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https://www.courtlistener.com/api/rest/v3/opinions/96342/ | 199 U.S. 260 (1905)
COCHRAN AND THE FIDELITY AND DEPOSIT COMPANY
v.
MONTGOMERY COUNTY
SAME
v.
SAME.
Nos. 37, 112.
Supreme Court of United States.
Argued November 2, 1905.
Decided November 27, 1905.
ERROR AND CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
*263 Mr. Edgar H. Gans and Mr. Thomas A. Whelan for plaintiffs in error.
Mr. William L. Martin and Jesse F. Stallings for defendant in error.
*267 MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.
The first question is whether this court can entertain jurisdiction of this writ of error, and this must be answered in the negative, if the ground on which the jurisdiction of the Circuit Court was invoked was "dependent entirely upon the opposite parties to the suit or controversy, being . . . citizens of different States," because in such case the judgment of the Circuit Court of Appeals was final. Act of March 3, 1891, 26 Stat. 828, c. 514, § 6.
By section one of the judiciary act of 1887, as corrected in 1888 (25 Stat. 433, c. 866), the Circuit Courts of the United States are given "original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and (1) arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or (2) in which controversy the United States are plaintiffs or petitioners, or (3) in which there shall be a controversy between citizens of different States, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, or (4) a controversy between citizens of the same State claiming lands under grants of different States, or (5) a controversy between citizens of a State and foreign States, citizens, or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, . . . and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant; . . . "
*268 Section 2 of the act provides for the removal of causes, as follows:
"That any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the Circuit Courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the Circuit Court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the Circuit Courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the Circuit Court of the United States for the proper district by the defendant or defendants therein, being non-residents of that State. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the Circuit Court of the United States for the proper district. And where a suit is now pending, or may be hereafter brought, in any state court, in which there is a controversy between a citizen of the State, in which the suit is brought and a citizen of another State, any defendant, being such citizen of another State, may remove such suit into the Circuit Court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said Circuit Court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the State, have the right, on account of such prejudice or local influence, to remove said cause: Provided, That if it further appear that said suit can be fully and justly determined as to the other defendants in the state court, without *269 being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said Circuit Court may direct the suit to be remanded, so far as relates to such other defendants, to the state court, to be proceeded with therein."
Section 3 of the act provides that, under the first three clauses of section 2, the petition for removal must be filed in the state court at the time or any time before the defendant is required, by the laws of the State or the rule of the state court in which such suit is brought, to answer or plead to the declaration or complaint.
In Smith v. Rines, 2 Sumn. 338, Mr. Justice Story held that under the judiciary act of 1789 such cases were only liable to removal from a state to the Circuit Court "as might, under the law, or at all events under the Constitution, have been brought before the Circuit Court by original process." And Mr. Justice Washington in Beardsley v. Torrey, 4 Wash. C.C. 286, and Mr. Justice Thompson in Ward v. Arredondo, 1 Paine, 410, expressed views to the same effect. In Gaines v. Fuentes, 92 U.S. 10, it was ruled that this was otherwise under the act of March 2, 1867.
But the act of 1887 restored the rule of 1789, and, as we have heretofore decided, those suits only can be removed of which the Circuit Courts are given original jurisdiction. Mexican National Railroad Company v. Davidson, 157 U.S. 201; Tennessee v. Union and Planters' Bank, 152 U.S. 454, 461. And on the face of this record it is apparent that the jurisdiction of the Circuit Court, as invoked, could only rest on diversity of citizenship. The case does not come within any other ground of original jurisdiction as defined by the act. It is true that one of the defendants was a citizen of the same State as the county of Montgomery, but the learned judge below held that where removal was sought on the ground of prejudice or local influence, the right of removal was not affected by another defendant and plaintiff being citizens of the same State as that where the suit was brought. 116 Fed. Rep. 985.
*270 Whether that view was correct or not jurisdiction was exercised as resting on diversity of citizenship, that is, as between the plaintiff and the removing defendant.
But while the judgment of the Circuit Court of Appeals must be regarded as final and the writ of error dismissed, we deem it our duty to grant the writ of certiorari, to which the record on the writ of error may stand as a return, in order to pass upon the question of the jurisdiction of the Circuit Court, in the exercise of one of the essential functions of this court, the determination of the jurisdiction of the courts below. Defiance Water Co. v. Defiance, 191 U.S. 184, 195.
In applications for removal under clauses one and two of section two of the act of 1887, all the defendants were required to join in the application. Chicago, R.I. & P.R. Co. v. Martin, 178 U.S. 245; Gableman v. Peoria, D. & E.R. Co., 179 U.S. 335. Under clause three, relating to cases of separable controversy, and clause four, all the defendants need not join. But the fourth clause, treating of removals because of prejudice or local influence, does not furnish a separate and independent ground of Federal jurisdiction, and, as Mr. Justice Bradley said in In re Pennsylvania Company, 137 U.S. 451, 456, "describes only a special case comprised in the preceding clauses." In that case we referred to the opinion of Mr. Justice Harlan in Malone v. Richmond & Danville Railroad Company, 35 Fed. Rep. 625, as expressing the correct view of the law. The question was whether the pecuniary limit was applicable under the fourth clause, and that involved consideration of the other clauses. Mr. Justice Harlan there said:
"It is clear from the above clauses, construing them all together, that the right of removal, at any time before trial, on the ground of prejudice or local influence, is restricted, by the act of 1887, to suits in which there is a controversy between citizens of different States; also that such right, in suits of that character, involving no Federal question, now belongs only to the defendant who is a citizen, or to the defendants who are citizens, of a State other than that in which the suit is brought. *271 And I think it is equally clear that the right of removal on the ground of prejudice or local influence does not exist in any case unless the sum or value of the matter in dispute exceeds $2,000, exclusive of interest and costs. The clauses of the second section of the act of 1887, defining the different kinds of suits that may be removed, preserve the same element of the value of the matter in dispute as is found in the first section, relating to the original jurisdiction of Circuit Courts. This is done by the provision giving the right of removal in suits `of which the Circuit Courts of the United States are given original jurisdiction by the preceding [first] section.'
". . . The subsequent clause, relating to prejudice and local influence, does not describe a new class of suits, removable from the state courts, but only specifies a distinct ground for removing one class of the suits previously defined, namely, that class in which there is a controversy between citizens of different States. And that ground the defendant is at liberty to set up `at any time before the trial;' whereas, by the third section of the act, the right to remove, upon any other ground, will be lost, if not exercised at the time or before `the defendant is required by the laws of the State or the rule of the state court' in which the suit is brought `to answer or plead to the declaration or complaint of the plaintiff.' The clause prescribing prejudice or local influence as ground for the removal of a suit `in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State,' cannot well be separated, in the process of interpretation, from the preceding clause in the same section, which, by referring to the first section, requires as a condition of the removal of a suit because of diverse citizenship the only kind of suit in which the existence of prejudice or local influence, as affecting the right of removal, is of any consequence that the matter in dispute shall exceed in value $2,000, exclusive of interest and costs."
The first subdivision of section 639 of the Revised Statutes was a reenactment of the twelfth section of the judiciary act; *272 the second subdivision, of the act of July 27, 1866; and the third subdivision, of the act of March 2, 1867. The act of March 3, 1875, repealed the first and second subdivisions, but left subdivision three unrepealed. Baltimore and Ohio Railroad Company v. Bates, 119 U.S. 464, 467. The act of March 3, 1887, repealed the act of 1867, or subdivision three of section 639. Fisk v. Henarie, 142 U.S. 467. In describing the class of suits removable on the ground of prejudice or local influence, the language in the act of 1887 is identical with that of 1867, that is, suits "in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State." The settled construction of the language of the act of 1867 and of the Revised Statutes was that the clause included cases wherein the controversy was between citizens of the State wherein the suit was pending and citizens of other States. The use of the identical language in the act of 1887-1888 showed that Congress intended the same construction should be applied, although under the act of 1887 the plaintiff could not remove a cause, while any defendant, being a citizen of a State other than that in which the suit was pending, might.
The Circuit Court was of opinion that the words "any defendant, being such citizen of another State, may remove," etc., implied that there might be defendants who were not citizens of another State and yet the cause be removable, but while the words, standing alone, are susceptible of that construction, we think it was not intended to change the meaning of the terms as previously determined (by the decisions under the act of 1789, and so on down), and that the class of cases removable on the ground of prejudice and local influence is confined to those in which there is a controversy between a citizen or citizens of the State in which the suit is pending and a citizen or citizens of another or other States, and that the clause did not include cases wherein the controversy was partly between citizens of the same State. To hold otherwise brings the language of the clause into conflict with the rule *273 that a suit to be removable must be within the original jurisdiction of the Circuit Court, departs from the settled former construction, and ignores the main purpose of the act of 1887, which was to restrict the jurisdiction of the Circuit Court. Hanrick v. Hanrick, 153 U.S. 192; Anderson v. Bowers, 43 Fed. Rep. 321; Moon on the Removal of Causes, § 189 and notes.
And there does not seem to be any escape from this conclusion in view of the provision of the first section of the act of 1887, that when the jurisdiction is founded solely on diversity of citizenship, suit can be brought "only in the district of the plaintiff or the defendant."
If brought in the district of the plaintiff or plaintiffs, the defendant or defendants (the singular embraces the plural) must necessarily be a citizen or citizens of another State than that of plaintiff or plaintiffs. If brought in the district of defendant or defendants no removal can be had, because it is only defendants who are "non-residents" who can remove under clause two, or under clause four, prejudice or local influence not being an independent ground of jurisdiction. But in order that a defendant entitled to remove might not be cut off from the exercise of that right by his co-defendants declining to join in the application, the fourth clause provided that "any defendant" might remove, and out of abundant caution the words were added, "being such citizen of another State," apparently to prevent misconstruction of the words "any defendant," in possible enlargement of the jurisdiction.
The main purpose of the act of 1887 was, as has been repeatedly said, to restrict the jurisdiction, and this was largely accomplished in the matter of removals by withholding the right from plaintiffs and only according it to defendants when sued in plaintiffs' district.
In the present case suit was brought in the plaintiffs' State against Cochran, a citizen of the same State, who was a necessary party, and the Surety Company, a citizen of Maryland. It could not have been brought in the Circuit Court for the *274 Middle District of Alabama. Sweeney v. Carter Oil Company, ante, p. 252.
And this being so, the case was improvidently removed and should have been remanded.
As the removal was made on the application of the Surety Company, that company must pay the costs of this court and of the Circuit Court.
Writ of error dismissed; certiorari granted, record on writ of error to stand as return to certiorari; judgment reversed and cause remanded to Circuit Court with a direction to remand to the state court; costs of this court and of the Circuit Court to be paid by the Fidelity and Deposit Company. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/462750/ | 780 F.2d 997
121 L.R.R.M. (BNA) 2977
Jerris WISE, Petitioner,v.MERIT SYSTEMS PROTECTION BOARD, Respondent.
Appeal No. 85-1974.
United States Court of Appeals,Federal Circuit.
Dec. 30, 1985.
Mary Janice Lintner, Lynch, Sherman & Cox, Louisville, Ky., argued, for petitioner. With her on brief was Donald L. Cox.
Rita S. Arendal, Merit Systems Protection Board, Washington, D.C., argued, for respondent. With her on brief were Evangeline W. Swift, Gen. Counsel, Mary L. Jennings, Associate Gen. Counsel for Litigation, and Marsha E. Mouyal, Reviewer of Litigation.
Before RICH, Circuit Judge, COWEN, Senior Circuit Judge, and DAVIS, Circuit Judge.
DAVIS, Circuit Judge.
1
Petitioner Jerris Wise appeals from the decisions of the Merit Systems Protection Board (MSPB or Board), 23 M.S.P.R. 666, denying his motion for attorney fees under the Civil Service Reform Act, 5 U.S.C. Sec. 7701(g)(1) (1982), and corresponding Board regulations, 5 C.F.R. Sec. 1021.37(a) (1985). We affirm the decisions of the Board because we agree that an award of attorney fees in this case is not warranted in the interest of justice.
I.
2
Petitioner was an air traffic control specialist with the Department of Transportation (DOT), Federal Aviation Administration (FAA), at Standiford Field in Louisville, Kentucky. On August 3, 1981 the Professional Air Traffic Controllers Organization (PATCO) voted to strike. Petitioner attended the strike vote and was absent without leave from work that day. On August 4, 19811 he contacted Congressman Gene Snyder (of petitioner's district) and informed him that, along with others, he wanted to return to work but was afraid to cross the picket line. The next day Snyder telephoned Tim Cole, a congressional aide with the DOT's Office of Congressional Relations and told him of the group's desire to return to work. Cole requested a list of names from Snyder and indicated that the group could be reinstated after a security check was performed to verify strike non-participation. Petitioner's deadline for returning to work, in accordance with the President's amnesty period, was August 6, 1981. On August 7, 1981 petitioner delivered the list of names to Snyder who subsequently relayed the information to Cole. On the same day, Snyder also informed Jim Berry, Tower Chief at Standiford Field and the agency's deciding official in this case, that the group wanted to return to work. Snyder did not, however, inform Berry of his contacts with Cole in the DOT's Washington office.
3
On August 10, 1981 Berry issued petitioner a proposed notice of removal because he failed to (1) meet his August 6 return-to-work deadline and (2) contact the agency to explain his absence. During his oral reply to Berry, petitioner informed him of the contacts with Snyder but did not specifically state that an agreement existed between Snyder and Cole (or the agency).2
4
Petitioner's removal became final on August 30, 1981. On appeal to the MSPB, the presiding official reversed the agency's decision to remove Wise. The basis of the presiding official's determination was a letter from Congressman Snyder to the chief appeals officer of the Board's Atlanta Regional Office describing Snyder's efforts on behalf of petitioner and the other controllers. On the strength of Snyder's representations, the presiding official found that, although Wise had initially participated in the strike, he had attempted through his contacts with the DOT to meet his deadline and return to work. Petitioner's subsequent motion for attorney fees, as a prevailing party, was denied in an addendum decision. The full Board declined review although it agreed that Wise was the prevailing party. The only question before us is whether an award of attorney fees to him "is warranted in the interest of justice."
II.
5
Petitioner contends that an award of attorney fees is warranted in the interest of justice because (1) the FAA "knew or should have known that it would not prevail on the merits when it brought the proceeding" and (2) he is "substantially innocent of the charges" brought by the FAA. The first argument is premised on the fact that the deciding official was aware that Snyder was working with the DOT to arrange for his return to work and should have further investigated the matter. In addition, petitioner urges that he was substantially innocent of the charges brought against him because the evidence before the Board clearly showed that he did not participate in the PATCO strike and in fact attempted to return to work prior to the strike deadline.
6
Respondent asserts that the agency neither knew nor should have known that it would not prevail on the merits because petitioner failed to provide the agency with sufficient information that would trigger the agency's duty to investigate further the merits of the removal action. Similarly, respondent contends that petitioner was not substantially innocent of the charges brought against him because the agency had a reasonable basis for the removal action since petitioner both participated in the strike and withheld important exculpatory evidence from the agency's deciding official.
7
The Civil Service Reform Act of 1978, 5 U.S.C. Sec. 7701(g)(1) (1982), states that the MSPB "may require payment by the agency involved of reasonable attorney fees incurred by any employee ... if the employee ... is the prevailing party and the Board ... determines that payment is warranted in the interest of justice." (Emphasis added.) See also 5 C.F.R. Sec. 1201.37(a) (1985). It is established that there are two prerequisites that must be fulfilled before the Board will award attorney fees. Sterner v. Department of the Army, 711 F.2d 1563, 1566 (Fed.Cir.1983). Petitioner must show that he was the prevailing party and that an award of attorney fees is warranted in the interest of justice. Id.
8
The MSPB has set forth the following guidelines to aid in determining whether attorney fees are warranted in the interest of justice.
9
1. Where the agency engaged in a "prohibited personnel practice" (Sec. 7701(g)(1));
10
2. Where the agency's action was "clearly without merit" (Sec. 7701(g)(1)), or was "wholly unfounded," or the employee is "substantially innocent" of the charges brought by the agency;
11
3. Where the agency initiated the action against the employee in "bad faith," including:
12
a. Where the agency's action was brought to "harass" the employee;
13
b. Where the agency's action was brought to "exert improper pressure on the employee to act in certain ways";
14
4. Where the agency committed a "gross procedural error" which "prolonged the proceeding" or "severely prejudiced" the employee;
15
5. Where the agency "knew or should have known that it would not prevail on the merits" when it brought the proceeding.
16
Allen v. United States Postal Service, 2 MSPB 582, 593, 2 M.S.P.R. 420, 434 (1980) (citations omitted).
17
The MSPB, in Allen, emphasized that the list was not exhaustive, but illustrative and "should serve primarily as directional markers toward 'the interest of justice'--a determination which, at best, can only be approximate." Id. Petitioner backs up his request for attorney fees by focusing on category 2 and category 5.
18
The whole theory behind category 2's "substantially innocent" concept is that an individual who is substantially innocent of the charges brought against him, and nevertheless has a case brought against him, but is ultimately vindicated by the Board, is entitled to attorney fees in the interest of justice. In Allen, the MSPB conducted a thorough review of the legislative history of the "in the interest of justice" concept as embodied in the Civil Service Reform Act and discerned that the Congress was troubled with the inherent injustice of dragging an innocent individual through expensive and time-consuming legal proceedings. Allen, 2 MSPB at 598, 2 M.S.P.R. at 430.3
19
Category 5 suggests that attorney fees are warranted in the interest of justice if the agency "knew or should have known" that it would not prevail on the merits. Under this category, the Board must "appraise the agency's decision to carry through the action against the employee. If the agency was negligent in its conduct of the investigation then the agency 'knew or should have known' not to take the action." Yorkshire v. Merit Systems Protection Board, 746 F.2d 1454, 1457 (Fed.Cir.1984) (emphasis added). However, "[t]he fact that the presiding official [of the MSPB] later found that the charge was not supported by a preponderance of the evidence does not establish that it was negligently brought or was clearly without merit." Batchelder v. Department of the Treasury, 12 MSPB 227, 228, 14 M.S.P.R. 37, 39 (1982).
III.
20
Of course, the Board has considerable discretion in determining whether an award is warranted in the interest of justice. This court can only set aside Board decisions that are arbitrary, capricious, contrary to the law, or unsupported by substantial evidence. 5 U.S.C. Sec. 7703(c) (1982). See, e.g., Sterner, 711 F.2d at 1568.
21
The presiding official specifically found here that petitioner participated in the PATCO strike and failed to report to his scheduled shift during the amnesty period. That official also found, however, that petitioner did attempt to return to work prior to the amnesty deadline through contacts with Congressman Snyder and the DOT. In any case, it is undisputed that the critical information contained in the letter from Snyder to the chief appeals officer of the Board's Regional Office--upon which the presiding official based his conclusion reversing the decision of the deciding official to remove petitioner--was known to petitioner at the time of his appearance before the agency's deciding official. Petitioner deliberately withheld this information from the deciding official and only released it after his appeal to the MSPB, i.e., at his hearing before the Board's presiding official.
22
It is implicit in the legislative history of the Civil Service Reform Act and the Board's decision in Allen that the "substantially innocent" standard is not satisfied by an individual such as petitioner who (1) knows that he is substantially innocent of the charges brought against him, (2) can prove his substantial innocence, and (3) deliberately does not communicate all the facts to the deciding official which would lead the deciding official to rule against the removal action.4 Such an individual brings the consequences of the agency's legal proceedings upon himself and is in no way an innocent victim who is entitled to the award of attorney fees in the interest of justice.5
23
As for petitioner's argument that the agency knew or should have known that it would not prevail on the merits, we do not find arbitrary or capricious the presiding official's conclusion that it was not unreasonable for the deciding official to remove petitioner based on the charges and the information available to him at that time. Although the deciding official was aware of the fact that petitioner had a conversation with Snyder, he did not know that Snyder had an "agreement" with Cole or even a conversation with him--information that petitioner should have communicated to the deciding official. If Wise, in this instance, had brought to the attention of Berry (the agency's deciding official) the arrangement between Congressman Snyder and DOT's Cole, it is highly likely that the agency would not have effected the removal.
24
Furthermore, petitioner's reliance upon Steger v. Defense Invest. Service, 717 F.2d 1402 (D.C.Cir.1983), for the proposition that the deciding official was negligent in failing to investigate exonerating evidence is misplaced. In Steger, the employee--at his oral reply before the deciding official--presented eleven written and signed statements that completely rebutted the charges contained in the two affidavits upon which his removal was based. In this case, however, petitioner deliberately withheld significant evidence from the deciding official. The agency decision not to investigate further the merits of the charge was not negligent because petitioner failed to present DOT with the appropriate information which could have triggered a further inquiry.
IV.
25
In sum, we hold that the decision of the Board denying petitioner's request for attorney fees is not arbitrary, capricious, contrary to law, or unsupported by substantial evidence. Attorney fees are not warranted in the interest of justice when the administrative process is deliberately and improperly drawn out by the actions of the prevailing party himself.
26
Affirmed.
1
Apparently in response to President Reagan's televised speech on August 3, 1981
2
In fact, petitioner testified that he did not trust Berry or anyone within the FAA management and that he didn't want to give Berry any more information than he felt was absolutely necessary
3
Senator Mathias stated at the Senate Committee Mark-Up Session that the "warranted in the interest of justice" standard "is an attempt to allow the court or the board the discretion to choose cases where the employee has been dragged through a lengthy and costly legal proceeding while in fact he was innocent of the charges." Allen, 2 MSPB at 589, 2 M.S.P.R. at 430, quoting Transcript of Senate Committee on Government Affairs' Markup Session on S. 2640, 95th Cong., 2d Sess. 123 (1976)
In addition, the report accompanying the Senate bill states that "[e]mployees whose agencies have taken unfounded actions against them may spend a considerable amount of money defending themselves against these actions." Id. at 588, 2 M.S.P.R. at 429, quoting S.Rep. No. 95-969, 95th Cong., 2d Sess. 60 (1978), U.S.Code Cong. & Admin.News 1978, pp. 2723, 2782.
4
The Board has expressly stated that "[i]n making [a substantially innocent determination], the presiding official should examine the degree of fault on the employee's part and the existence of any reasonable basis for the agency's action." Allen, 2 MSPB at 593 n. 35, 2 M.S.P.R. at 432 n. 35
5
Although petitioner cites our decision in Yorkshire to support his request for attorney fees, that decision did not cover a case where the employee intentionally prevented the deciding official from deciding the matter with full knowledge of the relevant facts | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2345642/ | 223 F.Supp.2d 377 (2002)
Robert MURPHY and Mary Murphy, Plaintiffs,
v.
ZONING COMMISSION OF THE TOWN OF NEW MILFORD, et al., Defendants.
CIV. NO. 3:00 CV 2297(HBF).
United States District Court, D. Connecticut.
August 30, 2002.
*378 Vincent P. McCarthy, McCarthy Law Offices, New Milford, CT, for plaintiffs.
Steven E. Byrne, Law Offices of Thomas P. Byrne, Farmington, CT, for defendants.
RULING ON DEFENDANTS' MOTION TO DISMISS
FITZSIMMONS, United States Magistrate Judge.
I. INTRODUCTION
Defendants move to dismiss plaintiffs' action in its entirety on the ground that this court lacks subject matter jurisdiction over it. [See Def.s' Mot. Dismiss (doc. # 64).] Specifically, defendants argue that: (1) plaintiffs have not exhausted their administrative remedies; (2) the issues raised in plaintiffs' complaint are not ripe for review; and (3) plaintiffs' action is barred by the Eleventh Amendment to the United States Constitution. [See Def.s' Mem. in Support of Mot. Dismiss (doc. # 65) at p. 5.] For the reasons set forth herein, defendants' motion to dismiss [doc. # 64] is DENIED.
II. FACTS[1]
Plaintiffs are the owners of a single-family residence located at 25 Jefferson *379 Drive, a cul-de-sac in the Town of New Milford, with approximately eight other single-family homes. Plaintiffs' residence is located in an R-40 (single-family residential) zone. Only single family dwellings, farms, and the keeping of livestock are permitted uses in this zone. Other uses are allowed by special permit.
Over a period of several years, plaintiffs have held regularly scheduled meetings at their home, primarily on Sundays. In the past, the meetings have included over forty attendees, but within the last year the number of people attending the meetings has decreased to between twenty-five and forty. Plaintiffs state that meetings begin at approximately 2 p.m. and end at approximately 6 p.m. Defendants suggest that the hours of operation may be as long as noon to 9 p.m.
Defendants also argue that plaintiffs "have converted their back yard into a parking lot," which, at this time, is gravel, but which plaintiffs desire to pave with asphalt. [Doc. # 65 at p. 3 (citation omitted).] Plaintiffs claim that they have not converted their backyard into a parking lot; they merely park cars in their driveway which extends to the rear of their home. [Pl.s' Opp. to Def.s' Mot. Dismiss (doc. # 67) at p. 1.]
Defendant New Milford Zoning Commission ("NMZC") held several meetings to address plaintiffs' use of their property. During these meetings, testimony and evidence was presented. Defendants claim that "[e]vidence showed that there were traffic, drainage and safety concerns." [Doc. # 65 at p. 3 (citation omitted).] Plaintiffs dispute that there was any "substantiation of traffic, drainage or safety concerns by the Defendants." [Doc. # 67 at p. 1.] Members of the NMZC, as well as the zoning enforcement officer ("ZEO"), made site visits to observe the plaintiffs' use of their home.
On November 28, 2000, the NMZC issued an opinion finding that plaintiffs' meetings were neither permitted by the zoning regulations nor incidental or ancillary uses customary to a residential neighborhood. The NMZC also ordered that, if the meetings continued, the ZEO issue a cease and desist order.
On November 29, 2000, the ZEO sent to plaintiffs a letter informing them that their use of their property violated the town's zoning regulations.
Plaintiffs filed this action on December 1, 2000 [doc. # 1], and moved for a preliminary injunction.
By letter dated December 19, 2000, the ZEO ordered plaintiffs to cease and desist their prayer meetings.
On December 20, 2000, plaintiffs filed an amended complaint [doc. # 10] and motion for temporary restraining order [doc. # 10]. On December 21, 2000, Judge Eginton granted the motion for temporary injunction and motion for temporary restraining order ("TRO"). [See, e.g., doc # 18.] The TRO allowed plaintiffs to continue their prayer meetings.
Shortly thereafter, the parties consented to trial before a United States Magistrate Judge [doc. # 20], and the case was transferred to the undersigned [doc. # 19]. On January 18, 2001, the undersigned held a hearing on plaintiffs' application for a preliminary injunction, which was granted on July 5, 2001. Now, defendants move to dismiss plaintiffs' complaint on the ground that this court has no subject matter jurisdiction to hear plaintiffs' claims. Plaintiffs oppose defendants' motion except for the Eighth Cause of Action, which plaintiffs have withdrawn. [See doc. # 67 at p. 2.]
III. STANDARD OF REVIEW
On a motion to dismiss for lack of subject matter jurisdiction, a court must accept *380 all factual allegations in the complaint as true and draw all inferences from those allegations in plaintiff's favor. See Jaghory v. New York State Dept. of Educ., 131 F.3d 326, 329 (2d Cir.1997). The court may not dismiss a complaint unless "it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief." Id. Where the existence of subject matter jurisdiction turns on a factual issue, however, the court is permitted to look beyond the complaint itself and may consider evidence outside the pleadings. See United States v. Vazquez, 145 F.3d 74, 80 (2d Cir.1998); Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir.1997). The burden of proving jurisdiction is on the party asserting it. See Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996).
IV. LEGAL ANALYSIS
Defendants assert three theories under which the court lacks subject matter jurisdiction. First, defendants argue that plaintiffs have failed to exhaust administrative remedies available to them because this action is essentially the appeal of a decision of the NMZC and action by the ZEO, which should be appealed to New Milford Zoning Board of Appeals ("NM ZBA"). [See doc. # 65 at pp. 7-23.] Second, defendants argue that plaintiffs essentially seek review of an administrative decision that is non-final, and, as such, plaintiffs' claims are not yet ripe for review. [See id. at pp. 23-28.] Third, and finally, defendants argue that defendants are immune from suit in federal court under the Eleventh Amendment. [See id. at pp. 28-30.]
A. Exhaustion of Administrative Remedies
1. Federal Claims
Defendants argue that plaintiffs' claims under the United States Constitution and the Religious Land Use and Incarcerated Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq., should be dismissed because plaintiffs have failed to exhaust their administrative remedies with respect to those claims.[2] Defendants further argue that plaintiffs do not allege a claim under 42 U.S.C. § 1983, and that, "[e]ven if this court wanted to permit the plaintiffs to amend their complaint so that another count could be added claiming a violation of sec.1983, such an amendment would not be possible" because RLUIPA provides an exclusive remedy for plaintiffs' claims. [Doc. # 64 at pp. 16-18.]
Plaintiffs respond: (1) that they do allege a claim under § 1983; (2) that this court has already acknowledged that claim; (3) that RLUIPA does not preclude a claim under § 1983; and (4) that they need not exhaust all administrative remedies before bringing these claims. The court agrees with plaintiffs.
Plaintiffs have sufficiently alleged that their action arises, at least in part, under § 1983.
First, plaintiff's Fourth Amended Complaint specifically states in paragraph 1 that this action arises under the United States Constitution and 42 U.S.C. § 1983. [See Fourth Am. Compl. ¶ 1.]
*381 Second, defendants acknowledge that plaintiffs are asserting federal constitutional claims. Defendants apparently contend that plaintiffs assert claims under the United States Constitution, but not under § 1983. Defendants' reasoning is flawed. Section 1983 is simply the vehicle for asserting federal constitutional violations against municipal officials acting under color of law. See, e.g., Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617-618, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979) ("§ 1983 by itself does not protect anyone against anything.... All civil suits [authorized by § 1983] are not based upon it; they are based upon the right of the citizen[;] the act only gives a remedy") (citation, footnote, and internal quotations omitted); Freedom Baptist Church of Delaware County v. Township of Middletown, 204 F.Supp.2d 857, 875 (E.D.Pa. 2002) ("Section 1983 ... does not create substantive rights, but provides a remedy for the violation of rights created by federal law") (citation and internal quotations omitted). Although direct causes of action under the United States Constitution may exist against federal officials, see Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), Congress has provided § 1983 as the sole remedy for federal constitutional violations by state officials, see Carlson v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980); Bauchman v. West High School, 900 F.Supp. 254, 263 (D.Utah 1995); Freedom Baptist Church, 204 F.Supp.2d at 875 ("most courts have held that one cannot sue state and local officials for violation of the constitution of its own force[; o]ne must state a claim under § 1983"). Thus, it does not make sense to argue that, despite the citation to 42 U.S.C. § 1983 and the allegation that defendants' acts "were done ... under color and pretense of state law" [Fourth Am. Compl. ¶ 27], plaintiffs assert federal constitutional claims but have not sufficiently alleged a claim under § 1983. Rule 8 requires no more notice than what plaintiffs have provided. See Fed.R.Civ.P. 8.
Third, the court has specifically acknowledged that plaintiffs have brought this action pursuant to § 1983. See Murphy v. Zoning Comm'n, 148 F.Supp.2d 173, 181 (D.Conn.2001) ("The Court agrees with plaintiffs that they are not required to exhaust the state administrative remedies before pursuing their § 1983 claim") (emphasis added). There is nothing in the Fourth Amended Complaint that suggests a different construction.
Plaintiffs have therefore sufficiently alleged a claim under § 1983. Moreover, contrary to defendants' argument, a § 1983 claim is also "available."
First, defendants cite no direct authority for the proposition that RLUIPA precludes a contemporaneous claim under § 1983. Defendants cite only National Telecommunication Advisors, Inc. v. City of Chicopee, 16 F.Supp.2d 117, 121 (D.Mass.1998), a case involving the Telecommunications Act. In that case, the district court analyzed Middlesex County Sewerage Authority v. National Sea Clammers Ass'n., 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), to determine whether the Telecommunications Act's remedial scheme was "sufficiently comprehensive to permit this court to conclude that Congress meant to preclude a § 1983 remedy." City of Chicopee, 16 F.Supp.2d at 121. Defendants argue that a similar analysis in this case would lead the court to the conclusion that § 1983 remedies are not available for RLUIPA violations.
Before venturing down that road, however, the court must consider the context in which defendants' argument is raised. Defendants move to dismiss plaintiffs' action for lack of subject matter jurisdiction on the ground that plaintiffs have *382 failed to exhaust their administrative remedies. Defendants also argue that RLUIPA entirely supplants § 1983 as the vehicle through which plaintiffs seek to enforce their federal rights. This court has already held-at least implicitly-that exhaustion of administrative remedies is not required for RLUIPA claims. See Murphy, 148 F.Supp.2d at 181-82.[3]See also DiLaura v. Ann Arbor Charter Tp., No. 00-1846, 30 Fed.Appx. 501, 2002 WL 273774, 2002 U.S.App. LEXIS 3135 (6th Cir. Feb. 25, 2002) (not for full-text publication) (citing this court's decision in Murphy for the proposition that "exhaustion of administrative remedies is not required for RLUIPA claims when brought as part of a § 1983 action").
Simply put, whether § 1983 is an additional remedial vehicle for claims under RLUIPA, § 1983 fills the void with respect to plaintiffs' constitutional claims which are not covered by RLUIPA, or RLUIPA is the exclusive means by which plaintiffs may enforce their federal rights, exhaustion of administrative remedies is not required. Consequently, subject matter jurisdictions exists over plaintiffs' federal claims; and defendants' motion to dismiss those claims is denied.
2. State Constitutional Claims
The question of whether plaintiffs must exhaust all available administrative remedies before bringing their state constitutional claims must be analyzed separately. Federal law governs whether exhaustion is required before bringing a section 1983 or RLUIPA claim. State law governs whether exhaustion is required before bringing a state constitutional claim.
The doctrine of exhaustion of administrative remedies is well-established in Connecticut jurisprudence, and provides that no one is entitled to judicial relief for a supposed threatened injury until the prescribed administrative remedy has been exhausted. Johnson v. Statewide Grievance Committee, 248 Conn. 87, 95, 726 A.2d 1154 (1999). The Connecticut Supreme Court has recognized, however, that a party aggrieved by a decision of an administrative agency may be excused from exhaustion of administrative remedies if
recourse to the administrative remedy would be futile or inadequate; Greenwich v. Liquor Control Commission, 191 Conn. 528, 541-42, 469 A.2d 382 (1983); the procedures followed by the administrative agency are constitutionally infirm; La Croix v. Board of Education, [199 Conn. 70, 79, 505 A.2d 1233 (1986)]; or injunctive relief from an agency decision is necessary to prevent immediate and irreparable harm. Pet v. Department of Health Services, [207 Conn. 346, 370, 542 A.2d 672 (1988)].
Johnson, 248 Conn. at 103, 726 A.2d 1154. Although the parties do not brief in any detail the state exhaustion rule or its exceptions,[4] because the issue affects subject matter jurisdiction the court will analyze whether any of the exceptions applies in this case.
Without specifying any particular provision, plaintiffs allege that defendants' actions violate plaintiffs' "rights of speech, peaceable assembly, expressive conduct, and free exercise" under the Connecticut State Constitution. [Pl.s' Fourth Am. Compl., Ninth Cause of Action ¶¶ 77, 78.] *383 In the Eleventh Cause of Action which is cryptically titled "Violation of the 1993 Ct. ALS 252" plaintiffs also allege that "defendants' actions burden the plaintiffs' exercise of religion under section 3 of article I of the Constitution of Connecticut" [id., Eleventh Cause of Action ¶ 86], but that count is apparently brought pursuant to Connecticut General Statutes § 52 571b rather than the Constitution itself.[5]
Although the concluding paragraph of the Ninth Cause of Action is written in broad language, the question of whether exhaustion is required before asserting it can be answered by analyzing certain previous allegations which plaintiffs have incorporated into that count. For example, plaintiffs have alleged that individual and communal prayer is a central tenet of Christianity, their religion [Fourth Am. Compl. ¶ 16]; that they have a sincerely-held religious belief that they are to pray individually and with others as an act of worship [id. ¶ 17]; that they are to "pray without ceasing according to Biblical guidance" [id. ¶ 18]; that their faith must be exercised within their homes as well as in more public settings [id. ¶ 19]; and that, since 1995, they have "invited their family and close friends into their home on Sunday afternoons for religious fellowship, Bible study, and prayer," but have not opened the meetings to the general public [id. ¶ 13]. Moreover, plaintiffs have alleged that they "have no adequate or speedy remedy at law to correct or redress the deprivations [of their state constitutional rights]." [Id. ¶ 28.]
Nothing in plaintiffs' fourth amended complaint suggests that proceeding before the appropriate administrative tribunal(s) would be futile. Although plaintiffs do argue, briefly, that "[t]he state administrative boards do not have competence in the area of constitutional law and cannot provide the Plaintiffs with the relief they are seeking for the vindication of their constitutional rights" [Pl.s' Opp. at p. 6], the Connecticut Supreme Court has held that "[t]he fact that [a party has] raised state constitutional issues does not give them the right to bypass [municipal zoning procedures]," Husti, 199 Conn. at 590, 508 A.2d 735 (citations omitted); see also O & G Industries, Inc. v. Planning and Zoning Comm'n, 232 Conn. 419, 425, 655 A.2d 1121 (1995) ("[e]xhaustion is required even in cases where the agency's jurisdiction over the proposed activity has been challenged") (citations omitted). Accordingly, the first exception does not apply.
The third exception does apply. The Connecticut Supreme Court held in *384 Pet v. Department of Health Services that a plaintiff need not exhaust his administrative remedies if injunctive relief from a governmental decision is necessary to prevent immediate and irreparable harm. 207 Conn. at 370, 542 A.2d 672. The Court also reaffirmed that principle in Johnson v. Statewide Grievance Committee, 248 Conn. at 103, 726 A.2d 1154, and Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 561, 630 A.2d 1304 (1993). In this case, plaintiffs have not only alleged that they "have no adequate or speedy remedy at law to correct or redress the deprivations [of their state constitutional rights]" [Fourth Am. Compl. ¶ 28], they have proven it, see Murphy, 148 F.Supp.2d at 187-91. In other words, plaintiffs commenced this action because, as this court has already found, defendants' actions (including the issuance of a cease and desist order) were a substantial burden on, and thus caused irreparable harm to, plaintiffs and their prayer group participants. Murphy, 148 F.Supp.2d at 181, 188-90. Therefore, because plaintiffs made a showing of immediate and irreparable harm, they were entitled to institute an independent action despite having not exhausted all administrative procedures available to them. See, e.g., Harwinton Drilling and Engineering Co., Inc. v. Public Utilities Control Authority, 188 Conn. 90, 98, 448 A.2d 210 (1982).[6]Cf. Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 150, 763 A.2d 1011 (2001) (holding that plaintiff was not required to exhaust all administrative procedures because the zoning condition violated the strong public policy against restrictions on the free alienability of property).[7] Because the Superior Court could have heard this matter despite the nonexhaustion of all administrative remedies, this court can hear them pursuant to its supplemental jurisdiction over related state law claims.[8]
B. Ripeness
The ripeness issue is the only issue explicitly left open by this court's July 5, 2001 ruling. Murphy, 148 F.Supp.2d at 183 n. 5 (holding that plaintiffs' RLUIPA claim was ripe, but "declin[ing] to address whether the remainder of plaintiffs' claims are currently ripe," and inviting defendants to "address this question in a motion to dismiss"). This court's express ruling was that "plaintiffs' claim that the Zoning Commission's actions violated [RLUIPA] is ripe for judicial review." Id. at 183. In so holding, the court found important the cease and desist letter issued by the ZEO after the filing of the original complaint. *385 See id. (ordering plaintiffs to file a Second Amended Complaint incorporating the issuance of the cease and desist order by the ZEO). Based on "the unique circumstances of this case," this court held that plaintiffs' RLUIPA claim is ripe for review. The issue now before the court, therefore, is whether plaintiffs' other federal and state law claims are also ripe for review.[9]
While the policies underlying the exhaustion and ripeness doctrines "often overlap," the two doctrines remain "conceptually distinct." Williamson County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 192-93, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). In Williamson, the Supreme Court held that plaintiff's "taking" claim under the Fifth Amendment was not ripe for review because, although plaintiff had been rejected by the commission, plaintiff could have sought a variance from the zoning ordinance that would have resolved many of the commission's objections. Id. at 188, 105 S.Ct. 3108. The Court applied a two-part test: (1) whether the agency had rendered a "final decision" on the matter; and (2) whether plaintiff had sought just compensation by means of an available state procedure. Id. at 186, 105 S.Ct. 3108. Since the plaintiff in Williamson had not applied for a variance, he had not received a "final, definitive" decision from the commission, and thus the matter was not ripe for judicial review. Id. at 191, 105 S.Ct. 3108.
In our case, the NMZC issued a decision regarding plaintiffs' use of their property, and the ZEO issued a cease and desist order, but plaintiffs did not apply for a special permit or appeal the NMZC's decision to the Zoning Board of Appeals ("ZBA"). As this court has already found, "[o]nce the [NMZC] finds that a use is not permitted, the applicant's options are to apply for a special use permit or, if the [NMZC] issued a decision, to appeal the decision to the [ZBA]." Murphy, 148 F.Supp.2d at 179 (¶ 47). The question is whether plaintiffs' failure to apply for a permit or appeal the decision requires the court to dismiss based on ripeness consideration.
Defendants argue only that plaintiffs failed to appeal "the agency's action" to the ZBA and Superior Court, and that there would be "no hardship to the parties at this time if judicial review is withheld." [Def.s' Mem. in Support of Mot. Dismiss (doc. # 65) at 27.] Defendants do not argue in their motion to dismiss or memorandum that plaintiffs were required to apply for a special permit despite the decision issued by the NMZC.
Defendants' argument that plaintiffs were required to appeal either the decision of the NMZC or the ZEO's cease and desist order must fail. The Supreme Court explained in Williamson that, while a party must have received a final decision from the initial decision maker, the party need not exhaust all available appeals before the action will be considered ripe for federal court review. See Williamson, 473 U.S. at 193, 105 S.Ct. 3108. Specifically, the Court stated that a party need not avail itself of all administrative procedures that would be required for exhaustion purposes "because those procedures clearly are remedial," rather than part of the decision-making process. Id. Thus, in *386 Williamson, the Court held that the respondent was not required to appeal the commission's rejection to the board of zoning appeals "because the Board was empowered, at most, to review that rejection, not to participate in the Commission's decisionmaking." Id.
Under the explicit language of Williamson, therefore, plaintiffs in our case were not required to appeal either the Commission's decision or the ZEO's cease and desist order to the ZBA for the issue to be considered ripe for federal court review. Id. See also Montgomery v. Carter County, 226 F.3d 758, 767 (6th Cir. 2000) ("forcing the plaintiff to pursue state `remedial' procedures would be an exhaustion requirement, a requirement that Williamson County explicitly does not impose").[10]
Moreover, defendants do not argue that plaintiffs were required to apply for a special permit for the matter to be considered ripe for judicial review. Although defendants' witness did testify at the injunction hearing that a special permit[11] application was an option for plaintiffs, the town's position has consistently been that the zoning regulations specify what is permitted. Although one can obtain a special permit for a "church," plaintiffs do not seek to operate a "church," and plaintiffs' prayer meetings are not open to the public. Absent any showing by defendants that a special permit would have been available to authorize plaintiffs' use of their home, the court declines to impose the requirement that plaintiffs apply for a special permit before their claims can be ripe.
This applies to plaintiffs' federal and state constitutional claims, as there appears to be no important legal distinction between the two on this subject. Moreover, plaintiffs' section 52-571b claim is also ripe. That statute is the parallel of RLUIPA, and this court has determined that the RLUIPA claim is ripe.[12] Finally, plaintiffs also have an "ultra vires" count. [Fourth Am. Compl., count 10.] Once again, this count is not specifically addressed by either party. However, regardless of how one might classify this count (e.g., constitutional, statutory, common law, etc.), it alleges that defendants *387 have no authority to regulate the activities that are the subject of this case. Defendants argue unequivocally that they do have such authority. Therefore, this issue is "ripe" for review.
C. Eleventh Amendment Immunity
Finally, defendants argue for the first time that they are immune from suit in federal court under the Eleventh Amendment to the United States Constitution. Defendants are mistaken.
The Eleventh Amendment provides that: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. Additionally, it is well-settled that, although "the Amendment by its terms does not bar suits against a State by its own citizens, ... an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan, 415 U.S. 651, 662-663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (citations omitted).
The Supreme Court has also made clear that, although "States are protected by the Eleventh Amendment, ... municipalities are not." Will v. Michigan Dept. of State Police, 491 U.S. 58, 70, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (citing Monell v. Dept. of Social Services, 436 U.S. 658, 690 n. 4, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). As the court noted in Will, "local government units ... are not considered part of the State for Eleventh Amendment purposes." Id. (citing Monell, 436 U.S. at 690 n. 4, 98 S.Ct. 2018). Simply put, municipalities and municipal officers are not immune from suit in federal court under the Eleventh Amendment. See Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 609 n. 10, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (only states immune; plaintiffs may sue municipalities and other political subdivisions of the state); Will, 491 U.S. at 70, 109 S.Ct. 2304; Monell, 436 U.S. at 690 n. 4, 98 S.Ct. 2018; Storer Cable Communications v. Montgomery, 806 F.Supp. 1518, 1530 (M.D.Ala.1992) ("eleventh-amendment immunity does not apply to municipalities or their officials") (citing Robinson v. Georgia Dept. of Transportation, 966 F.2d 637, 638 (11th Cir.1992); Schopler v. Bliss, 903 F.2d 1373, 1378 (11th Cir.1990)); Hector v. Weglein, 558 F.Supp. 194, 199 (D.Md.1982) (no Eleventh Amendment immunity for mayor, city council, or police commissioner). Therefore, defendants' motion to dismiss on the ground of Eleventh Amendment immunity is denied.
V. CONCLUSION
For the foregoing reasons, defendants' motion to dismiss [doc. # 64] is DENIED. This is not a recommended ruling. The parties consented to proceed before a United States Magistrate Judge on January 10, 2001 [doc. # 20], with appeal to the Court of Appeals.
NOTES
[1] The parties substantially agree on the relevant facts, except as otherwise noted.
[2] Although RLUIPA's predecessor, the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, et. seq., was found to be unconstitutional by the Supreme Court in City of Boerne v. P.F. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), neither party has raised the constitutionality of RLUIPA in this case. At least one court, however, has determined that RLUIPA is constitutional. See Freedom Baptist Church of Delaware County v. Middletown, 204 F.Supp.2d 857 (E.D.Pa.2002).
[3] Moreover, the court explicitly affirms that holding. The Supreme Court's reasoning in Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), as to why exhaustion is not a prerequisite to a § 1983 claim, is equally applicable to claims under RLUIPA.
[4] The parties simply dispute the applicability of one case, Husti v. Zuckerman Property, Ltd., 199 Conn. 575, 508 A.2d 735 (1986).
[5] Plaintiffs use the citation, "1993 Ct. ALS 252" one with which the court is not familiar-to seemingly reference both a state statute and a provision of the Connecticut Constitution. For example, plaintiffs title their "Thirteen [sic] Cause of Action" a "Violation of Connecticut Statute 1993 Ct. ALS 252 (A.C.R.F.)." On the other hand, in the Jurisdiction section of the Fourth Amended Complaint, plaintiffs allege that "[t]his action arises ... under the Constitution of the State of Connecticut, particularly 1993 Ct. ALS 252." [Fourth Am. Compl. ¶ 1.] Apparently, plaintiffs intend to refer to Public Acts 1993, No. 93-252 (P.A. 93-252), which has been codified at Connecticut General Statutes § 52-571b. It is unclear why plaintiffs used that particular method of citation, but it is clear that the Eleventh Cause of Action and Thirteenth Cause of Action, to the extent they are different, each allege violations of a state statute: § 52-571b. However, since defendants do not argue that exhaustion was required before asserting claims pursuant to § 52-571b (indeed, defendants' motion is not directed to any count in particular), the court declines to address the validity of those counts. Moreover, absent a demonstration of some authority to the contrary, it appears that § 52-571b would be excepted from the exhaustion requirements for the same reasons as RLUIPA, the federal act that § 52-571b parallels.
[6] The second exception to the exhaustion doctrine-when the procedures followed by the administrative agency are constitutionally infirm-is potentially applicable given plaintiffs' implicit position that even requiring them to exhaust all administrative procedures in order to regain their ability to conduct prayer meetings violates their constitutional rights. However, given the court's holding regarding the third exception, the court need not address whether the procedures are constitutionally infirm. Abstaining from such decision also avoids unnecessarily deciding a constitutional issue.
[7] Certainly, plaintiffs' rights to freedom of religion, speech, and assembly are as strong a policy as (or stronger than) the policy against restrictions on the free alienability of property.
[8] Although this court's July 5, 2001 decision entering the preliminary injunction was based on plaintiffs' RLUIPA and federal constitutional claims, there is no reason to believe that an injunction would not have been warranted under § 52-571b (the state parallel to RLUIPA) and plaintiff's state constitutional claims. Thus, this court finds that injunctive relief from the town's actions was necessary to prevent immediate and irreparable harm to plaintiffs' state law rights, as well as to their federal rights, and therefore exhaustion was not required. See Johnson, 248 Conn. at 103, 726 A.2d 1154 (citing Pet, 207 Conn. at 370, 542 A.2d 672).
[9] In the first seven counts of the fourth amended complaint, plaintiffs assert violations of certain of their rights under the First and Fourteenth Amendments to the United States Constitution, presumably pursuant to section 1983, and, in the twelfth count, assert a violation of RLUIPA. Plaintiffs have withdrawn their Eighth Cause of Action (asserting a violation of the Takings Clause of the Fifth Amendment), and, in the ninth, tenth, eleventh, and thirteenth counts, allege violations of Connecticut statutes and the Connecticut Constitution.
[10] In other words, an appeal to the ZBA might have been required for exhaustion purposes. However, given this court's previous holding that exhaustion is not required for plaintiffs' claims, the failure to appeal to the ZBA does not warrant dismissal.
[11] The terms "special exception" and "special permit" are interchangeable. Beckish v. Planning & Zoning Comm'n, 162 Conn. 11, 15, 291 A.2d 208 (1971). When acting upon an application for a special permit, the zoning commission acts in an administrative, rather than a legislative or quasi-judicial, capacity. See A.P. & W. Holding Corp. v. Planning & Zoning Board, 167 Conn. 182, 184-85, 355 A.2d 91 (1974); Farina v. Zoning Board of Appeals, 157 Conn. 420, 422, 254 A.2d 492 (1969). A special permit allows a property owner to use his property in a manner expressly permitted by the regulations; a permit is required because the nature of the proposed use must be regulated because of particular, unique factors. Whisper Wind Development Corp. v. Planning & Zoning Comm'n, 32 Conn.App. 515, 519, 630 A.2d 108 (1993). Connecticut law does not permit a reviewing court to substitute its judgment for that of the land use agency. Timber Trails Corp. v. Planning & Zoning Comm'n, 222 Conn. 380, 401, 610 A.2d 620 (1992). The agency is cloaked with liberal discretion, and its action is subject to review by a court only to determine whether it acted arbitrarily, unreasonably, or illegally. Connecticut Sand & Stone Corp. v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 (1963). See also generally Courtney v. Planning & Zoning Comm'n, No. CV000339450S, 2001 WL 1355645, ** 3-4 (Conn.Super.Oct.19, 2001).
[12] Notably, however, the eleventh and thirteenth causes of action are apparently duplicative, as both seem to assert identical claims under section 52-571b. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/96065/ | 194 U.S. 73 (1904)
BEAVERS
v.
HENKEL.
No. 535.
Supreme Court of United States.
Argued March 9, 10, 1904.
Decided April 11, 1904.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
*74 Mr. Max D. Steuer, with whom Mr. Bankson T. Morgan and Mr. William M. Seabury were on the brief, for appellant.
Mr. Assistant Attorney General Purdy for the appellee.
*82 MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.
This case turns upon the efficacy of an indictment in removal proceedings. The government offered no other evidence of petitioner's guilt. His counsel state in their brief:
"The controlling questions to be discussed on this appeal are whether the indictment offered in evidence before the commissioner can be regarded as conclusive evidence against the accused of the facts therein alleged; whether it was competent at all as evidence of such facts, and whether such indictment was entitled to be accorded any probative force whatever."
At the outset it is well to note that this is not a case of extradition. There was no proposed surrender of petitioner by the United States to the jurisdiction of a foreign nation, no abandonment of the duty of protection which the nation owes to all *83 within its territory. There was not even the qualified extradition which arises when one State within the Union surrenders to another an alleged fugitive from its justice. There was simply an effort on the part of the United States to subject a citizen found within its territory to trial before one of its own courts. The locality in which an offense is charged to have been committed determines under the Constitution and laws the place and court of trial. And the question is what steps are necessary to bring the alleged offender to that place and before that court.
Obviously very different considerations are applicable to the two cases. In an extradition the nation surrendering relies for future protection of the alleged offender upon the good faith of the nation to which the surrender is made, while here the full protecting power of the United States is continued after the removal from the place of arrest to the place of trial. It may be conceded that no such removal should be summarily and arbitrarily made. There are risks and burdens attending it which ought not to be needlessly cast upon any individual. These may not be serious in a removal from New York to Brooklyn, but might be if the removal was from San Francisco to New York. And statutory provisions must be interpreted in the light of all that may be done under them. We must never forget that in all controversies, civil or criminal, between the government and an individual the latter is entitled to reasonable protection. Such seems to have been the purpose of Congress in enacting section 1014, Rev. Stat., which requires that the order of removal be issued by the judge of the district in which the defendant is arrested. In other words, the removal is made a judicial rather than a mere ministerial act.
In the light of these considerations we pass to an inquiry into the special matters here presented. Article 5 of the amendments to the Constitution provides:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, *84 or in the militia, when in actual service in time of war or public danger."
While many States in the exercise of their undoubted sovereignty, Hurtado v. California, 110 U.S. 516, have provided for trials of criminal offenses upon information filed by the prosecuting officer and without any previous inquiry or action by a grand jury, the national Constitution, in its solicitude for the protection of the individual, requires an indictment as a prerequisite to a trial. The grand jury is a body known to the common law, to which is committed the duty of inquiring whether there be probable cause to believe the defendant guilty of the offense charged. Blackstone says (vol. 4, p. 303):
"This grand jury are previously instructed in the articles of their inquiry, by a charge from the judge who presides upon the bench. They then withdraw, to sit and receive indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution; for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire, upon their oaths, whether there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes; and not to rest satisfied merely with remote probabilities: a doctrine that might be applied to very oppressive purposes."
The thought is that no one shall be subjected to the burden and expense of a trial until there has been a prior inquiry and adjudication by a responsible tribunal that there is probable cause to believe him guilty. But the Constitution does not require two such inquiries and adjudications. The government, having once satisfied the provision for an inquiry and obtained an adjudication by the proper tribunal of the existence of probable cause, ought to be able without further litigation concerning that fact to bring the party charged into *85 court for trial. The existence of probable cause is not made more certain by two inquiries and two indictments. Within the spirit of the rule of giving full effect to the records and judicial proceedings of other courts, an indictment, found by the proper grand jury, should be accepted everywhere through the United States as at least prima facie evidence of the existence of probable cause. And the place where such inquiry must be had and the decision of a grand jury obtained is the locality in which by the Constitution and laws the final trial must be had.
While the indictment is prima facie evidence it is urged that there are substantial reasons why it should not be regarded as conclusive. An investigation before the grand jury, it is said, is generally ex parte although sometimes witnesses in behalf of the defendant are heard by it and the conclusion of such ex parte inquiry ought not to preclude the defendant from every defence, even the one that he was never within the State or district in which the crime is charged to have been committed, or authorize the government to summarily arrest him wherever he may be found, transport him perhaps far away from his home and subject him among strangers to the difficulties and expense of making his defence. It is unnecessary to definitely determine this question. It is sufficient for this case to decide, as we do, that the indictment is prima facie evidence of the existence of probable cause. This is not in conflict with the views expressed by this court in Greene v. Henkel, 183 U.S. 249. There it appeared that after an indictment had been found by a grand jury of the United States District Court for the Southern District of Georgia the defendants were arrested in New York; that on a hearing before the commissioner he ruled that the indictment was conclusive evidence of the existence of probable cause, and declined to hear any testimony offered by the defendants. Upon an application to the district judge in New York for a removal he held that the indictment was not conclusive, and sent the case back to the commissioner. Thereupon testimony was offered *86 before the commissioner, who found that there was probable cause to believe the defendants guilty, and upon his report the district judge ordered a removal. We held that under the circumstances it was not necessary to determine the sufficiency of the indictment as evidence of the existence of probable cause, and that as the district judge found that probable cause was shown, it was enough to justify a removal.
It is further contended that
"There was no jurisdiction to apprehend the accused, because the complaint on removal was jurisdictionally defective, in that it was made entirely upon information, without alleging a sufficient or competent source of the affiant's information and ground for his belief, and without assigning any reason why the affidavit of the person or persons having knowledge of the facts alleged was not secured."
This contention cannot be sustained. The complaint alleges on information and belief that Beavers was an officer of the government of the United States in the office of the First Assistant-Postmaster General of the United States; that as such officer he was charged with the consideration of allowances for expenditures and with the procuring of contracts with and from persons proposing to furnish supplies to the said Post Office Department; that he made a fraudulent agreement with the Edward J. Brandt-Dent Company for the purchase of automatic cashiers for the Post Office Department and received pay therefor; that an indictment had been found by the grand jury of the Eastern District, a warrant issued and returned "not found," and that the defendant was within the Southern District of New York. This complaint was supported by affidavit, in which it was said:
"Deponent further says that the sources of his information are the official documents with reference to the making of the said contract and the said transactions on file in the records of the United States of America and in the Post Office Department thereof and letters and communications from the Edward J. Brandt-Dent Company with reference to the said contract, *87 and from the indictment, a certified copy of which is referred to in said affidavit as Exhibit A, and the bench warrant therein referred to as Exhibit B, and from personal conversations with the parties who had the various transactions with the said George W. Beavers in relation thereto; and that his information as to the whereabouts of the said George W. Beavers is derived from a conversation had with the said George W. Beavers in said Southern District of New York in the past few days and from the certificate of the United States marshal for the Eastern District of New York, endorsed on said warrant."
This disclosure of the sources of information was sufficient. In Rice v. Ames, 180 U.S. 371, a case of extradition to a foreign country in which the complaint was made upon information and belief, we said (p. 375):
"If the officer of the foreign government has no personal knowledge of the facts, he may with entire propriety make the complaint upon information and belief, stating the sources of his information and the grounds of his belief, and annexing to the complaint a properly certified copy of any indictment or equivalent proceeding, which may have been found in the foreign country, or a copy of the depositions of witnesses having actual knowledge of the facts, taken under the treaty and act of Congress. This will afford ample authority to the commissioner for issuing the warrant."
The indictment alone was, as we have seen, a showing of probable cause sufficient to justify the issue of a warrant.
With reference to other questions we remark that, so far as respects technical objections, the sufficiency of the indictment is to be determined by the court in which it was found and is not a matter of inquiry in removal proceedings, (Greene v. Henkel, supra,) that the defendant has there no right to an investigation of the proceedings before the grand jury, or an inquiry concerning what testimony was presented to or what witnesses were heard by that body. In other words, he may not impeach an indictment by evidence tending to show that the grand jury did not have testimony before it sufficient to *88 justify its action. Such seems to have been the purpose of most, if not all, of the testimony offered by the petitioner in this case. As his counsel stated during the progress of the examination before the commissioner: "We hold that we have an absolute right in a proper proceeding to expose what took place before the grand jury. We don't do it at all in order to make a disclosure of what transpired before a secret body. We do propose to show what transpired before that grand jury so as to show that there was not any evidence upon which that body could have found an indictment, a legal, valid, lawful indictment, against George W. Beavers. We have no other purpose in calling this witness or any other witness who appeared before the grand jury." But the sufficiency of an indictment as evidence of probable cause in removal proceedings cannot be impeached (if impeachable at all) in any such manner. Neither can a defendant in this way ascertain what testimony the government may have against him and thus prepare the way for his defence. There are no other questions that seem to us to require notice.
We see no error in the record, and the judgment is
Affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/96066/ | 194 U.S. 88 (1904)
HOUGHTON
v.
PAYNE.
No. 372.
Supreme Court of United States.
Argued March 10, 1904.
Decided April 11, 1904.
APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
*90 Mr. William S. Hall and Mr. Holmes Conrad for appellants, in this case and in No. 373.
Mr. Tracy L. Jeffords, with whom Mr. Charles F. Moody and Mr. E. Van Buren Getty were on the brief, for appellants in No. 481.
*92 Mr. John G. Johnson and Mr. Henry H. Glassie, special assistants to the Attorney General, for appellee in this case and in Nos. 373 and 481.
*93 MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.
This case depends upon the construction of the following sections of the Post Office appropriation bill of March 3, 1879, 20 Stat. 355, 358:
"SEC. 7. That mailable matter shall be divided into four classes:
*94 "First. Written matter;
"Second. Periodical publications;
"Third. Miscellaneous printed matter;
"Fourth. Merchandise."
Matter of the second class is thus described:
"SEC. 10. That mailable matter of the second class shall embrace all newspapers and other periodical publications which are issued at stated intervals, and as frequently as four times a year, and are within the conditions named in section twelve and fourteen.
"SEC. 11. Publications of the second class except as provided in section twenty-five, when sent by the publisher thereof, and from the office of publication, including sample copies, or when sent from a news agency to actual subscribers thereto, or to other news agents, shall be entitled to transmission through the mails at two cents a pound or fraction thereof, such postage to be prepaid, as now provided by law.
"SEC. 12. That matter of the second class may be examined at the office of mailing, and if found to contain matter which is subject to a higher rate of postage, such matter shall be charged with postage at the rate to which the inclosed matter is subject: Provided, That nothing herein contained shall be so construed as to prohibit the insertion in periodicals of advertisements attached permanently to the same."
"SEC. 14. That the conditions upon which a publication shall be admitted to the second class are as follows:
"First. It must regularly be issued at stated intervals, as frequently as four times a year, and bear a date of issue, and be numbered consecutively.
"Second. It must be issued from a known office of publication.
"Third. It must be formed of printed paper sheets, without board, cloth, leather or other substantial binding, such as distinguish printed books for preservation from periodical publications.
"Fourth. It must be originated and published for the dissemination of information of a public character, or devoted to *95 literature, the sciences, arts or some special industry, and having a legitimate list of subscribers: Provided, however, That nothing herein contained shall be so construed as to admit to the second class rate regular publications, designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates."
And by the act of March 3, 1885, 23 Stat. 385, it was provided that second class matter (saving that excepted in section 25) shall, on and after June 1, 1885, be entitled to transmission through the mails at one cent a pound or fraction thereof.
Section 17 declares that mail matter of the third class shall embrace books, transient newspapers and periodicals, circulars, etc., and postage shall be paid at the rate of one cent for each two ounces or fractional part thereof.
Are the publications of the Riverside Literature Series periodicals, and therefore, belonging to the second class of mail matter, and entitled to transmission at the rate of one cent a pound; or books, as designated in the third class, and subject to postage at the rate of one cent for each two ounces?
The publications are small books, 4 1/2 by 7 inches, in paper covers, and are issued from the office of publication either monthly or quarterly, and numbered consecutively. Each number contains a single novel or story, or a collection of short stories or poems by the same author, and most, if not all of them, are reprints of standard works by Thackeray, Whittier, Lowell, Emerson, Irving, or other well known writers, and from a literary point of view are of a high class. Each number is complete in itself and entirely disconnected with every other number. Upon the front page of the cover appears, at the top, the words "Issued Monthly," followed by the number of the serial and the date of issue. Below, the words "Riverside Literature Series" are prominently displayed, and in the center of the page appears the name of the book. Each number complies with the conditions of section 14, upon which the publication may be admitted to the second class, namely, *96 it is regularly issued at stated intervals, at least quarterly, and bears a date of issue and is consecutively numbered. It is issued from a known office of publication; is formed of printed paper sheets, without board, cloth or leather, or other substantial binding, and is published for the dissemination of information of a public character; or devoted to literature, etc. The bill also avers that the series has a legitimate list of subscribers, but does not aver that they were reading subscribers in the ordinary sense of the term. This distinction, however, is not pressed by the Government. If the fact be that this series becomes a periodical by a compliance with the conditions of section 14, under which it is entitled to be transmitted as second class mail matter, we shall be compelled to say that the decree of the court below was wrong.
But while section 14 lays down certain conditions requisite to the admission of a publication as to mail matter of the second class, it does not define a periodical, or declare that upon compliance with these conditions the publication shall be deemed such. In other words, it defines certain requisites of a periodical, but does not declare that they shall be the only requisites. Under section 10 the publication must be a "periodical publication," which means, we think, that it shall not only have the feature of periodicity, but that it shall be a periodical in the ordinary meaning of the term. A periodical is defined by Webster as "a magazine or other publication which appears at stated or regular intervals," and by the Century Dictionary as "a publication issued at regular intervals in successive numbers or parts, each of which (properly) contains matter on a variety of topics and no one of which is contemplated as forming a book of itself." By section 10 newspapers are included within the class of periodical publications, although they are not so regarded in common speech. By far the largest class of periodicals are magazines, which are defined by Webster as "pamphlets published periodically, containing miscellaneous papers or compositions." A few other nondescript publications, such as railway guides, appearing *97 at stated intervals, have been treated as periodicals and entitled to the privileges of second class mail matter. Payne v. Railway Pub. Co., 20 D.C. App. 581. Publications other than newspapers and periodicals are treated as miscellaneous printed matter falling within the third class.
While it may be difficult to draw an exact line of demarkation between periodicals and books, within which latter class the Riverside Literature Series falls, if not a periodical, it is usually, though not always, easy to determine within which category it falls, if the character of a particular publication be put in issue.
A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, devoted either to general literature of some special branch of learning or to a special class of subjects. Ordinarily each number is incomplete in itself, and indicates a relation with prior or subsequent numbers of the same series. It implies a continuity of literary character, a connection between the different numbers of the series in the nature of the articles appearing in them, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature. If, for instance, one number were devoted to law, another to medicine, another to religion, another to music, another to painting, etc., the publication could not be considered as a periodical, as there is no connection between the subjects and no literary continuity. It could scarcely be supposed that ordinary readers would subscribe to a publication devoted to such an extensive range of subjects.
A book is readily distinguishable from a periodical, not only because it usually has a more substantial binding, (although this is by no means essential,) but in the fact that it ordinarily contains a story, essay or poem, or a collection of such, by the same author, although even this is by no means universal, as books frequently contain articles by different authors. Books are not often issued periodically, and, if so, their periodicity *98 is not an element of their character. The reason why books of the Riverside Literature Series are issued periodically is too palpable to require comment or explanation. It is sufficient to observe that, in our opinion, the fact that a publication is issued at stated intervals, under a collective name, does not necessarily make it a periodical. Were it not for the fact that they are so issued in consecutive numbers, no one would imagine for a moment that these publications were periodicals and not books. While this fact may be entitled to weight in determining the character of the publication, it is by no means conclusive, when all their other characteristics are those of books rather than those of magazines.
The fact that these publications are not bound when issued or intended for preservation, is immaterial, since in France and most of the Continental countries nearly all books, even of the most serious and permanent character, are usually issued in paper covers, thus leaving each purchaser to determine for himself whether they are worth a binding of more substantial character and preservation in his library. It is true that in this subdivision of section 14 it is said that a periodical must be without such substantial binding as to distinguish printed books for preservation from periodical publications, but it is by no means to be inferred from this that to constitute a book the publication must have a substantial binding.
Great stress is laid by counsel upon the original interpretation of the term "periodical," as applied to these books, which it is said was continued without change under different administrations and by several successive Postmasters General, and from 1879, the date of the passage of the act, until 1902, when the certificates granted by the former Postmasters General were revoked by the defendant and a different classification made of the publications now in issue, that the attention of Congress was repeatedly called to the evils and to the large expense incurred by the Government by the admission of publications of this description to mail matter of the second class; that Congress seriously considered these representations, *99 and committees made voluminous report thereon, yet Congress persistently refused to change by legislation the ruling of the Postmasters General in that regard.
We had occasion to consider this subject at length in the case of United States v. Alabama R.R. Co., 142 U.S. 615, 621, in which we held that this court would look with disfavor upon a change whereby parties who have contracted with the Government on the faith of a former construction might be injured; especially when it is attempted to make the change retroactive, and to require from a contractor a return of moneys paid to him under the former construction. This case is not open to the same objections. No contract with the Government is set up whereby the latter agreed to carry these publications as second class mail matter. Much less is any repayment demanded of money paid by the Government under the prior construction. The action of the Government consists merely in the revocation of a certificate or license admitting these publications as mail matter of the second class. No vested right having been created by such certificate, no contract can be said to be impaired by its revocation. Salt Co. v. East Saginaw, 13 Wall. 373; Grand Lodge v. New Orleans, 166 U.S. 143, 147. It was said, in that case, that the construction is one which, though inconsistent with the literalism of the act, certainly consorted with the equities of the case. Whereas in the case under consideration, if we are to believe the statements of counsel, which are not denied, the carriage of these publications as second class mail matter entails annually an enormous loss upon the Government and constitutes an odious discrimination between publishers of books and publishers of the so-called periodicals.
But in addition to these considerations it is well settled that it is only where the language of the statute is ambiguous and susceptible of two reasonable interpretations that weight is given to the doctrine of contemporaneous construction. United States v. Graham, 110 U.S. 219; United States v. Finnell, 185 U.S. 236. Contemporaneous construction is a rule of interpretation, *100 but it is not an absolute one. It does not preclude an inquiry by the courts as to the original correctness of such construction. A custom of the department, however long continued by successive officers, must yield to the positive language of the statute. As was said in the Graham case (p. 221), "if there were ambiguity or doubt, then such a practice, begun so early and continued so long, would be in the highest degree persuasive, if not absolutely controlling, in its effect. But with the language clear and precise and with its meaning evident there is no room for construction and consequently no need of anything to give it aid. The cases to this effect are numerous. Edwards' Lessee v. Darby, 12 Wheat. 206; United States v. Temple, 105 U.S. 97; Swift Co. v. United States, 105 U.S. 691; Ruggles v. Illinois, 108 U.S. 526." While it might well happen that by reason of the relative unimportance of the question when originally raised a too liberal construction might have been given to the word periodical, we cannot think that if this question had been raised for the first time after second class mail matter had obtained its present proportions, a like construction would have been given. Some consideration in connection with the revocation of these certificates may properly be accorded to the great expense occasioned by this interpretation, and the discrimination in favor of certain publishers and against others, to which allusion has already been made. We regard publications of the Riverside Literature Series as too clearly within the denomination of books to justify us in approving a classification of them as periodicals, notwithstanding the length of time such classification obtained, and we are therefore of opinion that the judgment of the Court of Appeals was correct, and it is
Affirmed.
MR. JUSTICE HARLAN (with whom concurred the CHIEF JUSTICE) dissenting.
The Chief Justice and myself are unable to concur in the opinion of the court.
*101 It was admitted at the bar that for more than sixteen years prior to May 5, 1902, the Post Office Department had acted upon the identical construction of the statute for which the appellants contend. During that period many different Postmasters General asked Congress to amend the statute so as to exclude from the mails, as second class matter, such publications as those issued by the appellant, and which, under the present ruling of the Department, are declared not to belong to that class of mailable matter. Again and again Congress refused to so amend the statute, although earnestly urged by the Department to do so.
Representative Cannon, now Speaker of the House of Representatives, in a speech in opposition to the proposed change of the statute, explained the reasons that induced Congress to pass the act of March 3, 1879, c. 180, Rev. Stat. Supp. 454. He said: "Before speaking on the merits of this bill, I wish to say to the gentleman from Georgia that, according to my recollection, by legislation advisedly had, prior to 1879, while I was a member of the Committee on the Post Office and Post Roads, this class of literature was allowed to pass through the mails, the policy of that legislation being to encourage the dissemination of sound and desirable reading matter among the masses of the people of the country at cheap rates, both as to the cost of the books themselves and as to the postage. The question was discussed, unless my memory greatly misleads me, and the legislation was advisedly had. Under this legislation the best classes of literature, for instance, the Waverley Novels, Dickens's works, and the new translation of the Bible, have been sent by publishing houses unbound, stitched, so that they could be sold to the people at ten cents a volume. As a consequence of this you may now find in the homes of our farmers and laboring men throughout the length and breadth of the country in this cheap form, issued at ten cents per volume, a class of literature to which, prior to the adoption of this policy, some people in very good circumstances could scarcely have access." Cong. Rec. vol. 19, p. 911.
*102 The result is that after the Department had for sixteen years construed the statute to mean what the appellants say it plainly means, and after Congress had uniformly refused, upon full investigation, to comply with the requests of Postmasters General to so amend the statute that it could be interpreted as the Government now insists it should always have been interpreted, the Post Office Department ruled, on May 5, 1902, that the appellants' publications, known as the "Riverside Literature Series," could not go through the mails as second class matter. This ruling was made notwithstanding a Post Office official, having power to act in the premises, had issued to the appellants a certificate declaring that the "Riverside Literature Series" had been determined by the Third Assistant Postmaster General to be a publication entitled to admission into the mails as second class matter.
Thus, by a mere order of the Department that has been accomplished which different Postmasters General had held could not be accomplished otherwise than by a change in the language of the statute itself, which change, as we have said, Congress deliberately refused to make after hearing all parties concerned and after extended debate in each House.
It has long been the established doctrine of this court that the practice of an Executive Department through a series of years should not be overthrown, unless such practice was obviously and clearly forbidden by the language of the statute under which it proceeded. In United States v. Finnell, 185 U.S. 236, 244, which case related to certain fees claimed by a clerk of a court of the United States, this court said: "It thus appears that the Government has for many years construed the statute of 1887 as meaning what we have said it may fairly be interpreted to mean, and has settled and closed the accounts of clerks upon the basis of such construction. If the construction thus acted upon by accounting officers for so many years should be overthrown, we apprehend that much confusion might arise. Of course, if the departmental construction of the statute in question were obviously or clearly wrong, it *103 would be the duty of the court to so adjudge. United States v. Graham, 110 U.S. 219; Wisconsin C. R'd Co. v. United States, 164 U.S. 190. But if there simply be doubt as to the soundness of that construction and that is the utmost that can be asserted by the Government the action during many years of the department charged with the execution of the statute should be respected, and not overruled except for cogent reasons. Edwards v. Darby, 12 Wheat. 206, 210; United States v. Philbrick, 120 U.S. 52, 59; United States v. Johnson, 124 U.S. 236, 253; United States v. Alabama G.S. R'd Co., 142 U.S. 615, 621. Congress can enact such legislation as may be necessary to change the existing practice, if it deems that course conducive to the public interests."
In our judgment, the appellants properly construe the statute. We think it obviously means just what the Department held it to mean for more than sixteen years. But the very utmost that the Government can claim is that the statute in question is doubtful in its meaning and scope. The rule in such a case is not to disturb the long-continued practice of the Department in its execution of a statute, leaving to Congress to change it, when the public interests require that to be done. But the Department, after being informed repeatedly by Congress that the change asked by Postmasters General would not be made, concluded to effect the change by a mere order that would make the statute mean what the practice of sixteen years, and the repeated action of Congress, had practically said it did not mean and was never intended to mean. This is a mode of amending and making laws which ought not to be encouraged or approved.
It is suggested that the ruling of the Department was changed because of the increased expense attending the carrying, as second class mailable matter, of such publications as those of the appellants. But how could the fact of such expense justify a change in the settled construction of a statute? That was a matter to which the attention of Congress was specially and frequently called, and yet it refused to modify *104 the language of the statute. It was not the function of the Postmaster General to sit in judgment on the policy of legislation and to determine the extent to which Congress should authorize the expenditure of public moneys. The question of expense was entirely for the legislative branch of the Government.
Something has also been said as to the discretion committed to the Post Office Department in determining what is and what is not second class mailable matter. But what about the discretion with which previous Postmasters General had been invested, when for many years they uniformly held that such publications as the plaintiffs' were second class mailable matter? Is the discretion of one Postmaster General to be deemed of more importance than the discretion of five of his predecessors in office?
In our opinion the law is for the appellants, and it should have been so adjudged. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1611202/ | 533 So. 2d 248 (1988)
Elizabeth R. BRANCH
v.
GREENE COUNTY BOARD OF EDUCATION et al.
Civ. 6429.
Court of Civil Appeals of Alabama.
August 19, 1988.
Rehearing Denied October 12, 1988.
*250 Gilda B. Williams and Richard S. Manley, of Manley & Traeger, Demopolis, for appellant.
Carlos A. Williams and J.L. Chestnut, Jr., of Chestnut, Sanders, Sanders, Turner, Williams & Pettaway, Birmingham, for appellees.
EDWARD N. SCRUGGS, Retired Circuit Judge.
Mrs. Branch, a former teacher with the Greene County Board of Education (board), sued the board, the individual members of the board, and Mr. Kirksey, the Superintendent of Education of Greene County (superintendent), for damages totaling $4,250,000. Her nine-count complaint contained both contract and tort counts.
The trial court granted a partial summary judgment in favor of the board as to all of the tort claims against the board. A summary judgment was further entered in favor of one member of the board as to all counts against her. The case was tried before a jury. At the conclusion of all of the testimony, the trial court granted a motion for a directed verdict in favor of the board and all of the individual members of the board. The teacher's fraudulent misrepresentation-legal fraud claims against the superintendent were submitted to the jury for its decision. The jury returned a verdict in favor of the superintendent. A final judgment was rendered by the trial court in favor of the superintendent, pursuant to the jury's verdict. After the teacher's motion for a new trial was overruled by operation of law, the teacher appealed to the Supreme Court of Alabama. Regardless of the amount claimed and of the nature of the claims, we now exercise jurisdiction over the appeal because it was transferred to this court by the supreme court.
The teacher, through very able counsel, argues six primary issues. While the essential facts shall be separately developed in more detail as to each issue, the following general preliminary facts are now presented in order to enable a better and more complete understanding of the case.
The teacher was tenured, having been employed by the board for about twenty-six years. The superintendent notified the teacher by a letter dated November 16, 1983, that, following his recommendation to it, the board had determined that it intended to cancel the teacher's contract upon the grounds which were detailed in the letter.
*251 The teacher filed her contest of the proposed job termination.
On December 13, 1983, the day set for the hearing before the board, the teacher appeared for the hearing, accompanied by her brother-in-law and her attorney. After about two hours of negotiations and conferences between the attorneys, the superintendent, the teacher, and the brother-in-law, the following agreement was hammered out:
"CONSENT SETTLEMENT
"LET IT BY THESE PRESENTS BE KNOWN, that Elizabeth Branch, hereinafter known as Teacher, and the Greene County Board of Education hereby agree and compromise on the following terms and stipulations:
"WHEREAS, on November 16, 1983, the Superintendent sent to the Teacher a letter notifying her that the Greene County Board of Education, on his recommendation, had voted an intention to cancel the Teacher's employment contract for good and just cause; and
"WHEREAS, the specific charges to be presented to the Board are that on November 9, 1983, at Paramount High School, the Teacher allegedly struck three students with an umbrella without cause or justification, and on the same day at Carver Junior High School, the teacher allegedly struck two students with an umbrella without cause or justification; and
"WHEREAS, the Board also charges certain alleged misconduct by the Teacher on September 21, 1981, and requested the Teacher to take a leave of absence to seek professional help in resolving her personal and emotional conflicts, and the Teacher declined that request and allegedly engaged in certain acts beyond her scope of authority; now
"THEREFORE, in consideration for the Board's agreement to drop all charges and dispense with a hearing on said charges, the Teacher agrees to submit to the Board this day her resignation effective May 30, 1984, or at the time her accrued sick leave expires, whichever occurs first. The Teacher further agrees to seek professional help for her mental and physical condition during the interim between this date and the effective date of her resignation. The Teacher understands that the Board does not intimate any promises, implied or otherwise, regarding reinstatement or any other matter not clearly expressed in this compromise settlement;
"FINALLY, the Teacher, in consideration of the Board's permitting her to resign, waives and agrees to forego any litigation, either before the Tenure Commission or any court, state or federal, regarding the charges and the substance of this compromise agreement."
The board convened, and the hearing was opened, whereupon it was reported to the board by the board's attorney that the proposed agreement had been reached. The above agreement was read into the record. The board approved it, and it was signed by the teacher and by three members of the board on behalf of the board. The teacher immediately signed and presented to the board her written resignation, which was to take effect pursuant to the terms of the settlement agreement. On that same day the board accepted that resignation.
In early May 1984, the teacher applied to the superintendent for reinstatement to her job. The superintendent decided not to recommend to the board that she be reinstated. Consequently, the board did not consider or act upon that request of the teacher.
We now turn to the separate appellate issues.
I
The teacher argues that the trial court erred in granting a directed verdict in favor of the board. No issue is made concerning the previous order of the trial court which granted a summary judgment in favor of the board as to the tort claims of the teacher against the board. Therefore, we are here concerned only as to the directed verdict in favor of the board as to the teacher's contract counts.
*252 The pivotal factual question is whether the board ever promised the teacher that she would be reemployed by it.
The teacher's daughter testified that both before and after the December 13, 1983, board hearing the superintendent told her either that her mother would be reemployed or that her mother would be considered for reemployment if she went to a doctor.
The brother-in-law of the teacher testified on her behalf that the superintendent told him on the date of the hearing that, if the teacher obtained professional help and obtained "a clean bill of health," she could reapply like anyone else for reemployment and that she would be duly considered. The witness further swore that the board had nothing to do with the settlement negotiations until the proposed consent settlement was presented to the board for its action thereon.
The teacher testified that, before the board's hearing, the superintendent told her that, if she would go to the doctor, she would be reemployed and that her attorney, her brother-in-law, and the superintendent each told her that she would get her job back. On December 13, 1983, she did not talk with any member of the board. Later, she saw a physician. She also saw a psychologist for a psychological evaluation, but the results of such evaluation were not revealed in the court transcript.
The attorney who represented her at the hearing before the board testified that no board member promised to reemploy the teacher and that the superintendent never promised the attorney or the teacher's brother-in-law that the teacher would be reemployed.
The superintendent testified that the sick leave salary of the teacher could not be paid to her without evidence of her being sick, which was one reason for the requirement in the settlement agreement that she seek professional help. He further stated that, when she applied for reinstatement in May 1984, he decided not to recommend it to the board. The witness testified that he did not at any time before or during the consent settlement negotiations make any promises to the teacher or her brother-in-law that the teacher would be reemployed if she saw a doctor regarding her health.
The signed, written settlement agreement provided that the teacher understood that the board made no promise, implied or otherwise, regarding her reinstatement.
In short, there was no evidence that the board ever promised to reemploy or to reinstate the teacher. Under the law of Alabama the superintendent does not have the authority to employ a teacher without the concurrence of the board. The superintendent must recommend the employment of a teacher to the board, whereupon the board may concur or disagree with such recommendation; however, before a teacher is legally employed, the board must concur with the superintendent's recommendation. Marsh v. Birmingham Board of Education, 349 So. 2d 34 (Ala.1977).
If we assume that the superintendent did promise to reemploy this teacher, the teacher could not rely thereon since the superintendent had no authority to rehire her without the concurrence of the board, which rehiring was never promised by the board or acted upon by the board. As against the board, the teacher cannot claim to have altered her position to her detriment for any such act or promise of the superintendent which the law warns her she could not depend upon. Marsh, 349 So.2d at 36.
Any oral agreement to reemploy between the teacher and the superintendent was a nullity without the concurrence of the board. The settlement agreement was clear and explicit that the board made no implied or express promise to the teacher that she would be reemployed by it.
Because of a lack of proof that the board or any individual member of the board ever promised the teacher that she would be reemployed and because of the above law, the trial court correctly granted the directed verdict for the board and for its individual members as to the teacher's contract claims.
*253 II
Learned counsel for the teacher forcefully contends that, as to the fraud and fraud-related counts, the trial court should not have granted a directed verdict in favor of the individual board members.
Whether a representation is made willfully, recklessly, or mistakenly, the critical elements of legal fraud consist of (1) a false representation (2) concerning a material existing fact (3) upon which the plaintiff has relied and (4) has been damaged as a proximate result thereof. Ala.Code (1975), § 6-5-101; Earnest v. Pritchett-Moore, Inc., 401 So. 2d 752 (Ala.1981). When the alleged misrepresentation is predicated upon a promise to perform some act in the future, the plaintiff must also prove that, when the promise was made, the promisor had an actual intent not to perform the promise and had a present intent to deceive the plaintiff. Kennedy Electric Co. v. Moore-Handley, Inc., 437 So. 2d 76, 80 (Ala.1983).
The members of the board did not participate in reaching the settlement agreement. They only approved it after it was formally presented to them at their December 13, 1983, meeting. There was no evidence that any member of the board ever promised to reemploy the teacher. Any promise which the superintendent might have made to the teacher would not bind them since there is no evidence that any of them individually or collectively authorized him to do so or that they individually or collectively ever ratified any such promise. The settlement agreement itself excludes any such promise on the board's behalf.
Since there was no evidence before the jury that any individual board member ever made a false representation to the teacher, the trial court did not err in directing a verdict for the individual members of the board upon the fraud and fraud-related counts. Earnest, 401 So.2d at 759.
III
In this issue the teacher presents several specific evidentiary matters for our decision.
Her first contention is that the trial court erred in overruling an objection to a question which was propounded to the teacher's brother-in-law. Since the objection was made after the question was answered by the witness, the ruling of the trial court cannot be considered on appeal. Thornton v. Pugh, 491 So. 2d 259 (Ala.Civ. App.1986).
Next, it is argued that the teacher's hearsay objection to a certain question which was propounded to the superintendent should have been sustained, but no hearsay authority is cited as to that evidentiary problem. Therefore, we cannot consider that particular contention. Henderson v. Alabama A & M University, 483 So. 2d 392 (Ala. 1986); Rule 28(a)(5), Alabama Rules of Appellate Procedure.
The teacher also complains about the answer of her brother-in-law that he could not recall a certain matter unless the defendant's attorney, who was cross-examining him, refreshed the memory of the witness. However, we have nothing to review as to that aspect since there was no objection made and no ruling thereon by the trial court.
The teacher's last evidentiary complaint under this issue concerns the following which occurred while the superintendent was the witness:
"Q. Exactly what did Mrs. Branch tell you regarding the complaint that had been filed?
"A. (Witness reads).
"MR. MANLEY: Object to his reading what was said. If he can't recall, he can't testify.
"THE COURT: What did Mrs. Branch tell him?
"MR. MANLEY: Yes, sir.
"THE COURT: Overruled.
"MR. MANLEY: If he can remember.
"Q. Can you remember what Mrs. Branch told you?
"MR. CHESTNUT: He can refresh his memory.
*254 "MR. WILLIAMS: But first he has to testify
"THE WITNESS: That was a long discussion about what had transpired down there. She told me something to the effectI can't give it to you verbatimsomething to the effect that children do not respect elders and unless something is done, something is going to happen down there, happen big as it happened once before; something to that effect.
"MR. WILLIAMS (resumed).
"Q. Did you take any notes at the time she spoke to you?
"A. Yes. This is a result of the notes.
"Q. Can you tell me exactly what the notes said?
"A. I can read you exactly what's on it.
"Q. No. Do you remember
"A. I cannot tell you exactly what the note said. I can't remember.
"Q. Then read the note and see if that refreshes your recollection. You can't read
"THE COURT: You can't read it out loud.
"A. (Witness reads).
"After having received the complaints, I called her in for a conference. I asked her about it. She admitted, yes, she had hit the children. As a matter of fact, she told me she hit one child as many as two times with her umbrella. After a lengthy conference, during that time she attempted to end the conversation before it was over, to get up and leave. I told her I wasn't through, sit down until it was over. Then I told her about what I had heard from the principal at Paramount. She made statements about children do not respect elders and someone has got to teach them how to act, something to that respect.
"After a lengthy conference, we closed the conference. I wrote up the conference and prepared this for the board members.
"Q. You prepared those notes at that time?
"A. Yes.
"Q. Those notes reflect what Mrs. Branch said to you at that time?
"A. Yes."
The memorandum was not read to the jury. It is obvious that it refreshed the recollection of the witness, and it was his right to refer to and to look at the memorandum while he was testifying. C. Gamble, McElroy's Alabama Evidence, § 116.02(5) (3d ed. 1977).
IV
It is next argued that the consent settlement in effect permanently barred the teacher from employment by the board and that it is void since a contract which restrains someone from exercising a lawful profession is ordinarily void under § 8-1-1 of the Alabama Code of 1975.
A provision of the consent settlement simply states, in effect, that the board did not promise the teacher either impliedly or otherwise that she would be rehired. No provision in the settlement agreement prohibits future employment of the teacher by anyone or by any board of education. The settlement agreement is not in violation of § 8-1-1.
V
Here, the teacher argues that the settlement agreement violates the Alabama statutes on teacher tenure.
Charges were brought to cancel the teacher's contract pursuant to § 16-24-9 of the Alabama Code of 1975. An agreement was reached, whereby the charges against her were dropped and whereby the teacher agreed to resign. In accordance with that agreement the teacher submitted her resignation, and it was accepted by the board. She argues that, under those circumstances, the contract did not comply with § 16-24-9 and is, consequently, void.
A teacher is permitted to cancel her contract during the school term when such cancellation is mutually agreed upon. Ala. Code (1975), § 16-24-11 (1987 Repl. Vol.). When the teacher resigned and it was accepted by the board, "the school board was no longer required to carry out any of its *255 responsibilities which were imposed by § 16-24-9. Atkins v. Birmingham City Board of Education, 480 So. 2d 585 (Ala. Civ.App.1985). The resignation and acceptance thereof effectively and lawfully terminated his employment as a teacher and eliminated his property and tenure rights to that job." Swann v. Caylor, 516 So. 2d 699, 701 (Ala.Civ.App.1987).
Here, the teacher's resignation and the board's acceptance thereof were pursuant to § 16-24-11, and further compliance with § 16-24-9 was no longer required in order to lawfully terminate her employment contract with the board. Swann, 516 So. 2d 699.
VI
The attorney who represented the teacher on December 13, 1983, at the board hearing, in the negotiations leading up to the settlement agreement, and in the joint preparation of that agreement in conjunction with the board's attorney was called to testify on behalf of the defendants. The teacher objected to three questions which were asked of the attorney on the ground of the attorney-client privilege. The first question concerned whether the witness participated in the drafting of the settlement agreement, and the teacher's objection was overruled thereto. The second question was whether the superintendent participated in the negotiations to arrive at the settlement agreement, and the teacher's objection was overruled, with the trial court observing that the inquiry did not seek privileged material.
The attorney-client privilege extends to the substance of the client's communication to the attorney, as well as to the attorney's advice in response thereto. There is no privilege when a client's communication to an attorney is made with the intent that it be further communicated to a third party. Sovereign Camp, Woodmen of the World v. Pritchett, 203 Ala. 33, 81 So. 823 (1919). Likewise, the privilege does not exist when such client to attorney communications are made in the presence of a third party whose presence is not necessary for the successful communication between the attorney and the client. C. Gamble, McElroy's Alabama Evidence, § 392.01 (3d ed. 1977).
The trial court properly overruled the teacher's objections to those first two questions, for they did not seek to elicit any privileged matters. The teacher's objection to the third question as to what the attorney suggested to his client was sustained as being privileged and properly so. We find no error as to this issue.
Conclusion
Finding no reversible error as to any raised issue, we affirm.
The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975, and this opinion is hereby adopted as that of the court.
AFFIRMED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2860835/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00300-CR
Sergio Cantu Munoz, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
NO. 427694, HONORABLE WILFRED AGUILAR, JUDGE PRESIDING
PER CURIAM
A jury found appellant guilty of driving while intoxicated, first offense. Tex. Penal Code
Ann. § 49.04 (West 1994 & Supp. 1997). The county court at law assessed punishment at incarceration
for ninety days and a $1500 fine, suspended imposition of sentence, and placed appellant on community
supervision.
In his sole point of error, appellant contends the court erred by overruling his challenge for
cause of venire member Beth Meiske on the ground that she was biased against him. Tex. Code Crim.
Proc. Ann. art. 35.16(a)(9) (West 1989). "Bias" is an inclination toward one side of an issue. Anderson
v. State, 633 S.W.2d 851, 853 (Tex. Crim. App. 1982). When a prospective juror is shown to be biased
as a matter of law, she must be excused when challenged. Id. at 854. When bias is not established as a
matter of law, the court has discretion to determine whether bias exists to such a degree that the
prospective juror is disqualified. Id. at 853. It is left to the discretion of the trial court to first determine
whether bias exists. When the venire member states she can set aside any influences she may have and the
trial court overrules the challenge for cause, its decision will be reviewed in light of the panelist's entire voir
dire examination. Id. at 854.
During his examination of the panel as a whole, defense counsel brought up appellant's
status as a member of the legislature and asked if anyone "had a bad personal experience with a politician,
or . . . if you've got such feelings that you just don't think you could be fair or impartial in a case where the
defendant is indeed a politician." Meiske replied, "I was fine until you mentioned that." She explained that
she had worked for the government relations director of the state bar, who had "a lot of dealings with the
Legislature." Counsel asked Meiske, "Do you have any measure of bias or prejudice against [appellant]?"
She answered, "I am no longer comfortable with sitting on the jury." Pressed by defense counsel to
indicate whether she had "a measure of bias or prejudice against [appellant] at this point," Meiske said, "I'd
still like to be open-minded, but yes."
Later, Meiske was questioned individually by the court, the prosecutor, and defense
counsel. Asked by the court if her former employment left her with "a bias or prejudice against anyone in
the Legislature," Meiske replied, "Not at all. I just hold those people in very high regard." Asked by the
court if she had a bias in favor of a legislator, she answered, "To a degree, but yet it's unfortunate that he's
sitting in your court today." Saying he was confused by her answers, defense counsel asked, "Because
you know he's a member of the House of Representatives and . . . it is undisputed that he was seen leaving
a topless bar, can you be fair and impartial in this case?" Meiske answered, "I'd like to think that I could,
yes; but at the same time, you've presented these things before me and I have to be honest with you." She
continued, "I believe I could [be fair and impartial], just like any of the other jurors . . . ." Meiske's
examination concluded as follows:
THE COURT: I understand that you have a bias or prejudice. Is it a bias in his
favor because he's a legislator?
MS. MEISKE: I'm not saying because he's a legislator, he's not wrong. What
I'm saying is that, one, you've brought me into a courtroom where the gentleman has been
said to be driving under the influence of alcohol. I don't find that that's right. Then you say
he was in a topless bar, right? Okay. That's not right. And I'm open-minded. I hold
those gentlemen in great respect, yet here's all these three things.
THE COURT: Can you set all those things aside and judge these things on its
merits, the facts and the law? Can you set all of these things aside?
MS. MEISKE: Yes, because I'm open-minded.
THE COURT: And it won't affect your decision-making in any way, shape, or
form?
MS. MEISKE: But you asked -- and I didn't know that man, and I didn't know
him until he said it.
THE COURT: You can have feelings and -- but you can be fair and impartial?
You can set those aside?
MS. MEISKE: I can do that.
Appellant challenged Meiske on the ground that she was biased against him because he
is a politician. The court overruled the challenge, saying, "I think the way I hear it is she misunderstood,
and I think it's a bias in his favor. On the same token, she feels there's a problem with going to Exposé,
but she feels she can set that aside."
Appellant argues that in response to defense counsel's original questioning, Meiske stated
unequivocally that she was biased against appellant and that the court had no discretion to allow her to
remain on the jury. Williams v. State, 565 S.W.2d 63, 65 (Tex. Crim. App. 1978). We cannot agree
with appellant's characterization of Meiske's responses. At most, she expressed a reluctance to serve on
the jury based on appellant's status as a member of the legislature. Although she did answer affirmatively
when asked if she had "a measure of bias or prejudice against [appellant] at this point," Meiske prefaced
her answer by saying, "I'd still like to be open-minded . . . ." Moreover, the key to the analysis of all
rulings on challenges for cause is not the venire member's use of a single word, but the import of the
panelist's voir dire examination as a whole. Cordova v. State, 733 S.W.2d 175, 179 (Tex. Crim. App.
1987).
In Cordova, a prosecution for capital murder in the course of a robbery, a venire member
said that his neighborhood had recently experienced a rash of burglaries. In response to questioning by
defense counsel, the panelist said he could not be fair and impartial as a result of this experience. But
during further questioning by counsel for both parties, the panelist said he "believed" he "probably could
be" a fair and impartial juror. Id. at 180. The Court of Criminal Appeals concluded that the voir dire
examination as a whole did not reflect a bias against the defendant and that the trial court did not err by
overruling a challenge for cause.
In Arnold v. State, 778 S.W.2d 172, 183 (Tex. App.--Austin 1989), aff'd, 853 S.W.2d
543 (Tex. Crim. App. 1993), a venire member was involved in an "outburst" during voir dire during which
he said, "I could not be impartial to any of you." He later explained that he had been irritated by the tactics
employed by the parties during voir dire. He understood the State had the burden of proof and that he
would be obligated to acquit the defendants if the State failed to prove each element of the offense. This
Court held that the trial court did not abuse its discretion by overruling a challenge for cause based on
alleged bias.
In this cause, Meiske's voir dire examination as a whole supports the county court at law's
finding that she was not biased against politicians, but instead held members of the legislature in high regard.
While Meiske disapproved of a member of the legislature going to a topless bar, she clearly stated that she
could put that aside and be fair and impartial. The court did not abuse its discretion by overruling
appellant's challenge of cause. The point of error is overruled.
The judgment of conviction is affirmed.
Before Justices Powers, Jones and Kidd
Affirmed
Filed: June 5, 1997
Do Not Publish
WP="BR1">
THE COURT: Can you set all those things aside and judge these things on its
merits, the facts and the law? Can you set all of these things aside?
MS. MEISKE: Yes, because I'm open-minded.
THE COURT: And it won't affect your decision-making in any way, shape, or
form?
MS. MEISKE: But you asked -- and I didn't know that man, and I didn't know
him until he said it.
THE COURT: You can have feelings and -- but you can be fair and impartial?
You can set those aside?
MS. MEISKE: I can do that.
Appellant challenged Meiske on the ground that she was biased against him because he
is a politician. The court overruled the challenge, saying, "I think the way I hear it is she misunderstood,
and I think it's a bias in his favor. On the same token, she feels there's a problem with going to Exposé,
but she feels she can set that aside."
Appellant argues that in response to defense counsel's original questioning, Meiske stated
unequivocally that she was biased against appellant and that the court had no discretion to allow her to
remain on the jury. Williams v. State, 565 S.W.2d 63, 65 (Tex. Crim. App. 1978). We cannot agree
with appellant's characterization of Meiske's responses. At most, she expressed a reluctance to serve on
the jury based on appellant's status as a member of the legislature. Although she did answer affirmatively
when asked if she had "a measure of bias or prejudice against [appellant] at this point," Meiske prefaced
her answer by saying, "I'd still like to be open-minded . . . ." Moreover, the key to the analysis of all
rulings on challenges for cause is not the venire member's use of a single word, but the import of the
panelist's voir dire examination as a whole. Cordova v. State, 733 S.W.2d 175, 179 (Tex. Crim. App.
1987).
In Cordova, a prosecution for capital murder in the course of a robbery, a venire member
said that his neighborhood had recently experienced a rash of burglaries. In response to questioning by
defense counsel, the panelist said he could not be fair and impartial as a result of this experience. But
during further questioning by counsel for both parties, the panelist said he "believed" he "probably could
be" a fair and impartial juror. Id. at 180. The Court of Criminal Appeals concluded that the voir dire
examination as a whole did not reflect a bias against the defendant and that the trial court did not err by
overruling a challenge for cause.
In Arnold v. State, 778 S.W.2d 172, 183 (Tex. App.--Austin 1989), aff'd, 853 S.W.2d
543 (Tex. Crim. App. 1993), a venire member was involved in an "outburst" during voir dire during which
he said, "I could not be impartial to any of you." He later explained that he had been irritated by the tactics
employed by the parties during voir dire. He understood the State had the burden of proof and that he
would be obligated to acquit the defendants if the State failed to prove each element of the offense. This
Court held that the trial court did not abuse its discretion by overruling a challenge for cause based on
alleged bias.
In this cause, Meiske's voir dire examination as a whole supports the county court at law's
finding that she was not biased against politicians, but instead held members of the legislature in high regard.
While Meiske disapproved of a member of the legislature going to a topless bar, she clearly stated that she
could put that aside and be fair and impartial. The court did not abuse its discretion by overruling
appellant's challenge of c | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2345610/ | 983 A.2d 979 (2009)
Antwan N. SHELTON, Appellant,
v.
UNITED STATES, Appellee.
No. 04-CF-1254.
District of Columbia Court of Appeals.
Submitted September 24, 2009.
Decided November 19, 2009.
*980 Cynthia Nordone, appointed by the court, for appellant.
Jeffrey A. Taylor, United States Attorney at the time the brief was filed, and Roy W. McLeese III, and Emily Scruggs, Assistant United States Attorneys, were on the brief, for appellee.
Before REID and GLICKMAN, Associate Judges, and WAGNER, Senior Judge.
WAGNER, Senior Judge:
Following a jury trial, appellant, Antwan Shelton, was convicted of unlawful distribution of a controlled substance.[1] He argues for reversal on the grounds that: (1) the trial court erred in instructing the jury that there is no mandatory minimum period *981 of incarceration for the offenses charged, thereby impermissibly permitting the jury's consideration of punishment; and (2) the trial court abused its discretion in allowing certain rebuttal evidence. We hold that assuming error in the court's instruction, it was harmless, and we find no abuse of discretion in the remaining challenged rulings. However, we remand the case for correction of the Judgment and Commitment Order to reflect the trial court's grant of appellant's motion for judgment of acquittal on the greater offense of distribution of a controlled substance in a drug free zone.
I.
According to the evidence, Officers Anthony Manley and Ronald Royster were observing an area in the 5100 block of Call Place, S.E. in the afternoon on September 5, 2002. There, they observed appellant sitting on a fence where he was approached by an individual with whom he had a brief conversation. Appellant then went between two fences, bent down and picked up a clear, plastic bag containing a loose rock-like substance. Appellant and the other person went into an apartment building before coming back outside and parting company. Appellant repeated the conduct with another individual who approached him. The next episode involved one Jerome McIlwain. This time, appellant slid between the fence and handed Mr. McIlwain a rock-like substance in exchange for cash. Officer Royster gave a description of Mr. McIlwain to other officers who stopped him and recovered from him a rock of crack cocaine. The officers then observed Ms. Belinda Wheeler approach appellant and give him cash in exchange for something he retrieved from the plastic bag. Ms. Wheeler was stopped shortly thereafter, and the police recovered from her a rock of crack cocaine. The police then stopped appellant near the fence. They found in that area an empty clear plastic bag. The police arrested appellant and recovered from him $268 in cash. The chemist's report at trial indicated that the substances taken from Mr. McIlwain and Ms. Wheeler were crack cocaine.
II.
Appellant argues that the trial court erred by instructing the jury that there are no mandatory periods of incarceration for individuals convicted of the offenses under consideration in the case. He contends that the court's instruction impermissibly invited the jury to consider punishment in its deliberations and that the error was not harmless.
A.
Appellant objected when the trial court indicated its intention to instruct the jury that there are no mandatory periods of incarceration for individuals convicted of the offenses charged. Citing Brown v. United States, 554 A.2d 1157 (D.C.1989), appellant argued that such an instruction would impermissibly invite the jury to speculate about possible punishment. The government argued that the proposed instruction was proper because it was an accurate statement of the law, and the court had indicated that it would instruct the jury that the question of possible punishment should not influence the jury's deliberations. The trial court decided to give the instruction over the defense's objection, explaining essentially that it would eliminate improper perceptions that jurors might have about mandatory sentencing in the event of conviction.[2] The court rejected *982 appellant's argument that the Brown case prohibited such an instruction. The court instructed the jury, in relevant part, as follows:
This case is being tried under the laws of the District of Columbia, and there is no mandatory period of incarceration if someone is convicted of . . . any of the charges that you are considering.
Moreover, the question of possible punishment of a defendant should not enter into or influence your deliberations in any way. The duty of imposing sentence in the event of a conviction rests only with me. You should weigh the evidence in the case and determine the guilt of innocence of the defendant based solely on the evidence presented at this trial without any consideration of the matter of punishment.
B.
It is well established that the jury's function is to determine guilt or innocence based on the evidence and the law and that it should not consider possible punishment, which is the exclusive province of the court. Brown, supra, 554 A.2d at 1160 (citing Alston v. United States, 383 A.2d 307, 314 (D.C.1978), appeal after remand, 412 A.2d 351 (D.C.1980)) (other citations omitted).[3] In Brown, this court held that it was error for the trial court to instruct the jury that the court had "wide latitude" in sentencing the defendant because the instruction "impermissibly encouraged the jury to speculate on punishment, thereby undermining the fundamental purpose of Instruction of No. 2.71 to apprise the jury that its role is to determine guilt or innocence solely on the evidence before it." Id. at 1158.[4] The danger of putting before the jury matters outside the evidence that might influence their verdict has long been recognized. See United States v. Patrick, 161 U.S.App. D.C. 231, 234-35, 494 F.2d 1150, 1153-54 (1974) (citing Miller v. United States, 37 App.D.C. 138, 143, 1911 WL 20116, *4 (1911)) (recognizing this longstanding principle and finding error where the trial court informed the jury that it could recommend treatment if it returned a guilty verdict). In finding error in Patrick, the Circuit court explained that the jury question was whether there was criminal responsibility and that allowing it to make a treatment recommendation permitted the jury to focus on disposition rather than blame.[5]Id. at 1154.
*983 In light of this well-established principle, while not conceding the issue, the government does not argue the propriety of the instruction. Rather, it argues that even assuming that the trial court erred, the error was harmless. Appellant argues that the trial court's instruction here had a far greater potential for encouraging the jury's improper consideration of punishment in its deliberations than the "wide latitude" language condemned in Brown, supra. Here, he points out, the trial court specifically referenced incarceration as a form of punishment, while the instruction in Brown referred to the trial court's discretion and the possibility of leniency. Further, appellant argues that the error was not harmless for a number of reasons which we discuss later in this opinion. In light of the government's position, we will assume, without deciding, that the trial court erred in giving the challenged instruction and proceed to the parties' respective arguments on whether the error was harmless.
C.
An instruction on possible punishment in the event of conviction may be considered harmless error. See, e.g., Taylor v. United States, 866 A.2d 817, 826 (D.C.2005) (concluding that the court's error in instructing the jury that D.C. has no death penalty was harmless error in light of the court's instruction that the jurors "are not allowed to consider what, if any, sentence might be imposed" and the presumption that the jury follows the law); Brown, supra, 554 A.2d at 1162 (finding error harmless because of instruction obligating jury to decide the case based on the evidence, the presumption that jurors follow the law, and deference due the trial court's denial of a mistrial motion based on similar concerns); cf. Patrick, supra, 161 U.S.App.D.C. at 235-36, 494 F.2d at 1154-55 (instruction in response to jury note that jury could recommend treatment upon conviction not harmless where the government argued that the jury had reached a guilty verdict before inquiring about treatment, and the circumstances suggested equally plausibly that the note was aimed at obtaining a compromised verdict.). "To find an instructional error harmless, we must be satisfied `with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.'" Higgenbottom v. United States, 923 A.2d 891, 899 (D.C. 2007) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)) (internal quotation marks and citation omitted). Applying these principles, we consider the parties' respective harmless error arguments.
The government's harmless error argument is premised upon the strength of its case and the surrounding jury instructions. Appellant argues that the error was not harmless because: (1) the instruction planted the concrete idea of punishment in the jurors' minds; (2) the instruction was misleading and failed to provide an accurate understanding of the possible sentence upon conviction; and (3) the circumstances leading to a split verdict in the case render it impossible to conclude that the verdict was not affected by the jurors' speculation about punishment.
*984 Appellant's first argument, that the charge planted the idea of punishment and imprisonment in the jurors' minds, is not unlike the circumstances presented in Taylor, supra. In Taylor, the court reminded the jury that there is no death penalty in the District of Columbia before instructing that the jury was "not permitted to consider the matter of punishment" and that sentencing was the court's responsibility. 866 A.2d at 825. There, as here, the court's instruction focused the juror's attention on punishment in its charge by informing them about what the penalty could not be. Id. Nevertheless, we concluded that the error was harmless in Taylor where the trial court also informed the jury that it was not to consider the matter of punishment, that it was the court's responsibility to impose punishment, and that the jury was not to consider what, if any, sentence might be imposed. Id. at 825-26. Similarly, in this case, the court instructed the jury that a period of incarceration was not mandatory, thereby focusing its attention on punishment, and implicitly, the potential for leniency. However, like Taylor, the trial court here also instructed the jury not to consider possible punishment in its deliberations, that it should decide the case based only on the evidence without any consideration of the matter of punishment, and that the duty of imposing sentence rested exclusively with the court. We have oft repeated that the jury is presumed to follow the court's instructions. Watkins v. United States, 846 A.2d 293, 301 (D.C.2004); Brown, supra, 554 A.2d at 1162.
Second, appellant argues that the error was not harmless because the court's instruction was misleading in that it implied that appellant would face some term of incarceration, although not a "mandatory period." Even if this were a fair reading of the instruction given by the court, it does not appear that it would foreclose a finding of harmlessness, given the remaining instruction given by the court. See Taylor, supra, 866 A.2d at 826.
Finally, appellant argues that the court cannot conclude that the jury's verdict was not affected by speculation about possible punishment because the jury reported being hung on one count and, shortly thereafter, returned a split verdict that appears to be a compromise. The facts underlying this argument are as follows. While deliberating, the jury sent a note at 11:35 a.m. which inquired, "[i]f we've reached a verdict on one count and are hung on another count[,] does that [jeopardize] the one count we reached the verdict on?" At 12:55 p.m., the jury sent another note indicating that it had reached a verdict. The jury found appellant guilty of one count of unlawful distribution of a controlled substance (cocaine base) in a drug free zone (involving Ms. Wheeler), and not guilty of that offense and the lesser-included offense as related to Mr. McIlwain. Neither the verdict itself nor the notes leading to its return shed any light on whether the split verdict resulted from the jury's focus on punishment as a result of the court's instruction. This case is unlike Patrick, supra, where it appeared from the circumstances that the jury's guilty verdict may have been the result of a compromise reached after the court instructed the divided jury in response to its inquiry that it could recommend treatment. 161 U.S.App.D.C. at 236, 494 F.2d at 1155. The court stated in Patrick that where there had been a note that the jury was divided ten to two, it was a plausible hypothesis that a second note "was aimed at facilitating a compromise verdict by soliciting information that would assure those dissenting jurors, who would not otherwise have acquiesced, that appellant would receive treatment." Id. Here, there is no similar nexus between the instruction given *985 prior to deliberations and the verdict returned ultimately. There was no note seeking explication of sentencing options in the event of conviction. There is nothing other than appellant's speculation that the jury compromised its verdict because it improperly considered punishment in its deliberations. Therefore, we perceive no basis to find that the error was not harmless based on this argument.
Finally, the government argues that the strength of its case supports a finding of harmless error. Two eyewitness police officers testified that they observed appellant reach into a plastic bag several times before exchanging a rock-like substance with individuals for cash. The police stopped two of those individuals shortly after these encounters, and found on them loose rocks of crack cocaine. The officers recovered $268 from appellant after his arrest, and they found an empty clear plastic bag in the area where appellant had interacted with the two people. Thus, the evidence against appellant was strong. Given the strength of the government's case, the effect of the court's instructions as a whole, and the presumption that the jury follows the court's instructions, we are persuaded that any error was harmless. See Kotteakos, supra, 328 U.S. at 765, 66 S. Ct. 1239.
III.
Appellant's two remaining arguments for reversal require only brief discussion. Appellant argues that the trial court abused its discretion (1) in permitting the government to introduce certain evidence in rebuttal, and (2) in permitting the government to reopen its case after the close of the evidence to introduce additional rebuttal evidence. We find no abuse of discretion in the trial court's rulings
A.
Appellant argues that the trial court abused its discretion in allowing the government to present rebuttal evidence concerning the contents of the plastic bag because there had been no evidence concerning it during appellant's case-in-chief. The facts surrounding appellant's challenge are these. During the government's case-in-chief, Officer Royster testified that he observed appellant remove a loose rock-like substance from a plastic bag. The defense's drug expert testified that the rocks of crack cocaine seized from Ms. Wheeler and Mr. McIlwain were not "from the same source" because the drugs had different levels of purity. The government sought to call Officer Royster in rebuttal to testify whether he saw more than one rock in the plastic bag. Appellant argued that it was not proper rebuttal, and the government responded that it was an appropriate response to the defense expert's opinion. The trial court allowed the rebuttal testimony over the defense's objection. Officer Royster testified ultimately that he "couldn't really tell if it was one solid object or if it was . . . a couple of solid objects."
In order to protect a defendant from surprise, the government should not advance new arguments on rebuttal. Porter v. United States, 826 A.2d 398, 409 (D.C.2003). Rebuttal evidence should be presented to refute, contradict, impeach or disprove the evidence that the adversary has already elicited. Beynum v. United States, 480 A.2d 698, 704 (D.C.1984). This rule is not an inflexible one, and the trial court has discretion to determine whether rebuttal evidence will be allowed. Porter, 826 A.2d at 409; McCoy v. United States, 760 A.2d 164, 185 (D.C.2000). The trial court's decision to allow rebuttal evidence will be reversed only for an abuse of discretion. Rowland v. United States, 840 *986 A.2d 664, 680 (D.C.2004) (citing Fitzhugh v. United States, 415 A.2d 548, 551 (D.C. 1980)). Our review of the trial court's decision in this regard is considerably deferential because of its superior vantage point during the course of the trial. Id. Applying that standard, we find no abuse of discretion in the trial court's ruling.
Although the defense's expert did not testify about the contents of the plastic bag from which appellant was observed taking drugs, he did offer the opinion that the drugs taken from Mr. McIlwain and Ms. Wheeler were not from the same source. As the government points out, an inference could be drawn from this evidence that if there was only one rock in the bag, the same person could not have sold the drugs to both individuals. That inference would have been inconsistent with the version of events given by the two police officers who testified in the government's case. Therefore, the court did not abuse its discretion in allowing the government to elicit rebuttal evidence to refute the evidence and inferences that could be drawn from the testimony of appellant's expert. See Beynum, supra, 480 A.2d at 704.
B.
Finally, appellant argues that the trial court abused its discretion in permitting the government to reopen its case after the close of all the evidence. Specifically, he contends that the trial court should not have permitted the government to introduce into evidence a police form (PD 252) related to a PD 251 introduced as a defense exhibit. He contends that the timing and introduction of this evidence bolstered the government's case.
Briefly stated, introduction of the PD 252 occurred against the following backdrop. Over the government's objection, the trial court permitted appellant to question Officer Manley about the physical description of an individual referred to in a PD 251 in an effort to impeach him. The PD 251 had the same complaint number, address, and date associated with the drug sales involved in appellant's case. However, the description for the person in the form was different than that of appellant and the description that Officer Manley had written in his notes on the date of the offenses in this case. The government argued that it should be allowed to offer further evidence that the person described in the PD 251 was not appellant and stated that it was precluded from introducing other documentary evidence to support Officer Manley's testimony that the PD 251 did not involve appellant because the other person was a juvenile whose records were sealed. While discussing jury instructions, the government objected to the court's proposed instructions on inconsistent statements as it related to Officer Manley's description of the person in the PD 251 and the description in his notes. It argued that there was no inconsistency because the two documents referred to different individuals. The government complained that it was unable to substantiate Officer Manley's testimony that the description in the PD 251 was for a juvenile and not appellant. After further discussion, at the government's request, the court unsealed the juvenile's record which showed a PD 252 completed by Officer Manley in the juvenile's case which went along with the description in the 251. The court rejected appellant's argument that this PD 252 should have been introduced during the government's case-in-chief because the prosecutor thought that he was precluded legally from introducing the juvenile's records. Before closing arguments, the parties moved the PD 251 and PD 252 into evidence, and the court provided *987 the jury with an instruction explaining the documents.[6]
Whether to permit a party to reopen its case after the close of the evidence is a question within the trial court's sound discretion, and its decision will not be disturbed unless the court is shown to have abused its discretion. Davis v. United States, 735 A.2d 467, 472 (D.C.1999) (citations omitted). In determining whether the court abused its discretion in making its ruling, this court considers, among other factors "`(1) the timeliness of the motion, (2) the nature of the evidence, including its relevance, and (3) prejudice to the opposing party.'" Id. (quoting Diaz v. United States, 716 A.2d 173, 182 (D.C. 1998) (other citation omitted)). Considering these factors, in light of the record presented, we can not say that the trial court abused its discretion in allowing the introduction of the challenged evidence.
As the trial court determined, the government was entitled to respond to the claim that Officer Manley had given inconsistent descriptions of the person who committed the offenses in this case. See Johnson v. United States, 434 A.2d 415, 420-21 (D.C.1981) (a party may rehabilitate a witness with prior consistent statements when "the witness" credibility has been challenged.) Defense counsel sought to show that the officer was describing appellant on the PD 251 and that the description was inconsistent with the description that the officer placed in his notes. Although the officer explained that the documents involved two different people, a party would be entitled to substantiate that claim by the presentation of evidence. Here, the court accepted the government's explanation that it thought that it was precluded legally from presenting the juvenile's records, and therefore, had not sought to do so sooner. The court's ruling on unsealing the juvenile's record and admitting the evidence came before closing arguments. Nevertheless, appellant cannot claim surprise because he had introduced the PD 251, and defense counsel acknowledged familiarity with the forms generally. Appellant has not shown that he was denied an opportunity to meet this evidence. See Rambert v. United States, 602 A.2d 1117, 1119-20 (D.C.1992). Appellant has made no proffer of what, if any, evidence could be offered in response to the evidence. Finally, appellant has made no showing of prejudice from the delayed admission of the evidence. Under the circumstances, we find no abuse of discretion in the trial court's ruling.
IV.
Finally, appellant and the government agree that the case must be remanded in order that the Judgment and Commitment Order can be amended to reflect the trial court's decision to grant appellant's motion for judgment of acquittal on the greater charge of distribution of a controlled substance in a drug-free zone and entry of judgment on the lesser-included offense of distribution of a controlled substance. The record supports their position, and we remand the case for that purpose. In all *988 other respects the judgment of the trial court is affirmed.
So ordered.
NOTES
[1] The offense of conviction is the lesser-included offense of unlawful distribution of a controlled substance in a drug-free zone, D.C.Code §§ 48-904.01(a)(1), -904.07a (2001). The trial court granted appellant's motion for judgment of acquittal of the greater offense. The jury acquitted appellant of one count of distribution of a controlled substance.
[2] The experienced trial judge related his experience that over 90 percent of the time when we talk to people about such cases, "their concern is . . . that there are mandatory jail times in the District of Columbia for drug charges, and that if they return a verdict of guilty that it will be absolutely required that the defendant will go to jail."
[3] In Brown, the court noted that standard jury instruction No. 2.71, Criminal Jury Instructions for the District of Columbia, (3d ed. 1978), which this court has approved, accurately reflects the well-established principle that the jury is to decide the case based upon the evidence presented and not consider punishment in its deliberations. The instruction appears in the 4th edition (2002) as No. 2.74.
[4] The error was compounded in Brown because it misstated the law in that the trial court's discretion was limited by mandatory minimum sentence requirements. See id. at 1161.
[5] A portion of a passage quoted from Miller, supra, in Patrick, supra, on the danger of injecting issues detracting from the jurors' function to decide the case based only on the evidence is illuminating on this issue. We repeat it here to remind the trial court of the pitfalls of altering instructions in a way that might have the effect of interjecting improper elements into the jury's deliberations.
"The deliberations of the jury should revolve around the evidence before them, and should not be influenced by other considerations or suggestions. The moment other suggestions or considerations find lodgment in their minds, that moment they stray from the path which the law has marked out, and their verdict, in consequence, does not rest solely upon the evidence. It [is] a colored and false verdict. When we consider that the existence of a reasonable doubt entitles a defendant to an acquittal, and that a very slight circumstance may affect the verdict, the danger from putting before the jury anything that may improperly influence their deliberations becomes more apparent." Patrick, 161 U.S.App. D.C. at 234-35, 494 F.2d at 1153-54 (quoting Miller, 37 App.D.C. at 143, 1911 WL 20116 at *4).
[6] The court instructed the jury as follows:
. . . [T]he parties have stipulated, that is that they have agreed that the report that [the government] is referring to is a report that was filled out by Officer Manley.
It's called a Police Department Form 25[2]. . . It's a supplement to the Police Department 251 that was referred to in his testimony earlier, and the supplemental report does identify an individual other than Mr. Shelton. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/240877/ | 239 F.2d 171
Madeleine LODEWICK and Mildred Lodewick, Plaintiffs-Appellants,v.MAVCO, Inc., Malcolm A. Vendig, Fifth Avenue Plastics, Inc. and David M. Rubin, Defendants-Appellees.
No. 33.
Docket 24100.
United States Court of Appeals Second Circuit.
Argued November 15, 16, 1956.
Decided December 3, 1956.
I. Walton Bader, New York City (Bader & Bader, New York City, on the brief), for plaintiffs-appellants.
Samuel Rubin, New York City (Conrad & Smith, New York City, on the brief), for defendants-appellees.
Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.
PER CURIAM.
1
The decision below holding the plaintiffs' design patent for a toothbrush and its casing invalid for want of invention or novelty is clearly correct. To salvage something from the situation plaintiffs now attempt to show a breach of confidential relations by defendants in marketing a toothbrush made according to a design disclosed confidentially by plaintiffs to defendants. If we may properly reach this issue not pleaded or raised below, we can see no merit in it. The relations between the parties are subject to a definite contract of July 11, 1947, wherein plaintiffs granted defendants the right of exclusive manufacture and distribution of their "Pocket Tooth Brush" in return for a royalty of 5 per cent of net sales. The parties operated under this agreement for the manufacture of the toothbrush first with a solid handle of the plastic molding and then with a modification to a "web head," so called, with lateral cavities formed in the head. This was a minor change, in appearance and perhaps in the amount of material used, but only that as the parties themselves showed by the continuance of the royalty payments accepted by the plaintiffs until disagreement arose. Thus the Patent Office viewed the designs as so much alike that it required plaintiffs to elect which to press, the plaintiffs then selecting the web design. Now the plaintiffs are attempting to claim purloining of this newer design, but it is clear that it is covered by the general terms of the licensing agreement and that plaintiffs' rights are limited entirely to that.
2
The parties appear to be in sharp dispute as to who is initially in default in the performance of that agreement. But since no claims based upon it are before us here, we need not try to settle any questions which may arise as to it.
3
Judgment affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1611263/ | 15 Mich. App. 183 (1968)
166 N.W.2d 278
SAUNDERS
v.
DEPARTMENT OF CORRECTIONS, PAROLE BOARD
Docket No. 3,171.
Michigan Court of Appeals.
Decided December 23, 1968.
Leave to appeal denied April 22, 1969.
*184 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Stewart H. Freeman, Assistant Attorney General, for the people.
Charles W. White, for defendant on appeal.
Norton J. Cohen, for Amicus Curiae, American Civil Liberties Union.
Leave to appeal denied April 22, 1969. See 381 Mich 818.
HOLBROOK, J.
Plaintiff, Joseph Saunders, has brought this action for superintending control, an original proceeding, seeking reinstatement of parole.
Parole was granted on June 22, 1964, to plaintiff, who was serving a life sentence. On October 21, 1964, he was returned to prison as a parole violator. A formal hearing on the parole violation charges was held on December 10, 1964, at which time plaintiff, an indigent person, requested the assignment of counsel. Plaintiff's request was denied, although he was informed that he could have counsel at his own expense. Without the assistance of counsel, the plaintiff was found guilty of parole violation on January 5, 1965.
The issue presented for review is: Does an indigent person have a right to counsel at public expense in proceeding to revoke his parole?
CLS 1961, § 791.240 (Stat Ann 1954 Rev § 28.2310) gives the statutory authority under which parole violation hearings are held. It provides in part:
"Whenever a paroled prisoner is accused of a violation of his parole * * * he shall be entitled to a fair and impartial hearing of such charges. * * * Upon such hearing such paroled prisoner shall be allowed to be heard by counsel of his own choice, at his own expense, and may defend himself." (Emphasis supplied.)
*185 The facts of this case differ materially from those in the cases of People v. Wood (1966), 2 Mich App 342 and Mempa v. Rhay (1967), 389 US 128 (88 S Ct 254, 19 L Ed 2d 336). Those cases dealt with revocation of probation before sentencing while the case at hand concerns revocation of parole after sentencing. See Rose v. Haskins (CA 6, 1968), 388 F2d 91, 97.
67 CJS, Pardons, § 23(c), pp 619, 620 states:
"The right to be represented by counsel [at a parole revocation hearing], if the prisoner desires to be so represented, is statutory and not constitutional or in accordance with judicial decisions on the question, jurisdictional; and the prisoner is not entitled to have counsel assigned to represent him."
Plaintiff herein appeared before an administrative board under a statutory procedure. Parole revocation proceedings are not "judicial proceedings" requiring counsel under due process. Jones v. Rivers (CA 4, 1964) 338 F2d 862; Rose v. Haskins, supra; Wingo v. Lyons (Ky 1968), 432 SW2d 821.
The American Civil Liberties Union has filed an amicus curiae brief. Therein an additional issue is raised relating to equal protection of law. The contention is made that there is a denial of equal protection of law resulting in unconstitutionality because a non-indigent individual charged with parole violation may have counsel while an indigent individual may not.
We find it unnecessary to consider this issue raised on its merits. Whether this Court held such portion of the statute constitutional or unconstitutional would afford no relief to plaintiff. See Lawson v. Coiner (ND W Va, 1968), 291 F Supp 79, 82, 83.
Denied.
QUINN, P.J. and VANDER WAL, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611318/ | 166 N.W.2d 742 (1969)
184 Neb. 250
Margaret Elizabeth Bauer LOVE et al., Appellants,
v.
Paul E. FAUQUET, Trustee, et al., Appellees.
No. 37085.
Supreme Court of Nebraska.
April 4, 1969.
*744 Hotz, Hotz, Moylan & Kellogg, Omaha, for appellants.
Pierson & Pierson, Thomas J. Fitchett, Lincoln, for appellees.
Heard before WHITE, C. J., CARTER, SPENCER, SMITH, McCOWN and NEWTON, JJ., and KOKJER, District Judge.
WHITE, Chief Justice.
This is an equity action by remaindermen beneficiaries to set aside a deed, to defendant Stoehr executed by a testamentary trustee under a general unrestricted power of sale granted in the trust instrument. The district court sustained a motion to dismiss at the close of plaintiffs' case. We affirm the judgment of the district court.
The testamentary trust devised the 80-acre farm in trust for the life support and maintenance of Emma Bauer Egenberger, and granted the trustee general unrestricted power of sale of the farm on the consent of Emma. In 1961 Emma failed in a district court action to compel then trustee Davis to sell the farm. In 1962 defendant Paul E. Fauquet was appointed trustee. The liquid assets became depleted. On September 3, 1965, Fauquet, trustee, sold the farm to defendant Stoehr for $26,000 ($325 per acre) and the plaintiffs' own evidence undisputedly established this price as the fair and perhaps maximum price obtainable.
In the administration of the trust in county court, Fauquet filed no reports until December 1966. They are now filed and there is no evidence of breach of fiduciary duty in the handling or expenditure of the funds or any complaint by Emma, the life beneficiary. Fauquet, a lawyer, had prepared tax returns for Stoehr, Stoehr had purchased some insurance from him, and Stoehr was the tenant on the farm in question. Fauquet had been Emma's attorney in the action to force the sale, but since his appointment his only contact outside the trust has been preparing her tax returns. Other peripheral and trace contacts with the parties by Fauquet are without significance.
Seizing on the broad sweep of the principles of equity jurisdiction in scrutinizing and enforcing its trust jurisdiction (see John A. Creighton Home, etc. v. Waltman, 140 Neb. 3, 299 N.W. 261), the plaintiffs seek to void the sale. No case or authority is cited holding that the filing of late reports by a trustee automatically voids his otherwise proper or legal acts as trustee. There is not the remotest evidence of any conflict of interest; nor is there any act by the trustee relating to or affecting the sale or the price that could or did diminish the legitimate interest of the remainder beneficiaries. There is no evidence of mismanagement or fraud in the handling or disposition of the funds involved. Just how such purported mismanagement of the funds could have voided the sale of the real estate involved herein is not spelled out by the plaintiffs.
The supervision and review of the trustee's acts in handling the funds, and the maintenance and support of the life beneficiary, is a jurisdiction concurrently lodged in the district and county courts in the case of testamentary trusts. In re Estate of Grblny, 147 Neb. 117, 22 N.W.2d 488. The remainder beneficiaries, if aggrieved by mismanagement or fraud in the disposition of the funds of the trust, have their remedy in county court. There is no evidence here that would warrant the exercise of that jurisdiction by the district court. District courts are reluctant to interfere with the county court's day-by-day jurisdiction and control of the administration of testamentary trusts because of the confusion resulting and other evils incident to divided responsibility and authority. On the other hand, the district court has exclusive jurisdiction over the title of real estate and the review of the power of sale granted by the testamentary trust. The trust here grants a general power of sale which may not be interfered with or limited *745 by any of the remainder beneficiaries. The purpose of the trust was to provide for Emma, with residuals in the remainder beneficiaries. There is no evidence to warrant an interference on the grounds of fraud, overreaching, or that the sale was consummated otherwise than in full compliance with the duty of loyalty by the trustee.
The record here reveals an understandable self-centered desire by the remainder beneficiaries to preserve the trust corpus intact and restrict Emma and the trustee to the income from the land during Emma's life. By its terms the trust permits and directs the invasion of its corpus to accomplish its objectives. The risk of a necessary invasion of the trust corpus is on the remainder beneficiaries and does not require pauperization of Emma. There is here at most a dispute as to the exercise of discretion in selling the land. The power to sell was vested in the trustee and beneficiary, subject to the reviewing discretion of the district court. By the terms of the trust it was not vested in or in any way controlled by the remainder beneficiaries. The price on its face appears ample and there is no suggestion of an inadequate consideration. There is no merit to plaintiffs' contention that there was either a breach of trust or any act of the trustee sufficient to authorize the court to disturb the trustee's express power of sale.
It also appears that defendant Stoehr's title is not vulnerable to attack since he is a bona fide purchaser for value under the evidence. In Miller v. Vanicek, 106 Neb. 661, 184 N.W. 132, it is said: "A bona fide purchaser of land is one who purchases for a valuable consideration paid or parted with, without notice of any suspicious circumstances which would put a prudent man upon inquiry."
In 54 Am.Jur., Trusts, s. 270, p. 214 (1945), it is said: "Where the trustee, by the terms of the trust, has power to transfer or encumber property of the trust estate, one dealing with him in good faith is not bound to go further and ascertain whether in fact the act of the trustee is justified, and that no breach of trust is intended, unless the transaction in view of the trust relation is an unusual one. Where a general power of sale is given a trustee in a deed of trust to secure an indebtedness, a bona fide purchaser is not affected by secret restrictions on the power to sell; and to entitle a purchaser from a trustee, having general power to sell for reinvestment or the like, to claim protection as a bona fide purchaser, no duty rests upon the purchaser to see to the due application of the purchase money by the trustee." (Emphasis supplied.)
In IV Scott on Trusts, (3d Ed.) s. 284, p. 2342 (1967), it is said: "The beneficiaries of a trust have only an equitable interest in the trust property, and if the trustee transfers the property in breach of trust to a bona fide purchaser the transferee is entitled to hold the property free of the trust and is under no liability to the beneficiaries."
The applicability of the above authorities is apparent. The duty of inquiry and investigation urged by plaintiffs would effectively inhibit purchases, impede the sale of trust property, prevent a trustee from performing his duties and responsibilities in performing the express mandate of the trust, and rewrite the unrestricted terms of the power of sale granted in the testamentary trust.
The judgment of the district court in dismissing the action is correct and is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611291/ | 15 Mich. App. 309 (1968)
166 N.W.2d 497
PEOPLE
v.
CRONK
Docket No. 4,275.
Michigan Court of Appeals.
Decided December 24, 1968.
Leave to appeal denied April 25, 1969.
*310 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Charles B. Gatesman, Prosecuting Attorney, for the people.
Donald W. Grant, for defendant.
Leave to appeal denied April 25, 1969. See 381 Mich 818.
VANDER WAL, J.
On November 24, 1966, shortly after 6:30 p.m., Ruth Elaine Stoodley was found dead of a stab wound. Her body was found in a 1960 red Falcon located behind Webbwood Inn in Lakeland, Livingston county, Michigan, by Helmut Schaefer, a trooper with Michigan state police.
Shortly before this discovery, defendant had entered Webbwood Inn and stated to witnesses that he had killed Ruth. This disclosure resulted in a telephone call to the Brighton state police post, to which Schaefer and his partner, trooper Griffiths, responded. On arrival at Webbwood and before Schaefer said anything to defendant, the latter stated, "I killed her, and she's around the corner in the car. She's dead. Take me away." Defendant was arrested on a charge of murder and he was arraigned that same evening before the municipal judge at Howell, Michigan.
On December 5, 1966, defendant's attorney filed a petition for a sanity hearing pursuant to CLS 1961, § 767.27, in the Livingston county circuit court. On December 9, 1966, that court appointed Drs. Yoder and Gould to make the examination required by the statute. After examination and hearing, on March 9, 1967 the circuit judge entered an order finding defendant capable of understanding the object of the proceedings against him, of comprehending his own condition in reference to such proceedings and *311 of assisting in his own defense in a rational and reasonable manner.
A preliminary examination was held March 17 and 23, 1967 and concluded May 5, 1967. Defendant was bound over to circuit court for trial on a charge of murder. CL 1948, § 750.316 (Stat Ann 1954 Rev § 28.548). On May 10, 1967, an information was filed charging defendant with the same offense. At arraignment that same day, defendant stood mute, and a plea of not guilty was entered for him.
On June 15, 1967, defendant filed motion to suppress confessions and admissions, to quash the information because venue was not proved in Livingston county, and to strike from the information any reference to the crime of first-degree murder. Counsel stipulated that the trial court could determine the motion to suppress and to quash on the basis of the transcript from the preliminary examination. By opinion that same day, the trial judge denied the motion to quash and the motion to strike. By the same opinion, the trial judge suppressed all confessions and admissions made to police, except those volunteered by defendant and not in response to questions by the police. This ruling was based on Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974).
On June 21, 1967, defendant filed notice of defense of insanity as required by CL 1948, § 768.20 (Stat Ann 1954 Rev § 28.1043), and indicated that Drs. Yoder and Gould were the witnesses to be called to establish such defense. On June 23, 1967, the prosecuting attorney petitioned for further examination of defendant on the issue of his sanity. Such examination was ordered and Drs. Yoder and Gould were appointed to conduct it. Dr. Yoder testified at trial.
*312 Defendant's jury trial resulted in his conviction of second-degree murder, CL 1948, § 750.317 (Stat Ann 1954 Rev § 28.549), and he was sentenced to prison for life. His appeal raises 6 claims of error. Before stating and examining these claimed errors, it is noted that the record establishes beyond peradventure that Ruth Elaine Stoodley died as the result of a stab wound from a knife wielded by defendant, and that defendant readily admitted the killing soon after the event in volunteered statements to witnesses and to a state police officer. At trial, defendant did not deny the killing, but said, "If I did, I do not know."
Defendant first questions the sufficiency of the evidence of his mental capacity to stand trial. The testimony of the examining doctors fully supports the finding of the trial court that defendant was competent to stand trial, and without questioning such finding, defendant proceeded through the preliminary examination and trial. The trial record corroborates the prior finding of the trial judge as to defendant's competence. In spite of prodigious consumption of alcoholic beverages, defendant's memory for events and details is remarkable right up to a point shortly before the killing, when he acquired amnesia. We find no error on this point.
On the basis that venue was not proved at the preliminary examination, defendant claims it was error not to quash the information. This assertion of error is closely allied to defendant's next claim that his rights under the Fifth Amendment (US Const, Am 5) were violated by the trial court's denial of defendant's motion to suppress his admissions to trooper Griffiths.
The following testimony of trooper Schaefer appears at page 66 of the preliminary examination transcript:
*313 "Q. Then following that, what did you do?
"A. From there, I went back to the patrol car. The defendant, Mr. Cronk, was there in the car, and I got into the car and advised him that he was under arrest for murder. At this time, I also advised him he did not have to say anything, that anything he said would be used in court, that he had a right to an attorney and if he couldn't afford one, an attorney would be provided by the court.
"Q. Then did you question him or what did you do?
"A. I again advised Mr. Cronk of his rights he was emotionally upset, and I advised him of his rights slowly so he would fully understand them. Several times I asked him if he understood, and he indicated he did by nodding his head and saying `Yes' in a very quiet tone of voice. After I finished telling him the second time, he again stated * * *
"Mr. Grant: You're going to tell * * *
"Mr. Gatesman: Just a minute. Did you ask questions, or did he just state some words?
"A. I asked some questions, but before I asked any questions, he stated, `I drove thousands of miles to find her, and we were up at Fife Lake and she left, and I drove thousands of miles and I finally found her. I killed her. O.K., forget it, I had no alternative, I killed her. But I loved her.'
"Q. This was he said this without your asking any questions?
"A. Yes.
"Q. At any time did he tell you where he had killed her?
"A. He said in Brighton.
"Q. What did you do following this time when you again advised him of his rights?
"A. He again made the comment, `I killed her.' I asked him where it occurred and he stated, `In the A&P parking lot in Brighton. I stabbed her with a hunting knife.' He said the knife was on the floor of the car. After he stabbed her, he said he drove *314 to Webbwood Inn and contacted Maxine and told her `I killed Ruth. Call the police.'"
A short time after the events testified to above, at Brighton state police post, defendant volunteered the information to trooper Griffiths that the stabbing occurred in the A&P parking lot in Brighton. Griffiths had not questioned defendant.
On the basis of Clewis v. Texas (1967), 386 US 707 (87 S Ct 1338, 18 L Ed 2d 423), defendant contends the foregoing admission by defendant to Griffiths should have been suppressed, and without it, there was no proof of venue at the preliminary examination. Without accepting defendant's assertion that there is no other proof of venue, we hold the Clewis doctrine inapplicable here because of controlling factual distinctions.
Here, in the space of 3 or 4 hours, defendant voluntarily admitted to witnesses and to 2 state police officers that he killed Ruth Stoodley. Such admissions are admissible under Miranda, supra. The fact that the trial judge suppressed defendant's admission to trooper Schaefer of the place of the crime because it was in response to a question by the trooper, does not, in our view, so infect a similar voluntary statement to trooper Griffiths that the latter must also be suppressed. Venue is not an element of the crime. We conclude that there was evidence of venue at the preliminary examination, the motion to quash was properly denied and no Fifth Amendment rights of defendant were violated.
Defendant says he was denied due process of law under US Const, Am 14, because the trial court submitted to the jury the question of the voluntariness of his confessions. By separate hearing, the trial judge determined the voluntariness of defendant's confessions and suppressed those he found *315 involuntary under the Miranda doctrine. This satisfies People v. Walker (On Rehearing, 1965), 374 Mich 331. It was unnecessary to submit the question of voluntariness to the jury, but the fact that it was done does not constitute reversible error. In fact, it could have been to defendant's advantage.
Finally, defendant claims 2 reversible errors in the instructions, first relating to venue and the second relating to the question of insanity. We have read the complete charge and we find no error.
Affirmed.
QUINN, P.J., and HOLBROOK, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611297/ | 166 N.W.2d 780 (1969)
Kelly SCHNEBLY, a Minor by Orvin H. Schnebly and Wanda Schnebly, Natural Guardians and Next Friends, Orvin H. Schnebly and Wanda Schnebly, Individually, Plaintiffs,
v.
ST. JOSEPH MERCY HOSPITAL OF DUBUQUE, IOWA, an Iowa Corporation, George T. Joyce, Paul H. Potter and John M. Baker, Defendants.
George T. JOYCE and Paul H. Potter, Defendants-Appellants,
v.
John M. BAKER and T. J. Irish, Jr., Defendants on Cross-Petition,
T. J. Irish, Jr., Defendant on Cross-Petition-Appellee.
No. 53151.
Supreme Court of Iowa.
April 8, 1969.
*781 Brown, Dresser & Kinsey, Mason City, for defendants-appellants.
Westfall, Laird, Burington, Bovard & Heiny, Mason City, for defendant on cross-petition-appellee.
MOORE, Justice.
This is an appeal from the trial court's order sustaining the special appearance of Dr. T. J. Irish, Jr., defendant to the cross-petition of Drs. George Joyce and John Baker. For brevity and clarity we shall refer to Dr. Irish as appellee and to cross-petitioners as appellants.
The facts essential to a proper disposition of this appeal are that plaintiffs filed an amended and substituted petition on July 19, 1967, alleging appellants, among others, were guilty of negligence in rendering certain medical services to Kelly Schnebly in June, 1964. On January 15, 1968 appellants cross-petitioned appellee seeking contribution and indemnification in the event they should be found negligent and liable to plaintiffs. Appellee, who had been living in Denver, Colorado since May, 1966, appeared specially challenging the jurisdiction of the court. His special appearance was sustained and this appeal followed.
The sole issue presented is whether chapter 429, section 1, Acts of the 61st General Assembly, amending Code section 617.3 and taking effect July 4, 1965, confers jurisdiction over a former resident of this state who allegedly committed a tort in June, 1964 and in May, 1966 removed himself to Denver, Colorado prior to commencement of the action. Section 617.3 is commonly referred to as the "long arm" statute.
I. The second paragraph of section 617.3, Code, 1962, was repealed by the 60th General Assembly, and in lieu thereof, chapter 325, section 1, was enacted effective July 4, 1963. It provided in part: "If a nonresident person * * * commits a tort in whole or in part in Iowa against a resident of Iowa, such act shall be deemed to be doing business in Iowa by such person for the purpose of service of process or original notice on such person under this Act, and shall be deemed to constitute the appointment of the secretary of state of the state of Iowa to be the true and lawful attorney of such person upon whom may be served all lawful process or original notice in actions or proceedings arising from or growing out of such * * * tort. The * * * committing of the tort shall be deemed to be the agreement of * * * such person that any process or original notice so served shall be of the same legal force and effect as if served personally upon such defendant within the State of Iowa. * * *
"Service of such process or original notice shall be made (1) by filing duplicate copies of said process or original notice with said secretary of state, * * * and mailing to the defendant * * *, by registered or certified mail, a notification of said filing with the secretary of state, * * *."
The provision was further amended by the 61st General Assembly, chapter 429, section 1, effective July 4, 1965, which provides in material part: "The term `nonresident person' shall include any person who was, at the time of the tort, a resident of the state of Iowa but who removed from *782 the state before the commencement of such action or proceedings and ceased to be a resident of Iowa or a resident who has remained continuously absent from the state, for at least a period of six months following commission of the tort."
The trial court held appellants' compliance with section 617.3 as amended by chapter 325 was insufficient to obtain jurisdiction over appellee as that statute at the time of the alleged tort did not purport to apply to a resident tortfeasor who thereafter became a nonresident prior to the commencement of the action.
The court's holding was necessitated by its further determination chapter 429 was inapplicable to appellee as his alleged tortious conduct occurred prior to the provision's effective date, July 4, 1965. The court found that provision affected substantive rights and could not be applied retroactively.
In Fagan v. Fletcher, 257 Iowa 449, 133 N.W.2d 116, we held section 617.3 as amended by chapter 325 was not sufficiently broad to enable an injured plaintiff to acquire jurisdiction over a former resident who had departed the state prior to the commencement of the action. Apparently in an attempt to avoid such a result the 61st General Assembly enacted chapter 429 which clearly expresses an intent to avert a similar result in the future.
Section 617.3, as it presently appears in the Code, would clearly dictate a result in appellants' favor were it not for the fact appellee's alleged negligence occurred prior to the enactment of chapter 429. This factor leads us to a consideration of some general rules and a re-examination of our earlier cases wherein we have considered the substantive-procedural dichotomy attendant upon any discussion of whether a statute is to be applied retrospectively or prospectively only.
The question whether a statute operates retrospectively or prospectively is one of legislative intent. Davis v. Jones, 247 Iowa 1031, 1034, 78 N.W.2d 6, 7; Schultz v. Gosselink, Iowa, 148 N.W.2d 434, 435; 50 Am.Jur., Statutes, section 478. In determining such intent it is a general rule all statutes are to be construed as having a prospective operation only unless the purpose and intent of the legislature to give it retroactive effect is clearly expressed in the act or necessarily implied therefrom. The rule is subject to an exception where the statute relates solely to remedies or procedure. If a statute relates to a substantive right, it ordinarily applies prospectively only. If it relates to remedy or procedure, it ordinarily applies both prospectively and retroactively. Schultz v. Gosselink, supra; Krueger v. Rheem Manufacturing Company, Iowa, 149 N.W.2d 142, 144; 82 C.J.S. Statutes, §§ 414, 417, 421; 50 Am.Jur., Statutes, sections 478, 482.
Appellants assert section 617.3 as amended by chapter 429 affects only procedural or remedial rights. Appellee argues it affects substantive rights. They cite many authorities in support of their respective positions. The apparent conflict between the cases involving "long arm" statutes is discussed in detail in Krueger v. Rheem Manufacturing Company, Iowa, 149 N.W.2d 142. We therein cite and compare the holdings of courts of many other jurisdictions and conclude "long arm" statutes which provide service outside the state or by registered or certified mail have generally been held to be remedial only but that such statutes which provide for substituted service have almost invariably been held to affect substantive rights and to operate prospectively only. In Chrischilles v. Griswold, Iowa, 150 N.W.2d 94, we cite and again review many of the authorities from other jurisdictions and hold, as we did in Krueger, that section 617.3 operates prospectively only. Another such review would unduly lengthen this opinion. For a recent collection of the cases see annotation 19 A.L.R.3d 138, entitled "Nonresidents-Retrospective Statute."
In Davis v. Jones, 247 Iowa 1031, 78 N.W.2d 6, plaintiff brought action on *783 March 18, 1955 under our nonresident motor vehicle statute for injury sustained in an automobile accident which occurred in March 1953. Defendant, an Iowa resident at the time of the accident, had moved outside Iowa prior to the commencement of the action. On July 4, 1953 an amendment to subsection 4 of Code section 321.498 became effective. It read: "The term `nonresident' shall include any person who was, at the time of the accident or the event, a resident of the State of Iowa but who removed from the state before the commencement of such action or proceedings." This section is almost identical to chapter 429 now under consideration. In Davis v. Jones we held the amendment could not be applied retroactively and defendant's special appearance should have been sustained by the trial court. Our holding is supported by Welsh v. Ruopp, 228 Iowa 70, 289 N.W. 760.
We are unable to agree with appellants' contention Davis v. Jones should be overruled. We have continued to follow the implied consent theory.
In three recent appeals we have specifically considered whether section 617.3, as amended by chapter 325, could be applied retroactively. In each we affirmed the trial court's sustaining of defendant's special appearance and held section 617.3 applied prospectively only.
In Krueger v. Rheem Manufacturing Company, Iowa, 149 N.W.2d 142, 147, we said: "We must look to the statute which the legislature has seen fit to enact. It chose to adopt a substituted service statute. Its theory of due process is clearly based on the fiction of implied consent and goes further than most in providing `the committing of a tort shall be deemed to be the agreement of such corporation * * * that any process or original notice so served (substituted service on the secretary of state) shall be of the same legal force and effect as if served personally upon such defendant within the state of Iowa.'
"The wording of portions of section 617.3 is so similar to the wording of the nonresident motorist statute section 321.498 that it is fair to assume it was used as a reference, if not a model, when section 617.3 was drafted. At that time we had already decided Davis v. Jones, 247 Iowa 1031, 78 N.W.2d 6, in which we held an amendment enlarging the definition of a nonresident to include a resident who moved from the state following an accident to be prospective only. We said: `It is apparent the statute prior to the amendment herein discussed was based on the implied consent or agreement of an out of state motorist to name an official of this state upon whom notice could be served. No such consent was given or could have been given at the time of the accident because the defendant was not then in the class to which the statute was applicable. Hence he should not be deemed to have had such agreement.' This reasoning is in accord with that expressed in cases involving similar statutes."
In Chrischilles v. Griswold, supra, Iowa, 150 N.W.2d 94, we again had the same issue and reaffirmed our earlier position that section 617.3, as amended by chapter 325, could not be retroactively applied.
In Snakenburg v. Jason Mfg., Inc., Iowa, 157 N.W.2d 110, 112, 113, we said: "At page 101 of 150 N.W.2d of the Chrischilles opinion appears this statement, `Based on our holding in Krueger v. Rheem Manufacturing Company, supra, construing section 617.3 to operate prospectively only and classifying this section as a consent statute, plaintiff is not aided by the fact his action accrued subsequent to the enactment of this section. Here all affirmative acts of negligence on defendant's part occurred in the fall of 1960. Defendant cannot be deemed to have consented to the appointment of the secretary of state to be his true and lawful attorney upon whom may be served an original notice by an act done prior to enactment of the statute. To hold the trial court had jurisdiction of defendant in this case would require retroactive application.'
*784 "This conclusion, it is true, was reached by a sharply divided court. However, unless we overrule both Krueger and Chrischilles, we are obliged to hold the consent required, fictional though it be, is related to the act of negligence, not to its consequences.
"To hold defendant impliedly consented to become subject to the jurisdiction of our courts because of alleged negligent conduct which occurred long before the law upon which such presumption is based would indeed require retrospective application of section 617.3.
"We are convinced this result is prohibited under our most recent cases interpreting this statute and we are convinced too those decisions announce the better rule."
These three cases dealt with persons or corporations admittedly nonresidents at the time of the alleged tort, whereas appellee was an Iowa resident when the alleged tort was committed. The facts here are like those in Davis v. Jones, supra. The rationale of our earlier cases is based on our statute. It provides for substituted service which the cases hold makes applicable the implied consent theory. As such it is not to be applied retroactively.
We have carefully read and considered the cases cited by appellants in support of their position but are not persuaded they represent the rule in the jurisdictions where the implied consent theory is followed.
II. Appellants contend if section 617.3, as amended by chapter 429, is construed to operate prospectively only appellee's special appearance still should have been overruled. Their theory is that the incident giving rise to the conferral of jurisdiction under section 617.3 over a former resident is the act of removal from this state. They argue, as appellee did not absent himself from this state until after the effective date of chapter 429, its application would not amount to retroactive operation.
Such a theory is contrary to the clearly expressed language of the statute and is wholly unsupported by our cases which have held the fictional consent necessary to jurisdiction under the statute is related to the affirmative acts of negligence giving rise to the cause of action.
In Division I, supra, we have set out the material portions of chapters 325 and 429 which now comprise section 617.3. We find no language in the statute which supports appellants' theory. The language of the statute is clearly demonstrative of a legislative intent to predicate its operation on the commission of a tort, in whole or in part, in Iowa, not on the removal of the tortfeasor from this state. Our recent three cases discussed, supra, all recognize the legislative intent as such.
III. Appellants also say that as their cause of action for contribution or indemnity against appellee did not arise until July 19, 1967 when plaintiffs made them defendants, that "it is of no consequence and no import as to whether or not Chapter 325 and Chapter 429 operate either retrospectively or prospectively." In other words, as they could not have cross-petitioned appellee for contribution until July 19, 1967, approximately two years after the effective date of chapter 429, they argue their use of section 617.3 to obtain jurisdiction over appellee does not amount to retroactive operation of the statute.
Assuming, arguendo, appellants' cause of action did not arise until July 19, 1967, this fact is not enough to place them in the class of persons entitled to obtain jurisdiction over appellee through the operation of section 617.3. We have consistently held the crucial time in this area is the moment of the act or acts of negligence.
In Chrischilles v. Griswold, supra, at page 101, 150 N.W.2d, we said: "Based on our holding in Krueger v. Rheem Manufacturing Company, supra, construing section 617.3 to operate prospectively only and classifying this section as a consent statute, plaintiff is not aided by the fact his action *785 accrued subsequent to enactment of this section. Here all affirmative acts of negligence on defendant's part occurred in the fall of 1960. Defendant cannot be deemed to have consented to the appointment of the secretary of state to be his true and lawful attorney upon whom may be served an original notice by an act done prior to enactment of the statute. To hold the trial court had jurisdiction of defendant in this case would require retroactive application."
The order of the trial court was correct.
Affirmed.
All Justices concur except RAWLINGS and BECKER, JJ., who dissent.
MASON, J., takes no part.
RAWLINGS, Justice (dissenting).
I respectfully dissent. In support hereof see dissent in Krueger v. Rheem Manufacturing Company, Iowa, 149 N.W.2d 142, 148.
BECKER, J., joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611334/ | 166 N.W.2d 776 (1969)
Craig E. SWEET, Appellee,
v.
Warren L. SWANGEL and Millie Swangel, d/b/a Gilbert Motel, Appellants.
No. 53217.
Supreme Court of Iowa.
April 8, 1969.
*777 Gilbert, Stoddard & Anderson, Oskaloosa, for appellants.
Fisher & Pickens, Cedar Rapids, and Tomasek & Vogel, Grinnell, for appellee.
STUART, Justice.
Plaintiff was injured when a chair on which he was sitting in his motel room collapsed. His petition seeking to recover damages for personal injuries sustained in the fall contained two counts. The first alleged specific acts of negligence. The second count sought to recover under the doctrine of res ipsa loquitur. The jury returned a verdict for plaintiff on the res ipsa loquitur count.
As all three of appellant's assigned errors relate to the submission of the res ipsa loquitur count, the sole issue before us here is whether this doctrine is applicable to the facts and circumstances of this case viewed in the light most favorable to plaintiff.
On January 14, 1965, plaintiff was in the construction and home improvement business and he and three of his employees were working at Deep River in Poweshiek County. Because of bad weather, plaintiff and his men, instead of returning home to Cedar Rapids, obtained a room at the Gilbert Motel in Montezuma. After showering the four men decided to play cards.
One of the two beds in the room was used as a table and three of the men sat on the bed. Plaintiff, who weighed about 225 pounds, sat on a straight chair which he brought over to the bed from a writing desk in the room. He noticed the chair, which was about the same height as the bed, was a little wobbly but because there was nothing else to sit on he used it.
Very soon after plaintiff sat down and during the first hand of a game of hearts, the chair suddenly collapsed and plaintiff was thrown to the floor and was injured. There were no intoxicating liquors in the room and neither plaintiff nor any of the other men had been drinking.
Defendants purchased the Gilbert Motel on January 1, 1961, and continued to operate it through the date of plaintiff's accident. They took over the buildings and equipment which were in the motel at the time they purchased it, including the chair which collapsed under plaintiff. Defendants determined whether repairs were needed by the appearance of the furniture as they dusted and cleaned the rooms. During the four years they operated the motel they repaired one or two chairs a year. Defendant, Warren Swangel, stated it is possible he had repaired the chair used by plaintiff by gluing it.
Raymond Eckhart, a man who has been in the furniture repair business for 47 years, examined the remains of the chair and testified an attempt had been made to mend it without taking it apart and without any pressure being applied to pull the joints together. Mr. Eckhart stated the chair which he inspected would not have been safe for a man weighing over 200 pounds to sit on. He pointed out the chair is of the type used as a dinette chair in many homes and is a good chair if kept firm. He further testified it was substantial but he could not say it was an exceptionally good chair. It would not stand a lot of heavy use.
*778 There was other evidence tending to prove specific charges of negligence to which we will not refer as the applicability of res ipsa loquitur is to be determined from common experience alone and not from the evidence tending to prove a negligent act in the particular case. Smith v. Ullerich, 259 Iowa 797, 804, 145 N.W.2d 1, 5; Shinofield v. Curtis, 245 Iowa 1352, 1360-1361, 66 N.W.2d 465, 470, 50 A.L.R.2d 964, 972.
The doctrine of res ipsa loquitur is to be applied sparingly, DeMoss v. Darwin T. Lynner Construction Co., Iowa, 159 N. W. 2d 463, 466, and only when it is shown the instrumentality causing the injury was under the exclusive control and management of the defendant when the negligent act occurred; and the accident was one that would not, in the ordinary course of events, happen without negligence on the part of the one having such exclusive control. Id. Iowa, 159 N.W.2d at 465; Boyer v. Iowa High School Athletic Association, Iowa, 152 N.W.2d 293, 296; Smith v. Ullerich, 259 Iowa 797, 804, 145 N.W.2d 1, 5; Eaves v. City of Ottumwa, 240 Iowa 956, 969, 38 N.W.2d 761, 769, 11 A.L.R.2d 1164, 1176.
Where, as here, defendant's exclusive control did not continue to the time of injury, plaintiff must also prove by a preponderance of the evidence there was no change in the condition of the instrumentality after it left defendant's control which could reasonably have caused the injury. Thompson v. Burke Engineering Sales Co., 252 Iowa 146, 151, 106 N.W.2d 351, 353, 84 A.L.R.2d 689.
Plaintiff must also eliminate his own conduct as a cause of the injury. "One of the essential elements to the application of the doctrine of res ipsa loquitur is that the injury is caused without the fault of the injured party." Lamb v. Hartford Accident and Indemnity Co., 180 Kan. 157, 300 P.2d 387, 393; 65A C.J.S. Negligence § 220.13, pp. 565-567; Prosser, Law of Torts at 228-229 (3d Ed. 1964). The rule should not be confused with the problem of the contributory negligence. Simmons v. F. W. Woolworth Company, 163 Cal.App.2d 709, 329 P.2d 999, 1002; 65A C.J.S. Negligence § 220.13, p. 567. He may meet this burden by showing he has done nothing abnormal with the instrumentality causing the injury and has used it in the manner and for the purpose for which it was intended. Southern Arizona York Refrigeration Co. v. Bush Mfg. Co., 331 F.2d 1, 7-8 (9 Cir.1964); Dennis v. Carolina Pines Bowling Center, 248 Cal. App.2d 369, 56 Cal.Rptr. 453, 454, 457; Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 139 A.2d 404, 410.
"The plaintiff need only tell enough of what he did and how the accident happened to permit the conclusion that the fault was not his. Again he has the burden of proof by a mere preponderance of the evidence; and even though the question of his own contribution is left in doubt, res ipsa loquitur may still be applied under proper instructions to the jury." Prosser, Res Ipsa Loquitur in California, 37 Calif.L.Rev. 183, 202.
Plaintiff testified: "We used one bed as a table and three fellows sat on the bed. I sat on the chair. To my knowledge there was but one chair in the room. I sat on the chair and we just started playing the cards. I think it was the first hand and the chair was a little wobbly. I didn't pay no attention to that. Then boom, and I was on the floor. That's all I know."
On cross-examination he testified: "It seems to me that the chair was at the writing desk prior to the time that I sat on it. I have an idea I must have moved it away from the desk. I imagine the bed was about the same height as the chair. We were playing cards on the bed, a game of hearts. Part of the deck would have been on the bed. In that game you deal out all the cards. Then you play the cards on the bed. I never got to reach for the cards on the bed after sitting on the chair. As to my reaching over the bed, we started *779 playing and boom the chair went down. At the time the chair collapsed I had my cards in my hand and just went down. The cards were all over the room. As to my straightening up in the chair, I was like I am now. I suppose I did move some in the chair. Immediately prior to the collapse of the chair I had some cards in my hand putting them together and the chair went down, I possibly moved."
This testimony is supported by one of the other occupants in the room.
We believe the doctrine of res ipsa loquitur is applicable to the facts and circumstances disclosed by the evidence. The jury could properly infer the injury was probably caused by some negligent act on the part of defendant. Of course, they were not compelled to reach this inference. Even though defendants were in no position to offer evidence disputing plaintiff's version of the accident, the jury could have inferred the chair would not have collapsed unless plaintiff had been using it in an improper manner. Tuso v. Markey, 61 N.M. 77, 294 P.2d 1102, 1105.
"The doctrine does not require the jury to find in favor of the plaintiff, but merely affords evidence to carry the question of liability to the jury, which may adopt or reject the conclusion of responsibility on the defendant's part as required by their reason and common sense, applied to all the facts in the case." 38 Am.Jur. 994-995, Negligence § 298.
"In the ordinary case res ipsa loquitur merely permits the jury to choose the inference of the defendant's negligence in preference to other permissible inferences. It avoids a nonsuit and gets the plaintiff to the jury; but a verdict for the defendant will be affirmed even though he offers no evidence." Prosser, Res Ipsa Loquitur in California, 38 Calif.L.Rev. 183, 234; Prosser, Law of Torts at 233 (3d Ed. 1964).
Defendant claims plaintiff was not using the chair in an ordinary manner when he sat on it to play cards on a bed of the same height. We do not consider such use so unusual or extraordinary that it prevents the doctrine of res ipsa loquitur from being applicable.
There are no Iowa cases in which res ipsa has been applied to chairs. Denison v. Wiese, 251 Iowa 770, 102 N.W.2d 671, involved charges of specific negligence in a fall from a wobbly bar stool. However, we did apply the doctrine to bleacher seats in Boyer v. Iowa High School Athletic Association, Iowa, 152 N.W.2d 293, and Larrabee v. Des Moines Tent & Awning Co., 189 Iowa 319, 178 N.W. 373. They are analogous to the facts here.
Several other jurisdictions have applied res ipsa loquitur in situations we consider factually similar. Keena v. Scales, 61 Cal. 2d 779, 40 Cal.Rptr. 65, 394 P.2d 809 (swivel chair); Rose v. Melody Lane of Wilshire, 39 Cal.2d 481, 247 P.2d 335 (bar stool); Couris v. Casco Amusement Corp., 333 Mass. 740, 133 N.E.2d 250 (theatre seat); Herries v. Bond Stores, 231 Mo. App. 1053, 84 S.W.2d 153 (chair furnished store patron by salesman); Nownes v. Hillside Lounge, Inc., 179 Neb. 157, 137 N.W. 2d 361 (bar stool); Benedict v. Eppley Hotel Co., 159 Neb. 23, 65 N.W.2d 224 (folding chair); Tuso v. Markey, 61 N.M. 77, 294 P.2d 1102 (chair in restaurant); Schueler v. Good Friend North Carolina Corp., 231 N.C. 416, 57 S.E.2d 324, 21 A.L.R.2d 417 (row of chairs attached together); Gow v. Multnomah Hotel, 191 Or. 45, 224 P.2d 552, 228 P.2d 791 (counter stool); Clark-Daniel's, Inc. v. Deathe, Tex. Civ.App., 131 S.W.2d 1091 (folding chair); See Anno: 21 A.L.R.2d 420.
We have not considered those cases in which seats in common carriers have caused injury as the duty of common carriers toward their passengers is higher than that of an innkeeper to his guests.
The trial court did not err in applying the doctrine of res ipsa loquitur to these facts.
Affirmed.
*780 All Justices concur, except BECKER and RAWLINGS, JJ., who concur in result.
BECKER, Justice (concurring specially).
I concur in the result.
My objections to some of the principles adhered to in the majority opinion are set out in a dissent to DeMoss v. Darwin T. Lynner Construction Co., Iowa, 159 N.W. 2d 463, 469 and a concurring opinion in Boyer v. Iowa High School Athletic Association, Iowa, 152 N.W.2d 293, 300.
RAWLINGS, J., joins in this special concurrence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2306045/ | 980 A.2d 434 (2009)
RAMEY
v.
O'CONNELL.
No. 08-CV-1630.
District of Columbia Court of Appeals.
September 3, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/96072/ | 194 U.S. 141 (1904)
KIRBY
v.
AMERICAN SODA FOUNTAIN COMPANY.
No. 357.
Supreme Court of United States.
Submitted March 21, 1904.
Decided April 25, 1904.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS.
*143 Mr. J.M. McCormick for appellant.
Mr. John J. Weed for appellee.
*144 MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.
This case was brought directly to this court on a certificate of jurisdiction under section five of the judiciary act of March 3, 1891, and might, therefore, have been advanced under Rule 32. The motions to dismiss or affirm may be treated as equivalent to submission under that rule, but as the motions were made, and the motion to dismiss was chiefly rested on the ground that the value of the matter in dispute was not sufficient to give this court jurisdiction, we think it proper to say that "the act of 1891 nowhere imposes a pecuniary limit upon the appellate jurisdiction, either of this court or of the Circuit Court of Appeals, from a District or Circuit Court of the United States." The Paquete Habana, 175 U.S. 677, 683.
On this appeal no question of error in matter of equity procedure in the retaining of the cross bill after the dismissal of the bill is open for consideration, but we do not intimate in the slightest degree that any error in that particular was committed. Chicago, M. & St. P. Railway Company v. Third National Bank, 134 U.S. 276; Daniell Ch. Pr. (5th ed.) 1553, note; Bates Eq. Proc. § 386.
The contention is that the Circuit Court had no jurisdiction as a court of the United States to proceed on the cross bill because of the lack of the prescribed jurisdictional amount. But we think the Circuit Court was right in rejecting this contention and in overruling the plea.
In the first place, the whole record being considered, the value of the matter in dispute might well have been held to exceed two thousand dollars, exclusive of interest and costs. Stinson v. Dousman, 20 How. 461, 466; New England Mortgage Company v. Gay, 145 U.S. 123, 131; Shappirio v. Goldberg, 192 U.S. 232; Lovell v. Cragin, 136 U.S. 130.
In Stinson v. Dousman the suit was brought to recover something less than five hundred dollars as rent of a parcel of land under a written contract for the purchase of the land *145 at eight thousand dollars, which provided that the covenantee should pay rent on failure to comply with sundry conditions prescribed, and defendant not only set up in his answer a defence to the claim for rent, but also sought a decree affirming the contract as outstanding. It was objected in this court that the matter in dispute was not of the value of one thousand dollars, and that therefore there was no jurisdiction. Mr. Justice Campbell said: "The objection might be well founded, if this was to be regarded merely as an action at common law. But the equitable as well as the legal considerations involved in the cause are to be considered. The effect of the judgment is to adjust the legal and equitable claims of the parties to the subject of the suit. The subject of the suit is not merely the amount of rent claimed, but the title of the respective parties to the land under the contract. The contract shows that the matter in dispute was valued by the parties at $8,000. We think this court has jurisdiction." The case is cited and considered in New England Mortgage Company v. Gay and in Shappirio v. Goldberg.
In Lovell v. Cragin it was held as correctly stated in the headnotes: "When the matter set up in a cross bill is directly responsive to the averments in the bill, and is directly connected with the transactions which are set up in the bill as the gravamen of the plaintiff's case, the amount claimed in the cross bill may be taken into consideration in determining the jurisdiction of this court on appeal from a decree on the bill."
In the present case the Circuit Court in its decree referred to the plaintiff's bill and the relief thereby sought, in connection with the cross bill, and, we think, was justified in doing this as the record had not passed from under its control, and it was apparent that the decree on the cross bill disposed of the contention of plaintiff in respect of the cancellation of the contract. Taking the bill, defendant's answer and the cross bill together, the jurisdictional amount was made out.
In the second place, it is the general rule that when the jurisdiction of a Circuit Court of the United States has once attached *146 it will not be ousted by subsequent change in the conditions. Morgan v. Morgan, 2 Wheat. 290; Clarke v. Mathewson, 12 Pet. 164; Kanouse v. Martin, 15 How. 198, 208; Roberts v. Nelson, 8 Blatchf. 74; Cooke v. United States, 2 Wall. 218.
In Morgan v. Morgan it was laid down by Chief Justice Marshall that the jurisdiction of the Circuit Court having once vested between citizens of different States, could not be divested by a change of domicil of one of the parties, and his removal into the same State as the adverse party pendente lite. This was so ruled in Clarke v. Mathewson and other cases there cited.
In Kanouse v. Martin, after petition to remove had been filed and bond tendered, the state court allowed the plaintiff to reduce the matter in dispute to less than the jurisdictional amount, and went on with the case. This was necessarily held to be erroneous, but the observations of Mr. Justice Curtis show that, in his opinion, the general rule to which we have referred also applied, and he cites Morgan v. Morgan and Clarke v. Mathewson.
In Roberts v. Nelson the amount claimed was reduced after the case had been removed, and Mr. Justice Blatchford, then District Judge, held that the jurisdiction of the court having once attached, no subsequent event could divest it.
In Cooke v. United States Mr. Chief Justice Chase said that "jurisdiction once acquired, cannot be taken away by any change in the value of the subject of controversy."
This action, when brought in the state court, was an action to recover $1,500 damages for deceit. Defendant demurred to and answered the original petition. Plaintiff subsequently filed his amended petition seeking to be relieved of the obligation to pay $2,025, and damages in the sum of $2,500. The matter in dispute having thus been made to exceed the sum or value of two thousand dollars, exclusive of interest and costs, defendant presented his petition and bond for removal, and the cause was thereupon removed. The jurisdiction thus acquired by the Circuit Court was not divested by plaintiff's subsequent action.
Decree affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1611306/ | 533 So.2d 110 (1988)
STATE of Louisiana
v.
Larry J. BAUM.
No. 88-KA-0168.
Court of Appeal of Louisiana, Fourth Circuit.
October 11, 1988.
Harry F. Connick, Dist. Atty., Sandra Pettle, Asst. Dist. Atty., New Orleans, for appellee.
Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for appellant.
Before BYRNES, WILLIAMS and PLOTKIN, JJ.
BYRNES, Judge.
On July 14, 1987, defendant Larry J. Baum was charged with purse snatching in violation of R.S. 14:65.1.
A jury found Baum guilty as charged and he was sentenced to four years imprisonment at hard labor. Baum makes one assignment of error on appeal alleging that the evidence at trial was insufficient to support a conviction. We find no merit in the assignment and affirm his conviction and sentence.
FACTS
On May 23, 1987 at approximately 7:30 a.m., Mark Patterson snatched a fifty-five year old woman's purse as she was waiting for the streetcar on St. Charles Avenue. Patterson ran several blocks and entered a car parked at the corner of Prytania and Harmony Streets with its engine still running. The defendant/appellant, Larry Baum, was behind the steering wheel of the parked car. The defendant began to drive off; however the car was stopped by a policeman who had observed the purse snatching and saw Patterson get into the car. The officer identified the victim's purse and noted that the automobile license plate had been removed and was concealed under a towel in the back seat.
The defendant contends that he and Patterson, both of whom had been out drinking the previous night, met two women in a bar in the French Quarter. These women allegedly invited Patterson and the defendant *111 to come by their house, located in the Prytania/Harmony Street area. The girls did not give them an address, but rather told them to look for a blue Volkswagen parked outside. As Baum and Patterson were driving in the neighborhood, Patterson told the defendant that he thought he located the blue Volkswagen. The testimony at trial revealed that the defendant pulled over and parked his car with the engine still running, while Patterson allegedly went to look for the girls. Defendant testified that Patterson was only gone for a couple of minutes before he returned with the victim's purse. Baum denied attempting to drive off, commenting that the officer approached them while the car was still parked. He further contends that the car he was driving belonged to his sister and that the license plate had been removed by the sister after a fight she had with her boyfriend over ownership of the car. Baum testified that his sister propped the license plate up on a towel in the back rear window, but the towel had been used earlier in the evening by Patterson to wipe up spilled beer and had inadvertently been thrown into the back seat covering the license plate.
ASSIGNMENT OF ERROR
By defendant's sole assignment of error he contends that insufficient evidence was presented at trial to support his conviction of purse snatching.
When assessing the sufficiency of evidence to support a conviction, the appellate Court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987). In addition, when circumstantial evidence partly forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1983). The elements must be proven such that every reasonable hypothesis of innocence is excluded. R.S. 15:438. R.S. 15:438 is not a separate test from Jackson v. Virginia, supra, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, supra.
The elements of purse snatching are set forth in R.S. 14:65.1 providing, as follows:
"Purse snatching is the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon."
Additionally, in the instant case the jury had to determine if the defendant, Baum, was a principal to the crime. A principal to a crime is defined by R.S. 14:24, as follows:
"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."
It is well settled, that under R.S. 14:24 it is not necessary for a person to be present at the scene of the crime or for one to be involved in the direct commission of the crime to be convicted as a principal. State v. Willis, 322 So.2d 169 (La.1975). See also, Whitmore v. Maggio, 742 F.2d 230 (5th Cir.1984). Further, "persons who aid and abet in the commission of a crime are guilty as principals although they do not directly commit the act constituting the offense." State v. Broussard, 312 So.2d 325, 327 (La.1975); State v. Bernard, 441 So.2d 817 (La.App. 3rd Cir.1983), writ den. 445 So.2d 439.
The record before us clearly supports the finding that the defendant/appellant herein was a principal to the purse *112 snatching along with Patterson so as to warrant his conviction for this offense. The record before us shows that, appellant, was the driver of the get-away car, he remained in the car with the motor running while Patterson snatched the victim's purse, and he immediately attempted to drive off once Patterson was inside the car. Further, the arresting officer testified that he observed no conversation take place between Patterson and the defendant once Patterson got into the car, suggesting that Baum was aware of the need for a hasty escape. Additionally, the car's license plate was concealed. Moreover, appellant's version of the incident and his explanation of why they were in the area and why the license plate was concealed was not corroborated by any witnesses, such as the girls they were allegedly trying to find, or the appellant's sister, who allegedly owned the get-away car and removed the license plate. Under these circumstances, it was reasonable for the jury to find defendant guilty as a principal to the purse snatching.
ERRORS PATENT
We have also reviewed the record for errors patent, as mandated by La.C.Cr.P. Art. 920(2). We find none.
Accordingly, for the foregoing reasons, defendant's conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611325/ | 166 N.W.2d 589 (1969)
184 Neb. 188
KRESHA CONSTRUCTION CO., Inc., a Corporation, Appellee,
v.
Adolph KRESHA and Rose Kresha, Appellants.
No. 37088.
Supreme Court of Nebraska.
March 14, 1969.
*590 John E. Dougherty, York, for appellants.
Robak & Geshell, Columbus, Barney, Carter & Buchholz, Edward F. Carter, Jr., Lincoln, for appellee.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, SMITH, Mc-COWN, and NEWTON, JJ.
SPENCER, Justice.
This is an action to recover the balance due upon a written construction contract and for alleged extras and additions claimed to have been subsequently ordered by the defendants. The jury returned a verdict for plaintiff in the sum of $6,037.64 and defendants perfected an appeal to this court.
Plaintiff, a construction company owned by Arthur J. Kresha, a half brother of the defendant Adolph Kresha, agreed to build a house for defendants for $28,000. There is a serious conflict in the evidence as to the type of house to be built. It is defendants' position that plaintiff agreed to build a house according to plans and specifications used to build one in Gresham, Nebraska, owned by Mark Romohr, which plans they furnished to it. Plaintiff's contention is that it advised defendants that the Romohr house could not be duplicated for the amount defendants were willing to spend, and that new plans and specifications were drawn for a house within the amount defendants wished to pay. These are the plans which plaintiff insists were the basis for the contract. Defendants are equally insistent they were to have had the exact Romohr house, less changes necessary to exclude one bedroom.
Plaintiff further contends that after construction started, defendants ordered many extras and additions for which they agreed to pay. Defendants testify that the only changes suggested by them, with three exceptions for which they paid, were to conform the house to the Romohr specifications and were within the contract. No purpose will be served by detailing the respective claims of the parties except to note that defendants also claim there are 26 serious defects in the construction which would cost $11,815.47 to remedy, which defendants claim constitute a substantial breach of the contract.
Defendants set out 13 assignments of error. We consider only those specifically discussed in defendants' brief.
Defendants, in their amended answer, substantially deny and allege as follows: (1) Deny the allegations of plaintiff's petition; (2) allege that defendants agreed the house was to be built by plaintiff in accord with the Mark Romohr plans, for $28,000; *591 (3) that they paid $29,382.97 upon the contract and were allowed $1,000 credit for used lumber stored at the defendants' farmstead; (4) that there are 26 defects in the construction, each set out separately and numbered, which defendants allege constitute a failure to perform the contract in those particulars; (5) that there were certain other items ordered for which the defendants paid but have not received credit; (6) that the patio on the outside of the house was settling, and that water and rain overflowed into the living room and down into the basement, necessitating a repair cost of $400; (7) that plaintiff failed to enclose the upper part of the basement walls which will entail a cost to the defendants of $750; (8) that the garage double door has not functioned and the floor of the garage slopes gently to the north so that surface waters flow into the garage, to correct which will cost $300; and (9) that the fireplace in the basement smokes and because it has never been finished, will require an additional expenditure of $200.
The trial court, in instruction No. 2, stated those issues as follows: "Defendants for their Answer to plaintiffs' Petition deny each and every allegation therein and allege that the house was to be built by plaintiff according to the Mark Romar plan for the sum of $28,000.00 and was to be constructed in a good and workmanlike manner; that defendants have paid plaintiff a total of $29,382.97 and, in addition thereto, plaintiffs were to be allowed a credit upon used lumber of defendants' used by plaintiff in the sum of One Thousand Dollars; that plaintiff failed to complete said house in a good and workmanlike manner, in accord with the plans and specifications, in various ways, as detailed in the evidence; and that the fair and reasonable cost to place said house in substantially its condition as provided by the plans and specifications is the sum of $11,815.47; that certain extras were ordered but were paid for by the defendants, as has been detailed in the evidence; that certain damages have been caused to defendants by reason of claimed omissions and unworkmanlike construction; and that, for all of the above, defendants claim plaintiff should pay them $15,848.44 and that plaintiff's Petition should be dismissed."
Defendants urge that they were entitled to have each of the items set out in their answer specifically set forth in the instructions so that the jury would know exactly what the contested issues were as between the parties. Defendants do not attempt to point out how instruction No. 2 was prejudicial. It is true it does not go into defendants' claims with any specificity. The purpose of instructions is to summarize the issues presented by the parties, and not to attempt to list them in every detail. The instruction of the court sufficiently stated the issues covered by the pleadings and supported by the evidence. This court has on many occasions condemned the practice of copying pleadings into instructions. The proper method of presenting a case to the jury is a clear and concise statement by the court of those issues which find support in the evidence, and not by substantially copying the pleadings of the parties. Kroeger v. Safranek, 161 Neb. 182, 72 N.W.2d 831.
Defendants assign as error the overruling of their attack on plaintiff's petition at three separate stages of the proceedings on the grounds it failed to state a cause of action. Defendants filed a demurrer ore tenus before the introduction of testimony; a motion for a directed verdict at the close of plaintiff's evidence; and a motion for a directed verdict at the close of all of the evidence. Defendants' attack is predicated on the premise that there is no specific allegation in the petition of substantial performance of the contract within the meaning and intent of section 25-836, R.R.S. 1943, which reads: "In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading must establish *592 on the trial the facts showing such performance."
On this point, the trial judge in his ruling stated as follows: "The Court: I am going to overrule the Motion, and partly for this reasonthe Petition, I think, is not quite complete but at the time of the pre-trial conference, and this was not included in the pre-trial Order, it was stated by the attorney for the defendants that there was no question that the work had been done but it was a question of whether or not the extras were included within the ambit of the contract; and then there was the question raised of the unworkmanlike carrying out of the work; and at that time it was my understanding that the issue would be as to what the contract was; and that the house was completed substantially and had been moved into." We believe that under the circumstances present in this case the ruling was correct.
Defendants attack instructions Nos. 4 and 5 given by the trial court. In instruction No. 4 the trial court laid out plaintiff's burden of proof, first on the contract, then on the claimed extras and additions. We do not agree with defendants that it was confusing or that it "almost instructs a verdict for the plaintiff." Instruction No. 5 must be read in conjunction with instructions Nos. 6 and 7. These clearly cover all of the defendants' contentions. The instructions of the court must be considered in toto and if so considered they cover the issues raised by the pleadings and supported by the evidence, they are adequate. Frank H. Gibson, Inc. v. Omaha Coffee Co., 179 Neb. 169, 137 N.W.2d 701.
Defendants complain of the refusal of the trial court to give their tendered instructions Nos. 2 and 3. There is no merit to these assignments. The substance of instruction No. 2 is covered in the trial court's instructions Nos. 5, 6, and 7, and the trial court's instruction No. 7 is almost identical to tendered instruction No. 3.
Defendants allege that the court erred in permitting a contractor to answer a hypothetical question. We do not agree. It is the duty of the trial court to control the propounding of hypothetical questions to expert witnesses and to regulate the form, length, and content of the questions. In the exercise of this power, the court exercises a judicial discretion which ought not be overridden unless it very clearly appears to have been wrongly exercised. 58 Am. Jur., Witnesses, s. 852, p. 481.
The question propounded was a short one, was a proper hypothetical question, and while there was a dispute in the evidence on one of the assumptions, the ruling was clearly within the discretion of the trial court. Even if the question had been erroneously admitted, a review of the testimony leads us to the conclusion that it could not have prejudiced the defense.
Defendants argue that the evidence is insufficient to sustain the verdict returned by the jury. It would seem that the jury allowed plaintiff the $5,537.64 claimed for extras and additions, and possibly a disputed item of $2,000, and then gave the defendants credit for the old lumber used by the plaintiff, which could have been either $250, $500, or $1,000, and that the balance of the $1,500 difference represents an attempt to make some allowance for defects the jury found to exist. There is no question the defendants were allowed credit for the $1,382.97 paid for appliances. While we might have been more liberal on allowance on defects, we cannot say the jury was too restrictive. The jury heard the testimony and we are reading a cold record. In any event, the questions presented are ones of fact, and solely within the province of the jury. We cannot say that the evidence is insufficient to sustain the verdict herein.
For the reasons given, the judgment herein is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611330/ | 166 N.W.2d 567 (1969)
Albert DUERKSEN and Lydia Duerksen, Plaintiffs and Respondents,
v.
BROOKINGS INTERNATIONAL LIFE AND CASUALTY COMPANY, Defendant and Appellant.
No. 10493.
Supreme Court of South Dakota.
March 28, 1969.
Rehearing Denied May 14, 1969.
*568 John H. Zimmer, of Zimmer & Haar, Parker, for plaintiffs and respondents.
McCann & Martin, Brookings, for defendant and appellant.
BIEGELMEIER, Presiding Judge.
Plaintiffs are beneficiaries of a life insurance policy issued by defendant on the life of their daughter Jean who died as a result of an airline crash on August 6, 1966. The policy had been issued on an application signed by the insured's father Albert Duerksen dated July 6, 1961, at which time he delivered his check to the agent for the first year's premium in the sum of $29.38, the correct amount to pay for 359 days' insurance on a $30.00 annual premium rate discounted for the first six days of July which had elapsed. On July 20th a doctor, authorized by applicants, completed a form certifying the insurability of Jean C. Duerksen, then a minor, and the form was then mailed to defendant. On July 26, 1961 it issued the policy sued upon backdated to July 6, 1961 and mailed it to its agent, who delivered it to insureds after August 1, 1961. The check mentioned was also cashed by defendant on that date.
The application was for a College Student Life Plan which permitted automatic conversion to $5,000 of 20 Pay Life, a choice applicant elected. It contained a provision the insurance company,
"shall incur no obligation because of this application unless and until a policy is delivered to the applicant and the first premium thereon is paid in full while the health or other conditions affecting the insurability of the applicant are as described in this application."
The policy provided:
"This policy, together with the application, a copy of which is attached hereto and made a part hereof, contains and constitutes the entire contract between the parties hereto"
and a further clause,
"The consideration for this policy is the application therefor and the payment of the first premium of$29.38dollars for the balance of the year to the anniversary date above and the further payment of annual premium ofTHIRTY AND 00.100dollars on the Anniversary Date, shown above, and on each subsequent anniversary date during the life-time of the Insured".
*569 The policy also contained a grace provision as follows:
"Any premium is in default if not paid on or before the date it is due, but a grace of thirty-one days without interest, during which period this policy will remain in full force, shall be allowed for the payment of every premium except the first."
Annual premiums were thereafter paid in 1962, 1963, 1964 and the last one on June 22, 1965.
Defendant insurance company contends the policy of insurance, including the 31 days of grace, lapsed on August 2, 1966 and so was not in effect on August 6, 1966. Plaintiff urges defendant accepted a premium for 359 days of insurance, that as the application, made a part of the policy, provided it did not become effective until it was delivered and the first premium paid, which was on or after August 1, 1961, the four subsequent annual premiums paid kept the policy in force to August 2, 1966 and, with the 31 days of grace, it was in force on the date of her death.
In Lyke v. First Nat. Life & Accident Ins. Co., 41 S.D. 527, 171 N.W. 603, the court stated that notwithstanding the provision that premiums shall be paid annually in advance of a stated date, the doctrine announced in McMaster v. New York Life Ins. Co., 183 U.S. 25, 22 S.Ct. 10, 46 L.Ed. 64, was undoubtedly the correct rule of law, that an insured, by reason of having paid a first annual premium, would be entitled to a full year's insurance from the time when the insurance went into effect, and that a second or further premium would not be due until such entire year had expired.
The court held (as stated in Haynes v. Midland Nat. Life Ins. Co., 60 S.D. 212, 216, 244 N.W. 110, 111) "that, notwithstanding a policy provision that premiums should be payable annually in advance on the 12th day of September of each year, the premium period payments should be computed from the date when the policy went into effect, which was the day the policy was dated and issued, September 21st, although the application was approved September 19th."
The facts in Haynes v. Midland Nat. Life Ins. Co., 60 S.D. 212, 244 N.W. 110, are more involved. On January 24th a husband and wife signed separate applications for a joint life insurance policy. Each application provided there would be no contract until it was approved by the company, the policy issued and delivered and the first full premium paid. The medical director upgraded the usual rate which, under the application, made the policy effective when accepted by insureds and the policies, purporting to be signed February 24th, were delivered to the insureds March 29th. This was their first notice of the upgrading of the insurance rate. The policies made reference to premiums being payable annually in advance, stated the annual premiums in the body and on the back of each policy the amounts of the annual, semi-annual, quarterly and monthly premiums.
In the applications, made a part of the policies, the words "monthly with loan" were written after the printed words "annual premium". As part of this transaction and when the policies were delivered, insureds made a loan from the company for which they signed a note for $6,500, a mortgage and an assignment of the policies to the company. The note provided for the payment on July 1, 1928 and the first day of each month thereafter of $107.18 which included "monthly premium" on the policies of $33.73 specifically identifying them by their numbers. In a letter dated June 11, 1928 the company enclosed its check for the principal of the loan to insureds, less the four monthly premiums on the policies dated February 24, 1928, which were due, as it explained, for the four months "March, April, May, June $33.73" each, for a total of $134.92. Thereafter on July 7th and August 6, 1928 insureds made two payments of $107.18, thereby paying two *570 monthly premiums. No payment was made in September. The policies recited: "If any premium be not paid when due, this policy shall be void and all premiums forfeited to the company". The insured husband died October 7, 1928.
The insurance company refused payment claiming the insurance was not then in effect, the seventh month (of grace) from February 24, 1928, the policies' date, having ended September 24, 1928. Of necessity this was based on the insurance company's claim its deduction of the four months' premiums stated in its June 11th letter were those due February, March, April and May 24th and covered the months of "March, April, May, June" (to the 24th). Whether or not this contention was valid, the written agreement of insureds was to pay the monthly premiums in advance on the first day of each month commencing July 1, 1928 in the amounts stated both on the policies and the note. As stated, only the July 1st and August 1st payments were made and, if the written agreement prevailed, the policies were void on October 1, 1928. Plaintiffs' contention was the effective date of the policies was March 29th, the date the policies were delivered and that they were valid obligations for seven months from that date (six months' premiums paid plus one month grace) so the policies were in effect on October 7th. The court in Haynes affirmed the trial court's judgment allowing recovery on the policies, discussed its prior Lyke opinion, the McMaster and other decisions of the United States Supreme Court as well as those reaching a contrary result.
The difference between Haynes and this appeal is in Haynes the insureds agreed in a writing signed by them that they would make monthly payments of the premiums commencing July 1st and in the present action no agreement was signed by the applicant for insurance to make payments on any specific date. Here the signed application provided the company would incur no obligation until the policy was delivered to applicant and premium paid in full. This occurred after August 1, 1961; yet the company, instead of issuing its policy covering 359 days for which it accepted a premium arbitrarily backdated the policy written July 26th to July 6th and inserted July 1st as the anniversary date. It placed itself in a position of denying liability in the event of a claimed loss from July 6, 1961 to sometime after August 1, 1961 under the signed clause in the application (coverage for only 334 days) and also under the inserted July 1st anniversary date for loss occurring after that date.
It is apparent in Haynes the court laid some stress on the fact the policies fixed no date for payment of the monthly premiums yet the amounts of those premiums appeared on the policies and the amounts and dates of payment of the insurance premiums were certain in the note executed simultaneously with and as a part of the loanlife insurance transaction. The court said it "was within the power of the insurance company, if it meant the policy to be in effect from the date of its approval by the company, to have said so". The present policy did state a date when the policy was to be in effect, that is, when it was delivered. Whether delivery of the policy is or is not essential to completion of the contract was one of the reasons mentioned in Haynes for computing the date from which premiums were to be computed. Some of the questions or conditions mentioned in Haynes are also apt: Was it defendant's intention to collect for that period prior to delivery when the policy was not in effect? Did it intend to insure for 359 days when it collected and did not refund or offer to refund the excess of the premium it collected for 334 days it now claims the policy was effective? As remarked in Haynes, there was no quid pro quo whatever for the nearly first month's premium if the time was measured by the arbitrary backdate in the policy. The company clearly stated in the application, made a part of the policy, that it was not in effect until delivered and it accepted a premium for a period of time beyond the *571 backdated anniversary date arbitrarily inserted in the policy. This resulted in an inconsistency between the provisions in the policy with reference to the anniversary date and the time it became effective.
Where policies of insurance contain inconsistent provisions the view should be adopted, if possible, which will sustain rather than forfeit the contract and construction of a policy will be adopted which is most favorable to the insured. Haynes v. Midland Nat. Life Ins. Co., supra, and cases cited. Giving effect to the clause providing the time the policy was to be an obligation of the company, the premium entitled insured to 359 days' protection on which basis the policy was in force on the date of her death. This conforms to the rationale of our prior decisions from which we are not inclined to depart. The cases are not however in agreement. See Lentin v. Continental Assurance Company, 412 Ill. 158, 105 N.E.2d 735, 44 A.L.R.2d 463, and the annotation thereto in 44 A.L.R.2d at page 472. The reasoning of the court and the result reached in the Lentin opinion are in conformity with our cited decisions. The question of whether payment of premium be calculated from the date on the application and policy or the later date of delivery when it became effective is succinctly stated in the concurring opinion of Chief Justice Arterburn of the Indiana Supreme Court in State Security Life Insurance Co. v. Kintner, 1962, 243 Ind. 331, 185 N.E.2d 527 at 531.
Appellant urges the ambiguity in the policy, if any, was eliminated by conduct of plaintiffs in accepting the anniversary date and paying premiums on dates running from June 22nd to July 2nd in the years 1962, 1963, 1964 and 1965. That premiums were generally paid before the backdated July 1st of each year ignores the right of insured under the grace period to pay the premiums any time during the 31-day grace period and would penalize an insured by reason of prompt payment of premiums before due date and not taking advantage of the grace period. It further overlooks the well-known practice of insurance companies to accept payment of premiums several years in advance in discounted amounts and would similarly penalize insureds availing themselves of that privilege.
The trial court did not err in concluding the policy was in effect on the date of insured's death and the judgment is affirmed.
ROBERTS and RENTTO and HANSON, JJ., concur.
HOMEYER, J., dissents.
HOMEYER, Judge (dissenting).
I dissent. The Lyke case referred to by the majority can hardly be considered precedent to affirm. This case decided in 1919 merely states as "undoubtedly the correct rule of law" a concession in respondent's brief that payment of an annual premium provides coverage from the time the policy became effective for an entire year. It then computes the policy year from the issue date of the policy as distinguished from the date of approval of the application for insurance by the company which would have resulted in a lapse. I do not believe this case should be interpreted to hold that an unambiguous date fixed for payment of premiums in the insurance contract and agreed to by the parties can be disregarded. In fact it indicates the contrary. See D & P Terminal, Inc. v. Western Life Insurance Company, 8 Cir., 368 F.2d 743, 747.
Likewise what may have been believed to be a correct rule of law when that case was decided is not now even the majority view. See Annot., 44 A.L.R.2d 472 and Juster v. John Hancock Mutual Life Ins. Co., 194 Minn. 382, 260 N.W. 493, overruling Stramback v. Fidelity Mut. Life Ins. Co., 94 Minn. 281, 102 N.W. 731. Also Reid v. Bankers Life Co., 148 Neb. 604, 28 N.W.2d 542, overruling Cilek v. New York Life Ins. Co., 97 Neb. 56, 149 N.W. 49, 1071; Wall v. Mutual *572 Life Ins. Co. of New York, 228 Iowa 119, 289 N.W. 901; Southland Life Ins. Co. v. Vela, 147 Tex. 478, 217 S.W.2d 660; Appleman, Insurance Law and Practice, § 7953, p. 165, 44 C.J.S. Insurance § 345, p. 1314, 43 Am.Jur.2d Insurance, § 544 et seq. The following statement appears in the Southland case, supra:
"As stated in Great Southern Life Insurance Co. v. Peddy, 139 Tex. 245, 162 S.W.2d 652, 653, `The great weight of current decisions sustains the rule that when a policy specifically provides for the payment of premiums, and expressly specifies the date from which the premium period is to be computed, and makes that date the day on which recurring premiums are due and payable, such date will control, irrespective of the date on which the policy is delivered.' No public policy is violated by a contract between an insurance company and an insured whereby premiums are to be paid from the effective date of the policy rather than the date of its delivery, even though the effect thereof is to charge a premium for a period when the insured has no protection. It was pointed out in the case last-above cited, and in the case of Kurth v. National Life & Accident Insurance Co., Inc., Tex.Civ.App., 79 S.W.2d 338, writ refused, that it is to the interest of both parties to have a certain date upon which to calculate not only the due dates of premiums but the premium rate, cash and loan value, and the paid-up insurance benefits available to the insured. As observed in the case last cited, to fix an indefinite standard of obligation as between the insurer and the insured would play havoc with both."
The majority quotes language in the application dated July 6, 1961 as giving rise to an ambiguity between it and the policy proper. I do not so read it. Immediately preceding the paragraph from which the quotation is taken appears the following: "(14) Prorate first Premium Collect with application to next July 1. First Prem. $29.38 Annual Prem. thereafter $30.00. Is waiver of premium desired? Yes ____, No. ____." The application was signed by the applicant and is part of the contract. It is clear that the first premium was for less than one year and computed from July 6th to the anniversary date of the policy and the applicant issued his check in payment thereof at that time. There is no ambiguity or uncertainty either in the application or in the policy issued as to the period covered by the premium payment and when the next premium was due. The policy explicitly states:
"THE DATE OF EXPIRY JULY 1, 1968. CONVERSION PERIOD TO DATE OF EXPIRY. THE DATE OF ISSUE JULY 6, 1961. ANNIVERSARY DATE JULY 1, 1962 and Annually Thereafter. POLICY YEARS AND POLICY ANNIVERSARIES SHALL BE COMPUTED FROM THE ANNIVERSARY DATE * * * The consideration for this policy is the application therefor and the payment of the first premium of $29.38 dollars for the balance of the year to the anniversary date above and the further payment of annual premium of THIRTY AND 00/100 dollars on the Anniversary Date, shown above, and on each subsequent anniversary date during the lifetime of the Insured, until premiums hereon have been paid to the Date of Expiry."
In my opinion the contract is clear and unambiguous and fixes the premium payment date after the initial premium as July 1, 1962, and on July 1st of each subsequent year during the term of the policy. The problem here is one of simple contract law. It was so stated in Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 161 A.2d 717, in what appears to be an identical factual situation. The court there said:
"When the terms of an insurance contract are clear, it is the function of a court to enforce it as written and not to make a better contract for either of the parties. * * * Absent statutory prohibitions, an insurance company has the right to impose whatever conditions it desires prior to assuming its obligations *573 and such provisions should be construed in accordance with the language used. * * * This rule applies with equal force to the selection of the dates on which premium payments are to be made. The parties may agree upon such dates and where the time of payment is thus specified by the terms of the policy, those terms control and the date so fixed is binding on both parties."
The majority relies heavily on the Haynes case to support an affirmance. In Haynes, the court found an ambiguity which is not here present. Likewise, the facts in Haynes were materially different. In Haynes, the court said:
"Here the parties did not clearly express their intention in the policies. The policies are silent as to when any monthly payment of premium is to be made. The policies provide for an annual payment * * *."
Later,
"here there was no day fixed for the payment of a monthly premium * * *. Not having clearly and definitely stated that the policies issuedhowever different from the policies applied for in increase of premium, deprival of extended insurance, or otherwiseshould be in effect from February 24th, the company must accept the consequences resulting from its own failure to state the contract definitely and clearly. There are many cases where insured has been held bound to pay for a full premium period though a considerable part of the premium period had elapsed before the insurance was in force, but here at least an entire monthly premium period had elapsed before the insurance became effective. There was no quid pro quo whatever for the first month's premium if the time was measured from the only date mentioned in the policy, February 24th."
The Haynes case was analyzed by Judge Gibson in D & P Terminal, Inc. v. Western Life Ins. Co. (Nov. 1966) supra, in which analysis I concur. I also believe applicable to the present situation the court's statement in that case:
"However, in the case before us, even if we assume arguendo that some ambiguity existed as to the initial span of coverage, as the years pass this initial ambiguity fades. The exact date of delivery is unrecorded on the policy, and perhaps is long forgotten; all that remains is the obvious date on the policy which calls for payment. In such a situation the insured must surely realize that he is expected to pay the premiums on these dates, and if he fails to do so the policy is subject to lapse. * * * We believe the policy is clear, the intention is clear, and any conceivable initial ambiguity was cured by the passage of time and the payment of five quarterly premiums.
The policy is not subject to doubts that must be resolved in plaintiff's favor. Under South Dakota law there was a lapse * * *".
The record here clearly shows after payment of the initial prorated premium subsequent annual premiums were paid respectively as noted in the records at the home office of the company as follows: June 26, 1962, July 2, 1963, June 30, 1964 and June 22, 1965. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611347/ | 533 So.2d 620 (1988)
ELMORE COUNTY and Elmore County Commission
v.
Billy R. HORNSBY.
Civ. 6308.
Court of Civil Appeals of Alabama.
May 25, 1988.
Rehearing Denied June 29, 1988.
Certiorari Denied November 10, 1988.
*621 Dan E. Schmaeling of Wood & Parnell, Montgomery, for appellant.
James R. Bowles of Bowles & Cottle, Tallassee, for appellee.
Alabama Supreme Court 87-1224.
INGRAM, Judge.
This action began when Billy R. Hornsby (employee) filed a workmen's compensation claim against Elmore County and Elmore County Commission (employer). The employee claimed that he developed an occupational disease out of, and in the course of, his employment. After a hearing, the trial court found that the employee was totally and permanently disabled and was entitled to receive workmen's compensation benefits and medical expenses. The employer appeals.
The dispositive issue on appeal is whether there was any evidence establishing that prolonged sitting is a hazard in excess of those ordinarily incident to employment in general or peculiar to the occupation of a deputy sheriff.
The facts, in part, are as follows: The employee worked for the Elmore County sheriff's department for approximately 14 years. His basic duties were enforcing the law, serving civil papers, transporting mental patients, and engaging in arrest procedures, all of which involve, in some part, driving a patrol car.
The medical testimony indicates that the employee suffers from advanced arteriosclerotic peripheral vascular disease, more commonly known as hardening of the arteries. As a result of this disease, grafts were surgically placed in the employee's legs to resolve his initial problem of decreased circulation and narrowing of the arteries.
We would note that it is undisputed that the employee's hardening of the arteries was not caused by his job as a deputy sheriff. Further, the testimony indicates that sitting does not worsen this disease. What the employee contends, however, is that the prolonged sitting required by his job caused him to develop clots and occlusions in the grafts in his leg, and he is therefore entitled to compensation. We disagree.
Section 25-5-110, Ala. Code 1975, as set out below, sets out the requirements for recovery based on an occupational disease:
"(1) OCCUPATIONAL DISEASE. A disease arising out of and in the course of employment, other than occupational pneumoconiosis and occupational exposure to radiation as defined in articles 5 and 7, respectively, of this chapter, which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer. A disease (including, but not limited to, loss of hearing due to noise) shall be deemed an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation or employment as a direct result of exposure over a period of time to the normal working conditions of such trade, process, occupation or employment. The term `occupational disease' shall not include accidents within the meaning of articles 3, 5 and 7 of this chapter.
"(2) CONTRACTION OF AN OCCUPATIONAL DISEASE. Such term shall include any aggravation of such disease without regard to the employment in *622 which the disease was contracted. (Acts 1971, No. 668, p. 1379.)"
In order for a disease to be occupational, it must be due to hazards which are (1) in excess of those ordinarily incident to employment in general and (2) different in character from those found in the general run of occupations. Dodson v. Atrax Div. of Wallace-Murray Corp., 437 So.2d 1294 (Ala.Civ.App.1983).
It appears to this court that any prolonged sitting would contribute toward repeated occlusions in the graft in the employee's leg. The employee's doctor so testified to the fact. However, we do not find any evidence in the record to conclude that "sitting," as required of a deputy sheriff in driving a motor vehicle, fits under the requirements of an occupational disease. There is no evidence that it is a hazard in excess of those ordinarily incident to employment in general and different in character from those found in the general run of occupations. Dodson, supra. Therefore, we must reverse the trial court.
We point out that we are mindful that the standard of review in a workmen's compensation case is very narrow. Our review here is limited to questions of law and to an examination of the evidence to determine if there is any legal evidence to support the findings of the trial court. Dodson, supra. We have considered the evidence and the trial court's findings, and we have concluded that there is no reasonable view of the evidence that supports the conclusion of the trial court that the employee's "disease" was an occupational disease. In view of this finding, we pretermit other issues raised by the employer.
This case is due to be reversed and remanded for entry of a judgment in favor of the employer.
REVERSED AND REMANDED.
BRADLEY, P.J., and HOLMES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611301/ | 15 Mich. App. 279 (1968)
166 N.W.2d 549
SUWYN
v.
AUTO-OWNERS INSURANCE COMPANY
Docket No. 4,828.
Michigan Court of Appeals.
Decided December 24, 1968.
*280 Dutchess, Mika, Miles, Meyers & Beckett (John C. Jones, of counsel), for plaintiff.
Cholette, Perkins & Buchanan (Edward D. Wells, of counsel), for defendant.
LESINSKI, C.J.
This is an appeal of the circuit court of Kent county decision granting judgment of no cause of action to defendant pursuant to stipulated facts.
Plaintiff's complaint alleged that defendant insurance company issued a garage liability policy to David W. Olthouse, who operated an automobile servicing and repair facility, and that while such policy was in effect, the plaintiff delivered his tractor to Olthouse for repair. Plaintiff's complaint further stated that Olthouse, the insured, failed to replace two cotter pins in the engine, causing a piston rod to break loose and ruin the engine.
A negligence action had originally been brought by plaintiff against Olthouse, plaintiff obtaining a default judgment. When neither Olthouse nor defendant insurer paid the judgment, plaintiff brought the present action against defendant insurer to obtain payment under Olthouse's garage liability policy. Defendant agreed under the policy:
"To pay on behalf of the assured all sums which the assured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of injury to or destruction of property including loss of use thereof caused by accident and arising out of the operations of the assured as described in this policy."
The policy also contained an exclusion clause labeled section VIII which in its pertinent part states:
*281 "This policy does not apply: * * *
"(b) to liability assumed by the assured under any contract or agreement except a warranty of goods or products, but this policy does not apply to injury or to destruction of such goods or products."
The sole stipulated issue on appeal is whether the trial court erred in determining the insurance to be inapplicable under the alleged facts due to the policy exclusion.
Defendant insurer asserts that because the insured agreed to repair plaintiff's vehicle, plaintiff's cause of action arose under a contract or agreement, and, as such, the insurer is specifically excluded from liability under the policy. However, this contention is without merit because although a contract clearly existed, the original complaint alleged and recovery was based solely on negligence. The mere fact that an action could have been brought on contractual grounds does not prevent liability under a policy excluding contractual liability where, as here, the recovery was based on a negligence action. Adequate authority supports this interpretation. In O'Toole v. Empire Motors Inc. (1935), 181 Wash 130 (42 P2d 10), the garage liability policy expressly excluded contractual liability. Nevertheless, the court granted recovery under the policy where the insured negligently performed a contract to repair. The court's rationale was that recovery was based upon tort, not contract, and therefore the policy exclusion as to contractual liability was inapplicable.[1]
Similarly, in Keating v. Universal Underwriters Insurance Co. (1958), 133 Mont 89 (320 P2d 351), *282 under a clause excluding contractual liability, the court granted recovery where both contractual and tort relations existed, stating (p 98):
"It does not necessarily follow that because of the written obligation on the part of the insured, the exclusion clause of the policy will govern instead of the insuring agreement. * * * As stated in respondent's brief, `Would it not be a strained construction of the policy to say that although the insured has a liability arising from the law, which the policy specifically covers in the insuring clause, the insurer is, nevertheless released from that liability because the insured has by contract acknowledged the same obligation at law? Obviously, such a construction of the policy would violate all the rules of construction laid down by this court.'"
The fact that the cause of action in the instant case could have been brought upon contractual grounds did not exclude applicability of the policy since the original recovery was in fact obtained through a negligence action.
While we disagree with defendant insurer's contention discussed above, we must agree with defendant's claim that the exclusion found in the last phrase of section VIII (b) denies the insured coverage for the claim presented.
The essence of this action is an attempt to recover under the policy for an engine ostensibly repaired by the insured but destroyed as a result of the insured's negligent repair. The exclusionary phrase of the policy reads as follows: "but this policy does not apply to injury or to destruction of such goods or products." We find the language of this portion of the policy unambiguous. Clearly the insured cannot recover under the policy for destruction or injury to property he is working on, or has worked *283 upon, if the damage is occasioned by the insured's own defective work on such property.
In Vobill Homes, Inc. v. Hartford Accident and Indemnity Co. (La App, 1965), 179 So 2d 496, Judge Albert Tate, Jr., in a well-reasoned opinion, analyzed a policy containing a very similar exclusion. Judge Tate, in speaking for the court, stated:
"It has uniformly been held that a liability policy with an exclusion clause such as the present does not insure any obligation of the policyholder to repair or replace his own defective work or defective product. * * *
"The interpretation to this effect of the exclusion clause has also consistently been recognized by other decisions which did allow coverage for damages to other property or for other accidental loss resulting from the defective condition of the work-product (even though recovery for the injury to the work-product itself was excluded by the clause in question)."[2]
We agree with Judge Tate's reasoning, which is supported by much good authority, that a policy containing exclusionary language such as we are asked to interpret here, while it may cover damages to other property, does not cover the work product of the insured.
We hold that the language of the exclusion clause in the instant policy denies the insured coverage against injury to or destruction of goods or products repaired by the insured, such as the engine in the instant case.
The judgment of no cause of action is affirmed. Costs to appellee.
FITZGERALD and TEMPLIN, JJ., concurred.
NOTES
[1] Cf. Smith Motors, Inc. v. New Amsterdam Casualty Co. (1943), 143 Neb 815 (11 NW2d 73); Annotation, Automobile liability insurance of garages, repair shops, sales agencies and the like, 165 ALR 1471, 1486; Annotation, Liability insurance of garages, motor vehicle repair shops and sales agencies and the like, 93 ALR2d 1047, 1084.
[2] Accord, Liberty Building Co. v. Royal Indemnity Co. (1960), 177 Cal App 2d 583 (2 Cal Rptr 329); Standard Accident Insurance Co. v. Theo Money Chevrolet Co. (1950), 217 Ark 869 (233 SW2d 553). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611363/ | 540 F.Supp. 1104 (1982)
James David MORROW, et al., Plaintiffs,
v.
Mrs. SOUTH, et al., Defendants.
No. C-3-81-197.
United States District Court, S. D. Ohio, W. D.
May 18, 1982.
*1105 *1106 Ashley C. Brown, Dayton, Ohio, for plaintiffs.
Gordon H. Savage, Janet K. Cooper, Dayton, Ohio, for defendant Dayton Power & Light.
James D. Dennis, Asst. City Atty., Dayton, Ohio, for defendant City of Dayton.
Kenneth Pohlman, Asst. County Prosecutor, Dayton, Ohio, for defendant Montgomery County.
Thomas V. Martin, Asst. Atty. Gen., Columbus, Ohio, for State of Ohio.
DECISION AND ENTRY ON PENDING MOTIONS; MOTION TO DISMISS BY DEFENDANT CITY OF DAYTON SUSTAINED IN PART AND OVERRULED IN PART; MOTION TO DISMISS BY DEFENDANT STATE OF OHIO SUSTAINED IN PART AND OVERRULED IN PART; MOTION BY CITY OF DAYTON TO DISMISS AMENDED COMPLAINT OVERRULED; MOTION BY PLAINTIFFS FOR JUDGMENT BY DEFAULT OVERRULED; MOTION BY DEFENDANT CITY OF DAYTON TO STRIKE PLAINTIFFS' MEMORANDUM OVERRULED; MOTIONS BY DEFENDANT CITY OF DAYTON TO STRIKE PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION OVERRULED; MOTION BY PLAINTIFFS TO STRIKE NOTICE OF ADDITIONAL AUTHORITY BY DEFENDANT CITY OF DAYTON OVERRULED; MOTION BY DEFENDANT DP&L AND INDIVIDUAL DEFENDANTS TO STRIKE PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION OVERRULED; MOTION BY DEFENDANT CITY OF DAYTON TO STRIKE PLAINTIFFS' AFFIDAVITS IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION OVERRULED; MOTION BY DEFENDANT CITY OF DAYTON TO CORRECT MEMORANDUM IS SUSTAINED; PLAINTIFFS' MOTION TO FILE SECOND AMENDED COMPLAINT SUSTAINED IN PART AND OVERRULED IN PART; CONFERENCE SET
RICE, District Judge.
This case involves alleged violations of the Due Process Clause of the Fourteenth Amendment, occasioned when the Defendant Dayton Power & Light Co. (DP&L) terminated utility service to a home owned by one of the Plaintiffs, James David Morrow. Twelve motions are currently pending before this Court, to wit:
*1107 1) The motion by the Defendant City of Dayton to dismiss Plaintiffs' Complaint (Doc. # 4);
2) The motion by Defendant State of Ohio to dismiss Plaintiffs' Complaint (Doc. # 7);
3) A further motion by the City of Dayton to dismiss Plaintiffs' amended complaint (Doc. # 12);
4) Plaintiffs' motion for judgment by default with respect to the State of Ohio (Doc. # 13);
5) The motion by the City of Dayton to strike a memorandum filed by the Plaintiffs (Doc. # 22);
6) Plaintiffs' motion to strike a "Notice of Additional Authority" filed by the City of Dayton (Doc. # 30);
7&8) The motions by the City of Dayton to strike Plaintiffs' motion for a preliminary injunction (Docs. # 29, # 43);
9) The motion by DP&L and the individual defendants to strike Plaintiffs' motion for a preliminary injunction (Doc. # 31);
10) The motion by the City of Dayton to strike Plaintiffs' affidavits in support of their motion for a preliminary injunction (Doc. # 42);
11) The motion by the Defendant City of Dayton to correct its memorandum (Doc. # 20);
12) The motion by Plaintiffs to file a second amended complaint (Doc. # 38).
A presentation of the factual background in this case will precede consideration of the pending motions.
I. FACTUAL BACKGROUND
The Plaintiffs herein, James David Morrow, his son, Darren Morrow, and Terry L. Schuler,[1] filed their original complaint in this Court on March 24, 1981. Said complaint contains a mixture of factual allegations and legal conclusions, and may be summarized as follows. DP&L, Plaintiffs allege, has "maintained a long standing and unconstitutional scheme of arbitrarily disconnecting" the utility services of customers, without a prior notice or hearing. Moreover, the City of Dayton and the State of Ohio "support" and "concur with" these "constitutional violations." Turning toward the facts, the Complaint alleges that on January 22, 1981, DP&L arbitrarily, and without notice or hearing, disconnected the gas and electric service to the residence of James and Darren Morrow. To reconnect service, DP&L allegedly coerced the Plaintiffs into paying a "totally fraudulent and fabricated bill" which was past due. On January 28, 1981, DP&L refused to reconnect service to the residence despite the application therefore, by the Plaintiff Schuler. DP&L, the State of Ohio, and the City of Dayton, were alleged to be engaged in a "scheme and conspiracy" to deprive the Plaintiffs of their "federal rights." The City and State are said to be "substantially involved" in the activities of DP&L, especially since they have "given [DP&L] a monopoly in the area." Plaintiffs prayed for compensatory and punitive damages, and for other such relief as the Court may deem just. DP&L, the City of Dayton, the State of Ohio, and Mrs. South, Mrs. Jones, Ms. Llewllyn, and Mr. Rodgers (all employees of DP&L) were named as Defendants. The complaint invoked the jurisdiction of this Court pursuant to 28 U.S.C. §§ 1331, 2201, 2202.
The amended complaint, filed on April 13, 1981, added Montgomery County as a Defendant, as well as Paula J. MacIlwaine, E. George Ferguson, and Charles F. Horn, members of the Board of Commissioners of Montgomery County, as Defendants. Said Defendants allegedly had "knowledge" of the acts of other Defendants outlined in the original complaint, were said to have "maintained a policy, custom and scheme" of violating plaintiffs' "constitutional rights," and were alleged to be engaged in a "scheme and conspiracy" designed to deprive Plaintiffs of said rights.
Plaintiff James Morrow is representing himself and, apparently, the other Plaintiffs *1108 on a pro se basis in this action.[2] Mindful that the allegations of a pro se complaint should be examined under a less stringent standard than more formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972) (per curiam), the complaint (as amended) can be construed as follows. Plaintiffs apparently seek to pursue an action directly under the Fourteenth Amendment, see, Jones v. City of Memphis, 586 F.2d 622 (6th Cir. 1978), cert. denied, 440 U.S. 914, 99 S.Ct. 1230, 59 L.Ed.2d 464 (1979), for violations of their rights to Due Process under that Amendment. The various Defendants are alleged to have worked together in a number of ways to deprive Plaintiffs of their rights, notably through a "conspiracy" (a possible reference to 42 U.S.C. § 1985(3)), and by "giving" DP&L a monopoly (a possible reference to the Sherman Antitrust Act, 15 U.S.C. § 2).[3] So construing the Plaintiffs' complaint, as amended, this Court now turns toward consideration of the pending motions.
II. PENDING MOTIONS
At the outset, the Court notes that in light of the decision to sustain, at least in part, Plaintiffs' motion to file a second amended complaint (infra), the motions directed against the original and first amended complaints are, in effect, moot. Said motions are, nevertheless, ruled upon by this Court, to aid in determining the viability of the claims for relief set out in the second amended complaint.
1) The motion by the City of Dayton to Dismiss the Complaint is Sustained in Part and Overruled in Part
The City of Dayton, pursuant to Fed.R. Civ.P. 12(b), moves to dismiss the complaint for reasons that this Court lacks subject matter jurisdiction over the action, Rule 12(b)(1), and that the complaint fails to state a claim upon which relief can be granted, Rule 12(b)(6). In any motion to dismiss under Rule 12(b), this Court must accept as true all well-pleaded allegations of fact (though not of law) in the complaint. Amersbach v. City of Cleveland, 598 F.2d 1033, 1034-35 (6th Cir. 1979); Sexton v. Barry, 233 F.2d 220, 223 (6th Cir. 1956). So construing the complaint herein, this Court now considers the grounds advanced in support of the motion to dismiss. At least two of the grounds are not persuasive, but the other grounds are well taken and mandate sustaining the motion in part.
Defendant first argues that this Court lacks subject matter jurisdiction to hear this action, since the amount in controversy does not exceed $10,000, as required by 28 U.S.C. § 1331(a), and since, in any event, the complaint presents "no substantial federal question." Both grounds are incorrect. The parties fail to recognize that § 1331(a) was amended in 1980 so as to eliminate the $10,000 requirement. Pub.L. 96-486, § 2(a), 94 Stat. 2369, codified at 28 U.S.C. § 1331. The amendment was effective beginning on the day of enactment *1109 (December 1, 1980), and hence is applicable to the case herein. Secondly, Defendant correctly points out that "insubstantial and frivolous" claims cannot form a basis for federal jurisdiction. See, Amalgamated Transit Union v. Jackson Transit Authority, 650 F.2d 1379, 1381 (6th Cir. 1981); Studen v. Beebe, 588 F.2d 560, 568 (6th Cir. 1978). However, this Court cannot characterize the claims advanced in the complaint as "insubstantial or frivolous" on their face. Deprivations of due process rights premised on an allegedly improper termination of service by a utility have, in prior decisions, been interpreted so as to raise a federal question. See, e.g., Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978); Palmer v. Columbia Gas of Ohio, 479 F.2d 153 (6th Cir. 1973). Since this Court does not lack subject matter jurisdiction, the motion to dismiss cannot be sustained on that basis.
A holding that this Court has subject matter jurisdiction does not mean, of course, that the complaint cannot be dismissed under Rule 12(b)(6), for failure to state a claim upon which relief can be granted. Amalgamated Transit Union, supra, 650 F.2d at 1381; Park Hills Music Club, Inc. v. Board of Education, 512 F.Supp. 1040, 1043-44 n.2 (S.D.Ohio 1981). For the following reasons, Defendants' motion to dismiss, for failure to state a claim upon which relief can be granted, is sustained with respect to claims brought under § 1985(3) or the antitrust laws, but overruled with respect to the claim brought directly under the Fourteenth Amendment.
First, it is noteworthy that the complaint only states that DP&L, and its employees, played any direct role in the alleged constitutional violations. The complaint also alleges, in conclusory form, that the City of Dayton "supported" and "concurred with" DP&L in these violations, and was engaged in a "scheme and conspiracy" to deprive the Plaintiffs of their rights. The complaint does state, however, that "extensive" ordinances and regulations promulgated by the City permitted DP&L to commit the acts complained of. These allegations, charitably construed, can be regarded as "facts" supporting the conclusion, in the complaint, that the City was somehow involved in the alleged unconstitutional acts committed by DP&L. The complaint, accordingly, does meet the requirement that there must be allegations of fact to justify any legal conclusions asserted. Place v. Shepherd, 446 F.2d 1239, 1244 (6th Cir. 1971). Accepting the complaint's allegations as true, the City of Dayton may be liable if it supported and concurred in the alleged constitutional violations.
Similar reasoning, however, requires that the "conspiracy," or § 1985(3) claim, be dismissed. The facts, such as they are, pled in support of the conspiracy, are wholly inadequate to properly base a charge of conspiracy in general, Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941, 99 S.Ct. 2883, 61 L.Ed.2d 311 (1979), or a § 1985(3) claim in particular. Blackburn v. Fisk University, 443 F.2d 121, 124 (6th Cir. 1971). In addition, the complaint does not properly allege a class-based invidious discriminatory claim, as required in a § 1985(3) action. Griffin v. Breckenridge, 403 U.S. 88, 101-02, 91 S.Ct. 1790, 1797-98, 29 L.Ed.2d 338 (1971); Taylor v. Brighton Corp., 616 F.2d 256, 266-67 (6th Cir. 1980).
Finally, the City of Dayton could not be liable to the Plaintiffs for any "monopolization" violation under the federal antitrust laws. Once again, the complaint is defective in pleading facts sufficient to set forth an antitrust claim. Hohensee v. Akron Beacon Journal Pub. Co., 277 F.2d 359 (6th Cir.) (per curiam), cert. denied, 364 U.S. 914, 81 S.Ct. 277, 5 L.Ed.2d 227 (1960). Even if the allegations were well pleaded, there is serious doubt that Plaintiffs would have standing to sue, pursuant to 15 U.S.C. § 15, since there appears to be no causal connection between the alleged injury (impairment of rights to due process) and the alleged antitrust violation (monopolization). See, Shreve Equipment, Inc. v. Clay Equipment Corp., 650 F.2d 101 (6th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 397, 70 L.Ed.2d 213 (1981); Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1234 (6th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 388, *1110 70 L.Ed.2d 207 (1981). Moreover, the City (and the other Defendants) could arguably fall under the "state action" exemption to antitrust liability. See, City of LaFayette v. Louisiana Power & Light Co., 435 U.S. 389, 413, 98 S.Ct. 1123, 1136, 55 L.Ed.2d 364 (1978) (plurality opinion); Cf. Community Communications Co., Inc. v. City of Boulder, ___ U.S. ___, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982); see also, Hybud Equipment Corp. v. City of Akron, 654 F.2d 1187, 1195-96 (6th Cir. 1981).
For these reasons, Defendants' motion to dismiss pursuant to Rule 12(b)(6) is overruled in part, to the extent that the complaint states a claim under the Fourteenth Amendment, and sustained in part, in all other respects.
2) The Motion by the State of Ohio to Dismiss the Complaint is Sustained in Part and Overruled in Part
The State of Ohio has moved to dismiss the complaint pursuant to Rule 12(b)(1), for reason that this Court lacks subject matter jurisdiction in this case under the Eleventh Amendment. Defendant correctly argues that a state cannot be sued in federal court by a citizen of that state, due to the bar of the Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). However, this principle only bars suits for monetary relief, rather than prospective relief. Quern v. Jordan, 440 U.S. 332, 340, 99 S.Ct. 1139, 1144, 59 L.Ed.2d 358 (1979). In the case herein, the complaint (as amended) prays for both monetary and prospective (i.e., declaratory and injunctive) relief against the Defendants, including the State of Ohio. For this reason, the Defendant's motion is overruled to the extent that the complaint seeks prospective relief from the State of Ohio, and is sustained in all other respects.
3) The Motion by the City of Dayton to Dismiss the Amended Complaint is Overruled
The City of Dayton further moves to dismiss the Plaintiffs' amended complaint, for the reasons set forth with respect to the original complaint, supra, and, in addition, for lack of personal jurisdiction, pursuant to Rule 12(b)(2). Fed.R.Civ.P. 4(d)(6) provides that service of a complaint upon a municipal corporation shall be to the "chief executive officer thereof," or "in the manner prescribed by the law of that state" for serving such defendants. Plaintiffs herein served the amended complaint upon Earl Sterzer, the City Manager of the City of Dayton. Defendant argues that the Mayor of the City of Dayton, James McGee, was the proper person to serve, since he is, under Rule 4(d)(6), the "chief executive officer," and the person designated by the City of Dayton to be served when the City is sued. Charter, City of Dayton, § 36. Cf. Ohio R.Civ.P. 4.2(13) (when suing municipal corporation, "city solicitor or comparable legal officer" shall be served). In brief, Plaintiffs' reply that said service was proper, since Sterzer was served with the original complaint and the City did not object.
Subsequent to the filing of Defendant's motion, and the briefs thereto, Plaintiffs served the complaint and the amended complaint upon Mayor James McGee (Docs. # 35, 36). Thus, the City of Dayton has now been properly served under Rule 4(d)(6), and Defendant's motion to dismiss the amended complaint, for lack of personal jurisdiction, must be, and is, overruled.
4) The Motion by the Plaintiffs for a Judgment by Default Against the State of Ohio is Overruled
Plaintiffs move for a judgment by default against the State of Ohio, pursuant to Fed.R.Civ.P. 55(b)(2), since that Defendant was served with the complaint on March 30, 1981, and has yet to file an answer. Defendant points out that, under Fed.R.Civ.P. 12(a)(1), an answer need not be filed till 10 days after it has received notice of this Court's action on its motion to dismiss the complaint. This Court agrees with the Defendant, and must overrule the Plaintiffs' motion for a judgment by default. The Court does note, however, that Defendant will be obliged by Rule 12(a)(1) *1111 to file an answer to the complaint 10 days after it has received notice of this Court's action on its motion to dismiss, set out earlier in this opinion. Alternatively, if the second amended complaint (see, infra) is properly filed and served, the State of Ohio will be dismissed by this Court as a party Defendant in this action, and it need not file an answer to same.
5) The Motion by the City of Dayton to Strike Plaintiffs' Additional Authorities in Support of Memoranda Contra is Overruled
The City of Dayton filed a motion to dismiss the amended complaint on May 4, 1981. Plaintiffs filed a "Memorandum Contra to Defendant City of Dayton's Motion to Dismiss Plaintiffs' Amended Complaint," on May 26, 1981. The City argues that Plaintiffs' memorandum was filed some twenty-two days after the motion to dismiss was filed, which is violative of the twenty-day rule set out in S.D.Ohio R. 4.0.2. Defendant is incorrect. Under Fed.R.Civ.P. 6(a), the time limitation in the local rule is tolled if the last day of the period falls on a Sunday, and the period thereafter runs until the next day which is not a legal holiday. In the case herein, the last day of the twenty day period fell on Sunday, May 24. Since May 25 was Memorial Day, a legal holiday, Plaintiffs were permitted to wait (as they did) until Tuesday, May 26, to file their Memorandum. Accordingly, Defendants' Motion to Strike the same is overruled. Said memorandum was considered by this Court in ruling upon Defendant's motion to dismiss the amended complaint.
6) The Plaintiffs' Motion to Strike the Defendant City of Dayton's Notice of Additional Authority, is Overruled
On October 21, 1981, the City of Dayton filed a "Notice of Additional Authority in Support of Motions to Dismiss Complaint and Amended Complaint." A copy of the slip opinion of the Hybud Equipment Corp., supra, decision was attached as an exhibit to said notice. Plaintiffs now move to strike the City of Dayton's "defenses," pursuant to Fed.R.Civ.P. 12(f), and make specific reference to the Notice set forth above. Motions under Rule 12(f) are not favored, and should not be granted unless it is apparent that the matter has no possible relation to the controversy. United States v. Firestone Tire & Rubber Co., 374 F.Supp. 431, 434 (N.D.Ohio 1974). The information provided by the Defendant's Notice is clearly relevant to this case, is not redundant, and the motion to strike the same is not well taken and hereby is overruled. Defendant's Notice of Additional Authority was considered by this Court in ruling upon Defendant's motions to dismiss.
7&8) The Motions by the Defendant City of Dayton to Strike Plaintiffs' Motions for a Preliminary Injunction and for Consolidation or, Alternatively, to Deny Said Motions, are Overruled
On October 26, 1981, the Plaintiffs filed a motion for a preliminary injunction, pursuant to Fed.R.Civ.P. 65, to enjoin and restrain the Defendants from disconnecting their utility service. Additionally, the Plaintiffs moved for a consolidation of the hearing thereon with a trial on the merits of the action herein. The City of Dayton has twice moved to strike both motions or, in the alternative, to deny said motions.
With respect to the motions to strike the Plaintiffs' motion for a preliminary injunction, the Defendant argues that such relief was never requested in the original complaint and is barred by the doctrine of laches. Both arguments are without merit. Injunctive relief may be granted, even if not requested in the original complaint. Fed.R.Civ.P. 54(c); Dann v. Studebaker-Packard Corp., 288 F.2d 201, 216 (6th Cir. 1961). While the doctrine of laches does apply to requests for injunctions, see, e.g., LeSportsac Inc. v. Dockside Research, Inc., 478 F.Supp. 602, 609 (S.D.N.Y.1979), the request herein, filed some eight months after the filing of the complaint, was not unreasonably delayed, and the record does not indicate that there will be prejudice to the opposing parties. Mansfield Area Citizens Group v. United States, 413 F.Supp. *1112 810, 824 (M.D.Pa.1976). Hence, the motions to strike the Plaintiffs' motions for a preliminary injunction, and to consolidate, are overruled.
Plaintiffs' motion for a preliminary injunction was, however, denied in a separate decision and entry filed by this Court (Doc. # 46).
9) The Motion by DP&L and the Individual Defendants to Strike Plaintiffs' Motion for a Preliminary Injunction is Overruled
In their original and amended complaint, the Plaintiffs only alleged that a constitutional violation occurred when utility services were (temporarily) cut off in January of 1981. Their motion for a preliminary injunction refers to a pending utility service cut off in the future. DP&L and the individual defendants now move to strike said motion, since, they argue, the complaint (as amended) is only premised on a single incident of alleged wrongful disconnection in the past. Under this reasoning, they assert, the motion for a preliminary injunction is improper and is, in effect, an effort to amend the complaint without leave of this Court, as required by Fed.R. Civ.P. 15(a).
It is true that the complaint, as amended, is principally premised on the disconnection in January of 1981. However, the complaint does allege that DP&L has "maintained" a "long-standing ... scheme" to deprive Plaintiffs' of their rights and that all the Defendants "were and are" engaged in a conspiracy to deprive them of their rights. Thus, the complaint, if liberally construed, does refer to possible continuing violations and can provide a basis for relief for actions taking place after the January 1981 incident. For these reasons, the Defendants' motion to strike Plaintiffs' motion for a preliminary injunction is not well taken and is hereby denied.
As noted above, Plaintiffs' motion for a preliminary injunction was, nevertheless, overruled by this Court in a separate decision and entry.
10) The Motion by the Defendant City of Dayton to Strike Plaintiffs' Affidavits in Support of their Motion for a Preliminary Injunction is Overruled
The City of Dayton has moved to strike certain of Plaintiffs' affidavits from the record (apparently, those found in Doc. # 39), arguing that said documents contain only "conclusory allegations" of "ultimate facts." While said affidavits do make several conclusions as to "ultimate" facts and legal conclusions, they also refer to facts within the knowledge of Plaintiffs. Accordingly, the motion to strike is overruled, and said affidavits were considered by this Court in disposing of Plaintiffs' motion for a preliminary injunction.
11) The Motion by the City of Dayton to Correct an Earlier Memorandum is Sustained
The City of Dayton moves, pursuant to Fed.R.Civ.P. 60(a), to amend an incorrect citation in an earlier motion (Doc. # 4, p. 4). Plaintiffs have not objected to said motion, and the same is hereby sustained.
12) The Motion by Plaintiffs to File a Second Amended Complaint is Sustained in Part and Overruled in Part
Finally, Plaintiffs have moved, through counsel, cf., footnote 2, supra, to file a second amended complaint "[b]ecause of the complexity of the issues involved herein, the recent entry of Plaintiffs' counsel, and in the interests of justice." (Doc. # 38, p. 1). The Defendant City of Dayton has filed a memorandum contra to said motion (Doc. # 44), contending that the new complaint is merely repetitive of allegations in the previous complaint, and subject to dismissal, under Rule 12(b), for the reasons set out earlier in this opinion.
Under Fed.R.Civ.P. 15(a), leave of the Court to file amended pleadings "shall be freely given when justice so requires." The decision to grant a Rule 15(a) motion, seeking to file an amended complaint, is left to the sound discretion of the district court. Estes v. Kentucky Utilities Co., 636 F.2d 1131, 1133 (6th Cir. 1980). In determining *1113 whether to sustain such a motion, the Court must consider such factors as undue delay in filing the motion, lack of notice to the opposing party, bad faith by the moving party, undue prejudice to the opposing party, and the futility of the amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Hageman v. Signal L. P. Gas, Inc., 486 F.2d 479, 484 (6th Cir. 1973). The "futility" of the amendment is tested by whether the proposed complaint would survive a motion to dismiss, under Rule 12(b). Neighborhood Development Corp. v. Advisory Council on Historic Preservation, 632 F.2d 21, 23 (6th Cir. 1980) (per curiam).
Defendant correctly points out that the second amended complaint, attached to Doc. # 38, basically restates the allegations in the prior complaints. There are, however, a number of important differences. First, the parties named in the second amended complaint differ from those named in the prior complaints. Only James Morrow and his son, Darren, are named as Plaintiffs. DP&L, the employees of same, and the City of Dayton are renamed as Defendants, but the following Defendants have been added: James McGee (former Mayor of the City of Dayton), the Ohio Public Utilities Commission (PUCO), three PUCO Commissioners (John Kelly, Michael Delbane, and Dennis Pines), a PUCO "investigator" (Carol Gibson) and four commissioners of the City of Dayton (Patricia Roach, Richard Clay Dixon, Richard Zimmer and Abner Orick). The State of Ohio is not named as a Defendant in the second amended complaint.
The second major difference lies in the four causes of action set out in the second amended complaint. As with the previous complaints, the first cause of action alleges violations of Plaintiffs' due process rights (expressly predicated, unlike before, on 42 U.S.C. § 1983), and the second and third causes of action allege violations of the federal antitrust laws. The final cause of action asserts a new claim, alleging that Defendants' actions constituted violations of the Eighth Amendment's prohibition against cruel and unusual punishment.
Consideration of the aforementioned factors, relevant to a Rule 15(a) motion, compels this Court to sustain the motion to amend in part, and to overrule it in part. Although, Plaintiffs are, apparently, not now represented by attorneys, it will be helpful to the disposition of this action if a complaint, drawn up by attorneys, is utilized. Moreover, the case is still in the motion stage, and nothing in the record indicates that any of the "old" or "new" Defendants will be prejudiced by having to answer to the second amended complaint.
For reasons stated earlier in this opinion, however, it would be "futile" for Plaintiffs to file at least part of the second amended complaint. As previously noted, the second and third causes of action in said complaint set forth antitrust violations. Plaintiffs have not sufficiently alleged facts indicating that they are damaged by the alleged antitrust violations. Similarly, the fourth cause of action is not viable, since the "punishment" with which the Eighth Amendment is concerned only comes into play after the government "has secured a formal adjudication of guilt." Watson v. McGee, 527 F.Supp. 234, 240 (S.D.Ohio 1981) (quoting Ingraham v. Wright, 430 U.S. 651, 671-72 n.40, 97 S.Ct. 1401, 1412-13 n.40, 51 L.Ed.2d 711 (1977)). Plaintiffs have nowhere alleged that Defendants have formally adjudicated them "guilty" in any proceeding.
Accordingly, Plaintiffs' motion to amend is sustained, only to the extent that the allegations in the second amended complaint are relevant to the first cause of action stated therein. The motion is denied to the extent that the Plaintiffs attempt to add the second, third and fourth causes of action or claims for relief set forth in the second amended complaint. Since said complaint is complete unto itself (in that it realleges all relevant and necessary facts), this Court will assume that, following the usual practice, said complaint supersedes and replaces the previous complaints, and will form the basis for this action in the future. The Court makes this assumption with the understanding that said complaint *1114 will be properly filed with this Court (within ten (10) days after receipt of this decision and entry), and properly served upon the named Defendants. When and if these prerequisites are met, the Court will dismiss the State of Ohio as a party defendant in this action and, of course, entertain motions, by the remaining defendants, against the second amended complaint.
III. CONCLUSION
In summary, for the aforestated reasons, this Court rules on the pending motions as follows:
1) The motion by the Defendant City of Dayton to dismiss Plaintiffs' complaint is overruled in part, to the extent that the complaint states a claim under the Fourteenth Amendment, and sustained in part, in all other respects;
2) The motion by the Defendant State of Ohio to dismiss Plaintiffs' complaint is overruled in part to the extent that the complaint seeks prospective relief from the State, and sustained in part in all other respects;
3) The motion by the City of Dayton to dismiss the amended complaint is overruled;
4) The Plaintiffs' motion for judgment by default against the State of Ohio is overruled;
5) The motion by the City of Dayton to strike a memorandum filed by the Plaintiffs is overruled;
6) Plaintiffs' motion to strike a "Notice of Additional Authority" filed by the City of Dayton is overruled;
7&8) The motions by the City of Dayton to strike Plaintiffs' motions for a preliminary injunction and for consolidation or, alternatively, to deny said motions, are overruled.
9) The motion by DP&L and the individual defendants to strike Plaintiffs' motion for a preliminary injunction is overruled;
10) The motion by the Defendant City of Dayton to Strike Plaintiffs' Affidavits in Support of their Motion for a Preliminary Injunction is Overruled;
11) The motion by the Defendant City of Dayton to correct an earlier memorandum is sustained;
12) The motion by Plaintiffs to file a second amended complaint is sustained in part, to the extent that the allegations therein are relevant to the first cause of action stated therein.
The Defendants whose motions to dismiss have been overruled, at least in part, must answer or otherwise motion the Plaintiffs' second amended complaint within twenty (20) days from the date of proper service of same upon them.
Those persons listed below will take note that a conference will be held in this Court's office at 8:20 A. M. on Wednesday, June 23, 1982, for the purpose of determining a discovery time-table, motion filing cut-off date, trial date, date for final pretrial conference, etc.
NOTES
[1] A fourth Plaintiff named in the original complaint, Margie Thompson, withdrew as a party to this case on July 8, 1981 (Doc. # 24).
[2] Several of Plaintiffs' more recent filings in this Court indicate that Plaintiffs were represented by attorneys Ashley Brown and Barbara Babbitt. (See, Docs. # 37, # 38). However, at the oral hearing before this Court on April 19, 1982, on Plaintiffs' motion for a preliminary injunction, James Morrow represented himself, and Mr. Brown and Ms. Babbitt were only present in an "advisory" capacity. In any event, those filings in the record, not signed by Plaintiffs' attorneys, will be treated by this Court as being made on a pro se basis.
In addition, since a pro se litigant can only represent himself, those motions, currently in the record, filed by James Morrow can only be made by him, and not by the other Plaintiffs. This distinction makes little difference, of course, since the claims of the other Plaintiffs appear to be identical to those of James Morrow. Therefore, for convenience, to eliminate confusion, and to reflect the references in the record to motions brought on behalf of all the Plaintiffs, said motions will be treated as if they were made on behalf of all the Plaintiffs. Any motions filed by plaintiffs' attorneys, including those currently in the record and any filed in the future, will be considered as being made on behalf of any and all Plaintiffs.
[3] In a later memorandum, the Plaintiffs state that the antitrust defenses raised by the City of Dayton "are not applicable to this instant case at bar." (Doc. # 11). Perhaps the Plaintiffs never intended to raise an antitrust claim. Nevertheless, to give the Plaintiffs every benefit of the doubt, this Court will construe the complaint as if it raises an antitrust claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611418/ | 540 F.Supp. 1282 (1982)
UNITED STATES of America, (Plaintiff),
v.
Charles F. BURKE, Jr., and Alan Peter Quin, (Defendants).
Crim. No. 82-0063 (TR).
United States District Court, D. Puerto Rico.
June 10, 1982.
*1283 E. M. DeJesús, Hato Rey, P. R., for plaintiff.
Carlos García Gutiérrez, Santurce, P. R., for defendants.
DECISION AND FINDINGS
TORRUELLA, District Judge.
The following constitutes the opinion of the Court on Defendants' "Motion to Suppress Evidence" as well as the findings pursuant to Rule 23(c) of the Federal Rules of Criminal Procedure.
Defendants are charged in a one count indictment in which it is alleged that "[o]n or about March 28, 1982, on the high seas and within the special maritime and territorial jurisdiction of the United States, that is, on board a vessel of the United States, the `IRENE B.II'", they aided and abetted each other in unlawfully, knowingly and intentionally possessing approximately 41,000 pounds of marijuana in violation of Sections 2, 7 and 9 of Title 18, and Section 955a of Title 21.[1]
*1284 The facts are as follows:
Some time during the day of March 27, 1982, a United States Coast Guard patrol airplane spotted a black and white shrimper-type vessel in the Caribbean Sea south of St. Thomas, United States Virgin Islands. The vessel was in international waters in a course heading of 055°T, in the general direction of the Island of Anguilla. The vessel was identified by the aircraft as the "JEANIE B." It was not flying a national flag nor could a home port be observed on its stern. Because of various intelligence reports, including monitored vessel radio communications, the Coast Guard concluded that the subject vessel was heading for a "rendezvous with something or someone near the area of Dog Island northwest of Anguilla to conduct possible illegal activity."[2] Late on March 27 the Coast Guard cutter WHITEHORN was dispatched from St. Thomas to intercept and board this vessel. Throughout the daylight hours of March 28 the WHITEHORN searched, without success, the Anegada Passage, which separates the Virgin Islands from the Leeward Islands, of which Anguilla is part.
At 2330 hours (11:30 P.M.) of March 28 the WHITEHORN was still patrolling in the Anegada Passage, approximately 30 miles west of Anguilla, in international waters. The executive officer, Edward Krejci, was in command at the bridge. A radar contact was made with a vessel[3] about 4 miles away, which could not be visually seen because it showed no lights. Krejci called the Captain to the bridge, Lt. J. E. DeJung, who proceeded to bring the WHITEHORN within 100 yards of the blacked-out vessel, at which point the WHITEHORN's searchlight revealed a black and white shrimper-type vessel, which DeJung first thought was named "JEANIE B.", but upon inspection by binoculars turned out to be the "IRENE B.II" (IRENE). In addition to no lights, this vessel showed no flag nor could a home port to be observed on its stern.[4] It appeared low in the water, as if with a full cargo. DeJung attempted to contact the IRENE's crew through the VHF FM radio, on both channels 16 and 26 without success. He then used a loud hailer, identifying the WHITEHORN as a United States Coast Guard vessel. The WHITEHORN is 82 feet in overall length and is painted white, except for diagonal red and blue stripes on both sides of the bow, where the black letters "C G" are also painted in black, 15 inches in height. At this point the vessels were within 50 yards from each other with *1285 the WHITEHORN astern of the IRENE, both vessels in approximately East-North-East headings, at about the same speed (10 knots). A 6 foot chop was running and the wind was at 15 knots from the East. Upon the IRENE's failure to make any response, the WHITEHORN energized its blue flashing light and siren, and ran up International Code Flags "Sierra" and "Papa" ("S P") on its signal mast,[5] and proceeded to illuminate those signals as well as the United States and Coast Guard ensigns, which were already flying. The spotlight was also intermittently flashed on the Coast Guard personnel on deck, who were uniformed and wore head gear.
The IRENE finally responded by proceeding to take evasive action. The WHITEHORN continued the actions previously described to no avail. This encounter lasted throughout the next 5 hours but was not entirely passive on either side. In addition to the evasive actions previously described, which consisted mostly of circular courses and abrupt changes in direction, the IRENE's crew attempted on two occasions to ram the WHITEHORN. The WHITEHORN in turn fired more than 90 rounds from a 50 caliber machine gun across the IRENE's bow in an attempt to get her to stop, to no avail. The WHITEHORN finally stopped her by towing a cable across her bow and fouling her screws.
The IRENE stopped dead in the water and started what eventually became a 10° list to port. They were still in international waters at Latitude 18° 11' North, Longitude 63° 29.5' West. Lt. De Jung eased the WHITEHORN's bow up to IRENE's stern and put a three-man boarding party on her, led by Krejci. While this was being done, one of the IRENE's crew stepped out of the pilot house and dumped overboard some plastic bags containing a white substance. The boarding party was in uniform (duck pants, light blue shirt and head gear) which clearly identified them as members of the Coast Guard, and were armed with one shot gun and side arms.
Krejci, who was the first aboard the IRENE and who had considerable experience in high seas boardings and drug-related seizures, smelled marijuana as he landed on the IRENE's deck. Two crew members who appeared were placed faced down on the deck of the IRENE's fantail, under armed observation by one of the coast-guardsmen. Krejci and the other coast-guardsman proceeded to search the IRENE for other crew and weapons, and to attempt to determine the cause of the IRENE's now pronounced list. They did a sweep of the forward hold and discovered it filled with burlap bales atop of which was scattered marijuana residue. The main hold was similarly occupied all the way up to the deck level. An incursion into the engine room revealed that one of the intake pipes had been shattered in an attempt to scuttle the IRENE, and that a considerable amount of water was coming into the hull. In the wheel house were observed a frequency scanner, a radar set, and a VHF radio set at Channel 26. The search of the IRENE produced no other crew members or weapons.
The crew of the IRENE turned out to be Defendants Charles F. Burke, Jr. and Alan Peter Quin. They produced ship's papers which revealed that the IRENE was an American flag vessel. A testing of the IRENE's cargo by Krejci, using a kit which is standard equipment for boarding parties, gave a positive reaction to marijuana, and he proceeded to place both Defendants under arrest. It was now 0615 (6:15 A.M.) of March 29th.
The IRENE was then towed to San Juan, Puerto Rico where it was determined that it carried 41,000 pounds of marijuana.
Defendants moved for the suppression of the evidence seized because of violation of their Fourth Amendment rights "when the Coast Guard boarded their ship and commenced search pursuant to ... 14 U.S.C. Section 89, there being no reasonable or *1286 articulable suspicion of any safety hazards or navel (sic) regulatory infractions", also claiming that there was no probable cause to believe that any crime had been or was being committed. At the hearing Defendants also seemed to put at issue the validity of the extraterritorial application of 21 U.S.C. 955a.
In the light of the undisputed facts and the unanimous case law on these matters, Defendants' stance on these issues brings to mind what was stated by the Court in United States v. Cordero, 668 F.2d 32, 43 (CA 1, 1981): "While forceful advocacy is desirable, overstatement, by engendering mistrust, can work to the ultimate disadvantage of a client."
Even the courts have recognized what has been obvious from time immemorial to seafares: that ships are not the same as houses. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); cf. United States v. Ross, ___ U.S. ___, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). In Ross, 102 S.Ct. at 2162, the Court "noted that historically warrantless searches of vessels ...as opposed to fixed premises such as a home or other buildinghad been considered reasonable by Congress." (Emphasis supplied). It is, of course, the word "reasonable" that is the key to Fourth Amendment issues in that it is only an un reasonable search that is proscribed by that Constitutional provision. Along this vein the Court in Ross, 102 S.Ct. at 2162-63, in quoting from Carroll v. United States says that:
... "[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship [or] motorboat ... where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought."
The bottom line is, that those who go down to the sea in ships have "a lesser expectation of privacy [in their ships] than in their homes, obviating the usual fourth amendment requirements of a warrant." United States v. Green, 671 F.2d 46, 53 (C.A. 1, 1982); United States v. Hilton, 619 F.2d 127, 131 (C.A. 1, 1980), cert. den. 449 U.S. 887, 101 S.Ct. 243, 66 L.Ed.2d 113 (1980); United States v. Arra, 630 F.2d 836 (C.A. 1, 1980); United States v. Williams, 617 F.2d 1063 (C.A. 5, 1980) (en banc); United States v. Hayes, 479 F.Supp. 901, 907 (DCPR, 1979) rev. in part 653 F.2d 8 (C.A. 1, 1981).
The authority to stop and board American flag vessels on the high seas and to carry about searches and arrests incident thereto is provided by 14 U.S.C. § 89(a) which states that:
"The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship's documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. When from such inquiries, examination, inspection, or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested or, if escaping to shore, shall be immediately pursued and arrested on shore, or other lawful and appropriate action shall be taken; or, if it shall appear that a breach of the laws of the United States has been committed so as to render such vessel, or the merchandise, *1287 or any part thereof, on board of, or brought into the United States by, such vessel, liable to forfeiture, or so as to render such vessel liable to a fine or penalty and if necessary to secure such fine or penalty, such vessel or such merchandise, or both, shall be seized."
Under this statute, whose precursor dates back to 1790,[6] the Coast Guard may stop and board any American flag vessel on the high seas without any warrant, and without any particularized suspicion of wrongdoing, to conduct safety and document inspections. United States v. Hayes, 653 F.2d at pages 11-12; United States v. Arra, supra, at pages 841-846; United States v. Hilton, supra, at page 131. Such administrative actions come clearly within the rule in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Of course, a more extensive search is permissible only if there is consent or probable cause to believe a crime has been or is being committed.
Defendants seek to invalidate the Coast Guard's actions because they allege that "Coast Guard officials unquestionably used the safety inspection as a subterfuge to conduct a search for evidence of a crime in the absence of any probable cause to believe that a crime had been or was being committed." Leaving for the moment the last part of this argument, Defendants point to no case in which the subjective mentality of the officer conducting an administrative inspection has been held to have any relevance to the reasonableness of his action. The rule, in fact, is otherwise. United States v. Hayes, supra, at page 12; United States v. Arra, supra, at pages 845-846. In Arra the Court said:
"... While the instant case may be somewhat unusual in that a cutter was specially dispatched, document and safety inspections are routinely conducted by cutters on patrol, and, as is becoming apparent from the growing case law, contraband may be discovered in the course of routine inspections. Ascertaining the real motivation or suspicions of the officer who orders any one of these numerous inspections would prove intractable. Thus, rather than looking into the minds of the officers, we will concentrate on their actions ..."
Just like unauthorized actions can not be legalized by the presence of pure motives, legal ones can not be invalidated by the lack of naiveté in the officer's innermost thoughts.
But the boarding and search of the IRENE need not rest solely on the premises of an administrative search pursuant to 14 U.S.C. § 89. As stated in United States v. Green, supra, at page 53:
"... [I]n addition to permitting proper administrative searches, the fourth amendment allows government officers, who are otherwise authorized, to board and search a vessel on the high seas should they have reasonable and articulable grounds for suspecting that it is engaged in criminal activity ..." (Emphasis supplied).
The facts of this case present us with grounds which are not only sufficiently reasonable and articulable as to permit the stopping and boarding of the IRENE, but which would also be sufficient to meet a probable cause standard, were such standard required in the present context by an abrupt change in the course of the law:
(1) The presence of a shrimper in an area where that type of vessel is highly unusual. (cf. United States v. Hayes, supra);
(2) Proceeding without lights (see 33 U.S.C. § 1608);
(3) Not flying a flag (cf. United States v. Arra, supra);
(4) Hiding the identity of her home port (Id.);
*1288 (5) Riding low in the water (cf. United States v. Green, supra);
(6) With an unusually large number of radio antenna, atypical of legitimate shrimpers, but typical of vessels used for drug smuggling; and
(7) Which not only failed to respond to numerous hails by voice and signal, but led a 5 hour evasive chase during which it attempted to ram the Coast Guard cutter (Id.).
Under those circumstances the Coast Guard not only acted reasonably but would have been derelict in its duty had it failed to stop and board the IRENE.
Once on board, there was addition cause for the Coast Guard to act upon and conduct a full search of the IRENE:
(1) The strong odor of marijuana (cf. United States v. Hilton, supra, at page 133);
(2) The burlap bags with marijuana residue on top (cf. United States v. Shelnut, 625 F.2d 59, 61 (C.A. 5, 1980) in the holds of the vessel, areas in which there is "no legitimate expectation of privacy in ... a shrimp boat" (see United States v. Ricardo, 619 F.2d 1124, 1130 (C.A. 5, 1980), and
(3) The list which became apparent in the IRENE shortly after she was stopped by the WHITEHORN's cable (cf. United States v. Hicks, 624 F.2d 32, 33 (C.A. 5, 1980)).
Defendants' contentions regarding the suppression thus stand on very wet ground. Their allegations against the extra-territorial application of 21 U.S.C. § 955a fare no better.
Extra-territorial application of penal laws is authorized by Article I, Section 8, Clause 10 of the Constitution, which authorizes Congress "to define and punish Piracies and Felonies committed on the high seas, and offenses against the Laws of Nations", and under Article III, Section 2, whereby the judiciary is invested with authority over "all cases of admiralty and maritime jurisdiction." In enacting 21 U.S.C. § 955a, Congress was not only proceeding within the authority granted by these provisions but also complying with international treaties subscribed to by practically all of the civilized nations of the World. See "Convention on the High Seas, 1958", 13 U.S.T. 2313. The plain language of this statute indicates that Congress intended its extra-territorial application:
"It is unlawful for any person ... on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally ... possess with intent to distribute a controlled substance." (Emphasis supplied).
The validity of this statute and its obvious extra-territorial reach have been affirmed by the courts. See United States v. Smith, 680 F.2d 255 (C.A.1 1982).
Defendants' Motion to Suppress is thus DENIED.
The evidence established beyond a reasonable doubt that Defendants Charles F. Burke, Jr., and Alan Peter Quin, aiding and abetting each other, unlawfully possessed controlled substances aboard the IRENE, a vessel subject to the jurisdiction of the United States, with the intent to distribute the same. A judgment of GUILTY shall be entered against them in COUNT I of the Indictment.
IT IS SO ORDERED.
NOTES
[1] 18 U.S.C. § 2 reads:
"(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal."
18 U.S.C. § 7, in its pertinent part reads:
"The term `special maritime and territorial jurisdiction of the United States', as used in this title, includes:
(1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State."
18 U.S.C. § 9 reads:
"The term `vessel of the United States', as used in this title, means a vessel belonging in whole or in part to the United States, or any citizen thereof, or any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof."
21 U.S.C. § 955a(a) reads:
"It is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance."
[2] See page 3, Defendants' "Brief in Support of Motion to Suppress Evidence."
[3] This was the fourth contact they had made. The other three had been two U.S. flag sailing vessels and the third a small west-bound wooden boat. All other vessels encountered had lights on.
[4] As it turned out, the home port was covered by nets. It was Cape May, New Jersey. The IRENE is officially registered in Philadelphia, Pennsylvania, however.
[5] Which means "stop."
[6] Act of August 4, 1790, c. 35, 1 Stat. 145, Section 48. See United States v. Keller, 451 F.Supp. 631, footnote 16 at page 639 (DCPR, 1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/104963/ | 342 U.S. 359 (1952)
DICE
v.
AKRON, CANTON & YOUNGSTOWN RAILROAD CO.
No. 374.
Supreme Court of United States.
Argued December 3-4, 1951.
Decided February 4, 1952.
CERTIORARI TO THE SUPREME COURT OF OHIO.
Rice A. Hershey argued the cause for petitioner. With him on the brief was Frederic O. Hatch.
William A. Kelly argued the cause for respondent. With him on the brief were Cletus G. Roetzel and Andrew P. Martin.
*360 Opinion of the Court by MR. JUSTICE BLACK, announced by MR. JUSTICE DOUGLAS.
Petitioner, a railroad fireman, was seriously injured when an engine in which he was riding jumped the track. Alleging that his injuries were due to respondent's negligence, he brought this action for damages under the Federal Employers' Liability Act, 35 Stat. 65, 45 U.S. C. § 51 et seq., in an Ohio court of common pleas. Respondent's defenses were (1) a denial of negligence and (2) a written document signed by petitioner purporting to release respondent in full for $924.63. Petitioner admitted that he had signed several receipts for payments made him in connection with his injuries but denied that he had made a full and complete settlement of all his claims. He alleged that the purported release was void because he had signed it relying on respondent's deliberately false statement that the document was nothing more than a mere receipt for back wages.
After both parties had introduced considerable evidence the jury found in favor of petitioner and awarded him a $25,000 verdict. The trial judge later entered judgment notwithstanding the verdict. In doing so he reappraised the evidence as to fraud, found that petitioner had been "guilty of supine negligence" in failing to read the release, and accordingly held that the facts did not "sustain either in law or equity the allegations of fraud by clear, unequivocal and convincing evidence."[*] This judgment notwithstanding the verdict was reversed by the Court of Appeals of Summit County, Ohio, on the ground that under federal law, which controlled, the jury's verdict must stand because there was ample evidence *361 to support its finding of fraud. The Ohio Supreme Court, one judge dissenting, reversed the Court of Appeals' judgment and sustained the trial court's action, holding that: (1) Ohio, not federal, law governed; (2) under that law petitioner, a man of ordinary intelligence who could read, was bound by the release even though he had been induced to sign it by the deliberately false statement that it was only a receipt for back wages; and (3) under controlling Ohio law factual issues as to fraud in the execution of this release were properly decided by the judge rather than by the jury. 155 Ohio St. 185, 98 N.E.2d 301. We granted certiorari because the decision of the Supreme Court of Ohio appeared to deviate from previous decisions of this Court that federal law governs cases arising under the Federal Employers' Liability Act. 342 U.S. 811.
First. We agree with the Court of Appeals of Summit County, Ohio, and the dissenting judge in the Ohio Supreme Court and hold that validity of releases under the Federal Employers' Liability Act raises a federal question to be determined by federal rather than state law. Congress in § 1 of the Act granted petitioner a right to recover against his employer for damages negligently inflicted. State laws are not controlling in determining what the incidents of this federal right shall be. Chesapeake & Ohio R. Co. v. Kuhn, 284 U.S. 44; Ricketts v. Pennsylvania R. Co., 153 F.2d 757, 759. Manifestly the federal rights affording relief to injured railroad employees under a federally declared standard could be defeated if states were permitted to have the final say as to what defenses could and could not be properly interposed to suits under the Act. Moreover, only if federal law controls can the federal Act be given that uniform application throughout the country essential to effectuate its purposes. See Garrett v. Moore-McCormack Co., 317 U.S. 239, 244, and cases there cited. Releases and other *362 devices designed to liquidate or defeat injured employees' claims play an important part in the federal Act's administration. Compare Duncan v. Thompson, 315 U.S. 1. Their validity is but one of the many interrelated questions that must constantly be determined in these cases according to a uniform federal law.
Second. In effect the Supreme Court of Ohio held that an employee trusts his employer at his peril, and that the negligence of an innocent worker is sufficient to enable his employer to benefit by its deliberate fraud. Application of so harsh a rule to defeat a railroad employee's claim is wholly incongruous with the general policy of the Act to give railroad employees a right to recover just compensation for injuries negligently inflicted by their employers. And this Ohio rule is out of harmony with modern judicial and legislative practice to relieve injured persons from the effect of releases fraudulently obtained. See cases collected in note, 164 A. L. R. 402-415. See also Union Pacific R. Co. v. Harris, 158 U.S. 326; Callen v. Pennsylvania R. Co., 332 U.S. 625; Chesapeake & O. R. Co. v. Howard, 14 Ohio App. D. C. 262, aff'd, 178 U.S. 153; Graham v. Atchison T. & S. F. R. Co., 176 F.2d 819. We hold that the correct federal rule is that announced by the Court of Appeals of Summit County, Ohio, and the dissenting judge in the Ohio Supreme Courta release of rights under the Act is void when the employee is induced to sign it by the deliberately false and material statements of the railroad's authorized representatives made to deceive the employee as to the contents of the release. The trial court's charge to the jury correctly stated this rule of law.
Third. Ohio provides and has here accorded petitioner the usual jury trial of factual issues relating to negligence. But Ohio treats factual questions of fraudulent releases differently. It permits the judge trying a negligence case to resolve all factual questions of fraud "other than fraud *363 in the factum." The factual issue of fraud is thus split into fragments, some to be determined by the judge, others by the jury.
It is contended that since a state may consistently with the Federal Constitution provide for trial of cases under the Act by a nonunanimous verdict, Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, Ohio may lawfully eliminate trial by jury as to one phase of fraud while allowing jury trial as to all other issues raised. The Bombolis case might be more in point had Ohio abolished trial by jury in all negligence cases including those arising under the federal Act. But Ohio has not done this. It has provided jury trials for cases arising under the federal Act but seeks to single out one phase of the question of fraudulent releases for determination by a judge rather than by a jury. Compare Testa v. Katt, 330 U.S. 386.
We have previously held that "The right to trial by jury is `a basic and fundamental feature of our system of federal jurisprudence' " and that it is "part and parcel of the remedy afforded railroad workers under the Employers Liability Act." Bailey v. Central Vermont R. Co., 319 U.S. 350, 354. We also recognized in that case that to deprive railroad workers of the benefit of a jury trial where there is evidence to support negligence "is to take away a goodly portion of the relief which Congress has afforded them." It follows that the right to trial by jury is too substantial a part of the rights accorded by the Act to permit it to be classified as a mere "local rule of procedure" for denial in the manner that Ohio has here used. Brown v. Western R. Co., 338 U.S. 294.
The trial judge and the Ohio Supreme Court erred in holding that petitioner's rights were to be determined by Ohio law and in taking away petitioner's verdict when the issues of fraud had been submitted to the jury on conflicting evidence and determined in petitioner's favor. *364 The judgment of the Court of Appeals of Summit County, Ohio, was correct and should not have been reversed by the Supreme Court of Ohio. The cause is reversed and remanded to the Supreme Court of Ohio for further action not inconsistent with this opinion.
It is so ordered.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE REED, MR. JUSTICE JACKSON and MR. JUSTICE BURTON join, concurring for reversal but dissenting from the Court's opinion.
Ohio, as do many other States,[1] maintains the old division between law and equity as to the mode of trying issues, even though the same judge administers both. The Ohio Supreme Court has told us what, on one issue, is the division of functions in all negligence actions brought in the Ohio courts: "Where it is claimed that a release was induced by fraud (other than fraud in the factum) or by mistake, it is necessary, before seeking to enforce a cause of action which such release purports to bar, that equitable relief from the release be secured." 155 Ohio St. 185, 186, 98 N.E.2d 301, 302. Thus, in all cases in Ohio, the judge is the trier of fact on this issue of fraud, rather than the jury. It is contended that the Federal Employers' Liability Act requires that Ohio courts send the fraud issue to a jury in the cases founded on that Act. To require Ohio to try a particular issue before a different fact-finder in negligence actions brought under the Employers' Liability Act from the fact-finder on the identical issue in every other negligence case disregards the settled distribution of judicial power between Federal and State courts where Congress authorizes concurrent enforcement of federally-created rights.
It has been settled ever since the Second Employers' Liability Cases, 223 U.S. 1, that no State which gives its *365 courts jurisdiction over common law actions for negligence may deny access to its courts for a negligence action founded on the Federal Employers' Liability Act. Nor may a State discriminate disadvantageously against actions for negligence under the Federal Act as compared with local causes of action in negligence. McKnett v. St. Louis & S. F. R. Co., 292 U.S. 230, 234; Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. 1, 4. Conversely, however, simply because there is concurrent jurisdiction in Federal and State courts over actions under the Employers' Liability Act, a State is under no duty to treat actions arising under that Act differently from the way it adjudicates local actions for negligence, so far as the mechanics of litigation, the forms in which law is administered, are concerned. This surely covers the distribution of functions as between judge and jury in the determination of the issues in a negligence case.
In 1916 the Court decided without dissent that States in entertaining actions under the Federal Employers' Liability Act need not provide a jury system other than that established for local negligence actions. States are not compelled to provide the jury required of Federal courts by the Seventh Amendment. Minneapolis & St. L. R. Co. v. Bombolis, 241 U.S. 211. In the thirty-six years since this early decision after the enactment of the Federal Employers' Liability Act, 35 Stat. 65 (1908), the Bombolis case has often been cited by this Court but never questioned. Until today its significance has been to leave to States the choice of the fact-finding tribunal in all negligence actions, including those arising under the Federal Act. Mr. Chief Justice White's opinion cannot bear any other meaning:
"Two propositions as to the operation and effect of the Seventh Amendment are as conclusively determined as is that concerning the nature and character *366 of the jury required by that Amendment where applicable. (a) That the first ten Amendments, including of course the Seventh, are not concerned with state action and deal only with Federal action. We select from a multitude of cases those which we deem to be leading. Barron v. Baltimore, 7 Pet. 243; Fox v. Ohio, 5 How. 410, 434; Twitchell v. Commonwealth, 7 Wall. 321; Brown v. New Jersey, 175 U.S. 172, 174; Twining v. New Jersey, 211 U.S. 78, 93. And, as a necessary corollary, (b) that the Seventh Amendment applies only to proceedings in courts of the United States and does not in any manner whatever govern or regulate trials by jury in state courts or the standards which must be applied concerning the same. Livingston v. Moore, 7 Pet. 469, 552; The Justices v. Murray, 9 Wall. 274; Edwards v. Elliot, 21 Wall. 532; Walker v. Sauvinet, 92 U.S. 90; Pearson v. Yewdall, 95 U.S. 294." Id., at 217.
"And it was of course presumably an appreciation of the principles so thoroughly settled which caused Congress in the enactment of the Employers' Liability Act to clearly contemplate the existence of a concurrent power and duty of both Federal and state courts to administer the rights conferred by the statute in accordance with the modes of procedure prevailing in such courts." Id., at 218.
"The proposition that as the Seventh Amendment is controlling upon Congress, its provisions must therefore be applicable to every right of a Federal character created by Congress and regulate the enforcement of such right, but in substance creates a confusion by which the true significance of the Amendment is obscured. That is, it shuts out of view the fact that the limitations of the Amendment are applicable only to the mode in which power or jurisdiction shall be exercised in tribunals of the *367 United States, and therefore that its terms have no relation whatever to the enforcement of rights in other forums merely because the right enforced is one conferred by the law of the United States." Id., at 219-220.
Although a State must entertain negligence suits brought under the Federal Employers' Liability Act if it entertains ordinary actions for negligence, it need conduct them only in the way in which it conducts the run of negligence litigation. The Bombolis case directly establishes that the Employers' Liability Act does not impose the jury requirements of the Seventh Amendment on the States pro tanto for Employers' Liability litigation. If its reasoning means anything, the Bombolis decision means that, if a State chooses not to have a jury at all, but to leave questions of fact in all negligence actions to a court, certainly the Employers' Liability Act does not require a State to have juries for negligence actions brought under the Federal Act in its courts. Or, if a State chooses to retain the old double system of courts, common law and equityas did a good many States until the other day, and as four States still do[2]surely there is nothing in the Employers' Liability Act that requires traditional distribution of authority for disposing of legal issues as between common law and chancery courts to go by the board. And, if States are free to make a distribution of functions between equity and common law courts, it surely makes no rational difference whether a State chooses to provide that the same judge preside on both the common law and the chancery sides in a single litigation, instead of in separate rooms in the same building. So long as all negligence suits in a State are treated in the same way, by the same mode of disposing equitable, non-jury, and common law, jury issues, the State does *368 not discriminate against Employers' Liability suits nor does it make any inroad upon substance.
Ohio and her sister States with a similar division of functions between law and equity are not trying to evade their duty under the Federal Employers' Liability Act; nor are they trying to make it more difficult for railroad workers to recover, than for those suing under local law. The States merely exercise a preference in adhering to historic ways of dealing with a claim of fraud; they prefer the traditional way of making unavailable through equity an otherwise valid defense. The State judges and local lawyers who must administer the Federal Employers' Liability Act in State courts are trained in the ways of local practice; it multiplies the difficulties and confuses the administration of justice to require, on purely theoretical grounds, a hybrid of State and Federal practice in the State courts as to a single class of cases. Nothing in the Employers' Liability Act or in the judicial enforcement of the Act for over forty years forces such judicial hybridization upon the States. The fact that Congress authorized actions under the Federal Employers' Liability Act to be brought in State as well as in Federal courts seems a strange basis for the inference that Congress overrode State procedural arrangements controlling all other negligence suits in a State, by imposing upon State courts to which plaintiffs choose to go the rules prevailing in the Federal courts regarding juries. Such an inference is admissible, so it seems to me, only on the theory that Congress included as part of the right created by the Employers' Liability Act an assumed likelihood that trying all issues to juries is more favorable to plaintiffs. At least, if a plaintiff's right to have all issues decided by a jury rather than the court is "part and parcel of the remedy afforded railroad workers under the Employers Liability Act," the Bombolis case should be overruled explicitly instead of left as a derelict bound to occasion *369 collisions on the waters of the law. We have put the questions squarely because they seem to be precisely what will be roused in the minds of lawyers properly pressing their clients' interests and in the minds of trial and appellate judges called upon to apply this Court's opinion. It is one thing not to borrow trouble from the morrow. It is another thing to create trouble for the morrow.
Even though the method of trying the equitable issue of fraud which the State applies in all other negligence cases governs Employers' Liability cases, two questions remain for decision: Should the validity of the release be tested by a Federal or a State standard? And if by a Federal one, did the Ohio courts in the present case correctly administer the standard? If the States afford courts for enforcing the Federal Act, they must enforce the substance of the right given by Congress. They cannot depreciate the legislative currency issued by Congress either expressly or by local methods of enforcement that accomplish the same result. Davis v. Wechsler, 263 U.S. 22, 24. In order to prevent diminution of railroad workers' nationally-uniform right to recover, the standard for the validity of a release of contested liability must be Federal. We have recently said: "One who attacks a settlement must bear the burden of showing that the contract he has made is tainted with invalidity, either by fraud practiced upon him or by a mutual mistake under which both parties acted." Callen v. Pennsylvania R. Co., 332 U.S. 625, 630. Such proof of fraud need be only by a preponderance of relevant evidence. See Union Pacific R. Co. v. Harris, 158 U.S. 326. The admitted fact that the injured worker signed the release is material in tending to show the release to be valid, but presumptions must not be drawn from that fact so as to hobble the plaintiff's showing that it would be unjust to allow a formally good defense to prevail. See § 5, Federal *370 Employers' Liability Act, 35 Stat. 65, 66, 45 U.S. C. § 55.
The judgment of the Ohio Supreme Court must be reversed for it applied the State rule as to validity of releases, 155 Ohio St. 185, 98 N.E.2d 301, and it is not for us to interpret Ohio decisions in order to be assured that on a matter of substance the State and Federal criteria coincide. Moreover, we cannot say with confidence that the Ohio trial judge applied the Federal standard correctly. He duly recognized that "the Federal law controls as to the validity of a release pleaded and proved in bar of the action, and the burden of showing that the alleged fraud vitiates the contract or compromise or release rests upon the party attacking the release." And he made an extended analysis of the relevant circumstances of the release, concluding, however, that there was no "clear, unequivocal and convincing evidence" of fraud. Since these elusive words fail to assure us that the trial judge followed the Federal test and did not require some larger quantum of proof, we would return the case for further proceedings on the sole question of fraud in the release.
NOTES
[*] The trial judge had charged the jury that petitioner's claim of fraud must be sustained "by clear and convincing evidence," but since the verdict was for petitioner, he does not here challenge this charge as imposing too heavy a burden under controlling federal law.
[1] Chafee, Simpson, and Maloney, Cases on Equity (1951 ed.) 12.
[2] Ibid. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1645412/ | 40 So.3d 897 (2010)
T.T.N., Appellant,
v.
STATE of Florida, Appellee.
No. 2D09-856.
District Court of Appeal of Florida, Second District.
July 23, 2010.
*898 James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
CRENSHAW, Judge.
T.T.N. appeals his adjudication of delinquency and resulting commitment to a moderate-risk residential program for possession of cocaine, contending that the trial court erred in denying his motion to suppress because the evidence was the product of an illegal stop. We agree and reverse T.T.N.'s adjudication and sentence.
At the October 2008 hearing on T.T.N.'s motion to suppress, an officer testified that on June 10, 2006, he was on duty with the St. Petersburg Police Department when he came into contact with T.T.N. Other members of his unit initiated a traffic stop but the driver fled on foot, and the remaining passengers drove away in the vehicle. The driver was apprehended and arrested, and the officerswho had obtained the registered owner's address based on the vehicle's tagdrove to the vehicle owner's residence in Gulfport.[1] The officer testified that once he arrived at the Gulfport residence in a marked police car, three individuals were standing by the vehicle. When they saw the officer pull up to the residence, two of the individuals ran inside the house while the third, later identified as T.T.N., ran to the side of the house.[2] The officer testified that upon exiting his vehicle, he identified himself as a police officer and advised the three individuals to stop. He followed T.T.N. to the side of the house and "[he] located [T.T.N.] hiding behind a bush. [T.T.N.] stood up, dropped a green M & M tube on the ground. [The officer] placed him in custody and retrieved *899 the tube from the ground."[3] The contents of the tube were later positively identified as cocaine.
Following the suppression hearing, the trial court entered its order denying T.T.N.'s motion to suppress and made the following findings:
Under the reasoning of Oliver [State v. Oliver, 368 So.2d 1331, 1335 (Fla. 3d DCA 1979)], the Court finds that [T.T.N.] voluntarily abandoned the tube of cocaine and it is therefore admissible regardless of the lawfulness of [the officer's] stop.
....
Even if [the officer's] stop was illegal, [T.T.N.'s] voluntary abandonment of the tube of cocaine cannot be tainted or made involuntary by a prior illegal police stop, absent an illegal search. Because the Court finds that the tube of cocaine was voluntarily abandoned by [T.T.N.] and not obtained as a result of the stop, it is therefore irrelevant whether [the officer] acted properly in fresh pursuit or acted improperly under the color of office when he arrested [T.T.N.] outside his jurisdiction. Because the tube of cocaine was voluntarily abandoned, [the officer] was entitled to retrieve it regardless of the lawfulness of his stop of [T.T.N.].
At the January 2009 trial, the same deputy who testified at the suppression hearing testified that when he followed T.T.N. around to the side of the residence, "I asked [T.T.N.] to show me his hands. He moved a little bit, and then the narcotics came out from, it was either a pocket or in his shirt, but it came off of his body as he moved."[4] At the close of trial, T.T.N. was adjudicated guilty of possession of cocaine, and the trial court adopted the recommendation from the Department of Juvenile Justice by sentencing T.T.N. to the moderate-risk program. This appeal followed.
We conclude the trial court erred in refusing to suppress the evidence as a product of an unlawful stop because the trial court's factual finding that the tube was voluntarily abandoned is not supported by the record. This court employs a mixed standard of review in considering a trial court's ruling on a motion to suppress. State v. Clark, 986 So.2d 625, 628 (Fla. 2d DCA 2008). The trial court's "determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record." Id. The trial court's legal conclusions are subject to de novo review. Id.
We first note that the officers from the St. Petersburg Police Department were outside their jurisdiction and had no authority to initiate an investigation at the vehicle's registered address in Gulfport.[5] "The general rule is that a municipal police officer, while acting as a police officer, may conduct investigations beyond the municipal limits; however, that authority is limited to those instances where the subject matter of the investigation originates inside the city limits." State v. Allen, 790 So.2d 1122, 1125 (Fla. 2d DCA 2001). Here the St. Petersburg *900 police officers' initial involvement with the vehicle arose from an attempted traffic stop. Once the driver, who fled on foot, was apprehended and arrested, there was no new crime or incident to investigate.[6]
Because the officers' investigation of the traffic infraction and the fleeing driver concluded with the driver's arrest, we next find there was no basis for the arresting officer to stop T.T.N. In order to justify an investigatory stop, a police officer must have a reasonable, articulable suspicion that a person has committed, is committing, or is about to commit a crime. Keeling v. State, 929 So.2d 1169, 1171 (Fla. 2d DCA 2006); see also § 901.151, Fla. Stat. (2005). There was no reasonable indication that T.T.N. was involved or about to be involved in a crime at the time the St. Petersburg police officers arrived at the Gulfport address, and T.T.N.'s attempt to run away from the arresting officer was not sufficient to justify an investigatory stop. See Grant v. State, 596 So.2d 98, 99 (Fla. 2d DCA 1992).
The trial court concluded that even if the stop was unlawful, the tube of cocaine was admissible because T.T.N. voluntarily abandoned it. We disagree because the trial court's finding of fact that the tube was voluntarily abandoned is not supported by competent, substantial evidence adduced at the suppression hearing and at trial. At the suppression hearing the arresting officer testified that when he followed T.T.N. to the side of the house, he found T.T.N. hiding behind a bush. At trial he testified that when he found T.T.N., he "asked [T.T.N.] to show me his hands." Then T.T.N. "moved a little bit, and then the narcotics ... came off of his body as he moved."[7] Therefore, the arresting officer's testimony supports a finding that T.T.N. submitted to the officer's authority after he was ordered to show his hands, and at that time the tube containing cocaine fell from T.T.N.'s body. See Grant, 596 So.2d at 100 ("A person is seized when he comes under the officer's control either by physical force or by submission to the assertion of authority."). Because the officer had no reasonable suspicion to justify a stop, and the tube was abandoned after T.T.N. submitted to the officer's authority, we conclude that the nexus between the illegal stop and the abandonment warrants suppression of the evidence. See State v. Anderson, 591 So.2d 611, 613 (Fla.1992). Accordingly, we reverse T.T.N.'s adjudication and sentence.
Reversed.
CASANUEVA, C.J., and KELLY, J., Concur.
NOTES
[1] The officer acknowledged at the hearing that Gulfport is located outside the jurisdiction of the St. Petersburg Police Department.
[2] T.T.N. was identified by another officer as one of the passengers of the vehicle involved in the traffic stop.
[3] The officer recognized the dropped tube as "a common method for transporting or concealing crack cocaine."
[4] At this point in the trial, T.T.N.'s counsel renewed his objection based on the motion to suppress. The trial court overruled the objection and admitted the tube into evidence.
[5] In fact, at the suppression hearing, the State argued, "[T]here's no question in this case, yes, the officer was outside his jurisdiction and his actions made [sic] have been illegal in telling [T.T.N.] to stop."
[6] The officer testified at the suppression hearing that the police did not know whether the vehicle was stolen. But we do not find this bare hypothesis to be sufficient to justify an ongoing investigation outside the officers' jurisdiction because the vehicle was never reported stolen and was located at the address to which it was registered.
[7] We note that these additional facts from the trial supplement the deputy's testimony at the suppression hearing and do not support the trial court's conclusion that the tube was voluntarily abandoned. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613054/ | 11 So. 3d 1129 (2009)
Russell LEDAY, Vickie Jackson, Gwendolyn F. Giles, Albert Dennis, Jerry Don McMurry, Martha E. Norman, Dr. Angelia Weaver, Ullysses Tucker, Jr., Catherine B. Nicholson, and Peter G. Forest, Plaintiffs-Appellants
v.
STATE of Louisiana and Grambling State University, through the University of Louisiana System, Defendants-Appellees.
No. 44,069-CA.
Court of Appeal of Louisiana, Second Circuit.
April 15, 2009.
Opinion on Rehearing May 7, 2009.
Culpepper & Carroll, PLLC, by Bobby L. Culpepper, Jonesboro, for Appellants.
Wiener, Weiss & Madison, by John M. Madison, Jr., Shreveport, for Appellees.
Before BROWN, WILLIAMS and DREW, JJ.
DREW, J.
Several longtime employees of Grambling State University ("GSU") here appeal *1130 a judgment granting defendants' motion for partial summary judgment and dismissing with prejudice plaintiffs' petition for wrongful termination. The judgment also sustained the defense exception of no cause of action under the "whistle blower" statutes and further dismissed with prejudice plaintiffs' petition asserting a "personal vendetta" against them by the defendants. The judgment is reversed and the matter is remanded for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In their wrongful termination action, plaintiffs sought to be reinstated to their positions with back pay and attorney's fees plus legal interest. Demanding damages sufficient to compensate them for loss of employment, mental anguish and attorney's fees, plaintiffs named as defendants the State of Louisiana and the Louisiana Board of Supervisors of the University of Louisiana System by and through GSU along with Dr. Horace Judson, President of GSU, and Mr. Billy Owens, Vice President for Finance.
Some of the original plaintiffs have exited the lawsuit,[1] leaving eight active plaintiffs, one of whom was not terminated but was "demoted."
Although the terminations were characterized as post-Hurricane Katrina budget cuts, the following active plaintiffs alleged they were unlawfully terminated (or demoted in the case of Dr. Angela Weaver):
Vickie Jackson Director of Communications and Public AffairsMr. Owens stifled her work performance by having paperwork previously approved by Dr. Judson (Owens' supervisor) disapproved or delayed; Owens was blatantly insubordinate to Dr. Judson and also made the work environment inhospitable to those who questioned his bad fiscal management practices.
Jerry Don McMurry Manager of Mechanical and Plumbing SystemsTerminated when he did not perform (due to lack of funds) renovations totaling approximately $120,000 to the president's residence at the direction of the president's wife, Dr. Gail Shorter-Judson; outside contractors are now performing the work at a greater cost to GSU.
Martha E. Norman Director of Planning and AnalysisDemoted in responsibility, but not pay, to a "mail-carrier" at registrar's office, which did not have duties and responsibilities for an employee of her institutional research background; then terminated.
Dr. Angela Weaver Executive Assistant to President and Assistant Professor of Political Science (removed from administrative duties but continued as a tenured teachernot terminated, but demoted with a reduction in pay).
Ullysses Tucker, Jr. Annual Fund DirectorTerminated.
Catherine B. Nicholson Associate Director of DevelopmentMr. Owens stifled her work performance by having paperwork (previously approved by Dr. Judson, Owens' supervisor) disapproved or delayed; Owens was blatantly insubordinate to Dr. Judson and also made the work environment inhospitable to those who questioned his bad fiscal management practices. Alleged to have been required to perform additional duties without being compensated and being paid less than *1131 President Judson's development employee, Ullysses Tucker.
Peter G. Forest Director of Athletic Media RelationsTerminated.
Mark Hall Strength and Conditioning Football Coach (added as plaintiff in first amending petition)Relieved of duties 8/2/05 for refusing to help cover up NCAA violations; declined request to recant a 8/4/05 letter reporting NCAA violations to the Athletic Director with a copy to President Judson, who by 8/11/05 letter terminated Hall as of 8/31/05.
The plaintiffs attributed some terminations to the direction of Dr. Sally Clausen, the President of the Board of Trustees for Colleges and Universities. Although GSU attempted to justify the layoffs as necessary budget reductions, no reduction to GSU's budget occurred. Plaintiffs contended that some people were replaced with others at an increased pay scale while other positions were given a change in name, such as "Assistant Director" to "Assistant to Director." Some of those dismissed had complained about the actions of Owens, but were entitled to protection under the "whistle blower" statutes. Some were terminated when they refused to follow instructions given by President Judson's wife.
Alleging that they had exhausted their administrative procedures, plaintiffs contended that:
GSU failed to follow its own administrative requirements and did not provide due process to its employees who asserted that merit raises were given without the required evaluations;
they had a reasonable expectation of continued employment;
GSU was in extremely bad faith and arbitrary and capricious in its actions toward them;
termination letters cited the concurrence of department heads who were never consulted;
some of the people terminated were replaced almost immediately;
some dismissals were exacted against those who had complained about financial practices of the university;
the actions of President Judson and Mr. Owens were a misuse of their offices and amounted to a personal vendetta against the plaintiffs; and
the plaintiffs relied to their detriment on the GSU Employee Manual and the 1998 Unclassified Personnel Handbook and Policy Statement I.
In their motion for partial summary judgment, defendants stated that all of the plaintiffs were at-will employees, who could be discharged for any reason. In addition, defendants filed a peremptory exception of no cause of action based upon plaintiffs' failure to state a cause of action under the "whistle blower" statutes, i.e., La. R.S. 23:967 and 42:1169, and their failure to state a personal cause of action against Judson and Owens.
REASONS FOR JUDGMENT
After reviewing the affidavits and depositions filed into the record, the trial court found that:
none of the plaintiffs had a fixed term of employment;
the grievance procedures found in the employee handbook did not apply to terminations and termination procedures;
absent a specific contract or agreement setting a fixed term of employment, an employer is at liberty to dismiss an employee at any time for any reason without incurring liability;
*1132 the reason for termination need not be accurate, fair or reasonable and the termination can be for no reason at all; and therefore
defendants were entitled to the partial summary judgment.
Likewise, the trial court found that the defense was entitled to the exception of no cause of action in the action under the "whistle blower statutes," because:
under La. R.S. 42:1169, pertaining to violations of the Code of Governmental Ethics, the employee must report what he reasonably believes is a violation of any provision of the law within the jurisdiction of the board or any order, rule or regulation, or any other alleged acts of impropriety;
La. R.S. 23:967 protects an employee who reports or refuses to participate in illegal work practices;
the employer must have violated state law to trigger these protections;
accepting all of plaintiffs' allegations as true for the purposes of deciding the exception of no cause of action, plaintiffs' petition challenged questionable actions but did not allege violations of state law or the Code of Governmental Ethics;
the termination of these at-will employees did not violate state law or the Code of Governmental Ethics;
the allegations of "personal vendetta" was not actionable in the termination of at-will employees; and
plaintiffs are required to state with specificity how the whistle blower statutes were violated, and these plaintiffs did not do so.
DISCUSSION
Our law on review of summary judgments is well settled.[2]
The defendants supported their motion for summary judgment with the affidavit of Dr. Judson averring that all the plaintiffs were at-will employees and the Unclassified Personnel Handbook (a copy of *1133 which was attached to their motion) was not applicable to terminations, but only to GSU employees' complaints which could affect their attitude and work. The handbook stated at the outset that it was not intended to form a contract and that unclassified administrative employees served at the "pleasure or will of the President and the Board of Trustees." The plaintiffs opposed the motion for summary judgment with multiple references to depositions filed by both parties establishing many complaints by plaintiffs concerning financial practices and questionable actions.
Prior to trial the parties agreed to the following material facts:
1. Paragraph F, p. 19, of the "unclassified Personnel handbook Grambling State University Fall 1998" contained the statement:
All unclassified administrative staff shall hold their administrative appointment at the pleasure or will of the President and the Board of Trustees. The annual approval of the budget and personnel documents designating the salary and other personnel benefits for administrative personnel shall not constitute an implied nor expressed agreement for continued employment throughout the fiscal year but, are executed or approved solely for the purpose of budgeting in associated fiscal and administrative matters.
2. The active plaintiffs were hired in the listed years: Norman (1974), McMurry (1979), Jackson (1982), Nicholson (1973), Forest (2003), and Tucker (2005).
3. All the active plaintiffs, except Angela Weaver, were terminated on the following dates: Jackson (January 4, 2006), McMurry (January 4, 2006), Norman (January 4, 2006), Tucker (December 2005/January 2006), Nicholson (January 6, 2006), Forest (December 13, 2005), and Hall (August 11, 2005).
4. Angela Weaver was relieved of administrative duties and continued as a tenured teacher at GSU.
The defendants argued, and the trial court found, that:
the plaintiffs were at-will employees with no fixed term of employment;
where a term of employment is indefinite, the employment is terminable at the will of either the employer or the at-will employee;
absent a specific contract or agreement establishing a fixed term of employment, an at-will employee is free to quit at any time without liability to the employer and may be terminated by the employer at any time; and
the reasons for termination need not be accurate, fair or reasonable. In fact, there need be no reason at all for termination. See discussion, Clark v. Acco Systems, Inc., 39,532 (La.App. 2d Cir.4/6/05), 899 So. 2d 783.
In Clark, supra, summary judgment in favor of the employer was affirmed by this court based upon Clark's at-will employment. Clark stated he was terminated due to his job performance, while the employer stated Clark was terminated to make room for a salaried supervisor with an employment contract. Clark's status as an at-will employee was undisputed. In the Clark decision, this court found the summary judgment was appropriate because Acco needed to show only that Clark was an at-will employee. Even if the employer gave a false reason for termination, termination for any or no reason was legal. Clark, supra.
This present dispute is factually distinguishable from Clark, supra. These plaintiffs disputed their status as at-will employees. More significantly, the plaintiffs *1134 alleged that the defendants engaged in questionable actions and personal vendettas which resulted in plaintiffs' terminations and demotion, making them eligible for protections under the "whistle blower" statutes. The important distinction to be drawn is that even at-will employees are protected by the "whistle blower" statutes.
La. R.S. 23:967 (Employee protection from reprisal; prohibited practices; remedies) states:
A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
B. An employee may commence a civil action in a district court where the violation occurred against any employer who engages in a practice prohibited by Subsection A of this Section. If the court finds the provisions of Subsection A of this Section have been violated, the plaintiff may recover from the employer damages, reasonable attorney fees, and court costs.
C. For the purposes of this Section, the following terms shall have the definitions ascribed below:
(1) "Reprisal" includes firing, layoff, loss of benefits, or any discriminatory action the court finds was taken as a result of an action by the employee that is protected under Subsection A of this Section; however, nothing in this Section shall prohibit an employer from enforcing an established employment policy, procedure, or practice or exempt an employee from compliance with such.
(2) "Damages" include compensatory damages, back pay, benefits, reinstatement, reasonable attorney fees, and court costs resulting from the reprisal.
D. If suit or complaint is brought in bad faith or if it should be determined by a court that the employer's act or practice was not in violation of the law, the employer may be entitled to reasonable attorney fees and court costs from the employee.
The version of La. 42:116 9(B) (1999 Acts, No. 327, § 1) in effect at the time these plaintiffs were terminated stated:
B. Any public employee who reports to a person or entity of competent authority or jurisdiction information which he reasonably believes is a violation of any law or of any order, rule, or regulation issued in accordance with law or any other alleged acts of impropriety related to the scope and/or duties of public employment or public office within any branch of state government or any political subdivision shall be free from discipline or reprisal for reporting said acts of alleged impropriety. No employee with authority to hire and fire, supervisor, agency head, or other elected official shall subject to reprisal any such public employee because of said employee's efforts to disclose such acts of alleged impropriety.
The trial court gave a very thoughtful, scholarly discussion of the issues presented in this case. However, the trial court erred in dismissing plaintiffs' action with prejudice without providing the plaintiffs an opportunity to amend their pleadings within a reasonable time period to state a *1135 cause of action and to make more specific many of the sometimes vague assertions of wrongdoings in their filings.
La. C.C.P. art. 934 directs that:
When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed. (Emphasis added.)
Until plaintiffs are given that opportunity to amend their pleadings to specify how the "whistle blower" statutes apply to each of them, we find granting of the partial summary judgment based upon their status as at-will employees to be premature. Whether or not any amendments will result in a different outcome is not the issue. The law directs that each plaintiff should be given the opportunity to amend their pleadings in these situations. If the amendments fail to allege with sufficient specificity the acts that resulted in their termination (or demotion), the defendants will be able to re-urge their motion for summary judgment and any appropriate exceptions.
DECREE
The judgment is reversed and the matter is remanded for further proceedings. The trial court is directed to order the plaintiffs to file their amendments within a delay set by the trial court.
REVERSED AND REMANDED WITH INSTRUCTIONS.
ON REHEARING
Before BROWN, WILLIAMS, STEWART, GASKINS and DREW, JJ.
PER CURIAM.
At the request of the defendants, we grant rehearing to clarify our original opinion in one respect only. From our de novo review of the record, we agree with the trial court's finding that all of the plaintiffs were at-will employees of Grambling State University. There are no other changes to our original opinion.
NOTES
[1] Russell LeDayAsst. Dir. of Alumni Affairs (later withdrew as plaintiff); Gwendolyn F. GilesHospitality Specialist (later dismissed at her own request); and Albert Dennis Athletic Director (later withdrew as plaintiff).
[2] In Haley v. Wellington Specialty Ins. Co. 44,014 (La.App. 2d Cir.2/25/09), 4 So. 3d 307, this court discussed appellate review of a summary judgment. In deciding if a summary judgment is appropriate, appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is proper. The summary judgment procedure is designed to secure the just, speedy, and efficient determination of every action and shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(2) and (B).
The party seeking the summary judgment has the burden of proof. La. C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial, the movant's burden on the motion does not require him to negate all essential elements of the adverse parties' claims, actions, or defenses, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse parties' claims, actions, or defenses. Thereafter, if the adverse parties fail to produce factual support sufficient to establish that they will be able to satisfy the evidentiary burden of proof at trial, there is no genuine issue of material fact. Haley, supra. For purposes of summary judgment, a fact is material if it potentially insures or precludes recovery, affects a party's ultimate success or determines the result of a legal dispute. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App. 2d Cir.8/21/96), 679 So. 2d 477.
When a motion for summary judgment is made and supported, the adverse parties may not rest on the mere allegations or denials in pleadings, but must respond with affidavits, depositions, etc., and show specific facts establishing there is a genuine issue for trial. If they do not do so, summary judgment, if appropriate, shall be rendered. LSA-C.C.P. art. 967(B). Haley, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611440/ | 166 N.W.2d 340 (1969)
Mildred E. STAHLBERG, Respondent,
v.
James A. MOE and James R. Lang, dba Jim and Frank's Beauty Salon, Defendants and 3rd Party Plaintiffs, Appellants,
v.
WELLA CORPORATION, et al., Third-Party Defendants.
No. 41411.
Supreme Court of Minnesota.
March 14, 1969.
*341 Stringer, Donnelly & Sharood, and Charles A. Flinn, Jr., St. Paul, for appellants.
Silver & Ryan, St. Paul, for respondent.
Heard before KNUTSON, C. J., and NELSON, SHERAN, PETERSON, and FRANK T. GALLAGHER, JJ.
OPINION
FRANK T. GALLAGHER, Justice.
This is an appeal from an order of the district court denying defendants' motion for a new trial and from the judgment entered in favor of plaintiff.
About 10:30 a. m. March 11, 1964, plaintiff, Mildred E. Stahlberg, entered Jim and Frank's Beauty Salon, owned and operated by defendants, James A. Moe and James R. Lang, in White Bear Lake, to obtain a shampoo, haircut, cold-wave permanent, and tint rinse for her hair. She had patronized the shop since the fall of 1963 and defendants' records showed she had received a permanent there in December 1963. Plaintiff specified the treatment she wished to receive but made no request for a particular brand or type of solution, simply indicating which of the several price categories she wished. Defendant Lang, who performed the work, chose the solutions accordingly.
Plaintiff left the shop about 3 hours later. Except for having requested that the hair drier be turned down, she had made no complaints concerning the manner in which the work was done and was satisfied with the appearance of her hair. Approximately 2 hours after her departure she developed itching and burning sensations on *342 her face and head, and both became extremely red in color. She also developed a headache, some watering of the eyes, and nausea. She contacted the beauty shop and was told she could apply cold cream that had no alcoholic content and that she should call back in the morning. She had no cold cream so she applied vaseline instead. After a sleepless night, due to the headache and burning sensation, she called the shop the next morning and was told to come in at noon. Lang examined plaintiff's scalp and noticed red spots on the crown and back. He attempted to wash her hair and put some curlers in it, but she was unable to stand having her head touched. Lang then advised her to see a doctor.
Plaintiff consulted a Dr. Wedes on two separate occasions. He suggested she consult a specialist, so she contacted Dr. Francis W. Lynch, a specialist in dermatology, who first saw her on March 18, 1964. He said she told him she had had a permanent wave and tint about a week earlier and that about 2 hours after the procedure she had noticed itching, redness, and scaling. After she had further described her experiences, Dr. Lynch examined her and found redness and slight swelling of the central and anterior portions of her scalp, with less severe and less extensive involvement of the scalp near the nape of the neck. He formed the opinion she was suffering from contact dermatitis caused by one or another of the solutions applied in the course of the permanent waving and tinting during her treatment at the beauty shop on March 11. She continued to receive treatment from Dr. Lynch who, prior to the trial, last saw her on February 17, 1967. During the course of treatment, comprising some 26 office calls and 6 or 8 changes in medication, the acute stage of the dermatitis, which had involved sores on her head that scabbed over and were extremely painful, subsided. By July 16, 1964, the condition consisted of diffused scaling, thickening of the skin, and itching. On September 10, 1964, there remained three scaling, itching plaques a half inch to an inch in diameter. In addition, there developed in the central portion of the scalp a shiny, taut, hairless area about three inches in diameter. Although the size of the plaques and the amount of scaling varied from time to time, there was still some slight scaling present at the last examination on February 17, 1967.
Plaintiff remained away from her job as receptionist and switchboard operator at the Hastings State Hospital from March 11, the date of the permanent, until April 16, 1964. When she returned, the headset she was required to wear at the switchboard caused her discomfort. The sores and scaling on her scalp were visible at a distance of 5 to 10 feet. Plaintiff said that she was uncomfortable all the time and subject to constant itching; that she was embarrassed at the condition of her hair, but was unable to have it dressed or do anything with it; and that her job was such that she was required to be in plain view of anyone entering the main lobby of the hospital. She retired about Christmas of 1965, although she claims she would have continued working had it not been for the nervousness and embarrassment she experienced due to the condition of her scalp and hair.
Plaintiff brings this action to recover from the owners of the beauty shop, alleging they were negligent in the application to her hair and scalp of the products selected by them. By their answer defendants denied negligence and claimed that if plaintiff sustained injury it was due either to the acts of corporations over which they had no control or to plaintiff's contributory negligence or assumption of risk. Defendants joined as third-party defendants Wella Corporation and Turner Hall Corporation, manufacturers of the permanent-waving solution and tint applied to plaintiff's hair.
Following trial before a jury the court granted a directed verdict in favor of the third-party defendants and a directed verdict in favor of plaintiff against defendants Moe and Lang on the issue of liability *343 only. The issue of damages was submitted to the jury under instructions which permitted it to include future damages in the recovery awarded. The jury set plaintiff's damages at $4,130 and judgment was entered on the verdict. It is from that judgment and the denial of their motion for a new trial that defendants appeal.
Defendants raise two issues: (1) Whether the evidence justified the trial court in concluding that defendants were negligent as a matter of law and that their negligence was a proximate cause of plaintiff's injuries; and (2) whether the court erred in allowing the jury to consider an award of future damages.
As is apparent, each of these issues involved the consideration of the evidence introduced at trial and its sufficiency to support the conclusions reached by the trial court.
From the record it appears that the choice and use of the solutions were exclusively in the hands of defendants; that they were aware of the potentially dangerous character of the solutions; that they had no independent knowledge of the chemical nature of the solutions, had made no attempt to secure such knowledge, and, therefore, had to rely on the instructions of the manufacturers as to their proper use; that defendant Lang did not read the manufacturers' instructions immediately prior to applying the solutions to plaintiff's scalp and deviated from the prescribed method of application of the permanent wave, the neutralizer, and the tint rinse; that plaintiff had a prolonged history of continuing beauty parlor treatments without any adverse reactions and no observable scalp problems prior to the commencement of the treatment on March 11, 1964; that shortly after receiving the treatment at the hands of defendant Lang on that date plaintiff experienced inflammation, itching, headache, sores, and diffused loss of hair; and that where care is used by a beauty operator in the application of permanent waves and rinses, the customer does not ordinarily suffer any ill effects.
Plaintiff did not attempt to pinpoint any more specifically the agent which caused her condition. No attempt was made to establish which of the solutions, or what combination of them, caused her reaction, or whether that reaction was allergic or irritant. In granting a directed verdict as to third-party defendants Wella and Turner Hall, the trial judge pointed out that there was no evidence as to which of the solutions caused the injury or that any of them were dangerous per se, and that for the jury to decide that the injury was caused by one solution rather than the others would be pure speculation.
Cross-examination of Dr. Lynch by defendants Moe and Lang and third-party defendants indicated that any of the solutions by themselves, a combination of them, a misapplication, or an allergic reaction by plaintiff could have been responsible for her condition. Dr. Lynch was not asked and did not volunteer any opinion as to which of these possibilities was in fact the cause, or even whether one was more likely to have been the cause than the others.
It is plaintiff's position that the doctrine of res ipsa loquitur is applicable and will sustain the directed verdict. She points to the fact that she entered the beauty parlor with a healthy scalp and no previous history of difficulty due to permanents or rinses, received a permanent and rinse from defendant Lang who had complete control over the solutions used and the manner in which they were applied, and shortly thereafter began experiencing the symptoms which prompted the present action. She further points out that Lang admitted at trial that where the beautician uses care in the treatment there is ordinarily no adverse effect on the customer.
In Johnson v. West Fargo Mfg. Co., 255 Minn. 19, 25, note 3, 95 N.W.2d 497, 502, note 3, this court has stated the requirements for the application of the doctrine of res ipsa loquitur as follows:
"* * * (1) Plaintiff must have been injured by an apparatus or instrumentality *344 whose nature is such that injury is not ordinarily to be expected in the absence of negligence; (2) at the time of the injury both inspection and user must have been in the exclusive control of the defendant; and (3) the injurious condition or occurrence must not have been due to any voluntary action on the part of plaintiff."
In Johnson we also pointed out that the introduction of specific evidence as to the cause of the injury does not deprive a plaintiff of the benefit of the doctrine so long as that evidence does not conclusively establish the cause of the injury.
It appears that in the present case the requirements listed in Johnson are met and the fact that plaintiff did not prove the precise element in the treatment that caused the injury would not prevent a jury from finding in her favor. However, it is clear that under Minnesota law the doctrine is merely a form of circumstantial evidence creating a permissive inference of negligence, Rule 43.06, Rules of Civil Procedure, and that the jury is not normally required to draw that inference if it chooses not to do so. Gardner v. Coca Cola Bottling Co., 267 Minn. 505, 509, 127 N. W.2d 557, 561. Therefore, where there is evidence of other possible causes of plaintiff's injury which would not involve a breach of duty on the part of the defendant, and men of ordinary intelligence could reasonably accept one of these causes, defendant's liability becomes a jury question.
As stated, the cross-examination of the doctor brought out the fact that an allergic reaction on the part of plaintiff was a possible cause of her condition. As to the tint rinse, the manner in which Lang failed to follow the directions failure to give a "patch test" relates specifically to possible allergic reactions. But there is no evidence that Lang could have determined that plaintiff was allergic to any of the ingredients in the other solutions applied prior to application or that a sufficient number of persons are allergic to any such ingredients so as to make any use of them in a shop open to the public, negligent. The only evidence making an allergic reaction a less likely cause than defendants' negligence is plaintiff's past history of beauty treatments without reaction. However, both Dr. Lynch and defendant Lang testified that a person could be allergic to something on one occasion without having reacted to previous applications. Furthermore, the permanent wave solution used here had not been administered to plaintiff during the previous permanent at defendants' shop in December 1963, and there is no evidence she had ever had it applied to her hair before.
Under these circumstances it would appear that a jury could find that plaintiff's condition resulted from an allergic reaction on her part rather than negligence on the part of defendants in applying any of the solutions used. Unless it appeared there was some way defendants could have established the existence or nonexistence of such an allergy, or that the solutions chosen by defendants contained ingredients likely to produce an allergic reaction in a significant number of persons, it does not seem that there should be any liability for the use of such solutions on plaintiff. Therefore, a directed verdict was not justified.
The case is remanded for a new trial since there is clearly not enough evidence to justify a directed verdict for defendants. On retrial plaintiff may well be able to establish the requisite causal connection, or at least eliminate those causes for which defendants would not be responsible. Drake v. Connolly, 183 Minn. 89, 235 N.W. 614.
Because we have determined that a new trial must be granted, it is not necessary that we resolve the question of future damages. However, since the question may well come up again in the course of the new trial, we deem it advisable to comment briefly upon it.
*345 Defendants do not contend, nor could they contend, that the instructions given were not a proper statement of the law on future damages. The instructions given were precisely those approved by this court in Carpenter v. Nelson, 257 Minn. 424, 101 N.W.2d 918. Rather, it is defendants' claim that there was no evidence on which the jury could find that plaintiff would suffer any future damages or injuries as a result of their negligence. They argue that plaintiff failed to establish the requisite causal connection between her condition at the time of the trial and any negligence of defendants during the March 11 beauty treatment.
It is well-settled law in this state that the need for positive expert testimony to establish a causal connection between the defendant's negligent act and the plaintiff's injury or condition depends upon the nature of the question. Where the question involves obscure and abstruse medical factors such that the ordinary layman cannot reasonably possess well-founded knowledge of the matter and could only indulge in speculation in making a finding, there must be expert testimony, based on an adequate factual foundation, that the thing alleged to have caused the result not only might have done so, but in fact did cause it. Saaf v. Duluth Police Pension Relief Ass'n, 240 Minn. 60, 64, 59 N.W.2d 883, 886; Kundiger v. Prudential Ins. Co., 219 Minn. 25, 17 N.W.2d 49. On the other hand, under normal circumstances expert opinions are not conclusive on the jury and it is not bound to accept them. Backman v. Fitch, 272 Minn. 143, 137 N.W.2d 574; Dziuk v. Loehrer, 266 Minn. 153, 123 N. W.2d 86. See, also, Carpenter v. Nelson, supra.
Here, the testimony of the lone expert is somewhat confused, perhaps due to the fact that there were three separate cross-examinations, each seeking to establish different facts. Further, the record discloses considerable reluctance on the part of the expert to testify at all. Because both of these difficulties may not occur on retrial, we go no further than to call attention to the circumstances under which positive expert testimony is required to permit the jury to find a causal connection between the negligent conduct, if any, and plaintiff's condition.
Reversed and remanded for new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611374/ | 11 So.3d 846 (2008)
William C. STARR, Sr.
v.
Michael A. WILSON et al.
Michael A. Wilson
v.
Rodney C. Jones and William C. Starr, Sr.
2070281, 2070731.
Court of Civil Appeals of Alabama.
December 19, 2008.
*849 Elizabeth M. Borg of McAdory Borg Law Firm, P.C., Auburn, for appellant/cross-appellee William C. Starr, Sr.
Phillip E. Adams, Jr., and Blake L. Oliver of Adams, Umbach, Davidson & White, LLP, Opelika, for appellee/cross-appellant Michael A. Wilson.
J. Tutt Barrett of Dean & Barrett, Opelika, for appellee Rodney C. Jones.
PITTMAN, Judge.
These appeals, which were transferred to this court by the Alabama Supreme Court pursuant to Ala.Code 1975, § 12-2-7(6), concern the purchase of a particular parcel of real property as to which a stranger to that transaction had apparently been previously granted a "right of first refusal" allowing him, at his option, to purchase the parcel should an agreement to convey the parcel be reached between its owner and any buyer.
In May 2005, Michael A. Wilson filed a complaint in the Lee Circuit Court naming as defendants Rodney C. Jones and William C. Starr, Sr., and seeking both equitable relief and damages based upon substantive claims of breach of contract, intentional interference with business or contractual relations, and conspiracy to commit a lawful act by unlawful means. In his complaint, Wilson averred that he and Jones had entered into an agreement to convey a parcel of real property from Jones to Wilson (which other portions of the record identify as "Lot 2-B" of a particular subdivision in Auburn) and that the parties had simultaneously agreed that Wilson would be afforded a "right of first refusal" allowing him a right to purchase a second, adjoining parcel in that subdivision ("Lot 2-A"). According to the complaint, Jones breached the agreement by conveying Lot 2-A to Starr without notifying Wilson or permitting him to exercise the claimed right of first refusal. Wilson sought, among other things, a trial by jury, an award of damages, temporary and permanent injunctive relief, and a judgment directing specific performance of the alleged agreement under which Wilson claimed the right of first refusal. Jones and Starr filed answers to the complaint; Starr's answer included a claim under the Alabama Litigation Accountability Act, Ala.Code 1975, § 12-19-270 et seq. ("the ALAA"). After those answers were filed and a hearing was held, the trial court entered a preliminary injunction in July 2005 preventing Starr from encumbering, selling, improving, or changing Lot 2-A and requiring Wilson to post an injunction bond.
In June 2006, Starr filed a counterclaim[1] against Wilson in which Starr averred that Wilson had recorded the agreement containing the right of first refusal after Starr had purchased Lot 2-A from Jones; that pleading reasserted Starr's ALAA claim and asserted new claims of intentional interference with business or contractual relations and slander of title. Starr subsequently asserted a *850 cross-claim against Jones and various fictitiously named defendants asserting claims of negligence and fraud, and Jones asserted a cross-claim against Starr and a third-party claim against Starr's attorney, Stephen D. Benson, asserting claims of breach of contract, fraud, and intentional interference with business or contractual relations; all parties filed responses to those pleadings, and Benson and Starr asserted ALAA counterclaims against Jones.
After discovery had taken place, Benson filed a motion for a summary judgment as to Jones's third-party claim and Starr filed a motion for a summary judgment on the claims brought against him by Wilson in his complaint and by Jones in his cross-claim. Wilson voluntarily dropped his conspiracy claim at that point. Following a hearing, the trial court rendered a summary judgment dissolving the preliminary injunction and determining that the claimed right of first refusal was void and that therefore, as a matter of law, Wilson had no valid claims against Jones or Starr; however, the trial court also released Wilson from the injunction bond, denied all requests for awards of attorney fees and costs, and ordered that all "other actions pending in [the] case" (i.e., all other claims) be "dismissed" as "moot." That judgment was entered on November 6, 2007.
On November 27, 2007, Starr filed a postjudgment motion requesting, among other things, that the trial court "reinstate" his counterclaim against Wilson. On December 5, 2007, Benson filed a similar postjudgment motion to "reinstate" his ALAA counterclaim against Jones. On December 6, 2007, Wilson filed a postjudgment motion requesting that the trial court vacate its judgment to the extent that it denied his claims. The trial court directed the parties to file responses to the postjudgment motions and indicated that it would permit oral argument on the motions. Starr filed a notice of appeal on December 18, 2007, which this court docketed as case no. 2070281; pursuant to Rule 4(a)(5), Ala. R.App. P., that appeal was held in abeyance pending a decision regarding the outstanding postjudgment motions.
Although the trial court held a hearing on the postjudgment motions and may have indicated an intent to grant certain aspects of the relief requested by Starr and Benson, no order granting or denying any of the postjudgment motions was entered within 90 days of their respective filing dates. Thus, each motion was denied, pursuant to Rule 59.1, Ala. R. Civ. P., as of the 90th day following its filing, see Roden v. Roden, 937 So.2d 83, 85 (Ala.Civ. App.2006), and the trial court's subsequent order purporting to grant Starr's and Benson's postjudgment motions and to deny Wilson's postjudgment motion was a nullity. See United States Steel Corp. v. McBrayer, 908 So.2d 947, 951 (Ala.Civ. App.2005), and Moragne v. Moragne, 888 So.2d 1280, 1282 (Ala.Civ.App.2004). Wilson filed a timely notice of appeal on April 16, 2008, 42 days after the denial of his postjudgment motion (see Rule 4(a)(3), Ala. R.App. P.); that appeal was docketed as case no. 2070731 in this court. Because neither Jones nor Benson have appealed from the trial court's judgment, the correctness of the trial court's judgment as to their claims against each other and as to Jones's claims against Starr is not presented for review.
Wilson's appeal challenges the correctness of the trial court's rulings as to his breach-of-contract claim against Jones and his intentional-interference claim against Starr. Starr's appeal challenges the correctness of the trial court's ruling as to the claims asserted against Wilson in Starr's counterclaim.
*851 We will first consider the correctness of the summary judgment against Wilson on his breach-of-contract claim against Jones. Our standard of review is well settled:
"An appellate court reviews a summary judgment by the same standard the trial court uses in determining whether to grant a summary-judgment motion. Pryor v. Brown & Root USA, Inc., 674 So.2d 45, 47 (Ala.1995); Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). A summary judgment is appropriate if there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The movant has the burden of making a prima facie showing that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). If the moving party makes that prima facie showing, then the burden shifts to the nonmoving party, who then has the burden of presenting substantial evidence creating a genuine issue of material fact. Id. In determining whether the evidence creates a genuine issue of material fact, this court must review the record in the light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wayne J. Griffin Elec., Inc. v. Dunn Constr. Co., 622 So.2d 314 (Ala.1993). Evidence is `substantial' if it is 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)."
Millican v. McKinney, 886 So.2d 841, 843 (Ala.Civ.App.2003).
Viewed in a light most favorable to Wilson, the record reveals the following facts. On August 28, 2003, Jones and Wilson, in their individual capacities, entered into a written contract that provided, in pertinent part, that in consideration for a total payment of $250,000 (including an earnest-money payment of $3,000), Jones would convey Lot 2-B to Wilson and would grant Wilson a right of first refusal as to Lot 2-A. That contract stated:
"1. DESCRIPTION: SELLER [i.e., Jones] shall sell to PURCHASER [i.e., Wilson] and [Wilson] shall purchase from [Jones] the real estate located on Webster Road in Auburn, Alabama described as follows ... [legal description of Lot 2-B].
"2. PURCHASE PRICE: The purchase price is $250,000.00, payable $3,000.00 as earnest money upon execution of this Agreement by [Jones], receipt of which is hereby acknowledged by [Jones], and the remainder of $247,000.00 payable in full upon consummation of this sale.
"3. CLOSING: This sale shall be closed on or before 90 days from and after the date this Agreement is signed by [Jones] which is the date of this Agreement as hereinabove set forth. The closing shall be at a place, date and time to be designated by [Wilson] and [Wilson] shall give [Jones] written notice of same no later than 5 days prior to the closing date. [Jones] shall give possession of said property to [Wilson] at closing.
"4. DEFAULT: In the event [Wilson] fails to carry out and perform the terms of this Agreement for any reason except default of [Jones], he shall forfeit the above stated earnest money which shall be retained by or for the account of [Jones] as consideration for the execution of this contract and as agreed liquidated damages and in full settlement for any claims for damages, and [Jones] *852 agrees to cancel this contract. If [Jones] fails to perform any of the covenants of this contract, the aforesaid earnest money and the consideration for any closing date extension paid by [Wilson], at the option of [Wilson], shall be returned to him on demand; or [Wilson] shall have only the right of specific performance.
"5. EXTENSION: [Wilson] shall have the right to extend the closing date of this transaction an additional 30 days beyond the original 90-day period as hereinabove provided, upon giving written notice to [Jones] on or before the end of said 90-day period and upon paying to [Jones] simultaneously with giving said notice the sum of $2,000.00 in consideration for granting the 30-day extension. Said $2,000.00 payment is not part of and shall not apply to the above stated purchase price and is fully non-refundable.
"....
"9. TIME IS OF THE ESSENCE: Time is of the essence for this Sale and Purchase Agreement.
"....
"14. OTHER AGREEMENTS: No agreements or representations, unless incorporated in this contract, shall be binding upon either of the parties.
"15. RIGHT OF FIRST REFUSAL OTHER PROPERTY: [Jones] owns a lot adjacent to [Lot 2-B] located on the north side thereof and described as Lot [2-A]. In addition to the sale and conveyance hereinabove described and as part of the consideration for the $250,000.00 to be paid by [Wilson] to [Jones], [Jones] also agrees to and does hereby grant to [Wilson] a Right of First Refusal to purchase said lot together with all improvements located thereon and appurtenances thereto appertaining. In the event [Jones] shall receive from a third party at any time[ ] a bona fide offer to purchase said Lot 2-A, whether such price be first fixed by [Jones] or the third party, and [Jones] shall decide to sell the same for such amount, [Jones] shall promptly give [Wilson] written notice of the terms of such offer and of his willingness to sell for the price offered, and [Wilson] shall have the first refusal and privilege of purchasing said property at such price. Within 15 days of receiving said written notice from [Jones], [Wilson] shall give written notice to [Jones] of his intention to exercise his right of refusal and to purchase the property for such amount offered by the third party, and [Wilson] shall have 30 days from providing said written notice to [Jones] to close the purchase at that price. In the event [Wilson] shall fail to give [Jones] written notice of his intention to exercise his right of refusal within 15 days of receiving notice from [Jones] of the third party offer, [Wilson] shall not be obligated to purchase and [Jones] may thereafter sell said property to the third party making the original offer. ... This Right of First Refusal granted herein is for a five-year period only and shall terminate and become null and void five (5) years from the date of the parties['] closing of the sale and the purchase of [Lot 2-B]."
Jones did not convey Lot 2-B to Wilson within 90 days of the execution of the contract for sale, and it does not appear that Wilson paid additional consideration to Jones to obtain the automatic 30-day extension as provided in the contract. However, on January 15, 2004, Jones did convey Lot 2-B via a warranty deed naming as grantee a limited-liability company, "Affordable Self Storage, LLC" ("Affordable"), in which Wilson apparently had a controlling ownership interest. That deed *853 did not refer to the August 28, 2003, contract between Jones and Wilson and did not contain a right of first refusal.
On April 21, 2005, Starr was telephoned by an area real-estate agent who stated that he could sell Starr Lot 2-A; that lot was adjacent to a parcel already owned by Starr. Starr and the agent immediately agreed on a price ($425,000) and sought to close a purchase transaction swiftly. On April 22, 2005, Jones purported to convey Lot 2-A to Starr via a quitclaim deed; Jones admitted in his answer that that purported conveyance of Lot 2-A had not been in conformity with the contractual right of first refusal and that out of "absent mindedness" he had "failed to recall the right of first refusal existed."
On April 25, 2005, after becoming aware of Starr's attempt to purchase Lot 2-A, Wilson orally notified Jones that he intended to exercise the right of first refusal; that notice was given three days after Jones had executed the deed to Lot 2-A and one day after he had delivered it to Benson. In response to Wilson's oral notice, Jones attempted to notify the real-estate agent and Benson of the existence of the right of first refusal and apparently unsuccessfully sought to prevent Benson from delivering the deed to Starr. Although disputed, there is evidence in the record indicating that some sort of oral agreement between attorneys representing Wilson and Starr was reached under which Starr would agree to convey Lot 2-A to Wilson; Starr, for his part, denied both the existence of and the validity of any such alleged agreement. On April 27, 2005, Jones wrote Wilson a letter in which he stated that he had a contract to sell Lot 2-A at a price of $425,000, requested that Wilson "accept this as your notice of right of first refusal" as to Lot 2-A, and asked Wilson to "exercise your right within the contracted time period." One day later, on April 28, 2005, Starr recorded the April 22, 2005, deed of Lot 2-A from Jones.
In entering its summary judgment against Wilson, the trial court concluded that Wilson did not have a valid right of first refusal[2] as to Lot 2-A because the August 28, 2003, sales agreement was void. The trial court made that voidness determination on several stated grounds, including (a) lack of consideration, (b) failure of the parties to consummate their agreement within the times set forth in the agreement, and (c) the conveyance of Lot 2-B to Affordable rather than Wilson. However, none of the reasons stated by the trial court supports the summary judgment against Wilson on his claims against Jones.
We first consider the issue of lack of consideration. The trial court, in its judgment, cited Gulf Coast Realty Co. v. Professional Real Estate Partners, Inc., 926 So.2d 992, 1000 (Ala.2005), which cited a trial court's opinion that had relied on Foy v. Foy, 484 So.2d 439, 442 (Ala.1986), as support for the proposition that "`consideration for [an] option is a thing apart from the consideration for the sale of the land.'" However, the trial court in this case failed to note that in Gulf Coast the Supreme Court distinguished Foy and held that a development agreement containing a number of mutual covenants, including an option to purchase, was supported *854 by consideration even though the agreement did not separately state consideration for the option; the Supreme Court stressed that, to the extent that its previous cases had required a "separate expression of consideration" for an option, that requirement "applies only to option contracts that are nudum pactum on their face, that is, those contracts that constitute only gratuitous promises by the would-be seller and thus fail for lack of consideration." 926 So.2d at 1001.
In contrast, the Supreme Court in Gulf Coast cited with approval its decision in Rice v. Sinclair Refining Co., 256 Ala. 565, 56 So.2d 647 (1952), in which it was held that a lease and its amendments that contained an option to purchase constituted a single contract and that payment of rent under the lease provisions of the contract was consideration that was "sufficient to support the option to purchase under the contract so that it [could not] be withdrawn during the period specified for its continuance." Rice, 256 Ala. at 573, 56 So.2d at 653. Thus, the proper rule is that stated by a noted treatise on the law of contracts:
"[W]here the option is simply a subsidiary part of a larger transaction, ... the consideration for the option is seldom a definitely determinable portion of what the option holder gives to the other party. It is not at all necessary for the parties to agree upon such a division of the total consideration given by the option holder. It is not necessary for either the parties or the court to make a separate valuation of the option in order that it should be enforceable."
3 Eric M. Holmes, Corbin on Contracts § 11.7 (Rev. ed. 1996) (emphasis added); accord HGS Homes, Inc. v. Kelly Residential Group, Inc., 948 S.W.2d 251, 255 (Mo. Ct.App.1997). The failure of the August 28, 2003, agreement to separately enumerate consideration for the right of first refusal thus does not, as a matter of law, render the agreement void for lack of consideration.
Another rationale advanced by the trial court in support of the summary judgment against Wilson on his breach-of-contract claim against Jones is the failure of the parties to consummate the sale of Lot 2-B within the 90-day period set forth in the agreement or any potential extension thereof. As we have noted, the agreement between Wilson and Jones provided that "[t]his sale shall be closed on or before 90 days" after the date Jones signed it, i.e., August 28, 2003, or alternatively as much as 30 days later had Wilson paid an additional $2,000 to Jones (emphasis added); it further provided that time was of the essence of the contract. However, Lot 2-B was not conveyed until January 15, 2004, after the expiration of the contractual 90-day closing period (or a 30-day extension thereof).
Those facts, however, do not compel a conclusion that the entire contract automatically terminated and was of no force and effect after the 90-day closing period had expired. It is well settled under Alabama law that "[e]ven where time is expressly declared to be of the essence of the contract, such [a] provision may be waived by the conduct of the party for whose benefit the stipulation is made." Thompson v. Thompson, 257 Ala. 10, 13, 57 So.2d 393, 395 (1952); see also Nelson v. Vick, 462 So.2d 935, 937-38 (Ala.Civ. App.1984) (recognizing rule in affirming trial court's judgment in which sellers were found to have waived strict compliance with land-sale contract provisions regarding time for buyer's payment of purchase-money installments). In this case, Jones conveyed Lot 2-B, to a corporation under Wilson's control, less than two months after the expiration of the period *855 in which the parties to the contract had originally intended that conveyance to take place. Moreover, when the right of first refusal as to Lot 2-A was brought to Jones's attention more than a year after Lot 2-B had been conveyed, Jones sent Wilson a letter that, by its terms, was intended as a "notice of [that] right of first refusal" and that requested Wilson to exercise that right in accordance with the terms of the contract. As this court noted in Massey v. Jackson, 726 So.2d 656, 659 (Ala.Civ.App.1998), "[w]hether a party has waived strict compliance with the terms of a contract is a question of fact." Viewing the record evidence in a light most favorable to Wilson, as we must, we conclude that there is substantial evidence from which a jury could properly conclude that Jones waived the closing-deadline and time-is-of-essence provisions of the August 28, 2003, contract that had benefited Jones alone or both Jones and Wilson mutually.
The trial court also concluded, and Jones and Starr also contend, that Wilson had no standing to assert any right of first refusal because Jones conveyed Lot 2-B to Affordable rather than Wilson. However, the August 28, 2003, contract contains no provision that would have expressly required Jones to deed the property only to Wilson. Generally, when a party is entitled to a conveyance of real property under a written instrument, but directs the titleholder of that property to convey the property to a third person, the titleholder, by doing as directed, has fully performed under the instrument. See Burt v. Henry, 10 Ala. 874, 883 (1846); see also Atkinson v. St. Matthias Church, 217 Mich. 204, 209, 185 N.W. 713, 714 (1921) (land contract between purchaser and vendor "did not stand in the way of" purchaser's consenting that title be conveyed to third party); Mallin v. Good, 93 Ill.App.3d 843, 848, 49 Ill.Dec. 168, 172, 417 N.E.2d 858, 862 (1981) (purchasers of real property remained in contractual privity with sellers even after property was deeded at purchasers' request to a third-party nominee). That Affordable was deeded Lot 2-B does not, ipso facto, render it and not Wilson the proper party to enforce a breach of the August 28, 2003, agreement between Wilson and Jones.
Jones and Starr contend, however, that the contract for purchase, including its right of first refusal, was destroyed by virtue of the doctrine of merger by deed. Properly understood, the merger doctrine provides that in the ordinary case, "in the absence of fraud or mistake, when a contract to convey has been consummated by execution and delivery of a deed, the preliminary contract becomes functus officio, and the deed becomes the sole memorial of the agreement, and upon it the rights of the parties rest." Ridley v. Moyer, 230 Ala. 517, 520, 161 So. 526, 528 (1935). However, it is well settled that "there are cases in which certain preliminary stipulations, such as are independent and collateral and not such preliminary agreement as would be merged in the conveyance, survive the deed and confer independent causes of action." Id. (emphasis added); Rickenbaugh v. Asbury, 28 Ala. App. 375, 380, 185 So. 181, 184 (1938) (execution, delivery, and acceptance of deed did not destroy the obligation of the purchaser under the contract of sale to supply water to the seller for domestic purposes). A preemptive right of first refusal such as appears in the August 28, 2003, agreement, which is triggered when Jones "shall receive from a third party at any time" an offer to purchase Lot 2-A and agree to sell Lot 2-A, is properly viewed as an independent and collateral agreement that survives the deed to Lot 2-B. See Stoneburner v. Fletcher, 408 *856 N.E.2d 545, 549 (Ind.Ct.App.1980) (preemptive right to purchase adjoining lot survived conveyance of principal property); Landa v. Century 21 Simmons & Co., 237 Va. 374, 384, 377 S.E.2d 416, 421 (1989) (right of first refusal as to particular tract in contract to convey other tract "remained executory and survived the deed"); see also Winberg v. Cimfel, 248 Neb. 71, 79, 532 N.W.2d 35, 40-41 (1995).
Because substantial evidence would warrant a conclusion that Jones breached a valid right of first refusal held by Wilson as to Lot 2-A, we must conclude that the trial court erred in entering its summary judgment as to Wilson's breach-of-contract claim against Jones. In so concluding, we emphasize that by no means do we hold that Wilson must necessarily prevail at trial on his claim, only that he is entitled to a trial.
We reach a different result, however, with respect to Wilson's intentional-interference claim against Starr. That claim, as Wilson notes in his brief, requires proof of five elements:
"1) the existence of a contract or business relation; 2) the defendant's knowledge of the contract or business relation; 3) intentional interference by the defendant with the contract or business relation; 4) the absence of justification for the defendant's interference; and 5) damage to the plaintiff as a result of the interference."
Soap Co. v. Ecolab, Inc., 646 So.2d 1366, 1371 (Ala.1994). The second of those elements amounts to a significant barrier to Wilson's claim against Starr in this case; no evidence has been adduced indicating that, at the time that Jones deeded Lot 2-A to Starr, Starr had any knowledge of Wilson's right of first refusal. In perhaps a tacit acknowledgment of that lack of knowledge, Wilson contends on appeal that Starr's conduct after becoming aware of the right of first refusal recording the deed to Lot 2-A and failing to adhere to the alleged oral agreement will support an intentional-interference claim.
Wilson's contentions are unsound. The sole "damage" Wilson claims in his appellate brief to have flowed from Starr's actions is limited to an infringement of Wilson's right to purchase and hold Lot 2-A in accordance with the first-refusal provisions of the August 28, 2003, contract. However, that damage was, as a matter of law, incurred when Jones executed and delivered the deed to Lot 2-A in exchange for Starr's payment of the agreed purchase price so as to give Starr a colorable ownership interest in Lot 2-A, not when Starr gave notice via recordation of the existence of that interest. It is well settled that Alabama's recording statute "does not render void an unrecorded deed except for the benefit of those particular classes of persons named in the statute" (Murphree v. Smith, 291 Ala. 20, 24, 277 So.2d 327, 329 (1973)), i.e., "purchasers for a valuable consideration, mortgagees and judgment creditors without notice." Ala. Code 1975, § 35-4-90(a). Because there is no issue in this case concerning any mortgagees or judgment creditors of Jones and no indication that any other person has purchased Lot 2-A from Jones after Starr, Starr's recording of the deed to Lot 2-A gave the conveyance no more validity than it had before its recordation and had no legal effect upon Wilson's interests. Similarly, because oral contracts to convey real property are void unless all or part of the purchase price has been paid by, and possession has been transferred to, the purchaser (see Ala.Code 1975, § 8-9-2(5)), Starr's refusal to be bound by any executory oral agreement to convey Lot 2-A that may have been reached by his and Wilson's attorneys amounts to nothing more than an exercise of Starr's legal rights to *857 deem the agreement void rather than an actionable interference in the contractual relations of Wilson and Jones. See Tom's Foods, Inc. v. Carn, 896 So.2d 443, 455 (Ala.2004). We thus conclude that the summary judgment as to Wilson's claim against Starr was correctly entered.
Having determined that the trial court correctly entered the summary judgment as to Wilson's claims against Starr, we must now consider Starr's appeal from the summary judgment as to his claims against Wilson asserted in his counterclaim. As we have noted, the trial court determined that those claims, which consisted of an ALAA claim, a claim of intentional interference with business or contractual relations, and a claim of slander of title, were to be summarily adjudicated as being "moot." Although that court subsequently purported to enter an order vacating its judgment as to Starr's claims, it did so outside its jurisdiction.
Starr correctly notes that a "moot" case is one that leaves nothing for the court to decide, i.e., "`"a case which seeks to determine an abstract question which does not rest on existing facts or rights, or involve conflicting rights so far as plaintiff is concerned."'" Chapman v. Gooden, 974 So.2d 972, 983 (Ala.2007) (quoting Case v. Alabama State Bar, 939 So.2d 881, 884 (Ala.2006), quoting in turn American Fed'n of State, County & Mun. Employees v. Dawkins, 268 Ala. 13, 18, 104 So.2d 827, 830-31 (1958)). In this case, Starr's ALAA claim against Wilson might have been rendered moot had the trial court, or this court on review, explicitly or implicitly determined that Wilson's claims against Starr in this case were brought without substantial justification in fact or law, thereby failing the condition set forth in the ALAA to affix liability upon a litigant (see generally Ala.Code 1975, §§ 12-19-271 and 12-19-272). Because the issue whether Wilson, without justification, brought his claims against Starr in this action remains undecided, however, there remains a "conflict" as to Starr's and Wilson's "existing rights" to be resolved by the trial court. Similarly, the trial court's determination that Starr is entitled to a judgment as a matter of law as to Wilson's claim does not prevent Starr from prevailing on his slander-of-title and intentional-interference claims against Wilson; those claims are in no way contingent upon the validity of any other claim asserted in the case. We thus agree with Starr that the trial court erred in entering the summary judgment as to Starr's claims against Wilson.
For the foregoing reasons, in case no. 2070731 (Wilson's appeal), we affirm the summary judgment as to the intentional-interference claim against Starr, but we reverse that judgment as to the breach-of-contract claim against Jones. In case no. 2070281, we reverse the trial court's summary judgment, entered on the ground of mootness, as to Starr's claims against Wilson; Wilson's motion to strike and dismiss is denied. The cause is remanded for further proceedings consistent with this opinion.
2070281 REVERSED AND REMANDED.
2070731 AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.
NOTES
[1] Although Rule 13(f), Ala. R. Civ. P., appears to require leave of court to assert a counterclaim omitted from a defendant's answer, Rule 15(a), Ala. R. Civ. P., permits amendment of any pleading as of right on or before the 42d day before the first setting of a case for trial; because the case had not been set for a trial at the time Starr filed his counterclaim, Rule 15(a) may properly be said to prevail over Rule 13(f) here so as to render the counterclaim proper without leave of court. See 1 Champ Lyons, Jr., & Ally W. Howell, Alabama Rules of Civil Procedure Annotated § 15.3 (2004).
[2] `right of first refusal' is a conditional option empowering its holder with a preferential right to purchase a property on the same terms offered by or to a bona fide purchaser. It is known more technically as a `preemptive option,' as a `right of preemption,' or simply as a `preemption' and is a right to buy before or ahead of others."
77 Am.Jur.2d Vendor & Purchaser § 34 (2006) (footnotes omitted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612062/ | 239 Miss. 420 (1960)
123 So.2d 546
GASTON
v.
STATE.
No. 41617.
Supreme Court of Mississippi.
October 17, 1960.
*422 Jesse P. Stennis, Macon, for appellant.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
*423 ETHRIDGE, J.
Appellant, Ella Gaston, was convicted in the Circuit Court of Noxubee County of a misdemeanor, attempting to obstruct an officer in the performance of his duties. She had previously been convicted in a justice of the peace court, and had appealed. The pertinent statute, Miss. Code 1942, Rec., Sec. 2294, provides: "If any person or persons by threats or force, abuse or otherwise, attempt to intimidate or impede a judge, justice of the peace, juror, witness, prosecuting or defense attorneys or any officer in the discharge of his duties or to obstruct or impede the administration of justice in any court, he shall, upon conviction, be punished by imprisonment in the county jail, not less than one month, nor more than six months and by fine not exceeding three hundred dollars."
Appellant and her husband, who are Negroes, live in Hattiesburg, Mississippi. On February 22, 1959 they and six of their grandchildren drove about one hundred and forty miles to Shuqualak to visit relatives. The incident for which appellant was convicted occurred that afternoon, as she and her husband were preparing to return to Hattiesburg. Nelse is appellant's husband, and the affidavit charged her with attempting to intimidate or impede the sheriff in arresting him for the crime of driving a car while under the influence of intoxicating liquor. E.W. Farrar, sheriff at the time, was one of the principal witnesses for the state. On direct examination he was asked where he first saw Nelse Gaston *424 that day. The sheriff replied: "We were investigating and trying to find a Negro by the name of Frank Ed Hill, that had committed an assault upon the marshal down there (Shuqualak)." Appellant's counsel objected, on the ground the statement was irrelevant and inflammatory. The objection was overruled.
(Hn 1) This was reversible error. What happened in Shuqualak the night before, when appellant and her husband were in Hattiesburg, was wholly irrelevant to an issue pertaining to her guilt or innocence. It unnecessarily raised in the trial the element of racial prejudice, which has no place in the administration of justice. Hardaway v. State, 99 Miss. 223, 54 So. 833 (1911); Reed v. State, 232 Miss. 432, 99 So.2d 455 (1958). The jury had the duty and right to evaluate the testimony independently of that emotional factor being injected into the case by the state's counsel and witnesses. Moreover, two other events during the trial presented this same factor to the jury. Deputy Sheriff Hutcherson testified to the same effect, defendant's objection was sustained, but the court overruled the motion of appellant's counsel to direct the jury to disregard it. In addition, the opening argument of state's counsel to the jury told it the same thing, and also that defendant's husband was related to the party for whom the officers were searching, although there is no evidence to that effect. The trial court sustained an objection to the opening argument, and instructed the jury to disregard the remarks. Subsequently, the sheriff testified as described above, and the court overruled appellant's objection.
(Hn 2) Deputy Sheriff Hutcherson testified further that the officers searched the car occupied by appellant, and belonging to her husband, and found a .22 caliber rifle under the seat. Objection of appellant's counsel was overruled, although the trial court stated it had been "very liberal in letting in a lot of incompetent proof." Appellant was being tried on a charge of *425 attempting to impede or intimidate the sheriff in arresting her husband. There was no evidence that she or her husband were attempting to remove or use the rifle, or that she owned it. The fact that the officers found it in the husband's car was wholly irrelevant to the issues made in the affidavit, and had a tendency to further unduly prejudice the jury. It was error to overrule appellant's objection to that testimony.
After omitting the formal parts, the affidavit charges that Ella Gaston "did wilfully and unlawfully attempt to impede and intimidate Emmett W. Farrar, the duly qualified and acting Sheriff of Noxubee County, Mississippi, in the discharge of the duty of said Emmett W. Farrar as such Sheriff, by approaching said Sheriff with a womans handbag containing a pistol and opening said bag and stating to the said Sheriff `you can not arrest my husband', when he the said Sheriff was legally arresting one, Nelse Gaston, husband of said Ella Gaston for the crime of driving an automobile while under the influence of intoxicating liquor against the peace and dignity of the State of Mississippi."
(Hn 3) The offense defined by Code Sec. 2294 requires the state to show (1) an attempt to intimidate or impede an officer in the discharge of his duties, (2) by threats or force, abuse or otherwise. (Hn 4) Defendant's demurrer to the sufficiency of the affidavit was overruled. This was error. The charge is an attempt to impede and intimidate the sheriff, by approaching him with a pistol in defendant's handbag, opening it, and saying you cannot arrest my husband. This does not constitute threats or force or abuse. It does not charge or indicate a present intent to attempt to impede the sheriff. (Hn 5) The phrase "or otherwise" refers to acts or stratagem of the same general nature as the preceding "threats, force or abuse". An attempt, represented by an overt act, is not sufficiently charged under the statute. Wilson v. State, 80 Miss. 388, 31 So. 787 (1902); 39 Am. Jur., Obstructing Justice, Secs. 8-11; Anno., 48 A.L.R. 746 *426 (1927). (Hn 6) Merely remonstrating with an officer in behalf of another, or criticizing an officer while he is performing his duty, does not amount to an attempt to intimidate or impede him. 3 Anderson, Wharton's Criminal Law and Procedure (1957), Sec. 284. On the key issue in this case, the affidavit fails to charge that appellant approached the sheriff, stating he could not arrest her husband, because he had done nothing, opened her bag containing a pistol and reached in it. The insufficient charge of an overt act rendered the affidavit demurrable. Also, there is a variance between the affidavit and the proof: The officers arrested appellant's husband for reckless driving, not driving while under the influence, as the affidavit charges.
(Hn 7) Finally, there is such a material disparity between the testimony of the state's principal witnesses in the justice of the peace court, at which a transcript of their testimony was also taken, and that in the circuit court, that we are of the opinion that justice would be better promoted by a new trial of this case before another jury. This is particularly so in view of the prejudicial testimony, described above, which was admitted in evidence. Cole v. State, 217 Miss. 779, 65 So.2d 262 (1953); Jefferson v. State, 52 So.2d 925 (Miss. 1951); Dickerson v. State, 54 So.2d 925 (Miss. 1951). There is no direct proof that appellant intended to use the pistol that was in her handbag, and, in view of the disparity in the proof on the two trials on the key issue of whether she even opened the handbag, some of the judges believe there is not sufficient evidence to sustain a conviction in a criminal case. However, since the case will have to be reversed for the above stated reasons, it is not necessary for us to decide that issue at this time.
Reversed and remanded.
McGehee, C.J., and Kyle, Arrington and Gillespie, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612065/ | 123 So.2d 521 (1960)
Chester F. OWENS
v.
Woodson R. OGLESBY.
No. 21425.
Court of Appeal of Louisiana, Orleans.
June 20, 1960.
Rehearing Denied October 24, 1960.
*522 A. J. Fortier, Jr., New Orleans, and Roland R. Selenberg, Metairie, for defendant and appellant.
Owens, Levy & Voelker, New Orleans, for plaintiff and appellee.
McBRIDE, Judge.
This is a suit brought by a landlord against his tenant for the aggregate amount of rent due for the unexpired term of a written lease of an unfurnished apartment in New Orleans, coupled with a writ of provisional seizure under which the property and effects which the lessee had in the leased premises but which he removed therefrom were seized and taken into possession by the Civil Sheriff.
After a trial of the case in the court below, judgment was rendered in favor of the plaintiff for the amount prayed for and the writ of provisional seizure was maintained with recognition of plaintiff's lessor's lien and privilege on the property and effects seized thereunder. Defendant has appealed.
Appellant tenders two defenses to plaintiff's demands: (1) that plaintiff's agent gave permission to him to sublet the premises and said agent even found a subtenant and actually negotiated a sublease between appellant and said party and, therefore, defendant was within his rights in vacating, and (2) if there was no sublease plaintiff, by his actions, deprived appellant of any right he may have had to sublet the property and thus plaintiff violated the terms of the lease.
The lease covered a one-year period beginning January 15, 1957, and stipulated for a monthly rental of $225 and contained the stipulations:
"* * * should the Lessee begin to remove personal property or goods to the prejudice of the Lessor's lien, then the rent for the unexpired term, with Attorney's fees, shall at once become due and exigible, * * *."
In May of 1957 the defendant-lessee accepted employment outside of New Orleans, and in a telephonic conversation he informed plaintiff he desired to leave New Orleans but before doing so would attempt to sublease the premises to some person "agreeable" to the lessor. The lessor remained silent and neither directly nor indirectly gave consent to any sublease.
Shortly thereafter the tenant employed the same real estate agent who had represented plaintiff in negotiating the lease between plaintiff and defendant to find a subtenant for the premises, and on June 21, 1957, the agent found a prospective subtenant and ultimately had defendant and said third party sign an agreement to sublease.
On June 23, 1957, the landlord was notified by defendant that the agent had sublet the apartment; whereupon the landlord, through his attorney, sent a letter to defendant in part stating as follows:
"Please be advised that no sublease will be permitted, and that any attempt to do so will immediately result in your being involved in a serious and costly matter."
The tenant then proceeded to remove his furniture and effects from the leased premises, and this suit and the accompanying writ of provisional seizure ensued.
*523 The lease contract between the parties contains the following paragraph:
"Lessee is not permitted to rent or sub-let or grant use or possession of the premises to any other party without the written consent of the Lessor, and then only in accordance with the terms of this lease. Should Lessee desire to sub-let and wish to post any rent signs, permission must be obtained in writing through Lessor or Agent and such sublease shall be handled by Lessor's Agent at expense of the herein Lessee." (Italics ours.)
The landlord relies on the first clause in the quoted paragraph and contends that under the terms thereof the tenant had no right to attempt to sublease without his written consent, and that in quitting the premises in the manner in which he did, the tenant became liable for the full amount of the rent due for the unexpired lease term.
The defendant counters with the contention that under the terms of the italicized clause of the quoted paragraph the agent of the landlord had the right to consent to his subletting the premises, and whereas plaintiff's agent negotiated the sublease, she in effect consented thereto and her consent and the sublease made by her binds the plaintiff, and defendant had a right to remove his effects from the leased apartment.
The statutory law with reference to the right of the tenant to sublease the premises is to be found in LSA-C.C. art. 2725, which reads as follows:
"The lessee has the right to underlease, or even to cede his lease to another person, unless this power has been expressly interdicted.
"The interdiction may be for the whole, or for a part; and this clause is always construed strictly."
The Supreme Court in interpreting the concluding clause of the codal article has held that the prohibition to sublease is always construed strictly against the lessee. Cordeviolle v. Redon, 4 La.Ann. 40; Henderson v. A. Meyers & Bro., 45 La.Ann. 791, 13 So. 191. Moreover the covenant in the lease against subletting is for the benefit of the landlord because it is regarded as for his interest to determine who shall be a tenant of his property. Montecon v. Faures, 3 La.Ann. 43; Marcuse v. Shapiro, 1 La.App. 135; Bailey v. Allen E. Walker & Co., 53 App.D.C. 307, 290 F. 282, 285.
Clearly then, under the terms of the lease which prohibited the tenant from subleasing without the consent of the landlord, the agreement between the tenant and the third person would not be binding on the plaintiff unless it can be held that pursuant to the provisions of the italicized portion of the above-quoted paragraph the agent had authority to consent for the account of the landlord to the subleasing of the premises. Having carefully read the clause relied on by defendant, our opinion is such clause does not endow the landlord's agent with any right, power, or authority to grant permission to the tenant to sublease the premises. All it means is that should the lessee desire to sublet and to that end post rental signs on the property, permission to post the signs must be obtained through the lessor, or the agent, and any sublease shall be handled by the agent at the expense of the tenant. The paragraph cannot be interpreted as contended for by defendant.
The defendant also argues that when the landlord sent the letter to him advising that no sublease will be permitted and that any attempt on the part of the tenant to sublet the premises would result in the tenant being involved in a serious and costly matter, this had the legal effect of dissolving the lease for the reason that the landlord arbitrarily deprived the tenant of ever seeking a subtenant, even one who might be satisfactory to the landlord.
We cannot see any merit in this contention at all. It is true the landlord assumed *524 an arbitrary stand in writing the letter to the tenant, but he was within his rights in doing so in view of the provision of the lease which provides no sublease would be permitted without the written consent of the owner. No one could question the landlord's right to refuse permission to sublease upon each prospective subtenant being presented, and we think that all the landlord intended when he so notified the tenant was to let him know that he would be spared time and expense if he did not seek a subtenant for the reason the landlord wanted no subtenant in his premises.
We think that the instant case is somewhat analogous to Woodman v. Riviere, 159 La. 291, 105 So. 347, 348, wherein the lease contained a provision prohibiting its transfer or the execution of a sublease in whole or in part without the written consent of Fellman, the agent, and that any such transfer or sublease shall be prepared in his office. Plaintiff accepted the tenants' offer to sublease but without the consent of the agent who never at any time directly informed or notified the tenants he would approve the sublease. The Court said:
"It is our conclusion that the mere acceptance within 10 days by plaintiff of defendants' offer was not sufficient to entitle her to the sublease. Under the agreement of the parties, something more was to be done. It was necessary that a new and separate document should be prepared by Mr. Fellman, the agent of the original lessor, and that his approval should be appended to said document. Both parties, in so far as their right to sublease was concerned, were dependent upon the will of the owner or his agent. Inasmuch as neither the owner nor his agent gave his approval to the sublease within the period during which the option existed, we do not find any basis for plaintiff's complaint that defendants failed to carry out their offer."
In the instant case the consent of the owner was necessary and that never having been given, the sublease between defendant and the third party was ineffective.
For these reasons, the judgment appealed from is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612084/ | 123 So.2d 277 (1960)
Carrie Louise WINGERT, a Widow, Appellant,
v.
John F. PRINCE and Anna Belle Prince, Appellees.
No. 1657.
District Court of Appeal of Florida. Second District.
August 10, 1960.
Rehearing Denied October 3, 1960.
Yergey & Yergey, Orlando, for appellant.
James M. Russ, Orlando, for appellees.
*278 GERMANY, JOHN, Associate Judge.
On June 5, 1949, John F. Prince entered into a written lease with Floyd M. Wingert wherein Wingert leased to Prince a portion of the land involved in this proceeding and condemned by the State Road Department. This lease was for a term of one year with an option to renew for an additional year. It provided, among other matters, that Prince would erect a frame building and all the necessary equipment and installations at his own expense and that Prince had the right to remove all buildings and equipment at any time or at the termination of the contract.
Wingert died and his widow, Carrie Louise Wingert, succeeded to the ownership of the premises in question, subject to the terms of the written lease. After the term of the written lease had expired the Princes remained in possession, paying rent on a month to month basis. This month to month tenancy continued from the time of the expiration of the written lease to June 15, 1959. On May 8, 1959, the State Road Department filed its petition seeking to condemn certain lands of which the demised premises was a part or parcel. The State Road Department sought to condemn "* * * the fee simple, absolute title" of the property in question free and clear of all rights, titles, claims or interest. The Princes were made defendant to this suit.
On June 3, 1959, the Princes filed their answer, alleging they had an interest in the land sought to be condemned, that they owned all the buildings and improvements located on the parcel in question, and that they had a leasehold interest which leasehold interest would expire in 1960, under the terms of which they claimed they had the right to remove the buildings and improvements located on the premises.
A trial was had in September of 1959 and the Jury returned a verdict fixing the value of the entire Wingert tract taken at $81,000.
On September 4, 1959, the Princes filed a petition seeking a determination of their rights in respect to compensation as owners of certain property located on the parcel taken and an apportionment of the compensation awarded by the Jury to Mrs. Wingert as the fee owner of the land taken.
Later an amended petition was filed which, in effect, re-alleged that the building upon the property taken belonged to the Princes and that the building was upon the real estate at the termination of the lease by the taking, that the Jury returned a verdict awarding Mrs. Wingert compensation for the taking of the land which included the buildings, fixtures, furnishings and improvements owed by the Princes.
An answer was filed by Mrs. Wingert to the effect that if the Princes had the right to remove the improvements, they failed to do so and Mrs. Wingert was under no obligation to protect the interest of the Princes in the property and denied that the Jury award included the value of the improvements. The parties, without objection, proceeded under the provisions of F.S. § 73.12, F.S.A.
This condemnation proceeding was instituted in May, 1959, at which time 73.12 provided, "* * * The court upon appropriate petition shall determine the rights of any mortgagees, judgment creditors and lienholders in respect to the compensation awarded to each owner by the verdict." The Legislature of 1959 amended Section 73.12 to read as follows:
"The compensation awarded by the jury shall be determined as a whole, irrespective of the interest of the various parties in such parcel. The court upon appropriate petition shall determine the rights of any owners, lessees, mortgagees, judgment creditors and lienholders in respect to the compensation awarded to each owner by the verdict, and the method of apportionment among interested parties together with the disposition of any other matters arising from the taking."
It would seem that the question relating to the apportionment of the jury *279 award should be made before the court without a jury after the main proceeding. In any event, both parties agreed to the submission of the question to the court without a jury and the appellant is not now in a position to complain of the lack of a jury trial.
The Princes remained in possession after June, 1951, the term provided for in the written lease, paying rent from month to month to and including June, 1959. The trial judge construed this to be a tenancy from month to month while the attorneys for the appellant and appellees are both agreed that the Princes were tenants at sufferance. As no award was made for any leasehold interest, it becomes moot for this court to determine the question of tenancy.
The judge awarded compensation to the Princes for the value of the buildings in the sum of $2,993.68, and while there is evidence in the record to the effect that the buildings were of little, if any, value, there is also evidence in the record to support the finding and award made by the trial judge.
It is the contention of the appellant that the appellees were not entitled to any compensation for the value of the improvements on the premises. It is the further contention of the appellant that while the appellees may have had the right to remove the buildings and equipment, "at any time or at the termination of their contract," such right terminated when the lease expired in June of 1951. The general rule seems to be that the tenancy arising from the tenants holding over with the consent of the landlord is presumed to be upon the same covenants and terms as the original lease so far as they are applicable to the new tenancy. See 32 Am.Jur., Landlord and Tenants, Section 948; see also Rosamond v. Mann, Fla. 1955, 80 So.2d 317, 318, 49 A.L.R.2d 476.
"Statute providing that a holdover tenancy after written lease but without a written renewal shall be a tenancy at sufferance, but if such holding over be continued with written consent of lessor then tenancy is a tenancy at will, does not release either landlord or tenants from implied obligation that holding over is subject to all covenants and terms of original lease applicable to new situation."
The decree of the lower court is affirmed.
KANNER, Acting Chief Judge, and SHANNON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612085/ | 11 So.3d 60 (2009)
STATE of Louisiana In the Interest of W.B.
No. 2008-CA-1458.
Court of Appeal of Louisiana, Fourth Circuit.
April 22, 2009.
*61 Hector A. Linares, Juvenile Regional Services, New Orleans, LA, for Appellant, W.B.
Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
(Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME).
ROLAND L. BELSOME, Judge.
In juvenile court, W.B. was found guilty of La. R.S. 14:81, relative to indecent behavior with a juvenile and La. R.S. 14:62.2, relative to simple burglary of an inhabited dwelling. W.B. filed a motion to vacate adjudication which was denied. W.B. appeals his adjudication based on the insufficiency of the evidence.
W.B.'s sole assignment of error on appeal is that the State failed to meet its burden of proof at trial to sustain an adjudication as to the charges. The State's burden of proof in a juvenile delinquency proceeding, just as in a criminal proceeding against an adult, is to prove every element of the offense alleged beyond a reasonable doubt. La. Ch.C. art. 883. As a court of review, we grant great deference to the juvenile court's actual finding, credibility determination and assessment of witness testimony. State in the Interest of J.N., XXXX-XXXX, p. 8 (La.App. 4 Cir.), 984 So.2d 910 at 915.
At the proceeding of this matter, the juvenile court judge heard the testimony of Officer Patrick Hartman, Joyce Nash and her daughter, Marneisha Nash. The facts elicited at trial was that on May 12, 2008, between approximately 3:00 and 4:00 p.m., W.B. appeared at Marneisha's bedroom window asking for Marneisha's sixteen year old sister, who also shared the bedroom. Marneisha, thirteen at the time, informed W.B. that her sister was not home. She heard her mother, Joyce Nash, calling her and exited the room. She further claimed that at no time did she invite W.B. inside. According to her testimony she helped her mother and then *62 returned to her bedroom where she saw W.B. sitting on the sofa in the bedroom with "nothing" on.
Shortly, thereafter her mother approached and also witnessed W.B. sitting on the sofa. Ms. Nash stated that she walked over to Marneisha because she was just standing and staring in her bedroom, that's when she claims she saw W.B. "sitting on my couch with a sheet on and his underwear was on the floor and he didn't have no shirt on." At that point, the mother said she demanded that he leave her house, but he did not move until she got her cell phone to call the police. Ms. Nash testified that prior to that day she had told W.B. that she did not want him knocking at the door or window of her house looking for her daughter. W.B. was arrested the next day.
In State v. Brown, XXXX-XXXX (La.4/12/05), 907 So.2d 1, the Louisiana Supreme Court reiterated the standard for determining a claim of insufficiency of evidence. The appellate courts must follow the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Id. Thus, this Court must view the evidence in the light most favorable to the prosecution, and determine if it was sufficient to convince a rational trier of fact that all of the elements of the crime were proven beyond a reasonable doubt. Id.
La. R.S. 14:81 states in pertinent part:
The commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person: (1) any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons. La.R.S. 14:81(A) (West 2008).
The juvenile court judge found that W.B.'s disrobing in Marneisha's bedroom and waiting for her to return to the room rose to the level of a lewd[1] or lascivious[2] act in the presence of a child whose age was established to be in excess of two years younger than that of W.B.'s.[3] Based on the fact that no evidence was presented to refute the testimony given at trial, we cannot find that the juvenile court judge was clearly wrong in his finding that W.B. was guilty of indecent behavior with a juvenile.
As for the charge of simple burglary of an inhabited dwelling, La. R.S. 14:62.2 states:
The unauthorized entry of any inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than as set forth in Article 60.
On appeal W.B. argues that because there was insufficient evidence of the indecent behavior with a juvenile, the underlying felony does not exist to support the charge of simple burglary of an inhabited dwelling. However, this Court's affirmation of the juvenile court judge's determination of guilt as to the indecent behavior charge causes that argument to fail. Additionally, the uncontested testimony provided by Ms. Nash and Marneisha confirmed that *63 W.B.'s entrance into the bedroom was unauthorized.
Accordingly, the juvenile court's adjudication is hereby affirmed.
AFFIRMED.
NOTES
[1] Lewd is defined as obscene or indecent; tending to moral impurity or wantonness. Black's Law Dictionary 927 (8th ed.2004)
[2] Lascivious is defined as tending top excite lust; lewd; indecent; obscene. Black's Law Dictionary 897 (8th ed.2004).
[3] The record establishes that W.B.'s birth date is July 30, 1992 and Marneisha's birth date is September 22, 1994. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611417/ | 533 So.2d 206 (1988)
James Wayne ROPER and Ila Maxine Roper
v.
ASSOCIATES FINANCIAL SERVICES OF ALABAMA, INC.
87-11.
Supreme Court of Alabama.
September 23, 1988.
*207 Jerry O. Lorant, Birmingham, for appellants.
William B. Hairston, Jr., and William B. Hairston III of Engel, Hairston & Johanson, Birmingham, for appellee.
HOUSTON, Justice.
James Wayne Roper and Ila Maxine Roper appeal from a summary judgment in favor of Associates Financial Services Company of Alabama, Inc. ("Associates").
On May 7, 1975, the Ropers executed an agreement with Associates entitled "Open End Credit PlanRevolving Loan Agreement," which provided the Ropers with $3,000 of credit payable in 60 months at an 18% annual percentage rate. The loan agreement obligated Associates to advance money in amounts of at least $100 from time to time at the Ropers' request, provided that the advance would not cause the aggregate total unpaid principal balance to exceed the amount of credit. The Ropers secured the loan by a mortgage on their home. On July 13, 1977, the loan agreement was amended to increase the maximum amount of credit to $6,500. On four occasionsin 1979, 1980, 1982, and 1983 the Ropers entered into loan agreements with Associates, refinancing the original $6,500 loan. Under the 1983 loan agreement, Associates loaned the Ropers $14,250.21 payable over a period of 10 years. This loan agreement, signed by the Ropers, contained a "call provision," giving Associates the option to call the note due and payable three years after the date on which the loan was entered into and thereafter annually on each anniversary date of the loan.
On April 18, 1984, the Ropers filed a complaint against Associates, alleging that Associates had charged a usurious rate of interest in the 1975 loan in violation of the Mini-Code and that it had fraudulently induced them to enter into the 1983 loan. Specifically, the Ropers raised two arguments for our consideration on appeal. First, they argue that the 1975 loan was not a bona fide open-end loan, but instead a closed-end loan with a maximum allowable interest rate of 8%, § 5-19-3(a), Code 1975, and that, therefore, the 18% rate charged by Associates was usurious, rendering the 1975 loan and all four subsequent loans void. Second, they contend that Associates defrauded them by misrepresenting the 1983 loan as a 10-year loan and by concealing the call provision. The trial court granted Associates' motion for summary judgment, and the Ropers appeal.
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Fountain *208 v. Phillips, 404 So.2d 614 (Ala.1981); Autrey v. Blue Cross & Blue Shield of Alabama, 481 So.2d 345 (Ala.1985).
As to the Ropers' usury claim, we affirm under the authority of Smith v. Citicorp Person-to-Person Financial Centers, Inc., 477 So.2d 308 (Ala.1985), which is closely analogous to the instant case. Section 5-19-3(c), Code 1975, permits a lender under an open-end credit plan to charge 1½% per month or, in other words, 18% per annum, on the unpaid balance outstanding from time to time. Section 5-19-1(5), defines an open-end credit plan as "a plan prescribing the terms of credit transactions which may be made thereunder from time to time and under the terms of which a finance charge may be charged from time to time on an outstanding unpaid balance." In Smith, we examined the four corners of a loan agreement, that the borrower, Smith, had challenged as a fraudulently induced agreement and one unenforceable due to an allegedly usurious interest rate, and concluded that it was "an open-end loan on its face," and, therefore, that there was no genuine issue of material fact for trial. Moreover, because Smith failed to adduce sufficient evidence of fraud, we refused to bring the loan transaction within the fraud exception to the parol evidence rule. Id. at 310-12. See Rule 56(e), A.R.Civ.P. In the instant case, the loan agreement is also a prima facie open-end credit plan. In compliance with § 5-19-1, the loan agreement clearly prescribed the terms of future advances and provided for a finance charge to be computed on the outstanding unpaid balance. Therefore, "we find that there is no material issue of fact created by the clear terms of the contract as to the nature of the loan." Id. at 311.
We also note that the evidence produced by the Ropers, which contradicts the express terms of the loan agreement, is inadmissible. In their affidavit, the Ropers stated:
"No one ever said anything about `open-end' credit or revolving credit or credit line or open-end credit plan. We never had anything except a single loan."
The parol evidence rule bars the admission of this evidence, Smith at 311, and inadmissible evidence cannot serve as a basis for creating a jury question. Rule 56(e), A.R. Civ.P.
As to the misrepresentation claim, we affirm under the authority of Syx v. Midfield Volkswagen, Inc., 518 So.2d 94 (Ala.1987), and First National Bank of Mobile v. Horner, 494 So.2d 419 (Ala. 1986). If the circumstances are such that a reasonably prudent person who exercised ordinary care would have discovered the facts, the Ropers should not be entitled to prevail on their fraud claim. Horner, supra; Syx, supra. To support their fraud claim, the Ropers rely on their affidavit, which in pertinent part states:
"[I]n 1983, Associates made another loan, got paid $11,000 back from us, paying off all those loans and got us to sign what they said was a 10-year loan. They never said anything to us about the fact that they could make us pay off the loan in three years. It was supposed to be a 10-year loan, and we never heard or read anything about any right by Associates to call the loan in. We always have signed the different documents after Associates represented to us what the loan was, that they didn't read to us or let us read. They would always say that this was what the loan was and what we told you and would get us to sign or initial things, but they never said anything about 36 months or 3 years. No one has ever told us we just had a three-year loan instead of a 10-year loan and all of these loans commenced with that 1975 loan."
However, the "Call Option Disclosure Statement," which both Ropers signed, unambiguously disclosed Associates' right to call the note due and payable before the expiration of the note's 10-year term. The record does not contain any evidence indicating that the Ropers were incapable, mentally or physically, of examining the loan document or inquiring as to the terms of the loan before signing. Under these circumstances, we hold that a reasonably prudent person exercising ordinary care would have discovered the call provision *209 and, therefore, that the Ropers' reliance on Associates' alleged misrepresentation was not reasonable.
Last, we find no merit in the Ropers' claim that Associates fraudulently concealed the call provision in the 1983 loan. A suppression of a material fact is one of the requisite elements of a cause of action for fraudulent concealment. Code 1975, § 6-5-102; Wilson v. Brown, 496 So.2d 756 (Ala.1986). In view of the fact that the Ropers signed the "Call Option Disclosure Statement," we conclude that Associates did not suppress a material fact.
For the foregoing reasons, the summary judgment for Associates is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611484/ | 540 F. Supp. 451 (1982)
Margie Bullard BARFIELD, Petitioner,
v.
Kenneth W. HARRIS, et al., Respondents.
No. 82-245-HC.
United States District Court, E. D. North Carolina, Raleigh Division.
May 21, 1982.
*452 *453 James D. Little, Singleton, Murray, Harlow & Little, Fayetteville, N. C., Richard H. *454 Burr, III, Southern Prisoners' Defense Committee, Nashville, Tenn., for petitioner.
Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N. C., for respondents.
MEMORANDUM OF DECISION AND ORDER
DUPREE, Chief Judge.
Petitioner, Margie Bullard Barfield, frequently referred to in these proceedings as Velma Barfield, was convicted in the Superior Court of Bladen County, North Carolina, on 2 December 1978 of first-degree murder by poisoning of one Stewart Taylor. At the sentencing phase of the trial the jury having found three aggravating circumstances attending the murder and no mitigating circumstances, judgment of death by execution was pronounced as mandated by North Carolina law.
On November 6, 1979, the Supreme Court of North Carolina affirmed this judgment, State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979). Following denial by the Supreme Court of the United States of her petition for certiorari on June 30, 1980, Barfield v. North Carolina, 448 U.S. 907, 100 S. Ct. 3050, 65 L. Ed. 2d 1137, and her petition for rehearing on September 17, 1980, id. at 918, 101 S.Ct. at 41, 65 L.Ed.2d at 1181 Barfield's execution date was set for October 17, 1980.
Pursuant to a motion for post-conviction relief filed by Barfield in the state court on October 3, 1980, a stay of execution was entered pending a full-blown evidentiary hearing which was conducted by the Honorable E. Maurice Braswell, Judge of the Superior Court, during the week of November 17, 1980. In a thirty-seven-page judgment containing plenary findings of fact and conclusions Judge Braswell denied Barfield's motion for post-conviction relief on 26 November 1980. The Supreme Court of North Carolina declined to review this judgment by denying Barfield's petition for a writ of certiorari, and thereafter certiorari as to the state post-conviction proceedings was also denied by the United States Supreme Court on October 19, 1981. Barfield v. North Carolina, 454 U.S. 957, 102 S. Ct. 494, 70 L. Ed. 2d 261 rehearing denied, ___ U.S. ___, 102 S. Ct. 693, 70 L. Ed. 2d 655 (1981).
Again condemned to die during the week of March 15, 1982, Barfield filed her petition for habeas corpus in this court on March 9, 1982 pursuant to 28 U.S.C. § 2254 alleging numerous constitutional infirmities in her trial and conviction in 1978. Pending hearing on the petition this court issued a stay of execution which remains in effect. The hearing was held on March 26, 1982, and in this memorandum of decision the court will record its findings and conclusions.
As indicated above the week-long hearing which was held on Barfield's motion for post-conviction relief in the state court resulted in exhaustive findings and conclusions by the presiding judge, and all parties here are agreed that Barfield has exhausted all of her state remedies prior to invoking the jurisdiction of this court. The parties have also agreed that this court might consider the voluminous records compiled in the trial and post-conviction proceedings in the state court and it has been stipulated that this court might consider all of the testimony offered by petitioner in the state post-conviction proceedings and excluded on objection by the state. The court has done this, and the parties have further agreed that this obviates the necessity for any further evidentiary hearing in this court.
Counsel for petitioner were invited to identify any factual findings of Judge Braswell in the state court post-conviction proceedings which were claimed not to be supported by the evidence adduced at that hearing. They have been unable to do so in any material respect, and this court's own review of the more than 2,000 pages of testimony considered by Judge Braswell has persuaded this court that the merits of the factual dispute were fully resolved in the state court proceedings; that the factfinding procedure there employed was adequate to afford a full and fair hearing; that all material facts were adequately developed; that the court had jurisdiction of the subject *455 matter; that petitioner was represented by exceptionally able counsel at all stages of the post-conviction proceedings; that she received a full, fair and adequate hearing; and that she was not otherwise denied due process of law in that proceeding. Accordingly, this court, as required by 28 U.S.C. § 2254(d), presumes Judge Braswell's findings to be correct and adopts them as its own.[1]Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981); Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963).
One additional threshold matter is respondents' contention that this court is barred from considering certain of petitioner's claims because of petitioner's procedural default in the state courts. See Engle v. Isaac, ___ U.S. ___, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); Cole v. Stevenson, 620 F.2d 1055 (4th Cir.), cert. denied, 449 U.S. 1004, 101 S. Ct. 545, 66 L. Ed. 2d 301 (1980). All issues raised here, however, were considered either by the North Carolina Supreme Court on direct appeal or by Judge Braswell on the motion for appropriate relief, and neither court relied on any procedural default to bar consideration of any issue raised. Instead, the Supreme Court "combed the record" and considered all issues raised in addition to certain issues not brought forward on appeal. State v. Barfield, supra, 298 N.C. at 354-355, 259 S.E.2d at 544. Judge Braswell considered each of petitioner's contentions and concluded that none of them had merit. Where the state has not enforced any default, the federal court is not barred from consideration of the issue. Engle v. Isaac, supra, ___ U.S. at ___ n.44, 102 S.Ct. at 1575 n.44; County Court of Ulster County v. Allen, 442 U.S. 140, 147-154, 99 S. Ct. 2213, 2219-23, 60 L. Ed. 2d 777 (1979). Cf., Gardner v. Florida, 430 U.S. 349, 361, 97 S. Ct. 1197, 1206, 51 L. Ed. 2d 393 (1977).
We turn, then, to the grounds which petitioner claims warrant habeas relief in this court. Of the numerous alleged constitutional deficiencies in her trial and conviction those meriting serious consideration will be addressed under the several headings to follow.
INEFFECTIVENESS OF COUNSEL
Following her indictment on the murder charge petitioner was found to be indigent, and Attorney Robert D. Jacobson of the Robeson County, North Carolina, bar was appointed to represent her. When it became known to Mr. Jacobson that petitioner was suspected of having committed at least four other murders by poisoning in addition to the one for which she was indicted, he moved the court for the appointment of additional counsel to assist him in representing petitioner. This motion was denied, and Mr. Jacobson continued to represent petitioner throughout the trial and the appeals.[2] In the post-conviction proceedings *456 petitioner has been represented by Mr. James D. Little of the Fayetteville, North Carolina bar and Mr. Richard H. Burr, III, of the Southern Prisoners' Defense Committee, Nashville, Tennessee.
Petitioner alleges that her former counsel, Mr. Jacobson, ineffectively represented her in six major areas:
1. The investigation and presentation of psychiatric evidence in both phases of her trial.
2. The investigation and presentation of general testimony in mitigation of punishment.
3. The handling of various critical pretrial motions.
4. The presentation of argument to the jury on her behalf.
5. The making of requests for specific instructions to the jury that were critical to her case.
6. The presentation and development of issues on the direct appeal of her case.
Counsel for both parties have recognized in all of the post-conviction proceedings that the acts and omissions of defense counsel in a criminal case are to be judged by the "range of competence" standard established in Marzullo v. Maryland, 561 F.2d 540 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S. Ct. 1885, 56 L. Ed. 2d 394 (1978). Judge Braswell also applied this standard in the state post-conviction proceedings. In Marzullo the Fourth Circuit expressly disavowed the "farce and mockery of justice test" which had previously been approved in this circuit and adopted the standard established in McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970), which involves the answer to this inquiry: "Was the defense counsel's representation within the range of competence demanded of attorneys in criminal cases?" Reference was made to the earlier Fourth Circuit case of Coles v. Peyton, 389 F.2d 224 (1968), where the principles for judging competency of criminal defense counsel as taken from previous cases were listed as follows:
1. Counsel for an indigent defendant should be appointed promptly.
2. Counsel should be afforded a reasonable opportunity to prepare to defend an accused.
3. Counsel must confer with his client without undue delay and as often as necessary to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable.
4. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial.
In Coles the court stated further that the failure to conform to these requirements would constitute a denial of effective representation of counsel "unless the state, on which is cast the burden of proof once a violation of these precepts is shown, can establish lack of prejudice thereby."
In Marzullo, however, the court went on to say:
"By this [range of competence] standard, effective representation is not the same as errorless representation. An attorney may make a decision or give advice which in hindsight proves wrong. Such errors, as McMann pointed out, are not necessarily grounds for post-conviction relief.... A convict generally must establish that his counsel's error was so flagrant that a court can conclude that it resulted from neglect or ignorance rather than from informed, professional deliberation." (Footnotes omitted.) 561 F.2d at p. 544.
The performance of Attorney Jacobson in each of the major areas of complaint will *457 now be reviewed in the light of the principles enunciated in these cases.[3]
1. Failure to Investigate and Present Psychiatric Evidence.
Shortly after she was apprehended the petitioner made a full confession that she had administered the poison which resulted in the death of Stewart Taylor, but she maintained that she had no intention of killing him. The likelihood that she would be able to convince any court that she had no such intention was sharply diminished, however, when she also confessed to administering poison to four other people including a former husband and her own mother, as a result of which each of them had died. Under these circumstances the defense which readily suggested itself to defense counsel was that of insanity, and Attorney Jacobson determined early on that he would undertake to establish such defense. Petitioner had been under the care of her own psychiatrist, a Dr. Sainz, for some time prior to the offense with which she was charged, and Jacobson was able to obtain the court's authorization to have her examined by two additional psychiatrists. Unfortunately, the consensus of opinion of these three physicians was that petitioner was legally sane at the time of the offense, that is, that she was able to know and understand the nature of her act and its consequences and that at the time of the trial she was able to consult with her counsel and assist in her own defense. Faced with this knowledge the defense attorney decided to employ another tack: he would show by these three physicians and others that petitioner had a long history of drug abuse and was suffering from a variety of psychopathic disorders which would negative the essential element of intent thus reducing the offense to second-degree murder and that in any event the evidence could be shown as an extenuating or mitigating circumstance to be considered at the sentencing stage in the event that petitioner should be convicted of first-degree murder.
This course of action, so petitioner's present counsel contend, was woefully ineffective and fell far short of measuring up to the standard required by Marzullo. In support of their position counsel were able to produce at the state post-conviction proceedings Dr. Selwyn Rose of Winston-Salem, North Carolina, an admitted expert in forensic psychiatry, who testified that in his opinion petitioner was not sane at the time of Stewart Taylor's murder, "in that I am uncertain as to whether she was sufficiently disturbed to reach the level of impairment which I consider to meet the insanity test." He testified further that petitioner "has three types of severe psychopathology, psychiatric illness, emotional illness. She has a history well documented of depression diagnosed as endogenous depression, which means from within, suggesting biochemical or organic causes, and that depression has included suicide attempts, overdose ...."; that petitioner had a history of drug abuse; that "the depression itself can certainly impair thought processes and rational thinking;" and "of the diagnostic identities that I mentioned, drug abuse, depression and character structure or personality defects ... can at times impair judgment, insight ... control of one's behavior and conduct" and that in his opinion "she was impaired by those three types of psychopathology at the time of the offense." Thus Dr. Rose found that petitioner's sanity at the time of the offense was at least questionable and that her ability to control or conform her *458 behavior according to the requirements of law was impaired. Motion for Appropriate Relief (MAR) Transcript at 298-311.
Relating the availability of such testimony to the ineffectiveness of counsel claim petitioner produced as witnesses a North Carolina attorney, Mary Ann Tally, who qualified as an expert in criminal defense based on seven years' experience in a public defender's office, and John Ackerman, who had had seven years' experience as the dean of the National College for Criminal Defense in Houston, Texas, who was permitted to testify as an expert in criminal defense standards. Mr. Ackerman testified that:
"I think a lawyer to properly handle a psychiatric defense must become quite familiar with psychiatry, what it is, how it is practiced, the terms, the various mental illnesses, what their manifestations are. Sometimes it is a lot of work. You have to go around and seek out a psychiatrist who will hear what you are saying, who will understand your client, and we all know that to some extent psychiatric defenses involves some shopping. You might just find a psychiatrist who has spent a great deal of time dealing with questions like drug induced psychosis, for instance, which is a possibility here, who would have some greater familiarity with that field than any other psychiatrist in this area. MAR Transcript at 412. (Emphasis supplied.)
Building on this argument, counsel for petitioner have argued in their brief that:
"Various experts have various areas of expertise, and it is the duty of counsel to pursue all available avenues until he finds the expert who can evaluate his client fairly, completely, and truthfully."[4]
In short, petitioner now takes the position that it was the duty of Mr. Jacobson to keep on "shopping" until he found a psychiatrist who would testify that his client was insane. While this court readily recognizes that in this day and age the chances of finding an "expert" who will testify on any side of a given proposition are reasonably good, the necessity of reputable and competent counsel's doing so under the circumstances here involved is not perceived.[5]
Moreover, good trial tactics may have dictated exactly the contrary course. Assume for the moment that Jacobson had undertaken to "shop" for an expert and had been lucky enough to come across Dr. Rose. He would then have been faced with the difficult decision of whether or not to use his own psychiatrist, Dr. Sainz. If he did and the testimony of the two experts developed to be contradictory, it would have been very damaging. If he failed to use Dr. Sainz and the other two court-appointed psychiatrists, the state doubtless would have used them in rebuttal, and the result probably would have been even more devastating.
Under somewhat similar circumstances in which trial counsel was charged with having been ineffective in not locating and presenting an expert witness who would have contradicted much of the testimony of the prosecution's expert the Eighth Circuit said in Knott v. Mabry, supra:
"Although petitioner's trial counsel probably should have increased his knowledge of the relevant scientific techniques *459 and principles by consulting an expert such as Irving Stone or by studying literature in the field, we have difficulty in light of the existing record holding that counsel's representation was constitutionally inadequate. Human nature is such that most people think they have a better understanding of the demands of an event after it has happened. Trial of law suits is peculiarly susceptible to hindsight appraisal of another lawyer's endeavors. When trial counsel exercise their judgment in making strategic decisions, third party post-trial construction of strategic alternatives cannot be the sole basis for finding constitutional deficiency." Id. at p. 1212.
And so it is here. Although he consulted with a relative who was a psychiatrist and had the benefit of consultation with each of the three psychiatrists who testified at the trial, Mr. Jacobson probably could have increased his knowledge in the field of psychiatry, and certainly had he shopped long enough he could have located an expert who could have testified as to the petitioner's sanity in a manner even more unequivocal than did Dr. Rose at the post-conviction hearing. That he did not do so cannot in view of the record in this case be held to have been constitutionally inadequate.
2. Failure to Develop General Mitigating Evidence.
Petitioner's principal cause for complaint as to trial counsel's performance in this regard was his failure to call character witnesses
"[T]here were numerous witnesses available to testify at her original trial who would have been able and willing to give a variety of testimony concerning the good character of Ms. Barfield and the tremendous difficulty she experienced which led her to abuse drugs substantially. Through this testimony, the individuality and humanness of Ms. Barfield would have been presented to the jury." Petitioner's Brief, p. 20.
Testimony as to the character of an accused is normally designed to serve two purposes: first, on the question of guilt where commission of the offense is denied by the accused testimony as to his good character may be introduced to show the unlikelihood that a person with a good character would have committed the offense in question. Where the accused takes the stand and testifies a second purpose of character testimony may be to bolster the credibility of the accused as a witness. In addition, in a capital sentencing proceeding character evidence may be offered in hope of lending a convicted murderer some degree of "humanness." In the case at bar no amount of character testimony would have served the first purpose, for there was never any question that the petitioner committed the offense. And as to the matter of enhancing her credibility on the critical question of intent it seems highly unlikely that any number of character witnesses could have overcome the overwhelming evidence of intent which was provided by the properly admitted evidence of the four other murders which petitioner had committed by poisoning.
And here again sound trial tactics may have dictated limited use of character witnesses. Such witnesses would have been subject to cross-examination with the attendant risk that damaging evidence including a rehash of the other four murders might have been brought out thereby destroying any credibility and "humanness" which the jury may have ascribed to the petitioner after hearing her own testimony and observing her demeanor on the stand.
Ineffectiveness of trial counsel in not calling additional character witnesses has not been established.
3. Failure to File Additional Motions.
While Mr. Jacobson filed numerous pretrial motions including motions for the evaluation of petitioner's competency and sanity, for the appointment of additional counsel, for discovery, for appointment of a disinterested court reporter, for a change of venue, for payment of expert witness fees, *460 for individual voir dire and sequestration of jurors during the voir dire, for complete recordation of all proceedings, to suppress defendant's confessions, for appointment of an independent psychiatrist, to allow notification of defendant's intention to rely on an insanity defense and for a continuance, petitioner now contends that he "failed to engage in the systematic, exhaustive pretrial motion practice which is necessary to the effective defense in capital cases." Pet. for Writ of Habeas Corpus at 10. Some examples of motions that petitioner now contends should have been made are motions to prohibit the "death qualification" of the jury; to obtain a separate jury to try guilt and punishment; to challenge grand and petit jury composition; to obtain an independent psychiatrist for purpose of the penalty stage of the trial; to obtain a bill of particulars on the aggravating circumstances; to allow petitioner to participate as co-counsel; to have the death penalty statute declared unconstitutional and a motion in limine to restrict evidence as to the other homicides.
There is nothing in the record to indicate that these motions, if made in the form which petitioner now urges, would have been sustained or that the failure of the trial court to sustain any of them would have resulted in reversible error on appeal. The fruitlessness of many of the motions is demonstrated by the simple fact that they relate to the guilt phase of the trial and were in effect mooted by petitioner's confession that she committed the offense. Many other of the motions would have been without merit as being contrary to established North Carolina and federal law.
Where there is no reason to believe that a particular motion, if made, would have been granted, failure to make the motion does not constitute ineffective assistance of counsel. United States v. Hood, 593 F.2d 293 (8th Cir. 1979). Such is the case here.
4. Ineffective Jury Argument.
Petitioner now contends that in his closing arguments in both phases of her trial Mr. Jacobson "had no theory of defense or of mitigation to present to the jury." It is further contended that in his arguments to the jury trial counsel "injected arbitrary, prejudicial material into the record and into the jury's deliberation processes." The court has read and re-read the jury arguments of this attorney during both phases of the trial, and it is unable to agree.
As has been noted several times herein, the case which Mr. Jacobson was called upon to defend was an almost hopeless one from the beginning. Not only had the petitioner confessed to the offense of poisoning her boyfriend, Stewart Taylor, by placing tasteless and colorless arsenic laden rat poison in his beer and tea resulting in his slow, agonizing death, but Jacobson knew that on the issue of intent the prosecution would doubtless offer petitioner's confessions to four other arsenic poisonings resulting in similar deaths. He therefore saw as the only realistic possibility of obtaining a verdict of anything less than first-degree murder with the death penalty that it would be necessary for him to negate the essential element of specific intent and thereby obtain a verdict of second-degree murder failing in which he would have to convince the jury that the mitigating circumstances of petitioner's long history of drug abuse, mental problems and personality disorders were sufficient to offset the aggravating circumstances and thus justify the jury's recommendation of a sentence of life imprisonment. While his arguments to the jury were by no means textbook models, it cannot be rightfully said that Mr. Jacobson did not make a vigorous assertion of these contentions during each of his jury arguments. Of course the cold record tells us nothing of what, if any, histrionics this attorney employed in his peroration to the jury in which he begged for this petitioner's life, but we do know that while the jury had deliberated for less than an hour in reaching the first-degree murder verdict following the guilt phase, the deliberations lasted more than three hours before the death penalty verdict was returned following *461 the sentencing phase. It seems clear, therefore, that at the very least Mr. Jacobson gave this jury something to think about. That the decision was finally made to reject his arguments proves only that he was ineffective in the sense that all criminal defense lawyers whose clients are found guilty are ineffective. That any more argument or different contentions might possibly have altered this result would be sheer speculation.
5. Failure to Request Jury Instructions.
Petitioner contends that trial counsel, Mr. Jacobson, also failed to provide effective assistance in that he failed and neglected to submit certain requests for jury instructions both at the guilt and sentencing phases of the trial. Specifically, it is charged that counsel should have requested that the patterned jury instruction for first-degree murder by poisoning be altered so as to remove any irrebuttable presumption concerning premeditation and intent; that the court should have been requested to instruct the jury on the lesser included offense of voluntary manslaughter; that a requested instruction prohibiting the jury from considering the evidence of other homicides during the penalty phase should have been submitted; that an instruction should have been requested concerning the consequences of a non-unanimous verdict in the penalty phase; and that counsel failed to request specific, explanatory instructions "with respect to mitigating circumstances arguably present in Mrs. Barfield's case, including the psychiatric mitigating circumstances ... and the age of Ms. Barfield."
The trial of this case was conducted before the Honorable Henry McKinnon, Jr., who is widely recognized as one of the most experienced and exceptionally able trial judges the state has produced. Given the fact that his instructions to the jury in this case have survived without question the close scrutiny of the Supreme Court of North Carolina, just how it might be established that the failure to request additional instructions constituted ineffective assistance of counsel is not readily apparent to this court. It would seem to involve a high degree of speculation as to whether the instruction, if requested, would have been given and an even higher degree of speculation as to whether the failure to give the instruction would have been held reversible error in the appellate courts. It is true that a requested instruction which correctly states the law and is related to facts received in evidence should ordinarily be given, but where the subject matter of the requested instruction has been otherwise covered in the charge, the failure to give it in the exact language requested is not error. For the most part that is the situation we have here.
It can be said with reasonable certainty that the requested instruction altering the pattern jury instruction in use in North Carolina in first-degree murder by poisoning cases would not have been given, and the instruction as given on this point has survived the close scrutiny of the North Carolina Supreme Court. See page 468 below.
The short answer to the failure of defense counsel to request an instruction on the lesser included offense of voluntary manslaughter at the guilt phase of petitioner's trial lies in the fact that such instruction would not have been supported by the evidence in the case. See Dobbert v. Strickland, 532 F. Supp. 545 (M.D.Fla.1982).
After having complained bitterly about the admission of the evidence of the other four homicides during the guilt phase of the trial petitioner now contends that the court should have been requested to instruct the jury not to consider the evidence of the other homicides during the penalty phase. Just why the petitioner would have wanted to draw the jury's attention once more to these four homicides is not readily apparent, but it is at least arguable that to have done so would have been an unwise tactic. Certainly it cannot be said that the failure to make such a request was outside the range of competence of lawyers who try criminal cases in North Carolina.
Under the North Carolina death penalty statute, N.C.G.S. § 15A-2000(b), a unanimous *462 vote of twelve jurors is necessary in order to impose the death penalty, and the statute further provides that "if the jury cannot, within a reasonable time, unanimously agree to its sentence recommendation, the judge shall impose a sentence of life imprisonment...." The Supreme Court has held that in refusing during the sentencing phase of a first-degree murder trial to instruct the jury that its failure to agree unanimously on the sentence within a reasonable time will result in the imposition of a sentence of life imprisonment is not error for that the jury's failure to agree upon a sentence within a reasonable time is not a proper matter for jury consideration. Thus the requested instruction in this case would not have been given, and the failure to give it would not have been held for error on appeal. State v. Johnson, 298 N.C. 355, 369-370, 259 S.E.2d 752, 762 (1979) (Johnson II).
Judge McKinnon's instructions to the jury during the penalty phase were impeccable and eminently fair to both sides. He did in fact instruct the jury on the "psychiatric mitigating circumstances," and trial counsel's failure "to request specific, explanatory instructions with respect to mitigating circumstances arguably present" in the case is certainly no evidence of ineffectiveness, for a trial court is required to instruct the jury only on the basis of actual evidence offered and received in open court and not as to mere arguments of counsel. A review of Judge McKinnon's charge shows full compliance with this requirement.
The contention that Attorney Jacobson's failure to request certain jury instructions constituted ineffective assistance of counsel is without merit.
6. Failure to Raise Errors on Direct Appeal.
As a sixth major area of alleged ineffectiveness of counsel petitioner contends that trial counsel failed to raise, or to preserve, numerous errors of constitutional magnitude which occurred during the course of the trial. These issues will be addressed more fully in subsequent sections of this memorandum, but suffice it to say at this point that this court has found all of them to be without merit.
In summary, the court is of opinion that petitioner here has fallen far short of establishing that her trial counsel's error, if any, was so flagrant that it can only be concluded that it resulted from neglect or ignorance rather than from informed, professional deliberation. Marzullo v. Maryland, 561 F.2d 540, 543 (4th Cir. 1977). Mere mistakes in judgment or even failure to recognize and investigate certain defenses does not necessitate a new trial, Tollett v. Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973), and a court should not measure the competency of counsel's advice by retrospectively considering whether it was right or wrong, but should confine the inquiry to the question of whether counsel's representation was within the range of competence demanded of attorneys in criminal cases. McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). These principles have been neatly summed up by the Eighth Circuit in Johnson v. United States, 506 F.2d 640 (8th Cir. 1974), cert. denied, 420 U.S. 978, 95 S. Ct. 1404, 43 L. Ed. 2d 659 (1975), where it is said:
"The term `effective,' in its most general application, describes something which ultimately achieves a desired result. With reference to professional representation in criminal cases, that might be interpreted to mean achieving only outright acquittal of the defendant on the charges without regard to the weight and strength of the evidence adduced. A more appropriate nomenclature for the standard would be to test for the degree of competence prevailing among those licensed to practice before the bar. The standard would refer more precisely to the professional competence of one who has completed a long and arduous course of study for a professional license, and who has acquired some experience in applying legal principles and conducting court trials.
*463 "The professional standard could be said to include the responsibility to insure that the client is tried according to the applicable rules of evidence and practice and to urge such arguments on a client's behalf as are indicated by the evidence, or lack of evidence, adduced. It is not, however, constitutionally limited to an `effective' type of representation that would achieve acquittal of a defendant on any charge regardless of the facts. The constitutional provision includes neither `effective' nor `adequate' nor other adjectival terms in its guarantee of assistance of counsel. It merely states in plain language that `[i]n all criminal prosecutions, the accused shall enjoy the right to * * * have the Assistance of Counsel for his defence.' U.S.Const. Amend. VI." Id. at p. 646 (footnotes omitted).
Application of these principles to the case at bar has served to foreclose a finding that the representation afforded petitioner by her trial counsel, Mr. Jacobson, failed to comport with constitutional requirements.
"To hold otherwise, at least in this case, gives impetus to a form of second guessing which is possible in every case and does not comport with the constitutional standards which require defense counsel to exercise only that skill and diligence possessed by competent counsel under like or similar circumstances." Knott v. Mabry, supra, at p. 1214.
Having found that petitioner was competently represented, we turn now to the several remaining claims for relief, the first of which arose as counsel selected the jury that was to hear the case.
JURY SELECTION
During jury selection Mr. Jacobson, the district attorney, and Judge McKinnon exhibited an intimate familiarity with the Supreme Court's ruling in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). Each prospective juror was carefully questioned about his or her beliefs concerning capital punishment and the effect, if any, that those beliefs would have on his or her consideration of the questions of guilt and punishment. Eleven prospective jurors were excused for cause after stating that they could under no circumstances vote to impose the death penalty. Petitioner raises two separate contentions regarding these exclusions.
The first is that exclusion of jurors solely on the ground of their principled opposition to the death penalty violates petitioner's right to trial by an impartial jury drawn from a representative cross-section of the community. In Witherspoon, the Court "held that a State may not constitutionally execute a death sentence imposed by a jury culled of all those who revealed during voir dire examination that they had conscientious scruples against or were otherwise opposed to capital punishment." Adams v. Texas, 448 U.S. 38, 43, 100 S. Ct. 2521, 2523, 65 L. Ed. 2d 581 (1980). Furthermore,
"[t]he Court recognized that the State might well have power to exclude jurors on grounds more narrowly drawn:
`[N]othing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.' [Witherspoon v. Illinois, 391 U.S.] at 522-523, n.21 [88 S.Ct. at 1776-77 n.21] (emphasis in original)." Adams v. Texas, supra, 448 U.S. at 44, 100 S.Ct. at 2523.
Petitioner contends that the Supreme Court has yet to resolve whether that portion of the community which would automatically vote against the imposition of the death penalty may be excluded from a jury. The Adams opinion, however, clearly indicates that prospective jurors may be excluded if they are unable or unwilling to accept state law which provides that in *464 certain circumstances death is an authorized penalty and to address the issue of penalty in such a case without conscious distortion or bias. Id. at 45-46, 100 S.Ct. at 2524. No federal court has accepted the proposition that this "death qualification" of a jury deprives a defendant of trial by a jury drawn from a representative cross-section of the community, that it severs an essential link with evolving values of the community, or that the death qualified jury is impermissibly prone to convict. These contentions were addressed at length in Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S. Ct. 1548, 59 L. Ed. 2d 796 (1979), where the court accepted as true the numerous disputed factual premises underlying the contentions but nevertheless found the contentions to be without merit. Id. at 591-599. Without reiterating the discussion by the Fifth Circuit in Spinkellink, this court finds the reasoning there persuasive and concludes that petitioner is entitled to no relief on this ground.[6]
With the exception of prospective juror Dent, discussed below, all prospective jurors excluded under Witherspoon stated without wavering that they could not consider voting to impose the death penalty under any circumstances. On the other hand, no juror stated that he would automatically vote to sentence any convicted murderer to death. Compare Crawford v. Bounds, 395 F.2d 297, 303-304 (4th Cir. 1968). There was, therefore, an impartial jury with all members able to determine both guilt and sentence free of any irrevocable prior commitment to vote for or against the death penalty. See Spinkellink v. Wainwright, supra, 578 F.2d at 596.
The second challenge to jury selection in this case concerns the exclusion of prospective juror Dent. During a lengthy voir dire examination,[7] Mr. Dent repeatedly stated that he did not believe in the death penalty. During questioning by the district attorney, Mr. Dent said that under no circumstances could he vote to impose the death penalty. Upon further questioning by the court, Mr. Dent retreated from this absolute statement, saying that he did not know whether he could vote for the death penalty. He was then "rehabilitated" by defense counsel, to whom Mr. Dent admitted that he could imagine cases in which he could vote for the death penalty. Examination by the district attorney recommenced and led to another about-face in which Mr. Dent said that he could not vote for the death penalty regardless of the evidence. Finally, the court resumed its questioning of Mr. Dent, asking "Do you feel that under no circumstances, no matter how aggravating the evidence might be, that you could not under any circumstances vote for the sentence recommending the death sentence?" Mr. Dent replied, "I don't believe I could." With that answer, Mr. Dent was excused for cause. Trial Transcript at 96.
Petitioner contends that Mr. Dent's exclusion violated Witherspoon because he never stated unequivocally that he could not vote for the death penalty under any circumstance.[8] In support of this contention *465 petitioner correctly notes that the exclusion of even one prospective juror in violation of the Witherspoon standard invalidates a subsequent sentence of death, regardless of whether the state went to trial with peremptory challenges unexercised. Davis v. Georgia, 429 U.S. 122, 97 S. Ct. 399, 50 L. Ed. 2d 339 (1976); Moore v. Estelle, 670 F.2d 56 (5th Cir. 1982); Burns v. Estelle, 592 F.2d 1297 (5th Cir. 1979), adopted en banc, 626 F.2d 396 (5th Cir. 1980). That the relevant statements by the prospective juror must be completely unequivocal has been recently reaffirmed by the Fifth Circuit in Granviel v. Estelle, 655 F.2d 673 (5th Cir. 1981). There a prospective juror
"was first asked whether he had conscientious scruples against the infliction of the death penalty, whereupon he stated, `I don't know what that means.' When asked if he could ever vote to inflict the death penalty, he replied, `No, I don't think I could.' Then, in response to the question, `You just don't feel like you would be entitled to take another person's life in that fashion?' He nodded and then said, `No, I could not.'" Id. at 677.
The Fifth Circuit held that "[t]hese questions and answers fall far short of an affirmation by [the prospective juror] that he would automatically vote against the death penalty regardless of the evidence," thus invalidating the death sentence. Id. See also Alderman v. Austin, 498 F. Supp. 1134 (S.D.Ga.1980); State v. Johnson, 298 N.C. 355, 366, 259 S.E.2d 752, 759 (1979) (Johnson II).[9]
Petitioner contends that any time a prospective juror states that he "believes" or "thinks" or "feels" that he could not vote to impose the death penalty, rather than stating absolutely that he could not, the juror may not be excluded under Witherspoon. The precise words used by the juror, however, are not dispositive. Burns and Granviel turn instead on the perfunctory nature of the voir dire examination and on the fact that the questions were directed at whether the responsibility to recommend life or death would "affect" their deliberations as juror. In contrast, Darden v. Wainwright, 513 F. Supp. 947 (M.D.Fla.1981), the court held that there was no Witherspoon violation where a prospective juror, in response to a question as to whether he would be unwilling to return a recommendation of death, had answered, "I believe I would." Id. at 960. The court rejected the contention that this response was ambiguous and held that "the hard question was asked, repeatedly and without deviation from the minimal requirements of Witherspoon." Id. at 962. Similarly, in McCorquodale v. Balkcom, 525 F. Supp. 408 (N.D.Ga.1981), appeal pending, the court found that initial equivocation during voir dire examination was not fatal when the prospective jurors ultimately did make it unmistakably clear that they could not vote for the death penalty. The court assessed the "bottom line" rather than search the entire voir dire for signs of equivocation. Id. at 425. "The trial judge often must make judgments as to whether or not a prospective juror really means it when he says something. This Court believes some deference is due the judgment of the trial judge, who heard these two jurors as they stated that their reconsidered positions were that they could not impose the death penalty under any circumstances." Id. See also Mason v. Balkcom, 487 F. Supp. 554, 560 (M.D.Ga.1980), reversed on other grounds, 669 F.2d 222 (5th Cir. 1982); Douglas v. Wainwright, 521 F. Supp. 790, 796-800 (M.D.Fla.1981).
*466 The court views the examination of Mr. Dent in the same light. Although he certainly equivocated during the voir dire, he stated several times that under no circumstances could he vote to recommend the death sentence. The trial judge was actively involved in the examination and carefully phrased the "hard" question. He apparently believed that Mr. Dent's opinion ultimately was unequivocal. This court agrees and therefore holds that there was no Witherspoon violation in the exclusion of Mr. Dent. Indeed, in view of Mr. Dent's many statements that he could not under any circumstances vote to impose the death penalty, denying the motion to excuse him for cause might well have been error.
GUILT PHASE
Four of petitioner's asserted grounds for relief arise from the guilt phase of the trial. Two contest the admission of particular evidence, the third challenges the jury instructions defining first and second-degree murder, and the fourth is an attack on a presumption inherent in North Carolina's first-degree murder statute. Only the evidentiary issues were discussed at length by the North Carolina Supreme Court. State v. Barfield, 298 N.C. at 325-331, 338-341, 259 S.E.2d at 527-530, 535-536.
In addressing asserted trial errors, this court is fully aware that it may not grant relief to a state prisoner on the basis of ordinary errors. Rather, the test is one of fundamental fairness; the error must be so egregious as to amount to a denial of constitutional due process. E.g., Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S. Ct. 1868, 1873, 40 L. Ed. 2d 431 (1974); Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973); Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir. 1960). As the Fifth Circuit has recently stated, "the erroneous admission of prejudicial evidence can justify habeas corpus relief only if the error was `material in the sense of a crucial, critical, highly significant factor.'" Bryson v. State of Alabama, 634 F.2d 862, 865 (5th Cir. 1981), quoting Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.), cert. denied sub nom., Hills v. Maggio, 429 U.S. 850, 97 S. Ct. 139, 50 L. Ed. 2d 124 (1976). The Supreme Court has recently "reaffirm[ed] the well-settled principle that to obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, ___ U.S. ___, 102 S. Ct. 1584, 1593-1594, 71 L. Ed. 2d 816 (1982) (footnote omitted). Only "those errors that are so fundamental that they infect the validity of the underlying judgment itself, or the integrity of the process by which that judgment was obtained" should entitle a petitioner to habeas relief. Rose v. Lundy, ___ U.S. ___, 102 S. Ct. 1198, 1216, 71 L. Ed. 2d 379 (1982) (Stevens, J., dissenting).
Petitioner first asserts error in the admission of evidence tending to show that she was responsible for the poisoning deaths of four other individuals, not including the murder for which she was convicted. Admission of this "other crime" evidence was based upon long-established state law permitting its use when probative of a defendant's knowledge of a relevant set of circumstances, specific intent to commit the crime, motive for the crime, or plan or design to commit the crime. State v. Barfield, 298 N.C. at 325-331, 259 S.E.2d at 527-530; State v. Walker, 251 N.C. 465, 112 S.E.2d 61, cert. denied, 364 U.S. 832, 81 S. Ct. 45, 5 L. Ed. 2d 58 (1960); State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). Cf., Federal Rule of Evidence 404(b). The evidence was clearly relevant here since petitioner had denied that she knew the fatal properties of the poison she administered, that she intended to kill Mr. Taylor, and that she had a financial motive for doing so. The circumstances of each of the prior killings tended forcefully to rebut those denials. Petitioner contends, however, that despite its relevance the evidence was unduly prejudicial and that in a capital case such prejudice introduces an impermissibly arbitrary and unreliable element into the determination of guilt. Unquestionably, in a capital case "rules that diminish the reliability of the guilt determination" are unacceptable. *467 Beck v. Alabama, 447 U.S. 625, 638, 100 S. Ct. 2382, 2389, 65 L. Ed. 2d 392 (1980). Contrary to petitioner's contention, however, there was no impermissible unreliability here. The evidence itself was not in dispute; petitioner admitted the prior crimes. That the prior crimes were unusually probative of intent, motive and knowledge does not render that evidence prejudicial nor unreliable. That other defendants in capital cases are tried without the use of evidence of any prior acts in no way means that its admission here creates an arbitrary or unreliable factor.
The second evidentiary issue raised is an asserted violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Petitioner was arrested on March 10, 1978, and questioned about the death of Mr. Taylor. Prior to the interrogation she was fully advised of her constitutional rights in accordance with Miranda, and she denied any responsibility for the death. On March 13, 1978, she returned to the sheriff's office at the request of and in the company of her son, who had been contacted by the sheriff's office. At that time, she was again informed of her Miranda rights, and she confessed to four poisonings, including the Taylor murder. A written waiver of Miranda rights was executed and the statements were reduced to writing by one of the deputy sheriffs who interviewed her.[10]
There was no Miranda violation. Petitioner after being advised of her rights stated that she did not want a lawyer and that she wanted to make a statement. She never exercised her "right to cut off questioning," Miranda v. Arizona, supra, 384 U.S. at 474, 86 S.Ct. at 1627, or indicated that she did not wish to discuss the murders. Rather she denied any knowledge of the murders on one occasion and confessed fully on the second occasion.[11]
Petitioner next contends that Judge McKinnon did not sufficiently differentiate first and second-degree murder when outlining the elements of those two offenses for the jury. The basis for the contention is not simply that there was technical error in the instructions but additionally that the inadequacy had the effect of merging the two offenses, leaving the jury only with the options of conviction of capital murder or acquittal and thereby enhancing the risk of an unwarranted conviction and diminishing the reliability of the guilt determination. Petitioner relies on Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), where the Supreme Court held that in a capital case the option to convict of a lesser included offense could not constitutionally be withdrawn from the jury where the evidence arguably would support the lesser included offense conviction. In Beck, however, the Court addressed a statutory scheme rather than the wording of a particular jury instruction, and the case provides little guidance here, where the lesser included offense was submitted to the jury. More importantly, the contention is without a factual foundation because Judge McKinnon did fully differentiate the elements of *468 the two crimes and adequately defined both intent to kill and malice. Trial Transcript at 818-820.
Petitioner's final contention arising from the guilt phase is that the North Carolina murder statute contains an impermissible presumption that a murder by poisoning is premeditated. In pertinent part, the statute provides that "[a] murder which shall be perpetuated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing ... shall be deemed to be murder in the first degree...." N.C. G.S. § 14-17. Judge McKinnon instructed the jury that the statute conclusively presumes that murder by means of poisoning is premeditated and deliberate. Trial Transcript at 818-819.
Petitioner concedes that the State of North Carolina may define what facts comprise any crime, but argues that the statute requires proof of premeditation in all murders, committed by any means, and that presuming premeditation in a murder by poisoning "paves the road" to a finding of intent to kill. Petitioner's reliance on Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), in support of this contention is misplaced. In Sandstrom a jury was instructed to presume the existence of a fact clearly necessary under state law to prove the crime charged. Id. at 520, 99 S.Ct. at 2457. Here, in contrast, the statute's plain language requires proof of premeditation only in a murder committed by some means not specifically stated in the statute. See State v. Duboise, 279 N.C. 73, 83, 181 S.E.2d 393 (1971); State v. Hendrick, 232 N.C. 447, 61 S.E.2d 349 (1950); State v. Dunheen, 224 N.C. 738, 32 S.E.2d 322 (1944). This was more recently reiterated in State v. Cooper, 286 N.C. 549, 213 S.E.2d 305 (1975), where the court noted that "[i]t is well established that to convict a defendant of murder in the first degree, when the killing was not perpetrated by one of the means specified by G.S. 14-17 ... the State must prove beyond a reasonable doubt that the killing was with premeditation and deliberation." Id. at 572, 213 S.E.2d at 320 (emphasis added). See id. at 591-595, 213 S.E.2d at 332-335 (Sharp, C. J., dissenting). Where a fact need not be proved to make out a crime, presuming that fact does not violate Sandstrom or In Re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
Moreover, premeditation was simply not in issue in this case. Petitioner repeatedly admitted that she knowingly and deliberately purchased the poison and administered it to Mr. Taylor. Trial Transcript at 618. The only element in issue was whether she did so with intent to kill. In State v. Dunheen, supra, the court stated:
"When a homicide is perpetuated by means of poison, lying in wait, imprisonment, starving, or torture, the means and method used involve planning and purpose. Hence the law presumes premeditation and deliberation. The act speaks for itself. G.S., 14-17. Is this presumption rebuttable by proof that the prisoner is of such low mentality that he is incapable of forming a fixed design to kill? 224 N.C. at 739-740, 32 S.E.2d at 323.
The Dunheen court did not answer its question, finding that there was no evidence of "low mentality" in the case. Here, there was no evidence of a lack of premeditation, so the question of whether in some case the state's definition of first-degree murder might deprive a defendant of due process of law is simply not raised.
Having found no flaw in petitioner's conviction of first-degree murder sufficient to warrant habeas relief, the court now turns to the sentencing phase of the case.
SENTENCING PHASE
Under North Carolina's bifurcated capital punishment scheme, the question of punishment is determined by a jury following a conviction of first-degree murder. N.C.G.S. § 15A-2000(a). Insofar as possible the sentencing proceeding is to be conducted by the same judge before the same jury that determined guilt, and the proceeding must commence as soon as practicable after the verdict of guilt is returned. Id. Evidence admitted during the guilt determination *469 phase may be considered by the jury in passing on punishment, and additional evidence may be heard "as to any matter that the court deems relevant to sentence." Id. When supported by the evidence and submitted to it by the judge, the jury must consider specific aggravating circumstances, limited to those listed in the statute, and specific mitigating circumstances including, but not limited to, those listed in the statute. See N.C.G.S. § 15A-2000(e), (f). Aggravating circumstances must be proved by the state beyond a reasonable doubt, while mitigating circumstances must be proved by the defendant by a preponderance of the evidence. N.C.G.S. § 15A-2000(c)(1); State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979) (Johnson I). The jury must determine whether the aggravating circumstances "are sufficiently substantial to call for the imposition of the death penalty" and whether the mitigating circumstances "are insufficient to outweigh the aggravating ... circumstances." N.C.G.S. § 15A-2000(c)(2), (3). The sentencing verdict must be unanimous, and if the jury cannot unanimously agree, the judge must impose a sentence of life imprisonment. N.C.G.S. § 15A-2000(b).[12]
Petitioner raises numerous asserted grounds for relief arising during the sentencing phase of her case. These include the consideration by the jury of the evidence of the other murders, the submission of particular aggravating circumstances to the jury, asserted errors in the instructions to the jury regarding the mitigating circumstances to be considered, an assertedly inaccurate summary of defendant's proof concerning sentence, and a failure to instruct the jury that the effect of an inability to reach a unanimous verdict would be imposition of a sentence of life imprisonment. The court will address these contentions in sequence.
1. Evidence of Other Murders.
Petitioner's first challenge to the validity of her sentencing proceeding is that Judge McKinnon failed to instruct the jury that it could not consider the evidence of the other murders when deliberating upon sentence. Relying on case authority to the effect that a jury in a capital sentencing proceeding may not consider a nonstatutory aggravating circumstance, petitioner contends that the trial court impermissibly broadened the jury's discretion and in effect created a non-statutory aggravating circumstance by instructing the jury that it could consider all the evidence admitted during the guilt phase.[13] She argues that the evidence of the other murders was not relevant to any of the statutory aggravating circumstances.
Judge McKinnon did not specifically direct the jury's attention to the evidence of the other murders. He stated only that the jury could consider all evidence admitted during the guilt phase. This instruction was specifically authorized by the North Carolina statute, which provides that "[i]n the [sentencing] proceeding there shall not be any requirement to resubmit evidence presented during the guilt determination phase of the case, unless a new jury is empaneled, but all such evidence is competent for the jury's consideration in passing *470 on punishment." N.C.G.S. § 15A-2000(a)(3). The evidence was clearly relevant to the jury's consideration of the aggravating factors of whether the crime was committed for pecuniary gain and whether the crime was committed to hinder the enforcement of laws for it tended to show that she had a well-founded expectation of being able to reap financial gain from the murder and to prevent discovery of her actions.[14]
Concluding that the evidence was admitted under statutory authority, was relevant and did not create an undue risk of arbitrary imposition of the death penalty, the court finds Henry v. Wainwright, 661 F.2d 56 (5th Cir. 1981), Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), cert. granted, 454 U.S. 814, 102 S. Ct. 90, 70 L. Ed. 2d 82 (1981), certified to the Supreme Court of Georgia, ___ U.S. ___, 102 S. Ct. 1856, 72 L. Ed. 2d 222 (1982), and State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981), all to be inapposite, as all concern the actual submission to the jury of an unauthorized or non-statutory aggravating circumstance.
2. Submission of Aggravating Circumstances.
Two contentions are raised concerning the trial court's submission of three aggravating circumstances for the jury's consideration. The first is that there was an impermissible overlappage between the "pecuniary gain" and the "hindering the enforcement of the laws" aggravating circumstances. See N.C.G.S. § 2000(e)(6), (7). The jury found that both factors were present. It is contended that the jury may have compounded a single aggravating circumstance into two separate ones, thereby risking an arbitrary imposition of the death penalty. See State v. Goodman, 298 N.C. 1, 28-29, 257 S.E.2d 569, 587 (1979). The evidence unquestionably supported the submission of both circumstances, for petitioner herself had testified that dual motives for the poisonings were to enable her to carry out the forgeries and to protect herself from being prosecuted for them. Trial Transcript at 553-554, 617-618, 651, 657-658. Judge McKinnon's instructions did not unduly muddle these separate factors. There is no arbitrary or impermissible compounding of aggravating factors where the evidence fully supports each.[15]
Petitioner next contends that the submission of the "especially heinous, atrocious, or cruel" aggravating circumstance was impermissible because not sufficiently limited as required by Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980), and State v. Goodman, supra. In Godfrey the Supreme Court vacated a death sentence which was based in part upon a jury's finding that the murder was heinous where the crime could not be said to be materially more depraved than any other murder. 446 U.S. at 430-433, 100 S.Ct. at 1765-67. Here, however, Judge McKinnon fully anticipated Godfrey and narrowly defined the words "especially," "heinous," "atrocious," and "cruel." Trial Transcript at 887. The court did not imply to the jury that there was an inherent cruelty or atrocity in every murder, an implication later prohibited in Godfrey. The evidence depicting the slow and agonizing demise of Mr. Taylor while petitioner stood by holding the key to his life in her hands fully supports *471 submission of this aggravating circumstance.[16]
3. Instructions On Mitigating Circumstances.
After instructing the jury on the applicable aggravating circumstances, Judge McKinnon turned to the mitigating circumstances and submitted to the jury the specific circumstances of "impaired capacity" and "mental or emotional disturbance." N.C.G.S. § 15A-2000(f)(2), (6). He also submitted to the jury an open-ended instruction permitting the jury to consider "from the evidence any circumstance or circumstances which appear to [it] to lessen the seriousness of the crime charged or suggest a lesser penalty than otherwise would be required." Trial Transcript at 892-893, N.C.G.S. § 15A-2000(f)(9). Defendant raises several contentions concerning the adequacy of the instructions on the various mitigating circumstances. As petitioner correctly notes, these instructions must be scrutinized for compliance with the principle that a jury must be permitted to consider any and all possible mitigating factors. Eddings v. Oklahoma, ___ U.S. ___, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978). Under the North Carolina death penalty statute the trial judge must instruct the jury to consider any mitigating circumstance "which may be supported by the evidence," and the court "shall furnish to the jury a written list of issues relating to such ... circumstances." N.C.G.S. § 15A-2000(b).
Petitioner first contends that Judge McKinnon should have submitted three additional mitigating circumstances which were supported by the evidence: no significant history of prior criminal activity, acting under duress, and the age of the defendant. N.C.G.S. § 15A-2000(f)(1), (5) & (7). As to the first of these, petitioner asserts that because she had no significant history of prior convictions, she therefore had no history of prior criminal activity. The statute is not limited, however, to convictions, and the evidence was uncontroverted that petitioner had a significant history of prior criminal activity, namely four other homicides. State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979) (Johnson I), cited for the proposition that "prior criminal activity" is limited to prior convictions, does not so hold. See id. at 71-72, 257 S.E.2d at 615. Similarly, the mitigating circumstances of acting under duress was inapplicable, because there was no evidence that petitioner acted under the influence or coercion of any other person. Petitioner's age, forty-five years at the time of the crime, could not rationally be considered a mitigating circumstance. Moreover, Mr. Jacobson did not request specific instructions on any of these mitigating circumstances. When counsel makes no request for additional mitigating circumstance instructions, "failure of the court to mention any particular item as a possible mitigating factor will not be held for error so long as the trial judge instructs that the jury may consider any circumstance which it finds to have mitigating value pursuant to G.S. 15A-2000(f)(9)." Id. at 72, 257 S.E.2d at 616. The jury was in no way precluded by the operation of law or the instructions of the court from considering any evidence relevant to mitigation. Compare Lockett v. Ohio, supra.
It is also contended that Judge McKinnon failed adequately to differentiate between the mitigating circumstances of mental and emotional disturbance and diminished impairment and between those circumstances and the M'Naughten test for legal insanity, citing State v. Johnson (Johnson I), supra, where the state Supreme Court held that a trial court which only read the language of the statute insufficiently guided the jury in its consideration of the impaired capacity mitigating circumstance. 298 N.C. at 63-70, *472 257 S.E.2d at 610-614. Here, the contention is without a factual foundation since Judge McKinnon specifically distinguished the insanity test from the impaired capacity circumstance and in no way muddled the two mitigating circumstances. Trial Transcript at 891-893.
Also without merit is the contention that the death sentence here is invalid because Judge McKinnon failed specifically to elaborate various plausible non-statutory mitigating circumstances. No such circumstances supported by the evidence admitted at trial have been suggested. Under state law the court has no obligation specifically to instruct on non-statutory circumstances which are not called to its attention. State v. Goodman, supra, 298 N.C. at 34, 257 S.E.2d at 590 (1979). There was no constitutional violation because the jury was not precluded from considering non-statutory mitigating factors. Lockett v. Ohio, supra, 438 U.S. at 608, 98 S.Ct. at 2966; Washington v. Watkins, 655 F.2d 1346, 1377 (5th Cir. 1981).
Petitioner next contends that by failing to specifically instruct the jury that the burden of proof on mitigating circumstances was by a preponderance of the evidence, Judge McKinnon committed a fatal error. He did, however, tell the jury that the defendant's burden was not proof beyond a reasonable doubt and indicated that mitigating circumstances would be present if the jury "merely" found them to exist "from the evidence." Trial Transcript at 891. The jury was not insufficiently guided in this respect in its consideration of mitigating factors.
Finally, petitioner contends that Judge McKinnon failed to instruct the jury correctly concerning the independent role to be given mitigating circumstances. The court stated that if both aggravating and mitigating circumstances were found, the jury must consider whether the mitigating circumstances "outweigh" the aggravating circumstances. Trial Transcript at 896-897. The weighing of mitigating and aggravating circumstances was approved in dictum in Lockett v. Ohio, supra, and in Proffitt v. Florida, 428 U.S. 242, 248-251, 96 S. Ct. 2960, 2964-66, 49 L. Ed. 2d 913 (1976). Mitigating circumstances are given sufficient "independent mitigating weight," Lockett v. Ohio, supra, 438 U.S. at 605, 98 S.Ct. at 2965, in a balancing with aggravating factors. Moreover, in this case the jury before it reached the "balancing" question had already determined that there were no mitigating circumstances to be weighed, whether by balance or otherwise.
To summarize, the instructions of Judge McKinnon concerning the jury's consideration of mitigating factors fully complied with state law. They in no way precluded the jury from considering any evidence relevant to mitigation nor introduced any impermissible or arbitrary factor into the sentencing process.
4. Other Asserted Errors in Sentence Phase Instructions.
Two other challenges are raised to Judge McKinnon's sentencing instructions. The first is that he inaccurately summarized petitioner's proof in mitigation, and the second is that he failed to tell the jury of the result should it be unable to reach a unanimous verdict. Neither of these contentions entitle petitioner to relief. Informing the jury of the effect of their failure to reach a unanimous verdict is not permitted under state law. State v. Hutchins, 303 N.C. 321, 353, 279 S.E.2d 788 (1981); State v. Johnson, supra (Johnson II). The Supreme Court of Louisiana has taken a contrary position, State v. Williams, 392 So. 2d 619, 633-635 (La.1980). The hypothesis that such an instruction would remove a factor of unreliability is questionable, and the court concludes that such an instruction is not required under Beck v. Alabama, supra.[17]
*473 Judge McKinnon's summary of petitioner's evidence is contended to have implied that petitioner admitted the killings were intentional and to have confused proof of mental illness with proof of drug abuse. After careful review of the charge, however, the court finds no substantial inaccuracy and certainly no inaccuracy sufficient to introduce a significant risk of arbitrariness into the sentencing hearing or to preclude the jury from giving full consideration to the evidence presented in mitigation.
APPELLATE REVIEW
The North Carolina Supreme Court is required to overturn any sentence of death when "the record does not support the jury's findings of any aggravating circumstance or circumstances upon which the sentencing court based its sentence of death, or upon a finding that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, or upon a finding that the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." N.C.G.S. § 15A-2000(d)(2). Petitioner contends that the North Carolina Supreme Court did not adequately engage in this mandatory "proportionality" review since the court did not affirmatively state that it had compared the sentence in this case with that imposed in other cases and since the court has not expressly adopted any means for implementing proportionality review. See Comment, supra, 16 Wake Forest L.Rev. at 758-759. The Supreme Court stated:
"We do not take lightly the responsibility imposed on us by G.S. 15A-2000(d)(2). We have combed the record before us. We have carefully considered the briefs and arguments which have been presented to us. We conclude that there is sufficient evidence in the record to support the jury's findings as to the aggravating circumstances which were submitted to it. We find nothing in the record which would suggest that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. The manner in which death was inflicted and the way in which defendant conducted herself after she administered the poison to Taylor leads us to conclude that the sentence of death is not excessive or disproportionate considering both the crime and the defendant. We, therefore, decline to exercise our statutory discretion to set aside the sentence imposed." State v. Barfield, supra, 298 N.C. at 354-355, 259 S.E.2d at 544.
The statute does not require that the court establish a particular means for implementing proportionality review. Compare Ga.Code Ann. § 27-2537, discussed in Gregg v. Georgia, 428 U.S. 153, 204-206, 96 S. Ct. 2909, 2940, 49 L. Ed. 2d 859 (1976). As the respondents indicate, by the time Barfield was decided, the North Carolina Supreme Court had decided four other death penalty cases under N.C.G.S. § 15A-2000 and several additional first-degree murder cases, thus giving the court a body of cases against which it could conduct a proportionality review, and there is no basis for assuming that the court failed to fulfill the requirements of the statutory scheme. In approving the Georgia statute, the United States Supreme Court did not erect detailed requirements for proportionality review but merely stated that proportionality review "serves as check against the random or arbitrary imposition of the death penalty." Gregg v. Georgia, supra, 428 U.S. at 206, 96 S.Ct. at 2940. Accord, Proffitt v. Florida, 428 U.S. 242, 253, 96 S. Ct. 2960, 2967, 49 L. Ed. 2d 913 (1976). While actual disproportionality might afford grounds for habeas relief, Lockett v. Ohio, supra, 438 U.S. at 624-628, 98 S.Ct. at 2983-85 (White, J., concurring); Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), no such showing has been made here.
*474 ARBITRARY IMPOSITION OF THE DEATH PENALTY
As the final challenge to the validity of the sentence of death, petitioner contends that the penalty is unconstitutional because arbitrarily administered in North Carolina. In support of this contention petitioner asks the court to defer decision pending the completion of a relevant study by Barry Nakell, Professor of Law at the University of North Carolina. No anticipated date for the completion of this study has been mentioned, and the court notes that two years ago, petitioner made the same request of Judge Braswell, indicating at that time that the study was quite close to completion. Judge Braswell declined to await the study and so does this court. In the absence of any factual proof,[18] the contention cannot be sustained.
CONCLUSION
The court has carefully and thoroughly considered each of the issues petitioner has raised and has concluded that, taken individually and collectively, they do not entitle petitioner to relief. She received a fair trial and able representation. The evidence against her was overwhelming. She was convicted and sentenced in strict compliance with a constitutionally sound statutory scheme by twelve of her peers who unanimously concluded that, beyond a reasonable doubt, the death penalty should be imposed in this case. Judge McKinnon ably anticipated many later developments in capital punishment law and presided with his accustomed skill over the trial. No grounds for relief having been found, respondents' motion to dismiss the petition must be granted and the petition dismissed, and it is
SO ORDERED.
APPENDIX: VOIR DIRE OF JUROR DENT
[By Mr. Britt, the District Attorney]
Mr. Dent, where do you live?
MR. DENT: Bladenboro.
MR. BRITT: Are you a married man, sir?
MR. DENT: Yes, sir.
MR. BRITT: Do you have children?
MR. DENT: No, sir.
MR. BRITT: Mr. Dent, how do you feel about capital punishment, sir? Are you opposed to it or do you feel like it is a necessary law?
MR. DENT: I don't believe I could vote on death.
MR. BRITT: Are you saying then that you are opposed to the death penalty?
MR. DENT: I don't believe in it.
MR. BRITT: Don't believe in it?
MR. DENT: No.
MR. BRITT: Well, do you believe in any cases or some cases?
MR. DENT: I believe in some cases.
MR. BRITT: Well, it would have to be a special case. Is that what you are saying?
MR. DENT: Yes. I just don't believe in it.
MR. BRITT: Let me ask you this: Even though you believe in it in special cases, could you be a part of it in a special case, that is, could you sit on the jury and vote to return a judgment or recommendation to the Court which would cause the death penalty to be imposed?
MR. DENT: I don't believe I could.
MR. BRITT: Under no circumstances?
MR. DENT: I don't believe I could.
*475 MR. BRITT: Well, we are looking for a yes or no answer, if we can get it. Do you feel that you could serve on a jury and return a verdict of death or a judgment of death?
MR. DENT: I don't believe I could, no, sir.
MR. BRITT: Are you saying you couldn't do that under any circumstances?
MR. DENT: I don't know. It is the first time I have ever been in something like this.
MR. BRITT: Are you saying you could not do that regardless of the evidence?
MR. DENT: It is hard to do.
MR. BRITT: Sir?
MR. DENT: It would be hard to do.
MR. BRITT: I understand it would be hard to do. Are you saying you could not do it under any circumstances?
MR. DENT: I don't know.
MR. BRITT: Sir?
MR. DENT: I don't know.
MR. BRITT: Do you need a few minutes to think, Mr. Dent?
MR. DENT: I don't believe I could sit on it and do that.
MR. BRITT: Are you saying you could not sit?
MR. DENT: Yes.
MR. BRITT: Sir?
MR. DENT: Yes, sir.
MR. BRITT: And under no circumstances could you sit on a case in which the death penalty would be imposed. Is that correct?
MR. DENT: Yes, sir.
MR. BRITT: For cause, your Honor.
COURT: Let me say to the jurors who have just recently come in, as has been indicated, this is a case where First Degree Murder is charged; and the law of our state at the present permits the death penalty under certain circumstances where a person is found guilty of first degree murder. In the trial of this case, the jury will first hear evidence and determine whether the Defendant is guilty of First Degree Murder or some lesser offense or not guilty of the crime. If she should be found guilty of First Degree Murder, then after the jury has returned its verdict as to guilt, there will be a later proceeding in which other evidence may be offered and from which the jury determines its recommendation as to sentence. The recommendation may be for the death sentence or it may be for life imprisonment. You will be asked to consider whether aggravated circumstances exist sufficient to require the death sentence to be imposed, so that is the procedure this trial will take as it goes forward. Now, Mr. Dent, if you understand or think you understand that explanation of what the law is and you are called onif the Defendant was found guilty of First Degree Murder in the first stage of the trial, and you thereafter heard evidence as to any aggravating and mitigating circumstances that may affect the punishment, do you feel that there are any circumstances so aggravated that you could vote for the recommendation of the death sentence?
MR. DENT: I don't know.
COURT: You are not certain at this time?
MR. DENT: No, sir.
COURT: Do you think you understand the procedure that we will be going through and what the jury will be required to consider?
MR. DENT: Yes.
COURT: And do you believe that there may be aggravating circumstances sufficient that you could in certain cases vote for the death penalty, or do you know?
MR. DENT: I don't know.
COURT: To those four jurors, I will say there are people who favor the death penalty. There are people who oppose it and there are people who even though they oppose the death penalty as a matter of religious or moral scruples feel that they can follow the law that the legislature has provided and carry out their duty as a juror in spite of their personal feelings or convictions. Now, Mr. Dent, at this time I'm *476 asking you do you feel that your scruples or convictions about the death sentence are such that you could not, under any circumstances that you can imagine, vote for the death penalty?
MR. DENT: I don't know.
COURT: Do you feel you are able to say at this time?
MR. DENT: I don't.
COURT: Any other questions?
MR. JACOBSON: Mr. Dent, you could follow the law as handed down by the Court in determining whether this Defendant was guilty or innocent, could you not?
MR. DENT: Sir?
MR. JACOBSON: You could rule on whether she was guilty or innocent. You wouldn't have any problem with that part of the trial, would you?
MR. DENT: No.
MR. JACOBSON: You read the newspapers and listen to the radio, do you not?
MR. DENT: I listen to television. I haven't heard nothing about the case.
MR. JACOBSON: I am not talking about this case. You have heard of other murder cases, have you not?
MR. DENT: Yes, sir.
MR. JACOBSON: Probably a whole lot of them over your lifetime. I want you to think about the worst one you have ever heard about.
MR. BRITT: I object to that.
COURT: Overruled.
MR. JACOBSON: Are you thinking about the worst one you have ever heard about?
MR. DENT: Yes.
MR. JACOBSON: Could you render the death sentence in that case?
MR. DENT: Yes, sir.
MR. JACOBSON: Nothing further.
COURT: Challenge denied at this time.
MR. BRITT: All right. I take it, since you say you could render the death sentence in that case, if you sat on this jury and you were satisfied that this case was the type of case that you thought the death penalty should be imposed in, and you felt that way beyond a reasonable doubt, you could vote to impose the death penalty. Is that correct, Mr. Dent?
MR. DENT: Yes.
MR. BRITT: Sir?
MR. DENT: I reckon when I hear the case.
MR. BRITT: I understand that but if you were satisfied and satisfied beyond a reasonable doubt that this was the type of case in which the death penalty should be imposed, you would vote to impose it, would you not?
MR. DENT: I don't believe in capital punishment.
MR. BRITT: You don't believe in capital punishment. All right, sir. Let me ask you this: Are you saying that regardless of the circumstances and regardless of the facts you just simply could not vote to impose the death penalty for anybody? Is that what you are saying, sir?
MR. JACOBSON: Objection. He answered it.
COURT: Overruled.
MR. DENT: I don't believe in it.
MR. BRITT: I know that. You say you don't believe in it. Is that based on moral or religious scruples that you have, sir?
MR. DENT: I just don't believe in it.
MR. BRITT: Is your feelings so strong that regardless of the circumstances and regardless of the evidence, you just simply could not vote to impose the death penalty? Is that what you are saying?
MR. DENT: I don't believe I could.
MR. BRITT: What was your answer?
MR. DENT: I said I couldn't.
COURT: Could not?
MR. DENT: Yes, sir.
MR. BRITT: For cause, your Honor.
COURT: Mr. Dent, you one time said you didn't know and you now answer that you could not. I want to be sure we understand *477 you. You understand that if you were selected as a juror and if the jury found the Defendant guilty of First Degree Murder, you would then be called upon to consider any aggravating circumstances and any mitigating circumstances in a second part of the trial, and you would be called on to vote as to whether the sentence should be the death sentence or life imprisonment. Do you understand that?
MR. DENT: Yes.
COURT: Do you feel that under no circumstances, no matter how aggravating the evidence might be, that you could not under any circumstances vote for the sentence recommending the death sentence?
MR. DENT: I don't believe I could.
COURT: You may be excused.
MR. DENT EXCUSED.
Trial Transcript at 88-96.
NOTES
[1] As noted above, the court has carefully considered all testimony offered in the state post-conviction proceedings, including a large amount heard but not considered by Judge Braswell. The parties appear to agree that by so doing, the court has cured any deficiency there may have been in the state court hearing. The testimony excluded there was expert opinion on the question of counsel's effectiveness rather than evidence of any underlying historical facts. See, e.g., Washington v. Watkins, 655 F.2d 1346, 1354 (5th Cir. 1981). Therefore, the exclusion of testimony did not materially affect Judge Braswell's findings of fact, although it may have affected his "evaluation based on those subsidiary findings ... determining whether counsel's representation satisfied the qualitative, normative standards dictated by the Sixth and Fourteenth Amendments to the Constitution." Id. The state court's exclusion of testimony, whether right or wrong, in no way debilitated its determination of basic historical facts, which were almost entirely undisputed.
[2] In rejecting an exception based on the failure of the trial court to grant the motion for additional counsel the Supreme Court of North Carolina said:
"Though Mr. Jacobson carried a great burden in representing the defendant in a capital case, we do not find it to have been so disproportionate to that borne in the usual course of criminal defense work so as to have required the court to have appointed another attorney to provide assistance. We would add, parenthetically, that Judge McLean's order reflects favorably upon Mr. Jacobson's professional background and experience, indicating that he was competent to represent the best interests of the defendant. It is our opinion that Mr. Jacobson gave defendant high quality representation." State v. Barfield, 298 N.C. 306, 319, 259 S.E.2d 510, 524 (1979).
[3] Although the death penalty is constitutionally different from other forms of punishment, e.g., Beck v. Alabama, 447 U.S. 625, 637, 100 S. Ct. 2382, 2388, 65 L. Ed. 2d 392 (1980), the standard for measuring the competence of counsel does not vary. Rather, the fact that a defendant risks the death penalty is one fact among many relevant to the evaluation of whether counsel's representation was within the ordinary range of competence. See Washington v. Watkins, 655 F.2d 1346, 1356-1357 (5th Cir. 1981) (rejecting "strict scrutiny" of counsel's performance in a capital case). This, however, in no way means that the court has not given full and careful consideration to each of the asserted inadequacies in counsel's performance.
[4] Cases cited in support of this proposition such as Proffitt v. United States, 582 F.2d 854 (4th Cir. 1978), and United States v. Fessel, 531 F.2d 1275 (5th Cir. 1976), are inapposite here. Those cases involved the failure of defense counsel charged with notice of their client's mental problems to move for the appointment of psychiatric experts under 18 U.S.C. § 3006A(e). Here defense counsel not only moved for and obtained the appointment of two competent psychiatrists under state law but he also had the benefit of petitioner's own psychiatrist, Dr. Sainz, under whose care petitioner had been for some time.
[5] "Of course, each case must be evaluated individually. Serious dereliction in counsel's representation might well be established where material witnesses are not called to testify .... For example, if an expert witness could readily verify that `blood' was actually `paint,' counsel might be deficient in failing to pursue such a witness.... Unfortunately, in today's technological society, experts generally can be found to render `scientific' opinions on either side of any question." Knott v. Mabry, 671 F.2d 1208, 1212 (8th Cir. 1982).
[6] Petitioner asks the court to defer ruling on this contention until after disposition of four petitions for writs of habeas corpus currently pending in the United States District Court for the Western District of North Carolina. An extensive evidentiary presentation is being made in that court in an attempt to establish certain of the factual premises underlying the attack on the validity of the death-qualified jury. See Petition for Writ of Habeas Corpus at 18-19. The request is denied, principally for the reason that this case and those in the Western District will all undoubtedly reach the Fourth Circuit, which has not spoken on the issue and which will have full benefit of the record developed and decision rendered in the Western District cases.
[7] The complete examination is set out in an appendix to this opinion.
[8] Addressing this contention raised as to Mr. Dent and two other prospective jurors, the North Carolina Supreme Court said:
"While it is true that taken by themselves, the answers that some of the jurors called to serve in defendant's trial seem to be equivocal or contradictory, taken as a whole, the examination indicates opposition to the death penalty so strong that they could not vote to impose it regardless of the evidence." State v. Barfield, supra, 298 N.C. at 324, 259 S.E.2d at 527.
This issue was one of two raised in the petition to the United States Supreme Court for a writ of certiorari following petitioner's direct appeal. The petition was denied. Barfield v. North Carolina, 448 U.S. 907, 100 S. Ct. 3050, 65 L. Ed. 2d 1137 (1980).
[9] In Johnson II, the North Carolina Supreme Court held that it was error under Witherspoon to exclude a prospective juror who, when asked whether under any circumstances he would vote for the death penalty, answered "I don't think so." The court held that this answer was not sufficiently unequivocal to permit exclusion but upheld the imposition of the death sentence because the defendant failed to demonstrate prejudice from the error. The proposition that prejudice must be shown to entitle a petitioner to resentencing after a Witherspoon violation has been rejected by the Fifth Circuit. Moore v. Estelle, 670 F.2d 56 (5th Cir. 1982).
[10] Petitioner contends that on March 13 she was not fully advised of her rights but was only reminded that she still had the rights described to her on March 10 and that such a reminder is insufficient under Miranda. The state court conducted a voir dire hearing when petitioner moved to suppress the confessions and there was conflicting testimony. Deputy Sheriff Lovett stated that petitioner was fully advised of her rights on March 13, but petitioner's son stated that she was only told that she "still [had] her rights." The state court generally found the facts to be as testified to by Mr. Lovett and specifically found "that the Defendant was verbally informed of her rights, or her rights were recalled to her" on March 13. Trial Transcript at 483-511. Petitioner has asserted no challenge to the presumption of correctness enjoyed by these findings, 28 U.S.C. § 2254(d), and the court perceives none and adopts them. By generally finding the facts as stated by the deputy sheriff, Judge McKinnon necessarily also found that petitioner stated specifically that she did not want a lawyer and that she wanted to make a statement on March 13. Trial Transcript at 491.
[11] Therefore Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975), cited by petitioner, is inapposite, for it discusses interrogation of a suspect who has invoked his right to remain silent. Unlike in Mosley, there is no reason here to view petitioner's waiver of her Miranda rights skeptically. See id. at 110 n.2, 96 S.Ct. at 329 n.2. (White, J., concurring).
[12] The North Carolina statute thus resembles in many respects that adopted by Georgia and found constitutional in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), primarily on the grounds that it reliably guides the sentencer's exercise of discretion in determining whether to impose the death penalty. In State v. Barfield, supra, the North Carolina Supreme Court determined for the first time that the current North Carolina death penalty statute was constitutional. See generally, Comment: Evolving Standards of Decency: The Constitutionality of North Carolina's Capital Punishment Statute, 16 Wake Forest L.Rev. 737 (1980).
[13] The court notes that N.C.G.S. § 15A-2000(e)(11), creating as an aggravating circumstance proof that "[t]he murder for which the defendant stands convicted was part of a course of conduct in which the defendant engaged and which included the commission by the defendant of other crimes of violence against another person or persons," might authorize independent evidence of other crimes during the sentencing proceeding, but was not in effect during petitioner's trial, having been added to the statute in 1979.
[14] The court's view that the evidence was relevant to the aggravating circumstances is not meant to express any opinion as to whether the evidence of other murders could have been admitted in sentencing proceeding had it not been presented during the guilt phase.
[15] The court notes that Nebraska has given its "pecuniary gain" aggravating circumstance a very narrow interpretation, in essence permitting its submission only in a murder-for-hire set of facts. State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977); State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977). See Comment, supra, 16 Wake Forest L.Rev. at 756 n.162. North Carolina has rejected this interpretation and held that submission of the pecuniary gain circumstance is permissible in a killing which occurs during an armed robbery, where "hope of pecuniary gain provided the impetus for the murder ...." State v. Oliver, 302 N.C. 28, 62-63, 274 S.E.2d 183, 204-205 (1981). The Oliver court did not consider the question of overlappage between the "pecuniary gain" and the "hinder law enforcement" aggravating circumstances.
[16] The submission was not based merely upon the fact that Mr. Taylor suffered a lingering death. See State v. Hamlette, 302 N.C. 490, 276 S.E.2d 338 (1981). Rather, the evidence that petitioner stood by for days, never telling family or medical personnel of the cause of Mr. Taylor's illness when his life could have been saved, and that she watched him suffer horribly, were the elements of heinousness critical here.
[17] Petitioner contends that a juror who conscientiously believes that the evidence called for a life sentence might nevertheless vote for the death penalty in order to avoid mistakenly assumed consequences of jury deadlock. Although this scenario is plausible, so is the converse possibility that a juror convinced of the appropriateness of a life sentence would refuse to consider the evidence and the views of other jurors in support of the death penalty, knowing that his blind obstinance would perforce result in a life sentence. Neither scenario results in a "reliable" or desirable process of deliberation, but the court cannot conclude that the first scenario is significantly more likely to occur as a result of not giving the instruction than is the second as a result of giving it.
[18] Petitioner has offered raw figures purportedly showing that as of December 31, 1979, the race of the victim is the best "explainer" of the imposition of the death penalty in North Carolina. Petition for Writ of Habeas Corpus, Appendix A. The figures, however, do not explain but merely correlate, and only examine demographic factors, leaving unexplored all considerations of the circumstances of the crime, the presence or absence of aggravating and mitigating factors, and the relevant nondemographic characteristics of the defendant. By stating that the Nakell study is "the only potentially available evidence relevant and material to the determination of the arbitrary imposition issue," Petition for Writ of Habeas Corpus, Appendix B, counsel for petitioner implicitly admits that the 1979 figures fail to prove anything. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611501/ | 42 Wis. 2d 247 (1969)
166 N.W.2d 169
EBERT and wife, Appellants,
v.
KOHL'S FOOD STORES HOWELL, INC., Respondent.
No. 192.
Supreme Court of Wisconsin.
Argued March 5, 1969.
Decided April 1, 1969.
*249 For the appellants there was a brief by Ralph H. Schultz, attorney, and Henry A. Tessmer of counsel, both of Milwaukee, and oral argument by Mr. Tessmer.
For the respondent there was a brief by Prosser, Zimmermann, Wiedabach, Koppa & Lane of Milwaukee, and oral argument by James W. Lane.
ROBERT W. HANSEN, J.
In clear and unmistakable language, the Wisconsin legislature has provided that, where an action is initiated by service of a summons only ". . . the defendant, in person or by attorney, within the time fixed in s. 262.10 (2), may (NOTE: as was here done) demand in writing a copy of the complaint, specifying a place, embracing a post-office address, within this state where the complaint may be served (NOTE: as was here done) and a copy of the complaint shall be served within 20 days thereafter accordingly." (Emphasis supplied.)
*250 The complaint in this case was not served within twenty days after a timely demand therefor. The service of the complaint (on March 7, 1968) was about four months late under the statute. Even the attempted service by mail (on February 26, 1968) was more than three months beyond the time limit fixed by the statute. There is no escaping the conclusion that the statutory requirement as to the complaint following the summons within twenty days of proper demand therefor was not complied with.
Appellants contend that the statute here involved (sec. 262.12 (1) ) is to be read and interpreted in the light of sec. 262.01, providing that "This chapter shall be liberally construed to the end that actions be speedily and finally determined on their merits." Appellants would underline the words "on their merits" urging that dismissal for noncompliance precludes a deciding of the cause upon the merits. This emphasis would make the statute a toothless hound dog, baying but not biting. Compliance with prescribed procedures upon penalty of dismissal for noncompliance is a necessary concomitant of seeking disposition of cases "speedily and finally."
This is not to say that each and every action in which a complaint does not follow a summons within twenty days after timely demand must be dismissed. Sec. 269.45, Stats., authorizes the bringing of a motion by plaintiff for an extension of time for service of the complaint,[1] although such motion is addressed to the sound discretion of the court, and only clear abuse of such discretion would warrant its exercise being disturbed on appeal.[2] For example, where plaintiff establishes that an adverse examination of defendant is required to enable plaintiff to prepare a complaint, the trial court may order such examination and extend the time for service of the *251 complaint.[3] Since no motion was made to extend the time for service of the complaint, we do not deal here with the clear right of the trial courts to so extend such time for service.
Emphasis is placed in the appeal on the failure to comply with the statute being attributable to a combination of illness of initial trial counsel and inadvertence or oversight on the part of successor counsel who took over the handling of plaintiffs' counsel's practice. This might have provided a basis for a motion to extend the time for serving the complaint. If establishable, such fact situation might have warranted a different ruling by the trial court on the motion to dismiss. However, the affidavit filed with the trial court in opposition to defendant's motion to dismiss limited itself to reciting the date the summons was served, the date the demand for a copy of the complaint was served, and the two dates on which copies of the complaint were served, all ". . . for the purpose of showing that the defendants did receive a copy of the complaint prior to the 5th day of March, 1968, and that they failed and neglected to return the same." These facts or factors do not toll the statute, nor do they give the court cause for exercise of discretion in ruling on the motion to dismiss. Neither the trial court nor this court can rely upon facts outside the record.
It is true that, in its order for judgment, the trial court observed that, ". . . after reading the briefs of counsel, and after hearing the argument of counsel, was of the opinion that the requirements of Section 262.12 (1), . . . are mandatory and not discretionary . . . ." If this is read to mean that under any and all circumstances, the elapsing of twenty days between demand and service of a complaint is fatal to the action, it goes too far. Such interpretation would bar considering a motion to extend the time, at least after the twenty days had come and gone. *252 However, if this is read to mean that on the record here established, with no motion made for extension of time and no factual basis established for the exercise of judicial discretion, defendant's motion to dismiss was mandatory, not discretionary, there can be no quarrel with the statement. On what was before it, the trial court had no alternative but to dismiss plaintiffs' summons for failure to comply with sec. 262.12 (1), Stats.
With the granting of defendant's motion to dismiss plaintiffs' summons, no action remained before the court to be considered. When the summons was stricken, the demurrer of the defendant went with it. The trial court's additional ruling sustaining defendant's demurrer upon the ground that the action was not commenced within the time limited by law, and its dismissal of the action and complaint upon the merits, must be considered surplusage. As such, these portions of the judgment are stricken and deleted. If a successor action were subject to the affirmative defense that the statute of limitations had expired, there would be no point to its being brought. However, it is the action, not the cause of action, which is dismissable for failure to comply with sec. 262.12 (1), Stats. Granting the motion to dismiss for failure to comply with the statute here involved is without prejudice to the right to institute new proceedings although in a given situation such right to start over may be a roadway blocked by the operation of other statutory provisions.
By the Court.Judgment modified and, as modified, affirmed.
NOTES
[1] Banking Comm. v. Flanagan (1940), 233 Wis. 405, 289 N.W. 647.
[2] State ex rel. Walling v. Sullivan (1944), 245 Wis. 180, 13 N.W.2d 550.
[3] Bavarian Soccer Club, Inc. v. Pierson (1967), 36 Wis. 2d 8, 153 N.W.2d 1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613064/ | 11 So. 3d 393 (2009)
Robert RODRIGUEZ, Appellant,
v.
Archbishop John C. FAVALORA, etc., Appellee.
No. 3D07-1931.
District Court of Appeal of Florida, Third District.
April 8, 2009.
Rehearing and Rehearing En Banc Denied July 2, 2009.
Ronald P. Weil, Miami, and Manuel A. Rodriguez, Coral Gables, for appellant.
Gaebe, Mullen, Antonelli, Esco & DiMatteo and Miriam R. Merlo, and Anne C. Sullivan, Coral Gables, for appellee.
Before GERSTEN, C.J., and SHEPHERD and LAGOA JJ.
PER CURIAM.
Affirmed. See Davis v. Monahan, 832 So. 2d 708 (Fla.2002).
SHEPHERD and LAGOA, JJ., concur.
GERSTEN, C.J. (dissenting).
I respectfully dissent. Although this case may not merit a footnote in the history of United States/Cuba relations, it will be an indelible part of Roberto Rodriguez' psyche. Therefore, because I believe that equitable legal grounds and sound public policy call for delayed accrual of the statute of limitations in this childhood sexual abuse case, I would reverse.
Roberto Rodriguez ("Rodriguez") was a "Pedro Pan" child.[1] "Operation Pedro Pan" was a semi-clandestine operation, which in late 1960 attempted to remove children from Cuba after Fidel Castro came into power. Over 14,000 unaccompanied Cuban children came to the United States between 1960 and 1962. Approximately half of these children had no relatives or friends to receive them in the United States. Thus, upon their arrival, they were cared for by the charitable arm of the Archdiocese of Miami, the Catholic Welfare Bureau ("CWB"). CWB's director, Father Bryan O. Walsh, set up facilities in Miami to house the children until they could be reunited with their parents. See generally Yvonne M. Conde, Operation Pedro Pan: The Untold Exodus of 14,000 Cuban Children (1999).
Rodriguez sued Archbishop John C. Favalora, as Archbishop of the Archdiocese of Miami ("the Archdiocese"), for damages resulting from sexual abuse which allegedly occurred while Rodriguez was under CWB care. The trial court dismissed the complaint as barred by the statute of limitations. Rodriguez appeals.
The Archdiocese contends that the suit is barred by the negligence statute of limitations. Rodriguez asserts that the doctrine of delayed discovery should be applied to delay the running of the statute. I agree with Rodriguez.
The dismissal of a complaint is reviewed de novo. The appellate court confines its review to the four corners of the complaint, *394 accepting the allegations of the complaint as true, and construing them in the light most favorable to the plaintiff. See, e.g., Brooke v. Shumaker, Loop & Kendrick, LLP, 828 So. 2d 1078 (Fla. 2d DCA 2002).
Rodriguez' complaint states that he arrived in Miami in December of 1961, when he was eleven years old. Rodriguez was transported to a CWB camp in Florida City where he stayed until the spring of 1962. At this camp, Rodriguez was sexually abused. CWB later assigned Rodriguez to a foster home where he remained for approximately two years. From there, CWB provisionally returned Rodriguez to a CWB camp in Opa-Locka in 1964.
Rodriguez spent his final years of CWB care in a Texas reformatory for delinquent children. Rodriguez believes he was sent to the Texas reformatory in an effort to silence his complaints about the abuse. Rodriguez also alleges that while at the reformatory, he was given a regimen of unknown drugs. In 1966, at the age of 16, Rodriguez was finally reunited with his parents.
Rodriguez claims that between 1961 and 1966 the Archdiocese and its agents were the functional equivalent of his parents. As such, the Archdiocese owed him an affirmative duty of care. This duty included providing for his emotional, physical, and psychological well being and development. This duty also entailed furnishing him with a safe and secure environment with appropriate supervision, counsel, and instruction.
Rodriguez alleges that the Archdiocese breached its duty because, while under the Archdiocese's care, he was physically and emotionally threatened, sexually victimized, and generally traumatized. As a result of the Archdiocese's breach of duty, Rodriguez claims he suffered damages.
Significantly, Rodriguez alleges in his complaint that he is unable to recall the precise acts of abuse committed against him. He attributes this memory loss to his age at the time, the drugs he was given, and the trauma he suffered. Specifically, he alleges that "memory of his assaults, abuse and victimization [were] systematically extinguished," and that he "never recalled, or spoke of any of the acts of abuse he suffered."
Rodriguez' claim is based on negligence. Thus, on the motion to dismiss, the trial court had to determine when Rodriguez' claim of negligence accrued, and whether Rodriguez filed the action within the time prescribed by the statute of limitations. This decision involves analyzing the applicable statute of limitations, and exceptions to the statute's exclusionary effect.
A cause of action accrues when all the elements necessary to the cause of action are present. § 95.031(1), Fla. Stat. (2005). The statute of limitations for negligence provides that the action must be commenced within four years from the date of accrual. §§ 95.11(3), 95.031, Fla. Stat. (2005).
A negligence cause of action consists of three elements: (1) a duty recognized by law requiring the defendant to conform to a certain standard of conduct; (2) a failure on the part of the defendant to perform that duty; and (3) injury or damage to the plaintiff proximately caused by such failure. Stahl v. Metro. Dade County, 438 So. 2d 14, 17 (Fla. 3d DCA 1983). For personal injury based on the negligent act of another, generally the date when the injury occurs is the event which triggers accrual. Cristiani v. City of Sarasota, 65 So. 2d 878, 879 (Fla.1953).
Under the negligence statute of limitations, therefore, Rodriguez' claim should have been filed four years from the date of his injury. Assuming arguendo the date of Rodriguez' last injury coincided with the *395 date Rodriguez was released to his parents in 1966, Rodriguez' negligence claim should have been filed by 1970.
The statute of limitations' exclusionary effect, however, may be circumvented in certain circumstances. One of these circumstances is referred to as the delayed discovery doctrine. Hearndon v. Graham, 767 So. 2d 1179 (Fla.2000). This doctrine "generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortuous act giving rise to the cause of action." 767 So.2d at 1184.
Hearndon involved a suit against a stepfather for damages resulting from childhood sexual abuse. The abuse allegedly began when the victim was about 8 years old, and continued until 1975, when she turned 15. However, the victim did not file her lawsuit until 1991, when she allegedly recovered her memory about the abuse.
The Hearndon Court conceded that delayed discovery is not one of the statutorily authorized grounds for tolling a limitation period. 767 So.2d at 1185; see also § 95.051, Fla. Stat. (2006). Nonetheless, the Court recognized a difference between circumstances delaying an action's accrual and tolling a statute of limitations. Regarding the statutory prohibition of tolling on other grounds, the Court wrote:
[T]he Legislature limited the justification for tolling limitation periods to the exclusion of delayed discovery due to loss of memory, but did not likewise limit the circumstances under which accrual may have been delayed. . . . The Florida Statutes do not impede, however, the delay of the accrual of a cause of action.
767 So.2d at 1185 (footnotes omitted).
The Court went on to state that the majority rule and the modern trend favors allowing delayed discovery in cases alleging childhood sexual abuse. The Court took into account the doctrine's use in other areas of tort law, such as medical malpractice. It also accepted "that the shock and confusion resultant from childhood molestation, often coupled with authoritative adult demands and threats of secrecy, may lead a child to deny or suppress such abuse from his or her consciousness." 767 So.2d at 1186.
Finally, the Hearndon Court concluded that, given the "uniquely sinister" nature of child abuse, it would be unfair to deny child abuse victims the use of the doctrine. 767 So.2d at 1186. The Court, therefore, decided that Hearndon's lawsuit should be allowed to proceed.
In 1992, the Legislature codified the delayed discovery doctrine in connection with intentional torts based on abuse. § 95.11(7), Fla. Stat. (1992). Subsection 7 states:
An action founded on alleged abuse . . . may be commenced at any time within 7 years after the age of majority, or within 4 years after the injured person leaves the dependency of the abuser, or within 4 years from the time of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse, whichever occurs later.[2]
The amendment was not applicable in Hearndon. This case, however, requires that we decide whether the provision's enactment mandates a different result from Hearndon.
Here, the trial court determined that section 95.11(7) bars Rodriguez' claim. As the trial court acknowledges, section 95.11(7) "enlarge[ed] the limitations period *396 for claims of childhood sexual abuse," and "permits an adult who was a victim of childhood abuse to file a complaint at any point in his or her lifetime, as long as it is within four years of the date the victim discovers or realizes the harm caused by the abuse." However, because the statute limits the delayed discovery doctrine to intentional torts, the trial court refused to extend it to Rodriguez' negligence claim.
The majority's per curiam affirmance, albeit in a more summary fashion, agrees with the trial court's reasoning, based on Davis v. Monahan, 832 So. 2d 708 (Fla. 2002). Respectfully, I do not believe Davis is controlling here.
Davis involved claims for breach of fiduciary duty, civil theft, conspiracy, conversion, and unjust enrichment arising from family members' misappropriation of the financial assets of an elderly relative. The plaintiff argued for application of the delayed discovery doctrine to bring her suit within the statute of limitations. The Court explained its reasons for rejecting the doctrine:
While we applied the delayed discovery doctrine to causes of action arising out of childhood sexual abuse and repressed memory in Hearndon, we did so only after considering the unique and sinister nature of childhood sexual abuse, as well as the fact that the doctrine is applicable to similar cases where the tortious acts cause the delay in discovery. We also considered the Legislature's endorsement in amending section 95.11(7), Florida Statutes (1999), to include intentional torts based on abuse and the fact that the application of the doctrine among the states is both the majority rule and modern trend. In this case, there is no modern trend or statutory endorsement. . . .
832 So.2d at 712.
Neither the Court's holding in Davis nor the limited scope of the codified version of the doctrine mandate dismissal of Rodriguez' claim, particularly at this stage of litigation. At the pleading stage, the sole consideration is whether the plaintiff can state a cause of action. Speculation about the sufficiency of plaintiff's evidence to prove the claim is irrelevant and immaterial. See, e.g., Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 205 (Fla. 3d DCA 2003).
Davis is easily distinguishable. Davis did not involve a childhood sexual abuse case. Therefore, it did not present the special circumstances discussed in Hearndon. In Davis, the Florida Supreme Court simply restricted application of the delayed discovery doctrine, when not controlled by section 95.11(7), to childhood sexual abuse situations. Rodriguez' claim falls squarely within this restriction. It is a childhood sexual abuse situation and is not controlled by section 95.11(7) because it is not an intentional tort.
Further, the limited scope of section 95.11(7) does not mandate dismissing Rodriguez' claim. A well-settled principle of statutory construction is that "in those instances `where the language of a statute clearly limits the application to a particular class of cases, leaving no room for doubts as to the meaning of the legislature, the statute may not be enlarged or expanded to cover cases not falling within its provisions.'" Barruzza v. Suddath Van Lines, Inc., 474 So. 2d 861, 864 (Fla. 1st DCA 1985) (quoting 49 Fla. Jur.2d, Statutes § 118 (1984)).
Section 95.11(7) clearly limits its application to intentional torts. Therefore, it may not be expanded to include other types of cases. Thus, the enactment of section 95.11(7) does not change Hearndon's conclusion that Florida Statutes do not impede the delayed accrual of a cause of *397 action in negligence childhood abuse cases where the plaintiff does not discover the abuse within the statutory time period.
In this case, other equitable doctrines may be applied to circumvent the preclusive effect of a statute of limitations. For example, equitable tolling "is used in the interests of justice to accommodate both a defendant's right not to be called upon to defend a stale claim and a plaintiff's right to assert a meritorious claim when equitable circumstances have prevented a timely filing." Machules v. Dep't of Admin., 523 So. 2d 1132, 1134 (Fla.1988).
Further, equitable estoppel may also be applied "on principles of fair play and essential justice and arises when one party lulls another party into a disadvantageous legal position." Fla. Dep't of Health & Rehab. Servs. v. S.A.P., 835 So. 2d 1091, 1096 (Fla.2002) (citing Major League Baseball v. Morsani, 790 So. 2d 1071, 1076 (Fla.2001)). Equitable estoppel operates to prevent the wrongdoer from profiting from his or her own misconduct when the misconduct results in the victim's inability to timely raise his or her claim. Major League Baseball, 790 So.2d at 1077.
As the Florida Supreme Court stated:
the fundamental purposes served by the statute of limitations and the doctrine of equitable estoppel are congruent. . . . [A] main purpose of the statute of limitations is to protect defendants from unfair surprise and stale claims. A prime purpose of the doctrine of equitable estoppel, on the other hand, is to prevent a party from profiting from his or her wrongdoing. Logic dictates that a defendant cannot be taken by surprise by the late filing of a suit when the defendant's own actions are responsible for the tardiness of the filing. The two concepts, i.e., the statute of limitations and equitable estoppel, thus work hand in hand to achieve a common goal, the prevention of injustice.
Major League Baseball, 790 So.2d at 1078 (footnote omitted).
Here, the interests of justice and principles of fair play call for allowing Rodriguez' claim to proceed beyond a motion to dismiss. Rodriguez attributes his inability to timely file his claim to the general trauma associated with childhood sexual abuse and CWB's misconduct in giving him unknown drugs which affected his memory.
Finally, the public policy weighs heavily in favor of allowing Rodriguez' claim to proceed. The statute of limitations' interest of protecting defendants from enforcement of stale claims must give way to the more compelling state interest of protecting children from harm. See Jones v. State, 640 So. 2d 1084, 1085 (Fla.1994) ("As evidenced by the number and breadth of the statutes concerning minors and sexual exploitation, the Florida Legislature has established an unquestionably strong policy interest in protecting minors from harmful sexual conduct." (footnote omitted)).
Accordingly, because in my view the trial court and the majority erred both as a matter of law and as a matter of public policy in dismissing Rodriguez' negligence claim, I respectfully dissent.
NOTES
[1] Pedro Pan is Spanish for Peter Pan.
[2] This provision remains unchanged to date. § 95.11(7), Fla. Stat. (2008). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611733/ | 841 So.2d 329 (2002)
Ronald Lee BELL, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. SC00-1185.
Supreme Court of Florida.
November 7, 2002.
Rehearing Denied March 21, 2003.
*330 Nancy A. Daniels, Public Defender, and W.C. McLain, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Appellant.
Richard E. Doran, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, FL, for Appellee.
PER CURIAM.
We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Ronald Lee Bell, Jr. *331 We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm Bell's convictions but reduce the sentence of death on this seventeen-year-old to life imprisonment without the possibility of parole.
I. FACTS
A. GUILT PHASE
Ronald Lee Bell, Jr., was found guilty by a jury of first-degree murder with a deadly weapon and armed kidnaping with a weapon. Bell was seventeen years and ten months of age at the time that these crimes were committed. He lived with his parents and was a high school senior. The victim of both crimes was Cordell Richards and the crimes occurred on February 2 and 3, 1999. The testimony at trial detailed the following sequence of events.
On March 4, 1999, Richards' decomposing body was found in a wooded area at the end of a cul-de-sac in an undeveloped portion of a housing subdivision in Okaloosa County. Richards' remains, which were partially skeletonized and burned, were tied to a tree with a chain and a rope.
Dr. Michael Berkland, the medical examiner, inspected the remains at the scene and then performed the autopsy. Dr. Berkland found that the body was in an advanced state of decomposition and that there were multiple fractures to the head, which were the result of blunt force trauma. He also found injury to the victim's shoulder blade, sternum, ribs, arm and wrist. Based upon the burn patterns, Dr. Berkland concluded that the burning occurred post-mortem. Dr. Berkland also concluded that the manner of death was homicidal violence with combined features of blunt force trauma to the head, body, and upper extremities, and probable chop injury to the left neck.
Kimberly Maestas, Renee Lincks, and Bell were all charged with the murder of Richards.[1] Maestas and Lincks testified against Bell, and the testimony regarding the events leading up to the homicide of Richards came primarily from them.[2] At the time of the homicide, Bell, who was seventeen, and Maestas, who was sixteen, had been dating for a few months. Maestas had been "kicked out" of her parents' home. Maestas and Bell met Richards through a newspaper listing advertising a place to live, and Maestas moved into the extra bedroom in Richards' apartment. Richards was thirty-one years of age.
Maestas testified that after she moved into Richards' apartment, Richards made inappropriate sexual advances. Richards would come into Maestas's room wearing only bikini underwear. One time Richards propositioned her for sex. Maestas testified that when she said "no," Richards grabbed her shoulders and pushed her against the wall. She started to cry and asked him not to do that. Richards pushed her against the wall a second time and she hit her head. Maestas testified that Bell found out about Richards' attack when he saw the bruises on Maestas's back.
*332 Lincks, who was fifteen, was a friend of Maestas, and came to the apartment to spend the night with her. That night, Richards asked Maestas and Lincks if they wanted to sleep with him in his bed. This made Maestas and Lincks uncomfortable, and so Lincks called a friend, who took them to Bell's house. Bell later took Maestas and Lincks back to Richards' apartment and left a baseball bat with them in case something happened. Later, Richards called Maestas and Lincks from his bedroom telephone and made statements that upset them, so they paged Bell and he came to the apartment to help them.
When Bell entered the apartment, he confronted Richards about his behavior towards Maestas and Lincks. Bell and Richards started pushing one another. Bell placed Richards in a choke hold and Richards lost consciousness. Bell told Lincks to get the bat and she gave it to Maestas. Maestas hit Richards in the legs with the bat. Bell told Lincks to get a rope from his car[3] and a blanket from Richards' bed. Richards was tied with the rope, rolled in the blanket and placed in Bell's car. Bell then drove to a wooded area at the end of a cul-de-sac.
Maestas held the flashlight while Bell and Lincks carried Richards into the woods. At some point they stopped, and Bell told Maestas to shine the flashlight in Richards' face while Lincks asked Richards for his PIN numbers. Bell then told Maestas to hit Richards with the baseball bat, which she did, and Richards asked Bell not to kill him. Lincks also hit Richards with the baseball bat. According to Maestas and Lincks, Bell told them that they were not hitting Richards hard enough and so Bell hit Richards very hard and said, "Look, I'm Babe Ruth." They then carried Richards deeper into the woods and tied and chained him to a tree. Maestas testified that Bell poured lighter fluid on Richards and set Richards on fire while he was still alive and groaning.
Bell returned to the scene a few more times. He first returned later that day with Maestas and Lincks to make sure that Richards was dead. Bell and Lincks went into the woods while Maestas waited at the car. Bell and Lincks could hear Richards yelling for help. When Bell and Lincks returned to the car, Lincks told Maestas that Bell had tried to break Richards' neck. They left the scene and drove to a Target store where they bought a meat cleaver and duct tape and then returned to Richards' location. Bell and Lincks went back into the woods, where Bell cut Richards' throat. The two then returned to Maestas five or ten minutes later. Bell went back to the body again after he and Lincks decided that Bell had not cut Richards' throat enough.
That night, a friend of Bell's came over and helped to forge checks on Richards' account. A few days later, they pawned Richards' television and violin. About a week after that, Bell, Maestas and Maestas's fourteen-year-old sister went to Richards' location again. Richards was dead at this time. Bell poured gasoline on the body and started a fire.
On February 13, 1999, the police went to Richards' apartment to check on Richards' whereabouts after one of Richards' friends told the police that he had been unable to contact Richards. The officers tried to get the attention of anyone who might be in the apartment by pounding on the doors and windows. When no one responded, one of the officers entered the apartment through a window. One of the bedroom doors was secured with a deadbolt lock *333 and a towel was stuffed underneath the door. The officers knocked on the bedroom door and Bell opened it. Maestas was in a sleeping bag on the floor. Bell and Maestas appeared to be just waking up. They denied knowing anything about Richards' whereabouts.
After the State presented its case, Bell waived his right to present evidence and his right to testify. The jury thereafter found Bell guilty of first-degree murder with a deadly weapon and armed kidnaping with a weapon.
B. PENALTY PHASE
At the penalty phase, the State presented no additional evidence. Bell presented the testimony of his father and grandfather, as well as school and jail records. Bell's father, Ronald Bell, Sr., who is a youth pastor, testified that Bell was an usher at his church and vice president of the youth district association. He also said that Bell was a high school senior who planned to join the Air Force to become an electrician. In addition, Bell's father testified that Bell attended school regularly and had maintained several jobs, which contributed to the family's income.
Bell's grandfather, Austin Lee Bell, who is a minister, testified that while growing up, Bell spent weekends with him and his wife and that Bell's grandmother was a strict disciplinarian. He said that during Bell's visits to his house, Bell would attend his grandfather's church and participate in youth activities.
The jury recommended the death penalty by a vote of twelve to zero. The trial court imposed a sentence of death, finding the following five statutory aggravators: (1) the capital felony was committed during a kidnaping; (2) the capital felony was committed to avoid arrest; (3) the capital felony was committed for pecuniary gain; (4) the capital felony was heinous, atrocious or cruel ("HAC"); and (5) the capital felony was committed in a cold, calculated, and premeditated manner ("CCP"). The trial court also found one statutory mitigatorBell's age of seventeen years and ten months at the time of the crime (little weight)and seven nonstatutory mitigators: (1) disparate treatment of codefendants Lincks and Maestas (little weight); (2) Bell was a good student (little weight); (3) Bell was a model prisoner while awaiting trial (very little weight); (4) Bell had a good family support system (little weight); (5) Bell was active in church (slight weight); (6) Bell was gainfully employed for various periods of time, and had the potential to finish high school and further his education (some weight); and (7) Bell has a very supportive extended church family (little weight). The trial court found that the aggravators outweighed the mitigators and agreed with the jury's unanimous decision in favor of the death penalty.
On appeal, Bell now raises one guilt-phase and four penalty-phase issues.[4] Although Bell does not raise the issue of sufficiency of the evidence on appeal, we *334 have independently reviewed the evidence in this case and we conclude that the evidence is sufficient to support the convictions. See Sexton v. State, 775 So.2d 923, 933-34 (Fla.2000); Brown v. State, 721 So.2d 274, 277 (Fla.1998) (citing § 921.141(4), Fla. Stat. (1997)).
II. ANALYSIS
A. GUILT PHASE CLOSING ARGUMENT
Bell raises one claim of error during the guilt phase: that a portion of the prosecutor's closing argument constituted an improper personal attack on defense counsel. He also asserts in connection with this argument that the trial court erred in allowing the State to accuse defense counsel of telling the jury not to follow the law.
Bell relies on our recent decision in Brooks v. State, 762 So.2d 879, 904-05 (Fla.2000), to support his argument that the State personally attacked the defense and told the jury not to follow the law. However, unlike Brooks, in this case the State's closing argument remarks were in response to a defense argument that the jury should give Bell the same sentence that a codefendant received. Therefore, the argument was not an improper personal attack on defense counsel but a response to defense counsel's own argument to the jury. Even if there was error in this case, we would conclude that these isolated comments were harmless beyond a reasonable doubt. Accordingly, we reject Bell's claim on this issue.
B. CONSIDERATION AND WEIGHT GIVEN TO BELL'S AGE OF SEVENTEEN AT THE TIME OF THE CRIME
In its sentencing order, the trial court found Bell's age at the time of the crime to be a mitigating factor and gave the mitigator little weight. On appeal, Bell now contends that the trial court was laboring under an erroneous legal standard when finding and weighing Bell's age as a mitigator. At the sentencing hearing, the court also discussed the nonstatutory mitigator of the disparate treatment of codefendant, Renee Lincks. In particular, the court stated:
This Court determines that the Office of the State Attorney could not have legally sought the death penalty against co-defendant Renee Lincks as she was fifteen years of age at the time the crimes were committed, and therefore, it is constitutionally impermissible to apply the death penalty to a fifteen year old. Further, the Office of the State Attorney did not seek the death penalty in the trial of co-defendant Kristal Maestas, and therefore, her sentence of life in prison was the only sentence open to this Court.
After the trial court completed the sentencing, the State advised the court as follows:
STATE: Judge, your order, I think, contains a misstatement of the law, in that after the arrest of these individuals, the Court found that it was unconstitutional to execute a minor under the age of seventeen. You stated under the age of sixteen.
COURT: Fifteen.
STATE: Under the age of seventeen. In other words anyone that hasn't reached their seventeenth birthday cannot receive the death penalty. The Supreme Court changed the law after Maestas was arrested, and we were legally precluded from seeking the death penalty for Maestas.
COURT: Okay, I thought it was just Lincks you were precluded from.
STATE: I didn't want to upstage you or anything here, but I wanted to state *335 for the record that that's the law and give you an opportunity to amend your order.
COURT: All right, I'll make a written amendment. Is that agreeable with counsel?
DEFENSE: Fine.
The trial court thereafter made that handwritten change in the sentencing order to the section marked "non-statutory mitigating factors: The disparate treatment of co-defendant Renee Lincks" and the Court announced the change orally to Bell.
This Court has determined that the death penalty is cruel or unusual if imposed on a defendant under the age of seventeen. See Brennan v. State, 754 So.2d 1, 7 (Fla.1999). Although the trial court initially was incorrect with regard to the constitutionally permissible age of execution, that error was corrected when the State brought the error to the trial court's attention. Thus, the trial court's statement about the legal age of execution did not improperly affect the weight it accorded to Bell's age.
This Court has determined that "[t]he relative weight given each mitigating factor is within the discretion of the sentencing court." Trease v. State, 768 So.2d 1050, 1055 (Fla.2000). However, in Urbin v. State, 714 So.2d 411, 418 (Fla.1998), we stated that "the closer the defendant is to the age where the death penalty is constitutionally barred, the weightier [the age] statutory mitigator becomes." Further, in Ellis v. State, 622 So.2d 991, 1001 (Fla. 1993), the Court stated:
Whenever a murder is committed by one who at the time was a minor, the mitigating factor of age must be found and weighed, but the weight can be diminished by other evidence showing unusual maturity. It is the assignment of weight that falls within the trial court's discretion in such cases.
(Emphasis supplied.)
Although the Court in Ellis acknowledged that the assignment of weight falls within the trial court's discretion, when the statutory mitigator is age and the defendant is a minor that discretion is limited. Indeed, the Ellis Court also stated that "there must be some evidence tending to support the finding of unusual maturity. Otherwise, the mitigating factor of age must be accorded full weight as a statutory mitigating factor." Id. at 1001 n. 7 (emphasis supplied). The Court noted that if the trial court were to have unbridled discretion in the application of the age mitigator, then in effect the trial court would have the ability to exclude everyone from the category. See id. at 1001. According to Ellis, "nothing in the statute reflects any intention that a court should have discretion to render the statute applicable to no one at all." Id. Thus, the trial court must afford the mitigating factor of age "full" weight, unless the trial court makes a finding of unusual maturity. See id. It is only after a trial court makes a finding of unusual maturity that the trial court can exercise discretion in assigning diminished weight to the mitigator.
In this case the trial court did not find that Bell was unusually mature. Rather, the trial court stated that "there was not evidence of record that [Bell] was abused, neglected or not provided with a normal, healthy environment and supported by loving parents." Thus, although there was no evidence of abuse or neglect, there was likewise no finding by the trial court of "unusual maturity." The only finding the trial court made on this mitigator was that Bell's childhood was normal. Moreover, to the extent that Bell displayed positive characteristics in that he was active in church, did well in school, and maintained *336 steady jobs, we note that these characteristics tend to reflect the lifestyle of a normal, healthy seventeen-year-old, rather than the unusual lifestyle of a teenager "old in the ways of the world." Shellito v. State, 701 So.2d 837, 843 (Fla.1997) (assigning little weight to the statutory age mitigator and relying on evidence of the eighteen-year-old defendant's extensive crime record, which started at age thirteen, involved twenty-two arrests, thirty separate crimes, and eight felony convictions, to find that the defendant was, "[a]lthough young in years ... old in the ways of the world"). Accordingly, we conclude that the trial court abused its discretion in assigning little weight to this mitigator.
C. AVOID ARREST AGGRAVATOR
In its sentencing order, the trial court found that the State had proven the avoid arrest aggravator beyond a reasonable doubt. On appeal, Bell contends that avoiding arrest was not his dominant motive in killing Richards because his motive for killing Richards was his anger over Richards' sexual harassment of Maestas and Richards' assault on her when she rebuffed his sexual advances.
This Court has held that in order "[t]o establish the avoid arrest aggravating factor where the victim is not a law enforcement officer, the State must show beyond a reasonable doubt that the sole or dominant motive for the murder was the elimination of a witness." Connor v. State, 803 So.2d 598, 610 (Fla.2001), cert. denied, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002); see also Alston v. State, 723 So.2d 148, 160 (Fla.1998). "Mere speculation on the part of the state that witness elimination was the dominant motive behind a murder cannot support the avoid arrest aggravator. Likewise, the mere fact that the victim knew and could identify defendant, without more, is insufficient to prove this aggravator." Looney v. State, 803 So.2d 656, 676 (Fla.2001) (citation omitted), cert. denied, 536 U.S. 966, 122 S.Ct. 2678,153 L.Ed.2d 850 (2002); see also Consalvo v. State, 697 So.2d 805, 819 (Fla.1996).
The State contends that the record evidence establishes that Bell's sole or dominant motive for murdering Richards was to avoid arrest. In particular, the State argues that by the nature or manner of the killing itself, Bell's dominant motive was eradicating signs of the assault and torture to which he had subjected Richards.
Our review of the record, however, indicates that there is insufficient evidence to support the trial court's conclusion that the State proved the avoid arrest aggravator beyond a reasonable doubt. Although the State's theory regarding Richards' murder is possible, it is equally plausible that Bell's motive for killing Richards was premised upon Bell's anger at Richards because of his attack on Maestas. Moreover, as Bell contends, the two cases relied upon by the trial court, Hall v. State, 614 So.2d 473 (Fla.1993), and Preston v. State, 607 So.2d 404 (Fla.1992), are distinguishable because in those cases, no other reasonable motive could be inferred from the evidence. See Hall, 614 So.2d at 477 ("Here, the evidence leaves no reasonable inference except that Hall and Ruffin killed the victim to eliminate the only witness...."); Preston, 607 So.2d at 409 ("The only reasonable inference to be drawn from the facts of this case is that Preston kidnapped Walker from the store and transported her to a more remote location in order to eliminate the sole witness to the crime."). Accordingly, we determine that the trial court's finding of the avoid arrest aggravator was error.
D. PROPORTIONALITY OF BELL'S DEATH SENTENCE
Although not argued by Bell as a separate point on appeal, this Court has an *337 independent duty to review the proportionality of Bell's death sentence as compared to other cases where the Court has affirmed death sentences. See Jennings v. State, 718 So.2d 144, 154 (Fla.1998). In Urbin v. State, 714 So.2d 411, 416-17 (Fla. 1998), we summarized the scope and obligation of our death penalty review:
In performing a proportionality review, a reviewing court must never lose sight of the fact that the death penalty has long been reserved for only the most aggravated and least mitigated of first-degree murders. State v. Dixon, 283 So.2d 1, 7 (Fla.1973). See also Jones v. State, 705 So.2d 1364, 1366 (Fla.1998) (reasoning that "[t]he people of Florida have designated the death penalty as an appropriate sanction for certain crimes, and in order to ensure its continued viability under our state and federal constitutions `the Legislature has chosen to reserve its application to only the most aggravated and unmitigated of [the] most serious crimes.'") (footnote omitted).
Proportionality review "requires a discrete analysis of the facts," Terry v. State, 668 So.2d 954, 965 (Fla. 1996), entailing a qualitative review by this Court of the underlying basis for each aggravator and mitigator rather than a quantitative analysis. We underscored this imperative in Tillman v. State, 591 So.2d 167 (Fla.1991):
We have described the "proportionality review" conducted by this Court as follows:
Because death is a unique punishment, it is necessary in each case to engage in a thoughtful, deliberate proportionality review to consider the totality of circumstances in a case, and to compare it with other capital cases. It is not a comparison between the number of aggravating and mitigating circumstances.
Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). The requirement that death be administered proportionately has a variety of sources in Florida law, including the Florida Constitution's express prohibition against unusual punishments. Art. I, § 17, Fla. Const. It clearly is "unusual" to impose death based on facts similar to those in cases in which death previously was deemed improper. Id. Moreover, proportionality review in death cases rests at least in part on the recognition that death is a uniquely irrevocable penalty, requiring a more intensive level of judicial scrutiny or process than would lesser penalties. Art. I, § 9, Fla. Const.; Porter.
... Thus, proportionality review is a unique and highly serious function of this Court, the purpose of which is to foster uniformity in death-penalty law.
Id. at 169 (alterations in original) (citations and footnote omitted).
As we have repeatedly explained, "[a] proportionality review involves consideration of the totality of the circumstances of a case and comparison of that case with other death penalty cases." Snipes v. State, 733 So.2d 1000, 1007 (Fla.1999) (emphasis added). As in Snipes, another case involving the death penalty imposed on a seventeen-year-old, when we compare the totality of the circumstances of this case to other similar cases, we conclude that a sentence of death is inappropriate.
We acknowledge the multiple aggravators in this case; however, we note that we have stricken the avoid arrest aggravator. Further, although we acknowledge that CCP and HAC have been established because of the length of time that the actual murder took to accomplish, we conclude that the mitigation in this case is substantialmindful *338 in particular that Bell was seventeen years of age at the time of the crime, which is as close as one can be in Florida to the age at which the death penalty is constitutionally barred. In addition, we also note the mitigating circumstance found by the trial judge of the disparate treatment of the codefendants. Indeed, in conjunction with the great weight given to the age mitigator, we find it significant that all of the defendants involved were teenagers attempting to confront a decidedly adult situation.
Of particular note is the life sentence given to Bell's girlfriend Maestas. Maestas appears to have been not only the instigator behind the series of events that culminated in the murder but also appears to be equally culpable for the murder itself. Indeed, it was Maestas, who was living on her own after being "kicked out" of her parents' home, who initially called Bell to complain of Richards' improper sexual advances. That phone call by Maestas resulted in Bell actually seeing the bruises on Maestas's back made by Richards. The next night it was Maestas who paged Bell to come to the apartment to help them after Richards asked both Maestas and her friend Lincks to sleep in his bed.
Bell then confronted Richards about his behavior. Although it was Bell who placed the victim in a choke hold, it was Maestas who first hit Richards with the baseball bat. It is apparent that Maestas was involved from the beginning to the end, including having purchased the chain, rope, and lock with Bell and participating with Bell throughout the crime. Moreover, this version of the events comes solely from Maestas and Lincks, who would have obvious reasons to discount their culpability.
Yet we do not base our conclusion regarding proportionality solely on the disparate treatment of the codefendants. In evaluating the totality of circumstances we begin with the age mitigator. With regard to the age mitigator, as we have explained above, the trial court abused its discretion in affording Bell's age of seventeen only little weight. Without a finding of unusual maturity, this statutory mitigator should have been given great weight. In addition, we point to the following additional mitigators found by the trial court: disparate treatment of codefendants Lincks and Maestas; Bell was a good student; Bell was a model prisoner while awaiting trial; Bell had a good family support system; Bell was active in church; Bell was gainfully employed for various periods of time, and had the potential to finish high school and further his education; and Bell had a very supportive extended church family.
In any event, while our proportionality review involves a comparison with other similar cases where the death penalty has been imposed, Bell's age and the unique circumstances of Bell's background make a comparison with our cases more difficult. The only other cases where the death penalty has been upheld for seventeen-year-olds are Bonifay v. State, 680 So.2d 413, 414 (Fla.1996), and LeCroy v. State, 533 So.2d 750, 758 (Fla.1988). We do not find the totality of the circumstances of this case similar to either of those cases.
In Bonifay, the seventeen-year-old defendant was convicted of first-degree murder, armed robbery, and grand theft. The trial court found three aggravating circumstances: (1) the capital felony was committed while Bonifay was engaged in a robbery; (2) the capital felony was committed for pecuniary gain; and (3) the capital felony was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. See 680 So.2d at 415 n. 1. The trial court found the following statutory mitigators: (1) Bonifay had no significant history of prior *339 criminal activity (very little weight), and (2) Bonifay's age of seventeen at the time of the crime (some weight). See id. at 415 n. 2. In addition, the court found several nonstatutory mitigating circumstances including: (1) Bonifay experienced a less-than-ideal family background (some weight); (2) Bonifay exhibited good behavior while incarcerated (little weight); (3) Bonifay had a potential for rehabilitation (some weight); and (4) Bonifay was remorseful about the death of the victim (some weight). See id. However, as we explained in Snipes, "the defendant in Bonifay had admitted involvement in several prior crimes, one of which was a prior burglary in which someone was stabbed several months prior to the murder. Further, not only was the defendant in Bonifay hired to commit the murder; when the murder actually occurred, Bonifay callously killed the wrong person." 733 So.2d at 1008.
Likewise, in LeCroy, 533 So.2d at 755, the seventeen-year-old defendant was convicted of two counts of first-degree murder and two counts of robbery with a firearm. He appealed a sentence of death on one count of first-degree murder. The judge found three aggravating factors: (1) previous conviction of another capital felony or of a felony involving the use or threat of violence to the person; (2) capital felony committed while the appellant was engaged in the commission of robbery with a firearm; and (3) capital felony committed for the purpose of avoiding or preventing a lawful arrest. See id. at 755. In mitigation, the judge found that (1) the appellant had no significant history of prior criminal activity; and (2) the appellant was seventeen years of age at the time of the murder. See id.
In this case, we have a seventeen-year-old who committed a heinous and atrocious crime; however, that is where the similarity with either Bonifay or LeCroy ends. Neither Bonifay nor LeCroy involved the disparate treatment of the codefendants as a mitigator. Also absent from Bonifay and LeCroy is the evidence of substantial mitigation in the form of the positive attributes Bell exhibited up until this particular murder. We consider the evidence that Bell was an usher at his church, vice president of the youth district association, a high school senior whose plan after graduation was to enter the Air Force, and that he attended school regularly and maintained several jobs, which contributed to the family's income to be in his favor rather than work against him. Common sense dictates that Bell's positive attributes should make it less likely that we would uphold the imposition of the death penalty on this seventeen-year-old. Therefore, we conclude that the mitigation in this case is more compelling than in either LeCroy or Bonifay.
If anything we find this case more similar to Snipes, 733 So.2d at 1007-08, where we vacated the death sentence of a seventeen-year-old, and to Cooper v. State, 739 So.2d 82 (Fla.1999), where we reduced the death sentence of an eighteen-year-old to life. See id. at 85 (vacating death sentence where three aggravators were weighed against substantial mitigation including brain damage and youth). In this case, we conclude that the statutory mitigator that Bell was seventeen years of age is an extremely significant factor that, together with the other mitigation, renders the death penalty disproportionate.
Because we conclude that Bell's sentence of death should be reduced to life, we deem it unnecessary in this case to address the constitutionality of the death penalty as applied to offenders under the age of eighteen (issue 3) and the constitutionality of Florida's death penalty scheme (issue 5). Accordingly, we affirm Bell's *340 convictions but reduce Bell's sentence to life imprisonment without the possibility of parole.
It is so ordered.
ANSTEAD, C.J., and PARIENTE and QUINCE, JJ., concur.
PARIENTE, J., concurs with an opinion, in which ANSTEAD, C.J., concurs.
SHAW, J., concurs in result only.
HARDING, Senior Justice, concurs in part and dissents in part with an opinion, in which WELLS and LEWIS, JJ., concur.
PARIENTE, J., concurring.
I concur in affirming Bell's conviction and I concur in reducing the sentence of death to life imprisonment without the possibility of parole for this seventeen-year-old. I would, however, hold that the imposition of the death penalty upon Bellwho was a juvenile at the time of the offenseis not only disproportionate in this case, but is also unconstitutional as applied to seventeen-year-olds.
This case involves a brutal, senseless crime committed by a high school senior with an above-average academic record, an above-average school attendance record and what appears from the record before us to have been a normal healthy environment supported by loving parents. There is no evidence that Bell was either physically or emotionally abused, or neglected. His parents and grandparents were active in their local church; indeed, his grandfather was a minister and his father was a youth pastor. Bell himself was active in his church, serving as an usher and vice president of the youth district association. In my view, these factors should not be held against him; instead, these factors should weigh in Bell's favor when deciding whether we can or should uphold the imposition of the death penalty.
Perhaps nothing ever explains how someone this young and with this type of rather exemplary background can commit as heinous and as wicked an act as that which occurred in this case, and there is no mental health testimony to help us to understand it. We know that many juveniles who commit crimes go on to live productive lives. Bell's crime will not allow for that possibility because he will spend the rest of his life in prison, and I agree with that outcome. Perhaps one day Bell will explain to all of us what went wrong so we can help prevent this type of extreme violence from being committed by others his age. Cf. Nelson v. State, 748 So.2d 237, 246-47 (Fla.1999) (Pariente, J., specially concurring) (concurring in upholding the death penalty but noting that although "an understanding of what went wrong in this eighteen-year-old's life might not have saved Nelson from the imposition of the death penalty, it could provide valuable insight into how, through early intervention and prevention efforts, the outcome might be altered for other children who have been neglected and abusedbefore it is too late").
We are faced with an unusual case; a case so unusual that I am unable in good conscience to compare it to other cases where the death penalty has been imposed on adults. Moreover, because the death penalty has been imposed so rarely on seventeen-year-olds, I can find no basis to properly perform our constitutionally mandated proportionality review other than to noteas the plurality opinion has done that this case is significantly different from the two other cases involving seventeen-year-olds in which we have upheld the death penalty.
My only disagreement with the plurality opinion is that, rather than decide this case *341 solely on proportionality, I would also recede from LeCroy v. State, 533 So.2d 750 (Fla.1988), in light of this State's more recent precedent in which we have concluded that the death penalty is unconstitutional as applied to fifteen-and sixteen-year-olds. In LeCroy, this Court held "that there is no constitutional bar to the imposition of the death penalty on defendants who are seventeen years of age at the time of the commission of the offense." Id. at 758. However, based upon the Court's subsequent decisions and analysis in Brennan v. State, 754 So.2d 1, 5-6 (Fla.1999), and Allen v. State, 636 So.2d 494, 497 (Fla.1994), I conclude that the imposition of the death penalty on a seventeen-year-old also constitutes cruel or unusual punishment and that at this time the constitutional line should be drawn at the age of majority, eighteen.
In Brennan, this Court held that "the imposition of the death sentence on [the defendant], for a crime committed when he was sixteen years of age, constitutes cruel or unusual punishment in violation of article I, section 17 of the Florida Constitution." [5] 754 So.2d at 5-6. In reaching this conclusion, the Court was guided by its decision in Allen, in which the Court found the death penalty to be unconstitutional if imposed upon one who was under the age of sixteen at the time of the crime. See Brennan, 754 So.2d at 6. The Court's reasoning in Allen was as follows:
[M]ore than half a century has elapsed since Florida last executed one who was less than sixteen years of age at the time of committing an offense. In the intervening years, only two death penalties have been imposed on such persons, and both of these later were overturned.
There may be a variety of reasons for this scarcity of death penalties imposed on persons less than sixteen years of age. There may be public sentiment against death penalties in these cases, or prosecutors may simply be convinced that juries would not recommend death or the judge would not impose it. We need not conduct a straw poll on this question, in any event. Whatever the reasons, the relevant fact we must confront is that death almost never is imposed on defendants of Allen's age.
In sum, the death penalty is either cruel or unusual if imposed upon one who was under the age of sixteen when committing the crime; and death thus is prohibited by article I, section 17 of the Florida Constitution. Tillman v. State, 591 So.2d 167, 169 n. 2 (Fla.1991). We cannot countenance a rule that would result in some young juveniles being executed while the vast majority of others are not, even where the crimes are similar. Art. I, Sec. 17, Fla. Const.
Brennan, 754 So.2d at 6 (quoting Allen, 636 So.2d at 497) (alterations in original). The Court then continued:
In reaching our decision in Allen, we relied on article I, section 17 of the Florida Constitution, and not on either the Eighth Amendment of the United States Constitution or the United States Supreme Court's decision in Thompson v. Oklahoma, 487 U.S. 815, 838, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988), which held that execution of a defendant who was fifteen at the time of the crime was prohibited by the Eighth Amendment of the United States Constitution.
Brennan asserts that our reasoning in Allen compels the same result here. *342 We agree. In this case, the defendant presented the trial court with unrefuted data that at least since 1972, more than a quarter of a century ago, no individual under the age of seventeen at the time of the crime has been executed in Florida. In fact, our research reveals that the last reported case where the death penalty was imposed and carried out on a sixteen-year-old defendant was Clay v. State, 143 Fla. 204, 196 So. 462 (1940), over fifty-five years ago. Since 1972, the death penalty has been imposed on only four defendants, other than Brennan, who were sixteen at the time of the crime. For each of the three defendants whose appeals have already been decided, the death sentence was vacated. See Farina v. State, 680 So.2d 392, 398-99 (Fla.1996); Morgan v. State, 639 So.2d 6, 8 (Fla.1994); Brown v. State, 367 So.2d 616, 625 (Fla.1979). This case is virtually identical to Allen both because of the infrequency of the imposition of the death penalty on juveniles age sixteen at the time of the crime and because, since 1972, each death sentence imposed on a defendant who was sixteen at the time of the crime has been overturned by this Court. Thus, we agree that our decision in Allen interpreting the Florida Constitution compels the finding that the death penalty is cruel or unusual if imposed on a defendant under the age of seventeen.
Brennan, 754 So.2d at 7 (footnotes omitted). Thus, in Brennan, the Court determined that the case demonstrated "the dilemma posed by Allen: that death is almost never imposed on defendants who are Brennan's age and when the death sentence has been imposed, the death sentence has been subsequently vacated." Brennan, 754 So.2d at 11.
In the case of seventeen-year-olds, for more than a quarter of a century no person who was under the age of eighteen at the time of the crime has been executed in Florida. During that same time period, although there have been fifteen persons sentenced to death for crimes that they committed when they were seventeen years old, only two have survived appellate review.[6] Indeed, in the fourteen years since LeCroy, Bonifay is the only death penalty case in which this Court has upheld the death penalty as applied to a seventeen-year-old.[7] Considering the infrequency in which the death penalty has been imposed on minors and upheld in this State, in my view it would constitute cruel or unusual punishment to impose the death penalty on this seventeen-year-old.
There is no dispute that the facts of the crime Bell committed areto say the leasthorrible. Nonetheless, based upon this Court's analysis in Brennan and Allen, I would recede from LeCroy on this issue and instead hold that the death penalty is unconstitutional as applied to defendants who were under the age of eighteen at the time of the crime.
ANSTEAD, C.J., concurs.
HARDING, Senior Justice, concurring in part and dissenting in part.
I agree with the majority's decision to affirm Bell's conviction. However, I would *343 follow the decisions of both the trial court and the unanimous jury and affirm Bell's sentence of death. I reach this conclusion because I believe the plurality impermissibly reweighs the age mitigator found by the trial court in this case and relies on a flawed proportionality analysis in reducing Bell's sentence to life imprisonment.
AGE MITIGATOR
I disagree with the plurality's conclusion that the trial court abused its discretion in assigning "little weight" to Bell's age at the time he committed this murder. As the plurality concedes, it is well established that the relative weight given each mitigating factor is within the discretion of the sentencing court. See Elledge v. State, 706 So.2d 1340, 1347 (Fla.1997) (stating that the "weight assigned to a mitigating circumstance is within the trial court's discretion"); see also Ellis v. State, 622 So.2d 991, 1001 (Fla.1993) ("[T]he assignment of weight [of age mitigator] ... falls within the trial court's discretion."). Therefore, in order for Bell to be successful in his claim, he must show that "no reasonable [person] would take the view adopted by the trial court." Elledge, 706 So.2d at 1347.
Moreover, we have recently stated, "[T]he trial court's conclusions as to the weight of mitigating circumstances will be sustained by this Court if the conclusions are supported by sufficient evidence in the record." Hurst v. State, 819 So.2d 689, 697 (Fla.2002) (citing Mansfield v. State, 758 So.2d 636, 646 (Fla.2000), and Ferrell v. State, 653 So.2d 367, 371 (Fla.1995)). Nonetheless, the plurality all but ignores the trial court's findings and the record evidence in this case to impermissibly reweigh the mitigating factor and, ultimately, leap to the conclusion that Bell's age should be given "great weight" and label it "an extremely significant factor." Plurality op. at 338, 339.
In Urbin v. State, 714 So.2d 411 (Fla. 1998), upon which the plurality relies, this Court stated:
[I]t is the patent lack of maturity and responsible judgment that underlies the mitigation of young age.... This is especially true when there is extensive evidence of parental neglect and abuse that played a significant role in the child's lack of maturity and responsible judgment.
Id. at 418 (citation omitted). Contrary to Urbin, the record in this case provides sufficient evidence of Bell's maturity and ability to make responsible decisions in order for this Court to sustain the trial court's weighing of this mitigating factor. Bell's father testified that Bell was a "youth pastor" and usher, and that Bell assumed the position of "vice president of the youth district association." Bell "attended school regularly," had an above-average academic record, and had maintained several jobs while "contribut [ing] to the family's money." Bell "loved to work," but quit work to focus on his school studies. In sum, Bell had a level of maturity that allowed him to work, make money, drive his own vehicle, and care for some of his own needs. Just as importantly, the record is totally devoid of any evidence indicating any kind of abuse or neglect or any instability in Bell's upbringing. On the contrary, Bell's father testified that he and Bell's mother had been married for twenty years, and Bell had been raised in the same location. Bell's grandfather also testified that Bell would attend his grandfather's church and that Bell "always" had a roof over his head and lived in a "nice neighborhood."
Indeed, the circumstances of this case are unlike those cases where this Court has found that the trial court abused its *344 discretion in giving "little weight" to the defendant's age at the time of the crime. For example, in Ramirez v. State, 739 So.2d 568 (Fla.1999), this Court reviewed the claim that the trial court abused its discretion in giving "little weight" to the age mitigator where the defendant was seventeen at the time of the murder. Id. at 581-83. This Court did find an abuse of discretion, but did so principally because there was "uncontroverted testimony of defendant's emotional, intellectual and behavioral immaturity." Id. at 582. The evidence in Ramirez revealed that the defendant "had the emotional, intellectual and behavioral maturity of a thirteen-or fourteen-year-old," and suffered from learning disabilities that evidenced an "organic problem in his brain," and the defendant also had an unrebutted history of inhaling chlorofluorocarbons. Id. at 582. There is no such evidence in the instant case. Cf. Hurst v. State, 819 So.2d 689 (Fla.2002) (finding trial court did not abuse its discretion in assigning age mitigator "very little weight" where eighteen-year-old defendant worked, owned car, performed adequately in school, and helped take care of younger children in family).
Given the testimony concerning Bell's active church leadership, regular school attendance, ability to maintain outside work responsibilities, and the lack of any evidence concerning emotional, intellectual, or behavioral immaturity, I would find there is sufficient record evidence to support the trial court's finding that the mitigating factor of Bell's age should be given "little weight." As this Court stated in Shellito v. State, 701 So.2d 837 (Fla. 1997), "Because the trial judge was in the best position to judge [the defendant's] emotional and maturity level, on this record we will not second-guess his decision to ... assign [the defendant's age] only slight weight." Id. at 843-44. Indeed, based on the record before us, the plurality has not demonstrated that "no reasonable person would take the view adopted by the trial judge."
The plurality's suggestion that the trial court afforded this mitigator little weight without explanation is without foundation. See plurality op. at 335. The trial court did provide an explanation as to why it afforded this mitigator little weight:
Although Ronald Lee Bell, Jr., at the time of this crime, was two months shy of his eighteenth birthday, there is no evidence of record that he was abused, neglected or not provided with a normal, healthy environment and supported by loving parents.
Sentencing Order at 14. Moreover, throughout the trial court's twenty-two page sentencing report, there are numerous references to the court's assessment of Bell's maturity and judgment. For example, the court found that "defendant Bell was capable of adhering to rules, regulations and laws and could successfully control his behavior in an educational environment"; Bell was "gainfully employed, provided volunteer assistance to his elderly grandparents"; "the defendant knew right from wrong"; and "he clearly knew right from wrong and had the capacity to not engage in the despicable behavior which resulted in the death of Cordell Richards." Sentencing Order at 17-20. The trial court also noted that Bell "was clearly the leader and dominate [sic] actor... and that co-defendants Maestas and Lincks were females who unfortunately followed in the actions and words of the defendant." Sentencing Order at 15-16.
The plurality also asserts that because there was "no finding by the trial court of `unusual maturity,'" the court abused its discretion in assigning little weight to the age mitigator in this case. Ellis, however, *345 upon which the plurality relies in making this assertion, specifically states:
Whenever a murder is committed by one who at the time was a minor, the mitigating factor of age must be found and weighed, but the weight can be diminished by other evidence showing unusual maturity. It is the assignment of weight that falls within the trial court's discretion is such cases.
622 So.2d at 1001. In this case, the trial court did exactly what is prescribed by Ellis. That is, because Bell committed the murder while he was a minor, the trial court properly "found and weighed" the mitigating factor of age.
Upon weighing this factor, Ellis also permits that the weight can be diminished by "other evidence showing `unusual maturity.'"[8] I would submit that the record evidence in this case concerning Bell's active church leadership, regular school attendance, above-average academic performance, assumption of out-of-the-home work responsibilities, and a stable and nurturing upbringing, is exactly the type of evidence demonstrating the maturity which Ellis contemplates.
Just as importantly, and contrary to the conclusion reached by the plurality, there is nothing in Ellisor in any other case or statute of this Statewhich necessarily requires that a trial court afford an age mitigator "great weight" or deem it "an extremely significant factor" where the defendant is below the age of majority, yet still death penalty-eligible. Accordingly, and for the reasons stated above, I would find that the trial court did not abuse its discretion in affording the age mitigating factor in this case "little weight."
PROPORTIONALITY
Next, despite the existence of four aggravators, the heinous nature of this crime which caused considerable and prolonged suffering to the victim, and the lack of any mental or sociological mitigation, the plurality concludes that the death penalty imposed by the trial court in this case is disproportionate. I disagree.
First, the plurality erroneously relies on "the disparate treatment of the codefendants" as a basis for finding Bell's sentence disproportionate. There is no legal basis for this assertion. In Farina v. State, 801 So.2d 44 (Fla.2001), cert. denied 536 U.S. 910, 122 S.Ct. 2369, 153 L.Ed.2d 189 (2002), this Court held that a codefendant's less severe sentence was "irrelevant to" a defendant's proportionality review in a capital case, where the codefendant was under the age of seventeen at the time of the murders (thus ineligible for a death sentence) and therefore "aggravation and mitigation in their cases are per se incomparable." Id. at 56 (affirming death sentence of eighteen-year-old defendant where sixteen-year-old codefendant who fired fatal shot only received life sentence).
In this case, Bell's codefendants, Kimberly Maestas and Renee Lincks, were only ages sixteen and fifteen, respectively, at the time this crime was committed, and thus, like the codefendant in Farina, also ineligible for the death penalty. Therefore, according to Farina, the less severe sentences received by the codefendants in this case are irrelevant to Bell's proportionality review because the aggravation and mitigation in their cases is per se incomparable, i.e., death was not a valid punishment option for either of the codefendants in this case. Accordingly, the plurality's reliance, at least in part, on the disparate treatment of the codefendants in reaching its conclusion that Bell's sentence is disproportionate has no legal basis.
*346 Moreover, and notwithstanding this legal bar to a finding of disparate treatment for purpose of a proportionality review in this case, a further defect in the plurality's proportionality analysis is its conclusion that Bell's sixteen-year-old girlfriend, Kimberly Maestas, "appears to be equally culpable for the murder." Plurality op. at 338. Indeed, Maestas may have, as the plurality asserts, "called Bell to complain of Richards' improper sexual advances" and been "involved from the beginning to the end." Plurality op. at 338. However, her role was relatively minor compared to that of Bell's, and the record is replete with instances showing Bell's micromanagement of the murder.[9] Bell's horrible actions included beating the victim with a baseball bat, pouring lighter fluid on the victim's face and lighting it while the victim was still alive and groaning, trying to break the victim's neck with his own hands, and slitting the victim's throat twiceon two different occasions. As the trial court opined, Bell "was clearly the leader and dominate [sic] actor in the kidnaping *347 and murder of Cordell Richards," and it was Bell who "clearly struck the fatal blow with the meat cleaver." See Sentencing Order at 15-16.
For these reasons, the plurality's attempt to distinguish LeCroy v. State, 533 So.2d 750 (Fla.1988), and Bonifay v. State, 680 So.2d 413 (Fla.1996), on the basis of disparate treatment of the codefendants is without merit. The law and the record both clearly establish there has been no disparate treatment in this case. Moreover, in LeCroy, even though the trial court found three aggravating circumstances in a case involving a defendant exactly the same age as Bell when he committed the murder and despite the trial court giving "great weight" to the age mitigating factor (as the plurality attempts to do in this case), this Court nonetheless upheld the defendant's death sentence. See LeCroy, 533 So.2d at 758. Like the court in this instance, the trial court found that the evidence showed the defendant "understood the distinction between right and wrong and the nature and consequences of his actions." Id. at 755-56. It should also be noted that the murder in LeCroy was accomplished by gunshot and therefore did not involve the protracted beating, burning, and cutting of the victimand resulting sufferingas did this case.
[T]he legislature intended that youth and its potential characteristics be considered as a factor by the jury and the sentencing judge in determining whether a youthful defendant should be subject to the death penalty. It does not suggest an intention to draw an arbitrary bright line between those who are eighteen years of age and those, such as here, who are seventeen years of age.... [The sentencing judge's] decision was consistent with the jury's advisory recommendation of death which was also reached after considering appellant's age and potential immaturity. It appears then that the legislature has specifically decided that some seventeen-year-olds may be sentenced to death and that the jury and judge in this particular case have decided that this appellant should be sentenced to death.
Id. at 758.[10]
The plurality concludes its proportionality analysis by asserting similarity between this case and Snipes v. State, 733 So.2d 1000 (Fla.1999), and Cooper v. State, 739 So.2d 82 (Fla.1999). I would, however, *348 find both of these cases distinguishable. In Snipes, while it is true this Court vacated a seventeen-year-old defendant's death sentence, it did so where there were only two aggravating circumstances and substantial mitigation, other than youth, related to the defendant's "traumatic background." Snipes, 733 So.2d at 1007-09. Specifically, in Snipes the court found the defendant
was sexually abused for a number of years as a child, [and] he abused drugs and alcohol beginning at a young age.... He was raised in a dysfunctional, alcoholic family, [and] suffered childhood trauma.... He also suffers emotional stress and a personality disorder due to his early childhood. Importantly, Snipes voluntarily confessed to the crime and told others about it, he expressed remorse, and the State depended upon Snipes' statements to obtain a conviction against him and a warrant against a codefendant. Additionally, the crime was arranged by older individuals, and testimony reflected that Snipes was easily led by older persons.
Id. at 1008. The Court also noted that, unlike the instant case, "the murder occurred quickly and was not committed during a robbery." Id.
In reversing the death penalty in Snipes, this Court also relied on its decision in Urbin, where it found that the "defendant's age of seventeen was particularly compelling when coupled with the substantial impairment [e.g., drug and alcohol abuse, dyslexia, employment history] and family neglect [e.g., lack of a father]." Id. at 1008 (emphasis added). The present case includes fewer aggravators and none of the mental and sociological mitigation present in Snipes or Urbin; therefore, contrary to the plurality's assertion, Snipes is not a "similar case" upon which this Court should rely in its proportionality analysis.
Likewise, Cooper, the other case upon which the plurality relies as similar to the instant case, is also distinguishable. See Cooper, 739 So.2d at 86. In Cooper, the trial court found only three aggravating circumstances and also found two nonstatutory mitigators not present in the instant case, i.e., low intelligence (borderline retarded) and an abusive childhood. See id. at 84 n. 6. The court also found evidence of brain damage and a history of seizures which caused the defendant to have impaired judgment and poor impulse control. See id. at 83. The defendant also scored high on tests for mental illness (including both paranoia and schizophrenia). See id. at 86.[11] Moreover, the jury recommendation of death in Cooper was only by an eight-to-four vote, i.e., not unanimous like the instant case. The Court acknowledged Cooper to be "one of the most mitigated killings we have reviewed." Id. at 86. Indeed, the same cannot be said for the instant case. The crime Bell committed is certainly one of the most aggravated and least mitigated we have reviewed.
Given the impermissible reweighing of the mitigating factor of Bell's age, the absence of any mental or sociological mitigation similar to that found in Snipes or Cooper, and the four established aggravators resulting from Bell's heinous and wicked actions in the violent and tortured death of the victim, I would instead compare *349 the totality of the circumstances of this case to that of LeCroy and Bonifay, where we upheld the death sentences of seventeen-year-old defendants with less aggravation and more mitigation than the instant case. Accordingly, I would find Bell's death sentence proportionate and therefore affirm Bell's sentence of death.
WELLS and LEWIS, JJ., concur.
NOTES
[1] Maestas was convicted at trial of first-degree murder and was sentenced to life imprisonment. According to the sentencing order, Maestas was sixteen at the time of the crime and the State did not seek the death penalty against her.
[2] Maestas stated that she decided to testify at Bell's trial in the hope that she might gain some benefit in a future clemency petition. In exchange for Lincks's testimony at Bell's trial, the State allowed her to plead guilty to manslaughter and false imprisonment with a deadly weapon, with a maximum sentence of fifteen years. Lincks was fifteen years old at the time of the crime.
[3] Sometime prior to the crime, Bell and Maestas bought a chain, a rope, and a lock.
[4] Bell claims that (1) the trial court erred in allowing the prosecutor during his guilt-phase rebuttal closing argument to accuse defense counsel of telling the jury not to follow the law and that the prosecutor levied an improper personal attack against defense counsel; (2) the trial court erred in failing to give proper consideration and weight to Bell's age of seventeen at the time of the crime; (3) a death sentence for offenders under the age of eighteen is unconstitutional; (4) the trial court erred in improperly considering the aggravator that the homicide was committed to avoid arrest; and (5) imposition of the death sentence in the absence of notice of the aggravating circumstances to be considered or of jury findings on the aggravators and death eligibility violates due process and the protection against cruel or unusual punishment or both.
[5] I note that on November 5, 2002, the voters approved an amendment to the Florida Constitution to change the language of Article I, Section 17 from "cruel or unusual" to "cruel and unusual." The effect of that change in language on any future decisions regarding the death penalty is an issue that is clearly not before us at this time.
[6] See LeCroy v. State, 533 So.2d 750 (Fla. 1988); Bonifay v. State, 680 So.2d 413 (Fla.1996).
[7] The death sentence of a second seventeen-year-old, Nathan Ramirez, was vacated and remanded for a new trial because of a guilt-phase issue and thus we did not address the death sentence. See Ramirez v. State, 739 So.2d 568 (Fla.1999). There is one additional case in which a notice of appeal has been filed but no briefs have been filed. See St. Clair v. State, No. SC02-149 (Fla. notice of appeal filed Jan. 22, 2002).
[8] There is no requirement that the court make a finding of unusual maturity.
[9] At Wal-Mart, Bell provided the money to buy a "chain, a rope, and a lock" to be used for killing the victim. When Bell decided that it was time for the murder, Bell put the victim in a headlock, which Bell maintained until the victim was unconscious. Bell instructed Maestas to get a baseball bat and then Bell told Maestas and Lincks to hit the victim with it, which they did. Bell directed the use of a blanket to wrap up the victim and the use of rope to tie up the victim.
Bell used his car to transport the victim to the remote scene of his death. Bell backed his car to the apartment door in order to put the victim in the trunk, and Bell and Lincks carried the victim to the trunk and stuffed him in it. Bell determined the wooded location where the victim would be taken and then drove the victim there in the trunk of his (Bell's) car. In the woods, when the victim begged Bell, "Please don't kill me" and moaned and mumbled, Bell told Maestas to hit the victim with the baseball bat. Bell incited Maestas to action by reminding her, "Who hurt you?" Bell told Maestas that she was not hitting the victim hard enough with the bat, then Bell told Maestas to give the bat to Lincks, and after Lincks hit the victim several times, Bell directed that the bat be given to him, and Bell hit the victim hard a number of times, at one point referring to himself as "Babe Ruth" before striking the victim with the bat. Bell squirted lighter fluid "all over" the victim, including his head and face; the victim was still alive and groaned; the lighter fluid was then lit, resulting in the victim screaming.
At Bell's insistence "to make sure he was dead," Bell, Maestas, and Lincks returned to the wooded location where they had left the victim beaten and in flames. At the wooded location, upon hearing the victim calling for help and asking "who's there," Bell tried to break the victim's neck. Bell drove to Target, and at about 9:45 a.m., Bell paid for duct tape and a meat cleaver to finish off the victim. Bell returned to the wooded site, and Bell slit the throat of the victim, resulting in the victim giving a "very small shout." Bell returned to the car and stated that he "didn't slit his throat deep enough," then returned again to the victim's location and again slit the victim's throat. Bell pawned or sold items of the victim's personal property (a television, violin, and perhaps a computer). Bell participated in cashing forged checks using the victim's bank checks. Indeed, when Bell pawned the victim's property, Bell successfully represented himself as age eighteen by presenting his driver's license with a crack over the age and representing his birth year as 1980, rather than correctly as 1981.
Although the plurality questions the credibility of the codefendants' testimony in this case, determining the credibility of witnesses is within the province of the jury. See Carter v. State, 560 So.2d 1166, 1168 (Fla. 1990) (noting that credibility of accomplice's version of murder is question for jury). Thus, it is the jury's duty to weigh the evidence and resolve any factual conflicts, and its findings will not be disturbed on appeal absent a clear showing of error. See Jent v. State, 408 So.2d 1024, 1028 (Fla.1981). It is not within the province of this Court to pass on the credibility of a witness presented at trial. After hearing all of the evidence in this case, the jury voted unanimously twelve to zero in favor of the imposition of a death sentence and thus clearly chose to believe the codefendants' version of the facts.
[10] Likewise, Bonifay is indistinguishable. In Bonifay, this Court upheld the death sentence for a seventeen-year-old defendant where it found only three aggravating circumstances and gave "some weight" to the defendant's age at the time of the crime. See Bonifay, 680 So.2d at 415 nn. 2 & 3. In Bonifay, the court also found nonstatutory mitigators not present in the instant case, e.g., defendant's less-than-ideal family background and defendant's cooperation with law enforcement and good behavior while incarcerated. Moreover, the court in Bonifay also found the defendant, like Bell, had several "positive attributes, e.g., the defendant was remorseful about the death of the victim, and the defendant had potential for rehabilitation." The plurality attempts to distinguish Bonifay on the grounds that the defendant in Bonifay admitted to prior criminal involvement, even though, unlike the instant case, the court found the statutory mitigator that the defendant had no significant history of prior criminal activity. In this case, Bell admitted to nothing. In fact, when police went to the victim's apartment on February 13, 1999 (ten days after the victim was murdered), the police found Bell in the victim's bedroom, and Bell denied knowing anything about the victim's whereabouts. The victim's decomposed body was not found until March 4, 1999. Finally, the plurality also attempts to distinguish Bonifay on the basis that Bonifay "callously" killed the wrong person. See plurality op. at 339. Any argument that Bell's actions in the protracted and torturous murder of the victim in this case was anything but callous would be disingenuous.
[11] Relatives testified to the brutality Cooper suffered as a young child at the hands of his father. See Cooper, 739 So.2d at 84. One of Cooper's sisters testified that their father was an alcoholic who frequently beat the children and on one occasion "rammed Cooper's head into the refrigerator." Id. Cooper's aunt testified that the father frequently "whipped and beat" Cooper and threatened the children with a gun. See id. A second sister testified that the father on one occasion put a gun to young Cooper's head. See id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611734/ | 11 So.3d 1115 (2009)
Michael DUNN & the Class of Similarly Situated Persons Kenner Fire Fighters Association Local 1427 I.A.F.F.
v.
CITY OF KENNER.
No. 2008-CA-378.
Court of Appeal of Louisiana, Fifth Circuit.
March 26, 2009.
Rehearing Denied April 29, 2009.
Gilbert R. Buras, Jr., Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants.
Alvin J. Bordelon, Jr., Bordelon & Theriot, Attorney at Law, Metairie, LA, for Defendant/Appellee.
Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
CLARENCE E. McMANUS, Judge.
Plaintiffs have filed this appeal from the trial court's judgment granting the City of Kenner's Rule to Show Cause, finding plaintiffs' claims to be abandoned, and dismissing all claims of plaintiffs. For the reasons which follow, we reverse the trial court's judgment and remand this matter to the trial court for further proceedings.
STATEMENT OF THE CASE
On December 10, 2002, Michael Dunn filed a petition for damages on behalf of himself and a class of similarly situated employees of the Fire Department, City of Kenner, and of the Kenner Fire Fighters Association Local 1427 I.A. F.F., an unincorporated *1116 labor organization. Plaintiffs alleged the City of Kenner miscalculated the employees' longevity pay, overtime pay, and holiday pay by failing to pay the state supplemental pay amounts and intentionally concealed the miscalculations.
The City of Kenner filed an answer to the petition, along with an exception and affirmative defenses on February 13, 2003. Plaintiffs filed a motion to certify class and a hearing was held on February 6, 2006. On February 11, 2004, the trial court issued a judgment certifying the class and ordering that the case be tried as a class action.
On June 25, 2007, plaintiffs filed a motion to compel discovery, seeking to compel defendants to answer their request for production of documents seeking computed readable payroll data, which they claim had been served on defendant by mail May 23, 2005. A rule to show cause hearing was set for August 1, 2007 and then reset for August 15, 2007, after an unopposed motion to continue was filed by the City of Kenner. The City claimed it had not received the request for production of documents allegedly served on it by the plaintiffs. Plaintiffs concede the request was not sent to the City by certified mail, therefore, there was no way to prove the mailing or the receipt of the documents. However, a copy of the request for production of documents was attached to the motion to compel that contained a certificate of service stating that plaintiffs' counsel had sent a copy to opposing counsel on May 23, 2005 by United States mail.
On September 24, 2007, the City of Kenner filed a rule to show cause why an order for dismissal should not be entered on the grounds of abandonment. In this rule, the City alleged it had already filed an ex parte motion and order for dismissal on the grounds of abandonment stating no steps were taken by either party in the prosecution or defense of the case for more than three years, from February 24, 2004 until June 25, 2007, when the motion to compel was filed. The rule to show cause filed by the City further indicated that the trial court refused to sign the order of dismissal without a contradictory hearing. A copy of the ex parte order filed by the City was attached to the rule as an exhibit.
The plaintiffs filed an opposition to the City's rule in the trial court, arguing that the Governor's Executive Order after Hurricane Katrina, and later adopted by the legislature as La. R.S. 9:5822, extended the deadline by 90 days, so the three year period was extended from February 26, 2007 to May 28, 2007. Further, plaintiffs alleged a step in the prosecution of the case was taken on March 30, 2007 when plaintiffs' counsel sent a letter by email to the City's counsel inquiring of the status of the discovery responses. Plaintiffs also contend there were ongoing discussions between plaintiffs' counsel and counsel for the City regarding discovery.
The City argued in support of its rule that the emergency Katrina extension, contained in La. R.S. 9:5822, only applied "if these periods would have otherwise lapsed during the time period of August 26, 2005, through January 3, 2006." The three year abandonment period lapsed after that time period, therefore, the City argued the extension did not apply. In addition, the City argued abandonment is only interrupted by the "serving" of discovery and the plaintiffs' discovery request was not served by mail or delivery.
The City's rule filed on September 24, 2007 was set for hearing on November 7, 2007. However, the trial court determined it would rule on the memorandum and exhibits presented without oral argument and allowed the submission of an affidavit of counsel for the City attesting that there *1117 were no steps taken in the case from February 24, 2004 until June 25, 2007.
The trial court rendered judgment November 14, 2007, granting the City's rule for abandonment and dismissing plaintiffs' petition. The trial court also presented reasons for judgment on the same day finding the three year abandonment period tolled on February 24, 2007. The trial court found the governor's order was not intended to suspend the deadlines in all cases, but only those deadlines accruing during the suspension period. The trial court stated that "to interrupt the suspension otherwise would lead to the absurd result of extending the deadline by 90 days, when those extensions were not necessitated by the emergency."
Further, the trial court found that even if the plaintiff did communicate with defendant on March 30, 2007 regarding discovery, the three year period had already tolled February 24, 2007 and plaintiff had failed to show service of the discovery in May 2005 to interrupt abandonment. Plaintiffs filed a motion for new trial on November 21, 2007, which was denied by the trial court January 15, 2008. Plaintiffs now appeal the trial court's granting of the dismissal of the case on the grounds of abandonment. For the reasons which follow, we reverse the trial court's judgment and remand the matter to the trial court for further proceedings.
DISCUSSION
La. C.C.P. art. 561 addresses the abandonment of an action and states, in part:
A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
. . .
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.
Whether or not a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to a manifest error analysis on appeal. Lyons v. Dohman, XXXX-XXXX, (La.App. 3 Cir.2007), 958 So.2d 771, citing Bias v. Vincent, 02-642 (La. App. 3 Cir. 12/11/02), 832 So.2d 1153, writ denied, 03-0112 (La.3/21/03), 840 So.2d 542. The Louisiana Supreme Court has held that La. C.C.P. art. 561 is to be liberally construed in favor of maintaining a plaintiffs suit and abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which have clearly been abandoned. Lyons, supra, citing Clark v. State Farm Mutual Automobile Insurance Company, 00-3010 (La.5/15/01), 785 So.2d 779.
La. C.C.P. art. 561 has been construed as imposing three requirements on plaintiffs: 1) plaintiffs must take a "step" towards prosecution of their lawsuit, 2) the step must be taken in the proceedings, and with the exception of formal discovery, must appear in the record of the suit, and 3) the step must be taken within the legislatively prescribed time period of the last step taken by either party. Brown v. Michaels Stores, Inc., 07-772 (La.App. 5 Cir. 2/19/08), 980 So.2d 62, citing Clark, supra.
As stated above, La. C.C.P. art. 561(B) provides that any formal discovery served on parties, whether or not filed in the record, shall be deemed to be a step in the prosecution of an action. La. C.C.P. art. 1474 provides, in part:
*1118 A. Except as otherwise provided by Article 1430, all of the objections, notices, requests, affidavits, interrogatories, and answers to interrogatories, required by any Article in this Chapter to be in writing and served on an adverse party, may be served as provided in Article 1313.
B. Interrogatories and the answers thereto, requests for production or inspection, and requests for admissions and the responses thereto authorized by Article 1421 shall be served upon other counsel or parties, but shall not be filed in the record of the proceedings, unless filing is required under the provisions of Paragraph C of this Article or unless ordered to be filed by the court. The failure or lack of filing such items shall not affect the use or admissibility at trial or by the court if otherwise authorized or provided by law. The party responsible for service of the discovery materials shall retain the original and become the custodian of such materials.
. . .
(4) The serving of any discovery materials pursuant to the provisions of this Article shall be considered a step in the prosecution or defense of an action for purposes of Article 561, notwithstanding that such discovery materials are not filed in the record of the proceedings.
In addition, La. C.C.P. art. 1313 provides, in part:
A. Except as otherwise provided by law, every pleading subsequent to the original petition, and every pleading which under an express provision of law may be served as provided in this Article, may be served either by the sheriff or by:
(1) Mailing a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party at his last known address, this service being complete upon mailing.
. . .
B. When service is made by mail, delivery, or facsimile transmission, the party or counsel making the service shall file in the record a certificate of the manner in which service was made.
The Fourth Circuit has addressed the issue of abandonment of an action and the requirement of La. C.C.P. art. 1313, regarding the filing of a certificate into the record when service is made by mail. Charpentier v. Goudeau, 95-2357 (La.App. 4 Cir. 3/14/96), 671 So.2d 981, 982. The Fourth Circuit found that once an interrogatory was mailed, authorized service of the interrogatory had occurred and a step in the prosecution had been taken. Id. The Fourth Circuit went on to state that La. C.C.P. art. 1313 does not prescribe a time limit for the filing of the certificate in the record and does not provide that service by mail would somehow lose its effectiveness if the certificate is not filed. Id.
In this case, defendants argue plaintiffs took no steps in the prosecution of the case between February 24, 2007 and June 25, 2007. When plaintiffs filed their motion to compel discovery on June 25, 2007, they were seeking to compel the City to answer the request for production of documents served on the City, by mail, May 23, 2005. A copy of the request for production of documents was attached to the motion to compel. The request for production included a certificate of service prepared by plaintiffs' counsel indicating that the documents were being sent to counsel for the City by United States Mail on May 23, 2005. The plaintiffs also argue they took a step in the prosecution of the case by sending emails/letters to defendants to inquire about discovery responses before the abandonment time period had expired.
*1119 We find the request for production of documents sent by plaintiffs to the City on May 23, 2005 was a step in the prosecution of this action. The certificate of service attached to the request indicated it was mailed to counsel for the City on May 23, 2005 by United States Mail. This discovery request was in accordance with La. C.C.P. art. 1474 and service of this discovery was in accordance with La. C.C.P. art. 1313. As the Fourth Circuit found in Charpentier, supra, we also find the lack of filing of the certificate of service into the record does not cause this discovery to lose its effectiveness as a step in the prosecution of a case. Additionally, we note that copies of email correspondence between plaintiffs' counsel and counsel for the City, which were attached to the plaintiffs' trial court memorandum in opposition to the City's rule, further demonstrated that plaintiffs did not intend to abandon this case.
Since we find this discovery request, sent May 23, 2005, is a step in the prosecution of this case by plaintiffs, the three year abandonment period pursuant to La. C.C.P. art. 561 would not expire until May 23, 2008. Plaintiffs filed their motion to compel discovery on June 25, 2007. Therefore, we find the trial court incorrectly found plaintiffs' case was abandoned.
Accordingly, the judgment of the trial court is reversed and this matter is remanded to the trial court for further proceedings.
REVERSED AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611493/ | 15 Mich. App. 438 (1968)
166 N.W.2d 661
CITIZENS COMMERCIAL & SAVINGS BANK
v.
ENGBERG
Docket No. 4,408.
Michigan Court of Appeals.
Decided December 31, 1968.
Ellis J. Bowler and Joseph R. Joseph, for plaintiff.
Gault, Davison & Bowers, for defendant.
T.G. KAVANAGH, P.J.
This suit arose out of an automobile accident involving plaintiff's ward, Ruth *439 Hazel Moulton, and defendant. It was sometime after 10 of the 12 jurors returned a verdict of no cause for action that plaintiff learned of certain misrepresentations made by one of the 10 jurors on his written voir dire questionnaire. Plaintiff's motion for a new trial on the grounds that, because of these false answers, this juror was not qualified or competent and therefore the jury was an improperly constituted tribunal, was denied. This appeal ensues.
Upon plaintiff's discovery of inaccurate statements on the jury questionnaire a hearing was held and the juror brought before the court for questioning, by the court and both parties, relative to his qualifications. The court concluded that the juror did not answer the questions with accuracy,[1] but stated:
"In the court's opinion, plaintiffs failed to show that any of the charges brought against the juror, even if true, would show that he had any preconceived opinions or prejudices or such other interests, limitations or knowledge as would impair his capacity to render a fair and impartial verdict, as was the plaintiffs' burden. Lee v. Misfeldt, 1 Mich. App. 675. Although the juror was available to testify, and did testify, plaintiffs only questions concerned the truth or falsity of the answers to the questionnaire and on the voir dire."
There is no question that a litigant is entitled to a truthful answer from a prospective juror during *440 his voir dire examination. See Wood v. Henley (1941), 296 Mich. 491. Counsel has a right to rely on the truthfulness of a jury questionnaire because it is designed "to provide a basis for intelligent challenging." 2 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), p 456. However, upon discovery of a juror's false statements after a trial and verdict, a moving party must present to the court something more than the mere fact of the falsity of the answers. There must either be a showing of actual prejudice (see People v. Schram [1966], 378 Mich. 145) or it must be established to the satisfaction of the trial court that the moving party would have successfully challenged for cause[2] or otherwise dismissed the juror in question had the truth been revealed prior to trial. See Kwaiser v. Peters (1967), 6 Mich. App. 153, 381 Mich. 73.
"A person sitting on a jury panel is presumed to be qualified and competent to serve, and the burden is on the challenging party to make out a prima facie case to the contrary." Lee v. Misfeldt (1965), 1 Mich. App. 675, 679.
Plaintiff has presented no proof of actual prejudice on the part of this juror nor has it been established that this juror was unqualified thereby rendering the jury an improperly constituted tribunal. Proof alone of a false answer on the questionnaire is not a sufficient showing of prejudice.
The decision of the lower court in these matters is not made as a matter of law but rather is decided on the facts. See Clemmons v. Super Food Services, Inc. (1966), 3 Mich. App. 377. The lower court in this *441 case had the opportunity to question this juror and determine his credibility. Absent a showing of actual prejudice or proof that a challenge for cause would properly have been successful, or proof of circumstances that would indicate the moving party would have been more likely than not to have excused the juror on a peremptory challenge, it cannot be said that the trial court abused its discretion in refusing to grant a new trial.
Affirmed. Costs to appellee.
QUINN and MILLER, JJ., concurred.
NOTES
[1] On the voir dire questionnaire the juror stated that no member of his family had ever been in an accident, that he had never been arrested or charged with a crime and that he had never been a party to any suit either civil or criminal.
At the hearing, the juror's testimony indicated that almost 8 years prior to this trial, his estranged wife and children were involved in a serious accident, outside this state, the details of which were denied him, that he was divorced in an uncontested action, that he had been picked up by the friend of the court for failure to pay support and that he was adjudicated bankrupt.
[2] "In order to discharge a juror for cause, it is incumbent upon the challenger to show the court that the juror has preconceived opinions or prejudices, or such other interests, limitations or knowledge as would impair his capacity to render a fair and impartial verdict." Lee v. Misfeldt (1965), 1 Mich. App. 675; see GCR 1963, 511.4. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611494/ | STATE OF LOUISIANA
v.
RAY FAVORS
No. 2009 KA 0041.
Court of Appeals of Louisiana, First Circuit.
June 12, 2009.
Not Designated for Publication
J. PHIL HANEY, District Attorney, JEFFREY J. TROSCLAIR, Counsel for Plaintiff-Appellee, State of Louisiana.
JANE L. BEEBE, Counsel for Defendant-Appellant, Ray Favors.
Before: KUHN, GUIDRY, and GAIDRY, JJ.
KUHN, J.
Defendant, Ray Favors, was charged by bill of information with distribution of cocaine, a violation of La. R.S. 40:967(A)(1).[1] He pleaded not guilty. Following a trial by jury, defendant was convicted as charged. The trial court sentenced defendant to imprisonment at hard labor for thirty years and a fine of $25,000. Subsequently, the State filed a multiple offender bill of information seeking to have defendant adjudicated and sentenced under La. R.S. 15:529.1. Defendant denied the allegations contained in the multiple offender bill. At the conclusion of a multiple offender hearing, defendant was adjudicated a habitual felony offender. The sentence previously imposed was vacated and defendant was resentenced to imprisonment at hard labor for "thirty years to life." In response to an application for post-conviction relief by defendant, the trial court noted that the enhanced sentence was indeterminate. The trial court vacated this sentence and resentenced defendant to "thirty years" under La. R.S. 15:529.1. Defendant now appeals, urging in a single assignment of error that the trial court erred in adjudicating him to be a fifth-felony habitual offender. We affirm the conviction and enhanced sentence.
FACTS
On June 4, 1999, in connection with an undercover operation targeting street-level drug dealers, Officer Hubert Augustine, of the Breaux Bridge City Police Department, purchased a $20.00 piece of crack cocaine from an individual subsequently identified as defendant. Using an audio monitoring device, officers Daniel Declouet and Gary Stevenson of the Patterson Police Department monitored the entire transaction. The cocaine was turned over to the Patterson Police Department officers and a warrant was obtained for defendant's arrest. Defendant subsequently was arrested.
HABITUAL OFFENDER ADJUDICATION
In his sole assignment of error, defendant claims the trial court erred in the habitual offender proceedings by allowing all of the alleged predicates to be used to enhance the instant offense. Specifically, he contends that because the date of commission of the instant offense, June 4, 1999, was prior to his conviction for the first predicate offense relied upon by the state, he could not be adjudicated a fifthfelony offender.
In this case, the predicate felonies relied upon by the state were (1) a felony conviction for possession with intent to distribute marijuana on May 31, 2000, in the Fourteenth Judicial District Court, Calcasieu Parish, case number 6522-00; (2) a felony conviction for simple burglary on November 30, 1987, in the Sixteenth Judicial District Court, St. Mary Parish, case number 123,723; (3) a felony conviction for attempted simple burglary on May 15, 1987, in the Sixteenth Judicial District Court, St. Mary Parish, case number 122,555; and (4) a felony conviction for simple burglary on July 23, 1980, in the Sixteenth Judicial District Court, St. Mary Parish, case number 107,435.
The first predicate alleged in the multiple offender bill of information involves a conviction on May 31, 2000, for an offense that occurred on February 16, 2000. The enhanced offense in this case, which occurred on June 4, 1999, predated not only the conviction in the first alleged predicate, but also the commission of the offense in that particular predicate. The enhanced offense occurred over eight months prior to the commission of the offense alleged in predicate one. Therefore, the conviction in the Fourteenth Judicial District Court case number 6522-00 cannot be used in the tabulation of the defendant's previous felonies for purposes of the habitual offender act. See State v. Johnson, 2003-2993, p. 18 (La. 10/19/04), 884 So. 2d 568, 578 (for sentencing enhancement purposes, the subsequent felony must have been committed after the predicate conviction or convictions). Thus, defendant could not have been legally adjudged a fifth-felony offender by counting that predicate conviction.
Our review of the record reveals that the trial court did not state a numerical designation in connection with the habitual offender adjudication. After receiving evidence regarding the four alleged predicates, the trial court simply vacated the previously imposed sentence and resentenced defendant pursuant to La. R.S. 15:529.1. On resentencing, the trial court noted only that defendant was adjudicated "a multiple offender with a long criminal history."
DECREE
The record lacks a basis for concluding defendant is a fifth-felony offender, but his status as a fourth-felony habitual offender was established beyond a reasonable doubt. Because the penalty for a "fourth or subsequent" felony offender is the same under the habitual offender statute, the enhanced sentence is affirmed.[2]
CONVICTION FOR DISTRIBUTION OF COCAINE AFFIRMED; THE ENHANCED SENTENCE AFFIRMED.
NOTES
[1] The bill of information originally charged three counts of distribution of cocaine, but defendant was tried on only one count.
[2] Any error in considering the invalid predicate conviction was of no consequence since an enhanced sentence would be the same for a fourth or a fifth-felony habitual offender. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611485/ | 42 Wis. 2d 368 (1969)
166 N.W.2d 255
STATE EX REL. KURKIEREWICZ, Respondent,
v.
CANNON, District Attorney, Appellant.[*]
No. 185.
Supreme Court of Wisconsin.
Argued March 5, 1969.
Decided April 4, 1969.
*374 For the appellant there were briefs by Robert P. Russell, corporation counsel of Milwaukee county, and James J. O'Donnell, deputy corporation counsel, and oral argument by Mr. O'Donnell.
For the respondent there was a brief and oral argument by Ross R. Kinney of Milwaukee.
HEFFERNAN, J.
The defendant, district attorney, moved to quash the alternative writ. It is conceded by the parties to this action that a motion to quash the writ is deemed a demurrer and admits the facts appearing in the petition. Sec. 293.01, Stats.; State ex rel. Nelson v. Henry (1934), 216 Wis. 80, 256 N.W. 714; Walter Laev, Inc. v. Karns (1968), 40 Wis. 2d 114, 161 N.W.2d 227.
The following facts are alleged in the petition of Marcella Kurkierewicz: In April, 1968, her eighteen-year-old son, Jerome, was killed as a result of being shot twice, once in the head and once in the chest, by Patrolman William J. Miller of the St. Francis police station. Just prior to the shooting, when Jerome, Officers Miller, Bronstad, and Ast were in an interrogation room, Jerome pulled out a round-tipped table knife with a serrated edge. He began slashing out at Officer Ast and drove him through the door of the interrogation room into a fingerprinting room. He did not strike Officer Ast with the knife. He then went after Officers Miller and Bronstad, who backed up to or through a door. He slashed at them with his knife but did not strike either one of them. At this point, Officer Miller shot Jerome in the head and chest. The district attorney talked with the officers involved about this matter. At this meeting, Officer Ast said that Miller and Bronstad did not drop to the floor to try to trip the deceased, did not throw the dispenser or the logbook at the deceased, and did not back *375 through the door into the city hall area in order to attempt to seize the deceased if he came through the door. Officer Ast did not know why these actions were not taken. Officer Miller said that he shot the deceased because there was no place else he and Officer Bronstad could have gone. He did not know why he shot the deceased twice. Officer Miller knew deceased prior to the shooting and had had trouble with him before. Moreover, Officer Miller is a defendant in a pending action brought by Leonard Symkowski, who claims Miller pistol-whipped him.
Marcella Kurkierewicz, through her attorney, asked the district attorney of Milwaukee to order an inquest to investigate the circumstances surrounding the death of her son and asked the coroner of Milwaukee county, Dr. Helen Young, to hold an inquest. Both refused to do so.
On the basis of the facts set out in the petition, Marcella Kurkierewicz argues that she is entitled to a writ of mandamus directing the district attorney to order an inquest in accordance with sec. 966.01, Stats., which provides in part as follows:
"Whenever the district attorney has notice of the death of any person and from the circumstances surrounding the same there is any reason to believe that murder, manslaughter, homicide resulting from negligent control of vicious animal, homicide by reckless conduct, homicide by negligent use of vehicle or firearm, or homicide by intoxicated user of vehicle or firearm may have been committed, or that death may have been due to . . . unexplained or suspicious circumstances . . . he shall forthwith order and require the coroner . . . to take an inquest as to how such person came to his death."
On the facts, after considering the petition and the supplementary affidavit of the district attorney, the circuit judge granted the peremptory writ. A writ of mandamus is a discretionary writ in that it lies within the sound discretion of the trial judge either to grant or deny it. Hence, the action of a trial judge in either *376 granting or denying the writ will be affirmed unless the trial judge abused his discretion. Menzl v. Milwaukee (1966), 32 Wis. 2d 266, 275, 145 N.W.2d 198; State ex rel. New Strand Theatre Co. v. Common Council (1930), 201 Wis. 423, 425, 230 N.W. 60. As a corollary, it follows that if mandamus is not a proper remedy to direct the district attorney to order an inquest, a writ of mandamus that so directs is the result of an abuse of discretion.
A writ of mandamus will lie to compel public officers to perform their prescribed statutory duties. State ex rel. Martin v. Zimmerman (1939), 233 Wis. 16, 288 N.W. 454; State ex rel. Ingold v. Mayor (1919), 170 Wis. 133, 174 N.W. 471; State ex rel. McKay v. Curtis (1907), 130 Wis. 357, 110 N.W. 189. Mandamus, however, is an extraordinary remedy and will not lie if there is another adequate and specific remedy at law (Underwood v. Karns (1963), 21 Wis. 2d 175, 124 N.W.2d 116), or if the act lies entirely within the discretion of the officer.
". . . it is an abuse of discretion for a court to compel action through mandamus when the officer's duty is not clear and unequivocal and requires the exercise of the officer's discretion." Menzl v. Milwaukee, supra, p. 276.
During oral argument it was suggested that a John Doe proceeding, outlined in sec. 954.025, Stats., would have afforded the petitioner the relief she sought and that, therefore, mandamus should not lie. A John Doe proceeding could possibly afford the relief sought by the petitioner. The John Doe, as well as the coroner's inquest, is primarily an investigative device, out of which can come either an exoneration, by implication at least, or a formal charge of a crime. We conclude, however, that the John Doe would not assure the investigation sought by petitioner. Sec. 954.025 requires that the petitioner must complain to the magistrate "that he has reason to believe a crime has been committed." Marcella Kurkierewicz made no allegation of the commission of a crime in her petition for mandamus. The strongest *377 statement of her state of mind in this regard is reflected in the memorandum of the circuit judge in which there appears the statement, "His mother . . . aggrieved by the death of her son and beset by doubts as to whether the shooting of her son was justified . . . ." This is far from being able to swear to a magistrate that she had reason to believe a crime had been committed.
Moreover, what Marcella Kurkierewicz sought was a public investigation that would either allay her doubts or confirm her fears. A John Doe would not do that, for it may be held in secret and the statute itself leaves even the nature of the investigation to the complete discretion of the magistrate. Sec. 954.025, Stats., provides, in part: "The extent to which the magistrate may proceed in such examination is within his discretion." Hence, no greater obligation than merely hearing the complainant and her witnesses is imposed on the magistrate. Only at the request of the district attorney, and subject to the discretion of the magistrate, may other witnesses be subpoenaed and examined.
We are satisfied that John Doe is a feeble investigative device indeed, unless both the district attorney and the magistrate are amenable to using their offices in furtherance of the investigation. A John Doe would not necessarily provide the relief sought by the petitioner, and hence we cannot say that there is a remedy other than mandamus which is competent to afford relief on the same subject matter and is both adequate and specific. See State ex rel. Racine County v. Schmidt (1959), 7 Wis. 2d 528, 536, 97 N.W.2d 493; State ex rel. Sheboygan County v. Telgener (1929), 199 Wis. 523, 227 N.W. 35.
We are not satisfied, however, that the act that the mandamus seeks to have performedthe calling of an inquestis a plain and imperative duty under the facts alleged in the petition and admitted by the motion to quash. The duty of a public officer to act must be clear *378 and unequivocal and, under the facts, the responsibility to act must be imperative.
The district attorney in Wisconsin is a constitutional officer and is endowed with a discretion that approaches the quasi-judicial. State v. Peterson (1928), 195 Wis. 351, 359, 218 N.W. 367.
It is clear that in his functions as a prosecutor he has great discretion in determining whether or not to prosecute. There is no obligation or duty upon a district attorney to prosecute all complaints that may be filed with him. While it is his duty to prosecute criminals, it is obvious that a great portion of the power of the state has been placed in his hands for him to use in the furtherance of justice, and this does not per se require prosecution in all cases where there appears to be a violation of the law no matter how trivial.[2] In general, the district attorney is not answerable to any other officer of the state in respect to the manner in which he exercises those powers. True, he is answerable to the people, for if he fails in his trust he can be recalled or defeated at the polls. In the event he wilfully fails to perform his duties or is involved in crime, he may be suspended from office by the governor and removed for cause. These, however, *379 are political remedies that go not to directing the performance of specific duties but rather go to the question of fitness for office.
The district attorney's function, in general, is of a discretionary type, the performance of which is not compellable in mandamus. 27 C. J. S., p. 648, sec. 10, District and Prosecuting Attorneys, summarizes, correctly we believe, the broad nature of the discretion conferred upon the district attorney:
"The prosecuting attorney has wide discretion in the manner in which his duty shall be performed, and such discretion cannot be interfered with by the courts unless he is proceeding, or is about to proceed, without or in excess of jurisdiction. Thus, except as ordained by law, in the performance of official acts he may use his own discretion without obligation to follow the judgment of others who may offer suggestions; and his conclusions in the discharge of his official liabilities and responsibilities are not in any wise subservient to the views of the judge as to the handling of the state's case."
Yet, where the legislature has spoken and directed the performance of duties under particular facts, the district attorney is obligated to comply with the legislative mandate. Only if the direction of the legislature transgresses a constitutional prohibition will the courts conclude that the district attorney's prerogatives in the judicial system supersede his obligation to the representatives of the people.
In State v. Coubal (1946), 248 Wis. 247, 21 N.W.2d 381, this court discussed the nature of prosecutorial discretion in relationship to the expressed will of the legislature. Coubal involved the interpretation of sec. 176.90 (2), Stats., which required the district attorney to commence within ten days proceedings to revoke tavern licenses of establishments whose licensees permitted gambling devices on the premises. In the event proceedings were not commenced within the ten-day period, the district attorney was obliged to report to the attorney *380 general why such action had not been commenced. The court pointed out, at page 257:
"It is true that the district attorney is a quasi-judicial officer. This court has so held in the sense that it is his duty to administer justice rather than to obtain convictions. . . . there are many instances in the performance of his duty in which he may be called upon to exercise discretion. All his duties are not ministerial. There is, however, no basis for holding that his duties in representing the state are not subordinate to legislative direction as to the cases in which he shall proceed."
The court concluded that the position of district attorney, though constitutional, was not one of inherent powers, but was answerable to specific directions of the legislature. It appears settled, therefore, in Wisconsin at least, that the prosecutor is subject to the enactments of the legislature. For example, sec. 955.17, Stats., requires a district attorney to state in writing his reasons for not filing an information against one who has been bound over for trial. If those reasons satisfy the judge, he endorses "approved" upon the statement, but if the judge finds the reasons insufficient the district attorney is obliged to file the information and bring the case to trial.
While it is thus apparent that the district attorney is invested with great discretion and in the usual case can manage his office free from the overseership of the courts or the legislature, it is equally clear that the legislature may, if it desires, spell out the limits of the district attorney's discretion and can define the situations that will compel him to act in the performance of his legislatively prescribed duties.
We conceive sec. 966.01, Stats., to be such a legislative directive. It provides that a district attorney, having notice of a death, shall order an inquest if, from the surrounding circumstances, there is any reason to believe that death was caused by criminal conduct, suicide, or unexplained and suspicious circumstances.
*381 As we view this statute, there is but one prerequisite to the triggering of the district attorney's duty to order an inquestthat there be "any reason to believe" that death was caused by criminal conduct amounting to homicide in some degree or by unexplained or suspicious circumstances. Once the facts show that there is any reason to believe that death was the result of a criminal act, the district attorney has no discretion to refuse to order an inquest. Sec. 966.01, Stats., states, ". . . he shall forthwith order and require the coroner . . . to take an inquest as to how such person came to his death."
But the question remainsin whose eyes or by whose mental processes is the determination to be made that an acknowledged fact will lead to the inference that there is "reason to believe." Who is to be the believer ? Is this an objective standard of the reasonable man or is the standard to be applied the subjective inference of the district attorney acting within the bounds of discretion. We believe it to be the latter.
It was clear at the common law that the coroner was in his discretion to judge whether or not there should be an inquest of the dead. The modern cases determining the necessity for an inquest are few in number, and generally they arise out of claims for fees. Typical of these is Lancaster County v. Holyoke (1893), 37 Neb. 328, 55 N.W. 950. The statute in that case was mandatory in tenor, requiring an inquest "when the Coroner shall have been notified of the finding of the dead body of a person supposed to have died by unlawful means." (p. 330.)
The court, at page 331, held that this conferred discretion upon the coroner:
"It appears from this statute, then, that in order for a coroner to act at all . . . . he must have reached the conclusion that the person came to his death by unlawful means; otherwise, he has nothing to do with the dead body. The statute does not provide on what notice or information the coroner may act, or what notice or *382 information is sufficient . . . . doubtless that is a matter to be exercised by him in an honest and faithful manner, and he is invested, by virtue of his office, with the discretion to determine for himself whether he should or should not hold an inquest." (Emphasis supplied.)
The Missouri Supreme Court, in speaking of the coroner's discretion, stated:
"When called upon to act, he will decline or proceed to the investigation accordingly as the circumstances of the particular case are, or are not, of such a suspicious character as to render proper an official examination, and of these he is the sole judge." Boisliniere v. Board of County Commissioners (1862), 32 Mo. 375, 378.
McMahon, A Practical Guide to the Coroner (Montreal, 1907), traces the common-law rights and duties of the coroner from the time of the Magna Carta.[3] It discusses the right of the Court of King's Bench to issue a writ of mandamus to the coroner to inquire into a death and cites the case of Hull, Coroner, 9 Q. B. D. 689, for the proposition, "that the Coroner had not a right to refuse to enquire in the matter of a death . . . ." McMahon then points out that this rule is limited by the discretion of the coroner:
". . . this Writ is only with the object of requesting the Coroner to come and give the reasons why he has not enquired into a death. Such a Writ could not be followed by an order of the Court enjoining the Coroner to proceed with the inquest when he has shown the Court that he enquired as to the facts, and that after investigation, he exercised the discretionary power given him . . . of not assembling a jury. So it was judged in a case ex *383 parte Lawlor, cited at p. 274, Vol. 2, Decisions of Courts.
"As a fact, the . . . Court cannot condemn the Coroner for an omission of duty when he has performed his duty. Neither can it force him to summon a jury when the law obliges him to swear that he has good reason to believe that there has been homicide, when in conscience he can swear nothing of the kind." (p. 281, sec. 650.)
Our statute is an unusual one. The briefs cite no other state which confers authority upon the district attorney to compel the coroner or medical examiner to commence an inquest. Milwaukee is the only county of the state that employs a full-time medical examiner, who has the authority and duty of coroners in other counties. An article, The Wisconsin Coroner System, appearing in 1951 Wis. L. Rev. 529, pointed out the deficiencies of the coroner system as it then existed in most Wisconsin counties. Most coroners, the article pointed out, lacked the essential qualifications to deal with an inquest to determine the cause of death.
No doubt, the district attorney as a responsible constitutional officer, a man of professional training and acknowledged intellectual attainments, was given the duty by statute, ch. 314, Laws of 1905, to initiate inquests in an effort to ameliorate the conditions that arose from the inability to secure, generally at least, physicians or well-qualified investigators to serve as coroners.
It would seem strange that the legislature would select a responsible officer to supervise what at common law was a highly discretionary function and then strip him of all discretion. We conclude that the legislature did not intend to set an objective standard that any fact or circumstance was sufficient reason for the district attorney to believe that there had been criminal activity resulting in a death and thereby requiring him to call an inquest. The district attorney was no doubt selected by the legislature to make this determination because, with his experience and training, he could make the subjective judgment required by the statute.
*384 This, of course, is not to say that his decision may rest upon prejudice or caprice. Discretion of a limited nature is conferred upon him by this statute, and there must be evidence that discretion was in fact exercised. There is evidence in the record of the exercise of such discretion.
The supplement to the district attorney's motion to quash, and which is a part of the record, is an affidavit of an experienced deputy district attorney detailing the investigation made by the officer and indicating why there was no reason to believe there was evidence of criminal activity or of unexplained or suspicious circumstances. While this court, were it acting ab initio, would not have necessarily followed the course of action adopted by the district attorney, the record is replete with evidence that the facts were carefully examined and the district attorney in the exercise of his discretion determined that there was no reason, in light of the circumstances, to believe that the death was the result of homicide in any degree or the result of unexplained or suspicious circumstances.
We believe that the trial judge was correct when he stated that holding the inquest would have had a salutary effect upon the community,
". . . and for the further and better reasons of community good and in the interest of justice, and to bolster the public's confidence in the police system, and for the further reason that the public has a right to know all the facts and circumstances surrounding a shooting in a police station."
While we agree with the sentiments so expressed, and join in them, they do not constitute a basis for requiring the district attorney to order an inquest when in the proper exercise of his discretion he has determined not to. To issue the peremptory writ under the facts as they appear in this record was in itself an abuse of discretion.
*385 While ordinarily a motion to quash an alternative writ of mandamus is treated as a demurrer, and if sustained entitles the petitioner after a decision on the law to plead over, but if denied affords the movant the right to file a return to show factually the proper exercise of discretion, we believe that to permit repleading here would be superfluous. The affidavit of Deputy District Attorney Ben J. Wiener was made a part of the record and was referred to by both the parties on appeal. It served the function of a return for it "showed cause" why the district attorney exercised his discretion not to order an inquest. It sufficiently states the position of the district attorney and the factual posture of the case to show that discretion was in fact exercised and hence permits the appellant to prevail on the merits.
By the Court.Judgment reversed, and the cause is remanded for the purpose of permitting the trial court to enter an order granting the defendant's motion to quash the alternative writ.
BEILFUSS, J. (concurring).
I agree that the petition for mandamus should be dismissed. I have no quarrel with the majority opinion. In my belief there is another and equally compelling reason.
In counties with a population of over 500,000 the legislature has given all of the duties and responsibilities of the district attorney in inquests into death to the county medical examiner.
Sec. 966.15, Stats., provides:
"Inquests; counties over 500,000. In each and every county whose inhabitants exceed in number 500,000 all the duties mentioned in the foregoing sections of this chapter shall be performed by the medical examiner appointed pursuant to s. 59.34 (1), who is hereby invested with the exclusive jurisdiction and power to take inquests therein, and in case of the inability of the medical examiner to attend to such duties the medical examiner may *386 deputize one of his assistants to conduct the inquest." (Emphasis added.)
I am authorized to state that Mr. Justice ROBERT W. HANSEN joins in this concurrence.
WILKIE, J. (dissenting).
The majority and the concurring opinions work at cross purposes. The majority opinion builds up the authority of the district attorney to decide whether or not a coroner's inquest should be called. In effect, it strips the courts of any review of the district attorney's decision not to order an inquest, provided that he demonstrates that he exercised his discretion in reaching that decision. However, the concurring opinion would hold that under sec. 966.15, Stats., the district attorney in Milwaukee county has no function in the ordering of inquests, that function having been assigned to the medical examiner (which office for Milwaukee county takes the place of coroner in the other 71 counties).
In my view, both the majority and concurring positions are incorrect. All agree that we are concerned here with construing and applying the provisions of ch. 966, Stats., and in particular, sec. 966.01, which spells out the responsibility and authority of the district attorney in the ordering of coroner's inquests. As pertinent, that section provides:
"966.01 Inquests. Whenever the district attorney has notice of the death of any person and from the circumstances surrounding the same there is any reason to believe that murder, manslaughter, homicide resulting from negligent control of vicious animal, homicide by reckless conduct, homicide by negligent use of vehicle or firearm, or homicide by intoxicated user of vehicle or firearm may have been committed, or that death may have been due to self-murder or unexplained or suspicious circumstances, and the venue of such offense is in his county, excepting in cases where a criminal warrant or warrants have been issued, he shall forthwith order and require the coroner, deputy coroner, or in the event of the absence or disability *387 of the coroner or deputy coroner, some municipal justice to take an inquest as to how such person came to his death. . . ."
It could be argued that the majority has put the word "good" back in the statute. In 1957 the legislature changed the wording of sec. 966.01, Stats., by changing the word "good" in the phrase "good reason to believe" to the word "any" in the statutory section as it now provides: "any reason to believe."[1] If this were all that the majority opinion did, then the court would have to hold that the district attorney was required to order an inquest if there was any "good reason to believe" that circumstances existed calling for an inquest. In that situation, the court could review the evidence to determine whether there was, in fact, good reason to believe that circumstances existed which would require the district attorney to order an inquest. But this is not what the majority opinion has held. It has reached the conclusion that the district attorney's decision as to whether there is "any reason to believe" is a matter entirely within the discretion of the district attorney. In reaching this conclusion the majority has held that there can be no abuse of discretion so long as there is a "record of the exercise of discretion." In other words, there can be no abuse of discretion under this statute as long as there is a record of the district attorney's investigation concluding that there is "no reason to believe" that circumstances exist under which an inquest should be called.
Thus, the majority does not review the circumstances surrounding the death, but merely determines whether the district attorney made an investigation. In so doing, the majority would provide no review by a court of law of the matter of whether, in fact, the district attorney has failed to order an inquest when there is "any reason to believe" that circumstances listed in the statute exist which require the calling of an inquest. The statute does *388 not give the district attorney the sort of discretion spelled out by the majority. The district attorney has wide discretion on matters affecting coroner's inquests, but that discretion comes into play after the inquest has been held. The district attorney is not obligated to prefer the charges recommended by the inquest. There are other examples in which the district attorney is vested with wide discretion in the decisions he reaches. One is provided by sec. 52.23, Stats., which provides that ". . . the district attorney, if he determines it to be to the best interest of the child" shall prosecute the paternity proceedings commenced by the mother of such child.
The concurring opinion misreads sec. 966.15, Stats. It fails to note that the medical examiner is "invested with the exclusive jurisdiction and power to take inquests" in Milwaukee county. (Emphasis added.) We are not concerned with taking inquests, but ordering them. The purpose of sec. 966.15 is clearly to provide that the functions normally vested in a coroner in the other 71 counties are assumed by the medical examiner in Milwaukee county. The function of the district attorney under sec. 966.01 in investigating and ordering inquests remains uncharged and the provisions of sec. 966.01 are just as binding as to the district attorney of Milwaukee county as to the district attorneys in other counties. The concurring opinion would substitute the words "medical examiner" for the words "district attorney" in sec. 966.01. Thus the medical examiner would be authorized to order himself to take an inquest. This cannot be what was intended by the legislature.[2]
For the reasons indicated, I would affirm the lower court's decision directing the district attorney to hold an inquest into the death of Jerome Kurkierewicz, as provided *389 for by sec. 966.01, Stats. Even though the shooting might have been in self-defense, unless under all of the circumstances surrounding the death it is apparent that no other reason for the death could exist, the district attorney is obligated by sec. 966.01 to order an inquest. As petitioner contends, the fact that the deceased was using a table knife with a round edge, the fact that no other attempt was made to stop the deceased, and the fact that the officer did not shoot Jerome in the arm or leg, but shot him in the head and chest, indicate that self-defense is not the only reason which might be attributed to the shooting. These argued facts indicate that the statutory standard, set forth in sec. 966.01, was not followed by the district attorney, and that an inquest should have been ordered.
Of course, the mere holding of an inquest under sec. 966.01, Stats., does not imply that a crime has been committed. It merely indicates that there may be reason to believe that one has been committed. The whole purpose of the inquest is to inquire into all of the circumstances surrounding the death with a view to ascertaining whether a crime has been committed. As the majority correctly states, the office of district attorney is invested with wide discretion in the performance of its numerous duties. But, also as the majority correctly notes: "There is . . . no basis for holding that his duties in representing the state are not subordinate to legislative direction as to the cases in which he shall proceed."[3] The legislature has precisely spelled out the duties of the district attorney in connection with the ordering of coroner's inquests. The district attorney in this case has not carried out these functions in accordance with the statute and has been correctly directed to order an inquest.
NOTES
[*] Motion for rehearing denied, with costs, on June 3, 1969.
[2] "I like to think of district attorneys as belonging to the department of justice, and that they are more than prosecuting officials. They exercise a wide discretion as to what offenders shall be proceeded against and in naming the offense to be charged. This discretion requires the utmost good faith on their part and the application of that degree of wisdom usually designated by the term `common sense.'
"It is frequently said by certain altruistic persons that the law should be strictly enforced and for any infraction thereof punishment must be swift and sure. However, men of practical experience in life recognize that no such ideal, if it be an ideal, is possible. The public officials having to deal with crime must winnow and sift from the offenders those who are the most guilty those having the guilty intentfor vigorous prosecution." Address of Justice Charles H. Crownhart delivered at District Attorneys' Convention in May 1927, 16 Op. Atty. Gen. (1927) xlix.
[3] "This obligation [to hold inquests of the dead] is imposed by Magna Charta: `Nullus liber homo aliquo modo destruatur nisi per legale judicium parium shorum aut per legem terrae.' `No freeman shall perish in any way whatsoever but on the judgment of his peers (condemnation to death) or by the law of nature (by illness or accident')." McMahon, supra, p. 6, sec. 10. See Holt, Magna Carta (Cambridge University Press, 1965), 1215 version, ch. 39, pages 326 and 327, and 1225 version, ch. 29, page 355.
[1] Ch. 128, sec. 1, Laws of 1957.
[2] In fact, sec. 59.456 (6), Stats., provides, as to counties of more than 500,000 population, "It is the responsibility of the district attorney . . . to perform all appropriate duties and appear whenever he may be designated in matters within chs. 292, 958, 964, 965, and 966 " Enacted by ch. 271, Laws of 1965.
[3] State v. Coubal (1946), 248 Wis. 247, 257, 21 N.W.2d 381. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611623/ | 11 So.3d 368 (2009)
KING
v.
STATE.
No. 4D09-1216.
District Court of Appeal of Florida, Fourth District.
June 3, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611671/ | 841 So.2d 115 (2003)
Jason Daniel JONES
v.
STATE of Mississippi.
No. 2001-KA-00819-SCT.
Supreme Court of Mississippi.
March 27, 2003.
*120 Wayne O'Dell Lee, Greenville, Howard Q. Davis, Jr., Indianola, for appellant.
Office of the Attorney General by John R. Henry, for appellee.
*121 Before SMITH, P.J., COBB and DIAZ, JJ.
DIAZ, JUSTICE, FOR THE COURT:
¶ 1. This is a criminal appeal from a conviction of capital murder from the Circuit Court of Washington County, Mississippi, Honorable W. Ashley Hines, presiding. After a 6 day bifurcated trial by jury conducted March 15-20, 1999, Jason Daniel Jones (Jones) was sentenced by the jury to serve a term of life imprisonment without the benefit of probation or parole.
¶ 2. Michael Wilkerson (Wilkerson) was brutally murdered in a field in Washington County on January 9, 1998. Investigation revealed that Jones had previously lived with and worked for Wilkerson, and on the day of the murder, Jones had left town on a bus. That bus had a scheduled stop in Memphis, Tennessee. Officers from the Washington County Sheriff's Office (WCSO) phoned Memphis authorities and requested that they detain Jones when the bus arrived in Memphis. Jones was arrested in Memphis and later waived extradition back to Mississippi. In Mississippi, Jones confessed and provided officers the details of the crime and led them to substantial evidence later used against him at trial. He also alleged that a man named David Shamoun (Shamoun) hired him to kill Wilkerson and that Shamoun had also participated in Wilkerson's murder. Wilkerson apparently owed money to Shamoun, a financier of his business, and Shamoun had a beneficial interest in a policy of insurance on Wilkerson's life. Jones and Shamoun were both indicted for the murder of Wilkerson.
¶ 3. Six issues are now before this Court:
I. Whether Jones was arrested in Memphis, Tennessee by Law Enforcement Officers of that City and, if so, if the arrest was supported by probable cause;
II. Whether Law Enforcement Officers of Washington County, Mississippi questioned Jones after he had invoked his privilege against self-incrimination and requested an attorney;
III. Whether the District Attorney acted improperly by meeting with Jones, at Jones's request, before counsel was provided to him;
IV. Whether the State of Mississippi failed to provide Jones with a timely initial appearance;
V. Whether the trial judge erred by not recusing himself; and
VI. Whether the cumulative effect of various other assigned errors deprived Jones his right to a fair trial.
FACTS
¶ 4. On the afternoon of January 9, 1998, Wilkerson was found dead in a field near Wilmot Road in Washington County, Mississippi. He had sustained numerous stabs and cuts from a knife, including a cut to the throat. In the course of investigating the scene, deputies of the Washington County Sheriff's Office (WCSO) discovered blood in a palm print found in the mud indicating that the person who killed Wilkerson had injured his right hand. Further investigation at the scene led officers to conclude that two individuals were involved in the murder of Wilkerson: one who actually killed him and another who stayed in a car on Wilmot Road. The investigation progressed rapidly and by that same evening deputies had learned that a man named Jason worked for Wilkerson and had been living with him for about a week before the day of the murder. They learned that on that day, Jason had told co-workers he was going home to West Virginia to live with his mother. Deputies *122 were told that Shamoun had given Jason a ride to the bus station. Shamoun was interviewed, and he told WCSO that someone named Jason had been living with Wilkerson. He confirmed that he drove Jason to the bus station, and he gave WCSO a description of Jason. However, the interview was cut short by Shamoun. He became nervous, giving several different versions of when and how he picked Jason up, and stated, "You don't understand how deep in this I am, and I really don't want to make any other statements until I ... talk to an attorney." Questioning ceased, and Shamoun was allowed to leave.
¶ 5. Officers went to the bus station and learned that someone matching Jones's description boarded a bus bound for West Virginia, with a stop in Memphis, Tennessee. WCSO telephoned Memphis Police, gave them the suspect's first name and Shamoun's description of him, and requested they detain him when the bus stopped there. WCSO Officer Doyle Barrett testified that at that time he also told Memphis police about the suspect's possible injury to his right hand; however, a NCIC description sent to Memphis had no mention of the suspect having an injury.[1]
¶ 6. Memphis police detained Jones, who did have an obvious injury to his right hand, at the bus station. They then informed WCSO of his detention, gave them his full name, and requested an arrest warrant in order to hold Jones until WCSO officers could arrive from Mississippi. WCSO Officer Kelvin McKenzie testified that he prepared an affidavit setting forth what they knew about Jones at the time. According to testimony, WCSO knew the following about Jones when they prepared the affidavit: his full name, that he worked for and lived with the victim, and that he left town the day of the murder, and that the suspect they were looking for and Jones both had injuries to their right hand. However, the record is silent as to how much of this information was included in the affidavit. This affidavit did not include an underlying facts and circumstances sheet and was not produced at trial.[2] Based on the affidavit, WCSO secured an arrest warrant late the night of the murder, which they faxed to Memphis police approximately thirty minutes after Jones had been detained for questioning. WCSO officers then left for Memphis to see if Jones would waive extradition and return to Mississippi.
¶ 7. Upon their arrival, WCSO officers interviewed Jones. They noticed that his right hand was bandaged. WCSO officers informed Jones that Wilkerson had been killed. They testified that he showed no emotion. Officer McKenzie began advising Jones of his Miranda rights, but Jones interrupted, stating, "I want a lawyer." Officer McKenzie finished reading Jones his rights, whereupon Jones again requested an attorney. Questioning ceased at that point. Before Jones was returned to his cell, however, a Memphis officer asked Officer McKenzie what was wrong with Jones's hand. McKenzie in turn asked Jones, who replied, "I'd rather not discuss that." Because it was their policy to evaluate all injuries before booking persons to ascertain if they needed medical treatment, *123 Jones was required by the Memphis officer to remove the bandage from his hand, revealing a deep cut which Memphis authorities determined did indeed need medical treatment. Jones said he cut the hand at work earlier in the week. WSCO officer McKenzie took two Polaroid photographs of the wound, and Jones was taken to the hospital.
¶ 8. On Monday, January 12, 1998, WSCO Officers returned to Memphis "to attempt to again interview Jason Jones and ascertain if he w[ould] waive extradition and voluntarily return to Mississippi." Before reaching Memphis, the officers learned that Jones had waived extradition. Custody of Jones was relinquished to the deputies, and they drove him back to Washington County, Mississippi. Sometime along the trip, Jones was again advised of his Miranda rights, and he again requested an attorney.
¶ 9. Officer David Sessums testified they were careful not to discuss the case with Jones during the trip from Memphis, because he had previously requested an attorney two times Conversely, Jones testified the officers questioned him about the case and told him they could not help him unless he helped himself. Officer Sessums testified that Jones stated he wanted to tell them what happened, but did not know how to go about it. Officer Sessums further testified that Lieutenant Gaston told Jones he needed to be aware of his rights before telling them anything and then read Jones his Miranda rights again. Jones thereafter requested to speak with the District Attorney. Jones testified he made this request because the officers were questioning him about the case and offering him leniency for cooperation and he knew that any deal would have to be authorized by the District Attorney. As stated, the Officers testified that they did not question Jones.
¶ 10. Pursuant to Jones's request, District Attorney Frank Carlton, met with Jones for a brief time upon his arrival at the Washington County Sheriff's Office. A suppression hearing was held on February 16, 2000, regarding this conversation. Jones sought to suppress his statements on the grounds the statements obtained were not freely and voluntarily given but were a result of promises of leniency made by the District Attorney during this brief meeting. Jones testified that he brought up manslaughter and the District Attorney responded, "I can charge you with manslaughter. I am the district attorney, I can charge you with public urination if I feel like it, as long as the detectives agree with the manslaughterrecommend manslaughter, I'll do it." The District Attorney denied making this or any promise of leniency to Jones. He testified that no discussions about a plea ever occurred, and he made no promises of any kind to Jones. He testified that he shook Jones's left hand, inquired about his right hand, in terms of whether he had received medical attention, and then waited for Jones to say something. District Attorney Carlton testified that Jones said nothing, and so he took his leave.
¶ 11. After his conversation with the District Attorney, Jones, who previously had made no statement or confession, stated he wished to tell WCSO everything about the case. Officer Doyle Barrett testified that after the meeting with the District Attorney, Jones was completely and totally cooperative. Jones was again informed of his rights, waived them in writing, and then made the first of two statements. He confessed to planning Wilkerson's murder with Shamoun and then personally killing Wilkerson in Shamoun's presence. He confessed to cutting Wilkerson's throat inside the car, then following him into the field and stabbing *124 him numerous other times. Jones alleged in his statement that all of his actions were done at the bidding of Shamoun, who Jones believed had ties to the mob, and that he was afraid Shamoun would kill him if he did not participate. He stated that after he cut Wilkerson in the car, Wilkerson exited the car and ran into the field. Shamoun told him "to finish him off." Jones did not want to, but Wilkerson told him to do so or he "would leave him there." Jones stated that he believed this to mean that Shamoun would kill him and leave him there. Deputy David Sessums of the WCSO testified that, in his opinion, Jones had no reason currently to fear Shamoun, but that he believed that Jones believed that he had reason to fear him.
¶ 12. On January 13, after again waiving his rights in writing, Jones made another statement; adding the date Shamoun asked him to kill Wilkerson, the amount Shamoun was to pay him ($1,500 up front and another $2,000 after the investigation was over), and that Shamoun gave him money to buy the murder weapon (a filet knife purchased at Wal-Mart). Jones also gave audio and video statements, directed officers to the location of physical evidence used against him, and consented to having blood drawn for analysis. In addition, a letter to another inmate, in which Jones confessed to killing Wilkerson, was intercepted by the Arizona Department of Corrections and returned to WCSO. Jones testified that he only confessed and cooperated with the investigation because the District Attorney and WCSO gave him the impression that his charge would be reduced from murder to manslaughter if he cooperated. However, Jones also testified at the suppression hearing that the District Attorney never actually promised to give him manslaughter.
¶ 13. Pursuant to information obtained from Jones, Shamoun was arrested on January 12, 1998. He was arraigned by Justice Court Judge DeVane on January 13, 1998. Jones was not arraigned until January 15, 1998, six days after his Memphis arrest. Officer Barrett acknowledged that Jones first requested an attorney on the morning of January 10, 1998; however, he was not given a lawyer until after the January 15 arraignment. As mentioned, from his arrest until his arraignment several incriminating statements were taken from Jones.
¶ 14. Jones's Motion to Suppress the statements and confessions on the grounds that they were not voluntary and taken in violation of his Constitutional rights was denied. Jones's subsequent Motion for an Interlocutory Appeal was also denied. Jones's Motion for Disqualification of District Attorney Frank Carlton because he was a potential witness was also denied. At the close of the State's evidence, Jones's Motion to Exclude the State's evidence and direct a verdict for Jones was denied. Jones also made a Motion to Disqualify Circuit Court Judge Ashley Hines. This motion was also denied.
¶ 15. The jury unanimously found Jones guilty of capital murder. A sentencing hearing was held, and the jury unanimously sentenced Jones to life imprisonment without parole. Jones's motion for judgment notwithstanding the verdict or, in the alternative, a new trial, was denied.
DISCUSSION
I. DID THE TRIAL COURT ERR IN HOLDING THAT JONES'S ARREST WAS SUPPORTED BY PROBABLE CAUSE?
¶ 16. In his first assignment of error, Jones argues that his initial arrest was illegal because it was not supported by probable cause. He insists that all evidence *125 flowing from that illegal arrest must be suppressed. The State argues that the issue was not properly raised below and is not properly before this Court. Although he did not raise the issue of lack of probable cause to arrest in his pleadings, Jones brought the issue to the attention of the trial court. That court heard argument regarding it and addressed the claim in a post-trial order, setting out its reasons for denying the claim. Therefore, though he did not specifically raise the issue in his pleadings in the trial court, Jones objected on the issue at trial sufficient to raise it here. Moreover, "plain errors of sufficient constitutional importance are likely to affect the outcome of a case and may be addressed for the first time by this Court upon appeal." Conerly v. State, 760 So.2d 737, 740 (Miss.2000). "This Court has recognized an exception to procedural bars where a fundamental constitutional right is involved." Maston v. State, 750 So.2d 1234, 1237 (Miss.1999). See also Smith v. State, 477 So.2d 191, 195 (Miss.1985).
¶ 17. Jones claims he was placed under arrest at the Memphis bus station, that there was no arrest warrant at that time, and that there was insufficient probable cause to support a warrantless arrest. He insists that all evidence gathered as a result of that illegal arrest should be suppressed as fruits of the poisonous tree. In this case, that would be all of the evidence used against Jones, including the confessions and the physical evidence Jones located for the WCSO. The initial question then becomes whether Jones placed under arrest by the Memphis police.
¶ 18. Detention of Jones by Memphis police was requested by WCSO so they could question him regarding the murder of Wilkerson. At this point, no arrest warrant for Jones had been issued. A person may be "detained" short of an actual arrest for investigatory purposes. Estes v. State, 533 So.2d 437 (Miss.1988); Anderson v. State, 368 So.2d 243 (Miss. 1979). However, any desire to merely detain Jones became an intention to make an arrest, given the fact that WCSO immediately secured an arrest warrant when they learned Jones had been detained in Memphis. Furthermore, the limited exception to the warrant and probable cause requirements carved out in Anderson and Estes applies only to "brief" detentions. Jones's detention in Memphis necessarily required those authorities to hold him for several hours until the WCSO could arrive from Mississippi to question him, thereby exceeding the "brief" detention contemplated by Anderson and Estes.
¶ 19. An arrest occurs when a person is subjected to "actual or constructive seizure or detention of [his person], or his voluntary submission to custody, the restraint being under real or pretended legal authority." Bearden v. State, 662 So.2d 620, 623 (Miss.1995). Since Jones was detained by authorities in Memphis, taken to police headquarters there, and held for some four hours until WCSO could arrive, and given the fact that an arrest warrant was secured at the request of Memphis officers to sustain the detention, Jones was placed under arrest at the bus station and was not merely subjected to a non-custodial, investigatory detention.
¶ 20. "To effect arrest for a felony, either with or without a warrant, a police officer must have reasonable cause to believe a felony has been committed, and reasonable cause to believe that the person proposed to be arrested is the one who committed it." Caldwell v. State, 443 So.2d 806, 811 (Miss.1983), citing Powe v. State, 235 So.2d 920 (Miss.1970). At the time of Jones's arrest, neither Memphis police nor WCSO possessed a warrant for his arrest. Jones argues that his arrest was illegal because he was arrested without *126 a warrant and that the warrant that was later secured at the request of the Memphis officers was invalid because it was not supported by probable cause. However, it is settled law in Mississippi that a person may be arrested, without a warrant, if the officer has reasonable grounds to believe that a felony has been committed by the person to be arrested. Miss.Code Ann. § 99-3-7 (Rev.2000); Alexander v. State, 503 So.2d 235 (Miss. 1987).
¶ 21. "Probable cause is a practical, non-technical concept, based upon the conventional considerations of every day life on which reasonable and prudent men, not legal technicians, act. It arises when the facts and circumstances within an officer's knowledge, or of which he has reasonably trustworthy information, are sufficient to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it." E.g., Conerly v. State, 760 So.2d 737, 740 (Miss.2000). This determination is to be made from the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Sims v. State, 512 So.2d 1256 (Miss.1987).
¶ 22. WCSO had sufficient probable cause to believe that Jones had been involved in the murder of Wilkerson. Jones lived with and worked for Wilkerson. He had made plans days before the murder to leave the State on the day of the murder. He did in fact leave the State just hours after the murder. WCSO reasonably suspected from their investigation that two people had been involved in Wilkerson's murder, and Shamoun, who admitted driving Jones to the bus station, gave several different versions of his interaction with Jones on the day of the murder and made a statement strongly suggesting that he had been involved in some way with Wilkerson's death. The investigation also suggested that the person who killed Wilkerson injured his right hand during the commission of the murder, and Memphis police confirmed that Jones did in fact have an injured hand when arrested at the bus station.
¶ 23. The "duty of a reviewing court is simply to ensure that ... a `substantial basis for concluding' that probable cause existed" was evidenced. Rooks v. State, 529 So.2d 546, 554 (Miss.1988) (quoting Illinois v. Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548). The trial court had a substantial basis for finding that probable cause existed, and its decision to that effect was not clearly erroneous and will not be disturbed here.
¶ 24. Jones argues that whether WCSO possessed sufficient probable cause is irrelevant as it was Memphis police who arrested him, not WCSO. He contends that because Memphis police had no personal knowledge of his participation in the crime, they possessed no probable cause to arrest him. However, the Memphis police could reasonably rely on information relayed to them by WCSO in making the arrest of Jones. The reasonable belief of WCSO of Jones's involvement in the murder could be transferred to Memphis police. In Williams v. Lee County Sheriff's Department, 744 So.2d 286 (Miss. 1999), this Court held that officers in Mississippi were entitled to rely on information they received from California law enforcement authorities who informed them that a murder had been committed in California and that a person with the defendant's social security number and physical characteristics had committed it.[3]See also *127 Hamburg v. State, 248 So.2d 430, 432 (Miss.1971) (information provided to arresting officer by law enforcement source provided sufficient probable cause to make an arrest); Parks v. State, 180 Miss. 763, 178 So. 473 (1938) (where information of a crime provided by sheriff of one county to sheriff of another county held sufficient probable cause to justify warrantless arrest by the former). An officer's reliance on computer reports, radio communications, and dispatcher information have been held to confer sufficient probable cause for arrest. See Mitchell v. State, 792 So.2d 192 (Miss.2001) (radio communication); Jones v. State, 481 So.2d 798 (Miss.1985) (radio); Hodge v. State, 801 So.2d 762 (Miss.Ct.App.2001) (computer report); Jones v. State, 799 So.2d 171 (Miss.Ct.App.2001) (dispatcher). Moreover, it is settled law in Mississippi that an informant may provide officers with sufficient probable cause to make a warrantless arrest. See Abram v. State, 606 So.2d 1015 (Miss.1992); Moore v. State, 493 So.2d 1295 (Miss.1986), Jones v. State, 358 So.2d 414 (Miss.1978). There is no reason why information received from another law enforcement official, who has a sworn duty to uphold the law, should be any less reliable than information received from an informant who's credibility, in many situations, is uncertain.
¶ 25. In short, Jones's arrest in Memphis was supported by probable cause. Therefore, even without a warrant, it was a legal arrest. Jones's confession should not be suppressed on the grounds of an illegal arrest.
¶ 26. The first assignment of error is without merit.
II. DID LAW ENFORCEMENT OFFICERS OF WASHINGTON COUNTY, MISSISSIPPI IMPROPERLY QUESTION JONES AFTER HE HAD REQUESTED AN ATTORNEY?
¶ 27. In his second assignment of error, Jones alleges that he was questioned by Washington County deputies after he had invoked his constitutional right to counsel. Jones contends this questioning occurred in Memphis during the initial interview with Washington County officers and then again during the drive from Memphis to Washington County. Questioning of a person who is in custody of law enforcement must cease if he invokes his privilege against self-incrimination or his right to counsel. Riddle v. State, 580 So.2d 1195, 1199 (Miss.1991).
¶ 28. Jones invoked his right to counsel during the initial interview and questioning ceased. Although questions were asked regarding Jones's injured hand, these questions were necessary to determine whether medical treatment was needed, a duty being laid upon the prison's jailer to provide for such care. See, e.g., Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th Cir.1989) (Tennessee authorities have affirmative duty to know of medical needs of inmates and act upon them).[4] The only questions asked of Jones were whether he had injured himself and, if so, how. These questions were necessary and *128 proper to ask and they were not necessarily questions about Jones's involvement in Wilkerson's murder. Law enforcement officials do not run afoul of Miranda where they put questions to such a person in order to determine whether medical assistance is necessary. Moreover, the answer given by Jones (that he had injured his hand at work) was not an incriminating statement, nor was it a confession. Thus, any potential violation of Miranda would be harmless. Peterson v. State, 540 So.2d 1340 (Miss.1989). Jones's confession occurred several days later, after he initiated contact and stated that he wished to make a statement. It cannot be said that Jones's statement about his injury had any effect upon the verdict. Therefore, Jones's argument that his constitutional right to be free from questioning once he had requested an attorney was violated when officers inquired about the injury to his hand is without merit.
¶ 29. Jones further argues that his rights were violated by the officers photographing his hand. Miranda applies to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It does not prohibit an officer from testifying as to his observations of the appearance or condition of a person in custody. Furthermore, photographing Jones's injury, a matter clearly within the plain view of the officers and incident to a lawful arrest would not be an improper search either. Jones had no more of a reasonable expectation of privacy with respect to his hand than he would have had with his handwriting. See Burns v. State, 729 So.2d 203 (Miss.1998). Moreover, since there was a duty on the part of the Memphis officials to know and act upon a medical need of a person in their custody, the nature of the injury to Jones's hand would have been inevitably discovered when they discharged that duty. Jones did in fact receive medical attention for the injury to his hand; therefore, the existence and degree of that injury would have become known to WCSO regardless of the questions asked of Jones by them after he requested an attorney. See Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (holding that evidence seized in an unreasonable search may, nevertheless, be admitted if it can be demonstrated that the evidence would, in all likelihood, ultimately have been discovered by constitutionally means).
¶ 30. Jones also claims that the deputies questioned him about the murder and offered him assistance in return for his cooperation during the drive to Washington County. WCSO deputies testified they did not question Jones or make any promises to him. No confession or information was gathered during the trip from Memphis to Washington County. Therefore, keeping in mind that the trial court found Jones's accusations not to be credible, even if the officers had questioned Jones, this violation of his rights was harmless.
¶ 31. It is uncontested that Jones was given a Miranda warning during the drive and that he requested a conference with the District Attorney. This was arranged, and Jones subsequently confessed. While it is true that questioning of an accused who is in custody must cease at the point he invokes his privilege against self-incrimination or his right to counsel, it is equally true that any such invocation by him does not prohibit him from later initiating contact and discussing the crime of which he is accused. Hunter v. State, 684 So.2d 625 (Miss.1996). Jones requested the conference with the District Attorney. He also initiated the conversations with officers after that meeting during which time he confessed.
*129 ¶ 32. The officers testified that Jones initiated a conversation about the crime. Jones says the deputies did. The circuit court found the testimony in favor of admission of the confession the Jones ultimately gave, and it issued a detailed, written finding of fact and conclusion of law, applying the legal analyses applicable to the Jones's claim, and specifically stating why it did not find the Jones's testimony worthy of belief. Because the trial court's finding was based on substantial evidence and cannot be said to be "clearly erroneous," it is affirmed here. Dancer v. State, 721 So.2d 583 (Miss.1998).
¶ 33. Jones's second assignment of error is without merit.
III. WHETHER THE DISTRICT ATTORNEY ACTED IMPROPERLY BY MEETING WITH JONES, AT JONES'S REQUEST, BEFORE COUNSEL WAS PROVIDED TO HIM.
¶ 34. In his third assignment of error, Jones alleges that the District Attorney deprived him of his right to counsel by agreeing to meet with Jones before he was represented by counsel. Jones argues that his conviction should be reversed because the District Attorney promised him lenity. At trial, Jones moved to disqualify District Attorney Frank Carlton, arguing disqualification was proper based on: his appearance at the jail to talk with Jones before he had been formally charged, the potential that Carlton would be called as a witness in the case, and the difficulty if not the impossibility for the District Attorney's office to be objective and fair-minded in its exercise of prosecutorial discretion. The motion was denied.
¶ 35. Jones cites numerous Mississippi cases where this Court has "repeatedly condemned the practice whereby law enforcement interrogators, or related third parties, convey to suspects the impression, however slight, that cooperation by the suspect might be of some benefit." Abram v. State, 606 So.2d 1015, 1031 (Miss.1992); Dunn v. State, 547 So.2d 42 (Miss.1989); Miller v. State, 243 So.2d 558, 559 (Miss.1971); Agee v. State, 185 So.2d 671, 674 (Miss.1966); Johnson v. State, 89 Miss. 773, 777, 42 So. 606 (1907); Mitchell v. State, 24 So. 312 (Miss.1898). "Long before Miranda warnings were mandated by the U.S. Supreme Court, it was well settled in Mississippi jurisprudence that a confession given after promises of leniency was incompetent as evidence." Dunn v. State, 547 So.2d 42, 44 (Miss.1989). In Mitchell v. State, this Court held that a confession given by a defendant was not voluntarily made subsequent to his being told by the sheriff that it would be "best for him to tell all about it." Mitchell, 24 So. at 312 (Miss.1898). In Matthews v. State, 102 Miss. 549, 59 So. 842 (1912), a black defendant fourteen years of age accused of stealing an item of jewelry had been told by the town marshal that it would be better for him to get the pin, if he would tell the truth, "it would be all right," and "I don't want to put you in any trouble." This Court held that the subsequent confession was not voluntary. In Robinson v. State, 247 Miss. 609, 157 So.2d 49, 51 (1963), this Court stated:
The question before the Court is whether there was a promise or an inducement offered to defendant if he confessed. The test in such cases is whether the inducement is of a nature calculated under the circumstances to induce a confession irrespective of its truth or falsity; a mere exhortation or adjuration to speak the truth will not exclude a confession, but where such adjuration is accomplished by an expression that it would be better for the accused to tell *130 the truth, some courts have refused to admit such confession.
¶ 36. However, in each of the cases cited by Jones wherein a confession was rendered inadmissible due to promises of leniency, it was uncontradicted that the statement was made. In the case at bar, Jones and the authorities' recollection of the events leading up to his confession was in dispute, and was decided in favor of the authorities' version by the trial court after an extensive hearing.
¶ 37. Jones also relies upon Adams v. State, 202 Miss. 68, 30 So.2d 593 (1947), wherein this Court found that, because of the prosecution's misconduct in the investigation of the case, the evidence obtained was inadmissible and despite the obvious guilt of the defendant that the Court had to reverse the trial court's decision and discharge the appellant. However, Adams is distinguishable from the case at bar. In Adams, the district attorney secured a search warrant, traveled with the sheriff to the place to be searched, and engaged in a search of the premises without presenting the warrant of otherwise informing the accused of their purpose. At trial, the district attorney testified against the accused. This Court reversed the conviction, holding that the district attorney, "by his over-zealous conduct, violated prejudicially his duty to be fair and impartial." 202 Miss. at 78, 30 So.2d at 598. In the case at bar, District Attorney Frank Carlton's brief visit with Jones, at Jones's request, can hardly be said to have risen to the same level of misconduct condemned in Adams.
¶ 38. In Mississippi, if the defendant offers testimony that a confession was involuntary due to promises, the State must offer in rebuttal the testimony of all the officers who were present when the alleged promise or threat was posed or give an adequate reason for the absence of such witnesses. This is referred to as the Agee Rule. Agee v. State, 185 So.2d 671 (Miss.1966). See also Mettetal v. State, 602 So.2d 864 (Miss.1992). Non-compliance with the rule will cause reversal. Powell v. State, 483 So.2d 363 (Miss.1986). The State has the burden of proving voluntariness of the confession and it must be proved beyond a reasonable doubt. Mettetal v. State, 602 So.2d 864 (Miss.1992); Neal v. State, 451 So.2d 743 (Miss.1984). This burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward. This makes out a prima facie case for the State on the question of voluntariness. Lee v. State, 236 Miss. 716, 112 So.2d 254 (1959). We have held that "the resolution of conflicting testimony regarding voluntariness is a question of fact to be resolved by the trial judge at the suppression hearing." Chase v. State, 645 So.2d 829, 841 (Miss.1994) (quoting Smith v. State, 465 So.2d 999, 1002 (Miss.1985)). When determining voluntariness, the court must look at the "totality of the circumstances" surrounding the statement.
¶ 39. In the case at bar, a suppression hearing was conducted. At the hearing the District Attorney as well as all officers present during the conversation testified. They all confirmed the District Attorney's testimony that he made no promises of lenity to Jones. After a careful review of the record, the only evidence we have found supporting his accusation that he was promised manslaughter is Jones's own testimony and the fact that immediately following this conversation he confessed. Jones's immediate confession after consistently refusing to give a statement for several days does tend to support Jones's testimony that he did so based on promises of lenity. However, beyond *131 Jones's testimony, the record is absent proof that his decision to do so was prompted by anything the District Attorney or WCSO said or indicated to him. Moreover, Jones also testified that the District Attorney never actually promised to charge him with manslaughter.
¶ 40. Jones cites as further evidence of coercion the fact that deputies called his mother and claimed they were trying to help Jones and that it would be better for him to cooperate with them. However, she did not speak to Jones until after he had given his confessions and shown the deputies where the various items of physical evidence were located. No statements made by the deputies to Jones's mother could have acted as promises of lenity or as improper inducements to Jones, he having never been aware of them prior to the time he made his confession. Jones even told her when they did speak that he confessed because it was the right thing to do.
¶ 41. The District Attorney testified that he made no promises to Jones. Officer Sessums was also present during this meeting and testified that District Attorney Carlton told Jones "the best advice he could give him ... that he was not in a position to tell him what was going to happen or to offer him any deals or anything else, the only thing he could tell him that was inthat in his position, the best thing to do was always to tell the truth." In this Court's opinion, the District Attorney's statement does not rise to the level of inducement found in the cases cited by Jones. If anything, it was a "mere exhortation or adjuration to speak the truth" of the type described in Robinson as being insufficient to render a confession involuntary.
¶ 42. Furthermore, in Stokes v. State, 548 So.2d 118, 122 (Miss.1989), this Court held that when the circuit court expressly or implicitly resolves the issue of admissibility of a confession against a defendant, our scope of review is confined to the established limits. In Alexander v. State, 610 So.2d 320 (Miss.1992) (internal citations omitted), this Court set out the standard of review on voluntariness of confessions, finding it is essentially a fact-finding function. So long as the court applies the correct legal standards, "we will not overturn a finding of fact made by a trial judge unless it be clearly erroneous." Where, on conflicting evidence, the court makes such findings this Court generally must affirm. Id. at 326. See also Veal v. State, 585 So.2d 693, 697 (Miss.1991) (this Court will not reverse trial court on conflicting testimony as to whether coercion used to obtain confession). The Circuit Court found that no offers of lenity or plea discussions took place, and that Jones's confessions were voluntary. Since this finding is based upon substantial evidence and is not clearly erroneous, it must be affirmed here.
¶ 43. Jones's third assertion of error is without merit.
IV. WAS THE WCSO'S FAILURE TO PROVIDE JONES WITH AN INITIAL APPEARANCE WITHIN 48 HOURS PREJUDICIAL TO HIM?
¶ 44. Jones cites as his fourth assertion of error the failure of WCSO to provide him with an initial appearance within 48 hours, as required by Rule 6.03 of the Uniform Circuit and County Court Rules. Rule 6.03 provides, "Every person in custody shall be taken, without unnecessary delay and within 48 hours of arrest before a judicial officer or other person authorized by statute for an initial appearance."
¶ 45. Jones was arrested in Memphis on January 10, was returned to Mississippi on January 12 at approximately *132 four o'clock p.m., and was given an initial appearance in Mississippi on January 15, 1998; a period clearly exceeding the period mandated by Rule 6.03. Upon his return to Mississippi on the 12th, Jones confessed to the murder. Between this confession and his initial appearance on the 15th, Jones made other incriminating statements and led police to substantial physical evidence used against him.
¶ 46. Jones cites Abram v. State, 606 So.2d 1015 (Miss.1992), where this Court found reversible error in part due to failure to provide an initial appearance according to Rule 6.03 (then Rule 1.04). In Abram, the confession in question was found to be coerced, and this Court found the confession to have devastating consequences for the defense because the State would not have obtained an uncounseled confession if the accused had been provided a timely initial appearance and access to counsel. Under these circumstances, where the defendant's conviction relied solely upon his confession, this Court held it to be reversible error for the State to fail to provide an initial appearance where a judge was available at all times. Abram, 606 So.2d at 1029. In the case at bar, the confession provided by Jones prior to his initial appearance was the substance of the State's case against him. Moreover, he provided information that led to the arrest of Shamoun on January 12, 1998, who was given a timely initial appearance by Judge DeVane on January 13, 1998. WCSO Officer Barrett acknowledged that in addition to Judge DeVane's availability on January 12th, 13th, 14th, other magistrates were available.
¶ 47. It is well established that the failure to provide an initial appearance for an accused within the time provided is not, of itself, a reason to suppress a confession. Davis v. State, 743 So.2d 326, 337 (Miss.1999). In Morgan v. State, 681 So.2d 82 (Miss.1996) and Veal v. State, 585 So.2d 693 (Miss.1991), this Court found that a violation of Rule 6.03 alone will not result in the suppression of evidence or reversible error where the defendant was informed of his rights and made a knowing and voluntary waiver. But see Gordon v. State, 160 So.2d 73 (Miss.1964); Parker v. State, 244 Miss. 332, 141 So.2d 546 (1962) (holding that considerable delay in providing an initial appearance alone can be reversible error).
¶ 48. In Veal, this Court was confronted with a situation similar to the case at bar. Veal, like Jones, had been arrested by warrant before he confessed. Veal, like Jones, was informed of his Miranda rights and he waived those rights. Veal, like Jones, argued on appeal that the lower court erred in refusing to suppress his confession because the State had unnecessarily delayed his initial appearance to gain a confession. On appeal, this Court rejected Veal's argument and held that he had been promptly advised of his attached right to counsel, and he clearly and promptly waived that right. Accordingly, no error was found in the use of Veal's post-initial appearance confession. See also Ormond v. State, 599 So.2d 951, 955 (Miss.1992) (delay in initial appearance "cannot constitute per se reversible error, even when a defendant gives evidence prior to the delayed appearance").
¶ 49. Jones waived extradition to Mississippi at some point between his arrest in Memphis on January 10 and his return to Washington County, Mississippi, on January 12, 1998. The State argues that this was sufficient to comply with the spirit of Rule 6.03, because there would have been a hearing in Memphis to determine if Jones would waive extradition to Mississippi and this hearing would have necessarily included a determination of probable cause to hold him. However, there is no *133 evidence in the record confirming that any such determination was made at the hearing in Memphis, or that a hearing of any kind was conducted. Moreover, Rule 6.03 lists several rights of which a magistrate must inform a person brought before him/ her in an initial appearance.[5] Assuming, arguendo, that an extradition hearing was conducted in Memphis, there is no evidence that any of these rights were communicated to Jones at the Memphis extradition hearing.
¶ 50. Additionally, the State argues that it is determinative on this issue that Jones was arrested pursuant to a valid arrest warrant. The main purpose of the initial appearance, they argue, is to determine probable cause for arrests made without a warrant, thus when an arrest is made pursuant to an arrest warrant there is no requirement for an initial appearance, as the determination of probable cause has already been made. However, this argument fails as it does not consider that Jones was initially arrested without a warrant, and it overlooks the other purposes of Rule 6.03.
¶ 51. Jones gave a written confession on January 12 at 6:27 p.m., shortly after returning to Mississippi. In this confession he described his and Shamoun's plan to murder Wilkerson. He told the officers the details of how they carried out the murder, where he discarded the murder weapon, the hotel where he and Shamoun washed the blood off of themselves and threw away their clothes, and the location where he and Shamoun sank Wilkerson's car. In short, Jones provided WCSO with sufficient evidence to charge him with the murder of Wilkerson and for them to independently locate all the remaining evidence that Jones subsequently led them to. Though this confession was made more than 48 hours after Jones was arrested in Memphis, it was immediately after he was returned to Mississippi.
¶ 52. In County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), the United States Supreme Court examined what is reasonable delay before determining whether there was probable cause for a warrantless arrest. The Court acknowledged that practical realities would sometimes result in delays, such as: transporting a prisoner from one facility to another, handling late-night bookings where no magistrate is readily available, and obtaining the presence of the arresting officer. Such delays are reasonable under the Fourth Amendment. Id. at 57, 111 S.Ct. at 1670.
¶ 53. The WCSO should not be punished for failing to provide Jones an initial appearance while he was under the custody of Memphis police. The practical reality of waiting for Jones to waive extradition and then transporting him back to Mississippi naturally caused a delay in providing an initial appearance. The 48 hour period should have begun at the point when Jones was under the control of the WCSO. Applying this reasoning, Jones's initial appearance would have been required no later than four o'clock p.m. on January 14, 48 hours after being taken into custody by WCSO. The statement given by Jones on January 12 was completely incriminating, *134 sufficient to prosecute him for Wilkerson's murder, and well within the 48 hour period. Therefore, the delay in providing Jones an initial appearance caused him no prejudice. A timely initial appearance in Mississippi might have resulted in less evidence being gathered, but it would not have resulted in suppression of the evidence against Jones to the extent where there is any reasonable probability that the verdict would have changed.
¶ 54. Moreover, exclusion of Jones's confession on this ground will not further the deterrent purpose of the exclusionary rule because WCSO has no control over what occurred in Memphis. Holding them responsible for the failure of Memphis authorities to provide criminal defendants timely initial appearances will not, in this Court's opinion, increase Memphis authorities' compliance with Mississippi law.
¶ 55. The trial judge found that Jones's confessions were admissible because Jones had been advised of his right to counsel and that he knowingly, intelligently and voluntarily waived this right. As this decision does not appear to be manifestly wrong, it will be upheld here on appeal.
¶ 56. This issue is without merit.
V. WHETHER THE TRIAL JUDGE ERRED BY NOT RECUSING HIMSELF.
¶ 57. On motion by Jones for disclosure of any possible basis for judicial recusal, the judge stated that his former law firm had represented Jones's co-defendant's father in the early 1980s, in a matter concerning the Board of Levee Commissioners; that his former law firm had represented an individual in a dispute with Shamoun; and that the Assistant District Attorney who tried the case practiced law with the judge for several years.
¶ 58. This disclosure prompted a motion for recusal by the defense, in which these facts were alleged as reasons for recusal. In addition, Jones claimed that the action of the trial judge in denying relief upon certain defense motions and objections evinced bias against him.[6] The trial court denied relief on this motion to recuse, finding that "a reasonable person, knowing all of the circumstances, would not harbor any doubts as to the impartiality" of the judge.
¶ 59. Jones alleges the trial judge erred by refusing to recuse himself. He cites Canon 3 of the Code of Judicial Conduct wherein it is stated that the judge's duty is not to give any appearance of partiality. He alleges the judge's actions at trial indicate that the judge was biased against him. The State argues that mere claims of error should not be elevated to a charge of judicial misconduct. They argue that this Court should consider that even if a trial judge's rulings are erroneous, they do not for that fact demonstrate bias.
*135 ¶ 60. This Court applies an objective standard in deciding whether a judge should have disqualified himself. Miss.Code of Jud. Conduct Canon 3. "A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality." Jenkins v. Forrest County Gen. Hosp., 542 So.2d 1180, 1181 (Miss. 1988). Article 6, § 165 of the Mississippi Constitution (1890) provides in part: "No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties." "The decision to recuse or not to recuse is one left to the sound discretion of the trial judge, so long as he applies the correct legal standards and is consistent in the application." Collins v. Joshi, 611 So.2d 898, 902 (Miss.1992). On appeal, a trial judge is presumed to be qualified and unbiased and this presumption may only be overcome by evidence which produces a reasonable doubt about the validity of the presumption. Bredemeier v. Jackson, 689 So.2d 770, 774 (Miss.1997). When a judge is not disqualified under the constitutional or statutory provisions the decision is left up to each individual judge and is subject to review only in a case of manifest abuse of discretion. Buchanan v. Buchanan, 587 So.2d 892, 895 (Miss.1991). In determining whether a judge should have recused himself, the reviewing court must consider the trial as a whole and examine every ruling to determine if those rulings were prejudicial to the complaining party. Hunter v. State, 684 So.2d 625, 630-31 (Miss.1996).
¶ 61. Jones first claims that Judge Hines's former law firm's representation of his co-defendant's father and their handling of a matter adverse to the same illustrates that Judge Hines should have recused himself. Apparently, some twenty years prior to trial, Judge Hines's former law firm represented Joe Shamoun in a matter having no relation to this case. That firm also handled a matter adverse to Joe Shamoun, also around twenty years prior to trial. Nothing in the record illustrates that Judge Hines should have recused himself based on these coincidences.
¶ 62. Next, Jones argues as grounds for recusal the fact that Judge Hines formerly practiced law with Assistant District Attorney Tucker Gore for approximately four years ending in February, 1993. Gore was the State's lead attorney in the case. This Court presumes that a judge, sworn to administer impartial justice, is qualified and unbiased. To overcome the presumption, the evidence must produce a reasonable doubt about the validity of the presumption. Turner v. State, 573 So.2d 657, 658 (Miss.1990). As the following discussion illustrates, Jones failed to offer any evidence that Judge Hines was biased in any way. His decisions were sound and his judgment fair.
¶ 63. Accordingly, absent some showing of actual prejudice or bias, there was no error in Judge Hines presiding at Jones's trial. Initially, it should be noted that the majority of Jones's allegations of bias revolve around Judge Hines's denial of trial motions. This Court held in Farmer v. State, 770 So.2d 953, 958 (Miss.2000), that "[j]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion." However, because of the severity of the charges against Jones and the sentence imposed on him, each of his allegations have been considered and will be addressed in turn.
(1) Denying the Defendant's Motion to Disqualify the District Attorney.
¶ 64. This substance of Jones's objection to the District Attorney's participation *136 in the trial was addressed in Section III supra and will not be discussed at great length again here. Jones sought disqualification of District Attorney Carlton on the grounds that he was a potential witness in the trial because of his pre-confession conversation with Jones. Judge Hines overruled this motion on the grounds that he had already found that the District Attorney made no such promises to Jones. He further held that, in the event the District Attorney is called to testify on that collateral matter,[7] he saw no basis to disqualify him on this ground. This ruling was based on sound reasoning and is insufficient to overcome the presumption that Judge Hines was not biased against Jones.
(2) Denying the Defendant's Motion to Continue for purposes of obtaining an investigator and an expert psychological evaluation to be used in sentencing.
¶ 65. Next, Jones asserts as evidence of bias Judge Hines's denial of a motion for continuance for the purpose of securing an investigator in West Virginia and a mental health professional to evaluate Jones and prepare to testify at the sentencing phase. Judge Hines based his denial of this motion on the fact that Jones was arraigned in July of 1998 and did not attempt to get an investigator or a mental health evaluation until two weeks prior to trial in April of 2000. Judge Hines also based the denial on the fact that there had already been seven continuances in the matter, five of which were chargeable to the defendant. Judge Hines's denial of this motion was within his discretion and evidences no bias against Jones. Moreover, as Jones was sentenced to the least severe penalty he could receive, life imprisonment without the possibility of parole, the denial of a continuance did not prejudice Jones.
(3) Denying Defendant's Motion to Continue so Defendant's DNA expert could evaluate the State's DNA results.
¶ 66. Next, Jones argues that bias against him was demonstrated by Judge Hines's refusal to grant a continuance so that the defense's DNA expert could evaluate the State's DNA evidence. This evidence was not provided to the defense until the week before trial. Judge Hines denied this motion on the grounds that the DNA evidence would not be presented until several days into the trial and Jones would not be prejudiced because his expert could review it in the interim. This was within the judge's discretion and evidences no bias against the defendant. Moreover, as the trial court ruled that the State's DNA evidence was cumulative and therefore inadmissible, the denial of a continuance did not prejudice Jones.
(4) Judge Hines's alleged derogatory comment about the defense at trial.
¶ 67. Jones alleges that Judge Hines commented that it was ineffective assistance of counsel not to have requested a continuance before the day of trial. Jones offers no documentation from the record to support this allegation. "Our law is clear that an appellant must present to us a record sufficient to show the occurrence of the error he asserts and also that the matter was properly presented to the trial court and timely preserved." Acker v. State, 797 So.2d 966, 972 (Miss.2001) (quoting Lambert v. State, 574 So.2d 573, 577 (Miss.1990)). See also Pulphus v. State, 782 So.2d 1220, 1224 (Miss.2001) *137 ("Issues cannot be decided based on assertions from the briefs alone. The issues must be supported and proved by the record.") (citing Robinson v. State, 662 So.2d 1100, 1104 (Miss.1995)). If the defense believed the judge made a derogatory comment about it, it was incumbent upon the defense to make a record of the matter. Having failed to do so at the trial level, Jones cannot assert it for the first time here on appeal.
(5) Refusal to grant an interlocutory appeal.
¶ 68. After the trial court declined to suppress the confessions, Jones requested a continuance to pursue an interlocutory appeal. This request was denied. He now argues that denial was error. The decision to grant or deny a continuance is left to the sound discretion of the trial court. Johnson v. State, 631 So.2d 185, 189 (Miss.1994). Reversal is authorized when the judge abuses this discretion, and this abuse results in an injustice. However, unless that discretion has been abused, this Court will not reverse the trial court's decision. Id. Evidentiary rulings are within the broad discretion of the trial court and will not be reversed absent an abuse of discretion. Coleman v. State, 697 So.2d 777, 784 (Miss.1997). Rule 5 of the Mississippi Rules of Appellate Procedure specifically provides for, and governs, interlocutory appeals:
(a) Petition for Permission to Appeal. An appeal from an interlocutory order may be sought if the order grants or denies certification by the trial court that a substantial basis exists for a difference of opinion on a question of law as to which appellate resolution may:
(1) Materially advance the termination of the litigation and avoid exceptional expense to the parties; or
(2) Protect a party from substantial and irreparable injury; or
(3) Resolve an issue of general importance in the administration of justice.
¶ 69. Bearing in mind the presumption that Judge Hines is qualified and unbiased unless and until Jones produces evidence which creates a reasonable doubt about the validity of this presumption, this Court finds this assertion of bias lacking merit. Judge Hines had sufficient evidence before him that tended to indicate that Jones's confessions were freely and voluntarily given. Jones was given Miranda warnings numerous times before his confession, and he waived them in writing. Though he alleges that he only did so because he believed he would be charged with manslaughter, Jones testified that the District Attorney never promised to so charge him. Judge Hines conducted a hearing wherein all the officers present at the meeting testified that the District Attorney offered no deal to Jones. Jones's mother testified that he told her he confessed because "he had to be at peace with himself, he was going to cooperate, it was the right thing to do." Judge Hines did not abuse his discretion in failing to grant an interlocutory appeal to Jones.
(6) Refusal to recuse himself.
¶ 70. Jones also asserts as evidence of bias Judge Hines's refusal to recuse himself after Jones subpoenaed him as a possible witness for having conducted Jones's initial appearance. Jones asserts that Judge Hines should have recused himself because "there were facts arising out of that initial appearance and the warrants issued by him which might cause him to be called as a witness." Jones offers no further support for this allegation of bias. He does not describe what facts from the initial appearance might cause the judge to be a necessary witness, nor does he describe what warrants he is referring to. *138 Therefore, this Court is not under any obligation to review this issue. See Zimmerman v. Three Rivers Planning & Dev. Dist., 747 So.2d 853, 861 (Miss.App.1999) ("[T]he issue is precluded from review by this Court because of Zimmerman's complete failure to present any citation of authority or meaningful argument....")
¶ 71. In this Court's opinion, Jones's bare assertion that Judge Hines's should have recused himself simply because he presided over his initial appearance lacks common sense as well as authority. If Judge Hines became a potential witness merely by presiding over Jones's initial appearance, why then would he not be a witness for presiding over the suppression hearing or the other motions filed by Jones? In any event, because his argument is merely a bare assertion, unsupported by authority in law or in the record, this assignment of bias is not a proper subject of review by this Court.
(7) Permitting Dr. Steven Hayne to testify during sentencing.
¶ 72. In his final allegation of bias, Jones complains that Judge Hines permitted Dr. Steven Hayne to testify during the sentencing phase of the trial, despite the prosecutor's concession that the defense might be correct in its opinion that Dr. Hayne could not be permitted to testify. Jones argues that the act of the judge having his law clerk research the point demonstrates bias. This Court finds that Judge Hines's desire to know the law and make the correct decision in no way demonstrates bias against Jones. Moreover, it does not appear from the record that Dr. Hayne even testified during the sentencing phase of the trial. Accordingly, this issue is moot.
¶ 73. In light of the record as a whole, and after considering each of his allegations of bias, Jones has not proven, to this Court's satisfaction, that a reasonable person, knowing all the facts and circumstances, would harbor doubts about Judge Hines's impartiality. Consequently, this assignment of error is without merit.
VI. WHETHER CUMULATIVE ERRORS IN THIS CASE DENIED JONES HIS RIGHT TO A FAIR TRIAL.
¶ 74. In his final assignment of error, Jones alleges the trial court committed numerous other errors, the cumulative effect of which deprived him of a fair trial. In this assignment of error, Jones offers little or no authority or record support for his arguments. As stated, this Court is under no obligation to review assignments of error unsupported by argument or citation to authority. Pate v. State, 419 So.2d 1324,1325-26 (Miss.1982). However, due to the seriousness of the crime Jones was convicted of committing and the fact that he will be incarcerated for the remainder of his life, each of his arguments have been considered and will be addressed.
(1) Fruits of the Poisonous Tree.
¶ 75. First, Jones reiterates his allegation that his confessions and all evidence gained because of them and subsequently used against him should have been suppressed as fruit of the poisonous tree flowing from his illegal arrest, the violation of his right to counsel, and the intervention of the District Attorney. Each of these allegations has already been discussed and dismissed as lacking merit. Therefore, no further discussion is warranted here.
(2) Disqualification of District Attorney.
¶ 76. Next, Jones argues that the trial court erred by refusing to disqualify District Attorney Frank Carlton as he was a potential witness in the case and by allowing him to participate in the case and remain in the courtroom, though other witnesses *139 were sequestered. Jones cites numerous cases for the proposition that courts and prosecutors should strive to avoid even the appearance of impropriety. However, no such appearance was created in this case. Carlton was not a fact witness. He was a witness to a preliminary matter and testified at the suppression hearing outside the presence of the jury. Once the decision was made by Judge Hines to deny the motion to suppress Jones's statements, there could not have been any further purpose or use in having Carlton as a potential witness.[8] This assignment is without merit.
(3) Disqualification of Jurors.
¶ 77. Jones further asserts error in the trial court's overruling his motion to disqualify a panel of jurors because, during voir dire as to juror's opinion of the death penalty, one among them made the comment "if you commit a crime and you kill someone, then you should give your own life." The defense moved to disqualify the panel. The court did not grant the motion but rather examined the other members as to whether the comment changed their positions. At the conclusion of the case, Jones was sentenced to life imprisonment. As he did not receive the death penalty, this issue is moot.
(4) Injury to Jones's hand.
¶ 78. Jones claims the trial court erred in allowing any evidence regarding his cut hand, arguing it was fruit of an illegal arrest and was a warrantless search of the Defendant's person in violation of the Fourth and Fourteenth Amendments of the U.S. Constitution and Article 3, Section 23 of the Mississippi Constitution. This contention was analyzed and dismissed as having no merit in Section II supra.
(5) Evidentiary Rulings.
¶ 79. Jones asserts various evidentiary rulings made during the trial as error. These include: allowing the jury to have copies of statements during the trial and thereby putting added emphasis on that evidence; allowing redirect examination over defense objection concerning the lineup; overruling an objection concerning garbage bags; overruling an objection to the cumulative testimony of Peggy Kuntz; overruling an objection to the testimony of Dr. Steven Hayne as being cumulative to that of the coroner; and allowing Pam Miller to testify despite defense objections that her testimony was cumulative of crime lab testimony.
¶ 80. Questions of relevancy and admissibility are left to the discretion of the trial court. Century 21 Deep South Properties, Ltd. v. Corson, 612 So.2d 359, 369 (Miss.1992). "Admission of testimony is subject only to an abuse of discretion review." Tatum v. Barrentine, 797 So.2d 223, 230 (Miss.2001) (citing Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d 149, 152 (Miss.1997)). Evidentiary rulings are within the broad discretion of the trial court and will not be reversed absent an abuse of discretion. Coleman v. State, 697 So.2d 777, 784 (Miss.1997). In this Court's opinion, the trial court did not abuse his discretion in admitting this evidence.
(6) Denial of Defendant's Motion to Exclude the State's Evidence.
¶ 81. Jones next argues Judge Hines erred in denying his motion to exclude the State's evidence and direct a verdict for the defense. This issue is without merit. The evidence presented by the State was sufficient for the jury to convict *140 Jones of the crime charged. It cannot be said that it was against the great overwhelming weight of the evidence or manifestly wrong. The State presented evidence that Jones lived with and worked for Wilkerson, that he left town on the day of the murder, that he confessed to committing the murder and that he was hired and paid for the murder by Shamoun. They told the jury how Jones led them to the murder weapon, and how he led them to Wilkerson's car, which was in the bottom of a lake. The jury was justified in returning a verdict of guilty on the evidence. This issue is without merit.
(7) Denial of motions for mistrial.
¶ 82. Jones alleges the trial court erred in denying two motions for mistrial due to alleged prosecutorial misconduct during his closing argument in the sentencing phase. During his closing argument, the district attorney told the jury, "[y]ou might also say a prayer for the Wilkerson family." The defense objected, and the trial court sustained the objection. Later in the same argument, the district attorney stated, "The Bible tells you that you reap what you sow." The defense objected, and the judge overruled the objection, finding that the district attorney was using the Bible for a literary reference rather than to interject religion.
¶ 83. A party has broad latitude in closing argument. Wells v. State, 698 So.2d 497, 506 (Miss.1997). In determining whether a prosecutor's remarks necessitate reversal, the test is whether the natural and probable effect of the prosecuting attorney's improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice. Davis v. State, 530 So.2d 694, 701 (Miss.1988). The trial judge is in the best position to determine the prejudicial effect of the objectionable comment; thus the trial court is entrusted with the discretion to determine whether an improper statement made during a closing argument warrants a mistrial. Alexander v. State, 602 So.2d 1180, 1182 (Miss.1992). In light of the overwhelming evidence against Jones, the jury's verdict likely was not influenced by any prejudice that might have resulted from the district attorney's isolated comments. As the trial judge was in the best position to determine the level of prejudice, if any, that resulted from this comment, this Court will defer to his finding. Therefore, this issue is without merit.
¶ 84. Jones also argues that the court erred in denying a motion for mistrial following a disruption of the trial by the victim's family. Apparently, some of them left the courtroom crying loudly during Dr. Steven Hayne's testimony. The judge sent the jury out of the courtroom and admonished the spectators to remain quiet. The defense did not request and the trial judge did not give a curative instruction to the effect that the jury should disregard the outburst. However, the trial judge did ban all the persons who disrupted the proceeding from attending the remainder of the trial.
¶ 85. In Chase v. State, 645 So.2d 829, 848-49 (Miss.1994), during the guilt phase of the trial, the victim's widow took the stand and began crying as she described her husband's murder. This prompted other family members in the audience to begin crying as well. Defense counsel made an objection for mistrial which the trial court overruled. This Court stated that, "the trial judge is in a better position to assess the effect of such an incident than is this Court on appeal, and this Court will not reverse on the failure to grant a mistrial unless a trial judge abused his discretion in overruling the motion for a mistrial." Id. at 848 (quoting Ladner v. State, 584 So.2d 743, 753 (Miss.1991)). See also Davis v. State, 530 So.2d 694, 697 (Miss.1988). In Floyd v. State, 166 Miss. *141 15, 148 So. 226, 232 (1933), this Court held, "as long as an audience does not disturb or prevent a fair trial, we cannot control the lower court in its discretion, and tell it when to exercise authority and when not. It is only when it is evident that such authority should be exercised, and is not, that this Court will interfere."
¶ 86. In the case at bar, the trial court immediately restored order to the courtroom and admonished the spectators of the impropriety of their actions and that any further outbursts would result the declaration of a mistrial. He banned the spectators that caused the disruption from attending the remainder of the trial. The trial court immediately admonished the spectators, and no other outburst occurred. This issue is without merit.
(8) Failure to Grant Continuances.
¶ 87. Jones argues that he was denied a fair trial by the refusal of a continuance for the purpose of securing an investigator in West Virginia and a mental health professional to evaluate the defendant and to prepare to testify at the sentencing phase. This issue was addressed in Section V(2), supra, in regard to Jones's claim of judicial bias. Here, as there, this Court holds that this issue is moot because Jones did not receive the death penalty.
¶ 88. Jones reiterates his argument that it was error to deny a continuance for the purpose of allowing the defense to review the DNA evidence and discuss this with the defense experts prior to the commencement of trial. Jones also argues that it was error to force the defense to trial before they had adequate time to prepare to meet the State's DNA evidence which was provided to them one week before trial. This issue has also been raised and dismissed earlier. See Section V(3), supra. It is also moot because the DNA evidence was ruled inadmissible by the trial court.
¶ 89. This issue is without merit.
CONCLUSION
¶ 90. For the reasons set forth herein, Jones's conviction and sentence are affirmed.
¶ 91. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT, WITHOUT THE POSSIBILITY OF PAROLE, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.
PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR.
NOTES
[1] Officer Barrett explained at trial that NCIC reports are prepared by dispatchers at the request of investigators and do not have all of the information regarding cases.
[2] The State attempted to introduce the affidavit that was used to secure Jones's arrest warrant; however, the defense objected on the grounds that it had not been produced to them until a week before trial. The court inquired as to why the State needed it in evidence, and the State withdrew it.
[3] In Williams, a 42 U.S.C. § 1983 civil case, the information-providing officers did already possess an arrest warrant when they requested assistance from Mississippi officers. However, this Court appeared to hold that the information regarding the defendant's participation in the crime was sufficient probable cause for an arrest, irrespective of the arrest warrant.
[4] Mississippi law imposes a similar duty upon its own law enforcement officers. See Miss. Code Ann. § 47-1-57 (Rev.2000) (When any person confined in jail shall be in need of medical or surgical aid, the sheriff shall immediately examine the condition of such prisoner and, if he is of the opinion that the prisoner needs such aid, he shall call in a nurse or physician to attend him).
[5] In addition to determining probable cause for arrest, the judicial officer must advise the defendant of the following: (1) that the defendant is not required to speak and that any statements made may be used against him/ her; (2) of the right to counsel and the right to have counsel appointed if the defendant cannot afford one; (3) that the defendant has the right to communicate with an attorney and family or friends and that reasonable means will be provided to enable the defendant to do so; (4) any conditions under which the defendant may obtain release; (5) that the defendant has the right to demand a preliminary hearing while the defendant remains in custody.
[6] The judge's actions that Jones alleges illustrate bias include: denying the Defendant's Suppression Motions; denying the Defendant's Motion to Disqualify the District Attorney; denying the Defendant's Motion to Continue for purposes of obtaining an expert psychological evaluation to be used in sentencing; and denying Defendant's Motion to Continue so Defendant's DNA expert could evaluate the State's DNA results because the State failed to timely disclose said results. Jones also seeks to demonstrate bias by arguing the judge made a derogatory comment about the defense at trial; presided over the initial appearance and the trial, even though Jones subpoenaed him as a possible trial witness; refused to certify an interlocutory appeal; and allowed Dr. Steven Hayne to testify after the State conceded that the Defense's objection to his testimony may be correct (the trial judge had his law clerk research the point before allowing Dr. Hayne to testify).
[7] District Attorney Carlton did in fact testify regarding this conversation at the suppression hearing.
[8] As illustrated by the fact that Jones did not call Carlton to testify during his case in chief. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2460613/ | 16 F. Supp. 2d 1145 (1997)
Rene SORIA, Plaintiff,
v.
John J. CALLAHAN, Acting Commissioner of the Social Security Administration, Defendant.
No. CV 95-5120(JG).
United States District Court, C.D. California.
September 12, 1997.
*1146 Suzanne C. Leidner, Leidner & Leidner, Los Angeles, CA, for Plaintiff.
Nora M. Manella, U.S. Attorney, Leon W. Weidman, Assistant U.S. Attorney; Chief, Civil Division, Kevin B. Finn, Assistant U.S. Attorney, Los Angeles, CA, for Defendant.
MEMORANDUM AND ORDER
GROH, United States Magistrate Judge.
Plaintiff has filed a complaint under 42 U.S.C. § 405(g) seeking review of the denial of Disability Insurance Benefits and Supplemental Security Income (SSI) by the Commissioner of the Social Security Administration (Commissioner). Defendant has answered, and the parties have filed cross-motions for summary judgment. For the reasons discussed below, the Commissioner's decision is affirmed and the complaint is dismissed.
BACKGROUND
Plaintiff filed applications for benefits on February 28, 1992, claiming to have been disabled since November 15, 1990, due to back, neck and knee injuries. (Administrative Record (A.R.) 76, 79.) After plaintiff's claim was denied initially and on reconsideration, a hearing was held before an Administrative Law Judge (ALJ) on September 8, 1994. (A.R.38-75.) In a decision dated January 25, 1995, the ALJ found that plaintiff met the disability insured status requirements *1147 of the Social Security Act on November 15, 1990, the date he alleged he became unable to work, that plaintiff had not engaged in substantial gainful activity since 1991, and that the medical evidence establishes that plaintiff has neck, back and shoulder pain, iridocyclitis, a nervous condition, gastritis and a hernia. (A.R.25.) However, the ALJ found that plaintiff does not have any impairment or combination of impairments which meets or equals any impairment listed in Appendix 1 to Subpart P of the Regulations, No. 4. (Id.) Furthermore, the ALJ found that plaintiff's allegations of pain and limitations were not credible, and that plaintiff has the residual functional capacity to perform work "except for work involving lifting over 20 pounds, exposure to heights or machinery, climb more than occasionally and work requiring perfect vision." (A.R.26.) After considering the testimony of a vocational expert, the ALJ found, at step four of the sequential evaluation process,[1] that plaintiff is able to perform to his past relevant work as an apartment manager and is therefore not disabled. (Id.)
Plaintiff appealed the ALJ's finding of nondisability to the Appeals Council, which denied his request for review. (A.R.3-4.) Plaintiff how comes before this court. Both parties seek summary judgment.
RELEVANT RECORD EVIDENCE
1. Plaintiff's Age, Education And Work Experience
Born May 9, 1952, plaintiff was 38 years old on the alleged onset date and 42 when the ALJ rendered his decision. (A.R.26, 68-69, 79.) Plaintiff attained the eleventh grade and had worked prior to his disability onset date as a security officer, a restorative technician, a truck route salesman and a janitor. (A.R.67-69, 109.) Since 1990, plaintiff had collected welfare and had also been employed as the property manager at the apartment complex where he lived. He testified that he was fired from that position in February 1994 (seven months prior to the hearing) due to a dispute with his employer. (A.R.42.)
2. Plaintiff's Testimony About Pain And Limitations
At the hearing before the ALJ, plaintiff testified that he could no longer work. Noting that his problems had been building up since an injury sustained 5 years before, he complained of pain in his back, neck, shoulder and hip, as a result of which he was unable to walk or sit for prolonged periods. Plaintiff further testified that he had problems with his eyes, arthritis in his jaw, a cyst in his throat, arthritis in the neck, problems with the lumbar spine and sciatic nerve, bursitis in the left hip, muscle deterioration in his left leg, depression, and anxiety. (A.R.51-59.) He stated that he has undergone arthroscopic surgery to his right knee, experiences recurrent pain and numbness, and has trouble coping. (A.R.53.) He also complained of severe stomach pain, exacerbated by medication, and testified that he had a hiatal hernia and gall bladder problems. (A.R.53.) Plaintiff testified that he relieves his pain by lying down, taking hot baths or showers and applying alcohol to relax his muscles. He sleeps about 2-3 hours a day. (A.R.55.) He underwent physical therapy two or three months before the hearing but still suffers "excruciating" pain. (A.R.55-56.) Plaintiff said treatments and medications have afforded no lasting relief and cause side effects, including stomach irritation. (A.R.52-56, 60.) He testified that MediCal does not cover all of his medications and at times he cannot afford to buy medication. (A.R.52-53, 59.) Plaintiff testified *1148 that, when not resting, he sweeps the kitchen and bathroom and cleans the furniture to help his wife. (A.R.59.)
3. The Medical Records
The medical records depict an individual who suffers from a number of problems, including eye problems, neck, back and knee problems, and gastritis, partly as a side-effect of the medications he is taking for his other ailments. However, only one medical report actually discusses plaintiff's ability to work in any detail. On May 15, 1993, consultative orthopedist Robert Greenfield, M.D., performed an examination of plaintiff for the State Agency. Plaintiff complained of neck pain associated with tingling and numbness of the hands and low back pain radiating to the left leg. (A.R.168.) Dr. Greenfield diagnosed plaintiff with "[n]eck pain, secondary to chronic cervical strain" and "[m]echanical low back pain due to lack of consistent objective findings." He said, "[i]n view of subjective complaints, no impairment is indicated." (A.R.172.) Dr. Greenfield stated on the "Medical Assessment Of Ability To Do Work Related Activities" form that plaintiff suffers from "no impairment-related physical limitations." (A.R.173.)
The only other discussion of plaintiff's ability to work is contained in a handwritten notation in a record of contact dated March 9, 1992, which says that "[t]he doctor said that the claimant's visual fields are not constricted severely enough to prevent him from working." (A.R.157.)
The additional medical records are quite voluminous and will be discussed further in connection with the issues to which they pertain.
4. The Testimony Of The Vocational Expert
To assist him in evaluating plaintiff's ability to work, the ALJ called upon the services of a vocational expert (VE). In response to the ALJ's first hypothetical question, the VE testified that a person able to lift 20 pounds frequently and 10 pounds occasionally, able to stand, walk or sit for six hours a day, but limited to occasional climbing and the avoidance of heights and hazardous machinery, could perform plaintiff's past work as a security guard and an apartment manager. (A.R.68-69.)[2]
Next, the ALJ asked the VE to assume that plaintiff has slight to moderate back and neck problems, a slight eye problem which does not prevent him from reading, a problem with the left knee which occurs when he stands too long, gastritis, gall bladder problems, and two hernias, resulting in moderate to severe upset stomach, pains which are alleviated somewhat by medications, but which medications have side effects consisting of moderate impact on concentration due to gastritis, a need to lie down two times per day for a period of half an hour each, and the ability to lift ten pounds frequently and twenty pounds occasionally. The VE testified that such limitations would preclude performance of plaintiff's past work; in particular, the lifting restrictions and the need to lie down for half an hour twice a day would interfere with the ability to engage in competitive employment, and would thus preclude a person with such limitations from doing plaintiff's past work, including the apartment manager's job, or other work available in the economy. (A.R.70-71.)
Finally, the ALJ asked the VE to assume a person able to lift 20 pounds frequently and 10 pounds occasionally, able to stand, walk or sit for six hours a day, but limited to occasional climbing and needing to avoid heights and hazardous machinery, with nervousness controlled by medication, pain in the neck, hip and knee, all controllable by medication, slight vision problems correctable with glasses, hernias, and gastritis brought on by nerves and as a side effect of medication, controllable to no more than a slight level by medication. The VE said such a person would be able to engage in plaintiff's past relevant work as an apartment manager and security officer. (A.R.72.)
The ALJ found that plaintiff "has the residual functional capacity to perform work-related activities except for work involving *1149 lifting over 20 pounds, exposure to heights or machinery, climb more than occasionally and work requiring perfect vision," and, based on the testimony of plaintiff and the VE, found that plaintiff retained the functional capacity to perform his past relevant work as a property manager. (A.R.24-26.)
DISCUSSION
Under 42 U.S.C. § 405(g), the Commissioner's decision is subject to review to determine whether: (1) the findings are supported by substantial evidence and (2) the Commissioner applied the proper legal standards. Swanson v. Secretary of Health and Human Services, 763 F.2d 1061, 1064 (9th Cir.1985). "Substantial evidence is `more than [a] mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971)). Plaintiff makes three main arguments before this court, to which I now turn.
1. Substantial Gainful Activity
Plaintiff contends that the ALJ erred in finding that his activities as an apartment manager were substantial, gainful activity for purposes of the step four analysis.[3] I disagree.
First, plaintiff claims that "[t]he ALJ was not justified in assuming that claimant's employment generated earnings [were] sufficient to establish that he engaged in SGA [substantial gainful activity]." (Pl's. Mem. at 6.) This argument has some superficial appeal. Not all work constitutes "past relevant work" for purposes of the step four determination, but only that work which satisfies the conditions of "substantial gainful activity" (SGA). This requirement is indicated by 42 U.S.C. § 423(d)(1), which defines disability as the "inability to engage in any substantial gainful activity," and is mandated by the Commissioner's own interpretive ruling, Social Security Ruling (SSR) 82-62 (PPS-80: A Disability Claimant's Capacity To Do Past Relevant Work), which states, "Capacity to do past work may be indicative of the capacity to engage in SGA when that work experience constituted SGA and has current relevance considering duration and recency." 1982 Cum.Bul. 185, 187 (emphasis added). This ruling is binding on the Commissioner, 20 C.F.R. § 422.406(b)(1), and directs the conclusion "that `previous work,' in order to be considered `past relevant work,' must first be found to rise to the level of [SGA]." Lauer v. Bowen, 818 F.2d 636, 639 (7th Cir.1987). See also Burton v. Bowen, 704 F. Supp. 599, 604 (E.D.Pa.1989) ("[i]in order for previous employment to be considered `past relevant work,' it must have been a substantial gainful activity"); 3 Soc.Sec.Law & Prac. § 43:84 (T. Traverse 1989).
Generally, for years after 1989, earnings of less than $300 a month are presumptively not substantial gainful activity while earnings of more than $500 a month are presumptively substantial gainful activity. Byington v. Chater, 76 F.3d 246, 250 (9th Cir.1996) (citing 20 C.F.R. § 404.1574(b)(2)(vii) & (3)(vii)). Plaintiff testified that he paid only $88 per month for his apartment because he had $300 per month deducted from his rent for being the apartment manager. (A.R.43-45.) Therefore, his monthly average earnings do not rise to the level at which the Commissioner "will consider that [his] earnings from [his] work activities as an employee show that [he] ha[s] engaged in substantial gainful activity." 20 C.F.R. §§ 404.1574(b)(2), 416.972(b)(2).
However, earnings are not the end of the inquiry. "Substantial work activity" is defined in the regulations as work that "involves doing significant physical or mental activities" and "is the kind of work usually done for pay or profit." 20 C.F.R. § 416.972(a), (b). "`[W]ork may be substantial even if it is done on a part-time basis ....'" Byington, 76 F.3d at 250 (quoting Wright v. Sullivan, 900 F.2d 675, 678 (3rd Cir.1990)); see also 20 C.F.R. § 404.1572(a) *1150 (1989). "Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized." 20 C.F.R. §§ 404.1572(b), 416.972(b).
Because plaintiff's $300 a month rent reduction neither exceeds $500 nor falls below $300, "the provisions of 20 C.F.R. § 404.1574(b)(6) must be applied." Byington, 76 F.3d at 250. Under these provisions, further inquiry will be made to determine whether work activities rise to the level of substantial gainful activity; specifically, whether:
(i) Your work is comparable to that of unimpaired people in your community who are doing the same or similar occupations as their means of livelihood, taking into account the time, energy, skill, and responsibility involved in the work, or (ii) Your work, although. significantly less than that done by unimpaired people, is clearly worth the amounts shown in paragraph (b)(2) of this section, according to pay scales in your community.
20 C.F.R. §§ 404.1574(b)(6), 416.974(b)(6).
This case is similar to Pickner v. Sullivan, 985 F.2d 401 (8th Cir.1993), in which the court affirmed a finding by an ALJ that a woman who worked as a part-time bookkeeper and apartment manager had engaged in substantial gainful activity even though her earnings fell below the earnings guidelines. After pointing out that "earnings below the guidelines are not inconsistent with substantial gainful activity as a matter of law," the court reasoned:
Appellant's work as a secretary/bookkeeper and as an apartment manager was `substantial' because it involved doing significant physical and mental activities. Appellant's low earnings were in part due to the fact that she was either self-employed or only worked part-time. However, work that is done on a part-time basis may be considered substantial. 20 C.F.R. § 404.1572(a). In addition, her work as a secretary/bookkeeper and an apartment manager was `gainful' because ... it is the kind of work usually done for pay or profit, even though her earnings were minimal. Work activity may be considered gainful whether or not a profit is realized.
Pickner, 985 F.2d at 403.
Similarly, here, plaintiff's work involved substantial mental and physical effort and is of the sort usually engaged in for profit. Plaintiff testified that the apartment complex he lives in and manages consists of a single, 17-unit building. (A.R.45-47.) For his $88 per month, he received a "[t]wo bedroom house," with a kitchen, front room, bathroom and hallway. (A.R.47.) As the apartment manager, plaintiff would:
[d]o a little bit of sweeping, you know; landscaping here and there and you know, checking the gates and all the stuff that I would have to do at night; sometimes walk around; a little bit of sweeping on the outside because there are a lot of little rocks.
(A.R.45.) He would also pick up the trash once a week and would go through the building up to four times a day to make sure everything was alright. (A.R.46.) He collected rent money for the owner, shared with his property supervisor the task of showing apartments to prospective tenants, and shared with the owner the job of deciding who could move in. (A.R.47, 66-67.)
That plaintiff may have received only $300 per month in reduced rent in exchange for his apartment management duties did not preclude the Commissioner from concluding that those duties constituted substantial gainful activity. In sum, I conclude that the ALJ did not err in deciding that plaintiff's activities as an apartment manager qualified as past relevant work for purposes of the step-four analysis.[4]
*1151 2. Ability To Perform Past Relevant Work
Plaintiff's second contention is that the ALJ failed properly to evaluate the demands of plaintiff's past relevant work and his ability to perform that work. (Pl's Mem. at 6.) That argument is without merit.
At step four, the ALJ is obliged to ascertain the demands of the claimant's former work and to compare those demands with present capacity. 20 C.F.R. § 404.1520(e); Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986). The ALJ fulfilled that obligation in this case. At the hearing, he thoroughly explored the tasks involved in each of plaintiff's former jobs. (A.R.45-50, 66-67.) The ALJ also fully considered the issue of plaintiff's functional capacity in light of the medical record and the testimony given at the hearing. (A.R.23-25.) Having determined that plaintiff retained the capacity for light work, except for exposure to heights or machinery, more than occasional climbing, and work requiring perfect vision, the ALJ proceeded to make an explicit finding that plaintiff's past work as an apartment manager did not require the performance of work-related activities precluded by his limitations. (A.R. 26, Finding No. 6.) The latter finding was substantiated by the testimony of a vocational expert, who affirmed that a person with the foregoing limitations could perform the duties of an apartment manager. (A.R.65-72.)[5] That conclusion is further validated by the fact that plaintiff had actually performed that job until a few months before the hearing.
Also to be borne in mind is that plaintiff bears the burden of proof at step four.[6] By his own testimony, plaintiff stopped working as an apartment manager in February 1994 because he was fired not because he was incapacitated. Nor did he adduce any evidence of a change in condition in the months preceding the September 1994 hearing; if anything, treatment notes from February through June 1994 indicate that plaintiff's subjective complaints decreased during this period.[7] (A.R.232-240.) The medical evidence does not, moreover, establish that plaintiff was incapable of performing his past work. Indeed, the only physician to address plaintiff's ability to work opined that he had no functional impairments as of May 1993. Finally, as discussed infra, the ALJ articulated sufficient reasons for rejecting plaintiff subjective complaints. In sum, the ALJ properly concluded that plaintiff retained the functional capacity to perform his past job as an apartment manager.
3. Subjective Complaints
Plaintiff further contends that the ALJ erred in failing to provide adequate reasons for his credibility assessment. The rule regarding the evaluation of subjective complaints was set forth by the Court of *1152 Appeals in Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir.1991) (en banc):
[O]nce the claimant produces medical evidence of an underlying impairment, an adjudicator may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain. (Citation omitted.) Further, although an adjudicator may find the claimant's allegations of severity to be not credible, the adjudicator must specifically make findings which support this conclusion.
Plaintiff, in his brief, does not specify what testimony the ALJ should have accepted, but merely makes the general statement that the ALJ "provides no specific, legitimate, or clear and convincing reasons for discrediting claimant's testimony other than a lack of objective evidence." (Pl's. Mem. at 8.)
On its face, this assertion is wrong. The ALJ's findings regarding claimant's testimony reads as follows:
The Administrative Law Judge rejects the testimony of the claimant as it is not supported by the credible medical evidence, thus it was not credible. First, he never stopped working because of the physical problems. He was fired from the Physical Therapy Center because of a violation of office policy against borrowing money from fellow employees. He was fired from the apartment manager job because of a difference of opinion with the owner, although, he continues to live at the apartment. The security guard job was lost due to a shift change dispute. He does not seek medical treatment and certainly he would want to see a physician for increased pain medication if the pain was as severe as he stated. Even as early as January 1992 ... he declined to wear the prescribed brace and was apparently looking for work. His own home treatments along with the use of prescribed medications are relieving his complaints. His treating physician indicated that the claimant had no limitations to which he should adhere. He is on Xanax, which adequately controls the nervousness.
(A.R.24.) Thus, it is clear that the ALJ did not discredit plaintiff's testimony solely on the basis of the lack of objective medical evidence.
Looking to the propriety of the ALJ's reasons, they are adequate and supported by the record. The ALJ's first reason is that plaintiff did not stop working because of his alleged impairments. (A.R.24.) Plaintiff testified at his hearing that he "got fired" from the property management job because he "got mad at the company guy that was there." (A.R.42.) He testified that he left his security guard job because the company let him go after he tried to change from the night to the day shift.[8] He testified that he left the restorative technician job because the company fired `him after he violated company policy on borrowing money. (A.R.50-51.) Finally, plaintiff testified he could not recall any specific incident on November 15, 1990 (A.R.51), which is the date he claims in his applications that his disability started. (A.R.76, 79.) The ALJ's finding that the plaintiff did not stop working because of his pain and disability is amply supported in the record.
Regarding the ALJ's second reason for rejecting plaintiff's testimony, his failure to seek medical treatment for his pain, his failure to wear "the prescribed brace" and the fact he "was apparently looking for work," treatment notes dated January 29, 1992 from Robert Cowan, M.D., of White Memorial Medical Group show that plaintiff "has stopped taking nonsteroidals due to upset stomach and he is no longer wearing his *1153 brace. He feels that he has been working looking for work and is very concerned about his ability to work given his neck pain an numbness in his hands, occasionally in his right leg." (A.R.221.) Treatment notes from Dr. Cheri Shapiro refer to plaintiff's involvement in an occupational therapy and rehabilitation program and failure to wear the "soft cervical collar" despite instructions to do so. (A.R.218, 220.) Failure to seek pain medication or medical treatment is a valid reason for discounting excess pain testimony.[9]
The last reason the ALJ gave, the effectiveness of plaintiff's home treatments and prescribed medications (A.R.24), also finds some support in the record despite plaintiff's testimony to the contrary. Dr. Shapiro found plaintiff "overall improved" in her treatment notes of September 30, 1993 (A.R. 217), and plaintiff himself testified that Xanax adequately controls his nervousness.[10]
Because the ALJ articulated legally sufficient reasons for his assessment of plaintiff's subjective complaints, plaintiff's attack on his credibility determination is unfounded.
Plaintiff also complains generally that the ALJ's questions to the VE minimized his problems and contained "inappropriate" assumptions. However, the only specific objection advanced in this regard is that the hypotheticals did not include the side-effects of plaintiff's medications.[11]
A careful reading of the transcript and the ALJ's decision reveals that the ALJ's hypotheticals included a range of assumptions about the adverse effects of plaintiff's medications. (A.R.24-26, 68, 70, 72.) The ALJ ultimately determined that side-effects did, in fact, restrict plaintiff's functional capacity (in that he needed to avoid heights and machinery).[12] The vocational expert testified that a person with such limitations could perform the duties of an apartment manager. (A.R.26, 68-69.) The expert also testified, in response to another hypothetical, that gastritis caused by "nerves and as a side effect of medication" that was controllable to no more than a "slight" level by other medication would not bar performance of the apartment manager's job. (A.R.72.)
The ALJ did not err in rejecting the existence of more serious side-effects. First, most, if not all, of the notations in the medical evaluations concerning side-effects are based on plaintiff's self-reports, without clinical verification. (See, e.g., A.R. 53 (plaintiff says medication irritates his stomach), 54 (Xanax "contributes too"), 60 (doctors recommend medications which he cannot take "because of the stomach problem"), 144 (Dr. Cowan: plaintiff stopped taking nonsteroidals *1154 "due to upset stomach"), 219 (Dr. Shapiro: medications discontinued because plaintiff "claims" drowsiness and gastritis[13]).) The ALJ was not obliged to adopt physicians' reports of side-effects that merely reflected plaintiff's subjective complaints. See Fair v. Bowen, 885 F.2d 597, 605 (9th Cir.1989); Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433-34 (9th Cir.1988) (per curiam). In any event, none of the reports indicate that the claimed side-effects, even if credible, were uncontrollable or completely disabling; at least one examining physician, Dr. Greenfield, an orthopedic specialist, noted no ill-effects from medications and detected no functional impairments. Most important, at the risk of repetition, is the undisputed fact that plaintiff remained capable of performing, and did perform, the duties of an apartment manager through February 1994, despite whatever adverse effects he may have experienced from his medications.
I conclude that the ALJ's hypothetical questions were proper and that his assessment of the effects of plaintiff's medications was supported by substantial evidence. See Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th Cir.1989) (ALJ's hypothetical questions need not include all possible restrictions; they are sufficient if the assumed restrictions are supported by substantial evidence); Martinez v. Heckler, 807 F.2d 771, 713-74 (9th Cir.1986) (same).
CONCLUSION
For the reasons discussed above, I conclude that the ALJ did not commit legal error, and that his determinations are supported by substantial evidence. The Commissioner's motion for summary judgment is therefore GRANTED, and the complaint is dismissed with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
NOTES
[1] The regulations prescribe a five-step, sequential procedure. 20 C.F.R. §§ 404.1520, 416.920. Briefly summarized,
[t]he following steps are addressed in order. (1) Is the claimant presently unemployed? (2) Is the claimant's impairment `severe'? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops the inquiry and leads to a determination that the claimant is not disabled.
Garfield v. Schweiker, 732 F.2d 605, 607 n. 2 (7th Cir.1984) see also Baxter v. Sullivan, 923 F.2d 1391, 1395 (9th Cir.1991).
[2] In addition, the VE testified that if plaintiff had no exertional limitations, as per Dr. Greenfield's report, he would be able to perform all of his past relevant jobs. (A.R.68.)
[3] The ALJ concluded that plaintiff was capable of resuming "his past relevant work as an apartment manager with a residual functional capacity for the full range of light work. Although he received a rental rebate as part of his salary, an apartment was an in-kind contribution and the value of such must be considered in determining that this work was in fact, substantial gainful activity that meet[s] the regulation requirements." (A.R.25) (emphasis added).
[4] The ALJ's finding that plaintiff had not engaged in substantial gainful activity (SGA) since 1991. (A.R.25) conflicts with his characterization of the apartment manager position as SGA at step four. In view of my conclusion that the ALJ's analysis of SGA at step four was proper, it is evident that the ALJ could have terminated the sequential evaluation process at step one. In other words, because plaintiff worked as an apartment manager from 1990 until February 1994 (seven months prior to the hearing and more than three years after his alleged onset), he failed to meet the most basic requirement for disability benefits: the inability to work for twelve consecutive months. See 20 C.F.R. §§ 404.1509, 416.909 (one-year duration requirement), 404.1520(a), 416.920(a) (to be disabled, one must not be working and impairment must meet the duration requirement).
[5] The ALJ's use of the services of a vocational expert testimony was appropriate in this context. See Acquiescence Ruling AR 90-3(4) ("Use of Vocational Expert or Other Vocational Specialist in Determining Whether a Claimant Can Perform Past Relevant Work Tiles II and XVI of the Social Security Act"); SSR 82-62 (PPS-80: "Titles II And XVI: A Disability Claimant's Capacity To Do Past Relevant Work, In General"); SSR 82-61 (PPS-72: "Titles II And XVI: Past Relevant Work The Particular Job Or The Occupation As Generally Performed"); Winfrey v. Chater, 92 F.3d 1017, 1024 (10th Cir.1996).
[6] At step 4 of the sequential evaluation process, the ALJ will find plaintiff not disabled unless plaintiff proves he is unable to perform his "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). See also Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir.1990) ("The burden of establishing disability is initially on the claimant, who must prove that she is unable to return to her former type of work"); Gray v. Heckler, 760 F.2d 369, 372 (1st Cir.1985) ("[I]t is the claimant, not the Secretary (or A.L.J.) who has the burden of proving inability to perform her former type of work"); Gayton v. Secretary of Health & Human Services, 691 F. Supp. 22, 24 (N.D.Ohio 1988) ("[I]t is black letter law that the claimant has the burden of showing that she cannot perform her past relevant work").
[7] Even if there were evidence of disability after February 1994, the twelve-month durational requirement would not have been met. See n. 4, supra.
[8] The testimony reads:
Q. Why did you leave or what were the circumstances of your leaving that [security guard] job?
A. They were going to give me another job because I was working from 11:00 to 7:00. I wanted to be with my wife and daughter. I was going to go into daytime. And I came back to the company and they said they weren't going to give me a job and they were going to deduct money. So from that time on I went to get the job at the daytime. They called the supervisor upstairs and they said that they let me go or something. I don't know for what reason. I don't know. I have no idea but they said they fired me. And then they said I did a voluntary quit. I don't believe that.
(A.R.48-49.)
[9] See Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir.1995) (per curiam) (affirming ALJ's rejection of excess pain complaints where, among other things, plaintiff had not required prescription pain medication); Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1464 (9th Cir. 1995) (adverse credibility determination supported by absence of treatment or medication and plaintiff's report of good result from surgery). Plaintiff did testify that he is on General Relief and that Medical does not cover all of his medications. (A.R.43, 59-60.) However, this does not explain his failure to wear the cervical collar or his failure to seek more aggressive treatment than the medications already prescribed to him. Moreover, while there is some evidence that side-effects have limited plaintiff's use of medications (A.R.218, 221), there is no evidence that side-effects, though present, preclude plaintiff from following his present medication regimen. (See A.R. 53 hernia and gall bladder still give him problems "because of the medication I'm taking, it irritates the stomach").)
[10] The plaintiff's testimony on this point reads:
Q. I note you're taking Xanax. Why are you taking Xanax?
A. Well, I have a lot of anxiety, and a lot of stress and the doctor recommended it for me as to calm myself down because I'm very hyper. And the medication did the job somewhat to take the hypernessI guess that's what he called itbut also anxiety and stress related to all the problems that I'm facing right now.
(A.R. 40-41 (emphasis added).)
[11] Plaintiff testified that his medications had only limited effect in controlling his symptoms; that they caused stomach problems; that he was told at one point not to take any medications and that he was given cortisone shots in the neck and back but that "even that did not work." (A.R.60, 52-56.) Plaintiff also notes that his medical records confirm that he complained of side effects (drowsiness, dizziness, and gastritis) to his doctors (A.R.145-146, 218-219, 236.)
[12] The logical inference from these limitations is that the ALJ credited, at least in part, plaintiff's complaints of suffering from dizziness and drowsiness due to medications.
[13] It is clear that plaintiff had gastritis. (A.R. 192-202 (pathology reports).) However, plaintiff contends that his medications caused or aggravated this condition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611682/ | 11 So.3d 323 (2008)
Ex parte Rick Allen BELISLE.
(In re Rick Allen Belisle v. State of Alabama).
1061071.
Supreme Court of Alabama.
October 3, 2008.
Rehearing Denied December 31, 2008.
*324 Randall S. Susskind and Charlotte R. Morrison, Equal Justice Initiative of Alabama, Montgomery, for petitioner.
Troy King, atty. gen., and Thomas R. Govan, Jr., and J. Clayton Crenshaw, asst. attys. gen., for respondent.
SEE, Justice.
Rick Allen Belisle was convicted of the capital offenses of murder committed during the course of a robbery, see § 13A-5-40(a)(2), *325 Ala.Code 1975, and murder committed during the course of a burglary, see § 13A-5-40(a)(4), Ala.Code 1975, and was sentenced to death. The Court of Criminal Appeals affirmed his conviction and sentence. Belisle v. State, 11 So.3d 256 (Ala.Crim.App.2007). Belisle subsequently petitioned this Court for the writ of certiorari, and we granted certiorari review to address whether the decision of the Court of Criminal Appeals conflicts with Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), Ex parte Johnson, 507 So.2d 1351 (Ala.1986), and Cochran v. Ward, 935 So.2d 1169 (Ala.2006). We also granted the writ to address whether Alabama's method of execution is cruel and unusual. After reviewing the record and the briefs of both parties, we determine that the decision of the Court of Criminal Appeals does not conflict with prior caselaw, and we conclude that Alabama's lethal-injection protocols do not violate the Eighth Amendment to the United States Constitution.
Facts and Procedural History
On May 19, 1999, Joyce Moore, a cashier at the T & J Kwik-Mart convenience store in Boaz, was bludgeoned to death with a six-pound can of peas and with a metal pipe.[1] State investigators arrested Belisle and Annette Belisle, Belisle's wife, and charged Annette with capital murder and held Belisle on outstanding traffic warrants. Annette and Belisle were both eventually indicted on two counts of capital murder.[2]
According to Belisle, investigators interrogated Annette on separate occasions over three days and obtained five separate inconsistent statements. Also according to Belisle, the State negotiated a plea agreement with Annette because those statements were illegally obtained and thus inadmissible at her trial. The State subsequently offered Annette a plea agreement in which she would serve a 15-year sentence, without the possibility of parole, in exchange for her testimony at Belisle's capital-murder trial. The agreement was memorialized (hereinafter "the proffer") and provides:
"Annette Belisle is expected to cooperate fully in all continuing facets of the investigation and prosecution of Rick Belisle for the Capital Murder of Joyce Moore on or about May 19, 1999 at [the T & J Kwik-Mart convenience store] in Boaz, Alabama. [Mrs.] Belisle will be required to testify fully and truthfully at the trial of Rick Belisle. [Mrs.] Belisle has given several statements to law enforcement officials regarding this case. [Mrs.] Belisle agrees that her final statement given on June 14, 1999 to Investigator Bill Strickland was truthful and that the truth is as follows:
"Prior to May 19, 1999 Annette and Rick Belisle were virtually destitute, having no money to get their van out of impound and to finance their planned trip to Missouri.
"In order to remedy this situation, Rick Belisle proposed to `rob' (technically, burglarize) the [T & J Kwik-Mart convenience store] where Annette Belisle had been previously employed.
"Prior to the murder, Rick Belisle had indicated his intentions to burglarize *326 [the T & J Kwik-Mart convenience store] to Annette Belisle.
"Rick Belisle had specifically communicated that he intended to burglarize the store on the evening of May 19, 1999.
"Rick Belisle had either asked for, or obtained from Annette Belisle, the combination to the store's ([T & J Kwik-Mart convenience store]) safe and the number to the store's alarm system.
"Annette Belisle was privy to this information (the combination to the store's safe and the number to the store's alarm system) by virtue of her former employment with this entity.
"Annette Belisle provided this information to Rick Belisle as per his request by writing it down for him.
"At Rick Belisle's instruction, Annette Belisle distracted Joyce Moore on May 19, 1999, while Rick Belisle concealed himself in the back of the store, in furtherance of their plan to burglarize the store.
"In accordance with the plan, Annette Belisle left the store at approximately 10:50 p.m. on May 19, 1999.
"Annette Belisle arrived home by 11:05 p.m.
"Rick Belisle returned to the residence they shared at approximately 12:30 a.m.
"Testify as to Rick's appearance and the amount of money in his possession upon his return from the murder. (Approximately $898.00 and some change.)
"Rick Belisle's initial statement upon arriving home after the murder `I think I killed her, Annette.' (in reference to victim, Joyce Moore, cashier/clerk of the [T & J Kwik-Mart convenience store])
"Annette Belisle witnessed Rick Belisle cut up coin wrappers that contained change stolen from T & J's and flushed them down the toilet in their residence.
"Rick Belisle confessed to hitting Joyce Moore eight times in [the] head with a can of food and also to repeatedly beating her about the head with a table leg or metal pole.
"Rick Belisle described the victim choking on her own blood as he beat her.
"Rick Belisle admitted to wearing latex gloves, during the murder, that he claimed to have obtained from inside the store to comprise [sic] his fingerprints.
"Annette Belisle counted the proceeds from the robbery and counted approximately $898.00 in paper currency and approximately $70.00 in change and Rick bought concert tickets with $40.00 in quarters.
"Annette Belisle was asked by Rick Belisle to see if he had blood in his hair while he was taking a bath subsequent to the murder.
"Following the murderthe couple fled to Missouri where they stayed with a friend of Annette Belisle's.
"Annette Belisle agrees to testify where the proceeds of the robbery were spent.
"Annette Belisle reaffirms the truth of the above portions of her earlier statement. Should Annette Belisle lie, fail to cooperate, or fail to fulfill fully any of the conditions of her plea agreement in any way, the agreement will be void, as will Belisle's guilty plea, and the charge of capital murder, set forth in the original indictment against her, will be reinstated and all of her statements will be used against her in court (subject to constitutional challenges). It shall be *327 unacceptable and a violation of the terms of this agreement for Annette Belisle to `forget' or `fail to recall' testimony previously provided and/or mentioned specifically herein."
(Emphasis in original.) Annette, however, successfully withdrew this plea, and the State offered her a new plea agreement, which provided that Annette would receive a 20-year sentence and that the State would remain silent regarding the possibility of parole.
The case against Belisle proceeded. Before his trial, Belisle moved the trial court "for an order directing the State to reveal the identity of all confidential informants, to reveal any promises or understand[ings] (explicit or implicit) with any witness or informant, and to reveal whether any threats or inducements of any nature whatsoever have been made regarding any witness or informant." The State, however, did not provide the defense a copy of the proffer from Annette's original plea agreement. It was not until the eighth day of trial, the third day of the defense's cross-examination of Annette, that, through Annette's testimony, Belisle discovered the existence of the proffer.
Belisle immediately moved the trial court to strike Annette's testimony and for a mistrial based on the fact that the proffer had not been disclosed. The trial court denied both motions, and, in doing so, stated:
"The Court finds, number one, that there was no prosecutorial misconduct or intent on the part of the prosecutors to hide [the proffer] from the defense. Number two, the Court denies the mistrial. And, number three, the Court finds that this document, on its face, is beneficial to the defendant and could be used to [his] benefit in this trial. So it really wouldn'tI mean, to order a mistrial, I don't thinkI don't think you are prejudiced any by the document being produced at thisat this hour."
Although the trial court did not grant Belisle's motions, the proffer was admitted into evidence, and Belisle cross-examined Annette using the document.
Belisle also made a pretrial motion in which he asked the trial court to exclude any mention of alleged prior bad acts, specifically, any allegations of spousal abuse. The trial court decided, and the State agreed, that the State would not present evidence relating to any prior criminal history or bad acts, or any instances of spousal abuse, absent notice to and a decision from the trial court. However, one of the State's exhibits included a fingerprint card that bore Belisle's name and fingerprints. It stated that the charge for which the fingerprint card had been issued was "`Harassment (DV)'" and that the "`date of offense [was] "01-02-99."'" Belisle, 11 So.3d at 289. Belisle did not object to the introduction of the fingerprint card.
Belisle argued at trial that the State could not prove its case beyond a reasonable doubt "because its main witness, Annette Belisle, was testifying in order to gain her freedom." Petition at 5. The defense also cast blame for the murder on Annette and presented the testimony of three inmates who had been incarcerated with Annette: Kitty Hyatt, Valerie Wheeler, and Juanita Pitts. Kitty Hyatt testified that Annette said she was present at the murder but that she did not strike the victim initially. Valerie Wheeler testified that she overheard Annette say that Annette had hit the victim with a can of peas and that the man with her had hit the victim with an iron bar. Juanita Pitts testified that Annette said that she struck the initial blow with a can and then asked Belisle to help.
*328 The jury convicted Belisle on both counts of capital murder. Belisle waived his right to a sentencing hearing before the jury, and he also waived the presentation of mitigating evidence. The trial judge sentenced Belisle to death. Belisle appealed his conviction, arguing, among other things, that he was entitled to a new trial because, he says, the State withheld the proffer and because, he says, Belisle's fingerprint card had been introduced into evidence. The Court of Criminal Appeals affirmed his conviction and sentence. Belisle v. State, supra. Belisle subsequently petitioned this Court for the writ of certiorari. We granted certiorari review to address whether the Court of Criminal Appeals' decision conflicts with Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), Cochran v. Ward, 935 So.2d 1169 (Ala.2006), and Ex parte Johnson, 507 So.2d 1351 (Ala.1986). We also granted the writ to address whether Alabama's method of execution by lethal injection is cruel and unusual.
Discussion
A. Standard of Review
"`"This Court reviews pure questions of law in criminal cases de novo."'" Ex parte Jett, 5 So.3d 640, 642 (Ala.2007) (quoting Ex parte Morrow, 915 So.2d 539, 541 (Ala.2004), quoting in turn Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003)).
B. Does the Court of Criminal Appeals' decision conflict with Giglio v. United States, 405 U.S. 150 (1972)?
Belisle argues that in not disclosing the proffer "the State did not disclose the most significant piece of impeachment evidence with respect to its star witness, Annette Belisle." Belisle's brief at 6. Belisle argues that the State's failure to disclose the proffer is grounds for reversal; thus, Belisle argues, the Court of Criminal Appeals' refusal to reverse the conviction conflicts with Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The State counters that the proffer was irrelevant because it was associated with a plea agreement that was rendered void and that Belisle was not prejudiced by his late discovery of the proffer.
The Court of Criminal Appeals held that the State's failure to disclose the proffer did not amount of reversible error, stating:
"Here, the document that was not disclosed to the defense was based on the first plea agreement that the State had with Annette, which was rendered void when she withdrew that plea. Also, both of Annette's plea agreements were based on her testifying truthfully at her husband's trial. There is no indication, as Belisle argues, that the prosecutor had compiled a transcript for Annette to follow at trial. Nor is there any indication that the defense was not given a copy of Annette's statement to police. Annette was thoroughly cross-examined about her plea agreement and repeatedly said that the State had told her to testify truthfully. Under the facts of this case, there is no indication that the late disclosure of the document affected the outcome of the trial."
Belisle, 11 So.3d at 296.
Belisle argues that this holding of the Court of Criminal Appeals conflicts with Giglio v. United States, in which the Supreme Court of the United States held:
"... Brady v. Maryland, 373 U.S. [83], at 87[(1963)], held that suppression of material evidence justifies a new trial `irrespective of the good faith or bad faith of the prosecution.' See American Bar Association, Project on Standards for Criminal Justice, Prosecution Function and the Defense Function § 3.11(a). When the `reliability of a given witness may well be determinative of guilt or *329 innocence,' nondisclosure of evidence affecting credibility falls within this general rule. Napue [v. Illinois, 360 U.S. 264, 269 (1959)]."
405 U.S. at 153-54, 92 S.Ct. 763. However, the Supreme Court also noted in Giglio:
"We do not, however, automatically require a new trial whenever `a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict ....' United States v. Keogh, 391 F.2d 138, 148 (C.A.2 1968). A finding of materiality of the evidence is required under Brady, supra, at 87. A new trial is required if `the false testimony could ... in any reasonable likelihood have affected the judgment of the jury....' Napue, supra, at 271."
Giglio, 405 U.S. at 154, 92 S.Ct. 763. "Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule." United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
Thus, under Giglio, the progeny of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),[3] reversal is required when the State (1) suppresses (2) evidence favorable to a defendant and (3) that evidence is material.[4] Therefore, in order to determine whether the Court of Criminal Appeals' decision conflicts with Giglio, we address each element.
1. Was the evidence suppressed?
Belisle argues that regardless of the status of the plea agreement, the proffer was impeachment material to which the defense was entitled. The State argues that it was not required to disclose the proffer because Annette had withdrawn from the plea agreement for which the proffer was created. We agree that the proffer was discoverable evidence that was suppressed.
First, one of the State's attorneys stated at trial that he did not "dispute that [the proffer] should have been turned over to the defense. Absolutely."[5] Second, the State signed the proffer on April 29, 2002, at which time the trial court had already entered an order entitling Belisle to discover "[a]ll records, notes, memoranda, and documents in the possession of the state relating to the grant of immunity, promises, consideration, threats or any other inducements to any individual to obtain information or testimony about this crime by the State and any of its law enforcement or other agencies."[6] Under *330 both the terms of the order[7] and Rule 16.3, Ala. R.Crim. P.,[8] the State had a continuing duty to disclose the requested discovery as it became available. Therefore, the State's argument that it was not required to disclose the proffer because the plea agreement it accompanied was later rendered void is incorrect. At the time the plea agreement was made and the proffer was signed, the State was obligated to disclose the proffer because it "relat[ed] to the ... promises, consideration, [and] threats ... to any individual to obtain information or testimony." Therefore, we conclude that the proffer was subject to the discovery order and was suppressed.
2. Is the suppressed evidence favorable to Belisle?
Belisle contends that the proffer is "a `script' on which the State's key witness relied at trial [that] is unambiguously favorable to the defense." Petition at 9. The State argues however, that the proffer was irrelevant and not favorable to the defense because "the evidence contained in a null and void profferdetailing an agreement that was no longer in existence"was not relevant to Annette's credibility and, thus, not favorable to the defense.
"[I]mpeachment evidence is favorable evidence." Jefferson v. State, 645 So.2d 313, 316 (Ala.Crim.App.1994). See also United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 ("Impeachment evidence ..., as well as exculpatory evidence, falls within the Brady rule."). "We have further held that exculpatory evidence, regardless of its trustworthiness or admissibility, should be disclosed...." Ex parte Brown, 548 So.2d 993, 994 (Ala.1989). The proffer begins by stating that "the truth is as follows," and then outlines expected testimony, emphasizes specific passages, threatens to reinstate capital charges if Annette does not cooperate fully, and lastly notes that "[i]t shall be unacceptable and a violation of the terms of this agreement for Annette Belisle to `forget' or `fail to recall' testimony previously provided and/or mentioned specifically herein." Even if the original plea agreement and accompanying proffer were no longer in effect, the proffer certainly casts doubt on Annette's testimony and the State's handling of the case. Therefore, regardless of its admissibility, the proffer is impeachment material favorable to Belisle.
3. Is the suppressed evidence material?
"Last, but perhaps most importantly, we must determine whether the evidence was `material.'" Jefferson, 645 So.2d at 316. Belisle argues that "impeaching Annette Belisle ... was critical to the defense." Belisle's brief at 9. The State argues that even if the proffer should have been disclosed, the Court of Criminal Appeals was correct that "`[u]nder the facts of this case, there is no indication that the late disclosure of the documents affected the outcome of the trial.'" State's brief at 19-20 (quoting Belisle, 11 So.3d at 296).
"The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, *331 the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. at 682, 105 S.Ct. 3375.[9] The same rule applies when the State discloses Brady material in an untimely manner. See Coral v. State, 628 So.2d 954, 979 (Ala.Crim.App.1992) ("Tardy disclosure of Brady material is generally not reversible error unless the defendant can show that he was denied a fair trial." (citing United States v. Gordon, 844 F.2d 1397 (9th Cir. 1988); United States v. Shelton, 588 F.2d 1242 (9th Cir.1978); Ex parte Raines, 429 So.2d 1111 (Ala.1982); and McClain v. State, 473 So.2d 612 (Ala.Crim.App.1985))).
First, the issue of materiality distinguishes Belisle's case from Giglio. In this case, the proffer was discovered and used by the Belisle during trial, and it contained no undisclosed promises or threats. In Giglio, however, "defense counsel discovered new evidence [during the pendency of the defendant's appeal] indicating that the Government had failed to disclose an alleged promise made to its key witness [Taliento] that he would not be prosecuted if he testified for the Government." Giglio, 405 U.S. at 150-51, 92 S.Ct. 763. Furthermore, the facts of Giglio also indicate that Taliento testified at trial that he had received no promises for his testimony, and that "[i]n summation, the Government attorney stated, `(Taliento) received no promises that he would not be indicted.'" Giglio, 405 U.S. at 152, 92 S.Ct. 763. Because the facts of Giglio are distinguishable from those in this case, the Court of Criminal Appeals' decision in this case does not conflict with Giglio.
Even if the facts of Giglio were not distinguishable, however, Belisle still has failed to demonstrate that had the proffer been disclosed sooner, the outcome of his trial would have been different. The gravamen of Belisle's arguments is that the proffer "destroys [Annette's] credibility... and casts suspicion on the State's investigation and handling of the case," Belisle's brief at 11, and that the State's failure to disclose the proffer "prevented [Belisle] from formulating a key part of his defense." Belisle's brief at 12.
Belisle's second argument has been previously addressed by this Court.
"Appellant's argument that the information would have enabled more effective preparation for trial was rejected in United States v. Agurs, supra, 427 U.S. [97,] at 112 n. 20, 96 S.Ct. at 2401 n. 20 [(1976)], on the grounds that an argument could always be made that knowledge of the prosecutor's case, both incriminating and exculpatory, would help defense counsel in preparation of the case for the defense. Therefore, the proper focus is upon the materiality in the nondisclosure or delayed disclosure of exculpatory information in determining the denial vel non of defendant's rights of due process and fair trial ...."
Ex parte Raines, 429 So.2d 1111, 1113-14 (Ala.1982).[10] Thus, Belisle is not entitled *332 to a new trial simply because having the proffer would have enabled him to more effectively prepare for trial.
Belisle also argues that the proffer was material because "Belisle's theory of defense was that the State did not prove beyond a reasonable doubt the elements of the crime because its main witness, Annette Belisle, was lying to gain her freedom. Impeaching Annette Belisle therefore was critical to the defense of this case." Belisle's brief at 9. He also argues that the "revelation of this agreement committing her to a specific version of facts would have undermined the State's attempt to shore up Annette's credibility and would have `put the whole case in such a different light as to undermine the confidence in the verdict.'" Belisle's brief at 19 (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). We disagree.
Belisle did not initially have access to the proffer; thus, he could not at that time attack Annette's alleged "scripted" testimony. The record, however, indicates that Belisle had many other components of that proffer by which he could similarly impeach Annette: Belisle was aware of and cross-examined Annette on the fact that she was testifying as part of a plea agreement with the State; he was aware of the original plea agreement with which the proffer was associated; and he used Annette's various previous statements given to State detectives to impeach her. Additionally, once the defense was made aware of the proffer, it was admitted into evidence, and defense counsel had the opportunity to thoroughly cross-examine Annette regarding it.[11]
Moreover, the defense also presented other impeachment testimony from three inmates who had been incarcerated with Annette: Kitty Hyatt, Valerie Wheeler, and Juanita Pitts. Kitty Hyatt testified that Annette said she was present at the murder but that she had not struck the initial blow. Valerie Wheeler testified that she overheard Annette say that Annette had hit the victim with a can of peas and that the man with her had hit the victim with an iron bar. Juanita Pitts testified that Annette said that she struck the initial blow with a can and then asked Belisle to help. Thus, although Belisle did not *333 originally have the proffer in his possession, Belisle was certainly able to establish that Annette had incentive to lie (and had lied to investigators), to demonstrate that Annette was not a credible witness, and, once the proffer was disclosed, to cast suspicion on the State's investigation and handling of the case.
Although the proffer both was suppressed and was favorable to Belisle, so as to meet those two elements, we cannot conclude that it was material. Therefore, the decision of the Court of Criminal Appeals does not conflict with Giglio and Belisle is not entitled to a reversal.
C. Does the Court of Criminal Appeals' decision conflict with Cochran v. Ward, 935 So.2d 1169 (Ala.2006), and Ex parte Johnson, 777 So.2d 1351 (Ala. 1986)?
Before trial, Belisle moved the trial court to exclude any mention of alleged prior bad acts, specifically, any allegations of spousal abuse. The trial court decided, and the State agreed, that the State would not present evidence relating to any prior criminal history or bad acts or any instances of spousal abuse, absent notice to and a decision from the trial court. However, one of the State's exhibits included a fingerprint card that bore Belisle's name and fingerprints and that stated that the charge for which he was being fingerprinted was "`Harassment (DV)'" and that the "`date of offense [was] "01-02-99."'" Belisle, 11 So.3d at 289. Belisle did not object to the admission of the exhibit; thus, the Court of Criminal Appeals reviewed the admission of the fingerprint card for plain error. That court held that "[b]ased on the unique facts presented in this case, we cannot say that the admittance of Belisle's fingerprint card was plain error." Belisle, 11 So.3d at 294. The Court of Criminal Appeals noted that "[t]here is no indication that the jury was made aware of the contents of the fingerprint card," Belisle, 11 So.3d at 315, because the card was 1 of 115 exhibits and no reference was made to the card when it was admitted into evidence.
Belisle argues that the Court of Criminal Appeals' conclusion conflicts with Ex parte Johnson, 507 So.2d 1351 (Ala.1986), in which this Court held that it was plain error to admit into evidence a fingerprint card containing a list of dates and prior arrests that had no relevance to the charged offense except to show the bad character of the accused. Belisle also argues that the Court of Criminal Appeals' conclusion that "[t]here is no indication that the jury was made aware of the contents of the fingerprint card," Belisle, 11 So.3d at 315, conflicts with Cochran v. Ward, 935 So.2d 1169, 1176 (Ala.2006), which states that an appellate court "presume[s] that the jury follows the trial court's instructions unless there is evidence to the contrary."
1. Cochran v. Ward
First, it does not appear that the decision of the Court of Criminal Appeals conflicts with Cochran. Although the Court of Criminal Appeals in Belisle concluded that "[t]here is no indication that the jury was made aware of the contents of the fingerprint card," 11 So.3d at 291, it does not appear that the Court of Criminal Appeals concluded that the jury did not examine or consider the fingerprint card. Instead, it appears that the Court of Criminal Appeals was merely distinguishing this case from Ex parte Johnson and Brown v. State, 369 So.2d 881 (Ala.Crim. App.1979), in which police officers testified regarding fingerprint cards being admitted into evidence and, thus, focused the jury's attention on those fingerprint cards. See Belisle, 11 So.3d 291 ("`The circumstances of this case are clearly not as compelling as those of Johnson and Brown.'" (quoting *334 Thomas v. State, 824 So.2d 1, 18 (Ala. Crim.App.1999))); Ex parte Johnson, 507 So.2d at 1354 ("On direct examination, Officer Brand was asked whether the name of the person whose print was taken was on both sides of the [fingerprint] card and whether the person was asked to sign the card."); and Brown, 369 So.2d at 883 ("Officer McDonald stated that the appellant had been admitted to jail and fingerprinted `about a year or two ago' ...."). Therefore, it does not appear that the decision of the Court of Criminal Appeals conflicts with Cochran, and Belisle is not entitled to a reversal of his conviction or sentence on this issue.
2. Ex parte Johnson
Belisle argues that the decision of the Court of Criminal Appeals conflicts with Ex parte Johnson, 507 So.2d 1351 (Ala. 1986).
"This Court has held that the exclusionary rule prevents the State from using evidence of a defendant's prior bad acts to prove the defendant's bad character and, thereby, protects the defendant's right to a fair trial." Ex parte Drinkard, 777 So.2d 295, 302 (Ala.2000). Thus, under Alabama law, the admission of the fingerprint card, which contained information about a prior arrest, was error. However, because Belisle did not object to the admission of the card, the error will constitute reversible error only if "`such error has or probably has adversely affected the substantial right of the [defendant].'" Ex parte Johnson, 507 So.2d at 1356.
Before trial, Belisle moved the trial court to exclude any mention of alleged prior bad acts, specifically, any allegations of spousal abuse. The trial court decided, and the State agreed, that the State would not present evidence relating to any prior criminal history or bad acts or any instances of spousal abuse, absent notice to and a decision from the trial court. However, State's exhibit 82 included "several ... documentsa time card, a two-page letter to the Alabama Public Safety Department, a fingerprint-examination request form, and a copy of a fingerprint card for Annette, and a copy of a fingerprint card that bears the name `Rick Allen Belisle.'" Belisle, 11 So.3d at 289. The exhibit was admitted with some testimony regarding its contents,[12] without objection from Belisle, and, apparently, without specific approval from the trial court. Belisle, 11 So.3d at 289. Because there was no objection to the admission of this exhibit, we are limited to reviewing this issue for plain error. See Rule 45A, Ala.R.App.P.
The front of Belisle's fingerprint card includes the date the fingerprints were taken, Belisle's fingerprints, his signature, his vital statistics, and other personal information. It also contains the "Signature of Official Taking Fingerprints," a box titled "CHARGE" in which "Harassment (DV)" is written, a box titled "DATE ARRESTED OR RECEIVED" in which "01-02-99" is written, and a box titled "YOUR NO. OCA" in which 0199003 is written. It *335 also contains boxes titled "FINAL DISPOSITION," "ALIASES," "FBI NO.," and "SID NO.," but these were left blank. The reverse of the fingerprint card included Belisle's address, as well as "01-02-99" written in a box entitled "DATE OF OFFENSE."
The Court of Criminal Appeals, addressing the admission of the fingerprint card under the plain-error standard of review, concluded:
"Based on the unique facts presented in this case, we cannot say that the admittance of Belisle's fingerprint card was plain error. Even if the jurors examined the exhibit, `[i]t is inconceivable that a jury could have been influenced, under the circumstances here, to convict [the appellant] of crimes of the magnitude charged here because of an oblique reference to a prior criminal record.'"
Belisle, 11 So.3d at 294. Belisle argues that this holding by the Court of Criminal Appeals conflicts with Ex parte Johnson.
In Ex parte Johnson this Court addressed whether the admission of Johnson's fingerprint card was plain error and required a reversal of Johnson's conviction. 507 So.2d at 1352. In that case, the front of Johnson's fingerprint card contained Johnson's name, an alias, "a series of police numbers and an FBI number, the fingerprints themselves, and the signature of the taker of the impressions and the date of the card." 507 So.2d at 1352. The reverse of the fingerprint card included Johnson's signature, the offense charged at the time the fingerprints were taken, and a list of dates of arrest, which
"show[ed] an arrest for burglary in 1977 followed by a release, an arrest for burglary and grand larceny in 1977 followed by a release, an arrest in 1978 for grand larceny from a person followed by a release, and the present charge of murder in 1978 followed by a delivery to the sheriff's office. The card also show[ed] the original arrest in 1973 for robbery followed by a delivery to the sheriff's office."
507 So.2d at 1352-53.
At trial, the State admitted Johnson's fingerprint card into evidence without objection, and a police officer testified regarding the exhibit. See Ex parte Johnson, 507 So.2d at 1354. It appears that the front of Johnson's fingerprint card was admitted into evidence, but it is unclear whether the reverse of the fingerprint card was admitted as well. 507 So.2d at 1354 ("`It is not clear whether a photocopy of only the front of [State's exhibit] `EE' was received into evidence or whether a copy of both front and back were received into evidence.'" (quoting Johnson v. State, 507 So.2d 1337, 1342 (Ala.Crim.App.1985))).
Johnson was subsequently convicted of capital murder and was sentenced to death. The Court of Criminal Appeals affirmed Johnson's conviction and sentence. Johnson v. State, 507 So.2d 1337 (Ala.Crim.App.1985). The Court of Criminal Appeals concluded that Johnson had waived his right to appeal the admission of the fingerprint card because he was aware of the contents of the card but did not object when it was admitted into evidence. The Court of Criminal Appeals also concluded that "this is a case where evidence of guilt is so overwhelming that evidence of previous arrests was not significant, and its admission was harmless error in light of the strong evidence identifying Johnson as the perpetrator." Johnson, 507 So.2d at 1344.
This Court granted certiorari review in Johnson. We first noted that
"[i]t is apparent that the Court of Criminal Appeals concluded that a substantial right of the defendant had not been, or probably had not been, adversely *336 affected by the admission of state's exhibit `EE.' As we read the opinion, this conclusion is based upon its determination that evidence of the defendant's guilt was `so overwhelming that evidence of previous arrests was not significant, and its admission was harmless error in light of the strong evidence identifying [the defendant] as the perpetrator.' However, the proper inquiry here is not whether evidence of the defendant's guilt is overwhelming but, instead, whether a substantial right of the defendant has or probably has been adversely affected."
507 So.2d at 1356. We then concluded:
"In the present case, the copy showing the front of exhibit `EE' contained information which clearly revealed the defendant's past contacts with law enforcement agencies. From this the jury could have readily inferred, at a minimum, that he had been arrested in the past. In our view, such an inference would have had an almost irreversible impact upon the minds of the jurors."
507 So.2d at 1357.
Belisle contends that Ex parte Johnson is controlling, and he argues that the fingerprint card "leaves no room for question that [Belisle] had recently been charged with [an] offense. The reference to this prior charge was more than likely to have [a] tremendous impact on the jury." Belisle's brief at 25. The State counters, arguing that "a reversal is not required in this case because the admission of [the] fingerprint card in this case is distinguishable from the admission of the prejudi[cial] information [found on the fingerprint card] in Ex parte Johnson." State's brief at 35.
The State, like the Court of Criminal Appeals below, argues that this case is distinguishable from Ex parte Johnson, and analogous to Thomas v. State, 824 So.2d 1 (1999), rev'd on other grounds, Ex parte Carter, 889 So.2d 528 (Ala.2004).[13] In Thomas, the defendant's fingerprint card was admitted without objection and contained,
"[i]n addition to Thomas's fingerprints,... his name and signature, an alias (`Tank'), his date and place of birth, his physical description, and his Social Security number. Below the signature blank appeared the sentence: `THIS DATA MAY BE COMPUTERIZED IN LOCAL, STATE AND NATIONAL FILES.' The card also contained the name of the `OFFICIAL' who took the fingerprints and the following information blocks with the information supplied as indicated: `DATE ARRESTED OR RECEIVED DOA '-'09-17-92'; `YOUR NO. OCA '-'COO62417'; `FBI NO.'-[blank]; `SID NO.'-[blank]; `CAUTION'-[blank]; `STATE USAGE'-[blank]; `NCIC CLASS-FPC'-[blank]; `CONTRIBUTOR'-'AL0020000 SO MOBILE, AL.'; `CLASS.'-[blank]; `REF.'-[blank]; and `FBI'-[blank]. (R. 531.) There was no reference to the charge of any offense."
824 So.2d at 15-16 (capitalization in original). The Court of Criminal Appeals in Thomas concluded that there was no plain error, stating that "we believe the possibility of prejudice that resulted from the admission of the fingerprint card was remote." 824 So.2d at 20. In so concluding, the Thomas court noted that the only reference to contact with law enforcement *337 was a date in the box entitled "DATE ARRESTED OR RECEIVED" and thus determined that "the nature of Thomas's presumed contact with law enforcement authorities was `oblique.'" Thomas, 824 So.2d at 19. Additionally, the Court of Criminal Appeals in Thomas noted that its conclusion that the admission of the fingerprint card was not plain error "is buttressed by the fact that defense counsel apparently did not notice any allegedly potentially prejudicial information on the card when he viewed it, as disclosed by the record" and the fact that "testimony at trial contained references, properly admitted into evidence, to Thomas's illegal drug activity." Id.
We find Thomas distinguishable from this case. The fingerprint card in Thomas contained "no reference to the charge of any offense" and merely showed a date in the "DATE ARRESTED OR RECEIVED." 824 So.2d at 19. In this case, however, a charge is listed on the fingerprint card, and, in addition to the date entered in the box entitled "DATE ARRESTED OR RECEIVED," the box entitled "DATE OF OFFENSE" is completed. Further, there is no argument by the State that, in this case, there was testimony regarding any previous illegal activities in which Belisle may have been involved.
We conclude that this case is distinguishable from Thomas and Maples v. State, 758 So.2d 1 (Ala.Crim.App.1999) (see note 13), we also conclude that it is distinguishable from Ex parte Johnson. As the State notes, the fingerprint card in this case was admitted as an exhibit along with "several other documentsa time card, a two-page letter to the Alabama Public Safety Department, a fingerprint-examination request form, and a copy of a fingerprint card for Annette ....," with little testimony regarding the exhibit and apparently no specific mention of Belisle's fingerprint card. Belisle, 11 So.3d at 289. The fingerprint card in Ex parte Johnson was admitted as a separate exhibit and was accompanied by extensive testimony. 507 So.2d at 1341, rev'd, Ex parte Johnson, supra (discussing the testimony of at least two witnesses who testified regarding the defendant's fingerprints and the fingerprint card).
The information found on Belisle's fingerprint card further distinguishes this case from Ex parte Johnson. Unlike Johnson's fingerprint card, Belisle's fingerprint card does not contain an alias. Even though it is unclear whether the reverse of Johnson's fingerprint card (which contained the list of prior arrests) was admitted at his trial, the front of the card contained "a series of police numbers and an FBI number" that "clearly revealed the defendant's past contacts with law enforcement agencies." 507 So.2d at 1357. Here, Belisle's fingerprint card contains only one charge, and a date of offense that coincides with the "DATE ARRESTED OR RECEIVED." Ex parte Johnson is therefore distinguishable from this case. Moreover, the other caselaw cited by Belisle does not support a reversal of his conviction and sentence. Thus, the Court of Criminal Appeals did not err by determining that the admission of the fingerprint card was harmless error.
D. Does Alabama's method of execution constitute cruel and unusual punishment in violation of the Eighth Amendment?
Belisle argues that "Alabama's method of execution constitutes cruel and unusual punishment in violation of the Eight Amendment."[14] Petition at 158; Belisle's brief at 29.
*338 In Alabama, lethal injection is the method of execution of a death sentence unless the inmate chooses electrocution. See § 15-18-82(a), Ala.Code 1975 ("Where the sentence of death is pronounced against a convict, the sentence shall be executed ... as the court may adjudge, by lethal injection unless the convict elects execution by electrocution as provided by law.").
Belisle notes that "Alabama's lethal injection execution procedure, which is similar to the procedure typically used by lethal injection states, proscribes the sequential administration of sodium thiopental for anaesthesia, pancuronium bromide or Pavulon to induce paralysis, and potassium chloride." Belisle's brief at 30. He contends, however, that evidence indicates that "the three-drug protocol creates an unnecessary risk of agonizing pain." Id. The risk of unnecessary pain and suffering arises, says Belisle, "if the sedative effect of the sodium thiopental is ineffective and the inmate has retained or regained conscious[ness]" when the State administers the final two drugs to induce paralysis and death.[15] Belisle's brief at 31. Belisle argues that "the State of Alabama has taken none of the steps necessary to safeguard against unnecessary pain and suffering." Belisle's brief at 30. Specifically, Belisle contends that the method employed by Alabama to check an inmate's level of consciousness after the administration of the first drugsodium thiopentalis insufficient. Belisle's brief at 37-38.
The State argues that "Alabama's execution protocol is designed to minimize pain and is not inherently cruel and unusual." State's brief at 47. It notes that "Alabama eliminates the risk of unnecessary pain by using 2.5 grams of sodium thiopental itself a lethal doseto sufficiently anesthetize the inmate." State's brief at 52-53. The State notes that "[a]s an additional safeguard to ensure that the inmate is properly anesthetized, the Department of Corrections recently modified the execution protocol to add a consciousness assessment." These additional safeguards include
"(1) examination of the prisoner by an execution team member, following administration of the sodium [thiopental] but before administration of the pancuronium bromide, to assess his consciousness (by calling his name, gently stroking his eyelashes, and pinching his arm); and (2) administration of a second dosage of sodium [thiopental] if the preceding examination reveals consciousness."
Arthur v. Allen (Civil Action 07-0722-WS-M, Nov. 15, 2007) (S.D.Ala.2007) (not published in F.Supp.2d). Thus, the State contends that Alabama's lethal-injection procedures do not constitute cruel and unusual punishment.
The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." "Punishments are cruel when they involve torture or a lingering death; but the punishment of *339 death is not cruel within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous,something more than the mere extinguishment of life." In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519 (1890). However, as the Supreme Court of the United States recently stated in Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008):
"Our cases recognize that subjecting individuals to a risk of future harmnot simply actually inflicting paincan qualify as cruel and unusual punishment. To establish that such exposure violates the Eighth Amendment, however, the conditions presenting the risk must be `sure or very likely to cause serious illness and needless suffering,' and give rise to `sufficiently imminent dangers.' Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993) (emphasis added). We have explained that to prevail on such a claim there must be a `substantial risk of serious harm,' an `objectively intolerable risk of harm' that prevents prison officials from pleading that they were `subjectively blameless for purposes of the Eighth Amendment.' Farmer v. Brennan, 511 U.S. 825, 842, 846, and n. 9 (1994)."
___ U.S. at ___, 128 S.Ct. at 1530-31.
In Baze, two death-row inmates challenged Kentucky's use of the three-drug protocol, arguing "that there is a significant risk that the procedures will not be properly followedin particular, that the sodium thiopental will not be properly administered to achieve its intended effect resulting in severe pain when the other chemicals are administered." ___ U.S. at ___, 128 S.Ct. at 1530. Belisle's claim, like the claims made by the inmates in Baze, "hinges on the improper administration of the first drug, sodium thiopental." Baze, ___ U.S. at ___, 128 S.Ct. at 1533.
The Supreme Court upheld the constitutionality of Kentucky's method of execution, Baze, ___ U.S. at ___, 128 S.Ct. at 1538, and noted that "[a] State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard." Baze, ___ U.S. at ___, 128 S.Ct. at 1537. Justice Ginsburg and Justice Souter dissented from the main opinion, arguing that "Kentucky's protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs." Baze, ___ U.S. at ___, 128 S.Ct. at 1567 (Ginsburg, J., dissenting). The dissenting Justices recognized, however, that Alabama's procedures, along with procedures used in Missouri, California, and Indiana "provide a degree of assurancemissing from Kentucky's protocolthat the first drug had been properly administered." Baze, ___ U.S. at ___, 128 S.Ct. at 1571 (Ginsburg, J., dissenting).
The State argues, and we agree, that Belisle, like the inmates in Baze, cannot meet his burden of demonstrating that Alabama's lethal-injection protocol poses a substantial risk of harm by asserting the mere possibility that something may go wrong. "Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of `objectively intolerable risk of harm' that qualifies as cruel and unusual." Baze, ___ U.S. at ___, 128 S.Ct. at 1531. Thus, we conclude that Alabama's use of lethal injection as a method of execution does not violate the Eighth Amendment to the United States Constitution.
Conclusion
For the foregoing reasons, we hold that the decision of the Court of Criminal Appeals does not conflict Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 *340 L.Ed.2d 104 (1972), Cochran v. Ward, 935 So.2d 1169 (Ala.2006), or Ex parte Johnson, 507 So.2d 1351 (Ala.1986), and that Alabama's use of lethal injection as a method of execution does not violate the Eighth Amendment.
AFFIRMED.
LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.
MURDOCK, J., concurs in the result.
COBB, C.J., recuses herself.
NOTES
[1] A more complete rendition of the facts relating to the murder are found in the Court of Criminal Appeals' opinion. Belisle v. State, 11 So.3d at 256.
[2] Annette and Belisle were indicted on two counts: murder during the course of a robbery, see § 13A-5-40(a)(2), Ala.Code 1975, and murder during the course of a burglary, see § 13A-5-40(a)(4), Ala.Code 1975.
[3] In Brady, 373 U.S. at 87, 83 S.Ct. 1194, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."
[4] See also Ex parte Brown, 548 So.2d 993, 994 (Ala. 1989) ("This Court has held in Ex parte Kennedy, 472 So.2d 1106 (Ala.1985), cert. den., Kennedy v. Alabama, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985), that a defendant must demonstrate, first, that the State suppressed the evidence, and, second, that the evidence suppressed was favorable to the defendant or exculpatory, and, finally, that the evidence was material.").
[5] It appears that the State believed that the proffer had in fact been turned over to the defense. ("[District attorney:] When I received this file, I saw this proffer, saw the case number. I think, on record, I'll say as we were walking out, I thought it was made part of the court file. It was executed. So if it was not providedI admit I have not provided it. It was a complete oversight. I assumed that [the defense] had it.").
[6] The trial court entered its discovery order on October 26, 2001.
[7] Section II, paragraph 3, of the trial court's discovery order states "[p]ursuant to Rule 16.3 of the Alabama Rules of Criminal Procedure, each request is continuing in nature and additional responsive information should be revealed as soon as it occurs."
[8] Rule 16.3, Ala. R.Crim. P., provides:
"If prior to or during trial a party discovers additional evidence or decides to use additional evidence, which evidence has been subject to discovery under this rule, that party shall promptly notify the court and the opposing party of the existence of the additional evidence."
[9] See also United States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ("It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." (footnote omitted)).
[10] See also Agurs, 427 U.S. at 112 n. 20, 96 S.Ct. 2392 ("It has been argued that the standard should focus on the impact of the undisclosed evidence on the defendant's ability to prepare for trial, rather than the materiality of the evidence to the issue of guilt or innocence. Such a standard would be unacceptable for determining the materiality of what has been generally recognized as `Brady material' for two reasons. First, that standard would necessarily encompass incriminating evidence as well as exculpatory evidence, since knowledge of the prosecutor's entire case would always be useful in planning the defense. Second, such an approach would primarily involve an analysis of the adequacy of the notice given to the defendant by the State, and it has always been the Court's view that the notice component of due process refers to the charge rather than the evidentiary support for the charge.").
[11] Belisle also argues:
"The lower court found that the fact that this evidence [the proffer] came out before the close of trial, allowing defense counsel an opportunity to cross-examine Annette about it, rendered this error harmless. This is wrong for several reasons."
Petition at 13. In support of this argument Belisle cites Ex parte Williams, 642 So.2d 391, 393 (Ala. 1993), Ex parte Grandberry, 640 So.2d 919 (Ala. 1993), Ex parte Brown, 548 So.2d 993 (Ala. 1989), and Padgett v. State, 668 So.2d 78 (Ala.Crim.App.1995). However, as explained above, our conclusion that the tardy disclosure of the proffer is not reversible error is not premised solely on the fact that the proffer was eventually disclosed to Belisle and that Belisle was able to cross-examine Annette using the proffer. Instead, as noted above, Belisle had many other components of that proffer by which he could similarly impeach Annette, in addition to getting the opportunity to cross-examine Annette on the proffer and to admit the proffer into evidence.
[12] It appears that the following colloquy is the only mention of the admitted fingerprint card during trial:
"Q. [Prosecution]: I'm going to show you what has been marked as State's Exhibit 82. What's in State's Exhibit 82?
"A. [Detective Turner]: The time card of Joyce Moore at [the T & J Kwik-Mart convenience store], some fingerprint cards, and a letter from DFS, Department of Forensic Science.
"Q. So they tried to match fingerprints to that time card, didn't they?
"A. Yes, sir.
"Q. And they didn't find any fingerprints belonging to Rick Belisle, did they?
"A. No, sir."
[13] The State also cites Maples v. State, 758 So.2d 1, 61-62 (Ala.Crim.App.1999). However, Maples is clearly distinguishable from this case because, in Maples, "[t]he redacted copy of the fingerprint card did not contain any reference to the appellant's prior arrest record. The offenses involved and the headings `Date Arrested' and `Date of Offense' were deleted from the copy of the fingerprint card." 758 So.2d at 62.
[14] Belisle has not argued, and we do not address, whether Alabama's form of execution constitutes cruel and unusual punishment under Alabama's Constitution. See Art. I, § 15 ("That excessive fines shall not be imposed, nor cruel or unusual punishment inflicted.").
[15] See Harbison v. Little, 511 F.Supp.2d 872, 883 (M.D.Tenn.2007) ("It is undisputed that, without proper anaesthesia, the administration of pancuronium bromide and potassium chloride, either separately or in combination, would result in a terrifying, excruciating death. The basic mechanics are that the inmate would first be paralyzed and suffocated (because the paralysis would make him unable to draw breath), then feel a burning pain throughout his body, and then suffer a heart attack while remaining unable to breathe."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611683/ | 841 So.2d 862 (2003)
STATE of Louisiana
v.
Walter MASSEY.
No. 02-KA-872.
Court of Appeal of Louisiana, Fifth Circuit.
February 11, 2003.
Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alison Wallis, Assistant District Attorneys, Gretna, LA, for the State.
Jane L. Beebe, Gretna, LA, for appellant.
*863 Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and CLARENCE E. McMANUS.
CLARENCE E. McMANUS, Judge.
In this case, defendant appeals his conviction and sentence. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Officers of the Gretna Police Department received anonymous complaints about drug transactions occurring at the donut shop, motel and grocery located at the corner of Kepler and Solon Streets in Gretna, Louisiana. Acting on this information, Detective Russell Lloyd, Detective Scott Zemlick and another officer set up surveillance in that area on Wednesday, January 23, 2001, at approximately 2:30 p.m.
The informant told officers that the drug transactions normally occurred when a green, four-door Mercury would arrive in the area with the passenger of the vehicle delivering the cocaine. According to Detective Lloyd, shortly after the arrival of the officers at the specified location, a green four-door Mercury automobile approached the side of the donut shop and parked. The driver of the vehicle, later identified as Stanley Tucker, exited the vehicle. The three policemen, dressed in plain clothes, got out of their vehicle and moved toward the driver and passenger of the vehicle. The officers approached the passenger side of the vehicle and found defendant, later identified as Walter Massey, seated therein.
Officer Zemlick testified at trial that they identified themselves as police officers as they approached the men. As officers neared the car, they observed defendant retrieve a black canister from his right area near his midsection and throw it over his shoulder. Apparently, small rocks of cocaine fell from the object to the back seat and floor of the vehicle. The officers placed defendant under arrest, searched him and found three rocks of cocaine in his right front pocket.
On February 20, 2001, defendant, Walter Massey, was charged by bill of information with possession of cocaine in violation of La. R.S. 40:967(C). He was arraigned on February 21, 2001 and pled not guilty. On April 21, 2001, a motion to suppress hearing was held and the motion was denied. On May 21, 2001, defendant filed a Motion for Appointment of a Sanity Commission. On July 19, 2001, following the sanity hearing, the defendant was found competent to stand trial.
On September 24, 2001, a twelve-person jury unanimously found defendant guilty as charged. The defendant was sentenced on October 25, 2001 to five years imprisonment at hard labor with credit for time served. Also on October 25, 2001, the State filed a multiple bill, wherein it alleged the defendant to be a fourth felony offender under La. R.S. 15:529.1(A)(1)(c).[1] On November 29, 2001, following a hearing, the defendant admitted the allegations of the multiple bill in exchange for a negotiated multiple offender sentence of 15 years of imprisonment. The trial judge vacated defendant's original sentence and sentenced defendant as a multiple offender to imprisonment for 15 years at hard labor with credit for time served but without benefit of probation or suspension of sentence.
Defendant now appeals his conviction and sentence challenging the denial of his motion to suppress the evidence.
*864 DISCUSSION
The record indicates that defendant did not file a written motion to suppress the evidence. Although there was a suppression hearing, defendant did not object to the ruling on the motion to suppress or to the introduction of the contraband. The trial court denied the motion to suppress the evidence stating it thought it was "a good search." Defendant argues that the basis of the police action was based on an unsubstantiated tip by a confidential informant that did not give police probable cause for defendant's arrest or even reasonable suspicion for a stop. Thus, the trial court erred in granting the motion to suppress the evidence.
The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Manson, 01-159, pp. 6-7 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755. Warrantless searches and seizures are unreasonable per se unless justified by one of the specific exceptions to the warrant requirement. State v. Manson, supra, (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)).
When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the State bears the burden of proving that the search and seizure was justified pursuant to one of the exceptions to the warrant requirement. State v. Jones, 99-972 (La. App. 5 Cir. 2/29/00), 757 So.2d 110, 112. The trial judge's determination on the motion to suppress will not be disturbed on appeal, unless it is clearly wrong. State v. Casey, 99-0023 (La. 1/26/00), 775 So.2d 1022, 1029, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). In reviewing the ruling on the motion to suppress, the appellate court will look to the totality of the evidence as presented at the hearing of the motion and the trial. State v. Wilson, 00-0178 (La.12/8/00), 775 So.2d 1051, 1053; State v. Manson, 791 So.2d at 755.
Probable cause needed for a full custodial arrest is more than reasonable suspicion. State v. Fisher, 720 So.2d at 1183. Probable cause exists when the facts and circumstances known to the arresting officer, based on reasonably trustworthy information, are sufficient to justify a belief in a man of ordinary caution that the person to be arrested has committed a crime. State v. Edwards, 00-1246, p. 8 (La.6/1/01), 787 So.2d 981, 986, n. 4.
In this case, Detective Lloyd's testimony at the suppression hearing was uncontroverted. According to him, there were complaints of drug activity involving the donut shop at Kepler and Solon Streets. On January 23, 2001, acted on anonymous tip that indicated that a passenger in a green, four-door Mercury automobile would be going to the donut shop to deliver cocaine. This witness and two additional officers went to the location and parked awaiting the arrival of the green car. Shortly thereafter arriving at the location, a vehicle arrived matching the description parked at the side of the donut shop. As the driver of the vehicle exited the Mercury, the three officers, dressed in plain clothes approached. It was at this moment, according to Detective Lloyd, that the defendant reached toward his right side and threw the film canister over his shoulder, spilling cocaine into the back of the car.
Similarly, in State v. Johnson, 01-2436, (La.1/25/02), 806 So.2d 647, 648, the subject was approached by police as the result of an anonymous tip that there was a person meeting his description who was dealing heroin. As the officers exited *865 their vehicle and were observed to be police (although they had not identified themselves), the subject threw down a bag that contained heroin. The Louisiana Supreme Court, in Johnson, 806 So.2d at 648, held that the seizure of evidence was lawful.
In the instant case, the facts indicate that the officers approached the subjects and the defendant discarded the contraband prior to any stop. When the defendant discarded the contraband, without a prior intrusion on his privacy, he provided probable cause for his arrest. Defendant's assertion that police approached the car to make the arrest is not substantiated by the record. Thus, we find the contraband discarded into the back of the vehicle were lawfully seized without a warrant and the trial court properly denied the motion to suppress the evidence and affirm defendant's conviction.
ERROR PATENT DISCUSSION
The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals one error patent in this case as it relates to defendant's sentence as a multiple offender.
The negotiated sentence of fifteen years of imprisonment at hard labor imposed after defendant admitted to being a fourthfelony offender, appears to be illegally lenient under La. R.S.15:529.1(A)(1)(c)(ii). The record indicates that the defendant had three prior felony convictions: (1) a second offense for possession of marijuana, in violation of La. R.S. 40:966 on May 19, 2001; (2) a conviction for second degree battery, in violation of La. R.S. 14:34.1, on April 17, 2000; and (3) a conviction for aggravated battery in violation of La. R.S. 14:34, on December 12, 1989.
Defendant admitted to the allegations of the multiple bill, which stated that he was a fourth-felony offender. As a fourth-felony offender, with a prior conviction for a violent crime, defendant was subject to a mandatory life sentence without benefit of parole, probation or suspension of sentence under La. R.S. 15:529.1(A)(1)(c)(ii). However, neither the State nor defendant raises this issue on appeal.
We note that in State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the Louisiana Supreme Court expanded our error patent review to include illegally lenient sentences. See, State v. Cox, 02-0333, p. 9 (La.App. 5 Cir. 9/30/02), 829 So.2d 521, 2002 La. LEXIS 2849. It is well established that the defendant does not have a constitutional or statutory right to an illegal sentence. State v. Williams, 00-1725, pp. 16-17 (La.11/28/01), 800 So.2d 790, 797. We note that the Louisiana Supreme Court stated the following in State v. Campbell, 01-0329 (La.11/2/01) 799 So.2d 1136:
The appellate court should refrain from employing errors patent review to set aside guilty pleas about which the defendant makes no complaint and which resulted in disposition of the case favorable to the defendant.
Following that edict, we will not disturb defendant's sentence. Accordingly, we affirm defendant's conviction and sentence.
CONCLUSION
Based on the foregoing, defendant's conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.
NOTES
[1] Prior to amendment by 2001 La. Acts 403. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611686/ | 841 So.2d 1032 (2003)
SEDGWICK CLAIMS MANAGEMENT SERV. INC., et al.,
v.
Chris A. CORMIER.
Court of Appeal of Louisiana, Third Circuit.
March 26, 2003.
*1033 Michael Benny Miller, Miller & Miller, Crowley, LA, for Defendant/AppellantChris A. Cormier.
Troy Allen Broussard, Allen & Gooch, Lafayette, LA, for Plaintiffs/AppelleesSafety National Casualty Corp., Ellender's Portable Buildings, Inc., and Sedgwick Claims Management Services, Inc.
Court composed of NED E. DOUCET, JR., C.J., ULYSSES GENE THIBODEAUX, and ELIZABETH A. PICKETT, Judges.
THIBODEAUX, Judge.
Ellender's Portable Buildings, Inc. (Ellender's), its insurer, Safety National Casualty Corp. (Safety), and the third-party administrator, Sedgwick Claims Management Services, Inc. (Sedgwick), filed a petition to annul a workers' compensation *1034 compromise judgment granted to employee, Chris Cormier. It alleged fraud under La.Code Civ.P. art.2004 against Cormier. Because the judgment was not paid within thirty days of the compromise, Cormier sought penalties and attorney fees pursuant to La.R.S. 23:1201(G).
The Office of Workers' Compensation (OWC) denied both claims. It reasoned that fraud was not proven and the settlement had been paid within thirty days of a previous appellate court decision attaching procedural issues relating to the settlement. Mr. Cormier appealed and the defendants answered the appeal.
We reverse in part and affirm in part. We conclude that the OWC erred in failing to award Mr. Cormier penalties and attorney fees and correctly determined that the compromise (later reduced to a formal, written judgment) should not be annulled.
I.
ISSUES
We shall consider whether:
(1) the compromise agreement was final and non-appealable under La.R.S. 23:1201(G), thus entitling the claimant, Mr. Cormier, to penalties and attorney fees; and,
(2) the OWC correctly determined that the compromise agreement should not be annulled.
II.
FACTS
The underlying facts of this case were set out in Cormier v. Ellender's Portable Bldg., 00-1595, p. 2 (La.App. 3 Cir. 2/28/01); 781 So.2d 776, 777-78 (Cormier I) as follows:
Trial on Mr. Cormier's claims against Ellender, his employer, was scheduled for May 3, 2000. Prior to the start of the trial, the parties reached an agreement to settle. When the matter was called, the parties, through counsel, stated for the record the terms of their settlement. The workers' compensation judge then questioned Mr. Cormier regarding his understanding and acceptance of the terms of the settlement. After Mr. Cormier indicated his agreement to the terms of the settlement, the workers' compensation judge stated: "Very well. The Court will sign off on documents once they're sent to me."
Upon receipt of the settlement documents from Ellender, counsel for Mr. Cormier had him sign the documents, including the settlement check. At that time, counsel disbursed to Mr. Cormier his share of the settlement funds. He then forwarded a copy of the settlement documents, including a Judgment of Dismissal to the workers' compensation judge for signature. The Judgment of Dismissal was signed on May 25, 2000.
After forwarding the settlement documents and check to counsel for Mr. Cormier, Ellender obtained information which it alleges indicates that Mr. Cormier committed fraud with respect to his claims, especially the extent of his injuries. In response thereto, it stopped payment on the settlement check and filed a Motion to Rescind Settlement and Require Forfeiture of Benefits Pursuant to § 1208.
In response to Ellender's Motion to Rescind, Mr. Cormier's former counsel filed an Exception of Improper Use of Summary Proceedings and/or Exception of No Cause of Action with Regard to Motion to Rescind Settlement and Require Forfeiture of Benefits Pursuant to § 1208. A hearing on Ellender's Motion to Rescind and the Exception of Improper Use of Summary Proceedings was held June 5, 2000. The workers' *1035 compensation judge denied the Motion to Rescind and granted the Exception of Improper Use of Summary Proceedings. Ellender filed a writ application with this court. Finding no error with the ruling of the Officer (sic) of Workers' Compensation judge, the writ was denied. See Cormier v. Ellender's Portable Building, Inc., an unpublished writ bearing docket number 00-955 (La.App. 3 Cir. 7/27/00). Ellender then filed this appeal, assigning three errors.
(Footnote omitted).
In the appeal noted above, the defendants argued that it was error to deny their Motion to Rescind the Settlement and to grant the Exception of Improper Use of Summary Proceedings. This court affirmed the decision of the OWC upholding the settlement. The defendants next sought to have the settlement nullified by filing a Motion to Nullify the Settlement in both the OWC and in the district court. Cormier filed an exception contesting the district court's jurisdiction. This exception was denied. Cormier filed a writ application with this court seeking a reversal of the district court's decision. Cormier's writ was granted and the district court's decision reversed by this court. We held that the district court had no subject matter jurisdiction to set aside the settlement. Meanwhile, the OWC refused to grant the defendants' motion to nullify the settlement. The OWC also refused to award Cormier penalties and attorney fees based on his argument that the defendants failed to pay the settlement funds timely. It found that the payment was timely because it was paid within thirty days of the ruling by this court in Cormier I.
III.
LAW AND DISCUSSION
Penalties and Attorney Fees
Mr. Cormier contends he is owed penalties and attorney fees because his settlement with Ellender's on May 3, 2000, was a final, non-appealable judgment. In accordance with La.R.S. 23:1201(G), an "award payable under the terms of a final, non-appealable judgment" must be paid within thirty days. Failure to pay the judgment amount within thirty days entitles the claimant to receive penalties and attorney fees. The initial question we must answer is whether the settlement in this case, recited on the record, is a final and non-appealable judgment such that failure to pay the judgment within thirty days subjects the employer to paying penalties and attorney fees. The defendants assert that the question regarding the nonappealable nature of the settlement was previously argued before another panel of this court in Cormier I, "unsuccessfully" and that the "law of the case doctrine" applies to preclude this court from reconsideration of this issue in the present appeal. We disagree.
A review of the record filed in Cormier I and the decision of this court reveals that Mr. Cormier did not file his own appeal or answer to the Ellender's appeal of the judgment of the OWC; thus, the issue of the non-appealable nature of the settlement was not properly before this court in Cormier I. Further, the decision in Cormier I reflects that the panel did not consider or render a judgment on the issue. Therefore, the issue is properly before this court in the present appeal and we are not precluded from consideration of the issue by the "law of the case" doctrine.
The defendants contend that the settlement agreement in this case does not constitute a final, non-appealable judgment. In 1999, the legislature amended La.R.S. 23:1272(A) to provide:
A. A lump sum or compromise settlement entered into by the parties under *1036 R.S. 23:1271 shall be presented to the workers' compensation judge for approval through a petition signed by all parties and verified by the employee or his dependent, or by recitation of the terms of the settlement and acknowledgment by the parties in open court which is capable of being transcribed from the record of the proceeding.
(Emphasis added).
Prior to the amendment, other circuit courts in this state held that writings not typically conferred with the title of "judgment" were considered to be final, nonappealable judgments. In Borne v. St. John The Baptist Parish Sch. Bd., 97-1062 (La.App. 5 Cir. 3/11/98); 712 So.2d 921, writ denied, 98-807 (La.5/8/98); 719 So.2d 52, a case decided prior to the 1999 amendment, the court held that an "Order" by the workers' compensation judge approving the settlement between the employer and the claimant was non-appealable. The fourth circuit in Johnson v. TMSEL, RTA, 95-1352 (La.App. 4 Cir. 2/15/96); 669 So.2d 1309, 1311, said with respect to a "resolution" entered into by the parties found that "[a] binding settlement had been reached" and that it was final and non-appealable under La.R.S. 23:1272. In Richard v. Our Lady of Lourdes Reg'l Med. Ctr., Inc., 02-571 (La.App. 3 Cir. 10/30/02); 829 So.2d 1147, a case with facts similar to those in the present case, this court noted that the "language of the 1999 amendment closely tracks La.Civ.Code art. 3071 ...". Louisiana Civil Code Article 3071 states in part:
This contract must be either reduced to writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in more convenient form.
(Emphasis added).
This court further held in Richard:
The amendment to La.R.S. 23:1272 broadens the available avenues for settling workers' compensation claims. Clearly the legislature intended the recitation in open court to have the same effect as the previously approved forms of settlement. The settlement of a workers' compensation claim is substantially the same as a transaction or compromise. An oral recitation of a transaction or compromise in open court which is capable of transcription is judicially enforceable.
Id. at 1149. This court ultimately concluded that the OWC in that case was correct in finding that the "oral recitation of the workers' compensation settlement agreement by the parties in open court ... is a final non-appealable judgment for the purposes of La.R.S. 23:1201(G)" and that the OWC correctly awarded the claimant penalties and attorney fees. Id.
In further support of their contention that the settlement the defendants and Cormier entered into is not a final and non-appealable judgment, the defendants assert that in accordance with La.R.S. 23:1272, the workers' compensation judge was required to make "additional factual findings." Louisiana Revised Statutes 23:1272(A) requires the workers' compensation judge to determine whether the employee "understands the terms and conditions of the proposed settlement" and La. R.S. 23:1272(B) requires a finding by the workers' compensation judge that the agreement between the parties is "fair, equitable and consistent" with workers' compensation laws prior to approval of the settlement. The purpose of this statute is to "provide numerous safeguards to prevent an employee from being coerced, to *1037 prevent a hasty and possibly ill-advised resolution of the employee's claim, and to protect the parties from unwise actions which may cause them serious detriment." Morris v. East Baton Rouge Parish Sch. Bd., 93-2396, p. 4 (La.App. 1 Cir. 3/3/95); 653 So.2d 4, 6, writ denied, 95-0852 (La.5/5/95); 654 So.2d 335. Although the procedural requirements of La.R.S. 23:1272 are mandatory, a judgment obtained in conformity therewith should be "virtually unassailable." Harrington v. Quality Steel Bldg. Erectors, 95-822, p. 6 (La.App. 3 Cir. 3/6/96); 670 So.2d 1372, 1376, writ denied, 96-1315 (La.6/28/96); 675 So.2d 1128 (quoting Smith v. Cajun Insulation, Inc., 392 So.2d 398, 401 (La. 1980)).
Under its prior version, the statute required a district judge to "discuss" the terms of the settlement with the claimant. Now, a workers' compensation judge need only "determine" that the employee understands the settlement and that it is fair, equitable, and consistent with the workers' compensation law. If these safeguards are followed, the settlement may only be set aside for fraud or misrepresentation made by any party.
In Cormier I, we stated:
The workers' compensation judge did not affirmatively state on the record that she considered the terms of the settlement or that she found the settlement to be fair, equitable, and consistent with the workers' compensation laws. However, it is clear from her actions at the time the settlement was stated for the record and at the hearing on May 25, 2000, that she considered the settlement and approved it. We find no merit to this assignment of error. Cormier, 781 So.2d at 778. The safeguards were complied with.
At the latest, the settlement in this case occurred on May 25, 2000. The defendants submitted a check in the amount of $61,158.06 on March 26, 2001, well in excess of thirty days following the settlement. Because we find that the settlement was a final and non-appealable judgment on May 3, 2000, the fact that the settlement funds were paid within thirty days of this court's appellate decision is of no consequence. It was not paid within the time limits provided by La.R.S. 23:1201(G). Therefore, Mr. Cormier is owed penalties and attorney fees. The amount due is "an amount equal to twenty-four percent [of the judgment amount] of one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater ... The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate." La.R.S. 23:1201(G). Mr. Cormier asserts that he is entitled to a penalty award in the amount of $14,677.93, twenty-four percent of $61,158.06 which is greater than the $100.00 per day penalty amount. We agree. With respect to attorney fees, we find that the amount of $5,000.00 is reasonable.
Nullity of the Settlement
Ellender's answered Mr. Cormier's appeal asserting that the OWC erred when it failed to nullify the settlement based on fraud committed by Mr. Cormier which induced the defendants to enter into a settlement agreement. They also seek restitution. Louisiana Code Civil Procedure Article 2004 provides:
A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
*1038 C. The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.
Ellender's claims that Mr. Cormier induced it to settle his workers' compensation claim by misrepresenting his physical abilities. Ellender's asserts that during his deposition taken in 2000, Mr. Cormier presented himself as a crippled person unable to do any type of work, yet video surveillance tapes taken on April 26, May 8, and 10, 2000, as well as May 16, 21, and 23, 2001, reveal Mr. Cormier engaging in activities inconsistent with his claim of severe physical disability. The workers' compensation judge found that the information regarding Mr. Cormier's physical abilities was obtained by Ellender's after the parties entered the settlement agreement and would not consider the postsettlement evidence. The workers' compensation judge reasoned that to consider such evidence would "taint the validity of all settlements." Thus, the workers' compensation judge did not review any of the video tapes submitted by Ellender's. However, as noted above, La.Code Civ.P. art provides that a final judgment obtained by fraud may be annulled. The defendants claim they were induced to settle with Mr. Cormier because he misrepresented his physical condition; therefore the final, non-appealable settlement judgment should be annulled. We find that the OWC correctly refused to entertain evidence of Mr. Cormier's physical condition sought to be presented after the compromise agreement. However, in an abundance of caution and to finally dispose of this compromise, we shall do so.
Louisiana jurisprudence sets forth two criteria to determine whether a judgment has been rendered through fraud or ill practices, and is thus subject to nullification: (1) whether circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief; and (2) whether enforcement of the judgment would be unconscionable or inequitable. Johnson v. Jones-Journet, 320 So.2d 533 (La.1975), Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La. 1980), and Ward v. Pennington, 523 So.2d 1286 (La. 1988).
Belle Pass Terminal, Inc. v. Jolin, Inc., 01-149, p. 6 (La.10/16/01); 800 So.2d 762, 766. In other words, "[a] party seeking annulment must show that he was deprived of the opportunity to defend the law suit by some fraud or ill practice of the opposing party." Head & Engquist Equipment, Inc. v. Ryland, 577 So.2d 182, 184 (La.App. 1 Cir.1991). In the present case, the defendants were not deprived by any act of Mr. Cormier of the opportunity to defend the law suit. In fact, the OWC and Mr. Cormier were prepared and ready to proceed to trial on the date the defendants decided to settle the case. Some of the evidence regarding Mr. Cormier's physical condition depicted in video surveillance tapes was taken prior to the trial date. However, it was the defendants who requested a continuance of the trial which was denied by the OWC. Apparently, the defendants were not ready to proceed to trial at that moment and made the decision to settle. Thus, it was not any act on the part of Mr. Cormier that induced the settlement. Instead, the record reveals that it was the defendants' decision to willingly dispose of their opportunity to present a defense when faced with the OWC's denial of their motion to continue which induced the settlement. Therefore, we reject the contentions of the employer and its insurer and third-party administrator.
IV.
CONCLUSION
For the reasons assigned, the judgment of the Office of Workers' Compensation *1039 denying defendants' request to nullify the settlement judgment is affirmed. The judgment of the workers' compensation judge denying Chris Cormier penalties and attorney fees for the defendants' failure to pay settlement funds within thirty days of the judgment is reversed and set aside. We award Chris Cormier the amount of $14,677.93 in penalties and $5,000.00 in attorney fees. Finally, it is ordered that all costs of this appeal are to be born by the defendants, Ellender's Portable Buildings, Inc., Safety National Casualty Corp., and Sedgwick Claims Management Services, Inc.
AFFIRMED IN PART, REVERSED IN PART, AND RENDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611689/ | 841 So.2d 242 (2002)
Ex parte Bobby MILES.
(In re State of Alabama v. Bobby Miles).
1010971.
Supreme Court of Alabama.
June 28, 2002.
Bobby Miles, pro se.
Gary W. Alverson, district atty., Colbert County, for respondent.
Bill Pryor, atty. gen., and E. Vincent Carroll, asst. atty. gen., for respondent.
*243 HARWOOD, Justice.
Bobby Miles, an inmate of an Alabama correctional facility, acting pro se, petitions this Court for a writ of mandamus directing the trial court to vacate its order denying his Rule 32, Ala. R.Crim. P., petition. Miles asserts that he did not receive notice of the trial court's denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief until after his 42 days for filing a notice of appeal had expired. We grant the petition.
On October 24, 2001, Miles filed a petition for postconviction relief, pursuant to Rule 32, Ala. R.Crim. P. On November 9, 2001, the State filed a motion to dismiss the petition. On November 16, 2001, the trial court denied Miles's petition. Miles received notice of the trial court's denial of his petition by way of a mailing postmarked January 4, 2002, 49 days after the trial court's order was entered.[1]
On January 8, 2002, Miles filed a notice of appeal; on that same day he filed a petition for a writ of mandamus with the Court of Criminal Appeals. On January 25, 2002, the Court of Criminal Appeals issued an order dismissing Miles's appeal, Miles v. State, (No. CR-01-0844, January 25, 2002) ___ So.2d ___ (Ala.Crim.App.2002) (table). That order stated, in pertinent part:
"Whereas, the above-referenced appeal has been duly examined and considered by the Court of Criminal Appeals; and
"Whereas, the Court, having considered the same, has now ordered that said appeal be dismissed as untimely filed;
"Now, therefore, it is hereby certified that a judgment of dismissal was entered in said appeal on this the 25th day of January, 2002."
On February 8, 2002, the Court of Criminal Appeals entered an order denying Miles's petition for a writ of mandamus, without an opinion. Ex parte Miles, (No. CR-01-0749, February 8, 2002) ___ So.2d ___ (Ala.Crim.App.2002)(table). On February 12, 2002, Miles filed a petition for a writ of mandamus with this Court. See Rule 21(e), Ala. R.App. P. On April 4, 2002, this Court ordered that answers and briefs be filed. Both the Colbert County district attorney and the attorney general filed answers and briefs.
The applicable standard of review to a petition for a writ of mandamus is settled.
"A writ of mandamus is an extraordinary remedy, and it will be `issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.' Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief *244 is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991)."
Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).
In Ex parte Johnson, 806 So.2d 1195 (Ala.2001), an inmate petitioned this Court for a writ of mandamus directing the trial court to advise him of the disposition of his Rule 32, Ala. R.Crim. P., petition for postconviction relief. Based upon the facts presented, this Court concluded that, through no fault of his own, the inmate had not received notice that his Rule 32 petition had been denied. Further, because the inmate's 42-day period in which to appeal had expired, this Court ordered that the trial court vacate its order denying the inmate's Rule 32 petition, that a new order be entered, and that the inmate receive prompt notice of that order. In making this determination, this Court observed:
"`Procedural due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them.... Although it is generally held in Alabama that a party is under a duty to follow the status of his case, whether he is represented by counsel or acting pro se, and that, as a general rule, no duty rests upon either the court or the opposing party to advise that party of his scheduled trial date, see the cases collected at 18A Ala. Digest Trial § 9(1) (1956), a party's right to procedural due process is nonetheless violated if he is denied his day in court because the court, acting through its clerk, assumed the duty of notifying that party of his scheduled trial date and then negligently failed to do so.
"`The circuit court's dismissal of Weeks's appeal, on the facts presented, lacked one of the fundamental attributes of a fair judicial proceedingthe opportunity for all of the parties to be heard and could never be upheld where justice is fairly administered. Because the sole object and only legitimate end of state government (including the judicial branch of state government) is to protect the citizen in the enjoyment of life, liberty, and property, it would surely amount to "usurpation and oppression" by this state's judicial branch of government if this branch failed to recognize Weeks's right to procedural due process and he was not afforded his day in court. Article I, § 35, Ala. Const.'"
806 So.2d at 1196-97 (quoting Ex parte Weeks, 611 So.2d 259, 261-62 (Ala.1992) (citations omitted)).
Based upon our review of the material in Miles's petition, we conclude that Miles's receipt of the trial court's denial of his Rule 32 petition 49 days after that order was entered was through no fault of his own.[2] Further, to not allow Miles an opportunity to file a notice of appeal under these circumstances would violate his clear legal right to procedural due process. *245 Empire Fire & Marine Ins. Co., supra, Johnson, supra. Accordingly, as this Court ordered in Johnson, we direct the trial court (1) to vacate its November 16, 2001, order denying Miles's Rule 32 petition, (2) to enter a new order on Miles's petition, and (3) to provide Miles prompt notice of that order.
PETITION GRANTED; WRIT ISSUED.
HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, WOODALL, and STUART, JJ., concur.
MOORE, C.J., dissents.
NOTES
[1] The envelope bearing the postmark was not included as an exhibit to Miles's petition to this Court. The Colbert County district attorney and the attorney general argue in their briefs to this Court that Miles had exclusive possession of the envelope and that he had not produced it for this Court's review. In reply, Miles stated:
"This order and envelope, showing the January 4, 2002[,] post date, was exhibited to the Alabama Court of Criminal Appeals in petitioner's initial mandamus petition to that court under no. CR-01-0749. `Petitioner has no means to make copies of documents.'"
We have checked the records as maintained by the clerk of the Court of Criminal Appeals, and we have confirmed that the original envelope was attached to Miles's petition to that court and that the postmark appearing on it was dated January 4, 2002.
[2] We note that the Colbert County district attorney attached to its answer and brief an affidavit by Carrie King, a clerk with the Colbert County Circuit Court. King's affidavit stated, in pertinent part:
"The order in question ... is dated the 16th day of November, 2001. It is also stamped with the date and time on which it was filed in our office, which was November 16th, 2001[,] at 1:22 p.m. My standard procedure is to mail these orders to the parties as soon as possible after being filed in our office. The check marks next to the respective attorneys['] or parties['] names indicated that a copy of the order was mailed. After making copies of the orders and addressing an envelope to the attorney or party, I place a stamp on the envelope and deposit it with the outgoing mail. An employee of the courthouse then delivers the mail to the U.S. Post Office.
"I do not have an independent recollection of mailing Mr. Miles['s] order in this case. I can say, however, that this is my ordinary practice and procedure and I do not recall doing anything other than this with regard to Mr. Miles['s] case."
King's affidavit therefore does not contradict Miles's assertion that he did not receive that trial court's order until it arrived in an envelope postmarked January 4, 2002. Nor does it state any other mailing that may have been sent to Miles on that date. The check mark opposite Miles's name could represent the mailing of the other on January 4, 2002. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1500932/ | 109 F.2d 167 (1940)
In re NATIONAL REPUBLIC CO.
ARBETMAN
v.
RECONSTRUCTION FINANCE CORPORATION.
Nos. 7018, 7019.
Circuit Court of Appeals, Seventh Circuit.
January 2, 1940.
*168 Meyer Abrams and Harry J. Myerson, both of Chicago, Ill., for appellants.
Lee Walker, M. O. Hoel, and W. S. Allen, all of Chicago, Ill., for appellees.
Before SPARKS, MAJOR, and TREANOR, Circuit Judges.
SPARKS, Circuit Judge.
These appeals are taken from orders of the District Court vacating an order granting leave to appellants to answer an involuntary petition in bankruptcy, striking their answer, adjudicating the National Republic Company a bankrupt, appointing a receiver for it, restraining appellants from continuing with a proceeding theretofore instituted by one of them in a state court, and taxing the stenographic charges for reporting the proceedings as costs against two appellants.
Appellants Arbetman and Oppenheimer are the owners of ten and twelve shares respectively of a total of 550,000 shares of the stock of the National Bank of the Republic for the benefit of which all the stock of the National Republic Company was held in trust. Appellant Ballis is a receiver appointed by a state court in a proceeding instituted by Arbetman and joined in by Oppenheimer against the National Republic Company and thirty individuals, charging the latter with fraud, misfeasance and malfeasance. Appellee, the Reconstruction Finance Corporation, was the petitioning creditor in the bankruptcy proceeding. Other appellees did not enter appearance or file briefs before this court, hence we shall refer to the Reconstruction Finance Corporation only as appellee.
The Reconstruction Finance Corporation instituted the bankruptcy proceeding on June 5, 1939, by filing an involuntary petition against the National Republic Company, hereafter referred to as the Republic Company or the Company. After the necessary averments as to location and business, it alleged that all the creditors of the Company were less than twelve in number; that appellee was a creditor of the Company having a provable claim against it fixed as to liability and liquidated as to amount, arising out of a judgment for $41,985 rendered in favor of itself in a suit against all the owners of the stock of the Central Republic Trust Company, of which the Company held 419 shares. This judgment remained unsatisfied. It also recited a second claim against the Company arising out of a note for $500,000 signed by the Company and payable to the Central Republic Trust Company, pledged by the latter to appellee but with the understanding, in accordance with an agreement between the Company, the Central Republic Trust Company and the Central-Illinois *169 Company that the Company was not to be liable for any greater amount on the note than the Central-Illinois Company was able to pay on its note of the same date for a similar amount, and that the latter Company was ready, willing and able to pay $57,306, hence the Company was liable for the same amount to the Central Republic Company which had pledged the note to appellee. The petition recited the commission of an act of bankruptcy in that while the Company was insolvent or unable to pay its debts as they matured, there had been a receiver appointed by a state court in an action instituted by appellants Arbetman and Oppenheimer. The petition therefore prayed the adjudication of the Company as a bankrupt. At the same time, appellee prayed the entry of an order to restrain the three appellants from interfering with appellee or prosecuting it for contempt of the state court for any alleged violation of a certain order of that court in the fraud suit in which Ballis was appointed receiver, which order purported to restrain all creditors of the Company from proceeding with any action affecting the property belonging to the Company until further order of the court.
Thus these appellants were brought into the bankruptcy proceedings by appellee's petition for a restraining order against them. In response they filed what purported to be the joint and several answer of the Republic Company by its receiver, Ballis, and appellants Arbetman and Oppenheimer. This answer was directed to the bankruptcy petition filed by appellee rather than to the petition for a restraining order in fact, on subsequent argument counsel for appellants conceded that the pendency of the state court proceeding in no way prevented duly qualified creditors from proceeding against the same party in bankruptcy. Appellants, however, denied the right of appellee to the relief sought by it in the bankruptcy court, claiming, in their answer to the petition for the restraining order, that the bankruptcy petition should be dismissed for the following reasons:
1. Appellee's statements that it was a creditor and held a judgment against the alleged bankrupt were absolutely false and untrue.
2. The allegation that there were less than 12 creditors was untrue, there being over 100 creditors, some of whose names and addresses were given on an attached list. (This list contained the names and addresses of a number of persons who were said to hold outstanding travelers' checks, dividend checks, and cashiers' checks of the National Bank of the Republic, payment of which was alleged to have been assumed by the Company, and other dividend, cashiers' and miscellaneous checks of the National City Bank of Chicago, payment of which was alleged to have been assumed by the Company. Nothing was contained in the answer to show upon what ground this alleged assumption was predicated.)
3. The petition was defective for lack of proper verification by the Reconstruction Finance Corporation.
4. The bankruptcy petition was not filed in good faith, but only for the purpose of divesting the state court of its jurisdiction in the equity suit theretofore filed. Moreover, petitioner itself had prayed the same relief in a similar suit filed in a federal court, asking for the appointment of a receiver, hence petitioner had no right to ground its petition in bankruptcy on the appointment of a receiver.
5. Petitioner has no provable claim upon which to predicate a bankruptcy petition, for the reason that appellants have moved to vacate the judgment entered in the stockholders' liability suit upon which one of the petitioner's claims was predicated, while the other is not liquidated, and moreover, the petitioner is not the legal owner of it, but merely the pledgee.
6. The alleged bankrupt is not insolvent nor unable to meet its debts as they mature.
Appellants were allowed to file this answer which also prayed that appellee's petition in bankruptcy be dismissed and that the relief asked by appellee in its petition for a restraining order should be denied. They also prayed that this answer stand as their joint and several answer to controvert the jurisdictional allegations of the creditor's petition, and demanded a jury trial of such controverted questions. Hearing was had on the petition for a restraining order, during the course of which appellants admitted that they had no right to restrain creditors from proceeding in a bankruptcy action, but they further stated that they desired leave to contest the bankruptcy petition. The court seems to have assumed that they had an absolute right to do so. Thereafter, appellee moved to strike appellants' answer to its petition for a restraining order on *170 the ground that the receiver appointed by the state court, and two alleged stockholders of the Republic Company were not rightful parties in determining the status of the alleged bankrupt, and that they should, therefore, be denied leave to intervene in the cause for the purpose of determining that status. Although counsel for the Republic Company was present at the various hearings, and was told when the answer of the Company, if any, must be filed, no answer was ever filed by it to the bankruptcy petition.
Four hearings were had prior to the entry on June 21, of the orders complained of. During this period, two other creditors asked and were granted leave to file intervening petitions and join in the petition of appellee for adjudication of the Republic Company in bankruptcy. As to one of these petitions, filed by trustees under the will of Paul P. Llewellyn, no question is raised. Appellants challenge the other, filed by Albers, Receiver of the Central Republic Trust Company, on the ground that it was predicated on a contingent claim rather than a fixed, liquidated claim. The claim arose out of the note for $500,000 set forth by appellee as the basis for the second claim alleged by it in its creditor's petition, held by it as pledgee. Albers' intervening petition recites that he holds the note payable to the Central Bank and by it pledged to appellee, and that there is due on it, under the three-party agreement set forth by appellee, $57,304, that being the amount the Central-Illinois Company was ready, willing and able to pay.
The first question raised by appellants is whether the stockholders and the equity receiver were proper parties to contest the involuntary proceeding against the corporation, as they state, "on the refusal or disqualification of its officers to interpose a defense." Section 18b of the Chandler Act, 11 U.S.C.A. § 41, sub. b, provides that the bankrupt may appear and plead to an involuntary petition within five days after the return day or within such further time as the court may allow. Prior to its enactment, creditors had also been given an absolute right to contest the petition. Stockholders and state court receivers have never had such absolute right, although it lay within the discretion of the District Court to permit them to intervene upon a proper showing. If that court felt that their participation was unnecessary and would serve no good purpose, it was its duty to deny the intervention.
It is clear from the record that the court first permitted appellants to participate under the erroneous impression that they were entitled to do so. This error is indicated by the court's statement, during the course of the first hearing, in response to counsel's statement that all he wanted was leave to file an answer, "I don't think anybody can prevent your filing an answer." This was obviously an error, and if the court granted the leave under such error, it was no error to withdraw the leave upon further consideration and determination that its action had not been required by the Statute. Hence, when the answer of the appellants was stricken, and no answer was filed on behalf of the bankrupt, the court was authorized to adjudicate the Company a bankrupt on the uncontested allegations of the petition. Section 18d of the Act provides that if a party entitled to appear and plead shall appear, within the time limited, and controvert the facts alleged in the petition, the court shall determine, as soon as may be, the issues presented by the pleadings, without the intervention of a jury except where a jury trial is given by the Act, and make the adjudication or dismiss the petition. We think it follows that where no party who is entitled to appear and plead does so, the court may determine the issues on the basis of the petition presented without permitting the other parties to intervene. Cf. In re Cook, 7 Cir., 101 F.2d 394.
While the requirement of three petitioning creditors if the total number of creditors is twelve or more, is jurisdictional, a defect in the petition as to this may be waived. See Remington on Bankruptcy (4th Ed.), Vol. 1, section 212. Such jurisdictional defect does not go to the subject matter, as do those involving residence and domicile requirements and excluding from the operation of the statute certain kinds of corporations. Cf. Denver First National Bank v. Klug, 186 U.S. 202, 22 S. Ct. 899, 46 L. Ed. 1127, and Vallely v. Northern Fire Insurance Co., 254 U.S. 348, 41 S. Ct. 116, 65 L. Ed. 297. We hold, therefore, that under the facts presented by this record, there was no error in the action of the District Court in allowing the motion to strike appellants' answer to the involuntary petition, holding the bankrupt in default for failing to file answer *171 to the petition, and adjudicating the company a bankrupt by default.
Under the record here before us, there is no duty upon us to determine whether there were in fact more than twelve creditors, or whether the third claimant was in fact eligible to join appellee as a petitioning creditor. Nor are we bound to consider appellants' assertion that appellee's petition must fall for the reason that it was based on a judgment which the two stockholder appellants had moved to set aside for fraud after the filing of the involuntary petition predicated upon it. We will say, however, that we see no merit in this argument for the reason that it is clear that at the time the petition was filed the judgment remained in full force and effect. The motion to vacate and for a new trial was not filed until after the third hearing in this case, but appellant contends that the District Court should have taken notice of it from the answer filed on June 12, and stricken for good cause on June 21, that appellants intended for reasons set forth in the answer "to move within the time allowed by law to obtain a vacation of the judgment or to file a bill of review or, if necessary, to prosecute an appeal from the judgment and that by reason thereof the foregoing judgment is not yet final." In addition, it might have taken notice of counsel's statement at the second hearing that the judgment was a "phoney" one. We think there was no error in the court's action in refusing to permit appellants to intervene to interject such issues, and that the judgment as it then stood, unappealed from and unvacated, was sufficient to serve as a basis for the involuntary petition.
Appellants complain of the entry of the order restraining them from continuing the state court proceeding for fraud against thirty individuals. It appears that while the alleged bankrupt was named a party defendant in this proceeding, no fraud was charged against it, but instead, it, and thereby its creditors and stockholders were the victims of the alleged fraud of the individuals who mismanaged it and misused its funds. If this be true, the action should inure to the benefit of the bankrupt, and should be prosecuted in its behalf under the jurisdiction of the bankruptcy court for the benefit of all its creditors. To this extent the court was correct in restraining the prosecution of the state court proceeding for the benefit of only the two stockholders who held only a 22/550,000th share in the corporation. It will be the duty of the court to determine whether the cause of action should be prosecuted for the benefit of the creditors, and if not, appellants may then petition to have the injunction modified so that they may proceed with it. We find no error in the entry of the restraining order.
Appellants complain of the appointment of a receiver. Counsel for appellee stated at the first hearing that he wanted to have a receiver appointed in order to bring the property of the bankrupt into the custody of the bankruptcy court instead of leaving it in custody of the state court where the receiver there appointed might incur charges and expenses against it. He later filed his petition for such appointment setting up reasons which appear to us to be quite sufficient. The statute, section 2, sub. a(3), 11 U.S.C.A. § 11, sub. a(3), provides that the court may appoint receivers upon the application of parties in interest, provided that it shall be satisfied that such appointment is necessary to preserve the estate or to prevent loss thereto. We cannot say that under the facts here presented the court exceeded its authority in appointing the receiver.
The last question raised by appellants is as to the taxing of stenographic charges for the various hearings as costs against them. The order taxing such costs was entered July 12. They argue first that the perfection of the appeal from the orders of June 21 removed the cause from the jurisdiction of the District Court so that it had no power to enter the order. Since this appears to us to be merely an administrative order, we are not prepared to say that upon the filing of notice of appeal by appellants, the District Court lost all jurisdiction to enter such an order. However, it is unnecessary for us to consider this phase of the question since in our opinion, the order was erroneous on the facts. It appears that at the first hearing, on appellee's petition for a restraining order against appellants, the right of the latter to participate in the proceedings was taken for granted. The court indicated that it considered that if they wished to file answer they were entitled to do so, and while counsel for appellee did, at that first hearing, state at one time that he thought counsel for the two stockholders had no right to contest the petition, and again, that appellee objected to his *172 taking part, that he was not a proper counsel, representing only ten shares out of 550,000, nevertheless, he did not at that time call the attention of the court to the fact that the statute provided for contest only by the bankrupt itself. It was not until the day of the third hearing that appellee filed its motion to strike the answer of appellants on the ground that they were not entitled to participate. Had the question been raised at the first hearing, the court could have passed upon it thereby obviating the necessity of further hearings on that subject. It could then have denied leave to intervene and file the answer and proceeded to adjudicate the Company a bankrupt or dismiss the petition of appellee, as the facts warranted. Under these facts we think it was error to charge appellants with the stenographic costs of the hearings. We do not at this time pass upon the question of the court's power to do so under other circumstances.
For the reasons stated in the opinion, the order of June 21 is affirmed, and that of July 12 is reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611533/ | 166 N.W.2d 719 (1969)
Blanche RUDE, Respondent,
v.
Ervin RUDE, Appellant.
No. 41785.
Supreme Court of Minnesota.
March 28, 1969.
Padden, Dickel & Johannson, Crookston, for appellant.
Gordon H. Smith, Fosston, Nilles, Oehlert, Hansen, Selbo & Magill, and Duane H. Ilvedson, Fargo, N. D., for respondent.
OPINION
PER CURIAM.
This is a motion to dismiss an appeal from an order denying a motion for summary judgment certified to this court pursuant to Rule 103.03(i), Rules of Civil Appellate Procedure, as a case involving doubtful and important issues.
It appears that plaintiff-respondent sued for injuries sustained while trying to lead a pony owned by defendant-appellant back into an enclosure from which it had escaped. The trial court's order certifying the matter to this court expressed the view that the law is indefinite as it relates to the "standard of care required by a plaintiff in the act of rescuing personal property."
We have held that the function of the rule permitting certification of questions by the trial court should not be to submit general questions of whether the evidence does or does not establish issues which involve a mixed question of fact and law to be decided by the jury, aided by the advice of the trial court as to the law of the case. The rule should not be used to submit hypothetical or speculative questions or to secure an advisory opinion. State v. Moller, 276 Minn. 185, 149 N.W.2d 274; 5 Am.Jur.(2d) Appeal and Error, § 1026. We fail to see how the question certified can be considered as either important or doubtful. The cases cited in 13B Dunnell, Dig. (3 ed.) § 7025, deal with the subject of negligence as it relates to an attempt to save life or property. Among them is Henjum v. Bok, 261 Minn. 74, 77, 110 N.W.2d 461, 463, which states:
"The so-called rescue doctrine does not affect the ordinary standard of care. The doctrine merely indicates that, where an attempt is being made to save human life or property, a reasonably prudent person will take greater risks than might ordinarily be justified. Similarly, the emergency rule is only an application *720 of the reasonable man standard of care to a particular situation."
Since the standard of care required to be exercised by one in the act of rescuing property has already been fully stated, there is nothing for this court to consider or review. The appeal is accordingly dismissed and the case is remanded to the district court.
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611535/ | 841 So.2d 481 (2002)
Verena VONMITSCHKE-COLLANDE and Claudia Miller-Otto, Appellants,
v.
Thomas KRAMER, et al., Appellees.
No. 3D02-2133.
District Court of Appeal of Florida, Third District.
December 18, 2002.
Rehearing and Rehearing Denied March 7, 2003.
Hunton & Williams and Vance E. Salter, Miami, for appellants.
Hogan & Hartson and Carol A. Licko and Parker D. Thomson, Miami, for appellees.
Before FLETCHER and RAMIREZ, JJ., and NESBITT, Senior Judge.
Rehearing and Rehearing En Banc Denied March 7, 2003.
ON MOTION FOR REHEARING
FLETCHER, Judge.
The decision of this court, dated October 2, 2002, is withdrawn and the following is substituted therefor.
The appellants seek reversal of a trial court order which found their lis pendens to have been dissolved and to be of no force and effect.[1] We reverse.
A review of the record reveals the following relevant events:
1. On August 1, 2000, the appellants filed their lis pendens.
2. On November 10, 2000, the underlying case was dismissed. Pursuant to Rule 1.420(f), Florida Rules of Civil Procedure, the dismissal automatically dissolved the lis pendens.[2]
3. The dismissal was timely appealed.
4. On July 2, 2001 appellee Kramer sold a property in question while the appeal was pending.
5. This court reversed the dismissal and reinstated the action, issuing the mandate on December 4, 2001.
*482 6. The Florida Supreme Court denied certiorari on May 28, 2002.
We thus have a situation in which the property was sold on a date (July 2, 2001) when the underlying case was on appeal. The question before us is whether the lis pendens was effective on July 2, 2001 so as to give notice to the parties to the sale. We conclude that the lis pendens was in effect and gave notice of the underlying suit.
The Florida Supreme Court made it abundantly clear that when an underlying case's dismissal is reversed, the accompanying lis pendens is reinstated. Anyone acquiring an interest between the time of filing of the lis pendens and its reinstatement after appellate review, takes her/his interest in the property subject to the lis pendens. Crown Corp. v. Robinson, 128 Fla. 249, 174 So. 737 (1937).[3]
We also observe that Kramer's contention that the lis pendens expired because one year had passed while appellate review was taking place is erroneous. Although Section 48.23(2), Florida Statutes (2001) sets up such a time limitation as to actions founded on instruments not "duly recorded"[4], as is the case here, section 48.23(4) provides that the one year time period is tolled during appellate review.[5]
Accordingly, the lis pendens remains as valid notice of the underlying suit and any buyer takes the property subject to the lis pendens. The trial court's order dissolving the lis pendens is reversed and the cause is remanded for further proceedings in accordance with this opinion.
NOTES
[1] The underlying action is a suit seeking, inter alia, the imposition of a constructive trust on Kramer's property.
[2] Fla.R.Civ.P. 1.420(f) reads:
"Effect on Lis Pendens. If a notice of lis pendens has been filed in connection with a claim for affirmative relief that is dismissed under this rule, the notice of lis pendens connected with the dismissed claim is automatically dissolved at the same time. The notice, stipulation, or order shall be recorded."
[3] In Crown Corp. the lis pendens was not automatically dissolved, but was dissolved by court order. Here the dissolution of the lis pendens was automatic under Fla.R.Civ.P. 1.420(f). This is a distinction without a difference. Rule 1.420(f) was amended in 1984 to provide for the automatic dissolution in order to resolve unnecessary title problems, not to create new ones. See Court Commentary to 1984 Amendment to the Rule.
[4] Section 48.23(2), Florida Statutes (2001) reads:
"No notice of lis pendens is effectual for any purpose beyond 1 year from the commencement of the action unless the relief sought is disclosed by the initial pleading to be founded on a duly recorded instrument or on a lien claimed under part I of chapter 713 against the property involved, except when the court extends the time on reasonable notice and for good cause. The court may impose such terms for the extension of time as justice requires."
[5] Section 48.23(4), Florida Statutes (2001) reads:
"This section applies to all actions now or hereafter pending in any state or federal courts in this state, but the period of time above-mentioned does not include the period of pendency of any action in an appellate court." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611561/ | 841 So.2d 390 (2003)
Charles ANDERSON, Appellant,
v.
STATE of Florida, Appellee.
No. SC95773.
Supreme Court of Florida.
January 16, 2003.
Rehearing Denied March 14, 2003.
*394 Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Appellant.
Charlie J. Crist, Jr., Attorney General, and Debra Rescigno and Melanie A. Dale, Assistant Attorneys General, West Palm Beach, FL, for Appellee.
PER CURIAM.
We have on appeal a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm the conviction and sentence.
The record reveals the following facts. In 1980, Charles Anderson married Edwina. At the time of the marriage, Edwina had a five-year-old daughter (Keinya) from a previous relationship. In 1992, the Miami police became aware that Anderson was sexually abusing Keinya. He subsequently pled to eleven counts of attempted capital sexual battery and was sentenced to probation. One of the conditions of the probation was that he have no contact with Keinya. If Anderson violated probation, he faced the possibility of life in prison.
Despite the conditions of his probation, witnesses testified that Anderson continued to have contact with Edwina and Keinya. Apparently he spent several nights a week at Edwina's house. On Wednesday, January 12, 1994, Keinya was supposed to leave her job at Publix at 6 p.m., yet she did not return home until much later. A Publix employee by the name of Patrick Allen drove Keinya home. After dropping Keinya off, Allen realized that he was being followed by an individual in another car. Allen ultimately eluded the individual. When Allen was later shown photographs of Anderson's car, he was able to verify that the car that chased him belonged to Anderson.
Two nights later, on Friday, January 14, Allen brought Keinya home again. Anderson was sitting in his car waiting for Keinya to return, and as soon as Keinya got out of Allen's car, Anderson's car darted toward Allen. Another chase ensued, and this time Allen fired several gunshots at Anderson during the chase. When Anderson returned home, he and Keinya got into a heated argument. A neighbor testified that she overheard Anderson say to Keinya, "You told him. Why was he shooting at me?" and that Keinya responded, "I didn't tell him nothing." A cousin who was present during the argument testified that Anderson hit Keinya. Keinya then grabbed a knife and said, "Let me call the police." She proceeded to dial 911, but when the operator picked up, Keinya hung up the phone. The 911 operator called back, but was unable to get an answer and therefore a police car was sent to the house. When the police arrived, both Anderson and Edwina went outside and talked to the police. Keinya locked herself in her room. Anderson and Edwina convinced the police that everything was okay and the police left. Keinya's cousin testified that after the police left, Anderson walked to the room where Keinya was hiding and said that he was going to wait in Publix for twenty-four hours that if he could not get Patrick, then he *395 would come after her. Although Keinya was supposed to work on Saturday, she did not go to work because she was scared.
Keinya did go to work on Sunday, January 16, 1994. Her time card revealed that she left work at 6:01 p.m. Allen testified that he saw Anderson's car waiting outside Publix.
On that same day, John Gowdy and Amelia Stringer were driving north on U.S. 27. Gowdy testified that he saw someone on the side of the road at approximately 7 p.m. Although it was dark at the time, Gowdy was able to see the person in the grass median between the northbound and southbound lanes. Gowdy observed the car in front of him make a U-turn and he did the same thing. Gowdy then witnessed the car in front of him swerve into the median and then back into the lane, apparently running over the person. Gowdy immediately reported the incident to the police. Gowdy described the suspect's car as a blue/gray four-door. Anderson's car is dark blue with a gray top and has two doors. Stringer, who was in the car with Gowdy, saw the person in the median lie down in the grass and then sit up. She also witnessed the car in front of them run over the person in the median.
When the police arrived at the scene, they discovered blood on the pavement, some clothing items, and a name tag which read "Keinya." Items were found in the northbound lane and in the median near the southbound lane. Four tire impressions were taken from the scene. Keinya's dead body was found on Monday, January 17, by a fishing camp in the Everglades.
About a week after the murder, Anderson voluntarily agreed to be interviewed by the police. At one point during the interview, Anderson responded that he did pick up Keinya from work on Sunday night, but that he did not kill her. Within seconds of making this statement, Anderson recanted, claiming that he was being facetious. Anderson consented to a search of his car, although the police already had a warrant. The police took impressions of the car's tires. An expert testified that of the four impressions taken from the scene, one could not have been made by Anderson's tires, one was consistent with Anderson's tires, and the other two impressions were of no value. There was damage to Anderson's radiator, the splash guard was cracked, and an area under the car appeared to have been wiped. Another expert testified that grease marks found on Keinya's jacket could have been made by two coils from underneath Anderson's car. That expert also stated that two other coils from Anderson's car could not have made the grease marks. Several spots in and under Anderson's car were suspected to have blood. There was a positive presumptive result from the car's splash pan, but the police could not get any DNA results from this spot, meaning that it could have been human blood or animal blood. However, a spot of blood on Anderson's car seat matched Keinya's DNA. Finally, a number of fibers were found under Anderson's car. An expert testified that one of the fibers was consistent with fibers from Keinya's pants. Twelve other fibers taken from the car did not match Keinya's clothing.
During the trial, the parties agreed to the following stipulation, which was read to the jury:
It has been stipulated between parties that Keinya Smith is dead. That she died on January 16, 1994. And that she died as a result of blunt force trauma inflicted by a motor vehicle. It is further stipulated between parties that the items of evidence found on U.S. 27 by Lieutenant Vaughn and Detective Foley, including jewelry, blood stains, name *396 tags and hair and scalp, originated from Keinya Smith.
The State also presented the testimony of Anderson's probation officer, Lisa White, who stated that Anderson was on probation for eleven counts of attempted capital sexual battery on Keinya. White further stated that shortly after Keinya's body was found, Anderson contacted her and asked whether he could have his family back now that Keinya was dead.
Anderson did not put on any evidence during the guilt phase. At the conclusion of the guilt phase, the jury convicted Anderson of first-degree murder.
During the penalty phase, the State presented the testimony of the medical examiner, who testified that in addition to various other injuries, Keinya's neck was fractured when she was run over by the car, and the fractured neck led to rapid unconsciousness and death. The medical examiner stated that survival following the incident was seconds to minutes at the most. State witness Mitzy Clark testified that on the night of the murder, she was driving on U.S. 27 when she saw a person lunge at her car, trying to get Clark to stop. Clark stated that she did not stop because she was scared. The State also presented the testimony of Edwina, who described the circumstances of Keinya's sexual abuse. Edwina made it clear that Anderson not only attempted, but actually completed the crime of sexual battery:
Q: Did [Keinya] tell you that [Anderson] inserted his penis inside her vagina on several occasions?
A: Yes.
Edwina also testified that on the Friday before the murder, Anderson said, "I'm going to prison, but somebody is going to be dead, I bet you that." Finally, Edwina stated that Anderson called her on the day of the murder, asked if Keinya was working that day, and asked what time Keinya got off work. Officer Estopinan, the officer who investigated the previous sexual batteries, also testified about the circumstances of Keinya's sexual abuse.
The defense called a number of penalty-phase witnesses who described Anderson's childhood and subsequent addiction to drugs. Anderson also testified on his own behalf. During the course of his testimony, Anderson admitted that he sexually abused Keinya.
The jury ultimately recommended death by an eight-four vote. The trial court found the following five aggravators: (1) Anderson had a previous conviction of a violent felony (the attempted sexual batteries), (2) the murder was committed while engaged in the commission of a felony (kidnapping), (3) the murder was committed to avoid arrest, (4) the murder was heinous, atrocious, or cruel, and (5) the murder was committed in a cold, calculated and premeditated manner without any pretense of legal justification. The trial court concluded that Anderson failed to establish the statutory mental mitigators. The court found the following nonstatutory mitigators: (1) Anderson suffers from sexual dementia (minimal weight), (2) Anderson confessed to his sexual relationship with Keinya during drug addiction counseling (medium weight), (3) Anderson suffered from drug addiction (minimal weight), (4) Anderson comes from a good family (minimal weight), (5) Anderson was a good child (minimal weight), (6) Anderson helped Edwina take care of his three natural children (minimal weight), (7) Anderson loves his children (minimal weight), (8) Anderson sends gifts to his kids while in custody (minimal weight), (9) Anderson is a very caring person (minimal weight), (10) Anderson served in the Coast Guard for five years (minimal weight), (11) society would be protected by Anderson serving a life sentence (minimal weight), *397 (12) Anderson earned money playing the market while in custody and therefore can still be a productive member of society (minimal weight), and (13) Anderson has a gift for poetry and can help men who end up in prison (minimal weight). The trial court sentenced Anderson to death.
Anderson presents thirteen claims in this appeal.[1] We address the guilt-phase claims first. In his first claim, Anderson argues that the evidence is insufficient to support first-degree murder. The trial judge instructed the jury on both premeditated and felony murder, and the jury returned a general verdict of first-degree murder. As explained in issue ten below, we agree with Anderson that the judge erred in denying his motion for judgment of acquittal as to felony murder premised on a kidnapping theory. Although the trial judge erred in this regard, we do not reverse Anderson's first-degree murder conviction because the judge correctly denied the motion as to premeditation. See Mungin v. State, 689 So.2d 1026, 1029 (Fla.1995).
A motion for judgment of acquittal should be granted in a circumstantial evidence case if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. See Gore v. State, 784 So.2d 418 (Fla.2001). After reviewing the record in this case, we conclude that the State presented sufficient evidence of premeditated murder and there is no reasonable hypothesis to the contrary. A witness testified that Anderson threatened Keinya two days prior to her murder. Other witnesses that observed the incident explained to the jury the manner in which the suspect's car performed a U-turn and proceeded to mow down Keinya as she lay in the median. Forensic evidence linked Anderson's car to the scene. Thus, although the trial court erred in denying the motion for judgment of acquittal as to felony murder, we find this error harmless since the jury properly convicted Anderson of first-degree murder under the theory of premeditation. See Mungin, 689 So.2d at 1029.
In his second claim, Anderson asserts that the trial court erred in admitting collateral bad act evidence. Prior to trial, Anderson moved to prevent the State from introducing evidence regarding his probation for the attempted capital sexual batteries on Keinya. The State argued that this evidence was relevant for two reasons. First, the State claimed that this evidence was necessary to explain the entire context of the crime to the jury. Second, the State contended that the convictions were necessary to establish motive. The trial court denied Anderson's motion. During the guilt phase of the trial, State witness Lisa White, Anderson's probation officer, testified that Anderson was on probation for *398 eleven counts of attempted sexual battery on Keinya.
Section 90.404(2)(a), Florida Statutes (1993), provides:
Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.
Anderson acknowledges that the fact that he was on probation was admissible. He claims, however, that it was unnecessary to inform the jury about the underlying crime. He argues that the attempted sexual battery convictions were overly prejudicial and became a feature of the case. Anderson relies on this Court's decision in Garron v. State, 528 So.2d 353 (Fla.1988), to support his position. In Garron, a first-degree murder defendant challenged testimony concerning previous sexual misconduct:
The next issue raised by appellant involves the admission of certain "similar fact" evidence pursuant to the Florida Evidence Code, section 90.404(2), Florida Statutes (1981), and Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). The evidence admitted includes the testimony of Linda Garron that appellant had previously engaged in alleged sexual misconduct with his two stepdaughters. This activity took place more than two years prior to the killings. The state claims that the evidence is relevant to show appellant's motive for killing his wife and stepdaughter in that he was attempting to prevent his wife from taking the stepdaughters away to avoid his improper advances.
. . . .
In closely examining similar fact evidence, one critical issue of concern is whether the evidence is being used to prove any relevant issue besides character. Here, the state's theory is that the evidence of the alleged misconduct is relevant to appellant's motive for the murders. The focal point of analysis is whether there is actually any similarity between the alleged misconduct and the crime for which appellant stands trial. That is, does the "similar" fact bear any logical resemblance to the charged crime. The state claims that Linda Garron's testimony that prior to the shootings the appellant touched her thigh sufficiently establishes the requisite connection between the prior bad acts and the present crime. We believe that this "connection" is far too tenuous to support the admission of the similar fact evidence. Even if there were similarities between the events, they are in no way relevant to show motive.
In Williams, the similar fact evidence involved evidence that the defendant, who was charged with rape, had previously committed the same act in precisely the same manner. Williams had hidden in the back seat of the victim's car, waited for the victim to return, and raped her. The state produced a witness who testified that Williams waited in her car and committed the identical act in the same parking lot at about the same hour as the attack on the victim. This Court allowed the evidence to be admitted under the theory that it showed Williams' plan or pattern of operation. In this case, however, the alleged sexual misconduct in no way resembles the act for which appellant was convicted. Moreover, the prior acts are far too remote in time to support any allegation that they could have provided appellant with a motive for the killings.
*399 As such, the only possible issue for which this evidence could be used is to prove character and propensity. As the statute states, these issues are not valid grounds for the admission of similar fact evidence. A danger of unfair prejudice arises if alleged acts of sexual misconduct are put before the jury when such evidence is not relevant to prove a material issue. This danger renders the evidence inadmissible. Here, the inflammatory effect of this type of evidence played a role in the conviction of appellant.
Garron, 528 So.2d at 357-58 (footnote omitted). We find Garron distinguishable from the present case. Contrary to the evidence in Garron, the contested evidence in the present case was not too remote or irrelevant. Rather, the evidence demonstrated Anderson's ongoing possessive relationship with Keinya. This was bolstered by Andronda Brown's testimony that Anderson would often screen Keinya's incoming telephone calls. When considered together, all of this evidence helped explain Anderson's motive for the murder. In this regard, the present case is similar to our recent decision in LaMarca v. State, 785 So.2d 1209 (Fla.2001). In that case, the defendant murdered his daughter's husband and proceeded to rape his daughter (Tonya) hours later. We rejected the defendant's claim that the trial court erred in admitting the evidence regarding the rape:
In the present case, the trial court did not abuse its discretion in admitting two pieces of inextricably intertwined evidence: (1) testimony that appellant told the victim that he had done something to Tina LaMarcaappellant's stepdaughterthat caused her to cease living with him; and (2) testimony that appellant raped Tonya. The two pieces of evidence must be viewed together. The first piece of disputed testimony consisted of Tina affirming that there was an "incident" between appellant and herself and her testimony that what appellant "had done" to her prompted her to stop living with him. The appellant had allegedly raped Tina, although that was not expressly stated to the jury. Tina's testimony was relevant because it puts into context the victim's statement to appellant to keep away from Tonya. Absent the nexus to the "incident" between appellant and Tina, the jury would have been left wondering why the victim told appellant to stay away from Tonya. Thus, Tina's testimony was relevant to prove motive and premeditation, and was focused and limited.
The second part of the contested testimony was provided by Tonya, who stated that after appellant and the victim left the bar, appellant returned alone and told her that she had to meet the victim at appellant's relative's house. They drove there and found the house unoccupied, and appellant raped her. Afterwards, appellant asked Tonya to leave Florida with him and told her that her feelings for the victim would not last.
Evidence that appellant raped his daughter and did something to cause Tina to move out puts into context appellant's statements about his wanting Tonya to leave Florida with him and that her feelings for her husband (the victim) would not last. The testimony is therefore relevant to show appellant's motive in killing the victimto have Tonya for himself. If the testimony as to the rape and Tina being forced to move out by appellant is omitted, you simply have a father asking his daughter to leave Florida and stating that her feelings for her husband would go away. Thus, absent the testimony of Tonya and Tina relative to appellant's actions, it *400 would not be clear that the father desired his daughter in a way that would exclude his son-in-law and why the son-in-law wanted to separate appellant and Tonya and told appellantjust hours before appellant killed himthat he could not be near his daughter because he knew of the "incident" with Tina. Thus, appellant's incestuous desire for his daughter and the victim's demand that appellant stay away are relevant to prove appellant's motive to kill his son-in-law. The motive contradicts the defense strategy of attempting to prove that Tonya killed her husband and tends to prove appellant's premeditation. Thus, the trial court did not abuse its discretion in admitting the evidence.
LaMarca, 785 So.2d at 1213. Similarly, we conclude that the trial court in the instant case did not err in permitting White to testify that Anderson was on probation for eleven counts of attempted sexual battery on Keinya.
Finally, Anderson claims that the trial court erred in admitting evidence regarding (1) the alleged incident in which Anderson chased Patrick Allen in his car and (2) the alleged incident in which Anderson struck Keinya. We find no merit to either of these arguments, as both incidents explained the nature of Anderson's relationship with Keinya just prior to the murder and further put into context the reason for Anderson's threatening remarks toward Keinya. Both incidents were therefore relevant to prove motive and were inextricably intertwined with the murder.
In claim three, Anderson alleges error concerning the testimony of Kevin Vaughn, an investigator for the Florida Highway Patrol. Lieutenant Vaughn testified as follows:
Vaughn: So I knew I had another crime scene on my hands and it wasn'tit is not typical that you would find evidence on both sides of the road.
Defense: I object to what is typical or not typical, Judge.
Court: You want to lay a foundation for that? I will sustain it at this time.
State: Do you have any training in traffic homicide investigations?
Vaughn: Yes, I do.
State: How much training do you have in that area?
Vaughn: I attended aI have all the certificates everywhere I attended schools at.
State: Would you just tell me what those are?
Vaughn: Okay. Besides having the basic forty hour traffic accident investigation in the Florida Highway Patrol Academy I also attended an advanced traffic homicide investigation school. Excuse me just a minute while I go through these.
Defense: My objection is based on relevancy, not on lack of a predicate. I think it is irrelevant what is typical or atypical. Mr. Anderson's on trial here for his life. It doesn't matter what goes on in other cases. It matters what is going on in thisthis case.
Court: Overruled. I will allow him to testify.
Vaughn: It is not typical we would find evidence of a hit and run on both sides of the road ninety feet apart, and essentially where the evidence is all southbound, there is evidence also that is north of the southbound evidence. So how would that evidence get there unless something had transpired previously? And it appeared that the evidence that we located and found was connected with the evidence that we found southbound. So at that time I felt that maybe this was *401 not a traffic hit and run, a traffic case. I thought it wasSo Iit was anot a traffic homicide at this point. I didn't think it was a traffic homicide, because of the circumstances of the evidence being in different locations so far apart in different directions. So I felt that we needed the assistance of the Broward Sheriff's Office homicide unit to see if we could get a homicide detective out there.
Anderson claims that Vaughn's testimony regarding what is typical was improper. Anderson relies on cases which hold that evidence regarding past crimes that did not involve the defendant cannot be introduced to demonstrate that the defendant committed the crime at issue in the present case. For example, in Nowitzke v. State, 572 So.2d 1346, 1355-56 (Fla.1990), this Court held that it was improper for the State to elicit testimony from a police officer about the criminal behavior pattern of drug addicts. However, the instant case is distinguishable from Nowitzke. Vaughn did not offer any testimony regarding past crimes or criminal behavior patterns. Rather, Vaughn was giving his opinion, based on his experience, that hit and runs are not normally found on both sides of the road. This testimony was relevant to establish that the victim's death was not the result of an accident. Hence we find no merit to this claim.
In Anderson's fourth claim, he argues that the trial court erred in allowing nonresponsive opinion testimony. This claim concerns the following testimony from witness Amelia Stringer:
State: What did you see next?
Stringer: Well, while John was waiting to gethe was driving. While he is waiting to get back onto U.S. 27 to go south, I looked out the back window and I sawI didn't know who it was. But I saw this person kind of sitting up, like they arelike if you were laying down and you are sitting yourself up.... So I saw that out of the back passenger window. And then as we were getting ready to get in line next toyou know, get in between traffic, like waiting for no cars to come, is when I saw this car in front of us run over whoever that was that was there trying to get up. And that surprised me. It shocked me. And II said, you know, "They ran over them." And the car that ran over that person continued. And again, traffic is still going, so that the car got off ofout of traffic and ran over this person and then got back in traffic. And that is what was shocking, because the other cars didn't blowor they didn't have to swerve or stop. And to me thatthat made it that it wasn't an accident, that it was intentional, becauseand I am only using myself as an example
Defense: I object as non-responsive.
State: I asked her what happened next....
Court: I am going to allow it.
(Emphasis added.) On appeal, Anderson claims that Stringer gave impermissible opinion testimony regarding the intent of the driver of the vehicle. In response, the State argues, and we agree, that this issue has not been preserved for review. "In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved." Tillman v. State, 471 So.2d 32, 35 (Fla.1985). At trial, Anderson objected to the testimony as being nonresponsive. On that ground, the trial court correctly overruled the objection. Anderson did not assert at trial that the testimony was improper *402 opinion testimony. Therefore, he is barred from raising this argument on appeal.
In claim five, Anderson asserts that the trial court erred in admitting two photographs during the guilt phase. Both photographs depicted Keinya's body when it was found by the fishing camp in the Everglades. The first photograph shows Keinya's bare buttocks and the second shows Keinya only wearing a bra. Anderson claims that neither photograph was relevant given the stipulation that Keinya died as a result of blunt force trauma inflicted by a motor vehicle. Anderson further claims that the photos were prejudicial because they injected a sexual element into the case.
Photographs are admissible to the extent that they fairly and accurately establish a material fact and are not unduly prejudicial. See Pangburn v. State, 661 So.2d 1182, 1188 (Fla.1995). Absent a clear showing of abuse of discretion by the trial court, a ruling on admissibility of such evidence will not be disturbed. See Gudinas v. State, 693 So.2d 953, 963 (Fla.1997).
Both photographs in the present case show the location and condition of Keinya's body when it was found. See Jones v. State, 648 So.2d 669, 679 (Fla. 1994) (holding there was no error in admitting photographs that were relevant to show the condition and location of the body when discovered). The fact that Keinya's buttocks and bra were exposed does not render the photographs inadmissible. See Grey v. State, 727 So.2d 1063, 1065 (Fla. 4th DCA 1999) (holding that trial court did not err in admitting photograph depicting injuries of victim's head which extended down to include her naked breasts).
Anderson claims that the photographs were irrelevant in light of the following stipulation which was read to the jury:
I am going to read to you a stipulation. It states that it has been stipulated betweenbetween the parties that Keinya Smith is dead. That she died on January 16, 1994. And that she died as a result of blunt force trauma inflicted by a motor vehicle. It is further stipulated between the parties that the items of evidence found on U.S. 27 by Lieutenant Vaughn and Detective Foley, including jewelry, blood stains, name tags and hair and scalp, originated from Keinya Smith.
The stipulation relied on by Anderson does not apply to the first photograph because that photograph was entered into evidence prior to the stipulation. Further, despite the stipulation, the second photograph was still relevant because it showed the condition of Keinya's pants and bra after she was run over. The State later attempted to prove that the fibers from Keinya's pants and bra were found under Anderson's car. The fiber evidence was not covered by the stipulation. Hence, the trial court did not abuse its discretion by admitting the photographs.
In Anderson's sixth claim, he alleges that the trial court erred in denying his motion for mistrial that he made in response to a comment made by the State during the guilt-phase closing arguments. During Anderson's closing argument, defense counsel pointed to the fact that Anderson voluntarily spoke to the police and consented to having his car searched as proof that Anderson was not guilty ("he didn't do anything wrong; he had nothing to hide"). The prosecutor's alleged improper drug dealer comment was made in response to defense counsel's argument:
The problem becomes, if you refuse to go to the police station, more attention is drawn to you, because as we try to *403 analyze the situation, "Well, that is how a guilty person would act, so I got to go. Oh, they want to look at my car." How many drug traffickers have you heard about that say "Go ahead, search my car", as they are driving kilos of cocaine out of Miami
Anderson objected, claiming the comment referred to matters outside the evidence. The court sustained defense counsel's objection and instructed the jury to disregard the comment. Anderson argues on appeal that the trial court should have granted his motion for mistrial.
A ruling on a motion for mistrial is within the trial court's discretion. See Hamilton v. State, 703 So.2d 1038, 1041 (Fla.1997). The use of a harmless error analysis under State v. DiGuilio, 491 So.2d 1129 (Fla.1986), is not necessary where the trial court recognizes the error, sustains the objection, and gives a curative instruction. See Goodwin v. State, 751 So.2d 537, 547 (Fla.1999). Rather, the correct appellate standard of review is whether the trial court abused its discretion in its denial of a mistrial. See id. A mistrial is appropriate only where the error is so prejudicial as to vitiate the entire trial. See Hamilton, 703 So.2d at 1041.
In the present case, we find that the trial court did not abuse its discretion in denying Anderson's motion for mistrial. It cannot be said that the prosecutor's comment vitiated the entire trial. See Spencer v. State, 645 So.2d 377, 382-83 (Fla.1994) (motion for mistrial denied even though the prosecutor referred, in closing argument, to a fact that was not in evidence and that had been ruled inadmissible by the court; prosecutor's single comment that the victim was carrying a rifle around her house because she was afraid of the defendant did not deprive the defendant of a fair trial); Pope v. Wainwright, 496 So.2d 798, 803 (Fla.1986) (comment outside the evidencethat the defendant had a preference for deathwas clearly improper, but standing alone or read in combination with other improper comments cannot be said to have unduly affected the jury's weighing process).
Anderson also complains about a number of other comments made by the prosecutor during his closing guilt-phase argument. Anderson did not object to any of the alleged improper comments and therefore he must resort to claiming fundamental error, defined as error that reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error. See Keen v. State, 775 So.2d 263, 279 (Fla.2000). After considering each of the comments, we find that none of them amounted to fundamental error. See Breedlove v. State, 413 So.2d 1, 8 (Fla.1982) ("Wide latitude is permitted in arguing to a jury."); Thomas v. State, 326 So.2d 413, 415 (Fla.1975) ("[C]omments of counsel in the progress of a trial before a jury are controllable in the judicial discretion of the trial court, and an appellate court will not interfere with the exercise of such discretion unless a clear abuse thereof has been made to appear.").
We have also reviewed the State's entire closing argument, with focus given to all of the preserved and nonpreserved alleged improper comments. As this Court stated in Card v. State, 803 So.2d 613, 622 (Fla.2001), "We do not examine allegedly improper comments in isolation. Rather, the Court examines the totality of the errors in the closing argument and determines whether the cumulative effect of the numerous improprieties deprived the defendant of a fair ... hearing." With this in mind, we conclude that the alleged improper comments, taken both individually *404 and collectively, did not deprive Anderson of a fair trial.
In his seventh claim, Anderson argues that the trial court erred in permitting the State to proceed on the theory of felony murder when the indictment only charged first-degree murder. The State brought up felony murder for the first time during the charge conference and Anderson argues that he was prejudiced by a lack of notice. Anderson acknowledges that this claim was decided adversely to him in Knight v. State, 338 So.2d 201, 204 (Fla.1976). See also Kearse v. State, 662 So.2d 677, 682 (Fla.1995). He offers no valid reason for receding from Knight. Hence there is no merit to this claim.
After reviewing all of the evidence in the record, we find that there is competent, substantial evidence to support Anderson's conviction for first-degree murder. The remainder of the alleged claims of error concern the penalty phase.
In claim eight, Anderson complains about several remarks made by the State during its closing penalty phase argument. Anderson acknowledges that he did not object to any of the comments. Regardless of the lack of objection, he claims that the comments rose to the level of fundamental error. We disagree. As we did in issue six, we have considered all of the alleged improper penalty-phase comments to determine whether the cumulative effect of the comments deprived Anderson of a fair penalty phase hearing. We find that the alleged improper comments did not compromise the integrity of the judicial process.
In Anderson's ninth claim, he alleges that the trial court erred in admitting three photographs during the penalty phase. The first shows Keinya's skull, the second shows Keinya's back and thighs, including her buttocks, and the third shows Keinya's knees, pelvic area, and stomach. The photographs were taken at the medical examiner's office. As he did in claim five, Anderson argues that this introduced a sexual element into the case.
As set forth in the analysis in issue five, photographs are admissible to the extent that they fairly and accurately establish a material fact and are not unduly prejudicial. The photographs in question were all relevant during the penalty phase. All of the photographs helped explain the nature of Keinya's injuries and were therefore relevant to establish HAC. Additionally, the photograph of Keinya's skull was utilized by the State to support the finding that the murder was committed in the course of felony (kidnapping)that Keinya jumped out of Anderson's car, which resulted in an injury to her skull, consistent with the hair and scalp fragments found on the northbound lane. Thus, the trial court below did not abuse its discretion in admitting the photographs.
In claim ten, Anderson maintains that the evidence did not support the aggravating circumstances found by the trial court in the sentencing order. A trial court's ruling on an aggravating circumstance will be sustained on review as long as the court applied the right rule of law and its ruling is supported by competent, substantial evidence in the record. See Almeida v. State, 748 So.2d 922, 932 (Fla.1999). We address each of the aggravating circumstances in turn.
1. That the Murder Was Committed to Avoid Arrest
In Consalvo v. State, 697 So.2d 805 (Fla.1996), this Court stated the application of this aggravator as follows:
Typically, this aggravator is applied to the murder of law enforcement personnel. However, the above provision has been applied to the murder of a witness *405 to a crime as well. In this instance, "the mere fact of a death is not enough to invoke this factor.... Proof of the requisite intent to avoid arrest and detection must be very strong in these cases." In other words, the evidence must prove that the sole or dominant motive for the killing was to eliminate a witness. Mere speculation on the part of the state that witness elimination was the dominant motive behind a murder cannot support the avoid arrest aggravator. Likewise, the mere fact that the victim knew and could identify defendant, without more, is insufficient to prove this aggravator.
Additionally, a motive to eliminate a potential witness to an antecedent crime can provide the basis for this aggravating circumstance. And, it is not necessary that an arrest be imminent at the time of the murder. Finally, the avoid arrest aggravator can be supported by circumstantial evidence through inference from the facts shown.
Id. at 819 (citations omitted). Applying this standard to the present case, we find that the State has not established the avoid arrest aggravator beyond a reasonable doubt. At the time of the murder, Anderson was on probation, and one of the conditions of his probation was that he have no contact with Keinya. However, Anderson ignored this condition and had frequent contact with Keinya. The State's theory was that Anderson murdered Keinya in order to avoid being sent to prison for violating his probation, as Keinya could turn Anderson in at any time based on his contact with her. While this theory is possible, it is also possible, based on the record, that Anderson simply murdered Keinya out of anger pursuant to their dispute on Friday, January 14, or that the murder stemmed from Anderson's possessive relationship with Keinya. The State has failed to establish that the "sole or dominant motive" for the murder was to eliminate Keinya as a witness or to avoid arrest.
2. That the Murder Was Committed in the Course of a Felony
The State has also failed to establish that the murder was committed during the course of a felony. The State's theory of this aggravator was that Anderson kidnapped Keinya prior to murdering her. To establish this aggravator, the State needed to prove beyond a reasonable doubt each of the elements of kidnapping.[2] The State has failed to do so in this case.
First, the State failed to establish that Keinya was abducted against her will. The State's theory was that Anderson picked up Keinya from work on Sunday, January 16, 1994. Patrick Allen testified that he saw Anderson outside of Publix on that day. However, the record also establishes that Anderson would often pick up Keinya from work and therefore it would not be unusual for Keinya to get in Anderson's car willingly.
Further, the trial court's order states the following:
It is clear that this ride turned against Keinya Smith's will when she jumped out of the defendant's moving car. She *406 jumped hitting the back of her head on the pavement with such force as to leave her scalp and hair on the pavement. She then made her way across the median to the southbound lane and attempted, without success to flag down Mitzi Clark's van. The evidence strongly suggests Keinya Smith was not pushed out of the defendant's car, but jumped out The evidence further shows she made her way across the median, attempting to get away from the defendant after she jumped out of his moving car.
(Emphasis added.) Contrary to the trial court's finding, there is no evidence in the record to indicate whether Keinya jumped out or was pushed out. The State argued that Anderson was driving Keinya to a location where he could kill her and that Keinya must have realized this and therefore jumped out. But there was no evidence presented to support this theory. It is just as likely that Anderson's plan was to push Keinya out of the car and then run her over, or that Anderson and Keinya simply got into an argument which ended in her being pushed out of the car. Since the State failed to prove this aggravator beyond a reasonable doubt, the trial court erred in finding this aggravator.
3. That the Murder Was Cold, Calculated, and Premeditated
In order to prove the existence of the CCP aggravator, "the State must show a heightened level of premeditation establishing that the defendant had a careful plan or prearranged design to kill." Bell v. State, 699 So.2d 674, 677 (Fla.1997). There is competent, substantial evidence in the record to support CCP in this case. Keinya's cousin testified that two days before the murder, Anderson said "he was going to wait in Publix for 24 hoursif he can't get Patrick, then he's coming after her (Keinya)." Edwina testified that on the same night, Anderson said that "he was going to prison, but someone was going to be dead, I bet you that." Edwina also testified that she spoke to Anderson on the day of Keinya's murder and Anderson asked whether Keinya had gone to work that day and asked what time she would get off. Hence, there is evidence in the record that Anderson had a prearranged designed to kill Keinya at least 48 hours prior to her death.
4. That the Murder was Heinous, Atrocious, or Cruel
In order for HAC to apply, the murder must be conscienceless or pitiless and unnecessarily torturous to the victim. See Hartley v. State, 686 So.2d 1316,1323 (Fla. 1996). A finding of HAC is appropriate only when a murder evinces extreme and outrageous depravity as exemplified either by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the suffering of another. See Cheshire v. State, 568 So.2d 908, 912 (Fla.1990).
The medical examiner testified that in addition to various other injuries, the victim's neck was fractured, and the fractured neck led to rapid unconsciousness and death. The medical examiner stated that survival following the accident was seconds to minutes at the most. Based on the record in this case, we find that the murder was conscienceless, pitiless, and unnecessarily torturous.
5. That the Defendant Had Been Convicted of a Prior Violent Felony
During the penalty phase, Edwina testified regarding the circumstances of Keinya's sexual abuse. Edwina made it clear that Anderson not only attempted, but actually completed, the crime of sexual battery on Keinya:
*407 Q: Did [Keinya] tell you that [Charles] inserted his penis inside her vagina on several occasions?
A: Yes.
Officer Estopinan, the officer who investigated the previous sexual batteries, also testified about the circumstances of Keinya's sexual abuse. Anderson contends that since he pled to attempted sexual battery, it was error to permit Edwina and Officer Estopinan to describe the details of a completed crime. To support his position, Anderson relies on Donaldson v. State, 722 So.2d 177 (Fla.1998). In that case, the State sought to establish the prior violent felony aggravator by presenting evidence regarding a previous murder for which Donaldson pled guilty as an accessory after the fact. The State tried to prove that Donaldson was actually a principal to the previous murder. On appeal, this Court held that the trial court erred in admitting and considering the evidence regarding the previous murder. We concluded, as a matter of law, that a conviction for accessory after the fact to a crime of violence may not be used as a vehicle to implicate the defendant as a principal in the prior underlying crime of violence under section 921.141(5)(b), Florida Statutes (1993).
Donaldson, however, is distinguishable from the present case. Anderson was not convicted as an accessory after the fact to the sexual batteries; rather, Anderson was convicted of eleven counts of attempted sexual battery. Although Anderson argues that attempt crimes can never qualify as prior violent felonies, this Court has never made such a finding. Whether a crime constitutes a prior violent felony is determined by the surrounding facts and circumstances of the prior crime. See Gore v. State, 706 So.2d 1328, 1333 (Fla. 1997). Hence, the trial court did not err in permitting the State to present evidence regarding the details of the attempted sexual batteries. Further, based on this evidence, the trial court did not err in concluding that the attempted sexual batteries qualified as prior violent felonies under section 921.141(5)(b), Florida Statutes (1993).
In conclusion, we hold that the trial court erred in finding the avoid arrest and committed in the course of a felony aggravators. Even if these aggravating factors were stricken, Anderson would not be entitled to relief. "Where an aggravating factor is stricken on appeal, the harmless error test is applied to determine whether there is no reasonable possibility that the error affected the sentence." See Jennings v. State, 782 So.2d 853, 863 n. 9 (Fla.2001). In the present case, if the avoid arrest and committed in the course of a felony aggravators were stricken, Anderson would still have three remaining aggravators: CCP, HAC, and prior violent felony. Based on the record in this case, there is no reasonable possibility that Anderson would have received a life sentence. See Reaves v. State, 639 So.2d 1, 6 (Fla.1994) ("We agree with Reaves that the deputy's death from gunshot wounds was not heinous, atrocious, or cruel.... We find this error to be harmless, however, in view of the two other strong aggravating factors found and relatively weak mitigation. There is no possibility that the jury would have recommended or the judge would have imposed a lesser sentence.") (footnote omitted).
In Anderson's eleventh claim, he contends that the death sentence is disproportionate in this case. Due to the uniqueness of the penalty, this Court addresses the propriety of all death sentences in a proportionality review. See Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). In conducting this review, we make a comprehensive analysis in order to determine *408 whether the crime falls within the category of both the most aggravated and the least mitigated of murders, see Cooper v. State, 739 So.2d 82, 85 (Fla.1999), thereby assuring uniformity in the application of the sentence, see Urbin v. State, 714 So.2d 411, 416-17 (Fla.1998).
We do not find the death sentence disproportionate in the instant case. The court initially found five aggravators: (1) Anderson had a previous conviction of a violent felony (the attempted sexual batteries), (2) the murder was committed while engaged in the commission of a felony (kidnapping), (3) the murder was committed to avoid arrest, (4) the murder was heinous, atrocious, or cruel, and (5) the murder was committed in a cold, calculated and premeditated manner without any pretense of legal justification. As discussed in issue ten, supra, the second and third aggravators were inapplicable. However, we concluded that the proper finding of the remaining three aggravators renders the use of these two aggravators harmless.
The trial court concluded that Anderson failed to establish the statutory mental mitigators. The trial court found the following nonstatutory mitigators: (1) Anderson suffers from sexual dementia (minimal weight), (2) Anderson confessed to his sexual relationship with Keinya during drug addiction counseling (medium weight), (3) Anderson suffered from drug addiction (minimal weight), (4) Anderson comes from a good family (minimal weight), (5) Anderson was a good child (minimal weight), (6) Anderson helped Edwina take care of his three natural children (minimal weight), (7) Anderson loves his children (minimal weight), (8) Anderson sends gifts to his kids while in custody (minimal weight), (9) Anderson is a very caring person (minimal weight), (10) Anderson served in the Coast Guard for five years (minimal weight), (11) society would be protected by Anderson serving a life sentence (minimal weight), (12) Anderson earned money playing the market while in custody and therefore can still be a productive member of society (minimal weight), and (13) Anderson has a gift for poetry and can help men who end up in prison (minimal weight).
We have affirmed death sentences where there was even less aggravation than in the current case and somewhat comparable mitigation. See Geralds v. State, 674 So.2d 96, 105 (Fla.1996) (affirming death sentence where murder was HAC and committed during the commission of a robbery and both statutory and nonstatutory mitigation was afforded little weight); Davis v. State, 703 So.2d 1055, 1061-62, (Fla.1997) (affirming death sentence where murder was HAC and committed during the course of a sexual battery and nonstatutory mitigation was afforded some weight). Therefore, we find that death is a proportionate penalty in this case.
In claim twelve, Anderson argues that his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in which the United States Supreme Court held that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt, and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), in which the Supreme Court ruled that Apprendi is applicable in the death penalty context. In Ring, the Supreme Court found the Arizona capital sentencing statute to be unconstitutional "to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for the imposition of the death penalty." Ring, 536 U.S. at 609, 122 S.Ct. at 2443. *409 Anderson contends that Florida's capital sentencing statute suffers the same constitutional infirmity. However, Anderson's claim has already been addressed by this Court and decided adversely to him. See Bottoson v. Moore, 833 So.2d 693 (Fla. 2002) (concluding that Bottoson was not entitled to relief under Ring).
In his final claim, Anderson asserts that the murder in the course of a felony aggravating circumstance is unconstitutional because it is an impermissible automatic aggravator. This claim has been rejected numerous times by this Court. See, e.g., Banks v. State, 700 So.2d 363, 367 (Fla. 1997).
Accordingly, for the reasons stated in this opinion, we affirm the conviction for first-degree murder and sentence of death.
It is so ordered.
WELLS and QUINCE, JJ., and HARDING, Senior Justice, concur.
PARIENTE, J., concurs as to the conviction and concurs in result only as to the sentence with an opinion, in which SHAW, Senior Justice, concurs.
ANSTEAD, C.J., and LEWIS, J., concur as to the conviction and concur in result only as to the sentence.
PARIENTE, J., concurring as to the conviction and concurring in result only as to the sentence.
I concur fully in the affirmance of the conviction in this case, but concur in result only as to the affirmance of the death sentence. One of the aggravating circumstances found by the trial court was a prior violent felony, based on convictions of attempted sexual battery of the same victim as in this case. In Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002), we denied relief under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), to petitioners whose aggravating circumstances included prior violent felony convictions, in accord with the United States Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000): "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Emphasis supplied.) The Supreme Court extended Apprendi to capital sentencing schemes in Ring, but did not alter the exception for prior convictions. For this reason, I concur that Anderson is not entitled to relief under Ring.
SHAW, Senior Justice, concurs.
NOTES
[1] Anderson presents the following claims: (1) the evidence is insufficient for first-degree murder; (2) the trial court erred in admitting collateral bad act evidence; (3) the trial court erred in allowing a witness to testify concerning other traffic homicides; (4) the trial court erred in allowing nonresponsive opinion testimony as to the intent of the perpetrator; (5) the trial court erred in admitting inflammatory photographs during the guilt phase; (6) the trial court erred in denying Anderson's motion for mistrial during closing argument; (7) the trial court erred in allowing the State to proceed on a theory of felony murder; (8) the State's penalty phase argument was fundamental error; (9) the trial court erred in admitting inflammatory photographs during the penalty phase; (10) the evidence did not support the aggravating circumstances in this case; (11) the sentence is disproportionate; (12) the sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (13) the murder in the course of a felony aggravator is unconstitutional.
[2] Section 787.01(1)(a), Florida Statutes (1993), provides, in part:
The term "kidnapping" means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his will and without lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage.
2. Commit or facilitate commission of any felony.
3. Inflict bodily harm upon or to terrorize the victim or another person.
4. Interfere with the performance of any governmental or political function. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611574/ | 11 So.3d 961 (2009)
WOODS
v.
STATE.
No. 3D09-852.
District Court of Appeal of Florida, Third District.
May 13, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611588/ | 166 N.W.2d 874 (1969)
STATE of Iowa ex rel. Jack M. FULTON, County Attorney, Linn County, Iowa, Appellee,
v.
Oscar William SCHEETZ, Jr., Appellant.
No. 53068.
Supreme Court of Iowa.
April 8, 1969.
*877 R. Fred Dumbaugh, Cedar Rapids, and Samuel M. Fahr, Iowa City, for appellant.
Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., and Stephen B. Jackson, Cedar Rapids, Asst. Linn County Atty., for appellee.
SNELL, Justice.
Pursuant to chapter 225A, Code, 1966, the Linn County Attorney filed a petition asking that defendant, Oscar William Scheetz, Jr., be adjudged a criminal sexual psychopath. Defendant answered denying all material allegations. Trial to jury resulted in a verdict finding defendant to be a criminal sexual psychopath. He was thereupon ordered committed to the Mental Health Institute at Independence. From that order of commitment, defendant appeals. We affirm.
Errors relied on for reversal are: (1) failing to dismiss the proceedings on receipt of the medical examiner's report; (2) overruling defendant's motion to dismiss; (3) overruling objections to testimony of police officer relative to his interrogation of defendant; (4) overruling objection by defendant to a hypothetical question put to a doctor; (5) overruling defendant's motion for a directed verdict; (6) giving instructions 4 and 9 with reference to burden of proof; and (7) overruling defendant's motion for a new trial.
These contentions will not be considered in the order assigned.
I. Prior to trial defendant filed a motion to dismiss alleging chapter 225A violates Amendment 14, Constitution of the United States, and Section 1, Article 1, Constitution of Iowa. He claims the Act serves to deny due process and equal protection under the law.
We will uphold the provisions of the Act if such is constitutionally permissible.
Where a statute is fairly subject to differing constructions, one of which will render it constitutional, the other unconstitutional or of doubtful constitutionality, that construction by which it may be upheld will be adopted. Zilm v. Zoning Board of Adjustment, Iowa, 150 N.W.2d 606, 609-610; State v. Ramos, Iowa, 149 N.W.2d 862, 865; Powers v. McCullough, 258 Iowa 738, 745-746, 140 N.W.2d 378; and Graham v. Worthington, 259 Iowa 845, 850-851, 146 N.W.2d 626.
In construing statutes, courts may properly consider the evil sought to be *878 remedied and the objects or purposes the legislative enactment seeks to obtain. State v. Ricke, Iowa, 160 N.W.2d 499, 501, and Edge v. Brice, 253 Iowa 710, 718, 113 N.W.2d 755.
The objectives of criminal sexual psychopath statutes are to, (1) protect society by sequestering the deviate so long as he remains a menace to others, and (2) subject him to treatment to the end he may recover from his existing psychopathic condition and be rehabilitated. See 24 A.L.R. 2d 350, 351.
Chapter 225A is a humane, valid and proper exercise of the state's police power as a measure of public safety. Cullins v. Crouse (10 Cir.), 348 F.2d 887, 889; People v. Piasecki, 333 Mich. 122, 52 N.W. 2d 626, 629-630; State v. Madary, 178 Neb. 383, 133 N.W.2d 583, 587, and Annos. 24 A.L.R.2d 350, 354.
Admittedly there are those who vigorously dispute the wisdom and propriety of such legislation. See 43 Calif.L.Rev. 766, 769; 41 Iowa L.Rev. 523. Treatment has not been universally successful.
However, the judicial branch of government has no power to determine whether legislative Acts are wise or unwise, nor has it the right to declare an Act void unless it is plainly and without doubt repugnant to some provisions of our Federal or State Constitutions. Graham v. Worthington, supra, loc. cit. 259 Iowa 850-851, 146 N.W.2d 626.
Under Code chapter 225A the county attorney may file a verified detailed petition, upon information or belief, against "any person * * * charged with a public offense" reasonably believed to be a criminal sexual psychopath. Upon the filing of such petition the defendant must be given written notice of the charges against him and thereupon the court "shall determine whether he shall be medically examined." Provision is then made for a medical examination of defendant and the filing of a confidential written report by such examiner, a copy of which shall be delivered to defendant or his attorney. If the court finds, upon examination of the petition and medical examiner's report, there is sufficient showing of a mental disorder to which criminal sexual propensities are attributable, trial of the case shall be ordered, but if such showing is not made the case is to be dismissed. It is also required defendant have counsel at every stage of the proceedings and if he has none, the court shall appoint a competent attorney to represent him. He may also be released on bail. Defendant is entitled to a jury trial upon request, and in the conduct of any hearing the examining physician may testify, but his written report, previously filed with the court, is not admissible in evidence. If defendant is adjudged a sexual psychopath the court may commit him to a state hospital for the mentally ill to be there detained until released. Provision is also made for appeal. The staff of the hospital to which defendant may be committed is required to periodically examine defendant and report on his progress to the committing court, at least once each year. A rehearing shall be held in the court of original commitment whenever a written application is presented indicating defendant has, in the opinion of three designated psychiatrists, improved to the extent that "his release will not be incompatible with the welfare of society."
This at once demonstrates the Iowa Act serves to supply those procedural safeguards found fatally lacking in Specht v. Patterson, 386 U.S. 605, 610-611, 87 S.Ct. 1209, 1212-1213, 18 L.Ed.2d 326, discussed, infra.
Without question there are those violators of the criminal law whose criminality is attendant upon or related to mental abnormalities. See State v. Arthur, Iowa, 160 N.W.2d 470, and State v. Harkness, Iowa, 160 N.W.2d 324.
Apart from those so classified is another group who, though mentally responsible, are *879 either sociologically or emotionally unable to control their sexual behaviorisms. Those in this category demonstrate a tendency to repeat their antisocial activities to a point of criminality, but should not, by reason thereof, be subjected to penological treatment. While constituting a menace to the peace and safety of others, they are suffering from a psychopathic, or sociopathic, disorder and should resultantly be accorded treatment leading to rehabilitation, not punishment as that term is ordinarily applied in the field of criminal law.
Persons within the class segregated by Code chapter 225A are those preliminarily charged with a public offense who have manifested a mental or emotional inability to control their sexual activities to such a point as to constitute a danger to society.
The state has authority under its police power to restrain the liberty of any person coming within such a class provided such restraint is premised upon a constitutionally proper legislative enactment.
The United States Supreme Court said in Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 763, 15 L.Ed.2d 620: "Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made. Walters v. City of St. Louis, 347 U.S. 231, 237, 74 S.Ct. 505, 509, 98 L.Ed. 660. Classification of mentally ill persons as either insane or dangerously insane of course may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given, * * *."
Procedural steps required by chapter 225A provide due process of law.
II. The statutory definition set forth in section 225A.1 is sufficiently certain to permit practical application within constitutional limitations.
The Act provides: "All persons charged with a public offense, who are suffering from a mental disorder and are not a proper subject for the schools for the mentally retarded or for commitment as a mentally ill person, having criminal propensities toward the commission of sex offenses, and who may be considered dangerous to others, are hereby declared to be `criminal sexual psychopaths'."
The case of People v. Nunn, 46 Cal.2d 460, 296 P.2d 813, 817-818, cert. den. and appeal dismissed 352 U.S. 883, 77 S.Ct. 126, 1 L.Ed.2d 82, involved an accused, a physician, convicted of prescribing narcotics for a person not under his treatment for a pathology and for a person representing himself to be an addict. This was prohibited by statute, "except in the regular practice of his profession". Defendant contended the Act was too vague, indefinite and uncertain to give reasonable notice as to conduct thought to be prohibited. In holding such contention devoid of merit the court said: "* * * To comply with the constitutional requirement of due process of law, the crime for which defendant is being prosecuted must be clearly defined, but it is only necessary that the words used in the statute be well enough known to enable those persons within its purview to understand and correctly apply them." (Emphasis supplied.)
Unavoidably broad, the Iowa Statute is applicable to all persons charged with the commission of a public offense, suffering from a mental disorder, with criminal propensities toward the commission of sex offenses, who may be dangerous to others, specifically excluding mentally retarded or mentally ill persons.
The question posed is not whether section 225A.1 is in precise harmony with those variant interpretations which members of the medical profession may have applied. See People v. Levy, 151 Cal.App.2d 460, 311 P.2d 897, 902.
The problem to be resolved by us is whether the Act here challenged meets constitutionally *880 required standards of certainty in the ordinary or legal sense.
Section 225A.1 embraces within its terms all persons prefatorily charged with the commission of a public offense, who by a course of conduct in sexual matters, have evidenced a lack of power to effectively control their sexual impulses and are likely to criminally attack, assault or otherwise inflict injury, pain or other evil on the objects of their uncontrolled and uncontrollable desires. This does not mean the provisions of chapter 225A apply to every person guilty of sexual misconduct, nor to those having strong but inoffensive sexual propensities. In fact their inclusion within the scope of the Act would make its enforcement impracticable.
As stated in Powers v. McCullough, 258 Iowa 738, 746, 140 N.W.2d 378: "Regularly enacted laws are presumed to be constitutional, and this presumption must be overcome by one attacking a statute by proving its invalidity beyond a reasonable doubt."
An examination of the record discloses defendant has not established the unconstitutionality of Code section 225A.1 by the requisite degree of proof.
III. Defendant also contends the action against him should have been dismissed on the filing of a medical report following the court ordered examination by Dr. J. H. Hege, Director of the Security Hospital, Men's Reformatory, Anamosa.
That report is too thorough and extensive to be here repeated at length. In material part the doctor states:
"There is no evidence available from this evaluation that our patient is or has been psychotic or has experienced any break in contact with reality. His disorder lies in the area of lack of socialization. His personality structure and dynamics provide the necessary ingredients to provide the unconscious motivation, making him capable of engaging in this sexual behavior which he is alleged to have perpetrated. However, unconscious motivation does not by our interpretation constitute propensity. The injection of legal considerations combined with the considerations presented in this report is from our standpoint necessary to make a determination of sexual psychopathy.
"Prognosis would seem to be guarded. Again the ingredients for antisocial behavior are present but firm prediction of future behavior is impossible. Applying the laws of probability to Mr. Scheetz's specific personality structure and dynamics as well as past history, one would have to assume that unless something intervenes to change his pattern, the probabilities favor further antisocial behavior.
"Insofar as intervening forces are concerned, if Mr. Scheetz is sincerely motivated to look at his basic problems, his high level of intelligence will certainly stand him in good stead. If not incarcerated he will need individual counseling or therapy."
Code section 225A.8, provides: "After the filing of the report of the medical examination, if sufficient proof be not made to the court of the criminal propensities to the commission of sex offenses of the person charged with criminal sexual psychopathy, or if the report of the examining physician or physicians does not establish the fact of a mental disorder to which such propensities are attributable in the person examined, the court shall dismiss the petition. If sufficient proof be made to the court of the criminal propensities to the commission of sex offenses of the person so charged, and if the report of the examining physicians does establish the fact of a mental disorder to which such propensities are attributable in the person examined, the court shall order that a final hearing pursuant to the order of continuance be held on the petition setting the time and place of such hearing."
Defendant argues that the medical report failed to specifically disclose such *881 evidence of criminal propensities as to justify an order for trial.
This argument again opens the door to an existing and often presented conflict, sometimes classified as semantical in nature, between legal and medical practitioners.
If the Act were to be construed as applicable only to psychotics few, if any, persons would be subject to its provisions because the statute excludes those mentally retarded or mentally ill.
Neither courts nor juries are bound by superimposed definitions or conclusions as to the meaning attributed to "disease" or "defect" by medical experts. What psychiatrists may consider a "mental disease or defect" for clinical purposes, where their concern is treatment, may or may not be the same as "mental disease or defect" for the purpose of determining criminal propensities toward the commission of sex offenses of such nature as to be dangerous to others.
Although the judiciary holds opinions of medical experts in high regard, it cannot abdicate the authority, and duty, to view them in the light of legally established standards. State v. Arthur, supra, 160 N.W.2d loc. cit. 474-479, and State v. Harkness, supra, 160 N.W.2d loc. cit. 330-337.
The trial court found, upon the basis of Dr. Hege's report, defendant's unconscious motivations disclosed sufficient proof of such criminal propensities for the commission of future sexual offenses, dangerous to others, as to justify a trial on the issue.
It is generally understood many sex offenders are not insane within the ordinary accepted legal test, but are usually suffering at most from a neurotic character disorder. See State v. Arthur and State v. Harkness, both supra.
We find no basis upon which to conclude trial court erred in ordering the case proceed to trial upon submission of Dr. Hege's medical examination report.
We find no error on the part of trial court in overruling defendant's motion to dismiss.
IV. Defendant asserts his objection to a hypothetical question propounded to plaintiff-called psychiatrist, Dr. John Hege, should have been sustained.
At the close of that question, too lengthy to be here repeated, the witness was asked: "Doctor, assuming all of these facts to be true, do you have an expert opinion as to whether or not the defendant, Oscar William Scheetz, Jr., is a sexual psychopath?" The witness then answered "Yes", whereupon the following occurred:
"MR. DUMBAUGH: Just a minute, Your Honor, I am going to object to that question on the grounds that it calls for an ultimate conclusion of fact which the Jury in this particular case has been selected to find. I feel that this expert highly qualified expert witness is more than able to testify concerning observations that he made of this particular defendant, I feel that he is qualified to testify as to other observations or conclusions that he might have, however, allowing him to answer this particular question which is in fact the ultimate question in issue in this case, would go far beyond the proper scope of this witness and that it would be highly prejudicial to this defendant. The Jury has been impaneled to find this particular question
"* * *
"MR. DUMBAUGH: We further object to it on the grounds that there has been no definition offered or proffered to the Court or to this witness as to what in fact, is a sexual psychopath. We further object to the question on the grounds that it goes far beyond the proper scope of examination in this case. There has been no proper foundation established, it is incompetent, *882 irrelevant and immaterial and that it asks for a conclusion from this witness upon which insufficient facts have been established.
"THE COURT: The objection is noted and it is overruled. Proceed.
"Q. Doctor, do you recall the question? A. Yes, sir.
"Q. The hypothetical question? A. (Nods head yes)
"Q. And do you have an opinion assuming all of these facts in the hypothetical question as being true, as to whether Oscar William Scheetz, Jr., the defendant, is a sexual psychopath? A. I have an opinion.
"Q. Can you tell us what that opinion is, Doctor? A. Based on the facts as you have presented them it seems they met all of the criteria as established by the Code of Iowa and that he would have to be determined a criminal sexual psychopath."
Defendant, procedurally, has no cause for complaint. His objection was either too late or too early; it operated in a vacuum.
Without challenge, Dr. Hege first stated he had an opinion about which inquiry was being made. This was followed by an objection. However, if defendant intended to challenge the prior question relative to existence of an opinion, but could not do so because the witness responded too fast, his objection, even if sustained, would not alone have served to strike or exclude the response given. As this court said in Correll v. Goodfellow, 255 Iowa 1237, 1247, 125 N.W.2d 745, 751: "No motion was made to strike or exclude the quoted answer. The objection was not made until after the answer was in and no reason was given for the delay. The ruling did not have the effect of striking the testimony. It remained in the record and is to be considered. (Authorities cited.)" See also McDannel v. Parkview Inv. Corp., 257 Iowa 1160, 1165, 136 N.W.2d 281; Barnard v. Cedar Rapids City Cab Co., 257 Iowa 734, 756-757, 133 N.W.2d 884; Castner v. Wright, 256 Iowa 638, 652, 127 N.W.2d 583, 128 N.W.2d 885; Sallee v. Routson, 247 Iowa 1220, 1222-1223, 78 N.W.2d 516.
If the objection made was in anticipation of the question to follow, it came too soon, there being no subject upon which it could fastenno basis upon which it could stand.
In any event counsel for plaintiff, subsequent to defendant's objection, again inquired as to whether Dr. Hege had an opinion, to which affirmative answer was given.
The witness was then asked to state his opinion. No objection was made and he answered.
Conceding for the purpose of discussion the expert witness, in so answering, volunteered a combined statement of law and fact and went beyond the scope of the question, no motion was made to strike or exclude it.
Under all the circumstances, Dr. Hege's answer stood and defendant's complaint comes too late for consideration on appeal.
In State v. Jones, 253 Iowa 829, 834, 113 N.W.2d 303, 306, we said:
"Failure to object to the admissibility of evidence in the trial court waives any error therein and its admissibility is not reviewable here. * * *
"We have recently commented on the failure to properly present claimed errors to the trial court. State v. Pullen, 252 Iowa 1324, 110 N.W.2d 328; and State v. Kramer, 252 Iowa 916, 109 N.W.2d 18. * * *
"Section 793.18 does require us to examine the record without regard to technical errors or defects which do not affect the substantial rights of the parties. But we have held this statute inapplicable where objections to evidence have been *883 waived. State v. Ostby, 203 Iowa 333, 342, 210 N.W. 934, 212 N.W. 550."
We conclude defendant has no standing at this time to effectively complain with regard to the admission in evidence of Dr. Hege's ultimate conclusion. This also means we are not now called upon and do not reach or resolve the propriety of such testimony had appropriate and timely objection been made.
V. Defendant claims trial court erred in permitting Detective Leland Meikle to testify regarding statements made to him by defendant in the course of a pretrial interrogation. Over defendant's timely objections, based on the premise defendant, then restrained of his liberty, was not given the constitutionally required Miranda warnings, the objections were overruled and Detective Meikle stated in detail his questioning of defendant, answers given and statements made.
We quote from the record:
"My name is Leland Meikle. I am a detective for the Cedar Rapids Police Department. In my official capacity I have had occasions to investigate matters involving the Defendant, Oscar William Scheetz, Jr. On January 30, 1966 at approximately 7:30 P.M., I had occasion in my official capacity to question the Defendant, Oscar William Scheetz, Jr., relative to an incident involving a Carol Nuehring.
"Q. All right, can you tell us from the start what you discussed with Oscar William Scheetz, Jr.?
"MR. DUMBAUGH: Just a minute, Your Honor, at this time I would request permission from the Court to Voir Dire this witness.
"THE COURT: Proceed.
"VOIR DIRE
"BY MR. DUMBAUGH:
"Q. Officer prior to this discussion with Mr. Scheetz did you at any time advise him of any of the rights that a person has as far as making incriminatory or possibly incriminatory statements? A. Yes, sir, I did.
"Q. What rights did you advise him of? A. I advised him that he had a right to an attorney, to have him present and he could telephone if he wanted. A. (continuing) could telephone for an attorney and anything he said would be strictly voluntary and that he didn't have to tell me anything unless he wanted to.
"Q. Did you advise the person that in the event he was unable to afford or privately retain an attorney that the Court would appoint him one? A. No sir, at that time that was before the Miranda decision came out and we were not required to advise him of that particular statement at that time.
"* * *
"Mr. Scheetz told me that on November 15, 1965 he owned a 1965 white Chevrolet. That he had been driving this car in the area of the telephone company, 3rd Avenue and 6th Street S. E., and that he had seen a girl, Miss Nuehring, walking from the telephone company and walking south on 6th Street S. E. He further said he pulled his car into the curb and stopped and talked to Miss Nuehring and told her that his name was Bill Smith and asked her how things were at the telephone company, how she had been and so forth. He then stated that he would like to talk further with her and she continued walking on down the street. About a week later he was down driving his same car in the same area and had parked the car in a parking lot just off of 6th Street and went into the laundromat at 5th Avenue and 6th Street. He further stated that he had been in there a few minutes and then saw Miss Nuehring walking on 6th Street again and that he met her just as she was coming out of the laundromat. He further stated that he approached her, told her he was Bill Smith, asked if she didn't remember him and when she started to walk *884 off, he placed his hand on her shoulder and at that time she started to scream and he then put his hand over her mouth and told her that he would let her go if she would become quiet which she did and he released her, she left and he took off running to his car which was parked in the lot and then drove home. He further told me that on another date, the exact date of which had slipped his mind, he again was driving his Chevrolet automobile near 7th Street just south of 3rd Avenue and there was a lady walking from the phone company toward her car. That he stopped and talked to this lady and told her that he was Bill Smith and said a few words to her and she then left. He couldn't remember the lady's name but we later determined the lady's name to be a Mrs. Henecke who lived on Ravenwood Drive North. She also identified Mr. Scheetz and stated that Mr. Scheetz' car was of the same make and model and color that the subject was driving that talked to her on the night in question.
"Q. All right. Officer, did you discuss that evening of January 30, 1966 with Oscar William Scheetz, Jr., any incident that might have occurred in Iowa City, Johnson County, Iowa? A. Yes, sir. I talked to him about two assaults, two rapes that had taken place in Iowa City and he stated that he had been in Iowa City on the days or close to the days that these incidents took place and that he had given two different girls a ride in his car down there.
"Q. All right. Now did you discuss these two different rides in Johnson County with Oscar Scheetz? A. In some detail, not too much. I asked him where he had taken the girls, where they had ridden around and he stated that out near the edge of the city or out in the country, but he couldn't remember exactly and then returned to town.
"Q. Did he state anything else regarding any incidents in Johnson County, Iowa? A. No, just the two girls that he had given rides to on the separate occasions.
"Q. Did you, in discussing these matters with Oscar William Scheetz, Jr., inquire as to whether or not he had any acts of sexual intercourse with either of these girls in Johnson County, Iowa? A. No, I did not. A. At that time I didn't get the chance to, we were interrupted and that particular time the questioning was halted about the Iowa City incidents.
"Q. Did you later that evening continue your discussions with Oscar William Scheetz, Jr.? A. Yes, Well, in a few minutes or approximately ten minutes later I again asked him or attempted to continue the questioning about the Iowa City incidents and from that time he wouldn't tell me any more facts about what had taken place or wouldn't answer any of my questions in regards to those incidents.
"Q. Did you ask the Defendant specifically about whether he had had sexual relations with either of these girls in Johnson County? A. Yes, I put the question to him and he didn't reply one way or the other. The only thing he had done was placed his head on the desk and started to sob.
"Q. How long did he sob? A. Probably two or three minutes."
In considering the claim of error in the admission of this testimony the purpose of the act, the status of defendant at the time of interrogation and the nature of prosecution here involved must be considered.
The police were investigating a number of assaults that had taken place. Defendant was asked to come to the police station and was there questioned in connection therewith. It was a "critical stage" in those investigations. However, there is nothing in the record before us to indicate that defendant has been prosecuted for any of those offenses. From a practical premise defendant has been the beneficiary of therapeutic beneficence rather than extensive imprisonment. The situation is in extreme contrast with Gault, discussed in a subsequent division.
*885 In the case at bar the prosecution proceeded under the criminal psychopath act. The defendant was committed for treatment of his ailment. While the treating psychiatrists made no definite prognosis, improvement and progress toward a cure was noted and defendant has been released on probation. Had defendant been initially tried and convicted of the offenses disclosed in this trial he would have faced imprisonment under two life sentences in addition to lesser punishments. They included two separate rapes by force.
There is no suggestion that defendant has ever been denied or unable to obtain counsel. He has been ably represented in the trial court and on appeal by able counsel including a professor of law. The record indicates the verdict in this case did not depend on any in-custody gained information extracted from defendant against his will.
Top psychiatrists admit that results obtained so far under our law have been less than satisfactory. If we recognize too much impedimenta in its operation the result will be abandonment rather than improvement of a "noble experiment" and resort to imprisonment rather than hospitalization. For an extensive discussion of sexual psychopath laws, their noble purpose, the fallacies on which they are based, the difficulties inherent therein, their failures and doubtful future, see "Iowa's New Sexual Psychopath LawAn Experiment Noble in Purpose?" by Professor Samuel M. Fahr in 41 Iowa Law Review 523. On page 557, these words appear:
"The chance of any really significant progress through the `sexual psychopath laws' is small indeed.
"* * * It may be that even so poor a law as this is better than punishment alone, but no one should be deceived by the existence of the Iowa `Criminal Sexual Psychopath Law' of 1955: we are still many light years from the `Brave New World.'"
It should be kept in mind that as a prerequisite to the filing of a criminal sexual psychopath charge the defendant must be charged with a public offense. It does not depend on conviction. It is not a recidivist statute providing for enhanced punishment as appears from the statutes in some other jurisdictions.
What is the purpose of our statute? Our criminal sexual psychopath law is not a criminal statute comparable to the ones considered in other jurisdictions. The law is not punitive in nature and is not based upon proof of guilt or specific acts which would be punishable under other statutes. The law is therapeutic and designed not only for the protection of the public, but for the protection of the accused against punishment for acts beyond his control. The trial does not determine the accused's guilt or innocence of anything, but rather is for the purpose of curing a condition.
The procedure and purpose might be compared with the determination of mental illness, inebriety or drug addiction, and the procedure outlined in chapter 229 of the Code or even the quarantine authorized and provided in the case of contagious and infectious diseases outlined in chapter 139.
The chapter on commitment of mentally ill, drunkards and addicts provides for the appointment of counsel and for all of the procedures for appeal, but we doubt if a commitment would be reversed because of a failure to show full compliance with every requirement of Miranda.
We do not think it would be seriously contended that a person suffering from a quarantinable disease should be given all of the Miranda warnings before he can be isolated, by force if necessary, or that in the absence of such warning he should be turned loose to expose others to danger. Should a drunkard or addict who might be cured by treatment be turned loose to continue self-destruction because the police failed to tell him that the state *886 would pay for an attorney? We think not. It is generally recognized that the State has authority under its police power to restrain the liberty of any person coming within such a class provided such restraint is premised upon a constitutionally proper legislative enactment.
The verdict is not and cannot be the basis for imprisonment for anything disclosed therein, nor would it be the basis for a claim of double jeopardy. It might form the basis for a defense of insanity or irresistible impulse in the event of another prosecution.
The basic question before us is whether a determination that a defendant is a sexual psychopath and resultantly subject to treatment by a psychiatrist or psychologist should be reversed because in connection with pre-arrest inquiries about specific offenses he was not advised that he would be furnished counsel at state expense.
We are not now reviewing a conviction of those specific offenses. We do not think the Miranda rules need to be amplified to the extent of requiring reversal here. See State v. Lewis, 274 N.C. 438, 164 S.E.2d 177, 186 and State v. Johnson, 3 N.C.App., 420, 165 S.E.2d 27, 28.
VI. Who is a criminal sexual psychopath? The definition is statutory.
Definition of the term "sexual psychopath" is more difficult.
Dorland's Illustrated Medical Dictionary, 24th Edition, (1965), defines the term "Psychopath" as: "A person who has a psychopathic personality * * *, an individual whose sexual behavior is manifestly antisocial and criminal." Another definition of the term "Psychopath" is found in Stedman's Medical Dictionary, 21st Edition (1966), wherein it is stated: "The subject of a psychoneurosis; especially one who is of apparently sound mind in the ordinary affairs of life, but who is dominated by some abnormal sexual, criminal, or passional instinct."
The Medico-Legal Journal (Part Four, 1967), contained an article by Dr. J. Stuart Whiteley, entitled "Concepts of Psychopathy and Its Treatment." At page 155, Dr. Whiteley states: "Thus our concept of a psychopath is of a person apparently without a knowledge of social interactions, unaware of the feelings of others, oblivious to the rules of the group, infantile and egocentric in his demands, unable to withstand frustration or denial of gratifications, unable to see another's point of view, impulsive to a primitive and childlike degree, without foresight and a total denial of responsibility for the results of his actions. * * * In many ways the psychopath is more akin to the psychotic and particularly the schizophrenic. Both are isolates, autistic, emotionally unfeeling, guarded against a world felt to be hostile and subject to fantasy substitutions for the real life traumata. * * * In psychopathy the earliest signals of communication between humansbetween mother and child, parents and child, family and child, school fellows and child, adult world and childare received but are misunderstood. This pattern of ill-learned social interaction is subsequently carried into adult life. When the developing individual finds himself in a world which he misinterprets as inimical he escapes into psychopathic behavior as a defense against the trauma, anxiety and social pressures and demands."
Applying the above language to what is known in the law as a criminal sexual psychopath, it can be said there are those violators of the criminal law whose criminality is attendant upon or related to mental abnormalities. However, apart from those so classified is another group who, though mentally responsible, are either sociologically or emotionally unable to control their sexual behaviorisms. Those in this category demonstrate a tendency to repeat their antisocial activities to a point of criminality, but should not, by reason thereof, be subjected to penological treatment. While constituting a menace to the peace and safety of others, *887 they are suffering from a psychopathic, or sociopathic, disorder and should resultantly be accorded treatment leading to rehabilitation, not punishment. Toward such persons chapter 225A is a hopeful gesture.
The hoped for result being that both the wrongful actor and particularly society, benefit from the commitment and the resultant therapeutic treatment.
The Miranda rules apply to those charged with, or interrogated for the purpose of charging them with a crime. Nonprejudicial noncompliance such as we have here should not thwart a procedure that is therapeutic and not punitive.
VII. Our statute (section 225A.9) says the action shall be tried as a special proceeding. It is more in the nature of a trial to determine mental illness under chapter 229 than a criminal prosecution. In its purpose it is more civil than criminal.
Historically various courts have adopted differing positions as to the nature of sexual psychopath trials, many being understandably based upon precedent alone. Some have said they are civil in nature. Others say, though classified as civil, they more closely resemble criminal prosecutions in many critical respects.
The Supreme Court of Nebraska in State v. Madary, 178 Neb. 383, 133 N.W.2d 583 in considering sexual psychopath statutes, said:
"They represent a new approach, reflecting the thinking of modern psychiatry and psychology, in that they provide civil commitment, segregation, and treatment of the sexual psychopath rather than criminal punishment, whose ineffectiveness as a deterrent has been demonstrated by the number of sex offenders who have repeated their offenses after criminal conviction." (loc. cit. 587 of 133 N.W.2d)
In Thurmond v. Superior Court of Solano County, 49 Cal.2d 17, 314 P.2d 6, 8, this appears:
"The sexual psychopathy law provides for separate proceedings of a civil nature for the purpose of protecting society against the activities of sexual psychopaths and at the same time affording a means whereby a person found guilty of a criminal offense may be aided by medical treatment."
The article by Professor Fahr, supra, in speaking of such statutes, says, "They are uniformly held non-criminal, despite the fact the persons they operate on consider them punitive in nature." (loc. cit. 554 of 41 Iowa Law Review)
It is axiomatic that where liberty is to be restrained there must be due process but we cannot say that defendant in this case and under a statute of this nature has been denied due process
The assaults, molestations and rapes inquired about at the police station were testified to by other witnesses except for the testimony that defendant placed his head on the desk and sobbed. The testimony was merely cumulative. It was not even necessary for corroboration. Defendant was not on trial for those offenses. All warnings had been given defendant except the supplemental advice that the court would appoint an attorney for him. The statements made were voluntary. There were no threats. There was no third degree abuse physically or psychologically. Defendant has had counsel as soon as he desired. This case does not rest on inculpatory statements. Defendant's complaint about violation of his constitutional rights is too anemic to require reversal.
VIII. Numerous authorities might be considered but main reliance of appellant is upon a few leading cases applying due process rules. They are clearly distinguishable from the case at bar.
In 1964 the landmark case of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, held that when a person is held in police custody, and when police *888 inquiry has turned from investigatory to accusatory, that person is entitled to the aid of counsel. The language used therein gave rise to much speculation as to the authority of the officers and the rights of an individual suspected of crime. It did represent a significant departure from the established precedent of "voluntariness" as the test for admission of confessions. See 53 Iowa L.Rev. 1074.
Later, the Supreme Court in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, extended the term "custody" to mean when one is placed under arrest or is otherwise deprived of his freedom of action in any significant manner. Again, the case involved one suspected of committing a crime. Due process, the court said, in such cases required that the suspect be advised that (1) he has a right to remain silent, (2) any statement he makes may be used against him in evidence, (3) he has a right to presence of counsel, and (4) if he cannot afford counsel, one will be appointed for him.
Much speculation and litigation has arisen as to the application of this pronouncement. As applied to one accused of a crime, the holding is clear. As to its application to other cases involving treatment and not punishment we have a different situation. We have discussed the noncriminal nature of our act. Although there is language in some decisions which would seem to require this warning in any administrative civil or judicial proceeding involving custodial restraint of an individual, we do not believe the rule should be extended to a situation that is neither punitive as Escobedo, Miranda, Gault and Mathis, infra, or recidivist as Specht, infra.
It has always been assumed that a state legislature can act within its police power to single out for special treatment the paranoid, the mentally ill, or the sexually dangerous person from the larger class of sex crime offenders. State of Minn. ex rel. Pearson v. Probate Court, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744.
We believe it would be a serious mistake to extend Miranda into an area which is not adaptable in theory or practice to the Miranda guidelines, specifically aimed at criminal prosecutions.
Miranda seeks to safeguard the rights of persons suspected of a crime and rightfully excludes evidence obtained without complying with its guidelines. Had the case at bar been a prosecution for a crime, the statements in question, we are agreed, would be inadmissible. Although it is true that under our sexual psychopath statement, as a prerequisite, a person must be charged with a public offense before he can be adjudged a sexual psychopath, this prerequisite does not require a conviction on the charge and should not be controlling on the vital issue as to whether Miranda applies.
The adoption of appellant's theory would result in discouraging prosecutors from helping sexual psychopaths through the use of our statute and encourage penal retribution, the very thing the statute is aimed at preventing, or, in other words, all but destroy the act and its purpose.
Specht v. Patterson, supra, held the Colorado Sex Offenders Act deficient in due process as measured by the requirements of the Fourteenth Amendment. The attack upon the act was that the "procedure does not satisfy due process because it allows the critical finding to be made under § 1 of the Sex Offenders Act (1) without a hearing at which the person so convicted may confront and cross-examine adverse witnesses and present evidence of his own by use of compulsory process, if necessary; and (2) on the basis of hearsay evidence to which the person involved is not allowed access. * * *
"The Sex Offenders Act does not make the commission of an enumerated crime the basis for sentencing. It makes one conviction the basis for commencing another proceeding *889 under another Act to determine whether a person constitutes a threat of bodily harm to the public, or is an habitual offender and mentally ill. That is a new finding of fact (Vanderhoof v. People of State of Colorado, 152 Colo. 147, 149, 380 P.2d 903, 904) that was not an ingredient of the offense charged. The punishment under the second Act is criminal punishment even though it is designed not so much as retribution as it is to keep individuals from inflicting future harm. United States v. Brown, 381 U.S. 437, 458, 85 S. Ct. 1707, 14 L.Ed.2d 484.
"The Court of Appeals of the Third Circuit in speaking of a comparable Pennsylvania statute said:
"'It is a separate criminal proceeding which may be invoked after conviction of one of the specified crimes. Petitioner therefore was entitled to a full judicial hearing before the magnified sentence was imposed. * * *'
"* * * Under Colorado's criminal procedure, here challenged, the invocation of the Sex Offenders Act means the making of a new charge leading to criminal punishment. The case is not unlike those under recidivist statutes where an habitual criminal issue is `a distinct issue' (Graham v. West Virginia, 224 U.S. 616, 625, 32 S.Ct. 583, 56 L.Ed. 917) on which a defendant `must receive reasonable notice and an opportunity to be heard.' Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 7 L.Ed.2d 446; Chandler v. Fretag, 348 U.S. 3, 8, 75 S.Ct. 1, 99 L.Ed. 4. Due process, in other words, requires that he be present with counsel, have an oppportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. And there must be findings adequate to make meaningful any appeal that is allowed. * * *"
Our statute is not comparable to the Colorado statute. The due process protections absent there are in our statute. Their statute is recidivist in nature based on a prior conviction and providing for additional punishment. There is nothing in the Specht opinion that requires a reversal here.
Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 is important in its area but our case is not in that area. This appears:
"In the first place, juvenile proceedings to determine `delinquency', which may lead to commitment to a state institution, must be regarded as `criminal' for purposes of the privilege against self-incrimination. To hold otherwise would be to disregard substance because of the feeble enticement of the `civil' label-of-convenience which has been attached to juvenile proceedings. * * * For this purpose, at least, commitment is a deprivation of liberty. It is incarceration against one's will, whether it is called `criminal' or `civil'. And our Constitution guarantees that no person shall be `compelled' to be a witness against himself when he is threatened with deprivation of his libertya command which this Court has broadly applied and generously implemented in accordance with the teaching of the history of the privilege and its great office in mankind's battle for freedom."
Gault was a juvenile court proceeding wherein on the basis of hearsay and in court interrogation of the boy by the court and without aid of counsel the boy was declared a delinquent because of rather minor misdemeanors. His commitment and the proceedings leading thereto were challenged because the following basic rights were denied:
"1. Notice of the charges;
"2. Right to counsel;
"3. Right to confrontation and cross-examination;
"4. Privilege against self-incrimination;
"5. Right to a transcript of the proceeding; and
"6. Right to appellate review."
*890 The opinion considers at length juvenile court procedures and their purpose. We quote excerpts therefrom:
"Ultimately, however, we confront the reality of that portion of the juvenile court process with which we deal in this case. A boy is charged with misconduct. The boy is committed to an institution where he may be restrained of liberty for years. It is of no constitutional consequenceand of limited practical meaningthat the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a `receiving home' or an `industrial school' for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. * * *
"Under our Constitution, the condition of being a boy does not justify a kangaroo court. The traditional ideas of juvenile court procedure, indeed, contemplated that time would be available and care would be used to establish precisely what the juvenile did and why he did itwas it a prank of adolescence or a brutal act threatening serious consequences to himself or society unless corrected? * * * The essential difference between Gerald's case and a normal criminal case is that safeguards available to adults were discarded in Gerald's case. The summary procedure as well as the long commitment were possible because Gerald was 15 years of age instead of over 18.
"If Gerald had been over 18, he would not have been subject to Juvenile Court proceedings. For the particular offense immediately involved, the maximum punishment would have been a fine of $5 to $50, or imprisonment in jail for not more than two months. Instead, he was committed to custody for a maximum of six years. * * * So wide a gulf between the State's treatment of the adult and of the child requires a bridge sturdier than mere verbiage, and reasons more persuasive than cliche can provide. * * *
"'We do not mean * * * to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.' * * *"
The court was prompted to quote Dean Pound, "The powers of the Star Chamber were a trifle in comparison with those of our juvenile courts * * *."
Gault and our case are in no way comparable. There with no semblance of due process punishment was immeasurably enhanced.
None of the procedures condemned in Gault appears in our case. The exact opposite appears. Defendant has had the benefit of the most lenient of procedures and has already been paroled.
Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381, involved a conviction and sentence for income tax fraud.
"A part of the evidence on which the conviction rested consisted of documents and oral statements obtained from petitioner by a government agent while petitioner was in jail serving a state sentence. Before eliciting this information, the government agent did not warn petitioner that any evidence he gave the Government could be used against him, and that he had a right to remain silent if he desired as well as a right to the presence of counsel and that if he was unable to afford counsel one would be appointed for him. * * *
"There can be no doubt that the documents and oral statements given by petitioner to the government agent and used against him were strongly incriminating. * * *"
On the basis of Miranda the court said:
"The courts below were wrong in permitting the introduction of petitioner's self-incriminating evidence given without warning *891 of his right to be silent and right to counsel."
Mr. Justice White, with whom Mr. Justice Harlan and Mr. Justice Stewart joined, thought the case was outside the scope of the Miranda rules.
We think the case before us is also beyond the scope of those rules.
Mathis was convicted on the basis of the in-custody interrogation and for the acts about which he was questioned. He received two thirty months concurrent sentences for the specific acts about which he was questioned.
In the case at bar defendant could not be convicted of any of the specific offenses mentioned in Officer Meikle's testimony on the strength of his testimony. Assuming, arguendo, that his testimony would be inadmissible in such a trial it does not follow that its admission here caused reversible error.
It is not the same kind of case. The issues are not the same. The result sought is entirely different.
IX. Defendant challenges Dr. Hege's testimony relative to his findings resulting from a judicially prescribed examination of defendant as in-custody interrogation and inadmissible.
Code section 225A.10 provides: "At the final hearing, the examining physicians appointed or designated by the court may testify as to their examination or examinations of the person charged and the results thereof, but their report or reports filed in court as herein provided shall not be admissible in evidence against the person charged. Evidence of past acts of sexual deviation by the person charged shall be admissible at the hearing."
The meaning of this statute is self-evident.
A court ordered pretrial psychological or psychiatric evaluation, for which provision is made in Code chapter 225A, is not accusatorial in nature. It does not constitute the type of "in-custody" interrogation proscribed by Miranda. On the contrary, the purpose is to ascertain the mental and emotional condition of the subject, leading to possible treatment, as opposed to punishment. People v. English, 31 Ill.2d 301, 201 N.E.2d 455; United States v. Albright (4 Cir.), 388 F.2d 719, 723-726; State v. Madary, supra, and Annos. 32 A.L.R.2d 434, 444.
X. A sexual psychopath trial proceeding should not be categorized as a criminal prosecution.
This is of some importance because defendant contends trial court erred with regard to the quantum of proof necessary to support an affirmative verdict.
By instructions 4 and 9 the jury was told, in effect, if plaintiff established all specified statutory elements by a "preponderance of the evidence" then the verdict will be for plaintiff, otherwise for defendant.
Defendant claims plaintiff should have been required to prove essential elements "beyond a reasonable doubt". He cites no authorities squarely so holding.
To the contrary is Sas v. State of Maryland (4 Cir.), 334 F.2d 506, 511, where the court held, in a defective delinquency determination hearing, comparable in material respects to an Iowa criminal sexual psychopath trial, the burden imposed is to establish existence of the alleged condition by a preponderance of the evidence, not beyond a reasonable doubt.
In a sexual psychopath proceeding the issue to be resolved by the trier of the facts is not guilt or innocence of some crime specifically charged. Rather it is whether a designated person is or is not so mentally or emotionally disturbed that he has criminal propensities toward the commission of sex offenses.
*892 The situation is comparable to proceedings under Code chapter 783 to determine mental status of an accused in a criminal case.
State v. Drosos, 253 Iowa 1152, 1156, 114 N.W.2d 526, holds a defendant, claiming insanity, is required to prove existence of the condition only by a preponderance of the evidence. The rule in Drosos should be equally applicable in the case at bar.
Also, as applied to chapter 225A proceedings, there is no apparent compelling cause to find the "preponderance of evidence" standard offends some principle of justice so rooted in tradition and conscience of the people as to be termed fundamental. See in this regard Leland v. Oregon, 343 U.S. 790, 798-799, 72 S.Ct. 1002, 1007, 96 L.Ed. 1302.
Plaintiff, in a proceeding under Code chapter 225A, is required to establish the case against defendant by a preponderance of the evidence, not beyond a reasonable doubt.
XI. During oral argument before this court we were advised by counsel for both parties that subsequent to taking of appeal defendant had been released on probation from the mental institution to which committed.
The question at once presented is whether this case is moot. We do not so find.
The questions here presented should be resolved. See Board of Directors Ind. Sch. Dist. of Waterloo v. Green, 259 Iowa 1260, 1264-1265, 147 N.W.2d 854.
Defendant's appeal has been accordingly entertained.
XII. Defendant has been treated kindly. If the treatment he has been afforded is successful he may have been saved from a lifetime in prison. He has had a fair trial.
In Wright v. United States, 389 F.2d 996 (8th Cir.), this appears:
"Not every error occurring in the course of a trial requires a reversal. Rule 52(a), Fed.R.Crim.P., provides that errors which do not affect substantive rights shall be disregarded. If upon the record as a whole, the reviewing court is certain that the asserted error did not influence the jury or had but slight effect, the verdict and judgment shall stand. [Citations]"
The case is
Affirmed.
GARFIELD, C. J., and LARSON, MOORE and LeGRAND, JJ., concur.
RAWLINGS, STUART, MASON and BECKER, JJ., dissent.
RAWLINGS, Justice (dissenting).
During trial of this case, Detective Leland Meikle was permitted to testify regarding certain inculpatory statements made to him by defendant in the course of a pretrial interrogation. Defendant interposed timely objections to the effect he was restrained of his liberty at time of questioning, and not given some of the constitutionally required prefatory Miranda warnings.
The majority finds no error in permitting introduction of this challenged testimony.
I submit the majority, in so finding, ignores certain well established applicable principles heretofore clearly enunciated by the United States Supreme Court. I therefore dissent from divisions V, VI, VII, VIII and IX of the majority opinion.
I. Historically various courts have adopted differing positions as to the nature of sexual psychopath trials, many being understandably based upon precedent alone. Some have said they are civil in nature. See Wilson v. Blabon (9 Cir.), 370 F.2d 997, 1001; People v. Levy, 151 Cal. App.2d 460, 311 P.2d 897, 899; and Director of Patuxent Institution v. Daniels, 243 Md. 16, 221 A.2d 397, 409-411. Others *893 say, though classified as civil, they more closely resemble criminal prosecutions in many critical respects. See People v. Abney, 90 Ill.App.2d 235, 232 N.E.2d 784, 786.
Code section 225A.9 states in relevant part: "The action shall be tried as a special proceeding * * *."
In Smith v. Bennett, the United States Supreme Court, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39, dealing with habeas corpus as a "special" proceeding, said, loc. cit., 365 U.S. 712, 81 S.Ct. 897: "We shall not quibble as to whether * * * it be called a civil or criminal action * * *."
Accordingly we should look not so much to statutory label as to the effect and ultimate result of any jury verdict finding a defendant to be a criminal sexual psychopath. See in this regard The Mentally Disabled and the Law, by Lindman and McIntyre, pages 308-309.
The majority rigidly limits Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed. 2d 527, to juvenile proceedings. However, I cannot escape the conclusion, some cogent and persuasive constitutional pronouncements in Gault are unavoidably applicable in the case at bar.
At the outset this relevant statement appears in Gault, at 387 U.S. 49-50, 87 S.Ct. 1455-1456: "In the first place, juvenile proceedings to determine `delinquency', which may lead to commitment to a state institution, must be regarded as `criminal' for purposes of the privilege against self-incrimination. To hold otherwise would be to disregard substance because of the feeble enticement of the `civil' label-of-convenience which has been attached to juvenile proceedings. * * * For this purpose, at least, commitment is a deprivation of liberty. It is incarceration against one's will, whether it is called `criminal' or `civil'. And our Constitution guarantees that no person shall be `compelled' to be a witness against himself when he is threatened with deprivation of his libertya command which this Court has broadly applied and generously implemented in accordance with the teaching of the history of the privilege and its great office in mankind's battle for freedom." (Emphasis supplied.) See also Kent v. United States, 383 U.S. 541, 554-556, 86 S.Ct. 1045, 1054, 1055, 16 L.Ed.2d 84, and 17 Drake L.Rev. 53.
Heryford v. Parker, 10 Cir., 396 F.2d 393, involved commitment of a mentally deficient person, not afforded benefit of legal counsel at hearing. In holding this to be a denial of due process the court stated at 396 F.2d 396: "* * * like Gault, and of utmost importance, we have a situation in which the liberty of an individual is at stake, and we think the reasoning in Gault emphatically applies. It matters not whether the proceedings be labeled `civil' or `criminal' or whether the subject matter be mental instability or juvenile delinquency. It is the likelihood of involuntary incarcerationwhether for punishment as an adult for a crime, rehabilitation as a juvenile for delinquency, or treatment and training as a feeble-minded or mental incompetentwhich commands observance of the constitutional safeguards of due process. Where, as in both proceedings for juveniles and mentally deficient persons, the state undertakes to act in parens patriae, it has the inescapable duty to vouchsafe due process, * * *."
The Colorado Sex Offender's Act was found unconstitutional in Specht v. Patterson, 386 U.S 605, 87 S.Ct. 1209, 18 L. Ed.2d 326, and the court there stated, loc. cit., 386 U.S. 608, 87 S.Ct. 1211: "These commitment proceedings whether denominated civil or criminal are subject both to the Equal Protection Clause of the Fourteenth Amendment as we held in Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620, and to the Due Process Clause." (Emphasis supplied.)
The foregoing pronouncements bear directly on the case before us. It is immaterial that Scheetz has not been convicted of any crime. Nor is his commitment to *894 an institution designated a hospital rather than a penal institution of any special significance. The argument that defendant has not been formally convicted of a crime is no more persuasive than that advanced in Gault, supra, to the effect a juvenile is only adjudged "delinquent".
We cannot avoid the serious consequences of our criminal sexual psychopath proceedings simply by designating them as "special". Defendant has been adjudged a criminal sexual psychopath and committed to a mental institution for an indefinite period. Labels cannot obscure the relatively harsh nature of such a commitment, preliminarily foundationed upon the filing of a criminal charge. Code section 225A.1. Whether denominated "special" or otherwise, the proceedings with which we are here concerned demonstrably resulted in a deprivation of liberty, and were clearly subject to the due process clause of the United States Constitution. See Specht v. Patterson, 386 U.S. 605, 608, 87 S.Ct. 1209, 1211, 18 L.Ed.2d 326; Griffin v. State of California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106; and People v. Olmstead, 32 Ill.2d 306, 205 N.E.2d 625, 627.
Referring again to Specht, supra, loc. cit., 386 U.S. 610, 87 S.Ct. 1212, the Court said: "Due process, * * * requires that he [defendant] be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. And there must be findings adequate to make meaningful any appeal that is allowed." See also Sims v. State of Georgia, 385 U.S. 538, 544, 87 S. Ct. 639, 643, 17 L.Ed.2d 593.
By virtue of all that has heretofore been said it becomes evident the constitutional requirements of due process, with attendant rights under Amendment 5, must be accorded a person charged under our sexual psychopath law, regardless of any label applied to such trial proceedings.
II. Plaintiff concedes Leland Meikle, a Cedar Rapids Detective, contacted defendant Scheetz and requested he come to the police station for a discussion relative to a series of attacks on women in that community.
Called as a witness for the prosecution this officer stated he began questioning defendant about 6:00 P.M., January 30, 1966, after having advised him of his rights to telephone and have an attorney present, and "anything he said would be strictly voluntary", and "he didn't have to tell me anything unless he wanted to."
However, on "voir dire" by defendant's counsel, Meikle admitted defendant was never told that in the event he could not afford an attorney the court would appoint one for him.
Defendant made timely and adequate objections to any interrogation-obtained-evidence by Detective Meikle, based upon insufficiency of pre-interrogation warnings given, in that defendant was not advised that in the event of financial inability on his part to engage the services of an attorney the court would appoint one to represent him.
Dealing with that subject the United States Supreme Court said in Miranda v. Arizona, 384 U.S. 436, 478-479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694: "* * * we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity *895 to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him." (Emphasis supplied.) With regard to the foregoing see also Jackson v. Denno, 378 U.S. 368, 380-389, 84 S.Ct. 1774, 1783-1787, 12 L.Ed. 2d 908, 1 A.L.R.3d 1205; Carnley v. Cochran, 369 U.S. 506, 507-513, 82 S.Ct. 884, 885-889, 8 L.Ed.2d 70; State v. Holland, 258 Iowa 206, 214-215, 138 N.W.2d 86; and Carpentier v. Lainson, 248 Iowa 1275, 1279-1280, 84 N.W.2d 32, 71 A.L.R.2d 1151.
At this point the time element involved must be considered. Defendant was questioned January 30, 1966; the Miranda opinion appeared June 13, 1966; and trial commenced April 12, 1967.
This would indicate, at first glance, Miranda was not here applicable, but Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, discloses otherwise. There the court held, in pertinent part, the aforesaid pre-interrogation warning requirements apply to trials commenced subsequent to June 13, 1966. And, as previously noted, trial of the instant case began April 12, 1967.
The record in the case at hand discloses Officer Meikle did not question Scheetz as a known preface to any sexual psychopath proceedings, it being his purpose to interrogate defendant regarding reported criminal activities. But that again is a matter of no consequence.
In Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381, the defendant, in custody on a criminal charge, was questioned by an Internal Revenue officer, absent any Miranda warnings, relative to income tax matters then being inquired into. Later the government contended the questions asked by its agent were part of a routine tax investigation where no criminal action might even be brought, and the interrogated party had not been incarcerated by the questioning officer. These arguments were held to be devoid of merit with this statement, loc. cit., 391 U.S. 4, 88 S.Ct. 1505: "It is true that a `routine tax investigation' may be initiated for the purpose of a civil action rather than criminal prosecution. To this extent tax investigations differ from investigations of murder, robbery, and other crimes. But tax investigations frequently lead to criminal prosecutions, just as the one here did. In fact, the last visit of the revenue agent to the jail to question petitioner took place only eight days before the full-fledged criminal investigation concededly began. And as the investigating revenue agent was compelled to admit, there was always the possibility during his investigation that his work would end up in a criminal prosecution. We reject the contention that tax investigations are immune from the Miranda requirements for warnings to be given a person in custody.
"The Government also seeks to narrow the scope of the Miranda holding by making it applicable only to questioning one who is `in custody' in connection with the very case under investigation. There is no substance to such a distinction, and in effect it goes against the whole purpose of the Miranda decision which was designed to give meaningful protection to Fifth Amendment rights. We find nothing in the Miranda opinion which calls for a curtailment of the warnings to be given persons under interrogation by officers based on the reason why the person is in custody." (Emphasis supplied.)
As applied to the instant case, Mathis means the fact that Officer Meikle was testifying in this sexual psychopath proceeding, rather than in the prosecution of a criminal action, makes no difference. A suspect in custody, interrogated with reference to possible criminal charges, has Fifth Amendment rights, and any evidence obtained *896 in violation therof is equally inadmissible when offered in the trial of a case other than that which motivated the original interrogation. See also United States v. Dickerson, D.C., 291 F.Supp. 633.
Meaningful support is afforded the foregoing conclusion by this pertinent statement in Miranda, supra, loc. cit., 384 U.S. 467, 86 S.Ct. 1624: "Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves."
Even more specifically the court stated in Gault, supra, at 387 U.S. 47-48, 87 S.Ct. 1454: "It would indeed be surprising if the privilege against self-incrimination were available to hardened criminals but not to children. The language of the Fifth Amendment, applicable to the States by operation of the Fourteenth Amendment, is unequivocal and without exception. And the scope of the privilege is comprehensive. As Mr. Justice White, concurring, stated in Murphy v. Waterfront Commission, 378 U.S. 52, 94, 84 S.Ct. 1594, at 1611, 12 L.Ed. 2d 678 (1964):
"'The privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory. * * * it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.' (Emphasis supplied.)" See also Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) and McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924).
Of special import is People v. Capoldi, 10 Ill.2d 261, 139 N.E.2d 776, which deals with a case brought under the Illinois Criminal Sexual Psychopath Act, and the court informatively stated at 139 N.E.2d 779: "Over defendant's objections the [trial] court admitted into evidence two statements signed by him in 1936, following the murder of the five-year-old girl. He contends they are confessions which should not have been admitted in this proceeding without a preliminary hearing as to their voluntariness. Each of the statements is in the form of answers to questions propounded to defendant while in the custody of police, and relate in full detail the commission of a revolting sex murder. Had they been offered in a prosecution for the murder there could be no question of their character as confessions. In such cases the burden is always on the State to prove * * * the purported confession is free from the taint of unreliability because of promises, intimidation or coercion. (Case cited.) The rule that the use of involuntary confessions at a criminal trial violates due process of law and that the State must prove, at a hearing out of the jury's presence, the confession to have been voluntarily made, is so well established that citation of authority is unnecessary. The State argues, however, that the present proceeding is not a criminal case, and that the statements were not admitted in their character as confessions but merely as admissions against interest.
"Insofar as the present requirements of due process are concerned, it is of little significance that the proceedings are civil in nature. A defendant found to be a sexually dangerous person under the Act is deprived of his liberty as a consequence, and must be accorded the protections of due process in his trial. We conclude that in proceedings under the act, as well as in trials for criminal offenses, the admission of statements which are in the nature of confessions requires preliminary proof of their voluntary character. We also think the statements in question here, while they are not in terms admissions or confessions that defendant is a sexually dangerous person, must be regarded as such for the purposes of the present requirement." (Emphasis supplied.)
I would accordingly hold the fundamental principle proclaimed in Miranda v. Arizona, supra, must be accorded full recognition in *897 the trial of any party informed against under chapter 225A, Code, 1966, and was applicable as to the testimony of Detective Meikle in the sexual psychopath trial of defendant Scheetz.
III. But plaintiff argues defendant was not in custody at time of questioning by the police officer. Accordingly we must look to all the circumstances attendant upon the interrogation process. See Greenwald v. Wisconsin, 390 U.S. 519, 88 S.Ct. 1152, 1153-1154, 20 L.Ed.2d 77.
As disclosed by the majority opinion, Scheetz appeared at the police station pursuant to a request previously made. And according to the record he was there questioned by Meikle for at least an hour and a half, as a result of which self-incriminatory statements were obtained.
The majority quotes at length a portion of Officer Meikle's testimony regarding his questioning of defendant, but in so doing overlooks some questions and answers given by this officer, found in the trial transcript which is before us. I refer to the following:
"Q. Officer, let me direct your attention to the date of January 30, 1966. Were you employed as a detective for the Cedar Rapids Police Department at that time? A. Yes, sir, I was.
"Q. And did you have cause to make any investigation into any incidents regarding Oscar William Scheetz, Jr.? A. Yes, I did.
"Q. Can you tell uslet me direct your attention to approximately seven-thirty p. m. on the date of January 30, 1966. Did you have an opportunity to discuss and question Oscar William Scheetz, Jr.? A. Yes, sir, I did.
"Q. All right. A. He came into the station at about six p. m. that same evening as I had asked him to do and I talked to him in relationship to a number of assaults that had taken place in the city and during that period of time he had been identified by two witnessescomplaining witnesses as the man who had approached them on the street and as you state, about seven-thirty, I began typing a statement of his admissions to those assaults." (Emphasis supplied.)
This alone serves to disclose, when Detective Meikle asked that Scheetz come to the police station the officer then had substantial reason to believe defendant was a prime suspect in the matters to be discussed. From this it reasonably follows, any investigation pursued by Meikle had focused on defendant at the time he was invited to report at the station. As a result that entire interrogation process was accusatory in nature. See Escobedo v. Illinois, 378 U.S. 478, 484-486, 84 S.Ct. 1758, 1761-1762, 12 L.Ed.2d 977.
Moreover, after defendant, "had been identified by two witnessescomplaining witnesses as the man who had approached them on the street", Meikle had probable cause to arrest. It must also be presumed he would perform his duty and effect that arrest. Any other holding would permit an unbridled frustration of Miranda's commands.
Considering now the matter of incustody-inquiries, the court said in Miranda v. Arizona, supra, at page 444, 384 U.S., page 1612, 86 S.Ct.: "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."
Unquestionably Scheetz was subjected to an invited police station interrogation, which in turn means it was initiated by Officer Meikle.
Upon the basis of the record before us it cannot be said defendant was under "arrest" in the strict or legal sense of that term when he entered the station. On the other hand the matter of deprivation of his freedom of action in any significant manner is a factor which must be considered.
*898 Initially I refer to this statement in People v. Gioviannini, Cal.App., 67 Cal. Rptr. 303, 310: "It is not necessary for a person to be under arrest for him to be in custody. Even one who comes to a police station voluntarily may be regarded as in custody. (Cases cited)."
Myers v. State of Maryland, 3 Md.App. 534, 240 A.2d 288, involved a factual situation similar to that presented in the case with which we are here concerned. There, police officers in a squad car observed a suspect walking along a street. The policemen stopped and told the subject they wanted to talk to him, whereupon he entered the automobile. Without giving those warnings postulated by Miranda, the officers questioned the suspect and he orally confessed commission of a crime. That confession was held inadmissible in evidence, on trial, with this pertinent statement, loc. cit., 240 A.2d 291: "* * * the questioning of the appellant by the police officers in their police vehicle constituted a `custodial interrogation' within the ambit of the Miranda decision. As heretofore indicated, the appellant was the prime suspect in a murder case and the police had undertaken to find him. Once located, he was suddenly taken from the public street, and placed in a police car with two officers who interrogated him about the crime as the car moved toward police headquarters. That appellant was not free to leave the officers is wholly evident from the record, and we think `the atmosphere' thus created was such as carried `its own badge of intimidation.' See Miranda, 384 U.S. at page 457, 86 S.Ct. 1602. We conclude that appellant's interrogation constituted `questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way,' squarely within Miranda's meaning, and consequently we hold that the lower court erred in admitting appellant's oral confession in evidence against him."
Another case dealing with the issue at hand is Seals v. United States, 117 U.S. App.D.C. 79, 325 F.2d 1006. There Seals, walking along the street, was approached by FBI agents cruising in an automobile. They stopped and asked if he would come to the car, stating that they wanted to talk to him. He complied and entered the vehicle. The officers then drove a few blocks away, stopped the car and started talking to Seals. From there the party went to Seals' apartment where there was more talk. They then went to the FBI downtown office. Seals was then told he did not have to talk, had a right to consult a lawyer before talking, but if he did talk anything said could be used against him in court, and he was free to leave. Defendant then confessed the commission of a crime.
In course of trial the judge found, as the result of a "voir dire" examination, Seals was not under arrest prior to the confession.
On appeal the reviewing court reversed and in so doing stated at 325 F.2d 1008-1009: "Viewing the evidence in the light most favorable to the Government, and giving the court's finding the great weight to which it is entitled, we must nevertheless conclude that Seals was under arrest at least from the time (about 4:30 p. m.) he was brought to the Field Office in the company of the agents. Such a conclusion seems to us well nigh irresistible. By that time, Seals `would have been rash indeed to suppose he was not under arrest,' Kelley v. United States, 111 U.S. App.D.C. 396, 398, 298 F.2d 310, 312 (1961). From that point on he was in what was the equivalent of a police station, he was in the constant company of one or more FBI agents, and was subjected to almost constant interrogation. It seems to us these circumstances dictate a finding that even without any physical restraint Seals necessarily must have understood that he was in the power and custody of the FBI and that he submitted to questioning in consequence. As we held in Coleman v. United States, 111 U.S.App.D.C. 210, 218, 295 F.2d 555, 563 (en banc 1961), this *899 would constitute arrest, even though no actual force or visible physical restraint was used, or any formal declaration of arrest made. The fact that Seals was told that he was free to leave and that he was not under arrest would hardly in the circumstances in which he found himselfnever left alone and constantly in the company of FBI agents in their offices (observed by him to be difficult of access and presumably thought to be difficult of exit) suggest to him, a 19-year old high school student, that he was in fact free."
Also in point is United States v. Harrison, D.C., 265 F.Supp. 660. In that case police officers suggested a party accompany them to the station house for questioning relative to his possible involvement in violation of narcotics laws. He complied, and at police headquarters, absent the Miranda warnings, made certain incriminatory statements relative to possession of wagering materials, later subjected to a motion to suppress. In upholding that motion the court said at 265 F.Supp. 662: "The government's contention that the statement was properly taken and the wagering materials were legally seized breaks down into two major premises. First, it is said that Harrison voluntarily appeared in the station house and submitted to questioning. Second, the prosecution urges that information gleaned largely, if not entirely, from the interview engendered `probable cause' for the officers' search of Harrison's store. Unfortunately, I am unconvinced by the first premise or argument; rather, I find that the totality of circumstances as stated in the prosecution's version of what transpired at the station house amounted to `custodial interrogation', as that term is defined in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)."
Actually, the word "custody" defies any precise definition. It depends more upon the environmental situation in which a person is placed, by reason of which he may have cause to believe his freedom of movement is or will be restricted by official authority, than on the subjective intent of the interrogator.
In this respect, one of the vices attendant upon custodial interrogation which Miranda and Escobedo condemn is that which lies in the psychological coercion implicit in any isolated questioning, with the resultant effect an individual may reasonably believe he is not at liberty to leave. Under such circumstances a party being interrogated finds himself deprived of freedom of movement. Lacking knowledge of his constitutional rights he may understandably feel he can best avoid implication or absolve himself only by submitting to interrogation; that silence will be nothing short of self-incrimination. He may also reasonably believe any attempt to leave will have the same result, and will further serve to provoke immediate isolatable detention.
With regard to the foregoing the court said in Miranda v. Arizona, supra, loc. cit., 384 U.S. 461, 86 S.Ct. 1620-1621: "We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law-enforcement officers during in-custody questioning. An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion * * * cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery." (Emphasis supplied.)
A consideration of all circumstances attendant upon the police station interrogation of Scheetz leads to no other conclusion than that he, being a prime suspect, was then and there deprived of his freedom in a significant manner by official authority. In support hereof see also *900 Orozco v. Texas, 394 U.S. ___, 89 S.Ct. 1095, 22 L.Ed.2d 311, opinion filed March 25, 1969; United States v. Gower, (M.D. Penn.), 271 F.Supp. 655, 660-661; People v. Hazel, 252 Cal.App.2d 412, 60 Cal.Rptr. 437, 440-441; People v. P. Rodney, 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255; and Annos. 10 A.L.R.3d 1054.
Moreover, the record, quoted by the majority, discloses Detective Meikle, in testifying as a witness for plaintiff, related in detail the interrogation-obtained damaging statements and admissions made to him by defendant.
I would resultantly hold, with regard to custodial questioning by Meikle, defendant was entitled to all pre-interrogation warnings prescribed by Miranda, some of which were not given, and upon the basis of authorities cited, supra, trial court erred in overruling defendant's objections to the evidence of this police officer relative to in-custody admissions or confessions obtained by him from defendant.
Additionally, the erroneous admission of any or all such evidence, even in the presence of other testimony which might alone be sufficient to sustain a verdict finding defendant to be a criminal sexual psychopath, clearly constitutes reversible error. Supporting this principle is Estes v. Texas, 381 U.S. 532, 562-563, 85 S.Ct. 1628, 1643, 14 L.Ed.2d 543, where the court held, if an involuntary confession is introduced into evidence, over objection, at a state trial, the conviction must be reversed even though there is other evidence in the record to justify a guilty verdict.
IV. Additionally Division IX of the majority opinion contains this statement: "Defendant challenges Dr. Hege's testimony relative to his findings resulting from a judicially prescribed examination of defendant as in-custody interrogation and inadmissible."
I do not find that allegation among defendant's assigned errors and note the majority does not list it among those relied on for reversal.
As best I can determine no issue is here presented relative to constitutional admissibility in evidence of inculpatory or exculpatory statements made by defendant to the psychiatrist in course of the court ordered psychiatric examination.
Under these circumstances any determination of that issue should be withheld until it is squarely presented, briefed and argued to this court. This is in keeping with the rule that where a question is not presented for determination by trial court, nor assigned as an error or a proposition relied on for reversal, it will not be considered on appeal. See B-W Acceptance Corp. v. Saluri, 258 Iowa 489, 499, 139 N.W.2d 399; and Bryan v. Iowa State Highway Commission, 251 Iowa 1093, 1095-1096, 104 N.W.2d 562.
I submit, absent an adversary presentation, any attempt to resolve the problem, here gratuitously injected into the majority opinion, unavoidably compels this court to adopt the position of an advocate. This is demonstrated by the divergent views expressed in People v. Garcia, Cal.App., 74 Cal.Rptr. 103; People v. Potter, 85 Ill.App.2d 151, 228 N.E.2d 238; State v. Obstein, 52 N.J. 516, 247 A.2d 5; and State v. Whitlow, 45 N.J. 3, 210 A.2d 763.
V. By reason of the conclusions set forth in Divisions I, II and III of this dissent, I would reverse and remand for a new trial.
MASON and BECKER, JJ., join in this dissent.
STUART, J., joins in all but Division III of this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611752/ | 11 So.3d 367 (2009)
DAVIS
v.
STATE.
No. 4D08-899.
District Court of Appeal of Florida, Fourth District.
May 20, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612161/ | 745 F.Supp. 377 (1990)
Sheila CAWTHON and Theresa Cawthon, Plaintiffs,
v.
The CITY OF GREENVILLE, a Municipal Corporation Organized Under the Laws of the State of Mississippi, Defendant.
No. GC89-94-B-O.
United States District Court, N.D. Mississippi, Greenville Division.
May 18, 1990.
*378 *379 Stan Perkins, Greenville, Miss., for plaintiffs.
Susan D. Fahey and Gary Friedman, Jackson, Miss., for defendant.
MEMORANDUM OPINION
BIGGERS, District Judge.
This cause comes before the court on the defendant's motion for summary judgment. Having read the pleadings, motion and the parties' memoranda, the court is prepared to rule in accordance with Fed.R.Civ.P. 56.
I. FACTS
The plaintiffs sue the City of Greenville under 42 U.S.C. § 1983, alleging that their constitutional rights were deprived pursuant to municipal policy when they were assaulted by a Greenville police officer on the morning of February 2, 1988.
Viewed in the light most favorable to the plaintiffs, the relevant facts are as follows. Officer Levion Gooch was acting desk sergeant when the plaintiffs and a third person, Michael Duvall, were brought into the station to be booked for various misdemeanor charges. Gooch was the highest ranking officer in the booking area, and as desk sergeant, her duties included handling the radio and incoming telephone calls, assisting with paperwork, and booking prisoners. She was not to search any female prisoners unless there was no female matron on duty at the jail at the time the prisoners were brought in for booking.[1]
Gooch assaulted each of the three prisoners during an approximate ten minute period. The three handcuffed prisoners were brought into the station early in the morning, and several other officers were present in the booking area. For reasons which are disputed, Gooch became extremely angry with one of the plaintiffs, Theresa Cawthon, came out from behind the booking counter, repeatedly slapped Theresa, dragged her by the hair out of sight of the other prisoners and then banged Theresa's head several times against a wall. When Sheila Cawthon complained about the treatment her sister was receiving, Gooch turned towards Sheila and repeatedly slapped her, bursting her lip and knocking her to the floor. Michael Duvall, who was being restrained by two officers, was also either kicked or slapped by Gooch. He too was knocked to the floor. Gooch then returned to Theresa and placed her boot upon Theresa's neck. At some point during the fray, an officer in the booking area shouted "That is enough!", and Gooch ended her assaults. The plaintiffs received minor bruises and contusions in the incident.
Seven other police officers witnessed portions of Gooch's assaults, and all of the officers who witnessed Gooch's actions later agreed that Gooch used excessive force against the prisoners.[2] However, during the assaults, none of the officers made any attempt to physically intervene and protect the prisoners. Instead, the officers radioed Lieutenant Kenneth Campbell, the shift commander, and summoned him to the station immediately. By the time Campbell arrived the altercation had ended. However, due to the serious nature of the incident, Campbell immediately requested a statement from each witnessing officer, and Gooch was later fired for her use of unreasonable force against the prisoners. None of the seven officers who witnessed Gooch's assaults were officially reprimanded for their failure to protect the three prisoners.
The plaintiffs produce some evidence that Gooch was prone to acting violently, and that the City was aware of this tendency before she assaulted the plaintiffs. In *380 August, approximately six months before Gooch assaulted the plaintiffs, the afternoon jailor filed a complaint against Gooch and alleged that she used unnecessary force while attempting to put a twelve-year-old shoplifting suspect into a cell block. Gooch was orally reprimanded by Officer Wynn, the chief of police, for using bad judgment and not requesting assistance from fellow officers.[3] However, the record does not reveal whether Gooch actually used excessive force as alleged in the jailor's complaint.
Within six months prior to her assault upon the plaintiffs, Chief Wynn was also informed that Gooch was receiving medical care for a mental condition. After discussing Gooch's situation with a doctor, Wynn ordered Gooch's weapon taken and her reassignment to a position as desk sergeant, and Lieutenant Campbell was instructed not to let her back "on the street" until further notice.[4] According to Campbell, Gooch was placed there so that she would not come into direct contact with the public.
Prior to Gooch's assaults upon the plaintiffs, Campbell also expressed his concern to Chief Wynn regarding Gooch's performance. Specifically, he informed Wynn that Gooch exhibited rapid mood swings and that he was afraid she might become violent. At that time, however, Campbell had never witnessed Gooch commit any violent acts and had only seen her commit small procedural or disciplinary errors. She also sometimes acted as though she didn't have to follow orders.[5]
In response to Campbell's input, Chief Wynn ordered Campbell to document any inappropriate behavior by Gooch which would warrant disciplinary action, and stated that sufficient documentation was needed to safeguard against potential legal liability. Although Campbell was concerned with Gooch's behavior, no longer wanted her on his shift and had been advised to document any incident warranting disciplinary action, he documented no incidents of misconduct from September, 1987, until Gooch assaulted the plaintiffs the following February. In fact, Campbell concedes that, at times, Gooch was an excellent officer.
The defendant argues that, on these facts, the plaintiffs have failed to sufficiently demonstrate that they were injured pursuant to a city policy, practice or custom. In contrast, the plaintiffs allege that a municipal policy or decision can be established through four separate theories:
1) That the defendant was aware of Gooch's propensity for violence, yet failed to properly protect the plaintiffs;
2) That Chief Wynn's failure to properly and fully discuss the nature of the August complaint with Gooch resulted in her assaulting the plaintiffs;
3) That the city failed to promulgate sufficient rules and regulations concerning when to curb a superior officer's use of excessive force; and
4) That the inaction of the seven witnessing officers indicates a common policy within the police department to condone acts of violence committed by police officers upon the public.
II. LAW
To recover from a municipality under the Civil Rights Act, the plaintiffs must demonstrate that their constitutional rights were deprived pursuant to some city policy, practice or custom. Monell v. Dept. of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The plaintiffs may not prevail on a theory of respondeat superior liability, and they must demonstrate that the policy, practice or custom was the moving force behind their constitutional *381 deprivations. Id. at 694, 98 S.Ct. at 2037; Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981). Because the plaintiffs bear the burden of proof on these elements at trial, they also bear the burden of withstanding the defendant's motion for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
The Fifth Circuit has defined an official policy, practice or custom as:
1) A policy statement, ordinance, regulation or decision that is officially adopted and promulgated by the municipality's law-making officers or by an official to whom the law-makers have delegated policy-making authority; or
2) A persistent widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body has delegated policy-making authority.
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.1984) (en banc), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985). In light of the Fifth Circuit's definition of policy, practice or custom, the court will rule on each of the plaintiffs' theories in turn.
A. Gooch's Propensity for Violence
The parties do not challenge the constitutionality of Greenville's official regulations regarding the duties of its desk sergeants. Instead, the plaintiffs claim that the City is liable because it knew of Gooch's alleged propensity for violence, yet failed to take sufficient steps to protect the public. The plaintiff cites no relevant authority directly in support of this proposition.[6]
The Supreme Court recently determined that a municipality can be held liable under § 1983 for a failure to properly train its police force. Canton v. Harris, 489 U.S. 378, ___, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412, 427 (1990). To hold a city liable under this theory, a plaintiff must show that the municipality knew to a high degree of certainty that some constitutional violation would occur unless a more effective training policy was implemented, and that the city shirked its responsibility to the public by demonstrating a deliberate indifference to the need for more effective training.
The defendant urges the court to apply the Harris deliberate indifference standard to the city's transferral of Gooch to the position of desk sergeant, and the court finds the defendant's argument persuasive. As in Harris, the present case involves a valid police procedure which was unconstitutionally applied by a municipal employee. The question is whether the city may be held liable for not preventing Gooch's assaults because it made a conscious decision, which rose to the level of official policy, to forego protecting the constitutional rights of the public. See Harris, 489 U.S. at ___, 109 S.Ct. at 1204, 103 L.Ed.2d at 427. In explaining its use of a deliberate indifference standard, the Harris Court stated:
To adopt lesser standards of fault and causation would open municipalities to unprecedented liability under § 1983. In virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to something the city `could have done' to prevent the unfortunate incident.... Thus, permitting cases against cities ... on a lesser standard of fault would result in de facto respondeat superior liability on municipalities a result ... rejected in Monell.
489 U.S. at ___, 109 S.Ct. at 1206, 103 L.Ed.2d at 428-429. Cf. Stokes v. Bullins, *382 844 F.2d 269, 273 (5th Cir.1988) (some conscious choice, not mere negligence, necessary for liability regarding municipality's failure to act).
Applying the appropriate standard, the court finds no evidence of deliberate indifference on the part of the defendant. Through Chief Wynn, the City consistently implemented reasonable safeguards to respond to each new bit of information it received about Gooch. Wynn orally reprimanded Gooch after the complaint was filed in August. Once he became aware that she was receiving treatment for a mental condition, he took her off street duty and her gun was removed. He placed her in a structured environment where she verbally interacted with prisoners from behind a counter and was only rarely required to remove property from handcuffed, female prisoners in the presence of fellow officers. In this role, she was never required to physically subdue any prisoners. Considering her limited exposure to inmates and the public, the Chief had little, if any, reason to suspect that Gooch might flagrantly disregard regulations and leap from behind the counter to assault three handcuffed prisoners who were not posing any kind of physical threat. Although the shift commander complained of Gooch's performance and possible mental instability, he was not a mental health professional and his documented examples of inappropriate behavior pertained to small procedural and disciplinary problems. In fact, for the five months preceding Gooch's assault upon the plaintiffs, the shift commander recorded no problems regarding Gooch's performance even though he was ordered to do so should Gooch deserve any disciplinary action.
While hindsight reveals that Chief Wynn underestimated Gooch's irascibility, his error does not rise to the level of deliberate indifference, and the court will not second-guess the Chief's decision on this matter. Close ex post scrutiny of municipal decisionmaking "is an exercise ... the federal courts are ill-suited to undertake." Harris, 489 U.S. at ___, 109 S.Ct. at 1206, 103 L.Ed.2d at 429.
B. Gooch's Prior Reprimand
The plaintiffs alternatively assert that the Chief's failure to more strongly reprimand Gooch for the complaint filed by the jailor was a municipal policy which proximately caused the plaintiffs' injuries.
While the August complaint alleged that Gooch used excessive force, the investigation report clearly reveals only that Gooch used bad judgment in failing to request assistance from other officers. However, assuming that Gooch should have been reprimanded for using excessive force, the Chief's failure to deliver a more eloquent reprimand can hardly be construed as a conscious policy decision, custom or practice which can be the basis of municipal liability. See Stokes, 844 F.2d at 273 (negligence insufficient). Furthermore, the alleged shortcomings of Chief Wynn's reprimand cannot be considered the "moving force" or proximate cause of Gooch's sudden, emotional outburst which occurred approximately six months later. Monell, 436 U.S. at 694, 98 S.Ct. at 2037; Polk County, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981).
C. Failure to Train
The plaintiffs' last two theories of liability rely upon the inaction of the seven witnessing officers as a basis for asserting municipal liability. The plaintiffs assert that noninterference on the part of the officers indicates either the defendant's failure to promulgate proper rules and regulations, or a common policy condoning the use of excessive force by the city's police officers.
In essence, the first of these allegations charges that the defendant failed to adequately train its officers. Therefore, the court will apply the Supreme Court's analysis in City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1990).
In Harris, the Court held that a failure to adequately train police officers could properly be construed as municipal policy if the municipality demonstrated deliberate indifference to an obvious need for more adequate training with respect to the usual and recurring situations which police officers *383 could be expected to encounter. Id., 489 U.S. at ___, 109 S.Ct. at 1205, 103 L.Ed.2d at 427-28.
In the present case, the defendant failed to promulgate a regulation authorizing an officer to intervene and physically prevent a superior officer from using excessive force against a person in custody.[7] Rather, department procedure required that a complaining officer summon to intervene another officer of equal or higher rank to the superior whose behavior was questioned, if he or she truly believed that intervention was necessary.
The court finds that any training inadequacy, if present, is not of the sort with which the Court was concerned in Harris, for physically intervening and neutralizing a superior officer's use of excessive force is not the type of usual and recurring situation which an officer can be expected to encounter within the normal scope of his or her duties.[8] Indeed, superior officers generally become ripe candidates for promotion and attain their higher rank by demonstrating high standards of professionalism and exhibiting other admirable qualities in performance of their duties, and in this situation, the court cannot assume that proper training should necessarily have included rules regarding when to curb the unwarranted acts of a superior officer. Clearly, there was not such an obvious need for such a regulation that the defendant's failure to promulgate one can be considered deliberately indifferent behavior.
D. Common Practice of Condoning Excessive Force
Finally, the plaintiffs argue that the witnessing officers' failure to intervene evidences a police department practice of using or tolerating excessive force against the general public "which is so common and well settled as to constitute a custom that fairly represents municipal policy." Bennett, 735 F.2d at 862. Mindful of the plaintiffs' burden to withstand the defendant's motion for summary judgment, the court finds that the plaintiffs have failed to produce sufficient evidence supporting this allegation.
Without additional evidence, the existence of a municipal policy cannot be inferred from a single instance of misconduct by a subordinate non-policymaking employee. Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). Consequently, a policy cannot be inferred merely from Gooch's misconduct. Therefore, the plaintiffs allege that the concerted inaction of the witnessing officers and Chief Wynn's later failure to issue reprimands for their passivity is additional evidence from which the court may reasonably infer that an acknowledged custom of using excessive force existed prior to Gooch's assaulting the plaintiffs.
Although not cited by either party, Grandstaff v. City of Borger, Texas, 767 F.2d 161 (5th Cir.1985), lends some support to the plaintiffs' position. In Grandstaff, the entire night shift of the Borger police department opened fire upon and killed an innocent person after mistaking him for a fugitive. Id. In affirming liability against the city, the Fifth Circuit held that the officers' concerted action indicated a prior existing policy authorizing the reckless use of deadly force, and that a prior unconstitutional policy could also be inferred from the city's subsequent failure to reprimand, discharge or admit error on the part of any of its officers. Id. This additional evidence, concluded the court, allowed a factfinder to reasonably infer a municipal policy based on a single incident of conduct. Id.
*384 Despite some similarities between the facts in Grandstaff and in the present case, the court does not find the rationale of Grandstaff controlling. The inferences permitted by the Grandstaff opinion approach dangerously close to dissolving the direct liability rationale of Monell and imposing respondeat superior liability upon a municipality. Precisely because of this danger, the Fifth Circuit has expressly limited Grandstaff to "equally extreme factual situations." Coon v. Ledbetter, 780 F.2d 1158, 1161 (5th Cir.1986).
It is readily apparent that any police misconduct in the present case comes nowhere near the extreme factual situation of Grandstaff. In the case at bar, the officer which used excessive force was removed from the police force as a result of her misconduct. While the failure of seven other officers to intervene can hardly be condoned as admirable behavior, one officer shouted his disproval at Gooch's actions and several others immediately went to the radio room to summon Lieutenant Campbell. Indeed, the failure of these officers to physically confront a superior officer can hardly be compared to the egregious behavior of the officers who recklessly exercised deadly force in Grandstaff. And, unlike the defendant in Grandstaff, there is no evidence that the present defendant has attempted to shield itself after the fact by engaging in "unworthy, if not despicable, means to avoid legal liability." Coon, 780 F.2d at 1161.
Because the plaintiffs do not proffer sufficient evidence to demonstrate the existence of a custom sanctioning excessive use of force by members of Greenville's police department, the court cannot infer, based solely on Gooch's actions, that such a policy indeed existed on the night the plaintiffs were assaulted. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791. As with the plaintiffs' other theories of liability, this theory also fails.
III. CONCLUSION
For the foregoing reasons, the court finds that no genuine issue of fact exists as to whether the plaintiffs were injured pursuant to a municipal policy, practice or custom. Consequently, the defendant's motion for summary judgment is well taken and will be granted. An order in conformance with this opinion will this day issue.
NOTES
[1] It is unclear whether a matron was on duty at the jail on the night in question. The record reveals only that a matron is currently on duty every night at the Greenville jail, and that in the past there have been some "staggered periods" when the City has operated without one late at night. With no matron on duty, it would have been Gooch's responsibility to search only female prisoners.
[2] While the plaintiffs' brief alleges that five officers were present at some time during the assaults, the deposition of Lieutenant Kenneth Campbell reveals that up to seven officers witnessed at least some portion of Gooch's outburst.
[3] A written reprimand was also placed in Gooch's personnel file, but Gooch only remembers receiving an oral reprimand.
[4] The record does not reveal the nature and extent of Gooch's psychological condition, the details revealed concerning Gooch's condition or with whom the Chief spoke.
[5] For example, Gooch was reprimanded for failing to follow proper radio procedure and for taking her break at an improper time. Additionally, she occasionally acted rudely while performing her duties.
[6] Of the three cases cited in the plaintiffs' memorandum, two involve respondeat superior liability under common law, and the last addresses individual liability under § 1983 for failure to supervise.
[7] While Lieutenant Campbell testified that a lower officer was permitted to physically intervene and prevent a superior officer's excessive use of force in emergency situations, he could remember no written official regulation authorizing this type of intervention.
[8] While rules limiting the amount of force used against persons in custody are necessary for the competent functioning of any police force, Gooch's apparent inability to follow the defendant's rules does not, in and of itself, substantiate a claim for failure to train under § 1983. A plaintiff cannot demonstrate the existence of a municipal policy, practice or custom by merely proving that "an otherwise sound program has ... been negligently administered" with respect to an individual officer. See Harris, 489 U.S. at ___, 109 S.Ct. at 1206, 103 L.Ed.2d at 428. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611826/ | 540 F.Supp. 515 (1982)
Elizabeth POWELL, et al., Plaintiffs,
v.
Benjamin WARD, et al., Defendants.
No. 74 Civ. 4628(CES).
United States District Court, S. D. New York.
May 27, 1982.
*516 Linda R. Singer, Special Master, Goldfarb, Singer & Austern, Washington, D. C., Elizabeth L. Koob, Bronx Legal Services Corp. C, New York City, for plaintiffs.
Susan Yarborough, Asst. Atty. Gen., State of New York, Dept. of Law, New York City, for defendants.
MEMORANDUM DECISION
STEWART, District Judge:
On April 29, 1980 we appointed Linda R. Singer, Esq., Special Master in this case to oversee defendants' compliance with our orders concerning prison disciplinary proceedings at Bedford Hills Correctional Facility. The Special Master has now submitted her Second and Third Reports to the court, dated February 5, 1982 and April 7, 1982, respectively, with amendments dated April 28, 1982. The Second Report evaluates the defendants' compliance with previous orders entered in this case[1] for the period beginning March 1, 1981 and ending June 30, 1981. The Third Report examines the handling of 61 Superintendent's Proceedings that arose out of two separate incidents (the so-called "barricade incident" and "sit-in") that occurred at Bedford Hills on November 16, 1981. We have received from the plaintiffs a set of responses and objections to both reports. The defendants submitted a letter of general comment as to the Second Report, but filed no papers in response to the Third. We approve both reports from the Special Master, and as is discussed more fully below, we so order her recommendations concerning (1) the assessment of damages for due process violations reported in the two reports and (2) the continuation of her monitoring activities.
Authorization to Assess Damages
Through monitoring activities performed during the period of the Second Report, the Special Master found that 37 hearings at Bedford Hills had been conducted in violation of the court's orders. See Second Report, Amended Appendix R. In her evaluation of the 61 Superintendent's Proceedings that arose out of the November 16 incidents, the Special Master found all 61 defective. Third Report at 31. The defendants have not contested any of the facts upon which the Special Master concluded these hearings improper. Indeed, the defendants have voluntarily reversed all *517 98 hearings, and expunged all related records. In many cases, this reversal and expungement by the defendants would seem sufficient to remedy all injuries suffered by those subjected to faulty hearings. See Powell v. Ward, 487 F.Supp. at 936. There may be cases, however, in which such actions by the defendants are not sufficient. While damages are not to be presumed in "every departure from procedural due process", Carey v. Piphus, 435 U.S. 247, 263, 98 S.Ct. 1042, 1052, 55 L.Ed.2d 252 (1978), if actual injury is established, an award of damages may not be withheld. Powell v. Ward, 643 F.2d at 934. We note that compensatory damages have been awarded for illegal confinement to a segregation cell, which resulted in the loss of vocational training, normal exercise, and shop wages, and which caused the inmate severe mental suffering and anguish. See Taylor v. Clement, 433 F.Supp. 585, 589 (S.D.N.Y.1977); see also United States ex rel. Neal v. Wolfe, 346 F.Supp. 569, 576 (E.D.Pa.1972). Since the defendants have conceded that 98 hearings conducted at Bedford Hills were in violation of the inmates' due process rights, we believe it is appropriate to allow those inmates the opportunity to prove any actual injury suffered. Given the large number of inmates involved, however, the administrative burdens associated with assessing damages in this case may be formidable. Accordingly, we adopt the recommendation of the Special Master that she be authorized to hear, report and recommend on the issue of damages arising from the improper hearings listed in Amended Appendix R of the Second Report, and the 61 hearings evaluated in the Third Report. We note that Special Masters are commonly used to aid the court in computing damages in large or complex cases. See Foster v. City of Detroit, Michigan, 254 F.Supp. 655, 669 (E.D. Mich.1966), aff'd, 405 F.2d 138 (6th Cir. 1968); Trans World Airlines, Inc. v. Hughes, 308 F.Supp. 679, 682 (S.D.N.Y. 1969). See also Note, "Mastering" Intervention in Prisons, 88 Yale L.J. 1062, 1068 n.37 (1979). To expedite the Special Master's processing of claims arising from these hearings, we set out procedures to be followed by the parties in the Order attached to this Memorandum Decision.
2. Continued Monitoring
While the Second Report of the Special Master initially recommended six months of continued monitoring at Bedford Hills, the Third Report, noting the personnel changes that had occurred at the Facility in the interim,[2] recommends that monitoring be continued for one year. See Third Report at 33. In response to the Special Master's initial recommendation of six months, the defendants stated that they "do[] not object to a continued monitoring period by the Special Master with the express purpose of monitoring the self-correcting mechanism". Letter to Linda R. Singer from Ramon J. Rodriguez, March 16, 1982, at 2. The plaintiffs, in response to both Reports, request that monitoring be continued for two years. Plaintiffs' Response and Objections to the Second Report of the Special Master at 7; Plaintiffs' Response and Objections to the Third Report of the Special Master at 5. We approve the recommendation of the Special Master that monitoring be continued for one year. We assume that with proper attention to the problem areas identified by the Special Master, the new management at Bedford Hills will be able to achieve systematic compliance with our Orders within a year's time. If this expectation is not realized one year from now, additional monitoring is a possibility. For the present, however, we presume that compliance can and will be achieved.
3. Other Matters Requested by the Plaintiffs
In their Responses and Objections to the Second and Third Reports, the plaintiffs also request (a) that the defendants be fined for their continued noncompliance, and (b) that the Special Master be authorized *518 to recommend the removal of certain personnel from the institution. We deny both requests. While the defendants' have failed to achieve the systematic compliance required by our Memorandum Decision of February 27, 1980, see Powell v. Ward, 487 F.Supp. at 935, progress has been made at the Facility. The defendants' replacement of the executive team in charge of Bedford Hills, moreover, indicates a commitment on the part of the Department of Correctional Services to achieving full compliance in this area. We thus conclude that both a fine and authority over personnel decisions are unwarranted at this time.
SO ORDERED.
ORDER
For the reasons explained in the Memorandum Decision issued this day, it is hereby:
1. ORDERED that the Special Master be authorized to hear, report and recommend to the court as to any damages arising out of the defective hearings identified in the Amended Appendix R of her Second Report to the Court and in her Third Report to the court. This assessment of damages shall be carried out in the following manner:
(a) Any inmate or former inmate who contends that she suffered actual, compensable injury as a result of a defective hearing identified in the aforementioned Reports by the Special Master shall submit to the Special Master, with a copy to defendants' counsel, an affidavit made on personal knowledge which describes in specific terms the nature and extent of the damage incurred. These affidavits shall be submitted within 60 days of the date of this Order.
(b) The defendants may submit a counter-affidavit, made on personal knowledge, contesting or supplementing the facts related in the inmate's affidavit, or request the Special Master hold hearings on the claim. Counter-affidavits shall be submitted within 30 days of receipt of the inmate's affidavit; hearings shall be requested within 14 days of the receipt of such affidavits.
(c) The Special Master shall promptly schedule any hearing requested by defendants and may, in her discretion, order a hearing as to any claim.
(d) The Special Master shall report back to court within 45 days of the receipt of the last counter-affidavit submitted by the defendants or the last hearing, whichever is later, with her findings and recommendation as to damages. The parties shall have two weeks to respond or object to any matter contained in said report.
2. ORDERED that the Special Master continue monitoring the defendants' efforts to comply with this court's orders for a period of one year from the date of this Order. During the first six months, the Special Master shall work with the new administrators at Bedford Hills to assist them in their compliance efforts. The Special Master shall submit a compliance report to the court at the end of this six month period that identifies problems remaining at the Facility. During the second six months, the Special Master's monitoring efforts will be limited to those areas in which the defendants continue to demonstrate problems, as well as the defendants' efforts to develop an effective internal monitoring system. By proceeding in this fashion, the Special Master can ensure that the defendants are meeting the obligations imposed by the court, without spending time on areas in which the defendants have come into compliance.
In addition, having received no opposition to the Special Master's application for a modification of rates of compensation dated April 6, 1982, it is hereby:
3. ORDERED that the rates set by this court on June 17, 1980 be modified to reflect the current hourly rates for the Special Master and her assistants, viz.:
Linda R. Singer, Esq. $125.00/hour
Ronald A. Schechter,
Esq. 95.00/hour
Frances J. Michael 30.00/hour
SO ORDERED.
NOTES
[1] We have previously entered in this case an Order of April 29, 1980; a Memorandum Decision of February 27, 1980, as modified on appeal, see Powell v. Ward, 487 F.Supp. 917 (S.D. N.Y.1980), aff'd as modified, 643 F.2d 924 (2d Cir. 1981); and a Stipulation and Order signed March 3, 1981.
[2] On April 2, 1982, the Department of Corrections replaced the former Superintendent of Bedford Hills and three Deputy Superintendents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611695/ | 11 So.3d 146 (2009)
EMC ENTERPRISE, INC., A Louisiana Corporation, Appellant
v.
MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
No. 2007-CC-01770-COA.
Court of Appeals of Mississippi.
May 19, 2009.
*147 David B. Grishman, Jackson, Benjamin Corey Windham, attorneys for appellant.
Albert B. White, Madison, attorney for appellee.
Before LEE, P.J., IRVING and BARNES, JJ.
BARNES, J., for the Court.
¶ 1. EMC Enterprises, Inc. ("EMC") appeals the Circuit Court of Hinds County's decision to affirm the denial of its appeal by the Mississippi Department of Employment Security Board of Review (Board of Review). Finding no error, we affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶ 2. In order to address the issues in the present case adequately, we must discuss antecedent events. In 1995, Mary Stevens, a product demonstrator (demonstrator) for EMC, a Louisiana corporation which provides demonstration services to manufacturers, food brokers, and marketing companies, filed a claim for unemployment benefits with the Mississippi Employment Security Commission (now the Mississippi Department of Employment *148 Security, or "MDES"). On February 5, 1996, MDES issued a decision stating that it considered the EMC demonstrator to be an independent contractor. The letter explained that this decision was based on a previous ruling by the Board of Review on appeal. That ruling involved a similarly-situated company and stated that an employer/employee relationship did not exist. However, the 1996 decision expressed that it was the personal opinion of Dale Smith, the MDES Chief of Contributions and Status, that the demonstrators and their supervisors, who were performing services for EMC in Mississippi, should be considered employees.[1]
¶ 3. The present case specifically concerns the application for unemployment benefits filed on April 18, 2004, by Donis C. Chatham, a demonstrator for EMC. On June 4, 2004, the MDES claims examiner ruled that Chatham had not refused work and, therefore, was not disqualified from receiving unemployment benefits. However, no determination regarding the chargeability of EMCs account was made at that time. EMC filed an appeal on June 13, 2004, as to whether Chatham was disqualified from receiving unemployment benefits as she was an independent contractor.
¶ 4. On June 28, 2004, MDES sent a letter to EMC informing the company that it was conducting an investigation to determine whether Chatham, and all other workers in that class, were employees or independent contractors. MDES requested that EMC complete an "Independent Contractor Questionnaire" and return the forms by July 9, 2004. The attorney for EMC, David Grishman, timely submitted the forms, along with an "Application to Perform Contract Services" completed and signed by Chatham. On July 6, 2004, a telephonic hearing was held before a referee with the MDES Appeals Department regarding Chatham's disqualification of benefits. Grishman represented the company at the hearing. Chatham did not participate in the hearing.
¶ 5. On July 21, 2004, the MDES referee rendered a decision finding not only that an "employer/employee" relationship existed between Chatham and EMC, but also that this classification applied to "all others in this class." The decision, which stated that an appeal could be taken within ten days from the date of the letter, was mailed to EMC's address of record. When no notice of appeal was received within the ten-day period, MDES sent EMC a status report on August 9, 2004, and informed EMC that wage reports should be completed and returned by August 24, 2004. Subsequently, EMC contacted Grishman on August 11, 2004, to discuss the status of the appeal. This was when EMC discovered that MDES had not notified Grishman of the decision. Grishman immediately contacted MDES to advise it of this omission. Grishman then followed up with a letter detailing the issue and requesting an appeal. On November 30, 2004, MDES conducted a telephonic hearing to determine whether EMC had good cause for not filing a timely appeal. On December 7, 2004, the MDES referee issued a decision finding that EMC's appeal of the July 21, 2004, decision was untimely.[2]
*149 ¶ 6. On December 6, 2004, EMC received two Employer's Quarterly Wage Reports for the periods ending June 30, 2004, and September 30, 2004, based on the new classification of its workers. On December 9, 2004, EMC filed the first of four written requests for hearing, as authorized by Mississippi Code Annotated section 71-5-365 (Rev.2000), to contest EMC's tax liability. Eventually, in a letter dated February 23, 2005, MDES scheduled a hearing for March 16, 2005, regarding the tax assessments.[3] Over strong objection by EMC, the referee limited the scope of the hearing to the assessment issue, stating that he lacked jurisdiction to hear the employee/independent contractor issue. Furthermore, the referee advised EMC that the issue of the classification of demonstrators was currently being addressed in a pending appeal before the Board of Review to determine whether EMC had filed a timely appeal. However, the referee was unaware of the current status of that appeal. EMC had not been notified of the pending appeal prior to this point; therefore, it moved to adjourn the hearing until the timeliness issue could be resolved. The referee denied EMC's request. EMC continued to object stating that MDES had violated EMC's right to due process as MDES had failed to respond to EMC's requests for information and to adhere to the administrative procedure set forth in section 71-5-365. In its defense of the wage assessments, EMC also attempted to present evidence regarding the workers' classifications, but the referee said he could only forward such information to the Board of Review. Pursuant to the statements made at the March 16th hearing, EMC wrote a letter on March 17, 2005, to the Board of Review requesting that it be allowed to present its evidence as to why it should be entitled to appeal the classification of demonstrators. This was followed by three subsequent letters reiterating EMC's position; however, MDES did not respond.
¶ 7. The Board of Review issued a decision on May 20, 2005, which affirmed the December 7, 2004, decision denying EMC a hearing due to its untimely appeal. The May 20, 2005, decision notified EMC that it had thirty days to appeal the decision to circuit court; however, the decision did not address the wage-assessment issue. On June 9, 2005, EMC filed a "Complaint and Appeal of Decision by Mississippi Department of Employment Security" with the Hinds County Circuit Court. After reviewing the complaint, Albert White, the attorney for MDES, realized that the May 20, 2005, decision did not address the Quarterly-Wage-Assessment issue. Consequently, on July 18, 2005, the Board of Review issued a letter amending its May 20, 2005, decision, which, along with affirming the denial of EMC's appeal based on untimeliness, also affirmed the referee's decision that EMC had failed to provide sufficient evidence that the Quarterly Wage Assessments were incorrect.
¶ 8. On June 26, 2007, the circuit court affirmed the December 7, 2004, decision *150 by MDES, stating that the notice sent to EMC was sufficient; therefore, EMC's appeal was filed untimely. Based on this holding, the circuit court declined to address the issue of whether the demonstrators were employees or independent contractors. MDES claims that, as the appeal as to Chatham's determination of eligibility was filed untimely, EMC should not be allowed to challenge the legal classification of the workers in question. Although EMC has fully briefed this Court on the issue of whether demonstrators are employees or independent contractors, we find, as did the circuit court, that we must first address the issue of the timeliness of EMC's appeal.
STANDARD OF REVIEW
¶ 9. Our review of an administrative appeal is well established. In the absence of fraud and if supported by substantial evidence, "an order from the Board of Review of the [MDES] on the facts is conclusive in the lower court[.]" Miss. Employment Sec. Comm'n v. PDN, Inc., 586 So.2d 838, 840 (Miss.1991). We will not disturb the decision of an administrative agency "on appeal unless it `1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one's constitutional rights.'" Pub. Employees' Ret. Sys. v. Dozier, 995 So.2d 136, 138(¶ 7) (Miss.Ct.App.2008) (citation omitted). "A rebuttable presumption exists in favor of the administrative agency's decision and findings, and the challenging party has the burden of proving otherwise." Cummings v. Miss. Dep't of Employment Sec., 980 So.2d 340, 344(¶ 13) (Miss.Ct.App.2008). However, "[i]f an agency's decision is not based on substantial evidence, it will be deemed arbitrary and capricious." Case v. Pub. Employees' Ret. Sys., 973 So.2d 301, 310(¶ 20) (Miss.Ct.App.2008) (citing Pub. Employees' Ret. Sys. v. Allen, 834 So.2d 50, 53(¶ 10) (Miss.Ct.App.2002)). "[E]mployment security contribution assessments are an excise tax and, therefore, every doubt as to their application must be resolved in favor of the taxpayer and against the taxing power." PDN, Inc., 586 So.2d at 840.
I. Whether MDES's failure to provide adequate notice to EMC's attorney denied EMC due process or provided "good cause" for the untimely appeal.
¶ 10. We find no precedent directly interpreting the ten-day time limit for filing a notice of appeal under the pertinent statute, Mississippi Code Annotated section 71-5-355 (Supp.2008). However, MDES submits that cases where the Mississippi Supreme Court has applied the fourteen-day deadline for appealing unemployment benefit cases are instructive. We agree. In Wilkerson v. Mississippi Employment Security Commission, 630 So.2d 1000, 1002 (Miss.1994), the Mississippi Supreme Court determined that an appeal which was filed one day late was untimely filed. The supreme court strictly construed the fourteen-day time period for filing a notice of appeal, holding that the statutory time limit for appeal under section 71-5-517 of the Mississippi Code of 1972 Annotated cannot be extended "absent a showing of some event not caused by a party affecting that party's substantial rights." Id. at 1001. Likewise, in Mississippi Employment Security Commission v. Edwards, 763 So.2d 194, 196(¶ 6) (Miss.Ct.App.2000), this Court stated that:
If the notice of a referee's determination is mailed to a party's last known address, notice of appeal within fourteen days of the mailing date is a necessary prerequisite to obtaining further review of a determination of eligibility. Barring *151 some circumstance constituting "good cause" for failing to file a notice seeking further review, the matter ends with the expiration of the fourteen[-]day appeal period if an appeal notice is not filed.
(Internal citations omitted) (denial of unemployment benefits case).
¶ 11. In Booth v. Mississippi Employment Security Commission, 588 So.2d 422 (Miss.1991), the Mississippi Supreme Court addressed a factual scenario similar to the one before the Court. Booth, who was represented at his initial benefits hearing by his attorney, received written notice of an appeal regarding an MDES decision awarding him benefits. Id. at 426. However, Booth's attorney did not receive the notice. Booth claimed that the failure to notify his attorney of record violated his minimum due process requirements. Id. The supreme court noted that although Rule 5(b) of the Mississippi Rules of Civil Procedure requires that an attorney representing a party receive service unless otherwise ordered by the court, "the Rules of Civil Procedure are inapplicable to administrative proceedings." Id. at 427 (citation omitted). Minimum due process will be found where notice is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Id. As Booth admitted that he had received timely notification of the appeal, the court found that the notice given to Booth satisfied the minimum due process requirement.[4]
¶ 12. However, the Booth court concluded by "strongly recommend[ing]" that MDES "re-evaluate its rules regarding notice and process." Id. at 428. EMC argues that MDES's failure to provide notice to its attorney of record, years after the supreme court's recommendation in Booth that MDES re-evaluate its rules, violated EMC's right to due process and/or constituted "good cause" for EMC's failure to file a timely appeal.
¶ 13. MDES admitted that it was not uncommon to notify attorneys of decisions; however, this is usually done in cases where the attorney submits a written request for notification. MDES argued that, due to the number and variety of matters with which the department deals, it would be impractical to send every determination to persons or entities claiming to be a representative of an employer without specific instructions. MDES never received any such written notice from Grishman.
¶ 14. Even though MDES failed to follow the supreme court's recommendation, EMC has failed to cite any authority that would permit this Court to disregard Booth. While the supreme court did leave open the possibility that it might revisit this issue of the constitutionality of notice provided by MDES, we are bound by Booth's holding that notice to the party is sufficient to satisfy due process requirements in administrative matters and that notice to counsel is not constitutionally required. Accordingly, we affirm the circuit court's decision that EMC was not denied due process by MDES's failure to notify EMC's attorney of the July 21, 2004, decision.
¶ 15. EMC next argues that MDES's failure to notify Grishman of its decision resulted in EMC's untimely appeal and should warrant "good cause" to *152 allow an out-of-time appeal. In Mississippi Department of Employment Security v. Good Samaritan Personnel Services, Inc., 996 So.2d 809, 813(¶ 10) (Miss.Ct.App. 2008), this Court stated that under the MDES appeals statutes, the time period for filing a notice of appeal "may be relaxed or extended if there is a showing of `good cause' by the appellant that the mailing to the last known address was not `reasonably calculated, under all the circumstances, to apprise' the party of the decision." (Citations omitted) (denial of unemployment benefits case). "Good cause is established when there is sufficient evidence to show that a party failed to receive the mailing due to delays in the mail or because of an act beyond the party's control." Id. at 813-14(¶ 12) (quoting Miss. Employment Sec. Comm'n v. Marion County Sheriff's Dep't, 865 So.2d 1153, 1157(¶ 10)); see also Cane v. Miss. Employment Sec. Comm'n, 368 So.2d 1263, 1264 (Miss.1979) (erroneously mailing the notice of the decision to the claimant's previous address constitutes good cause) (denial of unemployment benefits case).
¶ 16. In the present case, MDES sent notice of the July 21, 2004, decision to EMC's correct address. As the circuit court judge noted in her order, all preceding correspondence from MDES to EMC had been responded to in a timely fashion. Further, the notice contained no indication that EMC's counsel was being provided a copy so as to mislead EMC in any way. Consequently, as EMC admits that it received timely notice of the July 21, 2004, decision, we affirm the circuit court's determination that good cause was not shown for EMC's failure to file a timely notice of appeal. This issue is without merit.
II. Whether EMC was required to remit quarterly wage assessments for June 30, 2004, and September 30, 2004.
¶ 17. As to the wage assessment issue, EMC repeatedly petitioned MDES to request a hearing concerning its June 30, 2004, and September 30, 2004, Quarterly Wage Assessments. A hearing regarding the assessments was held on March 16, 2005. However, the sole argument presented by EMC at the hearing was that the assessments were improperly based on the classification of the workers as employees, which the referee did not have jurisdiction to address based on the December 7, 2004, ruling. Sandra Watson, the Vice-President of Operations for EMC, testified that, other than her opinion that the demonstrators were not employees, she could not offer any proof that the assessments were incorrect.[5] Watson also acknowledged that she had the ability to determine the amounts paid to the demonstrators. However, she stated that she had not done so as EMC's records were not kept on a quarterly basis and that it would be time consuming to do so. EMC has never challenged any aspect of the assessment other than the fact that the demonstrators were classified as employees rather than independent contractors, which was not timely appealed. Therefore, we find no error in the imposition of June 30, 2004, and September 30, 2004, Quarterly Wage Assessments. This issue is without merit.
*153 III. Whether Product Connections[6] bars MDES from re-litigating the classification of product demonstrators.
¶ 18. EMC contends that this Court should reverse the decisions by MDES and the circuit court and find that MDES should have been barred by the doctrines of res judicata and collateral estoppel from re-litigating the issue of the classification of EMC's product demonstrators based on both the February 1996 decision by the Board of Review, which was discussed previously, and the recent decision by this Court in Mississippi Department of Employment Security v. Product Connections, LLC., 963 So.2d 1185 (Miss.Ct.App. 2007). In Product Connections, the same claimant, Chatham, applied for unemployment benefits pursuant to work performed for another company, Product Connections, LLC (PC). Id. at 1186(¶ 1). Factually, this case is almost identical to the one before us here. Chatham worked for PC as a demonstrator. As in the present case, MDES found that Chatham was an employee, not an independent contractor. However, on appeal, the circuit court reversed the ruling of MDES, finding that Chatham was an independent contractor. Id. This Court affirmed the circuit court's ruling finding that the hearing officer misstated the relationship between PC and Chatham and that there was no substantial evidence to support MDES's decision. Id. at 1189 (¶¶ 11-12).
¶ 19. As we have found EMC's appeal of the July 21, 2004, decision to be untimely filed, the issue of whether EMC's demonstration workers are independent contractors or employees is not properly before this Court. We recognize, however, that as a result of this case, Chatham will be considered an employee of EMC, yet as a result of Product Connections, she will be considered an independent contractor of PC for doing basically identical work. While EMC argues that this result is "absurd" and "unfair," we find that the disparity is caused by EMC's failure to file a timely appeal, not any error or unfairness in the law. Counsel for MDES stated at oral argument, however, that based upon the untimely appeal, MDES intends to continue to treat all of EMC's demonstrators, not just Chatham, as employees, rather than as independent contractors, yet will treat demonstrators of all other companies as independent contractors in accordance with our ruling in Product Connections. Counsel admitted that this "could have the appearance of an unfair result" and advised that MDES would look to this Court's decision in this case to "instruct" it on this matter as to the future classification of such workers. This Court, however, has "no power to issue advisory opinions." Evans v. Moore, 853 So.2d 850, 855(¶ 24) (Miss.Ct.App.2003) (citation omitted). We cannot, therefore, advise or instruct MDES as to the applicability of the Product Connections decision to EMC's demonstrators, other than Chatham. The question as to what point in time MDES is required to revisit its treatment of EMC's demonstrators based on the ruling in Product Connections is not before us. We would, however, trust that in light of MDES's perception of "the appearance of an unfair result," MDES would closely scrutinize any authority it believes justifies or requires any continuing inequality of treatment.
¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS *154 APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
NOTES
[1] The letter was mailed to Russell Hollrah, an attorney located in Washington, D.C., who was apparently representing EMC in that matter.
[2] MDES argues that it never received any request to mail notices of its decisions to Grishman, although it admitted at oral argument that it has made an effort to send notice to attorneys on a customary basis. At the telephonic hearing, the referee asked Grishman whether there was any communication given to MDES asking that notifications be sent to him. Grishman said that he had no written documentation to that effect.
[3] Although EMC vehemently argues that MDES was statutorily obligated to schedule a hearing on the issue within fifteen days of such request, we find this a misstatement of the applicable law. Mississippi Code Annotated section 71-5-365 states: "Upon receipt of such petition within the fifteen days allowed, the commission shall fix the time and place for a hearing and shall notify petitioner thereof." (Emphasis added). The correct reading of the statute is that if the petition for rehearing is submitted within fifteen days of MDES's assessment of the amount of contributions, then MDES shall fix a time and place for hearing. There is no statutory time limitation on when MDES shall schedule such hearing. In addition, MDES explained in its reply to EMC that the agency had undergone an extensive reorganization during that period, which contributed to the delay.
[4] The supreme court stated that: "[T]his Court at this time does not hold that there is a constitutional requirement for notice to the attorney for the claimant as long as notice to the claimant is `reasonably calculated' to apprise the claimant of necessary information." Booth, 588 So.2d. at 428 (emphasis added).
[5] As no employee-wage information was available from EMC, MDES consulted the North American Code Classification for the local-wage information for that class of worker. That amount was then multiplied by the highest number of workers for the given quarter. Using this formula, MDES assessed that the total taxable wages for each quarter at issue was $11,907 (plus interest and penalties).
[6] Miss. Dep't. of Employment Sec. v. Product Connections, LLC., 963 So.2d 1185 (Miss.Ct. App.2007). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1611889/ | 841 So.2d 1241 (2002)
CONSECO FINANCE et al.
v.
Norman D. MURPHY and Vicky C. Murphy.
1002054.
Supreme Court of Alabama.
June 28, 2002.
*1242 Robert A. Huffaker and R. Austin Huffaker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellants.
Clatus Junkin and Charles E. Harrison of Junkin & Harrison, Fayette, for appellees.
PER CURIAM.
Conseco Finance Corporation, Conseco Finance Corporation-Alabama (a subsidiary of Conseco Finance Corporation), and Carlos D. Tyler, an agent of Conseco Finance Corporation-Alabama, appeal the order of the trial court denying their motion to compel the plaintiffs Norman D. Murphy and Vicky C. Murphy to arbitrate their claims. We reverse and remand.
On December 21, 1999, the Murphys, Alabama residents, consolidated several debts by obtaining a loan from Conseco Finance Corporation-Alabama ("Conseco"). They executed a loan application and a note with Conseco's agent Tyler. The loan application listed the names and the out-of-state addresses of creditors who were to be paid from the proceeds of the loan the Murphys received from Conseco. The note showed that the Murphys received a loan of $45,500 from the lender, listed as "Conseco Finance Corp.-Alabama, 100 Concourse Parkway, Suite 305, Birmingham, AL 35244." The note provided that the Murphys repay the loan by paying $513.42 per month from February 2, 2000 through January 2, 2020 to "Conseco Finance, 7360 South Kyrene Road, Tempe, AZ 85283." The note contained an arbitration provision.
On October 11, 2000, the Murphys executed an agreement to extend the maturity *1243 date of their loan from January 2, 2020 to March 2, 2020. The extension agreement named "Conseco Finance Corp.-Alabama" as the creditor, but a header on the agreement contained the following name, address, and telephone number: "Conseco Finance Servicing Corp., 7360 S. Kyrene Road, Tempe, Arizona, XXXXX-XXXX, 888-315-8733."
On January 26, 2001, the Murphys sued the defendants Conseco Finance Corporation, Conseco Finance Corporation-Alabama, and Carlos D. Tyler for fraudulent misrepresentation and fraudulent deceit. The Murphys alleged that the defendants had told the Murphys that their debts "would be consolidated under one debt consisting of a monthly payment of $513.00" and that "Conseco would re-finance the loan in three (3) months time at 8.265 interest." (Complaint, pp. 3, 4, & 6.)
The defendants moved to compel the Murphys to arbitrate their claims. As evidentiary support for the motion to compel, the defendants submitted an affidavit by Roxanne Wheelerthe credit manager of mortgage services for Conseco Finance Corporationand the loan application and the note executed by the Murphys.
The arbitration provision in the note provides, in pertinent part:
"9. ARBITRATION
"All disputes, claims, or controversies arising from or relating to this Agreement or the relationships which result from this Agreement, or the validity of this arbitration clause or the entire Agreement, shall be resolved by binding arbitration by one arbitrator selected by Lender with Borrower's consent. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, Title 9 of the United States Code. Judgment upon the award rendered may be entered in any court having jurisdiction. The parties agree and understand that they choose arbitration instead of litigation to resolve disputes. The parties understand that they have a right to litigate disputes in court, but that they prefer to resolve their disputes through arbitration, except as provided herein. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A COURT ACTION BY LENDER (AS PROVIDED HEREIN). The parties agree and understand that all disputes arising under case law, statutory law and all other laws including, but not limited to, all contract, tort, and property disputes will be subject to binding arbitration in accord with this agreement.... Notwithstanding anything hereunto the contrary, Lender retains an option to use judicial or non-judicial relief to enforce a security agreement relating to the collateral secured in a transaction underlying this arbitration agreement, to enforce the monetary obligation or to foreclose on the collateral...."
Wheeler's affidavit reads, in pertinent part:
"My name is Roxanne Wheeler. I am over the age of twenty-one years. I am the Credit Manager for the Mortgage Services Division of Conseco Finance Corp., which is a Delaware Corporation. Conseco Finance Corp.-Alabama is a wholly owned subsidiary of Conseco Finance Corp. (collectively, `Conseco Finance'). I make this Affidavit in support of Conseco Finance's position in this case.
"I am one of the persons who has custody and control of the business records of Conseco Finance concerning the *1244 account of Norman D. Murphy and Vicky C. Murphy (the `Consumers')....
". . . .
"On or about December 21, 1999, [the Murphys] entered into an agreement with Conseco Finance to borrow money for the purpose of consolidating their debts. A copy of the Uniform Residential Loan Application and a Note (`Loan Documents') evidencing the loan are attached hereto as Exhibit A.
"The Loan Documents included an arbitration provision. (Ex. A.)
"On or about October 11, 2000, [the Murphys] entered into an agreement with Conseco Finance to extend the maturity date of the December 21, 1999 loan. A copy of the Conseco Finance Extension Agreement (`Extension Agreement') evidencing this transaction is attached hereto as Exhibit B.
"Under both the Loan Documents and the Extension Agreement, [the Murphys] were to make payments on their loan to a designated location outside the State of Alabama. (Ex. A, B.)
"In the performance of its regular and routine business activities, Conseco Finance executes notes and mortgages in the State of Alabama and other states. The funding that Conseco Finance uses to provide this financing is obtained from sources all over the United States."
The Murphys did not file any motion, brief, or evidentiary materials opposing the motion to compel arbitration. However, at a hearing on the motion, the Murphys argued that the arbitration provision was unenforceable because 1) it did not have a substantial effect on interstate commerce, 2) it lacked mutuality of remedy, and 3) it was unconscionable because the Murphys did not have a real choice in selecting an arbitrator. After hearing arguments and considering the evidentiary materials submitted by Conseco, the trial court summarily denied the motion to compel arbitration. The trial court also denied the subsequent motion of Conseco to alter, to amend, or to vacate the order denying the motion to compel arbitration.
The parties bring two issues before us on this appeal. The first is whether Conseco satisfied its initial burden of establishing that the loan substantially affected interstate commerce so that the Federal Arbitration Act ("FAA") governs the transaction. The second issue is whether the Murphys satisfied their burden of proving their affirmative, see Rule 8(c), Ala. R. Civ. P., claim of unconscionability, which they asserted to avoid operation of the arbitration provision.
Standard of Review
"This Court reviews the denial of a motion to compel arbitration de novo. Green Tree Fin. Corp. v. Vintson, 753 So.2d 497, 502 (Ala.1999); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171, 1172 (Ala.1999). The party seeking to compel arbitration has the initial burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction substantially affecting interstate commerce. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999); Sisters of the Visitation v. Cochran, 775 So.2d 759 (Ala. 2000)."
American General Fin., Inc. v. Morton, 812 So.2d 282, 285 (Ala.2001).
"[O]nce a moving party has satisfied its burden of production by making a prima facie showing that an agreement to arbitrate exists in a contract relating to a transaction substantially affecting interstate commerce, the burden of persuasion shifts to the party opposing arbitration. that party presents no evidence in opposition to a properly supported motion to compel arbitration, then the *1245 trial court should grant the motion to compel arbitration."
Ex parte Greenstreet, Inc., 806 So.2d 1203, 1209 (Ala.2001) (emphasis added).
I. Interstate Commerce Criterion
Conseco argues that Wheeler's affidavit proves that the loan had enough of an effect on interstate commerce to support the application of the FAA and thereby to require the Murphys to arbitrate their claims against Conseco. The facts cited by Conseco to establish the interstate commerce criterion for the application of the FAA are similar to but stronger than the facts this Court found sufficient to satisfy the interstate commerce criterion in Green Tree Fin. Corp. v. Lewis, 813 So.2d 820 (Ala.2001). Thus, Conseco has satisfied its initial burden of establishing that the loan had a substantial effect on interstate commerce, and the Murphys have offered no evidence to refute Conseco's proof. We do observe that, because the interstate transactions cited in the last paragraph of Roxanne Wheeler's affidavit either are not related to the transaction between Conseco and the Murphys at all or are not related in any particularized way, those interstate transactions do not add to Conseco's proof that the transaction with the Murphys substantially affected interstate commerce.
II. Unconscionability
The only argument asserted by the Murphys on appeal is that the arbitration provision is unconscionable and, therefore, unenforceable. "Unconscionability is an affirmative defense, Green Tree Fin. Corp. v. Wampler, 749 So.2d 409, 415 (Ala.1999), and the party asserting the defense bears the burden of proof. Ex parte Napier, 723 So.2d 49, 52-53 (Ala.1998)." Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 281 (Ala.2000). This Court has previously held that arbitration provisions not materially distinguishable from the one in the note executed by the Murphys are not unconscionable. See Green Tree Fin. Corp. v. Lewis, supra; Green Tree Fin. Corp. v. Wampler, supra; Green Tree Fin. Corp. v. Vintson, 753 So.2d 497 (Ala.1999); Ex parte Parker, 730 So.2d 168 (Ala.1999); and Ex parte Napier, 723 So.2d 49 (Ala. 1998). Further, the Murphys offered no evidence to prove that the arbitration provision was unconscionable. Unlike the arbitration provision we held to be unconscionable in American General Fin., Inc. v. Branch, 793 So.2d 738, 747 (Ala.2000), the arbitration provision in the case before us does not limit the kind or amount of damages the Murphys can recover. Also, the record is devoid of evidence that the Murphys tried unsuccessfully to borrow from another finance company that would not require them to arbitrate, while the plaintiffs in American General Fin., Inc. v. Branch submitted evidence which established that they did try unsuccessfully to find a lender that would not impose arbitration on them.
Conclusion
Because the Murphys did not present evidence to rebut the defendants' prima facie showing that Conseco's loan to them substantially affected interstate commerce and thereby supported the application of the FAA to require them to arbitrate their claims, and because the Murphys did not present evidence to prove that the arbitration provision in the loan was unconscionable, the trial court erred in denying the defendants' motion to compel arbitration. Thus, we reverse the order of the trial court denying the motion of the defendants to compel the Murphys to arbitrate their claims. We remand this case for the trial court to enter an order compelling the *1246 Murphys to arbitrate their claims against the defendants.
REVERSED AND REMANDED.
HOUSTON, SEE, LYONS, HARWOOD, WOODALL, and STUART, JJ., concur.
BROWN, J., concurs in the result.
JOHNSTONE, J., concurs in part and dissents in part.
MOORE, C.J., dissents.
JOHNSTONE, Justice (concurring in part and dissenting in part).
I dissent from the judgment only because I think the arbitration provision allowing Conseco to sue but requiring the Murphys to arbitrate invalidates the arbitration agreement in its entirety. See my dissent in Green Tree Fin. Corp. v. Vintson, 753 So.2d 497, 505 (Ala.1999). In all other respects, however, I concur in the main opinion and its rationale. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2860943/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00568-CR
Jerry Keith Williams, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
NO. B-95-0513-S, HONORABLE DICK ALCALA, JUDGE PRESIDING
PER CURIAM
Appellant pleaded guilty to an indictment accusing him of aggravated assault. The district
court found that the evidence substantiated appellant's guilt and, pursuant to a plea bargain agreement,
deferred further proceedings without adjudicating guilt and placed appellant on community supervision.
Later, on the State's motion, the court revoked supervision, adjudged appellant guilty, and sentenced him
to imprisonment for seven years. Appellant gave a general notice of appeal.
Appellant represents himself on appeal. The transcript contains no request of a free
statement of facts or for the appointment of counsel on appeal. Neither a statement of facts nor a brief has
been filed, and appellant has not responded to this Court's notices. Tex. R. App. P. 53(m), 74(l). We
conclude that appellant does not wish to prosecute this appeal and has failed to make the necessary
arrangements for filing a brief.
We have examined the record before us and find no jurisdictional error. See Watson v.
State, 924 S.W.2d 711 (Tex. Crim. App. 1996). We also find no basis for concluding that appellant's
guilty plea was involuntary. See Flowers v. State, 935 S.W.2d 131 (Tex. Crim. App. 1996).
The judgment of conviction is affirmed.
Before Justices Powers, Jones and Kidd
Affirmed
Filed: March 27, 1997
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2441804/ | 7 A.3d 485 (2010)
THOROUGHGOOD
v.
STATE.
No. 399, 2010.
Supreme Court of Delaware.
October 22, 2010.
DECISION WITHOUT PUBLISHED OPINION
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3033415/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-2999
___________
Roger Manuel Brandao, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals
John Ashcroft, Attorney General of the * [UNPUBLISHED]
United States, *
*
Respondent. *
*
___________
No. 02-3342
___________
Roger Manuel Brandao, *
*
Petitioner - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
John Ashcroft, Attorney General; *
James W. Ziglar, Commissioner of *
Immigration and Naturalization *
Service; Curtis Aljets, St. Paul District *
Director of the Immigration and *
Naturalization Service; Brian Berg, *
U.S. Marshal, *
*
Respondents - Appellees. *
___________
Submitted: November 20, 2003
Filed: January 26, 2004
___________
Before MURPHY, LAY, and BRIGHT, Circuit Judges.
___________
PER CURIAM.
Roger Manuel Brandao, a native of Portugal, appeals the district court's1
dismissal of his 28 U.S.C. § 2241 petition for a writ of habeas corpus to prevent the
Immigration and Naturalization Service from reinstating his previous order of
deportation. Having carefully reviewed the record and the parties' submissions, we
conclude the district court correctly denied Brandao's petition. Accordingly, we
affirm. See 8th Cir. R. 47B.
______________________________
1
The Honorable Richard Goldberg, Judge of the United States Court of
International Trade, sitting by designation.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1611855/ | (2008)
McGOWAN INVESTORS LP, et al., Plaintiffs,
v.
KEEFE BRUYETTE & WOODS, INC., et al., Defendants.
No. 07-cv-2464.
United States District Court, E.D. Pennsylvania.
March 19, 2008.
MEMORANDUM AND ORDER
ANITA B. BRODY, District Judge.
I. INTRODUCTION
In January, 2004, the Philadelphia Stock Exchange ("PHLX") demutualized. "Demutualization" is the conversion of a mutual non-profit organization owned by seat owners into a for-profit corporation that issues stock. While considering demutualization, the PHLX Board of Governors (the "Board") engaged Defendant Keefe Bruyette & Woods, Inc. ("KBW") to advise it on demutualization and the alternatives. KBW recommended demutualization as the best option for keeping the PHLX financially viable. In November, 2003, the seat owners voted for demutualization, and in January, 2004, the PHLX was demutualized.
Unhappy with the decision to demutualize, the plaintiffs, McGowan Investors LP, Tim Lobach, Stephen J. Cheseldine, and Market Street Securities (collectively "McGowan" or "McGowan and the other plaintiffs"), a putative class of former seat owners, are suing KBW and its managing director, Joseph J. Spalluto. They claim damages they allegedly incurred when they followed KBW's advice.
KBW moved to dismiss under Fed. R.Civ.P. 12(b)(6) on the grounds that this case is barred by a court-approved release in the settlement of a Delaware class action suit.[1] I grant KBW's motion.
II. FACTUAL BACKGROUND
In July, 2001, the PHLX Board hired KBW to provide financial services advice. On October 1, 2003, KBW sent the PHLX Board a letter (the "KBW Advisory") in which KBW concluded:
1. The financial viability of PHLX, in its current operating structure is questionable.
2. Demutualization, while in itself not able to guarantee financial and/or operational success, does in fact (at the very least) position PHLX to pursue certain strategic alternatives, the pursuit and successful execution of which could assist the future financial performance and financial condition of the PHLX.
3. In its current mutual structure, with a charter providing that the Exchange is "not for profit" and that dividends cannot be paid, PHLX is either precluded completely from pursuing the stated alternatives, or handicapped significantly in its pursuit of them. The one exception identified by KBW a strategic alternative focused on the reduction of operating costs appears to be a viable near-term alternative if executed carefully, though it is unlikely to be a satisfactory long-term solution absent corresponding growth in revenue.
4. A near-term strategy centered on demutualization is a reasonable and appropriate strategy for PHLX and a substantially better alternative than the strategies that KBW believes are reasonably available to PHLX.
(KBW Advisory, Doc. # 7, Exhibit C).
On October 22, 2003, the PHLX Board sent the PHLX seat owners a letter explaining demutualization, attaching the KBW Advisory. In November, 2003, in part because of the KBW Advisory, the seat owners voted to demutualize the PHLX. In January, 2004, the PHLX was demutualized.
On January 21, 2004, the PHLX revealed to the former seat owners that the PHLX was actually in a stronger financial position than the former seat owners had been led to believe before they voted for demutualization. Consequently, there have been a number of suits in both state and federal courts about the demutualization of the PHLX and the investment decisions that followed.
A. The Present Action
McGowan alleges that KBW deceived the PHLX seat owners by fraudulently convincing them that the only real option to keep the PHLX operational was to demutualize the PHLX. Partly because of KBW's advice, the seat owners chose to become shareholders in the demutualized PHLX, instead of accepting the option of an appraisal given to them by the Delaware Chancery Court. McGowan contends that if the former seat owners had exited through an appraisal, they would have received a minimum of $500,000 per seat, which is considerably more than their PHLX stock was worth.
McGowan seeks: (1) damages for violations of § 10(b) of the Securities and Exchange Act and Rule 10b-5 thereunder; (2) recission under § 29(b) of the Securities and Exchange Act of the agreement between KBW and the PHLX in which the PHLX engaged KBW as an advisor; and (3) damages for civil RICO violations under 18 U.S.C. § 1962(d) with securities fraud as the predicate acts.
B. The Ginsburg Action
Ginsburg v. Philadelphia Stock Exchange, Inc., et al., C.A. No. 2202-CC (Del. Chancery Ct., New Castle County) (the "Ginsburg Action") was a shareholder class action lawsuit in the Delaware Chancery Court against the PHLX and other related parties. In that action, the Ginsburg plaintiffs argued that the PHLX and the individual defendants breached their fiduciary duties by entering into strategic investments after demutualization.[2]
The Ginsburg class was defined as:
[A]ll class A common stockholders of the Philadelphia Stock Exchange, Inc. (`PHLX'), on April 20, 2005, and their transferees or successors in interest through June 20, 2007.
(Settlement Order, ¶ 4). This was a non-opt out class, hence class members could not choose to litigate separately. McGowan and the other plaintiffs were class A common stockholders of the PHLX on April 20, 2005 and thus were members of the class. KBW was not a defendant in the Ginsburg Action, but it was subpoenaed as a non-party witness and provided documents and two witnesses for depositions.
On September 4, 2007, the Ginsburg Action settled and the parties entered into a release of certain claims (the "Delaware Release"). During the hearing before the Delaware Chancery Court on whether to approve the proposed settlement, the Court heard the objections of McGowan and the other plaintiffs. The Delaware Chancery Court denied their objections to the proposed settlement agreement.
On October 22, 2007, the Delaware Chancery Court certified the non-opt out plaintiff class and approved the Ginsburg Action's settlement agreement (see attachment). The Delaware Chancery Court's Order and Final Judgment ("Settlement Order") includes the following provisions:
Plaintiff and all members of the Class, Defendants, their respective affiliates, and anyone claiming through or for the benefit of any of them, are hereby permanently barred, and enjoined from commencing, or in any way participating in the commencement of, any action or proceeding, in any forum, asserting against any of the Released Persons any Settled Claims, either directly, representatively, derivatively, or in any other capacity.
(Settlement Order, ¶ 13).
"Settled Claims" means: (a) As against the Defendant-Related Releasees: all claims, demands, rights, actions or causes of action, liabilities, damages, losses, obligations, judgments, suits, fees, expenses, costs, matters, and issues of any kind or nature whatsoever, whether known or unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, matured or unmatured, that have been, could have been, or in the future can or might be asserted in this Action or in any court, tribunal, or proceeding (including but not limited to, any claims arising under federal or state statutory or common law relating to alleged fraud, breach of any duty, negligence, violations of state or federal securities laws or otherwise) by or on behalf of any member of the Class, whether individual, class, derivative, representative, legal, equitable, or any other type or in any other capacity, and based on any conduct that occurred prior to the date of this Stipulation, against any Defendant-Related Releasees, whether or not any such Defendant-Related Releasees were named, served with process, or appeared in this Action, which have arisen, could have arisen, arise now, or may hereafter rise out of, or relate in any matter to the claims, demands, assertions, allegations, facts, events, transactions, matters, acts, occurrences, statements, representations, misrepresentations, omissions, or any other matter, thing, or cause, whatsoever, or any series thereof, embraced, involved, or set forth in or referred to or otherwise related, directly or indirectly, in any way to, this Action or the subject matter of this Action, and including without limitation any claims (whether or not asserted) in any way related to: (I) Demutualization ...
(Settlement Order, ¶ 11).
"Released Persons" means Plaintiff-Related Releasees and Defendant-Related Releasees.
(Settlement Order, ¶ 10).
"Defendant-Related Releasees" means Defendants and their respective immediate family members, their respective present and former parents, subsidiaries, divisions, and affiliates; the present and former employees, members, principles, officers, governors, and directors of each of them; the present and former attorneys, advisors, financial advisors, investment bankers, trustees, administrators, fiduciaries, consultants, representatives, accountants and auditors, insurers, and agents of each of them; and the predecessors, estates, heirs, executors, trusts, trustees, administrators, successors and assigns of each.
(Settlement Order, ¶ 8).
"Plaintiff-Related Releasees" means Plaintiff and his immediate family members (including parents and child), his present and former attorneys, advisors, trustees, administrators, fiduciaries, consultants, representatives, accountants and auditors, insurers, and agents of each of them; and the predecessors, estates, heirs, executors, trusts, trustees, administrators, successors and assigns of each.
(Settlement Order, ¶ 9).
III. LEGAL STANDARD AND JURISDICTION
According to Fed.R.Civ.P. 12(b)(6), a court must grant a motion to dismiss if the plaintiff fails "to state a claim upon which relief can be granted." In deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept as true the well-pleaded allegations of the complaint and draw all reasonable inferences in the plaintiff's favor. Brown v. Card Serv. Ctr., 464 F.3d 450, 452 (3d Cir.2006). However, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). In deciding a motion to dismiss, a court may properly consider any documents incorporated by reference into the complaint and all documents of which it can take judicial notice. Winer Family Trust v. Queen, 503 F.3d 319, 327 (3d Cir.2007).[3]
I have jurisdiction over the securities claims under § 27 of the Exchange Act, 15 U.S.C. § 78aa, and over the RICO claims under 18 U.S.C. § 1964(c).
IV. DISCUSSION
The permanent injunction in the Settlement Order entered by the Delaware Chancery Court in the Ginsburg Action bars McGowan's claims. An individual claim by a person who was a class member in a prior class action suit is barred by a settlement of the class action where the settlement includes a release applicable to his later individual action. See In re Prudential Insurance Company of America Sales Practice Litigation, 261 F.3d 355, 366 (3d Cir.2001) ("It is now well settled that a judgment pursuant to a class settlement can bar later claims based on the allegations underlying the claims in the settled class action."). See also TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 460 (2d Cir.1982). This is true even if the underlying class action was brought in state court and the later litigation is in federal court. Grimes v. Vitalink Communications Corp., 17 F.3d 1553 (3d Cir.1994).
Article IV of the United States Constitution provides:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
U.S. CONST. art. IV, § 1. The preclusive effect of a state court judgment in a federal lawsuit is determined by the full faith and credit statute, which provides that state judicial proceedings "shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State... from which they are taken." Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985) (quoting 28 U.S.C. § 1738). See also Grimes, 17 F.3d at 1562.
To bar future claims, a release must (1) apply to the plaintiff; (2) circumscribe the asserted claims; and (3) be legally enforceable. Nottingham Partners v. Trans-Lux Corp., 925 F.2d 29, 32 (1st Cir.1991); Elite Sportswear Products, Inc. v. New York Life Ins. Co., 2006 WL 3052703 at *6 (E.D.Pa. October 24, 2006); Chartener v. Provident Mutual Life Ins. Co., 2004 WL 1091027 at *2-3 (E.D.Pa. May 13, 2004).
(1) Apply to the Plaintiff
For a release to apply to a plaintiff, a releasing court must have personal jurisdiction over that plaintiff. Grimes, 17 F.3d at 1558. Stock ownership in a Delaware corporation is sufficient contact with Delaware for its courts to exercise personal jurisdiction over the stock owner for claims relating to that stock ownership. Id. at 1559. McGowan concedes that the Delaware Chancery Court had personal jurisdiction over it and the other plaintiffs to bind them in the Settlement Order because they owned PHLX stock and they were members of the Ginsburg class.[4] The permanent injunction in the Settlement Order bars future claims by "all members of the Class." (Settlement Order, ¶ 13). Because McGowan and the other plaintiffs were all members of the Ginsburg class and the Delaware Chancery Court had personal jurisdiction over them, the release in the Settlement Order applies to them.
McGowan argues that although it and the other plaintiffs were members of the Ginsburg class, the Delaware Chancery Court did not have personal jurisdiction over one plaintiff, Tim Lobach, as to a specific lot of his PHLX stock. Lobach sold some of his stock before the Ginsburg class period began. Thus, McGowan contends that the Delaware Chancery Court only had personal jurisdiction over Lobach for the specific purpose of adjudicating the claims arising out of his stock ownership that qualified him for the Ginsburg class, not for limiting Lobach's rights as to the stock outside of the class definition. I disagree.
The Delaware Chancery Court had jurisdiction to release the Ginsburg `class members' future claims based on the allegations in the underlying class action in the Settlement Order. See In re Prudential Insurance Company of America Sales Practice Litigation, 261 F.3d at 366; TBK Partners, 675 F.2d at 460. Lobach admits that he was a member of the Ginsburg class. The Delaware Chancery Court had personal jurisdiction over Lobach because of his stock ownership and because Lobach appeared in a Delaware court in connection with this litigation. Thus, Lobach is bound by the Settlement Order.
The Settlement Order explicitly bars future claims arising out of demutualization by class members acting "in any other capacity" in two separate provisions, the permanent injunction and the definition of "Settled Claims." (Settlement Order, ¶ 11 and 13). Here, Lobach is trying to sue KBW for its alleged misdeeds in connection with demutualization in the alternative capacity of a non-Ginsburg class period shareholder. Lobach is a class member acting "in any other capacity." Because the Settlement Order applies to Lobach and because it bars suits by shareholders in any other capacity, Lobach's claims are barred.
(2) Circumscribe the Asserted Claims
Federal courts can release claims not raised in the previous suit's complaint. See In re Prudential Insurance Company of America Sales Practice Litigation, 148 F.3d 283, 326 & n. 82 (3d Cir.1998). The claims must be based on the same factual predicate as those asserted in the subsequent suit. Id. The factual predicate underlaying the Ginsburg Action and the resulting Settlement Order was demutualization. The Settlement Order specifically bars "any claims (whether or not asserted) in any way related to (I) Demutualization ..." (Settlement Order, ¶ 11). Here, all of McGowan's claims against KBW are based on demutualization. Because the factual predicate underlaying this action and the Ginsburg Action is the same, the release in the Settlement Order circumscribes the asserted claims.
Additionally, to circumscribe the asserted claims the defendant must be covered by the previous case's release. See, e.g., Thompson v. Wheeler, 898 F.2d 406, 411-13 (3d Cir.1990). The Settlement Order in the Ginsburg Action defines "Defendant-Related Releasees" as "Defendants and their ... advisors, [and] financial advisors,...." (Settlement Order, ¶ 10). KBW was an advisor to PHLX and its Board, who were defendants in the Ginsburg Action. Therefore, KBW is covered by the Ginsburg Action's Settlement Order.
(3) Be Legally Enforceable
The Third Circuit consistently finds broad release language in class action settlement orders legally enforceable. See, e.g., In re Prudential Insurance Company of America Sales Practice Litigation, 261 F.3d at 366 (enforcing a class action settlement agreement that released any claims "that have been, could have been, may be or could be alleged or asserted now or in the future ... on the basis of, connected with, arising out of, or related to, in whole or in part" to the facts at issue); Grimes, 17 F.3d at 1554 n. 1 & 1562 n. 10 (enforcing a class action settlement agreement releasing "[a]ll claims, rights, causes of action, suits, matters and issues, known or unknown, that arise now or hereafter out of, or that relate to, or that are, were or could have been asserted in connection with [the facts at issue] ... or any matters, transactions or occurrences referred to in the Complaint ... or other activities relating to the foregoing"). Broad language in a settlement order indicates a clear intent to leave nothing open and unsettled between the parties. See Three Rivers Motors Company v. Ford Motor Company, 522 F.2d 885, 895 (3d Cir.1975).
The Delaware Chancery Court's Settlement Order is similar to other releases the Third Circuit has found legally enforceable and it contains broad language indicating that the Delaware Chancery Court intended the Settlement Order to leave nothing open and unsettled in connection with claims arising out of the demutualization of the PHLX.
V. CONCLUSION
Because the Delaware Chancery Court's Settlement Order applies to all of the plaintiffs, circumscribes all of the asserted claims, and is legally enforceable, McGowan and the other plaintiffs are bound by its terms in this action under the full faith and credit statute, 28 U.S.C. § 1738. The Settlement Order's permanent injunction provides:
Plaintiff and all members of the Class, Defendants, their respective affiliates, and anyone claiming through or for the benefit of any of them, are hereby permanently barred and enjoined from commencing, or in any way participating in the commencement of, any action or proceeding, in any forum, asserting against any of the Released Persons any Settled Claims, either directly, representatively, derivatively, or in any other capacity.
(Settlement Order, ¶ 13). "Settled Claims" means "all claims ... by or on behalf of any member of the Class, whether individual, class, derivative, representative, legal, equitable, or any other type or in any other capacity, and based on any conduct that occurred prior to the date of this Stipulation ... in any way related to: (I) Demutualization ..." (Settlement Order, ¶ 11), and "Released Persons" includes the Ginsburg defendants and their advisors. (Settlement Order, ¶¶ 8 and 10). KBW was an advisor to PHLX. The terms of the Delaware Chancery Court's Settlement Order bars McGowan and the other plaintiffs from commencing any action against KBW in any way related to demutualization. Therefore, KBW's motion to dismiss is granted.
ORDER
AND NOW, this 19th day of March, 2008, it is ORDERED that Defendants' Motion to Dismiss (Doc. # 5) is GRANTED and this case is DISMISSED with prejudice.
Appendix
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
CHUCK GINSBURG,
Plaintiff,
v.
PHILADELPHIA STOCK EXCHANGE, INC., MEYER S. FRUCHER, JOHN F. WALLACE, I. ISABELLE BENTON, DANIEL BIGELOW, KEVIN J. KENNEDY, KEVIN CARROLL, CHRISTOPHER R CARTER, MICHAEL J. CURCIO, ALBERT S. DANDRIDGE, III, PETER C. ERICHSEN, ESQUIRE, WYCHE FOWLER, JR., ISAAC C. HUNT, JR., ELEANOR W. MYERS, DANIEL B. O'ROURKE, CONSTANTINE PAPADAKIS, CHARLES P. PIZZI, LARRY L. PRESSLER GENE SPERLING, WILLIAM STALLKAMP, WENDY S. WHITE, CITADEL DERIVATIVES GROUP LLC, MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., CREDIT SUISSE FIRST BOSTON NEXT FUND, INC., CITIGROUP FINANCIAL PRODUCTS, INC., MORGAN STANLEY & CO., INC., AND UBS SECURITIES LLC,
Defendants.
C.A. No. 2202-CC
ORDER AND FINAL JUDGMENT
A hearing having been held before this Court on October 22, 2007, pursuant to the Court's Order of September 6, 2007 (the "Scheduling Order"), upon a Stipulation of Settlement, filed on September 4, 2007 (the "Stipulation"), of the above-captioned action (the "Action"), which is incorporated herein by reference; it appearing that due notice has been given in accordance with the aforesaid Scheduling Order; the respective parties having appeared by their attorneys of record; the Court having heard and considered evidence in support of the proposed Settlement; the attorneys for the respective parties having been heard; an opportunity to be heard having been given to all other persons requesting to be heard in accordance with the Scheduling Order; the Court having determined that the notice to the Class, provisionally certified pursuant to an Order dated May 11, 2007, as amended by Order dated August 29, 2007, was adequate and sufficient; and the entire matter of the proposed Settlement having been heard and considered by the Court;
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED this 22nd day of October, 2007, that:
1. Unless otherwise defined herein, all defined terms shall have the meaning set forth in the Stipulation.
2. The Notice of Pendency of Class Action, Proposed Settlement of Class Action, and Settlement Hearing (the "Notice") has been given to the Class, pursuant to and in the manner directed by the Scheduling Order, proof of mailing of the Notice to the Class was filed with the Court, and full opportunity to be heard has been offered to all parties, the Class, and persons in interest. The form and manner of the Notice is hereby determined to have been the best notice practicable under the circumstances and to have been given in full compliance with each of the requirements of Court of Chancery Rule 23 and due process, and it is further determined that all members of the Class are bound by this Order and Final Judgment.
3. Based on the record in the Action, each of the provisions of Court of Chancery Rule 23 has been satisfied and the Action has been properly maintained according to the provisions of Court of Chancery Rules 23(a) and 23(b)(1) and (b)(2). Specifically, this Court finds that (1) the Class contemplated in the Action is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the Class; (3) the claims of the representative Plaintiff are typical of the claims of the Class; (4) the representative Plaintiff has fairly and adequately protected the interests of the Class; (5) the prosecution of separate actions by individual members of the Class would create the risk of inconsistent or varying adjudications or adjudications that would be dispositive of the interests of other non-party Class members; and (6) Defendants have acted or refused to act on grounds generally applicable to the Class.
4. The Action is certified as a class action, pursuant to Court of Chancery Rules 23(a) and 23(b)(1) and (b)(2), on behalf of a class composed of all class A common stockholders of the Philadelphia Stock Exchange, Inc. ("PHLX"), on April 20, 2005, and their transferees or successors in interest through June 20, 2007, except: (i) defendants; (ii) defendants' immediate family members; (iii) defendants' employees other than (a) PHLX employees below the level of First Vice President, (b) Keith E. Ford, and (c) Thomas Mester; and (iv) defendants' affiliates, provided that non-defendant partners or owners of business entities that held Class A stock on April 20, 2005 shall be entitled to be members of the class to the extent of their ownership interest in the business entities (as if they held their ownership interests in their own names). Plaintiff is certified as Class Representative and his counsel as Class Counsel.
5. The Stipulation and Settlement and all transactions preparatory or incidental thereto are found to be substantially and procedurally fair, reasonable, adequate, and in the best interests of the Class, and are hereby approved pursuant to Court of Chancery Rule 23(e). The parties to the Stipulation are hereby authorized and directed to comply with and to consummate the Settlement in accordance with its terms and provisions, and the Register in Chancery is directed to enter and docket this Order and Final Judgment.
6. This Order and Final Judgment shall not constitute any evidence of or admission by any party herein that any wrongdoing has been committed by any of the parties to the Action and shall not be deemed to create any inference that any liability exists therefore.
7. The Action is hereby dismissed with prejudice as to all Defendants named in the Action and against Plaintiff and all other members of the Class on the merits, and, except as provided in the Stipulation, without costs.
8. "Defendant-Related Releasees" means Defendants and their respective immediate family members, their respective present and former parents, subsidiaries, divisions, and affiliates; the present and former employees, members, principals, officers, governors, and directors of each of them; the present and former attorneys, advisors, financial advisors, investment bankers, trustees, administrators, fiduciaries, consultants, representatives, accountants and auditors, insurers, and agents of each of them; and the predecessors, estates, heirs, executors, trusts, trustees, administrators, successors and assigns of each.
9. "Plaintiff-Related Releasees" means Plaintiff and his immediate family members (including parents and child), his present and former attorneys, advisors, trustees, administrators, fiduciaries, consultants, representatives, accountants and auditors, insurers, and agents of each of them; and the predecessors, estates, heirs, executors, trusts, trustees, administrators, successors and assigns of each.
10. "Released Persons" means Plaintiff-Related Releasees and Defendant-Related Releasees.
11. "Settled Claims" means:
(a) As against the Defendant-Related Releasees: all claims, demands, rights, actions or causes of action, liabilities, damages, losses, obligations, judgments, suits, fees, expenses, costs, matters, and issues of any kind or nature whatsoever, whether known or unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, matured or unmatured, that have been, could have been, or in the future can or might be asserted in this Action or in any court, tribunal, or proceeding (including; but not limited to, any claims arising under federal or state statutory or common law relating to alleged fraud, breach of any duty, negligence, violations of state or federal securities laws or otherwise) by or on behalf of any member of the Class, whether individual, class, derivative, representative, legal, equitable, or any other type or in any other capacity, and based on any conduct that occurred prier to the date of this Stipulation, against any Defendant-Related Releasees, whether or not any such Defendant-Related Releasees were named, served with process, or appeared in this Action, which have arisen, could have arisen, arise now, or may hereafter arise out of, or relate in any manner to the claims, demands, assertions, allegations, facts, events, transactions, matters, acts, occurrences, statements, representations, misrepresentations, omissions, or any other matter, thing, or cause whatsoever, or any series thereof, embraced, involved, or set forth in, or referred to or otherwise related, directly or indirectly, in any way to, this Action or the subject matter of this Action, and including without limitation any claims (whether or not asserted) in any way related to: (i) Demutualization; (ii) the Exchange's decision to reject a business combination with Archipelago; (iii) the Exchange's consideration of any merger, acquisition, joint venture, business combination, initial public offering, or other strategic initiatives or transactions involving the Exchange as an alternative to a business combination with Archipelago or the Strategic Investments; (iv) the Tender Offer; (v) the value or valuations of the Exchange done in connection with (iii); (vi) any question of Board or management compensation and Board reorganization prior to December 31, 2006; and/or (vii) the Strategic Investments (including expressly any alleged violations of Article IV of the Exchange's Certificate of Incorporation); and/or (viii) any and all alleged breaches of fiduciary or other duties of the Defendant-Related Releasees; provided however that the Settled Claims shall not be construed to limit or release any claims to enforce the terms of the Stipulation.
(b) As against the Plaintiff-Related Releasees: all claims, demands, rights, actions or causes of action, liabilities, damages, losses, obligations, judgments, suits, fees, expenses, costs, matters, and issues of any kind or nature whatsoever, whether known or unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, matured or unmatured, that have arisen, could have arisen, arise now or hereafter from their participation in or conduct involving or relating to the prosecution of this Action; and provided further that the Settled Claims shall not be construed to limit or release any claims to enforce the terms of the Stipulation.
12. The releases set forth herein extend to claims that any person granting the release (the "Releasing Person") does not know or suspect to exist at the time of the release, which if known, might have affected the Releasing Person's decision to enter into the release. The Releasing Person shall be deemed to relinquish, to the extent applicable, and to the full extent permitted by law, the provisions, rights, and benefits of § 1542 of the California Civil Code which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
In addition, the Releasing Person will be deemed to relinquish, to the extent applicable, and to the full extent permitted by law, the provisions, rights, and benefits of any law of any state or territory of the United States, federal law, or principle of common law that is similar, comparable, or equivalent to § 1542 of the California Civil Code.
13. Plaintiff and all members of the Class, Defendants, their respective affiliates, and anyone claiming through or for the benefit of any of them, are hereby permanently barred and enjoined from commencing, or in any way participating in the commencement of, any action or proceeding, in any forum, asserting against any of the Released Persons any Settled Claims, either directly, representatively, derivatively, or in any other capacity.
14. This Final Judgment and Order is a final judgment under Court of Chancery Rule 54(b) as to the claims and issues to which it applies. The Court has determined there is no just reason for delay and directs judgment on each of the claims resolved hereby.
15. The effectiveness of this Order and Final Judgment and the obligations of Plaintiff and Defendants under the Settlement shall not be conditioned upon or subject to the resolution of any appeal from this Order and Final Judgment that relates solely to the issue of Class Counsel's application for an award of attorneys' fees and expenses.
16. Without affecting the finality of this Order and Final Judgment in any way, this Court reserves jurisdiction over all matters relating to the administration and consummation of the Settlement, including the Plan of Allocation.
Chancellor William B. Chandler III
NOTES
[1] KBW makes eight arguments in the motion to dismiss: (1) this case is barred by the Delaware Release; (2) this case is precluded by res judicata; (3) the Rule 10b-5 claims are barred by the statute of limitations; (4) the § 29(b) claims are collaterally estopped; (5) the plaintiffs failed to state a § 10(b) or Rule 10b-5 claim upon which relief can be granted; (6) the plaintiffs failed to state a § 29(b) claim upon which relief can be granted; (7) the plaintiffs have not stated a proper RICO claim; and (8) defendant Spalluto was not properly served. Because I decide that this case is barred by the Delaware Chancery Court's Settlement Order, I do not reach the defendants' other arguments.
[2] Other cases stemming from the demutualization of the PHLX include: McGowan Investors LP, et al. v. Frucher, et al., 481 F.Supp.2d 405 (E.D.Pa.2007) and PennMont Securities v. Frucher, et al., No. 05-6686 (E.D.Pa.2005), before this Court and PennMont Securities v. DiDonato, et al., No. 06-1646 (E.D.Pa.2006) and Feinberg v. Benton, et al., No. 05-4847 (E.D.Pa.2005), before Judge Buckwalter.
[3] I take judicial notice of the Delaware Chancery Court's Order and Final Settlement (the "Settlement Agreement").
[4] Moreover, McGowan and the other plaintiffs appeared in the Delaware Chancery Court to object to the proposed settlement agreement. By appearing in the Delaware court, they waived their right to challenge the Delaware court's exercise of personal jurisdiction over them because they invoked "the benefits and protections of [Delaware's] laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612088/ | 123 So.2d 138 (1960)
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, Inc.
v.
Robert MILLS et al.
6 Div. 386.
Supreme Court of Alabama.
September 8, 1960.
*139 Dominick & Roberts, and James L. Shores, Tuscaloosa, for appellant.
Joe G. Burns and Robt. V. Wooldridge, Jr., Tuscaloosa, for appellees Robert Mills and Charlotte Mills.
J. Monroe Ward, Tuscaloosa, for appellee Roy Leland Mills.
GOODWYN, Justice.
This is the second appeal in this case. The first appeal, reported as Alabama Farm Bureau Mutual Casualty Insurance Co. v. Mills, 266 Ala. 681, 98 So.2d 48, was from a decree of the circuit court of Tuscaloosa County, in equity, sustaining respondents' (appellees') demurrers to the bill for declaratory judgment. We reversed, holding that the bill presented a justiciable controversy appropriate for declaratory relief. On remandment, the respondents-appellees answered the bill and a hearing was had on the merits. The evidence included oral testimony, depositions and a stipulation. The trial court rendered a decree denying the relief sought by the bill. The complainant insurance company brings this appeal from that decree.
The material facts are as follows:
The insurance company issued a policy of automobile liability insurance to Roy R. Mills covering the operation of a 1950 Dodge, "subject to the limits of liability, exclusions, conditions and other terms" of the policy. Conditions 2, 5, and 12 of the policy are as follows:
*140 "2. Notice of AccidentCoverages A [Bodily Injury Liability], B [Property Damage Liability] and C [Medical Payments]. When an accident occurs written notice shall be given by or on behalf of the insured to the Company as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses." [Emphasis supplied.]
"5. Action Against CompanyCoverages A, B, and C. No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy, nor, under Coverages A and B, until the amount of the insured's obligation to pay shall have been finally determined either by judgment against, the insured after actual trial or by written agreement of the insured, the claimant and the Company, nor under Coverage C until the required proofs of claim have been filed with the Company
* * * * * *
"12. Assistance and Cooperation of the Insured. The insured shall cooperate with the Company and, upon the Company's request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits. * * *"
The insured is thus defined in the policy:
"Definition of Insured. With respect to the insurance afforded for liability, the unqualified word `insured' includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission."
The automobile covered by the policy was involved in an accident on February 18, 1956. It was being driven by Roy Leland Mills, one of the respondents below, who was 16 years of age and the son of Roy R. Mills. There appears to be no dispute that the son was driving the car with the father's permission, thus making the son an "insured" within the terms of the policy. At the time of the accident, two young ladies, each 16 years of age, were passengers in the car. One of the girls, Charlotte Mills, was a respondent below and is an appellee here.
On February 20, 1956, both the father and son went to the insurance company's office in Tuscaloosa. The son reported that he had been involved in an accident while driving the insured automobile. An employee of the company then prepared a report of the accident which was read and signed by the son. In the report the son related that at the time of the accident he was driving along a muddy and slippery country road; that he was traveling at a speed of from 30 to 35 miles per hour; that, while going down an incline, the left front tire blew out, causing him to lose control of the automobile, which continued on for a distance of about 40 yards before coming to a stop with its rear wheel in a ditch; that Charlotte Mills and Helen Hughes were in the automobile with him and that they were injured. The report also showed Ray Watson and Jim Freeman as witnesses to the accident. The insurance company's adjuster got written statements from Miss Hughes, Watson and Freeman, substantially supporting the facts as related by Roy Leland in reporting the accident. The adjuster made a report to the company's claims office that the cause of the accident was the blowing out of a tire which caused the car to go into a ditch.
On April 19, 1956, Charlotte Mills, suing by her father as next friend, filed a suit against Roy Leland Mills in the circuit *141 court of Tuscaloosa County, at law, to recover damages for injuries allegedly suffered by her as a result of the accident. Her father, Robert Mills, also filed a separate suit against Roy Leland. The suits were served on Roy Leland on April 21, 1956. On April 24, 1956, the company's adjuster requested Roy Leland to give him a written statement about the facts of the accident. In his statement Roy Leland gave substantially the same information contained in the report of the accident which he had made on February 20, 1956. In the second statement he said: "I was driving about 30 to 35 miles per hour. Just as we passed Mrs. Byrd Hughes' home, over a little hill, the left front tire blew out. The car started sliding and turning for about 50 to 60 yards and went into the ditch on the left side of the road * * * I don't believe the accident could have been prevented. The tires were practically new. But the tire blew out, causing me to lose control." On April 25, 1956, the adjuster made a report to the company's home office. Included was a check list made out by the adjuster on which there was written the following: "This appears to be a nuisance suit. Insured is free from negligence in any degree as I see it."
Sometime between May 19 and June 1, 1956, the adjuster received a telephone call from Robert Mills stating that he had discharged his attorneys in the two suits and asked that the adjuster come talk with him. The adjuster went to Robert Mills' home where he was told that the accident had not been caused by a blowout. Robert Mills offered to settle both suits for $8,000. The adjuster reported this information to the company's home office and later also reported it to the company's Tuscaloosa attorney.
At the request of the company's attorney both Roy R. and Roy Leland Mills went to his office at Tuscaloosa on June 4, 1956. After being informed by the attorney that the tire did not blow out Roy Leland gave another signed statement about the facts of the accident. This last statement reads, in part, as follows: "It had been raining and the road was wet, but I did not think that I was speeding, for just before the accident occurred at the top of a little hill, when I was at the bottom of the hill, I noticed my speedometer was on approximately 35 miles an hour. And I did not gain any speed as I went up the hill. As I got to the top of the hill for some reason I got out of the ruts in the road and skidded or lost control of the car and went off of the road on my left * * *. As we were leaving, one of the boys suggested that I cut the left front tire and claim that I had a blowout, so I got out of the car, took my knife and cut the left front tire of the car, and then threw my knife away."
On June 13, 1956, the witness Jerry Freeman gave the adjuster an additional statement in which he said he was following Roy Leland's car, which got up to about 60 miles an hour when it got to the top of a hill; that he saw the car sliding sideways and it left the road; that Roy expressed concern about what his daddy would do to him; that someone suggested he could claim that the tire blew out; that Roy took a knife from his pocket and cut the left front tire.
The adjuster also secured an additional statement from Ray Watson on June 13, 1956. Watson stated that Freeman was driving the car in which he was a passenger at about 40 to 45 miles per hour when they came up behind the car driven by Roy; that Freeman slowed his car to about 30 miles an hour; that Roy then speeded up and Freeman picked back up to about 40 to 45 miles an hour; that Roy kept on pulling away until he reached a speed of 55 to 60 miles per hour, at about which time he went over the top of a hill; that when they came over the hill, the Mills car was sliding into the ditch; that after moving the two girls from the Mills car to the Freeman car someone mentioned cutting the tire and claim that it "blowed out"; and that Roy cut the left front tire.
On June 27, 1956, the insurance company wrote a letter to Roy Leland informing him that it was denying him coverage under the policy; that it was instructing its counsel *142 to withdraw from the two law suits and advising him to employ an attorney at his own expense.
On July 5, 1956, the company brought this declaratory judgment proceeding for a judicial determination as to whether or not it is obligated, under the circumstances, to defend the two suits brought against Roy Leland.
The decree appealed from contains findings "that no written or oral misrepresentations or warranties in connection with proof of loss in connection with said policy made by Roy R. Mills or Roy Leland Mills or any one else were made with actual intent to deceive or increased the risk of loss to complainant so as to in any way prejudice or release complainant from its obligations under said Policy No. A-76535 referred to in the Bill of Complaint herein."
Appellees argue for application of the rule that a chancellor's findings of fact from evidence given orally before him are presumed to be correct. But, here, there is no substantial conflict in the evidence bearing upon the material issues presented, that is, whether there was a failure to comply with the notice and cooperation conditions of the policy in some substantial or material respect. There is, therefore, "no real ground for the application of the rule, here prevailing, of the presumption of verity to be indulged as to the finding of the lower court on the evidence offered and noted on the hearing." State v. McKenney, 268 Ala. 165, 169, 105 So.2d 439, 442; State v. Mobile Stove & Pulley Mfg. Co., 255 Ala. 617, 620, 52 So.2d 693; Batson v. Birmingham Trust & Savings Co., 241 Ala. 629, 632, 4 So.2d 307; Esco v. Davidson, 238 Ala. 653, 655, 193 So. 308; Barnes v. Clark, 227 Ala. 651, 653, 151 So. 586, 90 A.L.R. 637; Metropolitan Casualty Ins. Co. of New York v. Blue, 219 Ala. 37, 41, 121 So. 25; Commercial Credit Co. v. Tarwater, 215 Ala. 123, 126, 110 So. 39, 48 A.L.R. 1437.
It is apparent that the trial court based its decree on § 6, Tit. 28, Code 1940, and on a finding that the company was not prejudiced.
We will discuss first the question of prejudice. In the recent case of American Fire & Casualty Company v. Tankersley, Ala., 116 So.2d 579, 581, where there was involved a liability policy containing provisions and conditions identical with those in the policy now before us, it was held to be "entirely immaterial whether the insurance company was prejudiced or not." As there said:
"The cases recognize a distinction between policies in which notice to the insurer of the accident and notice to the insurer of any claim or suit are made a condition precedent to any suit against the company and those policies in which there is no express provision making the insured's failure to give such notice a ground of forfeiture or a condition precedent. It is cases involving policies of the kind last mentioned in which the question of whether the insured is prejudiced by the failure to give notice of the accident is considered.
"The rule established by the great weight of authority is that where, as in the policy involved in this case, notice of the accident and forwarding of any demand, notice, summons or other process are specifically made a condition precedent to any action against the insurer, the failure to give a reasonably timely notice of the accident or of the receipt of any demand, notice, summons or other process will release the insurer from the obligations imposed by the contract, although no prejudice may have resulted. [Cases cited.]"
Section 6, Tit. 28, Code 1940, provides as follows:
"No written or oral misrepresentation, or warranty therein made, in the negotiation of a contract or policy of insurance, or in the application therefor or proof of loss thereunder, shall *143 defeat or void the policy, or prevent its attaching, unless such misrepresentation is made with actual intent to deceive, or unless the matter misrepresented increase the risk of loss."
Appellees insist that the false statements were made in connection with furnishing "proof of loss" under the policy, were not made "with actual intent to deceive" and did not "increase the risk of loss." Assuming (there being no necessity of deciding) that § 6 is applicable, we see no basis for holding that such statements were not made "with actual intent to deceive." It is apparentin fact, undisputedthat the false statements were made deliberately as part of a planned scheme of deception. That the plan was devised originally as a protective shield for Roy Leland against what his father might do to him cannot serve to excuse him, as an insured, from complying with the notice requirement of the policy. It should be remembered that the false statements were given to the insurance company, obviously in connection with the insurance policy, and not just to the father. As to the cooperation requirement, there is no contention that it is in anywise controlled by § 6.
We are clearly of the opinion that there was a failure of substantial compliance (Alabama Farm Bureau Mutual Casualty Ins. Co. v. Teague, 269 Ala. 53, 56-57, 110 So.2d 290; George v. Employers' Liability Assur. Corporation, 219 Ala. 307, 309, 112 So. 175, 72 A.L.R. 1438) with the notice and cooperation conditions of the policy and that the trial court erred in its holding.
The following from Hoffman v. Labutzke, 233 Wis. 365, 374-375, 289 N.W. 652, 656, is equally applicable here:
"* * * If the misstatements of Labutzke were such `as to tend to lead the insurer to conclude that it was justified in defending the case on the merits, whereas, if the facts * * * had been disclosed, it might well have concluded to adjust the damages rather than stand the expense of a trial and the chance of an enhanced award because of the assured's conduct' in attempting to shift blame for the accident on an undisclosed and non-existent person, a case of avoidance is made. As said in Buckner v. General Casualty Co., 207 Wis. 303, 309, 241 N.W. 342, co-operation means `that there shall be a fair, frank, and truthful disclosure of information reasonably demanded by the insurer for the purpose of enabling it to determine whether or not there is a genuine defense.' Clause 6 of the instant policy required that the assured's notice of the accident should contain `reasonably obtainable information respecting the time, place and circumstances of the accident.' This implies that the information given should not be knowingly false. Clause 7 required that the `insured shall cooperate with the company and, upon the company's request, * * * shall assist * * * in securing and giving evidence.' This implies that the evidence secured or given shall not be knowingly false. Both Clauses 6 and 7 are expressly made conditions of the policy, and the `No action' Clause 8 provides, `No action shall lie against the Company unless, as a condition precedent thereto, the insured shall have fully complied with all the conditions hereof.' Breach of conditions voids the policy. See Hunt v. Dollar, supra [224 Wis. 48, 53, 271 N.W. 405]. * * *" [Emphasis supplied.]
Accentuating the materiality of the statements as to the cause of the accident is the fact that liability of the insured to the passengers in the car was subject to the "guest statute". Code 1940, Tit. 36, § 95.
In Allegretto v. Oregon Automobile Ins. Co., 140 Or. 538, 13 P.2d 647, 648, the court, in considering the effect of a false statement made by the insured, had this to say:
"* * * It was his contractual. obligation to make a full, fair, and complete *144 disclosure of the facts relative to the automobile accident in order to enable the insurance company to determine whether the claim should be contested. Co-operation, within the meaning of the policy, does not mean that the insured is to aid and assist the insurer in the maintenance of a sham defense. It does, however, imply good faith. The insured is not obliged to keep his mouth closed merely because an insurance policy is involved. When he does speak, however, it must be to tell the truth. When the misrepresentation concerns a material matter and substantially affects the rights of the insurer, there is unquestionably a breach of the policy. Seltzer v. Indemnity Ins. Co. of N. Y., 252 N.Y. 330, 169 N.E. 403; Rochon v. Preferred Accident Insurance Company of New York, 114 Conn. 313, 158 A. 815; George v. Employers' Liability Assurance Corporation, 219 Ala. 307, 122 So. 175, 72 A.L.R. 1438; Huddy on Automobiles (9th Ed.) vol. 13-14, § 298; Vance on Insurance (2d Ed.) p. 915. See cases in note 72 A.L.R. page 1453. * * *"
In Fidelity & Casualty Company of New York v. Griffin, D.C.Tex., 178 F.Supp. 678, 680, there was involved a policy containing conditions quite similar to those in the case before us. It was there said:
"* * * Notice of an accident containing a deliberate and willful misstatement as to one of the circumstances of controlling importance, is no notice at all. Implicit in the contractual obligation of the assured to give notice, is the condition that the notice be honest and truthful (Hoffman v. Labutzke, 233 Wis. 365, 289 N.W. 652).
"Similarly, such deceit, continued for a period of seven months following the accident, constitutes a breach of the cooperation clause. Under Texas authorities, such a breach must be substantial and material before the insurer is relieved. * * *"
While the deceit here did not continue as long as it did in Fidelity & Casualty Company of New York v. Griffin, supra, the question of lack of substantial compliance with the notice and cooperation conditions is not one "of mere time lapse." Miller v. Zurich General Accident & Liability Ins. Co., 36 N.J.Super. 288, 115 A.2d 597; Maryland Casualty Co. v. Emery, D.C.N.J., 163 F.Supp. 657.
In applying the foregoing principles to the case before us it is to be noted that the false statements were deliberately made, reiterated, and persisted in for about three and a half months and were not changed until Roy Leland was confronted with their falsity by counsel for the company; that the false statements were corroborated by other witnesses to the accident in accordance with the planned deception; that the statements, if true, undoubtedly would have absolved the company from ultimate liability, particularly in view of the "guest statute"; and that the company relied on such false statements in preparing a defense to any claim arising out of the accident, thus lulling it into a sense of false security, to its detriment
It seems patently clear to us that the deliberate making of and persistence in such false statements constituted a failure to comply with the notice and cooperation conditions in a "substantial and material respect." Alabama Farm Bureau Mutual Casualty Ins. Co. v. Teague, supra [269 Ala. 53, 110 So.2d 293]; George v. Employers' Liability Assur. Corporation, supra.
The guardians ad litem who represent the minor appellees have filed motions in this court praying that they be allowed fees for their services in this proceeding. The motions are well taken. Sellers v. Sellers, Ala., 117 So.2d 386, 389; Code 1940, Tit. 7, §§ 165, 180; Equity Rule 112, Code 1940, Tit. 7 Appendix.
The decree appealed from is due to be reversed and the cause remanded with directions that the trial court enter a decree in *145 accordance with this opinion, including the ascertainment of reasonable solicitors' fees for the guardians ad litem in both courts to be taxed as part of the costs of the proceeding. The costs in both courts will be assessed against appellant.
Reversed and remanded with directions.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612066/ | 11 So.3d 369 (2009)
THOMPSON
v.
STATE.
No. 4D09-422.
District Court of Appeal of Florida, Fourth District.
June 3, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612080/ | 123 So.2d 387 (1960)
David H. UGENT and Stanley S. Stein, Co-executors of the Estate of Rodrich N. Boehmke, Deceased, Rudolph Boehmke and Paul Boehmke, Appellants,
v.
Herbert BOEHMKE, Appellee.
No. 60-53.
District Court of Appeal of Florida. Third District.
October 3, 1960.
Waldo G. Rothenberg, So. Miami, for Rudolph Boehmke.
Courshon & Goldworm, Miami Beach, for Stanley S. Stein.
Sylvester P. Adair, Homestead, for Paul Boehmke.
Martin S. Schwartz, Coral Gables, for David H. Ugent.
*388 Walsh, Simmonite, Budd & Walsh, Miami, for appellee.
HORTON, Chief Judge.
The appellee, plaintiff below, brought suit as a beneficiary to enforce the provisions of a joint and mutual will executed in 1953, devising to him certain real property located in Dade County.
Rodrich Boehmke and his wife, Kathryn, executed a joint and mutual will in 1953 which, among other things, sought to dispose of certain real property held by them as an estate by the entireties. The property was devised to the survivor and in turn, at the death of the survivor, was bequeathed to the appellee. There was a specific covenant and agreement by each with the other to abide by the terms of the will and a prohibition against the making of any will or codicil in conflict therewith without the consent of the other. Another covenant of the joint and mutual will provided that the beneficiaries under the will, of whom the appellee was one, had the right to proceed at law or in equity to enforce bequests made to them in the will. Rodrich Boehmke survived his wife, and after her death sought to change the terms of the 1953 will by a codicil contrary to the joint and mutual will.
The chancellor, in a lengthy and well reasoned final decree, found that the joint and mutual will constituted a contract, was made for the benefit of a third party, namely the appellee, and was enforceable. He adjudicated favorably to the appellee his claimed rights under the joint and mutual will of 1953.
The appellants contend on appeal that the appellee had failed to prove a contract on the part of the decedents to devise the real property in question to the appellee upon the death of their survivor and that the alleged prohibition against alienation contained in the will was such a restraint as to render it void.
We have considered the terms of the 1953 joint and mutual will of the decedents and conclude as did the learned chancellor that the instrument itself constituted a contract between the parties to devise their property in a certain manner provided by the instrument, and was enforceable. The appellants argue that a will is not a contract and consequently would not constitute evidence of a contract that would be enforceable in equity. We disagree with this contention because it is apparent from a reading of the will that it contains all the necessary elements of a legal contract, was under seal, executed by both parties, and witnessed. The consideration for the execution would appear to have been sufficiently established by the terms of the will itself where it appears that mutual promises were made by the parties, each to the other. See 57 Am.Jur., Wills, § 731; 57 Am.Jur., Wills, § 695.
It is evident from reading the joint and mutual will that the deceased parties intended to intercept the operation of the law upon the death of the other as it concerned the survivor's right in properties held as an estate by the entireties in order that the object of their bounty might benefit. To do this, they contracted and covenanted that the survivor would not change the will or make any codicil thereto that would render ineffective the bequest of the property to the appellee. This, we think, they had a right to do and their purpose was fully and legally accomplished.
Concluding as we have that the joint and mutual will constitutes a contract between the parties, and that the same is enforceable, it becomes unnecessary to discuss the other question raised by the appellants.
The decree appealed is accordingly affirmed.
PEARSON and CARROLL, CHAS., JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2187885/ | 242 Cal. App. 2d 66 (1966)
BUD FULLER et al., Plaintiffs and Respondents,
v.
THE SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT et al., Defendants and Appellants.
Civ. No. 7728.
California Court of Appeals. Fourth Dist., Div. Two.
May 6, 1966.
Surr & Hellyer, Robert J. Webb, James W. Dilworth and John B. Surr for Defendants and Appellants.
Cosgrove, Cramer, Rindge & Barnum and J. D. Barnum, Jr., for Plaintiffs and Respondents.
TAMURA, J.
This is an appeal from an order made subsequent to the entry of the judgment directing the issuance of a peremptory writ of mandate ordering San Bernardino Valley Municipal Water District to terminate its proceedings for the annexation of territory underlying Big Bear Lake. That judgment was this day affirmed in Fuller v. San Bernardino Valley Municipal Water Dist., ante, p. 52 [51 Cal. Rptr. 120] 4th Civil No. 7560.
The judgment directing issuance of the peremptory writ was entered on November 22, 1963. On the same date appellant filed its notice of appeal and adopted an ordinance purporting to annex the territory in question. The ordinance was filed with the Secretary of State on December 26, 1963.
On December 23, 1963, respondents filed a notice of motion pursuant to section 1110b of the Code of Civil Procedure for an order that the appeal shall not stay the judgment or peremptory writ. The motion was duly heard and on January 20, 1964, the court made its order that the appeal shall not operate as a stay and directed the clerk to issue the peremptory writ of mandate forthwith. This appeal is from that order. *68
[1] Since the judgment directing issuance of the writ has been affirmed, the issues sought to be raised by this appeal have become moot. [2] The rights of respondent under the judgment granting the peremptory writ cannot be affected by the subsequent completion of the purported annexation by appellant. (City of Colton v. City of Rialto, 230 Cal. App. 2d 174 [40 Cal. Rptr. 766].) [3] An appeal may be dismissed on the court's own motion where the issue has become moot by reason of a decision in another pending action or in the same action. (Nomm v. Nomm, 164 Cal. App. 2d 663, 664 [330 P.2d 839]; County of Los Angeles v. Department of Social Welfare, 114 Cal. App. 2d 827, 828 [250 P.2d 716]; Burks v. Bronson, 58 Cal. App. 143 [207 P. 1018].) See also City of Coronado v. Sexton, 227 Cal. App. 2d 444 [38 Cal. Rptr. 827].
For the foregoing reason, this appeal is dismissed on the court's own motion.
Kerrigan, Acting P. J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2456103/ | 493 S.W.2d 903 (1973)
CENTRAL POWER & LIGHT COMPANY, Appellant,
v.
Eulalia R. MARTINEZ et al., Appellees.
No. 746.
Court of Civil Appeals of Texas, Corpus Christi.
April 20, 1973.
*904 Anderson, Smith, Null & Stofer, James N. Stofer, Victoria, for appellant.
Lawrence A. Dio, Port Lavaca, O. F. Jones, Victoria, for appellees.
OPINION
YOUNG, Justice.
This is an appeal from a condemnation proceeding brought by Central Power & Light Company to condemn a 4.1 acre strip easement (60 feet wide) out of a 190.1 acre tract for purposes of establishing a high voltage electric transmission line over *905 defendants' property. Based on the jury verdict, the trial court rendered judgment awarding compensation to the defendants in the sum of $14,796.00. The plaintiff appeals.
The defendants' property is located in Calhoun County, Texas, in a rural area some two and one-half miles southwest of Port Lavaca. The property is used predominately for farming operations. The easement taken runs along the southeast border of the defendants' property for approximately 2,900 feet. Appellants have erected three steel towers on the easement which carry three circuit wires and two shield wires. One of the defendants, Elias R. Martinez, farms the property and lives with his family in a residence which extends into the easement a distance of 25.6 feet. The auxiliary farm buildings near the residence consist of a garage with attached tractor shed, which is situated entirely within the easement, and a storage shed, which is seven feet from, and completely outside, the easement.
We summarize the conclusions of the principal expert witnesses as to the easement and remainder before and after taking, together with the jury's verdict, in the following chart:
Part Taken Remainder
4.1 acres 186 acres
Before After Before After Damage
1. W. S. Duke, Jr. $2,240.00 $410.00 $74,360.00 $54,565.71 $21,624.29
(Defendants' witness)
2. Ron Brown $1,750.00 $400.00 $79,950.00 $79,950.00 $ 1,350.00
(Plaintiff's witness) ---------------------- ----------------------- ----------
Jury Verdict $2,000.00 $400.00 $75,500.00 $62,304.00 $14,796.00
Appellant complains in point one of the trial court's action in sustaining of appellees' motion in limine regarding appellant's offering of testimony of intention to make a lesser use of the easement than that set out in the condemnor's pleadings. Further, in point two the appellant complains that the trial court improperly refused, upon objection of defendants, to admit testimony of its witness, Fred Youngs, dealing with actual uses of the easement which were reasonably foreseeable and probable.
Prior to the commencement of trial and the voir dire examination of the jury panel, the trial court sustained appellees' motion in limine prohibiting:
"Reference to any of the Plaintiff's witnesses admitting that they intend to use a lesser use of the easement than that which is set out in their pleadings;..."
Subsequently, during the course of the trial, the witness, Fred Youngs, was asked this question:
"Q Now, one other thing, Mr. Youngs. After the three transmission towers are placed on the Martinez property, or on any property along the transmission line, subsequent to their being constructed and the C. P. & L. people leave, in the event that it becomes necessary for C. P. & L. to go back on the land to make any form of repairs, are you familiar with the practice of C. P. & L. for compensating the landowner for any property rights that may have been damaged by going on the land?"
Objection by appellees' attorney follows:
"Objection, Your Honor. That has no bearing on this case. He is asking this man to tell about what they are going to do if they damage the property, which is not an issue in this case."
The Court: "Sustained."
No further questions were asked the witness at that time. Earlier in the trial, however, this witness did testify concerning *906 conditions (number and location of towers and number and types of wires) on the easement at the time of trial and concerning the intention to use the property in the future to the extent set out in the pleadings. Otherwise there is nothing in the record by way of bill of exception by which appellant seeks to indicate what testimony it was prohibited from showing to the jury about reasonably foreseeable and probable uses of the easement.
The sustaining or overruling of a motion in limine has been held not to be reversible error. Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.Sup.1963); Johnson v. Reed, 464 S.W.2d 689 (Tex.Civ.App.Dallas 1971, n. r. e.). Error is not shown in the exclusion of evidence unless the record shows clearly, by bill of exceptions or otherwise, what the evidence would have been if admitted. Merrifield v. Seyferth, 408 S.W.2d 558 (Tex.Civ.App.Dallas 1966, no writ).
Appellant relies on City of Pearland v. Alexander, 483 S.W.2d 244 (Tex. Sup.1972). There the overriding issue between the parties concerned the actual uses the City of Pearland would make of the ten-acre site, together with the right of the City to establish those uses which were reasonably probable. By instruction in the charge, the court required the jury "to presume that the City of Pearland will exercise its rights and use and enjoy this property to the full extent for such a sewerage disposal plant." (Emphasis supplied.) This instruction was held to be erroneous as a comment on the weight of the evidence. The Alexander case is readily distinguishable from the present case in that no instruction in the charge to the jury was given requiring the jury to presume that Central Power & Light Company would use the entire easement for towers and electric transmission lines. (Emphasis supplied). therefore, appellant's first two points of error are overruled
By its points three through six, appellant complains that certain testimony of witness, W. S. Duke, Jr., dealing with the costs of relocating appellees' improvements, was improperly admitted by the trial court. Appellant says most of such testimony of Mr. Duke was based on bids from others not before the court, and therefore constitutes hearsay. Further, appellant says that such testimony would cause a betterment for appellees and permit them to recover double damages.
In addition to being in the business of appraising property, Mr. Duke stated that he was also in the business of real estate, contracting (building about ten houses each year), mortgage lending and insurance. His qualifications as an expert were not challenged except as to relocation costs.
On direct examination, Mr. Duke testified that he considered bids as follows: $1,635.00 from a house mover; $1,257.93 from a carpenter; $2,765.00 from a plumber; $1,700.00 from a nurseryman; and $900.00 from a truck-hauler. The total amount of such bids was $8,257.93. At the beginning of the offering of this testimony about bids, the appellant's attorney objected as follows:
"Your Honor, we are going to object to offering that into evidence, and we are going to object to his testifying as to information that he obtained in connection with this bid. This is hearsay and we have absolutely no opportunity to cross examine him, Your Honor."
The Court: "Overruled. Hearsay is admissible from an expert."
Later, the court granted the request of appellant's attorney to "have a running bill to all of this information he (Duke) has received from outside people."
Incident to the relocation of the house, garage with attached shed, and storage shed, the witness gave his opinion for the total cost as $16,076.29. According to him the remainder (186 acres) was further reduced in price by $3,718.00 (approximately $20.00 per acre), due to the burden of the easement. Mr. Duke's opinion of the total *907 devaluation of the remainder was $19,794.29 ($16,076.29 plus $3,718.00). He gave his opinion of fair market value of the remainder before and after taking as $74,360.00 and $54,565.71, respectively.
Also, appellant's witness, Mr. Lyman Saylor, testified regarding relocation costs in the amount of $3,785.00 and stated that he considered bid information from others (not before the court).
After Special Issue No. 4 inquiring about the market value of the remainder (186 acres), the trial court instructed the jury:
"... you may take into consideration the reasonable cost of removing and reestablishing improvements from the right-of-way, but these matters can only be considered by you as affecting the market value of the land, if they do affect it."
Relocation costs are sometimes a proper inquiry as set out in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 979 at page 980:
".... if the improvements which are situated upon the portion of land taken are essential to the use and enjoyment of the remainder of the land, or if their replacement, by removal or reconstruction, is necessary in order to obviate depreciation in the value of the residue, the cost of removal, and/or reconstruction and/or replacement may be a proper inquiry in connection with the issue of diminished market value of the remainder...."
When testifying concerning facts upon which his opinion is based, an expert's testimony will not be excluded merely because it is based upon what is usually regarded as hearsay. Cole v. City of Dallas, 229 S.W.2d 192 (Tex.Civ.App.Dallas 1950, n. r. e.). To the same effect see State v. Oakley, 163 Tex. 463, 356 S.W.2d 909 (1962); City of Houston v. Huber, 311 S.W.2d 488 (Tex.Civ.App.Houston 1958, no writ). In Huckabee v. State, 431 S.W.2d 927 (Tex.Civ.App.Beaumont 1968, n. r. e.) the appellate court approved the trial court's permitting a witness to testify, over the objection of hearsay, as to cost of replacement of an electric sign based upon conversation with a sign man. There the court said:
"... The qualification of a witness to testify as to value is one for a trial court to determine, and will not be disturbed on appeal unless there is an abuse of discretion. No such abuse is shown in this case,..."
We find no reversible error in the trial court's admission of the testimony complained of, especially in view of similar testimony by appellant's witness and the limiting instruction in the trial court's charge. Appellant's points three through six are overruled.
Appellant's seventh point complains that the trial judge erred in refusing to admit into evidence certain photographs. These photographs were offered for the purposes of rebuttal to testimony of appellees' witnesses that electric transmission lines interfered with television and radio reception and that people would not live under or in close proximity to such lines.
There were seven photographs offered collectively by the appellant. Four depicted city residences with lines near or over the buildings shown. Two depicted lines near or over a Gulf filling station. And one showed Port Lavaca High School with lines near it. The testimony of Fred Youngs (on a bill of exception) was that he had taken five of the photographs and was acquainted with the property shown in the other two. None of the scenes showed any of the property subject to this condemnation suit. The trial court refused admission of the photographs, on objection of appellees' attorney, when initially offered and again after the bill of exception was made.
Mr. Youngs later testified, and explained why the proposed electric transmission *908 lines over the Martinez house would not create an unsafe condition and why such lines would not likely cause radio and T.V. interference. Later, Mr. Ron Brown (appellant's witness) testified about many instances of electric wires running near and over residences in Port Lavaca, San Antonio and Victoria and that market values were not adversely affected by the presence of such lines. He also testified that the market value of the remainder (186 acres) of the Martinez property would not be damaged because of the appellant's lines over the buildings.
The trial court is accorded considerable discretion in ruling on admission or exclusion of photographic evidence. State v. Clarke, 383 S.W.2d 953 (Tex.Civ. App.Waco 1964, no writ); 32 C.J.S. Evidence § 716, pp. 1018-1021. The photographs certainly could not show whether there was, or there was not, radio and TV interference caused by electric transmission lines. Furthermore, if the offered photographic evidence showed that people lived near or under such lines, then such evidence was cumulative of Mr. Brown's testimony. Appellant's point seven is overruled.
In its point eight, appellant says the trial court erred in refusing to admit certain testimony of witness Duke on cross-examination, concerning market value of the Martinez home (located partially in the easement to be taken).
The appellant's attorney indicated to the trial judge that he wanted to ask Mr. Duke if the fee simple title to the house were taken, would that cost be less than the cost of picking up the house and moving it. An objection to such a question being asked was sustained. Previously in the trial Mr. Duke had testified at least once, on cross-examination, about his estimate of the value of the house sitting presently on a one-acre tract, $8,500.00, as compared to the cost of moving it, $16,076.29.
We hold that, if there was error by the trial court, it was not reversible error. Rule 434, Texas Rules of Civil Procedure. Appellant's point eight is overruled.
Next, the appellant complains in points nine through eleven that the jury's answers to the before and after value of the remainder were not supported by competent evidence and that the award, $13,196.00, based upon such answers was excessive.
The statement of facts in this case comprises 440 pages and we have reviewed the evidence thoroughly. There is extensive testimony, both direct and cross-examination, on each seriously contested point. The appellant offered the testimony of three expert witnesses, and the appellees offered the testimony of four expert witnesses and the testimony of the defendant who farmed the land in question. The jury did not accept the highest or the lowest value in arriving at their answers. The jury was entitled to select and choose the testimony it wanted to believe, and set the value at any amount between the highest and the lowest expressed by the opinion witnesses. Centerville Independent School District of Leon County v. Wingfield, 450 S.W.2d 946 (Tex.Civ.App.Waco 1970, no writ); South Texas Electric Cooperative, Inc. v. Ermis, 396 S.W.2d 955 (Tex.Civ. App.Corpus Christi 1965, no writ). Appellant's points nine through eleven are overruled.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612428/ | 282 So.2d 905 (1973)
Jessie WILLIAMS
v.
The STATE of Alabama.
SC 519.
Supreme Court of Alabama.
September 13, 1973.
*906 Howard A. Mandell, Montgomery, for appellant.
William J. Baxley, Atty. Gen. and Kent Brunson, Asst. Atty. Gen., for the State.
FAULKNER, Justice.
"No, sir, I never totes a knife" and "If you live by the sword you will die by it." Thus saith Jessie Williams in his own defense at his trial on a charge of murder. Eye witnesses overwhelmingly disproved Williams' prophetic statements.
Williams was indicted by the grand jury of Montgomery for murder in the first degree. He was tried by a jury and convicted of murder in the second degree. He was sentenced to 10 years in the State penitentiary. He appealed to the Alabama Court of Criminal Appeals. On September 5, 1973, this case was transferred to this court.
There was a gangland down at the Jazz Box in Montgomery on September 11, 1971. Bricks were thrown, the cold steel of knife blades flashed, garbage cans were used as a "knight's shield," and human fists swung in the savage fight. When it was over, Carl Lee Thompson, who appears not to have participated, lay dead on the concrete steps of a house where he had retreated to seek refuge from his assailants. There were nineteen knife wounds about his head, face, and body.
The State's eye witnesses placed Williams at the scene of the crime and testified that he was one of the participants who stabbed Thompson with knives. There was no evidence that Williams acted in self defense. The record is replete with evidence that this was nothing more than a gang killing resulting from an argument outside the Jazz Box between persons other than Williams. Thompson was inside when the argument began. He left, walked up the street, and when he returned, a fight had started. As he approached he was knocked down and stabbed by a number of persons, including Williams.
Williams, on this appeal, says that the trial court erred in instructing the jury that it could presume the malice required from the use of a deadly weapon without qualifying the instruction with the words "unless the evidence which proves the killing rebuts the presumption."
The trial judge did not err. Where no inference was deducible from the evidence that Williams acted in self defense or that his stabbing the decedent was the result of sudden passion engendered by sufficient provocation, and without malice, the trial court was not required to add to his charge that malice is presumed from the use of a deadly weapon the qualifying words "unless the circumstances of the killing disprove malice." Baker v. State, 33 Ala.App. 596, 36 So.2d 239, cert. denied 251 Ala. 65, 36 So.2d 241.
*907 The next alleged error in the brief of Williams is, "The under representation of black persons on the Montgomery County jury roll compels reversal of appellant's conviction." This issue is raised for the first time on appeal. It was not raised at any stage of the proceedings below. There is no evidence, or pleading, pertaining to this issue in the record. Therefore, there is nothing for this court to review on this alleged error.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD, and MADDOX, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/16734/ | 167 F.3d 229
In the Matter of: Lloyd C. CHARRIER; Barbara T. Charrier, Debtors.Lloyd C. Charrier; Barbara T. Charrier, Appellants,v.Security National of Oregon, Appellee.
No. 97-31275.
United States Court of Appeals,Fifth Circuit.
Feb. 18, 1999.
Lawrence R. Anderson, Jr., Seale, Smith, Zuber & Barnette, Baton Rouge, LA, for Appellants.
Janice M. Church, Onebane, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, LA, for Appellee.
Appeal from the United States District Court for the Middle District of Louisiana.
Before SMITH, DUHE and WIENER, Circuit Judges.
WIENER, Circuit Judge:
1
In this bankruptcy case, Plaintiffs-Appellants Lloyd and Barbara Charrier appeal the judgment of the district court affirming the bankruptcy court's holding that a 1979 collateral mortgage encumbering a parcel of their community property is valid, and that Security National of Oregon ("SNO") is entitled to the balance due on two promissory notes secured by that mortgage. Concluding that the bankruptcy court's holding is correct, we affirm.
2
* FACTS AND PROCEEDINGS
3
On January 3, 1979, Lloyd and Barbara Charrier executed a promissory note (the "collateral mortgage note") in the amount of $200,000, paraphed ne varietur for identification with a 1979 act of mortgage (the "collateral mortgage") on community immovables--a 13 acre tract of land and the improvements on it, including the couple's personal residence--in Walker, Louisiana. The Charriers pledged the collateral mortgage note and collateral mortgage to Livingston State Bank ("LSB") to secure another promissory note (the "hand note") which represented the actual loan to the Charriers from LSB. There is no evidence in the record as to the precise amount actually owed on the hand note, but it appears that the Charriers satisfied this obligation in August of 1979.1 It also appears from the record that--as indicated by the bankruptcy court--the Charriers had executed a written Act of Pledge, although what became of that document is unknown.
4
On August 11, 1982, Mr. Charrier took out another loan with LSB, evidenced by a new hand note. At the time of this transaction, Mr. Charrier, but not his wife, signed a new Act of Pledge that pledged the original $200,000 collateral mortgage note and collateral mortgage. As additional security for the 1982 loan, Mr. Charrier pledged another collateral mortgage note and collateral mortgage, encumbering three different parcels of community immovable property. One week later, on August 18, 1982, Mrs. Charrier executed a power of attorney, making Mr. Charrier her agent and attorney-in-fact. Pursuant to this authority, Mr. Charrier could "make ... and endorse promissory notes"; "pledge ... all or any part or parts" of her property; "encumber, hypothecate or mortgage all or any part or parts of the property belonging to [Mrs. Charrier]" and "consent and agree to all privileges, mortgages and pledges in favor of, or against, [Mrs. Charrier] that may be required and necessary."
5
On September 18, 1985, and December 4, 1985, Mr. Charrier executed two more hand notes payable to LSB, one in the amount of $360,305.44 and the other in the amount of $15,000. Each note indicated that it was secured by three separate collateral pledge agreements, two of which were dated in 1984, and the other of which was dated September 18, 1985. The 1985 pledge agreement is the one that expressly repledged the 1979 collateral mortgage note and collateral mortgage.
6
LSB continuously possessed the 1979 collateral mortgage note until the bank went into receivership in 1992. At that time, the Federal Deposit Insurance Corporation ("FDIC"), as receiver for LSB, sold all three hand notes from 1982 and 1985, together with their collateral--including the 1979 collateral mortgage note and collateral mortgage--to Security National # 4, from which SNO subsequently purchased these instruments in 1994.
7
In November 1996, the Charriers sought protection under Chapter 7 of the Bankruptcy Code. On February 3, 1997, SNO filed an adversary complaint in the bankruptcy court seeking a judgment against the Charriers for the balances due on the two 1985 hand notes and recognition of the 1979 collateral mortgage as security for these notes.
8
Following a trial on the merits, the bankruptcy court denied the Charriers' discharge, entered judgment in favor of SNO on the two notes, and recognized the 1979 collateral mortgage as valid and subsisting. In its oral reasons for judgment, the bankruptcy court noted that, even though SNO could not locate the original or a copy of the 1979 collateral pledge agreement, there was sufficient evidence in the record to reflect that one had existed. And, because LSB had continuous possession of the collateral mortgage note from 1979 to 1992, reasoned the court, it could be presumed that the parties intended for the pledged collateral mortgage note and collateral mortgage to secure future advances. Consequently, the court concluded, when LSB granted a new loan to the Charriers in 1982--within five years of the original Act of Pledge--this loan was automatically secured by the 1979 collateral. Likewise, the two loans made by LSB in 1985 constituted future advances secured by the subject collateral pledges. As such, payments made on these three loans interrupted prescription on the collateral mortgage note and preserved the collateral mortgage.
9
Assuming, in the alternative, that the parties did not contemplate future advances in their original pledge, the bankruptcy court concluded that the collateral mortgage was nevertheless valid because Mr. Charrier had repledged the 1979 collateral mortgage note in 1982. The court reasoned that when Mrs. Charrier granted the power of attorney to her husband just days after the pledge, her act was sufficient to ratify his encumbrance of the community property. Finally, concluded the court, even if the 1979 collateral mortgage note had prescribed, the Charriers made a valid pledge in 1985 of a natural obligation under Louisiana Civil Code article 3139, and thereby revived the collateral mortgage.
10
The Charriers appealed to the district court, which affirmed solely on the basis that the debtors had repledged the 1979 collateral mortgage note.2 The court reasoned that Mrs. Charrier's 1982 power of attorney not only vested her husband with express authorization to grant future mortgages on their community property, but also ratified the encumbrance Mr. Charrier made without her concurrence on August 11, 1982. By repledging the 1979 collateral mortgage note and remitting payment on the 1982 hand note, concluded the court, the Charriers interrupted prescription and preserved the collateral mortgage. The Charriers timely filed a notice of appeal.
II
ANALYSIS
A. Standard of Review
11
Although this case has already been reviewed on appeal by the district court, we review the bankruptcy court's ruling as though this were a direct appeal to us.3 We thus review the bankruptcy court's findings of fact under the clearly erroneous standard, and its conclusions of law de novo.4
B. Applicable Law
12
In a typical Louisiana collateral mortgage transaction, the borrower contemporaneously executes a promissory note (known as a collateral mortgage note) and an act of mortgage (known as a collateral mortgage). In this latter instrument, the mortgagor acknowledges his indebtedness and states his intent to pledge the collateral mortgage note, which is secured by the collateral mortgage, as security for the advancement of funds. The collateral mortgage note is customly made payable on demand, to "Bearer" or "Myself" or "Any Future Holder," and is "paraphed" for identification with the mortgage.5 This collateral mortgage package is then delivered by the borrower in pledge to the lender to secure an indebtedness which is usually represented by a separate "hand note."6 A collateral mortgage note prescribes five years from the date of its execution unless prescription is interrupted by acknowledgment or by partial payment on the indebtedness it secures.7
13
The pledge of a collateral mortgage note and collateral mortgage to secure a debt is a contract.8 The pledge secures only the debt or debts contemplated in the act of pledge between the pledgor and the pledgee.9 A collateral mortgage package may be pledged to secure particular debts, either previously existing or contracted contemporaneously with the pledge, or future loans by the pledgee to the pledgor--or both--up to the limits of the pledge.10
14
As a general rule, Louisiana law does not require a written pledge agreement because the pledge of a promissory note is confected by mere delivery.11 To secure future advances, however, a creditor must prove that the parties intended for the original collateral mortgage note to be used for this purpose.12 At one time, it was generally agreed that, as long as a creditor retained possession of the pledged note, he could rely on standard future advance language contained in a collateral mortgage to establish the parties' requisite intent.13 Under this theory, full payment of a debtor's principal obligation would not extinguish the collateral mortgage note and accompanying mortgage.14 As long as the pledged collateral mortgage note had not prescribed, subsequent advances would be secured automatically.
15
Following the Louisiana Supreme Court's 1984 decision in Texas Bank of Beaumont v. Bozorg, however, this area of law has become a bit murky.15 In Bozorg, the court "emphasized" in a footnote that evidence of the parties' intent to secure future advances "must be in the contract of pledge and not in the collateral mortgage instrument."16 This is so, explained the court, because "the pledgee is generally not a party to the collateral mortgage instrument, and the instrument is frequently executed prior to a contract of pledge."17 In light of Bozorg, it is now unclear how, if at all, a creditor can prove intent in the absence of a written pledge agreement.18
16
If a creditor cannot prove intent to secure future advances, the collateral mortgage becomes dormant when a debtor's principal obligation is extinguished, even if the creditor retains physical possession of the collateral mortgage note.19 To activate the collateral mortgage, the debtor must repledge the collateral mortgage note, before it prescribes, as security for a new loan.
17
In sum, absent proof that the parties intended to secure future obligations or that the obligor on a collateral mortgage note subsequently repledged it, mere retention of the collateral mortgage note after extinguishment of the original hand note does not give a creditor a continuing security interest.20
18
The Charriers base their challenge of the bankruptcy court's holding that the 1979 collateral mortgage was valid and subsisting on the ground that their intent to secure future advances has not been proven.21 Indeed, argue the Charriers, in the absence of a written pledge agreement specifically authorizing the use of the 1979 collateral mortgage note to secure future indebtednesses, the mere physical retention of the note by LSB was insufficient to preserve the mortgage on their property. We disagree.
19
We acknowledge that, in the wake of Bozorg, it may be quite difficult to prove intent absent a written pledge agreement, but the bankruptcy court found ample evidence in the record of the existence of such a document, and so do we.22 The Charriers are correct in stating that the actual 1979 pledge document was never located. Nevertheless, a plethora of commercial loan memoranda referring to a 1979 "CPA"--or collateral pledge agreement--was introduced at trial. In addition, a former bank president and a loan officer testified regarding LSB's longstanding practice of always obtaining pledge agreements using the same standard form as those obtained by the bank from Mr. Charrier in 1982 and 1985. Both of these later agreements contain express language granting the bank a security interest in the 1979 collateral mortgage note for all existing and future indebtednesses.23 In light of this evidence, the bankruptcy court was satisfied that such a pledge agreement had also been executed in connection with the 1979 transaction. The Charriers have made no attempt to rebut this finding, and we see nothing in the record to persuade us that it was clearly erroneous.
20
We further note in passing that the act of collateral mortgage signed by Mr. and Mrs. Charrier in 1979 contains language that specifically authorized future advances.24 This, together with the Charriers' failure to retrieve the collateral mortgage note or seek its cancellation after paying off the original debt represented by the original hand note, and their repeated willingness to accept new loans based on the purported pledge of the 1979 collateral mortgage package, are clear indicators of the Charriers' intent to secure future indebtednesses with that collateral. As this intent was also evidenced in the original contract of pledge, we are convinced that the monies received by the Charriers after 1979 were secured future advances. For the foregoing reasons, the ruling of the bankruptcy court, as previously affirmed by the district court, is in all respects,
21
AFFIRMED.
1
At trial, the Charriers claimed that they made their last payment in August 1979. SNO was unable to obtain the payment records on the original loan to dispute this point
2
The district court did not address the bankruptcy court's theory that LSB's retention of the pledged note provided automatic security for future advances. Furthermore, the district court found it unnecessary to reach the bankruptcy court's alternative conclusion that the Charriers made a valid pledge of a natural obligation
3
Texas Lottery Comm'n v. Tran (In re Tran ), 151 F.3d 339, 342 (5th Cir.1998)
4
Id
5
First Guar. Bank v. Alford, 366 So. 2d 1299, 1302 (La.1978)
6
Texas Bank of Beaumont v. Bozorg, 457 So. 2d 667, 671 (La.1984)
7
La. R.S. 9:5807; Kaplan v. University Lake Corp., 381 So. 2d 385, 390-91 (La.1979). On prescription of the collateral mortgage note, the underlying collateral mortgage is lost, and the hand note remains as a purely personal obligation of the borrower. Id
8
La. Civ.Code art. 3133
9
Alford, 366 So. 2d at 1304; Durham v. First Guar. Bank of Hammond, 331 So. 2d 563, 565 (La.App.1st Cir.1976)
10
Bozorg, 457 So. 2d at 672; La. Civ.Code art. 3158 (amended 1989)
11
La. Civ.Code art. 3158 (amended 1989). This article provided in pertinent part:
When a debtor wishes to pledge promissory notes ... he shall deliver to the creditor the notes ... and such pledge so made ... shall without further formalities be valid as well against third persons as against the pledgor thereof, if made in good faith.... All pledges may be made by private writing of any kind if only the intention to pledge be shown in writing, but all pledges ... must be accompanied by actual delivery.
See Pontchartrain State Bank v. Gross, 508 So. 2d 901, 903 (La.App.5th Cir.1987); Plumbing Supply House, Inc. v. Century Nat'l Bank, 440 So. 2d 173, 175 (La.App.4th Cir.1983). The 1989 amendment did not alter the above quoted language.
12
La. Civ.Code art. 3158 (amended 1989); New Orleans Silversmiths, Inc. v. Toups, 261 So. 2d 252, 255 (La.App.4th Cir.1972); State Bank & Trust Co. of Golden Meadow v. Boat D.J. Griffin, 755 F. Supp. 1389, 1398 (E.D.La.1991)
13
See Alford, 366 So. 2d at 1302-03; Acadiana Bank v. Foreman, 352 So. 2d 674, 676-77 (La.1977). Max Nathan, Jr. & Anthony P. Dunbar, The Collateral Mortgage: Logic and Experience, 49 La. L.Rev. 39, 57 (1988)
14
Alford, 366 So. 2d at 1302
15
457 So. 2d 667 (La.1984)
16
Id. at 675 n. 10
17
Id. We note the presence on the 1979 act of mortgage of the signature of a person designated as representing "Any Future Holder or Holders" of the collateral mortgage note. It is not clear, however, from either the mortgage itself or the record, whether this signatory was a representative of LSB
18
See Nathan & Dunbar, Logic and Experience, 49 La. L.Rev. at 58
19
Alford, 366 So. 2d at 1303
20
Id
21
The Charriers also argue that, contrary to the conclusion reached by the bankruptcy court, Mr. Charrier was prohibited under Louisiana community property law from repledging the 1979 note without Mrs. Charrier's concurrence, and that Mrs. Charrier did not ratify the 1982 repledge. Because we affirm the bankruptcy court's holding on other grounds, however, we find it unnecessary to address any of the alternative theories on which the court based its ruling
22
Under La. Civ.Code. art. 1832, the existence of a written contract may be proved by testimony or presumption when the written instrument has been destroyed, lost, or stolen
23
The pledge agreements obtained by the bank in 1982 and 1985 provide in pertinent part:
As an inducement to LIVINGSTON STATE BANK & TRUST CO. (hereinafter referred to as "Bank") to extend credit to the undersigned (whether one or more) from time to time, the undersigned herein and hereby agree that:
a. All promissory notes executed by the undersigned or any one or more of them to the order of Bank, in principal, interest and attorney's fees, as therein stipulated, and all extensions and/or renewals thereof; and
b. Any and every other debt, liability and obligation, direct or indirect, absolute or contingent, liquidated or unliquidated, due or to become due, whether now existing or hereafter arising, of the undersigned, or any one or more of them, to Bank;
up to the sum, in aggregate, of ..., at any one time outstanding, are and shall be secured by the pledge of all securities and/or property listed and described....
24
Specifically, the collateral mortgage provides:
The above described note is given and this mortgage is granted for the purpose of being used as collateral security by MORTGAGOR for any indebtedness due the holder of the note, direct or contingent. The note may be issued and pledged by MORTGAGOR as his interest and convenience may require to secure loans and advances made or to be made or to secure the debt of the maker or of another. (Emphasis added). | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1612300/ | 11 So. 3d 958 (2009)
MOON
v.
STATE.
No. 3D08-244.
District Court of Appeal of Florida, Third District.
May 20, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613051/ | 32 Wis. 2d 426 (1966)
ST. REGIS APARTMENT CORPORATION, Respondent,
v.
SWEITZER and wife, Appellants.
Supreme Court of Wisconsin.
October 5, 1966.
November 1, 1966.
*429 For the appellants there was a brief and oral argument by Royal E. Cass of Milwaukee.
For the respondent there was a brief by Warshafsky & Rotter, attorneys, and Merton N. Rotter of counsel, all of Milwaukee, and oral argument by Merton N. Rotter.
WILKIE, J.
Three issues are presented on this appeal:
(1) Is a lease agreement for two years, which is automatically renewed unless either party gives notice sixty days prior to termination, a conveyance under sec. 235.50, Stats., so as to be subject to the formal requirements of sec. 235.01 (5)?
(2) Is there an issue of fact as to whether a wife is a party to a lease if she signs the lease contract, even though she is not mentioned in the body of the lease?
(3) Is the owner of an apartment building entitled to collect a fee for rerenting the premises, even if it was not a licensed real-estate broker?
Validity of Lease.
Sec. 235.01 (5), Stats., provides that:
"When such conveyances are of lands or any interest therein, owned by a corporation organized under any law of this state, they shall be signed by the president or other authorized officers of the corporation, . . . and countersigned by the secretary, assistant secretary, cashier or assistant cashier, or clerk thereof; . . ."
Defendants-appellants allege that the lease in question was a conveyance and is invalid because the lease was improperly executed. Sec. 235.01 (5), Stats., requires that a lease by a corporation must be signed and *430 countersigned. Plaintiff-respondent failed to have the lease countersigned.
Sec. 235.50, Stats., defines the term "conveyance" as follows:
"The term `conveyance' as used in this chapter, shall be construed to embrace every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged or assigned or by which the title to any real estate may be affected in law or equity, except wills and leases for a term not exceeding three years; . . ." (Emphasis added.)
The lease in question was for a term of two years with an automatic renewal clause in the absence of a termination notice by either party. Appellants argue that this lease is for a period of more than three years so that the lease is a conveyance which is voided by failure to comply with sec. 235.01 (5), Stats.
In Milwaukee Hotel Wisconsin Co. v. Aldrich[1] the original lease was for three years and the lessee had the option to extend the term for three years. The court held that this was a lease for six years and void for failure of compliance with sec. 235.01 (5), Stats. The court said:
"The rule of law is that a lease for three years and three additional years if the lessee chooses to continue it, is a lease of itself for six years. . . . `This is so because, if the tenant makes the election, he still holds under the original demise; there is no further act to be done by the lessor.'"[2]
In the instant case, however, the period of the lease does not include the period of time covered by the automatic *431 renewal clause. This is so because the automatic renewal clause provides that both the lessor and the lessee can prevent renewal of the contract by a sixty-day notice prior to the termination of the lease. In Milwaukee Hotel and Sheppard[3] the lessee had a unilateral right to bind the lessor to an additional term beyond the initial period. There is a distinction between a provision in a lease for renewal and a provision in a lease for an extension at the option of the lessee. Only the latter is treated as a demise for the full term to which it may be extended.[4] Thus, the automatic renewal provision in the lease in question is not a demise for the full term to which it may be extended and is not a conveyance subject to the formalities of sec. 235.01 (5), Stats.
Appellants also claim the lease is invalid because respondent breached the lease by an unreasonable construction. Appellants left the premises in November in clear violation of the lease, which was still effective for over a year and a half. This probably justified the action taken by respondent. Even if respondent breached the lease by unreasonably construing it, the unreasonableness of construction is not an issue which can be properly settled in a motion for summary judgment. Affidavits containing ultimate facts are ineffectual in considering a motion for summary judgment and affidavits dealing with factual matters must be clear and conclusive to be a basis for granting summary judgment.[5] Both of these standards bar a consideration of the reasonableness of contract construction on a motion for summary judgment.
*432 Is Ursula Sweitzer a Party?
Appellants urge that summary judgment should have been granted as to Ursula Sweitzer because she was not a party to the lease. Although Mrs. Sweitzer was not named as lessee in the body of the lease, she signed the lease directly under her husband's name in a space designated "lessee."
"The general rule ... is that when the body of the contract purports to set out the names of the parties thereto and a person not named in the body of the contract signs the contract, and there is nothing in the contract to indicate that such person signed as a party, such person is not bound by the contract and hence not liable thereunder."[6]
A. L. R. cites Nutrena Mills v. Earle[7] to support this proposition and appellants urge that this authority controls the question of whether Ursula Sweitzer was a party.
We think not. Nutrena Mills holds:
". . . when the body of a contract purports to set out the names of the parties to the contract, and a person not named therein signs the contract, and there is nothing to indicate that such person signed as a party, such person is not bound."[8]
Thus Nutrena Mills does not hold that, under all circumstances, a person who signs a contract although not named in the body of the contract, is not a party to the contract. Nutrena Mills involved a financing agreement between a turkey-farm grower and Nutrena. The grower's *433 mother signed the contract beneath the grower's name so that the signatures looked like this:
"Witnesses
/s/ Dean S. Knight Grower: /s/ Roger C. Earle
(mother) /s/ Althea Taylor Earle
/s/ Helen Haas Nutrena Mills, Inc.
By /s/ Ed. L. Kienholz"
The grower (Earle) defaulted and Nutrena brought suit against the mother as a party to the contract. The trial judge sustained a demurrer by the mother, holding she mistakenly placed her name beneath that of the grower's and was not a party to the contract.
The supreme court affirmed, stating that the trial court's construction was the only one which would give effect to all parts of the contract without reaching an inconsistency. Pointing out that there was nothing in the contract to indicate that the mother intended to sign as a grower, the court refused to permit such an inference from the position of her signature alone.
The trial court correctly determined that Nutrena Mills was not applicable to the case at bar. In Nutrena the signer preceded her name by the word "mother" rather than the word "grower," which would have indicated she was a party to the contract. In the instant case, Mrs. Sweitzer signed the contract directly under her husband's name in a space designated "lessee." This at least creates an ambiguity about whether she or the lessor felt she was a party to the contract. Moreover, Mrs. Sweitzer benefited under the contract and occupied a relationship to the other signer which would indicate she was a party. These factors tend to establish, under a reasonable construction of the contract, that the contract itself indicated that Mrs. Sweitzer intended to be a party. The trial court was correct in overruling defendants' demurrer and in denying summary judgment to Ursula Sweitzer on this ground.
*434 In Nutrena the court also refused to permit parol evidence to resolve the controversy. Justice CURRIE, in a well-reasoned dissent, argued that the signature of the mother created a patent ambiguity in the contract so that parol evidence should be admissible to resolve this ambiguity. We believe this to be a better statement of the law and overrule Nutrena to this extent. This is additional reason for supporting the trial court's denial of summary judgment sought by the defendants.
Owner's Right to Rental Fee.
The appellants urge that St. Regis Corporation is not entitled to collect fees for expenses incurred in rerenting the premises because the corporation is not a licensed real-estate broker. Sec. 136.01 (2) (a), Stats., defines a real-estate broker as one who rents an interest or estate in real estate for another. Appellants argue that respondent was rerenting on behalf of appellants. Respondent owns this property and is renting the premises for its own benefit. Moreover, the respondent lessor is under a duty to rerent in an attempt to minimize damages.[9] Respondent is allowed to charge the collection fee specified in the contract, $180, on rerenting its own property to minimize damages which would accrue against the appellants. It is not barred because it did not have a real-estate broker's license.
By the Court.Order affirmed.
NOTES
[1] (1953), 265 Wis. 402, 62 N. W. (2d) 14.
[2] Milwaukee Hotel Wisconsin Co. v. Aldrich, supra, footnote 1, at page 406, quoting from Sheppard v. Rosenkrans (1901), 109 Wis. 58, 63, 85 N.W. 199.
[3] Sheppard v. Rosenkrans, supra, footnote 2.
[4] 32 Am. Jur., Landlord and Tenant, p. 805, sec. 956.
[5] Leszczynski v. Surges (1966), 30 Wis. (2d) 534, 141 N. W. (2d) 261.
[6] Anno. 94 A. L. R. (2d) 686, 696. The cases appear to be equally divided between those supporting the general rule and those that hold that the signer of a contract who is not named in the contract may still be liable.
[7] (1961), 14 Wis. (2d) 462, 111 N. W. (2d) 491, 94 A. L. R. (2d) 686.
[8] Supra, footnote 7, at page 466.
[9] See lease clause: "That if the Lessee shall abandon or vacate said premises before the expiration of said term, the Lessor shall be at liberty, at his option, to re-let the same and apply the money derived from such re-letting to the rent due or to become due on this lease and the Lessee shall remain liable for any deficiency and agrees to pay the same." See also Selts Investment Co. v. Promoters of the Federated Nations of the World (1929), 197 Wis. 476, 220 N.W. 222, 222 N.W. 812. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613053/ | 145 N.W.2d 25 (1966)
DURANT ELEVATOR CO., Inc., and Gilbert D. Jacobs, Appellants,
v.
S. J. HOFFMAN & SONS, a partnership, S. J. Hoffman, Kenneth S. Hoffman and Glenn W. Yoergler, Appellees.
No. 52119.
Supreme Court of Iowa.
September 20, 1966.
*26 William L. Meardon, Ansel Chapman, and Robert N. Downer, Iowa City, for appellants.
A. Wayne Eckhardt, Muscatine, Betty, Neuman, Heninger & McMahon, Richard M. McMahon, and Thomas F. Daley, Jr., Davenport, for appellees.
STUART, Justice.
Plaintiffs brought this action to recover damages for breach of warranty and negligent construction of 4 silos and for corn spoilage resulting therefrom. The law action was tried to the court who found for defendants. Plaintiffs have appealed alleging errors hereinafter discussed.
On March 27, 1959 plaintiff corporation, through its manager, Mr. Jacobs, the other plaintiff, contracted with defendants for the construction of 4 cement stave silos 24 feet in diameter and 70 feet high to store both wet and dry corn. After their completion in August 1959, plaintiff corporation began filling them with dry corn under the Commodity Credit program. In June 1960, a government inspector found the corn in 3 silos "out of condition" and ordered 2500 bushels shipped out of each. At a subsequent inspection in January 1961, the corn in the silos was found to be in such bad condition the entire contents was ordered shipped out. Plaintiff corporation claimed the spoilage was due to outside moisture penetrating the walls and top of the silo. Defendants claimed the loss was due to poor warehouse techniques on the part of the corporation's employees. The trial court found defendants were not liable in negligence or breach of warranty and that the loss was due to poor warehousing. In any event, "the evidence as to damage to the corn shown by this record is so confusing and conflicting that it is impossible for the court to make even a reasonable estimate as to the amount of damages".
I. At the time of the construction of the silos and the alleged damages, Mr. Jacobs owned 50% of the corporation stock. In July 1961, he sold his stock to the other owners. At this time he purchased the silos in question from the corporation for the full contract price paid defendants. The corporation is not claiming damages to the silos, but only loss for the grain stored therein. At the start of the trial, defendants moved that Jacobs be removed as a party for the reason that the cause of action arose while the silos were owned by the corporation and that a subsequent purchase did not give him a cause of action without an assignment of the chose in action, which was not alleged.
Jacobs then asked leave to amend to allege an oral assignment. Objection was made that an oral assignment was not permissible under the statute of frauds. The trial court indicated this was the law but reserved ruling until they "were able or unable" to produce evidence of a written assignment. Authority was presented that held an oral assignment was permissible. Seymour v. Aultman, 109 Iowa 297, 298-299, 80 N.W. 401, 402; Estes v. Chicago, B. & Q. Railway, 159 Iowa 666, 669, 141 N.W. 49, 50. At the close of plaintiffs' evidence, the trial court ruled the amendment was not timely and refused to permit it. This ruling is alleged to be error.
The trial court has broad discretion in permitting or denying an amendment to the pleadings under R.C.P. 88. Unless there is an abuse of discretion, we will not interfere, although we encourage the trial courts to permit the amendments. *27 Robinson v. Home Fire & Marine Ins. Co., 244 Iowa 1084, 1089-1090, 59 N.W.2d 776, 779, 780; Russell v. Chicago, Rock Island & Pacific Rr. Co., 251 Iowa 839, 844, 102 N.W.2d 881, 885; Mundy v. Olds, 254 Iowa 1095, 1101, 120 N.W.2d 469, 473.
Plaintiff Jacobs recognizes this rule but claims the discretion was abused in the instant case. The petition was filed June 19, 1962. Present counsel entered the case May 29, 1964. Trial commenced August 6, 1964. Jacobs had severed his relationship with the corporation about 1 year prior to the filing of the lawsuit and the lawsuit had been pending over 2 years prior to trial. The court was within its discretion in refusing to permit the amendment.
In any event there was no prejudice resulting in view of trial court's findings that the plaintiffs had failed to prove either negligence or breach of warranty as alleged. This finding is binding on us if there is substantial evidence to support it in the record. Authorities need not be cited. R.C.P. 344(f)1. Plaintiffs do not claim there is no support for such finding.
II. Plaintiffs claim the trial court erred in excluding certain testimony of expert witnesses.
Merrill Garden was not permitted to testify as to the weathertightness of the structures. He was, however, permitted to express an opinion based upon his personal inspection and certain assumptions "as to the suitability of these silos for the storage of corn". He responded: "Would be my opinion that the corn would spoil in this structure, in these structures.
"Q. Mr. Garden, in specific response to the question, would the structure be suitable for the storage of corn, under the assumptions that I gave you? A. No."
We are unable to see how any prejudice resulted to plaintiffs from the court's ruling on the question of weathertightness. Weathertightness was important only in determining whether these structures were suitable for the storage of corn. The expert was permitted to answer this question. Assuming it was error not to permit the expert to express his opinion on weathertightness, it would not be reversible error because witness was permitted to answer other questions establishing the same fact. Jaeger v. Hackert, 241 Iowa 379, 392, 41 N.W.2d 42, 50.
Mr. Wagner of Stanley Engineering Co. of Muscatine was permitted to testify the silos would not be weathertight, but was not permitted to testify as to the cause of the cracks which he observed. Any error here was not preserved with an offer of proof and is not grounds for reversal. Grosjean v. Spencer, Iowa, 140 N.W.2d 139, 145.
Mr. Nesterenko also of Stanley Engineering Co. was first not permitted to testify as to weathertightness, but later on testified: "There were cracks through the whole structure and in my opinion, these structures were not weathertight on the date of my examination." Jaeger v. Hackert, supra.
He was not permitted to testify as to the cost of repairing the silos to make them weathertight. There is serious question whether he qualified himself as an expert in cost analysis since references were to Stanley Engineering Company rather than himself. In any event, there would be no reversible error as this matter went to the question of damages and the trial court found against plaintiff on the question of liability. The exclusion of evidence which if received, could not have changed the result, is not prejudicial error. Rutten v. Investors Life Ins. Co., Iowa, 140 N.W.2d 101.
Plaintiff urges their experts were restricted to the conditions existing at the time of their examination. This may be accepted as true for the purposes of this discussion. There was evidence the silos, with certain exceptions, were the same as in 1961 when the corn was stored. This would permit the trier of fact to infer *28 if they were not weathertight now they were not weathertight in 1961. The trial court did not decide the case on plaintiff's failure to prove the present condition of the silos did not represent their condition in 1961. In fact, the trial court in his opinion stated these three witnesses testified the silos were not weathertight and that Garden testified they were not suitable for storing corn but found as a matter of fact under all the evidence that plaintiff had failed to prove by a preponderance of the evidence that the silos were of defective construction. There was expert testimony for defendant which contradicted these witnesses. His finding is amply supported by the evidence as is his second finding that plaintiff failed to prove such defects, if they existed, were the proximate cause of the corn spoilage.
III. Plaintiff argues the court erred in refusing to permit plaintiff to introduce into evidence a sample of spoiled corn taken from the silos. Without reaching the merits of the alleged error, we determine error, if any, to have been without prejudice. It is conceded the evidence was cumulative. Defendants did not contend there was no spoilage. Undisputed testimony proved the spoilage. The court found much of the corn had spoiled. The exclusion of evidence tending to show a certain fact is not reversible error when the fact in question is fully established by other admitted evidence. Rodskier v. Northwestern Mutual Life Ins. Co., 216 Iowa 121, 125-126, 248 N.W. 295, 298.
IV. Plaintiffs also urge the court erred in rendering judgment for defendants on their counterclaim. Their position is based on the alleged errors previously discussed. Since we have held there were no reversible errors, there was no error in deciding the counterclaim.
For the reasons stated above, we affirm.
Affirmed.
All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/382248/ | 630 F.2d 1370
6 Bankr.Ct.Dec. 1061
In re John Harry TRIGG and Pauline Van Hook Trigg, Debtors,John Harry TRIGG and Pauline Van Hook Trigg, Debtors inPossession, Sidney C. Skaar and Don C. Bell, II,Co-Trustees, Plaintiffs-Appellants,v.The UNITED STATES of America, DEPARTMENT OF the INTERIOR,BUREAU OF LAND MANAGEMENT by and Through Cecil D. ANDRUS,its Secretary of the Interior, State of Wyoming, by andthrough Albert E. King, its Commissioner of Public Lands,and State of New Mexico, by and through Phil R. Lucero, itsCommissioner of Public Lands, Defendants-Appellees.
No. 79-1862.
United States Court of Appeals,Tenth Circuit.
Argued June 20, 1980.Decided Sept. 15, 1980.
Stuart D. Shanor, Roswell, N. M. (K. Douglas Perrin, Roswell, N. M., with him on brief) of Hinkle, Cox, Eaton, Coffield & Hensley, Roswell, N. M., for plaintiffs-appellants.
Mary B. Guthrie, Asst. Atty. Gen., Cheyenne, Wyo. and Thomas H. Pacheco, Atty., Dept. of Justice, Washington, D. C. (James W. Moorman, Asst. Atty. Gen., Washington, D. C., R. E. Thompson, U. S. Atty., James B. Grant, Asst. U. S. Atty., Albuquerque, N. M., Dirk D. Snel, Atty., Dept. of Justice, Washington, D. C., John D. Throughton, Atty. Gen., Cheyenne, Wyo., with them on brief), for defendants-appellees.
Before SETH, Chief Judge, and BREITENSTEIN and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
1
John Harry Trigg and Pauline Van Hook Trigg are debtors-in-possession in a Chapter XI proceeding under the Bankruptcy Act of 1898, formerly codified at 11 U.S.C. §§ 701 et seq.1 At issue on appeal are their rights to certain oil and gas leases issued to them by the United States Bureau of Land Management and the state of Wyoming. The district court, affirming the bankruptcy judge's decision, held that the leases automatically terminated when the debtors failed to tender timely rental payments. The court found nothing in the Bankruptcy Act to preclude this result.
2
On appeal, the debtors contest termination of the leases, contending that with the filing of the Chapter XI petition the automatic stay provision of Bankruptcy Rule 11-44, 11 U.S.C. App. Rule 11-44, precluded termination of their leasehold interests or that, in any event, the bankruptcy court should have fashioned equitable relief compelling continuation of the leases. We disagree and affirm the district court.
3
For many years the debtors have been engaged in the development and operation of oil and gas properties. From 1969 to 1975, they acquired approximately 146 oil and gas leases covering 102,000 acres of nonproducing properties in Colorado, Montana, New Mexico, Oklahoma, Utah, and Wyoming. Under both the federal and state leases at issue, the lessees were granted the exclusive right to drill for oil and gas on the leased acreage. In lieu of pursuing production, the lessees could retain the leases by paying an advance annual delay rental of 50 cents per acre. The lessees were not obligated to drill or pay. But each lease expressly provided that, absent production, failure to pay the advance annual rental on or before the anniversary date would automatically terminate the lease.
4
It is undisputed that there were no wells on the leased lands capable of producing oil and gas in paying quantities. Therefore, annual delay rentals were due and payable on the anniversary dates of the leases to keep them in force. From the inception of these leases until 1977, the debtors paid the delay rentals. In early 1977, the debtors experienced severe financial difficulties and, in an effort to achieve rehabilitation, filed a Chapter XI petition on April 20.
5
The groups of leases at issue had respective anniversary dates of June 1, July 1, August 1, and September 1. Instead of tendering the delay rentals necessary to keep the June leases in effect, the debtors filed an adversary proceeding in the bankruptcy court on June 21, 1977 seeking (1) an injunction to prevent termination of the leases and (2) a contempt order against the lessors for violating the automatic stay provisions of Rule 11-44(a). Three additional complaints were filed on or about the twentieth day after the anniversary dates of the July, August and September leases.
6
Because each lease had lapsed by its own terms before the debtors filed the four respective actions, the bankruptcy court concluded that "(i)t is one thing to prevent expiration and quite another to attempt to breath life back into something which has already died." Rec., vol. I, at 119. The district court agreed, and debtors appeal its order dismissing the four actions.
I.
The Automatic Stay Rule Is Inapplicable
7
Relying on Bankruptcy Rule 11-44(a), the debtors contend that the filing of their Chapter XI proceeding automatically stayed termination of the oil and gas leases. The purpose of Rule 11-44(a) is to protect and preserve property of the debtor. Nevertheless, its scope is not sufficiently broad to prevent termination of the leases here.
8
Bankruptcy courts are courts of limited jurisdiction, and "their power to act must be found expressly in the Bankruptcy Act." Riffe Petroleum Co. v. Cibro Sales Corp., 601 F.2d 1385, 1390 (10th Cir. 1979). Rule 11-44(a) provides:
9
"Stay of Actions and Lien Enforcement. A petition filed under Rule 11-6 or 11-7 shall operate as a stay of the commencement or the continuation of any court or other proceeding against the debtor, or the enforcement of any judgment against him, or of any act or the commencement or continuation of any court proceeding to enforce any lien against his property, or of any court proceeding, except a case pending under Chapter 10 of this title, for the purpose of the rehabilitation of the debtor or the liquidation of his estate."
10
The Supreme Court prescribed Rule 11-44 pursuant to 28 U.S.C. § 2075, which permits the promulgation of procedural rules for practice under the Bankruptcy Act. The enabling statute provides that the Bankruptcy Rules "shall not abridge, enlarge, or modify any substantive right." Id.
11
To determine the scope of Rule 11-44, we must construe the underlying substantive provisions of Chapter XI. The Advisory Committee's Note accompanying Rule 11-44 states that the rule "supplements and reinforces the policy of §§ 11a, 311 and 314 of the Act (sections 29(a), 711 and 714 of title 11)." Bankruptcy Rule 11-44, Advisory Committee's Note. These statutory provisions, inter alia, stay actions founded on dischargeable claims, authorize the stay of any other actions against the debtor, and authorize the stay of any act or proceeding to enforce any lien against the debtor's property. Id. See generally 14 Collier, Bankruptcy P 11-44.02 (14th ed. 1976). As was articulated in Fidelity Mortgage Investors v. Camelia Builder's, Inc., 550 F.2d 47, 51 (2d Cir. 1976), cert. denied, 429 U.S. 1093, 97 S. Ct. 1107, 51 L. Ed. 2d 540 (1977): "It is difficult to conceive of a rule with a more apparent and certain meaning: after the Chapter XI petition has been filed, a debtor cannot be sued."
12
The only portion of Rule 11-44(a) even arguably applicable to this action is the command that the Chapter XI "petition . . . shall operate as a stay of the commencement or the continuation of any . . . other proceeding against the debtor . . . ."2 Here, the debtors' failure to tender the annual rental caused the leases to lapse automatically by their own terms. See Phillips Petroleum Co. v. Curtis, 182 F.2d 122 (10th Cir. 1950). No "proceeding" was involved within the meaning of Rule 11-44(a). Cf., Good Hope Refineries, Inc. v. Benavides, 602 F.2d 998, 1002 (1st Cir.) cert. denied, 444 U.S. 992, 100 S. Ct. 523, 62 L. Ed. 2d 421 (1979) (automatic termination of an oil and gas lease for nonpayment of delay rental does not constitute a "proceeding" within the meaning of Bankruptcy Act § 11(e), 11 U.S.C. § 29(e)).
13
Applying Rule 11-44(a) to stay the automatic termination of a lease caused by the default of the debtors would enlarge the substantive rights provided in Bankruptcy Act §§ 11(a), 311, 314, 11 U.S.C. §§ 29(a), 711, 714. The bankruptcy judge and the district court correctly held Rule 11-44(a) inapplicable to this case.
II.
Post-Termination Relief Is Not Authorized
14
The debtors also contend that the bankruptcy court should have prevented termination or reinstated the leases. We disagree.
15
As a court of equity, a bankruptcy court may issue an injunction to prevent impairment of its jurisdiction or to enforce the provisions of the Act. Continental Illinois National Bank & Trust Co. v. Chicago, Rock Island & Pacific Ry., 294 U.S. 648, 675, 55 S. Ct. 595, 605, 79 L. Ed. 1110 (1935). See generally 8 Collier, Bankruptcy P 3.23 (14th ed. 1978). This inherent equitable power permits a bankruptcy court, in proper circumstances, to restrain cancellation of a contract in order to preserve the continuation of the debtor's business. See, e. g., Queens Boulevard Wine & Liquor Corp. v. Blum, 503 F.2d 202 (2d Cir. 1974); In re Traders Compress Co., 381 F. Supp. 789 (W.D.Okla.1973); In re Merrit Lumber Co., 336 F. Supp. 325 (E.D.Pa.1971).
16
In the present case, however, the debtors did not seek an injunction to prevent the termination of their leases until after the leases had lapsed by their own terms. Only then did the debtors file the four respective complaints against the lessors alleging the past due date of the rental payments, the amounts owing, the existence of the automatic termination provisions, and that "the debtors-in-possession . . . have not rejected any of these leases as executory contracts and do hereby affirmatively assume said leases." Rec., vol. I, at 31, 60, 79, 102.
17
A contract that provides for termination on the default of one party may terminate under ordinary principles of contract law even if the defaulting party has filed a petition under the Bankruptcy Act. See generally 8 Collier, supra, at P 3.15(4). This principle was recognized in Good Hope Refineries, Inc. v. Benavides, 602 F.2d at 1003:
18
"If the debtor has committed, or the trustee commits, an incurable breach, the trustee has no continuing rights under the contract. Cf. Matter of Gulfco Investment Corp., 520 F.2d 741 (10th Cir. 1975) . . . . It would be anomalous indeed if section 11(e), a provision dealing mainly with suits and claims by the trustee, could be used to alter contractual rights substantially where time is of the essence and the debtor or the trustee has defaulted. It would be even more anomalous if, in the case of an option contract, section 11(e) (which gives the trustee or debtor-in-possession 60 days to perfect certain rights of the debtor) allowed the trustee to procure a right that never existed and for which no consideration has ever been paid, i. e., the right to exercise an option long after its termination date."
19
There the debtor tendered a check on October 30, 1975 for the delay rental due November 8th on its oil and gas lease. The next day it filed a Chapter XI petition. The debtor's bank immediately set off its claims against the debtor's deposits so that the check was dishonored when it was presented for collection. On November 18th, the lessor refused as untimely a cashier's check tendered to pay the delay rentals. The bankruptcy court held that nothing in the Bankruptcy Act permitted the debtor-in-possession to cure the default. The First Circuit agreed and rejected the debtor's ultimate argument that the bankruptcy court possesses equitable jurisdiction to remedy this type of situation. Leases such as these do not work a forfeiture and hence the lessee is not entitled to equitable relief. Id.
20
In Schokbeton Industries, Inc. v. Schokbeton Products Corp., 466 F.2d 171 (5th Cir. 1972), a licensing agreement was terminated by the licensor upon 60 days' default in payment of royalties, even though the licensee had filed a Chapter XI petition during the 60-day grace period provided in the contract for curing the default. The bankruptcy court granted injunctive relief on the ground that the filing of the arrangement petition postponed the debtor's obligation to cure the default. The district court reversed, dissolving the injunction. The Fifth Circuit affirmed, stating:
21
"(A)bsent a concession of the referee's power to rewrite the contract between the parties, the grounds for termination here were as irreversible as those in each of the other cases. . . . The royalties remained unpaid. Debtor's rights under the licensing agreement evaporated upon receipt of the written notice of termination, and neither the mere filing of the arrangement petition nor the referee's order purporting to 'extend' the grace period for cure of the default nor a mystical combination of both could effect their recondensation.
22
". . . .
23
".... The filing of an arrangement petition under Chapter XI does not divest the debtor in possession of its contractual rights, but it likewise does not provide a blanket exemption from contractual obligations. Debtor's failure to satisfy those obligations justified Products' termination of the agreement."
24
Id. at 176-77.
25
In the present case, the debtors failed to satisfy their contractual obligation to make the delay rental payments on their oil and gas leases. The leases lapsed by their own terms. The bankruptcy court was powerless to rewrite those terms for the parties.
26
Nevertheless, the debtors could have reinstated the federal leases under the Mineral Leasing Act of 1920, 30 U.S.C. § 188(c), which the federal leases incorporate by reference. That act permits reinstatement under certain specified circumstances, provided the unpaid rental is paid or tendered within twenty days of the due date and a petition for reinstatement is filed with the Secretary of the Interior.3 Here the debtors filed their complaints in the bankruptcy court within twenty days after the respective leases had terminated, but they neither tendered the amount of unpaid lease rental payments nor petitioned the Secretary for reinstatement.
27
Like a trustee in bankruptcy, a debtor-in-possession under Chapter XI "cannot accept the benefits of an executory contract without accepting the burdens as well." Schokbeton Industries, Inc. v. Schokbeton Products Corp., 466 F.2d at 175. The debtors here could not obtain reinstatement of the terminated leases without making the lease payments.
28
"It is conceivable that a system of bankruptcy law might compel the nonbankrupt party to a contract, the performance of which is incomplete as to both contracting parties, to continue performing while for the counterpart refer him to a mere dividend out of the estate. Needless to say, such a solution is neither wise from the viewpoint of commercial credit, nor fair from the viewpoint of equity. It neglects one of the basic principles of equity, mutuality of obligation and performance. What § 70(b) (affirmance of executory contracts) actually proposes to do is precisely to secure this continued mutuality wherever it is felt to be of greater benefit to the estate to proceed in accordance with the bankrupt debtor's plans rather than to freeze his commercial relations as of the filing date. The price for securing the potential margin of benefit to the estate is high. It is nothing short of complete mutuality, that is, assumption by the estate of the bankrupt's liabilities, not as a matter of granting a distributive share, but by performance in full, just as if bankruptcy had not intervened."
29
4A Collier, Bankruptcy P 70.43(2), pp. 523-24 (14th ed. 1978) (emphasis added). We recognized this principle of mutuality in P. M. G. Corp. v. Hogan, 520 F.2d 741, 744 (10th Cir. 1975), where we said, "if the trustee decides to adopt the contract, it will have to make the payments that it has missed with interest." Accord, In re D. H. Overmyer Co., 510 F.2d 320 (2d Cir. 1975) (refusing to apply Queens Boulevard, 503 F.2d 202, because lessee was behind in rent payments).
30
Since the debtors failed to tender the delay rentals and to properly petition for reinstatement of the federal leases, the terminated leases could not be reinstated. The general equitable powers of the bankruptcy court cannot create for the debtors a right to property they have lost through an incurable default.
31
Affirmed.
1
The Bankruptcy Act of 1898 was repealed by the Bankruptcy Reform Act of 1978, Pub.L.No. 95-598, sec. 401, 92 Stat. 2682, generally effective October 1, 1979. Id. sec. 402. The original petition was filed in this Chapter XI action on April 20, 1977, and judgment was rendered in these adversary proceedings on January 11, 1979. Therefore, this case is governed by the old Act. See id. sec. 403, 92 Stat. 2683
2
According to the Advisory Committee's Note, the reference in Rule 11-44(a) to "other proceeding" was for the purpose of including a pending arbitration proceeding within the scope of the automatic stay. Bankruptcy Rule 11-44, Advisory Committee's Note; See also 14 Collier, supra, at P 11-44.02(3)
3
The Wyoming leases, also expressly providing for automatic termination upon nonpayment of annual delay rental, contained no provision for reinstatement | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1553855/ | 26 So.3d 688 (2010)
Jose A. CALDERON, II, Appellant,
v.
Catherine Ann CALDERON, Appellee.
No. 5D08-4062.
District Court of Appeal of Florida, Fifth District.
January 29, 2010.
Leonard Aronoff, Orlando, for Appellant.
No Appearance for Appellee.
GRIFFIN, J.
Appellant, Jose Calderon, II ["Husband"], appeals the final judgment of dissolution of marriage and an order denying exceptions to report and recommendation of general magistrate. Husband contends that the lower court erred when it determined that his exceptions to the report and recommendations of the general magistrate were untimely.[1] Because Husband's exceptions were timely, we reverse.
*689 Husband and Appellee, Catherine Calderon ["Wife"],[2] were married in 1994, and separated sometime in 2000. They had three minor children at the time of the divorce. Husband filed for divorce on June 29, 2007, the day before he left the State of Florida. He provided the lower court with his parents' Florida address where he continued to receive mail. Wife filed her answer to his petition and a counter-petition for dissolution. Husband answered the counter-petition.
Sometime after Husband failed to appear for a court-ordered mediation, Wife filed a notice for non-jury trial of all issues concerning the dissolution of the parties' marriage. The matter was set for hearing before a general magistrate. At the conclusion of the hearing, the general magistrate made his report and recommendations. The report of the general magistrate is dated October 2, 2008. Husband mailed his exceptions to the report, by certified mail, on October 16, 2008. The clerk's stamp on the front of Husband's exceptions shows that it was received in the clerk's office on October 20, 2008.
Without addressing Husband's exceptions, on October 21, 2008, the trial court entered a final judgment of dissolution of marriage, adopting the recommendations of the general magistrate. By separate order, the trial court struck Husband's exceptions as untimely filed.
Florida Family Law Rule of Procedure 12.090 provides that time is computed pursuant to Florida Rule of Civil Procedure 1.090. Rule 1.090 provides that the day of the act from which the time begins to run shall not be included in computing any period of time prescribed, and five days are added to the prescribed period for service by mail. See Fla. R. Civ. P. 1.090(a)(e). Under rule 12.490(f), exceptions to a general magistrate's report must be served within ten days after service of the report. This Court has held that service by mail is considered complete upon mailing, and the certificate of service is prima facie proof of the service. See Williams v. Express Leasing, Inc., 575 So.2d 768, 769 (Fla. 5th DCA 1991); see also Fla. R. Civ. P. 1.080(f). Recently, addressing the same issue, the Second District, in Riley v. Riley, 14 So.3d 1284 (Fla. 2d DCA 2009) determined objections were timely filed when mailing days were taken into account:
A trial court must hear timely filed exceptions to a magistrate's report. See Fla. Fam. L.R.P. 12.490(f); Betz v. Betz, 790 So.2d 1128, 1130 (Fla. 2d DCA 2001). Rule 12.490(f) provides, "The parties may serve exceptions to the report within 10 days from the time it is served on them." Pursuant to rule 12.090 and Florida Rule of Civil Procedure 1.090(e), the Husband had an additional five days to serve his exceptions because the magistrate's report was served on him by mail. See Werntz v. Floyd, 814 So.2d 480, 481 (Fla. 4th DCA 2002); Palmer v. Palmer, 582 So.2d 639, 640 n. 1 (Fla. 3d DCA 1991).
Id. at 1289.
Because the general magistrate entered and served his report on Thursday, October 2, 2008, and Husband mailed (served) his exceptions via express mail to the clerk of the court on October 16, 2008, his exceptions were not untimely.[3] Reversal is required *690 so that the lower court can consider the merits of Husband's exceptions.
REVERSED and REMANDED.
PALMER and JACOBUS, JJ., concur.
NOTES
[1] Husband additionally contends that he was deprived of his right to consent or to decline the referral to the general magistrate because he did not receive notice of the hearing as required by the family law rules.
[2] Appellee has not appeared in this appeal.
[3] The certificate of service on the exceptions was not dated by Husband. However, Husband had the document notarized. The notary dated the document October 16, 2008. Additionally, Husband served the document on the clerk by express mail, return receipt requested. The post office acknowledged on the tracking slip that they received the letter on October 16, 2008. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2282508/ | 113 Cal.Rptr.2d 255 (2002)
93 Cal.App.4th 572
The OAKLAND RAIDERS, Plaintiff and Appellant,
v.
NATIONAL FOOTBALL LEAGUE, et al., Defendants and Respondents.
No. H020651.
Court of Appeal, Sixth District.
October 31, 2001.
As Modified on Denial of Rehearing November 15, 2001.
Review Denied January 29, 2002.
*258 Attorneys for Plaintiff-Appellant: Jeffrey Birren, Alameda, Alioto Law Firm, Joseph M. Alioto, Berkeley, Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Alison Beth Shames, Jerome B. Falk, Jr., Kenneth G. Hausman, Annette L. Hurst, Simon J. Frankel, San Francisco.
Attorney for Defendant-Respondent: McCutchen, Doyle, Brown & Enersen, Dale E. Barnes, James L. Hunt, Michael T. Pyle and John W. Calkins, San Francisco, Ruby & Schofield, Allen J. Ruby, San Jose, Lewis, D'Amato, Brisbois & Bisgaard, Duane C. Musfelt, San Francisco.
PREMO, Acting P.J.
The Oakland Raiders (hereafter, Raiders) football club has sued the National Football League (hereafter, NFL), 16 NFL clubs, and many other NFL-related persons and entities, generally alleging that NFL leadership has been marked by abuse of power, neglect of duties, mismanagement, discriminatory rule enforcement, inappropriate favoritism, and back room deal-making which has resulted in damage to the Raiders.[1] The fourth amended and supplemental complaint alleges twenty-two causes of action. Defendants made several successful motions for summary adjudication. Because the orders disposed of all causes of action against the club defendants *259 Austrian, and all but two of the entity defendants,[2] the trial court entered judgment as to those defendants. The Raiders appeals, and we affirm the judgment.
APPEALABILITY
Preliminarily, the Raiders urges that this appeal should be dismissed because the trial court had no authority to enter a piecemeal judgment. It acknowledges that Code of Civil Procedure section 579 gives a trial court discretion to render judgment against one defendant and allow the action to proceed against other defendants whenever a several judgment is proper.[3] But it argues that the statute authorizes such a judgment only against a defendant not, as here, in favor of a defendant. It adds that a several judgment is not proper when all defendants are indispensable parties. We disagree.
Despite the language of Code of Civil Procedure section 579 (judgment may be entered "against" one or more defendants), the section has been consistently construed as authorizing entry of judgment "in favor" of one or more defendants. In Justus v. Atchison (1977) 19 Cal.3d 564, 568, 139 Cal.Rptr. 97, 565 P.2d 122, the court ruled that judgments of dismissal on orders sustaining demurrers to certain causes of action were properly entered in favor of the defendants, when "[t]he judgments ... disposed ... of all the causes of action in which the husbands are plaintiffs." That the plaintiff wives remained in the case is a "circumstance [which] does not affect the reason for the exception [to the one final judgment rule], i.e., that it better serves the interests of justice to afford prompt appellate review to a party whose rights or liabilities have been definitively adjudicated than to require him to await the final outcome of trial proceedings which are of no further concern to him." (Ibid) Similarly, in Estate of Gonzalez (1990) 219 Cal. App.3d 1598, 1601-1602, 269 Cal.Rptr. 68, we stated that, "It is well settled that where, as here, there is a judgment resolving all issues between a plaintiff and one defendant, then either party may appeal from an adverse judgment, even though the action remains pending between the plaintiff and other defendants." (Original italics.)
Moreover, Code of Civil Procedure section 579 is preceded by section 578, which states, "Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves." This section has been construed to mean that "judgment may be given for or against one or more of several defendants." (Martin v. Cinelli (1960) 183 Cal.App.2d 509, 512, 7 Cal.Rptr. 62.) Thus, there is ample authority for the proposition that the trial court, in its discretion, may enter judgment in favor of one or more defendants when all issues between those defendants and the plaintiff have been adjudicated, even though the *260 action remains pending against those defendants who have not obtained adjudication of all issues.
Here, the parties agree that all issues between the Raiders and defendants have been resolved by way of summary adjudication orders. Therefore, the trial court had the discretion to render judgment in defendants' favor, pursuant to the exception to the one final judgment rule that is codified at Code of Civil Procedure sections 578 and 579.
We also reject the point that entry of judgment in favor of defendants was improper because they are indispensable parties whose interests are identical to those of the remaining defendants. (Tinsley v. Palo Alto Unified School Dist. (1979) 91 Cal.App.3d 871, 881, 154 Cal. Rptr. 591(Tinsley).)
In Tinsley, the respondents asserted that the one final judgment rule must be applied to defeat the appeal because the interests of the respondents and a remaining defendant were identical. According to the respondents, the judgment could not be a complete determination of the matter. The court acknowledged one United States Supreme Court authority that had ruled that such a decree was nonappealable. (See Hohorst v. Hamburg-American Packet Co. (1893) 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443.) But it observed that the Supreme Court had applied the prevailing federal rule, apparently predicated upon the common law. It held: "The federal common law rule cannot control the statutes of this state." (Tinsley, supra, 91 Cal.App.3d at p. 881, 154 Cal.Rptr. 591.)
BACKGROUND
This matter arises from the complex web of for-profit and nonprofit organizations that carry out the business of the NFL, an unincorporated nonprofit association of 30 (now 31) football clubs, including the Raiders.
The NFL is governed by a constitution that generally requires a three-quarters vote for action. The chief executive officer is the commissioner, who is appointed by a two-thirds vote of the clubs. (Tagliabue has been the commissioner at all relevant times.) The commissioner appoints other officers such as the president. (Austrian has been the president at all relevant times.)
The NFLP is a California corporation that markets the NFL's commercial interests. The clubs own the corporation in equal shares. The board of directors consists of one director appointed by each club. Action generally requires a majority vote. Tagliabue manages the NFLP pursuant to an NFL resolution.
Enterprises, L.P. is a Delaware limited partnership that manages satellite television broadcasts of NFL games. The limited partners are the clubs. The general partner is Enterprises, Inc., a Delaware corporation that is owned by the clubs in equal shares. Enterprises, Inc. also manages the World League. Its board of directors consists of six club owners. Action requires a majority vote. Tagliabue manages Enterprises, L.P. and Enterprises, Inc.
The World League is a joint venture between Enterprises, L.P. (51%) and Fox, Inc. (49%). It operates a European football league known as NFL Europe. Its board of directors consists of four club representatives and four Fox representatives.
Management Compensation Group is not affiliated with the NFL.
The Raiders generally alleges that Tagliabue has wrongfully used his position to control a majority of the clubs so that his management of the web cannot be evaluated *261 by independent business judgment. For example, the Raiders claims that Tagliabue permits certain clubs to operate in violation of the NFL's constitution and appoints certain clubs to key committees; in return for these favors, so the argument goes, the clubs give Tagliabue unquestioned allegiance and obedience. The other side of this coin, according to the Raiders, is that Tagliabue uses his control to treat it adversely because of antagonism stemming, in part, from nine years of litigation between the Raiders and the NFL during the 1980's.
There are 11 causes of action at issue in this appeal.
The first cause of action is a direct claim for breach of contract against the NFL and the club defendants, which essentially asserts that the operation of NFL Europe is contrary to the NFL's constitution.
The third, fourth, fifth, and sixth causes of action are derivative claims against Tagliabue and Austrian on behalf of the NFL, Enterprises L.P., and Enterprises, Inc. (and on behalf of the World League as to the fourth cause of action) concerning the management of the World League. The eighth and ninth causes of action are derivative claims against Tagliabue and Austrian on behalf of the NFL and the NFLP concerning the management of the NFLP. The 10th and 11th causes of action are derivative claims against Tagliabue and Austrian (and Management Compensation Group as to the 11th cause of action) on behalf of the NFL, the NFLP, Enterprises L.P., and Enterprises, Inc. concerning the management of 2 employee benefit plans. The seventh and sixteenth causes of action seek accountings and are ancillary to the derivative causes of action.
In the summary judgment proceedings, as to the breach of contract cause of action, the trial court found against the Raiders because of the abstention principle that courts should not interfere in intra association disputes. (California Dental Assn. v. American Dental Assn. (1979) 23 Cal.3d 346, 152 Cal.Rptr. 546, 590 P.2d 401 (California Dental).)
Concerning the 10 derivative causes of action, the Raiders alleged that making a demand upon the derivative entities to sue Tagliabue and Austrian would have been futile because the entities were dominated by Tagliabue and Austrian and, thus, lacked independent business judgment.[4] As to these causes of action, the trial court found against the Raiders because it determined that (1) defendants had presented sufficient evidence to show that demand would not have been futile, and (2) the Raiders had failed to produce evidence that demand would have been futile.
After the trial court's ruling but before judgment, the Raiders made a demand on the boards of the NFL, the NFLP, and Enterprises, Inc., to investigate the claims against Tagliabue, Austrian, and Management Compensation Group that were made in the 10th and 11th causes of action.
SCOPE OF REVIEW
"Summary judgment is granted when a moving party establishes the right to the *262 entry of judgment as a matter of law. (Code Civ. Proa, § 437c, subd. (c).) In reviewing an order granting summary judgment, we must assume the role of the trial court and redetermine the merits of the motion. In doing so, we must strictly scrutinize the moving party's papers. [Citation.] The declarations of the party opposing summary judgment, however, are liberally construed to determine the existence of triable issues of fact. [Citation.] All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment. [Citation.] [¶] While the appellate court must review a summary judgment motion by the same standards as the trial court, it must independently determine as a matter of law the construction and effect of the facts presented." (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562, 42 Cal.Rptr.2d 697.)
A defendant moving for summary judgment meets his burden of persuasion showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(2).) Once the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or to a defense to the cause of action. In doing so, the plaintiff cannot rely on the mere allegations or denial of his pleadings, "but, instead, shall set forth the specific facts showing that a triable issue of material fact exists...." (Ibid.; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 107 Cal.Rptr.2d 841, 24 P.3d 493.)
ABSTENTION DOCTRINE
The rights and duties of members of a private voluntary association, between themselves and in their relation to the association, are measured by the terms of the association's constitution and bylaws. (California Dental, supra, 23 Cal.3d at p. 353, 152 Cal.Rptr. 546, 590 P.2d 401.) In California Dental, the court held that "when a private voluntary organization plainly contravenes the terms of its bylaws, the issues of whether and to what extent judicial relief will be available depend on balancing (1) the interest in protecting the aggrieved party's rights against (2) the infringement on the organization's autonomy and the burdens on the courts that will result from judicial attempts to settle such internal disputes." (Id. at p. 350, 152 Cal.Rptr. 546, 590 P.2d 401.) But the court also noted that "In many disputes in which [the rights and duties of the membership in relation to the association] are at issue ... the courts may decline to exercise jurisdiction. Their determination not to intervene reflects their judgment that the resulting burdens on the judiciary outweigh the interests of the parties at stake. One concern in such cases is that judicial attempts to construe ritual or obscure rules and laws of private organizations may lead the courts into what Professor Chafee called the `dismal swamp.'" (Id. at p. 353, 152 Cal.Rptr. 546, 590 P.2d 401.) The court held that the initial question in determining whether judicial action is appropriate is whether the challenged action "plainly contravenes" the association's bylaws. Only then does the balancing test noted above come into play. (Id. at p. 354, 152 Cal.Rptr. 546, 590 P.2d 401.) The court undertook to intercede in the case in question only after observing that the case was "not one in which the [parties] are engaged in a dispute concerning the interpretation of [their] bylaws. If it were, the interests of the [American Dental Association] in autonomy and the burdens on the courts that might result from attempting to resolve *263 such disputes would be strong considerations militating against judicial review." (Id. at p. 355, fn. 3, 152 Cal.Rptr. 546, 590 P.2d 401, original italics.)
The NFL's Constitution provides that (1) the purpose of the league is to promote and foster the primary business of league members who are owners of a professional football club located in the United States, (2) no member of the league shall own any interest in a professional football team not a member of the league, and (3) no member shall own a financial interest in a minor league club.
The Raiders objects to being compelled to participate in NFL Europe. It takes the position a European football league falls outside the purposes of the NFL, the European teams are not members of the NFL, and the European teams are minor league teams. The other perspective is that the promotion and fostering of leaguemember business is an open-ended concept and the other-team ownership prohibitions can be interpreted as conflict-of-interest prohibitions that apply to individual clubs rather than the clubs' collective ownership of all of the European teams.
The Raiders tacitly accepts that the NFL has rejected its interpretation of the constitution and embraced the European football league. And it tacitly accepts that the operation of NFL Europe does not plainly contravene the constitution. It simply contends that California Dental does not apply and the California courts should intercede in its dispute.
The Raiders urges as follows: "In California Dental, the issue was whether the trial court should have abstained from ruling on requests to review decisions of a disinterested quasi-judicial tribunal established by an association to resolve disputes between members or components of the association. The few California decisions applying California Dental have arisen in this narrow context. The NFL and its entities have no such quasi-judicial process for the resolution of the issues raised by the Raiders. The actions challenged by the Raiders are those of the NFL itself. The NFL board is not disinterested; its own acts are at the heart of the controversy. No disinterested body is available to consider the Raiders' claims that the NFL has breached its Constitution and Bylaws. Were the principle of California Dental extended to a case such as this, then numerous cases concerning unincorporated associations issued have been wrongly decided. Indeed, no published decision of a California court has applied the doctrine of California Dental to an ordinary tort or contract action at law for damages against an association that did not seek review of a disinterested quasijudicial decision of a tribunal established by the association."
In California Dental, the California Dental Association (California), a constituent society chartered by the American Dental Association (American), held a hearing and expelled a dentist for violations of its Code of Ethics and the ethics of American. The dentist appealed to American, which reversed without reference to California's Code of Ethics. California filed a petition for writ of mandate challenging the reversal. The trial court granted the petition and ordered American to rehear the dentist's appeal on the ground that California had higher ethical standards, American's bylaws allowed California to have higher ethical standards, and American had failed to consider California's higher standards. The court affirmed.
It is true that California Dental framed the issue before it as follows: "The question presented is whether the constituent organization can obtain judicial review of the adjudicatory decision by its parent *264 when the latter assertedly failed to comply with its own bylaws." (California Dental, supra, 23 Cal.3d at p. 350, 152 Cal.Rptr. 546, 590 P.2d 401.) But the case nowhere states that abstention was limited to situations wherein one sought judicial review of the decision of a neutral quasi-judicial body. To the contrary, the case language applies broadly: "We conclude that when a private voluntary organization plainly contravenes the terms of its bylaws, the issues of whether and to what extent judicial relief will be available depend on [the balancing factors]." (Ibid.) The case then stated that the threshold question in determining whether judicial action is appropriate was whether the challenged action "plainly contravenes" the association's bylaws. It undertook review in the case only because the challenged action plainly contravened the association's bylaws.
More importantly, however, the Raiders simply misreads the court's statement of the issue before it. As the context makes clear, the court was not reviewing an adjudicatory decision of an association, which might imply that the abstention principles discussed in the case apply only to adjudicatory decisions. It was reviewing whether American plainly contravened its bylaws by deciding the dentist's appeal without regard to California's Code of Ethics. The court specifically articulates this concept: "[California] asserts [the concern that American comply with its own bylaws] not as a subordinate adjudicatory body that has been reversed on appeal, but as a representative of the aggregate interests of its members. Whether such an interest is Judicially cognizable depends not on our cases applying principles of `fair procedure,' but on the more general common law principles that govern disputes within private organizations." (California Dental, supra, 23 Cal.3d at p. 353, 152 Cal. Rptr. 546, 590 P.2d 401.)
In short, California Dental was not a quasi-judicial case, did not limit itself to quasi-judicial cases, and affirmatively stated that it was applying general common law that governed disputes' within private organizations. California Dental and the general common law manifestly apply to this case.
In a related issue, the Raiders argues that the trial court erred by ruling that issues regarding Tagliabue's failure to observe the 1993 Resolution IC 1 (generally authorizing the development of a business plan to operate an international league) were not pleaded in the first cause of action. They appear to alternatively argue that the trial court abused its discretion by denying leave to amend the first cause of action to allege that operation of the World League violated the NFL's bylaws (generally stating that each member club agrees to be bound by and observe all decisions, rulings, and actions of the Executive Committee).
The Raiders' first point seems to concern a claim against Tagliabue and Austrian, which would be derivative in nature. It is therefore governed by our analysis of the derivative issues in the next portion of this opinion. The Raiders' second point seems to concern a proposed cause of action against the NFL and club defendants. But operation of the World League does not plainly contravene the cited general bylaw. The abstention doctrine therefore applies.
DEMAND FUTILITY
The Raiders preliminarily contends that the demand futility rule is a pleading requirement that drops out of the case once a derivative suit survives a demurrer. It points out that Corporations Code section 800, subdivision (b)(2) (ante, fn. 4), only requires allegations of demand futility. It elaborates as follows: "Although in *265 most cases the plaintiff must eventually prove what it has alleged, a derivative claim premised on demand futility is different because the sufficiency of the allegations determines whether the shareholders or the directors are to have control over the litigation, and there are mechanisms (other than summary judgment) for the corporation to gain control of the litigation after the cases pass the demurrer stage." It continues: "The test for demand futility serves to identifyat an early stagethe cases in which control of litigation brought in the name of the corporation against a third party should be in the hands of the shareholder rather than the board of directors; thus, it is a threshold requirement, it does not implicate the merits of the complaint against the third-party defendant, and it drops out of the case once the court finds that demand is excused. To require the plaintiff to proveand not just pleada case for demand futility would needlessly increase the burdens of conducting derivative shareholder litigation brought to assert rights of the corporation against a third party by opening the door to discovery and contested fact litigation over a collateral issuewhether demand was really futilewithout any real benefit to the corporation or the judicial process." (Original italics.) It concludes that there is no benefit to the corporation in allowing the demand futility issue to be litigated because the corporation can move to take control of the suit as a plaintiff if it believes the suit has merit or appoint a special litigation committee of disinterested directors to investigate the allegations and move to dismiss the suit if the committee so recommends. In either case, the Raiders asserts, the focus before the court will be on the merits of the suit rather than a collateral issue: "In other words, where a shareholder has successfully invoked the demand futility exception, the board of directors continues to hold the keys to the courthouse. It is fully empowered to trigger an evaluation of the merits of the claims against the third-party defendant and the wisdom of asserting those claims. If a board of directors fails to take advantage of that opportunity and declines to appoint a special litigation committee to conduct an impartial evaluation of those claimseven though it knows that the court would evaluate any conclusion the board reached under the deferential business judgment standardwhy shouldn't the shareholder derivative suit be allowed to continue?"
The above argument has a superficial appeal. However, as acknowledged by the Raiders, it places the demand futility requirement outside the general rule that a plaintiff must prove what it pleads. Though there is nothing inherently wrong with exceptions to general rules, the Raiders advances its proposition without supporting authority. Each case cited by the Raiders is a pleading case. None state that demand futility need not be proved. And cases support the notion that demand futility is within the general rule.
In Glidden v. Diamond 66 Cattle etc. Co. (1918) 178 Cal. 562, 174 P. 667, the trial court granted a motion for nonsuit in a derivative action on the ground that the corporation had previously commenced a suit against the same defendants in which the same relief was sought. The court reversed the judgment because it found that the two suits were not similar. But, in supposing that nonsuit would have been proper had the two suits been similar, the court offered the following: "for, aside from the matter of pleading, the plaintiff was bound to prove his right to maintain his action on behalf of the corporation by showing that the corporation had itself failed, refused, or neglected to take the necessary steps for the protection of the *266 interests of itself and its stockholders...." (Id. at p. 565, 174 P. 667.)
In Good v. Getty Oil Co. (Del. Ch. 1986) 518 A.2d 973,[5] two Texaco, Inc. stockholders filed a derivative suit against Getty Oil Company. Texaco moved to dismiss and asked permission to establish a factual record in support of the motion. It then petitioned to certify to the Delaware Supreme Court the question whether demand futility must be measured against the allegations of the derivative complaint or whether a factual record could be established to disprove the demand futility allegation. The trial court denied the petition after concluding that nothing in Delaware law precluded Texaco from factually resolving the demand futility issue in a context other than a motion to dismiss. It held: "It is recognized that the principle which requires that management retain control over corporate claims except where conditions of director disqualification exist ... is a substantive matter. [Citation.] Therefore, its ultimate consideration does not end when the complaint is found to be sufficient. It may be raised as a fact issue to be resolved in a variety of ways thereafter." (Id. at p. 975.)
A recent Maryland case is in accord, directly on point with this case, and convincing.
In Werbowsky v. Collomb (2001) 362 Md. 581, 766 A.2d 123, derivative plaintiff stockholders appealed from a judgment following a grant of summary judgment to the defendants based on the demand futility issue. They complained that it was error for the trial court to decide demand futility on summary judgment after the trial court had concluded that the complaint had sufficiently alleged demand futility. The court disagreed and explained: "Although the issue of demand futility is often raised and decided in the context of a motion to dismiss, based on the allegations of the complaint [citation], there is no requirement that the issue be resolved in that context. [Citations.] Obviously, if the complaint fails to allege sufficient facts which, if true, would demonstrate the futility of a demand, it is entirely appropriate to terminate the action on a motion to dismiss. But the issue is not foreclosed simply because the complaint is sufficient. Plaintiffs can allege most anything, and, if the court were bound to consider only the allegations of the complaint, the futility exception would swallow in one gulp the demand requirement. The futility issue may be resolved as a factual matter." (Id. at p. 145.)
We therefore reject the Raiders' contention that the trial court erred by considering demand futility as an element of the derivative claims that is subject to proof.
The Raiders alternatively contends that it raised a triable issue of fact as to demand futility in several different ways.[6]
The test for proving demand futility is whether the facts show a reasonable doubt that (1) the directors are disinterested and independent, and (2) the challenged transaction was otherwise the product of a valid exercise of business judgment. (Aronson v. Lewis (Del.1984) 473 A.2d 805, 814.) But general, conclusory facts are insufficient. (Shields v. Singleton, supra, 15 Cal.App.4th at p. 1622, *267 19 Cal.Rptr.2d 459.) And facts relating to the structural bias common to corporate boards throughout America are also insufficient. (Aronson v. Lewis, supra, 473 A.2d at p. 815, fn. 8; cf. Kaplan v. Wyatt (Del.1985) 499 A.2d 1184, 1189-1190 [allegations of natural bias not supported by tangible evidence of an interest on the part of a special litigation committee in the outcome of the litigation do not demonstrate a lack of independence].) The proof must be of "facts specific to each director from which [the trier of fact] can [find a reasonable doubt] that that particular director could or could not be expected to fairly evaluate the claims of the shareholder plaintiff." (Shields v. Singleton, supra, 15 Cal.App.4th at p. 1622, 19 Cal. Rptr.2d 459; see also Aronson v. Lewis, supra, 473 A.2d at p. 815, fn. 8 ["specific facts pointing to bias on a particular board will be sufficient for determining demand futility"].)
A significant part of the Raiders' argument essentially disagrees with the specific-fact requirement and urges that structural bias is sufficient to raise an inference of demand futility. According to the Raiders, the evidence showing the extraordinary influence of the commissioner and president over the NFL and the NFL entities shows the structural bias and therefore demand futility. In a similar argument that the Raiders urges shows specific facts, the Raiders argues that certain individual clubs were disabled from exercising independent judgment because those clubs needed favorable treatment from the commissioner concerning NFL rule interpretations.
The argument appears to be a non sequitur, however. This follows because the structure does not permit the commissioner to control the clubs; the commissioner is a nonshareholder officer who serves at the pleasure of the directors (clubs). In short, any structural bias stemming from the influence of the commissioner and his appointees naturally flows from the consent of the clubs.
In any event, the Raiders cites several cases in support of its position.
In Clark v. Lomas & Nettleton Financial Corp. (5th Cir.1980) 625 F.2d 49 (Clark), the court reversed an order approving the settlement of a derivative suit in which the corporation's board of directors settled the suit without the shareholder plaintiffs' knowledge. This occurred after the trial court allowed an amended complaint naming Jack Booth as a defendant and thereafter denied Booth's motion to dismiss. Booth was the corporation's principal director and president. He owned 45 percent of the stock. Lomas, the principal defendant in the derivative suit, owned 11 percent of the stock. Booth did not vote on the settlement. But the six remaining directors of the corporation were elected by the combined vote of Booth and Lomas. And a majority of the six were insiders. The court noted that Booth wielded power to strip the other directors of their positions as directors, officers, and consultants. And it observed that demand futility (board lack of independence) is presumed when the controlling shareholder is named a defendant. In this context, the court remarked: "Nor can we ignore the possibility of `structural bias' in this case ... suggested by [the corporation's] sudden, hostile reaction to [ ] Booth's joinder." (Id. at p. 53.)
Thus, Clark addresses the bias that exists when a controlling shareholder, who necessarily controls the board of directors, is sued in a derivative action. That is not the case here. Tagliabue is not a shareholder.
In Grobow v. Perot (Del.1988) 539 A.2d 180, the trial court dismissed a derivative suit for failure to sufficiently plead demand *268 futility. On appeal, the plaintiff advanced the theory that it had alleged a reasonable doubt as to director disinterest based on "entrenchment." We glean from the opinion that entrenchment, in this context, refers to the concept where the directors' action that is challenged by the shareholder plaintiff was motivated by and reasonably related to the directors' retention of their positions on the board. (Id. at p. 188.)
Entrenchment is inapplicable to this case because the Raiders, does not challenge director (club) action that was motivated by and reasonably related to the directors' retention of their positions. Rather, it challenges officer action.
In Koshaba v. Koshaba (1942) 56 Cal. App.2d 302, 132 P.2d 854 (Koshaba), the trial court rendered a judgment in a derivative suit removing George Koshaba as a director for misappropriating money. On appeal, Koshaba contended that the complaint failed to state a cause of action because, although the plaintiff had alleged that he had made a demand to sue on the board, the plaintiff had not alleged that the board refused the demand. The court disagreed because the complaint had alleged, and the trial court had found true, facts of such a nature as to demonstrate that the demand was futile. One fact was that Koshaba dominated and controlled the other members of the board such that the other members had ceased to function as directors. (Id. at p. 308, 132 P.2d 854.)
Koshaba is simply another example of the fact pattern in which one director has corporate control by virtue of share ownership. Again, Tagliabue is neither a director nor a shareholder.
Zapata Corp. v. Maldonado (Del.1981) 430 A.2d 779, is patently not on point. There the court simply recognized that Delaware law allows corporations to respond to a derivative suit by appointing independent directors to a special litigation committee, which will then investigate the merits of the suit and thereafter recommend pursuing the case as a plaintiff or seeking dismissal of the case. In this context, the court noted that it was mindful that the committee of directors would be passing judgment on fellow directors (at least where the fellow directors are defendants in the derivative action); and it questioned whether inquiry as to the independence, good faith and reasonable investigation of the committee directors was sufficient to safeguard against abuse or subconscious abuse. It then fashioned a rule that, when a corporation moves to dismiss a derivative suit based on the business-judgment recommendation of a special litigation committee, the court (1) should inquire into the independence and good faith of the committee, and, if it finds independence and good faith, (2) may, in its discretion, apply its own business judgment before granting or denying the motion. (Id. at pp. 788-789.)
Miller v. Register and Tribune Syndicate, Inc. (Iowa 1983) 336 N.W.2d 709, is another special litigation committee case where the issue involved the potential for structural bias of the committee where the committee is appointed by directors who were defendants in the derivative suit. (Id. at p. 718.)
And finally, Blasband v. Rales (3d Cir. 1992) 971 F.2d 1034, a pleading case similar to Clark and Koshaba, merely affirms the rule that lack of independence can be pleaded by facts showing that the board is under a controlling influence such that its discretion is sterilized. (Id. at p. 1048.)
In short, none of the cases cited by the Raiders support that demand futility can be shown by evidence of a structural bias in lieu of facts, specific to each director, from which the trier of fact could conclude *269 that a particular director could or could not be expected to fairly evaluate the claims of the shareholder plaintiff. (Shields v. Singleton, supra, 15 Cal. App.4th at p. 1622, 19 Cal.Rptr.2d 459.) To the extent that the cases cited by the Raiders support the notion that a controlling shareholder could dominate all directors by virtue of voting control, the cases are inapplicable here because the claimed dominator in this case (Tagliabue) has no voting control and is, in fact, subject to the directors' (clubs') voting control.
The Raiders next argues that the failure of the various boards to appoint a special litigation committee is itself evidence of demand futility. It relies on Zilker v. Klein (N.D.Ill.1981) 510 F.Supp. 1070 (Zilker). This reliance is erroneous.
In Zilker, the trial court denied a motion for summary judgment in a derivative suit where the plaintiff made no demand but argued that demand was futile because the complaint alleged "a long course of events involving many decisions either participated or acquiesced in by the entire Board." (Zilker, supra, 510 F.Supp. at p. 1073.) In response to the defendants' argument that the corporation could have referred the suit to a special litigation committee if the plaintiff had made demand, the trial court offered that the argument "proves too much, for there is nothing to have prevented Defendants from taking precisely that action after [the plaintiffs] complaint was filed." (Ibid., original italics.) It then stated: "It should be remembered that on Defendants' motion for summary judgment all reasonable inferences are to be drawn in plaintiffs favor. Defendants' failure to deal with the matter independently for nearly four years supports the inference that a demand would in fact have been futile and thus defeats summary judgment on this score." (Id, at pp. 1073-1074.)
Zilker is distinguishable because, in this case, the Raiders submitted no evidence that the various boards failed to deal with the derivative claims independently. A disinterested board can be informed of derivative claims via the derivative suit and, if it concludes that the claims have no merit, seek summary judgment. (Cf. Findley v. Garrett (1952) 109 Cal. App.2d 166, 177, 240 P.2d 421 [disinterested board can refuse shareholder's demand to sue].) A special litigation committee is mandated only when the board is not independent. (See Finley v. Superior Court (2000) 80 Cal.App.4th 1152, 1163, 96 Cal. Rptr.2d 128.) The Raiders' argument simply assumes that the various boards were not independent and therefore had to appoint a special litigation committee to investigate its derivative claims.
In short, a board's failure to appoint a special litigation committee to investigate the claims made in a derivative suit cannot raise an inference of demand futility because there is no necessity to appoint a special litigation committee if the board itself is disinterested. (Cf. Seminaris v. Landa (Del.Ch.1995) 662 A.2d 1350, 1353 [board's appointment of a special litigation committee does not concede demand futility unless the board is not independent].) Again, the Raiders was required to show facts specific to each director from which a lack of independence could be inferred. (Shields v. Singleton, supra, 15 Cal.App.4th at p. 1622, 19 Cal. Rptr.2d 459.)
The Raiders next argues that the clubs as directors cannot exercise independent judgments on whether to sue Tagliabue and Austrian because they have divided loyalties. It relies on declarations submitted by 23 clubs to the effect that each club would have exercised business judgment to do what was best for the NFL and the respective club on any demand *270 by the Raiders to investigate claims of wrongdoing by NFL employees. According to the Raiders, the clubs cannot have undivided loyalty to the NFL when they must also consider their individual interests.
Again, the argument is a non sequitur. All of the clubs are directors of the NFL, and there are no other directors. All of the clubs are owners of the NFL, and there are no other owners. Thus, in the context of wrongdoing by NFL employees, damage to the NFL is coextensive with damage to the clubs. There is therefore no potential for a club, as a director, to divide loyalties between the NFL and the club.
The Raiders finally urges that the clubs' passage of Resolution FC-7 raises a reasonable doubt about the clubs' disinterest.
The clubs passed the resolution in 1998 without dissent and with four abstentions. The resolution ratified the NFL's interest in pursuing international football via the World League and indemnified Tagliabue and Austrian from four of the derivative causes of action in this case. According to the Raiders, the clubs passed the resolution after only cursory consideration and, thus, failed to exercise independent business judgment. The Raiders concludes that, because the clubs failed to exercise independent business judgment in 1998, the inference is raised that the clubs would have failed to exercise independent business judgment had the Raiders made a demand to sue Tagliabue and Austrian in 1996.
The point is without merit. Evidence leading only to speculative inferences is irrelevant in light of Evidence Code section 210, which requires that evidence offered to prove or disprove a disputed fact must have a tendency in reason for such purpose. (People v. Kraft (2000) 23 Cal.4th 978, 1035, 99 Cal.Rptr.2d 1, 5 P.3d 68; People v. De La Plane (1979) 88 Cal.App.3d 223, 244, 151 Cal.Rptr. 843.)
Here, the ultimate fact to be inferred (demand futility in 1996 because the clubs would have failed to exercise independent business judgment) is speculative to some extent. But it is too attenuated to infer a propensity to act in a certain way (from acting that way once in 1998) and then to infer from that propensity that the actor would have acted in that same way on a specified occasion in 1996 (before the propensity was even established). Stated another way, in order to reach the ultimate 19% fact from the clubs' 1998 act, one must first speculate that the clubs invariably fail to exercise independent business judgment. Such a proposition is unreasonable. The clubs' act in 1998 therefore has no tendency in reason to prove what the clubs would have done in 1996. Again, the Raiders was required to show facts specific to each director from which a lack of independence could be inferred.
The parties debate whether the Raiders' prejudgment demand concerning the 10th and 11th causes of action rendered the demand futility issue moot. In light of our decision on the merits of the issue, it is unnecessary to address mootness.
DISPOSITION
The judgment is affirmed.
We Concur: ELIA and MIHARA, JJ.
NOTES
[1] The club defendants are: The Five Smiths, Inc. (Atlanta Falcons); B & B Holdings, Inc. (Arizona Cardinals); Buffalo Bills, Inc.; Chicago Bears Football Club, Inc.; Baltimore Ravens Football Club, Inc. F/K/A Cleveland Browns Football Co.; PDB Sports, Inc. (Denver Broncos); Houston Oilers, Inc.; Kansas City Chiefs Football Club, Inc.; Minnesota Vikings Football Club, Inc.; New Orleans Louisiana Saints, L.P.; New York Football Giants, Inc.; New York Jets Football Club, Inc.; Pittsburgh Steelers Sports, Inc.; San Francisco Forty-Niners, Ltd.; Seattle Seahawks, Inc.; and Pro-Football, Inc. (Washington Redskins).
The person or entity defendants are: NFL Commissioner Paul Tagliabue; NFL President Neil Austrian; National Football League Properties, Inc. (hereafter, NFLP); The World League of American Football (hereafter, World League); The World League of American Football, Inc. (hereafter, World League, Inc.); The World League of American Football, L.P. (hereafter, World League, L.P.); National Football League Enterprises, L.P. (hereafter, Enterprises, L.P.); National Football League Enterprises, Inc. (hereafter, Enterprises, Inc.); and Management Compensation Group.
"The Raiders" is used herein as the name of a business entity and therefore is associated with singular verbs.
[2] The World League obtained judgment but World League, Inc. and World League, L.P. did not. The complaint alleges that World League, Inc. and World League, L.P. were Delaware entities that operated the "old" World League, a European football league that terminated in 1992. It then states that references to "World League" pertain to both the "old" World League and the "new" World League currently operated by the World League.
[3] Code of Civil Procedure section 579 provides that "In an action against several defendants, the Court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper."
[4] Corporations Code section 800, subdivision (b)(2), provides that no action may be instituted or maintained in the right of a corporation or unincorporated association by a shareholder or member unless "The plaintiff alleges in the complaint with particularity plaintiff's efforts to secure from the board [or managing body] such action as plaintiff desires, or the reasons for not making such effort, and alleges further that plaintiff has either informed the corporation [or association] or the board [or managing body] in writing of the ultimate facts of each cause of action against each defendant or delivered to the corporation [or association] or board [or managing body] a true copy of the complaint which plaintiff proposes to file."
[5] The parties agree that we may properly rely on corporate law developed in the state of Delaware given that it is identical to California corporate law for all practical purposes. (See Shields v. Singleton (1993) 15 Cal. App.4th 1611, 1621, 19 Cal.Rptr.2d 459.)
[6] The Raiders does not dispute that defendants' showing negated the demand futility element. We therefore do not examine the showing in support of the motion except insofar as it may be relevant to the discussion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1555643/ | 775 F.Supp. 668 (1991)
AMLON METALS, INC., Amlon Metals, Ltd., d/b/a Euromet, and Wath Recycling, Ltd., Plaintiffs,
v.
FMC CORPORATION, Defendant.
No. 91 Civ. 3857 (WCC).
United States District Court, S.D. New York.
October 16, 1991.
As Amended Nunc Pro Tunc December 13, 1991.
*669 Stroock & Stroock & Lavan (Charles G. Moerdler, Robert J. Zastrow, Karen Jore, Lisa Rosenthal, Gregory R. Belcamino, of counsel), New York City, for plaintiffs.
Gallagher & Gosseen (Robert A. Faller, of counsel), Mineola, N.Y., Hangley, Connolly, Epstein, Chicco, Foxman & Ewing (Neil G. Epstein, Carol L. Press, John P. Lavelle, of counsel), Philadelphia, Pa., for defendant.
OPINION AND ORDER
WILLIAM C. CONNER, District Judge:
This action stems from a commercial contract for the recycling of copper residue produced by defendant FMC Corporation ("FMC"). The matter is currently before the Court on FMC's motion to dismiss plaintiffs' claims under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901 et seq. (1982 & Supp. III 1985), and Alien Tort Statute, 28 U.S.C. § 1350 (1982 & Supp. III 1985), on the grounds that this Court lacks jurisdiction over the claims pursuant to Fed.R.Civ.P. 12(b)(1) and that the claims fail to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).
Background
Plaintiff Amlon, a New York Corporation with its principal place of business in New York, is the sole American agent for plaintiffs Wath, a United Kingdom corporation with its principal place of business in Wath-on-Dearne, South Yorkshire, and Euromet, a United Kingdom corporation with its principal place of business in London. Complaint ¶¶ 3-5, 9. Amlon acquires metal residues, which are shipped to Wath for drying and other processing. Complaint ¶ 9. The profits and losses are divided equally between Amlon and Euromet. Complaint ¶ 9.
In January 1988, Amlon and FMC, a Delaware corporation with its principal place of business in Chicago, entered into negotiations concerning the possible reclamation of copper residue produced by a pesticide plant operated by FMC in Baltimore, Maryland. Complaint ¶¶ 6, 10.
In August 1988, Amlon and FMC entered into a contract under which the parties agreed, inter alia, that the copper residue would be treated for metallic reclamation purposes, that the material would be free from harmful impurities as per a sample tested earlier by Amlon, that the material was not a hazardous waste, and that the material typically contained 33% copper. Complaint ¶¶ 15-16.
Problems between Amlon and FMC developed shortly after the contract was signed. The shipment of material was to take place in October. Amlon had arranged for containers sufficient to handle the 140 tons of material it had anticipated. Complaint ¶ 19. The delivery actually made to Wath was between three and four tons, a quantity so small that it caused Wath some processing difficulties. Complaint ¶ 19. The material itself was apparently free from harmful impurities. Complaint ¶ 19.
In May 1989, Amlon procured some 20 containers and caused them to be delivered to FMC's Baltimore plant in preparation for the shipping of additional copper residue to Wath. Complaint ¶ 25. Unbeknownst to Amlon or Wath, the drivers of the trucks that took the containers from FMC's plant to the cargo ship were told to wear respirators and the containers had been marked "corrosive" before leaving FMC's hands. Complaint ¶¶ 25-27.
When the containers arrived in Leeds England on June 9, 1989, Wath's personnel noticed a strong odor coming from the containers. Complaint ¶ 33. Thirteen of the containers were shipped to Wath's premises while seven remained at Leeds. Amlon contacted FMC and was told that the smell was probably due to xylene (an EPA-listed hazardous substance), which FMC stated was present in concentrations of 0 to 100 parts per million. Complaint ¶¶ 33-34. When the smell did not dissipate over the *670 course of the week, Amlon again contacted FMC, and was told that xylene might be present in concentrations five to fifteen times higher than FMC had stated previously. Complaint ¶¶ 37-38. On June 16, Amlon rejected the seven containers that were still in the British Rail depot at Leeds and reserved the right to hold FMC responsible for the removal of the material at Wath's premises, which at that point had been mixed with other residues. Complaint ¶¶ 40-41.
Thereafter, Wath notified the British government of the problems of which it was then aware and commenced its own analysis of the material. Complaint ¶ 45. Its tests revealed that the material contained a number of organic chemicals, including xylene (in concentrations up to ten times higher than FMC had disclosed in its second communication), 7-hydrogen (an allegedly carcinogenic pesticide intermediary) and chlorinated phenols (which may form dioxin when exposed to heat and a catalyst).
Upon learning of the situation, the Health and Safety Executive of the United Kingdom required Wath to drum the material and Wath placed it in steel drums at its premises, where it remains today. Complaint ¶¶ 45, 54.
On December 20, 1989, plaintiffs brought suit against FMC in the Commercial Court of the Queen's Bench Division of the British High Court of Justice. The Commercial Court granted FMC's motion to dismiss on the grounds that all the actions claimed to be taken by FMC took place in the United States and U.S. law would apply.
On June 7, 1991, plaintiffs filed the complaint that gives rise to the instant case. The complaint alleges that FMC misrepresented the composition and characteristics of the copper residue and failed to disclose the presence and concentrations of organic chemicals in the material on a number of occasions, both before and after the material arrived in England. Complaint ¶¶ 1, 11-12, 19, 21-27, 29-31, 42-44, 50-52, 69-75. The Complaint also alleges that the material may present imminent and substantial danger to human health and to the environment. In addition to the RCRA and Alien Torts Act claims that defendant here seeks to dismiss, the complaint alleges common law fraud, strict liability, breach of express and implied warranty and negligence. Complaint ¶¶ 68-109.
Discussion
A. Defendant's 12(b)(1) Motion
Defendant asserts that this Court lacks subject matter jurisdiction over plaintiff's RCRA and Alien Tort Statute claims because the facts recounted in plaintiff's complaint cannot support these claims. With respect to the RCRA claim, defendant confuses the jurisdictional issue it has raised with the merits of the claim. The complaint bases its second claim for relief on RCRA. Notwithstanding the fact that plaintiffs' efforts to apply RCRA extraterritorially present a question of first impression, the complaint states a claim arising under a law of the United States, of which this Court has jurisdiction.[1] As Justice Holmes noted long ago: "When the plaintiff bases his cause of action upon an Act of Congress jurisdiction cannot be defeated by a plea denying the merits of his claim." The Fair v. Kohler Die and Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913). See also Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946) ("Jurisdiction, therefore, is not defeated as respondents seem to contend, by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover."); Fogel v. Chestnutt, 668 F.2d 100 (2d Cir.1981), cert. denied, 459 U.S. 828, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3562 at 40-41 ("Since a claim that a right exists under federal law is enough for jurisdiction unless the claim is insubstantial or frivolous, a substantial claim that a remedy may be implied from a *671 federal statute is enough for jurisdiction. If it is held that federal law does not provide for the remedy, the dismissal should be on the merits rather than for want of jurisdiction."). Defendant's 12(b)(1) motion is thus denied with respect to the RCRA claim.
When considering Alien Tort Statute claims on a 12(b)(1) motion, courts typically engage "in a more searching preliminary review of the merits than is required, for example under the more flexible "arising under formulation." Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980). This Court will do likewise.
An allegation of conduct constituting a treaty violation or a violation of the law of nations is a threshold jurisdictional requirement under the Alien Tort Statute, 28 U.S.C. § 1350. See Filartiga, 630 F.2d at 880. If this requirement is not met, an action under section 1350 cannot be maintained. See id. at 887. Here, the complaint does not allege any treaty violation that is actionable under the Alien Tort Statute. Therefore, the complaint must allege facts that, if true, would constitute a violation of the law of nations.
Plaintiffs assert that the complaint does allege facts that constitute a violation of the law of nations. In particular, plaintiffs argue that FMC's conduct is violative of the Stockholm Principles, United Nations Conference on the Human Environment (adopted June 16, 1972), to which the U.S. is a signatory.[2] Plaintiffs also cite the Restatement (Third) of Foreign Relations Law § 602(2) (1987), in support of their position.[3]
But these invocations of international law do not establish a violation of such law under the Alien Tort Statute. In Filartiga, one of the few cases to find the Statute applicable, the court stressed that "It is only where the nations of the world have demonstrated that the wrong is of mutual and not merely several, concern, by means of express international accords, that a wrong generally recognized becomes an international law violation within the meaning of the statute." Filartiga, 630 F.2d at 888. Subsequent decisions have emphasized the narrow scope of Filartiga's holding. For example, in Zapata v. Quinn, 707 F.2d 691, 692 (2d Cir.1983) (per curiam) the Second Circuit, citing Filartiga, held that the Alien Tort Statute "applies only to shockingly egregious violations of universally recognized principles of international law."
Plaintiffs' reliance on the Stockholm Principles is misplaced, since those Principles do not set forth any specific proscriptions, but rather refer only in a general sense to the responsibility of nations to insure that activities within their jurisdiction do not cause damage to the environment beyond their borders. Nor does the Restatement of Foreign Relations law constitute a statement of universally recognized principles of international law. At most, as plaintiffs' own brief suggests, the Restatement iterates the existing U.S. view of the law of nations regarding global environmental protection.
Because the complaint contains no clear allegation of a violation of the law of nations, plaintiffs' second cause of action is dismissed.
B. Defendant's 12(b)(6) Motion
A motion to dismiss for failure to state a claim tests only the sufficiency of a *672 complaint, see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), and should not be granted "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Anderson v. Coughlin, 700 F.2d 37, 40 (2d Cir.1983). A court must accept as true the allegations of the complaint and draw all reasonable inferences in favor of the plaintiff. See Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686.
The RCRA Claim
In their complaint, plaintiffs assert as their Second Claim for Relief a cause of action under RCRA's citizen suit provision, 42 U.S.C. § 6972. Specifically, they seek injunctive relief and damages under Section 6972(a)(1)(B), which provides that any person may commence a civil action
against any person ... including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or to the environment.
Plaintiffs contend that they are entitled to relief under this provision because potentially toxic chemicals may evaporate from or leak out of containers in which they have stored the copper residue, posing an imminent and substantial danger to workers nearby and the community at large if the chemicals pollute the local water supply. Complaint ¶¶ 65-66.
Defendant avers, however, that even accepting plaintiffs' allegations as true, as this Court must do on this motion, plaintiffs' claim under section 6972(a)(1)(B) fails to state a claim upon which relief can be granted because RCRA does not extend to waste located within the territory of another sovereign nation. In support of its contention, defendant points to the well-established principle of American law "that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." EEOC v. Arabian American Oil Co., ___ U.S. ___, 111 S.Ct. 1227, 1230, 113 L.Ed.2d 274 (1991) (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 577, 93 L.Ed. 680 (1949)). Defendant notes further that in applying this canon of construction, courts must determine whether "language in the [relevant act] gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or some measure of legislative control." Id. (quoting Foley Bros., 336 U.S. at 285, 69 S.Ct. at 577). Thus, defendant maintains that courts must assume that Congress legislates against the backdrop of an underlying presumption against extraterritoriality and therefore must presume that the statute applies only within the United States unless it contains "the affirmative intention of Congress clearly expressed" that it applies abroad. Id. (quoting Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147, 77 S.Ct. 699, 704, 1 L.Ed.2d 709 (1957)). See Def. Mem. at 19-20.
Plaintiffs attempt to work around this principle by pointing to a number of cases, most of which arise under the federal security laws, that purport to grant jurisdiction based on the locus of conduct underlying the claim. In particular, plaintiffs note that in Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326 (2d Cir.1972), the Second Circuit appears to have distinguished several cases relied on by defendant in observing that: "when, as here, there has been significant conduct within the territory, a statute cannot properly be held inapplicable simply on the ground that, absent the clearest language, Congress will not be assumed to have meant to go beyond the limits recognized by foreign relations law." Id. at 1334. Plaintiffs assert further that the conduct test articulated in Leasco remains vital, having just recently been expanded to encompass cases arising under the Racketeer Influenced and Corrupt Organization Act *673 ("RICO"), 18 U.S.C. §§ 1961-1968. See Alfadda v. Fenn, 935 F.2d 475 (2d Cir.1991).
While acknowledging that the endangerment alleged in the present action has occurred primarily in England, plaintiffs maintain that the conduct test should apply here because significant activities giving rise to the endangerment, including the generation of the waste, the making of the contract and the consignment of the waste to the carrier, took place in the U.S. In addition, plaintiffs aver that this case is distinguishable from Arabian American Oil and other cases cited by defendant because this case does not involve the application of "substantive" American law.[4]
Defendant responds by arguing that plaintiffs gain little by their reliance on Leasco and related cases.[5] Specifically, defendant maintains that nothing in the securities law cases relied on by plaintiffs suggests that the conduct test allows a court to apply a statute extraterritorially without determining that Congress in fact intended such extraterritorial application. The Court agrees. In Leasco, quoted extensively by plaintiffs, the Second Circuit did not apply the conduct test until it combed the legislative history and determined that "Congress meant § 10(b) to protect against fraud in the sale or purchase of securities whether or not these were traded on organized United States markets" and that there was no reason why Congress "should have wished to limit the protection to securities of American issuers."[6]Leasco, 468 F.2d at 1336.
In the present case it is difficult to find the type of evidence found in Leasco to support extraterritorial application. Plaintiffs, however, argue vigorously that such evidence does exist here both in RCRA's legislative history and in the structure and *674 language of RCRA. The Court next considers these arguments.
a. Legislative History
While conceding that the initial focus of Congress when passing RCRA was entirely domestic, plaintiffs argue that the legislative history to the Hazardous and Solid Waste Amendments of 1984 ("HSWA"), Pub.L. No. 98-616, 98 Stat. 3221 (codified at scattered sections of 42 U.S.C. (Supp. III 1985)), shows the intention of Congress to allow RCRA to apply extraterritorially. Yet the two major pieces of evidence relied on by plaintiffs add little to their case. Plaintiffs cite Representative Mikulski's remarks to the effect that "our own country will have safeguards from the ill effects of hazardous waste upon passage of [HSWA]. We should take an equally firm stand on the transportation of hazardous waste bound for export to other countries." See 129 Cong.Rec. 27691 (1984). But these remarks were made in reference to HSWA section 3017, 42 U.S.C. § 6938, RCRA's hazardous waste export provision, which requires notification of a shipment of hazardous waste abroad to the EPA administrator and to the government of the receiving country. Representative Mikulski's remarks, seen in context, almost certainly refer to the export provision and do not apply to RCRA's citizen suit provision, notwithstanding plaintiffs' efforts to link this provision with the waste export provision.[7]
The distinct nature of these provisions is well illustrated by plaintiffs' second piece of evidence. Plaintiffs cite to Senator Mitchell's remarks that "If I were the U.S. Secretary of State, I would want to be sure that no American ally or trading partner is saddled with U.S. wastes it does not want or does not have the capacity to handle in an environmentally sound manner." 130 Cong. Rec. 20816 (1984). Although these remarks were again made in reference to RCRA's waste export provision, plaintiffs attempt to link them to RCRA's remedial provision. But only a few paragraphs earlier in his statements directed explicitly to RCRA's citizen suit provision, Senator Mitchell reveals the domestic focus of his argument over that provision: "Only EPA can sue to abate an imminent hazard.... In light of the thousands of known hazardous waste sites across this country, this simply does not make sense.... Citizen suits to abate imminent hazards can expand the national effort to minimize these very real threats to our well being." Id. at 20815 (emphasis added).
Lacking even the evidence cited above as effective support for their position, plaintiffs have produced virtually no evidence in the legislative history to support their view and thus cannot meet even the lower standard of evidence required under Leasco.[8]
b. Structure and Language of RCRA
Plaintiffs concede that nothing in RCRA suggests that Congress intended for its *675 regulatory provisions to apply extraterritorially and that RCRA's "substantive" provisions "clearly do not apply abroad." See Pltfs. Mem. at 24 nn. 12-13. Yet plaintiffs nonetheless contend that the citizen suit provision of RCRA should be applied extraterritorially. In particular, plaintiffs maintain that two aspects of RCRA, its export provision, 42 U.S.C. § 6938, and the use of the term "any person" in its citizen suit provision, 42 U.S.C. § 6972 support their view.
Yet plaintiffs adduce little evidence to bolster their position. Plaintiffs allege repeatedly that the citizen suit provision and the export provision were passed as part of a single bill, the Hazardous and Solid Waste Amendment of 1984. Even if they were passed at the same time as plaintiffs allege, the two provisions, as noted above, were certainly discussed separately, with a domestic emphasis attached to the remedial provision. Moreover, as defendant notes, the export provision and citizen suit provision were in fact just two of over 60 RCRA amendments passed simultaneously, addressing numerous topics as varied as land disposal practices, ground water monitoring and regulation of underground storage tanks. See Hazardous and Solid Waste Amendments of 1984, Pub.L. No. 98-616, 1984 U.S.Code Cong. & Admin.News (98 Stat.) 3221.
As for plaintiffs' second argument, the use of the term "any person" in RCRA's citizen suit provision without more cannot be said to establish RCRA's extraterritorial applicability. This is especially so when, as defendant notes, other portions of the citizen suit provision itself reflect a domestic focus. Thus, for example, the citizen suit venue provision contained in section 6972(a)(1) provides that a citizen suit "shall be brought in the district court for the district in which the alleged endangerment may occur." RCRA contains nothing prescribing a venue for citizen suits concerning waste located in a foreign country.[9] Similarly, section 6972(b)(2) provides that no citizen suit may be commenced until 90 days after the plaintiff has given notice of the endangerment to "the State in which the alleged endangerment may occur" and that a citizen suit cannot be commenced if the "State"[10] has undertaken action to address the alleged endangerment. As with the venue provision, had Congress intended the citizen suit provision of RCRA to apply extraterritorially, it would have spoken to the question of what pre-suit notice would be required for waste located in the territory of another nation and would have addressed the effect on a citizen suit of a suit pending in that nation.
Also damaging to plaintiffs' position is defendant's citation of several other provisions of RCRA that tend to show that in adopting the statute, Congress was concerned with hazardous waste problems in the United States, not in foreign countries. For example, defendant notes that the first section of RCRA, setting forth the findings of Congress with respect to the issues that RCRA was passed to address, characterizes the problem of waste disposal as "a matter national in scope and concern." 42 U.S.C. § 6901(a)(4). Among the congressional findings is that "alternatives to existing methods of land disposal must be *676 developed since many of the cities in the United States will be running out of suitable solid disposal sites within five years unless immediate action is taken." 42 U.S.C. § 6901(b)(8).
In addition, defendant notes that RCRA contains a number of provisions designed to limit the statute's encroachment on state sovereignty, but contains no parallel provisions protecting the sovereignty of other nations. For example, before commencing an action to redress "an imminent and substantial endangerment to health or environment," the administrator of the EPA must provide notice to "the affected State." 42 U.S.C. § 6973(a); there is no analogous provision requiring notice to the appropriate authorities in a foreign country.
Having examined the relevant legislative history and the structure and language of RCRA, this Court is unpersuaded by plaintiffs' claims.[11] Since there is little if any evidence to support plaintiffs' contention that Congress desired RCRA to apply extraterritorially,[12] this Court must decline to apply the statute in the instant case.[13]
Conclusion
For the above stated reasons, plaintiffs' First Claim for Relief (Alien Tort Statute) and Second Claim for Relief (RCRA citizen suit provision) are dismissed pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). This does not affect plaintiffs' remaining claims.
SO ORDERED.
NOTES
[1] Because this Court grants jurisdiction as to the RCRA claim in the present action, plaintiffs' argument that defendant is estopped from denying jurisdiction as to the RCRA claim by its conduct in the previous proceeding before the Queen's Bench Commercial Court is moot.
[2] Principle 21, which plaintiffs aver is most explicit on the subject, states:
States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
[3] The Restatement (Third) of Foreign Relations Law § 602(2) (1987), in discussing the standards regarding "Remedies for Violation of Environmental Obligations," holds that:
[w]here pollution originating in a state has caused significant injury to persons outside that state, or has created a significant risk of such injury, the state of origin is obligated to accord to the person injured or exposed to such risk access to the same judicial or administrative remedies as are available in similar circumstances to persons within the state.
[4] Plaintiffs argue that Arabian American Oil is inapposite here because it involved the application of substantive U.S. civil rights law abroad. Specifically, because Arabian American Oil involved the potential application of Title VII of the Civil Rights Act of 1964 to the employment practices of U.S. employers with respect to U.S. citizen employees working abroad, plaintiffs acknowledge that the extraterritorial application of U.S. law in that case would have threatened fundamental concepts of international comity, such as the interest of a foreign nation in having a uniform legal system for employers and employees within its jurisdiction.
In the instant case, plaintiffs aver that no such aspect of international comity is implicated since British authorities are telling plaintiffs how to manage the waste so that further injury does not occur and if FMC were forced to remove the waste such removal would have to be in compliance with the local regulatory regime for disposal. Thus plaintiffs maintain that British substantive law would control.
[5] Defendant also maintains that the conduct test is inapplicable to the instant case. Defendant avers that the conduct test is not applicable here because RCRA's imminent and substantial endangerment provision is not triggered by conduct that is proscribed by the statute. The imminent and substantial endangerment provision may apply irrespective of whether there has been a violation of RCRA. Defendant maintains that so long as a solid or hazardous waste is causing or may cause an imminent and substantial endangerment, any person who has contributed or is contributing to the handling, storage, treatment, transportation or disposal of that waste may be required to abate the endangerment, regardless of negligence or violation of RCRA. See 42 U.S.C. § 6972(a)(1)(B). Stated simply, defendant's point here is that the imminent and substantial endangerment provision is not triggered by conduct but by the existence of a condition of endangerment that exists entirely oversees and thus FMC's conduct cannot give rise to a cause of action under RCRA.
Because the Court today rules that plaintiffs have not even met the lower threshold of congressional intent required under Leasco prior to extraterritorial application of a statute, the Court does not reach the question of whether the conduct test or more general principles of statutory construction articulated in Arabian American Oil should control.
[6] These statements notwithstanding, plaintiffs apparently believe that under the conduct test courts may apply U.S. law extraterritorially without any evidence of congressional intent to do so. Under Leasco it may be true that when significant conduct occurs in the U.S. "a statute cannot properly be held inapplicable simply on the ground that, absent the clearest language, Congress will not be assumed to have meant to go beyond the limits recognized by foreign relations law." But the Leasco court also noted that "it would be equally erroneous to assume that the legislature always means to go to the full extent permitted. This is a question of the interpretation of the particular statute...." See Leasco, 468 F.2d at 1334. Thus, while the threshold might be somewhat lower under the conduct test, plaintiffs cannot escape scrutiny into congressional intent by their reliance on Leasco and its progeny.
[7] As is further addressed infra, this Court does not find any evidence to support the proposition that the export provision and the citizen suit provision were meant to be linked in the manner that plaintiffs suggest.
[8] In addition, it should be noted that defendant has cited considerable legislative history supporting the view that Congress intended an entirely domestic focus for RCRA's citizen suit provision. See, e.g., H.R.Rep. No. 1491, 94th Cong., 2d Sess. 69, reprinted in 1976 U.S.Code Cong. & Admin.News 6238, 6307; H.R.Rep. No. 198, 98th Cong., 2d Sess. 53, reprinted in 1984 U.S.Code Cong. & Admin.News 5576, 5612; H.R.Conf.Rep. No. 1133, 98th Cong., 2d Sess. 117-119, reprinted in 1984 U.S.Code Cong. & Admin.News 5576, 5688-5690.
Also probative of congressional intent with respect to RCRA's citizen suit provision is a proposed amendment to RCRA called the "Waste Export Control Act" ("WECA"), S. 2598, 100th Cong., 2d Sess., 134 Cong.Rec. S8809-10 (daily ed. June 29, 1988) made by Senator Kasten. The avowed purpose of this bill (which was not enacted) was to amend RCRA to require that waste exported from the United States to other nations be disposed under export permits which would have provided for compliance with standards at least as strict as those under RCRA. One of the proposed findings of the bill was that "existing Federal laws do not provide for any review by the United States of the effects of its exported wastes on the environment of the countries to which the waste is sent." S. 2598, 100th Cong., 2d Sess. § 2(a)(4) (1988). While plaintiffs find this language irrelevant to this case, the Court finds it probative of the fact members of Congress considered that RCRA in its present form does not reach waste located in another country.
[9] Plaintiffs' efforts to dismiss this argument are unpersuasive. Plaintiffs cite several patent cases for the proposition that a claim does not fail solely because a particular venue provision is inapplicable. However, the cases plaintiffs cite address the question of whether a venue provision should be applied so as to "oust the federal courts of a jurisdiction clearly conferred on them by Congress." Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706, 710, 92 S.Ct. 1936, 1939, 32 L.Ed.2d 428 (1972). Here the inquiry is a more basic one: whether Congress clearly intended to create a cause of action with respect to waste located overseas. On this issue, the Supreme Court has indicated that the inapplicability of a statutory venue provision is probative of a lack of congressional intent to apply a statute abroad. See Arabian American Oil, 111 S.Ct. at 1234.
[10] "State" is defined in section 6903(1) specifically to include only "any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands."
[11] It should be noted that both plaintiffs and defendant have articulated a number of policy arguments to support their respective positions. While plaintiff does argue convincingly that applying RCRA extraterritorially in the instant case would not foster international conflict but would likely promote international harmony and help alleviate foreign fears about United State waste exports, defendant has also argued persuasively against the application of RCRA on policy grounds. Stated simply, defendant posits a number of scenarios wherein extraterritorial application of RCRA could create awkward foreign relations difficulties. Thus, for example, under plaintiffs approach any time a foreign government consented to the import of a hazardous waste, foreign citizens who objected to their government's decision could sue in this country to have the waste removed.
[12] This court also notes that while no commentators have given extensive examination to the question of whether RCRA applies extraterritorially, those who have considered the question concur that RCRA's provisions in general and the citizen suit provision in particular, do not apply to waste located abroad. See Handley, Hazardous Waste Exports: A Leak in the System of International Legal Controls, 19 Envtl.L.Rep. (Envtl.L.Inst.) 10,171 (1989); Johnson, The Basel Convention: The Shape of Things to Come for United States Waste Exports?, 21 Envtl.L. 299 (1991); Comment, United States' Waste Export Control Program: Burying Our Neighbors in Garbage; 40 Am.U.L.Rev. 885 (1991); Note, Third World Nations are Down in the Dumps: The Exportation of Hazardous Waste, 16 Brooklyn J. Int'l L. 311 (1990).
[13] Because the Court dismisses the RCRA claim on defendant's 12(b)(6) motion, the issue of what damages may be recovered under RCRA's citizen suit provision is mooted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612133/ | 745 F.Supp. 1142 (1990)
Priscilla Sherk EAST, etc.
v.
UNITED STATES of America.
Civ. No. B-87-3092.
United States District Court, D. Maryland.
September 5, 1990.
*1143 *1144 James A. Hourihan, and Terri A. Steinhaus, Washington, D.C., for plaintiff.
Breckinridge L. Willcox, U.S. Atty., and Susan M. Ringler and Ira L. Oring, Asst. U.S. Attys., Baltimore, Md., for defendant.
WALTER E. BLACK, JR., District Judge.
Plaintiff Priscilla Sherk East, individually and in her capacity as the personal representative of the estate of her deceased husband, Senator John Porter East, brings this medical malpractice action asserting negligence, wrongful death, and loss of consortium against the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq.[1]
In essence, plaintiff alleges that doctors employed by the United States negligently failed to timely diagnose and adequately treat Senator East for hypothyroidism[2] proximately causing the Senator to suffer a severe depression and, ultimately, to take his own life on June 29, 1986.
This case was tried to the Court from March 12, 1990, through May 3, 1990. Following the submission of post-trial briefs, the Court heard closing argument on July 17, 1990. This Opinion constitutes the Court's findings of fact and conclusions of law under Rule 52(a) of the Federal Rules of Civil Procedure.
I
At the time of his death, John Porter East was fifty-five years old and the junior senator from the state of North Carolina.
Born on May 5, 1931, in Springfield, Illinois, Senator East had one sibling, Lawrence J. East, who was two years older. His brother suffered from depression and committed suicide in 1966 at the age of 37.
Senator East graduated from Earlham College in 1953 and married Priscilla Sherk East later that same year. In 1955, after two years of military service as a Lieutenant in the United States Marine Corps, Senator East contracted acute poliomyelitis, which deprived him of motor function in his lower extremities, pelvic girdle, and abdominal muscles. After spending time in physical rehabilitation and therapy in Peoria, Illinois, and Warm Springs, Georgia, for the polio, Senator East attended University of Illinois Law School where he excelled academically, placing first in the law school moot court competition and serving as President of the Law Review. After graduating with his law degree in 1959 and practicing law for a little over a *1145 year, Senator East returned to school, receiving a Masters degree and his Doctorate in political science from the University of Florida at Gainesville in 1962 and 1964, respectively.
In 1964, Senator East accepted a position as Assistant Professor of Political Science at East Carolina University in Greenville, North Carolina. Senator East subsequently became a full professor and remained in that position until his election to the Senate in 1980.
Not long after arriving in Greenville, North Carolina, with his wife and two daughters, Senator East became active in Republican politics. During the years from 1965 to 1980, Senator East ran twice unsuccessfully for a seat in the United States House of Representatives, served as an elected member of the Republican National Committee, and participated in the 1976 Republican Convention in Kansas City as a delegate and member of the Platform Committee.
With the backing of North Carolina's senior senator, Jesse Helms, and his political organization, the Congressional Club, Senator East narrowly defeated the incumbent senator in the 1980 general election to become the junior senator from North Carolina. A leading intellectual in the conservative movement and an early supporter of President Reagan, Senator East gained a high profile in the Senate focusing on controversial social issues including abortion, desegregation, and the proper role of the federal judiciary in the United States political system.
With respect to his medical history, from January, 1965, until April, 1983, Senator East's primary care physician was Dr. Donald Tucker, an internist and family friend in Greenville, North Carolina. From April, 1983, to the Senator's death in June, 1986, Dr. Tucker consulted on several occasions with Senator East's government doctors and continued to monitor his care, seeing the Senator during his periodic trips back to North Carolina. Between 1981 and 1986, Dr. Tucker considered himself to be Senator East's personal physician in Greenville.
Under Dr. Tucker's care, Senator East had chronic complaints of constipation which Dr. Tucker attributed to physical inactivity and immobility due to his polio. Having used crutches to walk since contracting polio, Senator East developed shoulder problems in the 1970's which confined him, for the most part, to a wheelchair.
After his election to the Senate in 1980, Senator East had available to him a wide range of medical services through the Office of the Attending Physician ("OAP") located in the United States Capitol.[3] However, during his first two years in the Senate, Senator East used the services of the OAP only for a few minor health problems.
From 1980 to the end of 1982, Senator East continued to see Dr. Tucker, who administered his yearly physical examinations. During this time period, Senator East complained of trouble sleeping and of tension and anxiety which he related to stress from his new job in the Senate. Senator East also had borderline high blood pressure. Dr. Tucker recommended lowering his salt intake and trying relaxation and biofeedback techniques and prescribed Valium for the tension and anxiety.
On April 15, 1983, Dr. Freeman H. Cary, the Attending Physician of the United States Congress, saw Senator East during an office visit. Dr. Cary's progress note reflects that Senator East had an elevated blood pressure which was thought to be related to job stress. After a prolonged conversation, Dr. Cary scheduled a complete physical examination for five days later.
On April 20, 1983, Dr. Cary performed a complete physical examination of Senator East and effectively replaced Dr. Tucker as the Senator's primary care physician. Dr. Cary's notes from the examination state that it was prompted by the Senator's problem *1146 with hypertension, which the Senator attributed to stress from moving from a college atmosphere to the United States Senate. In addition to elevated blood pressure, the laboratory tests from the examination indicated abnormally high levels of liver enzyme activity, elevated cholesterol, and a slightly abnormal electrocardiogram ("EKG").
Dr. Cary treated Senator East's hypertension with medication and referred him to Dr. Stan Benjamin, a gastroenterologist, for evaluation of the elevated liver enzymes. In his consultation report, Dr. Benjamin could not determine the etiology of the elevation in liver enzymes and recommended that follow-up liver tests be performed.
After the April, 1983, physical examination, Senator East continued to complain to Dr. Cary of tension and anxiety and, in June, 1983, Dr. Cary referred Senator East to Dr. Ralph Gemelli, a psychiatrist with the Department of Psychiatry at the Uniformed Services University of the Health Sciences in Bethesda, Maryland. Senator East saw Dr. Gemelli for psychotherapy during 1983 and 1984[4] with the main focus of the sessions being the Senator's conflict over whether to seek a second term.
On June 18, 1984, Dr. Cary performed a second routine physical examination of Senator East and found the Senator's health basically unchanged. Dr. Cary's notes state that the Senator's blood pressure had been well controlled with medication, but that the Senator continued to have abnormal EKG and liver enzyme readings. The laboratory tests indicated that Senator East's cholesterol had dropped 50 points since his last physical examination.
On January 22, 1985, Senator East complained of recently feeling fatigued and listless, and Dr. Cary ordered blood tests the next day which revealed low levels of potassium and sodium. Dr. Cary prescribed a potassium supplement with plans to follow up in a week.
On January 30, 1985, Senator East complained of urinary retention, and Dr. Cary referred him to Dr. Kevin J. O'Connell, Chairman of the Department of Urology at Bethesda Naval Hospital. After a visual examination of the urethra and bladder, Dr. O'Connell diagnosed the Senator as having a partial urinary obstruction which was preventing him from urinating. On February 1, 1985, Dr. O'Connell performed a common surgical procedure called a transurethral resection of the prostate ("TURP") operation, removing the obstruction and enabling the Senator to urinate normally.
Dr. Gemelli saw Senator East during his hospitalization for the TURP operation and provided Senator East with a referral to a private psychiatrist more conveniently located to the Senator's home. Dr. Cary's progress note of March 26, 1985, indicates that Senator East was seeing Dr. Joan H. Liverman, a private psychiatrist in Alexandria, Virginia, twice a week, and that Dr. Liverman had requested an increase in the Senator's Valium dosage to control depression.
On April 20, 1985, Senator East was admitted to the psychiatric ward at Bethesda Naval Hospital in a psychotic state and placed under a suicide watch. As part of a routine battery of blood tests performed on patients admitted to the psychiatric ward at Bethesda Naval Hospital, Senator East received a thyroid function test which revealed extremely low levels of thyroid hormone. Based on the blood test results, doctors at Bethesda Naval Hospital diagnosed Senator East as having profound hypothyroidism on April 25, 1985.
After the diagnosis, a consultation with the Department of Endocrinology was ordered and Senator East began treatment for his hypothyroidism with synthetic thyroid hormone. Around the same time, he was transferred from the psychiatric ward to the Internal Medicine Service where he was placed under the care of Dr. John T. *1147 O'Brian, Chairman of the Department of Endocrinology and his staff residents. Two days after his transfer to Internal Medicine, in a psychotic episode, Senator East attempted to shove a chair leg down his throat, causing a hoarse voice but no permanent injury.
With the initiation of the thyroid replacement therapy, Senator East's physical health steadily improved. However, he continued to experience psychological problems. Senator East was discharged from Bethesda Naval Hospital in late May, 1985, and returned part-time to the Senate two weeks later. Following his discharge, Bethesda Naval Hospital doctors cared for Senator East as an outpatient, following up on his thyroid and psychological conditions. By July, 1985, Senator East's thyroid functioning had returned to normal, rendering him euthyroid.[5]
Between June and early August of 1985, Dr. Mark A. Richardson, a Navy psychiatrist, met with Senator East at Bethesda Naval Hospital for outpatient psychiatric care. During these visits, the Senator intermittently complained of feeling depressed and not his usual self. He blamed Dr. Cary for not detecting his hypothyroidism earlier and subjectively believed that his intellectual and cognitive abilities had been permanently impaired.
In July, 1985, after a Judiciary Committee meeting, the Senator's administrative assistant retrieved a notepad on which Senator East had been doodling and had written the letters M, G, M, G, W, H, T, F and M followed by blank spaces for the remaining letters of each word. The assistant interpreted the writing to refer to a quotation from the Bible: "My God, My God, Why Hast Thou Forsaken Me?".[6] Concerned that Senator East might be suicidal, the assistant along with the Senator's press secretary contacted Dr. Richardson who arranged to see the Senator the following day. Nothing further ensued from this incident.
In early August, 1985, Dr. Richardson learned that Senator East was returning to North Carolina for the summer recess. He recommended that the Senator follow up with Dr. Tucker in two weeks and continue to see a psychiatrist. Dr. Richardson scheduled a return appointment at Bethesda Naval Hospital for September 9, 1985.
On August 8, 1985, Dr. Tucker saw Senator East in Greenville for follow-up concerning his depression and thyroid functioning, noting improvement in his mental condition and no physical manifestations of hypothyroidism. Later in the summer, the Senator's mental condition became worse and Dr. Tucker referred him to Dr. Ray Evans, a psychiatrist. While not having suicidal ideations, Senator East complained of difficulty sleeping and concentrating and stated that he smelled badly. Dr. Evans treated Senator East during September, 1985, and changed his antidepressant medication.
In mid-September, 1985, Senator East announced that he would not seek a second term in the Senate because of poor health. Later that month, he was hospitalized at Pitt County Memorial Hospital in Greenville for urinary retention unrelated to his hypothyroidism.
Senator East returned to Washington, D.C., in October, 1985, missing his previously scheduled appointment with Dr. Richardson. Senator East did not try to recontact Dr. Richardson again, despite efforts by Dr. Richardson to get in touch with him.
Senator East returned to work at the Senate on October 8, 1985. During the fall of 1985, he was obsessed with his mental health and his subjective belief that his intellectual and cognitive abilities had been permanently impaired. Objectively, however, to his close aides and the doctors who saw him, Senator East did not seem intellectually or cognitively impaired at all.
On October 22, 1985, Senator East had a blood sample taken at the OAP. The following day, when there was an inconsistency *1148 between the test results as reported by the OAP and Bethesda, Senator East angrily confronted Dr. Cary, accusing him of being incompetent and ruining his career.[7] After this exchange, he never saw Dr. Cary again.
Shortly after the encounter with Dr. Cary, Dr. O'Brian saw Senator East and recommended he receive psychological testing to dispel his doubts concerning his cognitive ability. Senator East rejected Dr. O'Brian's recommendation. Senator East requested the name of an endocrinologist in order to obtain a second opinion, and Dr. O'Brian recommended Dr. John Canary at Georgetown University Hospital.
Dr. Canary monitored Senator East's thyroid functioning in November and December, 1985. In response to Senator East's complaints of intellectual and cognitive impairment, Dr. Canary recommended the name of a psychologist to perform psychological testing. Senator East did not follow up on this recommendation.
On November 18, 1985, Senator East was admitted to Georgetown University Hospital with agranulocytosis, a condition involving a low white blood cell count, which had been caused by an allergic reaction to the antidepressant medication prescribed by Dr. Evans in North Carolina. During his hospitalization at Georgetown, Senator East was treated primarily by Dr. Dudley P. Jackson. He was also seen by Dr. Canary and, because he was depressed, by Dr. Charles Tartaglia, a psychiatrist.
Following his discharge from Georgetown on December 6, 1985, Senator East asked Dr. Jackson to become his primary care physician. From December 6, 1985, until the Senator's death in June, 1986, Dr. Jackson was the only doctor to see Senator East. Because Senator East continued to complain of depression during this time period, Dr. Jackson recommended on several occasions that he see a psychiatrist, but Senator East never did.
From December, 1985, until June, 1986, Senator East returned to work in the Senate where, despite his severe depression, he managed to attend committee meetings, preside over the Senate, and vote regularly.[8] Senator East also delivered speeches and proofread the galleys for his book on the conservative movement and the political philosophy of its founders which was published after his death. Also during this time, Senator East met with members of the law firm of Hogan & Hartson in order to discuss filing a medical malpractice case against Dr. Cary and the doctors at Bethesda Naval Hospital. As late as May, 1986, a little less than a month before his suicide, Senator East taped a one-hour television interview on the C-SPAN Network during which he engaged in a detailed and extemporaneous discussion on a wide range of subjects, including his career in the Senate, the conservative political movement, the effect of having cameras in the Senate, and his decision not to run for reelection.
While Senator East continued to perform well in public, in private he was racked by insecurity and an obsessive preoccupation with his perceived intellectual and cognitive impairment. When alone with his close aides or family, Senator East would talk incessantly about his health, placing a heavy burden on those close to him. Despite urgings to the contrary by close staff members and his doctors, Senator East was convinced that he had been permanently impaired and refused to see a psychiatrist or undergo psychological testing.
In the spring of 1986, Senator East initiated contact with East Carolina University about returning as a professor of political science. On June 12, 1986, East Carolina offered him such a position and he accepted shortly thereafter.
During the week prior to Senator East's death, Mrs. East went to Wyomissing, Pennsylvania, to transport her mother to a nursing facility in Hilton Head, South Carolina, while the Senator stayed at their *1149 apartment in Alexandria, Virginia. During that week, Senator East presided over a Senate debate concerning a judicial nomination, and met with Judge Antonin Scalia who recently had been nominated to the Supreme Court.
On June 28, 1986, Senator East returned to North Carolina driven by an aide, John Petree. That night Senator East had dinner with his daughter Kathryn and a friend whom she had invited to prevent her father from rambling on about his health. They left around midnight. Sometime thereafter during the early morning of June 29, 1986, Senator East sealed himself in his garage and turned on the ignition of his car. His body, asphyxiated by the carbon monoxide, was found the next morning by Petree. On top of a trash can next to the body, there was a suicide note which read:
By failing to diagnose the hypothyroid condition in time (as they should have) the attending physician, Dr. Cary, and the Bethesda physicians ruined my health. I can't go on. I love my family so.
II
In a medical malpractice case where ordinary negligence elements are applied to medical diagnosis and treatment, the plaintiff must prove, generally through expert testimony, that there was an applicable standard of care, that the defendant breached the standard of care, and that the breach proximately caused the plaintiff's injuries. Psychiatric Institute of Washington v. Allen, 509 A.2d 619, 623-24 (D.C. 1986); Morrison v. MacNamara, 407 A.2d 555, 560 (D.C.1979).
The duty of care owed by a nationally certified doctor or specialist is measured by a national standard[9] and is generally described as that degree of care expected of other medical professionals with similar skills acting under the same or similar circumstances. Snead v. United States, 595 F.Supp. 658, 663 (D.C.Cir.1984); Robbins v. Footer, 553 F.2d 123, 129 (D.C.Cir.1977); Morrison, 407 A.2d at 561.
The degree of care and skill required of doctors in the treatment of their patients is not the highest degree of care and skill known to the profession, but that reasonable degree of care and skill which doctors ordinarily exercise in such treatment. MacGuineas v. United States, 738 F.Supp. 566, 571-2 (D.D.C.1990). Similarly, a doctor cannot be found liable simply because another doctor criticizes the care provided and would not have provided the same care. See Ramsey v. Physician's Memorial Hospital, 36 Md.App. 42, 49, 373 A.2d 26, 29 (Md.Ct.Spec.App.1977).
A doctor's conduct must be viewed in light of the circumstances existing at the time of diagnosis and treatment and not retrospectively. MacGuineas, 738 F.Supp. at 570-71. If a doctor exercised a reasonable degree of care and skill under the circumstances as they existed, though not as seen in perfect hindsight, then the doctor is not liable for malpractice. Id.
"To establish proximate cause, plaintiff must present evidence from which a reasonable [trier of fact] could find that there was a direct and substantial causal relationship between the defendant's breach of the standard of care and the plaintiff's injuries and that the injuries were foreseeable." Psychiatric Institute of Washington, 509 A.2d at 624.
In this case, plaintiff alleges that Drs. Cary, Gemelli, and O'Connell breached the applicable standard of care by failing to diagnose Senator East's hypothyroidism prior to his April, 1985, hospitalization at Bethesda Naval Hospital. Plaintiff further alleges that Drs. Gemelli and Cary, as well as Dr. Bartholomew T. Hogan, Chairman of the Department of Psychiatry at Bethesda Naval Hospital, breached the standard of care by failing to provide Senator East with adequate psychiatric follow-up between September, 1985, and June, 1986.
*1150 In support of the negligence claims in this case, plaintiff presented four expert witnesses. Dr. John J. Hughes, a private internist in Washington, D.C., and Dr. John J. Canary, an endocrinologist at Georgetown University Hospital, testified as to the applicable standard of care and alleged breaches of the standard of care by Dr. Cary, an internist. Dr. Canary also testified regarding the standard of care and alleged breaches by Dr. O'Connell, a urologist. Dr. Peter C. Whybrow, a psychiatrist and professor at the University of Pennsylvania School of Medicine specializing in psychiatric aspects of endocrine disorders, and Dr. James C. Cavanaugh, Jr., a forensic psychiatrist at Rush-Presbyterian-St. Luke's Medical Center in Chicago, Illinois, testified concerning the standard of care and alleged breaches by Dr. Gemelli, a psychiatrist. Dr. Whybrow also testified as to alleged breaches by Dr. Hogan in failing to make attempts to get Senator East into psychiatric treatment in the fall and winter of 1985.
In defending the negligence claims, the United States also presented four expert witnesses. Dr. Lewis E. Braverman, Director of Endocrinology at University of Massachusetts Medical Center, testified as to the standard of care and professional performance of Dr. Cary. Dr. Robert T. Rubin, a psychiatrist with the Division of Biological Psychiatry at the UCLA Medical Center, and Dr. Martin B. Keller, a psychiatrist with the Department of Psychiatry at Massachusetts General Hospital, testified as to the standard of care and conduct of Dr. Gemelli. Dr. Patrick C. Walsh, Director of Urology at the Johns Hopkins University Hospital, testified concerning the standard of care and performance of Dr. O'Connell.
Resolution of the issues presented in this litigation is heavily dependent on the guidance afforded the Court by the testimony of the experts. The Court must consider each expert's professional background, his knowledge of the medical issues being addressed, the logic of his analysis of these issues, the facts upon which he based his expert opinion, and his manner and demeanor while testifying on the witness stand, particularly as it relates to his objectivity in reaching this expert opinion.
Among all of the experts, the Court found the testimony of Dr. Braverman to be the most balanced, authoritative, and persuasive. Among plaintiff's experts, the Court found Dr. Canary to be a credible witness, although his opinions gave the Court certain concerns which will be addressed later. The Court could not accord as much weight to the testimony of Drs. Cavanaugh and Whybrow and, to a lesser extent, Dr. Hughes, because of their overzealous, one-sided advocacy on behalf of plaintiff, a stance more appropriate for trial counsel than the witnesses. Defendant's remaining experts, Drs. Rubin, Keller, and Walsh, were of assistance to the Court on certain narrower issues in the fields of psychiatry and urology.
Dr. Lewis E. Braverman is an endocrinologist[10] specializing in problems related to the thyroid gland and is recognized as one of the leading clinical thyroid specialists in the country. From 1983 to the present, Dr. Braverman has been co-editor of The Thyroid, a widely used and respected reference textbook for diseases of the thyroid often referred to as the Bible of thyroid disease. In addition, Dr. Braverman serves as editor-in-chief of The Journal of Clinical Endocrinology and Metabolism, a leading clinical research journal published by the American Endocrine Society, and co-editor of the Yearbook of Endocrinology with responsibility for the section on the thyroid. The Yearbook abstracts the most important articles in endocrinology each year.
Dr. Braverman received his B.S. from Harvard College and his M.D. from Johns Hopkins University School of Medicine. He received training in internal medicine at various components of Harvard's teaching hospitals and specialized in endocrinology *1151 and the thyroid as a research fellow at Harvard Medical School.
After a period of service at Tufts Medical School, in 1975, Dr. Braverman moved to the University of Massachusetts Medical School where he established a division of endocrinology and metabolism and serves as its director. He is also Chairman of the Nuclear Medicine Department and Professor of Medicine, Nuclear Medicine, and Physiology.
Dr. Braverman's current responsibilities include clinical care of patients, many of whom suffer from hypothyroidism, research concerning thyroid disorders, and teaching and training of medical students, internal medicine residents, and endocrinology fellows. Dr. Braverman also periodically serves as an attending physician on the internal medicine ward at the University hospital. Dr. Braverman estimated that he has seen between seven and ten thousand patients with hypothyroidism since 1960.
The Court notes that Dr. Braverman has never testified before as an expert witness. The Court found him to be an eminently qualified expert on diseases of the thyroid and hypothyroidism in particular.
Because of the technical nature of the subject matter of this trial, it is appropriate at the outset to review some of the medical background related to hypothyroidism, its signs and symptoms, and its diagnosis. While the Court gained its understanding of these matters largely through the testimony of Dr. Braverman, the testimony of other experts on these general subjects was not inconsistent except in those respects that are specifically addressed.
The thyroid gland is located in the middle of the neck above the Adam's apple and is controlled by the anterior pituitary gland which is located just below the brain. The pituitary, in turn, is connected by a stalk to the hypothalamus which is part of the brain. The hypothalamus secretes a hormone[11] called TRH or thyrotropin releasing hormone. TRH stimulates the anterior pituitary gland to synthesize and secrete thyrotropin, which is also called TSH or thyroid stimulating hormone. TSH then in turn stimulates the thyroid gland to bring iodine into the thyroid. Through a variety of metabolic processes, the thyroid synthesizes a thyroid hormone called T4 and secretes it into the blood stream where most of the T4 is converted into T3 by an enzyme which removes one of its four iodine molecules. Finally, unbound or free thyroid hormone enters the body's peripheral tissues and cells, stimulating the body's metabolism.
The amounts of thyroid hormone are carefully regulated within a healthy person. If there is not enough thyroid hormone in the blood, the pituitary gland will increase production and release TSH in order to stimulate the thyroid to produce more thyroid hormone. Where a person consistently lacks sufficient thyroid hormone circulating in the body, causing the person's metabolism to slow down, the condition is described as hypothyroidism. In primary hypothyroidism, as here, the thyroid gland does not produce adequate T4 hormone which, in turn, causes the pituitary to secrete increased amounts of TSH. The abnormal thyroid does not respond to the increased TSH. A patient with hypothyroidism, therefore, will present with a high TSH level and low T3 and T4 thyroid hormone levels.
Dr. Braverman describes four major causes of hypothyroidism or an underactive thyroid. The first two are caused by thyroid surgery or radioactive iodine treatment. The third cause is Hashimoto's thyroiditis,[12] an autoimmune disease in which the thyroid, over a course of many years, is invaded by lymphocytes, small white blood cells, which induce the destruction of the thyroid's mechanism for making thyroid hormone. Based on testimony which relied on the autopsy, the Court finds that Senator East's hypothyroidism most likely was *1152 caused by Hashimoto's thyroiditis. The fourth cause of hypothyroidism is unknown; the thyroid gland simply atrophies and disappears.
Hypothyroidism is primarily a woman's disease; it occurs in approximately eight to nine women for each man, typically in women over the age of 60. Most patients with hypothyroidism or thyroid disease have a relative who has thyroid disease.
Because it is so gradual in onset, hypothyroidism due to Hashimoto's thyroiditis can be very confounding and difficult to diagnose.[13] According to Dr. Braverman, patients with hypothyroidism often complain of fatigue, excess sleeping, and weight gain. They also may complain of dry skin, some puffiness, and fluid retention.
Plaintiff introduced an exhibit listing signs and symptoms[14] of hypothyroidism and used this list in questioning expert witnesses about the diagnosis of hypothyroidism. See Plaintiff's Exhibit No. 64. The exhibit contained the following signs and symptoms which were not ranked by importance: dry skin, loss of outer third of the eyebrows, coarseness or loss of hair, hoarse voice, elevated liver enzymes, delayed deep tendon reflexes, hyponatremia (low sodium), hypokalemia (low potassium), EKG changes, constipation, tension, anxiety, depression, marked increase in cholesterol level, bradycardia, cold intolerance, carotenemia, puffy face or edema, hearing problems, inability to concentrate, psychosis, fatigue, weight gain, slow or slurred speech, and insomnia or sleep difficulties.
In reviewing this list, Dr. Braverman testified that elevated liver enzymes are not common in patients with hypothyroidism and are not mentioned in the chapter on the liver in his textbook, The Thyroid. He further testified that neither tension nor anxiety are listed in the major textbooks on thyroid disease as major symptoms of hypothyroidism. Finally, Dr. Braverman testified that insomnia is a rare symptom in patients with hypothyroidism and that normally, hypothyroid patients sleep too much.
Dr. Braverman also testified that plaintiff's exhibit omitted one of the common symptoms of hypothyroidism: general muscular aches and pains. The Court accepts and adopts Dr. Braverman's assessment of the signs and symptoms of hypothyroidism as the findings of the Court.
A. Failure to Diagnose
1. Dr. Cary
The Court first will address whether Dr. Cary breached the applicable standard of care by failing to diagnose Senator East's hypothyroidism sometime between April, 1983, and April, 1985. As Senator East's primary care physician during this time period, Dr. Cary was responsible for coordinating Senator East's overall care, including information obtained from specialists such as Drs. Benjamin, Gemelli, and O'Connell, and consulting physicians such as Dr. Tucker.
The primary issue for the Court is whether Dr. Cary should have ordered a thyroid function test in the exercise of reasonable medical care sometime prior to the Senator's hospitalization in April, 1985. All of the experts agree that the standard of care for internists from 1983 to 1985 did not require that an internist perform a thyroid function test as part of a routine physical examination of an outpatient.[15]
Plaintiff's argument that the thyroid function test was inexpensive and simple to administer misses the point. There are hundreds of simple, inexpensive tests that internists could potentially order on a patient. The medical profession has weighed the costs and benefits in deciding which *1153 tests should be part of a routine examination and which ones should await a doctor's diagnosis based on a patient's presentation.
In diagnosing any medical illness, a doctor has access to three categories of information. First, the doctor receives information directly from the patient. This includes complaints made by the patient, the doctor's own observations and examination of the patient, and complaints or observations made by the patient to other doctors which are communicated to him. Second, the doctor obtains information from any laboratory tests that are ordered. Third, the doctor may receive information from third parties, such as friends or relatives of the patient.
Briefly, with respect to the third information category, the Court finds that plaintiff presented no evidence that she or any other relative or friend of Senator East communicated any information to Dr. Cary or the other government doctors that would have aided in their diagnosis of hypothyroidism prior to April, 1985. Mrs. East's sole contact with Dr. Cary was in July, 1983, when she spoke to him about her husband's urinary tract infection. According to her trial testimony, she attended only one session with Dr. Gemelli and did not discuss any signs or symptoms of hypothyroidism. While Mrs. East and several other plaintiff witnesses testified that they observed physical changes in Senator East from 1983 to 1985, there is no evidence that they communicated any such observations to Dr. Cary or any other government doctor.
In addressing the first information category concerning what Dr. Cary knew about Senator East's health from direct contact with him, it is instructive to review Dr. Tucker's observations of Senator East in 1982, just prior to the time Dr. Cary replaced Dr. Tucker as the Senator's primary care physician.[16]
In January, 1982, Senator East returned to Greenville for his annual physical examination with Dr. Tucker. Senator East complained to Dr. Tucker of sleeping problems, some nights waking up four to five times and then having trouble returning to sleep. Dr. Tucker thought these sleeping problems were due to the Senator's transition to the Senate and his new responsibilities. Dr. Tucker noticed that Senator East was experiencing "frequent twitchings of the jaw muscles," which he attributed to tension. Senator East told Dr. Tucker that he found his new job more stressful physically because of the distance between his home and his office and the required movements around the Capitol.
Senator East's blood pressure was borderline high, and Dr. Tucker recommended that he have it rechecked in Washington. Dr. Tucker also recommended that Senator East decrease his salt intake and try "relaxation and biofeedback techniques." On January 19, 1982, Dr. Tucker prescribed fifty 5 mg. tablets of Valium. Dr. Tucker relied upon Senator East to follow the recommendations testifying, "I think intelligent people you can rely on to take responsibility for following up on their potential health problems." The OAP records reveal that Senator East did not follow Dr. Tucker's recommendations.
Senator East again returned to Dr. Tucker for an annual physical examination at the end of 1982. According to Dr. Tucker, Senator East appeared pale and gaunt. Dr. Tucker noted in his records that Senator East "has controlled and eliminated anxiety which he felt last year. Did not need Valium last weeks even though more stressful than usual." An EKG taken of Senator East revealed non-specific T-wave changes. Dr. Tucker, a cardiologist like Dr. Cary, concluded that there was no evidence of any cardiac difficulty and did not feel the change should be further pursued. *1154 Dr. Tucker also was not concerned about Senator East's blood pressure of 148/80. On December 30, 1982, Senator East was seen by one of Dr. Tucker's professional colleagues, Dr. Mark Dellasega, and complained of considerable stress in the Senate.
With this background, Senator East was seen by Dr. Cary on April 15, 1983,[17] concerning the Senator's low hemoglobin, elevated blood pressure, and complaints of job-related stress which mirrored the complaints the Senator had been making to Dr. Tucker in his two prior physical examinations. In response to these complaints, Dr. Cary scheduled the Senator for a complete physical examination on April 20, 1983.
In reconstructing what Senator East told Dr. Cary in April, 1983, the Court relies heavily on the medical records and a Health History Questionnaire completed by Senator East on April 19, 1983, a day before his April 20, 1983, physical examination. While the evidence establishes that Senator East did not bring the Health History Questionnaire to the physical examination and that it was never provided to Dr. Cary or made part of the Senator's medical records, the Court finds that the Senator's responses in the questionnaire are a reliable indicator of the symptoms of which he was aware at the time and might have communicated to Dr. Cary the next day. Perhaps even more significantly, the Questionnaire indicates those symptoms that Senator East denied experiencing and thus, most likely, did not communicate to Dr. Cary. Similarly, the Court finds the medical records to be a reliable source of information with respect to Senator East's complaints. The information contained in the medical records and the Health History Questionnaire are corroborated by Dr. Cary's testimony at trial which the Court found to be forthright and credible.
Based on the medical records, the Questionnaire, and Dr. Cary's testimony, Senator East's major complaint on April 20, 1983, was tension and anxiety which he related to his job. Dr. Cary's notes from the examination indicate the major problem area as hypertension and state:
The patient states movement from the college atmosphere, where he was a full time teacher, to the United States Senate, was a type of future shock and has produced a number of stresses that he had not had before. He has recently been found to have elevated blood pressures and the physical examination was suggested because of that.
These are the same comments that Senator East had made previously to Dr. Tucker. During the physical examination, Dr. Cary did not observe or record any of the common manifestations of hypothyroidism. Dr. Cary's notes reflect examination of the Senator's skin and a negative finding.
The Health History Questionnaire corroborates the medical records and Dr. Cary's testimony. In it, Senator East reported having tension and anxiety, skin problems, periodic difficulty relaxing, periodic problems at work, periodic difficulty staying asleep, and high blood pressure. With the exception of skin problems, which Dr. Cary reported as negative, none of these are common symptoms of hypothyroidism. Conversely, in the Questionnaire, Senator East denied having many symptoms associated with hypothyroidism, including muscle or joint pains, itching skin, difficulty concentrating or remembering, loneliness or depression, weight gain, cold intolerance, difficulty hearing, and exhaustion or fatigue.
The Court finds that in April, 1983, the only common symptom of hypothyroidism of which Dr. Cary should have been aware is constipation. Dr. Cary related the Senator's constipation to being wheelchair bound with polio and learned, after receiving medical records from Dr. Tucker, that the Senator's constipation had persisted for over 15 years. While tension and anxiety are on plaintiff's list of symptoms of hypothyroidism, the Court accepts Dr. Braverman's testimony that tension and anxiety are not major symptoms and should be low on any such list.
*1155 Plaintiff presented primarily four witnesses Mrs. East, her two daughters, and Senate aide Calvin Kirven who testified that they noticed some physical changes in Senator East consistent with hypothyroidism during the 1983 to April, 1985, time period. While the Court found this testimony unpersuasive in many respects, even if these witnesses did observe physical changes, none testified that they communicated their observations to Dr. Cary or any other government doctor. In addition, the Court did not accept plaintiff's testimony that Senator East had communicated such information to Dr. Cary or Dr. Gemelli.[18]
Accordingly, the testimony of plaintiff's witnesses is relevant only to the extent that Dr. Cary himself should have observed physical changes in Senator East. In this regard, the Court notes that it is satisfied, from the testimony of almost all of the experts, that Senator East was already hypothyroid when Dr. Cary saw him in April, 1983.[19] Unlike Dr. Tucker, who saw Senator East both before and after he was hypothyroid, Dr. Cary and the other government doctors did not have an opportunity to see Senator East before he was hypothyroid and, thus, to notice any changes.[20] Dr. Tucker, who did have this opportunity, never observed any physical changes prompting him to consider hypothyroidism, and none of the experts concluded that he violated the standard of care for not diagnosing the Senator's hypothyroidism.
Having found that no third party provided information to Dr. Cary with respect to signs or symptoms of hypothyroidism and that Dr. Cary learned very little from listening to and observing Senator East, there remains the final source of information, the laboratory test results.
In her post-trial brief and at closing argument, plaintiff emphasized the importance of the laboratory test results and asserted that Dr. Cary should have ordered a thyroid function test based on the laboratory tests alone. The Court strongly disagrees, finding no expert support for this position.
In 1983, Senator East's laboratory tests indicated hypertension, elevated liver enzymes, elevated cholesterol, and an abnormal EKG similar to the one observed in December, 1982, by Dr. Tucker.
Dr. Braverman testified authoritatively that hypertension is not a common complication of hypothyroidism and plays no role in its diagnosis. He indicated that the coexistence of the two conditions is due to the fact that a lot of hypothyroid patients are older and that older people tend to have higher blood pressure. Dr. Braverman testified that "stress unequivocally goes hand in hand with hypertension," and that the job-related stress that Senator East complained of during his April, 1983, physical examination adequately and reasonably explained his hypertension. Dr. Cary treated the Senator's hypertension with medication, returning his blood pressure to normal and lowering the Senator's pulse rate. Dr. Cary also prescribed a small 2 mg. dosage of Valium for the Senator's use in connection with his tension and anxiety.
*1156 The Court finds that elevated liver enzymes are of little value in the diagnosis of hypothyroidism and, therefore, Dr. Cary did not violate the standard of care by failing to associate the abnormal liver tests with hypothyroidism. When asked at trial, Dr. Cary candidly stated that he was unaware that elevated liver enzymes were a sign of hypothyroidism. Dr. Braverman testified that elevated liver enzymes are not common in patients with hypothyroidism and are not a good indicator of hypothyroidism. Dr. Braverman testified that in his textbook, The Thyroid, the chapter on the liver does not mention elevated liver enzymes as being associated with hypothyroidism. Dr. Braverman testified that he has never diagnosed a patient's hypothyroidism based upon elevated liver enzymes and that he normally does not perform liver function tests on his thyroid patients. Furthermore, when he has performed liver function tests on thyroid patients as part of a routine battery, most do not have elevated liver enzymes.
Dr. Cary appropriately associated elevated liver enzymes with possible hepatitis or alcohol usage and referred Senator East to a specialist in gastroenterology, Dr. Benjamin. Dr. Benjamin could not determine the etiology of the elevated liver enzymes and recommended that the liver function tests be repeated in three to four month intervals.[21] Dr. Cary admitted at trial that he failed to repeat the liver enzyme tests within the time period recommended by Dr. Benjamin, not repeating the tests until fourteen months later at Senator East's next physical examination.
While plaintiff at trial and in argument to the Court placed much emphasis on this alleged violation of the standard of care, the Court finds it to be irrelevant. There was no evidence of liver disease or other harm to Senator East as a result of the tests not being repeated earlier. Nor, according to Dr. Braverman, would repeating the tests earlier, performing a liver biopsy, or referring the Senator back to Dr. Benjamin have aided in the diagnosis of hypothyroidism. Thus, even if the failure to repeat the liver enzyme tests earlier were a breach of the standard of care, the Court finds that it did not proximately cause the alleged failure to diagnose Senator East's condition.
The third laboratory value pointed to by plaintiff is the Senator's cholesterol level. The experts all agree that an elevated cholesterol level can be a sign of hypothyroidism. When measured on April 20, 1983, Senator East's cholesterol level was 275 which placed it at the upper end of the normal range. Dr. Cary testified credibly that this was not an unusual level and that at least 50 percent of the senators had cholesterol levels in this range. Dr. Canary also testified that a study had indicated that the 275 value was lower than 86 percent of patients with hypothyroidism.
Although the 275 value was still within the normal range, Dr. Cary was concerned about the value and told Senator East that he thought his cholesterol was too high. Dr. Cary attributed the borderline high cholesterol level to the Senator's diet and advised him to modify his diet. Physicians are trained to look for the most common and obvious explanations for problems, and reasonable medical care recommends this approach. The Court finds that Dr. Cary reasonably attributed the Senator's higher cholesterol level to diet and agrees with Dr. Braverman that a thyroid function test was not required by this nonspecific laboratory value.
Finally, the 1983 physical examination revealed a flattening of the T-waves in Senator East's EKG results. Dr. Cary noted a change from a December, 1980, EKG that Dr. Tucker had sent him and called Dr. Tucker about these changes. Dr. Tucker told Dr. Cary that these changes had been present in December, 1982.
Dr. Hughes testified, and the Court accepts, that the etiology of the type of nonspecific *1157 T-wave changes exhibited by Senator East in 1982 and 1983 is, in most cases, never found. Dr. Cary, a board certified cardiologist, examined the Senator's heart and found no physical cause to explain the EKG reading. Similarly, Dr. Tucker, also a cardiologist, concluded that there was no evidence of any cardiac difficulty and did not feel the changes needed to be pursued.
Dr. Hughes testified that there are multiple possible causes for these EKG changes, including hypertension, which the Senator exhibited in 1982 and 1983. Dr. Hughes indicated that, commonly, the follow-up for a nonspecific T-wave change is another EKG, which Dr. Cary ordered at the Senator's next physical examination and which showed no changes from the 1982 and 1983 readings.
Dr. Braverman testified to a reasonable degree of medical certainty that Dr. Cary was not required to test for hypothyroidism in 1983 because Senator East presented with none of the classic signs or symptoms of hypothyroidism. The Court agrees with Dr. Braverman and finds that that the standard of care did not require Dr. Cary to order a thyroid function test in 1983.
The Court notes that Dr. Tucker had as much or more information about Senator East's health as of 1983, and plaintiff's expert internist, Dr. Hughes, testified that Dr. Tucker complied with the standard of care in all respects.
While plaintiff's experts assert that Dr. Cary never performed a differential diagnosis,[22] Dr. Braverman testified that Dr. Cary did create a problem list and formulate a plan for treating the problems. Dr. Hughes testified that Dr. Cary used a recordkeeping technique called SOAP.[23] The Court finds that Dr. Cary's diagnostic approach, while perhaps not optimal, did meet the standard of care for internists.
In the summer of 1983, Dr. Cary referred Senator East to Dr. Gemelli, a Navy psychiatrist, concerning the Senator's continuing tension and anxiety which the Senator related to his job. After about six weeks with Dr. Gemelli, the medical records indicate that the Senator's "depressive troughs" had almost totally disappeared, and he only had "occasional brief periods of tension." Dr. Cary was aware of the Senator's psychotherapy sessions with Dr. Gemelli and their progress. Dr. Braverman testified that the improvement in the Senator's depression with psychotherapy and Valium was inconsistent with what a patient with hypothyroidism would report.
From August, 1983, until the end of the year, Senator East's complaints to the OAP related primarily to urinary tract difficulties and not to any condition consistent with hypothyroidism.
From January until June, 1983, Senator East made infrequent visits to the OAP primarily to monitor his blood pressure which was well-controlled on medication. Senator East reported to Dr. Cary that he was doing "quite well" on small amounts of Valium and Dalmane.
On June 18, 1984, Dr. Cary performed a second annual physical examination. Senator East presented without any new physical or psychiatric complaints. As in 1983, there were no physical findings or complaints from Senator East consistent with hypothyroidism except for depression and constipation which, in the Senator's case, may or may not have been associated with hypothyroidism. Dr. Cary concluded in the examination record that the Senator's health remained unchanged.
As in 1983, Dr. Cary's notes in the medical records reflect examination of the Senator's skin and a negative finding. The laboratory *1158 tests revealed that Senator East's hypertension was still well-controlled, that his EKG continued to show the same abnormalities as 1982 and 1983, that the liver function tests continued to show abnormalities of undetermined etiology, and that his cholesterol level had dropped almost 50 points since 1983, from 275 to 228.
Dr. Braverman testified that the applicable standard of care for internists did not require that Dr. Cary order a thyroid function test in June, 1984, finding that Senator East still did not present with any of the classic symptoms of hypothyroidism. Dr. Braverman testified that it is very difficult to evaluate a patient for an illness where the patient relates no symptoms of that illness. The Court finds this testimony by Dr. Braverman significant and persuasive.
In reaching his conclusions, Dr. Braverman relied in part on a Post-poliomyelitis Research Survey completed by Senator East on April 22, 1984. While much shorter and less revealing than the 1983 Health History Questionnaire, in this survey Senator East identifies the presence or absence of certain symptoms in April, 1984, and, accordingly, sheds some light on what he might have told Dr. Cary in June, 1984.
In the survey, Senator East indicated that he had not noticed any new excessive fatigue or muscle aches and pains since his maximum recovery from polio. Dr. Braverman testified that excessive fatigue and muscles aches and pains are some of the major symptoms of hypothyroidism. The Court finds that Senator East did not communicate these symptoms to Dr. Cary in July, 1984.
In finding no breach of the standard of care, Dr. Braverman also referred to factors that would have made the diagnosis of hypothyroidism more difficult in 1984. He testified that the 48 point drop in Senator East's cholesterol level was a confounding factor in diagnosing hypothyroidism because a decrease of this magnitude is very unusual for a patient with progressive hypothyroidism. Most patients with progressive hypothyroidism experience an increase in their cholesterol levels. With respect to Senator East's EKG which was almost identical to the one in 1983, Dr. Braverman stated that with progressive hypothyroidism the EKG often becomes progressively worse and other signs would appear, none of which were evident in the 1984 EKG. The final confounding factor was that Senator East's depression improved with psychotherapy and Valium, as reported to Dr. Cary, which is inconsistent with hypothyroidism.
The Court finds that in June, 1984, Senator East was not presenting with the classic signs and symptoms of hypothyroidism and that the standard of care did not require Dr. Cary to order a thyroid function test at that time. Senator East's presentation in June, 1984, was as devoid of the classic symptoms of hypothyroidism as in 1983 and, in addition, included confounding factors that, if anything, made it less likely that an internist would consider hypothyroidism.
After his second physical examination in June, 1984, Senator East's contact with the OAP was extremely limited for the remainder of the year. He saw Dr. Cary twice in August, 1984, once concerning his blood pressure and anxiety and once concerning a muscle strain resulting from being lifted from the swimming pool. In September, 1984, Dr. Cary arranged regular consultations for Senator East with Dr. Gemelli, and Dr. Belmont, a staff physician at the OAP, saw Senator East for a one-hour counseling session concerning his bowel regimen. Senator East had no contact with physicians at the OAP from September 12, 1984, until January 22, 1985, when Senator East telephoned Dr. Cary, complaining of feeling "fatigued and listless recently."
In view of the Senator's previous elevated liver enzymes and past history of anemia, Dr. Cary scheduled blood examinations for the next day. The results indicated that two of the three liver function tests were returning to normal but revealed low potassium and sodium levels. Dr. Cary attributed the Senator's recent fatigue to the low potassium and sodium. He prescribed a potassium supplement and planned to repeat the potassium test in a week.
*1159 On January 30, 1985, Senator East called the OAP, complaining of urinary retention and obstruction, requesting to see a urologist. Dr. Belmont at the OAP referred Senator East to Dr. O'Connell, a urologist at the Bethesda Naval Hospital, for a consultation the same day. Dr. O'Connell evaluated Senator East and determined that a TURP operation would be necessary to remove the obstruction. Dr. O'Connell and an anesthesiologist performed a thorough preoperative evaluation and discovered that Senator East had a very low potassium level.
Dr. Cary's progress note on February 1, 1985, indicates that Dr. O'Connell delayed the surgery because of the low potassium level. The note also reflects that Senator East had been on a salt restricted diet, as well as his antihypertensive medication, and that he had not returned for follow-up since the low potassium had been discovered a week earlier. Drs. Cary and O'Connell felt that the low potassium and sodium levels were related to the antihypertensive medication, which is a diuretic, to a salt restricted diet and to excess water ingestion.
Dr. Cary failed to bring the low potassium reading to Dr. O'Connell's attention. Whether or not this was a breach of the standard of care, it was not the proximate cause of any harm to Senator East.
After the low potassium level was corrected, Senator East was deemed an excellent candidate for surgery, and on February 2, 1985, the operation was performed successfully, removing the median bar obstruction and enabling the Senator to urinate.
Upon discharge, Senator East was instructed to return to the OAP for follow-up on his electrolytes.[24] Senator East telephoned the OAP three days later to report that he was "doing quite well" and never returned for a follow-up.
Drs. Hughes and Canary testified that Dr. Cary should have ordered a thyroid function test in 1985 because of the low potassium and sodium readings, which both doctors claimed were common symptoms of hypothyroidism, and because of the Senator's complaints of fatigue and listlessness.[25]
With respect to Senator East's complaint of recent fatigue and listlessness in January, 1985, the fact that Dr. Cary recorded this complaint and described it as recent reinforces the Court's finding that Senator East had not previously complained of these symptoms. In response to the Senator's complaints in January, 1985, Dr. Cary scheduled blood tests which revealed the low electrolytes. The Court finds that Dr. Cary reasonably attributed the Senator's fatigue and listlessness to the electrolytes. Dr. Braverman testified that the diuretic and the low electrolytes, especially low potassium, could have caused the fatigue and listlessness. In addition, the fact that Senator East reported to the OAP that he was doing well three days after his TURP operation in February, 1985, supports a reasonable inference that the Senator's recent fatigue and listlessness had resolved and were not chronic symptoms consistent with hypothyroidism.
With respect to the low electrolytes, Dr. Braverman testified that low potassium and sodium are not common signs of hypothyroidism and would not have alerted a reasonable internist to order a thyroid function test. In this case, Dr. Braverman expressed the opinion that the low readings were probably unrelated to hypothyroidism because Senator East had persistently low *1160 serum sodium three months after he had become euthyroid. In September, 1985, Senator East was admitted to Pitt County Memorial Hospital for urinary problems and found to have low potassium and sodium which was ascribed to excess water intake. Dr. Braverman concluded that the low electrolytes were probably related to the diuretic and excess water intake.
With respect to other potential symptoms of hypothyroidism in 1985, they basically remained unchanged, except for the Senator's depression, which responded well to psychotherapy and Valium. The marked improvement in the Senator's condition was not suggestive of an organic illness like hypothyroidism.
With respect to the laboratory tests in 1985, Dr. Cary knew that two of the three liver function tests were returning to normal. To the extent that the abnormal liver enzymes were indicative at all of hypothyroidism, the decrease in the two tests was atypical for a progressive disease like hypothyroidism. Dr. Cary did not perform any further cholesterol test or EKG prior to April, 1985, but knew from the previous physical examination in June, 1984, that the Senator's cholesterol had decreased fifty points and that the Senator's EKG had remained basically unchanged since December, 1982. For the reasons stated in discussing the June, 1984, examination, the decrease in cholesterol and the unchanged EKG reading were not suggestive of a progressive disease and actually may have made it more difficult to diagnose hypothyroidism.
Finally, plaintiff asserts that in the October 22, 1985, confrontation between Senator East and Dr. Cary, Dr. Cary admitted that he thought of testing for hypothyroidism but never did. The Court rejects plaintiff's version of the events, finding Dr. Cary's testimony more credible. Dr. Cary testified that he apologized to Senator East and that if he had thought of thyroid disease, he would have ordered a thyroid function test. The medical record corroborates Dr. Cary's testimony in every situation where he felt a test was required, Dr. Cary performed the test, and when he felt a specialist was needed, he referred Senator East to a specialist.
For all the foregoing reasons, the Court finds that the applicable standard of care did not require Dr. Cary to order a thyroid function test prior to April, 1985. The Court finds that Senator East did not present with the classic signs and symptoms of hypothyroidism and that the few signs and symptoms that did exist were too nonspecific to require a thyroid function test. While in hindsight it is clear that Senator East was hypothyroid for a period of time prior to April, 1985, perhaps going as far back as late 1982, and while it is truly unfortunate that Senator East's hypothyroidism progressed to such an extreme stage, the Court finds that Senator East's presentation between April, 1983, and April, 1985, would not have led a reasonable internist, under the circumstances as they existed for Dr. Cary, to test for hypothyroidism.
2. Dr. Gemelli
Plaintiff also claims that Dr. Gemelli should have diagnosed Senator East's hypothyroidism some time prior to April, 1985. The issue before the Court is whether a reasonable psychiatrist under the same circumstances as existed for Dr. Gemelli would have ordered a thyroid function test.
The Court notes at the outset that Dr. Gemelli saw Senator East on the basis of a specific referral from Dr. Cary. As such, the Court finds, contrary to the testimony of plaintiff's experts, that the standard of care did not require Dr. Gemelli to repeat or reevaluate Dr. Cary's complete physical examination before addressing the symptoms for which he had been referred. The Court has previously found, in any event, that the signs and symptoms presented to Dr. Cary would not have led a reasonable internist to test for hypothyroidism.
The psychiatrist's primary responsibility is to evaluate and treat the patient's mental condition. Since many psychological problems have an organic basis, this responsibility includes determining whether *1161 there might be an organic etiology for the psychological problems. Drs. Rubin and Keller testified, and the Court finds, that the standard of care between 1983 and 1985 did not require a psychiatrist to perform a thyroid function test on all outpatients complaining of depression.[26] Rather, the standard of care required a psychiatrist to order a thyroid function test where the patient presented with signs and symptoms suggestive of an organic illness involving the thyroid. Dr. Keller testified that a psychiatrist should focus on an organic etiology where there is evidence of confused or disorganized thought processes, speech changes or incoherence, changes in physical appearance, or physical complaints.
While the Court finds that Dr. Gemelli's testimony lacked credibility in certain respects,[27] the Court believed his testimony that Senator East did not present with signs and symptoms consistent with an organic etiology for his tension, anxiety, and depression. Consistent with the Health History Questionnaire, the Post-Poliomyelitis Survey and his communications with Dr. Cary, the Court finds that Senator East did not complain to Dr. Gemelli of any physical symptoms of hypothyroidism. The Court further finds that Senator East focused on situational factors during his therapy sessions and that his mental condition improved for periods of time with psychotherapy, Valium, and changes in his environment.
These factual findings are not suggestive of an organic etiology for the Senator's psychological problems. The depression associated with an organic illness such as hypothyroidism typically is unremitting and manifests itself in excessive fatigue and other physical changes.
Dr. Gemelli first met Senator East in early July, 1983, having received a request from Dr. Cary specifically to evaluate the Senator's job-related stress. Between July and October, 1983, Dr. Gemelli met with Senator East approximately eight to ten times. Prior to their first meeting at the OAP, Dr. Gemelli reviewed the Senator's OAP chart and found the Senator's health excellent. Dr. Gemelli testified that he noted nothing unusual about the Senator's physical appearance and that the Senator's appearance never changed between June, 1983, and his hospitalization in April, 1985, nor did Dr. Gemelli ever observe any sign of intellectual impairment during this time.
Dr. Gemelli evaluated Senator East during the first three sessions and found no evidence of an organic illness. At each of these sessions, Dr. Gemelli performed a mental status examination by speaking with Senator East and observing his thought processes. Dr. Gemelli testified that Senator East was not confused and was obviously a bright and articulate person. He further testified that Senator East never complained of fatigue, lethargy, loss of memory, or difficulty concentrating, and that Senator East focused on situational factors for his tension and anxiety.
Dr. Gemelli testified that during the sessions Senator East complained of the stresses of meeting a hectic Senate schedule while in a wheelchair and was obsessed over whether to seek a second term in the Senate. While Senator East enjoyed the intellectual and debating aspects of the Senate, he found the practical and technical aspects of legislation, which comprised much of his time, tedious and boring. Dr. Gemelli felt that Senator East was afraid of becoming a quitter like his brother, who had committed suicide, and afraid of disappointing *1162 Senator Helms who had helped in his election to the Senate.
In August, 1983, there is evidence that the Senator's periodic depression remitted with environmental changes. On August 24, 1983, Dr. Dolan at the OAP recorded a telephone conversation with Senator East in which the Senator reported that under a regimen of relaxation, swimming, and rest, prescribed by Dr. Gemelli, "the depressive troughs" had almost totally disappeared, leaving only brief periods of tension and insomnia for which he was taking medication.
Upon returning after the summer 1983 recess, Senator East told Dr. Gemelli that he felt much better being back in North Carolina and that he no longer felt anxious or depressed since he had put the decision of whether to run for reelection out of his mind. Dr. Gemelli recommended continuing therapy but advised the Senator that he would have to see him at his office at Bethesda Naval Hospital rather than the OAP or provide him with a referral for a psychiatrist closer by. Senator East elected to discontinue therapy and did not contact Dr. Gemelli for about a year between the fall of 1983 and the fall of 1984.[28]
For all the foregoing reasons, the Court finds that Dr. Gemelli did not breach the standard of care by failing to order a thyroid function test sometime prior to the diagnosis of hypothyroidism on April 25, 1985. Senator East did not present with the type of depression that would be associated with an organic etiology and did not present with physical or mental symptoms suggestive of hypothyroidism. In addition, the Court notes that Dr. Liverman, a private psychiatrist, saw Senator East on fifteen occasions in the two months immediately preceding his admission to Bethesda Naval Hospital with myxedema psychosis and that plaintiff's expert, Dr. Cavanaugh, testified that Dr. Liverman did not breach the standard of care by failing to perform a thyroid function test.
While the Court need not reach this issue, the Court finds that Senator East's depression was not caused by his hypothyroidism, although the hypothyroidism exacerbated the problem. The Court finds that Senator East was suffering from two separate, but interlocking, illnesses: depression and hypothyroidism.
In support of this finding, the Court notes that Senator East's depression continued after he became euthyroid. Dr. Braverman testified persuasively that any psychological problems associated with hypothyroidism would have resolved when the synthetic thyroid hormone medication returned the Senator to a euthyroid state. The Court did not find persuasive Dr. Whybrow's testimony to the contrary, based in large part on anecdotal evidence from his article in 1969 involving two women who were cognitively impaired after allegedly becoming euthyroid. In addition, the Court notes the expert testimony that depression is genetic and that Senator East was two to five times more likely to suffer a severe depression in his life because his brother suffered a severe depression and committed suicide.
3. Dr. O'Connell
Plaintiff also claims that Dr. O'Connell, who performed the TURP operation on Senator East in February, 1985, shares responsibility for the government's failure to diagnose hypothyroidism and order a thyroid function test prior to April, 1985. Plaintiff devoted only two and one-half pages in her 115-page brief to Dr. O'Connell and only one or two statements in closing argument. The Court will give *1163 this claim similar summary treatment because it is clearly without merit.
On January 30, 1985, Senator East presented at Bethesda Naval Hospital in severe discomfort from an inability to urinate. Dr. O'Connell, Chairman of the Department of Urology at Bethesda, examined the Senator and removed a large volume of residual urine. The next day, Dr. O'Connell performed a cystoscopy, a procedure enabling him to visually examine the urethra and bladder. The cystoscopy revealed an obstruction preventing urination called a median bar deformity. On February 2, 1985, Dr. O'Connell performed the TURP operation, removing the obstruction, after which Senator East was able to urinate.
Plaintiff presented no expert testimony that the TURP operation was unnecessary or performed improperly. To the contrary, the evidence establishes that Dr. O'Connell carefully evaluated and screened the Senator for the surgery and performed the operation expertly. Plaintiff contends, however, that Dr. O'Connell, through consultation with Dr. Cary and observation of Senator East, should have suspected hypothyroidism and either ordered a thyroid function test or referred the Senator to an endocrinologist. The Court rejects this contention.
As with Dr. Gemelli, the Court notes at the outset that Dr. O'Connell was operating under a referral for a specific and, in this case, rather urgent problem. Senator East could not urinate and was in severe discomfort. It was not Dr. O'Connell's role or responsibility to do a complete physical examination and to ponder what other physical ailments Senator East may have been experiencing in his life. Dr. O'Connell saw Senator East for a specific problem which he evaluated and resolved in a professional manner.
The Court finds that the standard of care did not require Dr. O'Connell to test for hypothyroidism or refer Senator East to an endocrinologist in 1985. The Court's finding is amply supported by the testimony of defendant's expert, Dr. Patrick Craig Walsh, Director of the Department of Urology and Chief of the Brady Urological Institute at Johns Hopkins. Dr. Walsh's academic background and clinical experience are impressive, and the Court found his testimony to be persuasive and authoritative in the field of urology.[29]
Dr. Walsh testified that urinary retention is not associated with hypothyroidism and that, in his many years of practice, he has never referred a patient complaining of urinary retention to an endocrinologist based on a suspicion of hypothyroidism. He found that Senator East's problems with urinary retention were caused by his wasted abdominal musculature and the presence of a blockage. As evidence supporting this finding, Senator East was in urinary retention in late September, 1985, well after becoming euthyroid, with what doctors at Pitt County Memorial Hospital described as a bladder neck contracture and a hypotonic[30] bladder.[31]
Plaintiff's expert, Dr. Canary, an endocrinologist who has never practiced urology or performed a TURP operation, testified as a practicing physician and surgeon that Dr. O'Connell breached the standard of care in 1985; the Court did not find his testimony persuasive in this area.[32]
*1164 B. Failure to Provide Adequate Psychiatric Follow-up
Plaintiff asserts that Drs. Gemelli, Hogan and Cary breached the standard of care by failing either to provide or arrange psychiatric care for the Senator between September, 1985, and June, 1986.[33] The experts for both plaintiff and defendant agree that if Senator East had received psychiatric care during the last nine months of his life he, in all likelihood, would not have committed suicide. Based on the course of Senator East's medical treatment following his discharge from Bethesda in May, 1985, and the actions of Senator and Mrs. East during this time period, the Court finds plaintiff's assertion to be without merit.
After his discharge from Bethesda Naval Hospital in May, 1985, Senator East was seen as an outpatient by Bethesda doctors to monitor his thyroid hormone levels and to treat his depression. During the summer of 1985, Dr. Richardson saw Senator East for psychiatric follow-up on approximately ten occasions, the last time being August 5. On that date, Dr. Richardson learned that Senator East was returning to North Carolina for the summer recess. Dr. Richardson recommended that Senator East follow up with Dr. Tucker in two weeks for evaluation of his depression and scheduled a return appointment at Bethesda Naval Hospital for September 9, 1985.
Senator East missed the September appointment, remaining in North Carolina until early October. Dr. Richardson made several attempts to contact Senator East, including attempts to reach him at his office and home but never heard back from him.[34] According to Drs. Rubin and Keller, Dr. Richardson's attempts to contact and reengage Senator East for psychiatric follow-up complied with the standard of care.
While plaintiff does not allege any negligence by Dr. Richardson, plaintiff asserts that Drs. Gemelli, Hogan, and Cary violated the standard of care by failing to get Senator East back into psychiatric care after his return from North Carolina in October, 1985.
By October, 1985, as a result of his anger over their failure to diagnose his hypothyroidism earlier, Senator East had effectively fired Dr. Cary, Dr. Gemelli and the Bethesda psychiatrists. The Court finds that it would have been fruitless, and perhaps unethical, for Drs. Gemelli, Hogan, and Cary to have attempted to force psychiatric care upon Senator East, especially when the Senator was under the care of other doctors.[35] In addition, Senator East's conduct from the fall of 1985 until his death clearly demonstrates that he had decided not to seek either psychiatric care or psychometric testing. If Senator East's closest aides and private doctors, whom he trusted, could not persuade him to seek psychiatric care, there was no way that Drs. Cary, Gemelli, and Hogan would have succeeded.
During the summer and fall of 1985, Senator and Mrs. East made it clear that they were angry with Dr. Cary and the Bethesda doctors for failing to diagnose his hypothyroidism earlier. On July 22, 1985, Mrs. East told Dr. Richardson of her "rage" at Dr. Cary for not diagnosing the Senator's hypothyroidism earlier. Senator East discussed his dissatisfaction with the government doctors at least twice with his press secretary, Jerry Woodruff, and told his administrative assistant, Rick Valentine, that he felt that Dr. Cary was totally incompetent.
On October 23, 1985, when there was an inconsistency between blood test results reported *1165 by the OAP and Bethesda, Senator East angrily confronted Dr. Cary, accusing him of being incompetent and ruining his career. Senator East effectively fired Dr. Cary on that day. He never saw Dr. Cary again, expressing his anger at Dr. Cary to numerous individuals and consulting an attorney[36] to sue him.
Once referred to Dr. Canary in October, 1985, Senator East told an aide that he had no intention of returning to Dr. Cary.[37] On December 11, 1985, following his discharge from Georgetown University Hospital, Dr. Jackson noted: "The patient has asked that follow-up general care be provided by me and does not wish to return to Bethesda Naval Hospital for follow-up."
With respect to Senator East's refusal to seek psychiatric care between August, 1985, and his death, no less than six physicians recommended to Senator East that he should continue to receive psychiatric treatment for his depression or undergo psychometric testing for his perceived cognitive impairment. Dr. Jackson, who was the only doctor to see Senator East from December 6, 1985, until his death, recommended that Senator East seek psychiatric care on multiple occasions during this time period. Unfortunately, Senator East rejected the advice of all these doctors and never sought psychiatric care.[38]
As of the fall of 1985, Senator East had not been in regular treatment with Dr. Gemelli for almost a year, had never been treated by Dr. Hogan, and considered Dr. Cary incompetent.
For all the foregoing reasons, the Court finds that Drs. Gemelli, Hogan, and Cary did not breach the applicable standard of care by failing to provide or arrange psychiatric care for Senator East between September, 1985, and his death.
III
Having determined that there was no negligence on the part of the government doctors, the Court need not address the issue of whether defendant would have been liable for Senator East's suicide if negligence had been established.
This is truly a tragic case, and the Court recognizes how difficult this litigation must have been for Senator East's entire family. However, the Court has determined, after a lengthy and careful review of the testimony and exhibits, that the medical care rendered by the government doctors, while clearly not perfect, does not establish liability in this case. Judgment will be entered in favor of the defendant.
NOTES
[1] 28 U.S.C. § 1346(b) provides in relevant part that the district courts shall have exclusive jurisdiction over civil actions for money damages against the United States for personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while that employee is acting within the scope of his office or employment, where the United States, if a private person, would be liable according to the law of the place where the act or omission occurred. The parties agree that the law of the District of Columbia should apply to this case under the Federal Tort Claims Act because the alleged negligent acts or omissions by defendant occurred primarily in the District of Columbia. See also 28 U.S.C. § 2674.
[2] Hypothyroidism is a disease of the thyroid gland which causes a slowing down of the body's metabolism.
[3] The Office of the Attending Physician provides medical care and medicine to all members of Congress and the Supreme Court without charge. Patients are seen by the Attending Physician or one of several staff physicians.
[4] While plaintiff contends that Senator East saw Dr. Gemelli continuously from September, 1983, through January, 1985, defendant asserts that Senator East voluntarily discontinued treatment with Dr. Gemelli for one year from the fall of 1983 to the fall of 1984 and terminated their therapy sessions in October, 1984.
[5] Physicians refer to a patient whose thyroid functioning has returned to normal after treatment as being euthyroid.
[6] The quotation refers to Jesus Christ's cry of anguish to God while on the cross. Matthew 27:46; Mark 15:34.
[7] Plaintiff contends that Dr. Cary admitted at that time that he had thought of doing a thyroid test but had not done so. Defendant disputes this contention.
[8] From January 21 to April 25, 1986, Senator East had a 100 percent voting record.
[9] Robbins v. Footer, 553 F.2d 123, 129 (D.C.Cir. 1977) (national standard of care applies to nationally certified specialists); Morrison, 407 A.2d at 565 (national standard of care applies to nationally certified physicians and other health care providers).
[10] Endocrinology is a subspecialty of internal medicine concerned primarily with glands and internal secretion.
[11] A hormone is a protein secreted by an endocrine gland into the bloodstream that acts on other tissues in the body.
[12] Hashimoto's thyroiditis is the major cause of hypothyroidism in patients from the United States who do not have surgery or radioactive iodine treatment.
[13] Dr. Hughes, plaintiff's expert, testified on cross-examination that hypothyroidism is difficult to diagnose in its early stages because the symptoms are subtle, varied and nonspecific.
[14] Dr. Hughes testified that "signs" describe what the doctor observes while "symptoms" describe the patient's complaints. He further testified that a certain condition might be both a sign and symptom where the doctor's observations and the patient's complaints coincide.
[15] The experts also testified that thyroid function tests are not routinely ordered on outpatients today.
[16] In December, 1980, Dr. Tucker provided Dr. Cary with a summary of the Senator's medical history and copies of his recent EKG and other laboratory test results. After Dr. Cary's first physical examination of Senator East, Dr. Cary called Dr. Tucker and discussed the examination, in particular, the slightly abnormal EKG reading, hypertension, and the abnormal liver function tests. Dr. Tucker communicated his findings from Senator East's physical examinations in 1982 and mailed information to Dr. Cary concerning the Senator's hypertension and abnormal liver function tests.
[17] The visit of April 15, 1983, was the first contact Senator East had with Dr. Cary, except for a brief visit in October, 1982, relating to an eye infection.
[18] For example, Mrs. East initially testified that she did not discuss with her husband the complaints that he made to Dr. Cary at the April 20, 1983, physical examination. However, the next day, Mrs. East changed her response to the same question, testifying that she knew from discussion with Senator East that he had told Dr. Cary about "his stressfulness and fatigue." As another example, Mrs. East testified at trial during direct examination that she was only present at the last session with Dr. Gemelli while, in deposition, she testified that she was present at 15-20 sessions. When confronted with her deposition testimony on cross-examination at trial, Mrs. East testified that by "attending sessions" she meant driving her husband to the sessions and waiting in the car.
[19] The issue before the Court, of course, is not whether Senator East had hypothyroidism in 1983 or 1984, but whether the government doctors should have diagnosed it. While diagnosis is always easy in hindsight, it is often much more difficult under the circumstances existing at the time.
[20] Dr. Braverman testified that because hypothyroidism is a gradual, progressive disease, the window of time in which a doctor sees a patient is very important. He further testified that Dr. Cary did not have the opportunity to see Senator East before he was hypothyroid which made it difficult for him to detect any physical changes consistent with hypothyroidism.
[21] Dr. Benjamin issued a report on April 21, 1983, recommending reevaluation of the liver enzyme tests in six months and then, apparently, redictated a report on May 12, 1983, recommending retesting in three to four month intervals. The Court finds the discrepancy immaterial.
[22] Differential diagnosis describes the method whereby doctors list possible causes or explanations for a patient's health problem and then proceed to test and rule out the items on the list until a satisfactory explanation is found. Doctors look for possible causes that best explain a patient's signs and symptoms and, generally, attempt to rule out the most common causes or explanations first.
[23] With this technique, Dr. Hughes testified that a doctor records the following with respect to each complaint or problem area: Subject of complaint (what the patient said), Objective (what the doctor thought), Anatomic (what the doctor observed or found), and Plan (what the doctor planned to do).
[24] Electrolytes refer herein to the potassium and sodium levels.
[25] Dr. Canary also criticized Dr. Cary for failing to discuss each of Senator East's past laboratory abnormalities with Dr. O'Connell, and Dr. Hughes testified that Dr. Cary should have visited Senator East in the hospital and reviewed the hospital records. The Court rejects these criticisms. Senator East was referred to Dr. O'Connell for urological problems, and Dr. O'Connell was his primary physician during the hospitalization. Dr. Cary's role was that of a consultant; in fact, he did not have privileges at Bethesda Naval Hospital and, thus, could not admit patients, nor direct their care there. Dr. Cary did visit Senator East during the hospitalization and kept apprised of his situation through telephone conversations with Dr. O'Connell.
[26] Drs. Rubin and Keller further testified that the standard of care today does not require psychiatrists to order thyroid function tests on all outpatients complaining of depression.
[27] For example, the Court finds incredible that Dr. Gemelli could pinpoint what Senator East said at each session more than five years earlier despite having stopped taking notes during the second session in 1983. Dr. Gemelli stopped taking notes because Senator East expressed extreme concern about confidentiality and indicated he would not continue the sessions if notes were kept. Dr. Gemelli frequently discussed the Senator's health with Dr. Cary, and his prescription of medications for the Senator was reflected in the OAP's medical records. While critical of Dr. Gemelli for not keeping notes, plaintiff's experts, Drs. Cavanaugh and Whybrow, did not find that this was a breach of the standard of care.
[28] Plaintiff contends that Senator East saw Dr. Gemelli without interruption or improvement from July, 1983, through January, 1985. The medical records support Dr. Gemelli's version of the medical history. The OAP progress notes reflect a series of contacts between Dr. Gemelli and the OAP in July, August, and September, 1983, after which there are no notes of any interaction with Dr. Gemelli until September 10, 1984, when Dr. Cary describes a telephone conversation "regarding arrangements for some consultations to be held on a regular basis." Dr. Cary testified that this note referred to meetings between Dr. Gemelli and Senator East. For these reasons, the Court finds by a preponderance of the evidence that Senator East did discontinue therapy with Dr. Gemelli for a year between the fall of 1983 and the fall of 1984.
[29] Dr. Walsh is senior editor of the major textbook on urology and is also an editor of the primary urological journal. Dr. Walsh has performed between 500 and 1,000 TURP operations.
[30] Hypotonic means low muscle tone.
[31] Dr. O'Connell had advised Mrs. East in February, 1985, of the possibility of the reoccurrence of the urinary retention because of Senator East's weak abdominal musculature, as well as the small amount of blockage.
[32] For example, Dr. Canary testified that Dr. O'Connell should have attributed low temperatures experienced by Senator East during his hospitalization to hypothyroidism. Drs. Walsh and O'Connell testified that the post-operative temperature readings were quite normal for a patient undergoing constant irrigation of cold water into his bladder and that the Senator's temperature readings later returned to normal. In addition, the Court notes that plaintiff's expert internist, Dr. Hughes, found nothing wrong with the care rendered by Dr. O'Connell to Senator East.
[33] This claim was not raised in the Complaint, and Dr. Hogan was never even mentioned in the Complaint.
[34] Dr. Richardson's last entry in the medical records on November 20, 1985, states that Senator East had chosen not to call or visit the psychiatric clinic, despite being encouraged to do so while at the endocrine clinic at Bethesda Naval Hospital.
[35] The experts agreed that a doctor can not force a patient into psychiatric treatment unless the patient qualifies for involuntary commitment; they also agreed that Senator East could not have been involuntarily committed at any time in 1985 or 1986.
[36] The attorney was James A. Hourihan from Hogan and Hartson in Washington, D.C., who currently represents plaintiff in this action.
[37] Dr. Cavanaugh testified that Mrs. East had told him that as early as August, 1985, the Senator did not want to return to Dr. Cary.
[38] Plaintiff's experts testified that the private doctors who saw Senator East in the fall of 1985 and in 1986 properly discharged their duty by merely recommending either psychiatric care or psychometric testing to the Senator. Dr. Canary twice recommended to Senator East that he undergo psychometric testing but the Senator refused. Dr. Canary testified candidly that he could do no more than recommend the testing to the Senator who was competent to make his own decisions. The Court finds no basis for holding the government doctors to a higher standard than the private doctors. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612032/ | MAX SMITH AND WESTENN, INC.
v.
APPLIED CONCEPTS, INC.
No. 2008 CA 2138.
Court of Appeals of Louisiana, First Circuit.
June 17, 2009.
Not Designated for Publication
JUDE C. BURSAVICH, CARROLL DEVILLIER, Jr., Attorneys for the Plaintiffs, Appellants-Max Smith and WesTenn, Inc.
ROBERT J. DAVID, Jr., F. DOUGLAS ORTEGO, MICHELLE K. BUFORD, SUE NATIONS, Attorneys for the Defendant, Appellee-Applied Concepts, Incorporated.
Before PETTIGREW, McDONALD, HUGHES, JJ.
McDONALD, J.
The plaintiffs in a breach of contract case appeal a judgment in the Twenty-Second Judicial District Court granting summary judgment on behalf of the defendant. For the following reasons, the judgment is affirmed.
On October 22, 1999, Applied Concepts, Inc., (ACI) entered into an agreement with WesTenn, Inc. and Max Smith, the owner of WesTenn. ACI is an Ohio business corporation that manufactures electronic Bingo equipment for distribution in Louisiana and other states. Prior to the agreement, Smith was actively involved in the bingo industry in Louisiana and had a lengthy business relationship with ACI as an independent contractor. Due to a change in Louisiana law pertaining to the manufacture and distribution of Bingo equipment, ACI had to contract with a Louisiana licensed distributor to continue distributing its equipment in Louisiana and could not maintain its former relationship with Smith.
Pursuant to the agreement, ACI would pay WesTenn and Smith the sum of $2,500.00 on October 29, 1999, and issue checks in the amount of $2,500.00 on the 15th of successive months. In exchange WesTenn and Smith agreed to the following:
1. WesTenn and Smith were not to enter into any employment positions in the Bingo Industry.
2. WesTenn and Smith were not to interfere with any of ACI's business operations.
3. WesTenn and Smith agreed that information related to the Bingo Mate 2000 system was proprietary to ACI, and WesTenn and Smith agreed to hold in confidence any and all information disclosed to Smith by ACI and not to divulge this information to any third party.
4. WesTenn and Smith agreed that the information disclosed by ACI relating to its business practices in marketing the Bingo Mate 2000 was proprietary to ACI, and WesTenn and Smith agreed to hold in confidence any and all information disclosed by ACI and not to divulge this information to any third party.
Both parties honored the agreement from its inception until August 2005. In August 2005, Hurricane Katrina made landfall in Louisiana, followed shortly by Hurricane Rita. The hurricanes severely impacted the bingo industry in Louisiana. Beginning in October 2005, the monthly payment to Smith was reduced to $1,000.00. In early 2006, ACI and Smith attempted to renegotiate the terms of the contract. On March 20, 2006, Smith sent a letter to ACI's president, Frank Tedeschi, advising that he could not agree to the terms ACI wanted in the new contract. Smith indicated that he was quite comfortable with the October 1999 agreement, and was prepared to meet the obligations it contained.
In April 2006, ACI advised Smith that it intended to terminate the agreement. On June 12, 2006, counsel for ACI sent a letter to counsel for Smith, advising that while they were prepared to discuss an amicable termination of the agreement, they were not prepared to continue payments to Smith. The payments to Smith were not made after June 12, 2006.
In December 2006, Smith filed suit against ACI alleging breach of contract, bad faith failure to perform ACI's obligations, detrimental reliance, and unjust enrichment. In February 2008, Smith filed a motion for partial summary judgment on the breach of contract claims. In April 2008, ACI filed a cross-motion for summary judgment.
The motions for summary judgment were heard on June 5, 2008. After hearing, the trial court granted the defendant's motion for summary judgment, finding that the agreement at issue was a non-compete agreement, and dismissed plaintiffs' claims with prejudice. The plaintiffs appeal alleging that the trial court erred in finding that the agreement was an unenforceable non-compete agreement and in not granting the plaintiffs' claims for breach of contract.
DISCUSSION
Plaintiffs point out that ACI executed the agreement and, for six years, honored the agreements' obligations. They contend ACI now wants to be released from the obligations contained therein and is asking the court to relieve it of a bad bargain, which it is not the province of the courts to do. They maintain that legal agreements have the effect of law[1] and that freedom of contract signifies that parties to an agreement have the right and power to construct their own bargains.[2] The plaintiffs further maintain that the agreement at issue is not a non-compete agreement subject to the provisions of La. R.S. 23:921. It does not conform to the legal requirement that such contracts be limited to specified parishes or municipalities, or to other specific requirements, e.g., that the prohibition against competing be limited to a two-year period.
ACI agrees with Smith's contention that parties are free to contract; subject, however, to instances where the government places restrictions for reasons of public policy. ACI also agrees that the contract does not meet the statutory requirements for a non-compete agreement. It argues, however, that the failure to conform to the statutory requirements for non-compete agreements makes the agreement null and void from its inception because Louisiana has a strong public policy against noncompetition agreements and will only recognize ones drafted in accordance with the statute. ACI maintains that their intention and purpose in entering into the agreement with Smith was to prevent competition and interference by Smith and to prevent disclosure of confidential, proprietary information obtained by him during his business relationship with ACI.
One issue before us then, is whether the agreement at issue is a non-compete agreement that is void for failure to meet statutory requirements. The trial court found that the agreement was a non-compete agreement, and dismissed plaintiffs' claims as the agreement was not enforceable because it did not meet the requirements of La. R.S. 23:921. We note, however, several significant distinctions here from the non-compete agreements that have been examined in the jurisprudence.
Initially, we recognize Louisiana's longstanding public policy disfavoring noncompetition agreements and the jurisprudence restricting or severely limiting them as articulated by the supreme court in SWAT 24 Shreveport Bossier, Inc. v. Bond, XXXX-XXXX (La. 6/29/01), 808 So.2d 294. In SWAT 24, the court stated that the policy is based upon an underlying state desire to prevent an individual from contractually depriving himself of the ability to support himself and consequently becoming a public burden. SWAT 24, 808 So.2d 294, 298. Which brings us to the first distinction between the agreement at issue here and other non-compete agreements: the underlying basis for the public policy is not applicable. This agreement paid Smith $2,500.00 per month, so he did not contractually deprive himself of the ability to support himself. More importantly, the provisions of the agreement did not prohibit Smith from competing. As noted by the plaintiffs, both WesTenn and Smith were free to compete with ACI. In that event, however, the agreement would be terminated, and ACI's obligation to pay Smith $2,500.00 per month would be extinguished. The effect of this contractual provision, as noted by plaintiffs, is to deprive ACI of the right to injunctive relief to enforce the contract, which further distinguishes it from standard non-compete agreements.
The trial court granted ACI's motion for summary judgment, which necessitated a finding that there were no genuine issues of material fact and that ACI was entitled to judgment as a matter of law. La. C.C.P. art. 966. An appellate court's review of the granting of a summary judgment is de novo with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, XXXX-XXXX (La. 2/26/08), 977 So.2d 880, 882. All doubts should be resolved in the non-moving party's favor. Hines v. Garrett, XXXX-XXXX, p. 1 (La. 6/25/04), 876 So.2d 764, 765.
Considering the subject agreement's departures from standard non-compete agreements, i.e., the agreement to compensate the plaintiffs and the lack of a prohibition against competing, we cannot say, based on the record before us, that ACI is entitled to judgment as a matter of law. ACI argues, however, that whether the agreement is a non-compete agreement or is simply a "generic" contract, it is unquestionable that it does not have a definite term and has been lawfully terminated by ACI.
A contract of unspecified duration may be terminated at the will of either party by giving notice, reasonable in time and form, to the other party. La. C.C. Article 2024. The termination provisions of this contract provide:
C. Termination
C1. Upon the mutual agreement of ACI and the founder of WT, Mr. Max Smith.
C2. Upon the death of Max Smith.
C3. If WT or Max Smith violates any of the conditions of this agreement.
Max Smith was 67 years old at the time he entered into this agreement. It is his position that as long as he continues to fulfill the contractual obligations, the contract will continue and will end at his death. ACI maintains that even if the contract is terminable at Smith's death, Louisiana law on obligations is that lifetime contracts are treated as contracts for an indefinite term, terminable at will be either party upon giving reasonable notice, citing Jones v. Crescent City Health and Racquetball Club, 489 So.2d 381, 384 (La. App. 5 Cir. 1986). Plaintiffs maintain that in this case La. C.C. article 2024 does not apply because the parties provided for termination as stated above; therefore, the contract can only be terminated in accordance with those provisions.
Upon review of the contract, we find that the provisions regarding termination address how the agreement is terminated, not when. We note that the agreement was between ACI and both WesTenn, Inc. and Max Smith. WesTenn, Inc. would arguably have the right to continue to honor the obligations and demand payment from ACI were it not for the provision terminating the agreement upon Max Smith's death. We find that this is a contract of unspecified duration, terminable by either party in accordance with La. C. C. Article 2024. We further find that the notice in this case was reasonable.
Based on the foregoing, we affirm the judgment of the trial court granting Applied Concepts, Inc.'s motion for summary judgment and denying the motion for summary judgment of the plaintiffs. Costs of this appeal are assessed to the plaintiffs.
ACI answered the appeal asking this court to award additional costs necessitated by the appeal, including reasonable attorney's fees. We do not find the appeal to be frivolous and decline to award attorney's fees.
AFFIRMED.
NOTES
[1] Haglund v. TC Properties of Baton Rouge, L.L.C., 99-2323 (La. App. 1 Cir. 11/3/00), 770 So.2d 885, 887.
[2] Sunrise Const. & Development Corp. v. Coast Waterworks, Inc., XXXX-XXXX (La. App. 1 Cir. 6/22/01), 806 So.2d 1, 5, writ denied, 2001-2577 (La. 1/11/02), 807 So.2d 235. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612348/ | 123 So. 2d 562 (1960)
Jimmy S. DICKERSON, Appellant,
v.
ORANGE STATE OIL COMPANY, a corporation, Appellee.
No. 1810.
District Court of Appeal of Florida. Second District.
October 5, 1960.
*563 O.B. McEwan; Sanders, McEwan, Schwarz & Mims, Orlando, for appellant.
Raymer F. Maguire, Jr.; Maguire, Voorhis & Wells, Orlando, for appellee
ALLEN, Chief Judge.
The appellant, as the plaintiff in the lower court, filed a complaint on November 12, 1958, alleging that while acting and working within the scope of his employment with the Florida Department of Agriculture, he was injured as a result of defendant's negligence while performing certain work on premises owned by the defendant. The defendant answered setting up certain affirmative defenses among which were that the plaintiff's cause of action was barred by a general release executed by the plaintiff on October 28, 1955; and that plaintiff's cause of action was also barred by the statute of limitations. The defendant's motion for summary judgment was granted on the basis of the above two defenses as established by the complaint, the answer, and certain admissions by the plaintiff
The plaintiff was employed by the Florida Department of Agriculture on May 23, 1955, and on that date, while acting within *564 the course of his employment, he was injured on premises owned by the defendant. On October 28, 1955, the plaintiff, in return for the payment of $1,400, executed to the defendant a general release of any and all claims which he had arising out of the accident on May 23, 1955. The present action was instituted on November 12, 1955, by the United States Fidelity and Guaranty Company pursuant to section 440.39, Florida Statutes, F.S.A. This insurance company was the carrier for the Florida Department of Agriculture and as such was subrogated to the rights of plaintiff Dickerson under section 440.39, Florida Statutes, F.S.A. The facts are undisputed and only questions of law are presented for our determination.
The contention of the defendant in the lower court, and one of the grounds upon which the trial judge based his decision, was that section 440.39, Florida Statutes, F.S.A., creates a new cause of action in the subrogated workmen's compensation insurance carrier thus constituting a cause of action created by statute and subject to a three year statute of limitation as provided by section 95.11(5) (a). The plaintiff contended in the lower court and similarly contends before this court that section 440.39 does not create a new cause of action but merely subrogates a party who pays workmen's compensation benefits to the rights of the injured employee, and in effect the subrogated party steps into the shoes of the injured employee for the purpose of prosecuting an action against the third party tort-feasor.
This court was confronted with a related issue in United States Casualty Company for Use and Benefit of Cheston v. Town of Palm Beach, Fla.App. 1960, 119 So. 2d 800, 802, which involved an action by a subrogated insurance carrier against the city as a third party tort-feasor. Claimant was injured while acting within the scope of his employment and had received compensation benefits from his employer's insurance carrier. After the claimant failed to take any action against the city within one year from the date of his injury, the insurance carrier gave the city a thirty day notice and subsequently filed an action for damages. The lower court, in entering summary judgment for the defendant, ruled that the action was barred by section 95.24, F.S.A., which provides that no action shall be brought against any city or village for any negligent or wrongful injury or damage to person or property, unless brought within twelve months from the time of the injury.
In an opinion affirming the lower court, this court held that the claimant's cause of action accrued at the time of the accident or misfortune which caused his injury, and in regard to the subrogated insurance carrier's rights, we stated:
"The rights of plaintiff carrier under the workmen's compensation law are wholly the creature of the statute and are based upon the cause of action which the claimant had against the defendant city and subject to the limited subrogation rights under the terms and conditions set forth in section 440.39, Florida Statutes, F.S.A., Cushman Baking Co. v. Hoberman, Fla. 1954, 74 So. 2d 69. Thus the failure of the claimant to institute an action against the negligent third party within one year operates as an assignment to the carrier of the cause of action in tort. Consequently, the carrier's suit can necessarily only be upon the cause of action in tort which the claimant could have instituted. The carrier acquires only such rights as were at the time vested in the claimant. See Annotation 41 A.L.R. 2d 1044.
"Claimant's cause of action against the defendant city being one for recovery of damages for personal injuries and, therefore, subject to the one year limitation on such actions, the cause of action is not changed by the fact that the carrier is the plaintiff. The action remains as one for personal injuries to the claimant and, therefore, *565 subject to the same statute of limitations. Thus we conclude that the claimant's rights, having been barred by section 95.24, the carrier's rights, derived by operation of section 440.39 (4), are likewise barred by section 95.24. Although there apparently is no Florida decision on this point, our holding is in accord with the majority view as set forth in Annotation 41 A.L.R. 2d 1044."
The annotation in 41 A.L.R. 2d 1044, referred to in the above quote is entitled "Statute of limitations applicable to action, by way of subrogation or the like, by employer or insurance carrier against third person for injury to employee," and at page 1045 the writer of the text states:
"The weight of authority favors the rule that the statute of limitations applicable in actions for damages for personal injury, or for death, as the case may be, governs in actions by an employer or his insurance carrier who is subject to payment of compensation, against a third person for injury to, or death of, an employee, the theory usually accepted being that the employer is subrogated to the right of the employee to recover for the injury, or of the employee's representative to recover for his death.
* * * * * *
"The underlying reason for the majority rule appears to be that the cause of action is not changed by the fact that the employer or insurer is the plaintiff, the action still being one for the recovery of damages for personal injuries to or death of the employee, and therefore subject to the statute of limitations applicable to such an action.
"Generally, the courts have adhered to this rule notwithstanding the contention that it would work a hardship in that it would defeat a recovery for an employer or his insurance carrier against the third party liable for the injury or death, because he could not maintain an action against a third person until his liability for compensation had been determined, which might be after the employee's right of action or that of his representative against a third person had become barred."
Although no Florida cases are included in the annotation cases from twenty jurisdictions are cited in support of the above view. A case somewhat analogous to the instant case, and cited in the above annotation is Exchange Mut. Indemnity Ins. Co. v. Central Hudson Gas & Electric Co., 243 N.Y. 75, 152 N.E. 470, 471, wherein the court stated in regard to whether the subrogated insurance carrier's cause of action is a distinct and separate cause of action from that which could be asserted by the employee:
"Neither assignment nor subrogation confers upon a new party rights greater than those which the original party possessed."
The question with which we are concerned is discussed in Larson, The Law of Workmen's Compensation, sec. 75.10, wherein the author states:
"The question of what defenses are available to the third party turns most frequently on the underlying theoretical issue of the extent to which the subrogee's action is deemed to be derivative from and identified with the employee's cause of action. As to this issue, the first investigation must always be the exact language of the subrogation statute in the particular jurisdiction, since this will sometimes settle the issue by the choice of words used to describe the subrogation process. For example, if the statute `assigns' the employee's cause of action to the employer, as the New York statute does, it seems beyond dispute that the cause of action remains the same. But at the other extreme, if the statute, like the Wisconsin statute, merely says that the employer shall have the `right *566 to maintain an action in tort', there is room for argument that a new and independent cause of action has been created. Between these extremes are statutes using the word `subrogate' a word not quite as unambiguous as `assign' followed usually by the phrase `to the rights of the employee', which seems to support the usual holding that the cause of action remains the original employee's action. Some statutes, like those of Massachusetts and Illinois, allow the subrogee to bring the third party action in the name of the employer or in the name of the employee; but the courts of the two states appear to disagree on whether this disjunctive provision creates a statutory cause of action."
In section 75.30, Larson states in regard to the applicable statute of limitation:
"Under most statutes containing no special treatment of the question of limitations, the subrogated employer's cause of action is barred by the same statute of limitations that would have applied to an action brought by the employee or his administrator. This view has usually prevailed over the argument that the subrogee's action is a new cause of action created by statute and therefore subject to the special statute of limitations for statutory causes of action. * * * "
The employer's carrier, in Walker v. Steneck, 42 A.2d 382, 383, 23 N.J. Misc. 156, sought recovery against a third party for the employee's injuries beyond the statute of limitations which would be applicable to the employee. The court, in stating that the carrier secured its rights by virtue of the New Jersey Workmen's Compensation statute, set out the applicable portions of that statute and then dismissed the action as follows:
"* * * `When an injured employee or his dependents fail within one year of the accident to either effect a settlement with or institute proceedings for recovery of damages for his injuries and loss against the third person or corporation, the employer or his insurance carrier, ten days after a written demand on the injured employee or his dependents, can either effect a settlement with or institute proceedings against the third person or corporation for the recovery of damages for the injuries and loss sustained by such injured employee or his dependents and any settlement made or proceedings had and taken by such employer or his insurance carrier against such third person or corporation, and such right of action shall be only for such right of action that the injured employee or his dependents would have had against the third person or corporation, and shall constitute a bar to any further claim or action by the injured employee or his dependents against the third person or corporation. * * * The legal action contemplated herein above shall be a civil action at law in the name of the injured employee or by the employer or insurance carrier in the name of the employee to the use of the employer or insurance carrier, or by the proper party for the benefit of the next of kin of the employee'.
"The very wording of the statute from which the substituted plaintiff secures its rights restricts it to the right of action that the injured employee had or in other words a violation of her personal rights. It could possibly be termed statutory subrogation. The substituted plaintiff in this instance would be subject to the same defenses as were available against the injured employee and therefore the statute of limitations would be that of N.J.S.A. 2:24-2. Motion to dismiss granted."
A similar issue was presented to the court in Maryland Casualty Co. v. Ladd, 121 Kan. 659, 249 P. 687, 688, wherein an employer's workman was injured while in the course of his employment by the negligence *567 of a stranger, and the employer became liable to the workman under the provisions of the compensation act. The employer had entered into a contract with the casualty company to indemnify him against liability to his employees arising from injuries sustained in the course of their employment. The liability of the employer for the compensation to his workman was recognized, and was assumed and paid by the casualty company. Pursuant to a provision of the compensation act, that an indemnitor who has paid compensation shall be subrogated to the rights of a workman to recover damages against the wrongdoer, the casualty company brought an action against the wrongdoer by whose negligence the injury was inflicted upon the workman, alleging that the injury was the result of the wrong and negligence of the stranger, and asking damages against him. The Kansas Supreme Court held that the statute allowing the substitution of the party who had paid the indemnity did not change the nature of the liability of the stranger for the injury; that the indemnitor acquired only the right and remedies possessed by the workman; and that, since the action was one in tort to recover damages for the wrongful personal injury, it became barred in two years after the injury was inflicted. The court commented in so holding:
"* * * The plaintiff is seeking to enforce the right of action which Branson had. It was given, and had no greater or different right against Ladd than Branson had. By the substitution permitted under the statute plaintiff became entitled to the rights and remedies possessed by the injured party. Branson's only right of action was one for damages for a wrongful personal injury. The substitution placed the plaintiff in the shoes of Branson, who was entitled to recover from Ladd, not compensation, but damages, and in such an action the defendant could make any defense that would have been open to him if the action for damages had been brought by Branson, including the one that the right of action against him was barred by the statute of limitations. The substitution did not change the nature of the action nor the liability of Ladd. This liability and the fact that plaintiff acquired only the rights and remedies possessed by Branson against Ladd makes it clear that the two-year period of limitations applicable to a recovery for a wrongful personal injury is the governing limitation in this action, and hence the ruling of the district court must be affirmed."
In Fidelity & Casualty Co. of New York v. St. Paul Gas Light Co., 152 Minn. 197, 188 N.W. 265, 266, the court stated in regard to the same issue:
"* * * The provisions of the act subrogating the employer to the rights of the employee against third persons negligently or otherwise causing injury to him create no new right of action in either; such provisions serve only to place the employer who pays the compensation in the first instance in the position of the employee in respect to the remedies held against the third person. The employer thereby acquires such rights, and such rights only, as were at the time vested in the employee; nothing more, and nothing less."
The applicable portions of our own act as found in section 440.39, Florida Statutes, F.S.A., which was in effect in 1955 when the instant injury occurred is as follows:
"If the employee * * * shall accept compensation benefits under this law or begin proceedings therefor, the employer or, in the event the employer is insured against liability hereunder then the insurer, shall be subrogated to the rights of the employee * * * against such third party tort-feasor, * * *
*568 "In actions at law against a third party tort-feasor, the employee, * * * shall sue for the employee individually, and for the use and benefit of the * * * employer's insurance carrier, * * * and such suit may be brought in the name of the employee * * *, as plaintiff or, at the option of such plaintiff may be brought in the name of such plaintiff and for the use and benefit of the * * * insurance carrier, as the case may be. * * *
"If the injured employee * * * shall fail to bring suit against such third party tort-feasor within one year after the cause of action thereof shall have accrued, * * * the insurance carrier, may institute suit against such third party tort-feasor either in his own name or as provided by subsection (3) of this section, * * *"
These are the statutory provisions under which the present action was instituted in the lower court. As set forth in the facts stated the action was commenced more than three years following the date the plaintiff was injured but less than four years from that date. The language employed in the above statute "* * * the employer * * * shall be subrogated to the rights of the employee * * *" clearly indicate that the employer's right is to proceed to enforce whatever rights the injured employee possessed against the tort-feasor. It should also be noted that the employer is given the right to proceed with the action in the name of the injured employee. In view of the language of the statute and after consideration of the authorities presented herein, we conclude that the right of a workmen's compensation insurance carrier is not a new independent right created by statute. The right of subrogation is clearly a creature of statute. See Brosnahan Construction Co. v. City of Miami Beach, Fla.App. 1960, 121 So. 2d 827; Cushman Baking Co. v. Hoberman, Fla. 1954, 74 So. 2d 69, 71. After being branded subrogation by the statute, however, the subrogated workmen's compensation carrier is merely granted the right to enforce the cause of action possessed by the injured employee and the defenses which would be available to the third party tort-feasor are only those which would be available against the injured employee. We conclude, therefore, that the present action, being one for the recovery of damages on the ground of negligent causation of injuries, is subject to the four year statute of limitation. The lower court was in error in holding valid the defense of the three year statute of limitation which is applicable to liabilities created by statute.
We must dispose of a procedural question before we determine whether or not the release given by the employee precluded the employer or his carrier from instituting the suit in question.
The appellee contends that the appellant is precluded from questioning the validity of the release by failing to reply to the defendant's affirmative defense concerning the execution of the release.
Rule 1.7, F.R.C.P., 30 F.S.A., provides:
"(a) Pleadings Allowed. There shall be a complaint and an answer and there shall be a reply if the answer contains a counterclaim (set-off or recoupment) or a cross-claim. No additional pleadings, other than motions provided by these Rules, shall be allowed, except that the court may order a reply to an answer." (Emphasis added.)
Rule 1.7 is an adaptation of Federal Rules of Civil Procedure, rules 7(a) and 10(a), 28 U.S.C.A., and former Common Law Rule 8.
In Gulf Life Insurance v. Ferguson, Fla. 1952, 59 So. 2d 371, the court construed the former law rules as requiring a plaintiff to serve a reply setting forth a defense, such as waiver of estoppel, when he wished to raise such matters in opposition to an affirmative defense contained in an answer. *569 The new rule provides that there shall be no reply to an answer not containing a counterclaim or a cross-claim unless the court so orders. In the Committee Note to Rule 1.7, the following is stated:
"* * * The Committee believes and intends this change will obviate the ruling of the Supreme Court in Gulf Life Insurance Company v. Ferguson [Fla.], 59 So. 2d 371."
Although it is true, as contended by the defendant, that Rule 1.8(d) requires a party, in pleading to a preceding pleading, to set forth affirmatively certain defenses, it should be noted that Rule 1.8(e) provides that averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. The effect of these rules, read together, is that when a party is required to reply to an answer, because the answer contains a counterclaim or cross-claim or because he is ordered to reply by the court, he must set forth the affirmative defenses. If the answer does not contain a counterclaim or cross-claim, however, and the court does not require a reply to the answer, such affirmative defenses are not to be pleaded by the plaintiff and he is entitled to raise and present them at trial without having placed them in a reply or other pleading. The fact that the court authorized the plaintiff to reply did not require that he do so.
We must rule against the appellee on this procedural question.
The lower court granted summary judgment to the defendant on the ground that the release executed by the injured employee operates as a bar to the present action. The employee was injured on May 23, 1955, and executed the release on or about October 28, 1955. The present action was filed on November 12, 1958, and the defendant's answer was filed on December 4, 1958. The answer alleged: a denial of the allegations of the complaint; a plea of contributory negligence; a plea of assumption of the risk; a plea of release; and a plea of the statute of limitations pertaining to a liability created by statute. On May 11, 1959, the plaintiff was granted leave to file a replication to the defense of release within 10 days. The plaintiff filed no reply to this defense. On July 17, 1959, the defendant filed a request that within 12 days, plaintiff affirm or deny certain admissions, two of which provided:
"1. That he executed a general release in the words and figures of Exhibit A attached hereto and made a part hereof.
"2. That he received on or about October 28, 1955, One Thousand Four Hundred ($1,400.00) Dollars in consideration of said release."
Exhibit A referred to in the request for admissions is a duplicated copy of an unsigned release which has been filled in to support the allegations of the defendant. The plaintiff did not answer the request for admissions and on August 18, 1959, the defendant moved for summary judgment. The court, in entering the summary judgment in favor of the defendant, found that there was no genuine issue of any material fact as to the defenses relating to the release and the statute of limitation of a liability created by statute.
The plaintiff contends that the action, being one instituted by the workmen's compensation insurance carrier to recover its subrogated interest, is not barred by the release executed by the employee although it is conceded that the employee's release would preclude recovery of more than the insurance carrier is entitled to recover under section 440.39. There appears to be a great diversity of opinion on this question. 58 Am.Jur., Workmen's Compensation, sec. 336; 2 Larson, Workmen's Compensation Law, sec. 73.22; Annotations 19 A.L.R. 788; 27 A.L.R. 505; 37 A.L.R. 846; 67 A.L.R. 271; 88 A.L.R. 687; 106 A.L.R. 1056; 142 A.L.R. 191. Under our statute which was in effect at the time of plaintiff's injury, the right to collect compensation *570 and the right to recover against a thirdparty tort-feasor are concurrent remedies, and it is not necessary to make an election. In 2 Larson, Workmen's Compensation Law, sec. 73.22, the author states in regard to this type statute:
"The question of the effect of a release may also arise under statutes which do not put the employee to his election, since here, although it cannot be said that the employee is barred by the election doctrine, it can still be argued that he may have prejudiced the employer by impairing his subrogation rights. However, in such jurisdictions it has usually been held that the settlement impaired neither the employee's compensation rights nor the employer's subrogation rights, on the theory that the third party has constructive statutory notice of the employer's subrogation interests, and must be held to know that he cannot evade his liability to the employer as subrogee by a settlement with the employee."
The decision of the court in Sweat v. Allen, 1941, 145 Fla. 733, 200 So. 348, was based on the workmen's compensation provisions of Acts 1935, Ch. 17481, sec. 39(a), as amended by Acts 1937, Ch. 18413, sec. 14, which provided in part:
"(1) If on account of a disability or death, for which compensation is payable under this chapter, the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect by giving notice to the employer and the Commission in such manner as the Commission may provide, to receive such compensation or to recover damages against such third person. This notice must be given within thirty days from the date of the accident.
"(2) The giving of notice to accept such compensation shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person.
"(3) Such employer on account of such assignment may either institute proceedings for the recovery of such damages or may compromise with such third person either without or after instituting such proceedings, provided no compromise shall be perfected unless and until the reasonableness thereof shall be approved by a Circuit Judge of the Judicial Circuit on which the damages accrued, and no such approval shall be given until proof has been made of five days notice to the person entitled to receive compensation under this chapter." (Emphasis added.)
In the Sweat case the injured employee had an accident on January 11, 1938, and he executed a release of the third party tort-feasor on May 12, 1938. His employer sought to deny his right to compensation on the ground that the execution of a settlement and release with the third party tort-feasor by the employee constituted an election under the above statutory provisions and that such action extinguished the employer's subrogation rights against the third party. The court held that the statute did not require an employee to elect one of two inconsistent remedies and that the provision requiring the employee to give notice of his election to sue a third party was for the protection and benefit of the employer. The court concluded this issue by stating [145 Fla. 733, 200 So. 352]:
"It is our conclusion, in view of the policy of the Act and the purpose of section 39, that a negligent third party cannot, without the consent or concurrence of the employer, effect or preclude the right of the employer to the recovery of damages against him to the extent of compensation allowable by settlement with the injured workman. The wrongdoer must take notice of the rights of all, and cannot by a settlement with the injured party increase the burden of the innocent employer. *571 The statute, while protecting the workman, does so without sacrificing the rights of either the employer or the third party. The latter cannot be placed in any less favorable position, because whatever he pays he cannot be called upon to pay again; but, if he settles for less than his actual liability, he remains liable to the employer for such excess up to the amount allowed under the Act. See Everard v. Woman's Home Companion Reading Club, Mo. App., 122 S.W.2d 51; General Accident & Assur. Corp. v. John P. King Mfg. Co., 60 Ga. App. 281, 3 S.E.2d 841. The release in such case constitutes no obstacle in the way of the insurer prosecuting the assigned claim against the third party, and hence is no defense to these proceedings for compensation by the employee."
In Saunders v. Cities Service Oil Co., Fla. 1950, 46 So. 2d 597, 598, the court's decision was based on the provisions of Chapter 23822, Acts of 1947, Laws of Florida, which amended the workmen's compensation statute to read as follows:
"(1) If an employee, subject to the provisions of this Act, is injured or killed by the negligence or wrong, of a person other than the employer, such injured employee or, in the case of his death, his dependents, shall elect whether to accept compensation under this Act or to pursue his or their remedy against such third person.
"(2) Settlement of a claim, commencement of or settlement of an action against said third person shall constitute an election by the employee or his dependents to pursue his or their remedy against such third person. In the event such an election is made, the employee or his dependents shall not be entitled to any compensation under this Act."
The claimant in the Saunders case was injured by a third person and thereafter accepted $3,000 in full settlement for his injuries and entered into a covenant not to sue the third party and his insurance carrier. The claimant thereafter applied for workmen's compensation benefits which was denied by the Deputy Commissioner. The Industrial Commission affirmed the Deputy and claimant appealed to the circuit court. The circuit judge, A.O. Kanner, now a member of this court, affirmed, and claimant appealed to the Supreme Court. The Supreme Court differentiated the Sweat case on the basis that the statute had been amended to read as set forth above. The court affirmed by holding that the acceptance by a compensation claimant, who was injured by a third person, of a sum as full settlement and entering into a covenant not to sue the third party and his insurance carrier, constituted such an election under the statute as would preclude the claimant from asserting his claim for compensation benefits against his employers and their insurance carriers, notwithstanding that the covenant not to sue expressly purported to reserve to claimant all rights to proceed against any other person or persons.
The statute was amended again in 1951 by chapter 26546, sec. 1, Laws of 1951, which is quoted previously. This amendment, unlike the previous provisions, authorized the employee to accept compensation and to pursue his remedy by an action at law or otherwise against the third party, thus eliminating the necessity of an election by the claimant. Thus the holding of the Saunders case would appear to be no longer controlling on this issue, and the holding of the Sweat case would once again be of some persuasion.
Just as numerous amendments to our own statute has caused diversity in our own case law, much of the diversity in the decisions of other jurisdictions can be explained by differences in the statutes of the various states. In some states the statutes expressly provide that settlements cannot be made without the consent of the employer. Under these statutes it has been held that if a settlement is made without the consent of the employer, the employee cannot recover *572 compensation benefits, Berenberg v. Park Memorial Chapel, 286 A.D. 167, 142 N.Y.S.2d 345, or that a settlement is void and binds no one. Sinclair Oil & Gas Co. v. State Industrial Comm., 151 Okla. 228, 3 P.2d 438.
It is evident from the execution of the release that the third party tort-feasor had knowledge that the employee was injured during the course of his employment with the Department of Agriculture. The third party is accordingly charged with knowledge of the law providing that the employer or his insurance carrier is subrogated to the rights of the employee if compensation benefits are paid and, as stated previously, the third party is cast with statutory notice of the employer's subrogation interests.
Even in states whose statutes contain no provision relating to the right of an employee to settle such claims, generally one of the three following results have been adopted: (a) The employee cannot make a settlement without the consent of the employer who is liable for compensation: Western Maryland Ry. Co. v. Employers' Liability Assur. Corp., 163 Md. 97, 161 A. 5; Fort Worth Lloyds v. Haygood, 151 Tex. 149, 246 S.W.2d 865; (b) The employee may be allowed to make the settlement but is precluded thereafter from recovering compensation from the employer; White v. New Mexico Highway Comm., 42 N.M. 626, 83 P.2d 457; (c) In what appears to be a majority of the states, the employee is allowed to make the settlement, and still collect compensation, but the employer is not thereafter precluded from recovering from the third party the amount it must pay, in spite of the settlement. Benoit Coal Mining Co. v. Moore, 215 Ala. 220, 109 So. 878; Papineau v. Industrial Accident Comm., 45 Cal. App. 181, 187 P. 108; Sweat v. Allen, 145 Fla. 733, 200 So. 348; Everard v. Woman's Home Companion Reading Club, 234 Mo. App. 760, 122 S.W.2d 51; Hugh Murphy Construction Co. v. Serck, 104 Neb. 398, 177 N.W. 747; Smith v. Yellow Cab Co., 288 Pa. 85, 135 A. 858; Doyle v. Teasdale, 263 Wis. 328, 57 N.W.2d 381; Lang v. William Bros. Boiler & Mfg. Co., 250 Minn. 521, 85 N.W.2d 412.
In view of the provisions and the intent of the Workmen's Compensation Act as a whole, the conclusion we reach is that the release or settlement without notice to the employer or his carrier does not affect the rights of the employer or insurer to proceed against the third party the same as if such settlement had not been made.
The lower court is reversed for further proceedings not inconsistent with this opinion.
KANNER, J., and WHITE, JACK, Associate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612044/ | STATE OF LOUISIANA,
v.
DANIEL RAY FAYE, JR.
No. 2009 KA 0013.
Court of Appeals of Louisiana, First Circuit.
June 12, 2009.
Not Designated for Publication.
JOSEPH L. WAITZ, JR., District Attorney, JUAN W. PICKETT, Asst. District Attorney, ELLEN DAIGLE DOSKEY, Asst. District Attorney, Counsel for Appellee State of Louisiana.
BERTHA M. HILLMAN, Counsel for Appellant. Daniel Ray Faye, Jr.
Before: CARTER, C.J., WHIPPLE and DOWNING, JJ.
DOWNING, J.
The defendant, Daniel Ray Faye, Jr., was charged by bill of information #476,247 (instant case) with one count of armed robbery, a violation of La. R.S. 14:64.[1] He was charged by amended bill of information #476,719 (companion case) with one count of attempted first degree robbery (count I), a violation of La. R.S. 14:27 and La. R.S. 14:64.1; two counts of armed robbery (counts II and III), violations of La. R.S. 14:64; two counts of attempted armed robbery (counts IV and V), violations of La. R.S. 14:27 and La. R.S. 14:64; and one count of purse snatching (count VI), a violation of La. R.S. 14:65.1.[2]
In the instant case, he initially pled not guilty. He moved to suppress his confessions in the companion case. Following a hearing in the companion case, the motion to suppress was denied. In the instant case, he moved to suppress his confession and stipulated that the evidence presented on the motion to suppress would be the same as that presented in the companion case. The court denied the motion to suppress. Thereafter, he withdrew his former plea and pled guilty as charged, reserving the right to seek review of the court's ruling on the motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). Pursuant to a plea agreement, he was sentenced to forty-five years at hard labor without benefit of parole, probation, or suspension of sentence to run concurrently with the sentence imposed in the companion case. He now appeals, contending that the trial court erred in denying the motion to suppress. We affirm the conviction and sentence.
FACTS
In a March 19, 2006 audiotaped statement, the defendant indicated that he and Thomas Cenac had been riding around in Cenac's vehicle, "getting high and stuff." When they needed more money for drugs, the defendant told Cenac that he had an idea how to get some money. The defendant told Cenac to drop him off and wait on Mulberry behind Red Carpet Inn in Houma. The defendant walked to the front of the business, went inside, and asked the clerk if she had a room. The clerk stated no rooms were available, and the defendant retrieved a knife from the pocket of his sweatshirt and told the clerk to give him the money. The clerk gave the defendant the money, and he ran back to Cenac's vehicle behind the business and fled.
MOTION TO SUPPRESS
In his sole assignment of error, the defendant contends the trial court erred in failing to suppress his confession because the confession was coerced by the police arresting his mother and threatening to hold her in jail.
It is well settled that for a confession or inculpatory statement to be admissible into evidence, the State must affirmatively show that it was freely and voluntarily given without influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La. R.S. 15:451. Additionally, the State must show that an accused who makes a statement or confession during custodial interrogation was first advised of his Miranda[3] rights. State v. Plain, 99-1112, p. 5 (La. App. 1 Cir. 2/18/00), 752 So.2d 337, 342.
The admissibility of a confession is, in the first instance, a question for the trial court; its conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession are accorded great weight and will not be overturned unless they are not supported by the evidence. Whether or not a showing of voluntariness has been made is analyzed on a case-by-case basis with regard to the facts and circumstances of each case. The trial court must consider the totality of the circumstances in deciding whether or not a confession is admissible. Plain, 99-1112 at p. 6, 752 So.2d at 342.
The defendant moved to suppress his confession in the instant case on the basis that it was not made freely and voluntarily, but was made under the influence of fear, duress, intimidation, and threats. The motion to suppress was denied.
Terrebonne Parish Sheriffs Office Detective Lieutenant Terry Daigle testified at the hearing on the motion to suppress in the companion case.[4] He indicated on March 17, 2006, the Jefferson County Sheriffs Office in Birmingham, Alabama arrested the defendant pursuant to an arrest warrant he had obtained. Detective Daigle went to the Jefferson County Jail, advised the defendant of his Miranda rights, and interviewed the defendant. The defendant signed a waiver of rights providing:
WAIVER OF RIGHTS
I have read or had read to me, this statement of my rights. I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.
According to Detective Daigle, neither he, nor Detective Dawn Bergeron (who was also present), nor anyone else used pressure or coercion to make the defendant give a statement.
Detective Daigle indicated that the defendant's mother had been arrested on the Friday before the Sunday he travelled to Alabama to interview the defendant. The defendant's mother was arrested on an outstanding warrant for a narcotics violation, and the warrant was "not a new warrant." Detective Daigle also indicated he had a conversation with the defendant about his mother being arrested. He denied, however, telling the defendant that his mother would stay in jail until he confessed. He also denied making any promises or threats about the defendant "confessing for his mother."
The defendant also testified at the hearing on the motion to suppress. He claimed that prior to his signing the advice of rights/waiver form, Detective Daigle told him that his mother was in jail, and "if you want your mama to get out, you gotta' confess." The defendant claimed he only signed the advice of rights/waiver form so that his mother would be released. He claimed his recorded statement was nothing more that his repeating facts told to him by Detective Daigle.
Dawn H. Faye, the defendant's mother, also testified at the hearing on the motion to suppress. She indicated that on March 17, 2006, she was arrested on the outstanding warrant for two counts of possession of controlled dangerous substances. She indicated that over two years earlier, she had worked for two Narcotics Agents for a few months and had an "agreement" she would not be arrested because she had worked for them. She claimed that after the defendant confessed, her bond was lowered so that she could afford to bond out. She also claimed that an agent told her that even if she had not bonded out, she would have been released. She also indicated that on March 17, 2006, when the police searched her house, they were looking for the defendant and items involved in the robberies.
On rebuttal, Detective Daigle indicated the defendant told him that he went to Alabama from New Orleans after his brother called him and told him the police were looking for him. Detective Daigle also indicated that the defendant told him that after he arrived in Alabama, his uncle came over and told him he "was on the news."
In his recorded statement,[5] the defendant agrees: that he is familiar with the advice of rights form; that Detectives Daigle and Bergeron have reviewed the form with him; that he has placed his initials next to each of the rights listed on the form, indicating that Detectives Daigle and Bergeron had read the rights to him; that he had signed underneath the rights indicating that he understood the rights; and that he had also signed the waiver of rights portion of the form, indicating that he agreed to waive his rights. The defendant also indicates: that when Detectives Daigle and Bergeron arrived to interview him, he did not hesitate, and immediately started talking to them, and that he told them about every incident they talked about.
There was no abuse of discretion in the trial court's denial of the motion to suppress. The court's ruling on the motion to suppress indicates the court found Detective Daigle's testimony credible. The court's conclusions on the credibility and weight of the testimony relating to the voluntary nature of the defendant's statement were supported by the evidence presented by the State.
This assignment of error is without merit.
DECREE
For the foregoing reasons, we affirm the defendant's conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED.
NOTES
[1] Thomas Ray Cenac was also charged with the same charge by the same bill of information. (R. 3(A)). The State not-prossed the charge against Cenac.
[2] The defendant separately appeals from his armed robbery conviction under count II of bill of information #476,719. See State v. Faye, 09-0051 (La. App. 1 Cir. __/__/09). (unpublished), ___ So.2d ___ (table).
[3] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[4] The transcript of the hearing on the motion to suppress was introduced into evidence in this case.
[5] The audiotape of the defendant's confession to the instant offense was introduced into evidence at trial in the companion case. We review the recording in order to provide the defendant appellate review of the trial court's adverse ruling on the motion to suppress, reserved as part of his Crosby uuiltv plea. See State v. Mack, 06-1722 (La. 4/27/07). 954 So.2d 767 (per curiam). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304706/ | HOWELL, J.
The plaintiff in error Hershel Burns was arrested in March 1952 by police officers of the City of Nashville for running a stop sign in the city and when carried to the police station was charged with transporting more than three gallons of whiskey. He was found guilty by the Judge of the City Court and fined $50'. The case was appealed to the Circuit Court of Davidson County and the judgment of the City Judge was affirmed by the Circuit Judge.
Burns by proper procedure has appealed in error to this Court and has assigned errors.
The first assignment of error is:
“That the Court erred in failing to suppress the evidence of the arresting officers because said evidence was inadmissible, having been illegally obtained, ’ ’
After the arrest for running a stop sign, the officers, while standing by the car of the plaintiff in error, saw several packages wrapped in brown paper inside the car and asked plaintiff in error what was in these packages. He replied “whiskey”. After the arrest for violating a City Ordinance by running a stop sign, the officers learned that the car was transporting unlawfully more than three gallons of whiskey and was therefore charged with violating Section 6648.17 of the Supplement to the Code of 1952, which makes it unlawful to transport more than three gallons of whiskey except after complying with the provisions of that section. The record does not *207disclose that the plaintiff in error had complied with the provisions of this Act.
In this case it does not appear that any search of plaintiff in error’s car was made. It was not necessary. He had told the officers he was hauling whiskey and the whiskey could readily he seen inside the back of the car.
In the case of Cleek v. State, 192 Tenn. 457, 241 S. W. (2d) 529, 530, the Supreme Court said:
“It is well said that: ‘What constitutes a reasonable or unreasonable search and seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved, including the purpose of the search, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured.’ 56 C. J. page 1162.”
By the second and third assignments of error it is insisted that the judgment is erroneous because there was no City Ordinance prohibiting the transportation of more than three gallons of intoxicating liquors at the time the fine was imposed.
Section 91 of the Charter fo the City of Nashville of 1951 is as follows:
“The Police Department and the members thereof shall be charged to preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, protect the rights of persons and property, guard the public health, preserve order at elections, and to enforce every law of the State and ordinance of the City relating to the suppression and punishment of crime and disorder or to the public health. The members of the Police Department shall possess *208all the common law and statutory pawer of constable, except for the service of civil processes.”
Section 53 of Chapter 22 of the Code of Nashvile 1947 is in part as follows.
“State Offenses Made Municipal Offenses.
“The following state offenses are hereby declared to be municipal misdemeanors, the definitions of such offenses to be the same as those contained in the state statutes: * * *
“Intoxicating liquor laws, * * *.
“When any person is convicted of the commission of any of the misdemeanors listed in this section he shall be punished by a fine of not more than fifty dollars and, in the discretion of the city judge, may also be bound over to the criminal court.
“All members of the municipal police force making arrests charging- any person with any of the misdemeanors set out in this section shall bring the arrested person before the city court by proper warrant and charges.”
In this case the officers arrested the plaintiff in error for running a stop sign and afterwards upon learning that he was transporting liquor charged him with the State offense of transporting more than three gallons of whiskey without complying with the law relating thereto.
The assignments of error are therefore overruled and the judgment of the Circuit Court is affirmed.
The plaintiff in error will pay the costs.
Affirmed.
Felts and Hickerson, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1612134/ | 123 So.2d 60 (1960)
240 La. 287
Catherine DOUGHERTY
v.
Donald PETRERE.
No. 44235.
Supreme Court of Louisiana.
June 29, 1960.
Rehearing Denied October 5, 1960.
Ralph L. Roy, Baton Rouge, for defendant-appellant.
J. D. DeBlieux, Baton Rouge, for plaintiff-appellee.
HAMLIN, Justice.
Defendant, Donald Petrere, doing business as Scenic Trailer Sales, appeals from a judgment of the trial court which dissolved and set aside the sale of a 1952 Kit Companion trailer because of a redhibitory vice and awarded plaintiff, Mrs. Catherine Dougherty, $2,055, the full amount of the purchase price.
In the latter part of 1956, plaintiff, an elderly widow of approximately sixty-nine years of age, who was living in an old trailer which had become uninhabitable, was interested in purchasing a house trailer which she hoped would last her the remainder of her life. Her income from Social Security was meager. She solicited *61 the assistance of her friend, Mrs. C. D. Allen, in locating a two-door aluminum trailer, and while she was away on a trip Mrs. Allen spoke with the defendant, who advised her that he had a second-hand trailer which he thought would fulfill Mrs. Dougherty's requirements. Upon her return, Mrs. Dougherty went to defendant's trailer lot with her friend; they physically examined the 1952 Kit Companion trailer herein involved and were satisfied that it was just what Mrs. Dougherty wanted. Mr. Petrere represented to Mrs. Dougherty that the trailer was of aluminum construction, basing his assertions upon statements made in a trailer guide book. None of the parties climbed upon the trailer's roof.
On January 5, 1957, Mrs. Dougherty purchased the trailer for a cash consideration of $1,995, plus tax of $60 ($2,055). The act of sale read: "This car accepted as is, except for the repairs listed."[1]
Approximately one month after the date of purchase, Mrs. Dougherty was able to make financial arrangements for payment of the trailer, and it was then moved by defendant to a site selected by Mrs. Dougherty. However, because of the condition of the ground (wet and soggy), the trailer was not placed on the spot of permament location nor was it occupied by Mrs. Dougherty at that time. A short time later, Mr. Jewell Mason, with some difficulty, moved the trailer to the spot of occupancy.
Mrs. Dougherty spent her first and only night in the trailer in the early part of March, 1957, at which time there was a heavy rain which caused considerable leakage of water into the trailer accompanied by property damage. Close inspection of the roof revealed that it was hole pitted[2] and of masonite construction instead of aluminum; that there were seam cracks around the trailer's roof ventilator located under a water air cooler (possibly 2½ sq. ft. by 2½ ft. high); that light was visible through the cracks; and that the general condition of the roof was bad.
Mr. Petrere was informed of the condition of the roof and of the damage suffered by Mrs. Dougherty, and he suggested that she secure an estimate of the cost of repair. She obtained an estimate of $150, which Mr. Petrere refused to pay. Mr. Petrere secured two estimatesone for $100 and one for $75which he refused to accept.
Mrs. Dougherty, who was residing in her old trailer but continuing to make payments[3] on the instant trailer, referred the matter to the Better Business Bureau. The Bureau contacted Mr. Petrere and informed him of the deplorable state of the roof, but it concluded negotiations when informed that an adjustment was being offered to Mrs. Dougherty.
Mrs. Dougherty declined an offer of an adjustment of $50 from the purchase price and brought the instant suit. She alleged that the trailer leaked badly, causing it to be unlivable and useless for her purposes which she had declared to defendant at the time of sale; that she had never lived in the trailer (other than the first night), because of dampness caused through leakage; that the trailer contained defects and vices which could not have been discovered by simple inspection; that she was not aware of the existence of same, and that they were not declared by defendant, who gave his guarantee and warranty against any and all defects or vices; and that the failure of the defendant to apprise her of the existence of the defects and his false statements constituted fraud and bad faith entitling her to return of the purchase price. Plaintiff alleged tender, which was admitted by defendant in his answer; defendant's answer was otherwise in the form of a general denial.
*62 The trial court was of the opinion that "such a damage is and such a condition which is shown to exist is one which comes within the purview and meaning of redhibitory vice; that had Mrs. Dougherty known that the roof was a composition roof in the condition that it was in prior to purchasing the trailer and that future maintenance costs would, of necessity, follow, she would not have purchased same."
Appellant contends that the judgment of the trial court should be reversed because of the following reasons:
"1. The plaintiff herein has failed to prove that a redhibitory device existed and certainly has failed to prove such device existed at the moment of the sale.
"2. Even, assuming the proof of a redhibitoy device existing at the moment of the sale, unless the parties to the transaction can be placed in a similar position to that at the time of the sale, rehibition should not lie.
"3. If such a situation as the foregoing presents itself the Court should order a reduction of price only.
"4. On the question of the amount, should a reduction of price be ordered, the basis should not be the replacement of a new roof on the old second hand trailer purchased, but rather the cost of a usable roof of the same age and composition as the one purchased.
"5. A judgment that is based upon evidence received over valid objection that it enlarged the pleadings, should not stand."
The evidence discloses conclusively that the trailer leaked excessively the first night plaintiff occupied it. Not being able to make an amicable settlement with defendant, she had no other recourse than to leave the trailer unoccupied. Plaintiff alleged in Article VII of her petition that she tendered the trailer to defendant; defendant in Article VII of his answer admits Article VII of plaintiff's petition. Both counsel admitted the tender during argument in this Court.
A review of the evidence convinces us that Mrs. Dougherty was sincere in expressing her desires and needs to defendant at the time she purchased the trailer. She definitely informed him of the purpose for which she wanted the trailer, namely, a home.
Defendant had purchased the trailer from Major Walter S. Black, on approximately December 1, 1956. Major Black, whose vendor was not available at the time of trial, had bought the trailer for trade-in purposes and had had it for only three weeks; he testified that he had no difficulty with leakage during his short period of ownership. Mr. Petrere truthfully believed that the trailer was constructed of aluminum; he had not, however, concerned himself with close inspection or observation of the roof. There was no bad faith or fraud on his part, just mistaken belief.
The seller warrants the buyer against the hidden defects of the thing sold or its redhibitory vices. Article 2476, Revised Civil Code.
The vendor warrants the thing sold to be fit for the purpose for which it was intended. Roses v. Patorno, 2 La.App. 292.
"Under Article 2476 of the Civil Code, the warranty against hidden defects and redhibitory vices is implied in every contract of sale unless expressly excluded, see Nelson v. M. C. M. Truck Lines, 209 La. 582, 25 So.2d 236, * * *" Radalec, Inc. v. Automatic Firing Corp., 228 La. 116, 81 So.2d 830, 833.
"Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice." LSA-C.C. Art. 2520.
*63 "Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices." LSA-C.C. Art. 2521.
"The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. * * *" LSA-C.C. Art. 2530.
"A sale may be rescinded at the instance of the buyer on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient or imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice. R.C.C. art. 2520; but the buyer who institutes the redhibitory action must prove that the vice existed before the sale was made to him. R.C.C. art. 2530; Chas. A. Kaufman Co. v. Gillman, La.App., 142 So. 159, and cases therein cited." Schexnayder v. Stansbury, La.App., 45 So.2d 545, 547. See, Langlinais v. Soileau, La.App., 58 So.2d 274; Chaignaud v. Baden, La.App., 81 So.2d 76.
Applying the law to the facts of this case, we find that plaintiff bore her burden of proving that the trailer possessed a latent defect; that such defect, although it had not manifested itself, existed before plaintiff purchased the trailer; that the defect was not apparent; that the defect rendered the trailer useless to plaintiff; and, that the trailer was unfit for the purpose for which plaintiff purchased it.
Redhibition does not lie where a purchaser has sold or used property to such an extent that it cannot be returned to the seller in substantially the same condition as when sold. Poor v. Hemenway, 221 La. 770, 60 So.2d 310; Reech v. Coco, 223 La. 346, 65 So.2d 790. But, the facts of the instant case show that plaintiff notified the defendant of the trailer's leakage immediately after its occurrence, and that she fruitlessly attempted to have him repair the trailer. Tender was made, supra. Plaintiff is, therefore, not responsible for the trailer's present condition of deterioration.
While it is true that in redhibitory actions a reduction of the price may be decreed, LSA-C.C. Article 2543, we do not find that this case justifies such action.
Plaintiff attempted to enlarge the pleadings by evidence, but the record discloses that the trial court restricted her testimony to the condition of the roof of the trailer.
For the reasons assigned, the judgment of the trial court is affirmed. All costs are to be paid by appellant.
HAWTHORNE, J., absent.
NOTES
[1] No repairs were listed.
[2] These holes had the appearance of having been previously stopped up with putty.
[3] These payments were made to finance companies. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645437/ | 994 So.2d 307 (2008)
ADAMS
v.
GOLDSMITH.
No. 1D08-0685.
District Court of Appeal of Florida, First District.
November 6, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645439/ | 994 So.2d 316 (2008)
HADLEY
v.
HARRIS.
No. 3D08-2318.
District Court of Appeal of Florida, Third District.
October 31, 2008.
Decision without published opinion. Hab.Corp.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612102/ | 123 So.2d 20 (1960)
Otto SCHOEN, as Executor,
v.
Erna SCHOEN.
1 Div. 786.
Supreme Court of Alabama.
September 8, 1960.
Jas. R. Owen, Bay Minette, for appellant.
Arthur C. Epperson, Foley, for appellee.
LIVINGSTON, Chief Justice.
A claim for $11,900 was originally filed in the probate court by the appellee, Erna Schoen, against the appellant, Otto Schoen, as executor of the estate of Emma Schoen, deceased, for necessities furnished to the deceased *21 Emma Schoen for a period of six and one-half years prior to her death by the appellee, Erna Schoen, on an implied contract based on the mental and physical infirmities of the said Emma Schoen, during the period covered by the claim.
The judge of probate upon hearing found that "the said Emma Schoen, deceased, was mentally and physically disabled to the extent that she could not exercise any control over her mental and physical functions for a period of six and one-half years immediately prior to her decease; that the said deceased was a bed patient for the stated period of time and required almost constant attention the same as if a two month old child," and awarded the appellee the sum of $5,000.
The appellant appealed to the circuit court and demanded a trial by jury.
The appellee amended the claim as filed in the probate court by adding Count 2, in essence, a count claiming $11,900 for necessities furnished on an implied contract. Later, she amended the complaint by striking Count 1.
The appellant joined issue by filing pleas of the general issue.
After the appellee rested, the appellant rested and requested the general charge, orally and in writing, both of which were refused.
The jury found in favor of the plaintiff (appellee) for the sum of $8,000, and the court entered judgment for this amount.
Appellant filed a motion for a new trial, which was denied.
Mrs. Erna Schoen testified that she was a resident of Baldwin County, Alabama; that she filed a claim in the Probate Court of Baldwin County, Alabama, against the estate of Emma Schoen, deceased. (It was admitted during the testimony of Erna Schoen by the attorneys for the appellant that Otto Schoen was the personal representative of Emma Schoen, deceased.)
Mrs. Erna Schoen also testified that she had to feed Emma Schoen, wash her, and wash her clothes, and had done this previous to and since June of 1949 until the death of Mrs. Emma Schoen (which occurred May 9, 1956); that she cooked and cared for Emma Schoen from June of 1949 with the expectations of being paid, and that she thought her services were worth $150 per month; that Mrs. Emma Schoen was helpless, she was worse than an infant, "she soiled all over herself and could not take care of herself at all"; that her mind was not there any more; her mind was gone and that Mrs. Emma Schoen was in this condition in June of 1949.
Mrs. Elizabeth Franhoffer testified that Mrs. Erna Schoen performed personal services such as nursing, cooking, bathing and things of that nature for Mrs. Emma Schoen from June 1949 until her death; that "since 1949, about June, she (Emma Schoen) couldn't do nothing, she was in bed all of the time."
Mr. Joe. Schoen testified that he was the son of Emma Schoen, deceased, and husband of Erna Schoen, the appellee; that he and his wife, Erna Schoen, lived in a separate house from the house occupied by Emma Schoen during the last part of the lifetime of Emma Schoen and that he and his wife, Erna Schoen, resided in his house and that Emma Schoen resided in her house; that Erna Schoen took care of Emma Schoen because she was as feeble as a baby, she had to bathe her like a baby and put her in the tub and carry her body around; that it was harder than a baby she had to feed her with a spoon. He also testified that his mother's mind was feeble and that his wife had to care for her from 1948 or 1949 "because she just about set the house on fire several times and my wife went in and she would have burnt up if my wife hadn't gone in there"; that Erna Schoen took care of Emma Schoen until her death from 1948 or 1949.
Mrs. Rudolph Bowman testified that she was acquainted with Mrs. Emma Schoen *22 since 1926; that she knew the condition of Mrs. Emma Schoen prior to her death, and that such condition existed about six years or more before her death; that Mrs. Emma Schoen didn't know us and she couldn't help herself; she had to be washed and cleaned, dressed and fed; and that she couldn't move of her own; that prior to the death of Mrs. Emma Schoen for a period of six years, Erna Schoen cared for her, and that Erna Schoen got some other women in to help her once in awhile.
In the case of Duncan v. Johnson, 239 Ala. 183, 194 So. 528, 529, a case in which a daughter claimed reimbursement out of the estate of her deceased mother for services and supplies necessarily rendered in caring for her, it was said:
"The general principle is now well settled in this State that when a child furnishes articles and services, including board and attention, to a parent, the prima facie presumption is that they were gratuitous; but this presumption may be overcome by a contract expressed or implied to pay for them. Lowery v. Pritchett, 204 Ala. 328, 85 So. 531; Nelson v. Nelson, 210 Ala. 592, 98 So. 885.
"Such an agreement is implied between near relatives when the circumstances are such that a mutual intent to pay and receive compensation for such services and supplies is a reasonable and just conclusion. Coleman v. Adkins, 232 Ala. 351, 168 So. 184."
It was further said in that case:
"But when a parent becomes insane so as to need the special care and attention here shown, and one of the children has the entire burden of supplying it, the courts have held that those circumstances are sufficient to support such an implied agreement upon the idea that they were furnished with a reasonable expectation of reimbursement. 28 R.C.L. 689, note 14; Reando v. Mosplay, 90 Mo. 251, 2 S.W. 405, 59 Am.Rep. 13; Humble v. Humble, 152 Ky. 160, 153 S.W. 249; Durr v. Durr, Ky., 82 S.W. 581; Hartley v. Hartley's Estate, 173 Mo.App. 18, 155 S.W. 1099."
Certainly a daughter-in-law does not stand in a more unfavorable position in this regard than does a daughter who receives compensation for services to her own mother.
Assignment of error 1 reads as follows:
"1. The court erred in allowing the appellee, Erna Shoen, to testify over appellant's objection as follows:
"Q. Do you know of your personal knowledge whether or not Mrs. Schoen had an estate from which the services could have been paid? A. Yes sir.
"Mr. Blackburn: I object as irrelevant, incompetent and immaterial.
"Mr. Epperson: I think it is necessary
"The Court: He is asking if she know of her own personal knowledge.
"Mr. Blackburn: That doesn't matter; it is irrelevant.
"Mr. Owen: It doesn't matter whether the estate has enough money to pay her claim or not.
"Mr. Epperson: I want to show that the estate is solvent.
"The Court: Do you admit that the estate is solvent?
"Mr. Blackburn: Proving it is something else. We object on the ground that it is irrelevant, incompetent and immaterial.
"The Court: Overrule the objection, if she knows from her personal knowledge.
"Mr. Blackburn: We except.
*23 "A. She had enough land to pay for her services."
From a reading of this assignment of error and the argument made by appellant in support of it, it is uncertain as to whether or not appellant is contending the court erred in overruling the objection to the question, "Do you know of your personal knowledge whether or not Mrs. Schoen had an estate from which the services could have been paid?" or the admission of the answer by the witness that "She had enough land to pay for her services."
We will discuss this assignment as it applies to both the question and answer. The question as asked called for a "yes" or "no" answer, and it is clear that the answer given was not responsive to the question. However, the record indicates that no objection was made by appellant to the answer, nor did appellant move the court to exclude the answer, and, as a consequence, the court made no ruling as to the answer. Assignments not referring to any ruling of the court presents nothing for review. McLaney v. Turner, 267 Ala. 588, 104 So.2d 315. It is, therefore, clear that the trial court did not err in admission of this statement.
The assignment is also without merit if it was directed to the overruling of the objection to the question, this for the reason that the objection was not timely made, as shown by the above-quoted record. Moreover, if the court had erred, such error would be rendered harmless by the later admission of other evidence to the same effect without objection. Harvey Ragland Co. v. Newton, 268 Ala. 192, 105 So.2d 110, and cases there cited; Blount County v. McPherson, 268 Ala. 133, 105 So.2d 117; Stewart v. Weaver, 264 Ala. 286, 87 So.2d 548.
Assignments of error 2, 3, 4 and 5 are predicated on the trial court's refusal to give four written charges requested by appellant. Each of these refused charges are general affirmative charges with or without hypothesis. The argument made in support of these assignments is that the evidence is not sufficient to prove a contract between the deceased and appellee. These assignments of error are without merit because the scintilla evidence rule is in effect in Alabama and the general affirmative charge should not be given against plaintiff where there is the slightest evidence tending to prove a right of recovery. Birmingham Elec. Co. v. Freeman, 32 Ala.App. 479, 27 So.2d 231; Alabama Great Southern R. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d 1190; Chesser v. Williams, 268 Ala. 57, 104 So.2d 918.
The sixth assignment of error is that the trial court erred in overruling appellant's motion for a new trial. Appellant argues only those grounds for said motion which are the same as assignments of error 2, 3, 4 and 5. Therefore, this assignment is also without merit for the same reason that assignments of error 2, 3, 4 and 5 are not meritorious. Moreover, where there is evidence which, if believed, justifies the verdict, the overruling of the motion for a new trial strengthens the presumption in favor of the correctness of the verdict. Smith v. Smith, 254 Ala. 404, 48 So.2d 546; Jacks v. City of Birmingham, 268 Ala. 138, 105 So.2d 121.
The judgment of the trial court is due to be, and is, affirmed.
Affirmed.
SIMPSON, GOODWYN and COLEMAN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612104/ | 123 So.2d 298 (1960)
Evelyn W. BROWN, Appellant,
v.
James R. BROWN, Appellee.
No. 59-423.
District Court of Appeal of Florida. Third District.
September 29, 1960.
*299 John W. Wright, Miami, for appellant.
Hollis Rinehart and Claude Pepper, Miami, for appellee.
HORTON, Chief Judge.
Plaintiff and cross-defendant appeals from an amended final decree in a divorce action. In the answer, and by way of cross-claim, appellee alleged that a substantial portion of a trust fund, of which the parties' two minor children were the sole beneficiaries, had been used for the down payment on a home, the title to which was held by the parties as an estate by the entireties. In addition to seeking a divorce on the cross-claim, appellee prayed for an accounting of the trust funds. The appellant answered the cross-claim, admitting the allegations concerning the use of the trust funds.
Following a hearing, a decree of divorce was entered, wherein the appellant was permitted full use and occupancy of the home jointly owned by the parties, was granted temporary custody of and support for the minor children, and the cause was transferred to the Juvenile and Domestic Relations Court for determination of permanent custody and support. Permanent alimony was expressly denied. Upon motion and following a hearing, the chancellor modified the decree by awarding temporary custody and support to the paternal grandparents. Subsequently, the appellee moved for an order to recover the trust assets, which was directed to the home decreed to the use and occupancy of the appellant. In this motion he alleged that pursuant to the decree of divorce the Juvenile and Domestic Relations Court had awarded custody of the two minor children to him on the condition that the children reside in the paternal grandparents' home. Further, that the appellant had remarried and continued to reside in the home jointly owned by the parties which was held in trust for the two minor children. Following rehearing on the order denying this motion, the chancellor entered the amended final decree from which appeal is taken. By this amended final decree, the chancellor deleted and struck from the final decree that portion granting use of the questioned premises to the appellant, and in doing so, said:
"The sole disposition of the Court in granting the full use and occupancy heretofore being in the interest of the minor children. This matter was not *300 completed and was left open by the transfer to the Juvenile and Domestic Relations Court, it is not now to the best interest of said minor children that the Plaintiff Counter-defendant be permitted to occupy the premises * * *."
In addition, he established the children's trust interest in the real property to the extent of $3,500, being the sum used from the children's trust to purchase the property.
On appeal, the appellant contends (1) that the chancellor did not have jurisdiction to amend the final decree of divorce as to the property rights of the parties; (2) that the chancellor erred in awarding to the minor children an interest in property owned by their parents where the court had already determined by its final decree of divorce that the children had no interest in the property; and (3) that there was insufficient evidence to sustain the decree rendered.
Where a husband and wife own property as an estate by the entireties, the granting of a divorce results in making them tenants in common. However, the chancellor should not go further, in the absence of special circumstances, and order that one of the parties transfer their property interest to the other party. See Valentine v. Valentine, Fla. 1950, 45 So.2d 885; Boles v. Boles, Fla. 1952, 59 So.2d 871; Latta v. Latta, Fla.App. 1960, 121 So.2d 42; cf. Banfi v. Banfi, Fla.App. 1960, 123 So.2d 52. As an incident of the chancellor's power to award child support, he may award to the wife the use of a home acquired as an estate by the entireties. Pollack v. Pollack, 159 Fla. 224, 31 So.2d 253; Fuller v. Fuller, Fla. 1948, 38 So.2d 51; McRae v. McRae, Fla. 1951, 52 So.2d 908; Banks v. Banks, Fla. 1957, 98 So.2d 337. When the court awards to the wife, as an incident of child custody, the use of a home owned as an estate by the entireties, this is in the nature of maintenance and not a transfer of title to property. See 10 Fla.Jur., Divorce, § 213. Here, the final decree denied permanent alimony to the wife, and although she was granted temporary custody, the husband was subsequently granted the permanent custody of the two minor children. Under the circumstances, we conclude the chancellor was eminently correct in entertaining the motion for an order to recover the trust assets and in adjudicating the rights of the children in the real property. The chancellor by his decree merely fixed the rights of the parties in the realty and did not undertake to divide it. See Bezanilla v. Bezanilla, Fla. 1953, 65 So.2d 754; Lopez v. Avery, Fla. 1953, 66 So.2d 689; §§ 65.14, 65.15, Fla. Stat., F.S.A.
We have carefully considered all of the contentions urged by appellant and conclude that reversible error has not been demonstrated. Accordingly, the decree appealed is affirmed.
Affirmed.
PEARSON and CARROLL, CHAS., JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1737392/ | 727 N.W.2d 35 (2006)
MACIOLEK
v.
ROSS
No. 2006AP0051
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/2591895/ | 4 N.Y.2d 536 (1958)
Angelo Nobile, Respondent,
v.
Travelers Indemnity Company of Hartford, Connecticut, Appellant.
Court of Appeals of the State of New York.
Argued May 7, 1958.
Decided June 25, 1958.
John G. Donovan for appellant.
Howard E. Levitt and Sidney N. Zipser for respondent.
Chief Judge CONWAY and Judges DYE, FULD, FROESSEL, VAN VOORHIS and BURKE concur.
*538DESMOND, J.
This suit was brought by plaintiff Nobile to have it determined that an automobile liability insurance policy issued to him by defendant Travelers Indemnity Company was in effect when, at 12:45 A.M. on October 17, 1955, plaintiff's automotive tractor and trailer collided with another automobile, the driver of which was killed and others were injured. Effective September 16, 1955, Travelers had issued to Nobile a one-year liability policy. Plaintiff was represented in the transaction by his broker Bowkley. On October 10, 1955, only a few days after he received the policy, Nobile told broker Bowkley by telephone that he (Nobile) no longer needed the policy since his tractor and trailer were now insured through a company for which he was doing hauling and, also, because he considered the premiums to be too high. Broker Bowkley in the same telephone conversation told plaintiff that the policy could not be cancelled until plaintiff should return it to the broker's office and until the broker should in turn forward it to defendant *539 for cancellation. Nothing more definite was said in that telephone conversation about a cancellation date. Nobile did send the policy to the broker who received it by mail on either October 12th or October 13th. Nobile testified at the trial that he had sent the policy to Bowkley "to be cancelled". At Bowkley's direction a clerk in his office wrote in ink across the face of the policy at the top "Cancel 10/14/55". On Bowkley's office copy of the policy his clerk wrote "Cancelled 10/14/55". Then, on October 14th (Friday), the broker mailed to Travelers the policy so marked "Cancel 10/14/55" with a letter which said: "As per the request of Mr. Nobile, I am herewith enclosing the above mentioned automobile policy for cancellation". That letter and the policy with the "Cancel" legend thereon were received at defendant's office on Monday, October 17th, at about 9:00 A.M. A few hours earlier (just after midnight that same morning) Nobile's tractor-trailer was in the collision above described. Later on that same morning Nobile notified his broker of the accident and, still on the same day, the broker passed the information to Travelers and was told by a company representative that the policy and letter had arrived and that "the policy was being processed for cancellation as of October 14". The company had already calculated the amount of unearned premium as of October 14th and had put on its own office record of this policy the notation: "Canc 10/14/55". On October 20th, at the insurer's request, Bowkley sent the insurer an accident report which had been made out by plaintiff. On October 21st the insurer sent to the broker a check made out to the broker for the unearned premium computed by the company as of October 14th, which check the broker sent on to Nobile who cashed it after holding it for about a month. Meanwhile, on October 31st, Nobile himself had sent on to defendant a summons in a lawsuit brought against him for damages caused by the collision. Travelers, however, returned this summons to plaintiff with a statement saying that there was no policy coverage since the policy had been "cancelled previous to the date of the accident". Nobile then brought this suit for a judgment to declare whether or not the cancellation had become effective before the time of the accident.
The trial court found for plantiff and judgment was rendered accordingly. The Appellate Division unanimously affirmed *540 without opinion and we granted leave to appeal. The trial court's opinion, delivered orally at the close of the trial, recited the facts and held that the cancellation had not taken effect prior to the accident. The court's reasons were two: first, that "the notice in which the policy was returned did not state when thereafter the cancellation shall be effective", and, second, "That in any event, until the actual receipt of the notice and policy by the defendant, there can be no cancellation". But in so holding the court failed to give effect to the language of the policy itself, Condition 24 of which is in full as follows:
"This policy may be canceled by the named insured by mailing to the company written notice stating when thereafter the cancelation shall be effective. This policy may be canceled by the company by mailing to the named insured at the address shown in this policy written notice stating when not less than ten days thereafter such cancelation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The effective date and hour of cancelation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the named insured or by the company shall be equivalent to mailing.
"If the named insured cancels, earned premium shall be computed in accordance with the customary short rate table and procedure. If the company cancels, earned premium shall be computed pro rata. Premium adjustment may be made either at the time cancelation is effected or as soon as practicable after cancelation becomes effective, but payment or tender of unearned premium is not a condition of cancelation."
Clearly that means that cancellation takes place when the insured mails to the company a written notice requesting cancellation and stating the date as of which the insured wishes the policy cancelled. It is conceded here that broker Bowkley was plaintiff's agent for the purpose of effecting a cancellation. Plaintiff asked and directed the broker to arrange the cancellation and the broker wrote to the company requesting cancellation. True, that letter did not mention a date but the *541 words written by his broker on the face of the policy "Cancel 10/14/55" were so written within the broker's authority and could mean nothing except a direction to the carrier that the cancellation be as of that date. Because plaintiff did not need the policy any more and thought the cost too high, he wanted it cancelled as soon as possible and his broker told the company to cancel it as of October 14th and the company cancelled it as of that date. That an accident intervened between the mailing of the policy on Friday and its receipt by the company on Monday cannot change the rights of the parties.
The trial court's theory that a cancellation request cannot be effective until notice is received by the insurer is based on Crown Point Iron Co. v. Ætna Ins. Co. (127 N.Y. 608) but that was a case where (as this court pointed out in its opinion, p. 614) "the method of terminating the insurance upon the motion of the insured is not specified, except that the insured party is to request it". The authority for cancellation in the Crown Point case was a statute then in effect which required every fire insurance company to "cancel any policy of insurance hereafter issued or renewed at any time by request of the party insured". This court, therefore, held in Crown Point that the surrender of the policies with a request for termination was not complete until the request reached the company. But in the present case the parties made their own agreement as to how and when the policy should be cancelled. They agreed that the policy "might be cancelled" by the mailing to the company of a written notice stating a cancellation date. It is impossible to read such a provision as having any meaning other than that such a mailing will produce the result that cancellation is and must be accomplished on the date fixed in the notice.
Some argument is made by plaintiff from the word "thereafter" in the clause: "written notice stating when thereafter the cancelation shall be effective." We think that means no more than that the policyholder may not select a cancellation date prior to the date on which he sends in the notice (see State Farm Mut. Automobile Ins. Co. v. Pederson, 185 Va. 941, 952). Here, the letter and policy were put in the mail on October 14th and consistently with the meaning and purpose of the cancellation clause the notice indorsed by the broker on the policy gave *542 that same date of October 14th as the date for cancellation. Cancellation under such a notice could not take effect earlier or later than October 14th.
The parties agree that since this policy was written in New Jersey the laws of that State govern. However, we are not informed of anything in the law of New Jersey which changes the meaning and effect of this policy language. At least three New Jersey cases (Raiken v. Commercial Cas. Ins. Co., 135 A. 479 [N. J. Supreme Ct.]; Womack v. Fenton, 28 N. J. Super. 345, and McBride v. New Amsterdam Cas. Co., 12 N. J. Mis. Rep. 617) construing a cancellation provision just like the one in this policy say that mailing of the required notice of cancellation without more effects cancellation. The Virginia decision of State Farm Mut. Automobile Ins. Co. v. Pederson (185 Va. 941, supra), which involved an identical policy cancellation provision, passed on the effect of a letter from the insured to the company dated May 23, 1945, mailed on May 25th and received by the company on May 28th, requesting that the policy be terminated "as of today". The Virginia Supreme Court said that the policy was cancelled as of May 25th and that the requirement for fixing a cancellation date thereafter was satisfied by instruction to cancel "as of today".
The judgment should be reversed, with costs in all courts, and the matter remitted to Special Term with instructions to enter a judgment as prayed for by defendant declaring that the policy was cancelled prior to the accident alleged in the complaint and was not in effect at the time of that accident.
Judgment reversed, with costs in all courts, and matter remitted to Special Term for further proceedings in accordance with the opinion herein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/839524/ | 748 N.W.2d 816 (2008)
Tina Lupi SMITH, Successor Personal Representative of the Estate of Barbara Lupi, Plaintiff-Appellee,
v.
TRINITY HEALTH-MICHIGAN, d/b/a St. Joseph Mercy Hospital, Defendant, and
Timothy Shinn, M.D., and Michigan Heart, P.C., Defendants-Appellants.
Docket No. 131962. COA No. 266701.
Supreme Court of Michigan.
May 27, 2008.
By order of November 29, 2007, the application for leave to appeal the July 18, 2006 judgment of the Court of Appeals was held in abeyance pending the decision in Braverman v. Garden City Hospital (Docket Nos. 134445-6). On order of the Court, the case having been decided on April 9, 2008, 480 Mich. 1159, 746 N.W.2d 612 (2008), the application is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612424/ | 282 So.2d 799 (1973)
Succession of Edwin C. PITTMAN.
No. 9450.
Court of Appeal of Louisiana, First Circuit.
June 29, 1973.
Rehearing Denied September 25, 1973.
Elton A. Darsey, Houma, for appellant.
Walter I. Lanier, Thibodaux, for appellee.
Before LOTTINGER, ELLIS and CRAIN, JJ.
ELLIS, Judge:
This is an appeal by Octavia La Mulle Pittman, executrix of the Succession of Edwin C. Pittman, from a judgment sustaining an opposition to the tableau of distribution filed by the children of the decedent. We quote the written reasons for judgment rendered by the trial judge, which adequately dispose of the issues here presented:
"Edwin C. Pittman, the deceased, was married twice, first to Mary Blanchard *800 from whom he was divorced on September 17, 1943, and secondly to Octavia La Mulle, on April 26, 1945. There were four children born of the first marriage, but no children were born of the second marriage. Mr. Pittman died testate on September 4, 1971, and his last Will and Testament, executed in statutory form on March 8, 1963, was probated on September 15, 1971. In accordance with the will the second wife, Octavia LaMulle Pittman, was appointed Executrix of his estate.
"Decedent left property in the Parishes of Lafourche and Terrbonne and upon the petition of the Executrix an inventory was taken in each parish. The Notary Public in Lafourche Parish was assisted by Arthur Blouin and Henry Boudreaux as appraisers.
"Decedent and his second wife resided in the settlement of Raceland in Lafourche Parish. In his will, after stating that he bequeathed to the four children of his first marriage their legitime of two-thirds (2/3rds) of his estate, he left his first wife One Thousand and no/100 ($1,000.00) Dollars in cash and then decreed that the residue was to go to his second wife, Octavia LaMulle Pittman, whom he named as Executrix. He specifically stated that in addition to her half of the community to which she was entitled by law, he was leaving her "particularly, my one half (½) in the community home at Raceland, Louisiana, which I desire her to have free of the claims of my children.....I direct my executrix to compensate my children out of my other property to make up their legitime and that my second wife shall have the home in its entirety. The value of the home and other property shall be fixed by appraisers appointed by the court.".
"Subsequently, on June 1, 1972, the Executrix petitioned for the homologation of both inventories and to fix inheritance taxes, and on that same day a judgment was rendered. Thereafter, on June 30, 1972, the Executrix filed a proposed Tableau of Distribution showing the distribution of the estate and the payment of debts. Opposition to this Tableau was filed by the four children of decedent's first marriage.
"The Tableau was contested on three points:
"(a) That the home property in Lafourche Parish was valued at only Eight Thousand, Five Hundred and no/100 ($8,500.00) Dollars, when, in fact, it had a value of approximately Fifteen Thousand and no/100 ($15,000.00) Dollars;
"(b) That this same home property was listed as community property in the inventory, despite the fact that in the deed by which the bulk of it was acquired Edwin C. Pittman specifically declared that it was purchased with money that he had earned in the year 1944, which he had kept separate from the community existing between him and Octavia LaMulle (the Executrix), that he was acquiring it as his own separate and paraphernal property and that it did not fall into the community of acquets and gains between him and Octavia LaMulle; and
"(c) That the Tableau proposed to compensate opponents for their interest in the family home with cash money, rather than making up the difference in value with other property in the succession as provided in the will.'
"At the trial of the opposition, by stipulation a certified copy of the deed of acquisition of October 5, 1949, which contained the recitation of paraphernality, was introduced. This home property consists of a house and a sixty-five foot (65') lot. Fifteen feet (15') of the lot was acquired subsequent to the 1949 purchase and it is unquestioned that this strip is community property. Although it was further stipulated that a certified copy of this deed of acquisition would be filed in evidence, since it has no bearing on the opposition it has not been filed and all parties concede that it was indeed community property.
"Opponents presented the testimony of Norbert Charles Shaver, a Thibodaux realtor and insurance agent, who was tendered *801 as an expert in real estate and whose expertise was acknowledged and accepted by defendant in the opposition. Mr. Shaver testified that he had visited the property in the morning of the trial, had taken pictures of the house in question, which were introduced without objection and appear in the record as Exhibits Opposition 3, Opposition 4, and Opposition 5, and placed a value on the house, after depreciation, of Seventeen Thousand, One Hundred and no/100 ($17,000.00) Dollars. He valued the fifty foot (50') lot on which it stood at Two Thousand, Three Hundred and no/100 ($2,300.00) Dollars, or combined with the fifteen foot (15') lot at a value of Three Thousand and no/100 ($3,000.00) Dollars. He thus places a present value on the house and sixty-five foot (65') lot of Twenty Thousand, One Hundred and no/100 ($20,100.00) Dollars as opposed to the inventory value of Eight Thousand, Five Hundred and no/100 ($8,500.00) Dollars.
"On cross examination he admitted that he had made no research of comparables, that he had no actual knowledge of the age of the dwelling, but based his depreciation of thirty per cent (30%) on an estimation that the dwelling was twenty-five years old.
"Opponents then presented the testimony of Eddie C. Pittman, son of the deceased and one of the opponents, who was questioned as to his occupation and experience (he is in the paint, tile and carpet business and has built homes for resale) and tendered him as an expert. Since he was admittedly not a qualified appraiser and realtor and since the Court did not feel that as an opponent he could be considered "objective", he was rejected as an expert, but allowed to testify as a building contractor. He placed a value of Eleven and no/100 ($11.00) Dollars per square foot on the dwelling and his valuation of the building with the lot was in excess of the Fifteen Thousand and no/100 ($15,000.00) Dollars value he had claimed in his petition in opposition. Counsel for the Executrix objected to any testimony which placed the value of the building in excess of Fifteen Thousand and no/100 ($15,000.00) Dollars, maintaining that this constituted an enlarging of the pleadings.
"Opponents rested subject to rebuttal without presenting any evidence to support the declaration of paraphernality in the 1949 deed of acquisition.
"In defense to the opposition the Executrix took the stand and testified that since the acquisition of the house in 1949, a utility room, carport and shower room had been added, the kitchen and dining room paneled, the front porch closed in, and siding put on the building. A cyclone fence had been erected to enclose the property on both sides and in back. She testified that the house was in bad need of repairs, needed new screens and new screen doors, and she felt the value was not more than the Eight Thousand, Five Hundred and no/100 ($8,500.00) Dollars which the appraisers had determined in the inventory. On cross examination, while conceding that she carried Fifteen Thousand and no/100 ($15,000.00) Dollars worth of insurance, she did not feel that the house is worth this amount of insurance.
"Mr. Henry Boudreaux, one of the Lafourche Parish appraisers, was then called and he testified that his occupation was a retail merchant; that although he had been appointed by the Court to act as an appraiser, he had no experience as such, but did feel that he was familiar with property values in Raceland; that since 1938 he had bought and sold a total of three (3) properties and was `fairly' familiar with this property. He testified that he had talked to various people and got their opinion as to value and then explained how he had arrived at the valuation of the house and lot. He placed a total value of Eleven Thousand, Two Hundred and no/100 ($11,200.00) Dollars on the house and improvements, but because he felt that it was in bad need of repair he depreciated it fifty per cent (50%), leaving a net value of *802 Five Thousand, Six Hundred and no/100 ($5,600.00) Dollars, which with the valuation of Two Thousand, Nine Hundred and no/100 ($2,900.00) Dollars on the land made a total value of Eight Thousand, Five Hundred and no/100 ($8,500.00) Dollars.
"The other appraiser and the last witness for the Executrix was Arthur Blouin who testified that his experience as an appraiser was as an insurance salesman and that he had no formal training nor was he licensed in real estate. He stated that he used a figure of Seven and 50/100 ($7.50) Dollars a square foot on the building, as had Mr. Boudreaux, and came up with the same total. On cross examination he conceded that he was neither an appraiser nor a realtor, but justified his valuation by claiming that because of the condition of the house (termites, et cetera), as an insurance man he would not insure the house for the Fifteen Thousand and no/100 ($15,000.00) Dollars for which it was now insured.
"The issues in this case are threefold:
"(a) Was the property community or separate?
"(b) What is the value of the property?
"(c) Has the Executrix the right to decide how the forced heirs of deceased will be compensated in their legitime for their value in the home property which deceased left her?
"In support of their argument that this property was, in fact, the separate property of their father, having been acquired with separate funds `that he earned in the year 1944', Opponents have cited a line of cases beginning in 1939 with the Succession of Bell [194 La. 274], 193 So. 645, progressing through the 1941 case of Sanderson v. Frost [198 La. 295], 3 So.2d 626, the 1946 case of Thomas v. Thomas, [La.App.] 27 So.2d 758, the 1952 case of Coney v. Coney [230 La. 821] 89 So.2d 55, the 1962 case of Locantro v. Falco [La.App.], 144 So.2d 742, the 1968 case of Hollier v. Fontenot [La.App.], 216 So.2d 842, and culminating in the 1969 case of Boulet v. Fruge [La. App.], 221 So.2d 602. It is their contention that all of these cases stand for the proposition that if the `double barreled' declaration of paraphernality is made by the husband, even though the property is acquired during the existence of the community this recitation in the deed of acquisitionthat the property is purchased with separate funds and is to form a part of his separate estateis sufficient to "prove" the separate status of the property.
"Counsel for the Executrix on the other hand has cited a line of cases, Huntington Adm'r v. Legros, 18 La.Ann. 126, Shaw v. Hill, 20 La. Ann. 531, Stauffer, McCready & Co. v. Morgan, 39 La.Ann. 632, Gogreve v. Deahon [Dehon], 41 La.Ann. 244 [6 So. 31], Cosgrove v. His Creditors, 41 La.Ann. 274, Schwab v. Hava, et ux [154 La. 922], 98 So. 420, Houghton v. Hall, et al [177 La. 237], 148 So. 37, Murff v. Neal, et al [La.App.], 162 So. 245, Cox v. Caldwell [La.App.], 197 So. 167, Succession of Frenek [Franek, 224 La. 747], 70 So.2d 670, Prince v. Hopson [230 La. 575], 89 So.2d 128, Monk v. Monk [243 La. 429] 144 So. 2d 384, Succession of Winney [Winsey, La.App.], 170 So.2d 732, Succession of Elrod v. Elrod [La.App.], 218 So.2d 83 which he maintains stands for the proposition that the codal presumption that property acquired during the community is community property is so strong that unless the `double-barreled' recitation is made, evidence cannot even be introduced to prove that it should have, at acquisition time, attained a separate status. It is his contention that the `double-barreled' recitation is not `proof of the separate status, but is merely a safeguard to the husband or his heirs to later permit proof to be introduced to negate the presumption that property acquired during the existence of the community is community property.
"The presumption is based on Article 2402 of the Civil Code which labels as community property that which is acquired by purchase during the marriage.
*803 "The Court listened with interest to the arguments of counsel and read cases cited in support of each argument. Our conclusion from reading the many cases cited on this point is that the appellate courts, while holding that proof beyond recitation of paraphernality is necessary, have permitted the mere recitation to seem sufficient, as witness the following excerpts:
"In order for immovable property purchased by the husband during marriage to become his separate property, it must be stated in the Act of Purchase that the land is being bought by the husband for his separate estate and with his separate funds; otherwise the property will thenceforth be conclusively presumed to belong to the community. See Coney v. Coney, 220 La. 473, 56 So.2d 841. Smith v. Smith (1956) [230 La. 509], 89 So.2d 55, 59.'
"Because the deed failed to contain the double declaration, the property in the instant case belongs to the community which existed between Joseph Boulet and Angele Johnson on the date of the sale. Boulet v. Fruge ([La.App.] 1969), 221 So.2d 602.'
"These quotations almost directly state the proposition urged by Opponents. Pittman did, in fact, recite that the land in question was being bought with funds he earned in the year 1944 (this was between marriages), which had been kept separate and apart from any money which belonged to the community that existed between him and his second wife, that the property he was acquiring was his own separate and paraphernal property and that it did not fall into the community which existed between him and Octavia La Mulle, his second wife. BUT the quoted statement was preceded by the following sentence, "As a matter of fact, the effect of a recitation of paraphernality is quite limited.". (Smith case).
"In Locantro v. Falco, ([La.App.] 1962), 144 So.2d 742, the appellate court, in denying the separate status of the property, held that the husband had failed to make the `double declaration' in his deed of acquisition and quoted from the Succession of Chapman, 225 La. 641, 73 So.2d 789, 790, to wit:
`The Court said:
'The presumption in favor of the community is juris et de jure. When a married man buys property in his name without stipulating that property is bought with his separate funds and for his separate use, the presumption in favor of the community is juris et de jure. Sanderson v. Frost, 198 La. 295, 3 So.2d 626; Slaton v. King, 214 La. 89, 36 So. 2d 648, Lewis v. Clay, 221 La. 663, 60 So.2d 78.'
"But preceding this quotation in the Locantro case, the Fourth Circuit said:
`In order to be able to prove that his ownership of those lots did not fall into the community, the deed to Dominick must contain the sacramental double declaration that the property is purchased with his separate and paraphernal funds and the property is to become and remain his separate and paraphernal estate. Plaintiff's deed does not contain any such provision. No amount of testimony can supply that omission from a deed to the husband. (Emphasis supplied).'
"Thus, it is obvious that while the court refers to the necessity of the sacred `double declaration', the court by its above statement is clearly indicating that this double declaration does no more than reserve to the husband or his heirs the right to attack or rebut the presumption of community.
"While the many cases cited by Opponents do not directly state that the `double declaration' serves only to preserve the right to attack the community status of the property, the cases cited in support of the Executrix's position clearly indicate that this is the interpretation of the appellate *804 courts. The courts refer to this principle as being well settled in our law:
`The law is well settled to the effect that property acquired during the existence of the community is presumed to be community property. LSA-C.C. arts. 2334, 2402, 2405. The burden of overcoming this presumption rests upon the party asserting the separate and paraphernal nature of the property. To overcome this heavy burden, proof must be clear, positive, and of a legally certain nature that the property was acquired with separate and paraphernal funds. It is also well settled that declarations of paraphernality by the husband are immaterial. The presumption that the funds are of the community still has to be overcome. Monk v. Monk, 243 La. 429, 144 So.2d 384 (1962); Prince v. Hopson, 230 La. 575, 89 So.2d 128 (1956); Succession of Franek, 224 La. 747, 70 So.2d 670 (1953); Houghton v. Hall, 177 La. 237, 148 So. 37 (1933); Succession of Winsey, 170 So.2d 732, La.App. 1st Cir. (1964).' (Emphasis supplied), Succession of Elrod v. Elrod [La.App.], 218 So.2d 83.'
"We conclude, therefore, on this first question that over the years a jurisprudential doctrine has evolved supplementing the codal presumption that property acquired during the community is community property, prohibiting the husband from introducing evidence to prove the separate nature of the property if the deed of acquisition fails to contain the `double declaration'. We hold that the `double declaration' is not in itself proof of the separate status and does not of itself overcome the presumption; it merely permits the introduction of evidence if a party seeks to prove the separate nature of property acquired during a community. The latest expression of the sacramental nature of this `double declaration', continuing this jurisprudential doctrine, can be found in the very recent case of Poole v. Poole, ([La. App.] 1972), 270 So.2d 218, wherein the court said:
`it is well established that a husband purchasing immovable property during the existence of a marriage must make a declaration in the act of conveyance that the property acquired is to be his separate property and the funds used to purchase are his separate funds. In absence of such a declaration the property is presumed to be community property and his presumption is conclusive. Therefore, this immovable property belongs to the community estate. LSA-C.C. arts. 2334, 2402. Smith v. Smith, 230 La. 509, 89 So.2d 55 (1956). Boulet v. Miguez, 221 So.2d 602 (3rd La.App. 1969).' (Emphasis supplied).'
"The court's statement that in the absence of the double declaration the `presumption is conclusive' is indicative to this Court that the First Circuit is again declaring that the `double declaration' merely maintains the presumption as a rebuttable presumption to permit the introduction of evidence.
"Opponents failed to introduce any evidence whatsoever in support of the decedent's declaration in his deed that the property had been purchased with his separate funds. The presumption of community has not been rebutted, and the inclusion of this property in the inventory as community property is therefore upheld.
"Having determined that the home property was community property, we need not concern ourselves with the value of the property at the time of acquisition or the value of the additions recognized to have been made as community additions, but merely with the value of the property for inventory purposes as of the date of death. The only recognized `expert' realtor and appraiser who gave testimony in his case was Mr. Charles N. Shaver, who testified on behalf of Opponents. He was tendered as an expert by counsel for Opponents and accepted by counsel for the Executrix as such. It was his testimony that the house, with improvements, had a replacement value of Twenty-Four Thousand, Four Hundred *805 Fifty-four and no/100 ($24,454.00) Dollars. He subjected this figure to a thirty per cent (30%) depreciation based on his estimate that the house was twentyfive years old, which left a net value of Seventeen Thousand, One Hundred Eighteen and no/100 ($17,118.00) Dollars, which he rounded off at Seventeen Thousand One Hundred and no/100 ($17,000.00) Dollars. He valued the fifty foot (50') lot at Two Thousand, Three Hundred and no/100 ($2,300.00) Dollars and the sixty-five foot (65') lot at Three Thousand and no/100 ($3,000.00) Dollars, or a total value of Twenty Thousand, One Hundred and no/100 ($20,100.00) Dollars.
"However, by the unrebutted testimony of the witnesses for the Executrix, the house was actually thirty-six years old. Applying Mr. Shaver's depreciation of one and two/tenths per cent (1.2%) per year, the depreciation factor should have been forty-three and two-tenths per cent (43.2%) instead of the thirty (30%) per cent he has applied. This, therefore, reduced the present value of the house and improvements from Seventeen Thousand, One Hundred and no/100 ($17,100.00) Dollars to Thirteen Thousand, Eight Hundred and Eighty-nine and 87/100 ($13,889.87) Dollars combined with the value of the land, which does not suffer depreciation, for a total of Sixteen Thousand, Eight Hundred Eighty-nine and 87/100 ($16,889.87) Dollars.
"In opposition to this expert testimony on value, the Court heard the testimony of the Executrix and the two appraisers appointed for the inventory. By their own admissions, Mrs. Pittman, the Executrix, and Mr. Boudreaux, and Mr. Blouin, the appraisers, were neither relators nor professional appraisers and the experience of all three was very limited.
"Accordingly, the Court will accept the valuation as placed by Mr. Shaver, the `acknowledged expert'.
"It may be noted here that at the time of Mr. Shaver's testimony and the testimony of one of the Opponents, counsel for the Executrix objected to any evidence which increased the value beyond the claimed value of Fifteen Thousand and no/100 ($15,000.00) Dollars, maintaining that to permit the introduction of this evidence would constitute an enlargement of the pleadings. The Court finds that Opponents in their petition opposing the valuation of Eight Thousand, Five Hundred and no/100 ($8,500.00) Dollars on this property allege that it had a value of approximately Fifteen Thousand and no/100 ($15,000.00) Dollars. Since we have determined the value from the evidence to be Sixteen Thousand, Eight Hundred Eightynine and 87/100 ($16,889.87) Dollars, we feel that this falls within the allegation of `approximately' and, therefore, see no merit to the objection or any need for the Court to discuss this point at length.
"And finally, Opponents deny the Executrix the right to decide how the forced heirs of deceased will be compensated in their legitime for their proportionate share of the value of the home property which was bequeathed to the Executrix. The Executrix proposes in the Tableau to make up this value in cash. However, it is a well settled point of law that the wishes of the Testator should be strictly construed and the estate distributed in accordance with these wishes.
"The Court notes that the first bequest in the decedent's will was of the legitime, which, because he had four (4) children, was declared to be two-thirds (2/3) of his estate. The next bequest was the sum of One Thousand and no/100 ($1,000.00) Dollars in cash to his first wife, Mary Blanchard Pittman, and finally he leaves the residue of his estate, particularly his half of the community home, to his second and surviving wife, Octavia La Mulle Pittman. He directs her to compensate his children out of `my other property' to make up their legitime so that she would have the home in its entirety, free from any claim by them. At his death, his estate owed Eighty-seven and 52/100 *806 ($87.52) Dollars as his share of outstanding community debts and with his separate debts for funeral expenses and the settlement of his estate totalling Three Thousand, Nine Hundred Sixty-three and 71/100 ($3,963.71) Dollars the total debts amounted to Four Thousand, Fifty-one and 23/100 ($4,051.23) Dollars. We further note that at the time of his death the only cash was a checking account in Lafourche Parish in the amount of Three Thousand, Two Hundred Thirty-one and 48/100 ($3,231.48) Dollars, half of which, or the sum of One Thousand, Six Hundred Fifteen and 74/100 ($1,615.74) Dollars, belonged to his estate. In short, at the time of his death he did not leave sufficient cash to meet the obligations.
"The Executrix proposes in the Tableau to compensate the heirs for their portion of the family home in cash, but to do this, list as assets collections received subsequent to his death, primarily royalty collections from producing property in Terrebonne Parish. This cash was not a part of his estate nor was it listed in his inventory, nor was it considered in the computation of inheritance tax, and the omission is correct because it was not in existence at the time of his death. Consequently, the Court cannot approve using this money to make up the legitime due the forced heirs. Decedent specifically stated that they were to be compensated `out of my other property', and we, therefore, hold that it is incumbent upon the Executrix, and she is so directed in the will, to make up their legitime from the other property, that is, property besides his interest in the community home, and their two-thirds (2/3rds) interest in all of the other items, and the thousand dollar legacy to their mother. It must come from the disposable portion of the other assets. The Court, therefore, sustains the Opponents in their opposition to the Tableau in this respect, and accordingly,
"IT IS ORDERED, ADJUDGED AND DECREED that (1) the family home is correctly included in decedent's estate as community property, (2) the Tableau of Distribution filed herein be amended to provide that the family home as listed under Items 1 and 2 of the Lafourche Parish inventory be valued at the sum of Sixteen Thousand, Eight Hundred Eighty-Nine and 87/100 ($16,889.87) Dollars, and (3) the Executrix, Mrs. Octavia La Mulle Pittman, compensate the four opponents, children of the first marriage of Edwin C. Pittman to Mary Blanchard, out of other property of the estate of Edwin C. Pittman to make up the value in their ligitime of their interests in decedent's half of the community home bequeathed to the Executrix, Mrs. Octavia LaMulle Pittman."
In this court, for the first time, the Executrix has argued that the values placed on the mineral interests in the estate are too low. She claims that the trial court should have accepted or rejected the valuations contained in the inventories in toto, and asks that the case be remanded for further evidence as to the value of the mineral interests. The contention is without merit.
Under Article 3135 of the Code of Civil Procedure, a public inventory is "prima facie proof of all matters shown therein", and may be traversed only by contradictory motion. No motion has been filed by any party contesting the valuations placed on the mineral interests, nor has any evidence been offered to show that they are incorrect.
The tableau of distribution, which was filed by the executrix, is based on the values shown in the inventory, the homologation of which was sought and obtained by the Executrix. We are of the opinion that she has thereby judicially admitted the correctness of the matters therein set forth. She can not now attack her own declarations and acts. Article 2291, Louisiana Civil Code; Succession of Prudhomme, 23 La.Ann. 228 (1871).
The judgment appealed from is therefore affirmed, at the cost of the appellant.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/544803/ | 908 F.2d 918
12 ITRD 2101
3M HEALTH CARE, LTD., Plaintiff-Appellant,v.Richard R. GRANT, Administrator, Pharmacy Program, FloridaDepartment of Health and Rehabilitative Services,State of Florida, Defendants-Appellees.
No. 89-6100.
United States Court of Appeals,Eleventh Circuit.
Aug. 13, 1990.
Edward M. Joffe, Sandler, Travis & Rosenberg, Miami, Fla., for plaintiff-appellant.
George L. Waas, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Florida.
Before FAY and JOHNSON, Circuit Judges and GIBSON*, Senior Circuit Judge.
FLOYD R. GIBSON, Senior Circuit Judge:
1
Appellant, 3M Health Care, Ltd. ("3M"), sued the State of Florida and others in federal district court, seeking declaratory and injunctive relief from compliance with Florida's Drug and Cosmetic Act in its warehousing activities in the Port Everglades Foreign Trade Zone. 3M argued that the state law was preempted by the Foreign Trade Zones Act. The district court disagreed, granted summary judgment to Florida, and dismissed 3M's action. We reverse on the grounds that the Florida law as applied in this factual situation frustrates the congressional intent behind the Foreign Trade Zones Act.
I. FACTS
2
Because the case has come to us on appeal of summary judgment, we construe the facts in the light most favorable to 3M, the Appellant. Stephens v. Department of Health and Human Services, 901 F.2d 1571, 1573 (11th Cir.1990). 3M Health Care, Ltd. is a British subsidiary of the 3M Corporation headquartered in St. Paul, Minnesota. 3M Riker U.K. is the name under which 3M Health Care, Ltd. does business in the Port Everglades Foreign Trade Zone (the "zone") in Florida.
3
Foreign trade zones were created by the Foreign Trade Zones Act of 1934.1 The act authorizes a board to create trade zones at ports of the United States through which goods can pass without being subject to United States customs duties. See 19 U.S.C. Sec. 81c (1988); Nissan Motor Mfg. Corp., U.S.A. v. United States, 884 F.2d 1375, 1376 (Fed.Cir.1989). The purpose of the act is simple and express: "[t]o provide for the establishment, operation, and maintenance of foreign-trade zones in ports of entry of the United States, to expedite and encourage foreign commerce, and for other purposes." Foreign Trade Zones Act, ch. 590, 48 Stat. 998 (1934). Though the goods in a zone are exempt from customs duties, the Customs Service is present in the zones to oversee their operation. See Foreign Trade Zones, 19 C.F.R. Sec. 146.3 (1989); A.T. Cross Co. v. Sunil Trading Corp., 467 F.Supp. 47, 51 (S.D.N.Y.1979).
4
Since 1982, 3M Riker U.K. has transshipped pharmaceutical and other products through the zone at Port Everglades, Florida, to Latin American and Caribbean countries. 3M Riker U.K. does not manufacture any of the goods, but other 3M affiliates do. 3M Riker U.K. uses the zone for storage, handling, repackaging, and shipping of the goods. Purchasers in Latin America and the Caribbean send orders to a 3M office in Miami, Florida, which sends the order information to 3M Riker U.K. headquarters in Britain. The orders are then filled and shipped from the 3M warehouse in the zone.
5
3M does not ship any of the pharmaceutical goods from the zone into the United States for domestic sale. In fact, none of them are approved for sale in the United States by the Food & Drug Administration. Only one of the goods is manufactured in the United States--by a Californian affiliate of 3M. That product, like all the others, is only transshipped through the zone for Latin American purchasers.
6
In November of 1988, the Florida Department of Health and Rehabilitative Services, pursuant to Florida law, served 3M Riker U.K. with notice that it intended to enter and inspect the 3M warehouse in the zone to determine compliance with Florida's Drug & Cosmetic Act.2 Florida again served notice on 3M Riker U.K. in December of 1988 and in March of the following year. Florida took the view that 3M had to be licensed as a drug wholesaler under Florida law to conduct its operations in the zone. 3M, of course, took the contrary view and so indicated in a letter to the state's Pharmacy Program Administrator in January of 1989.
7
Finally, on Friday, March 24, 1989, Florida served 3M with an administrative subpoena requiring the company to appear the following Monday by representative with certain documents concerning the pharmaceuticals shipped through the zone. 3M did not comply with the subpoena, but instead filed this action in federal district court on March 31, 1989. 3M sued the State of Florida, its Department of Health and Rehabilitative Services, and the Administrator of the Department's Pharmacy Program, Richard Grant. 3M's complaint asked for a declaratory judgment that the Florida law was preempted by the Foreign Trade Zones Act and for appropriate injunctive relief. Defendant Grant responded by general denial, while the State and its Department of Health and Rehabilitative Services sought to dismiss 3M's action against them based on Eleventh Amendment immunity.3
8
The case went to summary judgment consideration by the district court after cross-motions by the parties. The district court concluded that Florida's regulation of pharmaceuticals flowing into its commerce under the Drug & Cosmetic Act was a valid exercise of police power not preempted by the Foreign Trade Zones Act. 3M took this appeal.
II. ANALYSIS
9
This case presents the familiar and necessary problem that arises from the conflict between concurrent state and federal jurisdiction. Its resolution implicates the principles of federalism. While our nation operates as a republic of individual states, when a conflict arises between the laws of a state and the nation, the law of the nation controls. Supremacy Clause, U.S. Const. art. VI. Though the analysis is more complicated than that, we believe this case resolves itself on rather simple facts. The question to be answered is whether 3M must, within a foreign trade zone, abide by Florida's Drug & Cosmetic Act in its warehousing of export-only pharmaceuticals. If federal law preempts the state law, 3M need not meet the state requirements.
10
The law of preemption was explained in a recent case from this court:
11
Federal law may preempt state law in three ways. First, Congress, in drafting a statute, may use language that dictates the extent to which the statute preempts state law. Second, despite the absence of such language, the wording of the statute or its legislative history may evince Congress' intent to occupy a given regulatory field to the exclusion of state law. Third, even when Congress has not occupied the entire regulatory field, federal law nevertheless may implicitly preempt state law to the extent that state law conflicts with a federal regulatory scheme.
12
Taylor v. General Motors Corp., 875 F.2d 816, 822 (11th Cir.1989) (citations omitted), cert. denied, --- U.S. ----, 110 S.Ct. 1781, 108 L.Ed.2d 783 (1990).
13
The first two kinds of preemption are not applicable in this case. Congress did not express in the Foreign Trade Zones Act the extent to which the act might preempt state laws. Nor has Congress, by statute or legislative history, indicated that it intended to occupy the field of wholesale pharmaceutical law to the exclusion of the state of Florida. In fact, the Foreign Trade Zones Act has nothing whatever to do with pharmaceuticals, per se, as the Florida act does. The two are operating, in part, on different planes. The federal act seeks to regulate how goods can flow through special zones to avoid the customs duties of the United States, while the state act seeks to regulate pharmaceuticals in the commerce of Florida. Thus, there is room for the two laws to operate coextensively, to the extent that the state law does not conflict with the federal law. Though the Foreign Trade Zones Act says nothing about pharmaceuticals, that does not mean that Florida's Drug & Cosmetic Act as applied will not create a conflict with the Foreign Trade Zones Act which might require preemption of Florida law.
14
"Such a conflict will be found when the state law ' "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." ' Hillsborough County v. Automated Medical Laboratories, Inc., [471 U.S. 707] at 713 [105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985)] (quoting Hines v. Davidowitz, 312 U.S. 52, 67 [61 S.Ct. 399, 404, 85 L.Ed. 581] (1941) [footnote omitted]." International Paper Co. v. Ouellette, 479 U.S. 481, 491-92, 107 S.Ct. 805, 811-12, 93 L.Ed.2d 883 (1987). In Taylor, this court described it thusly:
15
federal law preempts state law when state law creates "a potential frustration of the administrative scheme provided by [the federal law]," Howard v. Uniroyal, Inc., 719 F.2d 1552, 1562 (11th Cir.1983), or when the state law "interferes with the methods by which the federal statute was designed to reach [its] goal." International Paper Co. v. Ouellette, 479 U.S. 481, 494, 107 S.Ct. 805, 813, 93 L.Ed.2d 883 (1987).
16
Taylor, 875 F.2d at 825-26.
17
Here the goal of the Foreign Trade Zones Act is straightforward--to facilitate the use of U.S. ports for the transshipment of goods in foreign commerce. The use of our ports for the warehousing of goods in international trade was considered an endeavor worthwhile enough to exempt such goods from customs duties and thus to make the use of our ports as easy as possible for transshipment. The zones are to operate with few formalities to encourage the use of our ports. While the exemption from customs duties is likely the singlemost attractive feature that so encourages use of the zones, it alone cannot ensure the use of the zones as Congress intended if the states are free to encumber zone operations with multifarious regulations over goods in which they have no interest. To the extent that Florida law would encumber the ease of transshipment through the zones by requiring unnecessary regulation of goods in which it has no interest, it frustrates the goal of the Foreign Trade Zones Act.4
18
Florida's attempted regulation of 3M's warehousing of pharmaceuticals destined for Latin America is clearly unnecessary. Without going into all the details of the Florida Drug & Cosmetic Act, we conclude that, as sought to be applied in this case, it interferes with the objects and goals of the Foreign Trade Zones Act. Florida, for example, would have the power pursuant to its law to inspect 3M's warehouse in the zone and prevent shipment of (or conceivably destroy) those 3M products that meet a foreign market's standards but that do not meet Florida's standards. See, Fla.Stat.Ann. Sec. 499.051 (West Supp.1990) and Fla.Stat.Ann. Secs. 499.06, 499.062, 499.063 (West 1988). Nevertheless, it is not so much the requirements of Florida's law themselves that obstruct the purposes of the Foreign Trade Zones Act--the law in the right circumstance would be a valid exercise of police powers--it is the fact that Florida seeks to use its law to regulate foreign goods that legally cannot enter the commerce of the United States in a place set aside by Congress for ease and economy of transshipment of such goods that is obstructive of the federal law's purpose to attract foreign trade in a global market.5
19
We disagree with the district court that Florida has any public health or safety interest in goods that never enter the commerce of the United States, much less the commerce of Florida. See Order of Final Summary Judgment at 7. The police powers of a state are especially strong to protect its citizens from harm, yet they are effective only over activities in the state. While the zone is located within the boundaries of the state, the warehousing done by 3M in the zone has nothing to do with Florida. It is not that the zone is a federal enclave beyond the reach of all of Florida's laws, it is simply that the activities of 3M in the zone cannot be said to be of interest to Florida for purposes of its police powers. If 3M were shipping these goods into Florida, then Florida's authority to regulate in the zone would likely be certain. If that were the case, the Customs Service would also be more closely involved because foreign goods would be entering the commerce of the United States.
20
But as the facts lie here, 3M does not bring goods into Florida or any other state. Rather, 3M seeks only to use the zone for its intended purpose--to warehouse goods travelling in foreign commerce. 3M could do that anywhere a sovereign permitted; apparently 3M at one time used warehousing facilities in Panama and Jamaica. That 3M uses a warehouse in a zone in the physical boundaries of Florida does not alone give Florida a safety or health interest in goods that cannot enter its commerce. Unless and until 3M also brings goods into the commerce of Florida, it cannot regulate 3M's warehousing of pharmaceuticals without unnecessarily complicating the ease with which Congress intended foreign trade zones to be used for transshipment and without unnecessarily contravening congressional intent.6
21
Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960), is not contrary authority.7 In Huron, the City of Detroit had imposed an air pollution ordinance on vessels in its port which required modifications to ships' boilers despite the fact that the ships had already passed inspection by the federal government and had received licenses to operate in navigable waterways. The Court concluded that the federal inspection law was "limited to affording protection from the perils of maritime navigation," while "the sole aim of the Detroit ordinance [was] the elimination of air pollution to protect the health and enhance the cleanliness of the local community." Id. 362 U.S. at 445, 80 S.Ct. at 817 (citations omitted). Thus there was room for the Detroit ordinance to operate alongside the federal law because "there [was] no overlap between the scope of the federal ship inspection laws and that of the municipal ordinance ... involved." Id. at 446, 80 S.Ct. at 817 (footnote omitted). The ships in Detroit's port, despite their federal licenses, were actually polluting the air in violation of the Detroit ordinance. A federal license did not "immunize a ship from the operation of the normal incidents of local police power, not constituting a direct regulation of commerce." Id. at 447, 80 S.Ct. at 818.
22
In this case, however, Florida has attempted to do more by its Drug & Cosmetic Act with respect to 3M's transshipments than Detroit did by its pollution ordinance. While Detroit had an interest in the quality of its air, Florida has no interest in pharmaceuticals that cannot by law enter its commerce. There is nothing in this record that indicates Florida is being polluted with illegal pharmaceuticals by 3M's legal operation of a warehouse in a federally authorized foreign trade zone the way that Detroit's air was being polluted by the smoke of federally licensed ships. To the extent that Florida has attempted to extend its police powers over the operation of 3M's warehousing of export-only pharmaceuticals, Florida has attempted to directly regulate commerce and is impliedly preempted from doing so by congressional intent manifested in the Foreign Trade Zones Act and its regulations.
III. CONCLUSION
23
As applied to 3M Health Care Ltd.'s operations in the Port Everglades Foreign Trade Zone, the Florida Drug & Cosmetic Act is preempted by the Foreign Trade Zones Act. The district court's order of final summary judgment to Defendants-Appellees is REVERSED, and the cause is REMANDED for entry of summary judgment in favor of 3M Health Care, Ltd. and other proceedings consistent with this opinion.
*
Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designation
1
Foreign Trade Zones Act, ch. 590, 48 Stat. 998 (1934) (codified as amended at 19 U.S.C. Secs. 81a-81u (1988))
2
Fla.Stat.Ann. Secs. 499.001-499.79 (West 1988)
The intent of the act as expressed therein is to:
(1) [s]afeguard the public health and promote the public welfare by protecting the consuming public from injury by product use, and protecting the purchasing public from injury by merchandising deceit, flowing from intrastate commerce in drugs, devices, and cosmetics.
Id. at Sec. 499.002.
The State of Florida describes its powers and duties under the Drug & Cosmetic Act in its brief as follows:
The State of Florida, through its Department of Health and Rehabilitative Services (HRS), licenses, regulates, and polices drug wholesalers to safeguard the public health from injury by misbranded or adulterated medicinal drugs and protect the public from injury by fraud or deceit. Licensing of drug wholesalers allows HRS to set up the administrative activities necessary to monitor the flow of medicinal drugs into, within, and out of the State of Florida.
Appellees' Brief at 5 (citation omitted).
Chapter 893 of the Florida Statutes, the Florida Comprehensive Drug Abuse Prevention and Control Act, is tangentially implicated in this case. Under Chapter 499, inspections by the state are to determine compliance with Chapters 499, 893, and 465. Fla.Stat.Ann. Sec. 499.051 (West Supp.1990). However, it is only Chapter 499's operation that is under review by us.
3
The district court did not discuss this question in its final order of summary judgment. The Appellees have not argued it to us. We express no view on the subject
4
We do not read 19 C.F.R. Sec. 146.4(f) (1989), as Florida suggests, to empower the state to regulate where it has no interest. That section directs that:
The [zone] operator shall store and handle merchandise in a zone in a safe and sanitary manner to minimize damage to the merchandise, avoid hazard to persons, and meet local, state, and Federal requirements applicable to a specific kind of goods.
That direction is to the zone operator, not the state. The applicable local and state requirements with which the operator must comply to ensure safe and sanitary operation of the zone are necessarily only those requirements that are not otherwise preempted by federal law, as we ultimately conclude Florida's requirements as applied to 3M are in this case.
5
Florida has argued that contraband does leak out of foreign trade zones either by fault of the Customs Service or the operators of the zones and warehouses. Even if that is taken by us to be true, while we acknowledge the grave problem that illicit drug traffic can present a state, still we cannot find room for state police powers to operate over export-only goods that never legally enter the commerce of the United States while they are warehoused in a foreign trade zone. To conclude otherwise would suggest that Florida was free to inspect, for example, drugs warehoused in Georgia or Alabama, on the belief that those places were the source of contraband entering Florida's commerce
6
Our analysis here has been informed by the treatment the United States Supreme Court gave preemption analysis when dealing with goods destined only for foreign markets and those destined for domestic markets as well. In Xerox Corp. v. County of Harris, Texas, 459 U.S. 145, 103 S.Ct. 523, 74 L.Ed.2d 323 (1982), the Court found local ad valorem taxes on copy machines stored in customs-bonded warehouses and destined for foreign markets were preempted by federal customs laws, while in R.J. Reynolds Tobacco Co. v. Durham County, 479 U.S. 130, 107 S.Ct. 499, 93 L.Ed.2d 449 (1986), the Court concluded that a local ad valorem tax on tobacco in customs-bonded warehouses was not preempted by federal customs laws because the tobacco was destined for domestic manufacture and domestic markets. The Court expressly distinguished Xerox on its foreign market facts. Id. 459 U.S. at 141-44, 103 S.Ct. at 521-22
While we recognize that the imposition of ad valorem taxes is not the equivalent of Florida's exercise of police power in this case, we believe the Supreme Court's emphasis on the facts that the goods in Xerox were being transshipped (to, coincidentally, Latin America) and were not for domestic sale lends support to our emphasis on the similar facts of this case and our finding of preemption. Thus, while the Court in R.J. Reynolds did not believe "the purposes in forming the customs-bonded warehouse scheme identified by the Court in Xerox would be disserved by the imposition of ad valorem property taxes on Reynolds' imported tobacco[,]" id. 459 U.S. at 144, 103 S.Ct. at 522, we believe Congress' purposes in creating foreign trade zones would be disserved by the imposition of Florida's Drug & Cosmetic Act, regulations, and operation on 3M's transshipment of pharmaceuticals through the zone.
7
We address Huron because of the district court's reliance thereon. Discussion of the numerous preemption cases from the Supreme Court and elsewhere is unnecessary, because "verbal generalizations do not of their own motion decide concrete cases[.]" Huron 362 U.S. at 444, 80 S.Ct. at 816. We have outlined the applicable legal framework and resolve this case on its own peculiar facts. See id | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1612248/ | 11 So. 3d 957 (2009)
JEFFERSON
v.
STATE.
No. 3D09-595.
District Court of Appeal of Florida, Third District.
April 22, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612230/ | TOWN OF BRUSLY
v.
GEORGE M. "SKIPPER" GRADY
No. 2009 CA 0238.
Court of Appeals of Louisiana, First Circuit.
June 19, 2009.
Not Designated for Publication
A.M. "TONY" CLAYTON, MICHAEL P. FRUGE, Port Allen, Louisiana, Counsel for Plaintiff/Appellee Town of Brusly.
STEPHEN M. IRVING, Baton Rouge, Louisiana, Counsel for Defendants/Appellants, George M. "Skipper" Grady and Court, Street Development, L.L.C.
Before: PARRO, McCLENDON, and WELCH, JJ.
McCLENDON, J.
The Town of Brusly filed suit against George M. "Skipper" Grady seeking an injunction. Mr. Grady appealed a judgment granting a preliminary injunction. We reversed. Subsequently, the owner of the property in question, Court Street Development, L.L.C. (Court Street), intervened and was later joined as a defendant by Brusly's supplemental and amending petition. After a trial on the merits of a permanent injunction, the trial court granted the permanent injunction. Court Street and Mr. Grady appealed. We affirm the judgment.
PROCEDURAL AND FACTUAL BACKGROUND
In the previous appeal on the grant of the preliminary injunction, this court was required to determine if Brusly was likely to prevail on the merits of whether Mr. Grady had violated zoning ordinances. To that end, we conducted a general analysis of the applicable sections of the Brusly, Louisiana Code. Zoning Ordinance (zoning ordinance). See Town of Brusly v. Grady, XXXX-XXXX (La.App. 1 Cir. 5/4/07)(unpublished), writ denied, XXXX-XXXX (La. 10/26/07), 966 So. 2d 582. After our review, we found that the zoning ordinance listed low density housing as not compatible with C-l and high to medium density housing as compatible. Brusly. Louisiana Code. Zoning Ordinance, Sections 19.21(c)(7) & (8). The zoning ordinance, however, did not define the housing terms. After considering the zoning ordinance's numerous residential categories, we noted that low density could possibly be described as a single family dwelling, and that medium to high density housing "may" be reasonably interpreted to include multi-family housing.[1] See Town of Brusly, XXXX-XXXX at p. 3; Brusly, Louisiana Code. Zoning Ordinance, Sections 19.21(c)(7) & (8) and 19.32. We did not use the mandatory "shall" and, due to the scarcity of facts on the true ownership of the property and the actual residential usage employed or contemplated, we made no definitive decision on how the zoning ordinance should be interpreted or applied to what might be shown as the actual usage in this case or in future cases. Based on our general analysis, the lack of essential facts, and the confusion over the ownership of the property, we found that Brusly had not established that it was likely to prevail on the merits. Town of Brusly v. Grady, XXXX-XXXX at p. 3. Therefore, we reversed the grant of the preliminary injunction and remanded.
After a trial on the merits of a permanent injunction, a judgment was signed on August 29, 2008, enjoining the true owner of the property. Court Street, and its "agents, employees and all other persons, firms or corporations acting or claiming to act on [its] behalf, from renting and/or leasing the premises located at 557 East Main Street, Brusly, Louisiana, to residential tenants or in any other manner inconsistent with the commercial zoning of said property."
The judgment also sustained Brusly's peremptory exceptions raising the objections of no right of action and no cause of action. See LSA-C.C.P. art. 927. Through the exceptions, Brusly had argued that Court Street was not before the court in the prior proceeding for a preliminary injunction and had not been enjoined. Thus, Court Street's demand for damages in its intervention should be dismissed.
On appeal, Court Street and Mr. Grady assigned error to the grant of the permanent injunction, the trial court's unconstitutional interpretation of the zoning ordinances, and the trial court's maintenance of plaintiff's peremptory exceptions raising the objections of no right of action and of no cause of action as to Court Street's claim for damages. See LSA-C.C.P. art. 927. Appellants also filed in this court a peremptory exception raising the objection of no cause of action. See Id.
APPLICABLE LEGAL PRINCIPLES
An injunction shall issue "where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law ... ." LSA-C.C.P. art. 3601. A preliminary injunction is an interlocutory judgment designed to maintain the status quo ending a trial on the merits for permanent injunctive relief. Freeman v. Treen, 442 So. 2d 757, 763 (La.App. 1 Cir. 1983). Generally, an applicant for a preliminary injunction must (1) show that he will suffer irreparable harm and (2) make a prima facie showing that he is likely to prevail on the merits. Brennan v. Board of Trustees for University of Louisiana Systems, 95-2396, p. 6 (La.App. 1 Cir. 3/27/97), 691 So. 2d 324, 328. Irreparable harm must be proved by clear and convincing evidence. See Vartech Systems, Inc. v. Hayden, 2005-2499, p. 16 (La.App. 1 Cir. 12/20/06), 951 So. 2d 247, 262. However, where the threatened action is shown to be in direct violation of a prohibitory law, such as a valid zoning ordinance, it is not necessary for plaintiff to show irreparable harm. City of New Orleans v. Board of Commissioners of Orleans Levee District, 93-0690, p. 30 (La. 7/5/94), 640 So. 2d 237, 253; Jones v. Board of Ethics for Elected Officials, 97-2686, 97-2854, p. 6 (La.App. 1 Cir. 2/20/98), 709 So. 2d 841, 845, writs denied, 98-0750 (La. 5/8/98), 718 So. 2d 433 & 98-0782 (La. 5/8/98), 719 So. 2d 51. The plaintiff need only show a violation of the ordinance by the defendant. City of New Orleans, 93-0690 at p. 30, 640 So.2d at 253.
The issuance of a permanent injunction takes place only after a trial on the merits in which the burden of proof is a preponderance of the evidence. On appeal of the permanent injunction, the appropriate standard of review is the manifest error or clearly wrong standard. Parish of East Feliciana, East Feliciana Parish Police Jury v. Guidry, XXXX-XXXX, p. 14 (La.App. 1 Cir. 8/10/05), 923 So. 2d 45, 53, writ denied. 2005-2288 (La. 3/10/06), 925 So. 2d 515. Under this standard, the court of appeal must review the record in its entirety and find that a reasonable factual basis does not exist for the finding, and further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. If the trial court's findings are reasonably supported in light of the record, the court of review may not reverse. Parish of East Feliciana, East Feliciana Parish Police Jury, XXXX-XXXX at pp. 14-15, 923 So.2d at 53.
The zoning ordinance, Section 19.30(a), entitled "Compliance; other regulations," states, in pertinent part, that "No building . . . shall hereafter be used . . . unless for a use expressly permitted by and in conformity with the regulations herein specified for the district in which it is located, and as set forth in the `Zoning Schedule', Section 19.32, except as hereinafter provided
Section 19.32.10. C-1 Light Commercial, provides in part, as follows:
Uses Permitted: All uses permitted in B-l Transition, and other similar limited commercial uses including but not limited to the following, where the use is determined to be compatible with the Brusly Land Use Plan, the Brusly Land Use Principles and other criteria as set forth in C-l by the Zoning Commission and Town Council.
Following the quoted material in the first paragraph are lists of specifically permitted and prohibited uses.
Section 19.21 of the zoning ordinance is entitled "Brusly land use principles." Section 19.21(c) applies to commercial property and, under (c)(7), states that "Uses compatible with commercial are medium and high density housing, institutions such as . . . colleges and universities, research organizations, . . . and agriculture . . . ." Under (c)(8), "Uses incompatible with commercial are heavy industry and low density housing
APPLICATION OF LEGAL PRINCIPLES TO FACTS PERMANENT INJUNCTION
Brusly highlights the language in Section 19.30(a), "a use expressly permitted by," and argues that only the "permitted" uses specifically listed in Section 19.32.10 are allowed by the zoning ordinance. We disagree, and reject Brusly's conclusion that, because residential housing is not specifically listed, all residential housing is disallowed in C-l.
As written, Section 19.32.10 does not appear to be ambiguous, and it clearly allows not only the specific permitted uses listed below the first paragraph, but also allows the "permitted" uses in the first paragraph referencing B-1 "and other similar limited commercial uses including but not limited to . . . the Brusly Land Use Plan, the Brusly Land Use Principles, and other criteria . . . (Emphasis added.) See LSA-C.C. art. 9. Thus, Section 19.30, by allowing uses "permitted by and in conformity with," does not negate the other "Uses Permitted" in the first paragraph of Section 19.32. The narrow reading adopted by Brusly would also cast doubt on any discretion allotted to the parties responsible for interpreting the zoning ordinance, render meaningless the sections of the zoning ordinance providing compatible uses, and, if only specifically listed uses were permitted, eliminate the need to list prohibited uses. And yet, both compatible uses and prohibited uses appear throughout the zoning ordinance.
However, notwithstanding our rejection of the Brusly interpretation asserted on appeal, we also decline to accept the expansive interpretation of the appellants. Neither the zoning ordinance nor our previous opinion prohibits Brusly from enforcing the applicable sections or exercising the discretion permitted by the zoning ordinance as to what conforms to and is appropriate for C-1.
Applying the applicable zoning ordinance sections to the record before us, we cannot say that a reasonable basis for the finding of the trial court does not exist or that the record establishes that the fact finder is clearly wrong or manifestly erroneous. The record on appeal provides sufficient support for a finding that the property was zoned C-l and leased for commercial uses, and that the use for residential purposes was sporadic, informal, of uncertain duration, and apparently included no more than one family or one person at a time. At the time of trial, the residential use was by one of the business lessees, who used the space for a living area in conjunction with the business use, and, it appears from the record, that the business lessee did not have a residential lease or an occupancy permit allowing residential use. See Brusly v. Louisiana Code, Zoning Ordinance, Section 19.28. As in the previous appeal, the testimony was unclear as to the duration and particular circumstances surrounding the partial use of the space as a living area and as to any future plan for residential use of the property. The trial court could also have reasonably found that the existing building could only sustain low density housing, which is listed as incompatible with commercial zoning, and may be prohibited by Brusly, through the parties responsible for zoning decisions. See Brusly, Louisiana Code. Zoning Ordinance, Preamble & Section 19.21(c)(8). In summary, the record provided a sufficient basis for the trial court to conclude that the usage qualified as low density, that the building would only support low density, and that low density was not compatible with C-1.
Based on those findings, we cannot say that the trial court erred in granting the permanent injunction. Therefore, to the extent that the judgment enjoins the owner of the property, Court Street, through its agents or anyone purporting to act on its behalf, from leasing the premises in question for residential housing in a manner that is inconsistent with the zoning ordinance, the judgment is affirmed. However, we do not find that the zoning ordinance clearly prohibits all residential housing for C-l as a general rule. It follows then that any broader interpretation of the trial court judgment in question, such as a holding that C-1 prohibits, now and in the future, all residential housing; for example, medium to high density housing or institutional housing, such as colleges or hospitals, regardless of the characteristics or circumstances of the particular usage or property, would be dicta and in error at this time.
CONSTITUTIONALITY OF ORDINANCE
It is well established that litigants must raise constitutional challenges in the trial court rather than in the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized. The purpose of this requirement is to allow the parties to brief and argue the issue at a contradictory hearing in the court below, and so provide a full record for this court's review. Taylor v. Clement, 2006-2518, p. 3 (La. 2/2/07), 947 So. 2d 721, 723. In the absence of those prerequisites, as is the case in this appeal, we will not review the issue of constitutionality of the ordinance raised for the first time on appeal. Questions of interpretation necessary to this appeal were considered and resolved in reviewing the issue of the permanent injunction.
DAMAGES
On appeal, Court Street asserts that the trial court erred in granting Brusly's peremptory exceptions, which attacked Court Street's right to obtain damages, and in denying the damages sought in its intervention. In response, Brusly challenges Court Street's right to claim damages and noted that an intervention was not the proper procedural vehicle to pray for damages. See LSA-C.C.P. art. 3608.
Regardless of whether the damages were denied via the grant of the exceptions or the trial court's dismissal of the intervention, the result is the same. The damages sought by Court Street were denied by the trial court, and we find no error in the denial. Even if Court Street had filed a reconventional demand or motion to dissolve pursuant to LSA-C.C.P. art. 3608, Court Street was not a party before the trial court during the hearing on the preliminary injunction and was not enjoined or prevented from acting through another agent. See LSC.C.P. art. 3608. We also note that the record does not contain specific or calculable evidence of damage to Court Street.
APPELLANTS' NO CAUSE OF ACTION
The appellants' argument on the exception of no cause of action appears to be based more on a failure of proof or lack of evidence, than an argument that even if the allegations were proved, they would not afford relief to the claimant. See Adams v. Owens-Corning Fiberglas Corporation, XXXX-XXXX, p. 3 (La.App. 1 Cir. 9/23/05), 921 So. 2d 972, 975, writ denied. 2005-2501 (La. 4/17/06), 926 So. 2d 514; LSA-C.C.P. art. 927. More importantly, we again disagree with appellants' assertion that this court previously held that the property could be used for all residential purposes. We reiterate that, in our general analysis on the question of the preliminary injunction, we merely determined that under the few clear or undisputed facts, Brusly had not shown that it was likely to prevail. After considering Brusly's petition and amended petition in light of the above, and accepting the allegations as true, we find that appellants did not meet their burden of proof and we deny appellants' exception of no cause of action. See Id.
For these reasons, we affirm the judgment. The costs of the appeal are assessed equally to appellants, Court Street Development, L.L.C. and Mr. George M. "Skipper" Grady.
AFFIRMED; EXCEPTION DENIED.
NOTES
[1] Multi-family housing appeared to be the usage in question at the time. The effect of multifamily housing would be determined in part by the definition of low, medium, or high density. Of course, it is within the purview and discretion of the responsible parties for administration and interpretation of the zoning ordinance to make those decisions as needed, as long as the decisions do not unduly detract or erode the rights of private ownership or infringe a vested right. See Lozes v. Waterson, 513 So. 2d 1155, 1157 (La.1987); Preamble, Brusly, Louisiana Code, Zoning Ordinance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612249/ | 239 Miss. 372 (1960)
123 So. 2d 235
WOMBLE, et ux.
v.
MISSISSIPPI STATE HIGHWAY COMMISSION.
No. 41643.
Supreme Court of Mississippi.
September 26, 1960.
*373 Breland & Whitten, Sumner, for appellant.
Murray L. Williams, Water Valley; Stone & Stone, Coffeeville; Matthew Harper, Asst. Atty. Gen., Jackson, for appellee.
*374 HOLMES, J.
This is an eminent domain suit instituted by the appellee, Mississippi State Highway Commission, against the appellants, Robert L. Womble and Mrs. Hazel Ward Womble, to acquire a portion of the lands of the appellants in Yalobusha County for highway right of way purposes in connection with the construction of Interstate Highway No. 55.
The trial in the special court of eminent domain resulted in an award to the appellants of the sum of $8,100. The Mississippi State Highway Commission appealed to the circuit court and the trial in the circuit Court resulted in a jury verdict in favor of the landowners in the amount of $10,650. The Highway Commission filed a motion for a new trial on the grounds of claimed excessiveness of the verdict. On the hearing of the motion for a new trial the circuit judge found that the verdict was grossly excessive and ruled that unless the landowners entered a remittitur of $2700, thus reducing the verdict to $7950, the motion for a new trial should be sustained. The landowners declined to enter such remittitur and accordingly judgment was entered sustaining the motion for a new trial. From this judgment the landowners prosecute this appeal. The landowners were not represented by counsel in either the special court of eminent domain or in the circuit court.
(Hn 1) The sole question presented on this appeal is whether the trial court erred in sustaining the motion *375 for a new trial. The rule as universally announced in our decisions is that the action of the trial court upon a motion for a new trial is to be favorably considered upon appeal and supported unless manifest error appears or unless the action of the trial court in sustaining the motion shows a manifest abuse of his discretion, and the rule is particularly applicable where the new trial has been granted, since in such cases the rights of the parties are not finally settled as they are where a new trial is refused. Smith v. Walsh, 63 Miss. 584; Harper, et al. v. Mississippi State Highway Commission, 216 Miss. 321, 62 So. 2d 375; Long v. Magnolia Hotel Company, 236 Miss. 655, 111 So. 2d 645.
(Hn 2) We are unable to say under the evidence in this case that the action of the trial court in sustaining the motion for a new trial upon the grounds of the excessiveness of the verdict was manifestly erroneous, or that the action of the trial judge in sustaining the motion showed an abuse of his discretion. Four witnesses for the Mississippi State Highway Commission, who qualified as to their familiarity with the land in question and with land values in the vicinity, testified as to the "before and after" value of the land. One placed the difference in value at $5100; another at $5500; another at $4100; and another at $4000. The only evidence to the contrary was that of the appellant, Robert L. Womble. His testimony as to the "before and after" value was vague and general. He said he "thought" that he ought to have $15,000, and that on that basis he placed a value on the land of $85,000 before the taking and $70,000 after the taking.
In view of the evidence in the case, we are clearly of the opinion that we would not be warranted in holding that the action of the circuit judge in sustaining the motion for a new trial was manifestly erroneous or showed a manifest abuse of his discretion. To the contrary, we are of the opinion that the action of the trial judge *376 was amply justified by the record. The judgment of the circuit court is therefore affirmed.
Affirmed.
Hall, P.J., and Ethridge, Gillespie and McElroy, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1612264/ | 123 So. 2d 79 (1960)
240 La. 339
Mrs. Carrie Belle Walker BOYET et al.
v.
Webb PERRYMAN et al.
No. 43876.
Supreme Court of Louisiana.
February 15, 1960.
On Rehearing June 29, 1960.
Rehearing Denied October 5, 1960.
*80 Campbell, Campbell & Marvin, John T. Campbell, Minden, for defendant.
Blanchard, Goldstein, Walker & O'Quin, Shreveport, for plaintiffs-respondents.
SIMON, Justice.
This suit, which began as an action of slander of title, was converted by defendants' pleadings into a petitory action. At issue is the title to a parcel of property situated in Webster Parish, Louisiana, described as follows:
"Beginning at the Northwest corner of the Southeast Quarter of the Southeast Quarter (SE ¼ of SE ¼), Section 24, Township 18 North, Range 9 West, extending 9 chains south to the Sparta Road; thence north 11 chains; thence northwest to the corner of the Southeast Quarter of Southeast Quarter (SE ¼ of SE ¼) of the aforesaid section, township and range, containing 10 acres, more or less."
Plaintiffs, Mrs. Carrie Belle Boyet, O. Reese Boyet and J. Marshall Boyet, the surviving widow and heirs of Shelby B. Boyet, instituted this suit in jactitation averring that they own and are in the actual physical possession of the contested property and that the defendants, The Brushwood Methodist Church and its trustees slandered their title by the execution and recordation of an oil, gas and mineral lease, dated April 9, 1951 and duly recorded, covering said property.
The defendant Church admitted the execution and recordation of said mineral lease, denied plaintiffs were the owners of said property and asserted title in itself, deraigning its muniment of title, i.e., by purchase from and through Noel H. Boyet,[1] thus converting the suit into a petitory action. In addition thereto defendant plead estoppel by warranty against plaintiffs on the ground that its author in title, Noel H. Boyet, had specifically warranted its title against "the lawful claims of myself, my heirs, my executors and administrators;" that Shelby B. Boyet and his brothers and sisters had unconditionally accepted the succession of their deceased father, and *81 that plaintiffs had likewise unconditionally accepted the succession of Shelby B. Boyet, thus equally obligating themselves to honor and discharge the aforesaid warranty of title.
Plaintiffs thereupon plead in support of their asserted title to the entirety of the property the acquisitive prescription of thirty years (LSA-C.C. Article 3499 et seq.) and the acquisitive prescription of ten years (LSA-C.C. Article 3478 et seq.) in respect only to an undivided 3/7ths interest therein.
Upon these issues, after trial on the merits, there was judgment recognizing the defendant, Brushwood Methodist Church, as the owner of the aforedescribed parcel, and, as such, entitled to the possession thereof, from which we infer was an overruling of plaintiffs' pleas of prescription. On appeal the Court of Appeal, Second Circuit, 98 So. 2d 593, in recasting the judgment overruled the plea of estoppel and the plea of thirty years' prescription but sustained the plea of acquisitive prescription of ten years, and accordingly recognized plaintiffs as the owners of an undivided 3/7ths interest, and the defendant Church as the owner of a 4/7ths interest in the aforedescribed ten-acre parcel in contest, and as such ordered each placed in possession of their respective interests.
Upon the application of the defendant Church we granted writs to review the judgment of the Court of Appeal as to the correctness of it judgment sustaining plaintiff's plea of ten years prescription acquirendi causa.
The facts reveal that on August 5, 1887, Noel H. Boyet, by authentic deed duly recorded, sold, conveyed and delivered, with full warranty of title, to the Trustees of the Brushwood Methodist Episcopal Church Souththereafter changed to Brushwood Methodist Church-the ten-acre tract in controversy, which was carved and separated from a larger tract of land previously acquired, January 30, 1886, by Noel H. Boyet. In the act of conveyance to the Church it was therein declared that the parcel of ground was to be used as a "Camp-Ground," or a place of worship. It appears that following this acquisition Noel H. Boyet moved his fences to the line separating this parcel from his remaining property, and thereupon the defendant took possession, erected frame buildings and the improvements thereon, which remained until the ravages of time took its toll. The time of their total obliteration is uncertain.
Without ever reacquiring the subject parcel, Noel H. Boyet and his wife, Mary Ann Boyet, died leaving seven surviving children, who caused their successions by ex parte proceedings to be opened and to have themselves recognized as owners by virtue of their heirship and sent into possession of their entire estates. Listed in the judgment as succession property was the E½ of SE ¼, Section 24, Township 18 North, Range 9 West (out of which the Camp Ground was carved), without excepting the disputed parcel which had been previously sold as aforestated.
By deed dated January 6, 1917, D. Wes Boyet and Cora Boyet Monzingo (two of the seven children of Noel H. and Mary Ann Boyet) sold and conveyed to their five remaining brothers and sisters "all of our right, title and interest in the estates of our deceased father, Noel H. Boyet, and mother, Mary Ann Boyet," giving as a description of their rights the property described in the judgment of possession rendered in the Succession of Noel H. Boyet.
By sheriff's deed dated August 7, 1920, Boyet & Company (a commercial partnership then composed of the remaining four heirs of Noel H. Boyet) acquired the rights, titles and interests of the estate of J. W. Boyet, deceased (one of the children of Noel H. Boyet), in and to the Estate of Noel H. Boyet, sold under Order of Court, in which the entire property was described without specifically describing the ten-acre parcel previously sold to the Church by their ancestor as aforestated.
*82 On January 1, 1921, the four surviving members of the family partnership amicably partitioned "all of the property, real and personal, belonging to the succession of Noel H. Boyet, deceased, and Mary Ann Boyet, deceased." In this partition there was allotted to S. B. Boyet, now deceased, his portion, and which embraced the ten-acre Camp Ground. S. B. Boyet died on December 5, 1948, being survived by his wife and two sons, who are the plaintiffs in this action.
The title pleaded by defendants is conceded by plaintiffs to be a valid paper title to the parcel in contest and the question to be resolved is whether plaintiffs have a superior title to an undivided three-sevenths interest which they claim to have acquired by the ten-year prescription of Article 3478 of the LSA-Civil Code, which provides that "He who acquires an immovable in good faith and by just title prescribes for it in ten years * * *" and Article 3479, which declares that "To acquire the ownership of immovables by the species of this prescription * * *, four conditions must concur:
"1. Good faith on the part of the possessor.
"2. A title which shall be legal, and sufficient to transfer the property.
"3. Possession during the time required by law, which possession must be accompanied by the incidents hereafter required.
"4. And finally an object which may be acquired by prescription."
Other applicable articles of the Civil Code are:
Article 3481: "Good faith is always presumed in matters of prescription; and he who alleges bad faith in the possessor, must prove it."
Article 3482: "It is sufficient if the possession has commenced in good faith; * * *"
Article 3483: "To be able to acquire by the species of prescription mentioned in this paragraph, a legal and transferable title of ownership in the possessor is necessary; this is what is called in law a just title."
Article 3484: "By the term Just title, in cases of prescription, we do not understand that which the possessor may have derived from the true owner, for then no true prescription would be necessary, but a title which the possessor may have received from any person whom he honestly believed to be the real owner, provided the title were such as to transfer the ownership of the property."
Article 3485: "And in this case, by the phrase Transfer the ownership of the property, we understand not such a title, as shall have really transferred the ownership of the property, but a title which by its nature, would have been sufficient to transfer the ownership of the property, provided it had been derived from the real owners, such as a sale, exchange, legacy or donation.
"Thus, prescription could not be acquired under a title resulting from a lease or loan, because these contracts do not transfer the ownership of the property."
The rule generally accepted is that one pleading prescription has the burden of proof and must prove the facts necessary to sustain the plea. Lebarre v. Rateau, 210 La. 34, 26 So. 2d 279; Pierce v. Hunter, 202 La. 900, 13 So. 2d 259; Walter v. Calcasieu National Bank of Lake Charles, 192 La. 402, 188 So. 43; Ernest Realty Co., Inc. v. Hunter Co., Inc., 189 La. 379, 179 So. 460; and Liles v. Pitts, 145 La. 650, 82 So. 735.
Defendants concede that plaintiffs have had and are exercising possession of the property for the requisite period of time, but strenuously contend that plaintiffs have not sustained the first and second aforestated codal requirements necessary to support or establish their plea. Further, defendants deny that plaintiffs were in good faith, and further contend that the deed *83 relied upon by plaintiffs was not legal and sufficient to transfer the property in contest.
In support of the charge of bad faith defendants argue that plaintiffs were not in good faith when they purchased the rights, titles and interests of their co-heirs, as aforestated, in the succession of their father, Noel H. Boyet; that the deed was not translative of title to the disputed property because a conveyance of "all of our right, title and interest in and to the estates of our deceased father, Noel H. Boyet, and mother, Mary Ann Boyet" was necessarily limited to such properties as in truth and in fact were owned by the successions of the decedents, and that, manifestly, a sale of such titles and interests did not and could not include or purport to transfer property which they did not own, more particularly property which had been previously sold as aforestated. Thus, it is argued that the deed from D. Wes Boyet and Cora Boyet Monzingo should not be held to be a conveyance of any interest whatever in the disputed tract.
That an adequate description of the land conveyed is essential to establish the ten-year acquisitive prescription is well settled in our jurisprudence. Bendernagel v. Foret, 145 La. 115, 81 So. 869; Hunter v. Forrest, 195 La. 973, 197 So. 649; and Waterman v. Tidewater Associated Oil Co., 213 La. 588, 35 So. 2d 225. We find that the foregoing deed relied upon by plaintiffs as the basis of the ten-year prescription contained no description of the disputed property but sought to convey only such rights, titles and interests as were then owned by virtue of the judgment of possession in their father's succession proceedings.
It is true that, generally, one is not required to examine the public records and thus ascertain and determine the validity of the title to real property he contemplates purchasing as a condition precedent to good faith. As we said in Arnold v. Sun Oil Co., 218 La. 50, 48 So. 2d 369, he may purchase without any investigation of the title, and if the four conditions of Article 3479 of the LSA-Civil Code are met, he is protected by the prescription of ten years. But if the deed upon which the prescriptive period is based contains a vague and unsatisfactory description of the property purchased and it is necessary for the vendee to institute an investigation into the extent of the title purchased and such examination reveals facts and conditions which should put a reasonably prudent person on guard, it then devolves upon him to pursue every lead and ferret out all the facts to the end that he may not purchase until he has complete information before him. If he does not do this, but purchases upon erroneous assumptions and conclusions, he does so at his own risk and peril. See Bruce v. Cheramie, 231 La. 881, 93 So. 2d 202.
The reference in the deed to the judgment of possession for a true description of the rights, titles and interests in the property being thus conveyed should have been sufficient notice to place plaintiffs on their guard and to make inquiry into the records, for it is well settled that an ex parte judgment sending heirs or legatees into possession of an estate is not, and does not purport to be, a transfer of title, and such a judgment cannot serve as a basis for the prescription of ten years acquirendi causa. See Everett v. Clayton, 211 La. 211, 29 So. 2d 769; Tyler v. Lewis, 143 La. 229, 78 So. 477; and Succession of Lampton, 35 La.Ann. 418.
Obviously, then, it became necessary for plaintiffs to examine all available acts evidencing the muniments of whatever rights they were acquiring and thus determine the extent of their vendors' title and interest. Having failed to exercise this precaution, thereby assuming the species of ownership which their vendor did not possess, plaintiffs cannot be said to be in legal good faith without first obtaining complete information, not only as to the metes and bounds of the specific property they were *84 purchasing, but likewise the muniments of title of their vendors. See Arnold v. Sun Oil Co., supra (citing approvingly Dinwiddie v. Cox, La.App., 9 So. 2d 68), and Richardson & Bass v. Board of Levee Commissioners, 226 La. 761, 77 So. 2d 32.
In the instant case, an examination of the title would have shown that plaintiffs' father had sold the contested property before his death and had never reacquired it, thus the deed from the co-heirs conveyed no right, title or interest whatever in the subject property.
Plaintiffs contend, however, that the case of Everett v. Clayton, supra, supports their position that the deed from their co-heirs was sufficient as a basis for the ten-year prescription. In that instance Robert Clayton, believing that he had inherited Tanglewood Plantation as the only heir of his father, sold the plantation to an uncle by marriage (Magoun), from whom Robert Clayton repurchased the property some fourteen months later. When sued by persons claiming to be the lawful heirs of their deceased father and as such the owners of the plantation, Robert Clayton pleaded the prescription of ten years acquirendi causa based upon the deed to Magoun. The plea was maintained, and in reaching this conclusion, the Court said (211 La. 211, 29 So. 2d 772):
"It is of no particular moment whether Clayton was the actual owner of the property at the time that he ceded it to Magoun, so long as the parties honestly believed him to be such. In fact, a deed to property, valid in form and disclosing no apparent defect in the vendor's title, acquired from one who was not the actual owner of the property, where the parties thereto believed him to be the actual owner, is sufficient to support a plea of prescription. Greening v. Natalie Oil Co., 152 La. 467, 93 So. 682, and cases cited therein; Bowers v. Langston, 156 La. 188, 100 So. 301; Keller v. Summers, 192 La. 103, 187 So. 69. If the transferor's title was perfect there would be no necessity for prescription. It may be true that a person cannot transfer better title than he has, but a defective title may be cured by prescription where the deed is valid in form."
The Clayton case is easily distinguished from the instant case on its facts. Clayton transferred a specific property to Magoun, the property was properly described and there was no necessity to look beyond the four corners of the instrument to ascertain the extent of the title being conveyed. Thus, the deed was valid on its face without reference to other acts or instruments. The good faith of the parties was presumed when it became known that the persons contesting the ownership of the property themselves had not known that they were the lawful heirs of Clayton's father until thirty years after the succession proceedings.
We necessarily conclude that two of the requirements of LSA-C.C. Article 3479, namely, legal good faith and a just and legally transferable title, as a necessary basis for one acquiring immovables under the ten-year acquisitive prescription, have not been met.
We find it unnecessary to consider the second contention of defendants as to whether an undivided interest in an immovable is an object which may be acquired by prescription.
For the reasons assigned, the judgment of the Court of Appeal is reversed and set aside and the judgment of the district court is reinstated at plaintiffs' costs.
HAMITER, J., concurs in the decree.
On Rehearing.
HAWTHORNE, Justice.
The Court of Appeal in this case sustained a plea of 10 years' prescription acquirendi causa filed by plaintiffs, the widow and two sons of Shelly B. Boyet, recognized *85 plaintiffs to be the owners of an undivided three-sevenths interest in the 10-acre tract involved in this suit, and recognized the Brushwood Methodist Church, defendant, to be the owner of an undivided four-sevenths interest. See Boyet v. Brushwood Methodist Church, La.App., 98 So. 2d 593. On application of the church writs were granted by this court. On original hearing in this court we reversed and set aside the judgment of the Court of Appeal and reinstated the judgment of the district court which had recognized the church to be the owner of the entire tract.
The relevant facts are given in the opinion of the Court of Appeal and in our opinion on original hearing, and therefore need not be restated here.
As a basis of their prescriptive title to an undivided three-sevenths interest in the property plaintiffs, the Boyets, rely principally on two deeds. The first is the deed dated January 6, 1917, executed by D. Wes Boyet and Mrs. Cora B. Monzingo in favor of Shelly B. Boyet et al., in which the vendors conveyed to the vendees for $2,600 "* * * all of our right, title and interest in and to the said estates and successions of our deceased father, Noel H. Boyet, and mother, Mary Ann Boyet, and each of our inheritance and interest in said estates and successions and to all and singular the rights and titles therein of whatsoever nature belonging * * * and especially the property and lands described in judgment putting heirs of N. H. Boyet in possession of property as set forth in judgment of record in Vol Conveyances Parish of Webster, La., No. 26, Pg 183 and page 184". The judgment referred to in this deed decreed that the seven children of the deceased N. H. Boyet "* * * be recognized as the sole and only heirs at law of their deceased father, Mr. N. H. Boyett, in equal proportions; and that as such they be sent and put in possession of all the property of every kind whatsoever, left by the said deceased, and particularly of the following described real estate, to-wit:
"List of Land of N. H. Boyett:
"The East Half of the Southeast Quarter of Section 24, Township 18, Range 9 except a small portion lying in the Southwest corner of the Southeast Quarter of the Southeast Quarter and one acre lying in extreme NE corner of NE¼ of SE¼ of Section 24 T 18 R 9 * * *." (The 10-acre tract is included in the property so described.)
The second deed upon which plaintiffs principally rely is an act of sale dated August 7, 1920, made by the sheriff of the Parish of Webster, who, pursuant to an order of court, sold at public auction the property belonging to the succession of James B. Boyet. This act recites that the sheriff, in consideration of $2,444.01 in cash, conveyed to the firm of S. B. Boyet & Co., "one-fifth interest in 433 acres of land, more or less, described as follows:
"* * * E½ of SE¼ Sec. 24 T. 18 Rawle 9 * * *." (The 10 acres in dispute are within the lands here described.)
On original hearing, after announcing the principle of law that an adequate description of land conveyed is essential to establish the 10 years' acquisitive prescription, we stated that the 1917 deed upon which plaintiffs rely as a basis of that prescription contained no description of the disputed property, but conveyed only such rights, titles, and interests as were then owned under the judgment of possession in the succession proceedings. We further stated that the reference in the deed to the judgment of possession for a true description of the rights, titles, and interests in the property conveyed by the deed should have been sufficient notice to have placed the vendees on their guard and to have caused them to examine all available acts evidencing the muniments of whatever rights they were acquiring. We held that plaintiffs, by failing to exercise this precaution, were in legal bad faith because an examination of the title would have shown that Noel Boyet had sold the contested property. In so holding we said:
*86 "We necessarily conclude that two of the requirements of LSA-C.C. Article 3479, namely, legal good faith and a just and legally transferrable title, as a necessary basis for one acquiring immovables under the ten-year acquisitive prescription, have not been met."
Plaintiffs in application for rehearing stated that we failed to mention or discuss the sheriff's deed of August 7, 1920, pleaded as a basis for prescription as to an undivided one-fifth interest, and that our holding that the 1917 Wes Boyet deed contained no adequate description of the property conveyed is contrary to the holding of this court in Cherami v. Cantrelle, 174 La. 995, 142 So. 150. Under this statement we granted the rehearing so that we might give further consideration to the entire case, and especially to the holding of the Court of Appeal overruling defendants' plea of estoppel by warranty and sustaining plaintiffs' plea of 10 years' acquisitive prescription as to an undivided three-sevenths interest in the 10-acre tract.[1] A further consideration and study have convinced us that the defendants' plea of estoppel by warranty has merit and should be sustained.
In 1887 Noel H. Boyet conveyed to the trustees of the Brushwood Methodist Episcopal Church the 10 acres here in dispute, and in this instrument Noel Boyet bound himself to "warrant and defend the above granted premises in the peaceful and quiet possession of the said party of the second part their successors in office against the lawful claim or claims of myself, my heirs, my executors or administrators * * *". Upon the death of Noel H. Boyet his seven children accepted his succession unconditionally and were recognized as his sole heirs. One of these children was Shelly B. Boyet, whose widow and sons are plaintiffs in this suit. When Shelly B. Boyet died, the plaintiffs accepted his succession unconditionally. In other words, the plaintiffs derive their title from Noel H. Boyet through Shelly B. Boyet.
Shelly Boyet and his brothers and sisters, having unconditionally accepted the succession of their father Noel H. Boyet, vendor of the property here in dispute, were bound by his warranty. The obligation of warranty descends to the heirs of the vendor, and one of its objects is the buyer's peaceful possession of the thing sold; and heirs accepting the vendor's succession are not in the situation of third parties. Griffing v. Taft (on rehearing), 151 La. 442, 451, 91 So. 832, 835; Cherami v. Cantrelle, 174 La. 995, 142 So. 150; Arnett v. Marshall, 210 La. 932, 28 So. 2d 665, and numerous authorities cited; Louisiana Canal Co. v. Leger, 237 La. 936, 112 So. 2d 667.
Plaintiffs, the Boyets, contend that they are successors by a particular title as to an undivided one-fifth and an undivided two-sevenths interest, and that under the deeds which conveyed these interests there was commenced a new and distinct possession which permitted them to prescribe for these interests in 10 years.
Even if we concede that they are claiming the undivided interests under a particlular title, we do not think that this fact of itself renders valid their plea of 10 years' acquisitive prescription. As stated previously, they are not third parties. See Gusman v. Berryman, Man.Unrep.Cas. 199; Griffing v. Taft, supra. The interests conveyed by these deeds are interests conveyed to Shelly B. Boyet by his coheirs, and coheirs cannot, merely by conveying from one to another the interests inherited from their father, release and discharge themselves from the obligation of warranty which they accepted when they accepted their father's succession. This obligation of warranty is indivisible and extends to the entire interest conveyed by Noel Boyet to the church. In this connection in Griffing *87 v. Taft, supra, we stated [151 La. 442, 91 So. 836]:
"In Gusman v. Berryman, Mr. Justice White, late Chief Justice of the Supreme Court of the United States, said, referring to the plaintiff in the case:
"`Could he be successful in ousting his mother, he and his coheirs would be her warrantors, and hence the doctrine "Quem de evictione tenet actio eundem agentem repellet exceptio" is fatal to his pretensions. He claims that he has a new title. Grant it. His new title comes from his coheirs, and he cannot undo as an actor that which he would be compelled to make good as a warrantor. Even did he and his coheirs, and he through them, have a title emanating from a different source than their father, they could not be heard under such circumstances to destroy the very right they are bound to maintain.'"
The Court of Appeal in overruling defendants' plea of estoppel by warranty relied on Succession of Zebriska, 119 La. 1076, 44 So. 893, and Frost Lumber Industries v. Harrison, 215 La. 767, 41 So. 2d 674. In those cases this court was considering and dealing with the acquisitive prescription of 30 years. Under this prescription even a trespasser without any title can acquire ownership of property after 30 years' adverse possession. Since no title is necessary for acquisition by the 30 years' prescription, there cannot be any estoppel by warranty against those pleading this prescription. In such a case the 30-year possessor is in no way disputing the title of the record owner, but is averring only that he himself has acquired ownership solely by adverse possession for 30 years. In the instant case plaintiffs are pleading the 10 years' acquisitive prescription and are asserting a title derived from Shelly Boyet's coheirs, all of whom, as stated, were bound by their father's warranty. The Zebriska and Frost cases, therefore, though full authority for the principle there announced, are not apposite in the instant case, and the Court of Appeal was in error in overruling defendants' plea of estoppel by warranty.
In our first opinion we found it unnecessary to discuss defendants' plea of estoppel by warranty. Under these circumstances we are especially reserving to plaintiffs the right to apply for a second rehearing.
For the reasons assigned our previous decree setting aside the judgment of the Court of Appeal and reinstating the judgment of the district court at plaintiffs' costs is reinstated and made the judgment of this court.
NOTES
[1] Act of sale, executed by Noel H. Boyet, dated August 5, 1887, and duly recorded in the conveyance records of Webster Parish, Louisiana.
[1] Under this plea of rescription the Boyets should have claimed a 1/5 plus a 2/7 or a 17/35, interest in the property, but through error they asked for 3/7. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613057/ | 32 Wis. 2d 496 (1966)
WITHERS, by Guardian ad litem, Plaintiff and Appellant,
v.
TUCKER and another, Defendants:
ELECTRONIC EXPEDITORS, INC., and another, Defendants and Respondents.
Supreme Court of Wisconsin.
October 6, 1966.
November 1, 1966.
*498 For the appellant there was a brief and oral argument by H. R. George of Milwaukee.
For the respondents there was a brief by Wickham, Borgelt, Skogstad & Powell, attorneys, and Kurt H. *499 Frauen and Thomas N. Klug of counsel, all of Milwaukee, and oral argument by Mr. Frauen and Mr. Klug.
HANLEY, J.
The sole issue is whether the trial court committed prejudicial error in refusing to set aside all proceedings in which plaintiff appeared without a guardian ad litem occurring prior to plaintiff's claim of mental incompetence.
Sec. 260.22, Stats., is the applicable statute with respect to the necessity of the appointment of the guardian ad litem in a court action for personal injuries.
The statute provides as follows:
"260.22 Appearance by guardian or guardian ad litem. When a party to an action or proceeding is a minor, or when the court or judge has reason to believe that a party is mentally incompetent to have charge of his affairs, he must appear either by the general guardian of his property or by a guardian ad litem who is an attorney appointed by the court or by a judge thereof. A guardian ad litem shall be appointed in all cases where the minor or incompetent has no general guardian of his property, or where such general guardian fails to appear on his behalf, or where the interest of the minor or incompetent is adverse to that of such general guardian."
The above statute deals with disabilities, minority and mental incompetence and treats them differently with respect to the necessity of a guardian ad litem. A minor must always appear by his guardian, while a mental incompetent is not required to have or appear by a guardian until such time as the court is aware of his incapacity.
It has been held that a mental incompetent may commence an action, appearing by his attorney but without a guardian ad litem. Menz v. Beebe (1897), 95 Wis. 383, 70 N.W. 468.
It was held in Wiesmann v. Donald (1905), 125 Wis. 600, 603, 104 N.W. 916, that no obstacle existed either by common law or under the Wisconsin statutes *500 to the maintenance of an action by an incompetent person and that the proper course for courts to pursue, when it becomes apparent that a plaintiff by reason of his insanity cannot safely protect his rights in the litigation, is to appoint a guardian ad litem under now sec. 260.22, Stats., and direct the case to proceed, not to dismiss the case and deny all hearing.
The trial court had no reason to believe that plaintiff was mentally incompetent until October 11, 1965, and it appointed a guardian ad litem on November 11, 1965, so that the motion could be made and heard and because the action is still pending against defendant Tucker.
Counsel for plaintiff bases his appeal entirely on the provisions of sec. 260.22, Stats. The cases relied upon by plaintiff relate to minors and minor settlements. These are inapplicable. A minor does not have legal capacity to contract; and since the age under twenty-one years is definite and factual, a guardian ad litem must be appointed, while some persons who may be mentally incompetent to a slight degree are able to do so and a guardian ad litem must be appointed if the court or judge has reason to believe that he is so mentally incompetent that he cannot have charge of his affairs.
Sec. 269.43, Stats., provides that the court shall disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.
The defect here claimed does not affect the substantial rights of the plaintiff. His attorney proceeded in the trial of the scope-of-employment issue and in the appeal without raising the question or bringing it to the attention of the court if he were aware of his mental condition. In any event, his attorney did not have him present at the trial. The issue was fully and fairly tried and the jury verdict followed. There is nothing in the affidavits *501 to show that a new trial on the issue of coverage would come to a different result.
In addition, the mental disability of the plaintiff could in no way be material to the issue of the scope of employment existing between the defendant Tucker and his employer, Electronic Expeditors, Inc. It is difficult to understand what evidence the plaintiff could offer relating to the scope-of-employment issue that the codefendant Tucker could not put forth on his behalf.
If plaintiff is seeking a new trial on newly discovered evidence, he has not met the prerequisites as set forth in Estate of Teasdale (1953), 264 Wis. 1, 58 N. W. (2d) 404, and repeated with approval in Estate of Eannelli (1955), 269 Wis. 192, 68 N. W. (2d) 791, where they are restated at page 214:
"(1) The evidence must have come to the knowledge of the party after the trial.
"(2) The party must not have been negligent in seeking to discover it.
"(3) The evidence must be material to the issue.
"(4) The evidence must not be merely cumulative to testimony discovered at the trial.
"(5) It must be reasonably probable that a different result will be reached on a new trial."
Upon the record before the court, including also the opinion of the supreme court upon the appeal, Withers v. Tucker, supra, it is not reasonably probable that a different result would be reached on a new trial. Applications for a new trial, as this motion is, in effect, are looked upon with disfavor. Estate of Eannelli, supra.
Plaintiff contends that defendants were aware of Withers' mental incompetency and that defendants had the burden of procuring a guardian ad litem for him. Appellant cites no authority in support of this proposition. Contrary to appellant's contention, the burden of informing the court of plaintiff's mental disability and *502 making application for the appointment of a guardian ad litem rests with the plaintiff, not the defendant. In so indicating, sec. 260.23 (1) and (2), Stats., recognizes that the plaintiff, his guardian, friends, relatives, and presumably his attorney are in a position far superior to that of defendant's attorneys to have knowledge of the plaintiff's disability.
This was the situation in the present case. Plaintiff's attorney commenced the action on Withers' behalf in 1961. Subsequent to the commencement of this action as outlined in appellant's statement of facts, Withers sought treatment for mental disturbance on several occasions, beginning as early as January, 1962. The trial of the separate issue of coverage was held two years later in February, 1964. Plaintiff's attorney was in a position to know of Withers' claimed mental deficiency during that period of time. The record contains no affidavit to indicate that plaintiff's counsel was not aware of plaintiff's disability during the two-year period of plaintiff's treatment prior to trial or during the appeal and motion for rehearing. On the other hand defendants had no knowledge as to the nature, extent, duration, or effect of any mental difficulty being experienced by Withers prior to October, 1965.
We conclude the order of the trial court denying the appellant's motion to set aside all prior proceedings must be affirmed and that Withers being represented by a guardian ad litem be permitted to proceed against the defendants Nealon Harris Tucker and Marjorie J. Tucker.
By the Court.Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613077/ | 4 Mich. App. 660 (1966)
145 N.W.2d 390
PEOPLE
v.
BRADLEY.
Docket No. 542.
Michigan Court of Appeals.
Decided October 25, 1966.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John T. Hammond, Prosecuting Attorney, and Harry J. Creager, Assistant Prosecuting Attorney, for plaintiff.
Ryan, McQuillan & Vander Ploeg (David Vander-Ploeg, of counsel), for defendant.
HOLBROOK, P.J.
Defendant was tried and convicted of the crime of breaking and entering in the nighttime with intent to commit larceny[*] before a jury in the circuit court for Berrien county, October *662 5, 1964, and sentenced to serve 5 to 10 years in the State's prison, November 6, 1964. Defendant thereafter made a motion for a new trial which was denied by an order filed December 21, 1964.
Defendant has taken this appeal from the conviction and sentence and from the order denying a new trial, raising the following questions for review: (1) Whether admissions made by defendant immediately after his arrest should have been received in evidence. (2) Whether the people's exhibit 2, a pair of gloves, were illegally seized and should have been denied admission into evidence. (3) Whether the verdict was contrary to the great weight of the evidence properly received. (4) Whether the court erred in instructing the jury.
The pertinent facts of the case appear to be as follows: Defendant was charged with breaking and entering the Lake Michigan College Bookstore located in Benton Harbor, Berrien county, Michigan, on July 25, 1964, late in the evening. Defendant had a preliminary examination and appointed counsel represented him therein as well as at the trial. Witness Paul Hicks testified that he heard a window breaking while he was standing on a bridge, some distance west of the Lake Michigan College Bookstore, that he investigated and observed the defendant in the building and also saw him set a typewriter and adding machine (people's exhibits 1 and 3) outside of the building, and that he called the police. Two Benton Harbor police officers arrived a few minutes later and almost immediately arrested the defendant who was walking a short distance east of the building. Shortly after the arrest, investigation revealed that a typewriter and adding machine had been placed immediately outside a door on the west side of the bookstore building. At the time defendant was arrested, he was wearing a pair of gloves which were later introduced at the trial without *663 objection as exhibit 2. A search of defendant's person revealed nothing belonging to the Lake Michigan College Bookstore. The two arresting officers were joined by a detective from the Benton Harbor police department and the defendant was immediately questioned. The officers testified that he had admitted to them at that time that he had broken a window in the rear of the bookstore and then showed the detective and one of the officers the broken window. This testimony was admitted without objection.
Defendant raises for the first time objection to the admissibility of the admissions made to the detective and the police officers, claiming that he was not informed of his right to counsel at the time. He further claims that the matter should be returned to the trial court for a Walker hearing, in accord with People v. Walker (On Rehearing, 1965), 374 Mich. 331.
The record discloses that counsel for defendant cross-examined the detective and the officers but did not raise any issue as to the admissibility or voluntariness of defendant's statement or confession.
In the case of People v. Jury (1966), 3 Mich. App. 427, we stated on pp 434, 435, and 436, as follows:
"The cases of Jackson v. Denno, 378 U.S. 368 (84 S. Ct. 1774, 12 L ed 2d 908, 1 ALR3d 1205), and People v. Walker (On Rehearing, 1965), 374 Mich. 331, are authority for the rule that the defendant may object to the use of an alleged involuntary confession and must have a fair hearing and a reliable determination on the issue of voluntariness, not influenced by the truth or falsity of the confession. In Michigan the hearing must be had in the absence of the jury and admissibility determined by the judge on a separate record. If found to be voluntary, it is admitted, and the jury's consideration limited to its weight and credibility. If found to be involuntary, *664 it is suppressed. These cases are obviously not applicable here, for defendant was given every opportunity to object to the statement or to raise an issue as to its being involuntarily given.
"Our Supreme Court presumes evidence admitted was lawfully admitted where no proper objections were made at the trial. People v. Robinson (1955), 344 Mich. 353. * * *
"In Escobedo v. Illinois, 378 U.S. 478 (84 S. Ct. 1758, 12 L ed 2d 977), defendant's attorney was refused admittance to where defendant was being questioned prior to arraignment. Under those circumstances and without being advised that he could remain silent, defendant made incriminating statements which were admitted on the trial of the case. On appeal, the United States Supreme Court ruled that this was a denial of due process under the Sixth Amendment to the Federal Constitution made obligatory upon the States by the Fourteenth Amendment. The facts under the Escobedo Case are not analogous and therefore not applicable. Issues not raised in the trial court cannot be raised on appeal. People v. Matteson (1937), 280 Mich. 218; People v. Hallman (1941), 299 Mich. 657."
What we said in People v. Jury, supra, is clearly applicable to the case at hand.
The error claimed in defendant's second question is without basis when raised for the first time on appeal in this Court. The rule enunciated in People v. Ferguson (1965), 376 Mich. 90, is aptly stated in the following headnotes:
"A defendant with knowledge of facts constituting an alleged illegal search and seizure before trial has the responsibility of communicating same to his attorney who then has the responsibility of moving to suppress in advance of trial."
"The burden of asserting and proving facts constituting an illegal search and seizure is upon the defendant *665 moving to suppress the evidence, and where such burden is not sustained, the motion should be denied."
A review of the record fails to disclose any motion to suppress as having been made, either before or during trial. In fact, defendant's counsel stated he had no objections to the admission of exhibit 2 (gloves) when offered. Issues not raised in the trial court cannot be raised on appeal. People v. Jury, supra.
Defendant claims the verdict was contrary to the great weight of the evidence. This is an incorrect standard of proof in a criminal case. The correct standard is whether the evidence was ample to warrant a finding of guilty beyond a reasonable doubt. People v. Williams (1962), 368 Mich. 494.
A review of the testimony clearly demonstrates that there was ample evidence if believed by the jury to justify a verdict of guilty beyond a reasonable doubt.
Defendant asserts that the court erred in instructing the jury in the following manner:
"Without going into detail, you know what the claim of the people is. They claim this man Hicks heard the he was on the viaduct, two or three hundred yards away and heard some glass breaking; and he ran to the house right across the street from where the alleged offense occurred and called the police and then went over and claims that he saw a man in the place, and he claims it was this man and of course, the testimony of the officers and you heard that. They claim that this man, Leon H. Bradley, the defendant, broke into this place through that window in the nighttime; and that after he got in apparently the doors could be unlocked from the inside. I think the officer said the door was open when he got there; and that he took these exhibits, *666 the typewriter and adding machine that these exhibits were outside the building when the police came. I am not going into the claims in detail."
It is the defendant's claim that the court indicated that witness Hicks' testimony was corroborated by the testimony of the police. We do not so read the instruction in this light. The judge was relating the claims of the people. It certainly was the claim of the people that the officers testified that defendant admitted he broke into the building. Defendant further claims that the instruction was unfair because there was no evidence that the doors could be unlocked from the inside. Witness Bond stated that when he examined the doors and windows of the building "the door on the east side was standing wide open." A legitimate inference that the door was opened from the inside was a logical claim of the people in the case. We find no error in the trial judge's instructions.
The judgment of conviction and order denying a new trial are affirmed.
FITZGERALD and J.H. GILLIS, JJ., concurred.
NOTES
[*] CL 1948, § 750.110 (Stat Ann 1962 Rev § 28.305). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1613102/ | 11 So. 3d 221 (2007)
EX PARTE ALABAMA STATE BOARD OF CHIROPRACTIC EXAMINERS et al.
(In re John Sparks, D.C.; Todd Sayers, D.C.; and Donovan S. Harper, D.C. v. Alabama State Board of Chiropractic Examiners et al.)
2060864.
Court of Civil Appeals of Alabama.
October 12, 2007.
*223 James S. Ward of Ward & Wilson, L.L.C., Birmingham, for petitioners.
Glen David King, Auburn; and Randolph P. Reaves, Montgomery, for respondents.
BRYAN, Judge.
The Alabama State Board of Chiropractic Examiners ("the Board") and its individual members, Carl E. Nelson, D.C.; Gilles X. Beaumont, D.C.; Jerry L. Schreiner, D.C.; Ronald F. Ivie, D.C.; Robert Brian Wells, D.C.; Paula D. Gilliam, D.C.; Merritt G. Lett, D.C.; and Jeanett A. Green ("the Board members") petition this court for a writ of mandamus directing the trial court to grant their motion to dismiss or, in the alternative, for a summary judgment with respect to the action filed against them by John Sparks, D.C.; Todd Sayers, D.C.; and Donovan S. Harper, D.C. ("the plaintiffs"). The Board and the Board members claim that we should issue the writ of mandamus because, they say, the Board and the Board *224 members are entitled to immunity, the plaintiffs lack standing to bring the action, and the plaintiffs' claims have no merit. We grant the petition in part, deny the petition in part, and issue the writ.
The Board, which was created by the Alabama Legislature, § 34-24-140, Ala. Code 1975, is authorized to control the licensing of chiropractors, § 34-24-161, and is charged with regulating the chiropractic profession, § 34-24-166. Mooneyham v. State Bd. of Chiropractic Exam'rs, 802 So. 2d 200, 204 (Ala.2001). The plaintiffs, all of whom are chiropractors, sued the Board and the Board members in their official capacities only, claiming that the Board's rules governing advertising by chiropractors were unconstitutional and seeking the following relief:
"40. Pursuant to Rule 65 of the Alabama Rules of Civil Procedure, the plaintiffs request this Court to set the matter for a hearing and upon such hearing grant unto them a preliminary injunction enjoining the Board from enforcing its advertising rules until a trial can be had in this cause.
"41. Further, the plaintiffs request this Court to issue a permanent injunction barring the Board from enforcing the advertising rules until they are amended to remove the uncertainty of what chiropractors can advertise and allowing the use of common place words that are used in everyday advertising across Alabama and the rest of the United States.
"42. Upon a trial of this cause, the plaintiffs request a declaratory judgment against the defendants holding the Board's advertising rules unconstitutional or unconstitutionally applied to the plaintiffs.
"43. The plaintiffs also respectfully request, pursuant to Code of Alabama 1975, Section 6-6-231 attorneys' fees and costs and point out to the Court that they have shouldered the burden for many other chiropractors across the state of Alabama."
The Board and the Board members filed a motion to dismiss, or, in the alternative, for a summary judgment based on the grounds, among others, (1) that the Board and the Board members were entitled to immunity, (2) that the plaintiffs lacked standing to bring the action, and (3) that the complaint failed to state a claim upon which relief could be granted. The trial court denied that motion. Thereafter, the Board and the Board members petitioned the supreme court for a writ of mandamus directing the trial court to grant their motion to dismiss or, in the alternative, for a summary judgment. Concluding that the petition for a writ of mandamus was within this court's jurisdiction, the supreme court transferred the petition to this court. We ordered the filing of an answer and briefs and stayed the trial court's proceedings, pending our consideration of the petition.
A party seeking a writ of mandamus "must demonstrate: `(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.'" Ex parte Liberty Nat'l Life Ins. Co., 825 So. 2d 758, 761 (Ala.2002) (quoting Ex parte Ridgeview Health Care Ctr., Inc., 786 So. 2d 1112, 1115 (Ala.2000)).
The issue whether a defendant is entitled to State immunity under Article I, § 14, Ala. Const. of 1901, is jurisdictional. Ex parte Alabama Dep't of Mental Health & Mental Retardation, 837 So. 2d 808, 810 (Ala.2002).
"'This constitutionally guaranteed principle of sovereign immunity, acting as a jurisdictional bar, precludes a court from *225 exercising subject-matter jurisdiction. Without jurisdiction, a court has no power to act and must dismiss the action.' Alabama State Docks Terminal Ry. v. Lyles, 797 So. 2d 432, 435 ([Ala.] 2001). Therefore, a court's failure to dismiss a case for lack of subject-matter jurisdiction based on sovereign immunity may properly be addressed by a petition for the writ of mandamus."
Ex parte Alabama Dep't of Mental Health, 837 So.2d at 810.
Accordingly, although the Board and the Board members primarily argue that they are entitled to a writ of mandamus based on types of immunity other than State immunity under Art. I, § 14, we first consider whether the Board and the Board members are entitled to a writ of mandamus based on State immunity under Art. I, § 14.
"[T]he Board is a State agency and, consequently, is entitled to [Art. I,] § 14 immunity." Mooneyham, 802 So.2d at 204. The Board members, who have been sued in their official capacities only, are also entitled to Art. I, § 14, immunity. See Burqoon v. Alabama State Dep't of Human Res., 835 So. 2d 131, 133 (Ala.2002) ("State agents enjoy absolute immunity from suit in their official capacities.").
"Article I, § 14, provides that `the State of Alabama shall never be made a defendant in any court of law or equity.' The courts have construed this provision to mean that the State of Alabama and its agencies are immune from suit in any court. Ex parte Franklin County Dep't of Human Res., 674 So. 2d 1277 (Ala. 1996). The provision `affords the State and its agencies an "absolute" immunity from suit in any court.' Haley v. Barbour County, 885 So. 2d 783, 788 (Ala. 2004). This absolute immunity extends to the State's agencies. Ex parte Tuscaloosa County, 796 So. 2d 1100, 1103 (Ala.2000). ..."
Ex parte Walley, 950 So. 2d 1172, 1178 (Ala.2006). This absolute immunity from suit also bars suits for relief by way of mandamus or injunction. Ex parte Troy Univ., 961 So. 2d 105, 108 (Ala.2006). In addition, Art. I, § 14, also bars claims seeking the recovery of attorney fees and expenses. Ex parte Town of Lowndesboro, 950 So. 2d 1203, 1212 (Ala.2006).
"There are exceptions to the State's sovereign immunity.
"`A state official is not immune from an action that (1) seeks to compel a state official to perform his or her legal duties, (2) seeks to enjoin a state official from enforcing unconstitutional laws, (3) seeks to compel a state official to perform ministerial acts, or (4) seeks a declaration under the Declaratory Judgments Act, § 6-6-220 et seq., Ala.Code 1975, construing a statute and applying it in a given situation.'
"Latham v. Department of Corr., 927 So. 2d 815, 821 (Ala.2005). Other actions that are not prohibited by § 14 include:
"`(5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law.'
"Drummond Co. [v. Alabama Dep't of Transp.], 937 So.2d [56] at 58 [(Ala. 2006)] (emphasis omitted)."
Ex parte Alabama Dep't of Transp., 978 So. 2d 17, 21 (Ala.2007) (footnote omitted). Moreover, § 41-22-10, Ala.Code 1975, provides as follows:
*226 "The validity or applicability of a [State agency's] rule may be determined in an action for a declaratory judgment or its enforcement stayed by injunctive relief in the circuit court of Montgomery County, unless otherwise specifically provided by statute, if the court finds that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. In passing on such rules the court shall declare the rule invalid only if it finds that it violates constitutional protections or exceeds the statutory authority of the agency or was adopted without substantial compliance with rule-making procedures provided for in this chapter."
(Emphasis added.)
In the case now before us, Art. I, § 14, bars the plaintiffs' claims insofar as they seek an award of attorney fees and costs. See Ex parte Town of Lowndesboro, 950 So.2d at 1212. However, Art. I, § 14, does not bar the plaintiffs' claims insofar as they seek injunctive and declaratory relief. See § 41-22-10.
The Board and the Board members also argue that they are entitled to a writ of mandamus based on types of immunity other than Art. I, § 14, immunity; however, they have not cited any legal authority holding that those other types of immunity constitute exceptions to the general rule "that, because an `adequate remedy' exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus." Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d at 761-62. Therefore, we do not consider their arguments regarding those other types of immunity.
The Board and the Board members also argue that they are entitled to a writ of mandamus because, they say, the plaintiffs lack standing to bring their action because they have never been disciplined for violating the advertising rules of the Board. The Alabama Supreme Court has reviewed the denial of a motion to dismiss or, in the alternative, for a summary judgment grounded on lack of standing on a petition for a writ of mandamus. E.g., Ex parte Sterilite Corp. of Alabama, 837 So. 2d 815 (Ala.2002). Therefore, we will consider the argument of the Board and the Board members regarding the plaintiffs' lack of standing.
Section 41-22-10 authorizes an action for declaratory or injunctive relief by a plaintiff if the "threatened application" of an administrative rule "threatens to interfere with or impair, the legal rights or privileges of the plaintiff." In this case, the plaintiffs are all chiropractors and, as such, are subject to the Board's advertising rules. Thus, the Board's advertising rules threaten to interfere with the plaintiffs' rights or privileges even though they have not yet been disciplined under those rules. Cf. Medical Ass'n of Alabama v. Shoemake, 656 So. 2d 863 (Ala.Civ.App. 1995) (holding that four physicians had standing under § 41-22-10 to challenge an amendment to a rule of the Alabama Board of Physical Therapy because the rule would indirectly affect their medical practices). Therefore, we conclude that the plaintiffs have standing to challenge those rules in an action seeking injunctive and declaratory relief pursuant to § 41-22-10.
The Board and the Board members also argue that they are entitled to a writ of mandamus because, they say, the plaintiffs' claims have no merit. However, the Board and the Board members have not cited any legal authority holding that they are entitled to appellate review of the *227 merits of the plaintiffs' claims on a petition for writ of mandamus. See Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d at 761-62. Therefore, we do not consider their argument that they are entitled to a writ of mandamus on the ground that the plaintiffs' claims have no merit.
In conclusion, we grant the petition insofar as the plaintiffs' claims seek an award of attorney fees and costs, and we deny the petition in all other respects. We express no opinion regarding whether the plaintiffs will ultimately prevail on their claims seeking injunctive and declaratory relief.
PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.
THOMPSON, P.J., and THOMAS and MOORE, JJ., concur.
PITTMAN, J., concurs in part and concurs in the result, with writing.
PITTMAN, Judge, concurring in part and concurring in the result.
I concur in that portion of the main opinion concluding that the mandamus petition should be granted insofar as the plaintiffs seek an award of attorney fees and costs, and I concur in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2591908/ | 223 P.3d 837 (2010)
STATE
v.
KRALLMAN.
No. 101219.
Court of Appeals of Kansas.
February 12, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
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