible land uses which hinder private investment in new development without the aid of governmental action, in order to (1) revitalize a key portion of downtown Boston; (2) upgrade the pattern of land uses close by the North End residential community; (3) establish a functional connection between the area and its surrounding districts....
Downtown WaterfrontFaneuil Hall Urban Renewal Plan ("The Plan"), § 201, incorporated by reference in The Lease. The Plan also stated as policy objectives, inter alia, the elimination of blighting conditions, prevention of erosion of property values, the strengthening of Boston's tax base, promotion of historic preservation, the stimulation of tourism, and the provision of "public ways, parks and plazas which encourage the pedestrian to enjoy the harbor and its activities." The Plan, § 202. See also Id. at § 902 (relating to plan's conformity with community objectives).
[21] See Ponce, 760 F.2d at 382 ("[T]he key factor in determining the existence of a symbiotic relationship is whether the state profited from the discriminatory activity."), citing Rendell-Baker, supra.
[22] Defendant specifically argues:
Plaintiff's demonstration within the Marketplace injures its operations. Protests by groups of the size here involved ... during crowded periods obstruct passage by patrons of the Marketplace. Picketing targeted at specific Marketplace lessees [i.e., veal-serving restaurants] injures their business....
Defendant's Memorandum in Support of Motion To Dismiss at 15.
[23] This conclusion is bolstered by evidence that not only the City benefits from the relationship by realizing its policy objectives, see McQueen, 438 F.2d at 784 ("[T]he landlords are, in return for an assured consideration, ... helping the state realize its specific priority objective...."), but defendant receives economic benefits as well. Cf. Burton, 365 U.S. at 724, 81 S.Ct. at 861 ("It cannot be doubted that the peculiar relationship of the restaurant to the parking facility in which it is located confers on each an incidental variety of mutual benefits.").
Most significantly, defendant receives a very valuable leasehold at a very favorable price $10.00/year. Moreover, the proximity of the Marketplace to many of Boston's historicand purely public areas enables defendant to profit from the passage of tourists through the Marketplace's terrain. While each of these benefits alone may not prove the existence of a symbiotic relationship, the totality of these circumstances do support such a finding.
[24] A traditional public forum is a forum which "by long tradition or by governmental fiat [has] been devoted to assembly and debate...." Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983).
[25] A limited public forum is a forum that is "generally open to the public even if [the state] was not required to create the forum in the first place." Id.
[26] A nonpublic forum is a forum which "is not by tradition or designation a forum for public communication...." Id.
[27] See also, id. at 46, 103 S.Ct. at 955 (In limited public forum, "[a]lthough a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum.")
[28] Because the restriction is not content-neutral, it must, in order to be valid, be "necessary to serve a compelling state interest and ... narrowly drawn to achieve that end." Perry, 460 U.S. at 37, 103 S.Ct. at 948. The shielding of veal-serving restaurants from the commercial effects of protestors' speech, however, cannot be considered a "compelling state interest."
[29] For example, the City's Urban Renewal Plan, which is incorporated as one of the main purposes of the Lease, stated with respect to the Faneuil Hall area:
This area is one of the most valuable historic assets to the City of Boston, to the State of Massachusetts, and to the Nation.... It is intended that the historic uniqueness of this area be retained through a thoughtful blend of new construction, rehabilitation and conservation.... It is intended that the space formed by Faneuil Hall, the new Boston City Hall, the rehabilitated buildings along Faneuil Hall Square, and the proposed new building ... be so designed that the intimate pedestrian scale that once existed in this area again be recaptured.
The Plan, § 204(5).
[30] Indeed, the lanes are similar to the public street described in Heffron v. Int'l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), which was "continually open, often uncongested, and constitute[d] not only a necessary conduit in the daily affairs of a locality's citizens, but also a place where people [could] enjoy the open air or the company of friends and neighbors in a relaxed environment." Id. at 651, 101 S.Ct. at 2566.
[31] And, because the analysis is the same for both traditionally public and limited public fora, see supra, it is unnecessary to categorize the Marketplace as one or the other. Cf. Kokinda (Kennedy, J., concurring) (unnecessary to categorize sidewalk as public or nonpublic forum where regulation satisfies tests under either category). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612143/ | 745 F.Supp. 1524 (1990)
The AETNA CASUALTY & SURETY COMPANY, Plaintiff,
v.
TRANS WORLD ASSURANCE COMPANY, et al., Defendants.
No. C-90-1012 RFPENE.
United States District Court, N.D. California.
July 12, 1990.
*1525 Lawrence A. Baker, Haims, Johnson, MacGowan & McInerney, Oakland, Cal., for plaintiff.
Mark D. Hudak, Lori A. Lutzker, Carr, McClellan, Ingersoll, Thompson & Horn, Burlingame, Cal., for defendants.
ORDER
PECKHAM, District Judge.
I. INTRODUCTION.
The parties come before the court on plaintiff Aetna Casualty & Surety Company's ("Aetna") motion for summary judgment or, in the alternative, partial summary judgment. This is an action for declaratory relief in which Aetna seeks a ruling from the court that it is not obligated to defend or indemnify defendant Trans World Assurance Company ("Trans World") for the costs of an action brought against Trans World by third parties.[1] Aetna believes that it is entitled to summary judgment on the grounds that the insurance policy it issued to Trans World ("the policy" or "the Aetna policy") does not cover the type of damages Trans World will incur as a result of the underlying action.
Aetna contends that it issued only a premises liability insurance policy to Trans World, including coverage only for tort claims arising out of the ownership or operation of Trans World's facility at San Mateo, California. Aetna therefore moves for summary judgment on several grounds. First, it argues that any damages sustained by Trans World as a result of the underlying action are not covered under the policy, because such damages would not meet the definitions of property damage, personal injury, bodily injury, or advertising injury covered by the policy. Second, Aetna argues that the underlying action does not constitute an "occurrence" as defined by the policy. Third, Aetna contends that there is no coverage for damages from the underlying action because such damages arise out of an alleged breach of contract rather than an accident. Finally, Aetna asserts that there is no coverage because damages from the underlying action do not arise out of the ownership or operation of Trans World's San Mateo premises.
Trans World opposes Aetna's motion for summary judgment. As an initial matter, it contends that summary judgment is premature in this case because the facts of the underlying action are still developing, meaning that the nature of the claims for which it seeks coverage may change. Second, Trans World argues that the complaint *1526 in the underlying action alleges advertising injuries covered by the Aetna policy. Third, it argues that the underlying action contrary to Aetna's argument constitutes an occurrence under the policy. Fourth, Trans World argues that the policy does provide coverage for damages arising out of breach of contract. Finally, Trans World opposes Aetna's interpretation of the policy as limited to premises liability.
II. BACKGROUND.
The underlying action for which Trans World is seeking defense and indemnification from Aetna involves a fraudulent tax shelter scheme allegedly perpetrated by Donald Fletcher, a former Trans World insurance agent. Fletcher, while under contract as an agent for Trans World,[2] conducted a series of tax seminars around the country. He convinced participants that they could reduce their tax liability to zero by investing half the value of their previous year's tax liability in a home business and the other half in life insurance.
Fletcher allegedly profited from the scheme solely by garnering commissions from the insurance policies purchased by the participants. The life insurance policies involved in the scheme were issued by Trans World and by one other company. Trans World states that it neither knew of nor authorized Fletcher's seminars or tax scheme. Declaration of Charles Royals at ¶ 10.
The participants in the seminars who followed Fletcher's advice were eventually assessed back taxes, penalties, and interest by the Internal Revenue Service. Some of the seminar participants have filed suit in the Southern District of Ohio, alleging, inter alia, violations of RICO, fraud, and misrepresentation. Trans World is a named defendant in this action. The plaintiffs in the underlying action are currently seeking class certification; they state that the number of plaintiffs exceeds 750. Adler complaint at ¶ 29. Only three plaintiffs are currently named in the complaint, however.
Aetna issued a Special Multi-Peril Insurance Policy No. 05 SM 800900 to Trans World. The policy was in effect from March 23, 1983 to March 23, 1986. There is no dispute that the policy was in effect during a portion of the time in which Fletcher was conducting the tax seminars. The parties dispute only whether the scope of coverage for this policy includes the type of damage Trans World may sustain as a result of Fletcher's actions and the underlying claim. The terms of the policy will be discussed in greater detail below in the context of discussing the parties' particular arguments.
III. DISCUSSION.
A. Standard for Granting Summary Judgment.
Federal Rule of Civil Procedure 56(c) provides for the granting of summary judgment where there is no genuine issue as to any material fact and where the moving party is entitled to judgment as a matter of law. The burden of establishing that there is no genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
A party opposing the summary judgment motion may not rest upon the allegations or denials in his or her pleadings. Rather, the non-moving party's responses must set forth specific facts showing that there is a genuine issue for trial. A mere "scintilla" of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).
*1527 B. Prematurity of Summary Judgment Motion.
As an initial matter, we must consider Trans World's argument that the facts in this declaratory relief action are not yet sufficiently developed to make summary judgment under Rule 56 appropriate. Trans World contends that, since the facts of the underlying Adler action are still unfolding, the extent and nature of damages for which it will be seeking indemnification under the Aetna policy are not yet fixed. In particular, Trans World argues that the number of plaintiffs in the class may increase and that new plaintiffs may claim emotional distress, bodily injury, and property loss injuries not claimed by current plaintiffs. Thus, Trans World argues that consideration of summary judgment in this case is premature.
In support of its argument, Trans World cites to McWhirter Distributing Company v. Texaco, Inc., which, in interpreting Rule 56, held that summary judgment should not be granted "`until the facts and circumstances have been sufficiently developed to enable the Court to be reasonably certain that it is making a correct determination of the question of law.'" 668 F.2d 511, 519 (Temporary Emergency Court of Appeals, 1980), quoting N.L.R.B. v. Smith Industries, 403 F.2d 889, 893 (5th Cir.1968). Trans World claims that it is entitled under Fed.R.Civ.P. 56(f)[3] to denial of Aetna's motion because Trans World is not adequately able to present its opposition given the lack of fully developed facts.
Aetna contends that the granting of summary judgment in this action would not be premature, advancing several arguments. Aetna argues that Trans World is incorrect in its speculation that additional plaintiffs might come forward in the Adler case with claims for emotional distress or property damage covered by the insurance policy. Aetna argues that this is not possible, for two reasons. First, Aetna argues that such claims would be time-barred by Ohio's two-year statutes of limitations for emotional distress and property damage claims. Ohio Revised Code § 2305.10. Second, Aetna argues that emotional distress or property damage claims advanced by new plaintiffs would be sufficiently different from the claims advanced by the current Adler plaintiffs that potential new plaintiffs would not be eligible as class members. Thus, the court could not be faced with a situation where the claims in the underlying Adler action differ significantly from those described in the Adler complaint currently presented to the court as evidence.
Aetna further contends that Trans World is merely speculating that other plaintiffs may appear in the Adler case with claims covered by the policy, and that mere speculation is no basis for denying Aetna's motion. Aetna cites to Ninth Circuit authority holding that the party opposing summary judgment must make a strong showing of why it is currently unable to adequately present its opposition. Mere speculation that further evidence may develop is inadequate to make such a showing. Neely v. St. Paul Fire & Marine Ins. Co., 584 F.2d 341, 344 (9th Cir.1978).
Having reviewed the complaint in the underlying Adler action and the insurance policy under which Trans World seeks indemnification and defense from Aetna, we believe this controversy is ripe for consideration of summary judgment. We agree with Aetna that Trans World's objection regarding the possible appearance of additional plaintiffs with claims different than the current Adler plaintiffs amounts to speculation. Neely requires us to reject such speculation as grounds for refusing to consider summary judgment. The Adler complaint gives a full description of the claims which the Aetna policy is alleged to cover. Copies of the policy have been provided to the court. Thus, the court has the necessary information before it to allow resolution of this controversy by summary judgment. We wish to make absolutely clear for the record, however, that we rule *1528 only on the facts as presented to us at this time. Were the Adler plaintiffs to successfully amend their complaint to state additional causes of action, the new causes of action would not be governed by this order.
C. Whether the Underlying Complaint Alleges Damages Covered by the Policy.
Aetna and Trans World dispute whether the underlying complaint in the Adler action contains claims for relief of such a nature that damages from those claims would be covered by the Aetna policy. Aetna argues that the Adler complaint will not inflict any damages upon Trans World that fall into any of the following categories covered by the policy: 1) property damage; 2) bodily injury; 3) advertising injury; or 4) personal injury.
Aetna also contends that Trans World has effectively admitted that the Adler complaint fails to allege any damages falling into categories one, two, or four. The court agrees that Trans World opposes only Aetna's argument that no advertising injuries as defined by the policy have been alleged by the Adler plaintiffs. Trans World's arguments regarding bodily injury, property damage, and personal injury go only to the question of whether additional plaintiffs might come forward at some future date alleging such injuries. Counsel for Trans World so stated at the oral argument of this motion. Therefore, it is undisputed that no damages falling into the categories of property damage, bodily injury, or personal injury as defined by the policy are alleged in the Adler complaint.
The court will now address the parties' dispute regarding whether advertising injuries as defined by the policy are alleged by the Adler complaint. The Aetna policy provides coverage for:
... all sums which the insured shall become legally obligated to pay as damages because of ... advertising injury to which this insurance applies, sustained by any person or organization and arising out of the conduct of the named insured's business, within the policy territory, and [Aetna] shall have the right and duty to defend any suit against the insured seeking damages on account of such injury.... Policy Broad Form Comprehensive Coverage General Liability Endorsement, p. 2.
The policy further defines advertising injury as follows:
"Advertising injury" means injury arising out of an offense committed during the policy period occurring in the course of the named insured's advertising activities, if such injury arises out of libel, slander, defamation, violation of right of privacy, piracy, unfair competition, or infringement of copyright, title, or slogan.
Trans World's claim that it is entitled to defense and indemnification in the Adler case focuses on the "unfair competition" category of advertising injury. Trans World asserts that the term "unfair competition" must be read as broadly as possible in this instance, relying on the well-settled principle of California law that ambiguities in insurance contracts must be construed so as to protect the insured. See, e.g., Gray v. Zurich Ins. Co., 65 Cal.2d 263, 269, 54 Cal.Rptr. 104, 419 P.2d 168 (1966). Contending that "unfair competition" as used in the policy is an ambiguous term, Trans World maintains that it should be read to include any unfair business practices connected to "advertising activities." Because, Trans World argues, the use of advertising "is inherent in the marketing activities described in the underlying complaints," the unfair business practices complained of by the Adler plaintiffs are comprehended within the policy definition of advertising injuries.
As support for this argument, Trans World proffers § 17200 of the California Business and Professions Code. The statutory definition of unfair competition in that provision encompasses unfair business practices generally:
As used in this chapter, unfair competition shall mean and include unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising....
*1529 The court should adopt this definition of unfair competition as that intended by the insurance policy, Trans World contends. Trans World believes that Fletcher's conduct in defrauding the Adler plaintiffs falls within this definition, meaning that the policy affords coverage for any damages arising out of the Adler complaint.
Aetna responds that the definition of unfair competition contained in Cal.Bus. & Prof.Code § 17200 cannot be read into the policy, for two reasons. First, Aetna contends it is inapplicable because the Adler action, venued in Ohio, does not and could not include a claim for violation of § 17200. Second, Aetna cites persuasive authority from this district suggesting that California courts do not read the statutory definition of unfair competition into insurance policies. Interpreting an identical "advertising injury" clause in an insurance policy, Judge Legge wrote:
[Defendant] argues that because California courts have read the state's unfair competition statute broadly enough to redress any fraudulent business practice ... that language should be read as broadly in insurance policies. This court disagrees. Courts have retained the more restrictive common law meaning of unfair competition in the interpretation of insurance policies [requiring that the damage complained of be between competitors].... Westfield Insurance Co. v. TWT, Inc., 723 F.Supp. 492, 496 (N.D. Cal.1989).
While we would find Judge Legge's reasoning persuasive were we to reach Aetna's second argument, we prefer to rely on Aetna's first argument concerning the relevance of § 17200. We find the California statutory definition of unfair competition to be irrelevant, since the Adler plaintiffs have not alleged a claim for unfair competition in Ohio, or in California. The policy terms provide coverage for damages sustained as the result of successful suits for specified types of "advertising injury." "Advertising injury" includes such torts as libel, slander, and unfair competition. Given that the Adler plaintiffs do not seek damages for any of these torts, including the tort of unfair competition, any damages recovered by the Adler plaintiffs will not constitute unfair competition damages under the policy, no matter what definition the court gives to this term. Therefore, we find that the policy affords no coverage for the types of damage complained of by the Adler plaintiffs. Aetna is obligated neither to indemnify nor to defend Trans World in the Adler litigation.
Because we find that the claims made by the Adler plaintiffs do not fall into any of the categories of damages covered by the policy, we need not reach the other arguments presented by the parties regarding whether Fletcher's acts constituted an occurrence under the policy, whether breach of contract damages are covered under the insurance policy, or whether policy coverage is limited to premises liability.
IV. CONCLUSION.
For the reasons set forth above, Aetna's motion for summary judgment is HEREBY GRANTED.
IT IS SO ORDERED.
NOTES
[1] The underlying action against Trans World, Adler, et al., v. Mutual Life Insurance Co., et al., No. C-1-89-078 (S.D.Ohio), includes claims for violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1962 et seq., ("RICO"), breach of contract, fraud, negligent misrepresentation, and estoppel. Multiple plaintiffs have sued Trans World, alleging that Trans World employee Donald Fletcher engaged in a fraudulent tax shelter scheme whereby he induced plaintiffs to purchase Trans World insurance policies as tax shelters. Plaintiffs claim they were audited by the Internal Revenue Service and assessed penalties as a result of participation in the scheme. Plaintiffs in the underlying action, currently pending in federal district court in the Southern District of Ohio, are seeking class certification.
[2] Trans World provides a copy of Fletcher's contract to illustrate that he was an independent contractor rather than a regular employee. Exhibit A to the Declaration of Charles Royals. The "General Agent's Contract" between Fletcher and Trans World authorized him to solicit applications for and sell Trans World life insurance policies, and perform other tasks required to carry out that function.
[3] Fed.R.Civ.P. 56(f) provides in relevant part: "Should it appear from the affidavits of a party opposing the motion [for summary judgment] that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained...." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611772/ | 11 So.3d 821 (2008)
ALABAMA DEPARTMENT OF REVENUE
v.
The NATIONAL PEANUT FESTIVAL ASSOCIATION, INC.
2070123.
Court of Civil Appeals of Alabama.
November 7, 2008.
Rehearing Denied December 19, 2008.
*823 Troy King, atty. gen., and Ron Bowden, asst. atty. gen. and counsel, and David E. Avery III, asst. atty. gen. and asst. counsel, for appellant Alabama Department of Revenue.
R. Eugene Clenney, Jr., of Johnston, Hinesley, Flowers, Clenney & Turner, *824 P.C., Dothan; and Alan C. Livingston of Lee & McInish, P.C., Dothan, for appellee.
Bruce P. Ely and Matthew S. Houser of Bradley Arant Rose & White, LLP, Birmingham, for amicus curiae Association of Alabama Fairs, in support of the appellee.
MOORE, Judge.
The Alabama Department of Revenue ("the Department") appeals from a judgment of the Houston Circuit Court holding that The National Peanut Festival Association, Inc. ("the taxpayer"), was entitled to a refund of taxes and interest paid to satisfy a final assessment entered on July 31, 2006.
Background
The taxpayer is a nonprofit corporation whose objective, according to its bylaws, is to promote interest in peanuts and peanut farming. Pursuant to that objective, and to also further interests in agriculture in general, the taxpayer holds an annual event known as the National Peanut Festival ("the Festival") in Dothan. At that event, the taxpayer displays exhibits regarding peanuts, peanut farming, and other agricultural pursuits, as well as livestock. Those exhibits are housed in large buildings, the cost of which were financed in part by the United States Department of Agriculture based on its determination that the Festival is an agricultural fair. The taxpayer is a member of the Alabama State Fair Association, which enables the taxpayer to receive funds annually from the Alabama Department of Agriculture. In 2004 and 2005, the Alabama Department of Agriculture cosponsored the Festival and paid a portion of the premiums, prizes, and awards listed in the agricultural program conducted at the Festival for those years.
As an integral part of the Festival, two to three weeks before the opening of the Festival, the taxpayer holds a "Little Miss" pageant and a "Big Miss" pageant in the Dothan Civic Center. The purpose of those pageants is to select ambassadors to promote the Festival. The winners of those pageants attend agricultural and other events throughout the year. In addition to the beauty pageants and the agricultural exhibits, the Festival also consists of scheduled musical concerts, a parade, and a midway. The purpose of the midway and the concerts is to promote attendance at the Festival. The taxpayer conducts all aspects of the Festival except for the midway, which is operated by an independent carnival company unrelated to the taxpayer.
The testimony of the president and the administrative assistant of the taxpayer establishes that the taxpayer sells tickets to the Festival events in primarily two different ways. First, the taxpayer offers "patron's packages." For $125, a purchaser of a "patron's package" receives two week-long admission passes worth $126, along with trinkets, peanuts, and peanut products of nominal value.[1] The passes grant the patron access to the fairgrounds on which the agricultural exhibits, concerts, and midway are conducted. The package also contains separate tickets to the pageants, and, by request, a patron can receive tickets to a viewing stand to watch the Festival parade. Second, the taxpayer sells individual daily admission tickets and sells separate tickets to its pageants. The daily admission tickets allow the purchaser access to the fairgrounds while the pageant tickets allow access only to the pageants. In order to take part in the midway attractions, the *825 patron must purchase a separate ticket from the carnival company.[2] For the purposes of this appeal, we will refer to the patron's package, the daily admission tickets, and the tickets to the beauty pageants collectively as "the admission tickets."
At least since the 1980s, the taxpayer has collected and remitted sales taxes on its receipts from the sale of the admission tickets. In 2003, the taxpayer collected the sales tax as it had before, but it did not remit those taxes to the Department. The president of the taxpayer testified that, at a 2003 meeting of the Alabama State Fair Association, several representatives of other state fairs informed the taxpayer that it had been erroneously paying sales taxes on the receipts of its sale of admission tickets because the legislature had established a statute exempting state fairs from the payment of taxes.
The Department entered a final assessment against the taxpayer for its nonpayment of the 2003 sales taxes, and the taxpayer subsequently paid those taxes, along with interest and penalties. In 2004, the taxpayer filed a civil action seeking a refund of taxes it had previously remitted to the Department. The judgment resulting from that action was not introduced into evidence at the trial of this case and is not contained in the appellate record.
In 2004 and 2005, the taxpayer did not collect or remit sales taxes on any of its admission-ticket sales. After an audit, the Department, on July 31, 2006, entered a final assessment against the taxpayer for the sales taxes, penalties, and interest for those years. The taxpayer paid the assessment out of its own funds under protest and, pursuant to § 40-2A-7(b)(5), Ala. Code 1975, a part of the Taxpayers' Bill of Rights, § 40-2A-1 et seq., Ala.Code 1975, filed an immediate appeal to the Houston Circuit Court ("the trial court"), seeking a refund of the taxes and penalties it had paid, along with accrued interest. On January 12, 2007, the Department filed an answer denying that any refund was due and filed a counterclaim seeking the payment of additional taxes.[3] On October 19, 2007, after a hearing, the trial court entered a judgment finding that the taxpayer was entitled to a full refund because, it held, the taxpayer was exempt from the payment of sales taxes by virtue of § 40-9-1(12), Ala.Code 1975.[4] The Department timely appealed to this court on November 6, 2007.
Issue
The sole issue on appeal is whether § 40-9-1(12) exempts the taxpayer from paying sales taxes on the receipts of the sale of the admission tickets to its Festival and its beauty pageants.
Standard of Review
The parties agree that the essential facts were undisputed before the trial *826 court. Thus, this court applies a de novo standard of review to determine whether the trial court properly applied the law to the facts of this case. See Carter v. City of Haleyville, 669 So.2d 812, 815 (Ala.1995).
Analysis
Collateral Estoppel
As a preliminary issue, the taxpayer argues that the Department was estopped to relitigate the issue of whether § 40-9-1(12) exempts the taxpayer from paying taxes on the sale of the admission tickets. The taxpayer claims that the trial court decided that issue in the taxpayer's favor as a necessary part of the trial court's judgment in the 2004 litigation. See Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 795-96 (Ala.2007) ("Collateral estoppel applies when (1) the issue in a prior case was identical to the issue being litigated in the present action, (2) the issue was actually litigated in the prior action by a court of competent jurisdiction, (3) resolution of that issue was necessary to the prior judgment, and (4) the same parties are involved in the two actions.").
We note that although the trial court discussed the collateral-estoppel issue with the attorneys for the parties during the trial and was well aware of its judgment in the prior action, the trial court did not rest its decision on the doctrine of collateral estoppel. We can "affirm [a judgment] on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court." Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003) (emphasis added). However, the judgment from the 2004 action is not contained in the appellate record; it is only attached to the taxpayer's brief.
"Appellate courts are not permitted to consider matters outside the record. See, e.g., Etherton v. City of Homewood, 700 So.2d 1374, 1378 (Ala.1997). `"`[A]ttachments to briefs are not considered part of the record and therefore cannot be considered on appeal.'"' Roberts v. NASCO Equip. Co., 986 So.2d 379, 385 (Ala.2007) (quoting Morrow v. State, 928 So.2d 315, 320 n. 5 (Ala.Crim. App.2004), quoting in turn Huff v. State, 596 So.2d 16, 19 (Ala.Crim.App.1991))."
Ex parte Ruggs, [Ms. 1061379, Aug. 22, 2008] 10 So.3d 7, 10 n. 2 (Ala.2008). Furthermore, we cannot take judicial notice of another court's records. See Warren v. Wester, 827 So.2d 116, 119 n. 3 (Ala.Civ. App.2002); Worthington v. Amerson, 741 So.2d 437, 438 n. 2 (Ala.Civ.App.1999); and Lyle v. Eddy, 481 So.2d 395, 397 (Ala.Civ. App.1985). Because the judgment in the 2004 action is not properly before this court, we are unable to review that judgment and, thus, cannot determine whether all the elements of collateral estoppel have been satisfied. We, therefore, decline to affirm the judgment based on the doctrine of collateral estoppel.
The Meaning of § 40-9-1(12)
As recognized in Flav-O-Rich, Inc. v. City of Birmingham, 476 So.2d 46 (Ala.1985):
"The general rule in construing statutes granting exemption from taxation has been stated thusly:
"`"The `universal rule of construction is that exemptions from taxation, whether statutory or constitutional, are to be strictly construed, against the exemption and in favor of the right to tax, and that no person or property is to be exempted unless the intention to exempt such person or property clearly appears in some statute or constitutional provision.'" *827 State v. Bridges, 246 Ala. 486, 489, 21 So.2d 316, 317, 159 A.L.R. 678 [(1945) ].
"`It has long been the rule in this state that one seeking an exemption from taxation assumes the burden to clearly establish the right. In all cases of doubt as to legislative intention, the presumption is in favor of the taxing power. Title Guarantee Loan and Trust Co. v. Hamilton, 238 Ala. 602, 193 So. 107, 108 [1940]; Curry v. Reeves, 240 Ala. 14, 15, 195 So. 428, 430 [ (1940) ].'
"Brundidge Milling Co. v. State, 45 Ala. App. 208, 210, 228 So.2d 475, 477 (1969). However, such exemption clauses are not to be so strictly construed as to defeat or destroy the intent and purpose of the statute, and no strained statutory construction is to be given which would have that effect. Our responsibility is to give effect to the legislative intention where it is manifested. State v. Union Tank Car Co., 281 Ala. 246, 201 So.2d 402 (1967)."
476 So.2d at 48. Based on those rules of statutory construction, we must first decide the general meaning of § 40-9-1(12) and then apply that meaning to the facts of this case to determine if the trial court correctly determined that the taxpayer was entitled to a refund based on the exemption provided in that statute.
Section 40-9-1, Ala.Code 1975, provides, in part:
"The following property and persons shall be exempt from ad valorem taxation and none other:
"....
"(12) No license or taxation of any character, except franchise taxes provided by Section 229 of the Constitution of the State of Alabama, shall be collected or required to be paid to the state or any county or municipality therein by any state or county fair, agricultural association, stock, kennel or poultry show.... Nothing contained in this subdivision shall be construed to prohibit any municipality, county or state from imposing any license tax upon or for the privilege of engaging in the business of ... conducting or operating devices or games of skill or amusements or other games or devices, or conducting or operating shows, displays or exhibits other than shows, displays or exhibits of agricultural implements, farm products, livestock and athletic prowess."
(Emphasis added.)
In Flav-O-Rich, supra, our supreme court noted that "[f]ollowing th[e] specific reference to ad valorem taxes, there are 23 [now 26] subsections which cover different types of property or entities. Of these... subsections, all but subsection 12 clearly refer to items which would be exempt from ad valorem taxes." 476 So.2d at 50 (emphasis added). A current review of § 40-9-1 affirms that, except for § 40-9-1(12), all the subsections of the statute clearly describe items of property that would otherwise be subject to ad valorem taxes if not specifically exempted by the statute. One part of § 40-9-1(12) not quoted above also exempts certain athletic stadiums from ad valorem taxation. However, the remainder of § 40-9-1(12) does not describe any particular property that would be exempt from ad valorem taxes. Instead, "[§ 40-9-1(12)] evidences an intention on the part of the legislature to exempt certain athletic, educational, and entertainment `events,' including state or county fairs, and stock, kennel, or poultry shows." 476 So.2d at 51. Events such as fairs and agricultural-association shows are not property, which is the only subject of ad valorem taxation. See Black's Law Dictionary 1496 (8th ed.2004) (defining an *828 ad valorem tax as "[a] tax imposed proportionally on the value of something (esp. real property)").
In Flav-O-Rich, supra, the lower court applied the rule of ejusdem generis to find that the § 40-9-1(12) exemption applies only to ad valorem taxes. The rule of ejusdem generis
"is a general principle of statutory construction that where general words follow the enumeration of particular classes of persons or things, the general words may be construed ... as being applicable only to persons or things of the same general nature or class as those specifically enumerated. Ross Jewelers v. State, 260 Ala. 682, 72 So.2d 402, 43 A.L.R.2d 851 (1953); Goode v. Tyler, 237 Ala. 106, 186 So. 129 (1939)."
Flav-O-Rich, 476 So.2d at 51 n. 5. See also Ex parte Emerald Mountain Expressway Bridge, L.L.C., 856 So.2d 834 (Ala.2003). Although that rule is helpful in some cases to determine legislative intent, it cannot be readily applied to this case. Section 40-9-1(12) does not generally describe some type of property in the classes of property specifically enumerated in the other subsections of the statute; rather, § 40-9-1(12) states a specific rule of taxation applicable to specific events that is totally different from the general rule of taxation applying to the property described in the remainder of the statute.
As the supreme court held in Flav-O-Rich, the intent of the legislature in enacting § 40-9-1(12) was to exempt certain "events" from taxation. 476 So.2d at 51. Subsection 40-9-1(12) plainly states that no "state or county fair, agricultural association, stock, kennel or poultry show" shall be required to collect or to pay "to the state or any county or municipality" a "license or taxation of any character." To read that language as applying only to ad valorem taxation would not only ignore the general inapplicability of ad valorem taxation to such events, but would also render the phrase "taxation of any character" meaningless. The rules of statutory construction set out in Flav-O-Rich do not allow us to defeat the exemption in § 40-9-1(12) by reading into it the limiting language in the first clause of § 40-9-1. Thus, we conclude that § 40-9-1(12) generally exempts the enumerated events from all taxation.
As an exception to this general exemption, § 40-9-1(12) provides that "[n]othing contained in this subdivision shall be construed to prohibit any municipality, county or state from imposing any license tax upon or for the privilege of engaging in the business of ... conducting or operating shows, displays or exhibits ...." That exception clearly grants governmental authorities the right to impose a "license tax" on entities conducting shows or exhibits despite the general prohibition against "taxation of any character." However, as an exception to the exception, no "license tax" can be imposed for conducting "shows, displays or exhibits of agricultural implements, farm products, [or] livestock...." at the events described in § 40-9-1(12). In short, 40-9-1(12) creates a limited exemption for the events enumerated therein, which exemption allows the state to tax only those receipts from nonagricultural shows and exhibits conducted by the taxpayer at the event.
The Department argues that even if § 40-9-1(12) does provide some exemption, that exemption has been impliedly repealed. The Department points out that § 40-9-1(12) was first enacted in 1935, see Ala. Acts 1935, Act No. 1935-194, at a time when Alabama was contemplating, but had not yet adopted, a statewide sales tax. The next year, the legislature passed a state "license tax," which imposed *829 a tax on the gross receipts of "places of amusement." Ala. Acts 1936 (Extraordinary Session, 1936-1937), Act No. 1936-1, § 3. The following year, the legislature repealed that act and replaced it with a new act using identical language, but imposing a higher tax. Ala. Acts 1937 (Extraordinary Session 1936-1937), Act No. 1937-126, § 2(c). Both the 1936 act and the 1937 act provided "that all laws or parts of law in conflict with the provisions of this Act ... be and are hereby expressly repealed." The Department argues that § 40-9-1(12) has been impliedly repealed because it is fatally inconsistent with the amusement "license tax" enacted in 1936 and 1937 and now codified at § 40-23-2(2), Ala.Code 1975.
"`"`"[R]epeal by implication is not favored."'"' Shiv-Ram, Inc. v. McCaleb, 892 So.2d 299, 312 (Ala.2003) (quoting Fletcher v. Tuscaloosa Fed. Sav. & Loan Ass'n, 294 Ala. 173, 177, 314 So.2d 51, 55 (1975), quoting in turn State v. Bay Towing & Dredging Co., 265 Ala. 282, 289, 90 So.2d 743, 749 (1956)). `A later statute may repeal an earlier statute by implication only under certain circumstances, such as when the two statutes, taken together, are so repugnant to each other that they become irreconcilable.' Hurley v. Marshall County Comm'n, 614 So.2d 427, 430 (Ala.1993). `"`Implied repeal is essentially a question of determining the legislative intent as expressed in the statutes.'"' Shiv-Ram, 892 So.2d at 312 (quoting Fletcher, 294 Ala. at 177, 314 So.2d at 55 (emphasis added))."
Willis v. Kincaid, 983 So.2d 1100, 1106 (Ala.2007).
"[In] Connor v. State in re Boutwell, 275 Ala. 230, 233-34, 153 So.2d 787, 791 (1963), quoting from 50 Am.Jur. Statutes § 561[, the court stated] as follows:
"`"It has been broadly stated that the rule as to repeals implied from repugnancy of provisions applies as well between a general and a special or local act as between two general ones. As a general rule, however, general or broad statutory provisions do not control, modify, limit, affect, or interfere with special or specific provisions.",
"This Court in Boutwell also quoted from 50 Am.Jur. Statutes § 564 as follows:
"`"It is, however, equally true that the policy against implied repeals has peculiar and special force when the conflicting provisions, which are thought to work a repeal, are contained in a special or specific act and a later general or broad act. In such case, there is a presumption that the general or broad law was not designed to repeal the special or specific act, but that the special or specific act was intended to remain in force as an exception to the general or broad act, and there is a tendency to hold that where there are two acts, one special or specific act which certainly includes the matter in question, and the other a general act which standing alone would include the same matter so that the provisions of the two conflict, the special or specific act must be given the effect of establishing an exception to the general or broad act."'
"275 Ala. at 234, 153 So.2d at 791 (emphasis added)."
Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 961 (Ala.2004). "Statutes should be construed together so as to harmonize the provisions as far as practical." Ex parte Jones Mfg. Co., 589 So.2d 208, 211 (Ala.1991). "In the event of a conflict between two statutes, a specific statute relating to a specific subject is regarded as an exception to, and will prevail *830 over, a general statute relating to a broad subject." Id.
Section 40-23-2(2) is a general statute imposing a license tax, sometimes referred to as the amusement tax or the amusement sales tax, on the gross receipts of all "places of amusement."[5] The statute itself, although listing a variety of establishments and amusement and entertainment activities, does not mention those specific events listed in § 40-9-1(12).[6] Therefore, it is presumed that the legislature did not intend § 40-23-2(2) to repeal § 40-9-1(12) and that the legislature instead intended that § 40-9-1(12) would remain in effect as an exception to § 40-23-2(2). Construing the general statute in harmony with the specific statute, § 40-23-2(2) generally imposes a license tax on the gross receipts of a business conducting a place of amusement, while § 40-9-1(12) stands as a limited exception to that general rule prohibiting taxation of the receipts from those events specifically enumerated therein. Thus, we conclude that § 40-9-1(12) has not been impliedly repealed by the enactment of § 40-23-2(2).
The Department also argues that the taxpayer and all other similarly situated taxpayers have consistently paid the amusement sales tax set out in § 40-23-2(2) for the last 60 years. We note that that statement is not supported by any evidence in the record. Hail v. Regency Terrace Owners Ass'n, 782 So.2d 1271, 1277 (Ala.1999) ("`[T]his Court is limited to a review of the record alone, and the record cannot be changed, altered, or varied on appeal by statements in briefs of counsel.'" (quoting Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala.1990))). The record does, however, indicate that the taxpayer has consistently paid the amusement sales tax since the 1980s, but the Department fails to make any argument as to the legal effect of that consistent payment. It is not the function or duty of this court to create legal arguments for an appellant. Gonzalez v. Blue Cross/Blue Shield of Alabama, 760 So.2d 878 (Ala.Civ.App.2000).
At trial, one of the Department's examiners testified that at least since before 2000 the Department had taken the position that it was entitled to collect the amusement sales tax from the receipts for the sale of the admission tickets. She further testified that she was not aware of any exemption that applied. The examiner reviewed Rule 810-6-3-.07.05, Ala. Admin. Code (Dep't of Revenue), which lists a variety of entities exempted from the amusement sales tax by other specific legislation, and testified that the taxpayer was not on that list. The Department also cites Rule 810-6-1-.125, Ala. Admin. Code (Dep't of Revenue), which provides, in pertinent part, that "fairs" are included within the meaning of "places of amusement." Rule 810-6-1-.125(3)(e)3., Ala. Admin. Code.
Based on the examiner's testimony and Rule 810-6-1-.125, the Department *831 argues that this court should defer to its consistent interpretation of § 40-9-1(12). See Hulcher v. Taunton, 388 So.2d 1203, 1206 (Ala.1980) ("Interpretations of an act by the administrative agency charged with its enforcement, though not conclusive, are to be given great weight by the reviewing court."). The Department acknowledges that Rule 810-6-1-.125 was amended, effective December 2006, to include "fairs," which we note is at least one year after the relevant tax periods at issue in this case. The Department argues that that regulation should be given retroactive effect. However, it makes that argument without citation to any legal authority, and, thus, we need not consider that argument. See Rule 28(a)(10), Ala. R.App. P. Even if we could consider that argument, we find that the regulation, as well as the interpretation of the statute to which the examiner attested, have no persuasive force because they contradict § 40-9-1(12) to the extent that § 40-9-1(12) generally exempts state and county fairs from "taxation of any character." See Ex parte Jones Mfg. Co., 589 So.2d at 210 ("An administrative agency cannot usurp legislative powers or contravene a statute. ... A regulation cannot subvert or enlarge upon statutory policy.").
The Department also argues that because the legislature has enacted specific legislation to exempt certain entities from taxation, it must have determined that § 40-9-1(12) did not create an exemption. It is true that § 40-23-5(d), Ala.Code 1975, grants a specific exemption against all sales and use taxes to the South Alabama State Fair Association Southeastern Livestock Exposition of the State of Alabama; that § 40-9-15, Ala.Code 1975, exempts from all taxation the Alabama State Fair and Exhibit Association; and that Ala. Acts 1994, Act No. 94-119, exempts the Greater Gulf State Fair from county and municipality sales and use taxes. However, those exemptions are much broader than the exemption found in § 40-9-1(12). As explained above, the exemption in § 40-9-1(12) applies only to enumerated events and not generally to the entity that conducts those events. Furthermore, the exemption is subject to an exception that allows for taxation of the receipts for sales of tickets to nonagricultural shows and exhibits. The exemptions upon which the Department rely apply to the entities themselves, meaning the entities are subject to no taxation or, in the case of the Greater Gulf State Fair, to no municipal or county sales and use taxation, even when making sales outside of the events enumerated in § 40-9-1(12) or even when accruing income from sources other than those events. Furthermore, those exemptions are not subject to the exception set out in the last clause of the last sentence of § 40-9-1(12). By giving those entities broader exemptions than the one contained in § 40-9-1(12), the legislature did not in any way acknowledge that § 40-9-1(12) does not already create a limited exemption.
In the end, the Department has failed to present this court with any reasonable construction of § 40-9-1(12). Based on the arguments of the Department, § 40-9-1(12) would have no field of operation; however, "it is presumed that the Legislature did not do a vain and useless thing." Alidor v. Mobile County Comm'n, 291 Ala. 552, 558, 284 So.2d 257, 261 (1973). We believe the construction we have placed on § 40-9-1(12) is a reasonable one that gives effect to the intent of the legislature and harmonizes § 40-9-1(12) with the other statutes and enactments cited by the Department.
Application of § 40-9-1(12)
In this case, the undisputed facts show that the Festival is a "state fair" within the meaning of § 40-9-1(12). Although *832 the Festival may not be characterized as a "fair" within the common-law meaning of that term set out in Black's Law Dictionary,[7] it is certainly a "fair" within the common understanding of that word as "a competitive exhibition usu. with accompanying entertainment and amusements." Merriam-Webster's Collegiate Dictionary 449 (11th ed.2003). See IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992) ("Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning ...."). Because the Festival is operated by the taxpayer, who is a member of the Alabama State Fair Association, and because the Alabama Department of Agriculture cosponsors the Festival with state funds, it can only be characterized as a "state" fair.
Because the Festival is a state fair, any receipts generated from the sale of the admission tickets generally would not be subject to "taxation of any character" under § 40-9-1(12). However, as an exception to that rule, the last sentence of § 40-9-1(12) authorizes the imposition of a "license tax" for the privilege of conducting nonagricultural exhibits, displays, and shows. Arguably, the beauty pageants are separate shows that precede the Festival, but even if they were considered part of the Festival, any receipts generated from the sale of tickets to those pageants would be subject to a "license tax." Likewise, the musical concerts are shows that do not involve agricultural displays or at least the taxpayer did not prove that those concerts involved agricultural displays and they would also be subject to a "license tax."
By its own terms, § 40-23-2(2) is a "license tax." See § 40-23-2 ("There is levied, in addition to all other taxes of every kind now imposed by law, and shall be collected as herein provided, a privilege or license tax against the person on account of the business activities ...."). That license tax is generally "four percent of the gross receipts of [the] business."[8] § 40-23-2(2), Ala.Code 1975. However, because of the limited exemption created by § 40-9-1(12), the Department is precluded from collecting sales taxes on the receipts from the sale of all the admission tickets; in regard to the admission tickets, it may only tax that portion of the gross receipts relating to the sale of admission tickets granting access to the concerts and the beauty pageants.
The taxpayer finally argues that if its receipts from the sale of admission *833 tickets are subject to taxation, then the tax should only be applied prospectively. In at least two cases our supreme court has held that when the meaning of a tax law was unclear at the time of the taxable event due to conflicting judicial opinions, legislative enactments, and/or administrative regulations, it would apply its decision clarifying the law prospectively. See Ex parte Sizemore, 605 So.2d 1221 (Ala.1992); and City of Birmingham v. AmSouth Bank, N.A., 591 So.2d 473 (Ala.1991).[9] The taxpayer argues that in refusing to collect and remit the amusement sales tax, it reasonably relied on interpretations of § 40-9-1(12) contained in the trial court's judgment in the 2004 action and two attorney general opinions. As we have already pointed out, the trial court's judgment in the 2004 action is not in the record before us, and we cannot take judicial notice of its contents; hence, we cannot determine from the record whether that judgment was a binding legal opinion regarding the effect of § 40-9-1(12), a fact which the Department disputes, and, consequently, whether the taxpayer could have reasonably relied on that judgment.
In Attorney General Opinion No. 1999-180, in response to a request from the probate judge of Walker County regarding how a probate judge could determine whether a fair is exempt from licensing and taxation under § 40-9-1(12), the attorney general's office stated that "the admission fees charged by a county fair are not subject to `taxation of any character,' including admissions tax such as that charged under section 40-23-2(2) ...." Op. Att'y Gen. No. 1999-180 (April 23, 1999). That opinion ultimately concluded that "[t]he probate judge can determine whether a fair is exempt ... by making a factual determination regarding the entity conducting the fair or `show.'" Id. Four years later, the attorney general's office reiterated that, "[i]n accordance with section 40-9-1(12) of the Code, state and county fairs and the shows of agriculture associations are exempt from taxation," in opining that the probate judge of DeKalb County could determine whether the exemption applied to the DeKalb County Agricultural Fair as a "county fair." Op. Atty. Gen. No. 2003-100 (March 11, 2003).[10]
The record contains no evidence indicating that the taxpayer relied on those two attorney general opinions. The taxpayer's president testified that the taxpayer stopped collecting and remitting taxes after learning at a meeting with other fair officials that the legislature had passed an exemption relieving fairs of tax liability. Even if it can be inferred that the information the taxpayer received arose indirectly from the attorney general opinions, its reliance on those opinions would not have been reasonable. Unlike court opinions,
"written opinions of the Attorney General are not controlling. They are merely advisory and, under the statute, such opinions operate only to protect the officer *834 to whom it is directed from liability because of any official act performed by such officer as directed or advised in such opinions. [§ 36-15-19, Ala.Code 1975.]"
Broadfoot v. State, 28 Ala.App. 260, 261, 182 So. 411, 412 (1938); see also Hunt v. Tucker, 875 F.Supp. 1487, 1516 (N.D.Ala. 1995).
Unlike in Ex parte Sizemore and City of Birmingham v. AmSouth Bank, N.A., supra, the taxpayer in this case was not confused by conflicting, binding legal interpretations of the language of a tax law. Based on that distinction, we decline to follow those cases, and we apply our decision retroactively.
In this case, the record is not clear as to what part of the receipts related solely to the sale of admission tickets to the concerts and the beauty pageants. In the case of the beauty pageants, some tickets were sold separately to those events, but some tickets also were sold as part of the "patron's package." As for the concerts, the record suggests that the price for access to the concerts is factored into the overall price of the admission tickets. Therefore, we cannot determine from the record the appropriate amount of taxes the taxpayer was obligated to collect and remit. We, therefore, remand the case to the trial court for it to conduct further proceedings on that point.
Conclusion
In summary, we find that § 40-9-1(12) creates a limited exemption for the events enumerated therein, which exemption allows the state to tax only those receipts from non-agricultural shows and exhibits conducted by the taxpayer at the event. Our holding applies retroactively to include the tax years at issue in this case. As applied, that exemption precluded the taxation of the gross receipts from the sale of all the admission tickets but allowed the taxation of that portion of the sales applicable to the beauty pageants and the concerts. The trial court therefore erred in granting the taxpayer a total exemption and in ordering a complete refund. We, therefore, reverse the trial court's judgment and remand the cause to the trial court for a determination of the tax due from the taxpayer for the sale of tickets to the beauty pageants and the concerts and for a determination of the amount of the refund, if any, due the taxpayer.
REVERSED AND REMANDED.
PITTMAN and THOMAS, JJ., concur.
THOMPSON, P.J., concurs in part and dissents in part, with writing.
BRYAN, J., dissents, with writing.
THOMPSON, Presiding Judge, concurring in part and dissenting in part.
I agree with the main opinion except to the extent that it holds that the tax must be applied retroactively. I agree with the taxpayer that confusion existed regarding its liability for the taxes in question. Therefore, I would prospectively apply the holding of the main opinion to this taxpayer. See Wal-Mart Stores, Inc. v. City of Mobile, 696 So.2d 290 (Ala.1996) (applying a holding in a tax case prospectively); and Ex parte Sizemore, 605 So.2d 1221, 1227 (Ala.1992) ("Because of the confusion of the law in this area, we [clarify the statute] without penalizing the taxpayer in this instance. Therefore, the interpretation of the law in this case is prospective only.").
BRYAN, Judge, dissenting.
Because I would affirm the trial court's judgment, I must respectfully dissent.
I agree with the main opinion's conclusion that the festival put on by The National Peanut Festival Association, Inc. *835 ("the Association"), is a state fair within the meaning of § 40-9-1(12), Ala.Code 1975. However, unlike the main opinion, I would hold that, because the festival is a state fair, § 40-9-1(12) exempts from "taxation of any character" all the receipts generated by the sale of admission tickets to events or shows associated with the festival whether those tickets are for admission to the "Little Miss" pageant, the "Big Miss" pageant, the agricultural exhibits, the musical concerts, the parade, or the midway. In my opinion, the last sentence in § 40-9-1(12), which states that "[n]othing contained in this subdivision shall be construed to prohibit any municipality, county or state from imposing any license tax upon or for the privilege of engaging in the business of ... conducting or operating devices or games of skill or amusements or other games or devices, or conducting or operating shows, displays or exhibits other than shows, displays or exhibits of agricultural implements, farm products, livestock and athletic prowess" (emphasis added), does not subject the receipts generated by the sale of admission tickets to events or shows associated with the festival to taxation because the Association is not in the business of doing those things; rather, the Association is a nonprofit entity that puts on the festival merely to effect the purpose for which it is organized, i.e., promoting interest in peanuts and peanut farming. See 10-2A-21(17), Ala.Code 1975. The final sentence of § 40-9-1(12) would, however, allow a municipality, a county, or the state to impose on the separate carnival company that operates the midway a "license tax upon or for the privilege of engaging in the business of ... conducting or operating devices or games of skill or amusements or other games or devices, or conducting or operating shows, displays or exhibits other than shows, displays or exhibits of agricultural implements, farm products, livestock and athletic prowess," because the separate carnival company is in the business of operating the midway.
Although the Association has not argued that we should affirm the trial court's judgment on the particular ground that I have articulated above, we can affirm a trial court's judgment on any legally valid ground. See Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988).
NOTES
[1] For the purposes of this appeal, the Department has stipulated that it considers the sale of patron's packages to consist merely of the sale of admission tickets.
[2] The taxpayer receives a percentage of the gross receipts of the midway carnival, but those receipts are not at issue in this case.
[3] In the pleadings, the parties were originally in dispute over other taxes that had been assessed by the Department against the taxpayer; however, all the disputes were resolved by stipulation except the refund claim regarding the sales taxes and the Department's counterclaim seeking additional sales taxes on the receipts from the sale of the admission tickets.
[4] Because it found that the taxpayer was entitled to a refund, the trial court impliedly denied the counterclaim filed by the Department; the judgment is therefore final and will support an appeal. See Housing Auth. of Chickasaw v. CBE, Inc., 656 So.2d 1219, 1220-21 (Ala.Civ.App.1995). The Department does not raise any issue regarding the denial of its counterclaim.
[5] Section 40-23-2 provides, in pertinent part:
"There is levied, in addition to all other taxes of every kind now imposed by law, and shall be collected as herein provided, a privilege or license tax against the person on account of the business activities ... as follows:
"....
"(2) Upon every person, firm, or corporation engaged or continuing within this state in the business of conducting or operating places of amusement or entertainment, ... or any other place at which any exhibition, display, amusement, or entertainment is offered to the public or place or places where an admission fee is charged, ... an amount equal to four percent of the gross receipts of any such business."
[6] The Department has promulgated a regulation further defining the term "places of amusement," Rule 810-6-1-.125, Ala. Admin. Code, which is discussed in more detail infra.
[7] "A privileged market for the buying and selling of goods. A fair was an incorporeal hereditament granted to a town by royal patent or franchise or established by prescription. The franchise to hold a fair conferred important privileges, and a fair, as a legally recognized institution, possessed distinctive legal characteristics, most of which are now obsolete." Black's Law Dictionary 633 (8th ed.2004).
[8] We respectfully disagree with the position taken by the dissent that the taxpayer is not "engag[ed] in the business of ... conducting or operating shows, displays or exhibits other than shows, displays or exhibits of agricultural implements, farm products, livestock and athletic prowess" so as to be subject to limited taxation as set out in the last sentence of § 40-9-1(12). 11 So.3d at 835 (Bryan, J., dissenting). Although the purpose of the Festival is to promote interest in peanuts and peanut farming, it is undisputed that, in pursuit of that purpose, the taxpayer conducts parades, concerts, and beauty pageants for which it collects admission fees. The taxpayer is in fact engaged in a commercial undertaking that generates revenue to serve its agricultural purpose. By wording § 40-9-1(12) as it did, the legislature obviously recognized that a state agricultural fair can also be in the business of conducting nonagricultural displays for which taxes may be collected; otherwise, the last clause of the last sentence of the statute would be unnecessary.
[9] Our supreme court has also applied changes in the caselaw interpreting a tax law prospectively. See Wal-Mart Stores, Inc. v. City of Mobile, 696 So.2d 290 (Ala. 1996); and State v. Morrison Cafeterias Consol., Inc. of Delaware, 487 So.2d 898 (Ala. 1985). However, because we are not changing any prior caselaw interpreting § 40-9-1(12), those cases are not on point.
[10] In State Department of Revenue v. Arnold, 909 So.2d 192 (Ala.2005), issued on March 18, 2005, the supreme court held that those two attorney general opinions were erroneous because a probate judge has no subject-matter jurisdiction to decide the applicability of the exemption set out in § 40-9-1(12). However, the court did not address the meaning of § 40-9-1(12) or discuss the validity of the attorney general's interpretation of that statute. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610630/ | 533 So.2d 791 (1988)
Joseph Thomas LONGO, Appellant,
v.
Andrea Ann LONGO, Appellee.
No. 4-86-1597.
District Court of Appeal of Florida, Fourth District.
September 21, 1988.
Rehearing and Rehearing Denied December 1, 1988.
*792 Brian Glick, Boca Raton, and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellant.
Susan J. O'Hara, Palm Beach, Jane Kreusler-Walsh and John Beranek of Klein & Beranek, P.A., West Palm Beach, for appellee.
EN BANC
Rehearing and Rehearing En Banc Denied December 1, 1988.
HERSEY, Chief Judge.
The husband in this dissolution action appeals the final judgment. We reverse and remand for correction with regard to: (1) the husband's salary, (2) the value of the husband's pension plan, (3) the husband's obligation to maintain life insurance for the wife's benefit, and (4) the husband's obligation to pay all of the minor children's medical expenses. We also reverse the award of rehabilitative alimony to the wife. Finally, we remand for a redetermination of equitable distribution and for reconsideration of the issue of whether the wife is entitled to attorney's fees.
The final judgment awarded residential custody of the two minor children to the wife and the husband was ordered to pay child support of $500 per month per child. The husband was also ordered to provide health and dental insurance for the minor children and was required to pay all medical, dental and orthodontic expenses not covered by insurance. The wife was awarded the husband's interest in the marital home, three automobiles, permanent periodic alimony of $1,000 per month and rehabilitative alimony of $600 per month for twenty-four months. The husband was to retain his interest in his pension plan and his stock in IBM, and the parties were to divide all personal property located in the marital home. The husband was ordered to obtain a $100,000 life insurance policy (naming the wife as beneficiary) to guarantee the alimony and child support awards. The husband was also ordered to pay the wife's attorney's fees in the amount of $10,000.
There was undisputed evidence that the husband's monthly gross salary from his employment as an engineer at IBM was $4,707. The trial court erred, therefore, in finding that the husband earns $4,974 per month.
As previously noted, the wife was awarded rehabilitative alimony in the amount of $600 per month for twenty-four months. We conclude, however, that the record does not support an award of rehabilitative alimony. The principal purpose of rehabilitative alimony is to establish the capacity for self support of the receiving spouse, either through the redevelopment of previous skills or by providing the training necessary to develop potential supportive skills. Canakaris v. Canakaris, 382 So.2d 1197 *793 (Fla. 1980). Rehabilitative alimony "should be limited in amount and duration to that necessary to maintain the recipient through training or retraining." Atkins v. Atkins, 380 So.2d 522, 523 (Fla. 4th DCA), rev. denied, 389 So.2d 1107 (Fla. 1980).
Although the wife was a homemaker during most of the marriage and had only a high school education, she testified that she was currently employed as the manager of the tennis pro shop at St. Andrews Country Club in Boca Raton, that she had been so employed for three years and that she intended to continue that employment. Her gross yearly salary in that position is approximately $20,000, so she has some capacity for self support. The wife further testified that she had a 42% disability due to back trouble but the ailment apparently does not affect her ability to perform her job. There was no evidence that the wife intended to pursue any type of training or further education. Accordingly, the award of rehabilitative alimony was not justified. Here, unlike in Bridges v. Bridges, 506 So.2d 1047 (Fla. 4th DCA), rev. denied, 519 So.2d 986 (Fla. 1987), the circumstances do not warrant an award of rehabilitative alimony in order to do equity between the parties or to provide a "transition period" for the wife.
The wife was awarded the husband's interest in the home as lump sum alimony in order to achieve equitable distribution. The parties estimated that the value of the marital home was between $225,000 and $250,000, with an outstanding mortgage of $80,000. The husband now contends that this award thwarted the goal of equitable distribution, leaving him shortchanged. We agree.
First, the value of the husband's pension was incorrectly calculated, giving credit for future and uncertain employment. See Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla. 1986). Moreover, even assuming that the value of the pension was correct, the ultimate distribution of assets left the wife with almost twice as much as the husband.
"[M]arital assets should be distributed equally unless some showing is made of a disparity in the contributions of the parties to the marriage, or unless some other relevant factor justifies disparate treatment." Woodard v. Woodard, 477 So.2d 631, 633 (Fla. 4th DCA 1985), rev. denied, 492 So.2d 1336 (Fla. 1986).
The final judgment states that the lump sum alimony award of the marital home was justified by the wife's contributions to the marriage, the difference in the parties' earning capacities and the husband's separate assets. Although we agree that these factors may have justified some disparity, we conclude that they did not justify the degree of disparity which resulted here.
The wife concedes that the court awarded her $10,000 in attorney's fees although she presented no evidence as to the amount of fees she incurred. Since we have concluded that the case should be remanded for reconsideration of equitable distribution, we also conclude that the issue of whether attorney's fees for the wife are warranted should also be revisited.
The trial court ordered child support to continue until the children attained their majority, and permanent alimony to continue until the wife's remarriage, and ordered the husband to "pay for and provide evidence of said payment of life insurance guaranteeing the support provisions herein and naming the Wife as beneficiary in the amount of $100,000.00" (emphasis added). The husband now contends that this award was error, as it constituted post-mortem alimony and child support. We agree.
Alimony was initially conceived as a necessary corollary to the common-law obligation of a husband to provide his wife with the necessities of life. Thus, alimony terminated upon the death of the husband as did the husband's original duty of support. This is a "well established rule," characterized as being "clearly established law" and "settled" law. O'Malley v. Pan American Bank of Orlando, 384 So.2d 1258 (Fla. 1980).
This proposition and the statutes which implemented its underlying policy went virtually unchallenged until those statutes were recently amended. Laws 1984, chapter *794 84-110, section 1, added the following to section 61.08, Florida Statutes:
(3) To the extent necessary to protect an award of alimony, the court may order any party who is ordered to pay alimony to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose.
A similar amendment was made to section 61.13(1), pertaining to child support. Some courts have taken the position that the effect of the amendments is to permit post-mortem alimony and child support while others have taken a contrary position.
Based upon the interpretation that under the amended statutes one who is ordered to pay alimony and child support may be ordered to purchase or maintain life insurance only to the extent necessary to protect and secure the support award, the second district has held that these statutes do not abrogate the settled rules against post-mortem alimony and child support. See Sobelman v. Sobelman, 516 So.2d 7 (Fla. 2d DCA 1987) (Sobelman II); Dwyer v. Dwyer, 513 So.2d 1325 (Fla. 2d DCA 1987); Sobelman v. Sobelman, 490 So.2d 225 (Fla. 2d DCA 1986) (Sobelman I). By necessary implication both the third and fifth districts have adopted a similar interpretation. See Turner v. Turner, 507 So.2d 170 (Fla. 5th DCA 1987); Cantrell v. Home Life Insurance Co., 524 So.2d 1063 (Fla. 5th DCA 1988); Benson v. Benson, 503 So.2d 384 (Fla. 3d DCA 1987).
The first district has apparently adopted a different view. In Kooser v. Kooser, 506 So.2d 81, 82 (Fla. 1st DCA 1987), the district court affirmed the trial court's denial of a wife's request that the husband be ordered to purchase life insurance to protect his alimony obligation. The court stated that "it is obvious that the wife's request for life insurance was to perpetuate the payment of alimony subsequent to the husband's death." Id. at 82. Also, citing Sobelman I, the court stated that "it is questionable whether section 61.08(3) legitimizes what is otherwise a prohibition against ordering a spouse to maintain life insurance as a form of `postmortem alimony.'" Id. In a more recent case, however, the first district expressly disagreed with Sobelman II, stating that it does "not ascribe to the belief that the legislature only intended such an insurance policy to cover any arrearages existing at the time of the paying spouse's death." Fiveash v. Fiveash, 523 So.2d 764, 765 (Fla. 1st DCA 1988). See also McMath v. McMath, 526 So.2d 1027 (Fla. 1st DCA 1988).
As we read the amendment, it permits a court to require acquisition or continuation of a life insurance policy, a bond or some other security device to secure an alimony award. The discretion to impose a requirement for insurance is carefully limited: it may only be exercised "to the extent necessary to protect an award of alimony... ." The language seems very clear and therefore in our view leaves no room for the application of rules of statutory construction. It is perhaps simplistic to explain that we take the word "secure" used in this context not to be used as a synonym for "obtain" but rather to refer to a device (such as a mortgage) to safeguard payment of an obligation. The statute provides a method of securing or protecting an alimony award. It contains no language expressly creating a new duty or expanding an existing one.
It seems trite to suggest that had the legislature intended to overturn venerable precedent it would have "said so." However, the legislature is presumed to be cognizant of the rules of law that a particular enactment will affect. It is doubtful if post-mortem alimony and post-mortem child support were intended to be engrafted upon Florida law by inartful legislative draftsmanship and innuendo.
We make one final observation on the issue although others (such as public policy considerations and economics) come readily to mind. If we assume that the amendment authorized post-mortem alimony, does such an award terminate upon the surviving spouse's subsequent remarriage? death? inheritance of several million dollars? Does post-mortem alimony burden the obligor spouse's estate if that spouse *795 dies before the purchase of life insurance is completed? or where no insurance is contemplated? Simply stated, more problems are created than are solved by reading into these amendments something that the legislature never intended.
For these reasons we agree with Sobelman II and disagree and certify conflict with Fiveash.
Our opinion in Gepfrich v. Gepfrich, 510 So.2d 369 (Fla. 4th DCA 1987), is not inconsistent with this position. In Gepfrich the husband was ordered to maintain life insurance equal to the outstanding balance of lump sum and rehabilitative alimony awards. As we said there, the husband on appeal questioned only that aspect of the final judgment (pertaining to insurance) that required him "to maintain life insurance benefits payable to the wife in a sum equal to his outstanding support obligations, because these obligations terminate upon his death." Id. at 370. Since the husband did not place in issue the correctness of the insurance requirement to secure payment of child support or lump sum alimony, this could only pertain to the rehabilitative alimony award. Our reliance on Sobelman I in affirming this insurance provision makes clear our intent in Gepfrich to limit insurance protection to arrearages in rehabilitative alimony that have accrued at the time of the husband's demise. See also Clark v. Clark, 509 So.2d 364 (Fla. 4th DCA 1987).
Our interpretation of the statute, then, is that insurance or some other form of protection may be required to ensure payment of arrearages in child support, permanent periodic or rehabilitative alimony or the balance due of lump sum alimony payable in installments (recognizing that the latter is also a charge against the estate of a deceased former spouse).
In Sobelman II the court held that the spouse seeking to have the awards protected by an insurance policy as provided by section 61.08(3), must establish the necessity (or a need) for security, and further that the terms and conditions of the insurance policy "should be limited in such manner that the receiving spouse will receive only what may reasonably be necessary to protect arrearages in alimony so that the actual effect of the insurance requirement is not to provide post mortem alimony." 516 So.2d at 9.
In the present case there is no evidence that the wife established a need for security for the payment of either alimony or child support. Here also, as in Sobelman II, "[i]f the provision were allowed to stand, the wife would be in a position to receive the face amount of the policy without regard to whether any of the alimony payments [or child support payments] were in arrears at the time of the husband's death." 516 So.2d at 9. Accordingly, we direct the trial court to reconsider the question of whether an insurance policy is needed to protect and secure the child support and alimony awards; and if a policy is needed, to require the policy to be limited to provide only what may be reasonably necessary to protect arrearages.
The wife concedes that the provision for medical, dental and orthodontic expenses for the minor children should be limited to those bills for other than usual and minor expenses. See Bosem v. Bosem, 279 So.2d 863 (Fla. 1973); French v. French, 452 So.2d 647 (Fla. 4th DCA 1984).
We affirm the dissolution but reverse as to the specific issues which have been discussed.
REVERSED AND REMANDED.
DOWNEY, ANSTEAD, GLICKSTEIN, DELL, WALDEN and GUNTHER, JJ., concur.
LETTS, J., dissents without opinion.
STONE, J., dissents in part with opinion.
STONE, Judge, dissenting in part.
I dissent from that portion of the opinion concerning the order that the husband maintain life insurance for the benefit of the wife.
In my judgment the intent of the amendment to section 61.08 is to place the spouse who receives permanent alimony on the *796 same footing, with respect to security, as one who receives lump sum alimony. There is no reason to limit the benefit of the statute simply to cover the possible situation that there may be arrearages in alimony at the time of the husband's death. It is a contradiction to expect a trial court to make a finding that arrearages are likely when there is a requirement of a finding of an ability to pay. A policy of providing security to those dependent on a former spouse for support is consistent with the public policy of protecting the income or assets of families, as is reflected in the homestead laws or elsewhere in chapter 61, Florida Statutes.
In my opinion, Gepfrich v. Gepfrich, 510 So.2d 369 (Fla. 4th DCA 1987), Clark v. Clark, 509 So.2d 364 (Fla. 4th DCA 1987), and the result in Benson v. Benson, 503 So.2d 384 (Fla. 3d DCA 1987), are consistent with Fiveash v. Fiveash, 523 So.2d 764 (Fla. 1st DCA 1988), which I would adopt. We should certify a conflict with Sobelman II, 516 So.2d 7 (Fla. 2d DCA 1987), and recognize that the statute now gives a trial court the discretion to provide a former spouse with security against the tragic consequences of a premature termination of income, provided that there is a finding of necessity and ability to pay. In all other respects I concur with the majority opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610655/ | 533 So.2d 279 (1988)
John S. ROE, Petitioner,
v.
AMICA MUTUAL INSURANCE CO., Respondent.
No. 71682.
Supreme Court of Florida.
October 6, 1988.
Rehearing Denied December 2, 1988.
*280 Thomas M. Ervin, Jr. and E.C. Deeno Kitchen of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, and W. James Kelly and C. Kenneth Stuart, Jr. of W. James Kelly, P.A., Lakeland, for petitioner.
Manuel J. Alvarez and Matthew R. Danahy of Mitchell, Alley, Rywant & Vessel, P.A., Tampa, for respondent.
George A. Vaka of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tampa, amicus curiae for Nat. Ass'n. of Independent Insurers.
BARKETT, Justice.
We review Amica Mutual Insurance Co. v. Roe, 515 So.2d 1370 (Fla. 2d DCA 1987), because of conflict with Berger v. Fireman's Fund Insurance Co., 515 So.2d 997 (Fla. 3d DCA), review dismissed, 519 So.2d 987 (Fla. 1987). We have accepted jurisdiction[1] to decide whether a clause in an insurance policy authorizing either party to reject at will an arbitration award in excess of a certain sum is contrary to the Florida Arbitration Code or to public policy.
Pursuant to their insurance contract, Roe and Amica agreed to arbitrate any claim for personal injuries incurred in an accident. The arbitrators awarded Roe $225,735. The insurance contract, however, provided that either party could give notice and demand a jury trial within sixty days of the award if the arbitration award exceeded $10,000.[2] Amica so demanded. Roe ignored the demand and filed a motion in circuit court to confirm the award. The trial court denied the motion because of Amica's pending demand for a jury trial under the policy.
On appeal, the district court affirmed, holding that the policy provision authorizing Amica to reject any arbitration award in excess of $10,000 did not contravene either the Florida Arbitration Code, chapter 682, Florida Statutes (1987), or public policy. The district court then certified conflict with Berger v. Fireman's Fund Insurance Co.
The Berger court had considered a similar contractual provision, but, in contrast to the court below, held that the "provision which permits either party to repudiate the agreement if dissatisfied ... contravenes the Arbitration Code and public policy as expressed in judicial opinions and is therefore null and void." Berger, 515 So.2d at 998.
Roe concedes that parties may select certain issues and not others to submit to arbitration, and that an award would be binding only as to those issues submitted. See Pacemaker Corp. v. Euster, 357 So.2d 208, 211 (Fla. 3d DCA 1978); Frank J. Rooney, Inc. v. Charles W. Ackerman of Florida, Inc., 219 So.2d 110, 112 (Fla. 3d DCA), cert. dismissed, 230 So.2d 13 (Fla. 1969). He contends, however, that the issue of damages with respect to amount cannot be so divided and parties must arbitrate total damages or none at all. We are not persuaded by the logic or the law submitted in support of this view.
*281 Under Florida law, as Roe correctly notes, arbitration is a favored means of dispute resolution and courts indulge every reasonable presumption to uphold proceedings resulting in an award. Beach Resorts Int'l, Inc. v. Clarmac Marine Constr. Co., 339 So.2d 689, 690 (Fla. 2d DCA 1976). This maxim, however, lends no support to Roe's position, for its application presupposes that the parties have agreed to binding arbitration. That is not the case here. The parties specifically declined to be bound by any award exceeding the specified limit. Moreover, rather than offending public policy, Florida law specifically authorizes the parties to agree as they have.
Section 682.02, Florida Statutes (1987), provides in pertinent part that an agreement to arbitrate
shall be valid, enforceable, and irrevocable without regard to the justiciable character of the controversy; provided that this act shall not apply to any such agreement or provision to arbitrate in which it is stipulated that this law shall not apply or to any arbitration or award thereunder.
(Emphasis added.) Thus, this section gives the parties the prerogative of rejecting the application of the Florida Arbitration Code. That is precisely what occurred in this case as to any award exceeding $10,000. The parties simply agreed to binding arbitration as to any award up to $10,000 and to nonbinding arbitration as to any award exceeding that limit. We fail to discern any logical reason which would or should prohibit such an agreement. Nor do we find merit in Roe's assertions that any stipulation to exempt the statute's application must be accomplished by specifically tracking the language of the statute or that rejection of the Code must apply to the entire agreement or not at all.
Finally, we find no public policy which would be adversely affected by validating the challenged provision. Roe's characterization of that provision as an "escape clause" which Amica unilaterally can exercise unfairly represents the parties' agreement. The option of rejection is equally available to both parties. Just as Amica invoked the provision in this case, Roe could have requested a jury trial had he found an award only slightly over $10,000, unsatisfactory. Moreover, as Roe concedes, arbitration is a desirable option and should be encouraged. The district court aptly noted that the contract provision at issue at least resolves claims of less than $10,000 and provides an objective indication of the value of larger claims, making the settlement process easier. Roe, 515 So.2d at 1372.
For the foregoing reasons, we find that the arbitration provision at issue here complies both with the intent and requirements of section 682.02, Florida Statutes (1987), and offends no public policy. The opinion of the district court is approved, and Berger v. Fireman's Fund Insurance Co. is disapproved to the extent it conflicts.
It is so ordered.
EHRLICH, C.J., and OVERTON, McDONALD, SHAW, GRIMES and KOGAN, JJ., concur.
NOTES
[1] Art. V, § 3(b)(3), Fla. Const.
[2] The contractual provision in question provided as follows:
ARBITRATION If we and a covered person do not agree:
1. Whether that person is legally entitled to recover damages under this Part; or
2. As to the amount of damages; either party may make a written demand for arbitration. In this event, each party will select an arbitrator. The two arbitrators will select a third... . A decision agreed to by two of the arbitrators will be binding as to:
1. Whether the covered person is legally entitled to recover damages; and
2. The amount of damages. This applies only if the amount does not exceed the minimum limit for bodily injury liability specified by the financial responsibility law of the state in which your covered auto is principally garaged. If the amount exceeds that limit, either party may demand the right to a trial. This demand must be made within 60 days of the arbitrators' decision. If this demand is not made, the amount of damages agreed to by the arbitrators will be binding.
(Emphasis added.) The minimum limit for bodily injury liability specified by the financial responsibility law is $10,000. § 324.021(7)(a), Fla. Stat. (1987). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610678/ | 533 So.2d 15 (1988)
STATE of Louisiana
v.
Christopher L. ROYAL.
No. 88-K-1931.
Supreme Court of Louisiana.
November 18, 1988.
*16 Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610736/ | 11 So.3d 950 (2009)
KUJAWA
v.
STATE.
No. 2D08-2067.
District Court of Appeal of Florida, Second District.
January 16, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610844/ | 533 So. 2d 645 (1987)
Richard Lancaster CARLISLE
v.
STATE.
6 Div. 987.
Court of Criminal Appeals of Alabama.
June 30, 1987.
Rehearing Denied September 8, 1987.
Certiorari Denied December 4, 1987.
On Return to Remand September 20, 1988.
*646 Andrew LaPlante, Bessemer, for appellant.
Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 86-1619.
McMILLAN, Judge.
The appellant, Richard Lancaster Carlisle, was convicted of a violation of the Alabama Uniform Controlled Substances Act, § 20-2-70, Code of Alabama (1975), and sentenced to twenty-two years' imprisonment.
Officer Reuben Wilkinson of the Fairfield Police Department testified that, while he was on patrol at approximately 5:00 p.m., he observed the appellant carrying a paper sack and walking down the *647 street. Wilkinson testified that he was driving at a rate of approximately five to ten miles per hour and, during his observation of the appellant, came within 75 to 100 feet of him at the closest point. The appellant looked over his shoulder, back in the vicinity of Officer Wilkinson, several times and then dropped the sack onto a median between the street and the sidewalk. He continued walking and turned down a side street. Officer Wilkinson picked up the sack and observed a brown leather bag inside, whereupon he radioed for assistance. He stopped the appellant, patted him down, and placed him in the back of his patrol car. Shortly thereafter, Officer Wilkinson opened the leather bag and found a .32 caliber revolver, cigarette papers, a brown glove, small manila envelopes, a small envelope containing a white powdery substance, and a cigarette package filled with four small bags of the white powdery substance. He then took the appellant to the police station.
I
The appellant argues that there was no probable cause to arrest him in that he was walking "in a place where it is not unusual for people to be walking, and merely dropped a bag and kept walking, before he was arrested." However, this is a case where the existence of probable cause need not be determined, because the act of dropping the bag to the median constituted an abandonment. United States v. Speed, 388 A.2d 892, 893 (D.C. App.1978).
"The distinction between abandonment in the proper 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 exert his superior interest Brown, Personal Property (3d) § 1.6. 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. Cf. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). In essence, what is abandoned is not necessarily the defendant's property, but his reasonable expectation of privacy therein.
"Where the presence of police is lawful and the discard occurs in a public place where the defendant cannot reasonably have any continued expectancy of privacy in the discarded property, the property will be deemed abandoned for purposes of search and seizure. Such is the case here."
City of St. Paul v. Vaughn, 306 Minn. 337, 237 N.W.2d 365, 370-71 (1975).
In Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960), the United States Supreme Court held that a warrantless seizure of abandoned property by the police does not violate the Fourth Amendment. See also Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898 (1924).
"When individuals voluntarily abandon property, they forfeit any expectation of privacy in it that they might have had. United States v. Berd, 634 F.2d 979, 987 (5th Cir.1981). Therefore, a warrantless search or seizure of abandoned property is not unreasonable under the Fourth Amendment. [Citations omitted.] The existence of police pursuit or investigation at the time of abandonment does not of itself render the abandonment involuntary. United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973); see generally, e.g., Berd, 634 F.2d at 987; United States v. Canady, 615 F.2d 694 (5th Cir.), cert. denied, 449 U.S. 862, 101 S. Ct. 165, 66 L. Ed. 2d 78 (1980); United States v. Williams, 569 F.2d 823 (5th Cir.1978); [United States v.] D'Avanzo, 443 F.2d 1224 [(2d Cir.), cert. denied, 404 U.S. 850, 92 S. Ct. 86, 30 L. Ed. 2d 89 (1971) ].
"The test for abandonment is whether an individual has retained any reasonable expectation of privacy in the object. [Citation omitted.] This determination is to be made by objective standards. United *648 States v. Kendall, 655 F.2d 199, 201 (9th Cir.1981), cert. denied, 455 U.S. 941, 102 S. Ct. 1434, 71 L. Ed. 2d 652 (1982). An expectation of privacy is a question of intent, which `may be inferred from words spoken, acts done, and other objective facts.'"
United States v. Jones, 707 F.2d 1169, 1172 (10th Cir.1983), cert. denied, 464 U.S. 859, 104 S. Ct. 184, 78 L. Ed. 2d 163 (1983). See also State v. Reed, 284 So. 2d 574, 575 (La. 1973).
The appellant, in a similar case, People v. Sylvester, 43 Ill. 2d 325, 253 N.E.2d 429 (1969), placed a brown paper bag containing drugs on the curb of a public street immediately before entering a police car. The Illinois Supreme Court stated:
"In our judgment determination of the validity of the arrest is irrelevant as are the arguments relating to the reasonableness of a search, for in this case no "search" ever occurred. The bag was sitting in plain and open view on the sidewalk curb where it had been abandoned by defendant, and its seizure by the officers under these circumstances in no way violated any constitutional rights of defendant. People v. Martinez, 257 Cal.App.2d, 270, 64 Cal. Rptr. 666 [1967]; United States v. Clark (W.D.Pa. [1968]), 294 Fed.Supp. 1108." 43 Ill. 2d 325, at 327-28, 253 N.E.2d 429, at 430."
See also, People v. Hoskins, 101 Ill. 2d 209, 78 Ill. Dec. 107, 461 N.E.2d 941, 946, cert. denied, Hoskins v. Illinois, 469 U.S. 840, 105 S. Ct. 142, 83 L. Ed. 2d 81 (1984).
"The great majority of the court decisions having to do with the abandonment of effects in a search and seizure context are similar ... in that it appears the defendant tried to dispose of certain incriminating objects upon the lawful approach of or pursuit by the police. Thus, effects have been held to be abandoned when they were thrown from a car or motorcycle, when they were dropped to the ground by a pedestrian, when they were left behind in a place accessible to the general public, and when they were thrown out of the window of a residence."
W. LaFave, Search and Seizure (2d ed 1987), § 2.6(b) at 466.
"Only if the abandonment had been precipitated by an illegal detention would the property been rendered inadmissible evidence." Gipson v. State, 459 N.E.2d 366, 367 (Ind.1984). "To fall outside of fourth amendment protection, a defendant's abandonment of evidence cannot be the product of unlawful police conduct. United States v. Beck, 602 F.2d 726, 729 (5th Cir.1979)." United States v. Koessel, 706 F.2d 271, 274 (8th Cir.1983). "If, however, property is abandoned without any prior unlawful intrusion into a citizen's right of freedom from governmental interference, then such property may be lawfully seized. In such cases, there is no expectation of privacy and thus no violation of a person's custodial rights." State v. Andrishok, 434 So. 2d 389, 391 (La.1983).
"`If the officer does nothing, or if he simply places the individual under surveillance, in the belief that he may possibly witness some criminal activity, then there will be no issue of unreasonableness.
If, however, the officer, without benefit of probable cause, and acting strictly on a "hunch," or because of suspicion based upon personal knowledge or hearsay, decides to follow the individual, and proceeds to hound him in a harassing manner, hoping that the individual will panic in the belief that he had better "ditch the stuff" before there is a shakedown, then an issue of major constitutional proportions will arise.' Since the individual cannot possibly know in advance how far the officer will go, he has no way of gauging a prudent course. If the officer continues to close in, the individual has to anticipate a search. To do nothing means certain discovery. To attempt a discard is to invite a retrieve, thereby giving the officer probable cause to arrest...
"`There is no meaningful distinction of constitutional significance between unreasonable search and seizure activity, and harassing official conduct outside the legitimate investigative sphere which prompts an individual to reveal what would otherwise be impermissible for the *649 police to seek by means of a search of his person. In short, the police may not do indirectly what is denied to them directly. In either event, they will be engaging in conduct equally unreasonable under the fourth amendment, which, apparently, has been recognized by both the Supreme Court and several lower courts. If a question, an observation, or an act of hearing, can each be considered part of the search process, there seems little reason why the same reasoning may not equally apply to harassing police conduct that seeks to prompt the victim into revealing what would otherwise be the product of an unreasonable search and seizure if conducted by the officer. Therefore, if overbearing conduct outside the realm of legitimate investigation falls beyond the pale of the fourth amendment, any attempt to exploit it by retrieving its fruits for subsequent use in a criminal prosecution should be condemned and suppressed under the same authority.'"
W. LaFave, supra, at 473-74, quoting Mascolo, The Role of Abandonment in the Law of Search and Seizure: An Application of Misdirected Emphasis, 20 Buff.L. Rev. 399, 400-01 (1971) (arguing that police conduct short of a legal arrest and illegal initial detention may still violate the protections of the fourth amendment).
An illegal stop or arrest may be cured when a defendant voluntarily abandons evidence. Swicegood v. State, 448 So. 2d 433, 434 (Ala.Cr.App.1983); United States v. Beck, 602 F.2d 726 (5th Cir.1979). The appellant, in the case sub judice, voluntarily abandoned the bag prior to his arrest or any police misconduct. Thus, the issue of whether the police had probable cause to arrest the appellant is inconsequential.
II
The appellant argues that the trial court erred in considering the State's proof of prior convictions in sentencing him under the Habitual Felony Offender Act. Specifically, the appellant alleges that four of the exhibits used by the State to prove prior convictions did not affirmatively show that the appellant was represented by an attorney or had waived that right and that one of the exhibits did not show that the Richard Carlisle in the conviction was the same Richard Carlisle presently before the judge. He further argues that the latter exhibit was not a proper authentication or certification of the court record. The record indicates that the trial judge noted that the State's exhibits "reflect that the defendant was represented by counsel at arraignment" in the prior case and that the last exhibit "has a transcript of a fairly complete colloquy in regard to the plea of guilty and the fact he was represented by counsel." Furthermore, the exhibits reveal that the appellant's attorney signed as having been present at the appellant's arraignment. The record indicates that the last exhibit fails to contain "a certificate of the judge, chief justice or presiding magistrate that the said attestation is in due form." § 12-21-70, Code of Alabama (1975). Therefore, this case must be remanded for a new sentencing hearing, McBride v. State, 480 So. 2d 619, 620 (Ala.Cr.App.1985), because the appellant was convicted of a Class C felony, which, after three prior felony convictions, has under the Habitual Felony Offender Act, a range of punishment of imprisonment "for life or for any term not more than 99 years, but not less than 15 years." § 13A-5-9(c)(1).
The appellant also claims that he is not the same Richard Carlisle who was the subject of one of the previous indictment. The appellant's argument has been addressed many times by this court.
"Once the State has made proper proof of prior convictions for sentence enhancement purposes, and an objection to that proof is made, the defendant bears the `burden of presenting evidence in support thereof.' Tate v. State, 435 So. 2d 190, 195 (Ala.Cr.App.1983) (citation omitted). At the trial court level, the appellant offered no evidence in support of his claim that the person named in the prior convictions was not one and the same as the appellant in the instant case. As this court has stated, `identity of name raises a presumption of person.' Crawford v. *650 State, 479 So. 2d 1349, 1355 (Ala.Cr.App. 1985) (citations omitted). `There is a prima facie presumption that where two names are identical that those names refer to the same person.' Davis v. State, 457 So. 2d 992, 995 (Ala.Cr.App.1984)."
Smith v. State, 492 So. 2d 638, 642 (Ala.Cr. App.1986).
III
The appellant argues that the trial court erred in denying his motion for acquittal based on the State's alleged failure to show that the appellant had actual or constructive knowledge of the cocaine.
"The three elements which are necessary to prove possession of marijuana are ... `(1) actual or potential physical control, (2) intention to exercise dominion and (3) external manifestations of intent and control.' Franklin v. State, 437 So. 2d 609 (Ala.Crim.App.1983): Jones v. State, 432 So. 2d 5 (Ala.Crim.App.), cert. denied, 432 So. 2d 5 (Ala.1983).
"In addition to these three elements, the State must also prove that the accused had knowledge of the presence of [the controlled substance]. Jones, supra; Roberts v. State, 349 So. 2d 89 (Ala.Crim. App.), cert. denied, 349 So. 2d 94 (Ala. 1977)."
White v. State, 479 So. 2d 1368, 1376 (Ala. Cr.App.1985).
In White, after the police had stopped the car in which the appellant was riding, the appellant was seen throwing a bag out of the car window. A bag containing marijuana was then found in close proximity to the car. This court found:
"The act of the appellant throwing the brown paper bag out of the car window, coupled with surrounding circumstances, was sufficient to prove the appellant's possession of the marijuana and his knowledge of the presence of marijuana in the brown bag in question. The appellant's actions showed his actual physical control of the bag containing marijuana, his intention to exercise dominion of it and an external manifestation of his intent and control. Furthermore, the act of throwing the bag out of the window when the car was stopped by the police tended to show the appellant's guilty conscience. It is obvious that he threw the bag away so that the marijuana would not be found in the car or on his person. "`... [C]ircumstantial evidence sufficient to support a jury finding of guilt [of possession of marijuana] may be found in the accumulation of several relatively insignificant pieces of evidence; or it may be presented in the form of a single highly significant or incriminating event.' Jones, supra, at 7."
Id. at 1377. We find no error in the trial court's denial of the motion for acquittal.
IV
The appellant contends that the trial court erred in denying his motion for mistrial based on "prejudicial statements" made by Sergeant Jerry Drummond. The following transpired during the direct examination of Sergeant Drummond:
"Q: All right. Thank you. Did you conduct any other investigation as part of what took place here behind Whiten's Cleaners?
"A: The pistol that was concerned with it, I checkedran that through the NCIC to see if it was stolen. It came back not stolen. Officer Wilkinson told me
"[Defense counsel]: Your Honor, I object to what Officer Wilkinson told him.
"THE COURT: Sustained.
"A: Okay. I also checked with the State Probation Officer.
"[Defense counsel]: Object, Your Honor.
"THE COURT: State your next question, Mr. Litton."
Thereafter, the defense counsel moved for a mistrial, complaining that the statement referring to the state probation officer "put the idea in the minds of the jury that [the appellant] has been so convicted of some crime." The trial court denied the motion, noting that the witness did not complete his answer and offering to give an instruction to the jury to disregard the statement "in as strong a terms [sic]" as possible. The defense counsel refused the instructions.
*651 Initially, "[t]he trial court will not be put in error for admitting evidence over a general objection unless the matter is clearly inadmissible for any purpose and cannot be made legal by supplying other evidence. Ward v. State, 376 So. 2d 1112 (Ala.Cr. App.), cert. denied, 376 So. 2d 1117 (Ala. 1979)." Woods v. State, 437 So. 2d 636, 638 (Ala.Cr.App.1983). Further, had the trial court instructed the jury to disregard the statement, the prejudicial effect would have been cured. Bradley v. State, 450 So. 2d 173 (Ala.Cr.App.1983); Richardson v. State, 374 So. 2d 433 (Ala.Cr.App.1979). The appellant cannot now complain that he was prejudiced by this statement when the defense counsel refused the trial court's offer to make such an instruction to the jury.
V
The appellant argues that the trial court erred in admitting two of the State's exhibits because one of the State's witnesses could not testify to a certainty that they were in the same condition they were in the last time he had seen them. The record indicates that when the appellant was apprehended, Officer Rubin Wilkinson took the wrapped cocaine into custody and initialed each of the wrappers around the cocaine. He then placed the cocaine in a sealed brown manila envelope. Officer Wilkinson, at trial, was asked to open the sealed envelope and display the wrapped cocaine, which revealed the absence of his initials on the wrappers. However, he stated that he thought that he had written his initials on the wrappers. Wilkinson further testified that after he had sealed the envelopes he placed them in his locker until they were turned over to Sergeant Drummond. Sergeant Drummond testified that he delivered the cocaine to Mary Holt with the Department of Forensic Sciences. Mary Holt testified that she analyzed the substance, resealed it and kept it locked up until Sergeant Drummond returned to retrieve it. Sergeant Drummond testified that when he retrieved the substance, it was in a resealed container, which he kept locked up in the evidence locker at the police department. He testified that no one else had a key to the locker.
The defense counsel, on voir dire examination, questioned Officer Wilkinson concerning his initialing of the wrappers around the cocaine. Officer Wilkinson testified that this was his first occasion of handling "anything like this" since he had been a police officer. He further testified that he thought that he had marked it, but he didn't know "whether the ink has rubbed off or if [he] failed to mark this pack." He further testified that, although the wrapping looked like the one that he had used, he could not be certain that it was the identical cellophane or that it had not been tampered with.
"The purpose of establishing a chain of custody is to show a reasonable probability that there has been no tampering with the item of evidence. Bell v. State, 339 So. 2d 96 (Ala.Crim.App. 1976). In passing upon the admissibility of such evidence, `the trial judge should consider the nature of this article and the circumstances surrounding its preservation and custody,' and permit its introduction where continuity of possession is `sufficiently established to afford ample assurances of ... authenticity. Washington v. State, 339 So. 2d 611, 615 (Ala.Crim. App.), cert. denied, 339 So. 2d 616 (Ala. 1976) (citations omitted)." Oliver v. State, 479 So. 2d 1385, 1390 (Ala. Cr.App.1985). See also Ex parte Williams, 505 So. 2d 1254 (Ala.1987).
"`The evidence need not negate the most remote possibility of substitution, alteration, or tampering with the evidence, but rather must prove to a reasonable probability that the item is the same as, and not substantially different from, the object as it existed at the beginning of the chain.'" Slaughter v. State, 411 So. 2d 819, 822 (Ala. Crim.App.1981). Fleming v. State, 470 So. 2d 1343, 1346 (Ala.Cr.App.1985), Fleming v. Alabama, 474 U.S. 857, 106 S. Ct. 164, 88 L. Ed. 2d 136 (1985).
Officer Wilkinson testified that, aside from his initials, by examination of the contents of the envelope, the State's exhibit was the same substance and same container *652 that he had found in the paper bag taken into custody upon the apprehension of the appellant. Wilkinson had further testified that he immediately placed the substance in the manila envelope, wrote on the envelope, and sealed it with Scotch tape. The envelope which contained the State's exhibits at trial was identified by Wilkinson as the one which he had filled out following the apprehension. Considering Officer Wilkinson's testimony that this was his first time for handling such evidence and that he "believed" that he had marked it, the fact that no initials were found on the wrappings should go to the weight of the evidence, not its admissibility. United States v. Clark, 732 F.2d 1536 (11th Cir.1984). See also Lott v. State, 456 So. 2d 857, 861 (Ala.Cr.App.1984) ("conflicts of testimony concerning the chain of custody go to the credibility rather than the admissibility of the evidence").
VI
The appellant argues that the trial court erred when it permitted the envelope containing the cocaine into evidence because the trial court sustained the defense counsel's objection to the admission of the property log. The appellant submits that this property log was "required to show the chain of custody of the illegal substances allegedly taken." The record indicates that in sustaining the defense counsel's objection to the admission of the property log, the trial court noted that the log was cumulative. The property log showed the transfer of cocaine from Officer Wilkinson to Sergeant Drummond to Mary Holt. Because all three of these witnesses testified, the log would have been cumulative. See, e.g., Brooks v. State, 471 So. 2d 507 (Ala.Cr.App.1984); Lewis v. State, 414 So. 2d 470 (Ala.Cr.App.1982); Gullatt v. State, 409 So. 2d 466 (Ala.Cr.App.1981). Also see the discussion in the previous issue.
JUDGMENT OF CONVICTION AFFIRMED; REMANDED FOR NEW SENTENCE HEARING.
All the Judges concur.
On Return to Remand
McMILLAN, Judge.
This case was remanded to the trial court for a resentencing hearing, which was held on January 5, 1988. The trial court sentenced the appellant to a term of 15 years and ordered that he be given credit for all of the actual time spent incarcerated in the Jefferson County Jail awaiting trial, unless he was serving time for another offense. A corrected transcript was submitted to the Alabama Department of Corrections. The trial court's action in resentencing the appellant is due to be affirmed.
OPINION EXTENDED; AFFIRMED.
All Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610905/ | 15 Mich. App. 484 (1969)
166 N.W.2d 618
PEOPLE
v.
GAY
Docket No. 4,225.
Michigan Court of Appeals.
Decided January 27, 1969.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Walter Gibbs, Assistant Prosecuting Attorney, for the people.
Sydney L. Ruby, for defendant on appeal.
PER CURIAM:
On April 17, 1967, defendant was found guilty by a jury of having committed rape. CLS 1961, § 750.520 (Stat Ann 1954 Rev § 28.788).
On appeal defendant contends that reversible error occurred during the course of the trial in the following particulars: (1) there was no testimony presented to establish that an act of sexual intercourse occurred; (2) the testimony of a child of kindergarten age, who was not the victim, was admitted without a sufficient foundation being laid for its admission; (3) a witness was permitted to testify to statements which should have been excluded under the hearsay rule; and (4) the prosecutor allegedly commented on the failure of the defendant to take the stand.
(1) The 8-year-old victim testified that she went into an alley with defendant who pulled her panties down, put her on the ground, got on top of her, "put something in me" and "made me bleed." A doctor testified that he examined the complainant and conducted a smear test of substance found on her external *486 genitalia which established that sperm was present.
In a rape case, penetration, however slight, is sufficient to establish that element of the offense. People v. Scouten (1902), 130 Mich. 620. There was sufficient testimony presented by the prosecution to allow the jury to pass on this factual issue.
(2) The court examined the child witness of kindergarten age and made a determination that she could testify as a witness, notwithstanding the fact that she advised the judge that she did not know the meaning of the term "to tell the truth." From listening to all of the little girl's answers, the trial court ascertained to its own satisfaction that she would, in fact, tell the truth. CLS 1961, § 600.2163 (Stat Ann 1962 Rev § 27A.2163). Our examination of her entire testimony discloses that she knew the complainant and could recall seeing her in the alley on the date in question. Additionally, she testified that she did not see anyone with the complainant other than the complainant's little sister. Assuming arguendo that the little girl should not have been permitted to testify, we find no prejudicial error in the admission of such testimony, which consisted largely of a reemphasis of nonprejudicial testimony already in evidence.
(3) Defendant, through counsel, did not object to this testimony and first alleges error in its admission before this Court. The failure to object to the testimony, absent some unusual and compelling reason, precludes us from considering such alleged error. People v. Dorrikas (1958), 354 Mich. 303; People v. Lewis (1967), 6 Mich. App. 447.
(4) The last assignment of error pertains to the cross-examination of the policewoman in charge of the case who talked with defendant. Defense counsel asked the policewoman what she and defendant discussed *487 and the prosecutor objected on the basis that unless it was established that defendant was apprised of certain constitutional rights such statement was inadmissible. He additionally stated: "I will object further that the best evidence as to what the defendant told this policewoman is the defendant himself. Counsel is trying to get before the jury statements of the defendant." The court then said: "Well, don't make that statement." After this admonition by the court, the jury was immediately excused. Defense counsel then stated that he had wanted to get before the jury the fact that defendant denied his guilt.
Again, we note no objections in the record to the statement of the prosecutor. Subsequently, defendant did take the stand to avail himself of the right to testify and his testimony that he denied his guilt to the officer remained undisputed. While we believe the phraseology used by the prosecutor could best be expressed in different language, we do not believe that it caused reversible error. Unlike the factual situation in Griffin v. California (1965), 380 U.S. 609 (85 S. Ct. 1229, 14 L. Ed. 2d 106), in the instant case defense counsel was attempting to offer defendant's conversation while denying the prosecution its right of cross-examination.
Affirmed.
J.H. GILLIS, P.J., and R.B. BURNS and KELLEY, JJ., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/14023/ | 134 F.3d 714
UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant,v.Donald L. BECKNER, Defendant-Appellant-Cross-Appellee.
No. 97-30285.
United States Court of Appeals,Fifth Circuit.
Feb. 2, 1998.
Richard B. Launey, Baton Rouge, LA, for U.S.
John R. Martzell, Scott R. Bickford, Regina O. Matthews, Martzell & Thomas, New Orleans, LA, for Beckner.
Appeal from the United States District Court for the Middle District of Louisiana.
Before WISDOM, HIGGINBOTHAM and STEWART, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
1
The government here urges that a former United States Attorney, engaged to defend an SEC proceeding, joined his client's criminal enterprise. A jury convicted the attorney, Donald L. Beckner, for aiding and abetting his client's fraud. Beckner contends to us that the evidence was insufficient to demonstrate that he knowingly participated in any crime. We agree and reverse.
I.
2
In 1990, Sam Recile and his companion, V. Rae Phillips, began raising capital for Place Vendome, a shopping mall project in Baton Rouge, Louisiana. In 1991, Recile retained Donald Beckner to assist him in the Place Vendome project. At the time Beckner, a former United States Attorney for the Middle District of Louisiana, was a prominent and well-regarded lawyer in private practice in Baton Rouge. The initial engagement was narrow: Beckner was to handle some problems Recile was having with the press.
3
However, in April 1991, the SEC initiated an enforcement proceeding against Recile, Phillips, and various related corporate entities. The SEC alleged that Recile was guilty of securities fraud in issuing mortgage notes from the Hannover Corporation of America, the "Hannover notes," to acquire capital for Place Vendome. According to the SEC, in distributing the notes, Recile lied to investors and provided them with worthless security. Recile engaged Beckner as his trial counsel in the SEC enforcement action. On April 12, 1991, a temporary restraining order was issued, enjoining Recile from soliciting funds for Place Vendome. Judge Livaudais of the Eastern District of Louisiana later modified the order to permit Recile to continue to develop the project, so long as he used only his own assets as security. On April 30, 1991, by consent, this court directive was continued as a Preliminary Injunction, and the district court appointed a Special Master to perform an accounting of the funds that Recile had raised to date.
4
The fact is that Recile was in trouble with the SEC when Beckner arrived on the scene. Nor was he the first lawyer there. Recile employed a variety of "in-house" attorneys who provided him with day-to-day assistance in commercial transactions. Recile was also represented by lawyers in major law firms in Atlanta and Washington, D.C., specializing in securities law.
5
Beckner was trial counsel. He was not a confidant or everyday advisor to Recile. Specifically, Beckner disclaimed sophistication in matters of corporate finance and the intricacies of securities regulation, asking Recile to obtain that assistance from others. Aware of his own limitations, Beckner routinely sought guidance from the Atlanta and Washington lawyers on technical securities matters. It is also important to keep in mind that the gaps in Beckner's experience, that he disclosed, were not bridged by his two young associates, Glenn Constantino and Henry Olinde. They were newly minted lawyers with virtually no legal experience. As we will see, the two associates proved to be a major source of Beckner's difficulty as it was these two lawyers who cast suspicion upon their boss.
6
In July 1991, Constantino and Olinde became concerned about certain of Recile's financing practices. Recile had an interest in an office building and residence "compound" called Redwood Raevine. He employed "collateral mortgages" on Redwood Raevine as security for Place Vendome investors, pledging his interest in the property to back the Place Vendome notes. Constantino and Olinde, however, learned from an outside lawyer, Michael Uter, that there were problems with the collateral mortgages. According to Uter, the mortgages were not recorded, they had been pledged to multiple investors simultaneously, and they lacked sufficient equity to secure their obligations. In early July 1991, Constantino and Olinde told Beckner about these complications. Following this meeting, Beckner's firm recorded the mortgages. It also drafted a Joint Collateral Pledge Agreement to rectify the multiple-pledgee problem. When Beckner turned to the sufficiency of the equity, he learned of an MAI appraisal, valuing Redwood Raevine at $2.5 million. By August 1991, Beckner had obtained a list of investors from Recile, indicating that Recile had only pledged $1.8 million against the property, well below the $2.5 million appraisal. This information eased Beckner's concerns about the property's equity.
7
In the meanwhile, Beckner moved on another front. He began to push his client. On June 23, 1991, Beckner expressed concern in a letter to Recile that a court might construe the notes Recile issued to borrow money to be a sale of a security, prohibited by the Preliminary Injunction. On July 10, 1991, Beckner wrote Recile a second letter. In this letter, Beckner specially instructed Recile to stop issuing "double-your-money-back" notes, notes that would almost certainly be considered securities, even if secured by mortgages on real property. This time, Beckner backed his instruction by threatening to withdraw from his representation of Recile if Recile did not cease this fundraising tactic. During this time when Beckner was increasing his demands upon Recile for lawful conduct, the SEC requested appointment of a receiver.
8
On July 16, 1991, Beckner filed a memorandum in the SEC litigation in opposition to the appointment of a receiver over Place Vendome. In the memorandum, Beckner argued that the securities laws did not apply to Recile's practice of issuing notes secured by mortgages, thus depriving the SEC of jurisdiction. Beckner cited the fourth prong of a test for "securities" laid out by the Supreme Court in Reves v. Ernst & Young, 494 U.S. 56, 110 S. Ct. 945, 108 L. Ed. 2d 47 (1990). In Reves, the Court stated that one criterion for determining whether an instrument is a security is whether there exists "another regulatory scheme significantly reduc[ing] the risk of the instrument, thereby rendering application of the Securities Acts unnecessary." Id. at 67, 110 S.Ct. at 952. Beckner argued in the opposition memorandum that "Louisiana law provides protection to parties involved in similar transactions (notes secured by mortgages). There is, thus, a body of law that significantly reduces the notes' attendant risks."
9
By August 1991 when Beckner acquired a list of the investors in the Place Vendome project, concerns raised by Constantino and Olinde had been met. Nonetheless, Constantino asked Beckner if he could approach the investors on the list and ask them what representations had been made to them by Recile. Beckner instructed Constantino not to do so.
10
In April 1992, Beckner responded to discovery requests made by the Special Master in the SEC litigation. Although he produced a variety of documents, Beckner filed objections to many of the requests, claiming that they exceeded the scope of the Special Master's authority. Beckner declined to produce other documents on the basis of his clients' Fifth Amendment privilege against self-incrimination. The Special Master never responded with motions to compel.
11
After the document production, events moved rapidly toward Beckner's withdrawal. The SEC complained that several important investors' files were missing. Beckner communicated this fact to Recile, who reacted by removing Beckner from supervision of the SEC litigation. Following a subsequent document production on June 4, 1992, the Special Master wrote to Beckner to confirm his understanding that all investor files had then been produced. At the same time, another event was unfolding that accelerated Beckner's eroding confidence in his client--the news reports regarding the Assignment of Proceeds.
12
The collateral mortgages on Redwood Raevine were not the only devices used by Recile to attract investors to Place Vendome. Later, Recile also began using an "Assignment of Proceeds" as a form of security for Place Vendome investors. The Assignment represented that the Place Vendome Corporation had obtained a $300 million loan, and it granted its holders a portion of the proceeds of that loan as security for their investment. In mid-1992, Recile gave Beckner a variety of documents, including sample notes backed by various incarnations of the Assignments of Proceeds. In early June 1992, a reporter contacted Recile to obtain information for a story he was writing about the Place Vendome financing. Recile asked Beckner to help him frame a statement on his behalf for the reporter. Recile's secretary transcribed Beckner's response. According to her written transcription, Beckner stated to Recile that the Hannover notes were not securities and Recile had not violated the Securities Act of 1933 in issuing them. On June 5, 1992, the reporter's story appeared in the newspaper and quoted Beckner as saying that notes secured by the Assignment of Proceeds were not securities and were legally proper. According to every witness of the conversation and the secretary's transcription of Beckner's statement, Beckner had said no such thing. Following the publication of the newspaper article, Beckner promptly wrote a letter to Recile, complaining that he had been misquoted. Beckner stated in the letter that he had meant to defend only the Hannover notes, not any notes backed by an Assignment of Proceeds.
13
On June 16, 1992, the SEC filed a motion for summary judgment in its enforcement action, including allegations that documents had not been produced. Beckner apparently had enough and on June 22, 1992, he wrote to Recile to withdraw from his representation. This letter was the culmination of a series of written exchanges between Beckner and Recile, in which Beckner threatened to terminate his representation unless Recile reformed his business practices.
14
Unfortunately for his investors, Recile's fundraising tactics, although facially in compliance with the Preliminary Injunction, were in fact fraudulent. Recile had little equity in the Redwood Raevine property that he was employing as security, and what equity he did possess was pledged to multiple investors simultaneously. Moreover, Recile never obtained the $300 million loan that supposedly backed the Assignment of Proceeds. Recile's investors lost approximately $6 million to his scheme. Both Recile and Phillips eventually pleaded guilty to separate indictments stemming from their involvement in the Place Vendome project.
15
During a resulting grand jury investigation and a few months after Beckner withdrew from Recile's representation, Constantino and Olinde became apprehensive over their possible implication in wrongdoing and consulted a local criminal lawyer. They then contacted the FBI and the local U.S. Attorney's office. The young lawyers claimed that Beckner had been intentionally withholding critical documents from the grand jury investigating Recile. Constantino and Olinde's allegations regarding these documents at trial were shown to be based on highly dubious circumstances. Olinde alleged that he spotted timesheets relevant to the grand jury investigation in Beckner's trash can while working in Beckner's office one Sunday morning. Yet Olinde had no reason to be in the office that day; Beckner's trash can was typically positioned in a place outside of Olinde's view; Olinde changed his story about the exact day he stumbled across the timesheets; and Olinde's and Constantino's, but not Beckner's, fingerprints appeared on the timesheets, in a way suggesting that the two had crumpled the papers themselves. The jury ultimately acquitted Beckner of obstructing justice and perjury before the grand jury, but the damage at the grand jury stage was done. In July 1993, a grand jury returned an indictment against Beckner, accusing him both of withholding documents from the government and directly aiding and abetting Recile's fraud. Despite the number of attorneys representing Recile, Beckner was the only lawyer indicted for participating in the Place Vendome project.
II.
16
The indictment charged Beckner with four counts of aiding and abetting wire fraud, one count of obstruction of justice, and one count of perjury. The aiding and abetting counts were based on four factual predicates: 1) That, to conceal Recile's fraud, Beckner made a misrepresentation about the Place Vendome notes in his memorandum opposing the appointment of a receiver; 2) that Beckner prevented his associates from informing investors about Recile's fraud; 3) that Beckner hindered the production of documents to the SEC to prevent the appointment of a receiver and perpetuate the fraud; and 4) that Beckner misrepresented in the newspaper article that the Assignment of Proceeds was legally proper, again to prolong the fraud.1 The obstruction of justice and perjury charges were premised on Beckner's alleged withholding of information from the grand jury.
17
The case first went to trial in February 1994, but the jury deadlocked, and the court declared a mistrial. At his second trial in July 1994, Beckner was convicted on the wire fraud and perjury counts, but acquitted on the obstruction of justice charge. However, after finding that the trial judge mishandled the issue of pretrial publicity during voir dire, we overturned Beckner's convictions. See United States v. Beckner, 69 F.3d 1290 (5th Cir.1995). In August 1996, Beckner went on trial for a third time and was convicted on the aiding and abetting counts alone.
18
Beckner timely appealed from the judgment entered following the third trial, arguing that the evidence was insufficient to support his conviction and that the district court ordered an excessive amount of restitution. The government, on the other hand, cross-appealed, challenging the downward departure from the Guidelines taken by the district court in calculating Beckner's sentence.
III.
19
In attacking his conviction on sufficiency of the evidence grounds, Beckner faces a heavy burden. Our review of the sufficiency of the evidence supporting a conviction requires us to determine whether a reasonable jury could find that the evidence establishes the guilt of the defendant beyond a reasonable doubt. See United States v. Pennington, 20 F.3d 593, 597 (5th Cir.1994). In doing so, we review the evidence in the light most favorable to the government, drawing all reasonable inferences in favor of the prosecution. See id. Moreover, when an indictment charges several acts in the conjunctive, the verdict must stand if the evidence is sufficient with respect to any one of the acts charged. See Turner v. United States, 396 U.S. 398, 420, 90 S. Ct. 642, 654, 24 L. Ed. 2d 610 (1970). Thus, if we find that the evidence is adequate on any one of the four predicate acts underlying Beckner's aiding and abetting counts, his appeal must fail.
20
Although Beckner must defeat each of the four separate allegations in the indictment, one factual issue dominates this appeal: whether Beckner had knowledge of Recile's fraud. In charging Beckner with aiding and abetting Recile's crimes, the prosecution had to show that Beckner acted with criminal intent. See United States v. Murray, 988 F.2d 518, 522 (5th Cir.1993) ("The essence of aiding and abetting is a 'community of unlawful intent' between the aided and abettor and the principal. Although the aider and abettor need not know the means by which the crime will be carried out, he must share in the requisite intent.") (citations omitted). Whether Beckner possessed such intent depends upon whether he had knowledge of ongoing criminal activity engaged in by Recile while Beckner represented him. If he possessed such knowledge, then Beckner's legal efforts on behalf of his client can reasonably be interpreted as an attempt to aid and abet Recile's fraud. On the other hand, if Beckner lacked knowledge of Recile's criminal activities, then Beckner did nothing more than discharge properly his duties as an attorney, even if his legal services may have unwittingly assisted Recile in his misconduct.2
21
We find that the government offered insufficient evidence to demonstrate Beckner's knowledge of Recile's fraud. The government presented no direct proof of Beckner's knowledge. Instead, it relied on circumstantial evidence. Of course, the government may prove a guilty mind circumstantially; oftentimes it is impossible to demonstrate knowledge in any other way. "But the use of circumstantial evidence does not relieve the government of its burden of establishing [elements of an offense] 'beyond a mere likelihood or probability,' or by more than mere speculation." United States v. Massey, 827 F.2d 995, 999 (5th Cir.1987) (citations omitted). We conclude that the circumstantial evidence here did not permit the jury to draw a reasonable inference of guilty knowledge; rather, the government's evidence invited only speculation and conjecture.
22
Beckner's July 1991 confrontation with his associates Olinde and Constantino regarding the collateral mortgages is central to the prosecution's efforts to pin knowledge on Beckner. The government contends that Constantino and Olinde gave Beckner information that would lead a reasonable person to believe that fraud was occurring. We disagree. Constantino and Olinde repeated to Beckner the opinion of Uter that Recile lacked sufficient equity in Redwood Raevine to cover the multiple security obligations on the property. According to the government's view of the evidence, Uter's statement gave Beckner knowledge of Recile's fraud. Yet there was uncontradicted testimony at trial that shortly after his confrontation with Olinde and Constantino, Beckner received an MAI appraisal valuing Redwood Raevine at $2.5 million. Recile's lawyers told Beckner that Recile's debt on the property amounted only to about $300,000. Nothing suggests the unreasonableness of Beckner's belief that Recile had over $2 million in equity in Redwood Raevine. Moreover, a few weeks after receiving the MAI appraisal, Beckner obtained an investor's list from Recile, indicating that Recile had pledged Redwood Raevine to secure a total of just $1.8 million in notes.
23
In the end, these rosy financial pictures proved to be incorrect; Recile in fact had little equity in the Redwood Raevine property. The only evidence the government offered to establish Beckner's knowledge of this fact, however, was Uter's professed concerns about Recile's equity, relayed to Beckner by Constantino and Olinde. Yet Beckner responded. He inquired and obtained hard financial data contradicting Uter's opinion. The government produced no evidence demonstrating that Beckner should have disbelieved this data; accordingly, a jury could not reasonably infer Beckner's criminal knowledge from this evidence alone.
24
The other evidence offered by the government to prove Beckner's knowledge of Recile's crimes, however, was even flimsier. The government contends that Beckner's July 10 letter to Recile evinces Beckner's awareness of Recile's crimes, as it instructs Recile to stop his fundraising practices. Yet the letter only advises Recile to cease issuing "double-your-money-back" notes, as doing so would violate the terms of the Preliminary Injunction. The letter in no way acknowledges that Recile's other fundraising activities were somehow fraudulent. The government also posits that Beckner's receipt of his legal fees directly from the funds of investors reveals his knowledge of the fraud. While it may be unconventional to receive fees in this manner, we fail to understand how Beckner's payment from the investors' funds can in any way establish knowledge of Recile fraud.
25
Lastly, the government argues that Beckner knew of the fraud because he lied to an FBI agent assigned to the case, telling her that he had nothing to do with the Redwood Raevine mortgages. Beckner played no role in drafting and issuing the Redwood Raevine mortgages; he only defended their propriety to the SEC post hoc. Perhaps Beckner should have explained that he was defending an SEC proceeding in which the Redwood Raevine mortgage notes were in play, but the rub for the government is that Beckner could not have been denying this connection to the mortgages. Long before the FBI interview, the government was well aware that Beckner was defense counsel in the Place Vendome SEC action.
26
In short, the government failed to produce evidence establishing that Beckner was aware Recile was engaged in a fraudulent activity and knowingly worked to further it. The jury was left in considering Beckner's criminal intent with little more than his status as Recile's lawyer. That Recile closely controlled the flow of information to Beckner and routinely lied to him was uncontradicted in the evidence. The jury was essentially asked to assume that as Recile's lawyer, Beckner must have had knowledge that Recile was cheating. With the paucity of evidence of knowledge, the deliberate blindness instruction that the trial court gave to the jury only fuels speculation. For an attorney to be convicted for aiding and abetting a client's fraud, that attorney must have had actual knowledge of the fraud and must have taken an active role in advancing the wrongdoing. Cf. United States v. Connery, 867 F.2d 929 (6th Cir.1989) (holding an attorney criminally liable when he intimately and knowingly participated in his client's filing of a false bankruptcy claim); United States v. Vaughn, 797 F.2d 1485 (9th Cir.1986) (upholding conviction of an attorney who prepared documents to obtain an airplane for his clients, knowing that they intended to use it to import narcotics); United States v. Enstam, 622 F.2d 857 (5th Cir.1980) (upholding conviction of an attorney for helping his client to establish a dummy corporation, knowing that it would be used to conceal drug income from the I.R.S.), cert. denied, 450 U.S. 912, 101 S. Ct. 1351, 67 L. Ed. 2d 336 (1981). Of course, where an attorney has an intimate association with his client's activities, a jury may reasonably infer that the attorney had knowledge of their illegal nature, even absent direct evidence to that effect. See, e.g., United States v. Brown, 943 F.2d 1246, 1251-52 (10th Cir.1991) (permitting inference of criminal knowledge where an attorney was heavily involved in client's embezzlement scheme); United States v. Serrano, 870 F.2d 1, 11 (1st Cir.1989) (inferring criminal knowledge where an attorney "had his foot in all the elements of the transactions that led to the fraud[ ]"); Wallace v. United States, 281 F.2d 656, 659-60 (4th Cir.1960) (inferring knowledge of client's tax fraud where an attorney could not possibly have performed his job without having investigated his client's books).
27
This situation is different. Beckner was Recile's outside trial counsel--his stand-up lawyer. Recile tightly restricted the flow of information to Beckner, Beckner had nothing to do with drafting and issuing the fraudulent notes, Beckner undertook his representation of Recile only after the SEC began investigating Recile's activities with able securities lawyers at his elbow, and Beckner took reasonable steps to correct the problems that he discovered in Recile's financing. The jury could conclude that Recile was committing a crime, but it could not reasonably conclude that Beckner knew about it. Beckner's representation of Recile only unwittingly, but not knowingly, promoted Recile's fraud. To convict Beckner on this basis is to make him a criminal for being a lawyer.
28
Without evidence of Beckner's guilty knowledge, the indictment crumbles. The predicate acts charged in the indictment amount to nothing more than routine legal services. First, the indictment alleged that Beckner was deceptive in arguing in the memorandum opposing the appointment of a receiver that Louisiana law protected investors who received the Hannover notes. Yet Beckner's argument in the SEC litigation was nothing more than a correct statement of the law, asserted to defend what Beckner believed to be his client's legitimate interests.
29
Second, the indictment accused Beckner of failing to contact investors once he learned of the problems with the collateral mortgage instruments, thereby contributing to the deception of the investors by Recile. Yet under the evidence, Beckner acted promptly to correct all problems with the mortgages of which he had knowledge. If Beckner had no knowledge of a crime, his ethical obligations as an attorney required him not to inform third parties about information relating to the representation of his client. See Rule 1.6 of the Rules of Professional Conduct for Louisiana. This cannot be turned over to a contention that not making the contact is evidence that Beckner had the requisite knowledge.
30
Third, the government alleged that Beckner hindered the production of documents to the SEC during discovery, thus prolonging the fraud. Again, without knowledge of the fraud, Beckner's objections to discovery requests amounted only to zealous advocacy, not criminal conduct. Although the SEC at one point complained that Recile had not turned over all of the requested, non-privileged information, the fault for that omission lies with Recile himself, not with Beckner.
31
Finally, the government charged that Beckner represented to others, through the newspaper article, that the notes backed by the Assignment of Proceeds were legally proper. As we have detailed, the evidence was overwhelming that Beckner was misquoted by Recile's office or by the newspaper. According to the evidence, Beckner referred only to the Hannover notes, which he had no reason to believe were fraudulent. And that misquote was part of the cascading events leading to Beckner's withdrawal.
32
Attorneys are not outside the normal reach of the criminal law. See United States v. Cavin, 39 F.3d 1299, 1308 (5th Cir.1994) ("At attorney is not above the law; like everyone else, he may not assist in the perpetration of a criminal offense."). That said, lawyers at the least are due its protection. The government did not prove that Beckner had knowledge of criminal wrongdoing. Beckner was hired to be Recile's trial lawyer, and in representing Recile he did what trial counsel is supposed to do. Without more substantial evidence of Beckner's criminal intent, we cannot agree that Beckner was a corrupt attorney, complicit in his client's crimes. A reasonable juror could not find the requisite intent on this evidence without speculating. Beckner may have exercised poor judgment and he may have been overly combative in fighting the SEC proceedings. But it is a large step from there to joining a criminal conspiracy.
IV.
33
Finding that the government offered insufficient evidence of Beckner's guilt, we REVERSE his conviction. We do not reach the sentencing issues presented by the appeal and cross-appeal.
34
REVERSED.
1
Specifically, the indictment alleged:
Beckner's aiding and abetting of the scheme and artifice included the following acts:
a) BECKNER falsely represented to others that Louisiana law provided protection to lenders holding notes and mortgages which had been provided to them by promoters of Place Vendome. In fact, Beckner knew of deficiencies in the mortgage documents and material omissions of fact in representations to lenders to whom these mortgages were being given to secure the loans. Because of the knowledge BECKNER had, his representations were knowingly deceptive.
b) BECKNER instructed an attorney in his employ not to contact persons who were lending money to Place Vendome's promoters. By Beckner's doing so, such persons were not informed of the true nature of their loan transactions. This conduct on Beckner's part caused victims of the ongoing scheme and artifice not to receive disclosures that could have prevented the deception.
c) BECKNER hindered the production of documents in a federal civil proceedings to determine whether the Place Vendome project should be placed under the control of a court-appointed Receiver. BECKNER knew that production of these records would have revealed a pattern of deception in the offering of collateral by Place Vendome's promoters.
d) BECKNER represented to others that notes secured by an "Assignment Of Proceeds" were legally proper. In fact, Beckner knew that the "$300,000,000.00 Collateral Mortgage Loan" referenced in the Assignment Of Proceeds had not been obtained. Because of the knowledge BECKNER had, his representations were knowingly deceptive.
2
In representing Recile in the SEC enforcement action, Beckner was of course aware that the SEC disapproved of some of Recile's fundraising activities. The Preliminary Injunction, however, permitted Recile to continue to seek financing for Place Vendome, so long as that financing was secured by Recile's own assets. Thus, Beckner's awareness that Recile was continuing to issue notes backed by his Redwood Raevine property does not in and of itself support an inference that Beckner knew that Recile was engaging in fraud | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1611121/ | 11 So.3d 951 (2009)
PATOUT
v.
STATE.
No. 2D09-2258.
District Court of Appeal of Florida, Second District.
June 17, 2009.
Decision without published opinion Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/95742/ | 187 U.S. 419 (1903)
WESTERN UNION TELEGRAPH COMPANY
v.
BOROUGH OF NEW HOPE.
No. 101.
Supreme Court of United States.
Argued December 2, 3, 1902.
Decided January 5, 1903.
ERROR TO THE SUPERIOR COURT OF THE STATE OF PENNSYLVANIA.
*421 Mr. Silas W. Pettit, for plaintiff in error, with whom Mr. H.B. Gill, Mr. Robert M. Yardley, Mr. George H. Fearons and Messrs. Brown & Wells were on the brief.
Mr. William C. Ryan, for defendant in error.
*424 MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.
It is conceded that the borough had the right in the exercise *425 of its police power to impose a reasonable license fee upon telegraph poles and wires within its limits, and that an ordinance imposing such fee is to be taken as prima facie reasonable. But it is insisted that on the evidence in this case the presumption of reasonableness is rebutted, and that the ordinance as administered is void because a regulation of interstate commerce. While in the exercise of its control over its streets, it is admitted that the borough may supervise the location of the poles erected to sustain the wires of the plaintiff in error, may require them to be marked, may make such inspection of them as may be necessary to protect the public welfare, and may impose a reasonable license fee for the cost of such regulation and supervision, and of the issuing of such permits as may be required for the enforcement thereof, yet it is contended that if the license fee turned out to be in excess of the amount necessary to reimburse the municipality the ordinance became unreasonable and invalid. The Superior Court in its opinion referred to many decisions of the Supreme Court of Pennsylvania as definitively establishing, among other propositions, "that in an action to recover the license fee for a particular year, the same being payable at the beginning of the year, the fact that the borough or city did not expend money for inspection, supervision, or police surveillance of the poles and wires in that year is not a defence," and "that the courts will not declare such ordinance void because of the alleged unreasonableness of the fee charged, unless the unreasonableness be so clearly apparent as to demonstrate an abuse of discretion on the part of the municipal authorities." And it was said that in many of the cases cited the license fee was the same as that imposed by this ordinance. 16 Superior Ct. Rep. 309. The Supreme Court affirmed the judgment in a similar case on the opinion given below in this. 202 Pa. St. 532.
In Chester City v. Telegraph Company, 154 Pa. St. 464, in which it was averred in the affidavit of defence that the rates charged were at least five times the amount of the expense involved in the supervision exercised by the municipality, the Supreme Court said: "For the purposes of this case we must treat this averment as true, as far as it goes. The difficulty is it does not go far enough. It refers only to the usual, ordinary *426 or necessary expense of municipal officers, of issuing licenses and other expenses thereby imposed upon the municipality. It makes no reference to the liability imposed upon the city by the erection of telegraph poles. It is the duty of the city to see that the poles are safe, and properly maintained, and should a citizen be injured in person or property by reason of a neglect of such duty, an action might lie against the city for the consequences of such neglect. It is a mistake therefore to measure the reasonableness of the charge by the amount actually expended by the city for a particular year, to the particular purposes specified in the affidavit."
In Taylor Borough v. Telegraph Company, 202 Pa. St. 583, the Supreme Court said: "Clearly the reasonableness of the fee is not to be measured by the value of the poles and wires or of the land occupied, nor by the profits of the business. The elements which enter into the charge are the necessary or probable expense incident to the issuing of the license and the probable expense of such inspection, regulation and police surveillance as municipal authorities may lawfully give to the erection and maintenance of the poles and wires. . . . Whether or not the fee is so obviously excessive as to lead irresistibly to the conclusion that it is exacted as a return for the use of the streets, or is imposed for revenue purposes, is a question for the courts and is to be determined upon a view of the facts, not upon evidence consisting of the opinions of witnesses as to the proper supervision that the municipal authorities might properly exercise and the expense of the same." And see City of Philadelphia v. Western Union Telegraph Company, 89 Fed. Rep. 454.
Concurring in these views in general, we think it would be going much too far for us to decide that the test set up by the plaintiff in error must be necessarily applied, and the ordinance held void because of failure to meet it. As the Supreme Court pointed out, the elements entering into the charge are various, and the Court of Common Pleas, the Superior Court, and the Supreme Court of Pennsylvania have held it to be reasonable, and we cannot say that their conclusion is so manifestly wrong as to justify our interposition.
*427 This license fee was not a tax on the property of the company, or on its transmission of messages, or on its receipts from such transmission, or on its occupation or business, but was a charge in the enforcement of local governmental supervision, and as such not in itself obnoxious to the clause of the Constitution relied on. St. Louis v. Telegraph Company, 148 U.S. 92; 149 U.S. 465.
Judgment affirmed.
MR. JUSTICE WHITE, MR. JUSTICE PECKHAM and MR. JUSTICE McKENNA dissented. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1611102/ | 15 Mich. App. 404 (1968)
166 N.W.2d 479
PEOPLE
v.
RAETZ
Docket Nos. 4,385, 4,386.
Michigan Court of Appeals.
Decided December 31, 1968.
*405 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James T. Corden, Prosecuting Attorney, and Ronald J. Flanigan, Assistant Prosecuting Attorney, for the people.
Richard S. Weber, for defendants on appeal.
PER CURIAM:
Defendants were charged with and convicted of breaking and entering an unoccupied dwelling house, CL 1948, § 750.110 as amended by PA 1964, No 133 (Stat Ann 1968 Cum Supp § 28.305).
The homeowner testified that in his absence a fastened window had been forced open, his house entered and ransacked, and certain items taken. The people's chief witness, Barbara Groh, testified that she and defendants travelled by car to complainant's house, that she waited while they went to the rear of the house, and that defendants later returned to the car with the items described as missing by the homeowner. This testimony, if believed, establishes the fact of a breaking and entering as well as the fact of defendants' possession of the stolen articles. From these facts the jury could find that defendants had forcibly entered the house with intent to commit a felony. See People v. Eaves (1966), 4 Mich App 457. Intent may be inferred from the acts found to have been perpetrated; People v. Lambo (1967), 8 Mich App 320. Guilt may be established through circumstantial evidence; People v. Sobczak (1955), 344 Mich 465. Defendants' claims of error on these grounds are without merit. In view of Barbara Groh's testimony the court did not err in failing to direct a verdict, as the question of defendants' guilt or innocence was one for the jury.
Defendants were provided and exercised two opportunities to cross-examine witness Groh. After *406 the people rested, defense counsel asked that Barbara Groh be recalled for additional cross-examination. The court's denial of this request was not an abuse of discretion under these circumstances.
At the same time, we find no error in the court's instructions to the jury. There was no evidence of a lesser included offense, no request by defendants regarding the instructions, and no objection to the charge as given. See People v. Stevens (1968), 9 Mich App 531.
Prior to and during the course of this proceeding, defendants had requested and were denied production of the transcript of an unrelated case involving these same defendants. It was their position that in that prior, unrelated case, Barbara Groh had given inconsistent testimony concerning the present incident and that such testimony could impeach her testimony in this case.
On our own motion we directed that the transcript of her testimony in the prior case be made a part of this record on appeal. We have carefully reviewed it and find no testimony inconsistent with her testimony herein.
Affirmed.
T.G. KAVANAGH, P.J., and McGREGOR and PHILIP C. ELLIOTT, JJ., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441749/ | 4 A.3d 193 (2010)
COM.
v.
JONES.
No. 1474 MDA 2009.
Superior Court of Pennsylvania.
May 14, 2010.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610949/ | 11 So. 3d 701 (2009)
STATE of Louisiana
v.
Connor L. WOOD.
No. 08-1511.
Court of Appeal of Louisiana, Third Circuit.
June 3, 2009.
*702 Bradley R. Burget, District Attorney, Vidalia, Louisiana, for State of Louisiana.
W. Jarred Franklin, Louisiana Appellate Project, Bossier City, Louisiana, for Defendant/Appellant Connor L. Wood.
Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, Judges.
SULLIVAN, Judge.
On May 7, 2007, Defendant, Connor L. Wood, was charged by three grand jury indictments with the March 14, 2007 murders of his parents, John and Geraldine Wood, and his alleged co-conspirator, Matthew Whittington. The indictments, which each originally charged Defendant with first degree murder, were amended by the State in March of 2008 to charge Defendant with second degree murder. After a jury trial, Defendant was convicted of the charged offenses and was subsequently sentenced to three consecutive life sentences at hard labor without the benefit of parole, probation, or suspension of sentence.[1]
Defendant appeals, contending that the evidence was insufficient to convict him and that his sentences are excessive. For the following reasons, we affirm.
FACTS
Initial Response to the Scene
David Cobb, an employee in the communications department of the Concordia Parish Sheriff's Office (CPSO), testified that at approximately 2:55 a.m. on March 14, 2007, he received a phone call from Defendant stating that someone had broken into his house at 119 Shady Lane and shot his parents and that he thought his parents were dead. Defendant informed Cobb that he had shot the intruder but that he thought the intruder may still be alive. Cobb contacted the Ferriday Police Department and provided the details to Lieutenant (then Sergeant) John Hawkins and dispatcher Elbert White. When Cobb returned to his phone conversation with Defendant, Defendant told him he had shot the intruder again and that he was dead. The phone call between Defendant and Cobb ended when Hawkins arrived at the scene. The call, which had come in on the regular phone system rather than the 911 system, was not recorded.[2] However, *703 the conversations between Cobb and Hawkins and Cobb and Elbert White were recorded.
Lt. Hawkins testified that he and Lt. Derrick Freeman went to Defendant's residence. When Hawkins arrived at the scene, he saw Defendant walking out from the carport area with a cell phone in his hand. Hawkins described Defendant as "sort of hysterical" upon his arrival. Freeman described Defendant as nervous, "as if he had something on his mind." Defendant told Hawkins that his mother and father were inside the residence and that the intruder "had entered the room and he shot the intruder down in the hallway." At this point, Hawkins placed Defendant in his patrol car for safety reasons because he did not know whether the intruder was dead or alive. Hawkins and Freeman secured the perimeter of the house, and Deputies Phillip Webber, Jack Fletcher, and Edward Lawrence arrived and entered the home.
In compliance with standard policy, Defendant was advised of his rights at the scene. He was then questioned to obtain information regarding his family and persons to contact. Defendant provided Hawkins with the names of his parents, John and "Jerri" Wood, and his friend, Matthew Whittington, who was the "intruder" in the home. Defendant also provided them the name of his brother, Hudson, a student at Louisiana Tech University in Ruston. Defendant was removed from Hawkins' patrol car and turned over to Investigator David Hedrick. Hedrick testified that he arrested Defendant for the murders at 12:40 p.m. on March 14, 2007.
Investigator (then Sergeant) Fletcher testified that, shortly after he arrived on the scene, he approached Defendant and asked what had happened. Fletcher testified that Defendant was acting normal. Defendant told Fletcher that he heard two shots while he was in his bedroom. He went and retrieved a weapon from under the mattress in his parents' bedroom and then met an intruder in the hall, whom he shot. Defendant said he told the 911 dispatcher that the intruder was still moving around and asked the dispatcher if he could shoot again. Defendant said he shot the intruder again. Defendant told Fletcher that, after he shot the intruder, he went to his father's vehicle to retrieve another weapon.
Evidence Obtained from the Scene and from Subsequent Investigation
While waiting for Deputies Webber and Lawrence to arrive, Fletcher looked in the back door of the residence and saw a person lying in the hallway. Fletcher testified that the back door was open, a window was shattered, and there was glass on the floor inside the residence.[3] There was also a jacket on the ground in front of the door with glass fragments in it. Once Webber and Lawrence arrived, the three entered the house. The person in the hallway was laying face down, with no signs of life. Defendant's mother and father were in their bed with no signs of life. Two Emergency Medical Technicians (EMTs) arrived and confirmed that all three individuals were deceased.
Fletcher asked the EMTs to check Defendant for injuries. Defendant then told Fletcher that he needed to tell him something. Fletcher told Defendant that he needed to secure the residence and that the investigator would be there in a minute, *704 but Defendant blurted out, "Well we had taken the guns out to shoot them last weekend so my fingerprints will be all over the guns in the house." According to Fletcher, at this point, Defendant "seemed normal" and "[w]asn't really upset a whole lot."
When Fletcher returned to the rear door, he realized that only the outer pane of glass was broken. He observed a hammer on the barstool near the glass door and a 9 mm pistol on the bar between the refrigerator and the entrance to the dining room. Lawrence testified that the gun had a round in the chamber and several in the magazine.
Matthew Whittington's body was found in the hallway with empty shell casings (both .22 and .32 caliber) around him.[4] He had neoprene camouflage gloves on his hands. The bodies of John and Geraldine Wood were found in their bed. There were multiple 9 mm casings found throughout the room, with a bullet in the wall behind the headboard of the bed. There was an empty magazine from a 9 mm pistol laying on the floor between the night table and the bed. Fletcher testified that a .22 caliber rifle and a .32 caliber pistol[5] were found on Defendant's bed. Lawrence testified that the .32 caliber pistol still had the magazine in it but was empty and that the .22 caliber rifle had a live round in the chamber and rounds in the magazine.
Captain Frankie Carroll testified that he found a purse and some money on a chair in the kitchen, which indicated to him that a robbery did not occur. According to Carroll, he dusted for fingerprints on the door and in the bar area. The only print that had ridge detail was on the door, but when he lifted it, it had no identifiable ridge detail. Chief Investigator, Bobby Ray Sheppard, testified that an investigator checked other exterior doors and windows and found no sign of entry into the home.
Deputy Lawrence testified that he collected seven .32 caliber casings and two .22 caliber casings laying near Matthew's body and two .32 caliber casings in a nearby bathroom. He collected a total of thirteen 9 mm casings inside Mr. and Mrs. Woods' bedroom. Captain Carroll testified that five bullet fragments were recovered from each of the bodies of Defendant's parents and nine bullet fragments were recovered from Matthew's body. A cell phone and gloves were removed from Matthew's body at the funeral home.
Sheppard and Evans, after initially responding to Defendant's residence, proceeded to the Whittington home where they informed Mr. and Mrs. Whittington that their son had been shot and killed. Mr. Whittington began calling his son's name and attempted to enter into Matthew's bedroom but was unable to do so. The Whittingtons explained that their house was being renovated and that Matthew secured his doors with poles when he went to bed. Mr. Whittington entered his son's room by going outside and raising the window. Once inside Matthew's room, Sheppard observed Matthew's wallet and a leg/knee brace on the top bunk bed. He also saw crutches inside the room. Evans testified that he was informed by the Whittingtons that Matthew had a knee injury and was not supposed to be walking and *705 that he needed the brace and crutches when he was walking.
Sheppard conducted a follow-up investigation six days after the incident occurred. He searched the red Nissan truck that had been parked in the Woods' driveway the night of the incident, which had been subsequently released to Mr. Wood's brother. In the truck, Sheppard found a clip for a.22 caliber weapon, three boxes containing.22 caliber bullets, a case for a 9 mm Jiminez Arms handgun, and a box containing two cartridges of 9 mm ammunition. Other ammunition was found in the center console of the truck, and a Remington pump shotgun was recovered.
Max Jackson, an eleventh grade student at Huntington High School, testified that he was friends with both Defendant and Matthew and that he spent a lot of time at Matthew's house. Max testified that to his knowledge, Matthew was not a hunter, and he never saw any kind of hunting equipment in Matthew's residence. Max testified that he had been deer hunting with Defendant, and he identified the Under Armor camouflage gloves found on Matthew's body as some he had seen Defendant wearing when they went hunting in the 2006-2007 hunting season. Max explained that the gloves are distinctive because they are so thin.
Forensic Evidence
Dr. Karen Ross, an assistant coroner and a forensic pathologist at the Jefferson Parish Coroner's Office, was qualified as an expert in the field of forensic pathology. She testified that Matthew received a gunshot wound to the face from a medium caliber bullet that went through the sinuses and into the base of the skull.[6] The presence of stippling or abrasion marks around the entrance wound indicated that the gun was fired from less than three feet away. On the right side of the back of his head, there were two gunshot wounds made by small caliber bullets. There was also a graze-type wound on the back of the head. There was another wound on the right side of the back made by a medium caliber bullet. The fifth wound examined by Dr. Ross was made by a medium caliber bullet and was in the left side of the back.[7] Wounds four and five were likely made while Matthew was bending over. The sixth wound was in the left upper buttock and was made by a medium caliber bullet. The seventh and eighth wounds were in the right upper buttock and were made by a medium caliber bullet. The ninth wound was below the seventh and eighth wounds that Dr. Ross examined, and it was made with a medium caliber bullet. The path of wounds two through nine traveled back to front. Dr. Ross noted that Matthew had a big bruise on the back of his left leg with an ace bandage around it.
Dr. Ross's examination of Geraldine Wood's body revealed a gunshot wound just below the right eye which exited the left temple. Stippling was found on this wound, indicating firing from one and one-half to three feet. A second entrance wound was located on the right lower jaw. The medium caliber bullet was recovered from the left side of the base of the skull. Scant soot and powder particles were found on this wound, indicating the weapon was fired from perhaps within six inches. The third, fourth, fifth, and sixth wounds examined by Dr. Ross revealed *706 the bullets, which were medium caliber, traveled right to left. Wounds seven and eight were through the right arm and nine and ten were through the left arm. Wounds eleven and twelve were in Mrs. Wood's shoulder. There were also several graze wounds and a couple of lacerations. From the location of the entrance wounds, Dr. Ross opined that Mrs. Wood was lying on her left side "with her back open."
Dr. Ross testified that it is very likely that some of the bullets pierced Mrs. Wood's body and then entered the body of Mr. Wood. The first wound Dr. Ross examined on Mr. Wood was on the right cheek, and the second was on the right side of the neck. The third wound was to the right lower back, and the fourth went from the back of the right shoulder to the front of the body. The second and third wounds examined by Dr. Ross were made by a medium caliber projectile. The fifth wound went through from the back to the front of the right arm and then entered and exited his chest. Wounds six and seven entered the right upper back and were made by a medium caliber projectile. The final wound on Mr. Wood was on the back of his right hand. The cause of death for each of the three victims was multiple gunshot wounds, and the manner of death was homicide.
Firearm and Fingerprint Analysis
Mike Stelly of the North Louisiana Crime Lab was qualified as an expert in the field of firearm and latent fingerprint analysis. He testified that no latent prints of value could be detected on the Jimenez Arms 9 mm pistol, the pistol magazine, the 9 mm cartridges, or a second empty 9 mm magazine. No latent prints could be detected on the thirteen fired 9 mm casings. The empty pistol magazine found in the Woods' bedroom fit into the 9 mm pistol.
Stelly testified that two of the bullets retrieved from the body of Mrs. Wood had positively been fired from the 9 mm Jiminez Arms pistol. Two of the 9 mm bullets were damaged and could not be positively said to have come from the Jiminez Arms pistol, and the final lead fragment retrieved from her body was too badly damaged for identification.
The bullets retrieved from Mr. Wood were also analyzed. Two were determined to have been fired from the 9 mm Jiminez Arms pistol, but two retained insufficient individual markings for a determination that they positively came from that pistol. One item retrieved from Mr. Wood's body was consistent with the weight and diameter of a 9 mm bullet core, but it could not be said to have come from a particular gun. Bullets retrieved from the hallway and from the wall of the bedroom were consistent with being 9 mm bullets, but could not be conclusively said to have come from the Jiminez Arms weapon.
Stelly also analyzed the 7.65 mm MAB pistol and its magazine. Latent fingerprints could not be detected. He explained that .32 auto caliber cartridges fit this gun and the two fired .32 caliber cartridge cases retrieved from the bathroom had been fired from this weapon. The seven fired .32 caliber cartridge cases retrieved from the hallway were also fired from this weapon. Six bullets retrieved from Matthew's body were determined to have come from this weapon. A bullet core retrieved from Matthew's body was consistent with a .32 caliber bullet but was unsuitable for comparison.
A .22 caliber Ruger rifle, Model 1022, a magazine containing nineteen .22 caliber bullets, and one loose bullet were also submitted to Stelly for analysis. No latent prints of value could be detected on the magazine and cartridges. No prints could be detected on the two fired .22 caliber cartridge cases, but it was determined they were fired from the Ruger rifle. The *707 two bullets recovered from Matthew's body were determined to have the same class characteristics as the Ruger rifle but, due to damage, retained insufficient individual markings to conclusively determine whether they came from that weapon. Stelly also analyzed three boxes of various types of ammunition retrieved from Defendant's bedroom table, but latent prints could not be detected on the boxes.
Defendant's Statements
March 14, 2007 Statement
Investigator Hedrick testified that he transported Defendant from the scene of the murders to the Sheriff's Office to wait for his brother, Hudson, to come in from Ruston. Prior to their arrival at the office, Defendant told Hedrick that he needed to tell him something and that he wanted to talk to Hedrick and no one else. Hedrick advised him he could not say anything until his guardian got there. Hudson gave his permission for Defendant to speak to Hedrick alone. Defendant indicated that he would feel more comfortable with the recording equipment off; thus, Hedrick left the equipment off and conducted a pre-interview that lasted approximately thirty-five minutes.
After the pre-interview, Defendant gave a recorded statement after being advised of and waiving his constitutional rights. Therein, Defendant stated that a few months ago, his parents were arguing a lot, and he dreaded his father's return on Wednesday nights and weekends. He told his best friend Matthew about it, and a couple of weeks later, Matthew suggested killing them. Defendant was shocked and did not say anything, but as time went by, Matthew brought it up more and became more serious, explaining how he would do it. The more Matthew talked about it, the more convinced Defendant became that it was all right to do it. Then, Defendant began to want to do it also, and they decided, after about a month and a half, that they would carry out the murders.
Someone had slashed the tires on Mr. Wood's truck, so he had been taking his guns out of his truck and keeping them in the kitchen. Matthew knew this and suggested that they could use those guns. After deciding they were going to go through with the plan, Defendant called Matthew one night, and they talked about it. Matthew said he needed to wait for his father to go to sleep before he could go over to Defendant's house. A little while later, Defendant called back, and Matthew said he was about to leave his house. Defendant met Matthew in his backyard. They had planned for Defendant to shoot his parents and for Matthew to break the window and open the door. Defendant was to then give Matthew the gun, and he was to leave so it would look like someone else committed the crimes. When Defendant met Matthew outside, he said, "Matt, I don't want to do this." Matthew said, "Why not, we went through all this trouble and now you're changing your mind." Defendant said he told Matthew, "No, I just don't want to shoot them." Matthew said, "Well, fine, I'll do it then." They then went inside, and Defendant went to his room and stood there while Matthew entered the Woods' room.[8] As Matthew started shooting, Defendant started "freaking out." Defendant said he could not believe what he (Defendant) had just done. After shooting the Woods, Matthew walked back by Defendant's bedroom on his way to break out the window to make it look like a break-in. Defendant said he *708 started "freaking out" and went down the hall and retrieved the gun his mother kept under the mattress. As Matthew was coming back to tell Defendant that he was done and was about to leave and Defendant was about to call the police, Defendant "just shot" Matthew.[9] He emptied the clip and then ran in his room, called 911, and turned on the lights. Matthew was on the floor and still had the gun in his hand. Defendant said he knew Matthew still had bullets, and he was moving around. Defendant then told the 911 operator that the person was still alive and had a gun, and he asked twice if he could kill him. After not answering, Defendant asked a third time, and the man said, "Yes, you can kill him." By this point, Defendant had retrieved another gun, and he shot Matthew in the back of the head. A few minutes later, the police arrived. Defendant said he was still "freaking out" when the police arrived because he could not believe he let Matthew kill his parents.
When asked why they did this, Defendant said he did not know. He commented that his dad "was real down sizing to me when other people were around." When the two of them were alone, things were fine, but when other people were around, his dad would embarrass and make fun of him. He said his mom limited what he could do, and he was not allowed to go anywhere with his friends. Defendant said he would not have done it if it had not been for Matthew convincing him that he had a good plan. Defendant said he understood you can overcome peer pressure, and he felt stupid for not doing so.
March 17, 2007 Statement
On March 17, 2007, Hedrick was at home and was informed that Defendant wished to speak to him. Hedrick went to the correctional facility, and Defendant told him he wanted to speak to him. Hedrick advised Defendant of his rights, and they went to the Sheriff's Office. After being advised of and waiving his rights, Defendant again spoke to Hedrick and told him that his last statement was not completely true. He said everything was true up to the point he called Matthew, Matthew came to his house, and they met outside. When Defendant met Matthew outside, Defendant told Matthew that he did not want to do it, and Matthew asked, "Do you want me to kill them?" Defendant replied, "No, I really don't want them dead." They talked about it for a minute and then went inside. Matthew picked up the gun, and Defendant said, "No, no, I don't want you to do it." Matthew said, "I'm not, we just don't want to have to come back in here later and get this, already have it." They then went to Defendant's room, and Matthew reminded Defendant of all the things he had been telling Matthew about why he wanted his parents dead. Matthew told Defendant his life would be better, and neither of them would get caught. Defendant then took the gun from Matthew and went in and shot his parents. He then gave the gun to Matthew, and Matthew went to break the window. Defendant explained, "[I]t was like I was somebody else. It felt like I didn't really just do that. And I wished I wouldn't had done it and I just got so mad, I just, extremely mad at Matt because I felt like he had done it." Defendant then retrieved the gun his parents kept under their mattress, and he met Matthew in the hall. Defendant said he did not think Matthew knew he had the gun. Defendant then said:
*709 And he was telling me it's going to be better, everything's all right. You've done it, it's over. You life's going to be better, you know. You're not going to have to deal with them anymore and all this.
And I was telling him it's not going to be better. I just killed somebody. I didn't want to kill them. And he says, I promise it's going to be better and I was just so mad at him I just shot him. And I called the cops.
Hedrick then asked specific questions of Defendant. Defendant said he had called Matthew twice on his cell phone that morning, and they decided they were going to do it. Matthew arrived around 2:15 a.m., and Defendant did not think Matthew brought anything from his residence. Defendant said he told Matthew he did not want to do it, and Matthew acted like he was mad about it. Matthew asked him if he wanted Matthew to do it, and he told Matthew that he "didn't want it done." Again, Defendant said Matthew came up with the idea in the first place, made the plans, and would talk about it. Most of the time, Defendant would just listen and did not have anything to say.
Defendant told Hedrick that Matthew picked up the 9 mm gun from the kitchen, and that this gun was normally kept in his father's truck. According to Defendant, Matthew originally planned to bring a gun from his house until he noticed that Mr. Wood had been bringing the gun in from his truck.
When Hedrick asked Defendant how many times he shot his parents, he said he did not know. He remembered changing magazines and did not know if he shot after that point. Defendant said he did not wear gloves when he shot the pistol.
Defendant told Hedrick that the gun he retrieved from under his parents' mattress was a black pistol. He said he thought Matthew fell face down after the first two or three shots, and then he emptied the clip. Defendant said he turned on the light in the hall, or his bedroom, or both and saw that Matthew was still moving. After the 911 operator told him he could kill the "intruder," he got the .22 rifle out of his parents' closet and shot Matthew in the back of the head once. Defendant then retrieved his father's truck keys from the kitchen key rack and went to the truck.
Defendant said he did not know if Matthew had gloves, but he denied giving him a pair. Defendant also said he did not know whose sweater was at the back door. He assumed that Matthew put the gun on the kitchen counter; the last time he saw it was when he handed it to Matthew.
When Hedrick asked Defendant what made him kill his parents, he stated that he started off talking to Matthew about his parents fighting. He said that Matthew had spent the night at his house on Monday night and brought up the plan on Tuesday. Mr. Wood was due to come home Tuesday night due to the water being turned off where he was staying.
Hedrick testified that Matthew's cell phone records revealed that a phone call was made from Matthew's cell phone to Defendant for one minute at 1:08 a.m. on March 14, 2007. Another one minute call was made to Defendant at 1:09 a.m. At 1:10 a.m., Matthew called Defendant for forty-nine minutes. Information recovered from Defendant's cell phone records indicated that Matthew called him at 1:11 a.m., and they talked for forty-nine minutes. At 2:17 a.m., Defendant called Matthew, and they talked for an undetermined amount of time. A review of phone records, computers, e-mail, My Space, and Facebook accounts, and insurance policies revealed no information regarding the existence *710 of a one and one-half month conspiracy.[10]
ASSIGNMENT OF ERROR NUMBER ONE
Defendant contends that the evidence presented by the State was insufficient to convict him of the three murders. Specifically, he contends that there was insufficient evidence presented to prove that he possessed the requisite intent to kill or inflict great bodily harm on his parents. Further, he contends that he was justified in killing Matthew to protect his own life.
Louisiana Revised Statutes 14:30.1 defines second degree murder as "the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm."
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State ex rel. Graffagnino v. King, 436 So. 2d 559 (La.1983); State v. Duncan, 420 So. 2d 1105 (La.1982); State v. Moody, 393 So. 2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So. 2d 559, citing State v. Richardson, 425 So. 2d 1228 (La.1983).
State v. Lambert, 97-64, pp. 4-5 (La. App. 3 Cir. 9/30/98), 720 So. 2d 724, 726-27.
"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). "Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant." State v. Draughn, 05-1825, pp. 7-8 (La.1/17/07), 950 So. 2d 583, 592-93, cert. denied, ___ U.S. ___, 128 S. Ct. 537, 169 L. Ed. 2d 377 (2007).
Defendant claims that the State failed to prove he killed his parents while possessing the requisite intent to kill or inflict great bodily harm. He contends that the statement he gave to Investigator Hedrick on March 14, 2007, shows that he withdrew from the conspiracy to kill his parents and that Matthew acted alone in killing them. He argues that by withdrawing from the conspiracy, he no longer possessed the requisite intent to support his murder convictions. He contends that the physical evidence at the scene supports the veracity of this statement because Matthew was the only one wearing gloves and there were no fingerprints found on the guns or shell casings.
Within the context of his sufficiency argument, Defendant notes that at the time he made the second statement, he was incarcerated and charged with three murders. He claims that, considering his young age and the recent loss of his parents, he was in no frame of mind to make a statement without the advice of counsel. He claims that Hedrick should have recognized this and insisted on counsel being present. Defendant does not specifically challenge the admissibility of his statements.[11]*711 We interpret these statements as challenging the weight of the evidence, which is a matter strictly for the jury. Lambert, 720 So. 2d 724.
We conclude that the evidence presented by the State was sufficient to prove that Defendant possessed the requisite intent to kill or inflict great bodily harm on his parents. In Defendant's second recorded statement to Hedrick, he admitted to shooting his parents. The jury apparently chose to believe this statement over the previous statement in which Defendant labeled Matthew as the gunman, and this court will not second-guess the credibility determinations made by the jury. Id. The victims were shot numerous times, with multiple gunshot wounds to the upper portions of their bodies. Some of the gunshot wounds inflicted on Mrs. Wood were at very close range. Under these circumstances, the State clearly proved that Defendant possessed the specific intent to kill or inflict great bodily harm on his parents. Additionally, our interpretation of the March 14, 2007 statement does not support counsel's contention that Defendant withdrew from the conspiracy. We interpret the relevant portion of the March 14, 2007 statement to mean that Defendant did not want to do the actual shooting but that he was still an active participant in the plan for Matthew to shoot his parents, which would also support a finding of him being a principal[12] to second degree murder.
Next, Defendant claims that he was justified in shooting Matthew because it was done in self-defense immediately after Matthew shot his parents and while Matthew was still armed with a handgun. Defendant's March 17, 2007 statement reveals that he shot Matthew out of anger, not in self-defense. Further, only one gunshot wound was inflicted while Matthew was facing Defendant. The remaining eight gunshots traveled through Matthew's body from back to front, some while he was bending over. Under these facts, there is nothing to suggest that the killing of Matthew was in self-defense. For the foregoing reasons, Defendant's three convictions are affirmed.
ASSIGNMENT OF ERROR NUMBER TWO
Defendant contends that the mandatory life sentences imposed upon him are grossly disproportionate to the crimes committed and represent nothing more than needless pain and suffering. Defendant further contends that the imposition of consecutive sentences added to the needless imposition of pain and suffering. He notes that although La.Code Crim.P. art. 883 allows a judge to impose consecutive sentences for two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, in this case, the trial court cited no reason or basis for doing so.
At sentencing, the State requested imposition of consecutive sentences, while Defense argued they should be concurrent. The sentencing transcript reveals that on each count, the trial court imposed a mandatory life sentence at hard labor without the benefit of probation, parole, or suspension *712 of sentence. On each, he ordered the term to be consecutive to any other sentence Defendant may be serving. No oral objection was raised concerning the sentence imposed by the trial court. The trial court allowed Defendant twelve months from the date of sentencing, April 30, 2008, to file a motion to reconsider sentence. The record contains no indication that such a motion was ever filed.
In some instances when a motion to reconsider sentence is not filed, this court has held that the defendant is barred from raising an excessive sentence claim. State v. Bourque, 99-1625 (La.App. 3 Cir. 6/21/00), 762 So. 2d 1139, writ denied, 00-2234 (La.6/1/01), 793 So. 2d 181. However, this court has also reviewed claims of bare excessiveness in the interest of justice. State v. Davis, 06-922 (La.App. 3 Cir. 12/29/06), 947 So. 2d 201; State v. Runyon, 06-823 (La.App. 3 Cir. 12/6/06), 944 So. 2d 820, writ denied, 07-49 (La.9/21/07), 964 So. 2d 330; State v. Jeansonne, 06-263 (La. App. 3 Cir. 5/31/06), 931 So. 2d 1258; and State v. Graves, 01-156 (La.App. 3 Cir. 10/3/01), 798 So. 2d 1090, writ denied, 02-29 (La.10/14/02), 827 So. 2d 420.
In the interest of justice, we will proceed with a review of Defendant's sentences for constitutional excessiveness, including their consecutive nature. See State v. Baker, 08-54 (La.App. 3 Cir. 5/7/08), 986 So. 2d 682; Davis, 947 So. 2d 201; and State v. Vollm, 04-837 (La.App. 3 Cir. 11/10/04), 887 So. 2d 664.
Defendant received three mandatory life sentences as required by La.R.S. 14:30.1. In State v. Ross, 03-564 (La.App. 3 Cir. 12/17/03), 861 So. 2d 888, writ denied, 04-376 (La.6/25/04), 876 So. 2d 829, the defendant argued that his mandatory life sentence was excessive. In finding no merit to the defendant's claim, this court stated:
In State v. Paddio, 02-0722, pp. 16-17 (La.App. 3 Cir. 12/11/02), 832 So. 2d 1120, 1131, [writ denied, 03-402 (La.2/13/04), 867 So. 2d 682,] this court explained:
[A] sentence, although within the statutory limit, is considered to be excessive if "the penalty is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering." State v. Kitchen, 94-0900, p. 3 (La.App. 3 Cir. 2/1/95), 649 So. 2d 1227, 1229, writ denied, 95-0537 (La.6/23/95), 656 So. 2d 1012 (quoting State v. Bonanno, 384 So. 2d 355, 357 (La.1980)). A mandatory life sentence is not per se unconstitutional. Richardson v. La. Dept. of Public Safety and Corrections, 627 So. 2d 635 (La.1993). However, a trial court has the authority to determine whether a mandatory minimum sentence is constitutionally excessive as applied to a particular defendant. State v. Dorthey, 623 So. 2d 1276 (La. 1993). Further, this review extends to all mandatory minimum sentences and not just those imposed under the habitual offender law. State v. Fobbs, 99-1024 (La.9/24/99), 744 So. 2d 1274.
Nevertheless, a court may depart from a minimum sentence only if it finds that there is clear and convincing evidence that rebuts the presumption of constitutionality. State v. Lindsey, 99-3256, 99-3302 (La.10/17/00), 770 So. 2d 339, cert. denied, 532 U.S. 1010, 121 S. Ct. 1739, 149 L. Ed. 2d 663 (2001). To rebut the presumption, a defendant must show, by clear and convincing evidence, that, "because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case." State v. Johnson, 97-1906, *713 p. 8 (La.3/4/98), 709 So. 2d 672, 676 (quoting from Judge Plotkin's concurrence in State v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So. 2d 525, 531, writ denied, 95-3010 (La.3/22/96), 669 So. 2d 1223). (citations omitted).
In State v. Johnson, 97-1906, p. 9 (La.3/4/98), 709 So. 2d 672, 677, the supreme court explained:
We emphasize to sentencing judges that departures downward from the minimum sentence ... should occur only in rare situations. As Chief Justice Calogero noted in a prior case:
The substantive power to define crimes and prescribe [sic] punishments lies in the legislative branch of government. [citation omitted]. Our decision in State v. Dorthey, 623 So. 2d 1276 (La.1993), did not purport to grant a district court the power to usurp that legislative prerogative or to impose what the court believes is the most appropriate sentence for a particular offender in a particular case. Dorthey gives the district court the authority to depart from the mandatory minimum sentences provided by the legislature only in those relatively rare cases in which the punishment provided violates the prohibition of La. Const. art. I, § 20 against excessive sentences. (citations omitted).
In this case, the Defendant has failed to prove by clear and convincing evidence unusual circumstances that demonstrate that this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Furthermore, the Defendant failed to prove any unusual circumstances warranting a departure from the mandatory minimum sentence provided by the legislature. Consequently, this court finds that the sentence imposed upon the Defendant is not constitutionally excessive.
Id. at 897-98 (first alteration added).
Here, Defendant failed to meet his burden of proving that the sentences imposed upon him are constitutionally excessive. Given the senselessness of the three murders, we cannot say that the imposition of three consecutive life sentences at hard labor without benefits is grossly disproportionate to the offenses committed by Defendant. Accordingly, this portion of Defendant's argument has no merit.
Louisiana Code of Criminal Procedure Article 883 provides: "If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively." In State v. Pierre, 02-277 (La.App. 3 Cir. 6/11/03), 854 So. 2d 945, writ denied, 03-2042 (La.1/16/04), 864 So. 2d 626, the defendant shot her estranged husband and child before turning the gun on herself. She and her husband survived; their son died. The defendant was convicted of second degree murder, for which she was sentenced to the mandatory sentence of life imprisonment, and attempted second degree murder, for which she received a hard labor sentence of ten years. At the sentencing hearing, the defendant raised the issue of whether her sentences should be served concurrently or consecutively; a written motion to reconsider sentence was not filed.[13]*714 This court considered whether the trial court erred in imposing consecutive sentences for offenses arising from a single course of conduct and found no merit to the defendant's claim. We stated:
This court has held that when the trial court has no discretion to deviate from a legislatively mandated sentence, failure to articulate reasons as generally required by La.Code Crim.P. art. 894.1 is not an error since it would be futile to do so at sentencing, unless the sentences are constitutionally excessive. State v. Williams, 445 So. 2d 1264 (La.App. 3 Cir.), writ denied, 449 So. 2d 1346 (La. 1984) and State v. Dorthey, 623 So. 2d 1276 (La.1993). See also, State v. Armstrong, 32,279 (La.App. 2 Cir. 9/22/99); 743 So. 2d 284, writ denied, 99-3151 (La.4/7/00), 759 So. 2d 92.
In a case such as the instant case, where one of the sentences was a mandatory sentence and the other a mandatory minimum sentence, the Defendant has the burden to rebut the presumption that the sentences are unconstitutional by clear and convincing evidence, showing that:
[she] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstance of the case.
State v. Young, 94-1636, pp. 5-6 (La. App. 4 Cir. 10/26/95), 663 So. 2d 525, 531, writ denied, 95-3010 (La.3/22/96), 669 So. 2d 1223.
Defendant has failed to meet her burden of showing how she is exceptional under the circumstances. Except for reciting the law regarding the general requirements for an adequate sentencing procedure, Defendant does not give any reason why her consecutive sentences are excessive.
Furthermore, even though the shootings of her husband and son arose out of the same act, it is not mandatory that the sentences be served concurrently. In State v. Bibb, 626 So. 2d 913 (La.App. 5 Cir.1993), writ denied, 93-3127 (La.9/16/94), 642 So. 2d 188, the defendant killed his two children. The court affirmed the two consecutive life sentences. The court noted:
Herein, the two murders, though occurring close in time and place, are separate and distinct acts that justify consecutive sentences. Further, even assuming that the murders were close enough in time and place to be considered "same act" crimes which arise from a single course of conduct, we find that the trial court did not err in imposing consecutive sentences. Article 883 permits the court to impose consecutive sentences if the court "expressly directs" such sentences.
Id. at 940.
Thus we find the trial court did not err when it ordered the sentences to be served consecutively.
Id. at 954.[14]
We conclude, as we previously did in Pierre, that it was not improper for the *715 trial court to impose consecutive sentences. Furthermore, in State v. Dunbar, 94-1492 (La.App. 3 Cir. 5/31/95), 657 So. 2d 429, this court noted that any error committed by the trial court in imposing consecutive sentences to a defendant sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence was harmless. Thus, even if the trial court did err in imposing consecutive sentences, pursuant to Dunbar, the error would be harmless.
Finally, Defendant claims that the trial court did not cite any reasons or basis for ordering consecutive sentences. In State v. Robinson, 07-1424, p. 11 (La.App. 3 Cir. 4/30/08), 981 So. 2d 867, 875, writ denied, 08-1314 (La.2/13/09), 999 So. 2d 1144, this court held:
Defendant argues that the trial court erred by failing to articulate the factors it used in formulating the sentence, and in determining the sentences should run consecutively.
This court observes that Defendant did not object to the sentences and did not file a motion to reconsider sentence. Although he cites jurisprudence regarding excessive sentences, he does not argue that his sentences are excessive in length. Therefore, his claim regarding La.Code Crim.P. art. 894.1 has not been preserved for review. La.Code Crim.P. art. 881.1.
Defendant also argues that the trial court erred by failing to sufficiently explain why it ordered that the sentences run consecutively. However, this court finds this argument should not be considered, for the reasons noted in the previous paragraph.
As in Robinson, Defendant did not object to his sentences nor file a motion to reconsider sentence. Accordingly, this portion of Defendant's claim will not be considered.
DECREE
For the foregoing reasons, Defendant's convictions and sentences are affirmed.
AFFIRMED.
NOTES
[1] Defendant was fifteen years old at the time of the murders. Louisiana Children's Code Article 857 provides for the transfer for prosecution to the appropriate criminal court of a child who is fourteen years or older at the time of the commission of certain enumerated alleged offenses, including first and second degree murder.
[2] Cobb testified that approximately one-half of the 911 calls dialed from cell phones come into the regular phone system rather than the 911 phone system.
[3] Fletcher was apparently referring to broken glass from the back door as depicted in State's Exhibit # 13, which was referenced during his testimony.
[4] Matthew was sixteen years old at the time of his death.
[5] Lawrence testified that the .22 caliber rifle was a Ruger 1022 that appeared to be modified to look like an assault weapon. The pistol recovered from Defendant's bed was a Beret Model D 7.65 caliber that shot a .32 caliber round.
[6] Dr. Ross testified that she deferred to the firearms examiner with regard to identification of the bullets. Her reference to medium meant the wound was made by a "nine millimeter or something in the 30s and small is like 22, 25."
[7] Dr. Ross explained that when she describes wounds, she does so in no specific order.
[8] Hedrick testified that during the pre-interview, Defendant said Matthew retrieved the gun from the kitchen.
[9] Hedrick testified that during the pre-interview, Defendant said he shot Matthew out of anger.
[10] Defendant told Hedrick that he and Matthew had not sent e-mails or text messages about their plan and that no one else knew about it.
[11] Defendant filed a pretrial writ application contending his March 14, 2007 and March 17, 2007 confessions should be suppressed. This court found no error in the trial court's ruling denying the motion to suppress. See State v. Wood, an unpublished writ bearing docket number 08-421 (La.App. 3 Cir. 4/11/08).
[12] Louisiana Revised Statutes 14:24 states, "All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals."
[13] In the original appeal, this court vacated the defendant's convictions and sentences, finding she did not knowingly and intelligently waive her right to a jury trial. The supreme court reversed, reinstated the defendant's conviction and sentence, and remanded the case to this court for consideration of the defendant's remaining claims. State v. Pierre, 02-2665 (La.3/28/03), 842 So. 2d 321.
[14] In Bibb, the defendant was sentenced to serve two life sentences without benefit of parole, probation, or suspension of sentence following the jury's inability to reach a unanimous verdict as to the penalty for the two counts of first degree murder. Although not mentioned by this court in Pierre, the court in Bibb noted that the sentencing judge stated that the murders were the most heinous crimes he had ever seen. The fifth circuit, in holding that consecutive sentences were not excessive, noted that the crimes were particularly heinous because they involved two young children and because of the manner in which they were killed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610960/ | 166 N.W.2d 421 (1969)
184 Neb. 226
David L. FELDMAN, Appellant,
v.
CITY OF OMAHA, a Municipal Corporation, et al., Appellees.
No. 37013.
Supreme Court of Nebraska.
March 28, 1969.
*422 Stern, Harris, Feldman & Becker, Omaha, for appellant.
Herbert M. Fitle, City Atty., Edward Stein, Asst. City Atty., Abrahams, Kaslow & Cassman, Hunter, Venteicher & Kasher, Omaha, for appellees.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
BOSLAUGH, Justice.
The City of Omaha, by ordinance, vacated a part of Capitol Avenue between Fiftieth and Fifty-first Streets. This action was brought by David L. Feldman, a property owner residing at 5113 Capitol Avenue, to declare the vacation ordinance void and enjoin its enforcement. The defendants are the City of Omaha, its mayor and councilmen, and the N. P. Dodge Building Company. The N. P. Dodge Building Company owns the property on each side of Capitol Avenue which abuts upon the part which was vacated.
The trial court sustained the motions of the defendants for summary judgment and dismissed the action. The plaintiff's motion for new trial was overruled and he has appealed.
Capitol Avenue runs east and west between Forty-sixth and Fifty-second Streets and is the first street north of Dodge Street. The part which was vacated lies between the west property line of Fiftieth Street and a point approximately 250 feet west of Fiftieth Street. The plaintiff's residence is located between Fifty-first and Fifty-second Streets and is approximately 710 feet west of the west line of the vacated portion of Capitol Avenue. Both Fifty-first and Fifty-second Streets are open to the north and south of Capitol Avenue and the plaintiff has access to his property over these streets.
The amended petition alleged that the portion of Capitol Avenue which was vacated will revert to the N. P. Dodge Building Company; that the vacated street is valuable property for which the city will receive no compensation; that the vacation was illegal because the petition filed did *423 not contain the signatures of the required number of property owners; and that the ordinance results in a misappropriation of public property.
The defendants' motions alleged that the plaintiff had not sustained any special or peculiar damage different in kind from that of the general public and had no right to maintain the action.
The record in this case shows, and the plaintiff concedes, that he has suffered no damage, special or peculiar in nature, and different in kind from that of the general public. A property owner whose property does not abut upon the portion of a street which is to be vacated has no right of action to restrain the vacation unless he suffers a special or peculiar damage differing in kind from that of the general public. Hanson v. City of Omaha, 157 Neb. 403, 59 N.W.2d 622. See, also, Kraft & Sons, Inc. v. City of Lincoln, 182 Neb. 187, 153 N.W.2d 725; Kittle v. Fremont, 1 Neb. 329, 11 McQuillin, Municipal Corporations (3d Ed.), s. 30.200, p. 154; 64 C.J.S. Municipal Corporations § 1672 c, p. 50. The plaintiff did not have standing to challenge the validity of the vacation ordinance.
The fact that the portion of the street being vacated is valuable property which will revert to the abutting owners and that the city will receive no compensation for the property does not alter the situation. Statutory provisions that the title to a street shall revert to the abutting owners upon vacation are common. The fact that the vacation is made at the instance and request of certain owners whose property will be benefited is not ground for declaring the vacation ordinance void. Dell v. City of Lincoln, 170 Neb. 176, 102 N.W.2d 62; Village of Bellevue v. Bellevue Improvement Co., 65 Neb. 52, 90 N.W. 1002. See, also, Enders v. Friday, 78 Neb. 510, 111 N.W. 140; State ex rel. City of Lincoln v. Chicago, R. I. & P. Ry. Co., 93 Neb. 263, 140 N.W. 147; Karlin v. Franciscan Sisterhood, 109 Neb. 711, 192 N.W. 122.
The plaintiff cannot avoid the effect of the general rule by relying upon his status as a taxpayer. Blanding v. City of Las Vegas, 52 Nev. 52, 280 P. 644, 68 A.L.R. 1273.
The judgment of the district court is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610994/ | 15 Mich. App. 284 (1968)
166 N.W.2d 506
PEOPLE
v.
FLOYD
Docket No. 4,147.
Michigan Court of Appeals.
Decided December 24, 1968.
Leave to appeal denied May 15, 1969.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and William L. McManus, Prosecuting Attorney, for the people.
Bucknell & Gergely, for defendant.
Leave to appeal denied May 15, 1969. See 382 Mich. 753.
TEMPLIN, J.
Defendant was found guilty by a jury of the crimes of breaking and entering with intent to commit larceny, CL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Ann 1968 Cum Supp § 28.305), and assault with a dangerous weapon without intending to commit the crime of murder or great bodily harm less than the crime of murder. CL 1948, § 750.82 (Stat Ann 1962 Rev § 28.277). In his first assignment of error defendant questions whether there was sufficient evidence in the record to warrant a jury finding of guilt beyond a reasonable doubt. We find no merit in this contention. A review of the record indicates more than sufficient evidence from which the jury could make a finding of guilt beyond a reasonable doubt of both crimes. The jury is the sole judge of the facts and neither the trial court nor this court can interfere with their exercise of that right. People v. McIntosh (1967), 6 Mich. App. 62, citing People v. Miller (1942), 301 *286 Mich 93. If there is sufficient evidence, upon which if the jury believes it, it can find the defendant guilty beyond a reasonable doubt, the court may not upset that determination. People v. Paugh (1949), 324 Mich. 108; People v. Moshier (1943), 306 Mich. 714.
Error is next assigned to the testimony of the complaining witness that she identified the defendant alone at the police station and not in a lineup. The testimony of the complaining witness showed that late on the evening of October 7, 1966 the defendant entered her home at Three Rivers, Michigan, and told her that he was looking for money, that he later blindfolded her, forced her to disrobe and lie on the floor where he made lewd suggestions and advances towards her. Upon his departure she immediately notified the police, giving them a rather complete description of the defendant, including his clothing. Within a half hour the police picked up a suspect in the area who answered the general description and brought him to the complainant who rejected him unequivocally as not being the individual who had entered her home. She further testified that the following Friday morning, October 14, the police asked her early in the morning to:
"* * * come down to the police station to see if I could identify the man that they had."
She testified that when she got to the station, a man was sitting in the office and the police asked him to stand up. An officer attending the scene then testified that:
"* * * she immediately turned and more or less broke into a cry and, her husband put his arms around her and she said, `That's definitely the man' without hesitation she identified him."
*287 The question of allowing testimony of prior identification of a defendant was considered in People v. Londe (1925), 230 Mich. 484, in which the Supreme Court of Michigan approved testimony by the victim and another as to identification of the defendant and the circumstances surrounding such identification at police headquarters. The more serious question of whether a lineup is required in identification matters was reviewed in People v. Serra (1942), 301 Mich. 124, in which the defendant requested a charge that there are inherent dangers in an identification where the sole identification witness is called to identify an individual as an alleged criminal rather than permitted to pick such person out of a group. The Michigan Supreme Court upheld the trial judge's denial of the requested charge and the charge given in its stead, that:
"There is no law that requires any particular method of identification. You are at liberty, as I said, to examine into all the circumstances of the case, all the testimony as bearing on the question of identity."
The court held that the refusal of the request to charge was proper since the request dealt with the weight of the evidence and was argumentative. The United States Supreme Court, in Stovall v. Denno (1967), 388 U.S. 293 (87 S. Ct. 1967, 18 L. Ed. 2d 1199), held that single confrontations are to be condemned but are not per se unconstitutional. The question is whether the confrontation conducted was "* * * unnecessarily suggestive and conducive to irreparable mistaken identification" so as to deprive the defendant of due process. Here the totality of circumstances made such a confrontation imperative so that the conviction was affirmed. The question was again reviewed in Simmons v. United States (1968), 390 U.S. 377 (88 S. Ct. 907, 19 L. Ed. 2d 1247), *288 wherein the Court held that whether such identification procedures were a denial of due process depended on the factual circumstances of the case.
We believe that good police practices should dictate the use of lineups for resolving identification questions wherever practicable. However, in those cases involving single confrontations the entire circumstances of the identification must be inquired into and, as such, are ordinarily not determinative of the admissibility of such evidence, but rather its weight and probative value. As the people note in their brief, Three Rivers is located in St. Joseph county; and the only jail in the county rarely contained enough prisoners, particularly Negroes, to hold a lineup for defendant, a Negro. Review of the record and all surrounding circumstances indicates no error nor prejudice resulting to the defendant from his individual identification by complainant.
We find no merit in defendant's final assignment of error that the trial judge did not accurately instruct the jury that they must find that the defendant was identified as the assailant beyond a reasonable doubt. A review of the record indicates that the defendant made no objection to the instruction of the trial court in this regard though he was afforded an opportunity to do so. GCR 1963, 516.2 provides as follows:
"No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury."
This Court has held that the failure of timely objection waives any right defendant might have had *289 to object to the instructions on appeal. People v. Mallory (1966), 2 Mich. App. 359, 364; People v. Dexter (1967), 6 Mich. App. 247, 253. Further, we find no error in the instruction objected to. We held in People v. McIntosh (1967), 6 Mich. App. 62, 69, cited by defendant, that no particular form of instruction is required as to identity and, furthermore, that the entire charge must be read as a whole in determining whether the defendant was prejudiced. We find no prejudice herein.
Affirmed.
LESINSKI, C.J., and FITZGERALD, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611160/ | 11 So.3d 950 (2009)
LaBONTE
v.
STATE.
No. 2D08-2736.
District Court of Appeal of Florida, Second District.
May 1, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611163/ | 533 So.2d 819 (1988)
Norman H. ROTH, Shirley H. Roth, Eli Saffran, Anne W. Saffran, Leo S. Wassner, Pearl K. Wassner, Jack Miller, Shirley Miller, Jack I. Kramer, Jeanette Kramer, Philip Bernstein, Charlotte Bernstein, David Bernstein, and Ellen Bernstein, Appellants,
v.
SPRINGLAKE II HOMEOWNERS ASSOCIATION, INC., a Florida Corporation Not for Profit, Appellee.
No. 87-1195.
District Court of Appeal of Florida, Fourth District.
October 12, 1988.
Rehearing and Rehearing Denied December 12, 1988.
Peter S. Sachs, Louise E. Tudzarov and Spencer M. Sax of Sachs & Sax, P.A., Boca Raton, for appellants.
Edward S. Polk of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for appellee.
Rehearing and Rehearing En Banc Denied December 12, 1988.
LETTS, Judge.
In a struggle between a Homeowners Association and certain unit owners, the latter group appeals the trial court's decision to permit the grant of exclusive easements over the Common Areas. We reverse.
The development in question is not of the condominium variety. The warranty deeds to the forty-eight units all contain the language, "together with a 1/48th share of the Common Areas." Similar language appeared in the declaration. In addition, the declaration provided that "[no] fence, wall or other structure shall be erected or maintained upon any portion of the common areas by any lot owner."
Despite the quoted language above, the trial court upheld an amendment to the declaration, approved by three quarters of the owners, which gave the Homeowners Association authority to grant exclusive easements to allow patio extensions as an adjunct to particular units, over and upon the common areas. We conclude that this was improper.
As we have already said, this is not a condominium development, yet a close parallel can be found under section 718.110(4), Florida Statutes (1987), which provides as follows:
Unless otherwise provided in the declaration as originally recorded, no amendment may change the configuration or size of any condominium unit in any material fashion, materially alter or modify the appurtenances to the unit, or change the proportion or percentage by which the owner of the parcel shares the common expenses and owns the common surplus unless the record owner of the unit *820 and all record owners of liens on it join in the execution of the amendment and unless all the record owners of all other units approve the amendment.
Needless to say, the statute is not applicable here. Yet its content comports with basic law. Under the facts presented, a unit owner cannot be divested of his ownership without his consent. The consent of all forty-eight unit owners would be required to legally accomplish what transpired. The Homeowners Association "could convey no greater interest in the property than [it] owned." Kern v. Weber, 155 So.2d 619 (Fla. 3d DCA 1963).
The language of the original declaration sub judice was akin to subdivision restrictions which normally cannot be amended without the consent of all the property owners. Harwick v. Indian Creek Country Club, 142 So.2d 128 (Fla. 3d DCA 1962). "That residential lot owners are the beneficiaries of restrictive covenants is well settled." Gercas v. Davis, 188 So.2d 9, 11 (Fla. 2d DCA 1966); Moore v. Dykes, 225 So.2d 455 (Fla. 1st DCA 1969); also see Downey v. Jungle Den Villas Recreation Association, 525 So.2d 438 (Fla. 5th DCA 1988).
We, therefore, hold that the Homeowners Association could not grant exclusive easements over the common areas and this cause is reversed and remanded for entry of a judgment in conformance herewith.
Without comment, we reverse the award of attorney's fees.
REVERSED AND REMANDED.
DOWNEY and STONE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611028/ | 533 So.2d 975 (1988)
Jerry A. LANDRY and His Wife, Elizabeth Hebert Landry
v.
JOHN E. GRAHAM & SONS, INC. and Midland Insurance Company.
No. 87 CA 0372.
Court of Appeal of Louisiana, First Circuit.
September 6, 1988.
Writ Denied November 28, 1988.
*976 Before WATKINS, CARTER and FOIL, JJ.
PER CURIAM.
We granted a rehearing in this case to consider the appropriateness of using a motion for summary judgment to determine the issue of seaman's status under the Jones Act, 46 U.S.C.A.App. 688. In the original hearing, we affirmed the trial court's granting of partial summary judgment, finding the plaintiff to be a seaman. 525 So.2d 76. Upon reflection, we find the granting of summary judgment inappropriate under these circumstances.
LSA-C.C.P. art. 1915 reads as follows:
Partial judgment
A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the plaintiffs, defendants, third party plaintiffs, third party defendants, or intervenors.
(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969.
(4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
(5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.
B. If an appeal is taken from such a judgment, the trial court nevertheless shall retain jurisdiction to adjudicate the remaining issues in the case.
LSA-C.C.P. art. 966 A provides in part that:
The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. (Emphasis added)
It is clear from a reading of these articles, as well as the jurisprudence interpreting them, that summary judgment may be granted for less than all of the relief for which the party prays. However, it is essential to the validity of a summary judgment that at least some of the relief prayed for by one of the parties is granted. LSA-C.C.P. arts. 1915, 966. Dryades Sav. and Loan Ass'n v. Lassiter, 400 So.2d 894 (La. 1981). See also Strauss v. Rivers, 501 So.2d 876 (La.App. 5th Cir.1987); Pizzolato v. Field, 441 So.2d 1248 (La.App. 1st Cir. 1983); Beard v. Assumption Parish Police Jury, 413 So.2d 923 (La.App. 1st Cir.1982), writ denied 420 So.2d 444 (La.1982); Smith v. Hanover Insurance Co., 363 So. 2d 719 (La.App. 2d Cir.1978).
Plaintiff's original petition requested monetary damages for injuries caused by the negligence of the defendant, John E. Graham and Sons, Inc., under the Jones Act and by the unseaworthiness of the vessel under the General Maritime Law.
The plaintiff's motion for partial summary judgment requested that there be judgment declaring the plaintiff to be a seaman. It did not ask the court to find the defendant negligent under the Jones Act or to declare the vessel unseaworthy under the General Maritime Law. Consequently, the *977 summary judgment granted by the trial court declared only that the plaintiff was a seaman as a matter of law.[1]
Although the finding of seaman's status under the Jones Act is an essential part of the plaintiff's cause of action, it does not in itself grant any relief for which the plaintiff prayed. Hence, we conclude that the summary judgment neither granted nor denied any of the relief, in whole or in part, claimed by the moving party and was thus unauthorized by our code of civil procedure.
We expressly note that summary judgments have been held appropriate when summary judgment was rendered classifying the employee as a statutory employee of a defendant and dismissing the plaintiff's tort suit against the employer. Sandifer v. Crown Zellerbach Corporation, 470 So.2d 483 (La.App. 1st Cir.1985), writ denied 475 So.2d 357 (La.1985). See also Thelma Notoriano v. Rebecca Anthony, 527 So.2d 1120 (La.App. 1st Cir.1988); Cantrell v. BASF Wyandotte, 506 So.2d 793 (La.App. 1st Cir.1987), writs denied 512 So.2d 1178 and 514 So.2d 120 (La.1987).
However, summary judgment would not be available to a plaintiff-employee to have declared that he was not a statutory employee in a tort suit or was a seaman in a maritime personal injury case since this would result in piecemeal litigation of issues which would neither grant nor deny the relief prayed for.[2]
We therefore vacate our original judgment. The summary judgment in favor of plaintiff is reversed, and the case is remanded to the district court for further proceedings, in accordance with the views expressed herein. All costs to await final disposition of this matter.
JUDGMENT VACATED, AND REMANDED.
NOTES
[1] We note that a defendant's motion for summary judgment on the issue of seaman's status is appropriate and, if granted, would in effect dismiss the plaintiff's cause of action under the Jones Act. See Beard v. Assumption Parish Police Jury, 413 So.2d 923 (La.App. 1st Cir.1982), writ denied, 420 So.2d 444 (La.1982) and Alexander v. Hudson Engineering, Inc., 378 So.2d 156 (La. App. 1st Cir.1979).
[2] We note that under the Federal Rules of Civil Procedure (FRCP), Rule 56, a court may grant a partial summary judgment on the issue of seaman's status, however, the judgment is considered interlocutory and therefore unappealable. FRCP 54(b) and 56(d). Unlike their federal counterpart, LSA-C.C.P. arts. 966 and 968 provide that judgments granting motions for summary judgments are final appealable judgments and interlocutory judgments are not permitted. See LSA-C.C.P. art. 968, comment (b). Although the federal and state rules differ in their approach to permissible issues for summary judgment, the same underlying rationale applies to each, that being, the avoidance of piecemeal litigation and piecemeal appeals. See Comments to FRCP 54 and 56. See also Dryades v. Sav. and Loan Ass'n v. Lassiter, 400 So.2d 894 (La.1981) and Smith v. Hanover Insurance Co., 363 So.2d 719 (La.App. 2nd Cir. 1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1610986/ | 533 So. 2d 98 (1988)
Christopher E. COBLENTZ
v.
NORTH PETERS PARKING, INC., R. Guerico & Son, Inc., Sentry Insurance Company, John Doe and United States Fidelity and Guaranty Company.
No. 88-CA-0433.
Court of Appeal of Louisiana, Fourth Circuit.
October 11, 1988.
*99 Randolph C. Slone, Slidell, for plaintiff.
James Ryan, III, Peter S. Title, Sessions, Fishman, Rosenson, Boisfontaine, Nathan & Winn, New Orleans, for defendants.
Before BARRY, CIACCIO and WARD, JJ.
BARRY, Judge.
Christopher Coblentz appeals the dismissal of his suit for damages pursuant to a jury verdict. Coblentz was shot in a parking lot and sued the operator of the lot, North Peters Parking, Inc.; the lot's owners, R. Guerico, Sr. and the Guerico trust (the trust of Roy Guerico, Sr., Roy Guerico, Jr., Randy Guerico and Rami Guerico) whose trustee was James Cunningham; their insurer United States Fidelity and Guaranty; and the alleged night-time attendant John Doe. R. Guerico, Sr. and James Cunningham third partied J. Everett Eaves, Inc. based on Eaves' alleged negligence of failing to have their insurance in force. Coblentz dismissed without prejudice R. Guerico & Sons, Inc. and its insurer, Sentry Insurance Company,[1] defendants in the original petition.
Coblentz's appeal raises five issues: (1) and (2) the defendants had a duty to protect him from criminal activity in the parking lot or to warn him of potential danger from persons attempting to make unauthorized collections in the lot; (3) the defendants failed to warn and correct a known danger which was the cause-in-fact or proximate cause of Coblentz's injury; (4) the defendants failed to guard against known danger(s); (5) he was entitled to damages.
*100 FACTS
On Friday, March 2, 1984 before Mardi Gras, Christopher Coblentz and three friends, Brad Leppo, James Ray and Marvin Lawhorn, had several drinks after work before driving to the French Quarter around 8:00 or 9:00 p.m. Coblentz was a guest passenger in the vehicle. Brad Leppo testified that they were looking for a place to park and drove into the Iberville St. entrance to the parking lot at 200 N. Peters St. As they walked across the lot a black man approached and asked for a $5.00 parking fee. Leppo thought the man was a hustler and the men told him they would pay when they returned.
Leppo testified that Coblentz was walking behind the three men. He said that as they were about to cross the street he turned and saw Coblentz and the black man standing face to face in the parking lot. Leppo said despite the poor lighting he saw the black man shoot Coblentz, then jump in a truck and drive off. The assailant was never found.
Ray and Lawhorn did not testify. Coblentz was shot in the head and could not testify.
Officer Jake Dawson received a call at 9:25 p.m. and arrived at the scene to find Coblentz on the hood of a car bleeding heavily from the head. He testified it was "pretty dark" in the parking lot and the Iberville St. entrance was open.
Donald Ware, who was cleaning a window table in Shananagan's Restaurant across the street, testified Coblentz and a black man were arguing, he saw a flash, and the gunman left in a truck. Ware told his boss about his concern that the victim was Alvin Turner, the day-time attendant of the lot. Ware said that on more than ten occasions he had seen "quite a few people out there" at night collecting money to park. The "attendant" would remove a restraining cable by the driveway and open the lot. He testified that he told Alvin Turner about the activity and also Roy Guerico when he had come to the lot on a Sunday to catch the man. Ware did not remember if Guerico responded before or after the shooting.
Alvin Turner worked for R. Guerico & Sons as a truck driver prior to 1984 and was employed by the company as a truck driver at the time of trial. He opened the lot for Roy Guerico in January, 1984 and was paid with a Guerico company check. The lot was enclosed by a cable running between posts and had two entrances which were closed by placing an additional post in the middle of each driveway. A small sign with the rates was placed on top of a post. Turner said he made a large sign with the rates and put it against the adjacent building. Neither sign specified the lot's hours. Turner said he left work about 5:30 or 6:00 p.m. and Ware corroborated the closing time. When it got dark early he left because he did not want to be there with the day's receipts.
Turner testified that Guerico's warehouse lights were turned off when the produce business closed and there was no light in the lot at the time of the shooting. He stated that when he left in the evening he usually left the Iberville St. entrance open to allow the remaining cars to exit. Ware corroborated that statement. Turner would return to work after 5:00 a.m. to close the Iberville St. entrance and went home for a while and returned to open the lot.
Turner also said the lock on the N. Peters St. entrance was broken once and the cable was down when he arrived for work. Turner used a larger lock and informed Guerico, but he did not call the police. He testified that he knew someone was in the lot at night collecting money and he informed Guerico once or twice about the problem prior to the shooting.
Steven Alley, the Assistant Manager at Victoria Station Restaurant located behind the N. Peters lot, testified that he was working the night of March 2, 1984 and saw Coblentz after the shooting. He said the lot's lighting was poor and two nearby street lights had recently been removed. He did not know the lot had regular hours. He stated the sign with the parking rates did not specify the hours of operation. Prior to the shooting he had seen a person collecting money until about 11:00 p.m. *101 about five times. Alley said the day-time attendant (Turner) did not wear a uniform nor did the man he saw at night. Alley assumed the lot's owner hired someone to work at night during Mardi Gras. He said a customer had complained a few nights before the shooting about having to pay for parking.
Roy Guerico, Jr., President of R. Guerico and Sons, Inc. and Vice President of North Peters Parking, Inc., testified that he was not aware that someone had been illegally collecting for night parking until two months after the shooting when his sister-in-law called him. Guerico said he immediately went to the lot but no one was there. The next day Turner informed him about the night-time collections. Guerico claims that was the only time Turner mentioned the problem. Guerico testified that the only criminal activity he knew about (for two years prior to the shooting) involved his produce business. He said there were no assaults or rapes in the parking lot and operating procedures for the lot were not changed after the shooting.
Raymond Pendleton, a security expert, testified that crime in that area of the lot was higher at night and during Mardi Gras. Pendleton noted that from February 12, 1982 to March 2, 1984 there were 26 calls to the police relating to the entire 200 block of N. Peters St., including eighteen responses at night. He said the parking lot's lighting was poor and the security inadequate. Pendleton stated the parking lot should have been secured when it was not open in order to prevent people from entering, and signs at each entrance were essential.
A neurosurgeon, a speech therapist, a neuropsychologist and a rehabilitation expert testified as to Coblentz's physical and rehabilitative problems. His father, Ronald Coblentz, testified as to his son's difficulties after the shooting. An economist testified as to Coblentz's economic losses.
THE LAW
In order to prevail in Louisiana in a negligence action under our duty-risk analysis, the plaintiff must prove (1) that the defendant owed a duty of care to the plaintiff; (2) that the defendant breached the duty; (3) that the breach was a cause-in-fact of the harm; (4) that the risk and harm encountered by the plaintiff falls within the scope of the protection afforded by the duty breached (proximate cause). Crochet v. Hospital Service District No. 1 of Terrebonne Parish, 476 So. 2d 516 (La. App. 1st Cir.1985), writ denied 478 So. 2d 1235 (La.1985), citing Dixie Drive It Yourself Systems v. American Beverage Company, 242 La. 471, 137 So. 2d 298 (1962). The plaintiff must also prove resultant damages. Harris v. Pizza Hut of Louisiana, 455 So. 2d 1364 (La.1984).
A business establishment is under a duty to take reasonable care for the safety of its patrons, but is not the insurer of their safety. Phillips v. Equitable Life Assurance Company of the United States, 413 So. 2d 696 (La.App. 4th Cir.1982), writ denied 420 So. 2d 164 (La.1982).
This duty does not extend to unforeseeable or unanticipated criminal acts by independent third persons. Only when the owner, management or employees of a business have or should have knowledge of a third person's intended injurious conduct that is about to occur and which is within the power of the owner, management or employees to protect against, does the duty arise. Banks v. Hyatt Corp., 722 F.2d 214 (5th Cir.1984); Rodriguez v. New Orleans Public Service, Inc., 400 So. 2d 884 (La.1981); Davenport v. Nixon, 434 So. 2d 1203 (La.App. 1st Cir.1983). When the independent, intentional, tortious or criminal acts of third persons constitute the unreasonable risk, the duty can be discharged by summoning the police at the time the proprietor knows or should reasonably anticipate that the third person poses a probable danger.
(citations omitted) Ballew v. Southland Corporation, 482 So. 2d 890, 893 (La.App. 2d Cir.1986). See also Foster v. Colonel Sanders Kentucky Fried Chicken, Inc., 526 So. 2d 252 (La.2d Cir.1988).
The jury's findings of fact and determination of causation and negligence *102 are given great deference and cannot be disturbed absent manifest error. Harris v. Pizza Hut, supra; Canter v. Koehring Company, 283 So. 2d 716 (La.1973).
ANALYSIS
Coblentz's five specifications argue against the jury's determinations in the steps of its duty-risk analysis.
It is doubtful whether Coblentz and his friends should be considered patrons of the parking lot merely because they parked in the lot. Leppo testified he thought the man who asked for money was a hustler and they did not have to pay to park. Even if the four are deemed to be good faith patrons, the question is what duty, if any, the lot owner/operator would owe under these circumstances.
What constitutes reasonable care is difficult to ascertain. The duty would not usually extend to the unforeseeable or unanticipated criminal acts of an unknown third person. The duty arises only when the owner has knowledge or knowledge can be imputed of a third person's intended criminal conduct and it is within the owner's power to protect. Davenport v. Nixon, supra.
Turner testified that he told Guerico once or twice that someone was collecting money at night. Guerico denied any knowledge of the night-time activity until two months after the shooting. The security expert testified that 26 calls were made to the police in the prior two years pertaining to the 200 block of N. Peters St. We find that information is not sufficient to put the lot owner on notice that someone would commit a criminal act. See Pennington v. Church's Fried Chicken, Inc., 393 So. 2d 360 (La.App. 1st Cir.1980).
The jury gave negative responses to the interrogatories that asked whether the defendants were "at fault or the legal cause of the injuries sustained by Coblentz." After reviewing the evidence and the unusual circumstances, this Court cannot conclude that the jury was manifestly erroneous. See Phillips v. Equitable Life Assurance Company of the United States, supra.
The judgment is affirmed.
AFFIRMED.
NOTES
[1] Sentry Insurance company's motion for summary judgment was denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2860561/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00239-CR
Rodney Jermaine Johnson, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 46,934, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
Rodney Jermaine Johnson appeals from a trial-court judgment convicting him of capital
murder of a child under age six. See Tex. Penal Code Ann. § 19.03(a)(8) (West 1994). The State did
not seek the death penalty. The jury found Johnson guilty and the trial judge fixed punishment at life
imprisonment. See Tex. Code Crim. Proc. Ann. art. 37.071 (West Supp. 1997). We will affirm the
judgment.
THE CONTROVERSY
The victim of Johnson's offense was the twenty-two-day-old daughter of the appellant and
his wife, Marva Johnson. The evidence established that the victim died November 13, 1996, as the result
of skull fractures, brain hemorrhages, and right frontal lobe lacerations of the brain. According to the
medical examiner these injuries were caused by blunt force head impacts. An autopsy revealed evidence
of older brain and rib injuries dating throughout the life of the child.
On November 20, 1996, three days after the baby's death, Johnson gave a statement to
the State's chief investigator. According to his statement, during the night of November 5-6, 1996, the
victim was lying in her bassinet and crying. Johnson stated he had become frustrated and hit the baby with
his knuckles in an attempt to stop her crying and to calm her down. He further stated that on another
occasion, approximately one week before her death, he picked up the infant, again in response to her
crying, and squeezed her. He stated that while he squeezed her he noticed that her ribs went in too far.
Johnson did not testify at trial.
PRESERVATION OF ERROR
In his only point of error, Johnson complains the trial court erred when it allowed the State
to introduce evidence of "old injuries" sustained by the victim. There were two types of "old injuries": head
and rib injuries. In an opening statement, the prosecution stated, without objection, that Johnson both hit
the child and squeezed the child around the ribs. The State offered into evidence, without objection, an
abridged version of the appellant's written statement to the State's investigator. In that statement, Johnson
described how he had hit the baby the night of November 5-6, 1996 and how he had squeezed and broken
the baby's ribs approximately one week before her death. Evidence of these injuries was again introduced
into evidence by Johnson when he offered the entire statement into evidence under the rule of optional
completeness. See Tex. R. Crim. Evid. 107; Finley v. State, 917 S.W.2d 122, 125 (Tex. App.--Austin
1996, pet. ref'd).
Johnson now complains about the admissibility of such evidence. He failed to object,
however, when that evidence was first presented. In order to preserve his complaint for appellate review,
Johnson was obliged to present "to the trial court a timely request, objection or motion, stating the specific
grounds for the ruling he desired the court to make if the specific grounds were not apparent from the
context." See Tex. R. App. P. 52 (a); see also Davis v. Davis, 734 S.W.2d 707, 710 (Tex.
App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.). No such timely request, objection, or motion appears
in the record.
Johnson's later objection, when the issue arose again in the context of the medical
examiner's testimony and autopsy reports, was untimely and therefore did not preserve error. See Tex.
R. App. P. 52(a); Etheridge v. State, 903 S.W.2d 1, 14 (Tex. Crim. App. 1994), cert. denied, 116 S.
Ct. 314 (1995) (citing Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990), cert. denied,
501 U.S. 1259 (1991)). The evidence was already before the jury. In the absence of an objection at the
time the evidence was first admitted, the claimed error was not preserved for our review. Id. We overrule
the point of error.
For the reasons given, we affirm the trial-court judgment.
John Powers, Justice
Before Justices Powers, Aboussie and B. A. Smith
Affirmed
Filed: November 6, 1997
Do Not Publish
R WP="BR2">
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 46,934, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
Rodney Jermaine Johnson appeals from a trial-court judgment convicting him of capital
murder of a child under age six. See Tex. Penal Code Ann. § 19.03(a)(8) (West 1994). The State did
not seek the death penalty. The jury found Johnson guilty and the trial judge fixed punishment at life
imprisonment. See Tex. Code Crim. Proc. Ann. art. 37.071 (West Supp. 1997). We will affirm the
judgment.
THE CONTROVERSY
The victim of Johnson's offense was the twenty-two-day-old daughter of the appellant and
his wife, Marva Johnson. The evidence established that the victim died November 13, 1996, as the result
of skull fractures, brain hemorrhages, and right frontal lobe lacerations of the brain. According to the
medical examiner these injuries were caused by blunt force head impacts. An autopsy revealed evidence
of older brain and rib injuries dating throughout the life of the child.
On November 20, 1996, three days after the baby's death, Johnson gave a statement to
the State's chief investigator. According to his statement, during the night of November 5-6, 1996, the
victim was lying in her bassinet and crying. Johnson stated he had become frustrated and hit the baby with
his knuckles in an attempt to stop her crying and to calm her down. He further stated that on another
occasion, approximately one week before her death, he picked up the infant, again in response to her
crying, and squeezed her. He stated that while he squeezed her he noticed that her ribs went in too far.
Johnson did not testify at trial.
PRESERVATION OF ERROR
In his only point of error, Johnson complains the trial court erred when it allowed the State
to introduce evidence of "old injuries" sustained by the victim. There were two types of "old injuries": head
and rib injuries. In an opening statement, the prosecution stated, without objection, that Johnson both hit
the child and squeezed the child around the ribs. The State offered into evidence, without objection, an
abridged version of the appellant's written statement to the State's investigator. In that statement, Johnson
described how he had hit the baby the night of November 5-6, 1996 and how he had squeezed and broken
the baby's ribs approximately one week before her death. Evidence of these injuries was again introduced
into evidence by Johnson when he offered the entire statement into evidence under the rule of optional
completeness. See Tex. R. Crim. Evid. 107; Finley v. State, 917 S.W.2d 122, 125 (Tex. App.--Austin
1996, pet. ref'd).
Johnson now complains about the admissibility of such evidence. He failed to object,
however, when that evidence was first presented. In order to preserve his complaint for appellate review,
Johnson was obliged to present "to the trial court a timely request, objection or motion, stating the specific
grounds for the ruling he desired the court to make if the specific grounds were not apparent from the
context." See Tex. R. App. P. 52 (a); see also Davis v. Davis, 734 S.W.2d 707, 710 (Tex.
App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.). No such timely request, objection, or motion appears
in the record.
Johnson's later objection, when the issue arose again in the context of the medical
examiner's testimony and autopsy reports, was untimely and therefore did not preserve error. See Tex.
R. App. P. 52(a); Ether | 01-03-2023 | 09-05-2015 |
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG><CENTER>NO. 03-9<A NAME="1">6</A>-00<A NAME="2">556</A>-CV</CENTER>
</STRONG>
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG></STRONG><CENTER><A NAME="3">Bruce E. Bowman</A>, Appellant</CENTER>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER><A NAME="4">Texas Department of Criminal Justice--Institutional Division; Wayne Scott, </A></CENTER>
</STRONG></P>
<P><STRONG><CENTER>D. D. Sanders, Ricky Hudson, Linda D. Hales, Lester V. Rocha</CENTER>
</STRONG></P>
<P><STRONG><CENTER> and Joe Heredia, Jr., Appellees</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><HR SIZE="3">
</STRONG></P>
<SPAN STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF <A NAME="5">TRAVIS</A> COUNTY, <A NAME="6">98TH</A> JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN>
<P><SPAN STYLE="font-size: 11pt"><STRONG><CENTER>NO. <A NAME="7">95-10668</A>, HONORABLE <A NAME="8">MARGARET A. COOPER</A>, JUDGE PRESIDING </STRONG></SPAN><STRONG></CENTER>
</STRONG></P>
<P><STRONG><HR SIZE="3">
</STRONG></P>
<STRONG>PER CURIAM</STRONG>
<BR WP="BR1"><BR WP="BR2">
<P> We will dismiss this appeal for want of prosecution. Bruce Bowman sued the Texas
Department of Criminal Justice--Institutional Division, Wayne Scott, D. D. Sanders, Ricky Hudson, Linda
D. Hales, Lester V. Rocha, and Joe Heredia, Jr. Bowman complained of his treatment as an inmate. The
appellees moved to dismiss on the grounds that they were immune from suit and the case was frivolous.
The trial court granted the motion generally.</P>
<P> Bowman appealed, but filed his transcript<A HREF="#N_1_"><SUP> (1)</SUP></A> more than sixty days after the date the judgment
was signed. This Court abated the appeal for a trial-court determination of when Bowman received notice
of the trial-court judgment. On February 27, 1997, after the trial-court's determination of the notice date
showed that Bowman filed the transcript timely, this Court reinstated the appeal and extended the time to
file the statement of facts until May 16, 1997. On May 16, however, the court reporter filed an affidavit
in which she averred that no record was taken of the trial-court proceedings.</P>
<P> Because no statement of facts will be filed, Bowman's brief ordinarily would be due thirty
days after the transcript was filed. Because of the unusual procedure of this case, this Court computed the
brief-due date from the reinstatement of the appeal following the determination of the date Bowman
received notice of the judgment. Bowman's brief was due on March 31, 1997. It was therefore overdue
immediately when the Court received notice that no statement of facts would be filed. On May 20, 1997,
this Court's clerk's office sent notice to Bowman that his brief was overdue.</P>
<P> The notice of overdue brief gave Bowman until June 20, 1997 to file a motion for extension
of time to file a brief. The notice warned that, if he failed to file any such motion, the Court could dismiss
his appeal. To date, he has filed neither a motion nor a brief.</P>
<P> We dismiss the appeal for want of prosecution. Tex. R. App. P. 38.8(a)(1).</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P>Before Justices Powers, Aboussie and B. A. Smith</P>
<P>Appeal Dismissed for Want of Prosecution</P>
<P>Filed: October 2, 1997</P>
<P>Do Not Publish
<P><A NAME="N_1_">1. </A> Under the current Rules of Appellate Procedure, this compilation of trial court documents is
called the clerk's record. The transcription of trial-court proceedings is known as the reporter's record.
We will use the nomenclature of the old rules because this appeal began under the old rules of appellate
procedure, and all actions but this dismissal occurred under their authority. </P>
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
</P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG><CENTER>NO. 03-9<A NAME="1">7</A>-00<A NAME="2">322</A>-CV</CENTER>
</STRONG>
<P><HR ALIGN="CENTER" WIDTH="26%">
</P>
<STRONG></STRONG><CENTER><A NAME="3">Marjorie Moore</A>, Appellant</CENTER>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER><A NAME="4">O'Barr Rost, Inc.; O'Barr Rost; and Pamela Rickel</A>, Appellees</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><HR SIZE="3">
</STRONG></P>
<SPAN STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF <A NAME="5">WILLIAMSON</A> COUNTY, <A NAME="6">26TH</A> JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN>
<P><SPAN STYLE="font-size: 11pt"><STRONG><CENTER>NO. <A NAME="7">94-367-C26</A>, HONORABLE <A NAME="8">BILLY RAY STUBBLEFIELD</A>, JUDGE PRESIDING </STRONG></SPAN><STRONG></CENTER>
</STRONG></P>
<P><STRONG><HR SIZE="3">
</STRONG></P>
<STRONG>PER CURIAM</STRONG>
<P> Marjorie Moore states by motion that she no longer desires to pursue this appeal. We
grant her motion and dismiss this appeal. Tex. R. App. P. 59(a)(1)(B).</P>
<BR WP="BR1"><BR WP="BR2">
<P>Before Justices Powers, Jones and Kidd</P>
<P>Dismissed on Appellant's Motion</P>
<P>Filed: August 28, 1997</P>
<P>Do Not Publish</P>
</BODY>
</HTML> | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/162234/ | F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 16 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-4231
(D.C. No. 2:00-CR-580-C)
FRANCISCO MANUEL (D. Utah)
GONZALEZ-LOPEZ, also known as
Francisco Manuel Gonzalez,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO , ANDERSON , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Francisco Manuel Gonzalez-Lopez appeals from his forty-six
month sentence, asserting that the district court erroneously denied his motion for
a downward departure and, alternatively, that the district court improperly applied
an enhanced sentence based on factors that were not alleged in his indictment.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and
we affirm.
I.
Gonzalez-Lopez was deported to Mexico in 1999 after being convicted
in Utah of burglary and aggravated assault, aggravated felonies as defined under
8 U.S.C. § 1101(a)(43). On October 25, 2000, Gonzalez-Lopez was again
arrested in Utah and charged with three misdemeanors. After obtaining
information regarding Gonzalez-Lopez’s identity, the INS sought and received
an indictment charging him with illegal re-entry of a deported alien.
Gonzalez-Lopez was arrested on January 11, 2001.
Gonzalez-Lopez pled guilty to the charge, but moved the court for
a downward departure based on cultural assimilation. The court denied that
motion and sentenced Gonzalez-Lopez to forty-six months, based in large part
on a sixteen-level sentence enhancement stemming from his previous deportation
after a felony conviction. This appeal followed.
-2-
II.
“Our review of a sentencing court’s refusal to grant a downward departure
is narrow.” United States v. Browning , 252 F.3d 1153, 1160 (10th Cir. 2001).
Indeed, “[a]bsent the trial court’s clear misunderstanding of its discretion to
depart, or its imposition of a sentence which violates the law or incorrectly
applies the guidelines, we have no jurisdiction to review a refusal to depart.”
United States v. Coddington , 118 F.3d 1439, 1441 (10th Cir. 1997) (quotation
omitted). As this court stated in Browning ,
[C]ourts of appeals cannot exercise jurisdiction to review a
sentencing court’s refusal to depart from the sentencing guidelines
except in the very rare circumstance that the district court states
that it does not have any authority to depart from the sentencing
guideline range for the entire class of circumstances proffered by
the defendant . . . . This exception does not apply when a sentencing
court concludes under the defendant’s particular circumstances that
it does not have the authority to depart.
Browning , 252 F.3d at 1160-61 (quotation omitted). Gonzalez-Lopez argues that
the district court erroneously believed it only had the authority to depart
downward based on cultural assimilation if Gonzalez-Lopez grew up in the United
States and had lived in the country for many years. To the contrary, the
sentencing transcript reveals that the district court recognized that it had the
authority to grant a downward departure based on cultural assimilation, but
-3-
elected not to do so. 1
While the district court used, by example, other factual
situations to explain its decision that Mr. Gonzalez-Lopez’s situation was not
beyond the heartland of typical cases justifying a downward departure, it did not
limit itself to those particular factors as providing a bar to its discretionary
authority. The transcript contains a number of additional references to
Gonzalez-Lopez’s situation demonstrating that the court understood its authority
to grant a downward departure, if it chose to do so. Thus, this court does not
have jurisdiction to review the district court’s refusal to depart.
III.
Gonzalez-Lopez next argues that his prior felony conviction cannot be used
to enhance his sentence because it is not a part of the offense of conviction.
“We review the district court’s interpretation and application of the Sentencing
Guidelines de novo .” United States v. Martinez-Villalva , 232 F.3d 1329,
1
Gonzalez-Lopez urges downward departure under the authority of United
States v. Lipman , 133 F.3d 726, 730 (9th Cir. 1998), one of at least two decisions
specifically recognizing cultural assimilation as an allowable justification for
downward departure. See also United States v. Rodriguez-Montelongo , 263 F.3d
429, 433 (5th Cir. 2001) (“[W]e hold that cultural assimilation is a permissible
basis for downward departure.”). Each of these decisions, however, has
recognized that departures based on cultural assimilation are akin to consideration
of family and community ties, which are discouraged factors under § 5H1.6 of the
Guidelines, and which must be extraordinary before a departure may be justified.
See Rodriguez-Montelongo , 263 F.3d at 433-34; Lipman , 133 F.3d at 730; see
also United States v. Gallegos , 129 F.3d 1140, 1146 (10th Cir. 1997) (addressing
family circumstances).
-4-
1332 (10th Cir. 2000). Specifically, Gonzalez-Lopez does not challenge the
sufficiency of the indictment, but instead argues “that his sentence exceeds the
maximum penalty for the offense of conviction.” Aplt. Br. at 8. We disagree.
Gonzalez-Lopez was indicted for, and pled guilty to a violation of 8 U.S.C.
§ 1326 prohibiting the re-entry of removed aliens. Subsection (b) of § 1326
increases the maximum penalty to twenty years in prison for any alien “whose
removal was subsequent to a conviction for commission of an aggravated felony.”
8 U.S.C. § 1326(b)(2). Gonzalez-Lopez’s conviction for burglary and assault
places him squarely within that subsection. Gonzalez-Lopez also correctly
concedes that his argument is negated by the Supreme Court’s decision in
Almendarez-Torres v. United States , 523 U.S. 224 (1998), which held that a prior
felony conviction under § 1326(b)(2) is merely a sentencing factor based on
recidivism. Almendarez-Torres , 523 U.S. at 235. Gonzalez-Lopez was clearly
aware of the potential maximum penalty when he signed his plea agreement,
and the district court did not err by enhancing his base offense level to an
amount that was well below that statutory maximum.
-5-
The judgment of the United States District Court for the District of Utah
is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
-6- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1332090/ | 218 Ga. 180 (1962)
127 S.E.2d 19
STROTHER et al.
v.
KENNEDY, Executor, et al.
21692.
Supreme Court of Georgia.
Argued June 11, 1962.
Decided June 25, 1962.
Rehearing Denied July 11, 1962 And July 16, 1962.
Cumming, Nixon, Eve, Waller & Capers, Calhoun & Mobley, for plaintiffs in error.
Killebrew, McGahee & Plunkett, Boller & Yow, contra.
CANDLER, Justice.
John U. Strother, of Richmond County, executed a will on August 26, 1956, in which he named F. Frederick Kennedy executor. After Strother's death on April 9, 1958, his will was probated in solemn form in the Court of Ordinary of Richmond County, and no exception was taken to that judgment. By item 3 he bequeathed to his wife, Rhebe Ducasse Strother, an interest in certain items of his property and $100 per month during the remainder of her life, but item 4 expressly provides that the bequest to her is in lieu of a child's part, dower, inheritance, or year's support. By items 6, 7, 8, and 9 he bequeathed small amounts of money to his former wife, two cousins, and a friend, all of which were paid. By item 10 he bequeathed the rest of his estate "of every kind, character and description," to five named persons as trustees for use by them in establishing and maintaining a home for indigent colored people 60 years of age or older residing in Augusta, Georgia, the home to be known *181 as "Strother's Old Folks Home." Item 12 provides that if the trust created by item 10 should, for any reason, fail, be set aside or declared void, Rhebe Ducasse Strother, his wife, should have a life interest in such fund with remainder over in fee simple to Joseph A. Strother. However, this item bequeaths the contingent life estate in such fund to her in lieu of the provision made for her in item 3 of the will and also in lieu of dower, child's part, inheritance, or a year's support. After the will was probated, Mrs. Strother applied for a year's support from his estate. The appraisers set apart to her $10,041 in cash and specified items of personal property which they valued at $1,959. Their return was made the judgment of Richmond County Court of Ordinary on September 2, 1958. She accepted the money and property set apart to her as a year's support and retained it. During January 1959, she applied for dower, and under the provisions of Code § 31-108 elected to take an amount of money which would belong absolutely to her in lieu of a life interest in one-third of the lands which he owned at the time of his death. Her election was assented to by the executor of her husband's estate and approved by the Ordinary of Richmond County. The commissioners assigned to her $15,000 and their assignment was made the judgment of the Superior Court of Richmond County on June 1, 1960. On June 14, 1960, she accepted from the executor, the $15,000 thus assigned to her and retained it. Her receipt therefor recites: "In consideration of such payment, the undersigned does expressly release and fully discharge said F. Frederick Kennedy, in his representative capacity aforesaid, from any and all further claims and demands which she has by virtue of being the widow of John U. Strother."
On December 20, 1960, Kennedy, as executor of Strother's estate, filed a proceeding in the Superior Court of Richmond County, in which he prayed for construction of the testator's will and for direction respecting distribution of his estate. Rhebe Ducasse Strother, Joseph A. Strother, the five persons named as trustees of the trust estate created by item 10 of the testator's will, and Eugene Cook as Attorney General of Georgia were named as proper, legal and necessary parties defendant. His petition alleges all of the facts stated above, and a copy of Strother's will is attached thereto as an exhibit. On July 25, 1961, Joseph A. Strother, one of the parties named in *182 Kennedy's proceeding for construction and direction, filed an application for stay of that proceeding under § 201 of the Soldiers' and Sailors' Civil Relief Act of 1940 (54 Stat. 1178), alleging that he was in military service and stationed overseas and that his rights would be materially and seriously affected by a prosecution of the proceeding in his absence. On a hearing of his application, a stay was granted until October 16, 1961, and to such order no exception was taken. Eugene Cook, as Attorney General, answered the petition by admitting some of its allegations and further stating that he was for want of sufficient information unable to admit or deny others, but asked for strict proof thereof. The five trustees of the property bequeathed to them by item 10 of the testator's will responded and alleged that the property devised to them for use in establishing and maintaining "Strother's Old Folks Home" in Augusta, Georgia, created a valid, enforceable charitable trust; that Mrs. Strother, as widow of John U. Strother, was his sole and only heir at law; that she had by her election to take dower and a year's support barred her right to take any further portion of his estate; that she, as such widow and sole heir at law of the deceased testator, is the only person who could have invoked the provisions of Code Ann. § 113-107, which declares: "No person leaving a wife or child, or descendants of child, shall, by will, devise more than one-third of his estate to any charitable, religious, educational, or civil institution, to the exclusion of such wife or child; and in all cases the will containing such devise shall be executed at least 90 days before the death of the testator, or such devise shall be void; Provided, however, that when the estate shall exceed $200,000 in value, the restrictions of this section shall not apply to such excess, and in estimating values that of a life estate under the annuity tables shall be included"; and that she, by her election to take a year's support and dower in lieu of the provision made for her by the testator's will, had precluded herself from her right as a widow to assert in her behalf the provisions of the above quoted Code section.
Joseph A. Strother responded to the executor's petition for construction and direction and alleged: In 1939, John U. Strother and Elise B. Strother (a former wife of John U. Strother) entered into a contract with Pinkie C. Bussey (respondent's *183 mother) by the terms of which they agreed to legally adopt respondent, and pursuant to that contract his mother gave custody of him to the Strothers and relinquished her parental rights to them. At that time, the Strothers agreed with Pinkie C. Bussey that, if respondent survived them, he would receive all of their property on the death of the one surviving the other. Respondent was given the name of "Joseph Albert Strother." He remained with the Strothers until 1949, was cared for and educated by them. He, in turn, rendered to them absolute filial devotion, obedience and services consistent with his age and knew no other persons as his parents, but they failed to take the necessary action to legally adopt him as their son as they had agreed to do. He further alleged that the estate left by John U. Strother was valued at more than $450,000 by appraisers appointed by the Ordinary of Richmond County, and that more than one-third of his estate was bequeathed to the trustees of such purported trust he sought to create by item 10 of his will. He also alleged that the trust which the testator attempted to create has failed because the subject of such trust is uncertain and unenforceable under the laws of this State; and since testator's widow has elected not to take under testator's will, he is, as remainderman under item 12 of his will, entitled to all of the property mentioned in item 10 of the will.
Kennedy, as executor, demurred to his response and moved to strike it on the grounds that it fails to allege any fact which would entitle him to the relief sought thereby; that it fails to allege any facts which are sufficient to show that he is entitled to any part of the testator's estate under the provisions of his will; and that, since his response affirmatively shows on its face that he is neither a natural child nor a legally adopted child of the testator, he is not entitled to invoke the provisions of Code Ann. § 113-107. The court sustained these grounds of demurrer and struck his response. On the trial, F. Frederick Kennedy testified that the allegations of his petition were true and that the testator's estate was worth approximately $350,000 and it is conceded that the testator by item 10 of his will devised more than one-third of his estate to the charitable trust which he thereby sought to create. The case resulted in a final decree sustaining the validity of the trust estate created by the testator and direction *184 to the executor to pay over to the trustees all of the property bequeathed to them by item 10 of the testator's will. Mrs. Rhebe Ducasse Strother and Joseph A. Strother excepted. Held:
1. "A devise or bequest to a charitable use will be sustained and carried out in this State." Code § 113-815. "Equity has jurisdiction to carry into effect the charitable bequests of a testator, or founder, or donor, where the same are definite and specific in their objects, and capable of being executed." Code § 108-201. "The following subjects are proper matters of charity for the jurisdiction of equity: Relief of aged, impotent, diseased, or poor people." Code § 108-203. "It is a cardinal rule in the construction of wills to give effect to the intention of the testator, when the same can be done without violating any settled principle of law." Beall v. Fox, 4 Ga. 403, 427; Moss v. Youngblood, 187 Ga. 188 (3) (200 SE 689). In the instant case the testator bequeathed the residue of his estate to five trustees and authorized them to use it for the purpose of establishing and maintaining a home for indigent colored people residing in Augusta, Ga., who were sixty years of age or older. He authorized and empowered such trustees and their successors to select those persons who came within the provisions of the bequest and to furnish them living quarters, food, laundry and bed linen without charge therefor. Hence, there is clearly no merit in the contention that the charitable trust which the testator created is void for uncertainty and for that reason unenforceable under the laws of this State. Houston v. Mills Memorial Home, Inc., 202 Ga. 540 (43 SE2d 680), and the several cases there cited.
2. A testator may by his will make provision for his wife in lieu of year's support and dower. Code § 113-1007; Bass v. Douglas, 150 Ga. 678 (104 SE 625). Compare Holt v. First Nat. Bank &c. Co. in Macon, 180 Ga. 184 (178 SE 433). And where, as in this case, the testator made certain bequests to his wife, but expressly provided that they were in lieu of a year's support and dower and she applied for and received both from his estate, she, by such an election, completely excluded herself from his will. Smith v. Davis, 203 Ga. 175 (45 SE2d 609). Since Mrs. Strother the testator's widow elected not to take under his will, she is in no position *185 to invoke the provisions of Code Ann. § 113-107 which prohibits a testator from devising more than one-third of his estate to any charitable use to the exclusion of his wife, child or the descendants of a child; and this is especially true, since an invocation of that section could not possibly result in any benefit to her after she had taken both a year's support and dower from his estate which are expressly declared to be in lieu of any provision his will made for her.
3. Code Ann. § 113-107 is a limitation on testamentary power and applies only to those persons named in the statute. The prohibition is not made in the public interest, but only for the prevention of what the statute regards as a private wrong to a widow, child or the descendants of a child. Such statute does not prohibit a devise for charitable uses; on the contrary, such devises are expressly authorized by law, and are favored by the declared policy of the State. Monahan v. O'Byrne, 147 Ga. 633 (95 SE 210), and the authorities there cited. From the ruling made in the preceding division, it necessarily follows that Mrs. Strother, under the express provisions of the testator's will, is not entitled to a life estate in any portion of the property he bequeathed by item 10 of his will for a charitable use, though the amount so bequeathed by him exceeds that sum which he could legally devise for such a use under Code Ann. § 113-107. Her life interest in such excess, like other bequests he made to her, being expressly in lieu of a year's support and dower from his estate.
4. As shown by our statement of the facts, Kennedy, as executor of the testator's estate, demurred to Joseph A. Strother's response and moved to strike it on the ground that it fails to set forth allegations sufficient to entitle him to the relief sought thereby. We think the court properly struck his response. A pleader must allege his cause plainly, fully and distinctly. Code § 81-101. Essential allegations will neither be implied nor presumed but must be distinctly alleged; otherwise the pleading is defective. Ewing v. Paulk, 208 Ga. 722 (69 SE2d 268). It is an elementary rule of construction, as applied to a pleading, that it is to be construed most strongly against the pleader; and that, if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties. *186 Krueger v. MacDougald, 148 Ga. 429 (96 SE 867). It is also a well settled rule that pleadings must be construed in the light of their omissions as well as their averments. Houston v. Pollard, 217 Ga. 184 (121 SE2d 629). The response filed by Joseph A. Strother alleges that he was born December 31, 1927, in Richmond County, Georgia, the seventh child of Pinkie C. Bussey and as such was known as "Joseph Albert Bussey." The husband of Pinkie C. Bussey was James Bussey who died on or about September 29, 1938. There is no allegation in his response showing when Pinkie C. Bussey married James Bussey or that James Bussey was in fact the father of respondent or that he was born while Pinkie C. Bussey and James Bussey were married to each other. Strangely, the pleader omits from his response any allegation affirmatively showing the relationship between Joseph A. Strother and James Bussey. Properly construed, his response does not show that Pinkie C. Bussey, his mother, had the exclusive right to contract with the Strothers for his adoption; and in the absence of allegations affirmatively showing her exclusive right to do so, this court cannot hold that the contract she made with the Strothers to adopt him was a valid contract of adoption. This court will always assume that a pleader has stated his case as strongly in his favor as the facts will justify (Morgan v. Mitchell, 209 Ga. 348, 351, 72 SE2d 310), and a positive allegation showing that a legal adoption of the respondent could be accomplished on Pinkie C. Bussey's consent alone was necessary to show the validity of the adoption contract she allegedly made with the Strothers. See Code Ann. § 74-403. Mock v. Neffler, 148 Ga. 25 (95 SE 673); Crum v. Fendig, 157 Ga. 528 (121 SE 825); and Scott v. Scott, 169 Ga. 290 (150 SE 154). However, this ruling should not be construed as an intimation by this court that it would have been erroneous for the court to strike Joseph A. Strother's response even if its allegations had been sufficient to show that John U. Strother and his former wife made a valid adoption contract with Pinkie C. Bussey, his mother, as the only person whose consent was necessary for them to legally adopt him, which contract the Strothers afterwards breached by their failure to adopt him. Even as a "virtually adopted child" of John U. Strother, the testator, he is not one of the persons enumerated in Code Ann. *187 § 113-107 who can invoke its provisions. See Crawford v. Wilson, 139 Ga. 654 (78 SE 30, 44 LRA (NS) 773); Baker v. Henderson, 208 Ga. 698, 702 (69 SE2d 278); Foster v. Cheek, 212 Ga. 821, 827 (96 SE2d 545); and Banes v. Derricotte, 215 Ga. 892 (1) (114 SE2d 12) and the cases there cited. Since neither Rhebe Ducasse Strother nor Joseph A. Strother can, for reasons previously stated, invoke the provisions of Code Ann. § 113-107, it necessarily follows that the charitable trust created by item 10 of the will is unaffected by the provisions of this Code section, though the amount bequeathed or devised for such purpose exceeds one-third of the testator's estate. And since the record shows that there has been no reversion of the amount bequeathed by the testator for a charitable use, we hold that Joseph A. Strother, as a contingent remainderman of such trust fund, is not entitled to any part thereof.
5. For no reason assigned is the judgment complained of erroneous. Hence, the court correctly directed the executor to pay over to the trustees all of the property bequeathed to them by item 10 of the testator's will.
Judgment affirmed. All the Justice concur. | 01-03-2023 | 10-30-2013 |
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